Armitage v. U.S., 92-5157

• Citation: 991 F.2d 746
• Decision Date: 12 April 1993
• Docket Number: No. 92-5157,92-5157
• Parties: 127 Lab.Cas. P 33,061, 1 Wage & Hour Cas.2d (BNA) 637 George C. ARMITAGE, Alan P. King, Ronnie A. Lewis, Kerry B. Swiggum, Michael D. Sword, Eric Aikin, Brian C. Cornett, Charles August Franco, William J. Greaves, John E. Griffiths, Jr., Scott W. Haygood, William J. Hull, Richard C. Kohr, Jesse R. Lewis, Jr., Lisa K. Lyons, Terry F. Lyons, Mark D. Marr, D.J. Moore, Dale Wayne Polley, Ronald L. Porter, James David Stokes, Scott L. Thompson, Thomas P. Whalen, Olen S. Williams, Alfred W. Hill, Dennis R. Figgeroa, Nelson Rosado, Robert Marvin, Richard A. Adams, Sr., Melvin Allen, Sr., Robert S. Anderson, James E. Bates, Linwood T. Binford, Richard Bostic, Kenny R. Burger, Anthony L. Cash, Thomas Chandler, James C. Cole, Sr., Thomas E. Cole, Edward C.Costanzo, Joe H. Craig, Ronald M. Crowder, George L. Davis, John Lee Davis, Raymond E. Davis, John E. Diggs, Alvelino D. Espeleta, Alfred Y. Evans, John T. Ferguson, Sr., Edmund N. Freil, Terry T. Gaither, Jennie Bee Gay, Marvin E. Gilpin, Livingston Glasgow, David K. Gravel, Patricia Greer, Wilfred Guillory, James W. Hackett, Jr., James H. Hale, Samuel L. Hampton, George Harris, Jr., Donald E. Howell, George A. Hudson, Larry W. Jackson, Thomas M. Jacobs, Jr., Charlie Johnson, Jr., Edward H. Johnson, Bradford R. Jones, David R. Keeler, Moses B. Kelly, Orlando W.E. Lee, Tinnie M. Lewis, Eugene W. Master, Jr., William E. Moloney, William M. Moore, Reginald E. Mumley, William F. Perry, Antonio R. Poblete, Sandra Dee Porter, Robert Pratt, Bobby Lee Reaves, Lawrence R. Reid, Vincent Reid, Carlos E. Roman, Robert D. Romero, Daniell F. Ryan, Willie J. Salley, Kenneth E. Scott, Willie Sharber, Eural W. Simons, Lloyd G. Smith, Richard D. Smith, Thomas J. Stamper, Thomas C. Thayer, Joseph R. Tomarchio, Irvine D. Watkins, Quinton G. Weeks, Jackson Whitfield, Joseph Williams, Jr., Sharon L. Woodfork, Vernon R. Ostlund, Plaintiff-Appellees, v. The UNITED STATES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 746

991 F.2d 746

127 Lab.Cas. P 33,061, 1 Wage & Hour Cas.2d

(BNA) 637

George C. ARMITAGE, Alan P. King, Ronnie A. Lewis, Kerry B Swiggum, Michael D. Sword, Eric Aikin, Brian C. Cornett Charles August Franco, William J. Greaves, John E Griffiths, Jr., Scott W. Haygood, William J. Hull, Richard C. Kohr, Jesse R. Lewis, Jr., Lisa K. Lyons, Terry F. Lyons Mark D. Marr, D.J. Moore, Dale Wayne Polley, Ronald L. Porter, James David Stokes, Scott L. Thompson, Thomas P. Whalen, Olen S. Williams, Alfred W. Hill, Dennis R. Figgeroa, Nelson Rosado, Robert Marvin, Richard A. Adams, Sr., Melvin Allen, Sr., Robert S. Anderson, James E. Bates, Linwood T. Binford, Richard Bostic, Kenny R. Burger, Anthony L. Cash, Thomas Chandler, James C. Cole, Sr., Thomas E. Cole, Edward C.Costanzo, Joe H. Craig, Ronald M. Crowder, George L. Davis, John Lee Davis, Raymond E. Davis, John E. Diggs, Alvelino D. Espeleta, Alfred Y. Evans, John T. Ferguson, Sr., Edmund N. Freil, Terry T. Gaither, Jennie Bee Gay, Marvin E. Gilpin, Livingston Glasgow, David K. Gravel, Patricia Greer, Wilfred Guillory, James W. Hackett, Jr., James H. Hale, Samuel L. Hampton, George Harris, Jr., Donald E. Howell, George A. Hudson, Larry W. Jackson, Thomas M. Jacobs, Jr., Charlie Johnson, Jr., Edward H. Johnson, Bradford R. Jones, David R. Keeler, Moses B. Kelly, Orlando W.E. Lee, Tinnie M. Lewis, Eugene W. Master, Jr., William E. Moloney, William M. Moore, Reginald E. Mumley, William F. Perry, Antonio R. Poblete, Sandra Dee Porter, Robert Pratt, Bobby Lee Reaves, Lawrence R. Reid, Vincent Reid, Carlos E. Roman, Robert D. Romero, Daniell F. Ryan, Willie J. Salley, Kenneth E. Scott, Willie Sharber, Eural W. Simons, Lloyd G. Smith, Richard D. Smith, Thomas J. Stamper, Thomas C. Thayer, Joseph R. Tomarchio, Irvine D. Watkins, Quinton G. Weeks, Jackson Whitfield, Joseph Williams, Jr., Sharon L. Woodfork, Vernon R. Ostlund, Plaintiff-Appellees, v. The UNITED STATES, Defendant-Appellant.

No. 92-5157.

United States Court of Appeals, Federal Circuit.

April 12, 1993.

Ira M. Lechner, Katz & Ranzman, Washington, DC, argued, for plaintiff-appellees. With him on the brief was Michael B. Waitzkin, Nussbaum & Wald, of counsel.

Shalom Brilliant, Dept. of Justice, Washington, DC, argued, for defendant-appellant. On the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Agnes M. Brown, Atty., Commercial Litigation Branch, Dept. of Justice.

Before NEWMAN, MAYER and CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

The United States appeals from the judgment of the United States Claims Court granting, inter alia, plaintiffs' motion for summary judgment on their claim for Sunday premium pay for employees who were regularly scheduled to work on Sunday but who availed themselves of authorized annual or sick leave during the scheduled Sunday work hours. Armitage v. United States, 23 Cl.Ct. 483 (1991). We affirm.

I

The single issue raised in this appeal is whether the "leave with pay" statutes of Title 5 sanction payment of Sunday premium pay for periods of authorized annual or sick leave taken by employees who are regularly scheduled to work on Sunday, but who do not actually work on the leave-taken days.

Appellees in this case, all of whom are either present or former federal police officers at various federal facilities, filed suit in the Claims Court claiming, pursuant to the "leave with pay" statutes, a right to receive, inter alia, Sunday premium pay for regularly scheduled Sunday hours even though absent from work on authorized annual or sick leave. ¹

The Claims Court concluded that under this court's precedent in Lanehart v. Horner, 818 F.2d 1574 (Fed.Cir.1987), the plaintiffs had a right to receive Sunday premium pay for regularly scheduled hours which were not worked, but for which they were charged with annual or sick leave, and granted summary judgment thereon:

The court [in Lanehart ] in effect found that the leave with pay statutes overcome the limitation that employees must actually have worked the hours to have them counted in the overtime calculations. The result should be the same here. Plaintiffs are entitled to Sunday premium pay [for Sunday hours] which [were] not worked but for which leave was charged.

Armitage, 23 Cl.Ct. at 493. The government timely appealed the judgment with respect to Sunday premium pay to this court.

II

Summary judgment is appropriate when there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We review a grant of summary judgment de novo. National Cable Television Ass'n v. American Cinema Editors, Inc., 937 F.2d 1572, 1576 (Fed.Cir.1991); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). The issue of statutory interpretation is also a question of law, which this court reviews de novo. Commercial Energies, Inc. v. United States, 929 F.2d 682, 684 (Fed.Cir.1991); Pasteur v. United States, 814 F.2d 624, 626 (Fed.Cir.1987).

The pertinent "leave with pay" statutes of Title 5, ² originally enacted as part of the Act of Sept. 6, 1966, Pub.L. No. 89-554, 80 Stat. 378 (codified as amended in various sections of 5 U.S.C. (1988)), entitle an employee to "leave with pay" for authorized periods of leave. In Lanehart, the court defined "pay" as used in the "leave with pay" statutes to mean "the total compensation or remuneration normally and regularly received by an employee." 818 F.2d at 1581.

The Sunday premium pay statute, originally enacted simultaneously with the "leave with pay" statutes, reads, in part:

An employee who performs work during a regularly-scheduled 8-hour period of service ... 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.

5 U.S.C. § 5546(a) (1988) (emphasis added). The Office of Personnel Management (OPM) interpreted this statute to require that an employee must actually perform work on Sunday before becoming eligible for Sunday premium pay:

The definition[ ] of Sunday ... work ... [has] been modified to clarify that the work must be performed by the employee to be payable at premium rates....

* * * * * *

If a full-time employee performs work on Sunday, he or she is entitled to Sunday pay if the Sunday work was scheduled as part of his or her basic 40-hour workweek....

48 Fed.Reg. 3931 (Jan. 28, 1983) (emphasis added); see also 5 C.F.R. § 550.103(o) (1992) ("Sunday work" defined as "nonovertime work performed by an employee...."). This case requires us to determine the relationship between the Sunday premium pay statute and the authorized sick and annual "leave with pay" statutes, a task remarkably similar to that confronting the court in Lanehart.

In Lanehart, we addressed the issue of whether the statutes in Title 5 authorizing federal employees to receive "leave with pay" entitled federal firefighters to undiminished pay for pay-periods in which authorized leave was taken in lieu of performing work for which they would have been eligible to receive overtime pay under the Fair Labor Standards Act of 1938, Pub.L. No. 718, ch. 676, 52 Stat. 1060 (codified as amended by the Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, 88 Stat. 55, at 29 U.S.C. §§ 201-219 (1988)) (FLSA). The case necessarily addressed the apparent tension between the "leave with pay" statutes and FLSA's requirement that only those hours during which the employee is actually on duty are includable as hours worked for the purpose of calculating FLSA overtime.

In Lanehart, the government attempted to rely on an OPM directive instructing federal agencies on the application of the FLSA to federal employees. Federal Personnel Manual (FPM) Letter No. 551-5 Attachment 2 (Jan. 15, 1975) (Ltr. 551-5 Attach. 2), as far as the government was concerned, specifically addressed the issue in Lanehart and required an employee to have actually worked the overtime before becoming entitled to receive overtime pay:

Only those hours that the employee is actually on duty ... shall be included in hours worked under the FLSA. Paid time off during the work period ... shall not be included as hours worked [in computing FLSA overtime].

Ltr. 551-5 Attach. 2, at 4 (emphasis in original); Lanehart, 818 F.2d at 1576. We found this language to be inapposite, however, because instead of aiding interpretation of the "leave with pay" provisions of Title 5, it only pertained to interpreting the FLSA overtime provisions in Title 29. Whether or not overtime pay was recoverable under the FLSA was irrelevant to the issue of whether such premium pay was recoverable under the "leave with pay" statutes. Id. at 1578.

Because paid leave was "a matter of private contract between the parties," id. (quoting 29 C.F.R. § 778.219(a)(1) (1978)), wholly independent of the FLSA, and because we interpreted Congress to have indicated that the term "leave with pay" requires that pay "not be diminished in any way" while on leave, id. at 1582, we concluded that "the 'leave with pay' statutes ... prevent any reduction in pay in the customary and regular pay of the [firefighters], including overtime pay under Title 29 to which they would be entitled, when ... on authorized leave...." Id. at 1583 (emphasis added) (footnote omitted). ³

The United States argues that we must distinguish this case from Lanehart on the grounds that the present case requires us to interpret only multiple sections of Title 5 of the United States Code rather than multiple sections of Title 5 and one section of Title 29, as in Lanehart. The government also relies on OPM's interpretations of the Sunday premium pay statute in its promulgated regulation, 29 C.F.R. § 778.219(a)(1), and directive, FPM Letter No. 550-16 (Aug 5, 1966) (Ltr. 550-16), ⁴ arguing that we should defer to OPM's explanation of the statute. The government's argument in a...