Fathauer v. U.S.

• Decision Date: 26 May 2009
• Docket Number: No. 2008-5112.,2008-5112.
• Citation: 566 F.3d 1352
• Parties: Theodore FATHAUER, Robin Fox, Edward K. Hogan, Jr., Laurie R. Nisbet, and Richard Thoman, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

566 F.3d 1352

Theodore FATHAUER, Robin Fox, Edward K. Hogan, Jr., Laurie R. Nisbet, and Richard Thoman, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 2008-5112.

United States Court of Appeals, Federal Circuit.

May 26, 2009.

Richard J. Hirn, Attorney at Law, of Washington, DC, argued for plaintiffs-appellants.

Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant Director.

Before MICHEL, Chief Judge, DYK and PROST, Circuit Judges.

Opinion for the court filed by Circuit Judge PROST. Concurring opinion filed by Circuit Judge DYK.

PROST, Circuit Judge.

Part-time meteorologists Theodore Fathauer, Robin Fox, Edward Hogan, Jr., Laurie Nisbit, and Richard Thoman (collectively, "Appellants") appeal the United States Court of Federal Claims's decision denying their claims for Sunday premium pay under 5 U.S.C. § 5546(a). Because we conclude that the court erred by finding ambiguity in the word "employee," we vacate and remand.

I. BACKGROUND

The facts in this case are undisputed. Each Appellant is employed by the National Weather Service ("NWS") as a meteorologist. Under arrangements approved by the NWS, Appellants participate in a job-share program in which they share a single full-time position with one other person. Appellants work in NWS offices that are staffed seven days per week. Accordingly, the meteorologists, including both those who are full-time and those who participate in job-share arrangements, routinely work eight-hour shifts on Sundays. In accordance with the Sunday premium pay statute, 5 U.S.C. § 5546(a), and the corresponding Office of Personnel Management ("OPM") regulation, 5 C.F.R. § 550.171(a), NWS pays its full-time employees for their Sunday shifts at a premium rate of 125% of their regular pay. Part-time employees, including Appellants, do not receive premium pay for working on Sundays.

Appellants filed a complaint with the United States Court of Federal Claims on May 4, 2007, seeking Sunday premium pay. The court determined that the use of the word "employee" in 5 U.S.C. § 5546(a) does not answer the "precise question" of whether part-time employees are eligible. Therefore, it deferred to OPM's regulation, which restricts Sunday premium pay to full-time employees, and granted summary judgment in favor of the government. Appellants timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

This court reviews a grant of summary judgment by the United States Court of Federal Claims de novo. Suess v. United States, 535 F.3d 1348, 1359 (Fed. Cir.2008). We review the court's conclusions of law, including its interpretations of statutes, without deference. W. Co. of N. Am. v. United States, 323 F.3d 1024, 1029 (Fed.Cir.2003).

On review of an agency's interpretation of a statute it administers, the court must ask two questions. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. However, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

The Sunday premium pay statute, 5 U.S.C. § 5546(a), was originally enacted as § 405 of the Federal Salary and Fringe Benefits Act of 1966 ("FSFBA").¹ In its present form, it provides:

An employee who performs work during a regularly scheduled 8-hour period of service which is not overtime work as defined by section 5542(a) of this title 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). Shortly after enactment, the Civil Service Commission ("CSC," the predecessor to OPM) proposed extending Sunday premium pay to part-time employees and requested comments from the Comptroller General. Although the Comptroller General recognized that the "literal language" of § 405 of the FSFBA "does not restrict the benefits in question to full-time employees," it expressed the opinion that the legislative history supports the view that "part-time employees are not entitled to premium pay for Sunday work." 46 Comp. Gen. 337 (Oct. 19, 1966). The Comptroller General relied in part on Senate Report No. 89-1187, which stated:

Section 405 applies to classified and wage board employees a significant liberalization granted postal employees in 1965. This section requires a premium of 25 percent of base pay for any employees whose regularly scheduled 5-day workweek includes Sunday.

Federal Salary & Fringe Benefits Act of 1966, S.Rep. No. 89-1187 (1966), as reprinted in 1966 U.S.C.C.A.N. 2495, 2498.

In 1968, CSC promulgated a regulation providing that "[a]n employee is entitled to pay at his rate of basic pay plus premium pay at a rate equal to 25 percent of his rate of basic pay for each hour of Sunday work not in excess of 8 hours." Fathauer v. United States, 82 Fed.Cl. 509, 513 (2008). This regulation was codified at 5 C.F.R. § 550.171(a). Although the regulation did not distinguish between full-time and part-time employees on its face, CSC did not give Sunday premium pay to part-time employees. Fathauer, 82 Fed.Cl. at 514. Over the years, CSC occasionally received inquiries about why part-time employees were excluded, some of which were sent by members of Congress on behalf of their constituents. Id. Responses to several such inquiries are included in the record in this case, each of which explains that the exclusion of part-time employees was based on the Comptroller General's decision. Id. In 1995, OPM amended § 550.171(a) to provide that "[a] full-time employee is entitled to pay at his or her rate of basic pay plus premium pay at a rate equal to 25 percent of his or her rate of basic pay for each hour of Sunday work." Id. (quoting 5 C.F.R. § 550.171(a) (emphasis added)).

In granting summary judgment in favor of the government in this case, the Court of Federal Claims deferred to OPM's regulation because, in the court's view, the use of the word "employee" in 5 U.S.C. § 5546(a) did not unambiguously include those who work part time. Id. at 516-17. The court found the statutory definition of "employee" set forth at 5 U.S.C. § 5541(2)(A)—"an employee in or under an Executive agency"—unhelpful because it is "circular" and "reveals nothing about the scope of the term." Id. at 516. Similarly the court found that the Oxford English Dictionary definition, "[a] person employed for wages," "does little to clarify ... whether the word `employee' in everyday usage includes those working both full and part-time." Id.

The court also rejected Appellants' argument that the reference to "employees" who work "full-time, part-time, and intermittent tours of duty" in 35 U.S.C. § 5542(a), which provides for overtime pay, demonstrates that part-time employees are encompassed within the statutory meaning of "employees." Id. Indeed, in the court's view, the history of § 5542(a) supports the proposition that "employee" is an ambiguous term that is subject to several possible interpretations. Id. at 516-17. The court noted that, as originally enacted, § 5542(a) provided overtime pay to "an employee" whose "[h]ours of work officially ordered or approved [were] in excess of 40 hours in an administrative workweek." Id. (quoting Pub.L. No. 89-554, 80 Stat. 485 (1966)). By its terms, this provision, like § 5546(a), applied to "employees." However, the same Comptroller General opinion that recommended restricting Sunday premium pay to full-time employees stated that "the language [of § 5542(a)] does not restrict the benefits to full-time employees and we have found nothing in the legislative history of this or related statutes which would warrant a conclusion that such restriction was so intended." 46 Comp. Gen. at 340. Section 5542(a) was later amended to grant overtime pay to "an employee" whose "[h]ours of work officially ordered or approved [were] in excess of 40 hours in an administrative workweek, or [] in excess of 8 hours in a day." Fathauer, 82 Fed.Cl. at 517 (quoting Pub.L. No. 90-83, 81 Stat. 200 (1967)) (alterations in original). Under CSC's interpretation of this version of the statute, part-time and intermittent employees were paid at overtime rates if they worked more than eight hours in a day, but not if they worked more than forty hours in a week. Federal Employees—Overtime Pay, S.Rep. No. 92-530 (1971), as reprinted in 1971 U.S.C.C.A.N. 2147, 2148. In 1971, Congress added the "full-time, part-time, and intermittent tours of duty" language to § 5542(a) to "provide ... specific authority" that overtime pay for hours in excess of forty per week was available to part-time and intermittent employees. Id. In light of this history, the Court of Federal Claims concluded that the word "employee" is ambiguous enough to allow different interpretations based on perceived congressional intent. Fathauer, 82 Fed.Cl. at 517.

We disagree with the court's conclusion that the word "employee" is ambiguous with respect to whether it encompasses those who work part time. Congress defined "employee" to include, among others, "an employee in or under an Executive agency." 5 U.S.C. § 5541(2)(A). While this definition is "circular" in the sense that it uses the defined word in the definition, we do not agree that it "reveals nothing about the scope of the term." Fathauer, 82...