that was initiated authorized approved and largely supervised and controlled by the district of columbia to redevelop approximately ten acres of prime city own land in shots with this project from the outset and they determined what it what it would consist of and it's also it had had they done this project directly with a construction contractor consistent with this that don't require a sort of direct direct finding by the by the government of the project in question and also that this is entirely consistent with with the with with the exact reverse of the circumstance in the sense of the government was receiving the property and would operate the property once developed yes your it is true that they were that they were different in that respect relationship between the government and private and the construction contractor building building a public building or or or a public work and that is that that applies equally here now in the just to start with the text of the statute does refer to every contract to which the federal government or the district of columbia is a party for construction of public buildings and public works  the district of columbia is not a party to the construction contract why is that not the end of the case it is that it is a party to a contract in which construction is that is is that a significant element in that that to the lease agreement but the construction contract is a separate contract between the developer and the builder the district is not a party that contract correct it's not a party to that to the  the developer and those those documents all they contemplate construction that is in excess of two thousand dollars and that is fission to qualify under dave's they can and the district court this reporting this in this circuit turnage case recognize that that principle that this would satisfy the can of the contract for construction element because the government funds were being to pass through in essence to pay for the construction well that is correct and here we don't have government funds going for the construction crane you do not have you do not have direct government funding that is that is correct however the the developers obviously benefiting economically from this relationship by virtue of being able to to rent the retail and the residential space  and to sell the condos that that is and that is how and how this project is financed and had the district done it itself obviously it would be it would have paid upfront and it would be it would be reaping correspondingly greater economic rewards but that is why this is a it is a different financial arrangement but it is functionally equivalent to the to the relationship where the where the traditional relationship but then to take it and pick up on judge williams question is functionally equivalent how is it functionally not equivalent to all sorts of private development that is approved through zoning boards approved through  essentially controlled by the by the district from the outset the district did determine exactly what it wanted what it would require in the last plan isn't it common for city and local governments around the country to say we want to encourage development in certain parts of the neighborhood of the downtown of certain areas and we're going to zone for that and seek development of that or all those construction projects now going to be covered by davis bacon no your honor again if it's simply a matter of zoning that would not that would not nest would not qualify under davis bacon but here you have the contractual relationship between the district and the developer that it was distinguishing it in part on the ground that this is a massive project in the middle of downtown where the land is all owned by the district of columbia where there's a thousand page lease specifying what kind of construction can go on what kind can't where that thousand page lease includes park available to the to the population opening of alleyways etc and where her low cost housing and were it provides that if the construction doesn't meet specific milestones that the project can be ended that is absolutely right your honor and that is the that is the essence of a of  how the words in that case public use but as the other side points out public works and is often defined in terms of public use extends to public partner private partnerships again you're on yes we've emphasized that in our briefs that  stand for this proposition that it's sort of that this is a public use within the meaning of the takings clause but it would apply equally in this context and on the question of contracts for construction i take it all three of the of the found in interpreting the statute that the act the specific contract itself doesn't have to be for with a contract or it can be about construction as long as it's that the city or the federal agency the park bacon are kind of private tenant at city center who paints his or her office or resident or makes other alterations repairs exceeding two thousand dollars would be subject to the the acts were spawn of that well your honor that we would not we are not would not fall under the rubric of davis bacon it would not be control so much as a test for writing the opinion going your way what is the test to distinguish a situation like that you said i think sufficiently ancillary which does not give me great confidence of the clarity of the test going forward your honor it is hard to put to specify any and exact test the bright line for that painting the partners office what is the size of the project matter well the size of because that that is what that is what the that is what makes this a public work that is part of what makes this a public about about the paint given size of apartments is no you're right there are extensive specifications with respect to the broader ramit or is a of the of the project which is what i was driving at but there is certainly nothing nothing reaching down to this to this level of really of my new shy this might be a repeat of something i asked for a bit of one way and zone by the government and then we used to a private developer for development in the lease agreement contemplates development by the private developer will any contract with the developer has with the builder then fall within davis bacon and if there are if not all of them how would you distinguish within within it and so that's a pretty significant expansion right of davis bacon although i guess you could draw the baseline the other way and i will when i and talk to the other side which would be you could argue it's a contraction quiet i suppose to that circumstance but it does seem like davis bacon originally was contemplating and we know that was originally contemplating a different scenario than this well your honor certainly in one thousand thirty one when davis bacon was an act already one hundred forty one it said that even in the last twelve years that the concept had expanded significantly and since then it is it is only it is expanded further but what i meant was the other problem which is that in the original act in the text of the statutes contemplate is the contract between the government and the builder and what we're talking about here is a contract between the government to develop or and then to separate contract between the developer and the builder which does not seem covered by the text of the statute in the question truly whether it's sufficiently similar to draw within the terms of the statute i suppose yes your honor it's certainly in it certainly consistent with the literal language of the statute and  type with it being a contract that contemplates construction as this one does that is clearly in excess of two thousand dollars even though the federal government or the district is not contracting directly with with the construction construction as a contract that authorizes construction is out it there wouldn't be any construction that's correct your honor and that again that's that that's the key point and it's clearly this is a contract for construction and it's obviously in excess of two thousand dollars i'm going just ask on the question of city permits and stuff is only applies to the district of columbia and the federal government right davis bacon act us right yes so this federal spending program of public works the acts of the act is in the political because there's no public funding there's not a public facility in any sense and there is no primarily public service that the center is like any large commercial development of private developer with private funds undertake the entrepreneurial risk of constructing a building for private interests in the supreme court so that the howard university library was a public work consider one case yes your honor in that case much go ahead there was public funding congress specifically appropriated money for the project the federal government entered into the construction contract with the bill or the federal government was a party howard university is  applies to contracts in excess of two thousand dollars to which the district is the party or the federal government that this contract is in excess of two thousand dollars lease payments are two million dollars so contract itself lease literally is right and  well and the and certainly the construction contracts are you know we're didn't we say that that two thousand dollars limit doesn't mean it has to be in the contract that the government itself science in the overtravel thing we say exactly that well what i recall in the over travel days is that the government was pain for the travel the travel agent was getting a commission not the right leave from the government but it was paid in effect through the government payment of the travel  i would point to although you were there you would produce revenue of more than that amount but the contract itself was a no cost contract this is specifically was that sort of the title of the case applies even to no cost contracts as long as there's a there are some later in that case services worth twenty five hundred and here it would be construction worth that much where else would you get the words public funds from well there is the tax there second last page of the case it says petersen as we review the act here it includes a work done on property belonging to the united states be all fixed works constructed for public use at the expense of the united states this is work done on property belonging to in this case the district of columbia isn't it but what is being constructed is not anything that's of the district that is it's not once not allowed that's not the language peterson says you told me to look to peterson i look to it and it says we're done on property belonging to united states what i mean i think the peterson definition of public work goes expressly say that the governess authorized to expend funds also congress that wrote it well i think yes but that's consistent with the ordinary meaning of public work i would also note that at that time you have that national industrial recovery act other depression era programs where in the black's law dictionary that you cited to us was not the definition in one nine hundred thirty three and the words public funds was not added to that definition until one thousand nine hundred nineteen and in one thousand thirty three looking to the very document that you say should count is it works designed to subserve some purpose of public necessity use or convenience and the words public funds are not included well so if we go by only by the meaning of public works and blacks certainly this provides some purpose of public convenience doesn't well you know this does not suffice this is a private commercial development maybe sure that dollars it seems to me that's a separate part of the statute arguably which is a contract for construction to which the government is a party that exceeds two thousand that's one part and the other part is public work or public building and i'm not sure public work or public building necessarily requires the public funding of the construction as opposed to what the end product of the construction is why it may be that that right th money now on that though what do you do with the lease agreement cases i guess my first question is are those correct in your view well we don't need to take issue with the lease i mean certainly th those two that you're done if i if you stretch the literal terms of the language slightly to cover a lease agreements in which the government is leasing the property from someone else why not do the flip side where the government is we sing it to someone else yeah well i wouldn't want to go down that road i would point to the facts of the act which does require the contract you want so much the district is a party for construction of works of the district right so what are you here you saying there and you might not want to say it explicitly is that those lease agreement cases are are on question will ground they are questionable ground but as they say it's clear that they're just finished one are facts and the labor department agrees with that but the principle that they are all applying is quite clear that even where the principal purpose of the contract is lisa facility to be used for the construction of the building is more than it is an element therefore the contract in question has a contract for conscription within the meaning of the davis bacon act and surely the construction here is more than an incidental element of the agreement between the development authority and the district of columbia our position is that the contract for construction for which the act applies is between the developer and the builder because it specifies not only will or position is not and on it to the extent that is applied to cities under that reasoning it would be incorrect there is no limiting principle to this this isn't the type of it is that it is that a problem in other words the statute applies to federal government projects in d c projects it does not apply to every every project around the country that is approved by a local government it is a problems in extent this order plies the show on past them be a massive expansion but would it be a massive expansion when these kinds of projects are done now in the place of the traditional biggest bacon kind of project that was a government costs on large projects or really any private development and in the design you are imposing costs and by posing cause you discourage development you shift development elsewhere outside of the district you her publicly funded well i'm sorry the direction not for private well that that's really the question here the got the the governor the district of columbia could take less in lease payments in exchange and if it felt that working negotiate a different kind of deal with the developer but imagine i mean all we would be all we have before us is the case where many blocks of downtown district of columbia are owned by the district of columbia and are being put to this question so this is whatever we decide in this case only need cover that kind of situation that is certainly not the case with most most permuting in the district of columbia isn't the government th de governor the district of columbia doesn't own all the land in the district of columbia doesn't you know by it is certainly involved in a large degree in private development but the rationale of the department wavers reasonable with applied where there wasn't public land and water and i just asked me to take that as a hypothetical would that have the same economic impact that you're concerned amount in the district of columbia yes there's a combination both of the district owning the land and a project of the degree of entanglement between the district and the development to cities in this case can you give me another example of a project like the government wants this kind of project it can reduce the lease payments and the fed doesn't care that is if it's truly private then it doesn't care at all about any public benefits it can charge max for the  lease that is going to be a choice that the government the district of columbia could make just like the congress has made a choice that the workers will be paid more than they would otherwise be paid on public projects that that has costs there's lots of policy arguments on both sides of me to this because you're no longer talking about what the act requires but you're talking about whether there's a limiting principle so that's why we're talking about limiting principles if you if you only look on the face of the statute you might say covers everything without any limiting principles and we have certainly held in other cases in the supreme court has held that when there's a very broad statute it's to be to be interpreted an agency isn't title to to interpret it to the max and now you're suggesting that we should think  statute could be deemed ambiguous as to whether it applies to something like this whether it's reasonable in some respects to extend the statute to these kinds of public private developments and so i was asking about that and one of the things you respond with is that it would be unreasonable because it would significantly deter economic development in the district of columbia or are there other reasons to think it would be unreasonable or problematic well it's i think it shows the absurd result i mean it can't possibly be that was what and we also have there are many situations in which the federal government is involved in some way with the use and when it took the position it's taking in this and this court solicitor general balance all the interests of the federal government presumably and they've come down on the side that they're to speak it should apply to these kinds of circumstances even though the federal government  make changes and here and no one has ever addressed this question one way or the other it's not as if the agency is changing its position even if it is confronted with something it wasn't confronted with before and has decided that the statute  ambiguous and that this applies in this case a new administration with a different view about the economic development in the district of columbia or the cost of it or the cost of that to the federal government can take the other position in fact it looks like that has happened in the department of labor but so this is not really this is really a question for the federal government to decide what's in the best interest and it can change its interest if there's an election well what i was a dressing goes the unreasonable as under stuff to shove on i think it's a factor that's assuming we even get passed up one which i don't believe we do structure purpose of the acronym of the purposes of the act was to additional costs that this is a prevailing wage rate question right and the question is whether they're paying the prevailing wages in the local community now if they are already then you don't really have the standing to know what's what's the what's the issue here well th question which you have not raised with us and you can go back to the disc if you were to lose here you could go back to the district court on that question but that's not a question before us let me ask about erwin i'm a little confused by this so early insight is is itself not a case under davis bacon right that's correct it's it has now no or yes and that statute says shall include among other things among other things not only the following among other things any projects character here for constructed that were carried on either directly by public or with public aid it doesn't require public aid public funding you've been citing this is a case as a case that makes it clear under look at the entire context and i think in light of all i'm only asking about chevron one and and the clearness of the text your time i understand the argument that the facts the context and that it may color other meanings but d the butterman doesn't say that if it weren't publicly funded it wouldn't be ok just happens to deal with a case that fits within the or true but then we also have the concept of carry on directly by the public or to make rules carrying the force of law and so if i i would love the section thirty one forty five which says the secretary of labor shall prescribe reasonable regulations for contractors incorporated within the davis bacon act and in two thousand and two congress passed a statute which which put it inside the davis bacon act and said section thirty one forty five of this title applies to contractors and subcontractors referred to in sect to say in the amount of briefing space we give both of you but but citing to it seems enough i don't see why it's a problem why i think it's unfair when that the district really responded to it in your brief it's not like you didn't respond to it is your response other than that's part of the copeland back which i knew you were going to say and i must have known that because i think you said it in your in your in your in your brief but if not i got would mean i would like the opportunity to look back at legislative history of how it was ultimately hot  that it doesn't address the issue here i mean it simply in our view said that well the contracting agency had the authority to do with the current labor did so it's ok for the department of labor to do it but that doesn't address the question cases right right yes so your view is that the agencies could have just ignored them ignored the department of labor and in fact those cases just shouldn't be in there in the first place is that right  think the opposite of what you think namely that they have to go to the board what about your own concession that the deal well clearly has jurisdiction here then saying i apply and it says that it's clear it also applies to the district you have a different view of the meaning of the regulation but you agreed that the regulation applied to the district yeah but that is it's a separate quite well i know i mean i normally under mead we say that's chevron deference when they get the agency as if they were to make adjudications which interprets the meaning of the statute and regulations that's sort of classic that and regulations themselves are sort of the classic situations where we g government that's something different from rules carrying the force of law i would also point out that the regulation merely parrots the case live comes from the current regulations comes from the early decision and well accord or one that doesn't look like it's the same at all it looks like they're the payments without subsequent conduction or they don't they involve the secretary of labor is setting of the wages the wage rates i mean those are subject matters upon which the department of labor does have authority but this is not have wholesale authority to make rules here in the force of law under the act and particularly with respect to the coverage of the act and how the term public work isn't there for that i don't think the issue of chevron deference was even contested in in the same very same similar place to these words well that is part of the wages in fact of the fringe benefits are going to the definition of wages so that is part of the part of the labors wage setting wage rate setting others that have been built under land disposition agreements in which the district disposes of property that by statute has to be property no longer serving a public purpose if you go over to city center you do the fine restaurants and shop at the fine stores it's clear this is not something that congress intended when it passed a law for this position of spending of public funds to build bridges dams or military housing or veterans clinics none of those things there has never been a case like this in which the act has been extended this far it is a stretch but you are breaking it don't kid yourself this is the most radical stanching of the act that has ever occurred if you allow it this project district is not for all practical purposes only and that's not how i am of the home with money and i take it that's not how people are going to feel in the ninetieth year come in there we have a number of their number of places in the area around here where there were ninety nine year leases and now suddenly people are suddenly coming to grips with the fact that they are no longer going to own their condominium their co op it cetera right but very entire respect in the what's going to happen we don't know the buildings are still going to be there in ninety nine years and so it's a make assumptions about what does davis bacon the hard rock mining act which are two instances where the government has just beautifully owns the property and maintains very detailed control over the way it i mean presumably this was considered when you appealed that the interest of the federal government are going to be on both sides of this issue but yes you're certainly that's so was that you can address the oil leasing question and the mining question in your in your defense the hard rock mining act was not mentioned in the brief but the oil leasing was so you guys should get get right kavanagh's point which is is united states actually making this decision about this suggests that you need to go a little higher up in the hierarchy and make sure that the united states actually that was to appeal presumably to solicitor general had to appro using that that it is that is using public land primarily for private for private purposes and private benefit that sort but it's really it seems to be unusual for for a letters it is common just on your point for mayors and the like so to say that they want to facilitate private development to make the in establishes that that the that the fact that something that is is a so called jurisdictional question within the meaning of chevron doesn't mean that it's outside of chevron even questions of off already are covered