United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL HORVATH, INDIVIDUALLY, AND ON
BEHALF OF THE CLASSES OF FEDERAL SECRET
SERVICE AGENTS SIMILARLY SITUATED TO
HIM,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1801
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00688-LKG, Judge Lydia Kay
Griggsby.
______________________
Decided: July 20, 2018
______________________
NICHOLAS WIECZOREK, Clark Hill PLLC, Las Vegas,
NV, argued for plaintiff-appellant. Also represented by
DAVID JAMES VENDLER, Law Offices of David J. Vendler,
San Marino, CA.
SOSUN BAE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
2 HORVATH v. UNITED STATES
by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., CLAUDIA
BURKE.
______________________
Before DYK, CHEN, and STOLL, Circuit Judges.
DYK, Circuit Judge.
Michael Horvath brought this putative class-action
lawsuit in the Court of Federal Claims (“Claims Court”)
seeking overtime and related compensation on behalf of
himself and similarly situated special agents of the U.S.
Secret Service. Among his theories of recovery, Mr.
Horvath asserted that regulations promulgated by the
Office of Personnel Management (“OPM”) improperly
required that certain overtime hours be worked consecu-
tively in order to trigger compensation. See 5 C.F.R.
§§ 550.111(f)(2)(ii), 550.182(b)(2). Because we find that
those challenged regulations are contrary to the unam-
biguous meaning of the relevant statute, we reverse in
part the Claims Court’s dismissal of Mr. Horvath’s com-
plaint and remand for further proceedings. We affirm in
all other respects.
BACKGROUND
Mr. Horvath has been employed as a special agent of
the Secret Service since 2010. As such, he is a law-
enforcement officer entitled to certain enhancements to
his pay to compensate for his availability and overtime
hours.
First, Mr. Horvath receives a 25% enhancement to his
base salary under a provision known as Law Enforcement
Availability Pay or “LEAP.” See 5 U.S.C. § 5545a(h)(1).
The LEAP statute “provide[s] premium pay to criminal
investigators to ensure the availability of criminal inves-
tigators for unscheduled duty in excess of a 40 hour work
week based on the needs of the employing agency.” Id.
§ 5545a(b). There is no dispute that Mr. Horvath is a
HORVATH v. UNITED STATES 3
criminal investigator within the meaning of the LEAP
statute, that he otherwise meets its eligibility require-
ments, and that he has accordingly been receiving LEAP
pay.
Second, Mr. Horvath is additionally entitled to over-
time compensation for some––but not all––of the overtime
hours he works. For employees receiving LEAP pay, the
overtime-pay statute makes an important distinction
between unscheduled overtime and scheduled overtime
(i.e., “overtime work which is scheduled in advance of the
administrative workweek”). Id. § 5542(d)(1). For sched-
uled overtime, those employees are compensated for work
which is:
(A) in excess of 10 hours on a day during such in-
vestigator’s basic 40 hour workweek; or
(B) on a day outside such investigator’s basic 40
hour workweek . . . .
Id. All other overtime––scheduled or unscheduled––is
considered to be compensated by the LEAP pay enhance-
ment rather than by additional hourly wages. Id.
§ 5542(d)(2).
However, there is an exception when performing cer-
tain duties, including the protective services performed by
the Secret Service. Id. § 5542(e). For that kind of work,
employees are compensated for all scheduled overtime,
notwithstanding subsection (d)(1)’s limitations, “if the
investigator performs, on that same day, at least 2 hours
of overtime work not scheduled in advance of the adminis-
trative workweek.” Id. OPM has promulgated regula-
tions substantially restating this exception but adding one
relevant detail: the exception applies only if “[t]he inves-
tigator performs on that same day at least 2 consecutive
hours of overtime work that are not scheduled in advance
of the administrative workweek and are compensated by
availability pay.” 5 C.F.R. § 550.111(f)(2)(ii) (emphasis
4 HORVATH v. UNITED STATES
added); accord id. § 550.182(b)(2) (providing an exception
if “the investigator performs 2 or more consecutive hours
of unscheduled overtime work on that same day”).
Mr. Horvath filed suit in the Claims Court on June
10, 2016, claiming that he is entitled to back pay on a
variety of theories. The government moved to dismiss for
want of subject-matter jurisdiction and for failure to state
a claim. See RCFC 12(b)(1), (6). The Claims Court found
that it lacked jurisdiction to consider some of Mr.
Horvath’s claims and that others, over which it had
jurisdiction, failed to state a claim. Horvath v. United
States, 130 Fed. Cl. 273, 281–86 (2017).
Mr. Horvath timely appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo the Claims Court’s dismissal both
for want of subject-matter jurisdiction and for failure to
state a claim. E.g., Abbas v. United States, 842 F.3d 1371,
1375 (Fed. Cir. 2016).
I
We agree that dismissal was proper with respect to
three of Mr. Horvath’s four asserted claims.
First, Mr. Horvath alleged that the government im-
plemented a so-called flexing policy, pursuant to which
agents were required to substitute their regularly sched-
uled work days with days originally scheduled to be off,
without additional compensation. The Claims Court
determined it lacked subject-matter jurisdiction over this
claim for want of a money-mandating statute. Horvath,
130 Fed. Cl. at 284. In particular, the Claims Court found
that Mr. Horvath’s complaint stated at most a violation of
5 U.S.C. § 6101, which sets forth the basic federal work-
week. Id. We agree with the Claims Court. As we have
since held in Adams, § 6101 is not money-mandating and
HORVATH v. UNITED STATES 5
cannot support jurisdiction over a claim against the
flexing policy. Adams v. United States, 860 F.3d 1379,
1380 (Fed. Cir. 2017). Like the employees in Adams, Mr.
Horvath was not entitled to regular pay for hours not
worked on the midweek flex day, nor was he entitled to
overtime pay for the regular hours worked on the re-
scheduled day. Id. 1
Second, and relatedly, Mr. Horvath contends that
when forced to work a flex day, he was granted a day off
that could only be taken within the same pay period, in
violation of regulations that allowed compensatory time
off to be used for up to 26 pay periods. The Claims Court
regarded this as a claim brought under 5 U.S.C. § 5543,
which provides for compensatory time off, and determined
that because § 5543 is discretionary, it is not money-
mandating and could not confer jurisdiction. Horvath,
130 Fed. Cl. at 284–85. We agree: to the extent Mr.
Horvath was even eligible for compensatory time off,
§ 5543 uses wholly discretionary language and is not
money-mandating.
Finally, Mr. Horvath contends that he was improperly
denied overtime compensation for two of the 12 hours he
worked on the typical working day. Under this so-called
8-2-2 policy, agents are paid at regular rates for the first
eight hours, are compensated by LEAP pay for the next
two hours, and are paid at overtime rates for the final two
hours. While Mr. Horvath claims that he was improperly
denied overtime compensation for all the hours worked in
1 As Mr. Horvath concedes, the regulation on which
he additionally relies, 5 C.F.R. § 610.121, cannot support
Claims Court jurisdiction, see United States v. Connolly,
716 F.2d 882, 885 (Fed. Cir. 1983) (en banc) (observing
that 28 U.S.C. § 1491(a)(1) jurisdiction may be predicated
on regulations only if promulgated by an executive de-
partment).
6 HORVATH v. UNITED STATES
excess of eight, this is precisely how the statute is written.
The statute directs overtime compensation for scheduled
work “in excess of 10 hours.” 5 U.S.C. § 5542(d)(1)(A).
And the statute provides that “investigator[s] shall be
compensated for all other overtime work” by LEAP pay.
Id. § 5542(d)(2). Given the plain language of the statute,
the Claims Court properly found that Mr. Horvath had
failed to state a plausible claim for relief under the 8-2-2
policy. Horvath, 130 Fed. Cl. at 283–84. Mr. Horvath’s
resort to the legislative history, which itself is inconclu-
sive, cannot overcome the clear language of the statute.
See, e.g., Res-Care, Inc. v. United States, 735 F.3d 1384,
1389 (Fed. Cir. 2013).
II
Mr. Horvath’s final claim is that OPM’s consecutive-
hours requirement is contrary to the plain meaning of
5 U.S.C. § 5542(e), which he argues is triggered by any
two hours of unscheduled overtime, whether consecutive
or not. OPM regulations state that compensation under
§ 5542(e) is triggered only if “[t]he investigator performs
on that same day at least 2 consecutive hours of overtime
work that are not scheduled in advance of the administra-
tive workweek and are compensated by availability pay.”
5 C.F.R. § 550.111(f)(2)(ii) (emphasis added); accord id.
§ 550.182(b)(2). When OPM promulgated its regulations,
it made no comment on the consecutive-hours require-
ment and provided no reasoning. See Pay Administration;
Premium Pay, 64 Fed. Reg. 4517, 4517–19 (Jan. 29, 1999).
The government argues that “the statute is silent as
to how the two hours should be calculated” and that
OPM’s regulations are a reasonable interpretation of the
statute. Appellee Br. 17. The Claims Court agreed with
the government, finding the statute silent on the matter
and affording Chevron deference to the regulations.
Horvath, 130 Fed. Cl. at 282–83.
HORVATH v. UNITED STATES 7
We review Mr. Horvath’s challenge to OPM’s inter-
pretation of the statute under the two-step analysis
announced in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842–45 (1984). First,
we ask “whether Congress has directly spoken to the
precise question at issue,” id. at 842; if so, we “must give
effect to the unambiguously expressed intent of Con-
gress,” id. at 843. If, however, “the statute is silent or
ambiguous with respect to the specific issue,” we ask
whether the agency’s interpretation “is based on a per-
missible construction of the statute.” Id.
Thus, at the first step, the question is whether
§ 5542(e) is ambiguous or silent with respect to whether
the required two hours must be consecutive. We agree
with the government that looking at the text of the stat-
ute in isolation, it is silent in this respect. But “this does
not lead us immediately to step two”: instead, “we must
first use all ‘traditional tools of statutory construction’ to
determine whether ‘Congress had an intention on the
precise question at issue’ before we consider deference to
an agency interpretation.” Candle Corp. of Am. v. U.S.
Int’l Trade Comm’n, 374 F.3d 1087, 1093 (Fed. Cir. 2004)
(quoting Chevron, 467 U.S. at 843 n.9); accord Gen. Dy-
namics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004)
(“Even for an agency able to claim all the authority possi-
ble under Chevron, deference to its statutory interpreta-
tion is called for only when the devices of judicial
construction have been tried and found to yield no clear
sense of congressional intent.”); Star-Glo Assocs., LP v.
United States, 414 F.3d 1349, 1356 (Fed. Cir. 2005).
While the text of § 5542(e) is silent, the rest of § 5542
suggests that the consecutive-hours requirement is not
appropriate. When the statute refers to periods of hours,
it consistently does so in a manner that clearly refers to a
cumulative tally of hours, which are not always consecu-
tive. See, e.g., 5 U.S.C. § 5542(a) (referring to overtime as
“hours of work . . . in excess of 40 hours in an administra-
8 HORVATH v. UNITED STATES
tive workweek”); id. § 5542(f)(1) (applying overtime rates
to hours ordered or approved for firefighters “in excess of
106 hours in a biweekly pay period”); id. § 5542(g)(1)(A)
(defining overtime for some border-patrol agents as “hours
of work in excess of 100 hours during a 14-day biweekly
pay period”); id. § 5542(g)(5)(A) (capping compensatory
time off for border-patrol agents at “240 hours . . . during
a leave year”). Importing the additional requirement that
the hours be consecutive here “stretches, and in our view,
distorts” the plain meaning of the statute. Wetzler v. Fed.
Deposit Ins. Corp. ex rel. Seamen’s Bank for Sav. F.S.B.,
38 F.3d 69, 74 (2d Cir. 1994).
Moreover, the consecutive-hours requirement is not
consistent with the history and purpose of the statute.
The LEAP statute was enacted in 1994 without the sub-
section (e) exception to the general rule that no additional
hourly compensation is paid for the first two hours of
scheduled overtime work performed by LEAP-
compensated employees. See Law Enforcement Availabil-
ity Pay Act of 1994, Pub. L. No. 103-329, sec. 633(c),
§ 5542(d), 108 Stat. 2425, 2426–27. One year later,
Congress added subsection (e) as part of a larger package
of appropriations. See Treasury, Postal Service, and
General Government Appropriations Act, 1996, Pub. L.
No. 104-52, sec. 531, § 5542(e), 109 Stat. 468, 496. This
sequence of enactments indicates that subsection (e) was
added to benefit investigators (including Secret Service
agents) by increasing their pay for certain especially
sensitive or demanding duties.
This aligns with the statute’s purpose, as evidenced
by the interplay between subsections (d) and (e). Subsec-
tion (d) provides that the first two hours of scheduled
overtime are compensated by LEAP pay, but subsection
(e) overrides that rule when an investigator also works
two hours of unscheduled overtime. This is because, for
those days, Congress concluded that the LEAP pay covers
only two of the four hours in question (the unscheduled
HORVATH v. UNITED STATES 9
overtime), leaving the scheduled overtime uncompen-
sated. This history and purpose suggest to us that it was
Congress’s clear intent for the subsection (e) benefit to be
triggered by any two hours of unscheduled overtime,
without regard to whether they were performed consecu-
tively.
At oral argument, the government for the first time
asserted that the approach of the OPM regulation serves
the statutory purpose of discouraging overtime abuse. See
Oral Arg. 14:34–25:15. But the government has identified
nothing in the structure, purpose, or history of the statute
that suggests its purpose is abuse deterrence. And the
government has offered no logical nexus between abuse
and whether overtime hours are worked consecutively.
See id. at 16:11–18:35.
At Chevron’s step one, using the traditional tools of
statutory construction, we find that § 5542(e) unambigu-
ously applies without regard to whether the two hours of
unscheduled overtime are consecutive. We therefore need
not reach step two. 2 With this understanding, we con-
clude that the Claims Court erred in dismissing Mr.
Horvath’s complaint for failure to state a claim concerning
§ 5542(e).
CONCLUSION
With respect to Mr. Horvath’s claim for overtime
compensation denied under OPM’s consecutive-hours
requirement, we reverse the Claims Court’s dismissal and
remand for further proceedings. On remand, the Claims
2 This is therefore not a case like Doe, in which we
proceeded to step two in the face of statutory silence
because “[t]here [wa]s no suggestion . . . that this ambigu-
ity may be resolved by resort to . . . legislative history or
by other traditional tools of statutory construction.” Doe
v. United States, 372 F.3d 1347, 1359 (Fed. Cir. 2004).
10 HORVATH v. UNITED STATES
Court should consider whether class certification is ap-
propriate in this action. See RCFC 23. As to the remain-
ing claims, we affirm the dismissal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
COSTS
Costs to Mr. Horvath.