Legal Case Summary

We'll hear argument first this morning in case 16, 13, 62, and Sino Motor Cars versus Nuvaro. Mr. Clement. Mr. Chief Justice and may it please the Court. Service advisors are salespeople primarily engaged in servicing automobiles. Service advisors are plainly salespeople, and what they sell and what they are primarily engaged in is the servicing of automobiles. Thus, respondents and the nation's 100,000 service advisors come within the literal disjunctive text of the FLSA exemption for any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements. Is there any other category, the statute lists three categories, salesman, partsman, and mechanics? And you say the service advisor is, should fit under salesman. Is there any other person that's not specifically enumerated that's subsumed under one of these categories? Mr. Clement, there is Justice Ginsburg, if what you mean is sort of an occupation that was well understood at the time that Congress passed this exemption in 1966. The example would be automobile body repairman. I was treated as a separate category, for example, in the occupational outlook handbook that my friends on the other side like so much, but yet the Labor Department has consistently treated repairman in the body shop as covered by the exemption just like mechanics in the service shop. So I think that goes a long way to showing that it's not like Congress was consulting this handbook at all, or had this conception that it was going with a three to three correspondence with existing occupations and what it was trying to capture in the statute. So, Clement, you said the literal meaning, and you have some good arguments, but I have to tell you I don't think that that's the best one of them. Just if you think of what servicing means, this is one dictionary, but basically all dictionaries say the same thing, it means to perform services of maintenance, maintenance, supply, repair, installation as to service a car. So it actually means to do the work, to do the repair, to do the maintenance, I think would be the most ordinary understanding of what servicing means. So it does seem as though for all the arguments that you do have, that one cuts against you, that just the ordinary meaning of what it means to be engaged in servicing what a mobile is to be repairing, maintaining, fixing cars. Well, Your Honor, I mean, I would love to talk to you about some of the other arguments you seem to like better, but let me try to push back a little bit on this one, which is, I would be the first to admit that servicing in some statutes can have a relatively narrow compass and includes only, you know, essentially turning the wrenches yourself. But in other context, it can have a broader meaning, supplying the service, providing the service. And here we know that Congress used the term in that latter, broader sense because of the inclusion of Partsman. Because Partsman are not engaged in getting under the hood and turning the wrenches. The best place to look at what a Partsman does is the Labor Department regulation that's been on the books since 1970. It specifically talks about what a Partsman is primarily engaged in, and that is the requisitioning, stocking, and dispensing of parts. So I, that is one of the better arguments, I think, is what Partsman is doing in this. But I think I'm still suggesting before we get on to that, that if you took Partsman out of this statute, I don't really think that you'd have a leg to stand on here, that we would just naturally mean, well, servicing automobiles is like fixing them

. And what, and the service providers, they have something to do with servicing to be sure, but they're not doing the servicing, what they're doing is selling service products. Well, Your Honor, I think if Partsman were not in the statute, I would have a weaker argument. I think I still might have a leg to stand on, especially if there were four decades of industry reliance on a position. But I do think that the Partsman can't be ignored, and I do think it's actually a mistake to sort of look at servicing in isolation from the inclusion of Partsman in this statute. I think if you look at this comment, and how Partsman got in there, I mean, there is the legislative history, the Senate, or by said, the Partsman are woken up at four in the morning because some piece of form equipment needs to be repaired. And then there was somebody else who backed that up. So those senators at least thought of the Partsman as somebody who would work irregular hours. Now, they may not have, they may have been talking about a specific category of Partsman, the one to attend to form equipment, but they use the statute uses the General Title. Well, it does more than use the General Title Justice Ginsburg. It also, I think there's no argument that the statute only covers farm-implement Partsman. Based on its disjunctive structure, it certainly covers, I think, automobile Partsman and Partsman at a truck dealership. And I think equally importantly, it covers it without regard to whether they work outside or have unusual hours. And so I think what you have here is a classic example of where Congress was impelled to include Partsman in the statute, based on some very specific concerns of specific senators about farm-dealer Partsman. But then they expanded the statute quite a bit more substantially to cover all of the Partsman. One other footnote on that piece of the legislative action, I think it's actually interesting that when Congress first proposed adding Partsman, they proposed adding Partsman who were selling or servicing farm-implement. And so I think what that shows is that Congress may have actually had with selling or servicing, not necessarily too siloed, disjunctive terms, but sort of the broader process of selling or servicing, because I don't think Partsman ever sold the farm-implement's themselves. One of the amicus briefs talks about what Partsman did historically and makes the case that what Partsman did when this statute was passed, it's a little bit different from what were a lot different from what a Partsman does now. In the sense that when this statute was passed, they were not readily available, ready made off the shelf parts. And what Partsman really did was kind of get under the hood and try to say, strip engines and play with Parts and adjust Parts. And it was very much more part of the repair process than somebody who was taking things off the shelf. Justice Kagan, I know there's an amicus brief that says that. I think we're here to ask you to mostly look at the plain text of the statute. But if you're interested in looking at something, I do think that Occupational Handbook from 1966 has a couple of pages about what Partsman did back then. And I don't think it really maps up with what the amicus brief says, which is to say, even back in 1966, sure, there might be an occasion on which they had to fix some part or got under the hood. But in the main, what they did then is exactly what the Labor Department identified, which is they're behind the counter, they're making sure that when you do a repair, and you need a new spark plug or a new fan belt, that they actually have it in stock

. And that is, I think classically what Partsman does, I don't think that it really puts them really in the same places the mechanics. I mean, it's interesting. If you want to look at those photos at the back of the red brief that come from that Occupational Handbook, I think it's telling that the service advisor and the mechanic are the two photos where the hood's up. The counterman, the Partsman, he's behind the counter, which, you know, I don't mean to say that's where he or she belongs, but that is where they typically are. And it's pretty far removed from the action, which is why I think the Partsman really are the clue to interpreting this statute to have this broader compass. Can I try a hypothetical on you and the hypothetical statute is designed to match this one in structure and to present the same question. So here's the language. Any salesman, designer, or seamstress, primarily engaged in selling or making dresses. All right? So there, we know the seamstresses involved in making dresses. We know the salesman is involved in selling dresses. Designer is the Partsman, and you could say, look, the designer, they're not actually sitting there with the needle, but they're still sort of making the dresses. That's the Partsman. And then the question is, would you really say that the salesman is making the dresses, too? I'm not sure. I would, Your Honor, but I think there are reasons for that, which is I think making dresses is a narrower term, frankly, than servicing. I think servicing is a broader term. I also think the designers are, frankly, more integral to the making of the dresses than the Partsman is to any kind of narrow concept. That is exactly why I was interested. You said you're primarily relying on literally. Well, I think in 10 minutes, the two of us could think of hundreds of examples, maybe at least 50, where it's just, look, any seamstress or customer who makes or wears dresses. Hey, they don't mean the seamstress who wears dresses. They mean the customer who wears dresses and the seamstress makes the dresses. Any professor or student who teaches or learns at this university, they don't mean the professor who learns at the university. They mean the professor who teaches in the student who learns. Any salesman who, what's the word, you know, sells or sells cars, or we, you see the word, but I think there are so many examples like that that that seems to be the natural meaning. You have two words over here that are verbs, two words over here that are nouns

. The first seems to go with the first, the second with the second. And if I just gave you this, you do nothing else about it, and you're just looking to literal words, I would have thought, on a bet you would have said that's the interpretation. Well, Justice Breyer, there's a couple of things. Most of the examples that you were suggesting, I think, have a two-to-two correspondence. Not three-to-two correspondence. And I do think that makes a big difference in the real world. The second thing is, I do think, I mean, I'm not here to tell you that there aren't disjunctive series, followed by disjunctive series, where you do have matching. Now, I think often that's because the matching really excludes the other cases or produces a null set. I think it also depends a little bit on sort of what's going on with your professor and student hypothetical. If you do, you know, if that was all tethered to a requirement as to who gets issued a library card, if you had a professor who was sort of visiting that semester and only learning and not teaching, would they really deny a library card? No, no, okay. But then you go to her second point, which the second point was, what about the purposes as Congress reveals? You can see in that, sorry. Could I ask your indulgence in just, but before you talk about purposes? Just, you know, my, what my hypothetical was designed to do, and I came up with a bunch of them and I'll spare you. Thank you. Is to have a three to two correspondence. Your answer back to Justice Spryer was right away, well, your hypotheticals have a two to two correspondence and that's different. My hypothetical had a three to two correspondence, and you had to do a little bit of stretching to get one of the middle term in. But the question is, does that force you to stretch so much that you get the first term in, when the first term pretty naturally pairs with the other, with the selling word? And that's what you are asking us to do. And I think to put the point more generally, the fact that you have to do a little bit of stretching to get parts men in does not compel you to do a lot of stretching to get salesmen in. But Justice Kagan and I want to try to get back to the purpose of questions, but I do think that the degree of stretching you have to do to get parts men in is not less significant difference between how much stretching you have to do to get the service advisors in. And I think that's really the key. I mean, maybe in your hypothetical, which you designed a lot of them and you probably gave me one of the best ones. And I think that's because- I'm not your daring, mate. Well, no, no, but I take it that because you really thought there was a big gap between the designers and the salespeople in terms of the stretching. And I just don't think that's the case with the parts men. And I really do think

. I mean, the parts men, I mean, God love the parts men, but they're pretty far removed from the action of turning the wrenches. I actually think that if you did an empirical test as to who got under the hood more often, the service advisors would win, Mr. Komet. I can't say it is the parts men. That example, because Congress put them there specifically. And you don't have to match them with anything. Congress may have been overbroad because its daughter would defile equipment people. So if we just look at the two others, why should we stretch service advisor to come within the mechanic who's actually servicing when we know that the service advisor doesn't even possess the skills to be engaged in servicing? So Justice Ginsburg, I don't think the service advisor is differently situated from the parts men in terms of having the skills to go under the hood and turn the wrenches himself or herself. I think as to the answer to your question about why don't we just say, hey, the parts men are in because the parts men are in. Because the structure of the statute doesn't let you say just the parts men are in. The parts men are in because they are primarily engaged in selling or servicing automobiles. Now, I take it that the parts men don't sell the automobiles. So they must be in either because selling or servicing is just sort of a catch all that gets everything that the dealership basically does. Or it's because we have a broad enough conception of servicing to include the parts men. Now, the way that I understand this Court to interpret statutes is once you interpret a statutory term to have a certain breath, I mean, that's what it has, even like Clark-V. Martinez, even when you have to stretch the language of the Constitution to avoid a statute to avoid a constitutional problem. And you have an example of a parts man that is not engaged in servicing automobiles. Say a parts man in another office and he downtown from the dealership and he just picks up the phone and orders parts or something? Sure. I mean, first of all, you could have a parts man who's not employed by an automobile dealership at all. That they're just an independent parts man or they work at auto zone or something like that. I don't think they're covered by the terms of the statute. So I do think you have to interpret the statute so you tether parts man to a term like servicing. And then once you interpret to have a certain breath, I don't think it can shrink back down so it can be wide as the parts man but narrow as to service advisors. And so I do think then the service advisors do come comfortably within the text of the statute. And we haven't talked about the fact that for four decades they've been treated that way, which I think

. I wanted to ask you, you mentioned in your argument that there's been decades of reliance. If we weren't to adopt that argument and say, well, there's been reliance here. It's a close question. We're not sure it's ambiguous with that. What case do I cite to show that reliance bears on the interpretation of a statute? I think you'd cite among other things you could cite the Christopher case, the Christopher against Smith Klein case, which is another FLSA case. And this court averted to the reliance interest both in deciding not to apply our deference, but also in interpreting the statute. And I think the principle isn't, well, if for four decades people have gotten wrong, we'll get it wrong. I think the principle is, as the seventh circuit said in the ye case, which Christopher cited. I mean, it's no mean feat to conclude that an agency has been an open notorious violation of the FLSA for four decades. And I think the behavior of the industry is some evidence of what those terms meant. Kessler-Anne-Thee, an agency as I understand it, the agency gave up after two circuits rejected its position. So the agency acquiesced in the fourth and fifth circuit position. But last time around, I noticed your argument about the massive retroactive liability and I said, well, what about this provision that says someone who relies in good faith on the agency position doesn't have retroactive liability? Well, it's, I think that the issue I'm happy to discuss that that's the portal to portal active, affirmative defense. I think our reliance on that is even more complicated now, because it doesn't just allow for no damages when you've relied on the agency and the abstract. It specifically talks about relying on agency regulations. So at least since 2011, when you had the last change in administrative position, I don't think we'd be able to rely on the portal to portal active, affirmative defense to say we're not subject to liability. The other thing my friends on the other side say is that, well, there's this other exemption, 207I that will help at least those that were paid on a majority basis for a commission. Now, there's a couple of things about that. I mean, I think the most important one is there, I don't know the exact number, but there are a sizable number of people in the industry who are paid majority salary and so they'd have to be restructured. But the other thing is, it's a little bit rich for my friends on the other side to say, don't worry about this because of 7i. I mean, when they filed this complaint, they must have had some theory as to why we weren't already covered by 7i. So I think that just shows that what the industries relied on for four decades is not some combination of the portal to portal act in 207I. What the industries relied on is the idea that in this context, you know, it is this exemption that exempts all service advisers, not just those that are paid primarily on a commission. When I think of these three categories of workers, so service providers, partsmen, mechanics. To coin a couple of silly kind of words, a service advisor is customer facing

. You know, the primary job is to deal with customers, to sell them things, to liaison with them, to make sure they're happy. Mechanics and also partsmen are car-facing. You know, their job is to do stuff with the car. And, you know, in different ways, the partsmen is more helping, but they're, they're focuses on the automobile, whereas the service provider's focus is on the customer. That seems to me a pretty big divide, suggesting that the service providers are really, you know, salesmen, not serviceers. Well, you're on a couple of things. First of all, you probably anticipate that I'm going to take you back to the partsmen again, because I do think describing the partsmen as just vehicle facing really misdescribes what they do. And I would ask you, if you have the time, to look at that 1966 entrance on the auto partsmen countermen, because what it talks about is, you know, they really, sometimes they sell direct parts to retail customers. So sometimes they too are customer-facing. And that's all part of what they are primarily engaged in, which is not just facing the car. It's really their responsibility as the parts, whether it's the mechanic that wants the parts for a particular repair, or whether it's some outside customer who wants to buy a part, because they're doing it yourself for it. Now, so I really think the partsmen are in the middle in a way that does really give servicing a broad compass. The other thing I would say is, I don't think you can underestimate the degree to which these three occupations, especially in light of the way the industry has structured itself for the last four decades, really do go together. There are many dealerships, as I understand it, who essentially the commission is a pop that is shared by the service advisors, the partsmen, and by the mechanics. They all work at some dealerships. They all get paid on a commission, and it all comes out of the same pot, which, of course, gets to the common sense of the matter, which is, if the service advisors don't do their job, there's not much of a job for the partsmen or the mechanics to do. There's no work to do if the service advisors- Is everybody who's in a service department, does everybody count as primarily engaged in servicing automobiles, who's in a service department, the receptionist, the filers? The answer is, I'm not sure, I think probably not, but I also don't think it matters much because, of course, to be exempt, you not only have to be primarily engaged in servicing, you also have to be a salesperson, a partsmen, or a mechanic. So if you take somebody like a car-poorter, are they primarily engaged in servicing, I think the definition of partsmen is probably broad enough to say yes, you might disagree with me, but either way, they're not exempt. But is that an automobile a pullster? Again, I would say that that's somebody who might be primarily engaged in servicing, but they wouldn't be covered because they're not a mechanic, they're not a partsmen, and they're not a salesperson. What role do the three objects at the end of the sentence play in your interpretation? We haven't discussed those yet. Well, I hope they play this role, Your Honor, which is, I think it's common ground among between the parties, that those are distributed to each other now in gering combinations. And nobody's here saying, well, the first goes with the first when it comes to the objects, so the only people that are exempt are the farm dealer mechanics. And I think that just shows, it may be really odd, anything's possible, of course, but it'd be really odd if the way you read the statute is with the nouns vis-a-vis the jaren's, you apply this redendo principle, but with respect to the jaren's vis-a-vis the objects, you apply the normal or means or principle. I think the real way to apply this statute, and honestly, I think what is the only thing that really ought to be left of the redendo cannon, is the common sense principle that when you have these disjunctive series, if they combine in a way that really is something like the null set, you ignore it. You don't lose a lot of sleep over it, and it's fine, because I'm not here to tell you there are mechanics who are primarily engaged in selling automobiles, but since there aren't any, you don't really have to lose any sleep over it, and you shouldn't construe the statute primarily based on the fact that there's a null set with one combination, especially when there's 100,000 flesh and blood examples of salesmen who are primarily engaged in servicing

. What about our narrow construction cannon? Well, that's an interesting question, Your Honor. I mean, you know, the ninth circuit applied that, and I suppose that, you know, the the cannon that the ninth circuit applied, and the one it derived from one of this called Courts Older Cases, talks about being plainly and unmistakably within the exemption. Now, I'm a big enough believer in my argument here that I think maybe we even meet the plain and unmistakable test, but I also think as we've urged the Court that it may be time to put that cannon to rest. And I'm not suggesting that the FLSA should be interpreted differently from any other statute. It's a general principle of statutory construction that exemptions are not construed to swallow the rule. I think that's a perfectly sensible rule of construction, but I do think to sort of amp that up to the degree that it has to be plain and unmistakable to come within the exemption really is contrary to the way this Court generally interprets statutes. I don't think it makes a lot of sense, especially if you remember, that a lot of these exemptions are being passed much later in history than the 1938 enactment of the FLSA. So even if you accept the proposition that 1938 Congress had an unalloyed interest in being remedial in the FLSA, I don't know why that would inform your interpretation of an exemption enacted in 1966 for the expressed purpose of at least having some employees not covered by the FLSA. And I do think that this would be an odd statute to have this plain and unmistakable test when it's riddled with exemptions. So if there were ever one statute where you'd say, okay, Congress, yeah, it had a very important purpose. It was a worthy purpose, but it didn't pursue it at all costs. It would be this statute. If you look at 213, which has the various exemptions to both the minimum wage laws and the overtime laws, is I counted up, there are 31 exemptions to the amendment of the minimum wage and overtime laws just in 213, and there are other exemptions and other places in the statute. So what an odd statute to say that the way we're going to interpret this is only with a thumb on the scale in favor of the coverage and against the exemptions. If there are no further questions, I'd reserve my time. Thank you, Council. Mr. Caldman? Mr. Chief Justice, and may I please the court. The exemption in this case is for any salesman, partsman, or mechanic, primarily engaged in selling or servicing automobiles. The most obvious reason why, or the clearest reason why service advisors don't come within that exemption is they don't service automobiles. In our brief, we cite five, I think the five most authoritative dictionaries of the English language, and they define service as to maintain or repair. You maintain or you don't maintain or repair a car and the way people would ordinarily speak with a pad or a clipboard and a pencil or a telephone, which are the primary tools that service advisors use. You do it back in the back of the shop when you're actually working on the car. Service advisors don't do that, and therefore they don't service cars

. They don't care. I guess sometimes, though, I mean, they do look under the hood sometimes, right? You bring the car up, you know, it's making this noise, they go out and at least listen to the noise, and sometimes they can say right away, oh, that's probably this. And then they send something down, and whether the customer is still there or comes back later, all that they do in the mechanics of the partsmen, send it up and then plug it in and it's right. So, I mean, in certain situations, the advisor would play the primary role in fixing the problem. Not when it's more complex, maybe not typically, but certainly in what I suppose would be many occasions. I don't think so. I mean, actually, I think what the advisor does is make a guess, but really of what might be wrong based on what the customer says. I mean, sometimes the customer goes in and says, I want a 20,000 mile servicing, and the service advisor just sends it back and says we need a 20 mile, a thousand mile servicing. Now, maybe the model is. That's a different, that's a different sample. But even, sometimes I guess what I'm saying, sometimes the primary decision in servicing the car is going to be made by the service advisor, at least an initial thing, you know, send something down. The mechanic may well look at it himself or herself, but the service advisor says it's a distributor cap or whatever, and it turns out it is, they put it on and it's done. I think actually the service advisor's job, they may make a guess as to what's wrong and give the customer say, well, I might be a distributor cap. But it's up to the mechanic to actually figure out what's wrong, not the service advisor. And the close-up service advisor meets the customer in the morning and he said, I'm a service advisor, I'm here to supervise and to plan the servicing of your automobile. Is that correct for him to say? Well, actually, I don't think so. I don't think they supervise the servicing of the automobile. I think they serve a communications function. They don't, in any sense, supervise the mechanic. What about to arrange for? Yes, I think it is correct to say they arrange for it. But I think there's a huge difference between- But if that's true, it seems to me he's engaged in servicing the automobile. I don't think so because I think there's a huge difference. As a matter of, he's definitely not servicing the automobile just because he's arranging for it. There's many people who arrange for the provision of services, but don't perform the service themselves. If somebody's, I will take an example of some salesman, this is particularly true of the difference between sales and service, which are pretty much two distinct categories

. If somebody's going door to door and selling house-painting services, says, do you want your house painted? That person is selling and maybe arranging for painting the house, but they're not painting the house. If somebody's- But if they picked out the color and advised all about the quality of the paint to use in different costs, and scheduled the timing and so forth, I think they could be supervising the painting of the house. Right, well, I mean, actually supervising service, a mean supervising a repair also isn't the same thing as repairing, but I do think that it's quite clear, and you can look at the machine and spreef, these people in no sense supervise the mechanics. They tell the mechanics what the problem is and what the customer wants, and it's primarily serviced a communication link. It's up to the mechanic or whoever else is working on it in the back to figure out what to do. Well, but I mean, just in maybe this isn't the best guide to the interpretation, but it's sort of common understanding if you- Over several years drop your car off whenever you're supposed to or whenever it's broken, and you talk to Fred about getting it fixed, and somebody comes to you later and something that I've got a problem with my car, you would say, my service guy is Fred, but go see him. It's just sort of your general reaction is that is part of the service. Not only that, it's the only part that you have experience with, but you would think of Fred as the person who services your car. I would just respectfully disagree. I have a different- You would go to different shops I guess. I think you would think of Fred as the person you give the car to. The person-to service is to maintain a repair, and the person in the back who actually works on the car is the person who service- Can read it that way. I have no doubt that might even be the most natural reading. Suppose the word we're involved in instead of engaged in. If involved in would bring it much closer in- Yeah, I would, and so what we're doing is we're trying to parse the difference between engaged in and involved in- In a fairly technical statute involving one of 40,000 different kinds of workers as part of a very general statute. Now that to me rings a bell. That if this isn't a question for an agency, what is? All right. So if I'm thinking that, maybe no one else is, I'm only speaking for myself. I was sort of surprised that nobody in the ninth circuit referred to a doctor and that nobody refers to anymore. It's called primary jurisdiction, and it can be used to ask the relevant department to file a brief. And nobody did that. No. Suppose I think, gee, I don't know the answer to this question. It's highly technical. I do look to purpose

. The purpose apparently was that they put these mechanics in there because they had farm equipment somewhere that people go in the middle of the night. So they didn't have fixed hours, whether that was so or not, I don't know. And maybe the service person would call it to in the morning and tell the farmer he's coming. In which case he doesn't have fixed hours. So he should be exempt too. I don't know. So suppose I start, you see the attitude. Have you any advice for me at all? Yeah, I do. In the first place, if you look at the car dealership, it's not the case that there's three main people in the car dealership. The salesman, the partsman, the mechanics. There's salesmen who sell financing, insurance, and warranties. They're not cars. There's salesmen who sell underbody coatings and other accessories like that. There's a lubed technicians. There's body people who work on painting, on a poultry, on body repairs. There's car jockeys. There's dispatchers who allocate the work. So there's many different people who work at a car dealer. Congress picked out only three. And they picked out those three for a particular reason. And if you look at actually the things that we cite, all three of those share something in common. And service advisors not only don't share that, but have a different quality that makes them much more likely to be in the stack. All of the mechanics are in there because they did call farmers at two in the morning. Did the service advisor call the farmer too? As far as I know, in the history of the auto industry, there's never been an example of a service advisor who worked off-site and probably very rarely, if ever, irregular hours. Those were the keys to why Congress wanted partsmen and mechanics in there. They're also clearly the most important reason why they wanted salesmen in there, because salesmen in those days, and still today, at luxury dealerships, I'm told, salesmen will come and bring the car to you to go take a test drive and sick car salesmen. I mean, when Congress kind of wronged what they perceived the partsmen job was, they were right about the partsmen who worked on farm equipment. But they were wrong about the partsmen who worked on automobiles who worked regular hours. I don't think they were wrong. I think what they decided is they wanted to include partsmen and mechanics, who I think reasonably are both said to be servicing cars, and they then decided to include the whole categories and not just limited to farm implements or a particular kind of mechanic or partsmen as long as they're servicing cars. That was the limitation. But your definition of servicing, which I think is a very natural one. I mean, you're not just, you know, natural, it's the dictionary definition of servicing. But it has to cope with this partsmen word. How does how do partsmen fit within your definition of servicing? Well, I do, I think partsmen are reasonably said to be servicing cars. If the mechanic is, needs a fan belt, is working on a car and walks over two steps or five steps or ten steps to pick up a fan belt off the wall, bring it back to the car. I think the mechanic is that whole time repairing or maintaining the car. And what the partsmen is doing is taking over a function, one part of the function of what the mechanic does, and instead the partsmen is doing it. And that's why it works very closely, as we talk about in the brief, they work very closely with the mechanics, they try to get the parts to them in the order in which they need them on complex repairs and so on. And I think that it's very reasonable to, and I guess also a car is nothing but the some of its parts. And for all those reasons, I think it's very reasonable to say that they are servicing cars. Well, but diagnosis is part of the servicing as well, and the service advisers at least do that. I mean, the mechanic doesn't go into what he needs to know what the problem is. And the service adviser will spend a fair amount of time trying to get a description from the customer. Sometimes it's easy, you know, the car won't start. Other times it's going to be harder, and they need to get a good description. You know, is the person who takes down your symptoms at the doctor's office before the doctor comes in, is she or he part of the medical treatment? I think actually the relevant question is, is she, he or she providing the treatment? And I would say no, they're giving an initial guess. No, this is not true. It talks about being engaged in. So is that person engaged in the medical treatment? I don't think he's engaged in treating

. They're also clearly the most important reason why they wanted salesmen in there, because salesmen in those days, and still today, at luxury dealerships, I'm told, salesmen will come and bring the car to you to go take a test drive and sick car salesmen. I mean, when Congress kind of wronged what they perceived the partsmen job was, they were right about the partsmen who worked on farm equipment. But they were wrong about the partsmen who worked on automobiles who worked regular hours. I don't think they were wrong. I think what they decided is they wanted to include partsmen and mechanics, who I think reasonably are both said to be servicing cars, and they then decided to include the whole categories and not just limited to farm implements or a particular kind of mechanic or partsmen as long as they're servicing cars. That was the limitation. But your definition of servicing, which I think is a very natural one. I mean, you're not just, you know, natural, it's the dictionary definition of servicing. But it has to cope with this partsmen word. How does how do partsmen fit within your definition of servicing? Well, I do, I think partsmen are reasonably said to be servicing cars. If the mechanic is, needs a fan belt, is working on a car and walks over two steps or five steps or ten steps to pick up a fan belt off the wall, bring it back to the car. I think the mechanic is that whole time repairing or maintaining the car. And what the partsmen is doing is taking over a function, one part of the function of what the mechanic does, and instead the partsmen is doing it. And that's why it works very closely, as we talk about in the brief, they work very closely with the mechanics, they try to get the parts to them in the order in which they need them on complex repairs and so on. And I think that it's very reasonable to, and I guess also a car is nothing but the some of its parts. And for all those reasons, I think it's very reasonable to say that they are servicing cars. Well, but diagnosis is part of the servicing as well, and the service advisers at least do that. I mean, the mechanic doesn't go into what he needs to know what the problem is. And the service adviser will spend a fair amount of time trying to get a description from the customer. Sometimes it's easy, you know, the car won't start. Other times it's going to be harder, and they need to get a good description. You know, is the person who takes down your symptoms at the doctor's office before the doctor comes in, is she or he part of the medical treatment? I think actually the relevant question is, is she, he or she providing the treatment? And I would say no, they're giving an initial guess. No, this is not true. It talks about being engaged in. So is that person engaged in the medical treatment? I don't think he's engaged in treating. He's maybe a part of the process. Maybe it's a visionary definition of a gay says to do or take part in something. Right. And, you know, there's, as far as engaged in goes, this court has, I mean, actually did a Lexus search, and this court does, has used the term 500 times. It's used about 2,000 times in the U.S. code. It's used in the FLSA in actually one of the provisions in 2, 2, 13 D in the same statute engaged in the delivery of newspapers. It's an extremely common word. And I can't find any instance in which any court has ever construed it to mean anything other than what Black's law dictionary says, which is to do something customarily or regularly or continually. It doesn't mean doing something that's ancillary to that activity. So if you're the 2,03 D talks about engaged in the delivery of newspaper, and there's an exemption for people like that. If you're calling somebody up on the phone and saying, would you like your home delivery of your newspaper, I don't think that person is covered under that provision. And if this court were to construe engaged in to be a term of breadth like that, in this case, I think it would actually upset a lot of settled expectations across broad areas of the law. When Congress wants to include, wants to broaden out a term, it uses terms like necessary and consequent necessary to, which, I'm sorry, necessary and incidental to, which it uses in a couple of the FLSA provisions that we cite. Or it uses terms like the process of, which it uses regularly throughout the U.S. code. But I don't think there's any basis to take in this statute, which is very actually carefully written to take the word servicing or engaged in servicing. And say, well, no, no, they mean something like in the criminal law, you might say, someone is an accessory before the fact, if they help the crime before it's committed or after the fact, if they help it afterwards. I don't think, but in the criminal law, actually, if you didn't have 18 U.S. C. Section 2, which made those people liable as principles, they wouldn't be liable for the crime. And I do think it's the same principle here

. He's maybe a part of the process. Maybe it's a visionary definition of a gay says to do or take part in something. Right. And, you know, there's, as far as engaged in goes, this court has, I mean, actually did a Lexus search, and this court does, has used the term 500 times. It's used about 2,000 times in the U.S. code. It's used in the FLSA in actually one of the provisions in 2, 2, 13 D in the same statute engaged in the delivery of newspapers. It's an extremely common word. And I can't find any instance in which any court has ever construed it to mean anything other than what Black's law dictionary says, which is to do something customarily or regularly or continually. It doesn't mean doing something that's ancillary to that activity. So if you're the 2,03 D talks about engaged in the delivery of newspaper, and there's an exemption for people like that. If you're calling somebody up on the phone and saying, would you like your home delivery of your newspaper, I don't think that person is covered under that provision. And if this court were to construe engaged in to be a term of breadth like that, in this case, I think it would actually upset a lot of settled expectations across broad areas of the law. When Congress wants to include, wants to broaden out a term, it uses terms like necessary and consequent necessary to, which, I'm sorry, necessary and incidental to, which it uses in a couple of the FLSA provisions that we cite. Or it uses terms like the process of, which it uses regularly throughout the U.S. code. But I don't think there's any basis to take in this statute, which is very actually carefully written to take the word servicing or engaged in servicing. And say, well, no, no, they mean something like in the criminal law, you might say, someone is an accessory before the fact, if they help the crime before it's committed or after the fact, if they help it afterwards. I don't think, but in the criminal law, actually, if you didn't have 18 U.S. C. Section 2, which made those people liable as principles, they wouldn't be liable for the crime. And I do think it's the same principle here. When they're talking about engaged in servicing, they're talking about the people who service, not the people who I would concede, do things that are necessary and incidental to the servicing. There's any people in that. Mr. Feldman, when you talked about the purposes, you focused on the fact that service advisors work on site and don't work irregular hours. I believe that Mr. Clemens argument, and he'll correct me if I'm wrong, focuses on the fact of commissions, that these people like other kinds of salesmen and like mechanics are often compensated through commission schemes. What about that? I think that commissions are actually completely irrelevant to this provision. There's many other people at the car dealership, including many of the ones who I mentioned, who are paid on commissions, who are not exempt. There's many people at car dealerships and throughout the economy who are exempt and who are not paid on commissions. In fact, where Congress was interested in commissions as a basis for an exemption, they provided one in 207i. If you're paid more than 50% on commissions and you make more than one and a half times the minimum wage, then you can get, you can be exempt under that provision. It is possible that at least going forward, and I would correct my friend, at the time of the complaint, one thing that was true here, or that's a legend, the complaint, is that the dealership was not up until recently, it says, keeping track of the time and the hours spent. So actually, they would have had a hard time keeping track, even though they're required by the law to do that. They would have had a hard time keeping making out the 207i exemption. But going forward, it may be in this case that these people are covered by 207i. As far as the reliance interest that my friend mentioned, I actually think the reliance arguments cuts exactly the other way. When this Court had the case before, the question that the Court said it was concerned with about reliance was whether the 19, people had been relying on the 1978 DoL letter, and whether the agency in 2011 was required to give some explanation of why it changed its mind. That's actually, so that question isn't a longer in the case, the regulation the Court said is not controlling here. But what has happened is in 2011, DoL did tell everybody that it thought serious advisers are not exempt from the, are not exempt. And in 2015, the Ninth Circuit decided the case, in 2016, about two years ago, this Court remanded the case to the Ninth Circuit by that time, and long before that, probably from 2000, in fact, I know from 2011 on, dealerships were being informed that service adviser might well be covered here, and that there is, they might, they might be entitled to overtime. Could you add to that, or correct me if I'm wrong, in the two circuit cases that rule against the FLSA, the government had taken the opposite position? That's right, that's right. But I think my point about reliance is if you actually, there's a two-year statute of limitations here, everybody's known since 2011, and certainly since two years ago, when this Court decided the case last time, that these people might be entitled to overtime. As far as I can tell, there's been two cases at most, and I'm not sure about both of them. One in the district of Arizona and one in the western district, I think it's the western district of New York, there have been filed claiming that service advisers are entitled to overtime. That's it, two cases

. When they're talking about engaged in servicing, they're talking about the people who service, not the people who I would concede, do things that are necessary and incidental to the servicing. There's any people in that. Mr. Feldman, when you talked about the purposes, you focused on the fact that service advisors work on site and don't work irregular hours. I believe that Mr. Clemens argument, and he'll correct me if I'm wrong, focuses on the fact of commissions, that these people like other kinds of salesmen and like mechanics are often compensated through commission schemes. What about that? I think that commissions are actually completely irrelevant to this provision. There's many other people at the car dealership, including many of the ones who I mentioned, who are paid on commissions, who are not exempt. There's many people at car dealerships and throughout the economy who are exempt and who are not paid on commissions. In fact, where Congress was interested in commissions as a basis for an exemption, they provided one in 207i. If you're paid more than 50% on commissions and you make more than one and a half times the minimum wage, then you can get, you can be exempt under that provision. It is possible that at least going forward, and I would correct my friend, at the time of the complaint, one thing that was true here, or that's a legend, the complaint, is that the dealership was not up until recently, it says, keeping track of the time and the hours spent. So actually, they would have had a hard time keeping track, even though they're required by the law to do that. They would have had a hard time keeping making out the 207i exemption. But going forward, it may be in this case that these people are covered by 207i. As far as the reliance interest that my friend mentioned, I actually think the reliance arguments cuts exactly the other way. When this Court had the case before, the question that the Court said it was concerned with about reliance was whether the 19, people had been relying on the 1978 DoL letter, and whether the agency in 2011 was required to give some explanation of why it changed its mind. That's actually, so that question isn't a longer in the case, the regulation the Court said is not controlling here. But what has happened is in 2011, DoL did tell everybody that it thought serious advisers are not exempt from the, are not exempt. And in 2015, the Ninth Circuit decided the case, in 2016, about two years ago, this Court remanded the case to the Ninth Circuit by that time, and long before that, probably from 2000, in fact, I know from 2011 on, dealerships were being informed that service adviser might well be covered here, and that there is, they might, they might be entitled to overtime. Could you add to that, or correct me if I'm wrong, in the two circuit cases that rule against the FLSA, the government had taken the opposite position? That's right, that's right. But I think my point about reliance is if you actually, there's a two-year statute of limitations here, everybody's known since 2011, and certainly since two years ago, when this Court decided the case last time, that these people might be entitled to overtime. As far as I can tell, there's been two cases at most, and I'm not sure about both of them. One in the district of Arizona and one in the western district, I think it's the western district of New York, there have been filed claiming that service advisers are entitled to overtime. That's it, two cases. So I think that the logical inference to be drawn is that most dealerships, some dealerships are probably paying overtime right now to service advisers. In fact, I know that some are. Some dealerships, many, many dealerships, probably the vast majority of them have made, have arranged things so they come within the 207I exemption. And the reliance now, what really is, what this case easily could be about, is whether dealerships can stop paying overtime to people whom they're currently paying. And whether dealerships can change the terms of their arrangements with service advisers, so that the people who have been coming under 207I, they can, they don't have to comply with the limitations of 207I. They don't have to comply with the minimum one and a half times, the minimum wage. I don't understand from what you said, whether you are disagreeing with me, that there would be no retroactive liability because employers were hiding in good faith on what had been the agency's position. Kagan, I agree with you there would, there could be good faith reliance. That in this case, I think there would be good faith reliance up until 2011. Then the complaint here was filed in 2012. So we would only go back as far as 2011. There would be good faith reliance. But the point is, that isn't going to be relevant to future cases. There's only two cases, I think, as far as I'm aware, maybe there's another one that I haven't been able to find, but I've tried to look for them. There's only two cases currently pending. But I think really the courts should be very careful about giving a lot of weight to claims of reliance, where what might be happening is people are paying overtime and bringing their service advisers in 207 and I. And what they really want to do is stop paying the overtime and stop bringing their service advisers within 207. And so I don't think the reliance issue that my friend discussed. I just don't think that's a reason to decide the case that way. Mr. Feldman, the solicitor general is not here in a case in which one would expect the government to be here. Do you know whether there's any activity taking place in the Department of Labor with respect to this issue? I don't know. I just don't know about that. I would make one other point about the purposes of the statute. So one of them was these three people and especially auto salesmen, which is where what petitioners says the service advisers are

. So I think that the logical inference to be drawn is that most dealerships, some dealerships are probably paying overtime right now to service advisers. In fact, I know that some are. Some dealerships, many, many dealerships, probably the vast majority of them have made, have arranged things so they come within the 207I exemption. And the reliance now, what really is, what this case easily could be about, is whether dealerships can stop paying overtime to people whom they're currently paying. And whether dealerships can change the terms of their arrangements with service advisers, so that the people who have been coming under 207I, they can, they don't have to comply with the limitations of 207I. They don't have to comply with the minimum one and a half times, the minimum wage. I don't understand from what you said, whether you are disagreeing with me, that there would be no retroactive liability because employers were hiding in good faith on what had been the agency's position. Kagan, I agree with you there would, there could be good faith reliance. That in this case, I think there would be good faith reliance up until 2011. Then the complaint here was filed in 2012. So we would only go back as far as 2011. There would be good faith reliance. But the point is, that isn't going to be relevant to future cases. There's only two cases, I think, as far as I'm aware, maybe there's another one that I haven't been able to find, but I've tried to look for them. There's only two cases currently pending. But I think really the courts should be very careful about giving a lot of weight to claims of reliance, where what might be happening is people are paying overtime and bringing their service advisers in 207 and I. And what they really want to do is stop paying the overtime and stop bringing their service advisers within 207. And so I don't think the reliance issue that my friend discussed. I just don't think that's a reason to decide the case that way. Mr. Feldman, the solicitor general is not here in a case in which one would expect the government to be here. Do you know whether there's any activity taking place in the Department of Labor with respect to this issue? I don't know. I just don't know about that. I would make one other point about the purposes of the statute. So one of them was these three people and especially auto salesmen, which is where what petitioners says the service advisers are. The three categories of Congress included are people who work irregular hours and offsite where it's hard to keep track of people's hours. Now, the service advisers have a different, another feature, first of all, they never work offsite. They rarely work irregular hours. But there's another feature of how they work that cuts in the opposite direction. They complain in this case alleges that service advisers, the service advisers in this case work 55 hours a week. Now, what Congress wanted to do in the Fair Labor Act was to set minimum standards of working conditions. And at the very least, they did, they thought that should be 40 hours a week and that should be basically what people are expected to work. Now, mechanics and partsmen, as well as, you know, warranty salesmen, blue technicians, all the other people at the auto dealership work in occasional overtime hour. But these people, this is their standard week after week, regular hours, 55 hours. Congress, Congress and the FLSA thought that that was the kind of thing they didn't want to have happened. And particularly because there was a second purpose of the maximum hours of the overtime requirement, which is they wanted the people who are instead of employing somebody for 55 hours, they went and said, well, go hire somebody else to fill in that extra time. Because they wanted to expand employment opportunities at the same time as they were, you know, legislating. Well, but if you have a service adviser in the morning and then a different one in the afternoon, that's a completely different, as saying is dynamic from the same person saying we found a little problem and we went ahead and did X, Y, or whatever. Well, I mean, I would just say one is that does happen sometimes. Two is another way to deal with this is to have fewer days worked and you can have longer hours. There's many occupations that work that way. You can share the work around. You can give people time off in the middle of the day. Okay. This dealership doesn't do any of those things. It's a 55 hour week. And that's exactly the purpose of the, these are people come directly within the purposes of the FLSA and it's no coincidence that Congress didn't include them in the statute when it included salesmen, partsmen, and mechanics. Another, I would say also that Petitioner's argument is primarily, is that service advisors are salesmen and actually on page five of the reply brief, Petitioner says, they're salesmen because they are principally involved in selling. And that's what you would expect salesmen to do. But that does create a logical problem for Petitioner because if you're principally involved in, you can't be principally involved or it's hard to be principally involved in two different things, especially two things as different as selling and servicing

. The three categories of Congress included are people who work irregular hours and offsite where it's hard to keep track of people's hours. Now, the service advisers have a different, another feature, first of all, they never work offsite. They rarely work irregular hours. But there's another feature of how they work that cuts in the opposite direction. They complain in this case alleges that service advisers, the service advisers in this case work 55 hours a week. Now, what Congress wanted to do in the Fair Labor Act was to set minimum standards of working conditions. And at the very least, they did, they thought that should be 40 hours a week and that should be basically what people are expected to work. Now, mechanics and partsmen, as well as, you know, warranty salesmen, blue technicians, all the other people at the auto dealership work in occasional overtime hour. But these people, this is their standard week after week, regular hours, 55 hours. Congress, Congress and the FLSA thought that that was the kind of thing they didn't want to have happened. And particularly because there was a second purpose of the maximum hours of the overtime requirement, which is they wanted the people who are instead of employing somebody for 55 hours, they went and said, well, go hire somebody else to fill in that extra time. Because they wanted to expand employment opportunities at the same time as they were, you know, legislating. Well, but if you have a service adviser in the morning and then a different one in the afternoon, that's a completely different, as saying is dynamic from the same person saying we found a little problem and we went ahead and did X, Y, or whatever. Well, I mean, I would just say one is that does happen sometimes. Two is another way to deal with this is to have fewer days worked and you can have longer hours. There's many occupations that work that way. You can share the work around. You can give people time off in the middle of the day. Okay. This dealership doesn't do any of those things. It's a 55 hour week. And that's exactly the purpose of the, these are people come directly within the purposes of the FLSA and it's no coincidence that Congress didn't include them in the statute when it included salesmen, partsmen, and mechanics. Another, I would say also that Petitioner's argument is primarily, is that service advisors are salesmen and actually on page five of the reply brief, Petitioner says, they're salesmen because they are principally involved in selling. And that's what you would expect salesmen to do. But that does create a logical problem for Petitioner because if you're principally involved in, you can't be principally involved or it's hard to be principally involved in two different things, especially two things as different as selling and servicing. So if they're principally involved in selling, which is what Petitioner says makes them a salesman and I think what would make them a salesman if they were, then it's impossible to say that they're print, then it's hard to turn around and say, no, no, they're principally engaged in servicing. The two categories are distinct in the statute and as examples I gave, the House painter or the travel agent who's selling guided tours is, you know, or a triple A, a person who's selling you a roadside assistance, all those people are selling you things, they're not doing them because the idea of selling something is a fundamentally different concept than the idea of actually doing it. And that's a problem that I don't think Petitioner can escape. I mean, that is the reason why what Congress did is they put service advisors with all the other people in the auto dealership who I mentioned, who are not exempt and who get over time. I think even Petitioner doesn't actually believe, at least in one respect, that all that service advisors are principally engaged in selling, in servicing automobiles. There are people at the dealership who sell underbody coatings and assorted paint sealants, post-retreatments, tire treatments. Those people are definitely salesman, that is their job is to sell. Those things are all services are provided to the car. And yet Petitioner has conceded from the beginning of this litigation that those people who do that kind of selling that they're not covered by the statute. And I think that just is a natural conclusion that Petitioner draws because I think that's the natural way to read the statute. Petitioner, my friend did refer to the said that the Department of Labor has taken the position that auto body repair people are not covered by the statute. I think that that is actually mistaken. The only source for that is in a footnote in the reply brief. It's a 1968 opinion letter by Department of Labor. And what Department of Labor said there, first of all, the opinion letter stood for the proposition and addressed the question of whether auto painters are covered by the statute are exempt and included that they're not exempt. But secondly, it did then talk about a category called body and fender mechanics. And it suggested that they are not, that they are exempt under the statute. Well, I just think it's worthwhile looking at what happened to that. In 1970, body and fender mechanics were included in the original version of the regulation as an example of the kind of people who are considered to be a mechanics and could be exempt. In 1973, three years later, I think it was the first revision of it, they kept that list of people who are mechanics the same and removed body and fender mechanics. So I think the only thing you can conclude is that Department of Labor has not concluded, and there isn't a history of saying that even body and fender mechanics are not covered. But whether they're covered or not would be a different question, but at least auto body repairmen are not. Congress picked three distinct professions who were well recognized at the time of the statute and said, we want those occupations, specific occupations, to be exempt for the reasons that I said. The service advisors were a well recognized occupation at that time. They were recognized in the Occupational Outlook Handbook

. So if they're principally involved in selling, which is what Petitioner says makes them a salesman and I think what would make them a salesman if they were, then it's impossible to say that they're print, then it's hard to turn around and say, no, no, they're principally engaged in servicing. The two categories are distinct in the statute and as examples I gave, the House painter or the travel agent who's selling guided tours is, you know, or a triple A, a person who's selling you a roadside assistance, all those people are selling you things, they're not doing them because the idea of selling something is a fundamentally different concept than the idea of actually doing it. And that's a problem that I don't think Petitioner can escape. I mean, that is the reason why what Congress did is they put service advisors with all the other people in the auto dealership who I mentioned, who are not exempt and who get over time. I think even Petitioner doesn't actually believe, at least in one respect, that all that service advisors are principally engaged in selling, in servicing automobiles. There are people at the dealership who sell underbody coatings and assorted paint sealants, post-retreatments, tire treatments. Those people are definitely salesman, that is their job is to sell. Those things are all services are provided to the car. And yet Petitioner has conceded from the beginning of this litigation that those people who do that kind of selling that they're not covered by the statute. And I think that just is a natural conclusion that Petitioner draws because I think that's the natural way to read the statute. Petitioner, my friend did refer to the said that the Department of Labor has taken the position that auto body repair people are not covered by the statute. I think that that is actually mistaken. The only source for that is in a footnote in the reply brief. It's a 1968 opinion letter by Department of Labor. And what Department of Labor said there, first of all, the opinion letter stood for the proposition and addressed the question of whether auto painters are covered by the statute are exempt and included that they're not exempt. But secondly, it did then talk about a category called body and fender mechanics. And it suggested that they are not, that they are exempt under the statute. Well, I just think it's worthwhile looking at what happened to that. In 1970, body and fender mechanics were included in the original version of the regulation as an example of the kind of people who are considered to be a mechanics and could be exempt. In 1973, three years later, I think it was the first revision of it, they kept that list of people who are mechanics the same and removed body and fender mechanics. So I think the only thing you can conclude is that Department of Labor has not concluded, and there isn't a history of saying that even body and fender mechanics are not covered. But whether they're covered or not would be a different question, but at least auto body repairmen are not. Congress picked three distinct professions who were well recognized at the time of the statute and said, we want those occupations, specific occupations, to be exempt for the reasons that I said. The service advisors were a well recognized occupation at that time. They were recognized in the Occupational Outlook Handbook. They had been recognized in NLRB decisions from the 1940s on in industry publications. And there's a reason why they're a distinct occupation. Because if you look at the jobs that they do, it's actually a completely different job than the job that's done by auto salesmen who are the people who Congress undoubtedly wanted to include. The one other thing I'd like to say is about the distributive or Rendendo cannon. I mean, what that cannon stands for is the proposition that when you have two lists like this, that you have to make match up as dates, as in the SIMS case is actually a great example. Where you have three in the first category and two in the second and you have to match them up, it is common and they're orres, they're connected by the word or. It's common in English language to say, well, we match up the ones that actually fit according to the context. But we don't have to struggle and strain to twist what the ordinary meanings of words or something like that to try to barely find a way in which everything in the first list has to match with everything in the second. And that is all that that cannon means. It means that it's perfectly acceptable and was what Congress I think did is to say salesman match up with sales. They're etymologically related, they're semantically related, that's what Congress intended to do. And it matches perfectly. Partsman and mechanics match up with servicing. Salesmen don't match up with servicing and in fact, insofar as someone's a salesman, they're almost certainly not a service person. All right, there are no further questions. Thank you, Council. Five minutes, Mr. Cement. Thank you, Mr. Chief Justice, and may it please the Court, just a few points in rebuttal. First of all, I'd like to start with the reliance issue. I don't think it is just accurately accurate at all to say that when the 2011 regulation came in without any explanation that was ultimately deemed procedurally invalid by this Court, that dealerships just stopped what they were doing and changed 40 years of practices. If that had happened, this suit would not have happened. I mean, the reality is that across the country, based on that unexplained regulation, dealerships continued their traditional practices. That's why the reliance interests are all on our side of this case

. They had been recognized in NLRB decisions from the 1940s on in industry publications. And there's a reason why they're a distinct occupation. Because if you look at the jobs that they do, it's actually a completely different job than the job that's done by auto salesmen who are the people who Congress undoubtedly wanted to include. The one other thing I'd like to say is about the distributive or Rendendo cannon. I mean, what that cannon stands for is the proposition that when you have two lists like this, that you have to make match up as dates, as in the SIMS case is actually a great example. Where you have three in the first category and two in the second and you have to match them up, it is common and they're orres, they're connected by the word or. It's common in English language to say, well, we match up the ones that actually fit according to the context. But we don't have to struggle and strain to twist what the ordinary meanings of words or something like that to try to barely find a way in which everything in the first list has to match with everything in the second. And that is all that that cannon means. It means that it's perfectly acceptable and was what Congress I think did is to say salesman match up with sales. They're etymologically related, they're semantically related, that's what Congress intended to do. And it matches perfectly. Partsman and mechanics match up with servicing. Salesmen don't match up with servicing and in fact, insofar as someone's a salesman, they're almost certainly not a service person. All right, there are no further questions. Thank you, Council. Five minutes, Mr. Cement. Thank you, Mr. Chief Justice, and may it please the Court, just a few points in rebuttal. First of all, I'd like to start with the reliance issue. I don't think it is just accurately accurate at all to say that when the 2011 regulation came in without any explanation that was ultimately deemed procedurally invalid by this Court, that dealerships just stopped what they were doing and changed 40 years of practices. If that had happened, this suit would not have happened. I mean, the reality is that across the country, based on that unexplained regulation, dealerships continued their traditional practices. That's why the reliance interests are all on our side of this case. Now, there are also reliance interests for the treatment of body repairmen, who have from the very beginning been treated as exempt at dealerships. Now, there is the letter that we cite that talks about how painters are not covered and body repairmen are covered. It also cites legislative history, well, grant you the legislative history is more focused. Mr. Cement, your new definition, your more expansive definition. Tell me how many more people that are involved in the service department will be covered. Will it include the dispatchers who tell people who don't do anything, but assign the work, but the loobsman, the upholsters, the all those other people who right now for 40 years or more or less have been paid a salary? Are they now going to be subject to automobile dealerships saying, given this new definition, we can forego paying them minimum wages? No, Justice Sotomayor, we're here. We're on the status quo team. We're not trying to get some change. But tell me, but your definition might very well include them. Because you're not simply saying anybody involved in servicing is covered. No, that's where, that's where, with all due respect, you're wrong. We're giving you a definition of servicing, but we also say it works in the statute together with salesperson, partsman, and mechanic. So in order to be covered, you have to be both. You have to be one of those three categories of employee, and you have to be primarily engaged in servicing. So nothing's going to change for the non-mechanics, the non-sales people, the non-partsman. Things are going to stay the same because we have a definition of servicing that has to include partsman, that includes service advisors, and service advisors are included not because, just because, they are primarily engaged in servicing, but because they are also salespeople. So I just wanted to say that the legislative history is specific as defender and bodymen. And they were meant to be exempt mechanics. They're treated as exempt. I hope we don't have another change to deal with. Under the status quo, body repairmen are exempt. Mechanics, traditional mechanics are exempt. Partsman are exempt, and sales advisors are exempt, and there are real reliance interests on that. As the Labor Department's position, they're obviously not here

. Now, there are also reliance interests for the treatment of body repairmen, who have from the very beginning been treated as exempt at dealerships. Now, there is the letter that we cite that talks about how painters are not covered and body repairmen are covered. It also cites legislative history, well, grant you the legislative history is more focused. Mr. Cement, your new definition, your more expansive definition. Tell me how many more people that are involved in the service department will be covered. Will it include the dispatchers who tell people who don't do anything, but assign the work, but the loobsman, the upholsters, the all those other people who right now for 40 years or more or less have been paid a salary? Are they now going to be subject to automobile dealerships saying, given this new definition, we can forego paying them minimum wages? No, Justice Sotomayor, we're here. We're on the status quo team. We're not trying to get some change. But tell me, but your definition might very well include them. Because you're not simply saying anybody involved in servicing is covered. No, that's where, that's where, with all due respect, you're wrong. We're giving you a definition of servicing, but we also say it works in the statute together with salesperson, partsman, and mechanic. So in order to be covered, you have to be both. You have to be one of those three categories of employee, and you have to be primarily engaged in servicing. So nothing's going to change for the non-mechanics, the non-sales people, the non-partsman. Things are going to stay the same because we have a definition of servicing that has to include partsman, that includes service advisors, and service advisors are included not because, just because, they are primarily engaged in servicing, but because they are also salespeople. So I just wanted to say that the legislative history is specific as defender and bodymen. And they were meant to be exempt mechanics. They're treated as exempt. I hope we don't have another change to deal with. Under the status quo, body repairmen are exempt. Mechanics, traditional mechanics are exempt. Partsman are exempt, and sales advisors are exempt, and there are real reliance interests on that. As the Labor Department's position, they're obviously not here. Footnote 9 of our pli brief points out that they have put an advisory out that they are not going to take any enforcement actions against sales advisors until this court rules. In this case, which I think just underscores that the reliance interests, the status quo is in our favor. There's no current regulatory effort to go after service advisors, and there really hasn't been one from the Labor Department itself since about 1978. And Justice Breyer, if you're looking for a tiebreaker with an agency somewhere, I think it's four decades of acquiescence. That's the last valid action from the Labor Department. The 2011 regulation was deemed procedurally invalid. So the last word for them is 1978 opinion letter, 1987 enforcement manual. For 40 years, everybody has understood service advisors to be exempt. Whether you think about that as an end- The two circuits that rule in favor of the employees, was that within the 40 year period? Did the agency take the position in those two cases? That Justice Kennedy is really what starts the 40 years of reliance. So the first of those cases was a fifth circuit case called deal motors. That was an enforcement action brought by the Labor Department, but the Labor Department lost. Shortly thereafter, they also lost in the sixth circuit, and that's when they started acquiescent. The fourth circuit case comes along later, and that's a private party action. It's not an enforcement action. So we do have roughly at least since 1978, we've had acquiescence from the Labor Department, which gives rise to all of these reliance interests. In terms of the purpose of the statute, I really thought it was interesting that my friend on the other side emphasized the fact that the service advisors worked 55 hour weeks. Because Congress, when it dealt with people who by the nature of their job worked long weeks, they had one of two reactions to that. One of it, they said, well, that's awful, and we want to have more workers, so we're going to limit them to 40. The other is, they said, well, yeah, that's the way it is in that industry, and those people aren't underpaid. So we're going to give them an exemption. That's exactly what they did with service advisors. Thank you. Thank you, Council. The case is submitted.

We'll hear argument first this morning in case 16, 13, 62, and Sino Motor Cars versus Nuvaro. Mr. Clement. Mr. Chief Justice and may it please the Court. Service advisors are salespeople primarily engaged in servicing automobiles. Service advisors are plainly salespeople, and what they sell and what they are primarily engaged in is the servicing of automobiles. Thus, respondents and the nation's 100,000 service advisors come within the literal disjunctive text of the FLSA exemption for any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements. Is there any other category, the statute lists three categories, salesman, partsman, and mechanics? And you say the service advisor is, should fit under salesman. Is there any other person that's not specifically enumerated that's subsumed under one of these categories? Mr. Clement, there is Justice Ginsburg, if what you mean is sort of an occupation that was well understood at the time that Congress passed this exemption in 1966. The example would be automobile body repairman. I was treated as a separate category, for example, in the occupational outlook handbook that my friends on the other side like so much, but yet the Labor Department has consistently treated repairman in the body shop as covered by the exemption just like mechanics in the service shop. So I think that goes a long way to showing that it's not like Congress was consulting this handbook at all, or had this conception that it was going with a three to three correspondence with existing occupations and what it was trying to capture in the statute. So, Clement, you said the literal meaning, and you have some good arguments, but I have to tell you I don't think that that's the best one of them. Just if you think of what servicing means, this is one dictionary, but basically all dictionaries say the same thing, it means to perform services of maintenance, maintenance, supply, repair, installation as to service a car. So it actually means to do the work, to do the repair, to do the maintenance, I think would be the most ordinary understanding of what servicing means. So it does seem as though for all the arguments that you do have, that one cuts against you, that just the ordinary meaning of what it means to be engaged in servicing what a mobile is to be repairing, maintaining, fixing cars. Well, Your Honor, I mean, I would love to talk to you about some of the other arguments you seem to like better, but let me try to push back a little bit on this one, which is, I would be the first to admit that servicing in some statutes can have a relatively narrow compass and includes only, you know, essentially turning the wrenches yourself. But in other context, it can have a broader meaning, supplying the service, providing the service. And here we know that Congress used the term in that latter, broader sense because of the inclusion of Partsman. Because Partsman are not engaged in getting under the hood and turning the wrenches. The best place to look at what a Partsman does is the Labor Department regulation that's been on the books since 1970. It specifically talks about what a Partsman is primarily engaged in, and that is the requisitioning, stocking, and dispensing of parts. So I, that is one of the better arguments, I think, is what Partsman is doing in this. But I think I'm still suggesting before we get on to that, that if you took Partsman out of this statute, I don't really think that you'd have a leg to stand on here, that we would just naturally mean, well, servicing automobiles is like fixing them. And what, and the service providers, they have something to do with servicing to be sure, but they're not doing the servicing, what they're doing is selling service products. Well, Your Honor, I think if Partsman were not in the statute, I would have a weaker argument. I think I still might have a leg to stand on, especially if there were four decades of industry reliance on a position. But I do think that the Partsman can't be ignored, and I do think it's actually a mistake to sort of look at servicing in isolation from the inclusion of Partsman in this statute. I think if you look at this comment, and how Partsman got in there, I mean, there is the legislative history, the Senate, or by said, the Partsman are woken up at four in the morning because some piece of form equipment needs to be repaired. And then there was somebody else who backed that up. So those senators at least thought of the Partsman as somebody who would work irregular hours. Now, they may not have, they may have been talking about a specific category of Partsman, the one to attend to form equipment, but they use the statute uses the General Title. Well, it does more than use the General Title Justice Ginsburg. It also, I think there's no argument that the statute only covers farm-implement Partsman. Based on its disjunctive structure, it certainly covers, I think, automobile Partsman and Partsman at a truck dealership. And I think equally importantly, it covers it without regard to whether they work outside or have unusual hours. And so I think what you have here is a classic example of where Congress was impelled to include Partsman in the statute, based on some very specific concerns of specific senators about farm-dealer Partsman. But then they expanded the statute quite a bit more substantially to cover all of the Partsman. One other footnote on that piece of the legislative action, I think it's actually interesting that when Congress first proposed adding Partsman, they proposed adding Partsman who were selling or servicing farm-implement. And so I think what that shows is that Congress may have actually had with selling or servicing, not necessarily too siloed, disjunctive terms, but sort of the broader process of selling or servicing, because I don't think Partsman ever sold the farm-implement's themselves. One of the amicus briefs talks about what Partsman did historically and makes the case that what Partsman did when this statute was passed, it's a little bit different from what were a lot different from what a Partsman does now. In the sense that when this statute was passed, they were not readily available, ready made off the shelf parts. And what Partsman really did was kind of get under the hood and try to say, strip engines and play with Parts and adjust Parts. And it was very much more part of the repair process than somebody who was taking things off the shelf. Justice Kagan, I know there's an amicus brief that says that. I think we're here to ask you to mostly look at the plain text of the statute. But if you're interested in looking at something, I do think that Occupational Handbook from 1966 has a couple of pages about what Partsman did back then. And I don't think it really maps up with what the amicus brief says, which is to say, even back in 1966, sure, there might be an occasion on which they had to fix some part or got under the hood. But in the main, what they did then is exactly what the Labor Department identified, which is they're behind the counter, they're making sure that when you do a repair, and you need a new spark plug or a new fan belt, that they actually have it in stock. And that is, I think classically what Partsman does, I don't think that it really puts them really in the same places the mechanics. I mean, it's interesting. If you want to look at those photos at the back of the red brief that come from that Occupational Handbook, I think it's telling that the service advisor and the mechanic are the two photos where the hood's up. The counterman, the Partsman, he's behind the counter, which, you know, I don't mean to say that's where he or she belongs, but that is where they typically are. And it's pretty far removed from the action, which is why I think the Partsman really are the clue to interpreting this statute to have this broader compass. Can I try a hypothetical on you and the hypothetical statute is designed to match this one in structure and to present the same question. So here's the language. Any salesman, designer, or seamstress, primarily engaged in selling or making dresses. All right? So there, we know the seamstresses involved in making dresses. We know the salesman is involved in selling dresses. Designer is the Partsman, and you could say, look, the designer, they're not actually sitting there with the needle, but they're still sort of making the dresses. That's the Partsman. And then the question is, would you really say that the salesman is making the dresses, too? I'm not sure. I would, Your Honor, but I think there are reasons for that, which is I think making dresses is a narrower term, frankly, than servicing. I think servicing is a broader term. I also think the designers are, frankly, more integral to the making of the dresses than the Partsman is to any kind of narrow concept. That is exactly why I was interested. You said you're primarily relying on literally. Well, I think in 10 minutes, the two of us could think of hundreds of examples, maybe at least 50, where it's just, look, any seamstress or customer who makes or wears dresses. Hey, they don't mean the seamstress who wears dresses. They mean the customer who wears dresses and the seamstress makes the dresses. Any professor or student who teaches or learns at this university, they don't mean the professor who learns at the university. They mean the professor who teaches in the student who learns. Any salesman who, what's the word, you know, sells or sells cars, or we, you see the word, but I think there are so many examples like that that that seems to be the natural meaning. You have two words over here that are verbs, two words over here that are nouns. The first seems to go with the first, the second with the second. And if I just gave you this, you do nothing else about it, and you're just looking to literal words, I would have thought, on a bet you would have said that's the interpretation. Well, Justice Breyer, there's a couple of things. Most of the examples that you were suggesting, I think, have a two-to-two correspondence. Not three-to-two correspondence. And I do think that makes a big difference in the real world. The second thing is, I do think, I mean, I'm not here to tell you that there aren't disjunctive series, followed by disjunctive series, where you do have matching. Now, I think often that's because the matching really excludes the other cases or produces a null set. I think it also depends a little bit on sort of what's going on with your professor and student hypothetical. If you do, you know, if that was all tethered to a requirement as to who gets issued a library card, if you had a professor who was sort of visiting that semester and only learning and not teaching, would they really deny a library card? No, no, okay. But then you go to her second point, which the second point was, what about the purposes as Congress reveals? You can see in that, sorry. Could I ask your indulgence in just, but before you talk about purposes? Just, you know, my, what my hypothetical was designed to do, and I came up with a bunch of them and I'll spare you. Thank you. Is to have a three to two correspondence. Your answer back to Justice Spryer was right away, well, your hypotheticals have a two to two correspondence and that's different. My hypothetical had a three to two correspondence, and you had to do a little bit of stretching to get one of the middle term in. But the question is, does that force you to stretch so much that you get the first term in, when the first term pretty naturally pairs with the other, with the selling word? And that's what you are asking us to do. And I think to put the point more generally, the fact that you have to do a little bit of stretching to get parts men in does not compel you to do a lot of stretching to get salesmen in. But Justice Kagan and I want to try to get back to the purpose of questions, but I do think that the degree of stretching you have to do to get parts men in is not less significant difference between how much stretching you have to do to get the service advisors in. And I think that's really the key. I mean, maybe in your hypothetical, which you designed a lot of them and you probably gave me one of the best ones. And I think that's because- I'm not your daring, mate. Well, no, no, but I take it that because you really thought there was a big gap between the designers and the salespeople in terms of the stretching. And I just don't think that's the case with the parts men. And I really do think. I mean, the parts men, I mean, God love the parts men, but they're pretty far removed from the action of turning the wrenches. I actually think that if you did an empirical test as to who got under the hood more often, the service advisors would win, Mr. Komet. I can't say it is the parts men. That example, because Congress put them there specifically. And you don't have to match them with anything. Congress may have been overbroad because its daughter would defile equipment people. So if we just look at the two others, why should we stretch service advisor to come within the mechanic who's actually servicing when we know that the service advisor doesn't even possess the skills to be engaged in servicing? So Justice Ginsburg, I don't think the service advisor is differently situated from the parts men in terms of having the skills to go under the hood and turn the wrenches himself or herself. I think as to the answer to your question about why don't we just say, hey, the parts men are in because the parts men are in. Because the structure of the statute doesn't let you say just the parts men are in. The parts men are in because they are primarily engaged in selling or servicing automobiles. Now, I take it that the parts men don't sell the automobiles. So they must be in either because selling or servicing is just sort of a catch all that gets everything that the dealership basically does. Or it's because we have a broad enough conception of servicing to include the parts men. Now, the way that I understand this Court to interpret statutes is once you interpret a statutory term to have a certain breath, I mean, that's what it has, even like Clark-V. Martinez, even when you have to stretch the language of the Constitution to avoid a statute to avoid a constitutional problem. And you have an example of a parts man that is not engaged in servicing automobiles. Say a parts man in another office and he downtown from the dealership and he just picks up the phone and orders parts or something? Sure. I mean, first of all, you could have a parts man who's not employed by an automobile dealership at all. That they're just an independent parts man or they work at auto zone or something like that. I don't think they're covered by the terms of the statute. So I do think you have to interpret the statute so you tether parts man to a term like servicing. And then once you interpret to have a certain breath, I don't think it can shrink back down so it can be wide as the parts man but narrow as to service advisors. And so I do think then the service advisors do come comfortably within the text of the statute. And we haven't talked about the fact that for four decades they've been treated that way, which I think. I wanted to ask you, you mentioned in your argument that there's been decades of reliance. If we weren't to adopt that argument and say, well, there's been reliance here. It's a close question. We're not sure it's ambiguous with that. What case do I cite to show that reliance bears on the interpretation of a statute? I think you'd cite among other things you could cite the Christopher case, the Christopher against Smith Klein case, which is another FLSA case. And this court averted to the reliance interest both in deciding not to apply our deference, but also in interpreting the statute. And I think the principle isn't, well, if for four decades people have gotten wrong, we'll get it wrong. I think the principle is, as the seventh circuit said in the ye case, which Christopher cited. I mean, it's no mean feat to conclude that an agency has been an open notorious violation of the FLSA for four decades. And I think the behavior of the industry is some evidence of what those terms meant. Kessler-Anne-Thee, an agency as I understand it, the agency gave up after two circuits rejected its position. So the agency acquiesced in the fourth and fifth circuit position. But last time around, I noticed your argument about the massive retroactive liability and I said, well, what about this provision that says someone who relies in good faith on the agency position doesn't have retroactive liability? Well, it's, I think that the issue I'm happy to discuss that that's the portal to portal active, affirmative defense. I think our reliance on that is even more complicated now, because it doesn't just allow for no damages when you've relied on the agency and the abstract. It specifically talks about relying on agency regulations. So at least since 2011, when you had the last change in administrative position, I don't think we'd be able to rely on the portal to portal active, affirmative defense to say we're not subject to liability. The other thing my friends on the other side say is that, well, there's this other exemption, 207I that will help at least those that were paid on a majority basis for a commission. Now, there's a couple of things about that. I mean, I think the most important one is there, I don't know the exact number, but there are a sizable number of people in the industry who are paid majority salary and so they'd have to be restructured. But the other thing is, it's a little bit rich for my friends on the other side to say, don't worry about this because of 7i. I mean, when they filed this complaint, they must have had some theory as to why we weren't already covered by 7i. So I think that just shows that what the industries relied on for four decades is not some combination of the portal to portal act in 207I. What the industries relied on is the idea that in this context, you know, it is this exemption that exempts all service advisers, not just those that are paid primarily on a commission. When I think of these three categories of workers, so service providers, partsmen, mechanics. To coin a couple of silly kind of words, a service advisor is customer facing. You know, the primary job is to deal with customers, to sell them things, to liaison with them, to make sure they're happy. Mechanics and also partsmen are car-facing. You know, their job is to do stuff with the car. And, you know, in different ways, the partsmen is more helping, but they're, they're focuses on the automobile, whereas the service provider's focus is on the customer. That seems to me a pretty big divide, suggesting that the service providers are really, you know, salesmen, not serviceers. Well, you're on a couple of things. First of all, you probably anticipate that I'm going to take you back to the partsmen again, because I do think describing the partsmen as just vehicle facing really misdescribes what they do. And I would ask you, if you have the time, to look at that 1966 entrance on the auto partsmen countermen, because what it talks about is, you know, they really, sometimes they sell direct parts to retail customers. So sometimes they too are customer-facing. And that's all part of what they are primarily engaged in, which is not just facing the car. It's really their responsibility as the parts, whether it's the mechanic that wants the parts for a particular repair, or whether it's some outside customer who wants to buy a part, because they're doing it yourself for it. Now, so I really think the partsmen are in the middle in a way that does really give servicing a broad compass. The other thing I would say is, I don't think you can underestimate the degree to which these three occupations, especially in light of the way the industry has structured itself for the last four decades, really do go together. There are many dealerships, as I understand it, who essentially the commission is a pop that is shared by the service advisors, the partsmen, and by the mechanics. They all work at some dealerships. They all get paid on a commission, and it all comes out of the same pot, which, of course, gets to the common sense of the matter, which is, if the service advisors don't do their job, there's not much of a job for the partsmen or the mechanics to do. There's no work to do if the service advisors- Is everybody who's in a service department, does everybody count as primarily engaged in servicing automobiles, who's in a service department, the receptionist, the filers? The answer is, I'm not sure, I think probably not, but I also don't think it matters much because, of course, to be exempt, you not only have to be primarily engaged in servicing, you also have to be a salesperson, a partsmen, or a mechanic. So if you take somebody like a car-poorter, are they primarily engaged in servicing, I think the definition of partsmen is probably broad enough to say yes, you might disagree with me, but either way, they're not exempt. But is that an automobile a pullster? Again, I would say that that's somebody who might be primarily engaged in servicing, but they wouldn't be covered because they're not a mechanic, they're not a partsmen, and they're not a salesperson. What role do the three objects at the end of the sentence play in your interpretation? We haven't discussed those yet. Well, I hope they play this role, Your Honor, which is, I think it's common ground among between the parties, that those are distributed to each other now in gering combinations. And nobody's here saying, well, the first goes with the first when it comes to the objects, so the only people that are exempt are the farm dealer mechanics. And I think that just shows, it may be really odd, anything's possible, of course, but it'd be really odd if the way you read the statute is with the nouns vis-a-vis the jaren's, you apply this redendo principle, but with respect to the jaren's vis-a-vis the objects, you apply the normal or means or principle. I think the real way to apply this statute, and honestly, I think what is the only thing that really ought to be left of the redendo cannon, is the common sense principle that when you have these disjunctive series, if they combine in a way that really is something like the null set, you ignore it. You don't lose a lot of sleep over it, and it's fine, because I'm not here to tell you there are mechanics who are primarily engaged in selling automobiles, but since there aren't any, you don't really have to lose any sleep over it, and you shouldn't construe the statute primarily based on the fact that there's a null set with one combination, especially when there's 100,000 flesh and blood examples of salesmen who are primarily engaged in servicing. What about our narrow construction cannon? Well, that's an interesting question, Your Honor. I mean, you know, the ninth circuit applied that, and I suppose that, you know, the the cannon that the ninth circuit applied, and the one it derived from one of this called Courts Older Cases, talks about being plainly and unmistakably within the exemption. Now, I'm a big enough believer in my argument here that I think maybe we even meet the plain and unmistakable test, but I also think as we've urged the Court that it may be time to put that cannon to rest. And I'm not suggesting that the FLSA should be interpreted differently from any other statute. It's a general principle of statutory construction that exemptions are not construed to swallow the rule. I think that's a perfectly sensible rule of construction, but I do think to sort of amp that up to the degree that it has to be plain and unmistakable to come within the exemption really is contrary to the way this Court generally interprets statutes. I don't think it makes a lot of sense, especially if you remember, that a lot of these exemptions are being passed much later in history than the 1938 enactment of the FLSA. So even if you accept the proposition that 1938 Congress had an unalloyed interest in being remedial in the FLSA, I don't know why that would inform your interpretation of an exemption enacted in 1966 for the expressed purpose of at least having some employees not covered by the FLSA. And I do think that this would be an odd statute to have this plain and unmistakable test when it's riddled with exemptions. So if there were ever one statute where you'd say, okay, Congress, yeah, it had a very important purpose. It was a worthy purpose, but it didn't pursue it at all costs. It would be this statute. If you look at 213, which has the various exemptions to both the minimum wage laws and the overtime laws, is I counted up, there are 31 exemptions to the amendment of the minimum wage and overtime laws just in 213, and there are other exemptions and other places in the statute. So what an odd statute to say that the way we're going to interpret this is only with a thumb on the scale in favor of the coverage and against the exemptions. If there are no further questions, I'd reserve my time. Thank you, Council. Mr. Caldman? Mr. Chief Justice, and may I please the court. The exemption in this case is for any salesman, partsman, or mechanic, primarily engaged in selling or servicing automobiles. The most obvious reason why, or the clearest reason why service advisors don't come within that exemption is they don't service automobiles. In our brief, we cite five, I think the five most authoritative dictionaries of the English language, and they define service as to maintain or repair. You maintain or you don't maintain or repair a car and the way people would ordinarily speak with a pad or a clipboard and a pencil or a telephone, which are the primary tools that service advisors use. You do it back in the back of the shop when you're actually working on the car. Service advisors don't do that, and therefore they don't service cars. They don't care. I guess sometimes, though, I mean, they do look under the hood sometimes, right? You bring the car up, you know, it's making this noise, they go out and at least listen to the noise, and sometimes they can say right away, oh, that's probably this. And then they send something down, and whether the customer is still there or comes back later, all that they do in the mechanics of the partsmen, send it up and then plug it in and it's right. So, I mean, in certain situations, the advisor would play the primary role in fixing the problem. Not when it's more complex, maybe not typically, but certainly in what I suppose would be many occasions. I don't think so. I mean, actually, I think what the advisor does is make a guess, but really of what might be wrong based on what the customer says. I mean, sometimes the customer goes in and says, I want a 20,000 mile servicing, and the service advisor just sends it back and says we need a 20 mile, a thousand mile servicing. Now, maybe the model is. That's a different, that's a different sample. But even, sometimes I guess what I'm saying, sometimes the primary decision in servicing the car is going to be made by the service advisor, at least an initial thing, you know, send something down. The mechanic may well look at it himself or herself, but the service advisor says it's a distributor cap or whatever, and it turns out it is, they put it on and it's done. I think actually the service advisor's job, they may make a guess as to what's wrong and give the customer say, well, I might be a distributor cap. But it's up to the mechanic to actually figure out what's wrong, not the service advisor. And the close-up service advisor meets the customer in the morning and he said, I'm a service advisor, I'm here to supervise and to plan the servicing of your automobile. Is that correct for him to say? Well, actually, I don't think so. I don't think they supervise the servicing of the automobile. I think they serve a communications function. They don't, in any sense, supervise the mechanic. What about to arrange for? Yes, I think it is correct to say they arrange for it. But I think there's a huge difference between- But if that's true, it seems to me he's engaged in servicing the automobile. I don't think so because I think there's a huge difference. As a matter of, he's definitely not servicing the automobile just because he's arranging for it. There's many people who arrange for the provision of services, but don't perform the service themselves. If somebody's, I will take an example of some salesman, this is particularly true of the difference between sales and service, which are pretty much two distinct categories. If somebody's going door to door and selling house-painting services, says, do you want your house painted? That person is selling and maybe arranging for painting the house, but they're not painting the house. If somebody's- But if they picked out the color and advised all about the quality of the paint to use in different costs, and scheduled the timing and so forth, I think they could be supervising the painting of the house. Right, well, I mean, actually supervising service, a mean supervising a repair also isn't the same thing as repairing, but I do think that it's quite clear, and you can look at the machine and spreef, these people in no sense supervise the mechanics. They tell the mechanics what the problem is and what the customer wants, and it's primarily serviced a communication link. It's up to the mechanic or whoever else is working on it in the back to figure out what to do. Well, but I mean, just in maybe this isn't the best guide to the interpretation, but it's sort of common understanding if you- Over several years drop your car off whenever you're supposed to or whenever it's broken, and you talk to Fred about getting it fixed, and somebody comes to you later and something that I've got a problem with my car, you would say, my service guy is Fred, but go see him. It's just sort of your general reaction is that is part of the service. Not only that, it's the only part that you have experience with, but you would think of Fred as the person who services your car. I would just respectfully disagree. I have a different- You would go to different shops I guess. I think you would think of Fred as the person you give the car to. The person-to service is to maintain a repair, and the person in the back who actually works on the car is the person who service- Can read it that way. I have no doubt that might even be the most natural reading. Suppose the word we're involved in instead of engaged in. If involved in would bring it much closer in- Yeah, I would, and so what we're doing is we're trying to parse the difference between engaged in and involved in- In a fairly technical statute involving one of 40,000 different kinds of workers as part of a very general statute. Now that to me rings a bell. That if this isn't a question for an agency, what is? All right. So if I'm thinking that, maybe no one else is, I'm only speaking for myself. I was sort of surprised that nobody in the ninth circuit referred to a doctor and that nobody refers to anymore. It's called primary jurisdiction, and it can be used to ask the relevant department to file a brief. And nobody did that. No. Suppose I think, gee, I don't know the answer to this question. It's highly technical. I do look to purpose. The purpose apparently was that they put these mechanics in there because they had farm equipment somewhere that people go in the middle of the night. So they didn't have fixed hours, whether that was so or not, I don't know. And maybe the service person would call it to in the morning and tell the farmer he's coming. In which case he doesn't have fixed hours. So he should be exempt too. I don't know. So suppose I start, you see the attitude. Have you any advice for me at all? Yeah, I do. In the first place, if you look at the car dealership, it's not the case that there's three main people in the car dealership. The salesman, the partsman, the mechanics. There's salesmen who sell financing, insurance, and warranties. They're not cars. There's salesmen who sell underbody coatings and other accessories like that. There's a lubed technicians. There's body people who work on painting, on a poultry, on body repairs. There's car jockeys. There's dispatchers who allocate the work. So there's many different people who work at a car dealer. Congress picked out only three. And they picked out those three for a particular reason. And if you look at actually the things that we cite, all three of those share something in common. And service advisors not only don't share that, but have a different quality that makes them much more likely to be in the stack. All of the mechanics are in there because they did call farmers at two in the morning. Did the service advisor call the farmer too? As far as I know, in the history of the auto industry, there's never been an example of a service advisor who worked off-site and probably very rarely, if ever, irregular hours. Those were the keys to why Congress wanted partsmen and mechanics in there. They're also clearly the most important reason why they wanted salesmen in there, because salesmen in those days, and still today, at luxury dealerships, I'm told, salesmen will come and bring the car to you to go take a test drive and sick car salesmen. I mean, when Congress kind of wronged what they perceived the partsmen job was, they were right about the partsmen who worked on farm equipment. But they were wrong about the partsmen who worked on automobiles who worked regular hours. I don't think they were wrong. I think what they decided is they wanted to include partsmen and mechanics, who I think reasonably are both said to be servicing cars, and they then decided to include the whole categories and not just limited to farm implements or a particular kind of mechanic or partsmen as long as they're servicing cars. That was the limitation. But your definition of servicing, which I think is a very natural one. I mean, you're not just, you know, natural, it's the dictionary definition of servicing. But it has to cope with this partsmen word. How does how do partsmen fit within your definition of servicing? Well, I do, I think partsmen are reasonably said to be servicing cars. If the mechanic is, needs a fan belt, is working on a car and walks over two steps or five steps or ten steps to pick up a fan belt off the wall, bring it back to the car. I think the mechanic is that whole time repairing or maintaining the car. And what the partsmen is doing is taking over a function, one part of the function of what the mechanic does, and instead the partsmen is doing it. And that's why it works very closely, as we talk about in the brief, they work very closely with the mechanics, they try to get the parts to them in the order in which they need them on complex repairs and so on. And I think that it's very reasonable to, and I guess also a car is nothing but the some of its parts. And for all those reasons, I think it's very reasonable to say that they are servicing cars. Well, but diagnosis is part of the servicing as well, and the service advisers at least do that. I mean, the mechanic doesn't go into what he needs to know what the problem is. And the service adviser will spend a fair amount of time trying to get a description from the customer. Sometimes it's easy, you know, the car won't start. Other times it's going to be harder, and they need to get a good description. You know, is the person who takes down your symptoms at the doctor's office before the doctor comes in, is she or he part of the medical treatment? I think actually the relevant question is, is she, he or she providing the treatment? And I would say no, they're giving an initial guess. No, this is not true. It talks about being engaged in. So is that person engaged in the medical treatment? I don't think he's engaged in treating. He's maybe a part of the process. Maybe it's a visionary definition of a gay says to do or take part in something. Right. And, you know, there's, as far as engaged in goes, this court has, I mean, actually did a Lexus search, and this court does, has used the term 500 times. It's used about 2,000 times in the U.S. code. It's used in the FLSA in actually one of the provisions in 2, 2, 13 D in the same statute engaged in the delivery of newspapers. It's an extremely common word. And I can't find any instance in which any court has ever construed it to mean anything other than what Black's law dictionary says, which is to do something customarily or regularly or continually. It doesn't mean doing something that's ancillary to that activity. So if you're the 2,03 D talks about engaged in the delivery of newspaper, and there's an exemption for people like that. If you're calling somebody up on the phone and saying, would you like your home delivery of your newspaper, I don't think that person is covered under that provision. And if this court were to construe engaged in to be a term of breadth like that, in this case, I think it would actually upset a lot of settled expectations across broad areas of the law. When Congress wants to include, wants to broaden out a term, it uses terms like necessary and consequent necessary to, which, I'm sorry, necessary and incidental to, which it uses in a couple of the FLSA provisions that we cite. Or it uses terms like the process of, which it uses regularly throughout the U.S. code. But I don't think there's any basis to take in this statute, which is very actually carefully written to take the word servicing or engaged in servicing. And say, well, no, no, they mean something like in the criminal law, you might say, someone is an accessory before the fact, if they help the crime before it's committed or after the fact, if they help it afterwards. I don't think, but in the criminal law, actually, if you didn't have 18 U.S. C. Section 2, which made those people liable as principles, they wouldn't be liable for the crime. And I do think it's the same principle here. When they're talking about engaged in servicing, they're talking about the people who service, not the people who I would concede, do things that are necessary and incidental to the servicing. There's any people in that. Mr. Feldman, when you talked about the purposes, you focused on the fact that service advisors work on site and don't work irregular hours. I believe that Mr. Clemens argument, and he'll correct me if I'm wrong, focuses on the fact of commissions, that these people like other kinds of salesmen and like mechanics are often compensated through commission schemes. What about that? I think that commissions are actually completely irrelevant to this provision. There's many other people at the car dealership, including many of the ones who I mentioned, who are paid on commissions, who are not exempt. There's many people at car dealerships and throughout the economy who are exempt and who are not paid on commissions. In fact, where Congress was interested in commissions as a basis for an exemption, they provided one in 207i. If you're paid more than 50% on commissions and you make more than one and a half times the minimum wage, then you can get, you can be exempt under that provision. It is possible that at least going forward, and I would correct my friend, at the time of the complaint, one thing that was true here, or that's a legend, the complaint, is that the dealership was not up until recently, it says, keeping track of the time and the hours spent. So actually, they would have had a hard time keeping track, even though they're required by the law to do that. They would have had a hard time keeping making out the 207i exemption. But going forward, it may be in this case that these people are covered by 207i. As far as the reliance interest that my friend mentioned, I actually think the reliance arguments cuts exactly the other way. When this Court had the case before, the question that the Court said it was concerned with about reliance was whether the 19, people had been relying on the 1978 DoL letter, and whether the agency in 2011 was required to give some explanation of why it changed its mind. That's actually, so that question isn't a longer in the case, the regulation the Court said is not controlling here. But what has happened is in 2011, DoL did tell everybody that it thought serious advisers are not exempt from the, are not exempt. And in 2015, the Ninth Circuit decided the case, in 2016, about two years ago, this Court remanded the case to the Ninth Circuit by that time, and long before that, probably from 2000, in fact, I know from 2011 on, dealerships were being informed that service adviser might well be covered here, and that there is, they might, they might be entitled to overtime. Could you add to that, or correct me if I'm wrong, in the two circuit cases that rule against the FLSA, the government had taken the opposite position? That's right, that's right. But I think my point about reliance is if you actually, there's a two-year statute of limitations here, everybody's known since 2011, and certainly since two years ago, when this Court decided the case last time, that these people might be entitled to overtime. As far as I can tell, there's been two cases at most, and I'm not sure about both of them. One in the district of Arizona and one in the western district, I think it's the western district of New York, there have been filed claiming that service advisers are entitled to overtime. That's it, two cases. So I think that the logical inference to be drawn is that most dealerships, some dealerships are probably paying overtime right now to service advisers. In fact, I know that some are. Some dealerships, many, many dealerships, probably the vast majority of them have made, have arranged things so they come within the 207I exemption. And the reliance now, what really is, what this case easily could be about, is whether dealerships can stop paying overtime to people whom they're currently paying. And whether dealerships can change the terms of their arrangements with service advisers, so that the people who have been coming under 207I, they can, they don't have to comply with the limitations of 207I. They don't have to comply with the minimum one and a half times, the minimum wage. I don't understand from what you said, whether you are disagreeing with me, that there would be no retroactive liability because employers were hiding in good faith on what had been the agency's position. Kagan, I agree with you there would, there could be good faith reliance. That in this case, I think there would be good faith reliance up until 2011. Then the complaint here was filed in 2012. So we would only go back as far as 2011. There would be good faith reliance. But the point is, that isn't going to be relevant to future cases. There's only two cases, I think, as far as I'm aware, maybe there's another one that I haven't been able to find, but I've tried to look for them. There's only two cases currently pending. But I think really the courts should be very careful about giving a lot of weight to claims of reliance, where what might be happening is people are paying overtime and bringing their service advisers in 207 and I. And what they really want to do is stop paying the overtime and stop bringing their service advisers within 207. And so I don't think the reliance issue that my friend discussed. I just don't think that's a reason to decide the case that way. Mr. Feldman, the solicitor general is not here in a case in which one would expect the government to be here. Do you know whether there's any activity taking place in the Department of Labor with respect to this issue? I don't know. I just don't know about that. I would make one other point about the purposes of the statute. So one of them was these three people and especially auto salesmen, which is where what petitioners says the service advisers are. The three categories of Congress included are people who work irregular hours and offsite where it's hard to keep track of people's hours. Now, the service advisers have a different, another feature, first of all, they never work offsite. They rarely work irregular hours. But there's another feature of how they work that cuts in the opposite direction. They complain in this case alleges that service advisers, the service advisers in this case work 55 hours a week. Now, what Congress wanted to do in the Fair Labor Act was to set minimum standards of working conditions. And at the very least, they did, they thought that should be 40 hours a week and that should be basically what people are expected to work. Now, mechanics and partsmen, as well as, you know, warranty salesmen, blue technicians, all the other people at the auto dealership work in occasional overtime hour. But these people, this is their standard week after week, regular hours, 55 hours. Congress, Congress and the FLSA thought that that was the kind of thing they didn't want to have happened. And particularly because there was a second purpose of the maximum hours of the overtime requirement, which is they wanted the people who are instead of employing somebody for 55 hours, they went and said, well, go hire somebody else to fill in that extra time. Because they wanted to expand employment opportunities at the same time as they were, you know, legislating. Well, but if you have a service adviser in the morning and then a different one in the afternoon, that's a completely different, as saying is dynamic from the same person saying we found a little problem and we went ahead and did X, Y, or whatever. Well, I mean, I would just say one is that does happen sometimes. Two is another way to deal with this is to have fewer days worked and you can have longer hours. There's many occupations that work that way. You can share the work around. You can give people time off in the middle of the day. Okay. This dealership doesn't do any of those things. It's a 55 hour week. And that's exactly the purpose of the, these are people come directly within the purposes of the FLSA and it's no coincidence that Congress didn't include them in the statute when it included salesmen, partsmen, and mechanics. Another, I would say also that Petitioner's argument is primarily, is that service advisors are salesmen and actually on page five of the reply brief, Petitioner says, they're salesmen because they are principally involved in selling. And that's what you would expect salesmen to do. But that does create a logical problem for Petitioner because if you're principally involved in, you can't be principally involved or it's hard to be principally involved in two different things, especially two things as different as selling and servicing. So if they're principally involved in selling, which is what Petitioner says makes them a salesman and I think what would make them a salesman if they were, then it's impossible to say that they're print, then it's hard to turn around and say, no, no, they're principally engaged in servicing. The two categories are distinct in the statute and as examples I gave, the House painter or the travel agent who's selling guided tours is, you know, or a triple A, a person who's selling you a roadside assistance, all those people are selling you things, they're not doing them because the idea of selling something is a fundamentally different concept than the idea of actually doing it. And that's a problem that I don't think Petitioner can escape. I mean, that is the reason why what Congress did is they put service advisors with all the other people in the auto dealership who I mentioned, who are not exempt and who get over time. I think even Petitioner doesn't actually believe, at least in one respect, that all that service advisors are principally engaged in selling, in servicing automobiles. There are people at the dealership who sell underbody coatings and assorted paint sealants, post-retreatments, tire treatments. Those people are definitely salesman, that is their job is to sell. Those things are all services are provided to the car. And yet Petitioner has conceded from the beginning of this litigation that those people who do that kind of selling that they're not covered by the statute. And I think that just is a natural conclusion that Petitioner draws because I think that's the natural way to read the statute. Petitioner, my friend did refer to the said that the Department of Labor has taken the position that auto body repair people are not covered by the statute. I think that that is actually mistaken. The only source for that is in a footnote in the reply brief. It's a 1968 opinion letter by Department of Labor. And what Department of Labor said there, first of all, the opinion letter stood for the proposition and addressed the question of whether auto painters are covered by the statute are exempt and included that they're not exempt. But secondly, it did then talk about a category called body and fender mechanics. And it suggested that they are not, that they are exempt under the statute. Well, I just think it's worthwhile looking at what happened to that. In 1970, body and fender mechanics were included in the original version of the regulation as an example of the kind of people who are considered to be a mechanics and could be exempt. In 1973, three years later, I think it was the first revision of it, they kept that list of people who are mechanics the same and removed body and fender mechanics. So I think the only thing you can conclude is that Department of Labor has not concluded, and there isn't a history of saying that even body and fender mechanics are not covered. But whether they're covered or not would be a different question, but at least auto body repairmen are not. Congress picked three distinct professions who were well recognized at the time of the statute and said, we want those occupations, specific occupations, to be exempt for the reasons that I said. The service advisors were a well recognized occupation at that time. They were recognized in the Occupational Outlook Handbook. They had been recognized in NLRB decisions from the 1940s on in industry publications. And there's a reason why they're a distinct occupation. Because if you look at the jobs that they do, it's actually a completely different job than the job that's done by auto salesmen who are the people who Congress undoubtedly wanted to include. The one other thing I'd like to say is about the distributive or Rendendo cannon. I mean, what that cannon stands for is the proposition that when you have two lists like this, that you have to make match up as dates, as in the SIMS case is actually a great example. Where you have three in the first category and two in the second and you have to match them up, it is common and they're orres, they're connected by the word or. It's common in English language to say, well, we match up the ones that actually fit according to the context. But we don't have to struggle and strain to twist what the ordinary meanings of words or something like that to try to barely find a way in which everything in the first list has to match with everything in the second. And that is all that that cannon means. It means that it's perfectly acceptable and was what Congress I think did is to say salesman match up with sales. They're etymologically related, they're semantically related, that's what Congress intended to do. And it matches perfectly. Partsman and mechanics match up with servicing. Salesmen don't match up with servicing and in fact, insofar as someone's a salesman, they're almost certainly not a service person. All right, there are no further questions. Thank you, Council. Five minutes, Mr. Cement. Thank you, Mr. Chief Justice, and may it please the Court, just a few points in rebuttal. First of all, I'd like to start with the reliance issue. I don't think it is just accurately accurate at all to say that when the 2011 regulation came in without any explanation that was ultimately deemed procedurally invalid by this Court, that dealerships just stopped what they were doing and changed 40 years of practices. If that had happened, this suit would not have happened. I mean, the reality is that across the country, based on that unexplained regulation, dealerships continued their traditional practices. That's why the reliance interests are all on our side of this case. Now, there are also reliance interests for the treatment of body repairmen, who have from the very beginning been treated as exempt at dealerships. Now, there is the letter that we cite that talks about how painters are not covered and body repairmen are covered. It also cites legislative history, well, grant you the legislative history is more focused. Mr. Cement, your new definition, your more expansive definition. Tell me how many more people that are involved in the service department will be covered. Will it include the dispatchers who tell people who don't do anything, but assign the work, but the loobsman, the upholsters, the all those other people who right now for 40 years or more or less have been paid a salary? Are they now going to be subject to automobile dealerships saying, given this new definition, we can forego paying them minimum wages? No, Justice Sotomayor, we're here. We're on the status quo team. We're not trying to get some change. But tell me, but your definition might very well include them. Because you're not simply saying anybody involved in servicing is covered. No, that's where, that's where, with all due respect, you're wrong. We're giving you a definition of servicing, but we also say it works in the statute together with salesperson, partsman, and mechanic. So in order to be covered, you have to be both. You have to be one of those three categories of employee, and you have to be primarily engaged in servicing. So nothing's going to change for the non-mechanics, the non-sales people, the non-partsman. Things are going to stay the same because we have a definition of servicing that has to include partsman, that includes service advisors, and service advisors are included not because, just because, they are primarily engaged in servicing, but because they are also salespeople. So I just wanted to say that the legislative history is specific as defender and bodymen. And they were meant to be exempt mechanics. They're treated as exempt. I hope we don't have another change to deal with. Under the status quo, body repairmen are exempt. Mechanics, traditional mechanics are exempt. Partsman are exempt, and sales advisors are exempt, and there are real reliance interests on that. As the Labor Department's position, they're obviously not here. Footnote 9 of our pli brief points out that they have put an advisory out that they are not going to take any enforcement actions against sales advisors until this court rules. In this case, which I think just underscores that the reliance interests, the status quo is in our favor. There's no current regulatory effort to go after service advisors, and there really hasn't been one from the Labor Department itself since about 1978. And Justice Breyer, if you're looking for a tiebreaker with an agency somewhere, I think it's four decades of acquiescence. That's the last valid action from the Labor Department. The 2011 regulation was deemed procedurally invalid. So the last word for them is 1978 opinion letter, 1987 enforcement manual. For 40 years, everybody has understood service advisors to be exempt. Whether you think about that as an end- The two circuits that rule in favor of the employees, was that within the 40 year period? Did the agency take the position in those two cases? That Justice Kennedy is really what starts the 40 years of reliance. So the first of those cases was a fifth circuit case called deal motors. That was an enforcement action brought by the Labor Department, but the Labor Department lost. Shortly thereafter, they also lost in the sixth circuit, and that's when they started acquiescent. The fourth circuit case comes along later, and that's a private party action. It's not an enforcement action. So we do have roughly at least since 1978, we've had acquiescence from the Labor Department, which gives rise to all of these reliance interests. In terms of the purpose of the statute, I really thought it was interesting that my friend on the other side emphasized the fact that the service advisors worked 55 hour weeks. Because Congress, when it dealt with people who by the nature of their job worked long weeks, they had one of two reactions to that. One of it, they said, well, that's awful, and we want to have more workers, so we're going to limit them to 40. The other is, they said, well, yeah, that's the way it is in that industry, and those people aren't underpaid. So we're going to give them an exemption. That's exactly what they did with service advisors. Thank you. Thank you, Council. The case is submitted