our first appeal is still number fifteen dash five zero zero three four had opened upon today versus united states we have mr marion here ok terrific whenever you're ready morning the issue before us is whether or not the one in the regular rate is included in the payroll or as i point repost it should be calculated in the same manner as one half percent i present to you first of all two issues the two primary cases relied upon by the united states are books with weinberger in the bay ridge case they rich is based upon footnote thirty my three percent of the hundred fifty percent apparently because they're actually if you look at the calculations for example my state ten the hours the overtime hours we're on are seven twelve seven twelve of the thirty five these are the precise number that is used in the formula they use the hours over forty to calculate the point five that then turn around and say that you cannot use the over forty as an under the more under this aggregate approach for the one so there's  a logic to let me see if i can understand your argument hans let me repeat what i think is the gist of the government's understanding of how to calculate the overtime pay and then you me where they get it wrong first they assume out if they need to pay one and want to have times the for overtime and as i understand it they've deemed that they've already paid the war now you have to calculate the one half and they calculate the one half life figuring out the regular rate and then they multiply the regular rate by zero point five and then multiply that to the number of actual overtime hours worked for a given week and then they arrive at the one half and then that is what the employer gets it's do you agree with that approach t the the fundamental issue is that through the multiplier is not used and what the multiplier the the it is the point five times the regular rate and there is a multiplier under the size now went to the dean under their analysis this is an aggregate to this is a total of all that it's paid but if we look carefully at the overtime hours that should be paid for example on week one of eight point three five under the united states analysis they've paid the regular rate for the hours for the first forty they number one put the over forty hours into a bucket in pro grade of the overtime under forty and over rate is derived from the total divided by the hours but then the statute requires that you pay the one using the regular rate he would agree that the one half and the one and a half is properly calculate employees to lesser status employees day workers the chalets has workers commission workers offers free each one of these has a different rate standardless have one half only only the full time salaried employees or one twenty two or thirty three blocks real how it is that the one is calculated it's broken into different parts and if you could could you identify for me exactly which step you take issue with or where you see them departing from what you expect them to have done in their calculations at age twenty three this is the fundamental issue is that their calculation it's that disappoint because we've had issues on how they the problem is for almost magically the overtime hours that are listed and a code fifty three if you are in these two instances there's an additional fifty four and fifty five each of these are almost identical to the  what they're doing is they the apparently process as we don't know the this is where they segregate the s l s they were time how they do it but what they do is they take the one third reduction but they don't add back in they  ology they all the weekend hours and say this is your one rate this is this can't stand under the in a logical analysis if we read all the statutes if we read the case law there's been a fundamental government stroller please the court the trial court correctly held that postal service complied with the fair labor standards act and paid overtime in accordance with that act but not only did it  one theme from mr marion is that that didn't happen here and that for the overtime hours worked initial one of the one half was not paid out at the regular rate and it ought to be  so for that reason alone there's a flaw here because we need to go back in time and figure out what how was the initial one of the one and a half pay i think correct appellant to concede on page thirty  brief as well as it already is today that the government correctly calculate the regular rate so we have to understand what the regular rate is the regular rate by statute is all of the payments are made to the employee minus overtime premium d total amount of hours and so what it is is an average and so the payroll establishes that all of the various components of the regular rate were in fact paid one of those components they are for instance the base pay for all of the hours non overtime and overtime it's any different to a premium if it's the territory cost of living it doesn't all of those components were paid for all they are specifically what's important is they were paid for the overtime hours which means that the regular rate before you even get to a calculation voter time premium the regular rate has been pain here because all of those components were paid in so one times the regular rate has been paid to what you then must do is calculate what half of the regular  calculated and and so for instance on page thirty two of our brief we have a table which we lay out the various components of the regular a calculation code fifty two is the base pay that was paid for all our speculates with what's in the patient code fifty three is the post over time so for regular rate purposes only the base fortune of that goes into the regular rate but that was paid fifty for the night differential five fit if the five and six steals without overtime and overtime premium not overtime prima's included in the regular rate regardless of when it was earned one second overtime premium which is excluded from the regular rate and it's credible consolations is that they assume that the postal service is only calculating overtime with respect to the base rate times overtime hours they concede we have we get the half times room rate correct the nation that we're not paying the full one where i guess that is somewhat this is where the argument but he did mention the base rate well again his concession the pilots concession that we have calculated regular rate correctly defeats that argument because the regular rate is not just the base rate it's the base rate for all hours plus all the premium in additional premium so therefore the regular necessarily is more than just the base and so that that the fees there are going another thing i think i think is perhaps where cancer getting that confusion asked well the only thing the base rate they in their briefs continuously confuse also overtime and f l if they were trying to completely different concepts because postal over time according to the post services manual is yes it's forty if you can get overtime to all at least to a large degree of their errors in their brief in addition and this is the another error that they make in their brief and actually they can see that their math is wrong in the opening opening brief you know and they're quite brief a knowledge of the open brief calculation appear on the pay stubs they multiply that or time hours times one and a half well you can that's incorrect because one it doesn't knowledge that we've already paid all of the various components of regular rate before you get overtime so in effect give us the agency credit for having paid the regular rate results in two and half times the regular rate and that at the end of the day the error that their homes make in their apartment which i believe is the calculations that they're standing by today premium payments we're talking about the hours over forty and i'm reading strictly from the statute requires one point five times the regular rate these have been put into a pot they've been programmed over forty under in forty plus hours but the after the regular rate is more calculated and the deductions and exemptions are applied the regular rate must be applied to the one point five and in addition to what's already been paid not in addition to what there should be some loss that  example it just so happens that the two are or the same eight hour overtime is exempt you can reduce one third from they have had less overtime but the fundamental issue is that this in this court will have the great opportunity to revisit this this is not set in stone the marginal the aggregate possibly a third approach and i challenge the score to take a very i've been nervous law back and forth and it's no longer is clear that as the united states would have you present because each of the cases that they presented dealt with the specific section specific regulations of the different types of employment the only way this makes sense is under our approach if you cannot reconcile if the department of labor says point five one section a