Huskey v. Trujillo

• Decision Date: 30 August 2002
• Docket Number: No. 02-1022.,02-1022.
• Citation: 302 F.3d 1307
• Parties: Josephine HUSKEY, Plaintiff-Appellant, v. Michael H. TRUJILLO, Director of the Indian Health Service, Department of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

302 F.3d 1307

Josephine HUSKEY, Plaintiff-Appellant, v. Michael H. TRUJILLO, Director of the Indian Health Service, Department of Health and Human Services, Defendant-Appellee.

No. 02-1022.

United States Court of Appeals, Federal Circuit.

Decided: August 30, 2002.

Steven J. Shamburek, Law Office of Steven J. Shamburek, of Anchorage, Alaska, for plaintiff-appellant.

Mary K. Doyle, Attorney, Appellate Staff, Civil Division, Department of Justice, of Washington, DC, for defendant-appellee. With her on the brief were Robert D. McCallum, Jr., Assistant Attorney General; Timothy S. Burgess, United States Attorney; and Barbara C. Biddle, Attorney.

Before NEWMAN, SCHALL, and LINN, Circuit Judges.

SCHALL, Circuit Judge.

Josephine Huskey appeals from the decision of the United States District Court for the District of Alaska that granted summary judgment in favor of Michael H. Trujillo, Director of the Indian Health Service, Department of Health and Human Services ("Agency"), and that dismissed her complaint seeking premium pay under the Federal Employees Pay Act, 5 U.S.C. §§ 5544-45 (2000) ("FEPA"), and the Fair Labor Standards Act, 29 U.S.C. § 207 (2000) (the "FLSA"). Huskey v. Trujillo, No. A97-0394-GV (HRH), slip op. at 13 (D.Alaska, Nov. 26, 1999). FEPA provides for premium pay for "an employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty." 5 U.S.C. § 5545(c)(1). The FLSA requires employers to pay employees at a rate of one and a half times their regular rate of pay for hours worked in excess of forty hours per week. See 29 U.S.C. § 207(a)(1). Ms. Huskey, who worked as an operating room nurse at the Alaska Native Medical Center ("ANMC" or "the hospital") between 1985 and 1997, claimed that the Agency (which operated ANMC) violated both statutes by its refusal to compensate her for hours during which she was on-call but was not called into work. The district court concluded that Ms. Huskey was exempt from the relevant overtime compensation provisions of the FLSA and that her activities were not sufficiently restricted during her on-call periods to warrant payment under FEPA. We affirm.

BACKGROUND

I.

The pertinent facts are not in dispute.

As part of her duties as an operating room nurse, Ms. Huskey was required to be on-call at various times. Though her schedule varied, she generally was on call for an average of one weekend (4:00 p.m. Friday until 7:30 a.m. Monday) and approximately one to two weeknights (4:00 p.m. until 7:30 a.m. the following morning) per month. Huskey, slip. op. at 2. ANMC permitted nurses to trade on-call duties, but Ms. Huskey averred that rearranging her call schedule proved difficult in practice.

ANMC did not designate a particular place where nurses were to be while they were on-call. Instead, during their on-call periods, nurses were required to be available by phone, either directly or through a pager. A nurse receiving a call or a page was required to return it within five minutes and to report to the hospital within thirty minutes. Id. at 3. Nurses were compensated for the time spent at work after being called in. Ms. Huskey states that she responded to calls immediately. On average, Ms. Huskey was called into work five to six times each month. Id.

Ms. Huskey contends that the requirement that she respond to calls and arrive at the hospital expeditiously after receiving calls placed onerous restrictions on her personal activities. For example, to ensure that she could reach the hospital within thirty minutes of receiving a call, Ms. Huskey had to stay within an area encompassing Anchorage described as "the Anchorage Bowl," which precluded her from visiting her cabin, fishing at her favorite venues, cross-country skiing, jogging, caribou hunting, or engaging in numerous other recreational activities. In addition, Ms. Huskey contends that the unpredictability of calls and the requirement that she respond rapidly precluded her from partaking in various activities within the Anchorage Bowl itself. Ms. Huskey alleges that because she did not know whether she would be paged and could not risk a delay in reporting to the hospital when she was paged during her on-call periods, she could not stay at home without a babysitter present to take care of her children, shop at stores with long lines, host dinner parties, dine out, or attend hockey games. On the other hand, Ms. Huskey was able to shop at certain stores and to attend church during on-call times, albeit at the risk of having to leave prematurely.

II.

On October 2, 1997, Ms. Huskey filed suit in the United States District Court for the District of Alaska under the Little Tucker Act, 28 U.S.C. § 1346(a)(2) (2000),¹ alleging that she was entitled to compensation for on-call periods pursuant to, inter alia, FEPA, 5 U.S.C. §§ 5544-45, and the FLSA, 29 U.S.C. § 207(a). Huskey, slip. op. at 2-3. In due course, the parties cross-moved for summary judgment. Addressing the motions, the district court considered first whether Ms. Huskey was entitled to recovery on the ground that the restrictions placed on her during on-call periods were sufficiently onerous to trigger entitlement under FEPA. In so doing, the court applied the seven factor test stated by the Ninth Circuit in Owens v. Local No. 169, Association of Western Pulp & Paper Workers, 971 F.2d 347, 351 (9th Cir.1992).² Courts have used the Owens factors to determine whether an employee's activities are so restricted during on-call periods that premium pay under FEPA may be warranted. See, e.g., Brown v. United States, 31 Fed.Cl. 585, 588 (1994). The district court concluded that "[b]ecause Huskey was free to engage in personal activities while on-call and because she agreed to the on-call policy, Huskey is not entitled to compensation for time spent on-call under FEPA." Slip. op. at 12. Essentially, the court determined that Ms. Huskey was able to use her on-call time for personal purposes instead of for the benefit of her employer, so that, in the words of the Supreme Court case that spawned the jurisprudence regarding compensability of on-call time, Ms. Huskey was "waiting to be engaged," and not "engaged to wait." Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

As for Ms. Huskey's FLSA claims, the district court found that as a nurse employed in a "professional capacity" pursuant to 29 U.S.C. § 213 (2000), Ms. Huskey was exempt from coverage under the FLSA. Id.; see also 29 C.F.R. § 541.3(a), (e) (2001)(defining the scope of the FLSA's "professional capacity" exception). Accordingly, the court granted summary judgment in favor of the government and dismissed Ms. Huskey's complaint. Ms. Huskey appealed to the Ninth Circuit, which transferred the case to us pursuant to 28 U.S.C. § 1631 (2000).

DISCUSSION

I.

We have jurisdiction over this appeal under 28 U.S.C. § 1295(a)(2). We review a district court's grant of summary judgment without deference, applying anew the same standard used by the district court. Transclean Corp. v. Bridgewood Servs., Inc., 290 F.3d 1364, 1369 (Fed.Cir.2002). Thus, we may affirm the summary judgment in favor of the government only if, after drawing all reasonable inferences in Ms. Huskey's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), "there is no genuine issue of material fact and ... the [government] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The parties do not dispute the operative facts surrounding Ms. Huskey's on-call arrangement with ANMC. In addition, Ms. Huskey does not challenge the district court's dismissal of her FLSA claims. Accordingly, the case turns on the legal question of whether, under FEPA, the Agency was required to pay Ms. Huskey premium pay for time spent on-call but not working. See Dana Corp. v. United States, 174 F.3d 1344, 1347 (Fed.Cir.1999) ("[s]ummary judgment was appropriate here because no material facts were disputed, many being stipulated, and the only disputed issues were issues of law."). We review questions of law de novo. Bowen v. United States, 292 F.3d 1383, 1385 (Fed.Cir.2002).

Ms. Huskey argues that the district court erred in holding that the restrictions placed on her during on-call periods were not sufficiently restrictive to trigger an obligation on the part of the Agency to pay her premium pay under FEPA. According to Ms. Huskey, the court misapplied the Owens factors and failed to appreciate the severity of the Agency's on-call restrictions, which she says effectively limited her mobility to a narrow geographical area and precluded her from conducting personal activities from entertaining friends to attending sporting events. Ms. Huskey argues that, taken together, the requirements that she be available by phone or pager at all times, that she return any call or page within five minutes, and that she arrive at ANMC within thirty minutes, compel the conclusion that she was "engaged to wait," and not "waiting to be engaged." Skidmore, 323 U.S. at 137, 65 S.Ct. 161. According to Ms. Huskey, this conclusion is reinforced by her assertion that personal conscience and professional commitment caused her to exceed official ANMC on-call requirements and to respond to calls immediately.

The government responds that, far from restricting Ms. Huskey to a particular location, ANMC's on-call requirements, coupled with the availability of a beeper and cell phone, allowed her to move freely almost anywhere in the Anchorage metropolitan area and to spend time for her personal activities. Under these circumstances, the government argues, the Agency was not required to give Ms. Huskey premium pay for the time she spent on-call but not working.

II.

Ms. Huskey's claim for premium pay during on-call periods is grounded in the FEPA provision that states that

an employee in a position requiring him regularly to remain at,...