we'll hear argument first this morning in key sixteen thirteen sixty two and see no motorcars vs navarro mr clement mr chief justice and may it please the court service advisors are salespeople primarily engaged in servicing automobiles service advisors are plainly sales people and what they sell and what they are primarily engaged in is the servicing of automobiles thus respondents and the nation's one hundred thousand service advisors come within the literal disjunctive tax of the f l s exemption for any salesman parts men were mechanic primarily engaged in selling or servicing automobiles trucks or farm implements that understood at the time that congress passed this exemption in one thousand nine hundred sixty six the example would be automobile body repair and that i was treated as a separate category for example in the occupational outlook handbook that my friends on the other side like so much but yet  the labor department has consistently treated repairmen in the body shop as covered by the exemption just like mechanics in the service shop so i think that goes a long way to showing that it's not like congress was consulting this handbook at all or had this conception that it was going with a three to three correspondence with existing occupations and what it was trying to capture in the statute of the men who said the literal meaning and you have some good arguments but i have to tell you i don't think that that's the best one of them just if you think of what service and means and this is one dictionary but basically all dictionaries say the same thing it means to perform services of maintenance repair installation as to service a car so it actually means to do the work to do the repair to do the maintenance i think would be the most ordinary understanding of what service and means so it does seem as though for all the arguments that you do have that one cuts against you that you know just the ordinary meaning of what it means to be engaged in service and what immobile is to be repairing maintaining fixing cars well your honor i mean i'd love to talk about some of the other arguments you seem to like better but let me try to push back a little bit on this one which is the for the first to admit that servicing in some statutes can have a relatively narrow compass and includes only you know centrally turning the wrenches yourself but in other contexts it can have a broader meaning supplying the service providing the service and here we know that congress used the term in that latter broader sense because of the inclusion of parts me because parts men are not engaged in getting under the hood and turning the ranch is the best place to look at what apartment does it's the labor department regulation that's been on the books since one nine hundred seventy it's pacifically talks about what apartment is primarily engaged in and that is the requisitioning stocking and dispensing of parts so i that is one of the better arguments i think is what what parts and is doing in this but i think i'm still some just in before we get on to that that if you took parts men out of the statute i don't really think that you'd have a leg to stand on here that we would just naturally mean well service in one of the ills is like fixing them and what and these service providers they have something to do with service and to be sure but they're not doing the service and what they're doing is selling service products well your honor i think if parts been were not in the statute i would have a weaker argument i think i still might have a leg to stand on especially if there were four decades of industry reliance on a position but i do think that the parts man can't be ignored and i do think it's actually a mistake to sort of look at servicing in isolation from the inclusion of parts  justice ginsburg also i think there's no argument that the statute only covers farm implement parts made based on its disjunctive structure it certainly covers i think automobile parts mean and parts minute a truck dealership and i think equally importantly it covers it without regard to whether they work outside or have unusual hours and so i think what you have here is a classic example of where congress was impelled to include parts of it in the statute based on some very specific concerns of senators about farm dealer parts mn but then they expanded the statute quite a bit more substantially to cover all of the parts meant one other just footnote on that piece of the legislative action i think it's actually interesting that when congress first proposed adding parts been they proposed adding parts men who were selling or servicing farm implements and so i think what that shows is that congress may have actually had with selling your servicing not necessarily to silo disjunctive terms but sort of the broader process of selling resurfacing because i don't think parts of it ever sold the farm implements themselves one of the amakosa previous talks about what parts been did historically and makes the case that what parts minted when this statute was passed so little bit different from what were a lot different from what parts mn does now in the sense that when this statute was passed there were not readily available ready made off the shelf parts and what parts been really did was kind of get under the hood and try to strip engines and play with the parts and adjust parts and you know it was very much more part of the repair process than somebody who was taking things off the shelf just asking and i know there's  amicus brief it says that i think you know and we're here to ask you to mostly look at the plain text the statute but if you're interested in looking at something i do think that occupational handbook from one thousand nine hundred sixty six has a couple of pages about what parts mean did back then and i don't think it really maps up with what the the amicus brief says which is to say even back in one thousand nine hundred sixty six sure there might be an occasion on which they had to fix some part or got under the hood but in the main what they did then is exactly what the labor department identified which is they're behind the counter they're making sure that when you do a repair and you need an oops sparkplug or a new fan belt that they actually have it in stock and that is i think classically what apartment does i don't think that it really puts them really in the same place as the mechanics i mean it's interesting if you want to look at those photos at the back of the red brief that come from that occupational handbook i think it's telling that the service advisor and the mechanic are the two photos where the hoods up the counterman the  behind the counter which you know i don't mean to say that's where he or she belongs but that is where they typically are and it's pretty far removed from the action which is why i think the parts when really are the clue to interpret in this statute they have this  on you and the hypothetical statute is designed to match this one in structure and and to present the same question so here's the language any salesman designer or seamstress primarily engaged in selling or making dresses all right so there we know the seamstresses involved in making dresses we know the salesman is involved in selling dresses  the designer is the parts man and you could say look the designer they're not actually sitting there with the needle but they're still sort of making the dresses that's the parts man and then the question is would you really say that the salesman is making the dresses too i i'm not sure i would your honor but i think there are reasons for that which is i think making dresses is a narrower can term frankly then servicing i think servicing is a broader term i also think the designers are frankly more integral to the making of the dresses than the parts man is to any kind of narrow constat that are exactly why interest you say you're primarily relying on literally well i think in ten minutes the two of us could think of hundreds of examples maybe at least fifty words this look any seamstress or customer who makes or w dresses hey they don't mean the seamstress who wears dresses they mean the customer who wears dresses and the seamstress makes the dresses any professor or student who teaches or learns at this university they don't mean the professor who learns at the university they mean the professor who teaches them the student who learns any salesman who what's the words you nerve cells or cells cars or you see that i think there are so many examples like that but that seems to be the natural meaning you have two words over here that are verbs two words over here that are now the first seems to go with the first the second with the second and if i just gave you this knew nothing else about it and you're just looking to literal words i would have thought on a bet you would have said that the interpretation well just as for others a couple of things most of the examples that you are suggesting i a two to two correspondents now read into correspondence and i do think that makes a big difference in the real world the second thing is i do think i mean i'm not here to tell you that there aren't disjunctive series followed by disjunctive series where you do have matching now i think often that's because the matching really excludes the other cases or produces a no set i think it also depends a little bit on sort of what's going on with your professor and student hypothetical if you do you know if that was all tethered to a requirement as to who gets issued a library card if you had a professor who was sort of visiting that semester and only learning and not teaching where they really didn't i am a library card you know ok i missed that memo to her second point which is second point was and i came up with a bunch of them and i'll spare you thank you is to have a three to two correspondence your answer back to justice breyer was right away by your hypotheticals have a two to two  political had a three to two correspondence and you had to do a little bit of stretching to get one of the the middle term in but the question is does that force you to stress to stretch so much that you get the first term and when the first term pretty naturally paris with the other with the with the selling word and that's what you're asking us to do and i think to put the point more generally the fact that you have to do a little bit of stretch and to get parts and does not compel you to do a lot of struction to get salesmen but justice kagan and i want to try to get back to the purpose of questions but i do think that the greedy of stretching you have to do to get parts bin is not that significant difference between how much stretching you have to do to get the service advisors in and i think that's really the key i mean maybe in your hypothetical which you designed a lot of them and you probably gave me one of the best ones and i think that's because i know you're daring may well not know what with but i take it that because you really thought there was a big gap between the designers and the sales people in terms of the stretching and i just don't think that's the case with the parts man and i really do think i mean the parts mean i mean god love the parts man but they're pretty far removed from the action of turning the wrenches i actually think that if you did an empirical test as to who got under the hood more often the service advisors would when mr  to go under the hood in turn the wrenches himself or herself i think as to the answer to your question about why don't we just say the parts men are in because the parts men are in because the structure of the statute doesn't let you say just the parts men are in the parts men are in because they are primarily engaged in selling or servicing automobiles now i take it that the parts men don't sell the automobiles so they must be in either because selling or servicing is just sort of a catch all that gets everything that the dealership basically does or it's because we have a broad enough conception of servicing to include the parts me now the way that i understand this court to interpret statutes is once you interpret a statutory term to have a certain breath i mean that's what it has even  the dealership and he just picked up the phone and ordered parts or something sure i mean first of all you could have a parts man who's not employed by an auto movil dealership at all that they're just an independent parts made in or they work at auto zone or something like that i don't think they're covered by the terms of the statute so i do think you have to interpret the statute so you tether parts meant to a term like servicing and then once you interpret to have a certain breath i don't think it can shrink back down so it can be wide as department but narrows as to service i do think then the service advisors do come comfortably within the text the statute and we haven't talked about the fact that for four decades they've been treated that way which i think i want to you mention your argument that there's been decades of reliance christopher case the christopher against smith kline case which is another another f l s a case and this court of verted to the reliance interest both in deciding not to apply our deference but also interpret the statute and i think the principle isn't you know well if for four decades people  wrong will get it wrong i think the principle is you know as as the as the seventh circuit said in the case which christopher cited i mean it's no mean feat to conclude that an agency has been an open natori it's violation of the f l a safer for decades and i think just allow for no damages when you've relied on the agency in the abstract specifically talks about relying on agency regulations so at least since two thousand and eleven when you had the last change an administrative position i don't think we'd be able to rely on the po portal act affirmative defense to say we're not subject to liability the other thing my friends on the other side say is that well you know there's this other exemption to zero seven i that will help at least those that were paid on a majority basis for a commission now there's a couple of things about that i mean i think the most important one is there there's i don't know the exact number but there are a sizable number of people in the industry who are paid majority salary and so they'd have to be restructured but the other thing is it's a little bit rich for my friends on the other side to say don't worry about this because of seven i i mean when they filed this complaint they must have had some theory as to why we weren't already covered by seven eyes so i think that just shows that what what the industry's relied on for four decades is not some combination of the poor and the portal act into zero seven i with the agency with the industries relied on is the idea that in this context you know it is this exemption that exempts all service just those that are paid primarily on a commission and i think of these three categories of workers so service providers parts men mechanics to coin a couple of silly kind of words  service advisor is customer facing you know it's the primary the primary job is to deal with customers to sell them things to liaison with them to make sure they're happy mechanics and also parts  car face and you know their job is to do stuff with the car and you know in different ways the parts minutes more helping but they're there focuses on the automobile whereas the service providers focus is on the customer that seems to me a pretty big divide suggesting that the service providers are really you know salesman not servicers well you're on a couple of things first of all you probably anticipate that i'm going to take you back to the parts made again because i do think describing the parts man as just a vehicle facing really miss describes what they do and i would ask you if you have the time to look at that one thousand nine hundred sixty six entrance on the auto parts mn countermand because what it talks about is you know they really sometimes they sell direct parts to retail customers so sometimes they too are customer facing and that's all part of what they are primarily engaged in which is not just facing the car it's really their responsibilities the parts whether it's the mechanic that once the parts for a particular repair or whether it's some outside customer who wants to buy a park is there do it yourself for now so i really think the parts men are in the middle in a way that does really give servicing a broad compass the other thing i would say is a don't think you can underestimate the degree to which these three occupations especially in light of the way the industry is structured itself for the last four decades really do go together there are many dealerships as i understand it who essentially the commission is a pop that is shared by the service advisors the parts man and by the mechanics they all work at some dealerships they all get paid on a commission and it all comes out of the same pot which of course gets to the common sense of the matter which is if the service advisors don't do their job there's not much of a job for the  the mechanics to do there's no there's no work to do if the service advisor is everybody who's in a service department does everybody count is primarily engaged in service and automobiles who's in a service department the receptionist the filer is the answer is i'm not sure i think probably not but i also don't think it matters much because of course to be exempt you not only have to be primarily engaged in servicing you also have to be a salesperson a part spin or a mechanic so if you take somebody like a card a car porter you know are they primarily engaged in servicing i think the definition of parts of it is probably broad enough to say yes you might disagree with me but either way they're not exempt one of those automobile upholsterer again i would say that that somebody who might be primarily engaged in servicing but they wouldn't be covered because they're not a mechanic they're not a parts man and they're not a sales person and to what role do the three objects at the end of the sentence play in your interpretation w discusses it well i hope they play this role your honor which is i think it's common ground among between the parties that those are distributed to each other now in jaron combinations and nobody's here saying well the first goes with the first when it comes to the object so the only people that are exempt are the farm dealer mechanics and i think that just shows maybe really odd anything's possible of course but to be really odd if the way you read the statute is with risk of the nouns visa v the geron you apply this redundant principle but with respect to the gere ins visa v the objects you apply the normal were means or principle i think the real way to apply this statute and honestly i think what it's the only thing that really ought to be left of the  the common sense principle that when you have these disjunctive series if they combine in a way that really is something like the null set you don't lose a lot of sleep over it and it's fine because you know i'm not here to tell you there are mechanics who are primarily engaged in selling automobiles but since there aren't any you don't really have to lose any sleep over it and you shouldn't construe the statute primarily based on the fact that there's a null set with one combination especially when there's one hundred thousand flesh and blood examples of sale i mean who are primarily engaged in service and what about our narrow construction cannon well that's an interesting question your honor i mean you know the ninth circuit applied that and i suppose that you know the night the cannon that the ninth circuit applied and the one it derived from one of the school court's older cases talks about being plainly and unmistakably within the exemption now i'm a big enough believer in my argument here that i think maybe we even meet the plain and unmistakable test but i also think as we've urged the court that it may be time to put that cannon to rest and i'm not suggesting that the f l s say should be interpreted differently from any other statute it's a general principle of statutory construction that exemptions are not construed to swallow the rule i think that's a perfectly sensible rule of construction but i do think to sort of amp that up to the degree that it is has to be plain and unmistakable to come within the exemption really is contrary to where this court generally interprets statutes i don't think it makes a lot of sense especially if you remember that a lot of these exemptions are being passed much later in history than the one nine hundred thirty eight nachman of the f l s say so even if you accept the proposition that  thirty eight congress had an annoyed interest in being remedial in the f l s say i don't know why that would inform your interpretation of an exemption enacted in one thousand nine hundred sixty six for the express purpose of at least having some employees not covered by the f l a say and i do think that this would be an odd statute to have this plane an unmistakable test when it's riddled with exemptions so if there were ever one statute where you'd say ok congress yeah it had a very important purpose it was a worthy purpose but it didn't pursue it at all costs it would be this statute if you look at two thirteen which has the various exemptions to both the minimum wage laws and the overtime laws as i counted up there are thirty one exemptions to the minimum wage and overtime laws just into thirteen and there are other exemptions in other places in the statute so what an odd statute to say that the way we're going to interpret this is only with a thumb on the scale in favor of the coverage and against the exemptions if there no further questions i reserve my time thank you counsel feldman mr chief justice and may please the court the exemption in this case is for any salesman parchment or mechanic primarily engaged in selling or servicing automobiles the most obvious reason why the clearest reason why service advisors don't come within that exemption is they don't serve us automobiles in our brief we cite five i think the five most authoritative dictionaries of the english language and they define service to service as to maintain or repair you maintain if you don't maintain or repair a car in the way people would ordinarily speak with a pad or a clipboard and a pencil or a telephone which are the primary tools that service advisors use you do it back in the back of the shop when you're actually working on the car service advisors don't do that and therefore they they don't service cars they don't i guess are sometimes though i mean they do look under the hood sometimes right you bring the car up you know it's making this noise they go out and at least listen to the noise and sometimes they can say right away oh that's probably this and then they send something down and whether the customer is still there or comes back later all that they do in the the the mechanics of the parts men send it up and then plug it in it's right so i mean in certain situations the advisor would play the primary role in fixing the problem now when it's more complex maybe not typically but certainly him when i suppose will be many occasions i don't think so i mean i actually i think what the advisor does is make  guess but really of what might be wrong based on what the customer says i mean sometimes a customer goes in and says i want to twenty thousand mile chest servicing and this sort of the visor just sends it back and says we need a twenty mile a thousand mile servicing and maybe the most it's a difference that's a different kind sample but even with sometimes i guess what i'm saying sometimes the primary decision in servicing the car is going to be made by the service advisor or at least the initial thing you know send something down the mechanic me will look at it himself or herself but the service advisor says it's a distributor cap or whatever and it turns out it is they put it on and stun i think actually the service advisors job they may make a guess as to what's wrong and give the customer said well i might be a distributor cap but it's up to a mechanic to actually figure out what's wrong not the service advisor and look closely with advisor meet the customer in the morning and he said i'm a service advisor i'm here to supervise and to plan the service name of your automobile is that correct for him to say  well actually i don't think so i don't think they supervise the servicing of the automobile i think they serve a communications function they don't in any sense supervise the mechanics on how about do a range for yes i think it is correct to say they arrange for it but i think there's a huge difference between what if that's true it seems to me he's engaged in service and you know i don't think so because i think there's a huge difference as a matter of he's definitely not servicing the automobile just because he's arranging for it there's many people who are arranged for the provision of services but don't perform the service themselves if somebody has to take an example of some salesman this is particularly true of the difference between sales and service which are pretty much two distinct categories if somebody is going door to door and selling you actually supervising service maint supervising repair also isn't the same thing as repairing but i do think that it's quite clear and you can look at the machine it's free if these people in no sense supervise the mechanics they tell mechanics what the problem is and what the customer wants  primarily serve as a communication link it's up to the mechanic or whoever else is working on it in the back to figure out what to do help it i mean just in maybe this isn't the best guide to the interpretation but it's sort of common understanding if you were several years drop your car off whenever you're supposed to or whenever it's broken and you talk to fred about getting it fixed and somebody comes dealers later and something i've got a problem with my car he would say my service guy is fred go see him it just sort of your general reaction is that is part of the service not only that it's the part that the only part that you have experience with but you would think of fred as the person who services your car i don't i would just respectfully disagree i have a different go to different shops like it which i think you would i think you think of fred as the person you give the car to the person to to service is to maintain a repair of the person in the back actually works on the car is the person whose service can read it that way no doubt that might even be the most natural reading as opposed the word we're involved in instead of engage involved in would bring it much closer and he would and so what we're doing is we're trying to parse the difference between engaged in involved in in a fairly technical statute involving one of forty thousand different kinds of workers as part of a very general statute now that to me rings a bell that if this isn't a question for an agency what his or i so if i'm thinking that maybe no one else is  only speaking for myself i was sort of surprised that nobody in the ninth circuit referred to a doctrine that nobody refers to anymore it's called primary jurisdiction and it can be used to ask the brow of an department follow a brief and nobody did you know how suppose i suppose it was suppose i think gee i don't know the answer to this question it's highly technical i do look to purpose a purpose apparently was that they put these mechanics in there because they had farm equipment somewhere that people go in the middle of the night so they didn't have fixed hours where that was so or not i don't know and maybe the service person would call at two in the morning and tell the farmer he's coming in which case he doesn't have fixed hours so he should be exempt i don't know so suppose i start you see the attitude have you any advice for me at all yeah i do it in the first place if you look at the if you look at the car dealership it's not the case that there are three main people in the car dealership the salesman the parts from the manics there's salesmen who sell financing insurance and warranties they're not cars they're salesmen who and other accessories like that there's lube technicians there body people who work on painting on upholstery on body repairs there's car jockeys there's a dispatchers who allocate the work so th many different people who work at a car dealer congress picked out only three and they picked out those three for a particular reason and if you look at actually the things that we cite all three of those share something in common and service advisors not only don't share that but have a different quality that makes them much more likely to be in the style of the mechanics are in there because they did call farmers at two in the morning did the service advisor call the former to do theirs as far as i know in the history of the auto industry no there's never been an example of a service advisor who worked offsite and probably very rarely if ever irregular hours those were the keys to why congress wanted parts from and mechanics in there they're also clearly the most important reason why they wanted salesman in there i don't think they were wrong i think what they decided is they wanted to include parts friends and mechanics who so i think reasonably are both said to be servicing cars and they then decide to include the whole categories and not just limit it up to farm implements or a particular kind of mechanical parts and as long as they're servicing cars that was the limitation but your definition of service and which i think is a very natural want to me and not just you know natural it's the dictionary definition of service and but it has to cope with this parts  two steps or five steps or ten steps to pick up a fan belt off the wall bring it back to the car i think the mechanic is that whole time repairing or maintaining the car and what the parts mean is doing is taking over a function one part of the function of what the mechanic does and instead the parchments doing it and that's why it works very closely as we talk about the brief they work very closely with part with mechanics they try to get the parts to them in the order in which they need them on complex repairs and so on and i think that it's very reasonable to and i guess also a car is nothing but the sum of its parts and for all those reasons i think it's very reasonable to say that they are surfacing cars will be but a diagnosis is part of the service and is well in the service advisors who lease do that i mean the mechanic doesn't going to know what he needs to know what the problem is and the service advisor will spend a fair amount of time trying to get a description from the customer sometimes it's easy you know the car won't start other times when it's it's it's going to be harder and they need to get a good description you know is the is the the person who takes down your symptoms at the doctor's office before the doctor comes in is she or he part of the medical treatment i think actually because a relevant question is is he or she providing the treatment and i would say no they're giving it a new service yeah she talks about being in gauged in so is that person engaged in medical treatment i don't think he's  this court is i mean i actually did a lexus search and this court has used the term five hundred times it's used about two thousand times in the u s code it's used in the n f l as a in actually one of the provisions in the two to thirteen d and the same statutes engaged in the delivery of newspapers it's an extremely common word and i can't find any instance in which any court has ever construed it to mean anything other than what black's law dictionary says which is to do something customarily or regularly or continually it doesn't mean doing something that's ancillary to that activity so if you're two or three d gauged in the delivery of newspaper and there's an exemption for people like that if you're calling somebody up on the phone and saying would you like your home delivery of your newspaper i don't think that person is covered under that provision and if this court were to construe engaged in to be a term of threats like that in this case i think it would actually upset a lot of settled expectations across a broad areas of the law when congress wants to include wants to broaden out a term it uses terms like law necessary and consequent and necessary to which i'm sorry necessary and incidental to which it uses in a couple of the f l s a provisions that we cite or it uses terms like the process of which it uses regularly throughout the u s code but i don't think there's any basis to take in this statute which is very actually terrifyingly written to take the word servicing or engaged in servicing and say well no they mean something like in the criminal law you might say someone is an accessory before the fact if they help the crime before it's committed or after the fact if they help it afterwards i don't think but but in the criminal law actually if you didn't have a u s c section two which made those people liable as principles they wouldn't be allowable for the crime and i do think it's the same principle here when they're talking about engaged in servicing their talk about the people who service not the people who i would concede do things that are necessary and incidental to the service and there's many mr feldman when you talked about the purposes you focused on the fact that service advisors work on side and don't work irregular hours i believe the mr clements argument and help correct me if i'm wrong focuses on the fact of commissions that these people unlike other kinds of salesmen and like mechanics are often compensated through commissions schemes what about that  i think that commissions are actually completely irrelevant to this provision there's many other people at the car dealership including some many of the ones who i mentioned who are paid on commissions who are not exempt there's many people a car dealerships and throughout the economy who are exempt and who are not paid on commission which in fact if caught where congress was interested in commissions as a basis for an exemption they provided one in two zero seven i if you're paid more than fifty percent on commissions and make more than one and a half times the minimum wage then you can get you can be exempt under that vision it is possible that at least going forward and i would correct my friend at the time of the complaint one thing that was true here or that's alleged in the complaint is that the dealership was not up until recently  says keeping track of the time and the hours bet so actually they would have had a hard time keeping track even though they were required by law to do that they would have had a hard time keeping making out the two or seven i exempt in but in but going forward it may be in this case that these people are covered by two or seven i i you know there as far as the reliance interests that my friend mentioned i actually think the reliance arguments cuts exactly the other way in when this court had the case before they were the question that the court said it was interesting it was concerned with about reliance was whether the one thousand nine hundred people had been relying on the one nine hundred seventy eight d o l letter and whether the agency in two thousand and eleven was required to give some explanation of why it changed it mind that's actually did so that question is no longer in that case the regulation the court said is not controlling here but what has happened is in two thousand and eleven d o l did tell everybody that if not serious advisors are not exempt from this from these are not exempt and in two thousand and fifteen the ninth circuit decided the case in two thousand and sixteen about two years ago this court the man did the case to the ninth circuit by that time and long before that probably from two thousand and five i know from two thousand and eleven on felicity the government had taken the opposite position that's right that's right but i think my point about reliance is if you actually there's a two year statute of limitations here everybody's known since two thousand and eleven and certainly since two years ago when this court decided the  last time that there that these people might be entitled to overtime there as far as i can tell there's been two cases at most and i'm not sure about both of them one in the district of arizona and one in the desert western district i think it's the western district of new york that have been filed claiming that service advisors are entitled to overtime that's it two cases so i think that the logical inference to be drawn is that most dealerships some dealerships are probably paying overtime right now to service advisors i think i know that some are some dealerships many many dealerships probably the vast majority of them have made have arranged things so they come within the two zero zero seven i sampson and the reliance now is what really is what this case easily could be about is whether dealerships can stop paying overtime to people whom they're currently paying and whether dealerships can change the terms of their arrangements with service advisors so that the people who are who have been coming under two there could be good for it for alliance that in this case i think there would be good faith reliance up until two thousand and eleven then the complaint here was filed in two thousand and twelve so we would only go back as far as two thousand and eleven there would be good faith allies but the point is that isn't going to be relevant to future cases there's only two cases i think as far as i'm aware maybe there's another one that i haven't been able to find but i've tried to look for them there's only two cases currently pending but i think really the court should be very careful about giving a lot of weight to two claims of reliance where what well might be happening is people are paying overtime and bringing their service advisors into zero seven and i and what they really want to do is stop paying the overtime and stop bringing their service advisors within two or seven and so i don't think that the reliance issue that my friend discussed i just don't think that's a reason to decide the case that mister the solicitor general is not here in a case in which one would expect the government to be here do you know whether there is any activity taking place in the department of labor with respect to this issue i don't know but i just don't know about that the i would make on one other point about the purpose of the purposes of the statute so one of them was these three people and especially auto salesman which is where what petitioner says the service advisors are the three categories of congress included are people who work irregular hours and off site where it's hard to keep track of people's hours now the service advisors have a different another feature for sale they never work offsite they rarely work irregular hours but there's another feature of how they work that cuts in the opposite direction they complain in this case alleges that service advisors of the service advisors in this case work fifty five hours a week now what congress wanted to do in the fair labor act was to set minimum standards of working conditions and at the very least they did they thought that should be forty hours a week and that should be basically what people are expected to work now mechanics and parts meant as well as you know warranty salesmen loop technicians all the other people at the auto dealership work an occasional overtime hour but these people this is their standard week after week regular hours fifty five hours congress wanted to see congress in the f l s i thought that that was that was the kind of thing they didn't want to have happen and particularly because there was a second purpose of the  maximum hours of the overtime requirement which is they wanted the people who are instead of employing somebody for fifty five hours they want to say we'll go hire somebody else to fill in that extra time because they wanted to expand employment opportunities at the same time as they were  you know legislating if you have a service advisor in the morning and then a different one in the afternoon that the completely different things dynamic from the same person saying we found a little problem and we went ahead and did the x y or whatever well i mean i just would say one is that does happen sometimes too is another way to deal with this is to have fewer days work and you can have longer hours there's many occupations that work that way you can see you can share the work around you can give people time off in the middle of the day ok this dealership doesn't do any of those things it's a fifty five hour week and that's exactly the purpose of the f these are people come directly within the purposes of the f l s and it's  coincidence that congress didn't include them in the statue when it included salesmen parchment and mechanics you know another i would say also that petitioners argument is primarily is that service advisors are salesmen and actually on page five of the reply brief petitioner says they're salesmen because they are principle e involved in selling and that's what you would expect salesman to do but that does create a logical problem for petitioner because if you're principally involved in you can't be principally involved or it's hard to be principally involved in two different things especially two things as different as selling and servicing so if they're principally involved in selling which is what petitioner says makes them a salesman and i think what would make them a salesman if they were then it's impossible to say that they're print then it's hard to turn around and say no no they're principally engaged in person who's selling you roadside assistance all those people are selling you things they're not doing that because the idea of selling something is a fundamentally different concept and the idea of actually doing it and that's a  problem that i don't think petitioner can escape don't mean that is the reason why what congress did is they put service advisors with all the other people in the auto dealership who i mention who are not exempt and who get overtime i think even petitioner doesn't actually believe in one respect that that service advisors are principally engaged in selling in servicing automobiles there are people at the dealership who sell underbody coatings and assorted paint sealant upholstery treatments tire treatments those people are definitely salesman that is their job is to sell they there is those things are all services are provided to the car and yet petitioner has conceded from the beginning of this litigation that those people who do that kind of selling that they're not covered by the statute and i think that just is a natural conclusion the petitioner draws because i think that's the natural way to read the statute  petitioner my friend did refer to the said that the department of labor has taken the position that auto that auto body repair people are not covered by the statute i think that that is actually mistaken the only site of source for that is in a footnote in the reply brief it's a one thousand nine hundred sixty eight opinion letter by the department of labor and what department of labor said there first of all the opinion leader stood for the proposition and addressed the question of whether auto painters are covered by the statute are exempt and who did that they're not exact but secondly it did then talk about a category called body and fender mechanics and it suggested that they are not that they are exempt under this statu well i just think it's worthwhile looking at what happened to that in one nine hundred seventy body and fender mechanics were included in the original version of the record of the regulation as an example of the kind of people who are considered to be  hundred seventy three three years later i think it was the first revision of it they kept a list of people who were mechanics the same and removed body and fender mechanics so i think the only thing you can conclude is that department of labor has not concluded and there isn't a history of saying that even body and fender mechanics are not covered but whether they're covered or not would be a different question but at least auto body repair men are not congress picked three distinct professions who were well recognized at the time of the statute and said you know we want those occupations specific occupations to be exempt for the reasons that i said that service advisors were a well recognized occupation at that time they they were recognized in the occupational outlook handbook they had been recognized in and l r b decisions from the one nine hundred forty s on in industry publications and there's a reason why there are distinct occupation because if you look at the jobs that they do it's actually a completely different job than the job that's done proposition that when you have two lists like this that you have to make match up as as dates as as in the sims case is actually a great example where you have three in the first category and two in the second you have to match them up it is common and there are orders that they're connected by the word or it's common in this language to say what would match up the ones that actually fit according to the context but we don't have to struggle and strain to twist with an ordinary meanings of words or something that to try to barely find a way in which everything in the first list has to match with everything in the second and that is all that that can and means it means that it's perfectly acceptable and was what congress i think did is to say salesman match up with sells their animal logically related their semantically related that's what congress intended to do and it matches perfectly smooth parchment mechanics match up with servicing salesmen don't match up with servicing and in fact in so far as someone's a salesman they're almost certainly not a service person accurate at all to say that when the two thousand and eleven regulation came in without any explanation that was alternately deemed procedurally invalid by this court that dealerships just stopped what they were doing and changed forty years of practices if that had happened this would not have happened i mean the reality is that across the country based on that unexplained regulation dealerships continued their traditional practices that's why the reliance interests are all on our side of this case now there are also reliance interests for the treatment of body repairmen who have from the very beginning been treated as exempt dealerships now there is the letter that we cite that talks about how painters are not covered in body repairmen are covered it also cites legislative years more or less have been paid a salary are they now going to be subject to automobile dealerships saying given this new definition we can forgo paying the minimum wages no know that's where that's where with all due respect you're wrong we're giving you a definition of servicing but we also say it works in the statute together with sales person parts mean a mechanic so in order to be covered you have to be both you have to be one of those three categories of employee and you have to be primarily engaged in servicing so nothing's going to change for the non mechanics the non sales people the nonpartisan things are going to stay the same because we have we have a definition of servicing that has to include parts and that includes service advisors and service are visors are included not because just because they are primarily engaged in servicing but because they are also sales people so i just want to say that the legislative history specific there were they were meant to be exempt mechanics they're treated as exempt i hope we don't have another change to deal with under the status quo body repairmen are exempt mechanics traditional mechanics are exempt parts mr mckay exempt and sales at pfizer's are exempt and there are real reliance interests on that and still labor department's position they're obviously not here footnote nine or apply brief points out that they have put in out that they are not going to take any enforcement actions against sales advisers until this court rules in this case which i think just underscores that the reliance interest the status quo is in our favor there's no current regulatory effort to go after service advisors and there really hasn't been one from the labor department itself since about one nine hundred seventy eight and justice  if you're looking for a tiebreaker with an agency somewhere i think it's four decades of acquiescence that's the last valid action from the labor department two thousand and eleven regulation procedurally invalid so the last word for them is one nine hundred seventy eight when the forty year period did agency take the position in those two cases that that justice kennedy is really what starts the forty years of reliance so the first of those cases with was a fifth circuit case called deal motors that was  action brought by the labor department that the labor department lost shortly thereafter they also lost in the sixth circuit and that's when they started acquiescing the fourth circuit case comes along later and that's a private party action it's not enforcement action so we do have you know roughly eighty eight we've had acquiescence from the labor department which gives rise to all of these reliance interests in terms of the purpose of the statute i really thought it was interesting that my friend on the other side emphasized the fact that the service advisors w fifty five hour weeks because congress when it dealt with people who by the nature of their job worked long weeks they had one of two reactions to that one of it's they said well that's awful and we want to have more workers so we're going to limit them to forty the other is they said well yeah that's the way it in that industry and those people are underpaid so we're going to give him an exemption that's exactly what they did with service advisor thank you thank you counsel who submitted