Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours ( 2015 )

Permitting Part-Time Employees to Work
Regularly Scheduled Weeks of 33 to 39 Hours
The statutes governing federal employment permit federal agencies to schedule part-time
employees to work regularly scheduled weeks of 33 to 39 hours.
The Federal Employees Part-Time Career Employment Act of 1978 does not limit agen-
cies’ 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 work-
weeks 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 employees’ 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 em-
ployment in the federal government and, as a result, bars part-time em-
ployees 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
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39 Op. O.L.C. 99 (2015)
We conclude that the statutes governing federal employment permit
regular part-time schedules of 33 to 39 hours per week. Before the enact-
ment 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 au-
thority, 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 re-
lating 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
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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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
1945, Pub. L. No. 79-106, 59 Stat. 295, Congress has required agencies
“to establish . . . for all full-time officers and employees . . . a basic ad-
ministrative 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 agen-
cies 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 acknowl-
edged the existence of “part-time employment” and permitted agencies to
retain part-time personnel so long as they were not “in excess” of admin-
istrative personnel ceilings.
In the decades that followed, Congress enacted additional statutes ad-
dressing 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.” Pub. L. No. 81-316, § 1, 63 Stat. 703,
703 (1949) (codified as amended at 5 U.S.C. § 6302(c)). In 1964, Con-
gress 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 position”—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 employ-
ees” to hold “a combination of part-time positions equaling one full-time
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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.” Pub. L. No. 92-194, 85 Stat. 648 (1971) (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
acknowledged agencies’ authority to hire part-time employees. In 1954,
for instance, the Commission promulgated regulations defining a “[r]eg-
ularly scheduled administrative 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 regu-
larly.” 19 Fed. Reg. 7097, 7097 (Nov. 2, 1954). And in 1971, the Com-
mission 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 Personnel
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 Fed-
eral employees work part time” and listing percentages of employees
4 See also Pub. L. No. 94-397, § 1(a), 90 Stat. 1202, 1202 (1976) (codified as
amended 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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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
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 committees 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 Management 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 commit-
tees 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 through-
out the Federal Government.” Act § 2(b). It defines the term “part-time
career employment” as follows:
For the purpose of this chapter . . .
(2) ‘part-time career employment’ means part-time employment of
16 to 32 hours a week (or 32 to 64 hours during a biweekly pay peri-
od in the case of a flexible or compressed work schedule under sub-
chapter 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 regard to this section or one estab-
lished to allow job-sharing or comparable arrangements, but does not
include employment on a temporary or intermittent basis.
5 U.S.C. § 3401.
To further its stated purpose, the Act requires the head of each agency
to “establish 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
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for establishing or converting positions for part-time career employ-
ment,” 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 employed 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 inappli-
cable 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 em-
ployee 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 re-
tirement, 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)
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(codified at 5 U.S.C. §§ 8347(g), 8716(b), 8913(b)). It also specifies that
government contributions for part-time career employees’ health insur-
ance 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)). Be-
cause 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 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 employment 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 regard-
ing part-time career employment. See Part-Time Employment; Federal
Employees Health Benefits Program, 44 Fed. Reg. 57,379 (Oct. 5, 1979).
OPM made three statements in the regulations’ preamble that are perti-
nent 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 “pro-
hibition” 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 em-
ploying 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)).
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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 Employment Program, Human Resources
Order DOJ 1200.1, ch. 1-8, ¶ B.6 (Mar. 26, 2004), 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).
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 adop-
tion. 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
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
between 1945 and October 1978, Congress made clear that the “employ-
ees” 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 author-
ity 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 busi-
ness methods are patentable from provisions that “explicitly contemplate[]
the existence of at least some 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 opportuni-
ties 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.
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Second, prior to the Act, agencies also possessed authority to sched-
ule part-time employees to work any number of hours per week below
40. For full-time employees, Congress set “a basic administrative work-
week 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 re-
quired to work. By implication, agencies could not schedule part-time
employees to work a full-time schedule of 40 hours per week. See Web-
ster’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 author-
ity 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 employ-
ees as a “biweekly basic work requirement 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. Except for the provision of the 1945 Pay Act regarding personnel
ceilings, all of the statutes and regulations concerning part-time employ-
ment or granting agencies employment or scheduling authority remain in
effect. See 5 U.S.C. § 3101 (2012 & Supp. II 2014) (employment authori-
ty); id. §§ 5531(2), 5533(a) (dual compensation); id. § 5542(a) (premium
pay); id. § 6101(a)(3) (scheduling authority); id. § 6121(5)(B) (com-
pressed schedules); id. § 6302(c) (annual and sick leave); 5 C.F.R.
§ 610.102 (2015) (part-time workweek); see also Pub. L. No. 81-784,
§ 301(85) (1950), 64 Stat. 832, 843 (repealing statutory personnel ceil-
ings). 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.
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
B.
We now consider the effect of the Federal Employees Part-Time Career
Employment 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 di-
minish agencies’ authority to set part-time work schedules unless it clear-
ly 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 adminis-
trative 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 dif-
ferent 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 ad-
vance”). 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” whenev-
er its “implications . . . may be altered by the implications of a later
statute.” Fausto, 484 U.S. at 453. A repeal occurs—and thus the pre-
sumption against repeals by implication is applicable—only where a
subsequent statute contradicts “express statutory text,” not “a legal dis-
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39 Op. O.L.C. 99 (2015)
position 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.
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 “permissi-
ble.” Id. at 842–43. Chevron deference, however, is inapplicable in this
context. Courts have held that agencies are not entitled to Chevron defer-
ence 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 pre-
sent 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 interpretation of a “statute of general applicability” (internal
quotation marks omitted)); Salleh v. Christopher, 85 F.3d 689, 692 (D.C.
Cir. 1996) (noting a 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 Interpreta-
tion of “Federal Means-Tested Public Benefit[s]” Under Personal Re-
sponsibility and Work Opportunity Reconciliation Act of 1996, 21 Op.
O.L.C. 21, 34–35 (1997) (distinguishing a 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 administer, 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
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
“research and demonstration program with respect to part-time career
employment.” Id. § 3402(b)(1)–(2). Hence, although OPM’s views con-
cerning 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 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 pro-
hibit agencies from setting part-time schedules outside that range. CRT
favors this reading. See CRT Memorandum at 2–3. The second possible
interpretation is that the Act not only encourages “part-time career em-
ployment” but also redefines part-time employment to include only em-
ployment 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 sec-
tions, 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 employ-
ment “[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 pro-
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 construc-
tion.” Chevron, 467 U.S. at 843 n.9. Applying those tools here, we do not believe the Act
is ambiguous for the reasons set forth below.
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39 Op. O.L.C. 99 (2015)
vides that, “in order to promote part-time career employment opportuni-
ties in all grade levels,” each agency “shall establish and maintain a pro-
gram 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 em-
ployee “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 employ-
ment—“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 particular 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 employ-
ment except part-time career employment unaddressed.
OPM contends that the Act’s definition of part-time career employment
“redefine[s] the specific hours which constitute part-time employment” to
include only “work schedules of 16 to 32 hours per week.” OPM Memo-
randum 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 definition. The Act defines
only the specific term “part-time career employment,” not part-time em-
ployment 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 provi-
sion to another” where it is defined only “for purposes of ” a particular
provision, even if that provision offers “the only definition of [the defined
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
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. Tr., 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 sub-
ject directly: The Act states that its “purpose . . . is to provide increased
part-time career employment opportunities throughout the Federal Gov-
ernment.” Act § 2(b). The Act reiterates this objective in its core provi-
sion, instructing agencies to establish part-time career employment pro-
grams “[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 . . . opportunities”
for and “promote” part-time career employment, principally through the
requirement that agencies establish part-time career employment pro-
grams. 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.
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39 Op. O.L.C. 99 (2015)
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 employment,” 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. Re-
gardless 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 opportu-
nities,” 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 employ-
ees 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 employees. 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 mouse-
holes.” 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
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different kinds of part-time schedules. It is therefore unlikely that, had
Congress intended to prohibit part-time employment other than part-time
career employment as defined in the Act, it would have 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 ex-
clude from [retirement benefits] an employee or group of employees in or
under an Executive agency whose employment is temporary or intermit-
tent.” 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 Memo-
randum 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 to part-time career employees a special guarantee of retirement
benefits—without necessarily prohibiting alternative forms of part-time
employment. Several other provisions of the Act similarly favor part-time
career employees, including the requirement that agencies establish pro-
grams exclusively to promote part-time career employment, 5 U.S.C.
§ 3402(a)(1), the provision altering the way only part-time career employ-
ees are counted for purposes of personnel ceilings, id. § 3404, and the
Act’s stated purpose of “provid[ing] increased part-time career employ-
ment opportunities,” Act § 2(b). 6
6 Moreover, the effect of this amendment was quite limited. The Act expressly pro-
vides 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
115
39 Op. O.L.C. 99 (2015)
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 pertain-
ing to it, such as short-term appointment, 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 Com-
mission (now OPM) may not exclude “an employee who is occupying a
position on a part-time career employment basis” from receiving life
insurance benefits. Act § 4(b).
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 Memorandum 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 Con-
gress 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
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.
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
inconsistency between the statement that OPM “may not exclude . . . part-
time career employ[ees]” and the statement that it “may exclude . . . part-
time employ[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 em-
ployee 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 different-
ly” 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 bene-
fits 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 a protec-
tion 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 em-
ployees “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 employ-
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39 Op. O.L.C. 99 (2015)
ees. 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 incon-
sistent 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 Con-
gress 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 legislation . . . 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, inter-
mittent, 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) (permit-
ting 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) (state-
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
ment 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 did not enact the proration provision to
establish a general principle that government 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 serv-
ing 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 provi-
sion shows that Congress “intended to bring all types of part-time em-
ployment 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 intend-
ed 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.
7 In its estimate of the bill’s costs, the Senate report does not contemplate any savings
to the government 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 less 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.
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39 Op. O.L.C. 99 (2015)
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 part-time employ-
ment 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 employ-
ment but not prohibit alternative forms of part-time employment.
OPM identifies two passages from the House and Senate reports that it
contends support the conclusion that Congress intended to redefine part-
time employment 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
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
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 interpretation, 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
discussing 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:
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 “ar-
rangement by which those individuals defined as working part-time for
the Federal Government include many working 35 to 39 hours per
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39 Op. O.L.C. 99 (2015)
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 “estab-
lish and maintain a program for part-time career employment,” 5 U.S.C.
§ 3402(a)(1). Moreover, the passage’s reference to “part-time employ-
ment” 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 am-
biguous with respect to the question at hand. Some statements in the
House and Senate 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 mean-
ing 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
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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 ar-
rangements 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 un-
likely 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 em-
ploy part-time employees already working more than 32 hours per week.
Congress was aware that agencies employed 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 omis-
sion 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 agen-
cies from requiring full-time employees to accept part-time employment);
Act § 4(c)(2)(B) (grandfathering health benefits for preexisting part-time
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39 Op. O.L.C. 99 (2015)
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.”).
OPM attempted to mitigate this severe consequence of its interpretation
when it promulgated regulations concerning the Act in 1979. In the pre-
amble 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 em-
ployment 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 authori-
ty 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 crea-
tion of part-time career employment positions. Id. § 3402(a)(1). Section
3402(a)(3) thus appears to permit exceptions only to the various proce-
dures 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 defini-
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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
tion of “part-time career employment” falls within that authority.8 OPM’s
interpretation of the Act would therefore either compel a result that Con-
gress apparently did not intend (elimination of part-time schedules of less
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 pas-
sage, 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 require-
ment of less than 80 hours which is 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 com-
pressed 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 compressed 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 defini-
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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39 Op. O.L.C. 99 (2015)
tions 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 inter-
preting 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 pro-
vision 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. § 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. 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 William P. Wisinger, 59 Comp. Gen.
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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Permitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours
365, 365 (1980) (citing prior decisions and legislative history supporting
this view). In 1980, Congress concluded that this longstanding interpreta-
tion 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 em-
ployees a benefit to which other part-time employees would not be enti-
tled—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 Department 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 appointments 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 employment” 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 require-
ments 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 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 inter-
mittent basis”). Hence, this statute too is fully consistent with the view
that the Act did not eliminate part-time employment outside of its defini-
tion of part-time career employment.
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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39 Op. O.L.C. 99 (2015)
For these reasons, we think that the statutes enacted subsequent to the
Act support the first reading of the statute. The Federal Employees Flexi-
ble 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
contained 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 fed-
eral 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 em-
ployment. Nor do we address what administrative steps, if any, would be
required before CRT could begin authorizing part-time employees to work
those schedules.
BRIAN M. BOYNTON
Deputy Assistant Attorney General
Office of Legal Counsel
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