Abbey v. United States

Citation745 F.3d 1363
Decision Date22 August 2014
Docket NumberNo. 2013–5009.,2013–5009.
PartiesMark G. ABBEY, L. Roger Abel, Ethan Abelov, Kurt G. Aberhorn, Marc M. Abeyta, Gary Lee Abplanalp, Stephen J. Abraham, Lynn M. Abram, Russell O. Absher, George G. Acampora, Tracey E. Acampora, Diane L. Aceves, Thomas M. Achin, Michael R. Ackerman, Kris Acord, Andrew G. Acres, Jeffrey S. Adair, Leonard J. Adamczyk, Michael Adame, Steve Adamek, Amanda M. Adams, Beth E. Adams, Carl T. Adams, Charles B. Adams, And James P. Adair, Plaintiffs–Appellees, v. UNITED STATES, Defendant–Appellant.
CourtU.S. Court of Appeals — Federal Circuit

745 F.3d 1363

Mark G. ABBEY, L. Roger Abel, Ethan Abelov, Kurt G. Aberhorn, Marc M. Abeyta, Gary Lee Abplanalp, Stephen J. Abraham, Lynn M. Abram, Russell O. Absher, George G. Acampora, Tracey E. Acampora, Diane L. Aceves, Thomas M. Achin, Michael R. Ackerman, Kris Acord, Andrew G. Acres, Jeffrey S. Adair, Leonard J. Adamczyk, Michael Adame, Steve Adamek, Amanda M. Adams, Beth E. Adams, Carl T. Adams, Charles B. Adams, And James P. Adair, Plaintiffs–Appellees,
UNITED STATES, Defendant–Appellant.

No. 2013–5009.

United States Court of Appeals,
Federal Circuit.

March 21, 2014.
Rehearing En Banc Denied Aug. 22, 2014.

[745 F.3d 1364]

Gregory K. McGillivary, Woodley & McGillivary, of Washington, DC, argued for plaintiffs-appellees.
With him on the brief was Sara L. Faulman.

Hillary A. Stern, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and

[745 F.3d 1365]

Reginald T. Blades, Jr., Assistant Director.

Before O'MALLEY, WALLACH, and TARANTO, Circuit Judges.

Opinion for the court filed by Circuit Judge TARANTO.
Opinion concurring in part and dissenting in part filed by Circuit Judge O'MALLEY.

TARANTO, Circuit Judge.

The plaintiffs in this case—the “controllers”—are or were employed by the Federal Aviation Administration as air-traffic-control specialists or traffic-management coordinators. The controllers sued the United States in the Court of Federal Claims, alleging that the FAA's policies governing how to compensate them when they worked overtime failed to comply with the time-and-a-half-payment requirement of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 207. They sought damages under 29 U.S.C. § 216(b) and invoked the court's jurisdiction under the Tucker Act, 28 U.S.C. § 1491. The Court of Federal Claims ruled in the controllers' favor, holding that the agency's personnel policies are contrary to the FLSA and are not authorized by any other provision of law.

We reject the Court of Federal Claims' essential premise—that no provision authorizes the FAA to depart from the FLSA's overtime-pay provision. We hold that the FAA has such authority under particular provisions of the federal personnel laws, 5 U.S.C. §§ 5543 and 6120–6133. We therefore vacate the judgment of the Court of Federal Claims and remand the case for further proceedings to determine whether the challenged FAA policies are fully, or only partly, within the authority of those title 5 exemptions from the FLSA.


The FLSA generally requires that, when a nonexempt employee works more than forty hours per week, the employer must pay the employee for the overtime hours at a rate of one-and-a-half times the employee's regular rate of pay. 29 U.S.C. § 207(a)(1). Unless modified by other statutes, that provision has applied, since 1974, to federal employees like the controllers. Id. § 203(e)(2). But title 5 of the United States Code, which governs federal employment specifically, includes several exceptions to the FLSA's overtime-pay requirement. The exceptions relevant to this case concern “compensatory time” and “credit hours” for certain employees.

Section 5543(a)(1) of title 5 provides that, in the case of irregular or occasional overtime, a federal agency may provide “compensatory time” instead of money as compensation if the employee so requests: rather than pay dollars (at a time-and-a-half rate), the agency may provide time off (on a one-to-one basis, i.e., the same number of hours off as the overtime worked). 5 U.S.C. § 5543(a)(1). Sections 6120–6133 of title 5 address employees who work flexible schedules rather than traditional forty-hour workweeks, authorizing two forms of non-cash compensation for such employees. First, the provisions authorize an agency to grant an employee compensatory time off for overtime hours, in lieu of payment, at the request of the employee. Id. §§ 6123(a)(1), 6121(6). Second, the provisions authorize the grant of “credit hours,” which are “any hours, within a flexible schedule established under section 6122 of this title, which are in excess of an employee's basic work requirement and which the employee elects to work so as to vary the length of a workweek or a workday.” Id. § 6121(4). The employee can

[745 F.3d 1366]

use credit hours “to reduce the length of the workweek or another workday” without forfeiting pay or using leave. Id. § 6122(a)(2). An employee may accumulate up to 24 credit hours in one pay period, id. § 6126(a), and if the employee stops working a flexible schedule, the agency must pay for those hours at the employee's current rate of pay, id. § 6126(b).

Before 1996, the FAA relied on the exemptions contained in title 5 for the authority to compensate the controllers with compensatory time and credit hours in lieu of FLSA-mandated overtime pay. Then, in late 1995, Congress passed the Department of Transportation and Related Agencies Appropriations Act, 1996 (“Appropriations Act”), which authorized several reforms to the FAA's operations that were to take effect in 1996. Pub.L. No. 104–50, § 347, 109 Stat. 436, 460 (1995), codified as amended at 49 U.S.C. § 40122(g). Two provisions are important here. Section 40122(g)(1) directed the FAA to develop a new personnel policy to provide the agency “greater flexibility” in determining employee compensation and other matters:

In consultation with the employees of the Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel laws, the Administrator shall develop and implement, not later than January 1, 1996, a personnel management system for the Administration that addresses the unique demands on the agency's workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel.

49 U.S.C. § 40122(g)(1) (emphases added). And Section 40122(g)(2) provides:

The provisions of title 5 shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the exception of—

(A) section 2302(b), relating to whistleblower protection, including the provisions for investigation and enforcement as provided in chapter 12 of title 5;

(B) sections 3308–3320, relating to veterans' preference;

(C) chapter 71, relating to labor–management relations;

(D) section 7204, relating to antidiscrimination;

(E) chapter 73, relating to suitability, security, and conduct;

(F) chapter 81, relating to compensation for work injury;

(G) chapters 83–85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverage;

(H) sections 1204, 1211–1218, 1221, and 7701–7703, relating to the Merit Systems Protection Board; and

(I) subsections (b), (c), and (d) of section 4507 (relating to Meritorious Executive or Distinguished Executive rank awards) and subsections (b) and (c) of section 4507a (relating to Meritorious Senior Professional or Distinguished Senior Professional rank awards)....

Id. § 40122(g)(2) (emphasis added).

In response to those directives, the FAA developed and implemented a new personnel management system that would take effect April 1, 1996. In so doing, the agency concluded that the language of section 40122(g) permitted it to incorporate into the new system certain provisions of title 5 relating to overtime compensation that it had relied on for modification of FLSA requirements before the Appropriations

[745 F.3d 1367]

Act. See Abbey et al. v. United States (Abbey III), 106 Fed.Cl. 254, 260 (2012). The agency concluded: “Although [the Appropriations Act] exempts the new personnel system from substantially all of Title 5, [the] FAA has the discretion to adopt the substance of any portion of Title 5 as deemed appropriate.” J.A. 1009.

Soon after the FAA implemented its new system, Congress enacted the Federal Aviation Reauthorization Act of 1996, Pub.L. No. 104–264, §§ 201–30, 110 Stat. 3213, 3232 (Oct. 9, 1996) (“Reauthorization Act”). The Act added the following to 49 U.S.C. § 106( l ):

Except as provided in [subsections (a) and (g) of section 40122], the Administrator is authorized, in the performance of the functions of the Administrator, to appoint, transfer, and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out the functions of the Administrator and the Administration. In fixing compensation and benefits of officers and employees, the Administrator shall not engage in any type of bargaining, except to the extent provided for in section 40122(a), nor shall the Administrator be bound by any requirement to establish such compensation or benefits at particular levels.

49 U.S.C. § 106 (l )(1) (emphases added).

Under its newly adopted personnel management system, the FAA continued to provide compensatory time for certain hours worked beyond its employees' regular work schedules. Abbey III, 106 Fed.Cl. at 263. When a manager directed an employee to work overtime, that employee could choose to earn compensatory time in lieu of cash compensation. Id. Although FAA policy limited a controller to 160 compensatory hours, in practice the FAA allowed accumulation of more. J.A. 89. Between 1998 and May 2007, compensatory time had no use-or-lose expiration date. Abbey III, 106 Fed.Cl. at 263. In May 2007, however, the government's policies changed—compensatory time earned before that date would expire by May 14, 2010, and any new compensatory time had to be used within one year. Id.

The FAA also permitted its employees working a flexible work schedule to earn credit hours. Id. at 261–62. An employee could elect to work beyond his or her normal workweek in exchange for credit hours, with one credit hour earned for each above-the-normal-week hour worked. Id. at...

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