here on behalf of the home health care and as a housekeeping matter i didn't initially note that there is a related appeal to this case on january th two thousand  and maxim or our home health care providers in that regard they both relied upon the colorado exemption for companions set forth in the minimum wage order these you know i take it you're aware of the supplemental authority that was filed at the last minute yesterday yes your honor i received the supplemental forty of the email last evening i looked at it briefly today i'll address that in my argument  reaction to it is that it is is not dissimilar from the supplemental forty that was filed previously we view it as a forty after certain changes were made to the companion exemption at the federal level by way of i guess illustration in at some point in two thousand and thirteen proposed rules were issued by the united states department of labor which altered the companion exemption by removing the rd party employer or language  those regulations became final in january of two thousand and fifteen our position here is not that the rule has not changed over time it certainly has changed over time of the federal rule now is that rd party employers cannot take advantage of the companion exemption and it appears that that rule is now moving to shift the floor shifting so to speak in the state of colorado as well but those are issues that those changes are occurring after the time period that's relevant here so it's not it it's not well it's not those changes do not have in your view legal import for the times that are material here is that correct that's correct and that the time period this material here is july two thousand and twelve through november of two thousand and fifteen at that point in time minimum wage orders all along i take it that during the relevant period colorado had attempted to align as it relates to the companionship exemption its law with federal law so that's actually so it's not really surprising that they would do the contrary now that's that's exactly the point from from our view there is if you look at the relevant time period and i'll say that's up through january two thousand and fifteen there's no contrary evidence coming out of the colorado division of labor that the companion exemption under the colorado minimum wage order is not intended at all times to comport with the federal companionship exemption we presented to the district court in that regard a series of what i characterize best probably as extrinsic evidence in the nature of st and foremost it was an august rd two thousand and six opinion letter that was issued and i would i would point out in that regard to that opinion letter did not come from an investigator at the division of labor that actually came from the director of the six it certainly was an exhibit to our you know it's in the appendix i believe we have made that argument you're on of that because it's significant in the nature of who's issuing it you're relying on it and even art in that you're relying on it as an agency opinion right exactly ok but there's other evidence of this other extrinsic evidence of the divisions opinion in that companion case that was heard in january of this year involving maxim maxim actually had to enforcement letters and those were both before the district court in our in the appendix in foresman letters are different than opinion letters some of the attacks on the opinion letters relate to the fact that there are more opinions of the you know employer in the abstract asked that the vision for an opinion those opinions are very very clear that the enforcement actions are even in from our perspective better because the enforcement actions involve the the division of labor looking at an employee complaint specific employees coming forth and saying i mean title two over time i didn't get it the division's looking at it in adjudicating it both of those unfortunate letters are issued the maxim also came to the conclusion that the division construed the companion exemption in line with federal law there's also an than that the deficient issued that advisory a bulletin promulgated by the division also before the district argued to the just report contains specific definitions of both companion and casual babysitter which do not reference the household qualifier so the thought is why would a division into finding these two exemptions companions and casual babysitters not include the household and now that argument did you make that before the district court i don't recall that specific are you and i recall you putting the that the definition but the notion that there is somehow or other the definitions have greater force because they didn't include the housel qualifier i don't recall that i believe your honor i will not take issue if you if you say it's not there but i believe that argument was we keep in mind we have filed both motions we have competing motion for summary judgment we had motions for reconsideration before district court  i believe that that argument was in fact for the district court but even to that point let's assume it was when you are defining those things why would you necessarily put in a qualifier i mean you're defining what a what a companion is you're defining what a casual babysitter is that why would you necessarily put in the house will qualify or will tell you once you have this definition what do you do with it for personal purposes of the exemption those are two different questions right i don't think that they are i mean if you're going to place limitations these are occupational exemptions that are going to place a limitation on occupational exemption like companions because with companions there's a there's a layer to it the st layer is that a companion has to be providing care for someone who's not capable of caring for themselves which by the way is the rationale for differentiating companions from domestics in the st instance one of the privileged standards act that there's a policy behind not requiring overtime compensation for individuals who are caring for individuals who are otherwise disabled and unable to care for themselves so if you're going to put the requirements for the specific occupational exemption in the definition why wouldn't you include the additional requirement that they have to be employed by the household member in particular and i haven't gotten to  are fundamental concerns of the district court's decision is that in the st instance she concludes emphatically that there's only but one for magical interpretation of this language we had put forth a grammatically sound interpretation that supported our position if one reads and i understand it wasn't grotesque then i do not believe it was grotesque if one reads the language as it is and applies the last in a senior role which i understand has been rejected in colorado as a presumption but not rejected in colorado as an interpretive it that if you look at the last and see rule and you just read it on its face it clearly supports our reading of the position of the language absolutely ok it if we but even if we consider it ambiguous we still have to consider in ultimately decide which is the better interpretation you do exactly so your argument as i understand it principle is that the d will opinion later in two thousand and six and the two thousand and twelve advisory bulletin shed light on what the work companion the but i really don't understand how we can include either one of those in or even of putting aside the twenty eight day letter that was filed yesterday because the notice specifically says with regard to the opinion letters to avoid potential confusion as to any of the above all order says that we were sent the panel opinion and this is now our pinion could parties subsequently continue to rely on our panel opinion as some sort of authoritative legal when an agency and keep money here with the with respect to the colorado minimum wage order that the statute it's not an agency interpreting statute it's the legislature saying we're going to rely on the colorado division of labor to set the standard based on their expertise the colorado division of labor has set the standard and has told employers throughout the state what that standard is through the advisor through the opinion letter that was issued by the division of labor interpret its own rules by the enforcement actions that it's taken by the advisory boards and if the colorado division of labor decides to change the rule and i think that's what the twenty eight dollars j filings go to think decide to change the rule that change has to be prospectively you can't tell the employer that the rule is acts up through this date oh wait a minute we're going to change the rule in that change is going to go backwards i don't think they can do that and i don't know please go ahead i'm going to i don't think you need to really get to the interpret it's candidly i think a plain reading of the where the where the court should start as a plain reading  we believe the judge argued that the district court judge erred in applying the wrong standard she looked to grammar only and that's not the rule in colorado and we should be applying colorado interpretive guidelines that the rule in colorado is or there are two reasonable respectfully submit that our reasons not only are our reading is not only reasonable but it's also correct once you get there then the the the purpose of the court or what the court should be trying to do is to interpret it in a way that affects the vision all of the evidence from the division supports our provision position up and through two thousand and fifteen and let me and let me ask you a question on that and this this does touch a little bit on the resending issue i mean one could  as i understand you to say yeah you can resend it which means you can rely on it in the future but it doesn't affect past conduct i mean the other way you could argue that resending means it's a novelty and you can't the terms in some sense don't exist but even right correct correct and i want to reserve a little bit of time but i want to i want to go to the plain reading of the language if you look at the plain reading language the district court judge got hung up on a per fluids and and and couldn't reconcile in her mind how our interpretation hence the conclusion that our interpretation was grotesque i submit to the court as you look to the language in that you know in the companion exemption that if you're if you're to accept you know the a police position and move forward with you know there's a superficial sand in here you have to ignore that basically makes the prior to now and that clause superfluous specifically companions and casual babysitters because they're both subsets of domestic so if they're all if this can be one rule applied to all three of them which would be entirely inconsistent with the f l us a rule then why would you have to put companions comma casual babysitters comma and domestic employees employed in households why would you just say domestic employees employed by households are you know subject to the exemption it makes no sense or reading is consistent with the last  innocent rule their reading is consistent with the th exception to the last in the scene rule in his consistent with the vision of labour's interpretations of him i'm not sure that to follow that or be that your adversary's argument is that the  which you said of why it would make sense because it's you seem to be that well if you assume that the last in a seat rule applies with regard to the rd down of course it would the qualifier would attach to the rd n what i was trying to say is that if the district court hung on the idea that there was a superb and in that clause if you took that you know that reading out that and if you go back in  except their position their argument applying the series canning all far requires that you ignore companion really and casual babysitter because they're all domestics why would you there be no need to insert those two things i mean i agree with you judge bacharach that rescind means that the letter has been wiped from existence and i don't mean to put words your mouth that's not exactly the way you phrased it but our view is that those letters have been rescinded and they should not be relied on  at all anymore i mean everybody can go back then and commit in claim additional wages well i think that would go in the period that it was not rescinded i think that goes to a more important question on that  a letter and and that is why were the letters rescind it and the letters were rescinded because of problems with the process and the division was very upfront about identifying all of the problems with the process in the a previous under the previous regimes and with the previous which a mention of my question yes they could go back now two years later and say well now i want all my back wages the answer is that a court should not defer to those opinion letters because they were issued in private without part of public notice comment and to the extent they attempt to change or modify properly issued regulations they're not entitled to deference and so i think that's beyond the question of rescinding the importance of that st of the cult divisions withdrawal of those letters is  the acknowledgement that they were process problems with letters in the st place and that goes to the deference issue deference is a different question from whether we can consider them and whether we can view them as a persuasive interpretation isn't that right  skidmore correct correct deference goes to whether the court what level of consideration the courts should give to those letters but underlying deference is whether the opinion is a reasonable interpretation of the actual regulation and even if even if we wiped those two documents out and why could we not take notice of the fact that since one thousand nine hundred and seventy eight i think  and eight i guess it is one thousand nine hundred and ninety eight the deal well as it has interpreted the companionship exemption to be consistent with federal law and if we do that that leads to one answer which is that the companionship exemption just like federal law up until the change to a bit took place covers rd party employers the court can reach that conclusion but in order to get there the court has to look at the text of the regulation and determine whether the text of the regulation supports the department's the division's interpretation of the regulation regulation they wrote it they can tell us what they meant i'd like to start with the text of the regulation and then get to why  event that's correct and after an agency an axe a regulation if it takes a position as to what that regulation means that that position has to have grounds within the actual regulation and if it's contrary if the agency's position is contrary to the regulation then courts may not the st to it if the agency changes its mind and decides that the regulation should be something different the proper method for making that change is through notice and comment rule making and that's what the agency is doing right now the problem with the opinion letter is that as a basic matter of administrative procedure an agency may not modify or change a properly and acted regulation through an opinion letter especially through a private opinion letter now like that i'd like to talk about the opinion matter because there are some specifics about the opinion letter that are important for the idea of deferring to an agency opinion letter does rest on the idea that the agency is going to engage in a reason of what the regulation actually says and if you look at the opinion letter there is no analysis and there is no interpretation of the regulation and what if the agency had one line that said when we interpret when we wrote this rule we intended to comply with and it here to the federal interpretation of the companionship exemption period then if we went to the companionship exemption in federal law for that period of time what would it tell us the rd party employers are covered why would that not be enough if the agency did that in an opinion letter that did not go through notice and comment rule making than that opinion letter would not be effective if the actual text of the regulation doesn't support that conclusion that's a separate thing notice and common rule making is separate from the question of whether we could view this as a reason analysis and if the agency had told us what they were doing when they wrote it and this is what our standard was if you want to know what we're trying to do look there and that's exactly what we do when we get the answer we get around and i respectfully disagree your honor because i think is the difference between a belief about what the division intended to do and the reality of what the division actually did the opinion letter talks about the divisions belief it says it is the belief of the division that when we enacted this regulation we meant to make it consistent with federal law a belief district court called it grotesque but i'd like to see why that is grotesque and it doesn't seem to me usually that that necessarily is true there are several very important differences between the state regulation and the federal regulation that was in the fact that the time the st important difference is that the federal regulations have an express exemption for rd party employers such as buy out the state regulation does not have an express exemption for rd party employers instead the state regulation talks about workers employed by the household or the family in other words the perspective is completely opposite and the state regulation looks at it a different way makes a specific exemption for workers employed by the household of a family and makes no mention of the rd party providers and there's a whole set of federal regulations about rd party providers so that's the st difference the nd difference is with respect to domestic workers the federal regulation distinguish between live in domestic workers and other domestic workers and under under the federal regulation live in domestic workers who are employed by rd party employers liked by ata were exempt under the state regulation under both parties reading of the regulation those same domestic workers would be non except because there is no question that the household qualifier at least applies to domestic workers in the rd part of the state regulation at issue here says investing workers employed by the family and the household are exempt and that is the limit of that exemption one doesn't have to say that they track in all respects to say they track as it relates to one aspect of the regulation i mean the question is have they tracked consistently since one thousand nine hundred and eight as relates to the companionship exemption that's what we're here about that's what this case is about and our response to that your honor is that we're talking the only thing in the regulation about companions is that companions are exempt there's an exemption for companions there is nothing further than that to determine whether the division of labor tracked the federal regulations except that it didn't include an express exemption for rd party employers like the federal regulation did so then we move on to the accompanying words around the rest of  the word companion and look at the phrase that we're looking at and there's a clear intent to differentiate as to domestic workers they're treated differently and our point simply is that there is no there can be  you i mean the fact that in the in the the federal wage regulation they're treated differently yeah they're treated differently because a household exemption only plies to them i mean you know this notion that it is a grotesque reading strikes me  odd since the end this so called is a perfectly is and could just be a way that they were underscoring that this is a difference this is the break there is casual babysitters there's companions and there are domestic workers who are subject to the house will call far that seems like a natural reading to me there doesn't seem to be anything grotesque about that the point is this around and i'll try to make it one more time only basis for the presumption that the state regulation is meant to track the federal regulation is a statement in a two thousand and six opinion letter that the director of the division believed that that's what the division intended when it and acted the regulation you were focusing on the text of  the that regulation i was trying to comply and if we focus on the text of the regulation if we were going to find that that two thousand and six opinion later in some sense was an reason or didn't had or should not be deferred to then presumably would come because it is in conflict with the text right correction ok and one way you get that conflict is you say the text is grotesque and therefore there the reading of the text that is being positive positive it's grotesque and it just can't be that and therefore there's a conflict there between what the agency believed it was doing and what it actually wrote the point i'm making it i don't see that i don't see the grotesqueness of that reading of that language that language actually if i were  knowing anything about this case that's exactly what i would read it to me that that end was designed to underscore that there was a break between casual babysitter between campaigning and between domestic employ the last language only applying to the last i understand your position your honor and we read it differently the district court did as well and if it's ok i'd like to move on to a couple other areas of the argument that the next piece of like to address is the th letter that we filed last night and a quick point on that we are not taking the position that the new regulation should reply retroactively what's important about the twenty ha filing or the statements that the that the division made in conjunction with its notice of proposed rule narrow and it only applies to employees employed by the household and the family members by household or family members it does not apply to rd party providers and the division actually expressed policy problems with the narrow scope of the exemption and so now what we have in front of us is a regulatory record that actually provides a great contrast between backroom private opinion letters that attempt to change or modify the law and proper notice  comment rule making the issue to the public that invites the public to participate that explains the agency's reasoning that includes research includes a notice and comment period and that will come forward with additional regulation and would and what would be the import of that will lead to all of those people who relied on the other interpretation i mean you i think in your st twenty wait j later you cited kaiser an income or k i a s or however you pronounce that in that case the court talked about the notion of unfair surprise now what sort of unfair surprise would come to all of these people to now all of a sudden learn that all no no no that never meant that it never you know even though since one thousand nine hundred and eight we were saying we were track and with the deal department of labor a federal no we never meant that the unfair surprise is part of the problem with the opinion letters they were not public we didn't learn about the opinion letters until we filed this case talking about this document why isn't this analysis in your of the public record and the only reason that they that they become available is if they arise in litigation or if someone submits a for your request and so my answer is there is no public there is no undue surprise except to those parties who have taken it upon themselves to get a private ruling from the agency without public participation so the use of we should make of the nd twenty one j letter relates to the explanation that the agency is giving of what it intended at the time correct ok  and i would like to close with this bit about statutory interpretation we don't dispute that both intrinsic and entrance extrinsic aides are proper it's to statutory construction i want to clear up one dispute that  permeated through the briefing and that's this question about the last antecedent rule and whether courts apply it and we submit that the claim that the cases buyout ascites are clearly examples of courts identifying the last and a season rule deciding not to apply the last in a season rule and then reaching a conclusion through other means and the primary example of this is the weeks case in weeks the court says we are not going to apply the last antecedent rule we're going to look at legislative history now it goes through the legislative history and reaches the same result that it would have reached if it applied the last aniseed in rule but the important distinction the courtroom was is it was getting there through the legislative history not through