DeCosta v. U.S., 91-5147

• Decision Date: 03 March 1993
• Docket Number: No. 91-5147,91-5147
• Citation: 987 F.2d 1556
• Parties: 1 Wage & Hour Cas.2d (BNA) 474 James E. DeCOSTA, Vinson D. Thomas, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1556

987 F.2d 1556

1 Wage & Hour Cas.2d (BNA) 474

James E. DeCOSTA, Vinson D. Thomas, Plaintiffs-Appellants, v.The UNITED STATES, Defendant-Appellee.

No. 91-5147.

United States Court of Appeals Federal Circuit.

March 3, 1993.

Ira M. Lechner, Katz & Ranzman, Washington, DC, argued for plaintiffs-appellants.

Domenique Kirchner, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellee.With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and James M. Kinsella, Asst. Director.

Before MICHEL, PLAGER, LOURIE, Circuit Judges.

MICHEL, Circuit Judge.

James E. DeCosta and Vinson D. Thomas sued their employer, the United States, in the United States Claims Court¹ under the Back Pay Act, 5 U.S.C. § 5596(1988), asserting entitlement under certain provisions of the Federal Employees Pay Act to additional compensation for regularly scheduled overtime work in excess of eight hours per day but less than 40 hours per week.5 U.S.C. §§ 5542,5545and5546 (1988).The Claims Court held that appellants are not entitled to the claimed additional compensation because the Office of Personnel Management's (OPM's) interpretation of the overtime pay provision of the Federal Employees Pay Act, 5 U.S.C. § 5542, used to calculate the amounts paid them is reasonable, and is consistent with the intent of Congress.DeCosta v. United States, 23 Cl.Ct. 582, 590(1991).Because we agree OPM's interpretation is reasonable, we affirm the dismissal of appellants' complaint.

I.BACKGROUND

Appellants, James E. DeCosta and Vinson D. Thomas, are employed by the United States as fire fighters at Andrews Air Force Base.As assistant chiefs for operations, appellants each work three alternating 24-hour shifts per week.During each 24-hour shift, each appellant performs, on average, a total of 12 hours and 40 minutes of actual work.DeCosta v. United States, 22 Cl.Ct. 165, 177(1990).

Appellants are rated as Grade 10, Step 7 on the General Schedule, and earn an annual rate of basic pay of $32,648.In addition to this basic pay, appellants also receive premium pay for the hours of actual work they perform in excess of eight hours per day.That premium pay is calculated as "standby premium pay" in an amount equal to 25 percent of their basic pay.5 U.S.C. § 5545(c)(1).²

Appellants brought suit in the Claims Court claiming that the compensation that they received for the hours of work they performed in excess of eight hours per day but less than 40 hours per week was inadequate under the overtime provisions of the Federal Employees Pay Act, (the "Act")5 U.S.C. §§ 5542,5545and5546.In particular, appellants claimed that because "standby" pay can be paid in lieu of the other types of premium pay authorized by the Act--overtime pay, 5 U.S.C. § 5542; nighttime pay, 5 U.S.C. § 5545(a);Sunday pay, 5 U.S.C. § 5546(a); and holiday pay, 5 U.S.C. § 5546(b)--only if it is greater than the sum total of the other types of premium pay, 5 U.S.C. § 5545(c),5 C.F.R. §§ 550.141and550.142 (1991), they should receive the other types of premium pay instead of standby pay.Appellants argue that the sum total of the other types of premium pay would be greater than standby pay if OPM properly interpreted the overtime premium pay provision, 5 U.S.C. § 5542.The parties do not dispute the amount of premium pay to which appellants are entitled for nighttime, Sunday, or holiday work.23 Cl.Ct. at 584-85 & n. 2.The parties dispute only the amount of overtime premium pay to which appellants are entitled.Appellants assert that under a proper interpretation of the overtime premium pay provision, they would be entitled to the other types of premium pay instead of standby premium pay.However, appellants do not contest that if OPM's interpretation of the overtime premium pay provision is proper, they were appropriately paid based on standby premium pay.

The Claims Court ruled that appellants are not entitled to additional compensation and dismissed their complaint.The Claims Court held that OPM's interpretation of the overtime provision of the Act, 5 U.S.C. § 5542, is reasonable and is consistent with the congressional intent in passing the Act. 23 Cl.Ct. at 590.

II.STANDARD OF REVIEW

The dispositive issue in this appeal is the proper interpretation of the overtime premium pay statute, 5 U.S.C. § 5542.If the language of the section is unambiguous and the legislative history does not show that congressional intent was clearly contrary to the section's apparent meaning, that meaning of the statute controls, and there is nothing else for us to review.³Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395(Fed.Cir.1990).If however, the statutory language is ambiguous and the legislative history does not answer the precise question at issue, we must defer to the administering agency's interpretation if it is reasonable.Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694(1984).⁴Therefore, we cannot disturb OPM's interpretation of 5 U.S.C. § 5542 unless it " 'contravenes clearly discernible legislative intent' or is otherwise unreasonable."True v. Office of Personnel Management, 926 F.2d 1151, 1155(Fed.Cir.1991)(quotingBeneficial Corp. v. United States, 814 F.2d 1570, 1574(Fed.Cir.1987)(quotingAmerican Lamb Co. v. United States, 785 F.2d 994, 1001(Fed.Cir.1986))).

III.ANALYSIS

The overtime premium pay provision states in part:

(a) For full time, part-time and intermittent tours of duty, hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or ... in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates:

....

(2) For an employee whose basic pay is at a rate which exceeds the minimum rate of basic pay for GS-10, the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of the minimum rate of basic pay for GS-10, and all that amount is premium pay.

5 U.S.C. § 5542(emphasis added).See also5 C.F.R. § 550.113(1991).Appellants argue that "[t]he phrase 'and all that amount is premium pay' clearly states that no portion of the overtime premium is to be composed of basic pay."Appellants assert, therefore, that they are entitled to their basic pay for the hours covered by this provision in addition to overtime pay for the same hours.Thus, for any given hour covered by the provision, appellants assert that they are entitled to two and one-half times their hourly rate of basic pay.

The underlined clause engenders confusion because it conflicts with the remainder of the provision which indicates that "the total amount of compensation for any overtime hour would be 150 percent of basic pay."23 Cl.Ct. at 585.Because the clause does indeed render the statutory provision ambiguous, we must determine whether the legislative history of the Act sheds any light on its meaning.⁵SeeChevron, 467 U.S. at 851, 104 S.Ct. at 2786.As the Claims Court appropriately noted, however, the legislative history does not address the meaning of the clause or how it should be read with the remainder of the provision.23 Cl.Ct. at 586.Therefore, we must defer to the agency interpretation if it is reasonable.Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.

For several reasons, we conclude that the agency's interpretation is reasonable.First, the statutory provision at issue clearly defines an applicable hourly "rate" for the hours of work in question: "hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or ... in excess of 8 hours in a day, performed by an employee are overtime work and shall be paid for, except as otherwise provided by this subchapter, at the following rates...."5 U.S.C. § 5542(a)(emphasis added).The applicable rate is then expressed in terms of a multiple of the hourly rate of basic pay: "the overtime hourly rate of pay is an amount equal to one and one-half times the hourly rate of basic pay of the employee."Id. at § 5542(a)(1)(emphasis added).Because "the overtime hourly rate of pay" defines an amount to be paid for a given hour of work, under this provision there can be only one rate for any given hour.Therefore, the rate for each hour in excess of eight per day is either that set forth in the basic pay provisions, 5 U.S.C. §§ 5332and5504, or that set forth in the overtime provision, 5 U.S.C. § 5542.Because Congress expressed the overtime rate of pay in terms of the basic rate of pay, it is reasonable to conclude that the rate set forth in the overtime provision was intended to replace the basic rate of pay for each overtime hour.Likewise, it is reasonable to conclude that Congress did not intend the rates to be added.Indeed, if the separately provided rates for basic pay and for overtime were to be added together, the rate for each hour of overtime would no longer be the rate expressly set forth in the overtime provision, but instead, would be yet a third rate--two and one-half times basic pay--as advocated by appellants.

Second, where Congress intended separate pay entitlements to be added together, it explicitly provides for that in the statute.For example, with respect to each of the other three premium pay provisions to which appellants assert entitlement, Congress made explicit its intention that the premium pay entitlement be added to the basic pay entitlement.Indeed, in the same section as the overtime provision at issue, the statute provides that an employee "is entitled to pay for nightwork at his rate of basic pay plus premium pay amounting to 10 percent of that basic rate."5 U.S.C. § 5545(a)(emphasis added).Likewise, for work performed on Sunday, the statute provides that the employee "is entitled to pay for the entire period of...