Abreu v. U.S.
| Decision Date | 24 October 1991 |
| Docket Number | No. 91-5054,91-5054 |
| Citation | 948 F.2d 1229 |
| Parties | 30 Wage & Hour Cas. (BNA) 967, 120 Lab.Cas. P 35,558 Alan A. ABREU, et al., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Duane W. Reno, Davis, Reno & Courtney, San Francisco, Cal., argued, for plaintiffs-appellants. With him on the brief was Alan C. Davis. Also on the brief was Ira Lecher, Washington, D.C.
Allen D. Bruns, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for defendant-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Wade M. Plunkett, Atty., Office of the Gen. Counsel, Office of Personnel Management and Major Joyce I. Spisak, Gen. Litigation Div., Office of the Judge Advocate Gen., Dept. of the Air Force, of counsel.
Before NIES, Chief Judge, COWEN, Senior Circuit Judge, and MICHEL, Circuit Judge.
Abreu, et al., approximately, 9000 federally employed firefighters, brought suit in the United States Claims Court for additional compensation for overtime, asserting entitlement under the Fair Labor Standards Amendments of 1974, * Pub.L. 93-259, 88 Stat. 55 (April 8, 1974), and certain provisions of the Federal Employees Pay Act, 5 U.S.C. §§ 5542, 5545 (1988). The Claims Court (Bruggink, J.) rejected the argument of Abreu, et al., that the method of calculating overtime pay, which had been established by the Office of Personnel Management, and used by their employing agencies, violated those statutes. Abreu v. United States, 22 Cl.Ct. 230 (1991). Upon review by this court, we also conclude that the Office of Personnel Management's interpretation of the statutory provisions in dispute is reasonable for the reasons stated by Judge Bruggink. Accordingly, we adopt his opinion through the discussion of this issue, denominated as the opinion of this court and append it hereto. We have deleted from the appendix the remaining portion of his opinion entitled which concerns what is known as the "two-thirds rule," because the issue was not raised on appeal.
AFFIRMED.
APPENDIX
Adopted portion of the United States Claims Court opinion:
These consolidated actions, brought by approximately 9,000 federal firefighters, present two issues: 1) whether defendant's current method of compensating plaintiffs for unscheduled, irregular overtime deprives them of benefits under either the Fair Labor Standards Amendments of 1974 ("FLSA") 1 or under certain provisions of the Federal Employees Pay Act ("FEPA" or "Title 5") 2; and 2) whether defendant's use of a "two-thirds rule" in excluding sleeping and eating time from 24-hour tours of unscheduled, irregular overtime is contrary to Title 5.
Like other similar actions currently pending or recently decided, 3 the complaint raises difficult questions spawned by the marriage of the FLSA and Title 5 within the federal pay system. It has not always been a happy union. The spouses were married late in life, come from very different backgrounds, and thus bring rather fixed and conflicting viewpoints to the connubial hearth, as this case attests. A legal separation does not appear in the offing, and thus the parties to this lawsuit have filed cross-motions for summary judgment limited to issues concerning liability. The material facts are undisputed. For the following reasons, the court denies plaintiffs' motion for summary judgment and grants defendants' motion for summary judgment.
A. Facts related to the first issue
Plaintiffs are civilian firefighters in the GS-081 series employed by various federal agencies. Virtually all the plaintiffs regularly work a scheduled tour of duty of 144 hours (six 24-hour shifts) in a 14-day pay period. 4 Under Title 5 of the United States Code (1988), firefighters who regularly work 144 hours in a 14-day pay period receive basic pay pursuant to 5 U.S.C. §§ 5322 and 5504(b), and a 25 percent premium pay pursuant to 5 U.S.C. § 5545(c)(1) for regularly scheduled standby duty.
Independently of Title 5, plaintiffs are also entitled to the benefit of certain provisions of the FLSA. Pursuant to 29 U.S.C. § 207(a) and (k), and insofar as relevant here, firefighters are entitled to receive FLSA overtime pay (one and one-half times regular rate of pay 5) for hours in excess of 106 in a 14-day pay period. Consequently, plaintiffs normally earn 38 hours of FLSA overtime during a two-week period. These hours are not compensated pursuant to 5 U.S.C. § 5542(a)(1) (Title 5 overtime) because standby pay pursuant to section 5545(c)(1) is paid in lieu of other Title 5 premiums, such as regularly scheduled overtime.
The parties have used the pay experience of one of the plaintiffs, Leon P. Contreras, to illustrate their positions. Contreras was a GS-5, step 7 firefighter in July 1988. In the 14-day pay period ending July 30, 1988, he worked a regular 144-hour tour of duty. His basic pay was $695.20. He received a 25 percent premium pursuant to section 5545(c)(1), amounting to $174.40. Together these constitute his regular pay. When divided by 144 hours, this yields a regular rate of $6.04 per hour. Thirty-eight hours of his regular tour constitute overtime pursuant to section 207(k). This is paid at a rate of one-half times his regular rate, and amounts to $114.76 (38 hours X $3.02). When Contreras' basic pay, his Title 5 standby premium, and FLSA overtime are added together, they total $984.36. Thus far, the parties are in agreement, not only that Contreras was paid in this fashion, but that his pay was correctly calculated.
In addition, from time to time plaintiffs work unscheduled overtime and thus accrue more than 144 hours in a 14-day pay period. These additional hours of unscheduled overtime are not compensated by standby premium pay. Section 5545(c)(1) specifically excludes "irregular, unscheduled overtime duty in excess of [the] regularly scheduled weekly tour." These excess overtime hours thus become eligible for consideration under the Title 5 overtime provision, section 5542(a)(1), or as additional FLSA overtime pursuant to section 207(k). Pursuant to Federal Personnel Manual Letter ("FPM Ltr.") 551-5, Attachment 3(A)(1), "[f]ederal employees engaged in fire protection activities ... are entitled to compensation for overtime work under title 5, United States Code, or under the special overtime provision of section 7(k) of the FLSA; whichever provides them with the greater overtime benefit." (Emphasis in original.) 6 It is the way in which defendant performs this calculation that leads to the first point of dispute.
The Title 5 overtime provision, section 5542(a)(1), directs that the additional pay is calculated at "an amount equal to one and one-half times the hourly rate of basic pay of the employee." The FLSA calculation, pursuant to section 207(k), for these additional hours is similar, but not identical to that for the preceding 38 hours. The same "regular rate" is utilized, but for irregular, unscheduled hours, there has been no basic pay. Thus, instead of one-half the regular rate, the calculation is one and one-half times the regular rate. Once again, the parties have framed an example based on plaintiff Contreras. The separate FLSA and Title 5 calculations are shown below based on 33 hours of irregular overtime. An important point of difference is that the FLSA calculation is shown with respect to all hours subject to FLSA overtime (any hours in excess of 106).
FLSA overtime calculation:
a. For 38 hours of scheduled overtime--
$3.02 ( 1/2 regular rate) X 38 = $114.76
b. For 33 hours of irregular overtime--
$9.06 (1 1/2 regular rate) X 33 = $298.98
Title 5 overtime calculation:
a. For 33 hours of irregular overtime--
$13.04 (1 1/2 basic rate) X 33 = $430.32
Title 5 overtime will always be more on an hourly basis for firefighters than FLSA overtime because it is calculated on the firefighter's "basic rate" of pay. Pursuant to 5 U.S.C. § 5504(b)(1), hourly rates are derived by dividing annual salary by 2,087 hours. This yields a basic rate of pay for Contreras of $8.69.
Defendant's practice has been to compare the Title 5 overtime for 33 hours ($430.32 in this example) with the total of FLSA overtime for both irregular and regularly scheduled hours ($413.74) and pay whichever is greater. In this example, since the Title 5 premium for 33 hours is greater than FLSA overtime for 71 hours, Contreras was paid $430.32, and he was not paid an additional $114.76 as FLSA overtime for scheduled overtime.
The result of defendant's methodology is that firefighters who work more than approximately 29 hours of irregular unscheduled overtime will always be paid Title 5 overtime for those hours and will not be paid FLSA overtime for either scheduled or unscheduled overtime. For firefighters who happen to work less than 29 hours of unscheduled overtime, the result is reversed, as is shown by the following example taken from plaintiffs' brief. In the example, Contreras has worked a regular 144-hour pay period, plus 22 hours of unscheduled overtime.
FLSA overtime calculation:
a. For 38 hours of scheduled overtime--
$3.02 ( 1/2 regular rate) X 38 = $114.76
b. For 22 hours of unscheduled overtime--
$9.06 (1 1/2 regular rate) X 22 = $199.32
Title 5 overtime calculation:
a. For 22 hours of unscheduled overtime--
$13.04 (1 1/2 basic rate) X 22 hours = $286.77
Defendant compares the Title 5 amount for 22 hours with the total for all FLSA overtime, i.e. for 60 hours, and pays the FLSA amount of $314.08 since it is greater. No Title 5 premium is therefore paid for the unscheduled overtime.
Drawing once again from these two examples, it is plaintiffs' position that the comparison should have been between Title 5 pay for unscheduled overtime and only that portion of FLSA...
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