and other federal law enforcement officers routinely put their lives on the line and pursuit of their mission it is a fact that the secret service has probably the lowest morale rate and any agency in the federal government and i think one of the explanations for that lies in the facts of this case are before you the agency's o p m decision to include that word totally misconstrues the language of the statute five u s c fifty five forty two he simply says that at least two working fine schedule additional hours after the work to be over as we as we put into our briefing lead to mr hard af case that happens you can be called into the office early for a meeting you can be asked to stay late part of the underlined days but i think if we did the evidence it would come out would be that these agents are on call and they are often called in early and often told to stay late and often ask to  availability pay is it is intended to compensate for unscheduled overtime  regulation to deprive secret service agents of over time if they did not get that threshold which could lead to the in congress result that we described our briefing that mr hard af could hypothetically work two sessions of overtime in a given english is persuasive many times and the phrase at least two hours is not ambiguous it's in harmony with multiple other pay statutes across the board in terms of the at least two or at least something so they do the insertion of the consecutively we think it's simply an effort to to agencies ever to save some money by making secret service agents work overtime without compensation so the agency interpretation we don't think it through any deference the plain language dictates the outcome and we think the court erred in agreeing that the consecutively modifier was was appropriate you want to speak to the do and writing which could be verbal right on clear on the face of the statute itself so therefore it was a reasonable interpretation for the government to come in and say we we select that it needs to be in writing right as opposed to verbal and now here i suppose the government is saying well i had said in a janessa perform two hours of overtime or it could be two consecutive hours it could be broken up in different parts of the day on the face of the statute it doesn't say one way or the other as in general we select the choice of making it consec didas the issue was interpretation the ordinance as you said it is a verbal doesn't must be in writing that is different from what is going on here where the language of at least two hours is not subject to other interpretation it's not subject  the phrase at least two hours there is no interpretation required and since the agency's a desire to limit it and in essence cut off overtime is inappropriate in our view the second issue before  mandating the issue in adams were the agents trying to get clarification of their of their requests for equal basic forty hour work week so in adams that's fair that's not a money mandating question they're trying to solidify their schedules as they've been set in their schedules were being manipulated sheer the money mandating statute is five c f r six ten by making someone take a friday off and work on saturday you are depriving that agent of potential overtime premium for the work on the week it and again this was a policy that was put in place liability for overtime paid to agents they were called upon to work during normally premium pacing areas so i think the adams case on the jurisdictional question is slightly different because this is a pure money mandating issue they're entitled to their overtime perhaps given an alternative they offered that if they didn't lose it within that two week pay period it was gone so they were deprived of that benefit as well whereas under the viewer as they should be allowed to take only days after the twenty six pay period so that was another use it or lose it type quickly the furred preferred issue is the so called eighty two scheduling this is where the leap comes in so we think the agency in this case and this is common among multiple other agencies that we have experience with they use leap as a bank for over time and that is not what leap is intended to do they are the statutory definition of leap is unscheduled duty and that the pay enhanced one is designed to keep these guys somewhat satisfied in their jobs being asked lieu of eight hour days and schedule over time has been more into scheduled overtime by the agency which deprives agents like mr horvath of the overtime benefit you normally would work extra time work overtime schedule him for ten hour days and in the other example flex so we think the the goal of leap has been perverted somewhat into a just again big bank for scheduled overtime which again deprives agents like mr horvath of the ability to to pay the benefit of premium pay and the bradley case we send our brief i think is is exemplary dealt with the situation after the oklahoma city bombing where it was unscheduled duty these people had to stay on the job for that period of months while the emergency took place here the schedule duty becomes just part of the weekly schedule and again using leap as a is money mandating and the regulation does get us to jurisdiction because again overtime pay is what's implicated not an interpretation of schedule or how hours are scheduled it's how much they're paid even though gamed the system in order to reach one thing is that the unscheduled overtime is calculated in fifteen minute increment and because an agent has the discretion in certain circumstances to decide whether they need to work so call unscheduled overtime if you don't have a two hour consecutive hour requirement then an agent could just find that it how do you work on scheduled overtime for fifteen minutes here and fifteen minutes there rather than what the purpose of the statu what you see two hours in total writing it would just fifty how do you have fifteen minutes here fifteen minutes there in one day at up to two hours when you it would be possible for instance if an agent worked an hour and a half of unscheduled overtime in the morning and then thought hey i have half an hour left if assuming that the consecutive requirement were not there could say hey i have half an hour left and you're at the end of the day and maybe you decide within your discretion that you can work another half an hour of unscheduled overtime  late and therefore the campaign event started late and so the agent would have to work two consecutive hours after that so in essence it was meant to compensate agents for times when duties involving protective services were supposed to go a certain amount of time and the records with the agency itself after the regulation was implemented i know there are agreements and look i know that there are policy documents within the agency that talk about the two consecutive hour requirement we have not seen anything that far that explains the reason for this two consecutive hours requirement existing but i don't want to foreclose the possibility that such a document exists i do know that there are some policy documents that do talk about the two consecutive hour requirement  i understand what your honor is saying unfortunately because we have looked and there does not appear to be a history behind this i'm not aware of whether that is the purpose of the regulation or not i would say that the two to two hours does i well as i said in response to judge sauls question i think a policy reason would be so that the purpose of the protective services exception is for circumstances involving protective services and in that case  is most likely that those two hours would be consecutive anyway and it takes away the potential for abusing the overtime system in order to gain additional overtime and not subject to leap in that the agent could  situation or that they had to get there earlier than anticipated because the can because the candidate got in early or the discretion which i'm talking about that has a potential for abuse is if you break up the two hours the agent has the opportunity to then say that they took half an hour here or that they took x amount of time to commute there rather than it simply being a situation of them remaining at their posts for at least a two hour amount of time which is what the protective services exception was intended to do is an agent is scheduled to work twelve hours on a particular day and then if he or she is scheduled to work twelve hours a day eight of those hours will be regular the next two will be credited to leap and then the last two will be scheduled overtime pay compensation yesterday and then now we're going fifty five forty two even if for some reason that agent is required to or i guess his or her discretion feels like they need to work extra hours if that person works two hours of overtime beyond that twelve hours then what happens all four of those hours between hours and twelve are now going to be collecting overtime pay so the exception in eve that you just talked about would not have to work those twelve hours plus an additional two hours it would be that you have your normal eight hours and then if you are fall under the protective services exception in each then any hour above eight there is no jurisdiction over claims per cent for the flexing policy my final point is that mr harvey it looks like he is conflating the use of the flux in policy with the use of compensatory time off he keeps referring to it as compensatory time off however that is the specific practice set forth pursuant to five u s c five four three where the flexing policy has nothing to do with compensatory time so there is no authority under which wondering there has to be some route to remedy should agency somehow violate regulation six point one two one b three what would be that route knew in advance that it needed to schedule overtime and treated that overtime is unscheduled instead however that is not what happened with such things polish it was that the question is you're saying that the court effect of planes is not covering the route for resolving the merits of the issue so where would somebody go to resolve the merits of that issue you're on or off the top of my head i'm not sure what avenue the someone would go to resolve the merits of a scheduling violation i would think that that might be something that they could bring up internally first but i would have to confer with agency counsel and to be able to that answer that question for sure has to be some method of resolving this right a scheduling investigation but i don't want to say that as an absolute certainty without talking to the council but i do believe that they could raise it as a violation as a potential violation that right you could look at i understand i'm out of time i just wanted to make one last qui point which is that mr harthouse on exhibit two his complaint join appendix page fifty actually talks about what happens if an agent is unable to use one of their days that they were directed to fox and it states on that page that if you are unable to work ten hours in order to be eligible for any scheduled overtime above that ten hours anything else would be compensated by leaps and then subsection e is an exception to the rule set forth in subsection d and i that if you are doing protective services that they which is a specific kind of work that it just can do on that day the example i used was say working at a campaign event that day then you would be potentially eligible for scheduled overtime for every hour over your standard eight hour work day as long as you worked at least two hours of consecutive unscheduled overtime that day and then every and then at least some amount of scheduled overtime abo unscheduled time that would be the no i believe in that situation your honor that and all six of those hours you would get premium pay for beyond belief ok and then the incident where i'm not sure that's true all hours of overtime work schedule in advance of the work we shall be compensated under subsection if you're doing protective services and you're doing to do small hours of unscheduled duty yes you are then why wouldn't it be all hours of overtime work schedule that is to say out between hours eight to twelve that was scheduled for that day yes your honor under that scenario you would get compensated for hours eight to twelve  honor i think your honor has it exactly right which is that you would say you had a sixteen hour fourteen hour day as you posit the first eight hours would be your normal pay and this is all assuming protective services hours eight through clearly there is ambiguity inherent in the statute because fifty five forty two conflicts in part with fifty five forty two easy and both of those conflicts with fifty five forty five day the leap a statu secret service agent should be entitled four hours of premium paid under under a fair reading of that i think that was worthy of further consideration by the court the linchpin of this entire case is that the agency's practices ha turned unscheduled duties into two hours of scheduled over time without any compensation and to the age of eight hundred eighty two you're essentially getting two agents to do the work of three  that's the that's the linchpin there is reason the secret service has this low morale problem part of that is the agency scheduling twelve hour days saps morale and we