[00:00:00] Speaker 00:
Our final case for argument today is 23-1823, Lesko versus United States.

[00:00:06] Speaker 00:
Is it Cora Villas?

[00:00:07] Speaker 04:
Cora Villas, yes.

[00:00:09] Speaker 00:
Got it.

[00:00:10] Speaker 00:
Please proceed.

[00:00:10] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:12] Speaker 04:
My name is Dmitri Cora Villas, and I represent the talent, Julian Lesko, in this case.

[00:00:17] Speaker 04:
As background for the audience here, Ms.

[00:00:19] Speaker 04:
Lesko was a registered nurse who worked for the government, specifically the Indian Health Service.

[00:00:24] Speaker 04:
And this case concerns claims by her that she and other similar workers were not paid properly by the government, specifically and most importantly during the COVID pandemic when hospitals and nurses were stretched to their limits.

[00:00:35] Speaker 00:
They didn't get overtime.

[00:00:37] Speaker 04:
That's right.

[00:00:37] Speaker 04:
Claims for overtime and also premium pay for nighttime, holiday, weekend work.

[00:00:43] Speaker 04:
This appeal is made on a few grounds, but first among them is what I think is a very important and timely issue that concerns whether and how the judiciary goes about deciding how a congressionally enacted statute can or should be modified by a agency implemented regulation.

[00:01:02] Speaker 04:
This is a very fitting topic, I think, for an academic study, perhaps the most purely legal issue that the court's considering today.

[00:01:09] Speaker 00:
And raises Loper, right?

[00:01:12] Speaker 00:
That's right.

[00:01:12] Speaker 00:
Loper is a big deal in this case because you have to get past Doe.

[00:01:20] Speaker 00:
We have a prior decision that relied, for Chevron purposes, relied on an agency interpretation that you don't like.

[00:01:28] Speaker 04:
That's exactly correct, Your Honor.

[00:01:30] Speaker 04:
We have a case law history spanning over 60 years, since 1956, when a predecessor to this Federal Circuit Court, the Court of Claims, first looked at this issue.

[00:01:39] Speaker 00:
Anderson.

[00:01:40] Speaker 04:
And let me define what the issue is for, I know the court's familiar with it, but for the audience.

[00:01:44] Speaker 04:
We have, on the one hand, a statute, Title V, Section 5542, which authorizes overtime compensation for federal employees that is, quote, officially ordered or approved.

[00:01:56] Speaker 04:
The courts, as Loper now has commanded post Chevron deference, exercise their independent judgment as early as 1956 to define what that means and look at the issue of whether it includes inducement, overtime work that is officially ordered by way of inducement, meaning expected, required, encouraged to be performed.

[00:02:18] Speaker 04:
But on the other hand, we have a regulation implemented by the Office of Personnel Management, which says you cannot get overtime compensation if the work is not officially approved in writing.

[00:02:30] Speaker 04:
That's 5 CFR 550.111, subsection C. I intend today, during a role argument, to focus primarily on the viability of that inducement theory.

[00:02:40] Speaker 04:
I'm happy to answer whatever questions the court may have about the other issues raised in the appeal.

[00:02:44] Speaker 04:
We think they are adequately addressed in the paper, but I certainly don't have much to add.

[00:02:50] Speaker 04:
I want to note that this case comes to the court at the pleading stage.

[00:02:54] Speaker 04:
The question here is not an argument by the government that inducement was not sufficiently pled.

[00:02:59] Speaker 04:
The question is, is it a viable theory of recovery for overtime compensation under the statute?

[00:03:05] Speaker 04:
So if we prevail on this appeal, it does not mean that we'll prevail on merits.

[00:03:09] Speaker 00:
It means that- So what is the difference between, is there any difference between this case and Doe?

[00:03:15] Speaker 00:
Because we have

[00:03:16] Speaker 00:
You started by saying for 65 years, the predecessors to this court in Anderson said inducement falls within the definition of officially ordered or approved.

[00:03:27] Speaker 00:
But then Doe came along.

[00:03:28] Speaker 00:
And what did Doe do?

[00:03:30] Speaker 04:
Well, Doe held that the writing regulation was enforceable.

[00:03:34] Speaker 04:
And I think the key difference here, aside from the fact that different types of employees are involved, is that we would respectfully submit Doe was wrongfully decided by the Federal Circuit.

[00:03:42] Speaker 03:
And the errors in Doe were- And this panel can't overturn the Doe decision.

[00:03:46] Speaker 04:
Well, actually, Your Honor, that's not true.

[00:03:49] Speaker 04:
Because the reason that Doe is wrongfully decided is because Doe did not have the power to overturn Anderson.

[00:04:00] Speaker 04:
In Anderson, the predecessor to this court, which this court cannot overturn unless it's en banc or there's intervening Supreme Court precedent, looked at this issue.

[00:04:12] Speaker 04:
And specifically, they said that the statute has a mandate to pay for overtime compensation, including that is induced.

[00:04:21] Speaker 04:
It said that that mandate is overriding.

[00:04:23] Speaker 04:
And in the facts of Anderson, which involved a sort of similar situation, different types of workers, patrol border officers who similarly had to work 24 hours a day.

[00:04:32] Speaker 00:
Well, hold on a sec.

[00:04:32] Speaker 00:
The one thing is, in Anderson, there wasn't a writing requirement, was there?

[00:04:37] Speaker 04:
No, Your Honor, that's not correct.

[00:04:39] Speaker 00:
There was a writing requirement.

[00:04:40] Speaker 04:
There was a writing requirement.

[00:04:41] Speaker 04:
That's the regulation.

[00:04:43] Speaker 04:
There was a regulation.

[00:04:44] Speaker 04:
That is what Anderson was about, was invalidating that, was an executive order regulation.

[00:04:48] Speaker 03:
Here's the thing, though.

[00:04:51] Speaker 03:
It's a big ask to ask us to conclude that an earlier panel decision from this court

[00:04:59] Speaker 03:
made a ruling that it lacked authority because it conflicts with an even earlier panel decision.

[00:05:05] Speaker 01:
Does that Mercier do some work for you?

[00:05:09] Speaker 01:
Let me just finish this.

[00:05:12] Speaker 03:
It's our obligation to try to reconcile our panel decisions and work as hard as we can before we would have reached such a conclusion.

[00:05:21] Speaker 03:
And maybe one way to do that here is that Anderson was pre-Chevron.

[00:05:27] Speaker 03:
So Anderson came out in the 1950s or 60s, I can't remember.

[00:05:30] Speaker 03:
And then Chevron comes out in 1984.

[00:05:33] Speaker 03:
And then Doe in 2004 says, we're living in a Chevron world.

[00:05:38] Speaker 03:
And so Anderson didn't expressly say that this statutory term is unambiguous and clear.

[00:05:48] Speaker 03:
It just provided its interpretation as the court, giving perhaps just the best reading.

[00:05:54] Speaker 03:
And then what Doe did,

[00:05:57] Speaker 03:
post Chevron would say, well, we're going to revisit this, because now we're supposed to defer to reasonable regulations of any ambiguous statute.

[00:06:07] Speaker 03:
And the Doe Court concluded, yes, this statute is ambiguous, and so now we're going to look at the regulation.

[00:06:13] Speaker 03:
Yes, the regulation requiring writing for an approval is reasonable, and so therefore, we're going

[00:06:20] Speaker 03:
uphold what happened in Doe.

[00:06:22] Speaker 03:
So if we read those two opinions together like that, then we wouldn't say that Doe was just void ab initio as a ruling.

[00:06:34] Speaker 04:
No, Your Honor.

[00:06:35] Speaker 04:
I mean, the circumstances have changed.

[00:06:36] Speaker 04:
The case law concerning this issue spans decades, from 1956 and Anderson, pre-Chevron, including a number of additional pre-Chevron pages.

[00:06:46] Speaker 03:
I guess what I'm trying to ask you to focus on is,

[00:06:50] Speaker 03:
Rather than getting us to say, this court goofed up really badly in Doe and did something that it had no authority to do, why is it that Loper, Loperbrite, by overruling Chevron, somehow allows us to just dismantle Doe, to allow you to get back to Anderson?

[00:07:15] Speaker 04:
I think that's exactly correct, and the court should rule that way.

[00:07:18] Speaker 03:
Right, but could you give us some reasoning as to that?

[00:07:20] Speaker 03:
Because there's a paragraph very late in the Loper Brite opinion that seems to send a strong signal that its decision overruling Chevron shouldn't be understood as creating an open hunting season on all earlier decisions that ever relied on Chevron.

[00:07:44] Speaker 03:
And in fact, there's a principle of statutory stare decisis that presumptively makes all of that still good law.

[00:07:54] Speaker 03:
And the mere fact that those earlier cases relied on Chevron alone is not enough to take down those earlier holdings.

[00:08:03] Speaker 03:
So now the next question is, what do you have, aside from the mere fact that Doe relied on Chevron, that allows you to say,

[00:08:15] Speaker 03:
Hey, you can get rid of Doe and go back to Anderson.

[00:08:18] Speaker 04:
Well, I think your honor has answered his own question.

[00:08:21] Speaker 03:
The reason that- Not to my satisfaction.

[00:08:23] Speaker 04:
Let me elaborate.

[00:08:26] Speaker 04:
Our appeal here was fully briefed prior to the decision in Loper.

[00:08:30] Speaker 04:
Our arguments did not consider that initially because the case had not yet been decided.

[00:08:35] Speaker 04:
Our view is that Doe was wrongfully decided for the reasons we say in our papers.

[00:08:40] Speaker 04:
But in addition to that, now we know that Doe, which was premised on Chevron

[00:08:46] Speaker 04:
we know Chevron deference is no longer at play.

[00:08:48] Speaker 04:
However, as your honor noted, at the end of Loper, the court cautions gets upending stare decisis.

[00:08:55] Speaker 04:
But what it also says is that the mere fact that a court afforded Chevron deference to a regulation is not a reason to overturn it.

[00:09:05] Speaker 04:
The facts here are not mere.

[00:09:07] Speaker 04:
The court in Loper, the United States Supreme Court, said that courts should exercise their independent judgment in saying what the law is.

[00:09:16] Speaker 04:
That's happened here.

[00:09:17] Speaker 04:
It happened at Anderson.

[00:09:18] Speaker 04:
It happened for decades post Anderson in cases predating Chevron and post dating Chevron.

[00:09:24] Speaker 04:
A number of cases post Chevron where the courts continued to apply the rationale from Anderson and invalidated writing regulations as contrary to the statute.

[00:09:32] Speaker 04:
It was only in Doe, which was an anomalous case in the contiguous cases, where the court, relying on Chevron deference, chose to uphold the writing regulations.

[00:09:41] Speaker 03:
But the Doe decision is a well-established

[00:09:45] Speaker 03:
20-year-old decision.

[00:09:46] Speaker 03:
So it's not something that we can just so easily step aside.

[00:09:52] Speaker 03:
I'm concerned.

[00:09:55] Speaker 00:
I have a question.

[00:09:56] Speaker 00:
You say well-established, but what about Mercier?

[00:09:57] Speaker 00:
What do we do with that?

[00:09:58] Speaker 04:
Exactly.

[00:09:59] Speaker 00:
What do we do?

[00:09:59] Speaker 00:
We've got all these federal circuit and court of claims cases that are sort of at odds with each other, seemingly.

[00:10:05] Speaker 04:
That's right.

[00:10:05] Speaker 04:
And footnote, this is why this is quite an academically interesting issue, because this court, I believe it's the first time this court or any federal court.

[00:10:13] Speaker 00:
I don't think anybody's ever orally footnoted.

[00:10:15] Speaker 00:
And just to be clear, if your argument's only in a footnote, we don't even read it.

[00:10:19] Speaker 00:
So don't footnote yourself and keep talking.

[00:10:22] Speaker 04:
My point is that this is the first time the federal circuit, or I think any circuit, has had an opportunity to not just address the impact of low birth, but in a context where there's a very long history of seemingly conflicting opinions.

[00:10:36] Speaker 04:
So Judge Sol's question earlier, MercyA does a lot of the work that Your Honor Judge Shen is asking about.

[00:10:41] Speaker 04:
It identifies the error in Doe.

[00:10:43] Speaker 04:
Chief among them that Doe did not have the authority to overrule Anderson in its determination of the scope of the statute.

[00:10:50] Speaker 00:
It said that.

[00:10:51] Speaker 00:
It said that.

[00:10:51] Speaker 00:
You're right.

[00:10:52] Speaker 00:
It really took Doe to task.

[00:10:54] Speaker 00:
But isn't that fairly characterized all as dictum?

[00:10:57] Speaker 00:
Because at the end of the day, in Mercier, unlike in Anderson, there was no writing requirement of that, I'm sure.

[00:11:03] Speaker 00:
There was no regulation.

[00:11:05] Speaker 00:
So in Mercier, at the end,

[00:11:07] Speaker 00:
Didn't they distinguish Doe?

[00:11:09] Speaker 00:
I mean, yes, they took it to task.

[00:11:11] Speaker 00:
They said it's awful in all these ways.

[00:11:13] Speaker 00:
But at the end of the day, they distinguished it, didn't they?

[00:11:16] Speaker 00:
I didn't see them saying, we don't follow Doe because Anderson proceeded it.

[00:11:21] Speaker 04:
Mercier, as this court has noted, is intended to do here, to reconcile this case law, went to great length to not contradict Doe and to reconcile itself with Doe.

[00:11:31] Speaker 04:
And it is true that in Mercier, which was a Title 38 case, there was no regulation specific to Title 38.

[00:11:40] Speaker 04:
order or approved language in section 5542 of Title V, compared it to this exact same statutory language in Title 38, which was at issue in Mercier, said that the Title V language was subject to decades of this writing regulation, and said that the order or approved language should have the same meaning.

[00:12:01] Speaker 04:
So we are left with the task instructed from Loper for this

[00:12:07] Speaker 04:
and doesn't encompass an inducement theory.

[00:12:09] Speaker 01:
So just to be clear, Mercier says, it says that Doe doesn't overrule the interpretation first set forth 70 years ago in Anderson, right?

[00:12:19] Speaker 01:
Correct.

[00:12:20] Speaker 04:
In fact, it says Anderson remains good law on the topic of what the statute means.

[00:12:25] Speaker 03:
It also said Doe remains good law.

[00:12:28] Speaker 04:
Well, it said that it was not undermining Doe's chevron deference afforded to the regulation.

[00:12:33] Speaker 04:
But now we have an intervening Supreme Court precedent that has disregarded, or rather overruled, the Chevron deference framework.

[00:12:40] Speaker 04:
And the court is left with the task of, as the lower instructed at the end, what do you do when a case relied previously on Chevron deference?

[00:12:49] Speaker 04:
But that's not the mere argument that is being made as to why it should be appended.

[00:12:53] Speaker 00:
All right, Mr. Corvillis, do you want to save some time for rebuttal?

[00:12:56] Speaker 00:
Yes, sure.

[00:12:56] Speaker 03:
I just have one quick question about your subdelegation argument about converting over to Title 38.

[00:13:02] Speaker 03:
Do you want this court to actually analyze all of these various documents and get to the merits of what's the correct understanding of a sub delegation or is it your view that

[00:13:15] Speaker 03:
It was impermissible for the lower court to even be considering these documents at a motion to dismiss stage.

[00:13:21] Speaker 03:
And so therefore, for that reason alone, procedurally, the district court's decision needs to be upended.

[00:13:30] Speaker 04:
Which one is it?

[00:13:31] Speaker 04:
It's the latter.

[00:13:32] Speaker 04:
But also, it's the fact that we don't have the information about how the delegation was properly documented.

[00:13:38] Speaker 04:
The information that's been provided is not complete.

[00:13:41] Speaker 00:
OK.

[00:13:42] Speaker 00:
Thank you.

[00:13:49] Speaker 00:
Is it Miss Geddes?

[00:13:50] Speaker 00:
Yes, Geddes.

[00:13:51] Speaker 00:
Geddes, thank you.

[00:13:54] Speaker 02:
Good morning, Your Honors.

[00:13:55] Speaker 02:
May it please the Court?

[00:13:56] Speaker 02:
I want to start by briefly apologizing.

[00:13:58] Speaker 02:
In my brief, I did make an error and represent that Anderson, there was no- Yes, page 15.

[00:14:04] Speaker 02:
Yep.

[00:14:04] Speaker 02:
Yes.

[00:14:05] Speaker 02:
So there was a writing requirement in Anderson.

[00:14:09] Speaker 02:
But the situation here is,

[00:14:11] Speaker 02:
On their surface, it looks like some of these cases are in tension with each other or that there may be conflicts or confusion here.

[00:14:19] Speaker 02:
But that's not the case once we delve into the details.

[00:14:22] Speaker 02:
This court was actually extremely thorough in its opinions in Doe and in Mercier.

[00:14:28] Speaker 02:
And there's no conflict here.

[00:14:29] Speaker 02:
I think the issue is that there were two separate facts.

[00:14:31] Speaker 00:
Just out of curiosity, you don't think that the panel in Mercier had a problem with Doe and articulated it?

[00:14:36] Speaker 00:
You don't think there's any conflict between any of the language in those two opinions?

[00:14:41] Speaker 02:
No, Your Honor, and if you'd like to point me to a specific aspect you're talking about, but Mercier said that the Anderson holding, as far as Anderson's interpretation of the phrase, officially ordered and approved, remains good law.

[00:14:57] Speaker 03:
But Anderson... So how could Doe have said what it said?

[00:15:03] Speaker 03:
That, oh, the statute's ambiguous.

[00:15:05] Speaker 03:
We don't know what the right meaning of it is.

[00:15:08] Speaker 03:
When Anderson, many decades earlier,

[00:15:11] Speaker 03:
had proclaimed what the very interpretation of officially ordered or approved is, which is there's no writing requirement required.

[00:15:20] Speaker 02:
Yes.

[00:15:21] Speaker 02:
And Anderson reached that conclusion after setting aside the regulation that created an in-writing requirement.

[00:15:26] Speaker 02:
In Anderson, the court believed that the agencies did not have the authority to pass regulations that constrained the substantive rights in the statute.

[00:15:37] Speaker 02:
But Doe very explicitly- And then stepped forward and then

[00:15:40] Speaker 03:
did its duty as a court, which was to provide an interpretation of the statute.

[00:15:46] Speaker 02:
Yes, but at that stage, that was when there was no agency interpretation.

[00:15:50] Speaker 02:
But there was a regulation.

[00:15:52] Speaker 02:
There was a regulation, yes.

[00:15:54] Speaker 03:
That's an agency interpretation.

[00:15:56] Speaker 02:
Right, I'm saying though, so what Doe

[00:16:00] Speaker 02:
Doe found that that aspect of Anderson's decision was no longer good law.

[00:16:04] Speaker 02:
And the reason Doe did that was because there was an intervening authority by the Supreme Court in Schweiker versus Hanson.

[00:16:10] Speaker 02:
Wasn't the intervening authority Chevron?

[00:16:14] Speaker 02:
That was another intervening authority.

[00:16:16] Speaker 02:
But that's why we need to sort out these two aspects of Anderson.

[00:16:19] Speaker 02:
First, there was Anderson's view that an agency could not pass regulations that constrained the rights established by the statutes.

[00:16:27] Speaker 02:
That's what Doe found to no longer be good law in light of Schweiker versus Hanson.

[00:16:32] Speaker 02:
The next part of Anderson, having set aside that regulation, was determining in the first instance what ordered and approved means and concluding that that language itself, with no interpreting regulation, having already set that regulation aside, did not have a writing requirement.

[00:16:48] Speaker 02:
So Doe very explicitly says that that aspect of Anderson is no longer good law.

[00:16:55] Speaker 02:
And though remains binding on this court, as the court has noted, Loper says that past cases, just because they relied on the Chevron framework, that does not mean they are no longer good law.

[00:17:06] Speaker 02:
They are still entitled to.

[00:17:07] Speaker 03:
At the same time, the Supreme Court and Loper-Brite suggested there can be opportunities or reasons or bases why to revisit old interpretations that rely on Chevron and overturn them.

[00:17:22] Speaker 03:
What do you think those grounds are?

[00:17:25] Speaker 02:
So I think the court's referring to the sorts of special circumstances where a stare decisis might be overcome.

[00:17:32] Speaker 02:
Right.

[00:17:32] Speaker 02:
Well, first of all, there's no reason that Lover would mean that this court can now, without sitting en banc, decide that some interest outweighs stare decisis.

[00:17:43] Speaker 03:
But in this case... I'm asking you a question, though.

[00:17:46] Speaker 03:
The Supreme Court left it open.

[00:17:50] Speaker 03:
There can be reasons, there can be grounds to revisit

[00:17:54] Speaker 03:
an earlier precedent that relied on Chevron.

[00:17:58] Speaker 03:
So what is the government's view of what those kinds of grounds or bases are or can be?

[00:18:07] Speaker 02:
I'm not sure what sorts of special circumstances might justify

[00:18:12] Speaker 02:
overcoming stare decisis, it varies from case to case.

[00:18:16] Speaker 02:
But Ms.

[00:18:16] Speaker 02:
Lesko has not made any argument that any special justification is present in this case.

[00:18:21] Speaker 01:
And it's hard.

[00:18:23] Speaker 01:
I heard an argument being made that the existence of Anderson before, and this is kind of different than many other scenarios, and that you've got an interpretation of statutory language.

[00:18:36] Speaker 01:
And then there's a later interpretation.

[00:18:39] Speaker 01:
Doe is later in time.

[00:18:41] Speaker 01:
What precedent do we follow, by the way, as a court?

[00:18:44] Speaker 01:
For the students here in the room, what precedent would we follow if we had two conflicting precedents?

[00:18:50] Speaker 01:
Would we follow the older one or the newer one?

[00:18:52] Speaker 02:
You would follow the older one.

[00:18:54] Speaker 02:
But in this case, though, it could not have been more clear that it found Anderson to no longer be good law following Hanson.

[00:19:03] Speaker 01:
But what about not with respect to a situation where there wasn't an agency determination that was

[00:19:11] Speaker 01:
afforded Chevron deference, right?

[00:19:15] Speaker 02:
Well, prior to reaching the Chevron analysis.

[00:19:19] Speaker 01:
I mean, how could Doe overrule Anderson?

[00:19:22] Speaker 01:
Doe did not.

[00:19:23] Speaker 01:
It had to do so narrowly, right?

[00:19:25] Speaker 02:
The Supreme Court overruled Anderson in Schweiker versus Hanson.

[00:19:29] Speaker 02:
Doe was indeed.

[00:19:31] Speaker 02:
No, but this court in Doe, which is binding precedent, found that the Supreme Court had overruled that aspect of it.

[00:19:37] Speaker 01:
How do you square that with Mercier?

[00:19:39] Speaker 01:
You disagree with Mercier's discussion?

[00:19:41] Speaker 01:
Because Mercier says that Doe allowed the interpretation in Anderson to exist absent a situation where there was a regulation being afforded Chevron deference, right?

[00:19:55] Speaker 02:
Yes.

[00:19:56] Speaker 02:
Yes, I don't disagree with Mercier.

[00:19:58] Speaker 02:
Mercier, as I understand it, says that where a regulation has set a writing requirement.

[00:20:05] Speaker 01:
So just to be clear then, Doe hasn't overruled Anderson.

[00:20:09] Speaker 02:
Doe did not overrule Anderson.

[00:20:11] Speaker 02:
Doe simply recognizes that the Supreme Court had overruled the aspect of Anderson that believed an agency could not pass regulations that set constraints on the statutory rights.

[00:20:23] Speaker 03:
Going back to Anderson, there was a regulation at that time that had a writing requirement for approval.

[00:20:31] Speaker 03:
And that aspect of Anderson said, well, there's no way you're allowed as an agency to put this kind of procedural requirement that curbs and cabins in the substantive rights of somebody.

[00:20:44] Speaker 03:
And that aspect is what the Doe Court said the Supreme Court opinion overruled

[00:20:53] Speaker 03:
of Anderson, but Doe didn't say anything that Anderson's statutory interpretation, putting aside the regulation and just looking at the statute and its interpretation that it's wrong to read in or writing a requirement of the statute, that was not overruled.

[00:21:10] Speaker 02:
I don't know.

[00:21:10] Speaker 02:
Precisely.

[00:21:11] Speaker 02:
And I think Mercier lays that out very well.

[00:21:16] Speaker 02:
So there is no facial conflict between these cases.

[00:21:19] Speaker 02:
There's just a bit of nuance that is a little bit confusing at first.

[00:21:23] Speaker 02:
Anderson, it predated, most importantly, Hanson.

[00:21:28] Speaker 02:
But as this court has noted, it also predated Chevron.

[00:21:31] Speaker 03:
So I guess it comes down to why is the other side wrong to say that maybe this case is an example of one of those special circumstances that Loper-Bright was suggesting and hinting at, where it is

[00:21:49] Speaker 03:
an opportunity to revisit the Doe-Chevron reliance opinion, given the fact that there was a many decades earlier precedent of what a straight statutory interpretation is of officially ordered or approved.

[00:22:05] Speaker 03:
And given that backdrop, it's appropriate now to take a second look at Doe and conclude its reliance on Chevron is not really controlling anymore.

[00:22:20] Speaker 02:
Yeah, there are several reasons that that is not compelling.

[00:22:22] Speaker 02:
First of all, there was a line of cases predating Anderson where the courts did strictly apply the right requirement.

[00:22:29] Speaker 02:
So it's not as though everything was uniform up until Doe.

[00:22:32] Speaker 02:
Second of all, as this court has recognized, Doe has been the law for 20 years.

[00:22:37] Speaker 02:
Congress has had an opportunity to do it.

[00:22:38] Speaker 00:
I guess this is exactly the situation.

[00:22:40] Speaker 00:
The situation is the cases were all over the place.

[00:22:44] Speaker 00:
You had Anderson, you had some other cases that went a different way, then you had Doe, then you have Mercier, which respectfully, I think, really throws some

[00:22:52] Speaker 00:
curveballs at Doe, but anyway, you have all these back and forth, back and forth.

[00:22:57] Speaker 00:
Why isn't that exactly the kind of case that Loper anticipates creating a vehicle for reconsidering if the one of those decisions along the way relied almost exclusively and entirely on Chevron for overturning all of the other decisions?

[00:23:14] Speaker 00:
Why isn't that exactly the case where starry decisis is not really the same

[00:23:20] Speaker 00:
concern because you have cases on both sides over time all over the place.

[00:23:26] Speaker 00:
Why isn't that right?

[00:23:28] Speaker 00:
Why isn't that exactly?

[00:23:29] Speaker 00:
They did use the word mirror in that paragraph for Loper.

[00:23:35] Speaker 00:
Mirror reliance on Chevron difference.

[00:23:38] Speaker 00:
Here we have so much more.

[00:23:40] Speaker 00:
We have all of this question about which way stare decisis actually cuts because I think there were more years with Anderson than there were with Doe.

[00:23:48] Speaker 00:
I don't know.

[00:23:48] Speaker 00:
What happens?

[00:23:50] Speaker 02:
Well, the main thing that developed since Anderson wasn't the Chevron framework for interpretation.

[00:23:54] Speaker 02:
It was the question of the agency's ability to set regulations to administer their statutory mandates.

[00:24:01] Speaker 02:
So perhaps the most important language in LOPR isn't just its language about stare decisis.

[00:24:07] Speaker 02:
It also acknowledges the distinction between mere interpretations and agencies exercising their delegated authority to pass substantive regulations.

[00:24:17] Speaker 02:
So what the court says in Loper at 2263, it acknowledges that Congress often, quote, delegates to an agency the authority to give meaning to a particular statutory term.

[00:24:28] Speaker 00:
And in those cases- But let's just forget about everything else.

[00:24:33] Speaker 00:
Everything.

[00:24:34] Speaker 00:
Officially ordered.

[00:24:36] Speaker 00:
or approved.

[00:24:39] Speaker 00:
That's what Congress said.

[00:24:40] Speaker 00:
They said people get overtime compensation when it's officially ordered or approved.

[00:24:45] Speaker 00:
Now, suppose in this case, and I think the facts exactly right, so we'll call it a hypothetical.

[00:24:49] Speaker 00:
Suppose in this case, this nurse was ordered by her supervisor under threat of termination during COVID to remain on the job and work overtime.

[00:24:58] Speaker 00:
And he even told her, and you're going to get paid for it.

[00:25:01] Speaker 00:
That's not officially ordered or approved under the statute.

[00:25:05] Speaker 00:
She was forced to stay under threat of termination in an emergency and did so.

[00:25:10] Speaker 00:
She doesn't get overtime pay.

[00:25:11] Speaker 00:
You think Congress intended to delegate to the agency the ability to say, no, no, our time for you.

[00:25:19] Speaker 02:
Obviously, that would be a very extreme case.

[00:25:21] Speaker 02:
But yes, Congress delegated to the agency the authority to pass laws and go- Did it contradict the clear language of the statute?

[00:25:29] Speaker 02:
It does not contradict the language.

[00:25:30] Speaker 02:
It simply sets regulatory requirements.

[00:25:33] Speaker 00:
This court recognized- This isn't a regulatory requirement.

[00:25:36] Speaker 00:
Ordered or approved, clearly, the plain language of that could include both verbal and written, couldn't it?

[00:25:43] Speaker 02:
Yeah, and that's what this court found in Anderson.

[00:25:46] Speaker 00:
Yes.

[00:25:46] Speaker 00:
So the plain language of the statute afforded this person and all similarly situated employees a substantive entitlement to pay if they're forced to work overtime.

[00:25:59] Speaker 00:
But you're saying the agency is allowed to take back some of what Congress gave?

[00:26:03] Speaker 02:
Yes, that's exactly what the Supreme Court held in Hanson, and that's exactly why... Hanson wasn't a writing case.

[00:26:09] Speaker 00:
In fact, by the way, just to be clear, at Doe, you guys had no explanation for Hanson.

[00:26:13] Speaker 00:
Hanson came out of the blue, and you couldn't point to any language in Hanson that supported the outcome that Doe ultimately adopted.

[00:26:19] Speaker 00:
You all were your own worst enemy in that case, but Judge Dyke came along and saved you.

[00:26:24] Speaker 00:
So, what is it about Hanson that says that the government can take away Congress's entitlement to employees for overtime?

[00:26:34] Speaker 02:
Bill Hanson was about the Social Security Act.

[00:26:36] Speaker 02:
It wasn't about overtime.

[00:26:37] Speaker 02:
But the point was that the agency passed regulations to administer the Social Security Act that set procedural requirements that were not present in the statute itself.

[00:26:49] Speaker 02:
And the Supreme Court found that it was allowed to do so.

[00:26:51] Speaker 02:
And in Doe, before even touching the Chevron analysis, this court said that that aspect of Anderson had been overruled.

[00:26:58] Speaker 02:
And Doe discussed the fact that the statute at issue here

[00:27:02] Speaker 02:
gave the agency the right to not only interpret the terms of the statute, but to pass substantive regulations.

[00:27:09] Speaker 02:
That language in Doe had nothing to do with the Chevron analysis and has not been changed.

[00:27:13] Speaker 03:
You'd also found that the statute was ambiguous, right?

[00:27:17] Speaker 02:
Yes.

[00:27:18] Speaker 03:
And how do you reconcile that with Anderson, which didn't seem to have any problem interpreting the same term?

[00:27:27] Speaker 02:
I don't think Anderson ever had a reason to specifically consider whether the statute was ambiguous, because it wasn't the client's.

[00:27:35] Speaker 02:
But they interpreted it.

[00:27:36] Speaker 01:
They interpreted it, yes.

[00:27:37] Speaker 01:
So if you interpret something, doesn't that mean that you think that it's not ambiguous?

[00:27:42] Speaker 01:
How can you interpret something if it's ambiguous?

[00:27:44] Speaker 01:
Well, the court has to interpret it, whether it considers it ambiguous or not.

[00:27:48] Speaker 01:
So the only time you get to the question of whether something is ambiguous is because you've used all your canons of construction

[00:27:55] Speaker 01:
And then you still can't figure out what it means, right?

[00:28:01] Speaker 01:
Yeah, I suppose that would usually be the case.

[00:28:03] Speaker 01:
That is usually the case.

[00:28:05] Speaker 01:
And so therefore, it does seem inconsistent, right?

[00:28:10] Speaker 02:
I can't say whether the Anderson Court would have found the statute to be ambiguous.

[00:28:13] Speaker 02:
It ultimately ruled on its interpretation, but it had no choice other than to do so.

[00:28:17] Speaker 00:
But you and I both agreed a few minutes ago that the plain meeting of officially ordered or approved

[00:28:23] Speaker 00:
included both writing and oral orders.

[00:28:27] Speaker 00:
So where is the ambiguity?

[00:28:30] Speaker 00:
Where is the ambiguity if we both agree the plane meeting includes both?

[00:28:34] Speaker 02:
Well, it's not about ambiguity after Loper made clear

[00:28:37] Speaker 02:
that when an agency is exercising its delegated authority to pass regulations to administer its statutory mandate, the question is not the Chevron question about ambiguity.

[00:28:48] Speaker 02:
The question, and I'm quoting Loper here, is simply whether the agency has engaged in reasonable decision making within the boundaries of the delegated authority.

[00:28:56] Speaker 00:
But that's the question here.

[00:28:57] Speaker 00:
But only if that delegated authority

[00:29:00] Speaker 00:
is clear that the agency in this case is entitled to, it seems according to you, contradict the express language of the statute.

[00:29:08] Speaker 00:
If that statute is not ambiguous, I don't see what authority you have for the proposition that you're allowed to limit an unambiguous statute.

[00:29:22] Speaker 02:
Because that's why this court found after Hanson that agencies could do just that.

[00:29:26] Speaker 02:
They can set procedural requirements for carrying out the statutory mandate so that these are administerable.

[00:29:34] Speaker 02:
And the Doe Court also got into the reason why it was reasonable for OPM to do it in this case, which is that the alternative would be that the government would have no choice but to pay employees, exempt employees, who are getting high levels of pay for work that

[00:29:51] Speaker 02:
they do sometimes on their own schedule, that they could just simply choose to come in early or stay late and then demand payment from the government.

[00:30:00] Speaker 02:
And the government won't be able to protect itself from liability.

[00:30:03] Speaker 00:
That would be a question of inducement.

[00:30:05] Speaker 00:
That would go to whether they were, in fact, induced.

[00:30:07] Speaker 00:
If they simply chose to work late or stay over, they wouldn't be induced.

[00:30:12] Speaker 00:
We have a construction that includes inducement.

[00:30:17] Speaker 02:
It includes inducement unless there is a valid regulation that has the force of law, as there is in this case under Doe.

[00:30:24] Speaker 02:
And again, the question under Loper is whether the agency engaged in reasonable decision making in setting the constraints for the rights that it was regulating.

[00:30:36] Speaker 00:
OK.

[00:30:36] Speaker 00:
Thank you, Ms.

[00:30:37] Speaker 00:
Gittes.

[00:30:37] Speaker 00:
Let's let Mr. Corvallis have a little bit of a bottle time.

[00:30:42] Speaker 00:
Give him two minutes.

[00:30:46] Speaker 00:
And you can have three if you need them, because she went over a minute and a half.

[00:30:48] Speaker 00:
So give them three minutes.

[00:30:50] Speaker 04:
I'll be brief.

[00:30:52] Speaker 04:
Your Honor, our position is not that agencies are without the ability to impose some procedural requirements.

[00:30:59] Speaker 04:
But a procedural requirement that completely undermines the breadth of the statute, there's no case that says that's OK.

[00:31:05] Speaker 04:
In Doe, when they relied on

[00:31:07] Speaker 04:
Schleicher v. Hanson, OPM v. Richmond to say that that was somehow intervening authority that undermined Anderson.

[00:31:13] Speaker 04:
Those cases involved totally different statutes, the totally different breadth.

[00:31:17] Speaker 03:
But what was the meaning of why Doe invoked Hanson?

[00:31:21] Speaker 03:
It seems to be that it's OK to put this kind of procedural requirement on officially ordered or approved.

[00:31:28] Speaker 03:
Isn't that the whole point of why Doe talked about Hanson?

[00:31:33] Speaker 04:
The error that we identify in Doe on that issue is that they failed to account for the already existing binding interpretation of the breadth of the statute and did not account for how the regulation completely undermined that.

[00:31:47] Speaker 03:
That's another argument for you asking this panel to overturn the Doe panel.

[00:31:58] Speaker 03:
And when we need to be doing that in bank, I would think.

[00:32:02] Speaker 04:
As I said in my initial argument, Your Honor, I think that is a more complicated question than that because of Anderson and because of Doe's non-ability to overrule Anderson in the first place.

[00:32:12] Speaker 03:
But I guess I'm trying to understand the government's argument.

[00:32:16] Speaker 03:
Do you have to get around both the Chevron reliance analysis in Doe and also the Hansen reliance in Doe?

[00:32:27] Speaker 03:
There's actually two different hurdles you've got to answer for.

[00:32:31] Speaker 03:
and from Doe.

[00:32:34] Speaker 04:
Perhaps two, but they ultimately boil down to the same question, which is, is the agency's exercise a reasonable thing to do in light of the statute's breadth?

[00:32:43] Speaker 04:
And our position is that it is not.

[00:32:46] Speaker 04:
It cannot and should not be the law of this country

[00:32:48] Speaker 04:
that work that is expected to be performed, required to be performed, where people could die if you don't perform it, where you're subject to discipline if you don't perform it, that you don't get paid not just overtime, but in this case, even basic rates of pay, which we were not allowed leave to amend to even claim that absent written authorization.

[00:33:08] Speaker 04:
And the court lamented the result here at the end of its order, saying essentially that it was unjust and it was a very difficult situation, but that these regulations required it.

[00:33:17] Speaker 04:
We would ask the court to reverse that.

[00:33:19] Speaker 00:
And it feels like a good place to end, doesn't it?

[00:33:27] Speaker ?:
Yeah, I think so.

[00:33:27] Speaker ?:
All right.

[00:33:28] Speaker 00:
Thank both counsel.

[00:33:29] Speaker 00:
Thank you very much.