[00:00:00] Speaker 04:
The next final case for argument this morning is 22-1475 Moore versus United States.

[00:00:08] Speaker 04:
Good morning.

[00:00:09] Speaker 04:
It's been a while.

[00:00:10] Speaker 04:
Nice to see you again, Mr. Royda.

[00:00:12] Speaker 03:
Nice to be here.

[00:00:12] Speaker 03:
Nice, as they used to say, to be anywhere at my age.

[00:00:16] Speaker 03:
Thank you.

[00:00:18] Speaker 03:
Please proceed.

[00:00:19] Speaker 03:
Thank you.

[00:00:20] Speaker 03:
Good morning.

[00:00:21] Speaker 03:
May I please court Peter Royda for Tim Moore.

[00:00:26] Speaker 03:
When this all began, I thought it was going to be a relatively straightforward, simple case in the claims court.

[00:00:31] Speaker 03:
I was wrong, often wrong.

[00:00:34] Speaker 03:
So we end up here with a case that goes well beyond the significance of Mr. Moore's case, significant as it is.

[00:00:42] Speaker 03:
All federal employees with equal payout cases have to show up if they're going to be in court, in this court.

[00:00:49] Speaker 03:
unless it's a very small claim that might end up in the United States District Court, often combined with the Title VII case.

[00:00:55] Speaker 04:
There's a lot going on in this case.

[00:00:57] Speaker 04:
So for my personal, I'd like to ally the Yank question, which my colleagues may have questions about.

[00:01:03] Speaker 04:
And I'd like to deal with something that the District Court, the Court of Federal Claims didn't do, which is

[00:01:09] Speaker 04:
the pleadings in this case, and whether you've effectively pleaded your way out of court because you've made the case for the other side, the government, in terms of a non-what is this?

[00:01:22] Speaker 04:
I'm trying to look for the statutory language of something other than discrimination, of a motivation.

[00:01:27] Speaker 03:
Yes, something other than sex.

[00:01:29] Speaker 04:
Other than sex, yes.

[00:01:31] Speaker 04:
It seems to me that they've got a

[00:01:33] Speaker 04:
So I'd like to give you a chance to respond.

[00:01:36] Speaker 04:
You've got your two comparators.

[00:01:39] Speaker 04:
This is a three-part question.

[00:01:41] Speaker 04:
The first part is you've got your two comparators.

[00:01:44] Speaker 04:
This is what happened in the first round in 2014.

[00:01:48] Speaker 04:
They applied, as you allege, and your client didn't.

[00:01:52] Speaker 04:
It seems to me

[00:01:55] Speaker 04:
Maybe that is arguably enough to say you've pleaded your way out of that complaint.

[00:02:00] Speaker 04:
Then you've got the second period of the remainder of the year where they extended the program.

[00:02:05] Speaker 04:
But you haven't alleged any comparators for that period.

[00:02:09] Speaker 04:
So I don't even know if that period matters in terms of not having competitors.

[00:02:15] Speaker 04:
And third and finally, it seems like your real answer to this, or one of your main arguments, is that rather than

[00:02:23] Speaker 04:
What seems arguably sensible in most contexts is making employees apply for something.

[00:02:28] Speaker 04:
You say, no, no, no, that was a problem.

[00:02:30] Speaker 04:
They shouldn't have made him apply.

[00:02:33] Speaker 04:
They should have just gone to his file.

[00:02:35] Speaker 04:
That seems to me a little odd.

[00:02:36] Speaker 04:
Maybe I'm missing something, but this program was open to all agency employees.

[00:02:40] Speaker 04:
And it's got to be that quite a large percentage of those employees knew they didn't qualify and or wouldn't be interested in this.

[00:02:48] Speaker 04:
So to say that the agency somehow did not have a legitimate business purpose in asking employees to apply as opposed to going through the resumes of however many hundreds of employees on its own seems odd to me.

[00:03:05] Speaker 04:
I assume you understand what I'm saying.

[00:03:08] Speaker 03:
I understand exactly what you're saying.

[00:03:10] Speaker 04:
And why don't you respond?

[00:03:11] Speaker 03:
Sure.

[00:03:11] Speaker 03:
And of course, recognizing exactly the questions you raised, I placed them into the complaint itself to say that the reasons offered by the Commission, the Securities and Exchange Commission,

[00:03:24] Speaker 03:
for not honoring this gentleman's request to be placed into the pay transition program were not justified by a legitimate reason.

[00:03:31] Speaker 03:
I recognize that these defenses would apply.

[00:03:34] Speaker 03:
And what I was expecting, I was hoping, I was wrong, was the claims court would say, all right, you go develop your evidence as to whether these are legitimate business reasons and the government, either through summary judgment or on trial, will have the opportunity to refute any notion that they're not.

[00:03:51] Speaker 03:
And as I noted in my, I think it was

[00:03:53] Speaker 03:
particularly in my reply brief, the question of whether there is grounds in an equal payout case to look at legitimate reasons as opposed to any reason at all, legitimate or not, is a matter of division among the circuit courts.

[00:04:08] Speaker 03:
There are two circuit courts to say yes, two circuit courts to say no, and this court has not offered an opinion, as far as I know.

[00:04:15] Speaker 04:
And that's on the question of whether or not they can offer any business reading reason, and it doesn't have to be legitimate?

[00:04:21] Speaker 03:
Yes.

[00:04:23] Speaker 04:
Well, on its face, why aren't these legitimate business reasons?

[00:04:27] Speaker 04:
For any normal person reading this complaint, you have a program, the union and the employer agreed to set up this program, and they put a timeframe on it, and they told people to apply.

[00:04:40] Speaker 04:
Where is even the sense of any plausible illegitimacy in asking people to apply?

[00:04:46] Speaker 04:
We do veterans appeals all the time.

[00:04:48] Speaker 04:
And even when there's a change in statute, so all these people who have claimed Agent Orange suddenly are eligible, we still make them reapply.

[00:04:56] Speaker 04:
We don't make the government go through every single veteran's file to see if they might have a claim.

[00:05:02] Speaker 04:
So how is that illegitimate not legitimate on its face?

[00:05:06] Speaker 03:
I don't think it's wrong to ask employees to express an interest.

[00:05:10] Speaker 03:
Mr. Moore expressed an interest.

[00:05:12] Speaker 03:
He expressed an interest to his managers.

[00:05:15] Speaker 03:
And I'm going way beyond the, uh, the, the claims court opinion here, but if you look at the complaint itself, uh, he expressed an interest to his management.

[00:05:24] Speaker 03:
He expressed an interest to the chief human capital officer, uh, the, basically the HR officer.

[00:05:30] Speaker 04:
Are you talking about at the time or are you talking about two years later?

[00:05:33] Speaker 03:
Uh, no, your honor.

[00:05:33] Speaker 03:
I'm talking about two, approximately two years later, September, August, September.

[00:05:37] Speaker 04:
The program was for a particular time.

[00:05:40] Speaker 03:
So that's another question.

[00:05:43] Speaker 03:
I think that's a very good question.

[00:05:46] Speaker 03:
Can you limit people to a particular period of time to examine an equal payout claim?

[00:05:53] Speaker 03:
I don't think so.

[00:05:54] Speaker 03:
What the Securities and Exchange Commission did, whether they were intending to do this or not, was to freeze a certain number of people into an opportunity to achieve

[00:06:05] Speaker 03:
higher paying, you're right, a lot of people applied.

[00:06:07] Speaker 03:
A thousand six hundred people, plus or minus, I may have the figures off slightly, applied, and many of those, I'd say probably seventy to eighty percent, maybe a little less, were able to substantially increase their income at an agency that already pays reasonably high salaries.

[00:06:22] Speaker 04:
And there's no allegation that anyone who tried to apply later got it, right?

[00:06:28] Speaker 04:
After the time it closed, or even after these other women.

[00:06:31] Speaker 03:
There were, I think the government has

[00:06:34] Speaker 03:
suggested in their inspector general report, which is part of the appendix, that a few people did not apply on time.

[00:06:44] Speaker 03:
They were given leave to apply later because at the time set for the applications, which was relatively short, it was a couple of weeks.

[00:06:51] Speaker 03:
they were on sick leave or maternity leave.

[00:06:53] Speaker 03:
I'm not saying the Commission acted in a vicious way here.

[00:06:56] Speaker 03:
No.

[00:06:57] Speaker 03:
But what they did was to freeze these wages, and the Equal Pay Act responsibility of federal statute is a continuing obligation to pay equal pay for equal work.

[00:07:07] Speaker 04:
So your argument is that by making this not permanent, that they were required to make this permanent?

[00:07:16] Speaker 04:
And there's no legitimate purpose to having made this limited to a particular year.

[00:07:23] Speaker 03:
That will be our argument that the obligation to pay equal pay under the Fair Labor Standards Act is permanent.

[00:07:30] Speaker 03:
It's ongoing.

[00:07:31] Speaker 03:
An employer can't say, I'm going to adjust wages now and ignore equal pay application later.

[00:07:38] Speaker 03:
I don't think that can be done.

[00:07:39] Speaker 03:
It's not waivable by the employees.

[00:07:42] Speaker 03:
The Supreme Court has decided that.

[00:07:44] Speaker 03:
with respect to the Fair Labor Standards Act, not the Equal Pay Act.

[00:07:48] Speaker 03:
It's an ongoing obligation.

[00:07:49] Speaker 03:
So when you get the legitimate business purpose, this was something that I expected to raise and develop in front of the claims court through evidentiary development, which I didn't get a chance to do.

[00:08:02] Speaker 03:
There's been no discovery there.

[00:08:05] Speaker 03:
So these are questions that I think are appropriate for the trial court, but they're not yet before this court, Your Honor.

[00:08:12] Speaker 03:
My concern here,

[00:08:14] Speaker 03:
course.

[00:08:17] Speaker 03:
We have authors of two concurring or separate opinions in the Yant case and the Gordon case expressing the opinion that Yant was

[00:08:27] Speaker 04:
uh... not correctly analyzed as to a basic people there just to be clear this is completely random selection and i think it was on the other that honestly i believe you know i was i think that uh... i'm not suggesting that we are required to by by the majority in irrespective of our own use the gordon opinion creates other problems because was vacated uh... i'd look but could not find a decision from this court

[00:08:56] Speaker 03:
that explains what value, if any, to apply to a vacated otherwise precedential decision.

[00:09:03] Speaker 03:
And the decisions of the Supreme Court and other courts are at best not particularly missing.

[00:09:07] Speaker 04:
Well, there's concurrences, so it's not the way.

[00:09:09] Speaker 04:
We're all required to abide by the majority opinion in Yant.

[00:09:15] Speaker 03:
In Yant?

[00:09:15] Speaker 03:
Yes.

[00:09:15] Speaker 03:
Yes.

[00:09:16] Speaker 03:
And our argument here, of course, is that Yant is distinguishable.

[00:09:20] Speaker 03:
It's not a basic comparator to comparator case.

[00:09:23] Speaker 03:
I considered whether I think it's under rule 35 for an en banc consideration, this case ought to be en banc.

[00:09:31] Speaker 03:
And it takes a lot of work of a lot of judges to do that.

[00:09:36] Speaker 03:
And I think it can be avoided through a decision that distinguishes Yant as basically a class action.

[00:09:43] Speaker 04:
Or avoided by going on a separate ground, which I think is where the government is finally.

[00:09:48] Speaker 03:
Yes, exactly so.

[00:09:49] Speaker 01:
And could you address that separate ground?

[00:09:51] Speaker 01:
Because I know you had a lot to say, and I appreciate that.

[00:09:56] Speaker 01:
But I want to make sure I understand your argument on the non-yank grounds.

[00:10:00] Speaker 01:
Why aren't paragraph seven and eight of your complaint essentially the rare instance where you have pled the affirmative defense that this was not based on sex?

[00:10:14] Speaker 01:
And therefore, at least if this remains the operative complaint,

[00:10:18] Speaker 01:
that the claims court was right to dismiss.

[00:10:23] Speaker 03:
All right.

[00:10:23] Speaker 03:
I'll address the question in reverse.

[00:10:27] Speaker 03:
The claims court relied upon the ant because it decided that it was bound by the ant as applied by Gordon, which Gordon was really a basic comparator to comparator case.

[00:10:39] Speaker 03:
Once Gordon's out of the picture because it's vacated, you're left with the ant, which is more of a class action.

[00:10:45] Speaker 03:
You're talking about two groups of people, two different occupations within a large organization.

[00:10:51] Speaker 03:
This is a very simple case.

[00:10:53] Speaker 03:
This is the traditional comparator case under the Equal Pay Act.

[00:10:58] Speaker 03:
The Supreme Court's decision in Corning Glass, the statutory language of 206D makes it absolutely clear that all we have to do is show a disparity and then the government has the responsibility for coming up with the affirmative defenses.

[00:11:13] Speaker 03:
And the affirmative defenses, as you've recognized, or some of you have recognized in your opinions, should not be conflated with the basic obligation to flee.

[00:11:23] Speaker 01:
But putting Yant aside, even if we had the power to vacate Yant, the affirmative defense from your complaint is your client didn't apply for the pay change.

[00:11:39] Speaker 01:
And other people did.

[00:11:40] Speaker 01:
Those who applied got it and those who didn't apply didn't get it.

[00:11:44] Speaker 03:
That's right.

[00:11:45] Speaker 01:
So if we take that as true, you have failed to state a claim because you've shown that the decision was not based on sex in any way.

[00:11:57] Speaker 03:
With respect, your honor, only if you take that one step further,

[00:12:04] Speaker 03:
and look to determine whether the reason the non-application is a legitimate business reason.

[00:12:10] Speaker 03:
If you were of the opinion of a couple of the circuit courts that any reason will do,

[00:12:15] Speaker 03:
Then you're actually correct.

[00:12:17] Speaker 03:
We don't stand much chance here, but that's not a decision from this court and the other circuit courts are divided on the opinion.

[00:12:24] Speaker 02:
But you prevented the court of federal claims from reaching that decision or addressing it.

[00:12:31] Speaker 02:
I don't know if they would or not, but as I see Judge Stark's question, you pled your way out of court.

[00:12:40] Speaker 03:
Oh, I don't think so.

[00:12:42] Speaker 03:
Well, with respect, I don't think so.

[00:12:43] Speaker 03:
It certainly would not be my intent as counsel for a plaintiff to plead my way out of court.

[00:12:48] Speaker 03:
That wouldn't be a very good point of staying in business here.

[00:12:51] Speaker 03:
The point there, I have to be candid with these courts, the trial courts any place.

[00:12:57] Speaker 03:
And we are coming into this case.

[00:13:00] Speaker 03:
There had been an EEO inquiry.

[00:13:05] Speaker 03:
That was not completed.

[00:13:06] Speaker 03:
We shifted over to the claims court.

[00:13:08] Speaker 03:
But I wanted to be clear.

[00:13:10] Speaker 03:
to this court that there have been reasons offered by the Securities and Exchange Commission for not honoring this man's application.

[00:13:18] Speaker 03:
And I explained that in the complaint.

[00:13:21] Speaker 03:
Complaints are supposed to be clear and concise and brief.

[00:13:25] Speaker 03:
I don't want it to be so brief that it doesn't fairly state what has occurred here.

[00:13:29] Speaker 03:
But the concept was that at the claims court, we would litigate the legitimacy of the reasons offered by the commission.

[00:13:40] Speaker 03:
both at the time that Mr. Moore saw help from the chief human capital officer and eventually from the EEOC through the agency CEO process, we would show that they were not legitimate reasons.

[00:13:51] Speaker 04:
Let me ask you, under the banner of no good deed goes unpunished, do you think, I mean, if you had seen this coming in terms of, take the ant off the table completely, if you had seen this coming, do you think the law would allow you to amend your complaint to

[00:14:09] Speaker 04:
take out what you for legitimate and very appropriate reasons decided to include.

[00:14:16] Speaker 04:
But if you were to come back tomorrow and amend your complaint and take out everything other that you say other than, they get paid this much and my client doesn't, would that work?

[00:14:29] Speaker 03:
That could be done.

[00:14:31] Speaker 03:
I don't think if I had to do it again and listen to this, I suppose I would

[00:14:35] Speaker 04:
I'm not giving you advice.

[00:14:37] Speaker 04:
I haven't researched this.

[00:14:41] Speaker 04:
So I don't even know how that works in terms of you may have dug yourself into a hole.

[00:14:47] Speaker 04:
I just don't know.

[00:14:49] Speaker 03:
But the court wouldn't have suggested it.

[00:14:56] Speaker 03:
It depends on how this would have arisen.

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

[00:15:00] Speaker 04:
In the absence of Yant, we don't know how it would have gone down in the Court of Federal Claims.

[00:15:04] Speaker 04:
He may have converted it to a summary judgment.

[00:15:05] Speaker 04:
Yant, after all, was a summary judgment case.

[00:15:08] Speaker 03:
All this was a test of the sufficiency of the allegations under Corning Glass and the Equal Pay Act of the disparity explained in the complaint.

[00:15:19] Speaker 03:
Now, I am supposed to give a short, concise statement of facts

[00:15:25] Speaker 03:
in a federal complaint.

[00:15:27] Speaker 03:
And that's what I did.

[00:15:29] Speaker 03:
And what I explained here was the process that the SEC had gone through and our belief that they would not survive as affirmative defenses.

[00:15:40] Speaker 03:
I wasn't pleading these facts as part of the prima facie case.

[00:15:44] Speaker 03:
I was explaining what the commission's approach to this was and why it was wrong.

[00:15:48] Speaker 03:
But yes, if I had to amend the complaint to avoid the suggestion that I conceded in the complaint itself,

[00:15:54] Speaker 03:
the sufficiency of the government's case, I would do so.

[00:15:58] Speaker 03:
But I still believe I drafted the complaint fairly and honestly and candidly to state the basic facts of the case.

[00:16:04] Speaker 03:
I did not want to mislead this court.

[00:16:06] Speaker 03:
And when I say this court, I mean the claims court.

[00:16:09] Speaker 04:
And as you said a few minutes ago, your allegations in the street guard depend on our adoption of the standard of a legitimate business reason versus a business reason at all, right?

[00:16:19] Speaker 03:
I'm sorry, would you repeat that, Judge?

[00:16:21] Speaker 04:
I thought you had acknowledged early on that your prevailing on this issue would depend on our adopting a standard for a legitimate business reason as opposed to a business reason.

[00:16:33] Speaker 03:
If that were before the court, I'd be arguing it now, yes.

[00:16:35] Speaker 03:
But that's not the basis of the disposition by the claims court.

[00:16:40] Speaker 03:
My friend and I have not briefed that, other than for me to mention that there are divisions in the circuits.

[00:16:45] Speaker 04:
And Corning didn't refer?

[00:16:46] Speaker 04:
Coining didn't enlighten us on that issue.

[00:16:48] Speaker 03:
No, ma'am.

[00:16:50] Speaker 03:
Coining did not.

[00:16:51] Speaker 04:
We don't get very many EPA cases.

[00:16:53] Speaker 04:
I've read all of those cases in a while.

[00:16:55] Speaker 04:
All right.

[00:16:56] Speaker 04:
Unless my colleagues have anything for you at this time, why don't we hear from the government and then we'll restore you.

[00:17:02] Speaker 00:
Thank you very much.

[00:17:03] Speaker 00:
May it please the court.

[00:17:04] Speaker 00:
Mr. Moore's appeal should be denied and the trial court's decision should be affirmed because Mr. Moore failed to allege sex as a basis in his complaint.

[00:17:19] Speaker 00:
Therefore, it fails to state a claim.

[00:17:23] Speaker 00:
The case here, it's implausible for him to recover because the liability in this case doesn't turn on sex at all.

[00:17:32] Speaker 00:
it turns on Mr. Moore being admitted.

[00:17:35] Speaker 04:
So you're back to Yan?

[00:17:38] Speaker 00:
We don't have to touch Yan at all.

[00:17:39] Speaker 00:
This is firmly and twombly in Iqbal territory.

[00:17:43] Speaker 00:
Because the Equal Pay Act says that pay between sexes, where there's a situation where an employer is paying employees differently based on sex, that is outlawed.

[00:17:59] Speaker 00:
That is what the trial court actually based its decision on.

[00:18:04] Speaker 00:
So if you look at the opinion.

[00:18:06] Speaker 04:
So for an equal payout claim, he has to what?

[00:18:08] Speaker 04:
Alleged what?

[00:18:09] Speaker 04:
Does he have to just say, and this disparity was based on sex, is that what's missing?

[00:18:13] Speaker 04:
Or does he have to say anything further?

[00:18:16] Speaker 04:
I mean, when he used the equal payout,

[00:18:20] Speaker 04:
Well, I have a different view maybe than Nyant.

[00:18:23] Speaker 04:
And we obviously have to abide by what the court said, Nyant.

[00:18:26] Speaker 04:
But really, what did he have to say?

[00:18:29] Speaker 04:
I mean, just to allege this was based on sex?

[00:18:34] Speaker 00:
I think you hit on all of your questions before I hit on it.

[00:18:37] Speaker 00:
If you say that in this situation, the reason that I am not receiving the same pay as these female comparators is not because of sex,

[00:18:49] Speaker 00:
it is simply because I wasn't allowed to be into this pay transition program, then you can't infer that sex is a basis.

[00:18:59] Speaker 00:
And that is the point of the EPA.

[00:19:03] Speaker 00:
The EPA was amended.

[00:19:05] Speaker 00:
It was added to the Fair Labor Standards Act in 1963 to try to remedy the imbalance

[00:19:12] Speaker 00:
between certain employees, women back in those times, not receiving the same pay as men for doing the same or similar jobs.

[00:19:21] Speaker 00:
So the basis of what Congress was trying to do was trying to make sure that pay wasn't given to one sex versus the other

[00:19:29] Speaker 00:
based on that basis alone.

[00:19:31] Speaker 04:
As I understand the EPA, and maybe you do much better than I, if one comes in and alleges a comparator, I'm a girl and I make this much and these boys make more than me, I'm the tennis team, then the burden shifts, and I think it's even the burden of persuasion, not just a projection, to the government.

[00:19:49] Speaker 04:
to establish.

[00:19:50] Speaker 04:
So it's not like I have to affirmatively prove as part of my prima facie case that it was based on sex.

[00:19:57] Speaker 04:
I show the comparators, which are based on sex, at least those, and then the burden shifts to the government to come up with any one of these four factors.

[00:20:05] Speaker 04:
Am I missing something about that?

[00:20:06] Speaker 04:
No, you're absolutely correct.

[00:20:08] Speaker 04:
So what did he, as part of his prima facie case, have to show with regard to sex in the complaint itself?

[00:20:16] Speaker 00:
What he had to say, Your Honor, is that

[00:20:19] Speaker 00:
Sex was a basis.

[00:20:21] Speaker 00:
What he has said here is that sex is absolutely not a basis.

[00:20:27] Speaker 00:
And that's what takes you out.

[00:20:28] Speaker 00:
So in your example, Your Honor, you say that the men received more money than I did in my job.

[00:20:35] Speaker 00:
And so if you say that, you're saying affirmatively that these men are making more.

[00:20:40] Speaker 00:
That's going to come under the EPA because they're doing the same or similar job and you're getting more money.

[00:20:47] Speaker 00:
If you affirmatively say,

[00:20:49] Speaker 00:
that these men are making more money than me, but it's not because of their sex.

[00:20:55] Speaker 00:
It's because they were in a program.

[00:20:56] Speaker 04:
I'm not sure I think that yours is a fair reading of the complaint in its entirety.

[00:21:01] Speaker 04:
Because whereas in those earlier paragraphs he says, they applied for this program, he didn't apply, you've got paragraph 17 of the complaint, which goes through all of that and says, there's not an acceptable business reason

[00:21:17] Speaker 04:
And the pay is not.

[00:21:19] Speaker 04:
So he makes that argument.

[00:21:20] Speaker 04:
He doesn't use sex, but that's not his burden.

[00:21:23] Speaker 04:
You have to show that there's not a legitimate business purpose, that there is a legitimate business purpose.

[00:21:29] Speaker 04:
And he at least alleges in six parts or five parts that there wasn't with respect to each of what you did.

[00:21:36] Speaker 04:
So why hasn't he?

[00:21:38] Speaker 04:
I kind of take your point at the service level, but I'm not sure how it plays through at the complaint stage where the prima facie burden on him is

[00:21:47] Speaker 04:
really low.

[00:21:49] Speaker 00:
So the difference is, Your Honor, and you talked about it a little bit earlier when you were talking to Mr. Breuder, when he affirmatively says in paragraphs seven through 10 that the program

[00:22:03] Speaker 00:
The program is what the ill is here.

[00:22:06] Speaker 00:
It's not about the female employees that are making more money at all.

[00:22:11] Speaker 00:
That has nothing to do with it.

[00:22:13] Speaker 00:
If Mr. Moore was allowed into the program, then he wouldn't have issue with anything else.

[00:22:17] Speaker 00:
That is why the sex has to be pled or has to be at least acknowledged in this case.

[00:22:24] Speaker 00:
When you look at paragraph 17, this is a simple recitation of the statute.

[00:22:28] Speaker 00:
And as we know,

[00:22:29] Speaker 00:
That's not going to be enough to overcome.

[00:22:31] Speaker 04:
Well, I don't think it's a simple recitation of the statute.

[00:22:33] Speaker 04:
It's quite detailed in terms of going at all of the things that we think he's put his way out of the court because of those earlier paragraphs that talk about the need to apply and he failed to apply.

[00:22:47] Speaker 04:
And this goes through in detail saying, no, no, no, those were not legitimate business reasons.

[00:22:54] Speaker 04:
And therefore, we're left with an EPA

[00:22:57] Speaker 04:
allegation, right?

[00:22:59] Speaker 04:
I mean, don't you read those?

[00:23:00] Speaker 04:
Read paragraph 17.

[00:23:02] Speaker 04:
It goes through each of the things that I think we would agree.

[00:23:05] Speaker 04:
If you read the first paragraphs, you say, whoa, he's talked about a non-sex-related reason for this.

[00:23:11] Speaker 04:
But then when you get to 17, clearly his position was that everything the government did was not for an acceptable business reason.

[00:23:20] Speaker 04:
And if he were right about that,

[00:23:22] Speaker 04:
Let's assume there's enough pleading here, and we get to at least summary judgment, if not the final stage.

[00:23:27] Speaker 04:
And you come up, and your defense would be there's a legitimate business reason, or a business reason.

[00:23:35] Speaker 04:
And let's assume you lose on that.

[00:23:37] Speaker 04:
He will win on his EPA claim, not for having made a case that this was based on sex, but rather that your arguments for it, given the comparators, was nonlegitimate business.

[00:23:49] Speaker 04:
Is that the way the law would work?

[00:23:51] Speaker 00:
Not necessarily.

[00:23:53] Speaker 00:
You first have to have that burden move.

[00:23:55] Speaker 00:
The burden in this case has not moved from the plaintiff to the defendant.

[00:24:00] Speaker 04:
And what is required under a prima facie, Shelley?

[00:24:03] Speaker 04:
I mean, well, we know what Yant, but if you can avoid what Yant says about that.

[00:24:08] Speaker 00:
We don't need to touch Yant at all, because you can say one of two things.

[00:24:13] Speaker 00:
You can say that these female employees are making more money than me, and I don't know why.

[00:24:19] Speaker 00:
Or you can say, these female employers are making more money than me because they're female.

[00:24:25] Speaker 00:
But if you come out and say, your honor.

[00:24:27] Speaker 00:
that these female employees are making more money than me under the EPA guise.

[00:24:32] Speaker 00:
But it's not because of their sex.

[00:24:35] Speaker 00:
The only reason they're making more money is because I didn't timely apply for this program, then it doesn't come under the protection that the burden never shifts to the affirmative defenses.

[00:24:47] Speaker 04:
Well, there's another option.

[00:24:49] Speaker 04:
Would it be sufficient for him to say, these female employees are making more than me?

[00:24:55] Speaker 04:
period without saying, because of their sex, would that be sufficient?

[00:24:59] Speaker 00:
That's why I said that's one of them.

[00:25:02] Speaker 00:
It's possible you could say that.

[00:25:04] Speaker 00:
And then the burden shifts, obviously, to then the four affirmative defenses.

[00:25:08] Speaker 00:
But as all of you have stated, did you plead your way out of court?

[00:25:13] Speaker 00:
The answer is yes.

[00:25:14] Speaker 00:
If you come out and say, I'm going to sue under the EPA, which is designed to protect wage imbalances based on sex.

[00:25:23] Speaker 00:
But wait a minute, Your Honor.

[00:25:25] Speaker 00:
It's not because of sex.

[00:25:27] Speaker 00:
It's because of this program.

[00:25:28] Speaker 04:
The way I read the complaint, he says, why can't you read the complaint that says, these women are making more than their male counterpart?

[00:25:41] Speaker 04:
The agency's reasons for this are because they created this program, and you have to apply, and he didn't apply yet.

[00:25:49] Speaker 04:
None of those reasons represent a legitimate business purpose.

[00:25:54] Speaker 04:
Wouldn't that be sufficient?

[00:25:56] Speaker 00:
Not necessarily, Your Honor.

[00:25:57] Speaker 00:
We're not there in terms of, this is why I say we're in Twombly and Iqbal.

[00:26:02] Speaker 00:
You have to have pled.

[00:26:06] Speaker 00:
the basis of why the statute would apply.

[00:26:09] Speaker 00:
We're not moving into legitimate business purpose of whether you have a seniority system or whether you have a merit system or quality quantitative production or other than sex.

[00:26:21] Speaker 00:
We're not there.

[00:26:22] Speaker 00:
And that's what the trial court said.

[00:26:24] Speaker 00:
We're not there because you said

[00:26:27] Speaker 00:
that the reason why you're not receiving higher pay is absolutely nothing to do with why you filed it under this section.

[00:26:35] Speaker 04:
He says the agency did this, but their reasons for doing that were all bogus.

[00:26:41] Speaker 04:
They didn't have a legitimate business purpose.

[00:26:42] Speaker 04:
So he's not saying, yes, the agency set up a perfectly fine and legitimate application program, and my client didn't.

[00:26:49] Speaker 04:
He doesn't say that.

[00:26:50] Speaker 04:
He says the agency set up a program under which these women are getting more than my client,

[00:26:56] Speaker 04:
And that program had no legitimate business.

[00:26:59] Speaker 00:
That would be fine, Your Honor, if he was in that part of the statute.

[00:27:04] Speaker 00:
He's still in the first part of the statute where he says clearly this has nothing to do with sex.

[00:27:10] Speaker 00:
So if it has nothing to do with sex, then how do you move to the affirmative defense?

[00:27:15] Speaker 00:
You're already out.

[00:27:16] Speaker 00:
Because the reason we're here to listen to your case is because allegedly you've said that there's a pay imbalance based on sex.

[00:27:25] Speaker 04:
Judge Raina had a question.

[00:27:26] Speaker 02:
This goes to whether there's been a pleading out of court, as we've been saying.

[00:27:33] Speaker 02:
If Moore has brought a complaint under the Equal Pay Act, incites the act, and then attempts to get in by making the allegations that he did, couldn't we have a claim based on sex still working in the background?

[00:27:57] Speaker 02:
Isn't this still, at bottom, an equal pay action?

[00:28:02] Speaker 02:
And what he has done, what Moore has done, is they've stuck their toe in the door, and that door is still open.

[00:28:11] Speaker 02:
And on the other side of the door, now he'll be able to plead out Moore on the traditional EPA claim.

[00:28:19] Speaker 00:
I would suggest no, Your Honor, and here's why.

[00:28:22] Speaker 00:
If you were to infer that sex was the reason,

[00:28:26] Speaker 00:
or a basis for why there's pay imbalance, Mr. Moore would raise his hand and say, that's not correct, Your Honor.

[00:28:32] Speaker 00:
It's not because of sex.

[00:28:34] Speaker 00:
The reason they're getting paid more is because they got into the program that I didn't apply for.

[00:28:40] Speaker 00:
So the court would be inappropriate to try to make a claim or to infer a claim that there's actually sex when Mr. Moore says, no, there's not.

[00:28:48] Speaker 00:
The reason I'm advancing this case is because I am not getting the same pay as them, but not because

[00:28:56] Speaker 00:
They're women.

[00:28:57] Speaker 00:
I'm only not receiving it because they timely applied and I missed two deadlines to apply.

[00:29:04] Speaker 00:
And so that is why, and this case is, that's why I said we don't have to touch anything else.

[00:29:09] Speaker 00:
This case's facts are so different than most cases.

[00:29:12] Speaker 00:
There's no reason or basis to infer that sex is a part of this at all because Mr. Moore has said that the program was open to everyone,

[00:29:22] Speaker 04:
That the reason that these- Can I just ask you one other question?

[00:29:27] Speaker 04:
Sure.

[00:29:27] Speaker 04:
I think the challenge or the difficulty that we're having is because my understanding of what went down below, it was yant plus yant plus yant plus yant.

[00:29:36] Speaker 04:
And so the District Court, the Court of Federal Claims didn't examine the kinds of what we've been talking about here for 20 minutes now about the sufficiency of the pleadings and what he clubbed himself out of court, yada, yada, yada.

[00:29:48] Speaker 04:
Assuming hypothetically

[00:29:51] Speaker 04:
Either Yant would be overruled or we would say that Yant is distinguishable and I think both sides give arguments that we don't have to apply Yant.

[00:30:00] Speaker 04:
Wouldn't the most appropriate course be to send this back to the Court of Federal Claims to

[00:30:09] Speaker 04:
back to the Court of Claims because none of it, we don't have the benefit of the Court of Claims analysis.

[00:30:15] Speaker 04:
And after all, this Iqbal Tromley motion to dismiss stuff always comes to us based on the Court of Claims having done something, and we review it.

[00:30:23] Speaker 04:
Maybe some of the findings are even reviewed for an abuse of discretion.

[00:30:26] Speaker 04:
So I think we're struggling here on an argument that was not posed to the court below and not addressed by the court below.

[00:30:34] Speaker 00:
So if you look at the

[00:30:38] Speaker 00:
The fourth page of the Moore decision, it's the very last paragraph, where the court says, because the complaint affirmatively acknowledges that no sex-based discrimination caused a difference in pay between Mr. Moore and the two female comparators, plaintiff does not state a prima facie violation.

[00:30:56] Speaker 00:
So they went through Twombly and Ickball,

[00:31:00] Speaker 00:
about what has to be played.

[00:31:02] Speaker 00:
They did touch on Yant.

[00:31:04] Speaker 00:
But Yant is really not the focus of what their opinion is.

[00:31:08] Speaker 00:
It really is the focus on what Mr. Moore has said.

[00:31:12] Speaker 00:
Mr. Moore says, as I've said repeatedly, don't want to go overboard too much, but that sex is not a part of his complaint at all.

[00:31:19] Speaker 00:
It's a simple vehicle to get into court.

[00:31:22] Speaker 00:
And so that's why.

[00:31:23] Speaker 01:
If we could come back to the business purpose that may or may not exist for this program,

[00:31:31] Speaker 01:
Is Mr. Moore alleging, or could his complaint be read as alleging, that the illegitimate business purpose is one that is based on sex?

[00:31:41] Speaker 01:
Relatedly, would you say that that's what he would have to do in order for him to still have an EPA claim?

[00:31:50] Speaker 01:
Let's just say it turned out, this hypothetical obviously,

[00:31:56] Speaker 01:
It was just a pure arbitrary budgetary decision to cut it off after two weeks, or whatever it is.

[00:32:03] Speaker 01:
Not based on sex, based on budget.

[00:32:06] Speaker 01:
Maybe even false understanding of a limited budget.

[00:32:11] Speaker 01:
Would that somehow allow this to be a sex-based claim under EPA, or would that just be he may have some other claim, but it's not based on sex?

[00:32:22] Speaker 00:
I think that one still moves.

[00:32:26] Speaker 00:
there's an assumption that the burden has moved over to the defendant to plead before affirmative defenses.

[00:32:31] Speaker 01:
I have assumed that, but just play that out.

[00:32:34] Speaker 00:
So if it stands for a budgetary reason, then no, the burden would move because sex is the reason why you're advancing a claim through this vehicle.

[00:32:45] Speaker 00:
So you're saying you have to say, or you have to at least have something where the court can infer

[00:32:52] Speaker 00:
that sex is the reason why you're alleging the pay imbalance.

[00:32:56] Speaker 00:
But if you're affirmatively saying that sex has absolutely nothing to do with it, and this statute is about protecting wages based on sex, you can't move.

[00:33:06] Speaker 01:
So if the case played out and there were an illegitimate business reason, but the illegitimacy had nothing to do with sex,

[00:33:14] Speaker 00:
The government would win that case with the other than sex defense, which is what most of these cases are about.

[00:33:23] Speaker 00:
They're usually other than sex is what the defense is.

[00:33:27] Speaker 00:
But what I was saying is we don't even get to the affirmative defenses because you haven't used the proper vehicle to allege why the program should be open to you.

[00:33:41] Speaker 00:
If you're saying that sex in this situation is not a part of your calculus when you file the complaint, that is what the EPA is for.

[00:33:51] Speaker 00:
And if you don't have that, then you haven't come off of your burden to move it.

[00:33:55] Speaker 00:
The burden is very low.

[00:33:56] Speaker 00:
There's no question.

[00:33:57] Speaker 00:
But it's still a burden.

[00:33:59] Speaker 00:
And you still have to say that sex is somehow involved in your case in order for it to move.

[00:34:05] Speaker 00:
And if you don't do that.

[00:34:06] Speaker 04:
And by identifying, I mean, there's very little for a proliferation case, leaving aside the

[00:34:11] Speaker 04:
Sure.

[00:34:13] Speaker 04:
I don't think there's any dispute.

[00:34:15] Speaker 04:
He has to find comparators that are of a different sex.

[00:34:18] Speaker 04:
Isn't that sufficient?

[00:34:19] Speaker 04:
And then could he globally say, and therefore, we satisfy the requirements of the EPA?

[00:34:24] Speaker 00:
Normally, that would be the case, Your Honor.

[00:34:27] Speaker 00:
You would say, these women are making more money than me.

[00:34:30] Speaker 00:
And the court would go, oh, OK, that's enough.

[00:34:33] Speaker 00:
Let's move it over to the permit.

[00:34:34] Speaker 04:
OK, so he doesn't have to say, and that

[00:34:36] Speaker 04:
And he doesn't have the burden or any showing that that is based on sex.

[00:34:40] Speaker 04:
He could just say, look, these women, another sex than me.

[00:34:43] Speaker 00:
That's correct.

[00:34:45] Speaker 00:
But that then permits the court to infer that, oh, maybe the reason you think so is because of sex.

[00:34:53] Speaker 00:
That's why you think so.

[00:34:55] Speaker 00:
But if the court were to do that in this situation, it would be inappropriate.

[00:35:00] Speaker 00:
Because the court would say, OK, maybe it's because of sex.

[00:35:02] Speaker 00:
And then Mr. Moore, from his complaint, would say, it's not because of sex.

[00:35:06] Speaker 00:
It's because they won't let me in the program two years after the fact.

[00:35:10] Speaker 00:
And you go, well, wait a minute.

[00:35:12] Speaker 00:
Does it have anything to do with what the EPA is designed to protect?

[00:35:16] Speaker 00:
You say, well, they're making more money than me, but it's not because of their sex.

[00:35:20] Speaker 04:
But what if he had pleaded virtually nothing?

[00:35:22] Speaker 04:
I mean, just the minimum, prima facie case, and clearly the burden would shift to you to say there's a legitimate business reason.

[00:35:31] Speaker 04:
And what if you fail?

[00:35:32] Speaker 04:
He wins, right?

[00:35:33] Speaker 04:
You cannot establish.

[00:35:36] Speaker 04:
that these programs, which we all know existed, he felt like it was his obligation not to hide the ball.

[00:35:43] Speaker 04:
But all he has to show, or all that you actually have to show, is that there was not a legitimate business reason.

[00:35:54] Speaker 04:
You have to show there was a legitimate business reason.

[00:35:56] Speaker 04:
You have the burden for this limited time application program and for requiring people to apply themselves.

[00:36:04] Speaker 04:
So you have to show that.

[00:36:05] Speaker 04:
So the only thing he did wrong here was not put the words because of sex here?

[00:36:11] Speaker 00:
No, no, no.

[00:36:12] Speaker 00:
He affirmatively stated.

[00:36:14] Speaker 04:
Yeah, but he stated that these things happen for reasons other than sex, but then he said those things don't have a legitimate business purpose.

[00:36:23] Speaker 00:
Sure.

[00:36:23] Speaker 04:
And isn't that the dispute here that we would be litigating at whatever stage we're in?

[00:36:29] Speaker 00:
If only in the second stage, not in the first stage.

[00:36:33] Speaker 00:
because the other than sex is an affirmative defense, right?

[00:36:36] Speaker 00:
We're talking about still in his burden section, his burden section.

[00:36:41] Speaker 00:
That's why this doesn't have anything to do with Yann or any of these other cases.

[00:36:45] Speaker 00:
This is twinly nick ball.

[00:36:47] Speaker 00:
Have you given the court taking the four corners of your complaint as true, right?

[00:36:53] Speaker 00:
Is it plausible that you could recover?

[00:36:56] Speaker 00:
Is the misconduct something that the court could infer?

[00:36:58] Speaker 00:
And the answer to that, looking at the Four Corners, would be no, because you have said that the reason why you're advancing this case has nothing to do with that.

[00:37:09] Speaker 02:
Counselor, just now when you say that he, the reason he said, I've heard you say on two prior occasions that he affirmatively said that.

[00:37:20] Speaker 02:
That he said that the disparity was not

[00:37:25] Speaker 02:
based on sex.

[00:37:26] Speaker 02:
Show me where he affirms it.

[00:37:28] Speaker 00:
So in paragraph, let me go to the complaint, Your Honor.

[00:37:35] Speaker 00:
It's paragraph seven through 10.

[00:37:38] Speaker 00:
Oh, what?

[00:37:39] Speaker 00:
The complaint?

[00:37:40] Speaker 00:
Of the Court of Federal Claims complaint.

[00:37:43] Speaker 01:
Do you have a page site?

[00:37:45] Speaker 04:
It's appendix three.

[00:37:48] Speaker 01:
I didn't bring the, yeah, I didn't bring that part with me.

[00:37:55] Speaker 01:
Paragraph seven through ten, right.

[00:37:57] Speaker 00:
Okay, so employees, all employees, if you look at paragraph five, all employees were allowed to participate.

[00:38:05] Speaker 00:
We also have, you can hear.

[00:38:10] Speaker 02:
That, that itself does not, I don't take that to say that he affirmatively said that disparity was in no way based on sex.

[00:38:19] Speaker 00:
It says the complaint does not claim any difference in pay.

[00:38:22] Speaker 00:
So there was paragraph seven.

[00:38:26] Speaker 00:
Both of the comparators applied.

[00:38:28] Speaker 00:
Mr. Moore did not apply.

[00:38:31] Speaker 00:
And that it was available.

[00:38:35] Speaker 00:
So where that mainly comes from, it was available to everyone.

[00:38:39] Speaker 00:
And then Mr. Moore doesn't allege at all that the program was tilted.

[00:38:43] Speaker 02:
He does not say.

[00:38:44] Speaker 02:
He does not make an affirmative statement that the disparity was in no way based on this.

[00:38:50] Speaker 00:
He never says that this program was geared to women over men, or that women made more money out of the program.

[00:38:57] Speaker 04:
Well, he doesn't have to show that.

[00:38:59] Speaker 04:
You have to show that there was legitimate business reason for him to prevail, or he's not competitive.

[00:39:05] Speaker 00:
But by stating that this program was open to everyone,

[00:39:10] Speaker 00:
and that there was no kind of disparity or unfavorable treatment that he received, that is how you get to the point where he's saying that the program is not an issue at all.

[00:39:23] Speaker 04:
Well, he says, though, it's 17C.

[00:39:25] Speaker 04:
SEC had no valid basis for creating or not extending a deadline for any employee to apply for and obtain the benefits of pay transition.

[00:39:35] Speaker 04:
So he's stating this is what they did.

[00:39:37] Speaker 04:
He's not embracing it.

[00:39:39] Speaker 04:
He's identifying a reason that on its face seems sex neutral, but that's not the same as admitting that sex had nothing to do with the decision.

[00:39:51] Speaker 00:
Well, as the lower court stated, if in fact you say that the program was open to both sexes, then that is saying that the program itself was not tilted or tainted in any way towards a certain sex.

[00:40:08] Speaker 00:
And so that's where that comes from.

[00:40:11] Speaker 00:
If you say that the program allowed more women in than men, or the program somehow, in its calculations, gave women more money than men, then you could probably put that in there, and that may be enough to shift that burden.

[00:40:25] Speaker 02:
But if you say that the program was open to all... How about if you say that the program resulted in my not getting as much money as

[00:40:34] Speaker 02:
those two and then those two are women.

[00:40:36] Speaker 02:
Isn't there an inference there of disparity?

[00:40:39] Speaker 00:
That could be fair.

[00:40:40] Speaker 00:
I think that would be fair.

[00:40:41] Speaker 02:
He's showing a disparity in pay, right?

[00:40:44] Speaker 00:
Because of the program.

[00:40:46] Speaker 02:
Now, I realize this may take us into yet, but he's already made it in.

[00:40:51] Speaker 02:
He's in the door.

[00:40:52] Speaker 00:
No, he's not in the door because he's saying that the program was open to all people and it was sex neutral.

[00:41:01] Speaker 00:
If you're saying that the program is sex neutral,

[00:41:04] Speaker 00:
Then what is the problem?

[00:41:05] Speaker 00:
Then why are we here?

[00:41:06] Speaker 00:
How is your burden?

[00:41:07] Speaker 01:
I think what Judge Wren is asking, with your metaphor, he's in the door when he says there's two women who do the same work and are paid more than me.

[00:41:17] Speaker 01:
But you say he's kicked out of the door when he later says there was a program that let them get more money.

[00:41:23] Speaker 01:
They applied and I didn't.

[00:41:24] Speaker 01:
Would that be a fair mapping of the

[00:41:26] Speaker 01:
the metaphor of the door to your argument?

[00:41:28] Speaker 00:
I would say they didn't get in the door to start with.

[00:41:31] Speaker 00:
You have to earn your way in the door.

[00:41:33] Speaker 01:
Well, I thought you said it's generally enough to state an EPA, putting the antecide, generally enough to say, look, I'm a man.

[00:41:41] Speaker 01:
They're women.

[00:41:42] Speaker 01:
They get paid more.

[00:41:43] Speaker 01:
We do the same work.

[00:41:44] Speaker 01:
I don't know why.

[00:41:45] Speaker 01:
That would be enough in general, right?

[00:41:47] Speaker 00:
Sure.

[00:41:47] Speaker 00:
That is correct.

[00:41:48] Speaker 01:
So I'd be in the door at that point.

[00:41:50] Speaker 01:
But I think you're saying he closed the door on himself with paragraphs seven through 10.

[00:41:54] Speaker 00:
That is correct, John.

[00:41:56] Speaker 01:
I'm just confused by the government's view of Yant.

[00:42:03] Speaker 01:
I guess I understand the argument, maybe it's only summary judgment or after trial, putting that aside.

[00:42:09] Speaker 01:
Does any other court of appeals have the same pleading burden as Yant, and should we be reexamining that?

[00:42:19] Speaker 00:
I would say we don't need to touch Yant in this case at all.

[00:42:24] Speaker 01:
Maybe no need.

[00:42:25] Speaker 01:
But you want to ask about Yant?

[00:42:26] Speaker 01:
Yeah, what if he was interested?

[00:42:28] Speaker 00:
How do I say this without using colloquialism?

[00:42:37] Speaker 00:
Yant, we don't necessarily agree with Yant all the way.

[00:42:43] Speaker 00:
I'll say that.

[00:42:45] Speaker 00:
And some of it has to deal with

[00:42:49] Speaker 00:
what the plaintiffs are required to do at the opening part of their case, in terms of saying that there has to be a showing of past or present discrimination.

[00:43:03] Speaker 00:
We don't necessarily agree with that part.

[00:43:08] Speaker 00:
That's why we steer clear of Yant.

[00:43:11] Speaker 00:
And as you can see, the trial court did the same.

[00:43:12] Speaker 04:
Well, how can you say that?

[00:43:13] Speaker 04:
Wasn't your entire argument before the court of federal claims based on Yant?

[00:43:17] Speaker 04:
I mean, I can't find the sheet yet.

[00:43:19] Speaker 04:
But when looking at your briefing on Yant and your motion to dismiss, I think it had Yant all over it, saying specifically Yant applies to all EPA cases in the circuit and mandates that a plaintiff blah, blah, blah.

[00:43:32] Speaker 04:
Sure, Your Honor.

[00:43:35] Speaker 04:
Weren't you urging the Court of Federal Claims to apply Yant and dismiss this case based on Yant?

[00:43:42] Speaker 04:
That's a yes or no question.

[00:43:45] Speaker 00:
Yes, Your Honor.

[00:43:47] Speaker 00:
But it's qualified.

[00:43:50] Speaker 00:
So you may not agree with this.

[00:43:54] Speaker 00:
But what we're here to do is defend the judgment of the lower court, not necessarily what we had in fact put in the case.

[00:44:03] Speaker 04:
The answer is you pressed Yant as being the basis for the judge to dismiss the case, and that's exactly what he did.

[00:44:13] Speaker 04:
You can change your view.

[00:44:14] Speaker 04:
You can revisit it.

[00:44:16] Speaker 04:
That's all fair game.

[00:44:17] Speaker 04:
But we've got to analyze what went down here.

[00:44:22] Speaker 04:
you know the confusion here with the court if it's a government is telling us now well we didn't really you don't need yant at all for this case but they in fact the only basis for the court of claims doing this was the argument made about yant the court of federal claims and here you're coming up with an alternative I mean that's true is it not is that not a fair reading of the record

[00:44:48] Speaker 00:
I would say no.

[00:44:49] Speaker 00:
And the reason why is we did advance Yant, but we said even if Yant didn't apply, then there's a Twombly ickball.

[00:44:58] Speaker 00:
So Twombly and ickball still apply at this level.

[00:45:01] Speaker 02:
But that's your alternative argument.

[00:45:03] Speaker 02:
Your initial argument, your general argument was Yant, wasn't it?

[00:45:08] Speaker 00:
The initial argument was Yant.

[00:45:09] Speaker 02:
And you carried this argument all the way through until here recently before the Court of Federal Claims.

[00:45:16] Speaker 02:
Not necessarily.

[00:45:17] Speaker 02:
Now we don't have to rely on a Yant-based argument.

[00:45:22] Speaker 02:
So what's your alternative argument?

[00:45:25] Speaker 02:
Is your alternative argument the argument you're making today?

[00:45:28] Speaker 00:
It is not.

[00:45:29] Speaker 00:
The reason that we relied on Yant in the beginning is because what our point was, the same one that we have here, is that you have to allege sex.

[00:45:39] Speaker 00:
Now Yant goes a little bit further than we would

[00:45:41] Speaker 00:
necessarily need to go, but the premise is the same.

[00:45:45] Speaker 00:
You have to say that sex is a part of your claim.

[00:45:49] Speaker 00:
If you don't, then that burden never shifts.

[00:45:52] Speaker 00:
And that's why we use the yant.

[00:45:54] Speaker 00:
So when you say, do we press yant, and now are we backing off of yant, the answer to that is no.

[00:46:01] Speaker 00:
What we were pressing was the fact that he affirmatively said in his complaint, from our perspective,

[00:46:09] Speaker 00:
The program was sex neutral and therefore it could not be under the EPA.

[00:46:15] Speaker 00:
That is why we're pressing and we use the yant for that.

[00:46:19] Speaker 00:
But we also use it ball Twombly to try to signal to the court that the reason we think this should go away is because these basically played themselves out as you appropriately stated.

[00:46:33] Speaker 00:
So that's why you see yant in there and you see it ball Twombly at the same time.

[00:46:41] Speaker 00:
So hopefully that answers your question.

[00:46:43] Speaker 00:
Judge Rana, you appear to be thinking about some things.

[00:46:48] Speaker 02:
I'm pondering.

[00:46:50] Speaker 04:
All right.

[00:46:51] Speaker 04:
We've taken enough time.

[00:46:52] Speaker 04:
I think the colleagues had great questions.

[00:46:55] Speaker 04:
Let's give the other side six minutes of rebuttal.

[00:46:58] Speaker 00:
Thank you.

[00:47:00] Speaker 03:
I appreciate the opportunity to provide rebuttal here.

[00:47:04] Speaker 03:
It will be brief.

[00:47:05] Speaker 03:
There's so much to be said, so little time.

[00:47:07] Speaker 04:
I have one question, though.

[00:47:08] Speaker 04:
Could you go to what seems to be the essence of his point?

[00:47:11] Speaker 03:
Yes.

[00:47:11] Speaker 04:
You have to say the differential in pay here was on the basis of sex.

[00:47:19] Speaker 04:
And you did not say it.

[00:47:21] Speaker 04:
Full stop, no prima facie case.

[00:47:23] Speaker 04:
That's what I understood him to be saying.

[00:47:25] Speaker 04:
So what is your response to that?

[00:47:27] Speaker 03:
Your Honor, that's absolutely correct.

[00:47:29] Speaker 03:
The appendix 63, which is the last page of the complaint to the claims court,

[00:47:36] Speaker 03:
I have to look at this because I'm starting to doubt my ability to draft a complaint.

[00:47:40] Speaker 03:
I've been doing this for more than a year.

[00:47:42] Speaker 03:
And paragraph 18 says, as a result of these circumstances since mid-2015 and continuing to the present,

[00:47:56] Speaker 03:
in violation of the Equal Pay Act, the plaintiff has been paid substantially less, it goes on, than the comparators, despite their equal work and so forth.

[00:48:05] Speaker 03:
This is an Equal Pay Act claim based on the exact language of the statute.

[00:48:09] Speaker 01:
But paragraph 18 doesn't say anything about it being due to sex.

[00:48:12] Speaker 03:
Because of sex.

[00:48:13] Speaker 03:
And the Equal Pay Act does not require it, Your Honor.

[00:48:16] Speaker 03:
If this were a Title VII case, 42 USC 2000 E2, and oftentimes Title VII cases, of course,

[00:48:25] Speaker 03:
combined with Equal Pay Act cases when they can be in the district courts.

[00:48:28] Speaker 03:
42 U.S.C.

[00:48:30] Speaker 03:
2002 A1 prohibits discrimination with respect to compensation because of such individuals' race, color, religion, sex, or national origin.

[00:48:47] Speaker 03:
And then interestingly enough, to me at least, it incorporates the Equal Pay Act and the Bennett Amendment.

[00:48:52] Speaker 03:
but we're not talking about that.

[00:48:54] Speaker 03:
So Title VII injects essentially a pleading requirement of intent, intentional discrimination because of sex, which is what Yen did when it started talking about historical or present patterns of discrimination, essentially injecting without saying what it was doing a Title 42 standard into the Equal Pay Act.

[00:49:20] Speaker 03:
The Equal Pay Act

[00:49:21] Speaker 03:
establishes strict liability, subject to these four affirmative defenses.

[00:49:26] Speaker 01:
As long as the differential is based on sex.

[00:49:29] Speaker 01:
No, Your Honor, I disagree.

[00:49:30] Speaker 01:
It doesn't have to be intentionally based on sex and putting yant aside what you have to legit the prima facie case that is due to sex in some way you can identify, that maybe is yant, but you can't plead an EPA claim

[00:49:49] Speaker 03:
without saying something about sex, right?

[00:50:02] Speaker 03:
that the linkage between the violation and the sex be established by demonstration of disparate wages, whether it's wages higher for women than men, higher for men than women.

[00:50:14] Speaker 04:
In other words, you're saying the statute does use the words discrimination and sex.

[00:50:19] Speaker 04:
It says no employer shall discriminate, blah, blah, blah, between employees on the basis of sex.

[00:50:26] Speaker 04:
By paying wages.

[00:50:28] Speaker 04:
That's what I was just going to say.

[00:50:29] Speaker 04:
How do you establish the discrimination on the basis of sex under the EPA?

[00:50:36] Speaker 04:
It's your view that you look to the remainder of that provision that says by paying wages.

[00:50:41] Speaker 04:
By having a business reason or something else, right?

[00:50:45] Speaker 03:
You establish the discrimination for a prima facie case.

[00:50:48] Speaker 03:
This is only the initial pleading going into court.

[00:50:52] Speaker 03:
The prima facie case is established

[00:50:54] Speaker 03:
by showing a differential in wages.

[00:50:59] Speaker 04:
Your friend's argument has a little heft to it because it goes to what we were asking you when you were first up here about 20 minutes ago, which is haven't you pledged your way out of court because you've essentially alleged what are on their face legitimate business reasons for this pay disparity.

[00:51:19] Speaker 04:
In other words, something other than sex.

[00:51:21] Speaker 04:
And if that is the case, you lose.

[00:51:24] Speaker 03:
Well, I'm not admitting that they're legitimate.

[00:51:27] Speaker 03:
I'm stating that that's what has been offered as the reasons, and that they're not legitimate.

[00:51:32] Speaker 03:
I'm challenging that.

[00:51:33] Speaker 03:
Well, my client is challenging that.

[00:51:34] Speaker 03:
It's pouring the complaint.

[00:51:36] Speaker 03:
We're not acknowledging the legitimacy.

[00:51:39] Speaker 03:
The question that's going to occur, should this case go back to the claims court?

[00:51:43] Speaker 03:
Eventually, that court, possibly this court, will have to determine whether

[00:51:50] Speaker 03:
One of these affirmative defenses can be challenged as an illegitimate business reason or not.

[00:51:55] Speaker 03:
Two courts of appeals say no.

[00:51:57] Speaker 03:
Two courts of appeals say yes.

[00:51:59] Speaker 03:
This court has not yet spoken.

[00:52:01] Speaker 03:
The Supreme Court certainly hasn't said so.

[00:52:03] Speaker 03:
It's an important question, but it's not one that can be decided just on the basis of speculation and argument here.

[00:52:09] Speaker 03:
My friend at the Justice Department is doing a great job, but in the wrong court.

[00:52:14] Speaker 03:
It's in the claims court where these arguments should be advanced.

[00:52:17] Speaker 04:
And your position is what?

[00:52:18] Speaker 04:
They would come up under summary judgment?

[00:52:22] Speaker 03:
Summary judgment or trial.

[00:52:23] Speaker 03:
I don't know how it would go.

[00:52:25] Speaker 01:
I think I'm still back at the prima facie case, though.

[00:52:28] Speaker 01:
If you alleged, I'm a man.

[00:52:32] Speaker 01:
There's two women.

[00:52:33] Speaker 01:
We do the same work.

[00:52:35] Speaker 01:
They get paid more than I do.

[00:52:38] Speaker 01:
And then you're probably good at that point.

[00:52:40] Speaker 01:
But if you go further and then say, they get paid more than I do and they're women.

[00:52:44] Speaker 01:
We do equal work.

[00:52:45] Speaker 01:
But they don't get paid more than I do because they're women.

[00:52:48] Speaker 01:
Have you stated a claim?

[00:52:49] Speaker 01:
Have you made out a premeditation case, or have you not?

[00:52:51] Speaker 01:
If I... And I'm not suggesting you drafted it that poorly, just hypothetically.

[00:52:57] Speaker 03:
If I plead it that poorly, I should not be pleading at all.

[00:52:59] Speaker 01:
Yeah, I'm not suggesting we do.

[00:53:00] Speaker 03:
No, it shouldn't be here.

[00:53:01] Speaker 03:
No.

[00:53:03] Speaker 03:
If that were the case, I think as a judge I would look at it and say, what would you like to amend?

[00:53:08] Speaker 03:
No?

[00:53:09] Speaker 03:
All right, you're out of court.

[00:53:10] Speaker 03:
No, I would agree with you.

[00:53:13] Speaker 03:
If that's all there was, there wouldn't be any need.

[00:53:15] Speaker 01:
So if that were how we read it, then you've opened the door and closed the door.

[00:53:18] Speaker 03:
I'm not saying that's how we read it, but if we did... No, my intent was to provide a plain, concise statement of the claim, incandor to the court, providing the essential facts, but also recognizing the argument that the defenses here are not legitimate, and that needs to be decided as a matter of law.

[00:53:35] Speaker 03:
That was my intent, and I may have failed, but I certainly tried.

[00:53:40] Speaker 02:
To what extent, counselor, did, because of the shifting of arguments that we were talking about that occurred, to what extent did Yance still affect the ultimate decision of the Court of Federal Claims?

[00:53:56] Speaker 03:
Well, I mean, the Court of Federal Claims, in its decision, relied

[00:54:03] Speaker 03:
upon yant.

[00:54:04] Speaker 03:
They didn't rely upon it.

[00:54:06] Speaker 03:
The judge below did not talk about the alternate theories that my friend here in the Justice Department is suggesting.

[00:54:13] Speaker 03:
It was yant amplified by Gordon, both in the text.

[00:54:17] Speaker 02:
So it wasn't based on a rationale or reasoning that was non-yant-based.

[00:54:25] Speaker 02:
I missed the last three words.

[00:54:26] Speaker 02:
It was not yant-based.

[00:54:30] Speaker 03:
No, the court did not go beyond, as I recall it, discussion of Yant and Gordon.

[00:54:38] Speaker 03:
In fact, the court explained in a footnote that I had cited a case to the court from the claims court that had recognized Yant, which I did because I'm bound to do so.

[00:54:49] Speaker 03:
I have to tell the court its own authorities.

[00:54:52] Speaker 03:
But the focus of the claims court judge was on Yant and Gordon, Your Honor.

[00:54:57] Speaker 04:
But his position today seems to be very close to that, next to the last paragraph on Appendix 4 of the Court of Claims opinion, where all he says there is the complaint affirmatively acknowledged that no sex-based discrimination caused the differences in pay.

[00:55:16] Speaker 04:
And then he cites it all promptly.

[00:55:19] Speaker 03:
Can I chat with you, please?

[00:55:21] Speaker 04:
The last paragraph on page 4.

[00:55:26] Speaker 03:
I think that may have been an overstatement by the court of how the complaint was structured.

[00:55:36] Speaker 03:
The complaint did not affirmatively acknowledge that no sex-based discrimination caused the difference in pay.

[00:55:43] Speaker 03:
That's the ultimate conclusion of law.

[00:55:46] Speaker 04:
Well, I think maybe the judge was relying on the concern we all had about coming up and saying they had to apply and so forth.

[00:55:53] Speaker 04:
That's where I think it came from.

[00:55:54] Speaker 03:
I thought the complaint was clear.

[00:55:56] Speaker 03:
It alleged the disparity, the difference in sexes, the course of development of the disparity, and the fact that the reasons offered, that is, for example, the existence of the program, the application period, the finances, they were not legitimate business reasons.

[00:56:15] Speaker 03:
We did not acknowledge that no sex-based discrimination caused a difference.

[00:56:19] Speaker 03:
We believe that the Equal Pay Act was violated, and the Equal Pay Act does talk about

[00:56:24] Speaker 03:
differentiation of pay based on sex.

[00:56:28] Speaker 03:
We will get there, but first you have to examine the affirmative defenses.

[00:56:34] Speaker 04:
Okay.

[00:56:35] Speaker 04:
Your Honor, thank you so much.

[00:56:36] Speaker 04:
We thank both sides, appreciate their time and efforts, and the cases submitted.

[00:56:43] Speaker 04:
That concludes our proceeding for this morning.