for a finite two year period so he continued some important computer work is in new in an agreement with the department of defense expired on january third two thousand and nine when it was denied a four thousand seven hundred seventy seven dollar cherished performance bonus without normally have been paid before that's correct or honor and so what is your view of what the effective date the effective date of the rating was january first two thousand and nine so he was still employed as of the effective date of the rating so our view would be that at the very least he would be entitled to the carefulness because he was still employed as of january first well the regulations talk about the effective date of the rating but also is there something in the regulations or otherwise that tells us that that is the effective date of the pay which is the expression that's used in the regulation in the regulation they define the effective date of the salary increase as the first you have the effective date of the salary increase being defined it's silent as to the effective date of the cash payout but then we have the rating becoming effective on the first so our view is since a bonus is for work for past work that sort of thing done it should be at least if you're employed on the date of the effective date of the rating you should get the bonus for the prior years work this work was completed in september by september thirtieth the prior calendar year so you comment in the in the reg comments to the regulations and there's a a a person ted if i had retired someone had retired during the prior calendar year do they get a bonus and the regulation this guy was employed on january first right and he was not employed as of the effective date of the ratings because of rating would not have been an effective entitle entitlement to the bonus i don't think that comment really applies to our situation you make a good argument why it shouldn't be entitled to deference but doesn't the supreme court in this case case say that it isn't out of deference it's a ex post rationalization for a way to deprive the way the department of defense was depriving these people fundamentally inconsistent with the purpose of that statute and it's a fundamentally unfair result if people had done all the work that there were reports do they had done an excellent job three months earlier i mean they had worked for that entire period and just by dint of this timing issue which was really not within their control the deprive of the cash bonus to which they worked hard for and wonderful work for the government to the new calendar year the actual payment wouldn't be until the payment for that pay period went wow do we know though that the effective date for the payout that is the bonus as opposed to the s effect prior to that had the language that said the performance of the effective date of the performance payout is the first pay period of the cal the new calendar year the new system is set up as the court is aware that a payout a performance payout consists of an increase in salary a bonus or a combination of the two it is effectively increased payment in the future based it it may but in this case i don't think that it does and i don't believe in and was intended as the court has already referenced a question along those lines came up during the notice and comment period the agency responded and said no if you retire before the end of the year or you're not there on the the affected payout you are not eligible but you wouldn't if you the child was for the end of the year you wouldn't be there on the effective date of the rating either so that that doesn't necessarily answer the question does it well the effective did raise another point in the news the ratings are still going to be affected on on january want to mean if you're getting rated for that appraisal period then it is often important are often critical that employees have a rating of record so even if you leave sometime after the rating period and before the rating becomes effective or even a few days after the rating becomes effective you will still have a rating of which did not actually become effective until january first and the payout associated with that rating of records is then made in connection with the first pay period thereafter which is the first pay period of the new different as i said these regulations didn't actually go into effect until november two thousand and eight we're talking about a rating period that ended at the end of september two thousand and eight nevertheless the agency said when it promulgated the regulations after notice and com t period that it didn't it was simply codified in the earlier regulations and didn't see any substantive change and as represented by the agencies comment during the notice and comment period the agency sad if you're not here we didn't do is as good a job as we would have liked to to the extent there was confusion other than it appears that as it always had been the agency was saying it's still is that the performance payout consist of one or both one or the other or both of a salary increase and a bonus payment and the rating effective is not until january first the payout is effective the first pay period thereafter and if you are not employed under the n s t s system then you are not eligible for the payout when when the effective date arrives in let's assume the world and our situation that the process and the position taken over which i think are entirely consistent and what doesn't chase suggest that a position taken a party bri baby is an entirely different well chit chat the chase makes a comment that as you're on a mission before it was dealing with and with his breaks from the agency and the cases it references we're dealing with and which is worrisome the agency and add support to giving them deference with the comment that this is not an agency position taken in response to an attack and as i say neither is the agency commented during the comment the notice and comment proceedings on the regulation and the position in our brief is in typical bureaucratic clarity that the money the good that can go into the paper will mean basically every step of this process is discretionary and management and  whether someone receives a performance award should never be considered mandatory but the money that goes into that potentially can go into the payment pool is the money made available for federal employee pay raises which everywhere else in the government go into effect in the first pay period of the next calendar year after congress appropriates the money the president decides what the pay raise is going to be and the made to the different agencies that money the president the secretary of the department of defense can decide how much of that money what percentage of that money he wants to use to make performance pay out but you're not arguing that that discretion over the entirety of the program would give the discretion to not give a payout if the regulations dictate it one would is that the entire process is geared toward making the payout available in the first pay period of the next calendar year that's when the money is available for all of the other pay raises for all of the other federal employees that's when the money becomes available for these pay raises which under this system are a bit more flexible because if it's it's possible that it's not just a straight pay raise it could be a salary increase which continues on and on as long as you're employed it could be a bonus or it could be split as a combination of the two that that's the the essential process that wasn't change here the same money is being used as is used for all other pay raises which go into effect in the first pay period of the new calendar year it's just being used a little bit differently and for increased the flexibility of the system in terms of the way in which it would award people in the future for performance done in the past just like in it's it's really not any more complicated than if you give someone a raise because they've been doing a good job that raises perspective here's a raise could be a salary increase it could be a bonus it could be a combination of the two and just like all of the other races if it went into a fact based on a rating that became fact of on january first it went into effect the first pay period there after that's when the money became available there wasn't any money there wasn't any raiding there wasn't any ability to make any payments prior to that and the combination of a performance payout being one or the other or both an increase and a bonus is not ambiguous when you read that provision in the regulations the newer regulations that say the effective date of the of the performance payout that's performance payout a combination of one of the other or a combination of the two are bonuses possible if there is if they're still roaming the in the pay salary for the pay grade for increase if i understand your question is the answer is no ma'am yes if  you are at the maximum a maximum salary for your pay band your increase is going to be entirely was correct but if you're not at the max could you get just a bonus without having any portion of your salary increase i think you could say that that's one of those management discretion decisions where in the regulations there are instructions two for management to keep in mind that a salary increase will be a for ever increase the that employee will now make that much more money for the rest of his employment with the department a bonus is obviously a one time lump sum payment and there are a variety of  factors such as whether performance is expected to continue with the same level whether this is important for retention and those kinds of things so i'm not aware that that ever happened but i think under the flexibility of the system yes the increase in next year's salary could be represented entirely as a bonus you do think that the department would be free to change the effective date of the payout the respect of the bonuses to let's say february first or march first under these regulations i don't think so my only have the patience what it was if you for some reason the money just was not available it was suppose that they decided you know what we really want to encourage people to stay with the agency for more than just a week after that i believe i believe they do i mean your honor makes a good point in there there are any number of of course there are a number of employees who retire all the time there are a lot of employers who hire and are retiring at the end of the year and usually the council is when pay raises go into effect that will affect retirement calculations and all those kinds of things as i was mentioning before this is done is entirely consistent with that approach which has been longstanding and i believe you but i'm having a hard time finding anything actually in the regulations and i'm looking at from the opposite perspective could the agency decide we're going to change our practice without running afoul of anything in the regulations and you seem to be saying well no they really in worry for well in this case it's january fourth because that's the first day of the folks pay period but but that regulation makes clear that that would be the day for the salary chris but it doesn't add unless and are you larry i guess reading all of that most liberally and in favor of the plaintiff there is arguably no statement when the bonus becomes effective which would lead to your honor suggestion won't kenya agency change it to any date it wants and i think consistent with the agency's interpretation of the regulation which is that even though it says this our increase of salary increases just one component performance pay out and that's the day when the performance payout as well as the prior regulations have made clear that's the day when the performance payout becomes effective i would argue that's the day when the bonus becomes effective there's nothing that suggests it could possibly become effective earlier and you know as as your honor said i i don't believe the agency ever attempted to make it later just point the agency will never attempt to make it later how is that for the term the junior a fourth is the right to make the payment well i talking now about the language of the regulation i'm just saying as a mechanical matter there's a determination these amounts to be paid on january fourth who determines that and why it's been very forthright for the actual making of the pain well as i mentioned when i first survey that the payments not actually made january fourth generally fourth is the beginning of this particular year's first full pay period and that that's you guess january fourth i take it from section three forty to sixty which talks about the salary being made as of the first day of the first paper which in this particular year happened to be january fourth take us or are well i understand the january fourth itself isn't the magic date but the bonuses are paid in the first during the first pay period of the calendar year that means the previous pay period ended on january third and i think i understand your position is that it's the regulation at dictates the pay increase that that it's the then then everything else from my own personal experiencing answer is yes and no it all comes in the same paycheck for that first pay period there will be a line item separating it out but it will all come in the paycheck for that first pay period which most likely will come somewhere between ten and fourteen days after the end of the this class of people had worked entire rating period prior fiscal year we're expecting their bonuses and that's just one of the consequences of being a reemployed you know which is in some respects a very favorable status in some respects not much and it's one of the consequences is that you have a fixed period then you don't get to change that's correct around but the idea of this legislation has to be about fairness and incentive compensation for workers  and the result that would be directed by the government's position would really be a fundamentally unfair result because these people did all the work they qualify for the performance rating that period expired three months didn't matter when they get paid but if if the rating becomes effective january first they're still employed as of january first it should vest at that time regardless of when it's paid at a week or so later really doesn't matter