Fathauer v. United States

United States Court of Appeals for the Federal Circuit
2008-5112

THEODORE FATHAUER, ROBIN FOX,
EDWARD K. HOGAN, JR., LAURIE R. NISBET,
and RICHARD THOMAN,
Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

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.

Appealed from: United States Court of Federal Claims

Judge Lawrence M. Baskir
 United States Court of Appeals for the Federal Circuit
2008-5112

THEODORE FATHAUER, ROBIN FOX,
EDWARD K. HOGAN, JR., LAURIE R. NISBET,
and RICHARD THOMAN,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 07-CV-279, Judge Lawrence
M. Baskir.

__________________________

DECIDED: May 26, 2009
__________________________

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).

2008-5112 2
 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 (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. 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.

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.

1
As originally enacted, the statute read:
Any regularly scheduled eight-hour period of service which is not overtime
work as defined in section 201 of this Act any part of which is performed
within the period commencing at midnight Saturday and ending at
midnight Sunday shall be compensated for the entire period of service at
the rate of basic compensation of the officer or employee performing such
work plus premium compensation at a rate equal to 25 per centum of his
rate of basic compensation.
Pub. L. No. 89-504, § 405(c), 80 Stat. 297-98 (1966). In 1967, § 5546(a) was
amended to its present form. Pub. L. No. 90-83, 81 Stat. 201 (1967). The 1967
amendment was intended to make minor changes in phraseology and style, but
was not intended to change the substance of the law. Federal Employees—Pay
and Allowances, Etc., S. Rep. No. 90-482 (1967), as reprinted in 1967
U.S.C.C.A.N. 1538, 1541.

2008-5112 3
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.

2008-5112 4
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

2008-5112 5
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

2008-5112 6
of the term.” Fathauer, 82 Fed. Cl. at 516. Rather, Congress’s decision to use the word

“employee” in the definition demonstrates that a special definition was unnecessary

because the word was intended to be given its ordinary meaning. 2

Dictionaries generally define “employees” as those who work for pay. See, e.g.,

Oxford English Dictionary vol. 5 191 (2d ed. 1989) (“a person employed for wages”);

The American Heritage Dictionary of the English Language 428 (1969) (“[a] person who

works for another in return for financial or other compensation”); The Random House

Dictionary of the English Language 468 (1967) (“a person working for another person or

a business firm for pay”); Webster’s Third New International Dictionary 743 (1968) (“one

employed by another usu. in a position below the executive level and usu. for wages” or

“any worker who is under wages or salary to an employer and who is not excluded by

agreement from consideration as such a worker”). Appellants fall squarely within these

definitions, which contain no suggestion that an individual’s status as an “employee” is

dependent on whether he works full time.

Moreover, the Supreme Court has on several occasions construed the word

“employee” in the absence of a clear statutory definition. In Community for Creative

Non-Violence v. Reid, 490 U.S. 730 (1989) (“CCNV”), the Court addressed the meaning

of “employee” within the context of the Copyright Act, which did not provide a definition.

It stated:

It is . . . well established that “[w]here Congress uses terms that have
accumulated settled meaning under . . . the common law, a court must

2
We note that 5 U.S.C. § 2105(a) provides a definition of “employee” to be
used throughout Title 5 “except as otherwise provided by [§ 2105] or when specifically
modified.” The definition in § 2105(a), even if applicable here, also does not suggest
that part-time employees are not “employees.”

2008-5112 7
 infer, unless the statute otherwise dictates, that Congress means to
incorporate the established meaning of these terms.” In the past, when
Congress has used the term “employee” without defining it, we have
concluded that Congress intended to describe the conventional master-
servant relationship as understood by common-law agency doctrine.

490 U.S. at 739-40 (citations omitted). After rejecting the parties’ proposed tests for

who is an “employee,” the Court set forth its own approach:

In determining whether a hired party is an employee under the general
common law of agency, we consider the hiring party’s right to control the
manner and means by which the product is accomplished. Among the
other factors relevant to this inquiry are the skill required; the source of the
instrumentalities and tools; the location of the work; the duration of the
relationship between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the hired party’s
discretion over when and how long to work; the method of payment; the
hired party’s role in hiring and paying assistants; whether the work is part
of the regular business of the hiring party; whether the hiring party is in
business; the provision of employee benefits; and the tax treatment of the
hired party.

Id. at 751-52 (footnotes omitted). Although other considerations were relevant to the

construction of “employee” in CCNV, the Court took the same approach in a later case,

noting that reliance on the common law definition of “employee” was “the general rule.”

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (adopting the common

law test for determining who qualifies as an “employee” under ERISA).

Thus, whether an individual is an “employee” under the Supreme Court’s

approach depends not on the number of hours worked per week, but on the level of

control exercised by the hiring party. It cannot be disputed that Appellants are

“employees” under the test articulated in CCNV.

The Supreme Court has “stated time and again that courts must presume that a

legislature says in a statute what it means and means in a statute what it says there.

When the words of a statute are unambiguous, this first canon is also the last: judicial

2008-5112 8
inquiry is complete.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002)

(quotation marks omitted). In this case, Appellants are “employees” under the plain

meaning of the word. That Congress expressly referred to “employees” who work “full-

time, part-time and intermittent tours of duty” in the overtime pay provision, 35 U.S.C.

§ 5542(a), does not change the plain meaning of the word “employee.” If anything, it

supports our conclusion by indicating that part-time workers are a subset of a larger

class of “employees.” Because the word “employee” clearly includes those who work

part time, we decline to sift through legislative history in search of ambiguity.

III. CONCLUSION

Because the Court of Federal Claims erred by finding ambiguity in the word

“employee,” we vacate and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

2008-5112 9
 United States Court of Appeals for the Federal Circuit
2008-5112

THEODORE FATHAUER, ROBIN FOX,
EDWARD K. HOGAN, JR., LAURIE R. NISBET,
and RICHARD THOMAN,

Plaintiffs-Appellants,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 07-CV-279, Judge Lawrence
M. Baskir.

DYK, Circuit Judge, concurring.

I generally join the majority opinion, and agree that the word “employee” cannot

reasonably be construed to mean “full-time employee.” My only point of difference is

that I think it is necessary to also address the “regularly scheduled” language in

§ 5546(a). 1 In my view, that language is ambiguous as to whether it refers only to full-

time employees or also includes part-time employees. The word “regular” means

“normal, standard, correct” in the sense of “undeviating in conformance to a standard

set (as by convention, established authority, or a particular group).” Webster’s Third

New International Dictionary 1913 (Merriam-Webster 2002) (emphases added); see

1
The current Sunday premium pay statute applies to “[a]n employee who
performs work during a regularly scheduled 8-hour period of service” on a Sunday.
5 U.S.C. § 5546(a) (emphasis added). As originally enacted in 1966, the Sunday
premium pay statute provided a premium for “[a]ny regularly scheduled eight-hour
period of service” by an employee on a Sunday. Federal Salary and Fringe Benefits Act
of 1966, Pub. L. No. 89-504, § 405(c), 80 Stat. 288, 297-98 (1966) (emphasis added).
also Webster’s Unabridged Dictionary 1624 (Random House 2d ed. 1998) (defining

“regular” as “usual; normal; customary” (emphases added)). The term “full-time” means

“employed for or working the amount of time considered customary or standard,”

Webster’s Third New International Dictionary at 919 (emphasis added), while the term

“part-time” means “employed for or working less than the amount considered customary

or standard,” id. at 1648 (emphasis added). See also Webster’s Unabridged Dictionary

at 775 (defining “full-time” as “working or operating the customary number of hours in

each day, week, or month” (emphasis added)); id. at 1415 (defining “part-time” as

“employed to work, used, expected to function, etc., less than the usual or full time”

(emphasis added)). This may suggest that a part-time employee is not “regularly

scheduled” because he or she does not work a standard or customary 5-day schedule.

However, while the dictionary definitions lend some support to the government’s

position, it is not entirely clear from the dictionary definitions that a “regular” schedule

excludes a regular “part-time” schedule.

In my view the legislative history of § 5546(a), while also not conclusive,

suggests that “regularly scheduled” in § 5546(a) refers only to full-time employees. The

Senate Report accompanying the 1966 enactment of the Sunday premium pay statute

explained:

This section requires a premium of 25 percent of base pay for any
employee whose regularly scheduled 5-day workweek includes Sunday.
The premium will be paid for the entire 8-hour period of service regardless
of the numbers of hours which actually occur on Sunday.

S. Rep. No. 89-1187, at 4 (1966), as reprinted in 1966 U.S.C.C.A.N. 2495, 2498

(emphases added). The government points out that this legislative history assumes that

a regularly scheduled workweek is a “5-day” workweek.

2008-5112 2
 Since, in my view, the statutory language and legislative history are not

determinative, we would normally invoke Chevron deference. See Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). While OPM has

adopted regulations that bar part-time employees from receiving premium pay for

Sunday work, those regulations attempt to reach that result by construing “employee” as

restricted to full-time employees. 2 The majority correctly points out that the term

“employee” is not ambiguous in this respect, and thus not subject to Chevron deference.

One might have expected OPM instead to rest its Sunday pay regulation on the

construction of the term “regularly scheduled,” which, as noted above, is ambiguous.

But OPM chose not to do so, instead construing “regularly scheduled” to include both

full-time and part-time employees. 3 Under these circumstances, there is no agency

construction of statutory language supporting the denial of premium pay to which we

may afford Chevron deference. To the contrary, the regulations define “regularly

2
OPM’s regulations limit Sunday premium pay to full-time employees,
stating 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 (as defined in § 550.103).” 5 C.F.R. § 550.171(a); see also Incentive
Awards; Pay and Leave Administration, 60 Fed. Reg. 33,097 (Office of Pers. Mgmt.
June 27, 1995).
3
OPM has defined “regularly scheduled administrative workweek” as
encompassing both full-time and part-time employees. As OPM’s premium pay
regulations state:
Regularly scheduled administrative workweek, for a full-time employee,
means the period within an administrative workweek, established in
accordance with § 610.111 of this chapter, within which the employee is
regularly scheduled to work. For a part-time employee, it means the
officially prescribed days and hours within an administrative workweek
during which the employee is regularly scheduled to work.
5 C.F.R. § 550.103 (emphases added).

2008-5112 3
scheduled” to include part-time employees, and we must defer to such an interpretation

under Chevron.

In short, if OPM had adopted a regulation construing a “regularly scheduled”

employee in § 5546(a) to mean only a full-time employee, it seems that this construction

might pass muster under Chevron. Because OPM has defined “regularly scheduled” to

apply to both part-time and full-time employees, there is no authoritative agency

construction of the term “regularly scheduled” limiting § 5546(a) to full-time employees.

2008-5112 4