days monday through friday when possible right when possible applies to monday through friday and the monday through friday complaint is not at issue in this case what the what the accounts are claiming is that the agency failed to schedule the five days consecutively and there too often is consecutively as a result and that's the same whether they are regular work it is or wait regular work week monday through friday to sit through saturday wednesday through sunday it doesn't matter so is there anything in the claim that you're asserting that would entitle your client to pay that is different from or greater than the pay they actually received there is your honor but let me preface my answer by saying act case is whether the statute that they're seeking relief under is one man it that's a plaintiff neutral question and that's a fact neutral question you don't have to look at the complaint you don't have to look at the facts you only have to look to the u the statutory provisions in sixty one whatever the number is is your claim here with respect to a violation of that provision and type would it entitle your clients to pay that is different from or greater if they're working monday through friday or monday tuesday thursday friday and saturday how does that change the amount of hay they're getting rough and so forgive me for very a little bit but the question the way to answer that und backpack is what they quote normally would have earned but for the unjustified personnel actions and what we believe these these security specialist normally would have earned but for that is regular paid for five days during their work week and premium pay for any days they work in addition to that work but we're not the your claim here doesn't deal with days in addition to the forty hours right i thought the claim here dealt with where the debt assumed you're working five days in a question is which of those five days are we talking about is not that they work five days and then are they entitled to overtime or premium pay for any additional both what shifts they normally would have been scheduled for and and then of course also to the compensation statutes and overtime statutes to see what pay they normally would have earned for the shifts they normally would have been scheduled but they wouldn't be violating citing if in fact they they scheduled them tuesday through saturday not if they just scheduled five days consecutively tuesday and saturday that's correct they would not be but again that's not what we're claiming what we're claiming just use that example and again this is we don't know the specific days of the week because we haven't gotten to discovery we haven't seen payroll records yet but let's say one of our plaintiffs is regularly scheduled tuesday through saturday well we're pledging half and yes the agency said ok we're tuesday wednesday take thursday off we're not going to pay you for thursday or friday and saturday or no and then also come work again and work sunday so in other words still working five days but those five days are consecutive that's required by this provision when are and so let me go back to your question to cross our our marriage theory here has two components the first is that they shouldn't receive regular pay for that day in the middle of that we that they didn't receive any pay for and i think it helped even if they didn't work  that i think it helps let me give you two ways that think about the first is say that say our claim was just that say we have full time employees who are entitled to work as scheduled here and the agency says gee we need to save some money next month why don't you all come in and only for the five days you're supposed to schedule you're supposed to be scheduled and we'll just pay you eighty percent house up and the answer can be well i guess that's fine  doesn't say anything about money the answer is what pay would they have normally the answer is two things first that that's a violation of sixty one and one that's a wrongful unjustified unwarranted personnel action under the back pay act and  you haven't and it's the second piece of the back pay act that that really is the most concerning so the question is you have not alleged that they're all that there are personnel that are being forced to work only four days for one of those days they're working on their weekends but for the violence not examine the anyone else nobody we're here we're not talking about anyone here who is required to pay to work within forty hours a week they're only entitled to entitle meant to premium or overtime pay for saturday and sunday would come if they had work for five days before that and we were talking about the time over forty hours right and that's not what we're talking about little i disagree i disagree you look at the work week and what and again these are questions for the merits what we're going what we hope to prove on the merits if we get to that point is that pain that that these individuals normally would have had to work both the five days for which they were regularly scheduled nine consecutive days off right so if you were required to work tuesday through saturday that would not be a problem that not be something covered by your claim even though that includes saturday right no no that's not quite it our contention is that normally in weeks where the agency needed these individuals to work on their weekends they would have also normally worked a full five days prior to that thus their weekend same ok this is all as neutral as to which particular days right so what if what you what you're saying is that sort of any class of claimants that you would be asserting this on behalf of are only those claimants who who don't get the two days in a row and who one of the days that that they have to work is a weekend day yes yes that's it that's the theory and let me let me just go back to means point here i don't  think i'm trying to get through this to help the court think about this issue but i our most important position is that we don't believe any of this quote these questions are jurisdictional the only interest fictional question under this court's decision in fisher and  good morning harassment please the court and nothing else counsel makes a good argument for why the secret service it consistently has the lowest satisfaction ratings among its employees of any federal agency well you're right i  provision such that the court of federal claims can exercise section over the planet's claims but what about yes and what about the last point that your friend on the other side is making which is all of this is interesting but it really goes to  organization will be seriously handicapped by a war that its costs will be substantially increased so that there's a card that that's a complete that's a merits determination we don't know that that determination has been made well stop doing this prospect of late that they would not have been able to get some sort of relief for prior acts for example i'm an arbitrator and i'm going to hold ward to an additional five days worth of comp time in order to compensate for the fact you didn't get your two days off i'm not sure what kind of remedies might have been available under under those but if i'm right that there are remedies available that involve the payment of money or something that's of value then why doesn't that hurt fact that the head of the agency had now not only not made that determination but it made the opposite determination and when possible there was a showing that it was completely the opposite what would be the relief that they could secure based on those finding i'm not sure that there would have been any financial or monetary relief that would've been better for it because well it's hard for me to accept the not sure that it would have i mean the question we have here is is it absolutely clear its essence the argument that appears to be well we used to be working more than forty hours and as a result of that we were getting premium paid overtime pay but there's no right to overtime to work overtime  a right to pay for you if you perform overtime but there's no right so their expectation or their hold that they might have earned more money beyond the forty hours forty hours a week does not provide th and the trial court correctly found is a statute that provides a preference for how schedule should be but in that case that the overtime was only calculated because there were even if you put it all together they weren't really working overtime they were just on  schedule and in this case they're on a schedule where they're technically working what would be an overtime hours and worthington he was technically working what would be overtime hours but was not working more than forty hours a week  first that a person as a personnel action was unwanted or are justified which a violent actually requirements would be and second that employee earns less pay than they normally would have earned as a result and that's exactly what we hope to prove on the merits and that is also exactly why the court found jurisdiction in the worthington case that case is directly on point and should not in control here the only difference between worthington here is that we're going to was alleging a violation of a different scheduling statute in combination with the with the bite with the backpack that doesn't that statute specifically provide for payment of over additional monies when the employee is required to work more than eight hours during the day no that's not an overtime statute that's also a scheduling statute it's it's the flexible and compressed schedule scheduling act i think it's section  sixty six twenty four and what it does is it provides an alternate set of rules to six you want to watch it says normally you have to reschedule for five hours a day to get your forty hours an agency can offer under the flexible schedules act for an employee to work longer days with more days off in other words you can work nine hour days for the first nine days of a ten day of of a two week period and then have the tenth day off under a sixty one a one that would be more talks about the back pay at this being derivative it's only talking about the substance because that was all that was at issue another words the bapi act itself doesn't define whether a person no action is unwarranted you have to look to another statute for that on the sub