Page:Helix Energy Solutions Group, Inc. v. Hewitt.pdf/26

2 take up the question whether Mr. Hewitt was paid on a salary basis under §541.602 and holds he was not. Ante, at 8.

Respectfully, I would dismiss this case as improvidently granted. After successfully petitioning the Court to decide how §541.601 relates to §541.604, Helix Energy assured us that “the flaw in the decision below has nothing to do with the salary-basis test” in §541.602. Brief for Petitioners 27. I might excuse that disclaimer as a mere rhetorical flourish if Helix Energy’s briefing nonetheless “made clear” the “importance” of §541.602 to this case. But it did not. The company devoted only about two pages to the issue in its opening brief. Brief for Petitioners 25–27. On reply, Helix Energy went so far as to criticize Mr. Hewitt for trying to “change the subject” from how §541.601 and §541.604 interact to whether §541.602 is satisfied. Reply Brief for Petitioners 3. In these circumstances, I would not reach out to address the operation of §541.602—a question we never granted certiorari to decide, one on which we have received little briefing, and one Helix Energy even assured us we need not decide.

Another reason counsels hesitation, too. Helix Energy does not just dispute the proper application of various regulations. It contends those regulations are inconsistent with and unsustainable under the terms of the statute on which they are purportedly based. While §541.601, §541.602, and §541.604 focus on an employee’s salary, Helix Energy submits, the statute requires attention to the employee’s duties. See Tr. of Oral Arg. 32–38, 46–47; Brief for Petitioners 41–44; Reply Brief for Petitioners 20–24; see generally 29 U. S. C. §213(a)(1). Understandably, the Court refuses to entertain this larger statutory argument because Helix Energy failed to raise it earlier in the litigation. But the fact that Helix Energy forfeited such a foundational argument seems to me all the more reason to leave any question about §541.602 to another day.