Lanehart v. Horner, Appeal No. 86-595.

• Decision Date: 14 May 1987
• Docket Number: Appeal No. 86-595.
• Citation: 818 F.2d 1574
• Parties: Chester LANEHART, et al., Appellants, v. Constance HORNER, et al., Appellees.
• Court: U.S. Court of Appeals — Federal Circuit

818 F.2d 1574

Chester LANEHART, et al., Appellants, v. Constance HORNER, et al., Appellees.

Appeal No. 86-595.

United States Court of Appeals, Federal Circuit.

May 14, 1987.

Ira M. Lechner, Lechner & Butsavage, P.C., Washington, D.C., argued for appellants.

E. Kathleen Shahan, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for appellees. With him on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan. Also on the brief was John Salter, Office of Personnel Management, Washington, D.C., of counsel.

Before NEWMAN, BISSELL and ARCHER, Circuit Judges.

ARCHER, Circuit Judge.

Appellants appeal from the judgment of the United States District Court for the District of Maryland in Lanehart v. Devine, 615 F.Supp. 1300 (D.Md.1985), granting appellees' motion for summary judgment, and conversely denying appellants' motion for summary judgment. At issue is the quantum of "pay" to which appellants were and are entitled during authorized absences from work under the "leave with pay" provisions of 5 U.S.C. §§ 6303, 6307, 6322, 6323 (1982). We reverse and remand.

Background

The facts are undisputed. Appellants are federal employees who are employed as firefighters at various military, airport and other federal installations. Firefighters are on duty for twenty-four hours and then are off duty for the subsequent twenty-four hours. During each biweekly period they have one additional twenty-four hour period off, so that they normally and regularly work six twenty-four hour shifts in a biweekly pay period. A firefighter is at the fire station for the entire twenty-four hour shift. Eight hours are designated as work status, the remaining sixteen hours being designated as standby status which includes a sleep period. Firefighters are required to respond to duty calls at any time during the twenty-four hour period.

Prior to May 1, 1974, compensation for federal firefighters was governed exclusively by Title 5 of the United States Code. This compensation consisted of an annual "basic pay" component, 5 U.S.C. §§ 5332, 5504(b) (1982), and annual "premium pay" for regularly scheduled standby duty, 5 U.S.C. § 5545(c)(1) (1982).¹

The Fair Labor Standards Amendments of 1974 (1974 Amendments) became generally effective for federal firefighters on January 1, 1985 although for most federal employees the effective date was May 1, 1974.² Under the 1974 Amendments, the federal government, as employer, was brought within the coverage of the Fair Labor Standards Act (FLSA) and, in general, federal employees became entitled to overtime compensation for any workweek that exceeded forty hours. 29 U.S.C. §§ 203(e)(2), 207(a) (1982). However, in the case of firefighters employed by a public agency, a "tour of duty" standard for determining a firefighter's entitlement to overtime compensation was prescribed in 29 U.S.C. § 207(k).³See Zumerling v. Devine, 769 F.2d 745, 747 (Fed.Cir.1985). Under this provision, if a federal firefighter is regularly scheduled to work 144 hours biweekly, FLSA provides for overtime for hours worked over and above 106 hours.⁴ According to these rules, federal firefighters, who work a regularly scheduled tour of duty of 144 hours in the two-week pay period, are entitled to receive compensation in the form of: (1) the pro rata part of their annual basic pay and annual premium pay under Title 5; and (2) overtime pay under FLSA for thirty-eight hours.⁵

While FLSA is generally administered by the Department of Labor, the former Civil Service Commission, and later the Office of Personnel Management (OPM), was given responsibility under the 1974 Amendments for administering the provisions of the FLSA with respect to the federal work-force. 29 U.S.C. § 204(f). Pursuant to this authority, OPM issued a series of directives entitled Federal Personnel Manual (FPM) letters, which instructed federal agencies concerning application of the FLSA to federal employees.

The FPM letter pertinent to this appeal, FPM Letter 551-5 with attachments (Letter), contained detailed instructions for the application of the FLSA to federal employees engaged in fire protection activities. The Letter stated generally that "to the extent that the FLSA would provide a greater overtime pay benefit to these employees than the benefit payable under title 5, the employee is entitled to the FLSA benefit."⁶ (Emphasis in original.)

A crucial provision made applicable to employees covered by § 207(k) is reflected in Attachment 2 to the Letter:

Only those hours that the employee is actually on duty during the tour of duty shall be included in hours worked under the FLSA. Paid time off during the work period (holiday, annual leave, sick leave, or any excused absence with pay) shall not be included as hours worked. (Emphasis in original.)

Under this provision, a federal firefighter regularly scheduled for a tour of duty of 144 hours who takes authorized "leave with pay"⁷ is treated as incurring a reduction in FLSA overtime pay. Basic and premium compensation received for the work period remain unaffected because under Title 5 authorized "leave with pay" is included as hours of work. FLSA overtime, on the other hand, is correspondingly reduced by the number of hours of "leave with pay" because only those hours during which the employee is actually on duty are included as hours worked for the purpose of FLSA overtime.⁸

Appellants, disagreeing with OPM's interpretation of the relevant statutes, brought an action for damages (back pay) pursuant to 28 U.S.C. § 1346(a)(2) (1982)⁹ and for a declaration of their rights pursuant to 28 U.S.C. §§ 2201, 2202 (1982) against the Director of OPM,¹⁰ and the United States of America in the U.S. District Court for the District of Maryland.

District Court Decision

Both parties filed motions for summary judgment, and the district court, agreeing with the parties that there were no facts in dispute, concluded that only a question of law, i.e., statutory interpretation, needed to be decided to resolve the case and that it was appropriate for disposition by summary judgment.

Initially the court noted that in four separate statutes under Title 5 Congress authorized federal employees to take "leave with pay."¹¹ Lanehart, 615 F.Supp. at 1303. It concluded that there was no manifestation of any congressional intent as to the meaning of "leave with pay" as variously expressed in the leave statutes under consideration. Id. at 1305.

The court stated that OPM's interpretation of the statutes at issue gave effect to both enactments (FLSA and Title 5) while resolving a potential conflict between them.¹² It further noted that OPM's construction of these statutes was entitled to special deference since § 204(f) and the legislative history of the 1974 Amendments indicated that OPM was vested with the authority to administer the FLSA as it related to federal workers and to resolve any conflicts between Title 5 pay entitlements and entitlements under the FLSA.¹³

The court also examined opinions issued by the Comptroller General dealing with the issue of quantum of "pay" entitlement during authorized absences.¹⁴ These opinions were accorded little weight because in the court's view their logic was not persuasive and they were internally inconsistent. The court did not think that the minor differences in wording among the four "leave with pay" statutes should lead to diametrically opposed results with respect to entitlement to overtime pay during authorized absences. Id. at 1306-07.

Concluding that an employee may not be compensated for overtime work when the employee does not actually work overtime hours, the court granted the government's motion for summary judgment.

OPINION

A. This case presents the question of whether the four "leave with pay" provisions of Title 5 in their purpose and effect entitle appellants to an undiminished amount of pay for a pay period in which authorized leave is taken. More particularly, although authorized leave does not constitute hours worked for purposes of the overtime provision of FLSA, resulting in reduced overtime pay, appellants seek to have the "leave with pay" provisions of Title 5 interpreted in a manner that makes up this loss to the employee for the particular pay period. Appellants admit that they are not entitled to Title 29 overtime pay as such. Thus, appellants contend that they are seeking pay under Title 5 and not under Title 29 and their briefs and arguments are solely directed to the meaning and purpose of the "leave with pay" sections of Title 5.

The appellees, on the other hand, have, in effect, recharacterized appellants' claim as one for additional overtime pay under Title 29. Their brief does not adequately address appellants' arguments, but only considers issues that are consistent with their view of appellants' claim. The brief states that appellants are not entitled to FLSA overtime for periods of non-work and that any claims for retroactive FLSA overtime are barred by 29 U.S.C. § 259. But, as noted, the appellants do not seek, and admit they are not entitled to, additional FLSA overtime pay. The appellees' arguments are, therefore, not particularly helpful in resolving this appeal. However, two specific arguments of the appellees do require consideration.

B. Appellees urge that OPM's interpretation and application of the provisions of FLSA and Title 5 are entitled to great deference. While the administration of FLSA resides generally in the Department of Labor, the OPM (and its predecessor, the Civil Service Commission) was specifically authorized by Congress to administer FLSA in the federal sector. 29 U.S.C. § 204(f). The legislative history indicates that this was done so that any conflicts between Title 5 pay entitlements and entitlements provided for in the FLSA could be resolved by a single authority. We agree that deference should be given to the interpretative guidance with respect...