Doe v. U.S.

• Decision Date: 23 June 2004
• Docket Number: No. 03-5075.,03-5075.
• Citation: 372 F.3d 1347
• Parties: John DOE, on behalf of himself and all others similarly situated, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1347

372 F.3d 1347

John DOE, on behalf of himself and all others similarly situated, Plaintiffs-Appellees, v. UNITED STATES, Defendant-Appellant.

No. 03-5075.

United States Court of Appeals, Federal Circuit.

DECIDED: June 23, 2004.

Robert A. Van Kirk, Williams & Connolly LLP, of Washington, DC, argued for plaintiffs-appellees. With him on the brief were Brendan V. Sullivan, Jr., John G. Kester, and Daniel D. Williams. Of counsel on the brief were Steven M. Umin, J. Alan Galbraith, David S. Blatt, and R. Hackney Wiegmann. Also of counsel on the brief were Paul Y. Kiyonaga and Debra L. Soltis, Kiyonaga & Soltis, P.C., of Washington, DC. Of counsel was Brad Snyder, Williams & Connolly LLP, of Washington, DC.

Mark B. Stern, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellant. With him on the brief were Peter D. Keisler, Assistant Attorney General; Gregory G. Katsas, Deputy Assistant Attorney General; Michael S. Raab, Alisa B. Klein, and Ara B. Gershengorn, Attorneys. Also on the brief was Hillary A. Stern, Attorney, Commercial Litigation Branch, Civil Division, of Washington, DC. Of counsel was Lewis Yelin, Attorney, Appellate Staff, Civil Division, of Washington, DC.

Before RADER, BRYSON, and DYK, Circuit Judges.

DYK, Circuit Judge.

Department of Justice ("DOJ") attorneys brought a class action lawsuit in the Court of Federal Claims seeking overtime compensation. The Federal Employees Pay Act ("FEPA"), 5 U.S.C. § 5542 (2000), provides for such compensation only when overtime has been "officially ordered or approved." Id. § 5542(a). The relevant Office of Personnel Management ("OPM") regulation requires that overtime be officially "ordered or approved ... in writing." 5 C.F.R. § 550.111(c) (2004). Because the overtime here was not officially ordered or approved in writing as required by the regulation, we hold that the plaintiffs were not entitled to compensation under FEPA; reverse the Court of Federal Claims' grant of summary judgment in the plaintiffs' favor, see Doe v. United States, 54 Fed.Cl. 404 (2002) ("Doe I"); and hold that summary judgment should have been granted in favor of the government.

BACKGROUND

The facts of this case are straightforward and uncontested. The plaintiffs (appellees in this court) are representatives of a class of more than nine thousand former and current DOJ attorneys who brought suit in the Court of Federal Claims in 1998, claiming compensation under FEPA for overtime work performed from 1992 to the date of a final judgment in this case. The Court of Federal Claims granted class certification in 1999. Doe v. United States, No. 98-896 C (Fed.Cl. Aug. 27, 1999) ("Doe II").¹

Following discovery, the parties brought cross-motions for summary judgment on the issue of liability in 2000. The plaintiffs submitted a variety of documents on summary judgment in support of their claim that overtime was "officially ordered or approved." The plaintiffs submitted the deposition transcripts of former Assistant Attorney General Stephen R. Colgate, in which he confirmed "that component heads expect their attorneys if necessary to put in the extra hours to get the job done," (J.A. at 538), and that "it has been the culture of the Department of Justice that attorneys are to put in the hours necessary to get the job done, and if that requires extra hours they are to put those hours in to get the job done," (J.A. at 539-40). The plaintiffs particularly emphasized excerpts from various editions of the United States Attorney's Manual spanning 1984 to 2000, which stated that "Assistant United States Attorneys are professionals and should expect to work in excess of regular hours without overtime premium pay." (J.A. 405-07, 410, 412; see also J.A. at 414, 416 418.)²

It was undisputed that at least some members of the class at some times worked more than a forty-hour workweek. The parties differed as to the interpretation of the statute and the interpretation and effect of the pertinent OPM regulation. FEPA generally mandates overtime compensation to federal employees in Grade 15 or below for "hours of work officially ordered or approved in excess of 40 hours in an administrative workweek." 5 U.S.C. § 5542(a). The government argued that the plaintiffs were not entitled to compensation because the pertinent regulation required that overtime be "ordered or approved ... in writing by an officer or employee to whom this authority has been specifically delegated." 5 C.F.R. § 550.111(c). The government maintained that the requirement of a writing was not satisfied. The plaintiffs contended that "because [the DOJ] expected, encouraged, or induced plaintiffs to work substantial amounts of overtime and had knowledge that plaintiffs work substantial amounts of overtime, they have authorized and approved the overtime under 5 U.S.C. § 5542." (Compl. at ¶ 65.)

The Court of Federal Claims held in favor of the plaintiffs, granting the plaintiffs' summary judgment motion and denying the government's motion. Doe I, 54 Fed.Cl. at 418. The Court of Federal Claims found that "[n]o plaintiff in the Class has requested overtime, and it follows that no authorized official could have ordered or approved it" in writing. Id. at 409. The court further explained that the "[p]laintiffs do not allege that they were explicitly ordered to work overtime by an authorized official, but that management's expectations and their caseloads require work in excess of forty hours a week to complete [sic] satisfactorily." Id. at 406. The court recognized that until the 1956 decision in Anderson v. United States, 136 Ct.Cl. 365, 1956 WL 8341 (1956), our predecessor court, the Court of Claims, had strictly enforced the OPM regulation's requirement that an order or approval for overtime be made in writing. However, the court concluded that the Court of Claims adopted "a more equitable approach in recent years," Doe I, 54 Fed.Cl. at 407, and that "[t]he phrase `ordered or approved' as used in the pay statutes became subject to broader interpretations, including inducement, encouragement, and perhaps expectation." Id. at 410. The court concluded that official inducement suffices to warrant compensation and that there was extensive documentation in the record establishing such inducement:

[T]he Department of Justice informed attorneys that it expected them to work overtime when necessary. Authorized department officials testified that they understood the job to require overtime work. The Department's Manual states that attorneys should expect to work in excess of regular hours. These factors, along with management's understanding and approval of the process show that Department officials moved ... into the area of "inducement."

Id. at 416 (citing Byrnes v. United States, 163 Ct.Cl. 167, 330 F.2d 986 (1963)). Finding that the "official policy at the Department of Justice has been to accept overtime work from its attorneys without paying for it," id., the Court of Federal Claims held that because all such overtime was induced the "[c]lass members are entitled to overtime pay if they can meet the standards of proof required by law," id. at 405.

The Court of Federal Claims certified its summary judgment order for interlocutory appeal on the ground that "[j]udicial economy will be served by seeking appellate review of this court's liability determination before we address damages." Doe II, No. 98-896 C, slip op. at 1. The government timely petitioned our court for permission to take an interlocutory appeal. We granted this petition and have jurisdiction over the appeal pursuant to 28 U.S.C. § 1292(d)(2). Doe v. United States, Misc. No. 728 (Fed.Cir. Apr. 2, 2003).

DISCUSSION

"We review the Court of Federal Claims' grant of summary judgment without deference." Agwiak v. United States, 347 F.3d 1375, 1377 (Fed.Cir.2003).

I

FEPA was first enacted in 1945. Federal Employees Pay Act of 1945, ch. 212, 59 Stat. 295 (initially codified at 5 U.S.C. § 911; re-codified as amended at 5 U.S.C. § 5542). In its present form, the Act provides:

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 ... at [the rates provided in 5 U.S.C. § 5542(a)(1)-(5)].

5 U.S.C. § 5542(a). This overtime requirement applies only to employees in Grade 15 or below, and an employee may not receive overtime if such payment would increase the employee's aggregate compensation in excess of the maximum allowable rate for Grade 15 employees. Id. § 5547. FEPA allows the head of an agency to "grant [an] employee compensatory time off from his scheduled tour of duty instead of payment under section 5542." Id. § 5543(a)(1). The head of an agency also may, with the approval of OPM, grant annual premium pay of up to twenty-five percent instead of overtime compensation when "an employee [is] in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty." Id. § 5545(c)(2).

FEPA expressly delegated rulemaking authority to the then Civil Service Commission, providing that "[t]he Civil Service Commission is hereby authorized to issue such regulations... as may be necessary for the administration of the foregoing provisions of this Act." § 605, 59 Stat. at 304. Shortly after the Act was passed, the Civil Service Commission adopted an implementing regulation. See 10 Fed.Reg. 8,191, 8,194 (July 4, 1945). The Civil Service Commission was supplanted by OPM in 1978, which has since been responsible for FEPA regulations under identical statutory language. See Civil Service...