Alamo v. United States ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL ALAMO, EMMETT BRANNEN, WILLIAM
BREZENSKI, IVY JIM BRINSON, BRIAN
CALDWELL, THOMAS J DEMAJO, III, MARK
DEUNGER, SANDRA DEUNGER, DOUGLAS L
DILLER, BERNARD J FERMIN, TAMARA
GRANDIA, CARL GREGORY, MARK HAHN, LISA
ANN HAHN, KIMBERLY HARPER, CRYSTAL
HENSLER, JUAN HERNANDEZ, WILLIAM J.
JOHNSON, FLOYD JUSTICE, MARGARET KING,
GLORIA D. LONG, JIM OCHOA, JAMES G. OOMS,
ARTURO RINCONES, THOMAS L. ROBERTS,
WARREN F. SCRIBNER, II, BRIAN TINER, CRAIG
R. WILCOX, JAMES WILLIS,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5149
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00211-LKG, Judge Lydia Kay
Griggsby.
______________________
Decided: March 9, 2017
______________________
2 ALAMO v. US
JASON I. WEISBROT, Snider & Associates, LLC, Balti-
more, MD, argued for plaintiffs-appellants. Also repre-
sented by JACOB Y. STATMAN.
EMMA BOND, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM; REBECCA E. AUSPRUNG, Civilian Personnel
Branch, United States Army Litigation Division, Wash-
ington, DC.
______________________
Before PROST, Chief Judge, REYNA and HUGHES, Circuit
Judges.
HUGHES, Circuit Judge.
Appellants, current and former Army emergency med-
ical technicians and paramedics, appeal the Court of
Federal Claims’ determination that the government
properly compensates them for their regularly scheduled
overtime work under the Fair Labor Standards Act.
Because we find that the government employs the correct
methodology to determine Appellants’ pay, we affirm.
I
During the relevant period, the Army employed Ap-
pellants (EMTs) to provide emergency medical services at
Fort Stewart, Liberty, Georgia. Before October 2012, the
EMTs were generally scheduled for a compressed sched-
ule consisting of 24 hours on-duty followed by 48 hours
off-duty. After October 2012, the EMTs switched to a
schedule consisting of two 48-hour workweeks. Because
the EMTs worked a schedule of more than 40 hours in one
week, they were entitled to FLSA overtime pay. For a
typical biweekly pay period, the government compensated
the EMTs with (1) basic pay under the Federal Employees
Pay Act (also known as Title 5); (2) standby duty premium
ALAMO v. US 3
pay under Title 5; and (3) FLSA overtime pay for regular-
ly scheduled overtime. J.A. 38, 40. 1
The EMTs filed suit in the Court of Federal Claims,
alleging that the government underpaid them by using an
incorrect formula to calculate their FLSA overtime. The
parties cross-moved for summary judgment. The court
granted the government’s motion and denied the EMTs’
motion, finding that no underpayment occurred because
the government applied the correct methodology to calcu-
late the EMTs’ pay. The EMTs timely appealed, and we
have jurisdiction under 28 U.S.C. § 1295(a)(3).
II
“We review the Court of Federal Claims’ grant of
summary judgment de novo. Summary judgment is
appropriate where there are no genuine issues of material
fact and the moving party is entitled to judgment as a
matter of law.” Crooker v. United States, 828 F.3d 1357,
1360 (Fed. Cir. 2016) (internal citations and quotation
marks omitted).
A
Under the FLSA, 2 an agency must compensate its
overtime-eligible employees “for all hours of work in
excess of 8 in a day or 40 in a workweek at a rate equal to
1 Several factors not relevant here may affect the
biweekly calculation of an EMT’s pay for a given week.
For example, an EMT may work unscheduled overtime or
take some type of paid or unpaid leave. We confine our
discussion to the three areas of pay we have identified.
2 Because the parties agree that the relevant OPM
regulations fairly implement their respective statutes, we
refer to the FLSA and its implementing regulations
together as the FLSA, and to Title 5 and its implementing
regulations together as Title 5.
4 ALAMO v. US
one and one-half times the employee’s hourly regular rate
of pay,” subject to certain exceptions that do not apply
here. 5 C.F.R. § 551.501(a); see also 29 U.S.C. § 207(a)(1).
If an employee qualifies for FLSA overtime, he or she is
entitled to “(1) [t]he straight time rate of pay times all
overtime hours worked; plus (2) [o]ne-half times the
employee’s hourly regular rate of pay times all overtime
hours worked.” 5 C.F.R. § 551.512(a).
The first question presented is whether the EMTs re-
ceive “the straight time rate of pay times all overtime
hours worked” when the government pays them annual
premium standby pay in addition to basic pay. We find
that they do, and therefore, that the government calculat-
ed the EMTs’ pay correctly.
Ordinarily, “[a]n employee’s ‘straight time rate of pay’
is equal to the employee’s rate of pay for his or her posi-
tion (exclusive of any premiums, differentials, or cash
awards or bonuses).” Id. § 551.512(b). But the EMTs’
straight time rate of pay is calculated differently because
they receive annual premium standby pay in addition to
their basic pay. The Army pays the EMTs standby pay
because their job requires them “regularly to remain at, or
within the confines of [their] station during longer than
ordinary periods of duty, a substantial part of which
consists of remaining in a standby status rather than
performing work.” Id. § 550.141; see 5 U.S.C. § 5545(c)(1).
That is, the EMTs receive standby pay because they must
remain at their duty stations longer than 40 hours per
week. See 5 C.F.R. § 550.143(c). Thus, because the EMTs
receive standby pay, their “straight time rate of pay” is
“equal to basic pay plus annual premium pay divided by
the hours for which the basic pay plus annual premium
pay are intended.” Id. § 551.512(b) (emphasis added).
We conclude that all regularly scheduled hours that
the EMTs work, including all regularly scheduled over-
time hours, are “the hours for which basic pay plus annu-
ALAMO v. US 5
al premium pay is intended.” The EMTs receive standby
pay to compensate for being on duty for “more than 40
hours a week,” id. § 550.143(c), which is also what over-
time compensates. Yet, standby pay compensation is “not
received in return for any particular hours of work,” but
instead, “is a function of the government’s recognition
that” the EMTs “don’t work the typical work schedule of
the federal system.” Zumerling v. Devine, 769 F.2d 745,
751 (Fed. Cir. 1985). Accordingly, the EMTs’ pay (basic
plus standby pay), taken together, compensates them the
same for hour 1, hour 41, and hour 70 in a single work-
week. This is because standby pay balances the regular
inconvenience to the EMTs of confinement to a duty
station for longer than ordinary work hours and the
reality that they may spend these hours sleeping, reading,
eating, playing games on a smartphone, and the like. As
a result, standby pay compensates EMTs for the fact that
they are on-duty for more than 40 hours. And by pre-
scribing a separate formula for calculating the straight
time rate of pay when an employee receives standby pay,
§ 551.512(b) reflects OPM’s intent to cover all regularly
scheduled hours (including regularly scheduled overtime
hours) through the combination of basic and standby pay.
Therefore, the combination of basic and standby pay
properly compensates straight time for all regularly
scheduled hours that the EMTs work.
The government also does not run afoul of §§ 551.512
and 551.513, as the EMTs contend. Section 551.512(c)
requires the government to pay employees “at a rate at
least equal to the employee’s straight time rate of pay for
all nonovertime hours of work in the workweek,” and
§ 551.513 mandates that employees are paid their FLSA
overtime in addition to other pay. As already discussed,
the EMTs receive the additional half-time bonus on top of
their straight time rate of pay, which itself covers all
hours worked. Accordingly, the government’s formula
satisfies both provisions.
6 ALAMO v. US
To the extent that the regulatory language is unclear,
we find that contextual analysis of Title 5 and the FLSA
resolves any ambiguity. Cf. King v. Burwell, 135 S. Ct.
2480, 2492 (2015) (“A provision that may seem ambiguous
in isolation is often clarified by the remainder of the
statutory scheme . . . because only one of the permissible
meanings produces a substantive effect that is compatible
with the rest of the law.” (quoting United Sav. Ass’n of
Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S.
365, 371 (1988))). Broadly speaking, the FLSA gives
employees their normal compensation for a regularly
scheduled overtime hour, plus an additional half-time
bonus. The government’s calculation does the same: it
gives EMTs their normal compensation for regularly
scheduled overtime through the payment of basic plus
premium pay and pays the EMTs an additional half-time
bonus. And, by design in Title 5, Congress and OPM
intended federal employees working standby hours to
receive less pay than those who actively work during their
entire regularly scheduled overtime. 3 See 5 U.S.C.
§ 5545(c)(1) (allowing an agency to require an employee to
“receive premium pay for [standby] duty . . . instead of
premium pay provided by other provisions of this sub-
chapter, except for irregular, unscheduled overtime duty
in excess of his regularly scheduled weekly tour”); 5
C.F.R. § 550.141 (“An agency may pay premium pay on an
annual basis, instead of the premium pay prescribed in
this subpart for regularly scheduled overtime . . . .”). That
design would be frustrated if the EMTs were to receive an
additional FLSA straight-time payment for their over-
time.
3 Although the FLSA does not distinguish between
standby and actively worked time when defining “work,”
Title 5 draws such a distinction.
ALAMO v. US 7
Moreover, we must interpret the governing regula-
tions in light of OPM’s wide discretion to prescribe rules
for federal employee pay. As we have noted before, Con-
gress created a “flotsam of incomplete legislation” when it
extended the FLSA to cover federal employees already
covered by Title 5. Abreu v. United States, 948 F.2d 1229,
1236 (Fed. Cir. 1991). But because Title 5 and the FLSA
“do not mesh with the machined precision of the gears in
a Swiss watch,” we interpret these statutes and regula-
tions in a way that “ensure[s] that OPM has put together
the various pieces of pay entitlement in a way that elimi-
nates gaps and minimizes overlaps.” Id. Here, giving the
EMTs additional straight time payment would create a
significant “overlap,” as they would receive a full time-
and-a-half overtime payment for the same work that their
standby pay already covers. The EMTs have not demon-
strated that Congress or OPM intended federal workers to
receive such a windfall, particularly where the very
nature of standby work means that the employees are not
actively working all hours for which they receive pay.
Finally, the Department of Labor’s regulations appli-
cable to private-sector, salaried, non-exempt employees
support this result. Cf. Abreu, 948 F.2d at 1231 n.6
(describing Congress’ intent, when delegating authority to
OPM to administer the FLSA, to assure consistency with
Department of Labor’s rules for private sector). The
EMTs’ annual basic plus premium pay, paid biweekly, is
akin to an annual salary that the EMTs accept to com-
pensate for all regularly scheduled hours. Under 29
C.F.R. § 778.114(a), a private employer can satisfy its
FLSA obligations by paying “extra compensation, in
addition to such salary, for all [regularly scheduled]
overtime hours worked at a rate not less than one-half his
regular rate of pay.” The rationale is written directly into
the regulation: “Payment for overtime hours at one-half
such rate in addition to the salary satisfies the overtime
pay requirement because such hours have already been
8 ALAMO v. US
compensated at the straight time regular rate, under the
salary arrangement.” Id. That same logic applies here
because the additional standby premium pay already
compensates for the unusual nature of the EMTs’ sched-
ule. Accordingly, the additional half-time payment suffi-
ciently fulfills the government’s FLSA overtime
obligation.
B
The EMTs also argue that the Army miscalculated the
EMTs’ regular rate of pay when determining the half-time
portion of their FLSA pay. See generally 5 C.F.R.
§ 551.512(a)(2) (describing half-time portion). The EMTs
concede that their argument fails if we find, as we have,
that the Army properly paid them the “straight time”
portion of overtime under the FLSA. Appellants’ Br. at
32–33. Accordingly, we conclude that the Army properly
calculated the EMTs’ regular rate of pay.
C
Finally, the EMTs argue that they are entitled to
have their FLSA overtime calculated on a biweekly rather
than weekly basis. However, the plain language of the
applicable regulations requires FLSA overtime to be
calculated on a weekly basis. An employee is entitled to
overtime “for all hours of work in excess of 8 in a day or
40 in a workweek.” 5 C.F.R. § 551.501(a) (emphasis
added). For employees who are subject to a compressed
work schedule (like the EMTs), a “workweek” is “the same
as the administrative workweek defined in [5 C.F.R.]
§ 610.102.” Id. § 551.501(b). Section 610.102 defines
“[a]dministrative workweek” as “any period of 7 consecu-
tive 24-hour periods designated” by an agency head.
Accordingly, the Army correctly calculates the EMTs’ pay
on a weekly basis.
ALAMO v. US 9
III
Because the government employs the correct method-
ology to calculate the EMTs’ pay, we affirm the Court of
Federal Claims’ judgment.
AFFIRMED