right of an applicant for employment to bring an action for illegal refusal to hire under several federal statutes several environmental statutes including the resource conservation recovery act the energy reorganization act and the federal false claims act the both sides seem to like this court's decision in dembski for different reasons and it may be that your honour's decision on how dembski applies will control the outcome of this case appellate view is that dembski applies chevron deference or recognizes the proper application of chevron deference why do you even get to chevron deference it seems to me that word  s pretty well established pretty well known well a problem to your honor is that the law doesn't always use terms in the way that everyday people use those terms and the meaning of a term in  isolation i mean you can't really determine the intent of the congress by looking at a term in isolation you have to look at it in the context of the statute in which you find it in this case you find it in environmental statutes and the false claims act for a particular purpose the purpose is to protect employees who are retaliated against when they take some action that serves the public interest by furthering the purpose of the statute just in the enough in your very answer you said protect employees your clients not employees well i think we think that the client is an employee as a prospective employee of the department of labor agrees with how can a perspective employee be an employee well i certainly are ways to protect people that are applicants or all of these statutes recognize that some not all some of these statutes do not define employee but the department of labor interprets them nonetheless as the agency charged by congress to implement these statutes as covering applicants for employment and there's a very specific reason for that the purpose of the statute which is to keep the lines of communication open with tween the employee and potential was a blowers and the regulatory agencies not for the purpose of protecting the employee's rights necessarily but for protecting the public we talk about a nuclear facility and employees working there and discovers a major safety issue that might impact the whole community if they blow the whistle which is walk congress intended for them to do for the best interest of the public they're protected clearly i think we all agree if there were a current employee but what's the what's the impact on the purpose of congress if that same person gets fired goes to look for another job and can't find another job because all those other future employers that they're applying to you as a prospective employee refuse to hire them because of their whistle blowing and it's perfectly legal to do that what happens to the intent of the congress and there's a major chilling impact on keeping those lines of communication open which is why i think the department of labor interprets the statutes like it does but we still have to get to why do we go to chevron deference b and you don't get to chevron deference unless the statute to term is is ambiguous and direct i'm hung still hung up on and that is it's clear congress knows how to protect applicants congress apparently chose not to protect applicants in one or more of these statutes so where do we get the power to read that in i think dembski helps to some extent dembski says that if the statute doesn't define a term then you can go to look to the agency charged with implementing that statute for the meaning of the term and i think that's what needs to be done here now i understand your point of view that congress could have made our jobs a lot easier and just put in a definition of employee like it does in some places where employer and we wouldn't be here but congress didn't do that now one reason it might not have done that is that there's a long history of applicants being protected back to the laws protecting union members and fair labor laws and those statutes have been interpreted to protect applicants some of that case law your honor as cited by the define it and maybe they thought they might just get in the way of a broad definition since that's the way the agencies are implementing it i can't read the mind of the congressman good to me if if you've got a term is not defined and you've got the agency charged by congress with implementing the statute inter meeting that term to include applicants why is it plain language why is it clear that that term doesn't protect applicants and when you look at the purpose of the statute and interpret in that term to not protect applicants and seeing that it defeats the purpose of the statute you know i don't see that that's clear so i guess you're i'm advocating for a rule you're asking me the question and you know how do we determine chevron applause i would say you look at where the term is defined which i think is what dembski says you look at where the the term can be plainly read in one way without interfering with the purpose of the statute in this case i don't think it can be  way without interfering with the purpose of the statute and you look at how the agency interprets it and the history of interpret in it and also the statutes upon which some of these statutes are based which are being obscure there's already an employer employee relationship dembski was not an worked on the site as director now how how do you get around read the committee for creative nonviolence versus read that says that if congress uses employee without defining it congress intended to describe a conventional master servant relationship as understood by common law agency doctrines right there is no you agree do you know that there is no master servant relationship here no i guess i wouldn't say that there's a master servant relationship between the defendant and a person who doesn't work or have a contractual relationship with them i understand how could that be well i think it can be the way the department of labor interpret it to be which i think is correct which is i'm trying to get away from i know why you like the department of labor i get that ok but if if congress doesn't define the term in the supreme court tells us what the definition of term is in that instance why would we then ever adopt an agency interpretation that's contrary to what the supreme court has told us to use in the absence of a definition understand the question and i think obviously your honors have to follow the supreme court as we all do but i don't think that supreme court rule that you're citing applies in this context i think it applies in cases where there is a question as to whether someone who may be in a master relationship like this boss or owner of the contractor may be trying to get the benefits of and i think that's what was happening in dempsey was the master was trying to get the benefit of a statute that was intended to protect the service and here we don't have that situation here if a person applies for a job and they're denied they have an adverse financial impact from an employment a city and it may be a negative employment decision but it's still an employment decision so i don't think that that screen court precedent your honor applies and in these circumstances i think it applies in situations where there's no definition of a term and dispute is where there are a master may be trying to claim the benefits of the circuit least that's the way i read it so that's why i don't think that's controlling in this case  so you're i think the i mean we're going to have i guess a significant problem if if the sixth circuit goes in the direction of using that authority to be controlling and saying in every case where there's not a definition of employee or perhaps employer that you go back to the common law and sort it out and then take a narrow view that you know that does not include applicants that's obviously going to be contrary to a longstanding department of labor interpretation of several statutes is going to be contrary to case law under other statues like to the fair labor laws and there was an eery case i just found yesterday didn't have a chance to do it wasn't directly on point but it was because they didn't decide the question but it was in the ari case and in that case the third circuit took it as a given that applicants were covered and it reversed i think it was an i r b decision so out you know you have any court authority in support of your construction that ploy means applicants you have any that we do have that court authority your wife out of the department of labor but you have a court as any court anywhere adopted your defined so i think that's an opening brief that's my recollection i don't think i can tell you off the top we have the cases i think that case law is there i've got a question as to our jurisdiction regarding the environmental statutes the  drinking water act the clean water act and the top toxic substance control act it appears to me that there is there are administrative remedies that must be exhausted and then after those administrative remedies are utilized the appeal is direct to the court of appeals it doesn't go to the district court it is to me it doesn't appear that we have jurisdiction over those environmental claims can you address water you know we wouldn't have had the option to go to federal court in the first place we would be in the department of labor why do you have the option oh well it's quite clear that you have to go to the administrative agency and then appeal to the court of appeal it's a good question your  r there is a court of appeals case law and i would be hard pressed to tell you is in the six circuit that says we have what we call a hybrid or a mixed case where one of the statutes let you go the federal court route and the other statutes have an administrative remedy that you can take all the claims through the i guess you would call it a form of the words this gave me your arm but the supplemental jurisdiction of the federal court and i realize that's not isn't a concept of supplemental jurisdiction as i see it that that allows us to take jurisdiction over state law claims primarily you can you have two federal claim so i'm assuming what you're what you would ordinarily argue here is that the claims under these two different statutes are some unix trick of lee in a related so therefore if you take up one you take up another that's how we would analyze it in other contexts i am saying that and that's what i feel we have a case that says that well i wasn't interested in that question your honor but i've had i've seen those cases in my other appeals and i think if and i could probably provide it if i was allowed after the argument but there is a case under warm or under circular the superfund statute because it provides appeals to go to district court and i've had other may please the court stephen bevan are on behalf of that apple the energy solutions inc we respectfully submit to this court that this case is controlled by two supreme court lydia dembski the analysis we submit is very straightforward the word employee is used and all of the statutes that issue it is undefined and all of the statutes that issue under the plain meaning rule as repeatedly and unseated by the united states supreme court and repeatedly iterated by this court when a term is undefined it is given its plain and ordinary common law meaning we also cited to the court case in response to mr harrison's argument that there may be some extraneous secret coded meaning to employee which is eighty two years of revere precedence that says the plane obvious and rational meaning of undefined terms governs over any curious hidden sense that nothing but the existence of a hard case and the ingenuity of an acute and powerful intellect which it is would discover in this case the word employee is not curious hidden it has a very common law ordinary meeting darden has defined what it means read as defined what it means and that is to be given precedence over the existence of this hard case for mr vander bow in which mr harrison is now forced to argue that it means something other than what we have all always understood it to mean and what the supreme court has defined it to mean and garden verse and both garden and read dr harrison makes a pretty persuasive pretty forceful argument that you've got these interpretations of the department of labor and somehow if we say the statute means what it seems to say that and because that's contrary to the department of labor we're going to upset a lot of law here and centrally we're going to be an outlier what do you say to that i think it's neither force for persuasive and here is why all of the administrative decisions decided and dembski lays out the exact analysis that's compelled by darden and read which says we have to give this word the plane is plain meeting in the context of an energy reorganization that case so while even if chevron we agree that chevron does not apply because there is no ambiguity but even if it did of all the things that chevron stands for it does not stand for the proposition that an analysis or definition of the term vacillates with whatever the  means even when it means going completely contrary to what the supreme court said it means it was the department of labor simply wrong or has the department of labor's interpretation now essentially been superseded by intervening supreme court law defines employee under the conventional master servant darden's decided in one thousand nine hundred two the flanagan have there been any other circuits that have held that employee goes beyond employer employee or master servant relationship following one thousand nine hundred two no none that i know that have been cited this court none that i'm aware of and in contrast if you look at page seventeen of apple lee's brief we cited to the court all of the cases in the employment setting where this court the sixth circuit has used darden and reed to define employee in the conventional sense in the context of title seven and the context of the americans with disabilities act the age discrimination in employment act and so your argument is that  the side to side to this court your honor and in answer to the question you asked about the dempsey case whether it involved a master servant let me just clarify that lydia demski was the sole shareholder of a contractor to indiana and michigan power that operated in bridgeman she was the sole shareholder to a contractor so she was not an employee but she did have a contractual relationship this was an n r a case and she engaged in protected of protected activity and then complain because her contract was terminated and in dembski this court then reviewed that situation under the energy reorganization act and said she's a contractor she's not an employee and under the plain meaning rule adopted by darden and reed which governs this even as a contractor she doesn't have standing under the energy reorganization act case now after the two thousand and nine amendments to the false claims act that might have been a different outcome if it had been a false claims act case but lydia dembski had a much more significant relationship she actually had a relationship with the past with the power plant with her responsibilities in maintaining the i skimmed condensers where is gary vendor bo here was nothing more than an arm's length mr bender with is closer to an employee than just a third party applicant because this was his job he had this job for ten fifteen years and was trying to keep it and he would he he was an employee and but could affect that energy solutions when the contract and so we had to reapply he was replying to keep the job to the head so he's much closer to an employee be a literal employee then just some applican i think that is best argument and i don't think how do you how do you respond to that i don't think it's a very good one for this reason he was an employee of an entity with him energy solutions had no relationship and came in as a successor and the fact that when energy solutions came in and it kept all of its management employees it the grandfather an issue which is raised in the brief applied to non management employees and vendor bo one decided it is the law of the case that mr venner bo was a management employee he testified that he was the highest ranking official at the landfill that the landfill it could operate unless he was there he supervised employees and he was designated as a management we had no right to subverted if we if we essentially take the position that when when when the agency changes contractors and i would tell you from provisions don't apply no the purpose of the statute doesn't subverted because the purpose of the statute is manifest by the intent of congress and that intent is conveyed by the words used in the statute and the word used in the statute is employee not employee of a predecessor company not applicant but employee and darden read tells us that to be an employee there has to be the conventional master servant relationship so the purpose of the statute is manifest in its words the word is employee and that has to be imbued with what we understand it to mean under darden read how do you address judge griffin's question about whether we should even get to the definition of employee in connection with several of these statutes that have exhaustion requirements your honor in all and all candor that issue has not been raised before judge griffin asked this question when the matter was removed to federal court with the false claims act case after it had gone through informal administrative proceedings of the department of labor and formal proceedings department of labor a subject matter jurisdiction was not challenge and so judge griffen has raised it for the first time here and i don't have any authority to speak to it in other words i don't have case authority i have authority to speak to it but but it hasn't been scrutinized at any point prior to this you have authority you just don't have an answer i don't have an answer that's exactly right judge griffin has gone somewhere with his question where this case is not gone previously i do have an answer however i would agree that we independently to scrutinize our subject matter jurisdiction it's response from my very first day of law school i do however have an answer to judge griffin's question about whether there are any cases that have decided whether or not an applicant is covered and the answer to that is yes it's the one nine hundred fifty one case john hancock versus mutual life of john hancock mutual life versus the n l r b and that is the case that these administrative decisions rely on  that mr harrison cites that come out of the eighty's and the reason i bring that up that case did decide that an applicant was covered in the statute and that decision which comes out of the d c circuit in one thousand fifty one is specifically addressed and rejected in dart by the supreme court in one thousand nine hundred two in which the supreme court says those cases which interpreted employee for purposes of the national labor relations act and also the social security act respectively  precedence for unmooring the term from the common law and so to the extent there are cases darden completely obliterates them and throws them out of the water and says in that situation we're not going to take what the word employee means and especially in the context of national labor relations act and social security act cases so those n l r a cases that are cited really have no weight there wasn't much discussion about the false claims act claim i'd like to address that briefly if i if i may the false claims act turns on the exact same analysis with respect application of the word of him ploy in the briefing there are discussion about whether the two thousand and nine amendments make a change to that and ma potentially expand the meaning of employee to applicant i have two responses that i'd like to emphasize first of all the two thousand and nine amendments are arguably inapplicable here because this case and all of its facts are closed in two thousand and six second even if the two thousand and nine amendments did apply the amendments expand from employee to contractor or agent and the expansion the contractor agent only further entrench the notion that there must be an established economic relationship and that it would exclude an applicant who has no relationship that analysis was adopted by the fourth circuit in the united states x ray hussein case which is cited in the brief for the district of south carolina said that these amendments make clear that where there is no economic relationship that comes through a conventional employment or a contractor or master servant agency relationship that there is no standing under the false claims  the owner of a contracting company or the boss of that contracting company are they equivalent to an employee for the purpose of the protections of the statute and i think the dempsey said no and i think that was correct and that a master is not entitled to the protections of the servant so that's one point the the wall the case arguing we addressed in our brief and for the reason we stated there we don't believe that this court's  discussion of whether vanderpoel was a grandfather employee was intended to be the ultimate determination that on that question that it was intended as part of an analysis of whether for summary judgment purposes mr brander boat had enough evidence granting grandfather employee hiring preference applies to him and didn't i conclude that the court concluded that your client has failed to present any evidence beyond his personal belief that he was a grandfathered employee under the new contract only non manage your real employees are considered grandfathered under the contract and the landfill management position is specifically that he didn't you know i would say he didn't fully put on his case for that for summary judgment and he survived summary judgement so i think the unique posture of this being a summary judgment appeal that your honour's decided and not having had a marriage determination on the facts on this particular claim makes your r s holding binding on motive binding on constructive knowledge but since neither of those defeated summary judgment because other evidence was present i think it's a thank you counsel we want to make sure we get this jurisdictional question correct obviously and so mr harrison is the person that's invoking our jurisdiction here would you please address that question for us within the next five days mr bonaire you can respond after within five further days no reply ten page maximum everybody understand yes all right thank you counsel case will be submitted you may call the next case