we'll hear argument next in fat how are vs united states appeal fifty one twelve from two thousand and eight cork i'd like to summarize the six principle errors in the court of federal claims decision first there is no ambiguity in the statute even the control general acknowledge that public law eighty nine fifty four the literal language does not restrict the benefits committee report or other form of legislative history if on its face the statute didn't reveal any ambiguity that's my upsetting of the law statutory construction but your authority for th test that you can't just look at the face of the statute and then refused to look at anything else to test your working hypothesis ok i don't have a citation to that off the top of my head it might be in part about the book check but but i but i am confident that i've read somewhere that you cannot go external to finding ambiguity it has to be itself or the statute and what kay says that the term employee is on the ambiguous the saturated cell says it's out of the statute defines employee and those who work for each ensues like the tennessee valley authority that are not properly considered part of the executive branch and it plainly doesn't in any words definition address distinctions between part time full aren't hired by the executive branch ok the answer to that is of him i have three points the answer to that one when congress chooses a board freeze it's presumed that no exceptions are and are intended secondly the statute itself does the five five of of four six a does speak in terms of what kind of work schedule you have to have employees have to have to have premium right i'm talking about the definition and that's in forty one and it doesn't address anything relating remotely to fall time vs part time they were just fences out people not in the executive branch postal employees dva and that's because it was intended to cover everybody when congress wanted to exclude certain people from certain premium based how do you have to assume the result you're safe congress intended to include everybody that's the issue in this case that they intend to include part time people as part of everybody or did they and do include only full time that's the question in the case and we can start out by assuming that your prefer to answer to that question one can by referring to the sixty five statute where congress specifically excluded substitute employee as from certain entitlements and as an indication that when congress intends to exclude certain classes of employees it says so you're saying in judge di cut you wouldn't of statutory construction to go to another to go to another statute but what i think is more important is in the language of five five four six eight itself it tells us what kind of employees of the statute a temporary hire somebody hired worth thirty days would be intitled to sunday premium pay if they had a regular work schedule and involved work and so you don't think that sounds like a stretch you know ease think would be it would have been logical for congress to want to give the same sunday premium to somebody hired just for thirty days as to someone employed for years and years and years either full time or part time and they do that in the case of the other forms of premium pay there is no i mean that raises the other that raises a strong argument on our standpoint there are numerous forms of premium pay and the subchapters and part time employees get every other one of them why is that the congress would want to exclude part time employees for the regular work schedule from something premium pay but include the for night differential for tends the same result congress has their i think pretty shaky re well there are lots of examples where they obviously meant something different but they used the same language because they don't observe uniform terminology from bill to week that is absolutely no basis we know that what about what about the terminology regular schedule what if the if you see the term employee as well units face and not subject to construction what about the terminology regularly schedule say that in the statute why use in reading a reading in a legislative committee report when congress gives an illustration of how long it would apply to read that as the as the words of limitation or the exclusive way in which you would be a plot but you've also another sketch tory provision that explicitly says parent that occur after the use of the word employ a full time part time and internet right so how would you explain under your unambiguous reading the necessity congress defining  employee i'm not even sure that that intermittent is a current term of foreign civil service parlance so if but just looking at the statute not the legislative history nothing else is in there enough ambiguity created in the word chipped congress chose in one section to be silent and another section to describe what they meant here in atlanta the answer to that is more complex than it would appear on the surface that language was added in  seventy one i would i believe because but now you're you're pointing us towards a legislative history and we were in the business of looking at the statute and deciding whether on its  include part time in that section but it doesn't have the same parent that on the section you're asking us to consider here well what is curious is that well one would need to look at how that phrase got into the gave only part time employees who work five days a week and when sick leave benefits but what the court did not remember was that in one nine hundred fifty one the annual sick and all and sick leave act gave up part time hundred forty five going to forward is congress did include part time employees who are bringing the work skills with everything except that we have this one  of the relevant statutory and other materials rather than the underlying dead hand of the past of this ome comptroller general opinion i to take the view that they thought it was accurate as opposed to the view that we think it's dead wrong but we're not allowed to change it because we worked for him were his subordinate so we have to agree it was it's clear that it wasn't that change the regulation was an afterthought as the one thousand nine hundred five regulation was originally proposed it did not have the words of limitation well in the world it was an afterthought up to the point i'm trying to get your address is i b we've been doing that this way for a lot there was no independent assessment no policy choice expressed well with rationale and they say we've been doing it this way for a long time doesn't that imply and we think it's right and that's why we still are doing it that way one cannot read what cannot a court cannot even of new chevron approve a the ministry of determination reading the statute just based on an implication agency's decisions can only be upheld on the basis of that of its expressed rationale the court cannot supply what the application or otherwise to try to think what the agency might have been thinking and the only time ignore him but it chose not to ignore him which to me this necessarily suggests that they agree with the correctness of his view if one were to assume that then and be at the control generals or o p m center petition the legislative history is not due chevron deference only policy choices that are that an agency makes in furtherance of execution of a statute is  titled the chevron deference congress does not delegate to administrative agencies the role of reading legislative history well let you under your view of chevron unless the agency says we're making a policy choice they get no of agencies are given deference is to make policy choices because they have the expertise to do so and this court's decisions are very clear that reading a legislative history to determine the congressional intent is something one does to determine whether or not to give shepard efron's that remains the judicial function i know of no i'm not saying there isn't any out there but i have know of no authority that says one gives to an administrative agency deference in their reading of congressional intent or legislative history that we've given you some extra time and will restore your rebuttal not hear from the government pay for holiday work vs premium for sunday were that the same benefits should flow to sunday workers as holiday  if this quarter time groups might be able to make that decision however congress's some other question is if if if the two things are analogous you would expect them to be treated the same way either premium paid for neither sundays nor holidays or premium pay for both sundays and holidays unless there is some important difference that would justify different treatment so the question is what's the important difference that you can cite between premium paying for holiday work vs premium paid for sunday work the first difference would be the fact that holiday work rose under the federal employees act of nine hundred forty five and sunday didn't come in  thousand sixty six so what with two different congresses not exactly using the same words in the same terminologies all the time the website of history bears out that there was in time for different treatment what i'm not  ology appears in the statute that's what the legislative history seems to be talking about new talks about people who work a forty hour week maybe it's not the term employee that we should be focusing on maybe it's the recluse schedule that i'm regularly scheduled to work three days a week from nine to five am i not a regularly scheduled working during a regularly scheduled eight hour period of service i don't i work monday tuesday and wednesday nine to five is do i not fall with then someone who performs work during a regularly scheduled eight hour period of service there's no clear answer to that in the legislative history and i think the question but there isn't that clear if your answer has to be that there's a clear answer to it in the legislative history and the legislative history says right only scheduled means five day work week that's your argument i would submit that necessarily construe a genius as including this it's species only if we assume that the answer to the part time question is within the term employee respectfully but updike is that the answer to this is in this sort of schedule scheduled five day work week that means they had to work five days i'll go ahead and group that will be there is an answer to that provided by the other side which is this it's a reference back to the postal service statute and we get into that it gets a little more complicated but let me ask you what o p m day and with and it's per year as acting we simply if they had had a regulation that excluded full time people that said that this provision only applies to part time employees we know they would not understanding that the postal services pay scales in terms of substitute employees whatever dovetail part time not it's not we why did we take the fact that they said it has to it's just like the regular postal service employees don't we have to drawing that distinction but i don't believe it's clear from the decision i think the legislature decision when we come up quickly i'm sorry i'm talking about a country that i thought you were referring to the comptroller general of the one nine hundred sixty struck now you're right and in that there are two pieces of legislative history cites i don't know that the simple mention of these benefits are the supposed to be the same as the ones provided to regular postal service necessarily ropes into this this complicated analysis that the plaintiff opponents of put forward as the functional equivalence between regular full time regular hours and substitute employees is supposed to full time to part time federal employees if it's possible but there's no indication of comptroller general's opinion that it went that far i think comptroller general rise more on the general statements in the legislative history about five hours arms are five days a week eight hours a day now that is it not the promise of chevron that the congress expressly or by implication has delegated to the administering agency to decide who gets whatever has to be gotten and who doesn't and if that is the premise where is there any indication in the statute that congress wasn't trying to decide itself but was simply handing off the responsibility to the civil service commission to decide who would get premium pay for sunday work and who would the answer to that lies in does the statute answer the precise  issue and our response or position is that the simple use of the term employee is not its no no no the statute could have said the civil service commission later o p m shall issue regulations classifying people on so as to whether they'll get a premium pay or not they couldn't say that explicitly if google or it could have implicitly made it clear we in congress are not deciding this this is too hard for us or we don't have time or something so it's up to the administering agency to draw these while i don't see in this statute any hint of either an express delegation of the line drawing power to the civil service commission or implied elohim's the you know it suggests that under the it was chevron analysis that we need to search for what i said was the gap in the statute that there is something that congress statute had said some employees will get premium pay it would be a very strong basis for saying they intended a similar service commission later o p m to decide who gets it who doesn't get it but when it simply says employees i'm talking about forty one now looks like that means all employees everybody who gets a paycheck whether they work full time part time double of supreme court cases for example under the f e l a construing the term employee in saying that if congress uses the term employee absent some indication of the contrary we assume the common law definition in the common law definition  do with control in reality to direct it doesn't have anything to do with full time versus part of a run so it's kind of the common law definition of part time and oily is an employee and since congress used the term employee there's no indication they intended to park from one definition that's your problem with the term employee that's why i suggest to your focusing on the long term you're better off if you look regularly scheduled i apologize if i've been unclear we've been trying to say that focusing on employee is the correct thing to do and more specifically which i themselves suggested my point was up here is that it's not sufficient to simply look at the statute and make that presumption but rather test it with other things and not addressing my point and i point is the issue are addressing the wrong terminology you have a very difficult time with the word employee it includes part time and full time under the common law definition the cases say you use the common law definition and must congress departs from your argument ought to be ok even if that's right there's the statutes require regularly scheduled that's an m b q is term and the legislative history suggests that regularly scheduled means five days a week to let me ask you in started before talking about ok we think there's some ambiguity in there's a gap and opium is going to run in and fill the gap is their job to fill a gap by trying to figure out what congress really ment or is their job filling the gap saying congress delegated to us to draw the lines and here's how and why would community do it i think it's to figure out what congress meant and that's what they did in this case why are as a final comment urged ike i would like to point out that section five five four six pertaining to night differential gives the same terminology for regularly scheduled and part time employees have always received like differential under the gave federal employment that gave them  may be wrong if what i think i'm sorry insurance of the but i think if you are going to look at we're at the legislative history and if you assume that the control control in general is correct that congress intended to give to civil service classified employees as it were the same benefits they gave the year before to postal employees when this whole case went wrong from the very start was the control generals equating substitute employees with only rate regular with part time employees under the postal service statute we when you look at regular a regular schedule employed there were two kinds of regular employees those who had a regular work schedule of twenty hours eight hours a day a regulus work schedule up to forty those were the up to forty hours a week and that would include the part time employees in the poll service who had a pre set work schedule so if congress is legislating in sixty six by regularly schedule those people who had a preset were work schedule in advance a certain set number of hours that they work when they work and it would include employees including those up to work up to forty hours a week which in capsulated on the part time employees who had a pre set work schedule as opposed to substitute employees whose work schedule may be nothing one week maybe part time the next may be full time or even longer than full time the phone you can't equate the control in general could not possibly have properly equated part time employees with substitute employees because part time presume that you have a regular number of our schedule that you were up it's in subzero relying on the legislative history so do you agree that the term regularly scheduled is all i know from from from having worked with employees over i've worked with the what the service employees in the civil service employees nearly thirty years and negotiated their work schedules read the case receive every kind of premium pay in this subchapter except sunday premium pay well i don't think they qualify for houses paid by the nature of their out and they're not on the work on a holiday or at nine of they get to see get their special holiday premium or night yes they do but they don't get the sunday that's correct