Fathauer v. U.S., (2009)

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United States Court of Appeals for the Federal Circuit 2008-5112

THEODORE FATHAUER, ROBIN FOX, EDWARD K. HOGAN, JR., LAURIE R. NISBET, and RICHARD THOMAN,

v. UNITED STATES,

Defendant-Appellee.

Richard J. Hirn, Attorney at Law, of Washington, DC, argued for plaintiffs-appellants. Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant Director. Appealed from: United States Court of Federal Claims

Judge Lawrence M. Baskir

Plaintiffs-Appellants,

United States Court of Appeals for the Federal Circuit 2008-5112

THEODORE FATHAUER, ROBIN FOX, EDWARD K. HOGAN, JR., LAURIE R. NISBET, and RICHARD THOMAN,

Plaintiffs-Appellants,

v. UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 07-CV-279, Judge Lawrence

M. Baskir.

DECIDED: May 26, 2009

Before MICHEL, Chief Judge, DYK and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Concurring opinion filed by Circuit Judge DYK.

PROST, Circuit Judge.

Part-time meteorologists Theodore Fathauer, Robin Fox, Edward Hogan, Jr., Laurie Nisbit, and Richard Thoman (collectively, "Appellants") appeal the United States Court of Federal Claims's decision denying their claims for Sunday premium pay under 5 U.S.C. § 5546(a). Because we conclude that the court erred by finding ambiguity in the word "employee," we vacate and remand.

I. BACKGROUND

The facts in this case are undisputed. Each Appellant is employed by the

National Weather Service ("NWS") as a meteorologist. Under arrangements approved by the NWS, Appellants participate in a job-share program in which they share a single full-time position with one other person. Appellants work in NWS offices that are staffed seven days per week. Accordingly, the meteorologists, including both those who are full-time and those who participate in job-share arrangements, routinely work eight-hour shifts on Sundays. In accordance with the Sunday premium pay statute, 5 U.S.C. § 5546(a), and the corresponding Office of Personnel Management ("OPM") regulation,

5 C.F.R. § 550.171(a), NWS pays its full-time employees for their Sunday shifts at a premium rate of 125% of their regular pay. Part-time employees, including Appellants, do not receive premium pay for working on Sundays.

Appellants filed a complaint with the United States Court of Federal Claims on May 4, 2007, seeking Sunday premium pay. The court determined that the use of the word "employee" in 5 U.S.C. § 5546(a) does not answer the "precise question" of whether part-time employees are eligible. Therefore, it deferred to OPM's regulation, which restricts Sunday premium pay to full-time employees, and granted summary judgment in favor of the government. Appellants timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

This court reviews a grant of summary judgment by the United States Court of Federal Claims de novo. Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir. 2008). We review the court's conclusions of law, including its interpretations of statutes, without deference. W. Co. of N. Am. v. United States, 323 F.3d 1024, 1029 (Fed. Cir. 2003).

On review of an agency's interpretation of a statute it administers, the court must ask two questions. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843.

The Sunday premium pay statute, 5 U.S.C. § 5546(a), was originally enacted as § 405 of the Federal Salary and Fringe Benefits Act of 1966 ("FSFBA").1 In its present form, it provides:

An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defined by section 5542(a) of this title a part of which is performed on Sunday is entitled to pay for the entire period of service at the rate of his basic pay, plus premium pay at a rate equal to 25 percent of his rate of basic pay.

1 As originally enacted, the statute read:

Any regularly scheduled eight-hour period of service which...

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