Authority to Permit Part-Time Employees to Work Regularly Scheduled Workweeks of 33 to 39 Hours ( 2015 )

Authority to Permit Part-Time Employees to Work
Regularly Scheduled Workweeks of 33 to 39 Hours
The statutes governing federal employment permit federal agencies to schedule part-time employees to
work regularly scheduled workweeks of 33 to 39 hours.
The Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies’
preexisting authority to schedule part-time employees to work any number of hours per week less
than 40.
December 31, 2015
MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY ASSISTANT
ATTORNEY GENERAL, CIVIL RIGHTS DIVISION
The Civil Rights Division (“CRT”) has asked whether federal agencies may
permit their part-time employees to work regularly scheduled workweeks of 33 to
39 hours.1 In CRT’s view, such arrangements are lawful because the statutes
governing federal employment grant agencies broad authority to set their employ-
ees’ schedules and no statute prohibits part-time schedules of 33 to 39 hours per
week.2 The Office of Personnel Management (“OPM”) disagrees. It observes that
the Federal Employees Part-Time Career Employment Act of 1978, Pub. L. No.
95-437, 92 Stat. 1055 (codified as amended at 5 U.S.C. §§ 3401 et seq.) (the
“Act”), defines “part-time career employment” for purposes of the Act as “part-
time employment of 16 to 32 hours a week.” 5 U.S.C. § 3401(2). OPM argues that
this provision sets forth the exclusive definition of part-time employment in the
federal government and, as a result, bars part-time employees from working
regular schedules of 33 to 39 hours per week.3
1
See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from
Jocelyn Samuels, Acting Assistant Attorney General, CRT, Re: Request for Legal Opinion (Nov. 6,
2013) (“CRT Memorandum”).
2
See id.; Memorandum for Karl Thompson, Acting Assistant Attorney General, Office of Legal
Counsel, from Office of Employment Counsel, CRT, Re: Response to OPM Comments on Whether
Agencies May Permit Employees to Work Part-Time Schedules of 33 to 39 Hours Per Week (Mar. 25,
2014) (“CRT Reply”).
3
See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal Counsel, from
R. Alan Miller, Associate General Counsel, OPM, Re: Request for OPM Comments re Issue of Whether
Agencies May Permit Employees to Work Part-Time Schedules of 33 to 39 Hours Per Week (Dec. 31,
2013) (“OPM Memorandum”); E-mail for Leondra R. Kruger, Deputy Assistant Attorney General,
Office of Legal Counsel, from Melanie J. Watson, OPM, Re: Solicitation of views on reduced
scheduling issue, att. (Feb. 18, 2014 11:17 AM) (attachment referred to as “OPM Reply”); E-mail for
Brian Boynton, Deputy Assistant Attorney General, Office of Legal Counsel, from Melanie J. Watson,
OPM, Re: OLC Part-Time Government Employment Opinion: Follow-Up Questions (July 22, 2015
1:50 PM).
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Opinions of the Office of Legal Counsel in Volume 39
We conclude that the statutes governing federal employment permit regular
part-time schedules of 33 to 39 hours per week. Before the enactment of the Act in
October 1978, federal employment statutes permitted agencies to schedule part-
time employees to work any number of hours per week less than 40, and in our
view the Act did not alter that authority. The text of the Act does not prohibit any
form of part-time employment, and the Act’s purpose, structure, legislative
history, and statutory context do not provide a basis to infer such a prohibition.
In reaching this conclusion, we do not address whether OPM has authority,
independent of the Act, to prohibit agencies from offering part-time employment
of more than 32 hours per week or whether agencies may as a policy matter elect
to require their components not to offer such employment. Nor do we address
what administrative steps, if any, CRT would need to undertake before scheduling
part-time employees to work regular schedules of more than 32 hours per week.
I.
We begin with the relevant statutory and regulatory background: the statutes
that governed part-time employment before enactment of the Act in 1978, the
provisions of the Act, and subsequent regulatory action relating to the Act.
A.
For many decades, agencies have been authorized to “employ such number of
employees . . . as Congress may appropriate for from year to year.” 5 U.S.C.
§ 3101 (Supp. II 1966); see 5 U.S.C. § 43 (1934) (“There is authorized to be
employed in each executive department . . . such number of employees . . . as may
be appropriated for by Congress from year to year.”). Since the enactment of the
Federal Employees Pay Act of 1945, Pub. L. No. 79-106, 59 Stat. 295, Congress
has required agencies “to establish . . . for all full-time officers and employees . . .
a basic administrative workweek of forty hours.” Id. § 604(a) (codified as
amended at 5 U.S.C. § 6101(a)(2)(A)). But Congress has long made clear that
agencies are not limited to hiring only full-time employees. It has enacted
numerous statutes that set forth rules governing part-time employees who may
work less than the standard 40-hour schedule.
One of the first statutes to address part-time federal employment was the 1945
Pay Act itself. In addition to establishing the basic 40-hour workweek, that statute
instructed the Director of the Bureau of the Budget to “determine the numbers of
full-time employees and man-months of part-time employment, which in his
opinion are required” for “the proper and efficient performance” of each agency’s
authorized functions, and to order agencies to release or terminate “any personnel
or employment . . . in excess thereof.” Id. § 607(b). Hence, at the same time that
Congress codified the 40-hour workweek for full-time employees, it also
acknowledged the existence of “part-time employment” and permitted agencies to
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Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
retain part-time personnel so long as they were not “in excess” of administrative
personnel ceilings.
In the decades that followed, Congress enacted additional statutes addressing
part-time federal employment. For instance, in 1949, after discovering that “the
estimated 10,000 part-time [federal] employees” working regular 5-day schedules
were ineligible for sick and annual leave, H.R. Rep. No. 81-655, at 1, 5 (1949),
Congress enacted a statute providing that “part-time officers and employees for
whom there has been established a regular tour of duty covering not less than five
days in any administrative workweek shall . . . be entitled to the benefits pro rata
of the annual and sick leave Acts.” Act of Oct. 5, 1949, Pub. L. No. 81-316, § 1,
63 Stat. 703, 703 (codified as amended at 5 U.S.C. § 6302(c)). In 1964, Congress
enacted the Dual Compensation Act, Pub. L. No. 88-448, 78 Stat. 484 (1964),
which provided that federal employees could work in “more than one civilian
office”—including more than one “temporary, part-time, or intermittent posi-
tion”—for up to “an aggregate of forty hours of work in any one calendar week.”
Id. §§ 101(3), 301(a) (codified as amended at 5 U.S.C. §§ 5531(a)(2), 5533(a));
see S. Rep. No. 88-935, at 17 (1964) (explaining that this statute would enable
“part-time employees” to hold “a combination of part-time positions equaling one
full-time position”). In 1971, seeing “no reasonable justification for depriving
part-time and intermittent salaried employees of premium pay,” S. Rep. No. 92-
530, at 1–2 (1971), Congress made overtime pay available for federal employees
working “full-time, part-time and intermittent tours of duty.” Act of Dec. 15,
1971, Pub. L. No. 92-194, 85 Stat. 648 (codified as amended at 5 U.S.C.
§ 5542(a)). And in September 1978, Congress enacted the Federal Employees
Flexible and Compressed Work Schedules Act of 1978, Pub. L. No. 95-390, 92
Stat. 755, which authorized agencies to conduct three-year experiments “to test
a . . . compressed schedule,” defined “in the case of a part-time employee” as a
“biweekly basic work requirement of less than 80 hours which is scheduled for
less than 10 workdays.” Id. §§ 201(1)(B), 202(a), (d).4
The Civil Service Commission—the agency charged with administering the
federal personnel laws until the establishment of OPM in 1978—also acknowl-
edged agencies’ authority to hire part-time employees. In 1954, for instance, the
Commission promulgated regulations defining a “[r]egularly scheduled adminis-
trative workweek . . . [f]or part-time employees” to mean “the officially prescribed
days and hours within an administrative workweek during which such employees
are required to be on duty regularly.” 19 Fed. Reg. 7097, 7097 (Nov. 2, 1954).
4
See also Act of Sept. 3, 1976, Pub. L. No. 94-397, § 1(a), 90 Stat. 1202, 1202 (codified as amend-
ed at 5 U.S.C. § 8344(a)) (prescribing the civil service annuities available to employees working “on a
part-time basis”); Classification Act of 1949, Pub. L. No. 81-429, § 202(30), 63 Stat. 954, 956
(codified as amended at 5 U.S.C. § 5102(c)(21)) (exempting some part-time employees from the pay
classification system).
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Opinions of the Office of Legal Counsel in Volume 39
And in 1971, the Commission issued a version of its Federal Personnel Manual
that defined a “part-time employee” for purposes of administrative personnel
ceilings as an employee “who works less than 40 hours a week.” Federal Person-
nel Manual, ch. 312, app. B, § B-2(d) (Apr. 30, 1971).
B.
In October 1978, Congress enacted the Federal Employees Part-Time Career
Employment Act. At that time, Congress was aware that part-time employment
existed throughout the federal government. See H.R. Rep. No. 95-932, at 2–3
(1978) (noting that “1.9 percent of all nonpostal Federal employees work part
time” and listing percentages of employees working part-time in numerous federal
agencies); S. Rep. No. 95-1116, at 3–4 (1978) (stating that “2.3 percent of the
Federal work force were permanent part-time employees” in 1977). But commit-
tees in both houses expressed concern that “[t]he Federal Government ha[d]
lagged far behind the private sphere in providing and improving part-time
employment opportunities of any type.” S. Rep. No. 95-1116, at 3; see H.R. Rep.
No. 95-932, at 2. “The major obstacle[s] to part-time Federal employment,” the
committees found, were “agency personnel ceilings set by the Office of Manage-
ment and Budget,” under which a part-time employee occupied one of the limited
number of positions allotted to each agency “whether the employee work[ed] two
or 39 hours.” H.R. Rep. No. 95-932, at 3; see S. Rep. No. 95-1116, at 9. As a
consequence of this system, the committees concluded, agencies had a tendency
“to hire 39 hour per week ‘part timers,’” rather than “truly part-time employees,”
H.R. Rep. No. 95-932, at 4, 7, and “in all likelihood employees falling into th[e]
35- to 39-hour a week category made up the vast majority of the new people hired
to work part-time in the past year,” S. Rep. No. 95-1116, at 10.
The Act was designed to address these problems. Its stated “purpose” is “to
provide increased part-time career employment opportunities throughout the
Federal Government.” Act § 2(b). It defines the term “part-time career employ-
ment” as follows:
For the purpose of this chapter . . . ‘part-time career employment’
means part-time employment of 16 to 32 hours a week (or 32 to 64
hours during a biweekly pay period in the case of a flexible or com-
pressed work schedule under subchapter II of chapter 61 of this title)
under a schedule consisting of an equal or varied number of hours
per day, whether in a position which would be part-time without re-
gard to this section or one established to allow job-sharing or compa-
rable arrangements, but does not include employment on a tempo-
rary or intermittent basis.
5 U.S.C. § 3401(2).
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Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
To further its stated purpose, the Act requires the head of each agency to “es-
tablish and maintain a program for part-time career employment.” Id.§ 3402(a)(1). Such a program must include, among other things, “procedures and
criteria to be used in connection with establishing or converting positions for part-
time career employment,” “annual goals for establishing or converting positions
for part-time career employment,” and “interim and final deadlines for achieving
such goals.” Id. § 3402(a)(1)(B), (C). The Act also includes several provisions to
protect existing employees from any negative consequences of such programs. It
prohibits an agency from “abolish[ing] any position occupied by an employee in
order to make the duties of such position available to be performed on a part-time
career employment basis,” id. § 3403(a); states that “[a]ny person who is em-
ployed on a full-time basis in an agency shall not be required to accept part-time
employment as a condition of continued employment,” id. § 3403(b); and makes
its provisions inapplicable to positions for which, “on the date of [the Act’s]
enactment . . . there is in effect . . . a collective-bargaining agreement which
establishes the number of hours of employment a week,” id. § 3405(a); see also id.
§ 3405(b) (stating that the Act does not apply to certain senior-level positions).
The Act also addresses the application of personnel ceilings to part-time career
employees. It provides that “[i]n administering any personnel ceiling applicable to
an agency (or unit therein), an employee employed by such agency on a part-time
career employment basis shall be counted as a fraction which is determined by
dividing 40 hours into the average number of hours of such employee’s regularly
scheduled workweek.” Id. § 3404. Thus, rather than counting each part-time
employee as one full employee for purposes of an agency’s personnel ceiling—the
practice that the Act’s drafters thought encouraged the hiring of “39 hour per week
‘part timers,’” H.R. Rep. No. 95-932, at 4—the Act “mandates the use of a ‘full-
time equivalent’ . . . accounting system” that counts each part-time career
employee as a fraction equivalent to the fraction of a full-time workweek he
works. S. Rep. No. 95-1116, at 9. A part-time career employee who “work[s] a
regularly scheduled workweek of 20 hours,” for example, now “count[s] as one-
half” of a full-time employee for purposes of an agency’s personnel ceiling. Id. at
17.
Finally, the Act includes “[m]iscellaneous provisions” concerning retirement,
life insurance, and health benefits. H.R. Rep. No. 95-932, at 12; S. Rep. No. 95-
1116, at 18. The Act states that the Civil Service Commission (later replaced by
OPM) may not exclude an employee who occupies “a position on a part-time
career employment basis” from receiving retirement, life insurance, or health
benefits. Act § 4(a)–(c)(1) (codified at 5 U.S.C. §§ 8347(g), 8716(b), 8913(b)). It
also specifies that government contributions for part-time career employees’
health insurance are to be prorated based on the number of hours worked per
week. Id. § 4(c)(2)(A) (codified as amended at 5 U.S.C. § 8906(b)(3)). Because
this proration requirement was a change from the government’s prior practice of
“contribut[ing] to [a part-time employee’s] health benefits the same amount as to
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Opinions of the Office of Legal Counsel in Volume 39
an employee working 40 hours a week,” S. Rep. No. 95-1116, at 12, Congress
provided that “any employee serving in a position on a part-time career employ-
ment basis on the date of the enactment of this Act” would continue to receive full
health benefits “for such period as the employee continues to serve without a
break in service in that or any other position on such part-time basis,” Act
§ 4(c)(2)(B).
C.
After the Act’s passage, OPM promulgated a set of regulations regarding part-
time career employment. See 44 Fed. Reg. 57,379 (Oct. 5, 1979). OPM made three
statements in the regulations’ preamble that are pertinent here. First, OPM
concluded that the Act prohibited agencies from “regularly employ[ing]” part-time
employees “under schedules of more than 32 hours per week.” Id. at 57,379. It
reasoned that “[a]lthough the major thrust of [the Act] was to expand Federal part-
time employment opportunities, Congress also evidenced clear intent to end the
practice of employing ‘nominal’ part-time employees in the 33- to 39-hour-per-
week range to skirt personnel ceilings.” Id. Second, OPM stated that this “prohibi-
tion” on part-time employment of more than 32 hours per week did “not apply to
employment of part-timers who were already working on a permanent part-time
basis before [April 8, 1979] for as long as they continue to work part time.” Id.
Third, OPM concluded that because “Congress did not explicitly evidence intent
to end the practice of employing career part-timers for less than 16 hours per week
in the same way that 33- to 39-hour-per-week employment was proscribed,”
agencies could “employ permanent workers under regular schedules of less than
16 hours per week.” Id. at 57,380; see also id. at 57,382 (adding 5 C.F.R.
§ 340.202(b)).
The Department of Justice’s Justice Management Division (“JMD”) has also
issued an order interpreting the Act. As relevant here, that order states that while
“a part-time employee” may work more than 32 hours per week on a temporary
basis, “[a] temporary increase in the tour of duty above 32 hours per week is not
permitted for more than two consecutive pay periods.” Part-Time Career Em-
ployment Program, Human Resources Order DOJ 1200.1, ch. 1-8.B.6 (Mar. 26,
2004), available at http://www.justice.gov/jmd/hr-order-doj12001-part-1-
employment. JMD has informed this Office that it, like OPM, “does not believe
there is authority to expand part time schedules to exceed 32 hours on an ongoing
basis.” E-mail for Leondra R. Kruger, Deputy Assistant Attorney General, Office
of Legal Counsel, from Arthur E. Gary, General Counsel, JMD, Re: Question
about part-time employment (Nov. 25, 2014 6:48 PM).
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Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
II.
Having set forth the relevant background, we now consider the legal question at
issue: Does federal law permit agencies to schedule their part-time employees to
work regular schedules of 33 to 39 hours per week? We first analyze the scope of
agencies’ authority to schedule part-time workers before the Act. We then address
the effect of the Act on prior law, considering at the outset the standard that
governs our inquiry and then evaluating the Act under that standard.
A.
We begin with the scope of agencies’ authority prior to the Act’s adoption.
Both OPM and CRT assert that before the Act became law, agencies had authority
both to hire part-time employees and to schedule them to work 33 to 39 hours per
week. See OPM Memorandum at 5 (“Prior to enactment of the Act, agencies could
employ individuals on a part-time work schedule of 33 to 39 hours per week.”);
CRT Reply at 1 (similar). We agree that agencies possessed both types of
authority.
First, before the Act, agencies possessed authority to hire part-time employees.
As noted above, for decades Congress had vested agencies with general authority
to “employ such number of employees . . . as Congress may appropriate for from
year to year,” 5 U.S.C. § 3101 (Supp. II 1966); see 5 U.S.C. § 43 (1934) (similar),
and in numerous statutes between 1945 and October 1978, Congress made clear
that the “employees” agencies could hire included part-time employees. For
example, Congress permitted agencies to employ “part-time employ[ees]” within
limits set by the Director of the Bureau of the Budget, Pub. L. No. 79-106,
§ 607(b); made “part-time officers and employees” eligible for annual and sick
leave, Pub. L. No. 81-316, § 1; permitted employees to work in more than one
“part-time . . . position” for up to an aggregate of 40 hours per week, Pub. L. No.
88-448, §§ 101(3), 301(a); extended overtime pay to employees working “part-
time . . . tours of duty,” Pub. L. No. 92-194; and allowed “part-time employee[s]”
to work compressed schedules, Pub. L. No. 95-390, § 201(1)(B). These statutes
were premised on the lawfulness of part-time employment across the federal
government. See, e.g., H.R. Rep. No. 81-655, at 2 (describing existing part-time
employees whom statute would benefit); S. Rep. No. 92-530, at 1–2 (same). It is
therefore straightforward to conclude from them that agencies possessed the
authority to hire part-time employees. See Tex. Dep’t of Hous. & Cmty. Affairs v.
Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (inferring that
“disparate-impact liability exists” under the Fair Housing Act from a series of
amendments “that assume the existence of disparate-impact claims”); Bilski v.
Kappos, 561 U.S. 593, 607 (2010) (inferring that business methods are patentable
from provisions that “explicitly contemplate[] the existence of at least some
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Opinions of the Office of Legal Counsel in Volume 39
business method patents” and that would be “render[ed] . . . meaningless” if those
patents were unlawful).
Congress again recognized agencies’ preexisting authority to hire part-time
employees when it enacted the Act. Several of the Act’s provisions refer to or
acknowledge part-time employees hired prior to the Act’s enactment. See Act
§ 4(c)(2)(B) (grandfathering health benefits for “any employee serving in a
position on a part-time career employment basis on the date of the enactment of
this Act”); id. § 2(b) (stating that the Act’s purpose is “to provide increased part-
time career employment opportunities throughout the Federal Government”
(emphasis added)); 5 U.S.C. § 3401(2) (referring to “position[s] which would be
part-time without regard to this section”). Moreover, Congress’s central concern in
enacting the Act was that agencies were hiring too few part-time employees. See
S. Rep. No. 95-1116, at 3–4, 8–10; H.R. Rep. No. 95-932, at 2–3, 8. Nothing in
the Act’s legislative history reveals any doubt about agencies’ authority to hire
part-time employees in the first place.
Second, prior to the Act, agencies also possessed authority to schedule part-
time employees to work any number of hours per week below 40. For full-time
employees, Congress set “a basic administrative workweek of 40 hours.” 5 U.S.C.
§ 6101(a)(2)(A) (1976). But Congress did not set a specific number of hours that
part-time employees were required to work. By implication, agencies could not
schedule part-time employees to work a full-time schedule of 40 hours per week.
See Webster’s Third New International Dictionary 1648 (1976) (defining “part-
time” to mean “employed for or working less than the amount of time considered
customary or standard”). Otherwise, however, agencies had unrestricted authority
to schedule part-time employees to work any number of hours per week below
40—including, if they chose, 33 to 39 hours. See 5 U.S.C. § 6101(b)(1) (Supp. II
1966) (recognizing the authority of agency heads to set employee schedules); 5
C.F.R. § 25.203(a)(2) (1961) (defining the “‘[r]egularly scheduled administrative
workweek’ . . . [f]or part-time employees” as “the officially prescribed days and
hours within an administrative workweek during which such employees are
required to be on duty regularly”); Federal Personnel Manual, ch. 312, app. B,
§ B-2(d) (Apr. 30, 1971) (defining a “part-time employee” as one “who works less
than 40 hours a week”); see also Pub. L. No. 95-390, § 201(1)(B) (defining a
compressed schedule for part-time employees as a “biweekly basic work require-
ment of less than 80 hours which is scheduled for less than 10 workdays”
(emphasis added)).
Congress has not repealed any of the major enactments discussed above. Ex-
cept for the provision of the 1945 Pay Act regarding personnel ceilings, all of the
statutes and regulations concerning part-time employment or granting agencies
employment or scheduling authority remain in effect. See 5 U.S.C. § 3101 (2012
& Supp. II 2014) (employment authority); id. §§ 5531(2), 5533(a) (dual compen-
sation); id. § 5542(a) (premium pay); id. § 6101(a)(3) (scheduling authority); id.
§ 6121(5)(B) (compressed schedules); id. § 6302(c) (annual and sick leave); 5
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Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
C.F.R. § 610.102 (2015) (part-time workweek); see also Act of Sept. 12, 1950,
Pub. L. No. 81-784, § 301(85), 64 Stat. 832, 843 (repealing statutory personnel
ceilings). Hence, unless Congress has enacted a statute limiting that authority,
agencies may continue to schedule part-time employees to work 33 to 39 hours per
week.
B.
We now consider the effect of the Federal Employees Part-Time Career Em-
ployment Act on the prior law governing part-time employment. In order to do so,
we must first identify the standard that will control our analysis. CRT and OPM
suggest different governing standards in support of their respective constructions
of the Act.
On one hand, CRT argues that the Act should not be construed to diminish
agencies’ authority to set part-time work schedules unless it clearly states that it
was intended to have that effect. See CRT Memorandum at 4. CRT relies on the
principle that “‘[r]epeals by implication . . . will not be found unless an intent to
repeal is clear and manifest.’” Id. (quoting Rodriguez v. United States, 480 U.S.
522, 524 (1987) (per curiam)); see United States v. Fausto, 484 U.S. 439, 453
(1988) (stating that “it can be strongly presumed that Congress will specifically
address language on the statute books that it wishes to change”). CRT contends
that any limitation of agencies’ scheduling authority would amount to a partial
repeal of chapter 61 of title 5 of the United States Code—the chapter granting
agencies general scheduling authority—and that the Act should therefore be
presumed not to impose such a limitation. CRT Memorandum at 4; see CRT Reply
at 1–2.
We do not agree that the presumption against implied repeals applies here.
Chapter 61 of title 5 does not expressly state that agencies have authority to
schedule part-time employees to work any number of hours per week below 40.
Rather, as relevant, it provides that the basic administrative workweek for full-
time employees is 40 hours, see 5 U.S.C. § 6101(a)(2)(A), and suggests that
agencies have authority to set different schedules for employees who are not full
time, see, e.g., id. § 6101(a)(3)(A) (requiring agencies to “provide, with respect to
each employee . . . that assignments to tours of duty are scheduled in advance”).
As discussed above, it is a fair implication that, in the absence of any other limit,
agencies may schedule part-time employees to work up to 39 hours per week. But
a statute “does not stand repealed” whenever its “implications . . . may be altered
by the implications of a later statute.” Fausto, 484 U.S. at 453. A repeal occurs—
and thus the presumption against repeals by implication is applicable—only where
a subsequent statute contradicts “express statutory text,” not “a legal disposition
implied by a statutory text.” Id. Consequently, we do not believe that the Act must
contain a clear statement in order to limit agencies’ preexisting authority to
schedule part-time employees.
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OPM, on the other hand, contends that its 1979 regulations interpreting the Act
to bar part-time schedules of more than 32 hours per week “merit deference.”
OPM Memorandum at 6. We presume that OPM is referring to the type of
deference described in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), which held that courts should defer to an “an
agency’s construction of the statute which it administers” where “the statute is
silent or ambiguous with respect to the specific issue” under review and the
agency’s construction is “permissible.” Id. at 842–43. Chevron deference,
however, is inapplicable in this context. Courts have held that agencies are not
entitled to Chevron deference when interpreting “generic statutes that apply to
dozens of agencies.” Collins v. Nat’l Transp. Safety Bd., 351 F.3d 1246, 1252
(D.C. Cir. 2003); see Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 642 n.30 (1986)
(explaining that “the same basis for deference predicated on expertise” was not
present where an agency was interpreting a statute under which “[t]wenty-seven
agencies . . . ha[d] promulgated regulations”); Proffitt v. FDIC, 200 F.3d 855, 860
(D.C. Cir. 2000) (declining to grant Chevron deference to an agency’s interpreta-
tion of a “statute of general applicability” (internal quotation marks omitted));
Salleh v. Christopher, 85 F.3d 689, 692 (D.C. Cir. 1996) (noting line of decisions
“that have declined to defer to an agency’s interpretation of a statute when more
than one agency is granted authority to interpret the same statute”); cf. Proposed
Agency Interpretation of “Federal Means-Tested Public Benefit[s]” Under
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 21 Op.
O.L.C. 21, 34–35 (1997) (distinguishing situation in which “a statute assigns a
group of agencies a particular task that is related to the duties that the agencies
already have been assigned by their governing statutes” and “the agencies . . .
concur in their interpretation” of that statute). Here, numerous agencies adminis-
ter, and are required to promulgate regulations implementing, the Act. See 5
U.S.C. § 3402(a)(1) (requiring “the head of each agency, by regulation, [to]
establish and maintain a program for part-time career employment within such
agency”). OPM’s authority under the Act is limited to “advis[ing] and assist[ing]”
agencies in developing their own implementing regulations and conducting a
“research and demonstration program with respect to part-time career employ-
ment.” Id. § 3402(b)(1)–(2). Hence, although OPM’s views concerning the Act
merit respect and careful consideration, we do not believe they are entitled to
Chevron deference.5
Because neither the presumption against implied repeals nor Chevron deference
applies, our role is to identify the best reading of the Act using standard tools of
5
Even if Chevron deference were applicable, the first step in the analysis would be to determine
whether the Act is ambiguous using “traditional tools of statutory construction.” Chevron, 467 U.S. at843 n.9. Applying those tools here, we do not believe the Act is ambiguous for the reasons set forth
below.
10
Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
statutory construction. See, e.g., Reimbursing Transition-Related Expenses
Incurred Before the Administrator of General Services Ascertained Who Were the
Apparent Successful Candidates for the Offices of President and Vice President,
25 Op. O.L.C. 7, 8 (2001) (endeavoring to identify “the best reading of the
statute”).
C.
There appear to be two possible ways to interpret the Act. The first possible
interpretation is that the Act encourages agencies to schedule part-time employees
to work 16 to 32 hours per week but does not prohibit agencies from setting part-
time schedules outside that range. CRT favors this reading. See CRT Memoran-
dum at 2–3. The second possible interpretation is that the Act not only encourages
“part-time career employment” but also redefines part-time employment to include
only employment of 16 to 32 hours per week. OPM favors this reading. See OPM
Memorandum at 1; 44 Fed. Reg. at 57,379. In the following sections, we examine
in turn the Act’s text, purpose, structure, history, and context to determine which
of these competing interpretations is the better reading of the Act.
1.
“‘[W]e start, of course, with the statutory text.’” Sebelius v. Cloer, 133 S. Ct.
1886, 1893 (2013) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006)).
As noted above, the Act defines part-time career employment “[f]or the purpose of
th[e] chapter” in which it appears as “part-time employment of 16 to 32 hours a
week.” 5 U.S.C. § 3401(2). It then provides that, “in order to promote part-time
career employment opportunities in all grade levels,” each agency “shall establish
and maintain a program for part-time career employment,” which must include
“procedures and criteria” and “annual goals” for “establishing or converting
positions for part-time career employment,” as well as “interim and final deadlines
for achieving such goals.” Id. § 3402(a)(1)(B), (C). The Act also specifies that
“[i]n administering any personnel ceiling,” a part-time career employee “shall be
counted as a fraction” equivalent to the fraction of the full workweek she works.
Id. § 3404. Additionally, the Act entitles part-time career employees to full
retirement and life insurance benefits and to health benefits prorated to the portion
of the full workweek they work. Act § 4.
On its face, the Act thus defines a particular type of part-time employment—
“part-time career employment”—and establishes programs and requirements to
encourage it. The Act does not state that all part-time employment must satisfy its
definition of part-time career employment. Nor does the Act say that any particu-
lar form of part-time employment is prohibited or limit the number of hours that
employees other than “part-time career employees” may work. It simply leaves all
part-time employment except part-time career employment unaddressed.
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Opinions of the Office of Legal Counsel in Volume 39
OPM contends that the Act’s definition of part-time career employment “rede-
fine[s] the specific hours which constitute part-time employment” to include only
“work schedules of 16 to 32 hours per week.” OPM Memorandum at 2; see 44
Fed. Reg. at 57,379 (stating that the Act “narrows the definition of part-time career
employment in the Federal Government from scheduled work of less than 40
hours per week to scheduled work between 16 and 32 hours per week”). That
interpretation, however, is difficult to reconcile with the plain text of the defini-
tion. The Act defines only the specific term “part-time career employment,” not
part-time employment generally. 5 U.S.C. § 3401(2). And it defines that term only
“[f]or the purpose of this chapter”—i.e., chapter 34 of title 5, which consists
exclusively of the Act itself. Id. It is unclear why Congress would have limited the
definition in these ways if its intention was to redefine part-time employment more
broadly. Moreover, numerous courts have expressly declined to “apply a definition
from one statutory provision to another” where it is defined only “for purposes of”
a particular provision, even if that provision offers “the only definition of [the
defined term] in the [U.S.] Code.” United States v. Mazza-Alaluf, 621 F.3d 205,
209–210 (2d Cir. 2010); see, e.g., United States v. Ervin, 601 F. App’x 793, 799
(11th Cir. 2015) (per curiam); Molski v. M.J. Cable, Inc., 481 F.3d 724, 733 (9th
Cir. 2007); United States v. Savin, 349 F.3d 27, 36 (2d Cir. 2003); Sierra Club v.
EPA, 325 F.3d 374, 383 (D.C. Cir. 2003); Cunningham v. Scibana, 259 F.3d 303,
308 n.2 (4th Cir. 2001); United States v. Levario-Quiroz, 161 F.3d 903, 908 (5th
Cir. 1998); Moldovan v. Great Atl. & Pac. Tea Co., 790 F.2d 894, 901 (3d Cir.
1986).
Hence, the plain text of the Act does not limit agencies’ preexisting authority to
schedule part-time employees to work any number of hours per week below 40 or
redefine “part-time” employment as that term is used throughout the laws
governing federal employment. E.g., 5 U.S.C. §§ 5531(2), 5542(a), 6121(5)(B),
6302(c). That is a strong indication that the Act does not prohibit part-time
employment that falls outside the Act’s definition. See Lamie v. U.S. Trustee, 540
U.S. 526, 534 (2003) (“It is well established that when the statute’s language is
plain, the sole function of the courts—at least where the disposition required by
the text is not absurd—is to enforce it according to its terms.” (internal quotation
marks omitted)).
2.
We next consider the purpose of the Act. The statute addresses this subject
directly: The Act states that its “purpose . . . is to provide increased part-time
career employment opportunities throughout the Federal Government.” Act § 2(b).
The Act reiterates this objective in its core provision, instructing agencies to
establish part-time career employment programs “[i]n order to promote part-time
career employment opportunities in all grade levels.” 5 U.S.C. § 3402(a)(1). These
statements of purpose indicate that the Act is designed to “provide increased . . .
12
Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
opportunities” for and “promote” part-time career employment, principally
through the requirement that agencies establish part-time career employment
programs. They do not contain any suggestion that Congress intended to prohibit
alternative forms of part-time employment. Nor does the Act contain any other
expressions of purpose that might arguably support such a reading. The Act’s
stated purpose, therefore, also supports the first possible interpretation of the
statute.
3.
We also consider the structure of the Act. As discussed above, the Act requires
each agency to “establish and maintain a program for part-time career employ-
ment,” 5 U.S.C. § 3402(a)(1); provides that each part-time career employee “shall
be counted as a fraction” of a full-time employee for purposes of federal personnel
ceilings, id. § 3404; and specifies the retirement, life insurance, and health benefits
to which part-time career employees are entitled, Act § 4.
The principal provisions of the Act—the requirement that agencies establish
part-time career employment programs and the new approach to counting part-
time employees covered by the Act—work just as Congress intended under either
possible interpretation of the Act. Regardless of whether the Act is read to allow
part-time employment that falls outside the Act’s definition of part-time career
employment, each agency has the same legal duty to “establish and maintain a
program for part-time career employment,” 5 U.S.C. § 3402(a)(1), thereby
ensuring that agencies provide “increased part-time career employment opportuni-
ties,” Act § 2(b). Similarly, no matter whether agencies may hire part-time
employees outside the Act, the provision of the Act addressing agency personnel
ceilings eliminates any incentive to favor part-time employees who work nearly 40
hours per week over part-time employees covered by the Act in order to “skirt
personnel ceilings.” H.R. Rep. No. 95-932, at 7; see 5 U.S.C. § 3404.
OPM contends that support for its interpretation can be found in the structure of
the Act’s provisions concerning the benefits available to part-time career employ-
ees. See OPM Memorandum at 3–6. In considering these provisions, we must be
mindful that Congress typically “does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions—it does not, one might
say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S.
458, 468 (2001). A prohibition on part-time employment of less than 16 or more
than 32 hours per week would constitute an important feature of the Act and a
significant limitation on agencies’ scheduling authority. In contrast, the Act’s
“[m]iscellaneous provisions” concerning benefits, H.R. Rep. No. 95-932, at 12; S.
Rep. No. 95-1116, at 18, are ancillary features of the statute that do not purport to
address the authority of agencies to permit different kinds of part-time schedules.
It is therefore unlikely that, had Congress intended to prohibit part-time employ-
ment other than part-time career employment as defined in the Act, it would have
13
Opinions of the Office of Legal Counsel in Volume 39
done so—only by implication—in this part of the Act. With that admonition in
mind, we consider the Act’s provisions regarding retirement, life insurance, and
health benefits.
a. The Act first addresses retirement benefits. Before the Act became law,
5 U.S.C. § 8347(g) stated that the Civil Service Commission “may exclude from
[retirement benefits] an employee or group of employees in or under an Executive
agency whose employment is temporary or intermittent.” 5 U.S.C. § 8347(g)
(1976). The Act amended this subsection by adding a sentence stating that the
Commission (now OPM) “may not exclude any employee who occupies a position
on a part-time career employment basis.” Act § 4(a).
OPM contends that this amendment “demonstrates congressional intent to
address benefits coverage for all part-time employees.” OPM Memorandum at 5
n.2. It is not clear, however, why that is so. The amendment simply “ensure[s] that
employees employed under a part-time career employment program may not be
excluded from civil service retirement coverage.” H.R. Rep. No. 95-932, at 12; see
S. Rep. No. 95-1116, at 18 (same). The amendment is thus entirely consistent with
the view that the Act seeks to encourage part-time career employment—in this
case, by extending part-time career employees a special guarantee of retirement
benefits—without necessarily prohibiting alternative forms of part-time employ-
ment. Several other provisions of the Act similarly favor part-time career employ-
ees, including the requirement that agencies establish programs exclusively to
promote part-time career employment, 5 U.S.C. § 3402(a)(1), the provision
altering the way only part-time career employees are counted for purposes of
personnel ceilings, id. § 3404, and the Act’s stated purpose of “provid[ing]
increased part-time career employment opportunities,” Act § 2(b).6
b. The Act’s second benefits provision addresses life insurance. Prior to the
Act, 5 U.S.C. § 8716(b) stated that the Civil Service Commission “may exclude an
employee” from receiving life insurance benefits “on the basis of the nature and
type of his employment or conditions pertaining to it, such as short-term appoint-
ment, seasonal, intermittent or part-time employment, and employment of like
nature.” 5 U.S.C. § 8716(b) (1976) (emphasis added). In the Act, Congress
amended this provision by striking “part-time” and adding a new paragraph stating
that the Commission (now OPM) may not exclude “an employee who is occupy-
ing a position on a part-time career employment basis” from receiving life
insurance benefits. Act § 4(b).
6
Moreover, the effect of this amendment was quite limited. The Act expressly provides that part-
time career employment “does not include employment on a temporary or intermittent basis.” 5 U.S.C.
§ 3401(2). As a result, there was no need for Congress to except part-time career employment from 5
U.S.C. § 8347(g), which permitted the exclusion from retirement benefits of only “temporary or
intermittent” employees. See H.R. Rep. No. 95-932, at 12 (acknowledging this point); S. Rep. No. 95-
1116, at 18 (same). Similarly, there was no need to clarify that OPM could not exclude other part-time
employment that is not temporary or intermittent.
14
Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
OPM argues that this provision supports its interpretation of the Act in two
ways. First, OPM contends that it would have been illogical for Congress to
prevent it from excluding part-time career employees from life insurance coverage
without granting a similar protection to other part-time employees. OPM Memo-
randum at 5. But as we have just explained, the Act was intended to increase part-
time career employment, and it favors that type of employment in a number of
different ways. It therefore would be neither surprising nor irrational if Congress
favored part-time career employees by granting them a special entitlement to life
insurance benefits that it did not extend to other part-time employees.
Second, OPM argues that there would have been no reason for Congress to
delete “part-time” from section 8716(b) if agencies could still employ (and thus
still exclude from life insurance coverage) part-time employees who were not part-
time career employees. OPM Memorandum at 5. Although it is not entirely clear
why Congress amended section 8716(b) in the manner it did, there is at least one
plausible reason why Congress might have removed the reference to “part-time”
employment in section 8716(b) even if agencies could continue to employ part-
time employees not covered by the Act. Removing this phrase eliminated any
inconsistency between the statement that OPM “may not exclude . . . part-time
career employ[ees]” and the statement that it “may exclude . . . part-time em-
ploy[ees],” a broader category that seemingly would include part-time career
employees. At the same time, this amendment continued to permit OPM to
exclude employees from life insurance benefits “on the basis of the nature and
type of [their] employment,” thus allowing the agency to deny benefits to part-
time employees not covered by the Act (since theirs is a “type” of employment). 5
U.S.C. § 8716(b) (2012); cf. 5 C.F.R. § 870.302(b)(4)–(8) (2015) (relying on this
provision to exclude employees paid “$12 a year or less,” employees paid on a
“contract or fee basis,” “Senate restaurant employee[s],” and other such categories
from life insurance benefits). Of course, Congress could have accomplished this
result in other ways, such as by permitting OPM to exclude an employee from life
insurance benefits on the basis of “part-time employment other than part-time
career employment.” But the fact that “Congress could have accomplished the
same result by phrasing the statute differently” does not provide a basis for
reading unstated limitations into its text. United States v. Aguilar, 515 U.S. 593,
604 (1995).
c. The Act’s third benefits provision concerns health insurance. Much like the
retirement and life insurance provisions, this provision begins by clarifying that
OPM may not exclude “an employee who is occupying a position on a part-time
career employment basis” from receiving health benefits. Act § 4(c)(1) (codified at
5 U.S.C. § 8913(b)(3)). OPM contends that this amendment “demonstrates
congressional intent to address benefits coverage for all part-time employees.”
OPM Memorandum at 5 n.2. For the same reasons we have just given, however,
we do not agree. Congress may have intended to grant part-time career employees
15
Opinions of the Office of Legal Counsel in Volume 39
a protection to which other part-time employees are not entitled, a goal that would
be fully consistent with the purpose and structure of the statute.
The health insurance benefits provision goes on to provide that employees
“occupying a position on a part-time career employment basis” shall receive
health benefits in an amount prorated to the proportion of the full workweek that
they work. Act § 4(c)(2)(A). OPM makes a stronger argument based on this
portion of the provision. Neither the Act nor any other statute similarly prorates
health benefits for other part-time employees. OPM thus argues that the Act would
result in an anomaly if agencies could employ part-time employees outside of the
Act’s definition of part-time career employment: Whereas part-time career
employees would receive prorated health benefits, other part-time employees
would be eligible for either full health benefits or no health benefits at all. OPM
Memorandum at 3 & n.1. OPM asserts that this system would be inconsistent with
Congress’s goal of “providing appropriate benefits to part-time employees” and of
“limiting Government obligations commensurate with the number of hours in the
reduced work schedule of part-time employees.” Id. at 3.
We acknowledge that it would seem somewhat anomalous for Congress to have
prorated health benefits for employees in the part-time career employment
program it was trying to promote while failing to do so for other part-time
employees. But the Supreme Court has cautioned that it “does not revise legisla-
tion . . . just because the text as written creates an apparent anomaly as to some
subject it does not address.” Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024,
2033 (2014). And here, the anomaly OPM identifies is neither particularly serious
nor inexplicable. Congress has allowed a similar anomaly to exist in other
circumstances by declining to prorate health benefits for seasonal, intermittent,
and short-term workers and thus putting OPM to the same choice of offering those
less-than-full-time employees either full health benefits or no benefits at all. See 5
U.S.C. § 8906(b) (prescribing the health benefits to which eligible employees are
entitled); id. § 8913(b) (permitting OPM to exclude such employees from health
benefits). Moreover, the legislative history indicates that Congress prorated health
benefits for part-time career employees for a reason that was inapplicable to other
part-time employees. The version of the Act initially passed by the House would
have granted full health benefits to part-time career employees. See H.R. 10126,
95th Cong. § 4(c) (as passed by House, Mar. 13, 1978). The relevant Senate
committee, however, observed that these benefits “comprised the major part of the
price tag for the House-passed bill” and expressed concern that “the public
[would] accept” the Act only if it held “the cost of government constant.” S. Rep.
No. 95-1116, at 12. The Senate therefore amended the bill to provide that health
benefits for part-time career employees “would be prorated according to the
number of hours worked.” Id.; see S. 518, 95th Cong. § 4(c)(2)(A) (as passed by
Senate, Aug. 25, 1978); see also 124 Cong. Rec. 30,968 (1978) (statement of Rep.
Schroeder) (House sponsor of the Act stating that she agreed with the Senate
amendment because it “would save money”). This history suggests that Congress
16
Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
did not enact the proration provision to establish a general principle that govern-
ment obligations should be “commensurate with the number of hours” worked, as
OPM contends. OPM Memorandum at 3. Rather, it enacted the proration provision
as part of a compromise designed to ensure that the Act would win public
acceptance.7
The health insurance benefits provision of the Act also states that the Act’s
proration of health benefits does not apply to “any employee serving in a position
on a part-time career employment basis on the date of the enactment of this Act.”
Act § 4(c)(2)(B). OPM contends that this provision shows that Congress “intended
to bring all types of part-time employment under [the Act’s] coverage” because it
indicates that employees hired prior to the date of the Act’s enactment can qualify
as part-time career employees. OPM Memorandum at 4 (emphasis added). We do
not think that follows. The fact that part-time employees hired before the Act can
fall within the Act’s definition of “part-time employment” provides no basis to
conclude that Congress foreclosed part-time employment outside that definition.
Nor is it relevant that the provision applies only to part-time career employees.
The Act did not alter health benefits for part-time employees who fall outside the
Act’s definition, so there was no need to grandfather benefits for such employees.
In sum, the Act’s principal provisions would work as Congress intended under
either possible reading of the Act, and the Act’s miscellaneous benefits provisions
do not provide any strong indication that Congress intended to foreclose all part-
time employment not covered by the Act. The Act’s structure is thus consistent
with either possible interpretation of the statute.
4.
We turn next to the legislative history of the Act generally. Both the House and
Senate committee reports open by stating that “[t]he purpose of [the Act] is to
encourage the use of part-time career employment in the Federal government by
requiring each agency to establish a program to provide for increased part-time
career employment opportunities.” S. Rep. No. 95-1116, at 1; H.R. Rep. No. 95-
932, at 1. Similarly, each committee report discusses at length the concern that
federal agencies “lagged far behind the private sphere in providing and improving
7
In its estimate of the bill’s costs, the Senate report does not contemplate any savings to the gov-
ernment from the elimination of part-time employees who fall outside the Act. See S. Rep. No. 95-
1116, at 19–21. If the second reading of the Act were correct, then the Senate bill would have resulted
in substantial financial savings to the government by eliminating its obligation to pay full health
benefits to existing part-time employees working fewer than 16 or more than 32 hours per week. The
drafters’ failure to consider that possibility—notwithstanding their close attention to other ways the Act
might generate financial savings, see id. at 20 (identifying possible savings resulting from reduced
enrollment in health plans by part-time career employees)—suggests that the drafters did not believe
that the Act would prohibit part-time employment not covered by the Act.
17
Opinions of the Office of Legal Counsel in Volume 39
part-time employment opportunities.” S. Rep. No. 95-1116, at 3; see id. at 3–12
(discussing the scope of this problem); H.R. Rep. No. 95-932, at 2–5, 8 (similar).
These discussions are consistent with the Act’s statements that its purpose is to
“provide increased opportunities for” and “promote” part-time career employment.
Act § 2(b); 5 U.S.C. § 3402(a)(1). And they tend to support the view that Congress
intended to encourage part-time career employment but not prohibit alternative
forms of part-time employment.
OPM identifies two passages from the House and Senate reports that it con-
tends support the conclusion that Congress intended to redefine part-time em-
ployment to include only employment of 16 to 32 hours per week. See OPM
Memorandum at 2–3. The first passage OPM identifies appears in the House
report. In explaining the Act’s definition of part-time career employment, that
report says:
This legislation defines “part-time career employment” as employ-
ment of 16 to 32 hours per week, and does not include temporary or
intermittent employment. Its aim is to encourage the hiring of truly
part-time employees, in contrast to the current practice of suing [sic]
employees working up to 39 hours per week to skirt personnel ceil-
ings.
H.R. Rep. No. 95-932, at 7. OPM argues that this passage shows that the Act’s
drafters “inten[ded] that part-time employment be limited to hours substantially
less than 40 hours per week.” OPM Memorandum at 2. Although that inference is
plausible, it is not the only possible reading of the relevant language. The passage
says that the Act aims to “encourage the hiring of truly part-time employees.”
H.R. Rep. No. 95-932, at 7 (emphasis added). Even if the drafters believed that
employees who do not work 16 to 32 hours per week are not “truly part-time,” the
passage states that the drafters’ method of promoting “part-time career employ-
ment” under the Act was by encouragement, not mandate. Moreover, the passage
specifically disapproves of the use of “employees working up to 39 hours per
week to skirt personnel ceilings,” id. (emphasis added), and under any interpreta-
tion, the Act eliminates the incentive to engage in that practice by changing the
manner in which part-time career employees are counted for purposes of personnel
ceilings, see 5 U.S.C. § 3404; S. Rep. No. 95-1116, at 16–17.
The second passage OPM cites appears in a section of the Senate report dis-
cussing the definition of part-time career employment contained in the Senate’s
version of the Act. The passage begins by explaining that the Senate bill “defines
the term[] . . . ‘part-time career employment’ for the purposes of new subchapter
VIII . . . to mean part-time employment of 10 hours, 20 hours, and 30 hours a
week.” S. Rep. No. 95-1116, at 13. It goes on to acknowledge that this “approach
to the definition of part-time career employment differs from the approach taken in
the House.” Id. at 14. The passage then states:
18
Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
The administration contends that part-time employment should be
defined as anything less than 40 hours per week. The committee dis-
agrees because such a definition would make possible the current ar-
rangement by which those individuals defined as working part-time
for the Federal Government include many working 35 to 39 hours
per week. In order for the legislation to have an impact, the commit-
tee shares the view of the House that part-time employment must be
defined so that the jobs created entail significantly less than 40 hours
of work per week.
Id.
OPM contends that this passage shows that Congress intended to “limit[] part-
time employment” to “work schedule[s] [of] significantly less than 40 hours.”
OPM Memorandum at 3. That reading is reasonable; it draws support from the
drafters’ statement of disapproval of the “arrangement by which those individuals
defined as working part-time for the Federal Government include many working
35 to 39 hours per week,” and their reference to the definition of “part-time
employment,” rather than “part-time career employment,” S. Rep. No. 95-1116, at
14. But it is also reasonable to read this passage as stating that the drafters
intended the Act to encourage only part-time employment falling within the Act’s
definition of part-time career employment. In support of this reading, the passage
says that the drafters intended to ensure that “the jobs created entail significantly
less than 40 hours of work per week,” id. (emphasis added)—a goal the Act
achieves by limiting the Act’s definition of “part-time career employment” to
employees working between 16 and 32 hours per week and requiring each agency
to “establish and maintain a program for part-time career employment,” 5 U.S.C.
§ 3402(a)(1). Moreover, the passage’s reference to “part-time employment” may
simply have been an imprecise shorthand for “part-time career employment.” The
drafters used the same shorthand elsewhere in the Senate report, even where they
clearly intended to refer only to part-time career employment; for instance, in two
places the report states that the Act entitles “current personnel working part-time”
to receive full health benefits, S. Rep. No. 95-1116, at 12 (emphasis added); see id.
at 2 (similar), even though the Act grants that entitlement only to personnel
working “on a part-time career employment basis on the date of the enactment of
this Act,” Act § 4(c)(2)(B) (emphasis added), and the drafters were well aware that
“many” part-time employees employed on the date of the Act’s enactment were
not part-time career employees, S. Rep. No. 95-1116, at 14. In addition, the
relevant passage opens by referring to the manner in which the Act “defines the
term[] . . . ‘part-time career employment’ for the purposes of new subchapter
VIII,” and goes on to refer to the Act’s “definition of part-time career employ-
ment.” Id. at 13–14.
As a result, we conclude that the legislative history of the Act is ambiguous
with respect to the question at hand. Some statements in the House and Senate
19
Opinions of the Office of Legal Counsel in Volume 39
reports support the first possible interpretation of the Act, while others might (but
need not) be read to support the second interpretation. Because “the authoritative
statement” of a statute’s meaning is “the statutory text, not the legislative history,”
this equivocal evidence of congressional intent bears little weight in construing the
Act. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see
Milner v. Dep’t of Navy, 562 U.S. 562, 572 (2011) (“We will not . . . allow[]
ambiguous legislative history to muddy clear statutory language.”).
5.
Finally, we examine the context in which the Act was drafted and its “place in
the overall statutory scheme.” Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350,
1357 (2012) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809
(1989)).
a. We begin by considering the Act’s effect on part-time employment arrange-
ments that existed at the time of its enactment. The first possible interpretation of
the Act would not appear to have any significant adverse effects on preexisting
part-time employment arrangements. Under that interpretation, agencies would
retain their authority to schedule part-time employees as they see fit, and there
would be no disruptive or improbable effects on preexisting employees.
The second interpretation of the Act, in contrast, would lead to two unlikely
and disruptive consequences, which themselves could be avoided only by
significantly straining the Act’s text. First, if the Act prohibited all part-time
employment falling outside of its definition, then the Act seemingly would have
made it unlawful for agencies to continue to employ part-time employees already
working more than 32 hours per week. Congress was aware that agencies em-
ployed numerous such employees when the Act was enacted. See S. Rep. No. 95-
1116, at 10 (stating that “the vast majority” of new part-time employees worked
between 35 and 39 hours per week); H.R. Rep. No. 95-932, at 4 (stating that “the
tendency is to hire 39 hour per week ‘part timers’”). Yet nothing in the text or
history of the Act indicates that Congress contemplated that agencies would need
to terminate or reschedule all of those employees—an omission that is particularly
notable given that Congress showed solicitude for other employees potentially
affected by the Act’s provisions. See 5 U.S.C. § 3403(a) (prohibiting agencies
from abolishing positions to make them available to part-time career employees);
id. § 3403(b) (prohibiting agencies from requiring full-time employees to accept
part-time employment); Act § 4(c)(2)(B) (grandfathering health benefits for
preexisting part-time career employees). Congress’s silence on this subject
strongly suggests that Congress did not intend to proscribe part-time employment
not within the Act’s definition. Cf. Chisom v. Roemer, 501 U.S. 380, 396 n.23
(1991) (“Congress’ silence in this regard can be likened to the dog that did not
bark.”).
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Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
OPM attempted to mitigate this severe consequence of its interpretation when it
promulgated regulations concerning the Act in 1979. In the preamble to those
regulations, OPM—applying its understanding of the Act—asserted that the Act’s
“prohibition” on the employment of part-time employees working 33 to 39 hours
per week “d[id] not apply” to anyone employed prior to April 8, 1979. 44 Fed.
Reg. at 57,379. But OPM did not cite any statutory basis for this assertion, and we
have identified none.
Second, if the Act offered the exclusive definition of part-time employment for
federal employees, then the statute would prohibit not only part-time employment
of more than 32 hours per week, but also part-time employment of less than
“16 . . . hours a week.” 5 U.S.C. § 3401(2). Yet as OPM observed, there is no
evidence—even in the legislative history—that Congress “inten[ded] to end the
practice of employing” part-time employees who work 1 to 15 hours per week. 44
Fed. Reg. at 57,380. Accordingly, OPM promulgated a regulation stating that
agencies could continue to permit schedules of 1 to 15 hours per week “under the
authority provided in 5 U.S.C. 3402(a)(3).” 5 C.F.R. § 340.202(b). But this
exception too lacks a firm basis in the Act’s text. Section 3402(a)(3) provides that
“[r]egulations established under” section 3402(a)(1) “may provide for such
exceptions as may be necessary to carry out the mission of the agency.” 5 U.S.C.
§ 3402(a)(3). The “[r]egulations established under” section 3402(a)(1), however,
are ones that “establish and maintain a program for part-time career employment”
by setting various procedures for establishing, reviewing, and setting goals and
timetables for the creation of part-time career employment positions. Id.§ 3402(a)(1). Section 3402(a)(3) thus appears to permit exceptions only to the
various procedures that constitute an agency’s part-time career employment
program. See S. Rep. No. 95-1116, at 15 (“Paragraph (3) provides that agency
regulations establishing part-time career employment programs may provide for
such exceptions to such programs as may be necessary to carry out the mission of
the agency.” (emphasis added)); H.R. Rep. No. 95-932, at 10 (same). It is doubtful
that an exception altering the definition of “part-time career employment” falls
within that authority.8 OPM’s interpretation of the Act would therefore either
compel a result that Congress apparently did not intend (elimination of part-time
schedules of fewer than 16 hours per week) or require a significant expansion of
the Act’s text to avoid that result.
b. We next consider three potentially relevant statutes enacted subsequent to the
Act. First, as discussed above, a few weeks before the Act’s passage, Congress
enacted a statute establishing a three-year experimental program “to test . . .
compressed schedule[s]” that defined a compressed schedule for a “part-time
employee” as “a biweekly basic work requirement of less than 80 hours which is
8
As noted above, we do not address whether OPM might have authority under other statutes to
limit or expand the scope of part-time employment.
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Opinions of the Office of Legal Counsel in Volume 39
scheduled for less than 10 workdays.” Pub. L. No. 95-390, §§ 201(1)(B), 202(a).
Three years later, Congress made this program permanent by enacting the Federal
Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No.
97-221, 96 Stat. 227 (codified as amended at 5 U.S.C. §§ 6120 et seq.). In this new
statute, Congress reenacted without change the prior definition of a compressed
schedule. 5 U.S.C. § 6121(5)(B). Congress also amended the Act’s definition of
“part-time career employment” to state that it includes part-time employment of
“32 to 64 hours during a biweekly pay period in the case of a flexible or com-
pressed schedule under subchapter II of chapter 61 of this title.” Pub. L. No. 97-
221, § 3. This pair of definitions in the 1982 statute indicates that the enacting
Congress did not believe that all part-time employees were required to work
between 16 and 32 hours per week. The statute provides that agencies may permit
a “part-time employee” to work “less than 80 hours” over a biweekly period, or
less than 40 hours in a single workweek. 5 U.S.C. § 6121(5)(B); see id. § 6127(a)
(authorizing agencies to “establish programs which use a 4-day workweek or other
compressed schedule”). At the same time, it provides that agencies may permit a
“part-time career employ[ee]” to work only “32 to 64 hours” over a biweekly
period, or 16 to 32 hours in a single workweek. Id. § 3401(2) (emphasis added). If
Congress believed that all part-time employees were part-time career employees,
then these definitions should have been the same—all such employees should have
been permitted to work only 32 to 64 hours in a biweekly period. This statute thus
appears to reflect Congress’s belief that, subsequent to the Act, agencies could
continue to employ part-time employees who worked more than 32 hours per
week. The fact that Congress “seems clearly to have contemplated” such conduct
is “entitled to significant weight” in interpreting the Act. Seatrain Shipbuilding
Corp. v. Shell Oil Co., 444 U.S. 572, 595–96 (1980); see Almendarez-Torres v.
United States, 523 U.S. 224, 237 (1998) (describing circumstances in which later-
enacted laws may inform the interpretation of earlier provisions, including when
there is “direct focus by Congress upon the meaning of the earlier enacted
provisions”).9
A second potentially relevant statute amended 5 U.S.C. § 6323, a provision
granting “permanent or temporary indefinite” employees the right to accrue leave
for military purposes “at the rate of 15 days per fiscal year.” 5 U.S.C.
9
OPM argues that this discrepancy is the result of “inartful drafting”: It speculates that the “less
than 80 hours” language is an “oversight” that Congress inadvertently included in this statute as a
“remnant” of the 1978 flexible and compressed schedules statute. OPM Reply at 1–3. We do not think
this theory is persuasive. Congress did not simply copy the text of the 1978 flexible and compressed
schedules statute without accounting for the passage of the Act. On the contrary, it expressly amended
the Act’s definition of “part-time career employment” to specify the hours that constituted a
compressed schedule for part-time career employees. Congress’s failure to similarly amend the
definition of “compressed schedule” for all part-time employees thus appears to have been a deliberate
choice, not an oversight.
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Authority to Permit Part-Time Employees Workweeks of 33 to 39 Hours
§ 6323(a)(1). In 1980, Congress added a new subsection to this provision stating
that employees “employed on a part-time career employment basis” would accrue
military leave at a rate prorated to the portion of the full workweek they work. Act
of Oct. 10, 1980, Pub. L. No. 96-431, § 1, 94 Stat. 1850, 1850 (codified at 5
U.S.C. § 6323(a)(2)). OPM argues that this amendment supports its reading of the
Act, presumably on the theory that—as with the Act’s health benefits provision—
it would be anomalous if this statute prorated leave for part-time career employees
while entitling other part-time employees to full military leave. OPM Reply at 4.
But we think this argument rests on a mistaken premise. Prior to the enactment of
this statute, the Comptroller General had consistently interpreted section 6323 and
its predecessor, 10 U.S.C. §§ 371–371a, to entitle part-time employees to no
military leave. See Matter of William P. Wisinger, 59 Comp. Gen. 365, 365 (1980)
(citing prior decisions and legislative history supporting this view). In 1980,
Congress concluded that this longstanding interpretation ran “counter to the
Federal Employees Part-time Career Employment Act” as applied to part-time
career employees and therefore extended the military leave statute to part-time
career employees on a prorated basis. H.R. Rep. No. 96-1128, at 3 (1980). At least
against the legal backdrop as Congress understood it,10 this statute thus granted
part-time career employees a benefit to which other part-time employees would
not be entitled—a result, as we have said, that is entirely consistent with the Act’s
structure and purpose. See supra Part II.C.3.a.
A third statute referencing the Act was enacted in 1991. That statute, the De-
partment of Veterans Affairs Health-Care Personnel Act of 1991, Pub. L. No. 102-
40, 105 Stat. 187, authorizes the Secretary of Veterans Affairs to make appoint-
ments to the Veterans Health Administration without regard to a number of civil
service requirements. Id. § 401(b)(2) (codified at 38 U.S.C. §§ 7405(a),
7406(a)(1)); id. § 401(b)(3) (codified at 38 U.S.C. § 7425). As relevant here, the
statute provides that the Act’s provisions “pertaining to part-time career employ-
ment” do “not apply to [covered] part-time appointments.” 38 U.S.C. § 7407(e).
OPM argues that this exemption “demonstrat[es] that an exclusion was required to
prevent” all part-time employees from being subject to the Act. OPM Reply at 4.
But we do not think the statute supports such an inference. Congress often
exempts classes of persons from requirements that apply to some but not all class
members, including elsewhere in the Department of Veterans Affairs Health-Care
Personnel Act itself. See, e.g., 38 U.S.C. § 7425(a) (exempting all employees
appointed pursuant to the statute from requirements applicable only to the Senior
Executive Service). Indeed, many of the “part-time appointments” authorized by
this statute are required to be “temporary,” id. § 7405(d), (g)(1), and so would not
10
We express no view on whether the Comptroller General’s decisions are correct or whether part-
time employees who fall outside the Act’s definition are eligible for military leave under 5 U.S.C.
§ 6323(a).
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Opinions of the Office of Legal Counsel in Volume 39
be subject to the Act under any reading. See 5 U.S.C. § 3401(2) (stating that
“‘part-time career employment’ . . . does not include employment on a temporary
or intermittent basis”). Hence, this statute too is fully consistent with the view that
the Act did not eliminate part-time employment outside of its definition of part-
time career employment.
For these reasons, we think that the statutes enacted subsequent to the Act
support the first reading of the statute. The Federal Employees Flexible and
Compressed Work Schedules Act seems clearly to contemplate the existence of
part-time employees who do not work between 16 and 32 hours per week, whereas
the other two statutes we have considered are equally consistent with either the
first or second reading of the Act. The context of the Act as a whole thus bolsters
the conclusion that it does not prohibit part-time employment that falls outside its
definition.
*****
In sum, several significant considerations support the conclusion that the Act
does not limit agencies’ preexisting authority to schedule part-time employees to
work more than 32 hours per week. The Act’s plain text and stated purpose do not
purport to limit agencies’ preexisting authority; its principal provisions would
work as Congress intended if agencies retained that authority; and a contrary
conclusion would lead to improbable results and undermine a later-enacted statute.
In contrast, a conclusion that the Act prohibits all part-time employment of more
than 32 hours per week would find support only in potential inferences drawn
from the Act’s ancillary benefits provisions and in ambiguous statements con-
tained in the Act’s legislative history. Accordingly, we think that the Act is best
read not to limit agencies’ preexisting authority to hire part-time employees and to
schedule them for regular workweeks of 33 to 39 hours.
III.
For the foregoing reasons, we conclude that the statutes governing federal
employment permit part-time schedules of 33 to 39 hours a week. As noted above,
we do not address whether OPM has authority, independent of the Act, to prohibit
agencies from offering such schedules or whether agencies may elect (or require
their components) not to offer such employment. Nor do we address what
administrative steps, if any, would be required before CRT could begin authoriz-
ing part-time employees to work those schedules.
BRIAN M. BOYNTON
Deputy Assistant Attorney General
Office of Legal Counsel
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