[00:00:01] Speaker 04:
We will hear argument next in number 22, 2249, Lambrow versus United States.

[00:00:35] Speaker 04:
Mr. Whitcomb.

[00:00:37] Speaker 00:
Thank you.

[00:00:38] Speaker 00:
If it pleases the court, I'm Joe Whitcomb, and I represent Mr. Jason Ambrow and similarly situated contractors, we argue, period employees of what was formerly Voice of America, then the governor's board of broadcasters in this case.

[00:00:56] Speaker 00:
The case arises from, obviously, Mr. Lambrow and those similarly situated to him arguing, as the complaint alleges, that they were all collectively misclassified.

[00:01:08] Speaker 00:
They were floored on.

[00:01:09] Speaker 04:
Can I just get one fact clarified, if I can?

[00:01:15] Speaker 04:
You said, I think in your complaint, that in, I think your words were early 2018, you started making the contract with Voice of America or whoever it was, the agency, through the company Wayne Industries LLC.

[00:01:36] Speaker 04:
Do you know more precisely what early 2018 means?

[00:01:42] Speaker 00:
I don't.

[00:01:42] Speaker 00:
Standing here today, I don't know.

[00:01:45] Speaker 00:
the exact date.

[00:01:46] Speaker 00:
I also know that it was at, but I do know that it was at the government's suggestion.

[00:01:51] Speaker 04:
Right.

[00:01:51] Speaker 04:
I guess here's just what I'm trying to piece together.

[00:01:54] Speaker 04:
So the Court of Federal Claims on Statute of Limitations grounds dismissed, and you haven't appealed this, any claim predating January 28, 2018, which is three years before the filing of the complaint.

[00:02:12] Speaker 04:
I guess part of what I want to understand is whether there is any period of time at issue here when the contract was between the agency and a human being, namely Mr. Lambrow, or whether it's only between the agency and this artificial entity, namely the limited liability company, or whether

[00:02:39] Speaker 04:
And early 2018 doesn't quite tell me whether it's before or after January 28th.

[00:02:45] Speaker 04:
And I'm not suggesting what significance it has, but there's a lot of uncertainty, at least in my mind, about a lot about this case.

[00:02:52] Speaker 04:
And that's one of them.

[00:02:53] Speaker 00:
And your honor, to your point, there are, in our estimation, about 750 putative class members that are similarly situated to Mr. Lambrow based on just a cursory search of USA spending and looking at the agency and looking at the NAICS codes and looking at, and fortunately for me in this oral argument, this court also happens to be a court of review related to all things government contracting.

[00:03:18] Speaker 00:
So this is,

[00:03:22] Speaker 00:
You have about 750 peer-to-peer class members just working for Voice of America.

[00:03:26] Speaker 00:
None of them, by the way, responded to a FedBizOpps solicitation to compete for a government contract.

[00:03:35] Speaker 00:
The idea is that these folks, and we don't know exactly how they came out of the jobs, all 750, and we know that Mr. Lam...

[00:03:42] Speaker 04:
Right now, we have just Mr. Lambert.

[00:03:45] Speaker 04:
We don't have a certified class.

[00:03:46] Speaker 04:
I don't even remember.

[00:03:47] Speaker 04:
Is that a thing in the Court of Federal Claims?

[00:03:50] Speaker 00:
I'm sorry?

[00:03:50] Speaker 04:
Do they do certified class actions?

[00:03:54] Speaker 00:
Yes.

[00:03:54] Speaker 04:
And there has not been a certified class, right?

[00:03:56] Speaker 00:
The class is not a certified class.

[00:03:57] Speaker 04:
So I'm just right now interested in Mr. Lambert.

[00:03:59] Speaker 04:
And maybe you just can't tell me whether the entire period at issue here, the relationship was, that is, everything January 28th, 2018 forward, whether the contract between the agency was and whether it was with Mr. Lambrough or whether it was with a company, namely an LLC.

[00:04:24] Speaker 00:
I don't know the answer to that question.

[00:04:26] Speaker 00:
I don't know.

[00:04:28] Speaker 00:
We never got that far in the pleading.

[00:04:30] Speaker 00:
So it was just a function of Mr. Lambrow started his relationship with the government almost 20 years ago.

[00:04:36] Speaker 00:
Um, and he did it to show us an individual.

[00:04:39] Speaker 00:
Um, we, we know that the facts will demonstrate that Mr. Lambrow went in and interviewed with a hiring person based on a, a introduction by his father.

[00:04:50] Speaker 00:
I mean, again, this was not him responding to a BPA or anything of that nature.

[00:04:55] Speaker 04:
And do you claim, I don't think you quite argue that he actually did have a personal services contract under FAR 37.104.

[00:05:10] Speaker 00:
That did not happen.

[00:05:12] Speaker 00:
Voice of America did not bring the personal services contract to bear until after this claim was filed in January of 2021.

[00:05:21] Speaker 00:
It was in just the four just now.

[00:05:23] Speaker 04:
You're not asserting he actually had such a contract.

[00:05:27] Speaker 00:
No, no, he did.

[00:05:28] Speaker 04:
So you're accepting for now that

[00:05:32] Speaker 04:
Putting aside the FLSA, that there was no congressionally authorized creation of an employment relationship between the agency and Mr. Lambert.

[00:05:49] Speaker 00:
I don't know that we're at the place where we can see that point.

[00:05:52] Speaker 04:
I think the government identified anything outside the FLSA that created that relationship.

[00:06:00] Speaker 00:
We don't agree with the government that the word appointment in Title V

[00:06:11] Speaker 00:
is as precisely defined as they are.

[00:06:14] Speaker 00:
It's in the definition section of Title V. A federal employee is defined as someone who has been appointed.

[00:06:20] Speaker 04:
I just want to get the terms of the question that we're dealing with here.

[00:06:26] Speaker 04:
It's absolutely plain by virtue of FAR 37.104 that you don't need to have an appointment.

[00:06:33] Speaker 04:
That's right.

[00:06:33] Speaker 04:
You need some congressional authorization to create

[00:06:37] Speaker 04:
a employment relationship with an agency.

[00:06:41] Speaker 04:
Right?

[00:06:42] Speaker 00:
Yes, well, arguably... An employment relationship.

[00:06:45] Speaker 04:
And I think your argument is FLSA does it on its own.

[00:06:50] Speaker 00:
It does.

[00:06:50] Speaker 00:
That is our argument.

[00:06:52] Speaker 00:
We argue, and we think that the government's, the implications of the government's arguments go far beyond what they've briefed in their documents, and far beyond, I mean,

[00:07:01] Speaker 00:
The implications shall pass.

[00:07:03] Speaker 00:
I mean, the government's argument in its response brief is that.

[00:07:06] Speaker 04:
I'm sorry to interrupt.

[00:07:08] Speaker 04:
Implications don't come first.

[00:07:11] Speaker 04:
Statutory, textual, disciplined legal arguments come first.

[00:07:17] Speaker 04:
So start with the text and explain how you get to the conclusion that you want to get to.

[00:07:24] Speaker 04:
And then you can say, and the consequences of doing otherwise would be terrible.

[00:07:28] Speaker 04:
And they're going to say the opposite on their side.

[00:07:30] Speaker 00:
No, no.

[00:07:30] Speaker 00:
Clearly.

[00:07:31] Speaker 00:
So the FLSA, as we started, the presumption is the FLSA defines employee.

[00:07:35] Speaker 00:
And it defines employee as those who do work.

[00:07:38] Speaker 00:
And it captures, in that group, those who work for the federal government.

[00:07:44] Speaker 00:
Now, the government's position is like, well, wait, wait.

[00:07:46] Speaker 00:
There's this carve-out.

[00:07:48] Speaker 00:
There's this requirement.

[00:07:49] Speaker 00:
And understand, and the court already knows, the economic realities test that we're here arguing about appears in a statute, doesn't appear in any statutes.

[00:07:57] Speaker 00:
It is a common-law-created doctrine

[00:08:00] Speaker 00:
to combat the defense of weight.

[00:08:03] Speaker 00:
FLSA protections, just like here, FLSA protections don't apply.

[00:08:07] Speaker 00:
We never hired them.

[00:08:10] Speaker 00:
We never made them our employees.

[00:08:12] Speaker 00:
That's what commercial companies have been doing for time immemorial, right?

[00:08:16] Speaker 00:
And this is the first time that a misclassification case that anyone's been able to find that has been brought against the government and said, hey, you've deprived these employees, what we argue are computer employees,

[00:08:27] Speaker 00:
of the common protections of overtime protection, all kinds of things.

[00:08:32] Speaker 00:
They can't collectively bargain.

[00:08:34] Speaker 01:
All of the benefits that would be... It would be helpful though to take the good suggestion of Judge Taranto and to the extent you have it there, pull out the actual language and talk from there as opposed to talking more in generality.

[00:08:47] Speaker 00:
No, I appreciate that.

[00:08:48] Speaker 00:
Thank you.

[00:08:49] Speaker 03:
I mean, your argument is that the FLSA provides its own specific definition for the context of FLSA.

[00:08:58] Speaker 00:
That's right.

[00:08:58] Speaker 03:
And that definition of anybody that is employed by the federal government or anybody that's employed by an employer

[00:09:08] Speaker 03:
brought more broadly has to be an individual that has suffered or permitted to work by an employer, whether that employer is a federal employer or a non-federal employer.

[00:09:19] Speaker 03:
Is that your argument?

[00:09:20] Speaker 00:
That is precisely our argument.

[00:09:22] Speaker 03:
So Section 203 G is the key provision in the FLSA that defines what it means to be employed, to suffer or commit work.

[00:09:31] Speaker 00:
That is correct.

[00:09:32] Speaker 03:
And the Supreme Court and other courts took that provision and understood it to be, let's go with something called an economic realities test.

[00:09:44] Speaker 03:
That's what suffer permit work is really about.

[00:09:47] Speaker 03:
It's about trying to figure out what is the economic reality between this individual and that employer.

[00:09:53] Speaker 00:
That is correct, Your Honor.

[00:09:56] Speaker 00:
This is, and this is brought not just in FLSA context.

[00:09:59] Speaker 00:
As we briefed, it's also brought in Title VII claims, it's brought in Rehabilitation Act claims.

[00:10:03] Speaker 03:
When I am a... Those statutes don't have this particular definition for being employed, right?

[00:10:10] Speaker 00:
Most of them point to the FLSA for the definition of an employee.

[00:10:15] Speaker 00:
Title VII points to FLSA, Rehabilitation Act points to FLSA.

[00:10:21] Speaker 00:
The only thing that doesn't point specifically to FLSA

[00:10:24] Speaker 00:
is the government's argument, is Title V. Title V does not point specifically to FLSA.

[00:10:30] Speaker 00:
Title V says an employee of the federal government is somebody who's been appointed.

[00:10:33] Speaker 04:
Where does Title VII point to the FLSA?

[00:10:38] Speaker 00:
I'm sorry.

[00:10:39] Speaker 00:
I don't have that reference handy.

[00:10:40] Speaker 00:
I know that the courts that have ruled in favor of punitive employees in Title VII cases have ruled that.

[00:10:50] Speaker 00:
And those cases are encapsulated in our brief.

[00:10:52] Speaker 00:
The case that I'm into right now,

[00:10:55] Speaker 00:
in a matter of a little time.

[00:10:56] Speaker 00:
But the argument is, precisely as Judge Shane put it, argument is that the FLSA defines employees very broadly as it relates to those who are afforded the protections of the Fair Labor Standards Act.

[00:11:07] Speaker 00:
And it says anybody who worked or permitted to work, suffered to work, and so forth, by anybody, including the federal government.

[00:11:14] Speaker 04:
So why one, why, and that suffer to work,

[00:11:19] Speaker 04:
provision is what item number three in the OPM regulation with OPM having been delegated authority to implement the FLSA as it applies to federal employees right right so why would not one read that in the federal employment context to mean to to rely on the general requirement of congressional authorization to create a

[00:11:48] Speaker 04:
a employment relationship with the federal government.

[00:11:52] Speaker 04:
So that suffering and permitting to work is not by itself sufficient without the congressional authorization coming from elsewhere.

[00:12:09] Speaker 04:
And I'm asking this because it does seem to me right now that that's what the government's argument comes down to.

[00:12:16] Speaker 00:
Well, I think Your Honor pointed out earlier that clearly under FAR Part 37, that's not required.

[00:12:22] Speaker 00:
FAR Part 37 allows for PSCs, for personal services.

[00:12:26] Speaker 04:
With congressional authorization.

[00:12:28] Speaker 04:
So of course that covers it.

[00:12:29] Speaker 00:
But congressional authorization, Your Honor, as you already know, it applies to everything, including procurement.

[00:12:34] Speaker 00:
I mean, you can't contract with an individual.

[00:12:36] Speaker 04:
Congressional authorization to create an employment relationship, which is why I think there's a 37104B or something says,

[00:12:47] Speaker 04:
One of the subsections of the FAR provision says you may enter into these contracts only to the extent there's a express or special or specific or something congressional authorization.

[00:12:58] Speaker 00:
And they're also, by the way, your honor, to your point.

[00:12:59] Speaker 04:
And basically the rest of how you get to be a federal employee is through various forms of appointment.

[00:13:08] Speaker 04:
The big one in 2105.

[00:13:10] Speaker 00:
Right.

[00:13:11] Speaker 00:
But what we're arguing here, Your Honor, is that the government sidestepped all of the rules.

[00:13:15] Speaker 00:
They sidestepped the procurement rules because none of these positions were ever competed publicly the way they were supposed to under the FAR.

[00:13:21] Speaker 04:
I'm sorry, how does that affect the statutory analysis we're engaging in right now?

[00:13:26] Speaker 00:
The reason is because by depriving Mr. Lambrow and those like him of any employment relationship with anyone, he wasn't just deprived of an employment relationship with the government.

[00:13:37] Speaker 00:
He was deprived of an employment relationship with anyone.

[00:13:40] Speaker 00:
Mr. Lambrou couldn't go to work and talk to a fellow audio tech about how much money that audio tech

[00:13:46] Speaker 00:
made without running a foul of anti-collusion provisions.

[00:13:50] Speaker 00:
Mr. Lambrow couldn't quit his job without triggering a termination for default and excess procurement problems.

[00:14:01] Speaker 04:
It's not just that he didn't have a... I'm actually quite confused what point you're making here.

[00:14:09] Speaker 04:
addresses the statutory question.

[00:14:11] Speaker 04:
Part of me is hearing you saying, you're giving extra reasons why he plainly was not a federal employee.

[00:14:18] Speaker 00:
I'm giving reasons why withholding the appointment was illegal.

[00:14:23] Speaker 00:
They withheld an appointment in order to sidestep the requirements of the FLSA and all of the other trappings of employment that would have been benefited.

[00:14:33] Speaker 00:
Had the government instead gone out and put this procurement to two or three government contractors,

[00:14:39] Speaker 00:
and allowed all 750 punitive employees.

[00:14:42] Speaker 04:
Is it your position that if somebody qualifies under, to use Judge Chen's shorthand, the economic realities test that implements the suffer and permit or permit provision, that that person is a federal employee, not only for FLSA purposes, but for other purposes?

[00:15:04] Speaker 00:
Yes.

[00:15:05] Speaker 00:
Without qualification.

[00:15:07] Speaker 00:
Oh.

[00:15:07] Speaker 00:
Yes, Your Honor.

[00:15:09] Speaker 00:
That is the only because, again, according to the government's own arguments that Mr. Lambert should enjoy Title VII protections, but not FLSA protections.

[00:15:17] Speaker 00:
He would enjoy Rehabilitation Act protections, but not NRLA protections.

[00:15:23] Speaker 00:
It would be preposterous to assume that Mr. Lambert would enjoy

[00:15:28] Speaker 00:
Half of the suite.

[00:15:29] Speaker 03:
The definition of employee or federal employee in the FLSA applies in every other context outside of the FLSA?

[00:15:38] Speaker 00:
That's your argument?

[00:15:40] Speaker 00:
Our argument is that in every place in which employee is not defined or points to the FLSA, then the governing provision of protections for what is an employee would fall under the FLSA.

[00:15:57] Speaker 01:
I thought you agreed with Judge Chen earlier, and I thought you really said, because we're talking about the FLSA context, we should look at the FLSA for what employee means.

[00:16:08] Speaker 01:
Now you're making, I think, a different argument.

[00:16:10] Speaker 00:
I'm saying that there are statutes.

[00:16:11] Speaker 03:
You're making an argument I don't think you need to make for purposes of this narrow appeal about what does this particular, is this person potentially eligible for FLSA benefits?

[00:16:23] Speaker 00:
So what I'm doing is I'm trying to point to the lower court's decision, which is,

[00:16:27] Speaker 00:
Point, period.

[00:16:28] Speaker 00:
The court's position was categorical.

[00:16:32] Speaker 00:
Its opinion was categorical.

[00:16:34] Speaker 00:
Appointment is necessary for employment, period.

[00:16:37] Speaker 00:
What I would argue is that saying that, if this court affirms a lower court's ruling, and appointment is necessary for employment, then Mr. Lambrow and no one like him would enjoy any of the benefits of employment.

[00:16:55] Speaker 00:
including Title VII protections, NRLA protections, the Rehabilitation Act protections.

[00:16:59] Speaker 00:
It has far more reaching implications than just the FLSA, but certainly as it relates to the protections afforded by the FLSA.

[00:17:08] Speaker 00:
The FLSA says suffer the work and you're afforded these minimum wage protections.

[00:17:13] Speaker 00:
And the government's position is no, it doesn't apply to federal employees unless there is an appointment.

[00:17:20] Speaker 00:
Does that add any clarity at all?

[00:17:23] Speaker 00:
The argument is that the FLSA, for the purposes of the FLSA, defines employee.

[00:17:29] Speaker 04:
Can I ask you this?

[00:17:32] Speaker 04:
In looking at the various cases that have been cited, Title VII, the Medical Leave Act case, 501 of the Rehab Act, it wasn't clear to me that, except for the DC Circuit decision in Spirides,

[00:17:53] Speaker 04:
please put that to one side, which is Title VII case, that there's any case in which the employee one ended up being dubbed, yes, you are an employee for these purposes, or a case in which the government said, you need to have a Title V or FAR or some

[00:18:20] Speaker 04:
Authorization congressional authorization to create the employment relationship and economic realities Common law agency is not the right test so when in those cases the court was going through these multi-factor kinds of things it didn't actually have an argument going the other way and it

[00:18:45] Speaker 04:
repeatedly ruled for the defendant.

[00:18:49] Speaker 04:
So I'm trying to see how much of a judicial landscape is out there that says, oh, in other places, the government's argument here has been rejected.

[00:19:00] Speaker 04:
Except for Spirides, I'm just not sure that's true.

[00:19:04] Speaker 04:
That's what I'd like help on.

[00:19:05] Speaker 00:
So one, you're right, Your Honor.

[00:19:07] Speaker 00:
This is the first time in what we've been able to find.

[00:19:12] Speaker 00:
In Spirides, it was a Title VII case.

[00:19:15] Speaker 00:
In the federal marshals cases out on the West Coast and the Ninth Circuit, it was presumed that those people did not work directly for the federal government.

[00:19:22] Speaker 00:
They were all under the Rehab Act and they were all working for another contractor in a growth or claim against government.

[00:19:26] Speaker 00:
And it was just assumed under the economic reality test, because again, the actual tort fees are in those instances.

[00:19:32] Speaker 00:
was a government employee.

[00:19:34] Speaker 00:
It was a government employee who did something wrong.

[00:19:36] Speaker 00:
Again, if Mr. Lambert goes into work tomorrow and somebody propositions him for sexual favors in order to get work, he would be bringing a sexual harassment claim and he would enjoy those benefits because the courtfeasor in that instance would be a government employee.

[00:19:51] Speaker 00:
But the case that they bring up Jackson, Jackson is a case where

[00:19:56] Speaker 00:
title five defines service members as not being federal employees.

[00:20:01] Speaker 00:
And the court goes in Jackson and says, and by the way, service members are not listed in the FLSA as employees.

[00:20:09] Speaker 00:
Government employees are service members.

[00:20:10] Speaker 04:
The first definition says civilian employees in the military department.

[00:20:15] Speaker 00:
So Jackson goes so far to say is, hey, we're not going to disturb

[00:20:20] Speaker 00:
this analysis of what is an employee and what isn't an employee, we're only saying that in this context, because Title V specifically defines military members as a corp out under Title V, not under FLSA.

[00:20:35] Speaker 00:
I mean, I think the court gets my point.

[00:20:38] Speaker 00:
Service members are not encapsulated in FLSA.

[00:20:41] Speaker 00:
We understand that the military can't be held to the bounds of keeping people from working overtime or paying overtime.

[00:20:46] Speaker 04:
But all these other cases, as I think you indicated, which is my impression from having read them, they just assume without deciding that the test is one of the softer tests that have multi-factors or maybe even common law agency, but not a test that they never say, we are considering an argument that says there needs to be formal

[00:21:15] Speaker 04:
congressional authorization outside the act that is allegedly violated.

[00:21:21] Speaker 00:
In the case we cite to in social security versus social administration.

[00:21:28] Speaker 00:
versus the board, and I'm blanking on it.

[00:21:30] Speaker 00:
That case was decided by the Court of Appeals with the District of Columbia.

[00:21:34] Speaker 00:
That case only turned on the award of interest.

[00:21:37] Speaker 04:
DC Circuit or the local court?

[00:21:38] Speaker 00:
DC Circuit.

[00:21:39] Speaker 00:
The DC Circuit Court of Appeals.

[00:21:40] Speaker 00:
That case turned only on, it was 7,500 period employees that we don't get all of the facts because it's sort of a lower case, and that's why we don't really unpack it a lot.

[00:21:50] Speaker 00:
That case only turned on, there was an arbitration award for 7,500

[00:21:56] Speaker 00:
So security employees and the issue decided by the U.S.

[00:22:01] Speaker 00:
just by the Court of Appeals for the District of Columbia was whether or not interest applied to attorney's fees.

[00:22:06] Speaker 00:
That was it.

[00:22:07] Speaker 00:
But the presumption in that case was that the economic reality is just applied because what I believe I know about that case is it was relative to 7,500 verbatim court reporters of the Social Security Administration who were misclassified.

[00:22:22] Speaker 00:
Again, it's not on the record.

[00:22:23] Speaker 00:
It's just all you can glean from the case is that the District Court or the Court of Appeals for the District of Columbia applied the Back Pay Act to all of the damages and the interest application, all the damages except for interest on attorney states, which was deemed imputed and not applicable to the government.

[00:22:42] Speaker 04:
And when you say, I think as you have, perhaps unnecessarily, I'm not quite sure, that our ruling here

[00:22:51] Speaker 04:
that Mr. Lambrow was an employee would make him an employee of the federal government for all purposes.

[00:23:00] Speaker 04:
So suddenly, he's got to start paying into the FERS system.

[00:23:04] Speaker 04:
He's got to have money withheld for, you know, tax money withheld.

[00:23:10] Speaker 04:
Maybe he's subject to the Federal Tort Claims Act, the whole hidden caboodle of everything that goes with being a federal employee.

[00:23:19] Speaker 00:
I think that the government

[00:23:21] Speaker 00:
by withholding appointment.

[00:23:23] Speaker 00:
We're not creating another mechanism for him.

[00:23:26] Speaker 00:
I think what we are stopping short of in saying this, and only this, the government misclassified Mr. Lambrough as an independent contractor and in so doing has damaged him in a multitude of different ways to include withholding.

[00:23:38] Speaker 03:
But that sounds like a different lawsuit.

[00:23:40] Speaker 03:
I mean, the lawsuit that you filed here was just about whether he's entitled to FLSA overtime pay.

[00:23:46] Speaker 00:
That's not accurate.

[00:23:47] Speaker 00:
If you look at the Second Amendment complaint, Your Honor,

[00:23:49] Speaker 00:
We actually talk about the host of benefits, including the ability to... Well, what's the nature of your appeal here?

[00:23:55] Speaker 00:
The nature of the appeal here is to overturn the lower court's order that appointment is necessary in order to get any of the benefits of federal employment, including what's... To get the benefits of the FLSA.

[00:24:09] Speaker 00:
Again, that's all that's encapsulated in the lower court's complaint.

[00:24:13] Speaker 00:
Again, it wasn't dismissed for inadequacy.

[00:24:16] Speaker 00:
It wasn't a technical for one futility.

[00:24:19] Speaker 00:
It was simply dismissed on 12b6 on the basis that appointment is necessary in order to be afforded any of the rights of an employee.

[00:24:30] Speaker 00:
The court made a very sweeping announcement in its opinion.

[00:24:33] Speaker 00:
that the FLSA did not apply to Mr. Lambert because he was not an appointed employee of the government.

[00:24:40] Speaker 04:
And I don't remember at this point.

[00:24:41] Speaker 04:
Did the Court of Federal Claims address the FAR provision 3710?

[00:24:49] Speaker 00:
I don't think it did, really, more than dicta.

[00:24:53] Speaker 00:
It didn't actually issue an opinion relative to.

[00:24:56] Speaker 04:
Right, because you didn't claim that you were actually an employee under that provision.

[00:25:01] Speaker 04:
Just that you sure should have been.

[00:25:03] Speaker 00:
Yeah, there was no, there is no tangible personal services contract on a four-part 37 that ever existed between Mr. Lambrow and Voice of America until, you know, again, I think it was shortly before, shortly after this suit was filed.

[00:25:19] Speaker 04:
We will restore your rebuttal time and we'll hear from Mr. Carhartt now.

[00:25:57] Speaker 02:
May it please the court.

[00:26:00] Speaker 02:
The trial court correctly dismissed Mr. Lambrose's complaint because he did not plausibly allege that he was an employee under the FLSA.

[00:26:06] Speaker 02:
Its decision should be affirmed.

[00:26:08] Speaker 02:
I think Judge, I'll start with Judge Toronto's question to Mr. Whitcomb about the government's position, which I think Judge Toronto articulated correctly.

[00:26:18] Speaker 02:
So our position is that there has to be some source of specific congressional authority creating an employment relationship.

[00:26:27] Speaker 02:
And what we've argued is that the FLSA is not that.

[00:26:31] Speaker 02:
What the FLSA is doing, as applied to federal employees, is to extend the benefits of the FLSA to those individuals who are already, those eligible individuals who are already employees under federal law.

[00:26:44] Speaker 04:
And just to be clear,

[00:26:48] Speaker 04:
it would be incorrect to say appointment is always required to be a federal employee, but rather, and we know that because FAR, the FAR provision provides a non-appointment way of creating the employment relationship.

[00:27:05] Speaker 04:
So what's needed is congressional authorization to create that relationship.

[00:27:09] Speaker 04:
You agree with that, right?

[00:27:10] Speaker 02:
Yes.

[00:27:11] Speaker 04:
And then the big question is, why doesn't the FLSA and 203G do that?

[00:27:16] Speaker 02:
Right.

[00:27:16] Speaker 02:
So to be precise,

[00:27:18] Speaker 02:
Employment can mean different things in different contexts.

[00:27:20] Speaker 02:
So being a personal services contractor, contrary to Mr. Whitcomb's arguments, doesn't necessarily mean you get all of the benefits of federal employment.

[00:27:28] Speaker 02:
It entitles you to certain benefits though, and it's undisputed that once Mr. Lambrow became a personal services contractor at the agency, he did receive pay under the FLSA.

[00:27:39] Speaker 02:
So that's not an issue of dispute between the parties.

[00:27:43] Speaker 04:
Do you happen to know the answer to my opening question about when the contract shifted from Lambrow personally to Wayne Industries or something?

[00:27:52] Speaker 02:
If my recollection is correct, I looked into this a long time ago, I think there's a little bit of a gap between the statute of limitations dismissal and when the contract came into effect.

[00:28:02] Speaker 02:
In any event, though, it's not in the record such the court can decide that.

[00:28:08] Speaker 02:
So to jump to the major question of why the 1974 amendments to the FLSA don't create an employment relationship,

[00:28:18] Speaker 03:
So essentially, first...

[00:28:35] Speaker 03:
Wouldn't the most logical reading be that the definition for what it means to be employed by the government is essentially the same as the definition for what it means to be employed by a other employer, a non-federal employer?

[00:28:50] Speaker 03:
Given that it would appear that the definition provided in 203G, employees including to suffer or permit work.

[00:28:58] Speaker 03:
Would would apply equally to in for both non federal employers and federal employers the language the symmetry of the language is the same Any individual employed by an employer any individual employed by the government?

[00:29:14] Speaker 02:
Well, and that goes on though to as a civilian in the military

[00:29:17] Speaker 02:
military departments as defined in section 102.

[00:29:19] Speaker 03:
I don't see those phrases actually being decisive to the broader question of why doesn't this definition under 203G apply equally to both employers and then the government.

[00:29:31] Speaker 02:
So first, Congress could have just conflated the definition of private sector and federal employees.

[00:29:38] Speaker 02:
So it didn't need to break out public employee as it did.

[00:29:42] Speaker 04:
I'm sorry.

[00:29:43] Speaker 04:
It needed to say which components of the federal government

[00:29:47] Speaker 04:
were going to be relevant, covered federal employers.

[00:29:52] Speaker 04:
And also, the one other thing it did was to put the civilian thing expressly.

[00:29:56] Speaker 04:
But all the rest is just who the employer is.

[00:29:59] Speaker 02:
So we could have done that by amending the definition of employer, which is one of the things that the FLSA did.

[00:30:04] Speaker 02:
One of the things the 1974 amendments did

[00:30:08] Speaker 02:
Originally, the United States was carved out from the definition of employer.

[00:30:13] Speaker 02:
And then the 1974 amendments removes that carve out.

[00:30:17] Speaker 02:
To the extent it wanted to carry out the removal of the carve out, it could have done that in the definition of employer.

[00:30:26] Speaker 02:
So that's one point.

[00:30:29] Speaker 03:
I'm still not sure why I should block my view of 203G when I'm trying to interpret what does it mean to be any individual employed by the government.

[00:30:39] Speaker 02:
So obviously, a big part of our argument is the backdrop of existing law.

[00:30:42] Speaker 02:
I think, Your Honor, Judge Chen, you're asking about just the text.

[00:30:45] Speaker 03:
Yeah.

[00:30:46] Speaker 02:
And I understand that.

[00:30:47] Speaker 02:
I think that the reference to Title V is the other part of the argument that's distinctive textually.

[00:30:52] Speaker 02:
The D.C.

[00:30:52] Speaker 02:
Circuit in Jackson v. Modley did look at similar text from Title VII and found it

[00:31:00] Speaker 02:
significant that Congress was directing the readers to Title V?

[00:31:06] Speaker 03:
That's what bothers me, though, in the FLSA amendment, is that the references to Title V were extremely limited to just the definitions for executive agency and military departments.

[00:31:18] Speaker 03:
Obviously, Congress could have gone further and said, and by the way, also how employees defined in Title V, but it did not do that.

[00:31:26] Speaker 03:
It only limited references to Title V just to these two small items, the definitions of what is an executive department, what is a military department and an executive agency.

[00:31:37] Speaker 02:
That's right, Judge Chen.

[00:31:38] Speaker 02:
If it actually referred to the definition of employee, I don't think we would be here today.

[00:31:42] Speaker 03:
But I guess my concern is that the inference goes the other way.

[00:31:46] Speaker 03:
They knew full well about Title V. We have to assume they understood the Supreme Court found that

[00:31:55] Speaker 03:
that what kinds of employees that were covered by FLSA was truly expansive.

[00:32:01] Speaker 03:
They said that it's difficult to imagine a more broad definition of what an employee can be other than the one provided in the FLSA.

[00:32:11] Speaker 03:
And yet, for whatever reason, Congress elected to limit its references to Title V to just the definitions of military department executive agency.

[00:32:22] Speaker 02:
So that does not distinguish this from the Jackson v. Motley case, though, which was considering very similar limited references to Title V in the context of Title VII, and thought that that was, that the fact, the direction, the direction to Title V in Title VII was enough for

[00:32:43] Speaker 02:
the DC circuit to go beyond the actual definitions themselves and look at the broader context of Title V and even look at the definition of Title V.

[00:32:55] Speaker 02:
in Title V's definition of employee, even though Title VII did not refer to that.

[00:33:01] Speaker 02:
So textually, those would be the hooks that we would rely on.

[00:33:09] Speaker 01:
Do you have any binding precedent that requires appointment for individuals to be considered federal employees under the FLSA?

[00:33:15] Speaker 01:
I just want to level set on that.

[00:33:17] Speaker 02:
So judge honey my question is is there that requires appointment to be considered so I think there's no I think the I would note though that sometimes courts use appointment

[00:33:30] Speaker 02:
as a shorthand for meaning something broader about congressional authorization.

[00:33:35] Speaker 02:
So Testen has, in the Supreme Court, even used appointment as a shorthand.

[00:33:40] Speaker 02:
So the trial court did talk about appointment, but it also cited this court's language to the effect that absence specific authorization.

[00:33:47] Speaker 02:
I understand that's what the trial court meant when it talked about appointment.

[00:33:51] Speaker 02:
But we're not arguing that appointment is a sine qua non for FLSA employment.

[00:33:58] Speaker 02:
We're arguing that appointment is the primary way that Congress creates employment relationships.

[00:34:05] Speaker 02:
There are other ways, but Congress has to do it.

[00:34:08] Speaker 03:
Other ways could be through specific legislation.

[00:34:10] Speaker 03:
Of course.

[00:34:11] Speaker 03:
And so it's possible that the FLSA is an example of that kind of specific legislation.

[00:34:16] Speaker 03:
Yes, absolutely.

[00:34:17] Speaker 03:
Your view, of course, is no.

[00:34:19] Speaker 03:
If they were going to do that, they needed to do it much more clearly than they did.

[00:34:23] Speaker 03:
Because aside from the textual arguments you just presented, do you think there's some bigger backdrop understanding of what it means to be a federal employee that just sort of is like this big foot imprint over anything and everything that's said here in the FLSA?

[00:34:40] Speaker 03:
Because the FLSA, in your view, just isn't clear enough.

[00:34:45] Speaker 02:
Essentially, that's right.

[00:34:46] Speaker 03:
And what's the principle that even if there is an apparently clear definition of what it means to be an employee, including a federal employee in a statute, it can still be big-footed and overwhelmed by this broader

[00:35:04] Speaker 03:
but a little bit vaguer understanding of what it means to be a federal employee.

[00:35:10] Speaker 02:
So we respectfully disagree that the definition of employee is clear.

[00:35:13] Speaker 02:
We think that you have to look at the concept of federal employment

[00:35:20] Speaker 02:
which Congress was referring to here and Has a special it does have a special meaning it's always had a special meaning you see some indications in the legislative history of that In addition to all the cases that preceded and post dated this case so our argument is I guess those understandings of being a federal employee or somehow more special and more important than

[00:35:45] Speaker 03:
You know, more common law understandings of what it means to be an employee, which the Supreme Court has repeatedly said are discarded and put to the side in the FLSA because the FLSA went out of its way to create a very special, aggressively broad definition for purposes of the FLSA.

[00:36:02] Speaker 02:
It did in the 1938 amendments.

[00:36:05] Speaker 02:
And then in the 1974 amendments, Congress creates a different definition for federal employees.

[00:36:13] Speaker 02:
It doesn't use the general definition of employee.

[00:36:17] Speaker 02:
And in our view, that's a hint as to- Should I say that again?

[00:36:20] Speaker 02:
So instead of using the definition of employee in E1,

[00:36:27] Speaker 02:
which is any individual employed by an employer, it uses the definition for federal employees in E2A.

[00:36:34] Speaker 02:
So it says any individual employed by the government of the United States as a civilian in the military departments in any executive agency.

[00:36:42] Speaker 04:
But then the critical word there is employed, which then gets a definition several subsections down in G.

[00:36:50] Speaker 02:
Well, I would say the whole phrase is significant.

[00:36:53] Speaker 02:
The fact that this definition was carved out of the general definition of employee

[00:36:58] Speaker 02:
Congress would have understood that there's something special about being an employee of the United States.

[00:37:04] Speaker 03:
But what's scary is you're asking us to read the term employed by in E1 differently from employed by in E2.

[00:37:15] Speaker 02:
I think it does mean something different in the federal government context.

[00:37:19] Speaker 02:
To be employed by the federal government is different.

[00:37:21] Speaker 02:
It requires certain formalities.

[00:37:23] Speaker 03:
There's a definition for employee right here in the FLSA.

[00:37:28] Speaker 03:
You can see what my problem is.

[00:37:30] Speaker 03:
I keep going over it, and maybe I'm a little dense.

[00:37:33] Speaker 03:
But we have a definition for employee here in the statute.

[00:37:38] Speaker 03:
You're asking me to look away from it for purposes of E2, even though it's structured symmetrically to the language in E1.

[00:37:48] Speaker 02:
So it doesn't stop.

[00:37:50] Speaker 02:
First of all, the definition doesn't stop there.

[00:37:52] Speaker 02:
So we're looking for indications of Congress's intent.

[00:37:55] Speaker 02:
The fact that it then goes on to talk about Title V, that's one indication that Congress had a specific.

[00:38:01] Speaker 01:
The definition doesn't stop there.

[00:38:03] Speaker 01:
I'm sorry.

[00:38:03] Speaker 02:
I might have missed something you were just saying.

[00:38:08] Speaker 02:
So Section 203E2A does not stop with employed by.

[00:38:14] Speaker 02:
So it goes on to say, any individual employed by the government of the United States as a civilian in the military departments as defined in section 102 of Title V. And again, that language, very similar language, was enough for the DC Circuit to think that Congress was directing the reader to Title V as a whole and incorporating concepts from Title V into its definitions in Title VII.

[00:38:39] Speaker 04:
Jackson had less to do

[00:38:44] Speaker 04:
Than I think you need to do that is the reference there It didn't have obviously didn't have the word civilian and never the case wouldn't have arisen.

[00:38:52] Speaker 04:
It just said employee Employees are applicants for employment in military departments as defined in title five 102 and the

[00:39:06] Speaker 04:
of circuits said, well, look at what it means to be a military department under Title V, and you look at the title of the 1966 recodification of all of Title V, and it says civilian employees,

[00:39:23] Speaker 04:
And then you look at other parts, and you get civilian, not other things.

[00:39:30] Speaker 04:
But then it carefully said, it didn't have anything like 203G to be overriding.

[00:39:41] Speaker 04:
And that's the problem here, that on the expression employed by, we actually have a FLSA definition.

[00:39:49] Speaker 04:
And this language is,

[00:39:52] Speaker 04:
Not easy to read as doing on anything other than two things one saying who this Subunit is within the federal government and for the military one saying civilian, but the rest it's not changing what it means to be employed so there was a there was another complexity in Jackson to which was a

[00:40:13] Speaker 02:
There's a definition of employee that doesn't distinguish between federal sector workers and private sector workers.

[00:40:19] Speaker 02:
So that made the case somewhat harder.

[00:40:22] Speaker 02:
But I take your point.

[00:40:24] Speaker 02:
It's a different statutory scheme.

[00:40:27] Speaker 04:
But you're also right that the DC Circuit said there's this reference to Title V. And so we're going to look a little bit broadly in Title V for an answer to the question.

[00:40:37] Speaker 04:
And I think that's what I take it that's your argument here, too.

[00:40:41] Speaker 04:
Second reference to title five the 105 Reference also says kind of look at title five even though.

[00:40:49] Speaker 04:
It's not You would agree not in fact restricted to being a title five employee.

[00:40:55] Speaker 04:
It's not yes.

[00:40:56] Speaker 04:
It's not restricted to be a title five employee That's what makes this

[00:41:00] Speaker 02:
But it's alluding to concepts of federal employment law, distinctive to federal employment law, which leads us to think that that's what Congress had on its mind.

[00:41:13] Speaker 02:
When you combine that with all the cases that say,

[00:41:18] Speaker 02:
You have to be appointed to a position to get the benefits of that position.

[00:41:22] Speaker 02:
And you have to, in the absence of some specific statutory authority.

[00:41:29] Speaker 02:
So what, under Mr. Lambrose's reading, what the FLSA is doing is creating a really significant expansion of what it means to be a federal employee for pay purposes.

[00:41:40] Speaker 01:
Do you intend that we need to consider any sort of legislative intent to move forward?

[00:41:44] Speaker 02:
So I don't think the idea that the backdrop of existing law, Congress legislates against the backdrop of existing law, I take that to be a canon related to the language.

[00:41:55] Speaker 02:
We assume that Congress means, when it says something that has an established meaning, it means that.

[00:42:01] Speaker 02:
So I think you can consider that without looking at Congress's intent.

[00:42:05] Speaker 02:
We do cite some legislative history, which I think supports our view, that there's a baseline assumption that these employees were, these are federal employees already.

[00:42:13] Speaker 04:
But I don't- Can you remind me what that is?

[00:42:16] Speaker 02:
So there was a complaint from-

[00:42:21] Speaker 02:
there was an argument from the Civil Service Commission that if we add federal employees to the FLSA, it'll confuse- This is reflected in the big House report in 74.

[00:42:30] Speaker 02:
Yes, that's right.

[00:42:31] Speaker 02:
And the Civil Service Commission said this could confuse the administration of the law because these are federal employees.

[00:42:38] Speaker 04:
But I thought that the committee's response was to say, well, we're going to give, I guess, OPM, what's OPM now, the Civil Service Commission.

[00:42:46] Speaker 04:
You don't have to follow the Department of Labor blindly.

[00:42:50] Speaker 02:
Exercise some discretion about this and the regulation that exercises that discretion just repeats this to a 3g phrase, right so that so right, that's generally right, but the the back the the the basis for the premise for what the committee's response was was that

[00:43:07] Speaker 02:
These individuals are already covered by Title V. But, along the lines of what Your Honor just said, you can resolve that consistent with DOL regulations.

[00:43:19] Speaker 02:
Did you have a particular quote?

[00:43:21] Speaker 04:
I mean, at least when I was looking at that report, I was looking for something that said, whatever one would make of it, said something like specificity

[00:43:31] Speaker 04:
Who qualifies as a federal employee being covered is determined by other provisions outside this act that we are enacting.

[00:43:45] Speaker 04:
Something where the House committee said, and I didn't find it, when we are extending the FLSA protections to federal employees, who qualifies as a federal employee is defined elsewhere.

[00:44:02] Speaker 02:
So there's nothing beyond what's in our brief.

[00:44:04] Speaker 04:
And by elsewhere, I mean outside the FLSA, not outside the 1974 amends.

[00:44:09] Speaker 02:
Right.

[00:44:09] Speaker 02:
There's nothing outside of what we quoted in our brief that I can point the court to.

[00:44:13] Speaker 03:
Is it the government's view that if someone enters into a personal services contract with the government under FAR Part 37, they're covered by the FLSA?

[00:44:25] Speaker 02:
So it's undisputed that that did happen to Mr. Lambrow here.

[00:44:29] Speaker 03:
So I guess for someone like Mr. Lambrow, at least before he had, I guess, a contract with the Voice of America, it wasn't a personal services contract.

[00:44:42] Speaker 03:
and he wasn't appointed, I'm just wondering how many other people are like that inside the federal government.

[00:44:50] Speaker 03:
I'm just wondering what's the scale of consequences if we were to conclude here, no, FLSA doesn't require an appointment for someone to be considered and to be employed by the government in an executive agency as that term is used in the FLSA.

[00:45:09] Speaker 02:
So if I think you're just when you're talking about non personal services contractors like Mr.. Mr.. Lambrow I haven't seen any data on that.

[00:45:17] Speaker 02:
I know there are you know several hundred in his sort of position

[00:45:24] Speaker 02:
at the time covered by the complaint they're much fewer now but there were several, there were hundreds but this case has arisen in other, this type of case has arisen in other contexts.

[00:45:34] Speaker 02:
The Court of Federal Claims, there's a postal contractor who sued in Diaz, there was a Navy child care worker, excuse me, in Tetzlaff.

[00:45:44] Speaker 02:
So there are other contexts in which it arises.

[00:45:45] Speaker 02:
I just haven't seen any data that shows how widespread it is.

[00:45:48] Speaker 03:
As far as you understand it's not uncommon and it's

[00:45:53] Speaker 02:
It's as far as I understand it's not uncommon and it's legal.

[00:45:58] Speaker 02:
To have a relationship like this.

[00:46:03] Speaker 02:
The relationship Mr. Lambrow had.

[00:46:05] Speaker 02:
Just based on those cases.

[00:46:06] Speaker 02:
Again, I haven't seen any data beyond the cases.

[00:46:09] Speaker 02:
I would note though that these amendments were enacted in 1974.

[00:46:12] Speaker 02:
This is coming to light pretty late.

[00:46:16] Speaker 02:
There's a lot of practice, including this court's decision in Guevara.

[00:46:20] Speaker 02:
that has rejected these types of arguments and there haven't been many claims that have really, that Mr. Whitcomb has pointed to that suggest that there were widespread misunderstandings about this.

[00:46:36] Speaker 02:
So at some point the practice of the government comes into play as well.

[00:46:41] Speaker 02:
And this is ultimately

[00:46:45] Speaker 02:
question whether Congress waived its sovereign immunity.

[00:46:48] Speaker 02:
So our view would be Congress doesn't do that lightly.

[00:46:51] Speaker 02:
And you would expect, given how longstanding the traditions at issue are here, that Congress would have done so much more explicitly than it did.

[00:47:02] Speaker 02:
A, and B, that there be some post-1974 developments that would suggest that people understood Congress to be doing what Mr. Lambrough suggests.

[00:47:15] Speaker 02:
that the agency here hired

[00:47:18] Speaker 02:
Mr. You know the agencies are allowed to hire non-personal services contractors pursuant to their general contracting authority.

[00:47:26] Speaker 02:
So there is a potential that a lot of agencies, if Mr. Lambert was correct, a lot of agencies were using that authority accruing liabilities that they didn't really have reason to understand in our view were accruing as to the FLSA.

[00:47:42] Speaker 02:
So that would be a concerning implication of Mr. Lambert's argument.

[00:47:48] Speaker 04:
Can you address what, I guess, it's a question that I discussed a little bit with Mr. Whitcomb.

[00:48:01] Speaker 04:
These various other cases, the FMLA cases, Title VII, again, putting aside spirities, the 501 Rehab Act, I forget what there is, one other statute in play.

[00:48:16] Speaker 04:
I didn't see the government making this argument in those cases.

[00:48:23] Speaker 04:
And I wonder what to make of that.

[00:48:27] Speaker 04:
And in the FMLA case and in the DDC, government seemed to actually be making something of an opposite argument about a period of time for the relevant

[00:48:41] Speaker 04:
Fmla provision where he was clearly an independent contractor saying well he was really an employee so it should count so it makes me wonder how dramatic the consequences would be of Saying we just think 203g applies so

[00:48:59] Speaker 02:
At the starting point, I would say not all statutes are the same.

[00:49:04] Speaker 02:
And there might be reasons to argue different statutes differently.

[00:49:08] Speaker 02:
So the Rehab Act, I think, uses the ADA's definition.

[00:49:11] Speaker 02:
I don't think that distinguishes between federal employees and private sector employees.

[00:49:17] Speaker 02:
And the statutes have different purposes.

[00:49:18] Speaker 02:
So the Supreme Court's explained.

[00:49:22] Speaker 02:
Employee means different things in different contexts.

[00:49:24] Speaker 02:
So there may be good reasons to not make arguments in particular cases.

[00:49:28] Speaker 04:
I guess my difficulty with that level of general argument is that I think the only way you could win this case is if you have a logical structure that says everybody knows what's necessary to become

[00:49:49] Speaker 04:
a federal employee, that is to create a employment relationship with the federal government.

[00:49:54] Speaker 04:
Basically appointment, there can be other congressional authorizations, but there is such a long history of formalities and whatnot.

[00:50:05] Speaker 04:
You need something really special to displace that.

[00:50:08] Speaker 04:
And I don't

[00:50:09] Speaker 04:
and the kind of argument you're making about how well discrimination is one thing and that doesn't seem to me to do it to just at that level unless there's something in those other statutes that says for purposes of FMLA or for purposes of Title VII an employee even of the federal government shall be such and such something

[00:50:32] Speaker 02:
So the legal principle we're relying on is specific to employee pay.

[00:50:37] Speaker 02:
So always the cases that we're talking about, the Federal Circuit cases, Testen, they're saying the benefits, without specific authorization, the benefits and emoluments of federal employment are reserved for appointees.

[00:50:49] Speaker 02:
So we're making a pay-specific argument.

[00:50:51] Speaker 02:
That's the tradition we're talking about here.

[00:50:53] Speaker 02:
There may be other traditions like anti-discrimination where the result is different.

[00:50:59] Speaker 02:
I would say in the FMLA case, that's importing a definition from the FLSA.

[00:51:04] Speaker 02:
I think the analysis there should be the same.

[00:51:06] Speaker 02:
I can't speak to why the government didn't pursue this argument there, but without having dug into the details, it seems like that would be a prima facie case where

[00:51:15] Speaker 02:
that would be available to the government.

[00:51:17] Speaker 03:
But again, all those strong traditions of appointment for federal employment, that's absent specific legislation.

[00:51:28] Speaker 02:
Sure, that's right.

[00:51:29] Speaker 02:
And our bottom line position is that the FLSA was not... it was specific legislation in terms of... Just about pay for federal employees.

[00:51:39] Speaker 02:
Just backing up for a second, I think there are two types of legislation.

[00:51:42] Speaker 02:
There's creating an employment relationship,

[00:51:45] Speaker 02:
There's legislation that creates an employment relationship.

[00:51:47] Speaker 02:
There's legislation that decides what the benefits of employment are.

[00:51:51] Speaker 02:
Our submission is that the FLSA falls into the latter category, not the former category.

[00:51:57] Speaker 02:
And if we're extending the employment relationship to a new area in federal law, then we are arguing you'd expect something much clearer from Congress indicating that.

[00:52:09] Speaker 04:
And what do you think the consequence for

[00:52:12] Speaker 04:
I think I got an answer from Mr. Holcomb that surprised me a little bit.

[00:52:19] Speaker 04:
That if Mr. Lambrow was a federal employee under the FLSA, I think he said he would be a federal employee for all purposes.

[00:52:34] Speaker 04:
I assume.

[00:52:35] Speaker 04:
What's your view about that?

[00:52:36] Speaker 02:
We disagree with that.

[00:52:38] Speaker 02:
He's only bringing FLSA claims.

[00:52:40] Speaker 02:
You can be employee under the FLSA without being an employee for other purposes.

[00:52:45] Speaker 04:
And the FLSA 203 starts something like within this section these things meet.

[00:52:49] Speaker 04:
So it has the equivalent of Title V's for purposes of Title V introductory language.

[00:52:55] Speaker 02:
Right.

[00:52:55] Speaker 02:
So by analogy.

[00:52:57] Speaker 04:
Which then suggests maybe the consequences here aren't so dramatic.

[00:53:01] Speaker 02:
I don't agree with that.

[00:53:02] Speaker 02:
I mean, the consequences of the FLSA has pretty severe financial penalties in terms of mandatory overtime violations that could apply to a class of individuals that's really hard to quantify.

[00:53:19] Speaker 02:
I'm not aware of any attempt to quantify how many individuals are out there that would fit into this bucket.

[00:53:26] Speaker 04:
And have you made, I don't remember, have you made an argument that

[00:53:31] Speaker 04:
the broad but multi-factor, somewhat imprecise FLSA standards for what it means to employ are problematic precisely because they're imprecise?

[00:53:48] Speaker 04:
that you're not going to know for any number of non-personal service contractors whether they meet the economic realities test or not.

[00:53:58] Speaker 04:
And that's very troublesome.

[00:54:00] Speaker 02:
I don't think we... We haven't argued that in this case.

[00:54:04] Speaker 02:
This court said that to some extent in the Seon Lee case, talked about the fuzziness and the sort of

[00:54:10] Speaker 02:
the difficulties it presents for plaintiffs who later come back and try to invalidate the contracts, we haven't really made an argument along those lines.

[00:54:18] Speaker 02:
We also aren't conceding that Mr. Lambert necessarily would prevail on this issue ultimately.

[00:54:22] Speaker 02:
Obviously, this is at the motion to dismiss stage.

[00:54:24] Speaker 04:
But it could be an issue about how much you're going to have to litigate and what decisions you're going to make in the face of uncertainty.

[00:54:31] Speaker 04:
That's right.

[00:54:31] Speaker 04:
But you haven't really presented an argument like that.

[00:54:34] Speaker 04:
That's right.

[00:54:34] Speaker 04:
Well, thank you very much.

[00:54:36] Speaker 04:
We should hear.

[00:54:43] Speaker 00:
Thank you for pleases court I wanted to go sort of in reverse chronological order from what mr. Hart was talking about which is Yeah, I think first I went back and rewrite our complaint just sort of refreshing my memory on this so our allegation is pretty

[00:55:11] Speaker 00:
Succinct and that is we even go as far as qualifying another complaint.

[00:55:15] Speaker 00:
We argue.

[00:55:16] Speaker 00:
He should have been an employee versus a contractor and that he was and that he was deprived of overtime Don't you have to be making the argument that he actually was an employee?

[00:55:29] Speaker 00:
Yes, that's what that's what that's we are He wasn't but he sure should have been okay, I think by the government's I think what we're trying to do in your right arm

[00:55:41] Speaker 00:
We're trying to answer the government's argument that, hey, he's not afforded FLSA protections because he wasn't an employee.

[00:55:47] Speaker 00:
And we're arguing that you don't get to sidestep the benefits of FLSA by simply withholding an appointment.

[00:55:55] Speaker 00:
Unilaterally withholding an appointment or unilaterally withholding things.

[00:55:59] Speaker 00:
I mean, that same document that the two of you were discussing about, the PSC, it pointed to the fact

[00:56:06] Speaker 00:
The agency had a limited number, a limited allocation of personal services contracts that it could dole out.

[00:56:12] Speaker 00:
It had already exceeded those.

[00:56:14] Speaker 00:
So it didn't really have the PSC mechanism at the time.

[00:56:20] Speaker 00:
It will argue, I think, intelligently that also at the time, there was a hiring freeze and a limit on the number of people it could have appointed.

[00:56:29] Speaker 00:
And I was anticipating an argument that said, hey, our hands were tied.

[00:56:31] Speaker 00:
We needed these people to do the work.

[00:56:33] Speaker 00:
We had no other choice.

[00:56:34] Speaker 00:
but to use the procurement route and create individual contracts with Mr. Lambrow and those like him.

[00:56:41] Speaker 00:
And we address that in both our complaint and in our argument here, which is that there was another mechanism.

[00:56:47] Speaker 00:
They simply could have competed this thing out on FedBizOpps or FBO and gotten more and more contractors.

[00:56:55] Speaker 04:
Every time you go down this line, my mind goes to, I don't know how that bears on the only question we have to decide.

[00:57:02] Speaker 04:
Was Mr. Lambrow

[00:57:04] Speaker 04:
an employee under 203G?

[00:57:07] Speaker 00:
Our position is absolutely.

[00:57:09] Speaker 00:
Absolutely he was an employee.

[00:57:10] Speaker 00:
What we're trying to get to, what we're trying to, what I'm trying to use to help to aid the court is to point to the... So maybe this has something to do with willfulness?

[00:57:19] Speaker 00:
That's right.

[00:57:19] Speaker 00:
The willfulness in the government's sort of question.

[00:57:21] Speaker 04:
The threshold question doesn't have anything to do with, does it, with whether, the very threshold question, namely does he

[00:57:31] Speaker 04:
Do we even reach the question of qualification under 203G?

[00:57:35] Speaker 04:
Maybe, and the economic reality says, I don't remember whether the kinds of considerations that you are alluding to might affect the answer to the question, whether once we're applying those standards, whether you're in or you're out.

[00:57:50] Speaker 04:
But the rest, I mean, we're not there yet.

[00:57:54] Speaker 00:
So thank you, Your Honor.

[00:57:58] Speaker 00:
As defined, our argument, and I think it's unequivocal and clear all over our pleadings and in our arguments to this court, Mr. Lambrow and those like him qualified as employees under the FLSA because he was suffered to work, period.

[00:58:14] Speaker 00:
He was allowed to work.

[00:58:15] Speaker 00:
That's the end of that inquiry.

[00:58:17] Speaker 01:
Then the- Is there a specific response to the government's argument that Section 203 points to look at Title V?

[00:58:26] Speaker 01:
I just want kind of your-

[00:58:28] Speaker 00:
The short response is, I think, the same one that Jackson gives us, which is the Title V makes... Jackson gives a distinction between a federal employee and a services member.

[00:58:40] Speaker 00:
It doesn't.

[00:58:41] Speaker 00:
It stays clear of making a distinction between a federal employee and a contractor.

[00:58:46] Speaker 00:
It actually goes to pains to make that distinction.

[00:58:48] Speaker 00:
It simply says that Title V carves out military members from federal employees, and therefore Title VII doesn't apply to them.

[00:58:58] Speaker 00:
FLSA doesn't do that.

[00:59:01] Speaker 00:
And they are clearly defined.

[00:59:02] Speaker 00:
I mean, Mr. Lambert.

[00:59:04] Speaker 04:
FLSA does carve out uniformed members.

[00:59:07] Speaker 00:
Right.

[00:59:07] Speaker 00:
But again, to this Court's point, which was argued earlier, it's above the definition of employee.

[00:59:13] Speaker 00:
I mean, in basic statutory construction, we read the document.

[00:59:19] Speaker 00:
The definition that applies before the carve-out, or I'm sorry, after the carve-out, applies to everything before it.

[00:59:26] Speaker 00:
An employee is defined as someone who has suffered to work.

[00:59:32] Speaker 00:
And that's in G. That's below the definition that the court alludes to and the government alludes to as this carve-out.

[00:59:38] Speaker 00:
It doesn't, and again, to Mr. Carver's argument, well, the government, the Congress could have.

[00:59:42] Speaker 00:
Well, certainly Congress could have, if it wanted to, it could have created a carve-out in the FLSA that says government employees, unless appointed, are not afforded these protections.

[00:59:52] Speaker 00:
It didn't do that.

[00:59:53] Speaker 00:
It simply said it relied on the definition of an employee which has suffered to work, which falls below the carve-out that the court has described.

[01:00:05] Speaker 04:
OK.

[01:00:05] Speaker 04:
Thank you for that argument.

[01:00:06] Speaker 04:
Thanks to all.