LaForte v. Horner

• Citation: 833 F.2d 977
• Decision Date: 17 November 1987
• Docket Number: No. 87-1138,87-1138
• Parties: 28 Wage & Hour Cas. (BN 537, 56 USLW 2364, 107 Lab.Cas. P 35,010 Richard A. LaFORTE and Rickey A. Rogers, Plaintiffs-Appellants, v. Constance HORNER, Director, U.S. Office of Personnel Management and the United States of America, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 977

833 F.2d 977

28 Wage & Hour Cas. (BN 537, 56 USLW 2364,

107 Lab.Cas. P 35,010

Richard A. LaFORTE and Rickey A. Rogers, Plaintiffs-Appellants, v. Constance HORNER, Director, U.S. Office of Personnel

Management and the United States of America,

Defendants-Appellees.

No. 87-1138.

United States Court of Appeals,

Federal Circuit.

Nov. 17, 1987.

Ira N. Leckner, Connerton & Bernstein, Washington, D.C., argued for plaintiffs-appellants. With him on the brief was Linda Lipsett.

Robert A. Reutershan, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendants-appellees. With him on the brief were Richard K. Willard, Asst. Atty. Gen. and David M. Cohen, Director.

Before MARKEY, Chief Judge, BENNETT, Senior Circuit Judge, and NEWMAN, Circuit Judge.

PER CURIAM.

DECISION

Appellants, two federal firefighters, appeal from the judgment of the United States District Court for the District of Maryland (Black, J.), granting appellee's motion for summary judgment. Correspondingly denying appellants' motion for summary judgment, the district court ruled that the formula in Federal Personnel Manual (FPM) Letter 551-5 used by the Office of Personnel Management (OPM) to calculate the overtime pay entitlements for appellant firefighters under the Fair Labor Standards Act (FLSA), 29 U.S.C. Secs. 201-219 (1982 & Supp. III 1985), was valid and in conformity with the requirements of Title 5, the FLSA, and Department of Labor regulations. We affirm.

BACKGROUND

At the time that this action was filed, appellants Richard A. LaForte and Rickey A. Rogers were civilian federal firefighters (grade GS-5, step 1) employed at Andrews Air Force Base in Maryland. Federal firefighters do not work a 40-hour workweek, but instead are employed for 144 hours per 14-day biweekly work period. The firefighters are on duty for six 24-hour shifts during each 14-day work period. Each 24-hour shift consists of 8 hours of work, and 16 hours of standby time during which the firefighters are confined to their work stations and subject to immediate duty in the event of a fire or other emergency.

Congress recognized that the work schedules of firefighters differ from those of typical general schedule (GS) government employees and provided for those differences in the statutes governing the firefighters' pay. The firefighters receive basic general schedule pay, see 5 U.S.C. Sec. 5332, and in addition, in accordance with 5 U.S.C. Sec. 5545(c)(1) (1982), the firefighters receive "premium pay" of up to 25 percent of their basic GS pay in recognition of the substantial portion of their regularly scheduled duty spent in a standby status. Additionally, section 7(a) of the FLSA provides that federal employees are not to be employed for a longer workweek than 40 hours unless they receive compensation at a rate not less than one and one-half times the regular rate at which they are employed. However, federal firefighters initially were excepted from the FLSA provisions An amendment to the FLSA, taking effect on January 1, 1975, and codified as 29 U.S.C. Sec. 207(k), provided an exception to section 207(a) for public agency employees engaged in fire protection services. The current version of 29 U.S.C. Sec. 207(k) reads, in pertinent part, that:

when the federal government became subject to the FLSA in 1974.

No public agency shall be deemed to have violated subsection (a) of this section with respect to the employment of any employee in fire protection activities ... if--

(1) in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours ... in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or

(2) in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-half times the regular rate at which he is employed.

Thus, in addition to their basic pay and premium pay, federal firefighters also are entitled to receive additional compensation under the FLSA, the amount of which is calculated in accordance with the formula outlined in FPM Letter 551-5. FPM Letter 551-5 was promulgated by the Civil Service Commission, the predecessor agency to OPM, within weeks of the enactment of section 207(k) and contained detailed guidelines for computing FLSA pay for firefighters in accordance with that section. However, not satisfied with the manner in which their FLSA overtime compensation was calculated, the appellants filed suit in the district court, challenging the validity of the FPM formula and seeking to recover any compensation improperly withheld, together with interest, liquidated damages, and attorneys' fees as provided in 29 U.S.C. Sec. 216(b).

The appellants' suit is not the first court challenge to the method by which federal firefighters are compensated. The leading case is Zumerling v. Devine, 769 F.2d 745 (Fed.Cir.1985), a case involving a challenge to the computation method of firefighters' FLSA pay in which this court decided several issues that provide a backdrop for the present case. We will not repeat the entire analysis contained in the Zumerling opinion; nevertheless, an understanding of the issues presented and decided in that case is crucial to the resolution of the present case.

Under section 7 of the FLSA, federal firefighters are entitled to be compensated at a rate not less than one and one-half times their "regular rate" of pay, see 29 U.S.C. Sec. 207(e), for a portion of their 144-hour, 2-week work period. The plaintiffs in Zumerling challenged the method in which the regular rate was calculated under FPM Letter 551-5 as used by OPM. ¹ The court in Zumerling observed that OPM had the authority to interpret the FLSA statute and concluded that FPM Letter 551-5 was a valid exercise of that authority. 769 F.2d at 750 (citing Beebe v. United States, 640 F.2d 1283, 226 Ct.Cl. 308 (1981)). Citing with approval the discussion in Alexander v. United States, 1 Cl.Ct. 653 (1983), the court concluded that OPM's administration of the FLSA overtime provisions was both reasonable and consistent with the statute, the regulations promulgated by the Secretary of Labor The court in Zumerling expressly decided that the "regular rate" of pay for firefighters is equal to the employees' total remuneration (basic pay plus premium pay) divided by the total number of hours worked in a work period (144 hours). Id. at 749-52. In reaching this conclusion, the court determined that the premium pay received by the firefighters was not excluded under 29 U.S.C. Sec. 207(e) from being included in the regular rate calculation:

and the intent of Congress. 769 F.2d at 749-52.

The firefighters' premium pay is not received in return for any particular hours of work. Rather it is a function of the government's recognition that firefighters don't work the typical work schedule of the federal system. The annual basis payment, therefore, is not an overtime payment, but a means of generally compensating the employees given the confines of the federal pay schedule. As such, it is part of the wage typically paid for each hour of work and must be included [in the calculation of "regular rate"].

Id. at 751. Therefore, the court rejected arguments that the "total remuneration" should not include premium pay received pursuant to 5 U.S.C. Sec. 5545. The court also rejected the argument that, in order to determine the "regular rate," the total remuneration should not be divided by the total number of hours for which it is received, 144 hours in a 2-week pay period. ² Finally, the court concluded that the formula reflected in the FPM Letter was both proper and consistent with the statute and regulations in allowing additional compensation of one-half the regular rate rather than one and one-half times the rate because the employee's total remuneration calculation compensates the employee at 100 percent for all the hours in his tour of duty and the additional one-half thereby allows the employee to receive one and one-half times the regular rate at which he or she is employed. 769 F.2d at 752-53.

In granting the government's motion for summary judgment in the present case, the district court ruled that issues in Zumerling were identical to those presented by the case before it, that the result reached there was correct, and that, in any event, it was bound by that decision since any appeal in the present case would come to this court. Not surprisingly, in appealing the district court's decision in this court, the appellants argue that Zumerling did not decide issues identical to the present case and, to the extent that it did, it was wrongly decided. However, to the extent that the issues in the present case are identical to those decided in Zumerling, this panel is bound by that decision as only the court sitting in banc can overrule prior decisions of this court. Capital Electric Co. v. United States, 729 F.2d 743, 746 (Fed.Cir.1984). Thus, we must identify and address the issues raised in this appeal left unanswered by the court in Zumerling or alternatively conclude, as did the district court, that the issues presented are identical and that we are bound by that decision.

OPINION

Having seen a series of challenges to the method in which the firefighters' regular rate is calculated under FPM Letter 551-5 rejected by the decisions in Zumerling and Wheeler, the appellants here do not challenge the regular rate calculation but now choose to attack the adequacy of their pay calculation...