# Helix Energy Solutions Group, Inc. v. Hewitt/Opinion of Justice Gorsuch

SUPREME COURT OF THE UNITED STATES
No. 21–984
HELIX ENERGY SOLUTIONS GROUP, INC., ET AL., PETITIONERS v. MICHAEL J. HEWITT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [February 22, 2023]
Justice Gorsuch, dissenting.
The Court granted certiorari to answer this question: “Whether a supervisor making over $200,000 each year is entitled to overtime pay because the standalone regulatory exemption set forth in 29 C.F.R. §541.601 remains subject to the detailed requirements of 29 C.F.R. §541.604 when determining whether highly compensated supervisors are exempt from the [Fair Labor Standards Act]’s overtime-pay requirements.” Pet. for Cert. i–ii. In other words, we agreed to decide which regulations certain well-paid employees must satisfy to fit within the overtime-pay exemption. Must they satisfy only §541.601? Or must they satisfy §541.601 and §541.604?
Unfortunately, this case does not tee up that issue in the way we hoped. With the benefit of briefing and argument, it has become clear that the “critical question here” is not how §541.601 and §541.604 interact. Ante, at 7. Instead, the critical question is an antecedent one—whether Helix Energy paid Michael Hewitt, the supervisor at issue in this case, “on a salary basis” under §541.602. As the Court explains, the proper interaction between §541.601 and §541.604 matters only if Helix Energy paid Mr. Hewitt on a salary basis consistent with the terms of §541.602. Ante, at 7. Faced with this development, the Court chooses to ​take up the question whether Mr. Hewitt was paid on a salary basis under §541.602 and holds he was not. Ante, at 8.
Respectfully, I would dismiss this case as improvidently granted. After successfully petitioning the Court to decide how §541.601 relates to §541.604, Helix Energy assured us that “the flaw in the decision below has nothing to do with the salary-basis test” in §541.602. Brief for Petitioners 27. I might excuse that disclaimer as a mere rhetorical flourish if Helix Energy’s briefing nonetheless “made clear” the “importance” of §541.602 to this case. Ante, at 8, n. 3. But it did not. The company devoted only about two pages to the issue in its opening brief. Brief for Petitioners 25–27. On reply, Helix Energy went so far as to criticize Mr. Hewitt for trying to “change the subject” from how §541.601 and §541.604 interact to whether §541.602 is satisfied. Reply Brief for Petitioners 3. In these circumstances, I would not reach out to address the operation of §541.602—a question we never granted certiorari to decide, one on which we have received little briefing, and one Helix Energy even assured us we need not decide.
Another reason counsels hesitation, too. Helix Energy does not just dispute the proper application of various regulations. It contends those regulations are inconsistent with and unsustainable under the terms of the statute on which they are purportedly based. While §541.601, §541.602, and §541.604 focus on an employee’s salary, Helix Energy submits, the statute requires attention to the employee’s duties. See Tr. of Oral Arg. 32–38, 46–47; Brief for Petitioners 41–44; Reply Brief for Petitioners 20–24; see generally 29 U. S. C. §213(a)(1). Understandably, the Court refuses to entertain this larger statutory argument because Helix Energy failed to raise it earlier in the litigation. Ante, at 7, n. 2. But the fact that Helix Energy forfeited such a foundational argument seems to me all the more reason to leave any question about §541.602 to another day.