Doe v. U.S.

• Decision Date: 11 September 2006
• Docket Number: No. 05-5104.,05-5104.
• Citation: 463 F.3d 1314
• Parties: John DOE, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1314

463 F.3d 1314

John DOE, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 05-5104.

United States Court of Appeals, Federal Circuit.

September 11, 2006.

Robert A. Van Kirk, Williams & Connolly LLP, of Washington, DC, argued for plaintiffs-appellants. With him on the brief was Daniel D. Williams. Of counsel on the brief was Paul Y. Kiyonaga, Kiyonaga & Soltis, P.C., of Washington, DC.

Alisa B. Klein, Attorney, Appellate Staff, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Deputy Assistant Attorney General; and Mark B. Stern and Hillary A. Stern, Attorneys. Of counsel were Michael S. Raab and Mark R. Freeman, Attorneys; and David M. Cohen, Director, and Kathryn A. Bleecker, Assistant Director, Commercial Litigation Branch.

Before RADER, SCHALL, and PROST, Circuit Judges.

SCHALL, Circuit Judge.

Plaintiff John Doe and a class of similarly situated individuals (hereinafter collectively, "the Doe plaintiffs") appeal from the September 17, 2004 judgment of the United States Court of Federal Claims dismissing their complaint. Doe v. United States, No. 98-896 C, slip op. (Fed.Cl. Sept. 17, 2004) ("Doe Summary Judgment Order"). The Doe plaintiffs are Department of Justice ("DOJ") attorneys who sued the government for alleged violations of the overtime provisions of the Federal Employees Pay Act of 1945 ("FEPA"), ch. 212, 59 Stat. 295 (codified as amended at 5 U.S.C. §§ 5542, 5545, 5546 (2000)).¹ The Doe plaintiffs claim that the Court of Federal Claims erred when it dismissed their claims for overtime pay pursuant to 5 U.S.C. § 5542(a), administratively uncontrollable overtime ("AUO") pay pursuant to 5 U.S.C. § 5545(c)(2), and holiday pay pursuant to 5 U.S.C. § 5546(b). We discern no such error and therefore affirm the judgment of the Court of Federal Claims dismissing the Doe plaintiffs' complaint.

BACKGROUND

I.

The Doe plaintiffs are a class of over 9,000 DOJ attorneys who seek pay for overtime work and holiday work performed between 1992 and 1999. Doe v. United States, 372 F.3d 1347, 1349 & n. 1 (Fed.Cir.2004) ("Doe V"). The parties do not dispute that the Doe plaintiffs worked overtime and on holidays during this period. Id. at 1350. Further, there is evidence supporting the Doe plaintiffs' assertion that DOJ expected and induced the Doe plaintiffs to work overtime and to work on holidays. However, the Doe plaintiffs did not receive any written order or approval from DOJ before performing this work. Id. at 1362-64. Even though they did not receive written order or approval, the Doe plaintiffs allege that they are entitled to overtime, AUO, and holiday pay under FEPA because they were expected and induced to work beyond the regularly scheduled work week.

II.

FEPA includes specific provisions governing each of the Doe plaintiffs' three claims.

Section 5542(a) contains the general eligibility requirements for overtime pay under FEPA. Section 5542(a) provides in relevant part:

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[.]

5 U.S.C. § 5542(a) (emphasis added). As emphasized above, overtime hours must be "ordered or approved" in order to be compensable. The applicable regulation repeats this requirement by stating that overtime pay must be "[o]fficially ordered or approved." 5 C.F.R. § 550.111(a)(1) (2006).² Section 550.111(c) clarifies that "[o]vertime work in excess of any included in a regularly scheduled administrative workweek may be ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated." (emphasis added). As we noted in Doe V, a regulation substantially similar to the present section 550.111(c) has been in effect since 1945, when FEPA was enacted, until the present. 372 F.3d at 1352.

Pursuant to 5 U.S.C. § 5545(c)(2), the head of an agency may provide AUO pay instead of other forms of premium pay such as overtime pay under section 5542(a). Section 5545(c)(2) provides in relevant part:

The head of an agency, with the approval of the Office of Personnel Management, may provide that —

. . .

(2) an employee 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, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for regularly scheduled overtime, night, and Sunday duty, and for holiday duty. . . .

(emphases added). The Office of Personnel Management ("OPM") has promulgated regulations governing AUO payment policy at 5 C.F.R. §§ 550.151-.163. Sections 550.154 and 550.162-.163 set forth rates for premium pay for AUO and other payment provisions specific to AUO. Sections 550.151-.153 establish criteria for determining which positions meet the statutory requirements for AUO pay.

Under the regulations, OPM requires that agencies determine prospectively which positions meet the criteria for AUO pay set forth in sections 550.151-.153. Specifically, the applicable regulation states:

The head of each agency, or an official who has been delegated authority to act for the head of an agency in the matter concerned, is responsible for . . . . [d]etermining in accordance with section 5545(c) of Title 5, United States Code, and this subpart, which employees shall receive premium pay on an annual basis under § 550.141 or § 550.151. These determinations may not be retroactive.

5 C.F.R. § 550.161(b).

Pursuant to section 550.161(b), DOJ published Order 1551.4A in 1975. The order sets forth a general policy of providing AUO pay to persons meeting the statutory requirements in a section entitled "POLICY." Paragraph 6 of the order elaborates on the requirements for receiving AUO pay and repeats much of the language of 5 C.F.R. § 550.151-.153. Paragraph 7 is entitled "AUTHORIZED PERSONS" and provides:

Premium pay under this order may be paid to eligible employees assigned to the classes of positions listed in Appendix 1 to this order. The Assistant Attorney General for Administration will authorize administratively uncontrollable overtime pay for additional classes of positions upon the request of a bureau director which shows that the positions meet the criteria set out in paragraph 6.

Appendix 1 lists 6 positions: (1) Airplane pilot engaged in air-to-ground border patrol activities, (2) Border patrol agent, (3) Criminal investigator, (4) General investigator, GS-9 and above, (5) Officer-in-charge, Immigration and Naturalization Service domestic office, engaged in investigative duties, and (6) Immigration officer, foreign area, engaged in investigative duties. "Attorney" is not listed.

5 U.S.C. § 5546(b) concerns eligibility for holiday pay under FEPA. Section 5546(b) provides in relevant part:

(b) An employee who performs work on a holiday . . . is entitled to pay at the rate of his basic pay, plus premium pay at a rate equal to the rate of his basic pay, for that holiday work which is not —

(1) in excess of 8 hours; or

(2) overtime work as defined by section 5542(a) of this title.

The regulations governing authorization for holiday pay provide as follows:

(a) Except as otherwise provided in this subpart, an employee who performs holiday work is entitled to pay at his or her rate of basic pay plus premium pay at a rate equal to his or her rate of basic pay for that holiday work that is not in excess of 8 hours.

(b) An employee is entitled to pay for overtime work on a holiday at the same rate as for overtime work on other days.

(c) An employee who is assigned to duty on a holiday is entitled to pay for at least 2 hours of holiday work.

(d) An employee is not entitled to holiday premium pay while engaged in training, except as provided in § 410.402 of this chapter.

5 C.F.R. § 550.131 (emphasis added). Section 550.132 also concerns holiday pay. It is entitled "Relation to overtime, night, and Sunday pay" and provides:

(a) Premium pay for holiday work is in addition to overtime pay or night pay differential, or premium pay for Sunday work payable under this subpart and is not included in the rate of basic pay used to compute the overtime pay or night pay differential or premium pay for Sunday work.

(b) Notwithstanding premium pay for holiday work, the number of hours of holiday work are included in determining for overtime pay purposes the total number of hours of work performed in the administrative workweek in which the holiday occurs.

(c) The number of regularly scheduled hours of duty on a holiday that fall within an employee's basic workweek on which the employee is excused from duty are part of the basic workweek for overtime pay computation purposes.

(emphasis added). "Holiday work" is defined at 5 C.F.R. § 550.103 as "nonovertime work performed by an employee during a regularly scheduled daily tour of duty on a holiday designated in accordance with § 610.202 of this chapter." Section 610.202 is entitled "Determining the holiday" and sets forth guidelines for determining which day of a week is to be treated as an employee's holiday.

III.

On March 24, 2000, in Doe v. United States, 46 Fed.Cl. 399, 402 (2000) ("Doe I"), the Court of Federal Claims granted the government's motion to dismiss the Doe plaintiffs' claims for AUO pay for lack of jurisdiction under the Tucker Act.³ In Doe I, the Court of Federal Claims began...