Yanko v. United States

• Citation: 869 F.3d 1328
• Decision Date: 06 September 2017
• Docket Number: 2017-1177
• Parties: Michael YANKO, as an individual, and on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

869 F.3d 1328

Michael YANKO, as an individual, and on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated, Plaintiff-Appellant

v.UNITED STATES, Defendant-Appellee

2017-1177

United States Court of Appeals, Federal Circuit.

Decided: September 6, 2017

Ira M. Lechner , Washington, DC, argued for plaintiff-appellant.

Mark E. Porada , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by Chad A. Readler, Robert E. Kirschman, Jr., Reginald T. Blades, Jr .

Before Prost, Chief Judge, Bryson and Stoll, Circuit Judges.

Bryson, Circuit Judge.

Plaintiff Michael Yanko is a part-time federal employee of the U.S. Department of Veterans Affairs. In his class action complaint, which he filed for himself and "on behalf of all other part-time GS and WG federal employees who are or were employed by all federal agencies and who are similarly situated," he asserts that the class members are entitled to premium pay for work performed on each day designated by statute or Executive Order as an "in-lieu-of" holiday. The Court of Federal Claims rejected his claim. We affirm.

I

A

There are ten federal holidays each year. Six of them are celebrated on Mondays, while the other four (New Year's Day, Independence Day, Thanksgiving Day, and Christmas Day) are celebrated on the day on which they fall.¹ Federal employees, including part-time employees, are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. §§ 610.405, 610.406. When employees are required to work on holidays, they are entitled to premium pay for their work on that day that is not in excess of eight hours and is not overtime work. 5 U.S.C. § 5546(b). The rate of premium pay for holiday work is equal to the employee's rate of basic pay, id. , which means that an employee who works on a holiday is in effect paid double time for that work. Both full-time and part-time employees are entitled to premium pay for designated holidays on which they are required to work. 5 C.F.R. § 610.202(a).

In addition to holidays that fall on employees' workdays, holidays sometimes fall on days that particular employees are not scheduled to work. By statute and Executive Order, certain employees whose basic workweek of five workdays is Monday through Friday are granted days off "in-lieu-of" holidays for those days. In the case of a holiday that falls on a Saturday, Congress has provided that the Friday before that Saturday is a holiday. 5 U.S.C. § 6103(b)(1)(A). In the case of a holiday that falls on a Sunday, an Executive Order provides that the Monday after that Sunday is a holiday for those employees. Exec. Order No. 11,582, § 3(a), 36 Fed. Reg. 2957 (Feb. 11, 1971). Such Friday and Monday holidays are referred to as "in-lieu-of holidays." Employees who are entitled to such in-lieu-of holidays are relieved from having to work on those days or, if required to work, earn premium pay for those days. 5 U.S.C. § 6103(b)(1)(A) ; Exec. Order No. 11,582, § 3(a).

Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits. For such employees, if a holiday falls on a day outside the employee's basic workweek, the employee's in-lieu-of holiday is observed during the employee's workweek, on either the day before or the day after the actual holiday. 5 U.S.C. § 6103(b)(2) ; Exec. Order No. 11,582, § 3(b).² The employees are relieved from work on that in-lieu-of day or given premium pay if they are required to work. See 5 U.S.C. § 6103(b)(2) ; Exec. Order No. 11,582, § 3(b).

There is no dispute between the parties regarding how the in-lieu-of provisions operate with regard to full-time employees. The dispute concerns whether, and to what extent, the in-lieu-of provisions apply to part-time employees such as Mr. Yanko.

B

Mr. Yanko has been employed by the Department of Veterans Affairs on a part-time basis for some time, including the entire six-year period prior to the filing of his complaint. His regular workweek consists of five days, from Sunday through Thursday. Thus, his weekly non-workdays regularly fall on Fridays and Saturdays. Between December 15, 2009, and May 16, 2016, there were eight official public holidays that fell on either a Friday or a Saturday (New Year's Day of 2010, 2011, and 2016; Independence Day of 2014 and 2015; and Christmas Day of 2009, 2010, and 2015). Because Mr. Yanko is a part-time employee, he was not credited with an in-lieu-of holiday during the preceding or succeeding workweek for any of those eight days.

It is the longstanding policy of the Office of Personnel Management ("OPM") that part-time employees are not entitled to an in-lieu-of holiday corresponding to a particular holiday when that holiday falls on a non-workday for the part-time employee. That policy is reflected in regulations issued by OPM pursuant to notice-and-comment rulemaking. 5 C.F.R. §§ 610.405, 610.406. Contending that OPM's policy and regulations are contrary to section 6103(b) and Executive Order 11,582, Mr. Yanko seeks to recover an amount equal to the premium pay to which he would have been entitled if he had been credited with in-lieu-of holidays for the eight holidays that fell outside his normal workweek during the past six years.

The Court of Federal Claims disagreed with Mr. Yanko's statutory argument. Instead, the court held that the governing statute and Executive Order do not provide part-time employees such as Mr. Yanko with a right to in-lieu-of holidays when federal holidays fall on days outside the employees' normal workweek. In particular, the court concluded that the term "basic workweek," which appears in the statute governing in-lieu-of holidays and in Executive Order No. 11,582, refers only to full-time employees, and not to part-time employees. On appeal, Mr. Yanko challenges that construction of the statute and the Executive Order.

II

A

To begin with, Mr. Yanko objects to the trial court's dismissal of his complaint for failure to state a claim on which relief can be granted. He argues that he has made factual allegations that preclude the entry of judgment against him as a matter of law. In fact, however, the trial court correctly found that this case turns not on a factual dispute, but on a pure legal issue of statutory interpretation: whether part-time federal employees are entitled to in-lieu-of holidays when federal holidays fall on days on which they are not scheduled to work. For that reason, the court properly resolved this case on legal grounds under Rule 12(b)(6) of the Rules of the Court of Federal Claims. See Amoco Oil Co. v. United States , 234 F.3d 1374, 1377 (Fed. Cir. 2000).

B

On the merits, Mr. Yanko argues that section 6103(b) of title 5 and Executive Order No. 11,582, which provide for in-lieu-of holidays, apply by their terms to part-time employees. For that reason, he argues, OPM's regulations and its longstanding practice of excluding part-time employees from the in-lieu-of holiday benefits of section 6103(b) and the Executive Order, are invalid.

Mr. Yanko's statutory argument proceeds from his contention that part-time employees are "employees" within the meaning of the pertinent statutes, and that once that proposition is accepted, the in-lieu-of holiday provisions of section 6103(b) and the Executive Order necessarily apply with full force to part-time employees. While we agree that part-time employees are "employees" as that term is used in the pertinent provisions, see Fathauer v. United States , 566 F.3d 1352, 1356-57 (Fed. Cir. 2009), that point does not carry the day for Mr. Yanko.³

Under both section 6103(b) and section 3 of Executive Order No. 11,582, in-lieu-of holiday benefits are limited to employees who work a "basic workweek," whether that constitutes Monday through Friday or some period other than Monday through Friday. Referencing 5 U.S.C. § 6101, the government argues that the term "basic workweek" refers to the basic 40-hour workweek worked by full-time employees.

Section 6101 directs each executive agency to "establish a basic administrative workweek of 40 hours for each full-time employee." 5 U.S.C. § 6101(a)(2)(A). The statute also provides that "the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive." Id. § 6101(a)(3)(B). The government argues that the term "basic workweek," as used in section 6101(a)(3)(B) and elsewhere in sections 6101 and 6103, is simply shorthand for "basic 40-hour workweek" or "basic administrative workweek of 40 hours," as used in section 6101. Accordingly, the government asserts, the use of the shorthand term "basic workweek" in section 6103(b) and in the corresponding portion of Executive Order No. 11,582 necessarily limits the scope of those provisions to employees who work a 40-hour week, i.e., full-time employees. Cf. 5 U.S.C. § 3401(2) (part-time employees work between 16 and 32 hours per week, or between 32 and 64 hours during a biweekly pay period).

Mr. Yanko disagrees, arguing that when Congress intended to refer to the "basic workweek" of full-time employees, it used the term "basic 40-hour workweek" or "basic administrative workweek of 40 hours," and that when it used the unmodified term "basic workweek," it intended the provisions in question to apply to both full-time and part-time employees. For that reason, he con-tends that "there is no ambiguity" and that the in-lieu-of holiday provisions in section 6103(b) and the Executive Order clearly apply to part-time employees. Appellant's Br. at 33.⁴

While the text of section 6103 and the Executive Order does not explicitly answer the question, an examination of the history of those provisions and the way they have been interpreted over the past 70 years persuades us to reject Mr. Yanko's contention that...