department of health and human services the centers for disease control since one nine hundred eighty nine ultimately serving as a distinguished consultant in infectious diseases in two thousand and twelve dr weil was converted to the accepted service in which he served for over two years so if you say she was hurt converted to the accepted serviette what was she and before the acceptance for she was in a series of one year temporary appointments those were in the accepted service to when she was just concerned converted to an indefinite term and excepted service yes ok ok and that's what in this case i think a very complicated but she was she's always been a pointed under this special hiring authority in two and i know right yes which places people which allows them to be appointed without regard to compare the service procedures which means she's in the accepted service yes well that's only the competitive me except right and she's always long time to give how do you have any sense of how many other special hiring authorities there are out there like to and i doubt that it except people from the competitive service by statute as opposed to the schedule a listing from i know that  for h h s there is two hundred nine af which applies to consultants and there's two hundred nine g which applies to i think scientists and other physicians possibly and other g a o did a report on title forty two authority in two thousand and twelve and they found that twenty five percent of and eye age employees were title five hundred of these people is there any like we look at the report i don't remember the details but is there any is there any breakdown of how many of those are serving under term appointments instead of indefinite appointments like the ones here under two zero nine now for the first time and i believe it was because they were getting pressure with respect to these constant term points which provided the employees with no protection  did i look this hard as i could for how many title forty two employees there were at h h s so i guess i mean this whole thing i frankly haven't got a very good plain language are even on on seventy five eleven in the due process amendments on the other hand it seems clear that agencies and operating under the assumption for many many years there is no appeal rights and they've been hiring people with that in mind and and they probably converted a lot of these people to and instead a term with that in mind as well so i understand you have your legal case but it seems like there may be some really bad ramifications for people going forward as to whether they're going to be classified as charming or indefinite if you w well i don't i really i don't believe the department could go back to classifying these people want to turn know that i mean in terms of future hiring i mean it seems likely that if if they're going to be subject to appeal rights of they're classified as indefinite and not given short term appointments that they're going to go back to using short term equipments but these are good but these aren't short term appointments many many of these title forty two employees have been employed by his for years and under term appoint simplistic given how familiar both of you are with these topic areas and have been for years but i but i just want to get to the cases and as i see the battle ground in the in the in the fight over the cases is that you think this case is closer briggs and the government thinks it's closer to that is that fair yes that is fair so and so you're not saying that we would have to say that we have to overrule bennett to rule in your favor no not for not at all  and the court specifically said in bennett thank you for that but for the fact that you're statute specifies that you can be removed without regard to the civil service laws whereas in briggs it did not say that ok so then the language in bennett that says in order to to have a pill writes it would have to say so affirmatively yes you think that that that it wasn't necessary to the decision and that in fact that the saying so affirmatively should relate to the lack of or move on a lack of no i believe with this court said in both todd and bennett todd first because todd was the first case to come after the due process amendments which redefined employee to include these accepted service employees and todd went in and invoked the due process and then and this court said in time you're right under the due process amendments you would have the right to appeal except for the fact that your appointing statute says you can be removed without regard to the civil service laws it actually would be more specific wasn't it so you could be read without regard to chapter seventy five of well it  compensated and removed without regard to the provisions of title five and isn't it true that after every congress actually amended the statute yes may appoint and of or lose yes and that in our case the statute only says may right so congress of course would be free to make it briggs style amend it which may very well change if you even if you prevail today it could change for future employees the state of the law that's right i think frankly i  were enacted because what they were both doing is except in people from the competitive service rules then in place is that right well i think it's hard to read the statute in bennett that way you could be appointed and employed without regard to civil service laws i'm not trying to trip you up here but i find the specificity of the language in an it to be a little bit of a red herring because nobody was contemplating when it said appoint an employer without regard to civil service laws anything about what was going to happen in the c s or a if you process amendments and the language that they use in this statute appointed without regard to civil service laws i think was pretty much another term of art to accept people from competitive service rules at the same time what if it was primarily the competitive service salary rules you know when the g a o report that i referenced they said that over fourteen so they could hire outside the competitive service and get them more money but they were outside the competitive service altogether they didn't have the same kind of the field rights that old people did to the civil service quilt you know like i started to become familiar with the federal civil service in hundred seventy four and employees had appeal rights there was the civil service commissions for appeals and review board which went back a fair way congress had long provided write to you i think you would agree that air i don't know why we should make that assumption well i think that's that's the point of all this language stating that maybe if they were preference eligible they could have gone there but i mean i think it's pretty clear that when you're appointed without regard to the civil service falls in on a flight well i don't believe that that's clear and the reason i don't believe is that it's clear is because of the specific statute in time todd said that he could be appointed without regard to the civil service act and seventy five seventy five twelve and so sure but i mean did you look at time taught is also a involves an old statute and we trace back to legislative history on that respect to the v a employees and todd is an indication that it did not intend that result for the title forty two employees here in fact if appointment without regard to the civil service act included remove all then why would there be the need to add seventy five chapters seventy five and seventy seven that's really i think an indication of congress's intention to specifically provided for those employees the due process amendments and i believe that this court has made clear that absent the specific reference to him to remove all appointing an employee without regard to the civil service laws is not enough  and in that case o p m is regulation which provides that an employee like dr law under title forty two who is appointed without regard to the civil service of course the board's basic view of these statutes is that there's a difference between statutes with the board generalized exclusion without regard to the civil service was or at least in earlier days without regard to the competitive service was versus statutes which list of individual provisions that don't apply or in some cases example particular actions by the agency  particular exclusion and other generalized was that the whole point of the one nine hundred ninety amendments is to bring these excluded employees into the category of employees they do have no rights in general that is the case but there statutory authorities that bar any rights upon removal then we would assume that congress to not mean to override those but in the absence because what would be left who would the nine hundred ninety amendments were a number of accepted service employees who were not accepted because they were under the specific statute saying appointed without regard to the civil service they were classified as excepted for other reasons by o p m or by statu basic concept is they don't have to go through a competitive examination as you do with a competitive service though there are the statute governing thirty through twenty thirty three twenty requires american like  that says this applies to schedule and place only no it simply didn't isn't this the real problem i mean there are references to a lot of legislative history the congress and put that in the it's i mean i understand your argument and and they are justice department argument to be that two and i doubt if you look at it always meant to exclude these people from t s r a coverage but i don't see how you get there because all two zero nine  is except people from the competitive service where everybody agrees that these people are in the competitive service and so they're in the accepted service but if you processing them that's got an act ed it seems like unless you can find some way the carve out exception by statute rather than exception by regulation that it swept and people like the petitioner here the appointee provision exclude them from the civil service using the word important because it uses the word appointed so i don't appoint men in the federal service as much more than just the initial hiring but again isn't the problem it still when you say it it's accepting them all these laws the same thing would apply to all the pre c s r exceptions from the confederate of service by i guess the old civil service commission but there are various regulations governing them also when p m has accepted them but also provides various regulations killing with part thrilled to deals with how they're to be treated so you think all and federal employees that are accepted by from the competitive service by statu regarding the power of the attorney general to appoint assistant u s attorneys where you came to the opposite conclusion i'm not familiar with that so i mean it's a statutory it's a statutory exception i think it's probably decision and didn't appeal it and agrees now that despite the fact the assistant u s attorneys are appointed through the specific statutory authority and could be paid off schedule nevertheless  very clear line here and you know i think the volume is if there are specific references like there are and then it in todd to post yes our protections in appeal rights we found that that's enough to get it out but if it's a very general provisions that were adopted well before the c s r a or don't mention those kind of things we found them not to get you out of the due process civil service act was a reference to the eight hundred eighty three pendleton act which is what started the whole system and only dealt with the exam i do competitive examination and would not have said anything about why moving why wouldn't we read into specifically like they did in tot and like they did in briggs post our decision if there is not the affirmative evidence that the congress intended what you say so i don't accept the plain language of seventy five principle that a broad general later statute should not overrule an earlier statute which is deals with a very specific and narrow subject and that was the basis in fact for the court finding in time and again in bennett that there was no we see is that you have these specific to these generalized exceptions from the civil service floors and they just didn't wish these cases under those kinds of wars from the more recent ones where they were to list  that an indication that you agree that people accepted by statute can still be subject to the due process amendment well you know i think i would focus here on the specific statutes issue i don't think that that would have been a concession and that that a general rule exists that where you have that language that but that's really the problem for you here is the pieces that have that we found that a pure rights were still the no i had very specific references either at the time probably had you know there was no you must be they had no rights i suspect that they had very limited appeal rights civil service commission but there are a lot of people like that including almost everybody in the accepted service where they were there by saturday or not and that's why congress after style sto enacted the due process amendments to give a very broad protections to accepted service employees with specific delineated exceptions and they didn't make this distinction which is what i think you and  alternately relying on between accepted by statute and accepted by o p m under schedule and they could but they didn't so why isn't that the end of the case for us well your honor i think our argument is that these employees are accepted by statute no i understand but that's not what somebody five eleven says a congress that said we just want to get the appeal rights to the vast majority of people that were accepted by regulation or by opium under their schedule a  they could have that in it or they could have put it the listed at the end of the list of exclusions of various agencies they could have said and anybody else except that from the competitive service by statute they didn't do that they didn't make this distinction between accepted by authority i'm sorry i'm not entirely sure i understand the question but i think i think our point is that this court has has held in numerous cases that there are statutes that were not specifically referenced under chapter seventy five that didn't you name a statute by its own if that's the case do you disagree with your colleagues argument that that there should be a bright line between those appointed by statute and those important pursu explicitly references either chapter seventy five per removal procedure and the like and one that is more general legal point we'll just skip over that why don't you tell me why this case isn't like graves because i'm just having trouble distinguishing it you want me to go statute by statute but then you want me to figure out what the statute means in both cases and i'm looking at breaks and i don't see a single cite anywhere to the legislative history of craig's what i see instead is a clear walk through discussion of the language of the statute and the o p m regulations of money missing something you know your honor and i think so how does this case differ from braids and the way that the court was to the statute and said section seventy three does not remove the executive directors position from the ambit of title five procedural protections for removal and so it was through the language of the statute and what it found its holding is that while  can actually determine whether that language meant to exclude them from the c s a or are there are already there or not at all because it wasn't what we have to determine is what to do process amendments did with regards to there is nothing in the new process amendments that but i'd like to actually have a chance to answer my question i'm sorry so if you would but no you don't have to apologize if you wouldn't mind going back yes i'd like you to address why briggs is specific portions of the civil service laws whereas our statute contains a generalized exemption and the court noted what you're referring to in breaks but it also went on to say however briggs doesn't specify anything with regard to removal and each of the sections that is a numerate in the statute are with regard to the may appoint provision right and each of those statutory sections if you look at go to what is necessary to be performed in the process of appointing your honor i would i would i would separate the may appoint language from the provisions of title five governing appointments that they may appoint language doesn't refer specifically to the appointment visions otherwise that would be redundant it says it may appoint without regard to the appointment of visions without regard to these other chapters of that law and i think it's the provisions governing title five appointments language that is the language that is contrasted to the general language we have in this case but all of that language in both instances in briggs is going to  appointments and didn't we embrace draw a line between sections which pertain to appointments and sections which pertain to removal and removal rights and that's the way i read brace that seems to be the critical thing for you to have to get around here and i was my reading of breaks was not that there was a line drawn between appointment provisions and other provisions rather that their worst pacific provisions some of it which were appointed provisions or other provisions governing the initiation aspects of a position because not that that's the critical part which is briggs seems only to be that statute at the time seemed only to be about the initiating employment provisions and that seems to be what our court held when it said and we hold these provisions don't pertain to removals that seem to draw a line and that line seems to me similar to the statutory language we have in this case which again only speaks to appointment and i just don't see any evidence in the statute that it was meant to go broader than appointing process provisions and here i don't disagree that the i'm well over my time for but i think this goes back to what i believe was well expressed to me in this p b s brief that the mayor point language that we're talking about here separate from references to the appointing provisions of title five when you're talking about may have a point you're talking about creating this appointment position you refer to appointments as a year long appointment as a definite appointment the reference to appointment or to may appoint is a broader reading rather than the moment of appointment  have some brief points i think with respect to your question just use the specific provisions of the appointing statute in briggs were chapter fifty one sub chapter two of chapter fifty three chapter fifty one is a compensation statute so the position did not have to comply with the compensation provisions and chapter fifty three deals with the senior executive service none of those have anything to do with not i also want to i know that the court is familiar with the legislative history that i included but there is one there is one provision of the legislative history that i just want to read as i take up the remainder of my time the key to the distinction between those to whom appeal rights are extended and those to whom such rights are not extended is the expectation of continuing employment with the federal