Contreras v. United States, PLAINTIFFS-APPELLANT
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
| Citation | 215 F.3d 1267 |
| Docket Number | PLAINTIFFS-APPELLANT,DEFENDANT-APPELLEE,V |
| Parties | (Fed. Cir. 2000) PAUL L. CONTRERAS AND ARNOLDUS JANSSEN,UNITED STATES, PAUL L. CONTRERAS AND ARNOLDUS JANSSEN,UNITED STATES, 99-1311 |
| Decision Date | 12 June 2000 |
Appealed from: United States District Court for the Northern District of California. Judge Maria-Elena James.
Kurt T. Rumsfeld, Mulholland & Hickey, of Washington, Dc, argued for plaintiffs-appellants. With him on the brief were Gregory K. McGillivary, and Thomas A. Woodley.
Thomas A. Coulter, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, Dc, argued for defendant-appellee. With him on the brief were David W. Ogden, Acting Assistant Attorney General; David M. Cohen, Director; and Anthony H. Anikeeff, Assistant Director. Of counsel on the brief was Jeffrey A. Epstein, Senior Assistant Counsel, Human Resources Operation, Department of the Navy, of Washington, Dc.
Before Clevenger, Schall, and Bryson, Circuit Judges.
This case concerns the amount of annual leave accrued each pay period by certain federal civil servants who work more than a standard eight-hour shift and more than a standard 40-hour workweek. The plaintiffs contend that they are entitled to accrue leave based on the length of their workday, contrary to regulations promulgated by the Office of Personnel Management (OPM). The district court disagreed and upheld the accrual scheme set forth in OPM's regulations. We affirm.
The Annual and Sick Leave Act of 1951, as amended, 5 U.S.C. 6301-6387, defines the rate of accrual of annual leave for federal civil service employees by granting a certain portion of a "day" of annual leave for each "full biweekly pay period" worked by the employee. The statute that governs annual leave accrual for most employees provides as follows:
An employee is entitled to annual leave with pay which accrues as follows--
(1) one-half day for each full biweekly pay period for an employee with less than 3 years of service;
(2) three-fourths day for each full biweekly pay period, except that the accrual for the last full biweekly pay period in the year is one and one-fourth days, for an employee with 3 but less than 15 years of service; and
(3) one day for each full biweekly pay period for an employee with 15 or more years of service. 5 U.S.C. 6303(a).
Under this scheme, the typical civil service employee who works eight hours a day, five days a week, earns four, six, or eight hours of annual leave for every two weeks of work, depending on the employee's tenure.
That scheme works fine for employees on a regular schedule of 10 days of eight hours during each two-week pay period. The scheme falters, however, for employees who work abnormal schedules: section 6303(a) does not clearly set forth what constitutes a "day" for those employees.
For part-time employees and employees on flexible and compressed schedules, Congress has recognized and addressed that problem. In 1982, Congress amended the Annual and Sick Leave Act to define the term "day," as applied to employees on flexible or compressed schedules, to be eight hours. See 5 U.S.C. 6129. As a result, employees who work, for example, four 10-hour shifts per week accrue the same number of hours of annual leave in each biweekly pay period as employees who work five eight-hour shifts per week. For part-time employees, Congress enacted a separate statute providing that employees working less than 40-hour weeks shall accrue annual leave "on a pro rata basis." 5 U.S.C. 6302(c). Thus, an employee who works 20 hours per week accrues half of the annual leave earned by a full-time employee, i.e., two, three, or four hours per biweekly pay period, depending on the employee's tenure.
While Congress made special provision for those two groups of employees who work atypical schedules, it has not made special provision for a third class of such employees - employees who work what OPM refers to as "uncommon tours of duty." See 5 C.F.R. 630.201. Employees who work uncommon tours of duty are employees, such as the plaintiffs in this case, who have authorized and established tours of duty that exceed 80 hours of work in a biweekly pay period. By regulation, OPM has authorized executive branch agencies to provide that any employee working an uncommon tour of duty will accrue annual leave on the basis of that uncommon tour of duty. OPM's regulation provides:
The leave accrual rates for [employees with uncommon tours of duty] shall be directly proportional (based on the number of hours in the biweekly tour of duty and the accrual rate of the corresponding leave category) to the standard leave accrual rates for employees who accrue and use leave on the basis of an 80-hour biweekly tour of duty.
The plaintiffs in this case are civilian employees of the Department of Defense who work as firefighters at Naval Station Treasure Island in California. Like other firefighters at that naval station, the plaintiffs work a tour of duty that consists of three shifts of 24 hours per week. Those 24-hour shifts include sleep periods, meal periods, and personal time while the firefighters are on standby status. The plaintiffs' six shifts of 24 hours every two weeks result in a biweekly pay period consisting of 144 hours of compensable worktime.
The Department of Defense classified the plaintiffs and the other firefighters at Naval Station Treasure Island as employees with uncommon tours of duty. Pursuant to 5 C.F.R. 630.210(a), OPM's regulation governing leave accrual for employees with uncommon tours of duty, the firefighters accrue annual leave time at the same rate per hour worked as typical civil servants, but because they work nearly twice as many hours per pay period as typical civil servants, they accrue nearly twice as much annual leave per pay period as employees who work 40-hour weeks. Because the firefighters at Naval Station Treasure Island work 144 hours per biweekly pay period, the formula prescribed by the OPM "uncommon tours of duty" regulation results in annual leave accrual of 14.4 hours per pay period for firefighters with more than 15 years tenure, 11.1 hours per pay period for firefighters with three to 15 years tenure, and 7.2 hours per pay period for firefighters with less than three years tenure.
Although OPM's formula provides that employees with uncommon tours of duty accrue more hours of annual leave per pay period than other civil servants, the plaintiffs take the position that OPM's formula is not as favorable to them as it should be, and that they are entitled to accrue even more leave time each pay period. Based on that theory, the plaintiffs filed suit against the United States in the United States District Court for the Northern District of California. They sought damages and other relief, including an order requiring that they be granted annual leave based on their 24-hour workday, rather than the proportional rate specified by OPM regulation.
In the district court, the plaintiffs argued that the general annual leave provision of the Annual and Sick Leave Act, 5 U.S.C. 6303(a), requires that their annual leave be calculated on the basis of the number of hours in their workday, not on the number of hours in their biweekly pay period. Specifically, they argued that the word "day" in section 6303(a) must be interpreted to mean the "workday" of each affected employee. Because firefighters at Naval Station Treasure Island work 24-hour shifts, the plaintiffs argued that they and the other similarly situated firefighters are entitled to accrue annual leave equaling one-half, three-fourths, or one workday per pay period, i.e., 12, 18, or 24 hours of annual leave per pay period, depending on tenure, rather than the 7.2, 11.1, and 14.4 hours of annual leave per pay period that they now receive.
On cross-motions for summary judgment, the district court granted summary judgment for the government. The court held that the word "day" in 5 U.S.C. 6303(a) is ambiguous as applied to employees with uncommon tours of duty and that OPM's application of the leave accrual statute to such employees in its "uncommon tour of duty" regulation is reasonable. The court therefore upheld the proportional accrual scheme employed by the regulation, under which employees who work an uncommon tour of duty accrue annual leave at the same rate per hour worked as do ordinary civil servants.
On appeal to this court, the plaintiffs renew their statutory argument that firefighters working regularly scheduled 24-hour shifts should accrue 12, 18, or 24 hours of annual leave each biweekly pay period because section 6303(a) grants employees one-half day, three-fourths day, and one day of leave for each pay period, depending on tenure, and the firefighters' working "day" is 24 hours long. We reject the plaintiffs' theory that the term "day" in section 6303(a) refers to the shift or "workday" of each affected employee, and that each employee's annual leave accrual per pay period therefore depends on the number of hours in that employee's shift or workday. The language of section 6303(a) does not require that result, and both the legislative history of the Annual and Sick Leave Act and the policies underlying the Act support a contrary conclusion.
As a threshold matter, the parties agree that the plaintiffs are "employees" within the meaning of the Annual and Sick Leave Act and that Congress intended employees such as the plaintiffs to receive annual leave under the Act. Section 202(a) of the Act stated that the Act "appl[ies] to all civilian officers and employees of the United States" except specifically listed categories of personnel not relevant to this appeal. Annual and Sick Leave Act of 1951, ch. 631, 202(a), 65 Stat. 672, 679. When Congress enacted title 5 of the United...
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