United States Court of Appeals
Fifth Circuit
F I L E D
April 29, 2003
REVISED JUNE 16, 2003
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-21117
_______________________
HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC; ANDREA BURKE;
STEVEN CAIN; RICHARD HAHN; MICHAEL LUMPKIN; SHAWN PALIN;
CLYDE ROOKE; STEVEN MURDOCK; EIGHT HUNDRED EIGHTY-NINE
ADDITIONAL COUNSELORS,
Plaintiffs-Appellants,
versus
CITY OF HOUSTON, TEXAS,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before JONES, SMITH, and SILER,* Circuit Judges.
EDITH H. JONES, Circuit Judge:
The principal question raised in this appeal is whether
section 207(o)(5) of the Fair Labor Standards Act (“FLSA”) requires
a public agency to allow its employees the use of accrued
*
United States Court of Appeals for the Sixth Circuit, sitting
by designation.
compensatory time on those days specifically requested by the
employees, unless to do so would “unduly disrupt” the agency’s
function. In support of this proposition, appellant Houston Police
Officers’ Union and others (collectively, the “Union”) argue that
this court must defer to various statements and regulations of the
Department of Labor construing section 207(o)(5). Because the
statutory language is clear, however, deference is inappropriate.
The summary judgment of the district court in favor of the City of
Houston (“City”) is accordingly affirmed.
BACKGROUND
The FLSA requires all employers, including states and
their political subdivisions, to provide overtime compensation for
employees who work more than 40 hours per week. 29 U.S.C. § 207
(2003). In the private sector, compensation for excess hours is to
be paid at a rate of not less than one-and-a-half times the
employee’s hourly wage. Id. at § 207(a)(1). To ease the burden on
public employers, Congress allows these entities to provide
overtime compensation in the form of compensatory time (“comp
time”) at a rate of one-and-a-half hours for every excess hour
worked. Id. at § 207(o)(1). An employer that would utilize this
provision must have a collective bargaining agreement with its
employees or agreements with individual employees explicitly
permitting such a practice. Id. at § 207(o)(2).
2
During the period covered by this litigation,1 the
Houston Police Department (“HPD”) administered comp-time usage by
way of a log known as the “Red Book,” one of which was kept in each
of the HPD’s units. A unit’s Red Book listed all of the officers
in the unit who were scheduled, for whatever reason, to be off-duty
on any given day. Each unit had a predetermined limit on the
number of officers who could be off on a particular day. This
limit was based on the shift commander’s estimate of the unit’s
manpower needs. The primary considerations in formulating this
estimate were the unit’s anticipated workload (based on historical
trends), the unit’s efficiency, and the unit’s ability to tolerate
disruption in its operations. In general, the Shift Commanders
(with approval from Division Commanders) limited the spaces in the
Red Book to ten percent of the unit’s staff. An officer wishing to
use his accrued comp time had to sign his name in his unit’s Red
Book for the day(s) he wished to take off. If the Red Book’s limit
for the requested day had not been reached, the officer received
his requested comp time.
The Union was displeased with this system, as it could
frustrate an officer’s attempt to choose the dates on which he
1
The parties have stipulated that they have been in agreement
since July 2001 regarding the manner in which accrued comp time is
to be used. Because the Union’s suit is for past damages, the
parties’ current agreement does not moot the statutory
interpretation question this case presents.
3
would use comp time. Instead of allowing an individualized
assessment of the inconvenience that an officer’s absence on a
particular day might place on his unit, the Red Book system imposed
an inflexible ten-percent limit on all days. Forced by the
department to work overtime at the HPD’s convenience, members of
the Union would have preferred to use comp time for their
convenience.
The Union accordingly sued the City in federal court,
alleging, inter alia, that the HPD’s Red Book system violated the
FLSA by failing to provide individualized assessments of the
disruption that comp-time requests over and above the ten-percent
limit might cause to the operations of the HPD.
Upon receiving cross-motions for summary judgment, the
district court entered summary judgment for the City, holding that
the FLSA does not grant the employees of public agencies the right
to use their accrued comp time on days of their own choosing. The
Union appealed.
STANDARD OF REVIEW
This court reviews the grant of summary judgment de novo,
applying the same standards as the district court. Sherrod v.
American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998);
McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir.
1998). Summary judgment under Rule 56 of the Federal Rules of
4
Civil Procedure is appropriate only “if . . . the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c).
A fact is material if it could affect the outcome of the
lawsuit, and a dispute about a material fact is genuine if the
evidence is such that a reasonable jury could return a verdict for
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Reviewing courts must look at the evidence and
draw all inferences therefrom in a light most favorable to the non-
moving party. Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 97 (5th
Cir. 1993).
DISCUSSION
Two issues are raised on appeal: what is the proper
interpretation of section 207(o)(5), and whether the HPD correctly
applied the provision to its operations. We discuss each issue in
turn.
I. Section 207(o)(5)
The FLSA provides, in pertinent part, that:
[a]n employee of a public agency which is a State,
political subdivision of a State, or an interstate
governmental agency—
(A) who has accrued compensatory time off . . .
and
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(B)
who has requested the use of such compensatory
time,
shall be permitted by the employee’s employer to use such
time within a reasonable period after making the request
if the use of the compensatory time does not unduly
disrupt the operations of the public agency.
29 U.S.C. § 207(o)(5). The litigants offer two conflicting
interpretations of this provision. The City contends that the
phrase “within a reasonable period after making the request”
obliges an employing public agency to authorize an employee’s use
of accrued comp time within a certain temporal range (a “reasonable
period”) following the date on which the request is made. Comp
time may be delayed, nonetheless, in the event that the employee’s
desired usage would “unduly disrupt” the agency’s operation.
Without gainsaying the plausibility of the City’s
interpretation, the Union advances another reading of this
requirement: The employing agency must allow the employee’s use of
comp time on the day specifically requested, unless it would
“unduly disrupt” the agency’s operation. The Union fortifies its
interpretation by arguing that it is advocated by the Department of
Labor in at least three separate and legally relevant venues: (1)
the statute’s implementing regulations, Application of the Fair
Labor Standards Act to Employees of State and Local Governments, 29
C.F.R. § 553 et seq. (esp. § 553.25), which the Department of Labor
enacted in 1987, pursuant to formal notice-and-comment rulemaking
6
(“Regulations”);2 (2) an opinion letter produced by the DOL’s Wage
and Hour Division in 1994, 1994 WL 1004861 (“Opinion Letter”);3 and
(3) the amicus brief filed by the Secretary of Labor in an action
resembling the instant case, DeBraska v. City of Milwaukee, 131 F.
Supp.2d 1032 (E.D. Wisc. 2000) (“Amicus Brief”).4
When construing a federal statute that has been
interpreted by an administrative agency, courts look first to the
language of the statute. If Congress has “directly spoken to the
2
See 29 C.F.R. § 553.25(d): “When an employer receives a
request for compensatory time off, it shall be honored unless to do
so would be ‘unduly disruptive’ to the agency’s operations. Mere
inconvenience to the employer is an insufficient basis for denial
of a request for compensatory time off. (See H. Rep. 99-331, p.
23.) For an agency to turn down a request from an employee for
compensatory time off requires that it should reasonably and in
good faith anticipate that it would impose an unreasonable burden
on the agency’s ability to provide services of acceptable quality
and quantity for the public during the time requested without the
use of the employee’s services.”
3
The Opinion Letter states, “It is our position,
notwithstanding [an agreement between the Police Officers
Association and the City] that an agency may not turn down a
request from an employee for compensatory time off unless it would
impose an unreasonable burden on the agency’s ability to provide
services of acceptable quality and quantity for the public during
the time requested without the use of the employee’s services. The
fact that overtime may be required of one employee to permit
another employee to use compensatory time off would not be a
sufficient reason for an employer to claim that the compensatory
time off request is unduly disruptive” (emphasis added).
4
Amicus Brief at 7 (“In providing that an employee shall be
permitted to use comp. time ‘within a reasonable period after
making the request,’ Congress obviously intended to prescribe a
minimum notice requirement, not a maximum time after the date of
the leave request that comp. time may be used.”).
7
precise question at issue,” i.e. “[i]f 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.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842–43, 104 S.Ct. 2778 (1984). If the statute is
ambiguous, however,
the court does not simply impose its own construction on
the statute, as would be necessary in the absence of
administrative interpretation. Rather, . . . the
question for the court is whether the agency’s answer is
based on a permissible construction of the statute.
Id. at 843. The Chevron doctrine thus requires a litigant, such as
the Union, who would have a court defer to an agency’s regulations,
to jump two hurdles. He must show that the statute is in fact
ambiguous regarding the question at bar, and he must demonstrate
that the regulation’s statutory interpretation, whether or not
preferable, is permissible. Before considering the various
statements from the Department of Labor, then, the statute must be
carefully reviewed.
The text of section 207(o)(5) plainly defines the period
between the date the employee submits his request and the date the
employer allows the employee to use the comp time: the employee
“shall be permitted . . . to use such [comp] time within a
reasonable period after making the request.” 29 U.S.C. §
207(o)(5). As the City suggests, mandating a “reasonable period”
for use of comp time is different from mandating the employee’s
8
chosen dates. The language offers a span of time to the employer,
the beginning of which is the date of the employee’s request.
The Union responds in two ways to this grammatically
appealing interpretation. First, the Union asserts that “such
time” means “the specific time requested by the employee.” This is
untenable, however, because within section 207(o)(5) “time”
consistently refers to the number of compensatory hours to which an
employee is entitled, not, as the Union would have it, to the date
or dates on which an employee asks to be let off work. Words are
ordinarily interpreted to have a uniform meaning in a given
statutory context.
The Union also argues that “[t]he interplay between the
‘reasonable period’ and ‘unduly disrupt’ clauses generates
ambiguity within the language of the statute.” While the Union
concedes that it is possible that the “reasonable period” clause
refers only to the time between request and comp-time consumption,
the presence of the “unduly disrupt” clause raises the possibility
that the “reasonable period” clause refers, rather, to the time
between intended and actual date of comp-time consumption. We
understand the interaction between these two clauses quite
differently. Instead of obscuring the proper object of the
“reasonable period” clause, the “unduly disrupt” clause serves to
clarify its obvious meaning. The “reasonable period” clause
imposes upon the employer the obligation to facilitate the
9
employee’s timely usage of his accrued compensatory time. The
“unduly disrupt” clause suggests conditions, however, that would
release the public employer from the previously imposed condition.
The statute, thus construed, reflects a balance between obligation
and exemption.5
Finally, according to the Union, the City’s
interpretation expands the impact of the “reasonable period” clause
while leaving the “unduly disrupt” clause without meaning. Thus,
the Union contends, when an employee makes a reasonably timely
request for a specific period of comp-time leave, the employer must
grant it unless doing so would unduly disrupt the agency’s
operation for each such request. We have just explained how a
straightforward reading of the provision balances obligation and
exemption. But even more to the point, the Union’s explanation
requires linguistic contortion where it is obvious that Congress
could have chosen much simpler language to express the Union’s
desired policy. Had Congress intended to do as the Union suggests,
alternative statutory language is not hard to envision. Congress
5
Though there is no need to rest our argument on the cushions
of armchair legislative history — the logic found in the statute’s
plain text is sufficient for the question at hand — the events
compelling Congress to enact this statute strongly suggest the
prudence of construing these two phrases as a compromise between
the interests of public agencies and their employees. For an
exposition of such, see Justice Thomas’s discussion in Christensen
v. Harris County, 529 U.S. 576, 578–580, 120 S.Ct. 1655 (2000).
See also Moreau v. Klevenhagen, 508 U.S. 22, 25–28, 113 S.Ct. 1905
(1993).
10
might have worded subparagraph (B) to refer to an employee “who has
requested with reasonable advance notice the use of such
compensatory time,” while eliminating the “reasonable period”
language from the latter part of the sentence. Congress might
alternatively have substituted “as requested” for “within a
reasonable period” after making the request. That Congress did not
forthrightly choose such obvious means to describe employee rights
undermines the Union’s interpretation.
For all these reasons, we conclude that the statute does
not require a public employer to authorize comp-time use as
specifically requested by an employee (subject to the undue
disruption clause), but instead requires that the comp time be
permitted within a reasonable period after the employee requests
its use. Although this conclusion ends the analysis for Chevron
purposes, it is useful to address the errors in the Union’s
reliance on DOL interpretations referenced above.
First, the regulation implementing section 207(o)(5),
supra n.2, simply does not address whether the statute mandates an
employee’s specifically requested dates for comp time. The
regulation highlights that actual disruption, rather than “mere
inconvenience,” be caused to the agency as a justification for
denying comp-time use, but it neither addresses case-specific
determinations nor prohibits an agency from determining, as HPD has
done, that an absentee rate exceeding ten percent of a unit’s staff
11
actually jeopardizes the department’s ability to protect the
citizens of Houston.6 While the regulation would be entitled to
Chevron deference if it spoke to the issue at hand, and if the
statute were ambiguous, that case is not before us. See
Christensen, 529 U.S. at 587–88, 120 S.Ct. at 1663.
The Union’s additional administrative crutches include
the DOL’s 1994 Opinion Letter, supra n.3, and its Amicus Brief
filed in federal district court litigation, supra n.4. Contrary to
the Union’s view, we are not obliged to defer to these
interpretations of section 207(o)(5) under Auer v. Robbins, 519
U.S. 452, 117 S.Ct. 905 (1997), as that case concerns judicial
deference to administrative interpretations of the agency’s own
ambiguous regulations. Auer, 519 at 461, 117 S.Ct. 911; see also
Christensen, 529 U.S. at 588, 120 S.Ct. at 1662 (referring to “Auer
deference”); Moore v. Hannon Food Service, Inc., 317 F.3d 489 (5th
Cir. 2003).7 Nor is it clear, after United States v. Mead Corp.,
533 U.S. 218, 121 S.Ct. 2164 (2001), whether these pronouncements
6
We emphasize, moreover, that the Red Book limits were in
practice ameliorated by an appeals process. See infra n.9.
7
The City’s reliance on Christensen wholly to forestall our
deferring to these authorities is equally misplaced. See Barnhart
v. Walton, 535 U.S. 212, 220–22, 122 S.Ct. 1265, 1271-
72(emphasizing that agency interpretations reached through less
formal means than notice and comment rulemaking are not
“automatically deprive[d]” of Chevron deference, and “[i]f this
Court’s opinion in Christensen, suggested an absolute rule to the
contrary, our later opinion in [Mead] denied the suggestion”
(citations omitted)).
12
are sufficiently authoritative to merit Chevron deference. That
knotty issue may be pretermitted, however, because neither the
Opinion Letter nor the Amicus Brief persuades us that our
construction of section 207(o)(5) is wrong or that the provision is
ambiguous, as would be required for Chevron deference.
The Union also relies on court opinions that have
perceived ambiguity in section 207(o)(5), most notably a district
court in DeBraska v. City of Milwaukee, 131 F. Supp.2d 1032 (E.D.
Wisc. 2000), but also Judge Ryan’s dissent from a Sixth Circuit
opinion in Aiken v. City of Memphis, 190 F.3d 753 (6th Cir. 1999).
These cases fail to advance the Union’s argument, not only because
they are not legally binding, but also because they do not address
the threshold issue of statutory ambiguity.8
II. Application of Section 207(o)(5)
8
In DeBraska, the most the court provides in defense of its
conclusory assertion that “[t]he language of the statute is
somewhat ambiguous” is its ex post facto judgment that “the statute
could have been better written to reflect either one of the
competing interpretations.” 131 F. Supp.2d at 1034. Nor does
Judge Ryan’s dissent, despite a thoughtful discussion of the
application of the DOL Regulations to the case before that court,
give the slightest consideration to the question of the statute’s
ambiguity. Finally, the Union cites three other cases in which
federal district courts found the statute to be ambiguous. Meyer
v. Raleigh, 5:99 CV 324 BO(3) (E.D.N.C. Aug. 10, 2001); Long Beach
Police Ass’n v. Luman, CV 99-13090 FMC (JMJX) (C.D. Cal. May 10,
2001); Canney v. Brookline, 2000 U.S. Dist. 16279 (D. Mass. October
19, 2000). The Union did not provide copies of these difficult-to-
access decisions, and they are district court cases, from other
circuits, that do not bind us.
13
The Union also attempted to adduce sufficient summary
judgment evidence to suggest that, under the HPD’s “Red Book”
system, complainant police officers were unable to use their
accrued comp time within a “reasonable period after making the
request.” After a careful review of the record, this court
concludes, as did the district court, that the Union has failed to
create a genuine issue of material fact on the HPD’s alleged
misapplication of section 207(o)(5).
The principal evidence to which the Union points consists
of the following: (1) the deposition of Joe L. Breshears (HPD
Executive Assistant Chief); (2) HPD General Order 300-07, September
18, 1995; (3) the data and testimony of Dr. P.R. Jeanneret (HPD
expert witness); and (4) the memorandum of G.S. Stewart (Assistant
Chief, South Patrol Unit, HPD). These documents do not, either
individually or collectively, present any evidence whatsoever that
the HPD’s Red Book system prevented the city’s police officers from
using accrued comp time within a “reasonable period after making
the request.” The most that can be found here is some slight
evidence of the fact that certain forms of police work,
particularly patrol duty, are ill-suited to the removal and
substitution of non-fungible officers.
To review the evidence briefly: In the deposition
testimony of Chief Breshears can be found a detailed description of
the manner in which the Red Book policy was formulated and
14
administered; in General Order 300-07 there is a formal policy
statement of the same; and in Chief Stewart’s memorandum are the
results of a poll saying, once again, that comp time could be taken
on a first-come, first-served basis. The sharpest version of all,
of course, is the information provided by Dr. Jeanneret, as his
data and testimony were prepared by the HPD in response to this
suit. In none of these reports is there the slightest hint that
the Red Book system, either in theory or practice, violated the
FLSA as interpreted above.9
Nonetheless, one of the Union’s points calls for a more
substantial response. This is that officers on patrol duty had
experienced rather more substantial delays in their ability to
consume their accrued comp time.
The report prepared by Dr. P.R. Jeanneret concluded with
the following statement: “For the most part, an employee who is
eligible for compensatory time off is able to obtain approval for
a specific time period requested without difficulty.” Dr.
Jeanneret goes on, however, to note an exception to this general
rule:
9
Even more surprising, the summary judgment evidence in this
case also fails to sustain the Union’s own interpretation of the
FLSA. In Chief Breshears’ testimony and Dr. Jeanneret’s report
there is a strong suggestion that the HPD did a more-than-adequate
job of responding, via an informal appeals system, to officers’
individual requests to override the Red Book’s theoretically
mandatory ten percent absentee quota.
15
The exception to this conclusion occurs in Patrol and
especially those divisions that have a high volume of
calls for service. The divisions with high volumes of
service calls where operations have been using below
minimum staffing levels presented circumstances when not
everyone might be able to obtain the specific
compensatory time off they had requested. These
relatively limited circumstances arise when the red book
slots are filled and when making exceptions would present
the division with safety concerns and unacceptable
increases in response time to calls for service.
While the Union does not appear to dispute Dr. Jeanneret’s basic
conclusion, it argues that his qualification of the general rule is
significantly understated. What he fails to mention, the Union
argues, is that, of the over 5000 police officers in the HPD,
approximately 40% work in patrol. The exception thus swallows the
rule.
The Union’s clarification does not suffice to create a
fact issue concerning HPD’s violation of section 207(o)(5). First,
the proposition to which this factum constitutes an exception is
not an exception to the assertion that Houston police officers were
unable to take compensatory time “within a reasonable period after
making the request.” It is apposite, rather, to the proposition
that officers are “able to obtain approval for a specific time
period requested without difficulty.” As has been discussed, the
FLSA does not grant such a right. The HPD’s denial of such an
option to patrol officers cannot, therefore, be actionable.
We also note, moreover, that this exception would be void
of legal significance even if the Union’s reading of the FLSA were
16
correct. This is so because requiring comp-time usage-on-demand
would, as Dr. Jeanneret’s uncontroverted analysis concludes,
“unduly disrupt” the operations of the HPD. As he said:
Such understaffing would severely impact the operational
efficiency and effectiveness of HPD and undermine the
Department’s continued efforts to provide the required
levels of service within the budget allocations provided
in the City of Houston.
In other words, local neighborhoods could be seriously adversely
affected when too many regular duty officers are off work. The
FLSA requires, generally, that officers be allowed to take comp
time within reasonable periods after making their requests. The
burden that this statute places upon public employers is waived,
however, in those circumstances where compliance would “unduly
disrupt the operations of the public agency.” This balance
represents the statutory compromise between the interests of public
agencies and their employees. Without adequate evidence placing
Dr. Jeanneret’s conclusion of undue disruption into dispute, this
court must conclude, as did the district court, that the Union has
no claim cognizable under section 207(o)(5).
CONCLUSION
The clearly articulated details of section 207 of the
FLSA strike a balance between the employee’s right to use comp time
promptly and the public agency’s need to avoid disruption, a
balance expressed with sufficient clarity to resolve the
17
interpretive dispute before us. Moreover, the Union’s summary
judgment evidence is insufficient to create a fact issue over HPD’s
alleged misapplication of section 207(o)(5). This court
accordingly affirms the district court’s grant of summary judgment
to the City.
Judgment AFFIRMED.
18