servicing of automobiles i do not think there is any realistic dispute here that service advisors are in fact sales people and it seems clear to me that service advisors as their name suggests are principal engaged in the servicing of automobiles thus under the plane and literal terms of the state of the statutory overtime exemption these individuals are exempt because the statute exempts any sales person men who are prints primarily engaged in some selling or servicing an automobile a truck or a farm implement now my friends on the other side will essentially concede that those last three statutory nouns automobiles trucks and farm implements applied to every other noun combination in the statute so they don't take the position for example that trucks inform implements only go with servicing and automobiles only goes with selling but they do take the position that with respect to the jerry and selling that it goes uniquely with salesman and therefore even if you accept for a minute that there is a class of people who exist who are salesmen primarily engaged in the servicing of automobiles my friends would say they're not covered by the statute now i would submit that the statute has multiple textual indicators of breath that suggest that's not the right way to interpret the those service visors who right now are not compensated on a commission basis and justice i don't have a specific statistical breakdown but i'm reliably informed that it's a significant number so it's not that almost everybody is on a commissions basis and there's a couple of outliers who are primarily salary i do think the arch typical service advisor is paid on a commission basis and therefore what i take the import of your question might also qualify under the two zero seven i exemption that's generally a portable across industries to commissioned individuals but there are significant numbers of individuals who are primarily compensated for salary and their work at that way and of course as i think the court is aware these fair labor standards act rules are not waiver people so if you have a service advisor who's job and unless the law protected them no employer would pay overtime well i understand that i said where i was i don't know how i can take from the fact that service advisors accept what is given to them because they have no choice why they talking about those of the people who sell service who are not on commission what basis is there for giving them an exception they work regular hours i take it if they work regular hours and if they are paid on commission why would they be treated like secretaries or others i mean apparently congress fraud that the mechanics themselves are special because they go out into agricultural areas or something in the middle of the night and fix a tractor says they work the regular hours but these people don't work irregular hours and they're not paid on commission so why would they be treated like a secretary  or you see you got my question i get your question i think i would try to rephrase it slightly but i say no why should they be treated differently from huntsman or mechanics if they're also paid on a more salary basis and so they don't qualify for the v a and i would because the parts men and mechanics so congress law in agricultural areas would have to go at three in the morning to fix the tractor and that's why they get within this special treatment and  whether that's still true or not i don't know but that's why they're there in the statute and that isn't true of the sort of sales here just as i write about that you know if you want to be very responsive to that because i do think whatever you know senator by was thinking about farm implements back in the day rush i think today there's a very good reason to treat the service advisors the same way as the parts going to mechanics for purposes of the overtime exception to the first thing to focus on here is that we are talking about an exception under the f l let's say only take over time provisions so whatever you decide this case minimum wage provisions are going to apply the here's the reason that all the people on the service team the parts been the mechanic and the service advisors really need this exemption because most customers of automotive automobile dealerships who need service themselves work pretty regular hours sort of nine to five monday through friday so the busy times of the dealership are what they call the morning rush and the afternoon discharge for the day and then also on saturday over ninety percent of autumn abele dealership service departments are open on saturday that's so with respect to the parks men and with respect to the mechanics they end up working a little more than forty hours a week because they're there a little bit earlier than most people they leave a little bit later and then they're there on saturday now most of them in fact are paid at least partially on commission and the way most of this works is that everybody the parchment the mechanics and the sales advisors all kind of share in the commission so if they bring in a certain amount of sales they all share in that so as a practical matter it makes an awful lot of sense to exempt all of these people from the overtime rules there are paid well they're all paid above the minimum wage which is the exemption doesn't apply to anyways and they all have a reason to work like about fifty six forty six hours a week instead of forty hours a week and it would be very very disruptive to all the sudden take the service advisors who are an integral part of the team also happen to be the best paid on average of the three and say we're going to knock you out and you alone are not going to be exempt from the overtime rules i think would be very disruptive and the industry has understandably come upon these arrangements during the three plus decades when my friends at the labor department acquiesced to this arrangement because they had an interpretive regulation they went out and brought some enforcement actions and even though it was the wage in our division themselves that really to getting  i take less value in what the court said because every one of them said the provision was ambiguous well i just thought that the better argument this was before chevron claim for your interpretation so i'm i'm not quite sure that it's accurate to point to those older cases as supporting your position i will quickly so just the sort of way or i think it's fair to take the older cases with one grain of salt but i wouldn't take it with two or three and the reason is that chevron with all due respect invent deference to agencies and that's why i think it's important to recognize that well those early cases those were cases that were enforcement actions brought by the wage and hour division and they weren't just cases where a private party was coming in so i don't think the judges in that case those cases when they were sitting there listening to the wage in our division layers didn't have some deference and i'm a very practical question are these sales advisors specially trained in some way do they go to cat mechanic school to the how are they trained i'm sort of going a little bit out of the record here and i haven't read anything that's directly on point my strong suspicion though is that there are these kind of academies that are put together including by the national automobile dealers association and they would get some training that included both sales training but also some training and some diagnostic but i'm i want to be candid that that is to them candid with you it scares me to think that every time i take my car particular that a non mechanic is telling me what's wrong with it well and i understand that but i think that's actually why these people may be non mechanics but they're not outside the servicing lane well and there are  dealers this is something that you know i am more familiar with the real cost of the dealership if the original diagnostic is wrong and they end up we're doing the wrong part all of that is stuff that they do try to minimize and i do think to get back to the chevron point though it's also there because up until two thousand and eleven the interpretive regs that date back to one nine hundred seventy had a specific provision see for that addressed service advisors and explained the rationale why service advisor for an exempt i don't think it was particularly persuasive to any of the courts but at least there was something that addressed service advisor specifically now in two thousand and eleven in the process of this notice and comment room making they actually remove that entire so they interpret regs no longer have anything that addresses the service advisor specifically so they're now relying only on the language in c one that addresses salesman and says salesman somebody who sells a car which we think is incomplete recognition of what the statu actually says but what i'm making is really two points that i don't think they're really in table two in two thousand and eleven take something out of the regs and then all the sudden say well because we took them out of the regs through notice and comment rule making we now get chevron deference where previously we might not like it so i don't understand that i mean it's sort of the classic case for chevron deference a notice and comment rule making they clearly considered exactly this question they made a judgment on it they've affected that judgment within a notice  comment setting i mean if that's not chevron what is two things your honor and then i want to remind you that if the statute is clear you don't get the two things carson here's the first which is i would agree with you if what they did is at the end of the notice and comment rule making they came up with say a new definition of services and that influence why they came up with the decision that they did but that's not what they did they came up with a decision they took out the provision that specifically address service advisors and then total of their explanation i think it's worth a read your honor because what it principally says is we're doing this because we don't think the statute covers it which is not really the kind of explanation i think i want to get them something other than what the statute means and then this is my second point because the first one is not so good the first time agencies do this all the time they say this is the way we read the statute this is the way we want to read the statute and this court has never been in the business of saying when you think the statute says something you don't get deference whereas when you think that the would be an administrative at all this court has recognized the exact same principle in the our context which is to say that if all you do is parrot the statute then that doesn't really gain you any extra deference and i think it's all right parroting the statute this is saying we read the statute in a certain way which we think is better than another way and so i want to get to my second one i would just say though i do think it's worth reading that paragraph on c five and see sex because particularly in the unique circumstance and this is the segue to my second point at least in a unique circumstance where is looked at the statute since you first took the position that it meant x has said no it means not x to then just because you've had a notice and comment rule making which by the way started with a proposal to codified the rule that all the courts adopted just because in the process you say we still think we have the better view i don't think that's a to get you deference but even if you disagree with me so far i mean i do think fox and state farm before it say that when an agency is changing it it has to a cow or the reliance interests that have been engendered and you'll see nothing in that paragraph about the fact that for thirty three years we the labor department agreed that this was clear the other way i mean the question is on the reliance interests if you think people have been lying and will be punished for that reliance and and i guess the question to you is well why would that be so because this applies not retroactively but only prospectively and there's a particular provision in the corner of the portal at which essentially says if you relied on an old interpretation don't worry you won't be subject to any damages with respect to that interpretation so two points on that your honor the first is that just to be clear the complaint in this case was filed in september two thousand and twelve it didn't say and we here by seek damages only after the may two thousand and eleven effective date of the regulation so in clients are in the ninth circuit but i think this is even clearer think about a dealership in the fourth and the fifth circuit ok they already have circuit precedent that says that the service advisors are exempt now if all the agency does in a room making it says gosh darn it we still think we have the better view what are they supposed to do are they really supposed to change their operations overnight and conform to this even though they have an extent circuit precedent that says they're right in the labor department's wrong and that is what it least in this narrow circumstances makes this different i mean if they'd come in and say well we're going to come up with a whole new c four and we are going to have exploration a new nation for why these guys are exempt then maybe the certain auto dealers in the fourth and fifth circuit would think well this is a whole new day maybe we better change you're taking a risk because now the agency has changed their minds and so going forward don't where you want off the hook with respect to everything you've done in the past going forward given the stock train called chevron deference the agency's going to get up thumb on the scales and it's very possible that you're going to you know be subject to damages if you keep doing what you're doing well just asking and i try to be careful lawyer so i probably would tell my clients there is now some additional risk and there was before but boy if you have a lot of workers who really like the fact that they are compensated mostly by salary and their service advisors i'm not sure i go through all of the trouble of rewriting all of them and putting them on a commission on no better analysis then to simply say you know we like our position back from one nine hundred seventy i would probably tell him if you want to be really really careful you should change your policy but i like our chances in the courts and i would tell him as well don't worry too much about chevron because i really don't think the statute is in figure was at all i think the literal reading of the statute makes it crystal clear that if you were a salesman primarily engaged in servicing automobiles you come within the plain terms of the statute were means were in that context and even if in the course of advice in them i would have come across the dental cannon last used by this court in one thousand nine hundred eighteen i would have said well don't worry about that he's either because what the all it does is it says that when you're reading a statute and has a bunch of nouns subsets separated by weren't a bunch of verbs separated by or and you apply them all as you should if you get to something that just is a barking cat there's just no such thing then other agenda can and says this don't lose a lot of sleep over it just go on to the next noun verb combination and continue to interpret the static don't like completely reorder the way you're thinking about the statue and say well now because i came across a parking cat run incorrect what i think what i recall from the complaint was that it's that it was seven to six and so that would still get you if you don't rotate them around that might get you a fifty five hour work day when i was going on the forty six hour since i think that's and it appears to have different entries for salesman service advisors parts mina's mechanic do i read something from the fact that or should i read something or why can't i read something from the fact that congress knew that these different positions existed they would define to the dictionary of occupations differently and it decided to use ousmane which under the dictionary meant a salesperson of cars a parts men which was defined the way one would think and a mechanic but it didn't include well here's what i would say that you should read into that just the sort of my or which is you should read into the fact that congress used the term any and any salesman and then modified it not just by selling vehicles but also by servicing vehicles to think that congress didn't need to separately add the service advisors in because they were already covered by the language of the statute i would also thought it important the parts could arguably service automobiles because they provide the parts for the automobile yet congress found a need to be explicit and to add parts made why wouldn't it have if it's been intended to include s i mean you could make it and you know i'm not so sure i wouldn't try but i think would be a much harder argument than to say that the service advisors are covered by the term say septic dictionary doesn't use the words the functions as functions of selling a car and it doesn't use the word service and it should to tional since it says it's going to evaluate cars it's going to give the work to mechanics but it doesn't use the word surface in a car which doesn't the occupation that they are compression yeah well i mean i guess i would still say that the question and i'd make two points one i've already made which is i do think since they used any salesman i think they thought that they already had it covered the second thing i would say is i think if they were going to include service advisors into the statute i think what the statute would say is exactly what it says now which is i would say any salesman service advisor parts being or mechanic engaged primarily engaged in since selling or servicing automobiles trucks or farm implements and what i think that shows is that there's nothing at all unnatural to say that the service advisors are primarily engaged in servicing automobiles that is what they do with their part of the service and process the way i would think about this is if you imagine a very small automobile dealership and they have one person in the service or that person is going to come out there going to greet the customer they're going to work with the customer to diagnose what the problem is once they figure out what the problem is they'll give them an estimate then if they have to fix a part to go in the back to grab the part then they'll take the part and then they'll put it in the car in the fix the part and then they'll go back and talk to the customer and tell them what they did now in a modern automobile dealership all of that is done by three different people working as a team and it seems to me quite clear that the service advisors are part of that service and process indeed my friends on the other side i think almost give us that which is to say they would seem to come close to saying that if the statute said salesman primarily engaged in the servicing process they would grant us that that the sales advisors are covered and they can quibble if they want but that's where i read their position they simply say but the statute doesn't say process and so what they have in mind is the statute must mean very something we narrow by servicing this is that you have to be under the hood or a refund or your nails or something like that and the big problem with that is the part the parts men are no more in in the main under the hood or getting their nails dirty by actually servicing the the automobile but they are an integral part of the servicing process and because they are covered i think we know that congress use the term servicing in a more sense and not in some narrow sense that you have to do the service and personally if i could preserve the balance of my time thank you counsel mr chief justice and may please the court f l s say exempt salesmen who sell cars and parts men mechanics who service cars service advisors don't sell cars nor do they service cars which requires automotive manual labor they merely write up paperwork petitioner's argument fails for three reasons first selling services is not the same thing as servicing petitioner's argument is an end run around the statutes to redirect objects of selling cars honor several the first one is i don't like service advisors they're expressly named in the statue secondly they are working as mechanics right hand men or women some parts men grind down parts or build them up some use  dispensing part when asked or those that are who are not as to those who obtain parts don't change the parts supply the correct part to the mechanic they would still be engaged in servicing automobiles you would say if they are physically dispensing the parts handing them over and doing so in sync with the mechanics works or take a transmission job if an automatic transmission is being redone the parts man has to know that the this is a back and forth it's a mechanic facing role not a customer facing more closely connected with the actual repairs of the car there's no question about that that they are not engaged in manual labor that type of parchment is not engaged in actually doing anything physically with the car so if they are covered if that's if servicing automobiles includes that then you have to explain why the line is drawn between that activity and the activity of the of the employees who are at issue here i have a couple of responses the first one is if there's a line to be drawn that of course for the agency secondly i would say that they are engaged in the dictionary definition but hearing or maintaining automobiles and in the reply brief at page eleven petitioner comes very close to conceding whether or not repairing in the way that repair is servicing is used in several other statutes that we cite but our theory is they are part of this general process or integral of core cells in service which they're adding to the statue the only way the petitioner manages to add that to the statute is saying that the phrase engaged in somehow broadens the ordinary meaning of services but it does the reply brief and they say that the definition means that in gauge didn't include any closely related process so we have the actual subsection which says precisely the opposite of that it does not provide separate definitions are produced and engaged in project producing as petitioners quotation suggests it defines produced equal to engage in the production of goods the subject is engaged in doing the action now what that  if you look at twenty nine u s c two zero three j it says an employee shall be deemed to have engaged been engaged in production if employed in a related process it is the deeming that sweeps even closely related processes it's not the language of engage and then we look at this court case law interpreting that very provision so this court has country interpreted that provision as contrasting the narrower phrase actually engaged in production with the broader phrase every process or occupation affecting production that's this court case farmers reservoir three thirty seven us at seven fifty nine to sixty so far from proving that engaged in opens the door to the you know the find process of services section two or three j and this court's precedent confirm that it does not broaden the verb services and servicing means repairs maintenance and similar automotive manual labor now well it's just that i suspect it differs from place to place and how many people they have and what they have but why isn't i mean i think the people when you go in and you know you go into the cars making a funny noise or something do they go out and look at the car listen to the noise what's that i mean that seems to me to be more like a process and then they go to the mechanic and say well you need to do this or you want to look at this or whatever so my understanding is that i guess trying to you earlier said you're just doing paperwork and trying to put a finger on exactly how much they do that and how much they do of the other right so my understanding is that the important difference between service advisors and portsmouth to answer both questions together the service advisor is a customer facing role he's advised in the customer not advise and mechanic because up to the customer has a clipboard records whatever symptoms the customer says it's making the schooling noise or it's not driving well now only in that sense is he recording something with that the automobile is not going under the hood he's not taking good the first thing he does is give you an estimate yes and and the both both in cost and in time and make recommendations for what maybe you should replace it it would cost you extra or so  just to say that he put something in there is that the mechanic that's incorrect or you are correct your honor the is giving a preliminary estimate based on we think this cooling noise means you need a new timing belt that's how much it would cost have you had your brakes done it cetera but it goes back to the mechanic and the mechanic may come back and say no actually you need an overhaul or something else after going under the hood and have need to be too particular but if there's a screening sound in a might be the fan belt you're saying he's not going to open the hood and look at the fan  well he's not he's not going to be measuring the tension on the fan belt touching the fan belt doing any of that that's back in the shop bag for i believe the reason is they can't do the work in the front the insurance requires all of that be done in the back is my understanding are people in that in order to worship who do lots of things that might be part of the general process but titian leaves the impression that there are three or four kinds of employees and you're just carving one out from an otherwise exempt unit now at least twenty categories of employees in the service department  the machinist brief explains there are dozens of kinds of employees in the sales department in parts of used cars in leasing and so they may be engaged in this selling of services but even if they are selling services is not the same your gauge and servicing why would i be here folks since i'd be over the sound department i think it is either way frankly i mean i don't really i can't get too far with language which is why i have a question which isn't related to language of i would say if you don't think it's clear of course of all deference to get well that's the question and i don't hold you responsible for knowing every word i've written in every case but and i probably in foxtrot that more than many of my colleagues i given my position they are and here we have the agency going along and issuing a manual where they say the opposite of what you're saying now and then we see what happened when after thirty years they changed their mind and i thought mr comment was right and if you read the their reason their reason happens to be this the fourth circuit says the opposite but we think n and i know they didn't use those words but i wouldn't call that or the equivalent a reason and so is there somewhere in this document see one through part is there somewhere a reason why they changed their mind over than oh we think this is a better interpretation is that doesn't address the problem that i thought was an issue in fox and if i were to use one word to describe that problem i the word babe used it's called reliance i'm not saying it predominates but doesn't the agency at least have to address your honor there are about four questions in there if i might take the material you asked about your own writing your own position on the lines of what your own opinion of long island care were first of all who took the position that intermediate agency enforcement changes etc rulers and it's smiling the court said the same thing don't count as changes of position in the first place and i know that's a good point and i don't know how absolute we ought to be there and the reason this is now facing me with that problem of course they can't do everything for every employee in the agency and they get all kinds of informal advice it's a practical problem but here we have a kind of extreme thirty years manuals noting it's listen to me that it's a change of position i mean it's not just one part of the agency can't always be consistent with every other part so that's exactly where you put your finger on that i think why i asked the question and the fact that i said it that way that time that monster is going to show i'm not always perfectly the members of this new rule came out as becoming effective in a month you need to take account of them you also have a component your question was about the basis for the rule making and for the change in position it's not just the paragraph page sixty five to see six of our brief the two pages commenters point now there are a line drawing problems here these are not classic mechanics or servicers they were just coordinating they have this administrative function they're not just because they're integrated doesn't make them in fact selling or question is why the change the and i do get this we change it because we think we're more consistent than the statute than we used to think that was consistent with the statute i'll go that far and now i have to figure out is that a good enough reason to if you didn't think it then but we think it now there's more and that that is there anything else there's more here on earth and page c five new low points out some line problems with drawing these kinds of lines it's cleaner and simpler for the agency to revisit the issue for the first time with notice and comment remaking to say let's just treat these people as a class and not require a book keeping a watch warranty versus non warranty work and so that when the makes a line draw france in there i think that's what it's referring to and the agency is saying just as a class they're not selling vehicles they're not servicing vehicles they're selling the servicing of vehicles if you clement suggested that you might be seeking damages eleven conduct are you a complaint was filed in september twenty twelve the two your limitations period goes back to september twenty ten we have noted that as for anything before the effective date of this new regulation may fifth twenty eleven the portal the portal act could be pled and it could perhaps be proven that's an issue for remand it's not in this case at this stage but congress has dealt with this issue and there is nothing retroactive about applying a two thousand and eleven regulation the good faith reliance provision yes that's twenty nine u s c two fifty nine and is that applicable is that an open issue on remand that's an issue that hasn't been played it's an open issue on remand and  miss you were about to say there's nothing retroactive about about applying a two thousand and eleven regulation to post two thousand and eleven conduct or that the government's brief deals with this well that the kinds of serious winds interest that count for these purposes  and that changed the department understanding of the statute it maintained the formal regulation it rescinded the enforcement materials it said they would not enforce during that period of time so the department said i just want to get the bartman said they would not enforce damages when the department said there they were not going to enforce the position that you're a kicker lady our position is that the defense may indeed preclude that i know but i'm asking what so in other words they may not succeed in their  know on the less think when the department says we're not going to enforce the view that they're liable for damages because they didn't take the opposite view we're willing to concede the pre two thousand and eleven damages is that just at this point or if this is clear from your if that had been your position all the range of salaries we're talking about is a broad dispersion the bottom ten percent of service advisors based on the figures i've seen make less than one and a half times the minimum wage they're up entry level jobs at twenty two thousand a year those are the people who are going to be affected by this ruling those are the ones who would not qualify for two seven i if it were restructured as commissions and so we're not talking about the highly paid ones from the dealerships could exempt under two or seven i by structuring it we're talking about people who are who are just above the minimum wage less him feel more comfortable about this if i understood the criteria that congress applied in choosing the employees who are covered by this provision so take the case of the sales person who is not working on commission why did congress include that employee within this category and what is different about employees of that nature from service advisors who are not working on commission the understanding of congress is discussed in their brain was that salesman or selling any where they go back in the sixty's it would be selling off hours they'd be going to people's homes that when they met people at church or clubs or wherever and that mechanics and cards mean there's justice prior alluded to we're going out and question yes if the universe of employees who meet the exemption now is has struck so it's narrower than the original purposes that is a reason for congress to repeal or restrict it it is certainly not a reason for the courts to expand it four and separated salesman from parts mechanics and subsection clause b second i'd like to discuss petitions argument that selling services is being primarily gauged in service and automobiles as a techo matter we think that's just plain wrong and finally i'd like to discuss really what's at issue here has made a lot of policy arguments high paid commission people who are salesmen there incentivized to sell petitions as sexually could see it in his argument that what we're really talking about are people who are paid on commission those people are who congress was concerned about people who fall outside of two it's those seven i mean there's no reason to expand to thirteen the one way to cover them so first salesman primarily engaged in selling trailers boats or aircraft that shows you that congress was linked salesman to selling and by implication parts men in  that you're engaged in the selling process or this and the service in process because you're selling servicing if you're selling plastic surgery you're not ever thought to be engaging in plastic surgery you're selling it maybe you might be soon to be part of the process of servicing but it's not natural to say that your engaged in servicing and i think it's telling that petitioner has to rely on section two or three j as my brother suggested two or three j's definitional section the only way petitioner gets to the suggestion that doing things that are essential to the production is production is because the statute says for purposes of this chapter it sh production and as my brother explained from his reservoir in this is a quote explains that production in the normal sense is quite different than in production in the special sense defined here but what we're talking about is the normal sense of being gauged in service and that means you are actually taking part in the repairing or the providing make notes for automobiles service advisors do not do that work for petitioners reading if you really do would spin and servicing to extend are working hand in hand with mechanics to logically understood servicing but a salesman is not logical hundred be understood to be servicing so what's key about the canon of wood dando and the recognition of distributed phrasing is not that you have to read the statute that but what it does suggest is that there is no such basic rule but perfectly adequate but mr comment does have a point that somehow the agency took out this more specific explanation and i guess if i was just looking at the explanation itself i would say you know not an a plus jo appendix to our brief it said so as advisors are included unless you're primarily engaged in the work of a salesman kurtzman or mechanic as defined so what really does the work is the definition of salesman and the definition salesman is what they reenacted after notice and come to making some modifications to take care of changes since nine hundred seventy four minutes the definition of salesman covered and they say as used in section thirteen b tends to the construing the statute as it has been construed theirselves when sure a new kind of a general sense but they're not salesman as construed in this provision because they're not engaged in selling automobiles not the perfect but a passing grade for exam but they're there and so then with the service people an agency could reason well let's not make a bad situation worse which is what you say when we could reason the opposite these are perfectly identical why not treat them the same i'd say that was within their know i guess i could all read that again and try to see do they really address it and that's why having a problem i do and it isn't just he's quite right your colleagues are he says this isn't just a simple reversal of regulation it isn't that that they never really had the regulation acquiescing and they've had to find things in hand books and so forth but the practical fact is everybody thought the law was what the court said and so now suddenly in the protection being addressed it address it think about it i think what's necessary is for the agency to recognize that it had a prior position which it did here it also has to explain what it's doing which it did here explain how it understood the statute to explain why are we despite thirty years of going along with the other why now do we think that was in the state i think you can you can if that works fine but we don't think it's necessary but selling the doing selling and so as a result they said well when you're working on service and a warranty you're no longer selling so you don't come for the exemption only when you're selling on  justice may please the court just a few points in rebuttal starting right where justice pryor and my friend from the estes office left off which is to say i think you know if you look at what they did in the preamble they did what agencies do every day which is first to say we got some comments that said this we have some comments that say that they simply relate what the comments were then there's the money paragraph that explains what they actually did what justifies their decision and there's nothing in there about reliance interests at all so if there's anything to your position then i think this does not get a passing grade it gets a flunking grade and what i'd like to just offer as a potential comparison as you may know the agency has also revisited the issue you addressed in long island care and they did that through notice and comment remaking and it's worth a quick look to show what knight looks like and what data looks like because that is all about the reliance interest of the fact that they treated this one way for many many years and there are sections of that preamble explaining when they change it how this is going to impose costs and why those costs are justified it's it is a stark example of how the agency should behave when they're changing the position and here's the last thing to add about this is also if they give that kind of analysis it gives some reason for people especially in the fourth and the fifth circuit who already have a binding circuit precedent that say that service advisors are not are exempt it gives them a reason to maybe think about changing but when they do nothing to address the reliance interest and they just say gosh we really think we are right all along why is anybody especially in the fourth and fifth circuit supposed to change the way they're doing things and that's the only way that they say they can even possibly get within this protection against massive retroactive damage liability so i think in a sense the state farm principles are the fox principles would work hand in hand with this concern about retroactivity sure as long as it means that there is no retroactive liability i mean it well there somebody can see that there's no so they're not going to claim any no no no no what they want can see what i'm talking about retroactive right ability is i'm talking about liability that predates when they clearly explained why they changed their position which would be sometime in late two thousand and sixteen as opposed to in two thousand and eleven so so in that sense it does make a big difference just a couple of other textual points because i do think you actually don't even need to get to any kind of deference issue my friend on the other side i think we have a better reading of two zero three j if you want to look at it because congress specifically it's a definition session everything in there is what they deem things to mean and then they deem production to mean one thing and then they mean engage in production to mean something broader but no events my friends concede that gaijin means taking part well the service advisors take part in servicing just like department take part in servicing mr chief justice if you have any questions about what the service advisor still a good place to look is the complaint j forty they tell you what they are they evaluate the service into a repair needs of the vehicle and they write up an estimate for the repair and services that to me seems to be taking part in the servicing process i'm not so sure that's not more integral to the servicing process than what the parts and do the last point i'd like to make here is that there is a practical anomaly that will be created with siding with the other side is that the best paid people in the servicing departments will now be the only ones that are not exempt on average the service advisors make about sixty six thousand dollars a year the average parchment makes fifty one thousand dollars a year the average mechanic makes fifty nine thousand dollars a year now i'd hate to be the person that has to go explain to the parchment and the mechanics why it is that they're better paid service advisor colleagues are the only ones that aren't exempt from the f l a say over time provisions in there are going to get a windfall in litigation like this that we  end to the extent that they paid in mission returns and the thing that most of them are yes justice ginsburg but to repeat my answer to you there are people right now who are service advisors who are not paid principally on a commission and they like it that way and the consequences of ruling in the other side's favor is that automobile dealerships are going to have to go to these people because f l s a provisions are not way people and they're going to have to say look i know you like it this way but we got the supreme court decision so we're going to have to rejigger things you get into this different seven i exemption for commission so you can no longer be paid the way that you've been paid for the thirty plus years that the labor department's been acquiescing in this we think you should join the decisions of every court to address this issue save the ninth circuit below and find that service advisors are salesman principle involved in servicing automobiles thank you thank you counsel case is submitted