Abbey v. United States , 745 F.3d 1363 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
MARK G. ABBEY, L. ROGER ABEL, ETHAN
ABELOV, KURT G. ABERHORN, MARC M.
ABEYTA, GARY LEE ABPLANALP, STEPHEN J.
ABRAHAM, LYNN M. ABRAM, RUSSELL O.
ABSHER, GEORGE G. ACAMPORA, TRACEY E.
ACAMPORA, DIANE L. ACEVES, THOMAS M.
ACHIN, MICHAEL R. ACKERMAN, KRIS ACORD,
ANDREW G. ACRES, JEFFREY S. ADAIR,
LEONARD J. ADAMCZYK, MICHAEL ADAME,
STEVE ADAMEK, AMANDA M. ADAMS, BETH E.
ADAMS, CARL T. ADAMS, CHARLES B. ADAMS,
AND JAMES P. ADAIR,
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2013-5009
______________________
Appeal from the United States Court of Federal
Claims in No. 07-CV-0272, Chief Judge Emily C. Hewitt.
______________________
Decided: March 21, 2014
______________________
2 ABBEY v. US
GREGORY K. MCGILLIVARY, Woodley & McGillivary, of
Washington, DC, argued for plaintiffs-appellees. With
him on the brief was SARA L. FAULMAN.
HILLARY A. STERN, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellant. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and REGINALD T. BLADES, JR., Assistant Director.
______________________
Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Opinion concurring in part and dissenting in part
filed by Circuit Judge O’MALLEY.
TARANTO, Circuit Judge.
The plaintiffs in this case—the “controllers”—are or
were employed by the Federal Aviation Administration as
air-traffic-control specialists or traffic-management
coordinators. The controllers sued the United States in
the Court of Federal Claims, alleging that the FAA’s
policies governing how to compensate them when they
worked overtime failed to comply with the time-and-a-
half-payment requirement of the Fair Labor Standards
Act of 1938 (FLSA), 29 U.S.C. § 207. They sought damag-
es under 29 U.S.C. § 216(b) and invoked the court’s juris-
diction under the Tucker Act, 28 U.S.C. § 1491. The
Court of Federal Claims ruled in the controllers’ favor,
holding that the agency’s personnel policies are contrary
to the FLSA and are not authorized by any other provi-
sion of law.
We reject the Court of Federal Claims’ essential prem-
ise—that no provision authorizes the FAA to depart from
the FLSA’s overtime-pay provision. We hold that the
ABBEY v. US 3
FAA has such authority under particular provisions of the
federal personnel laws, 5 U.S.C. §§ 5543 and 6120-6133.
We therefore vacate the judgment of the Court of Federal
Claims and remand the case for further proceedings to
determine whether the challenged FAA policies are fully,
or only partly, within the authority of those title 5 exemp-
tions from the FLSA.
BACKGROUND
A
The FLSA generally requires that, when a non-
exempt employee works more than forty hours per week,
the employer must pay the employee for the overtime
hours at a rate of one-and-a-half times the employee’s
regular rate of pay. 29 U.S.C. § 207(a)(1). Unless modi-
fied by other statutes, that provision has applied, since
1974, to federal employees like the controllers. Id.
§ 203(e)(2). But title 5 of the United States Code, which
governs federal employment specifically, includes several
exceptions to the FLSA’s overtime-pay requirement. The
exceptions relevant to this case concern “compensatory
time” and “credit hours” for certain employees.
Section 5543(a)(1) of title 5 provides that, in the case
of irregular or occasional overtime, a federal agency may
provide “compensatory time” instead of money as compen-
sation if the employee so requests: rather than pay dollars
(at a time-and-a-half rate), the agency may provide time
off (on a one-to-one basis, i.e., the same number of hours
off as the overtime worked). 5 U.S.C. § 5543(a)(1). Sec-
tions 6120-6133 of title 5 address employees who work
flexible schedules rather than traditional forty-hour
workweeks, authorizing two forms of non-cash compensa-
tion for such employees. First, the provisions authorize
an agency to grant an employee compensatory time off for
overtime hours, in lieu of payment, at the request of the
employee. Id. §§ 6123(a)(1), 6121(6). Second, the provi-
sions authorize the grant of “credit hours,” which are “any
4 ABBEY v. US
hours, within a flexible schedule established under sec-
tion 6122 of this title, which are in excess of an employee’s
basic work requirement and which the employee elects to
work so as to vary the length of a workweek or a work-
day.” Id. § 6121(4). The employee can use credit hours
“to reduce the length of the workweek or another work-
day” without forfeiting pay or using leave. Id.
§ 6122(a)(2). An employee may accumulate up to 24
credit hours in one pay period, id. § 6126(a), and if the
employee stops working a flexible schedule, the agency
must pay for those hours at the employee’s current rate of
pay, id. § 6126(b).
Before 1996, the FAA relied on the exemptions con-
tained in title 5 for the authority to compensate the
controllers with compensatory time and credit hours in
lieu of FLSA-mandated overtime pay. Then, in late 1995,
Congress passed the Department of Transportation and
Related Agencies Appropriations Act, 1996 (“Appropria-
tions Act”), which authorized several reforms to the FAA’s
operations that were to take effect in 1996. Pub. L. No.
104-50, § 347, 109 Stat. 436, 460 (1995), codified as
amended at 49 U.S.C. § 40122(g). Two provisions are
important here. Section 40122(g)(1) directed the FAA to
develop a new personnel policy to provide the agency
“greater flexibility” in determining employee compensa-
tion and other matters:
In consultation with the employees of the Admin-
istration and such non-governmental experts in
personnel management systems as he may em-
ploy, and notwithstanding the provisions of title 5
and other Federal personnel laws, the Administra-
tor shall develop and implement, not later than
January 1, 1996, a personnel management system
for the Administration that addresses the unique
demands on the agency’s workforce. Such a new
system shall, at a minimum, provide for greater
ABBEY v. US 5
flexibility in the hiring, training, compensation,
and location of personnel.
49 U.S.C. § 40122(g)(1) (emphases added). And Section
40122(g)(2) provides:
The provisions of title 5 shall not apply to the new
personnel management system developed and im-
plemented pursuant to paragraph (1), with the ex-
ception of--
(A) section 2302(b), relating to whistle-
blower protection, including the provisions
for investigation and enforcement as pro-
vided in chapter 12 of title 5;
(B) sections 3308-3320, relating to veter-
ans’ preference;
(C) chapter 71, relating to labor-
management relations;
(D) section 7204, relating to antidiscrimi-
nation;
(E) chapter 73, relating to suitability, se-
curity, and conduct;
(F) chapter 81, relating to compensation
for work injury;
(G) chapters 83-85, 87, and 89, relating to
retirement, unemployment compensation,
and insurance coverage;
(H) sections 1204, 1211-1218, 1221, and
7701-7703, relating to the Merit Systems
Protection Board; and
(I) subsections (b), (c), and (d) of section
4507 (relating to Meritorious Executive or
Distinguished Executive rank awards) and
subsections (b) and (c) of section 4507a (re-
6 ABBEY v. US
lating to Meritorious Senior Professional
or Distinguished Senior Professional rank
awards). . . .
Id. § 40122(g)(2) (emphasis added).
In response to those directives, the FAA developed
and implemented a new personnel management system
that would take effect April 1, 1996. In so doing, the
agency concluded that the language of section 40122(g)
permitted it to incorporate into the new system certain
provisions of title 5 relating to overtime compensation
that it had relied on for modification of FLSA require-
ments before the Appropriations Act. See Abbey et al. v.
United States (Abbey III), 106 Fed. Cl. 254, 260 (2012).
The agency concluded: “Although [the Appropriations Act]
exempts the new personnel system from substantially all
of Title 5, [the] FAA has the discretion to adopt the sub-
stance of any portion of Title 5 as deemed appropriate.”
J.A. 1009.
Soon after the FAA implemented its new system,
Congress enacted the Federal Aviation Reauthorization
Act of 1996, Pub. L. No. 104-264, §§ 201-30, 110 Stat.
3213, 3232 (Oct. 9, 1996) (“Reauthorization Act”). The Act
added the following to 49 U.S.C. § 106(l):
Except as provided in [subsections (a) and (g) of
section 40122], the Administrator is authorized, in
the performance of the functions of the Adminis-
trator, to appoint, transfer, and fix the compensa-
tion of such officers and employees, including
attorneys, as may be necessary to carry out the
functions of the Administrator and the Admin-
istration. In fixing compensation and benefits of
officers and employees, the Administrator shall
not engage in any type of bargaining, except to the
extent provided for in section 40122(a), nor shall
the Administrator be bound by any requirement to
ABBEY v. US 7
establish such compensation or benefits at particu-
lar levels.
49 U.S.C. § 106(l)(1) (emphases added).
Under its newly adopted personnel management sys-
tem, the FAA continued to provide compensatory time for
certain hours worked beyond its employees’ regular work
schedules. Abbey III, 106 Fed. Cl. at 263. When a man-
ager directed an employee to work overtime, that employ-
ee could choose to earn compensatory time in lieu of cash
compensation. Id. Although FAA policy limited a control-
ler to 160 compensatory hours, in practice the FAA al-
lowed accumulation of more. J.A. 89. Between 1998 and
May 2007, compensatory time had no use-or-lose expira-
tion date. Abbey III, 106 Fed. Cl. at 263. In May 2007,
however, the government’s policies changed—
compensatory time earned before that date would expire
by May 14, 2010, and any new compensatory time had to
be used within one year. Id.
The FAA also permitted its employees working a flex-
ible work schedule to earn credit hours. Id. at 261-62. An
employee could elect to work beyond his or her normal
workweek in exchange for credit hours, with one credit
hour earned for each above-the-normal-week hour
worked. Id. at 262. The employee could use the credit
hours only to take time off at a later date and could not
receive cash value for them. Id. Between 1998 and
September 3, 2006, the agency imposed no cap on the
number of credit hours an employee could accrue; after
that date, an employee could accrue only 24 credit hours;
and if a controller had accrued more than 24 credit hours
before September 2006, that employee could retain those
credit hours but could not accrue additional credit hours
until the balance of unused credit hours fell below 24. Id.
On October 1, 2009, the FAA discontinued its use of credit
hours. Id.
8 ABBEY v. US
B
On May 1, 2007, the controllers filed a four-count
complaint in the Court of Federal Claims. The complaint
invokes the court’s jurisdiction under the Tucker Act
based on the claim for money under the damages provi-
sion of the FLSA, 29 U.S.C. § 216(b). Count II of the
complaint, the only count at issue in this appeal, alleges
that the United States violated the FLSA by paying the
controllers in the form of compensatory time or credit
hours, rather than in money at a time-and-a-half rate, for
hours worked in excess of forty hours a week. The United
States, agreeing that the court had jurisdiction, moved to
dismiss the count for failure to state a claim (a motion
then treated as a motion for summary judgment), and the
controllers moved for summary judgment of government
liability. See Abbey v. United States (Abbey I), 82 Fed. Cl.
722, 728 (2008).
On July 31, 2008, the Court of Federal Claims grant-
ed the controllers’ motion for summary judgment on count
II (and denied the government’s motion), holding that the
FAA had no authority to depart from the overtime-pay
requirement of the FLSA, 29 U.S.C. § 207(a), by providing
compensatory time or credit hours to employees, even at
their request, in place of time-and-a-half pay. Id. at 745.
The court concluded that the express statutory exceptions
to the FLSA, including 5 U.S.C. §§ 5543 and 6120-6133,
did not apply to the controllers. Id. at 743. Because
sections 5543 and 6120-6133 are not listed “among the
exceptions to the express provision of 49 U.S.C.
§ 40122(g)(2) that ‘[t]he provisions of title 5 shall not
apply to [the FAA’s] new personnel management system,’”
the court reasoned, the FAA could not rely on those
provisions for authority to grant employees compensatory
time off at a straight time rate. Id. at 731-32. The court
read the phrase “shall not apply” to mean that no title 5
provisions were available to the FAA—neither provisions
that constrained the FAA nor provisions that empowered
ABBEY v. US 9
the FAA—other than those specifically enumerated in 49
U.S.C. § 40122(g)(2). Id. at 731-32.
The court also rejected the government’s argument
that, even apart from sections 5543(a)(1) and 6123(a)(1) of
title 5, the agency was given authority to act contrary to
the FLSA overtime-pay requirement by 49 U.S.C.
§§ 40122(g)(1) and 106(l). Abbey I, 82 Fed. Cl. at 733. As
described above, section 40122(g)(1) authorized the FAA
to create a personnel management system that “pro-
vide[d] for greater flexibility” in the compensation of
personnel, and section 160(l) authorized the FAA to set
compensation and benefit guidelines for FAA employees
without being “bound by any requirement to establish
such compensation or benefits at particular levels.” The
Court of Federal Claims determined that those provisions
did not authorize departure from the command of FLSA
if, as the court had concluded, no other provision coun-
termanded that command. Id. at 734-38. Finally, the
court concluded that 29 U.S.C. § 204(f), which authorizes
the Office of Personnel Management to administer the
FLSA for federal employees, does not authorize the gov-
ernment to override the applicability of otherwise-
applicable FLSA provisions like the overtime-pay re-
quirement. Id. at 739-42.
Having concluded that the FLSA’s overtime-pay
command applied to the FAA, the court held that the
FAA’s practice of using compensatory time and credit
hours was unlawful. Id. at 745. The court subsequently
reached a final judgment on the controllers’ claim to
damages. Abbey et al. v. United States, No. 1:07-cv-272-
ECH (Fed. Cl. Sept. 7, 2012), ECF 287. The government
appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
10 ABBEY v. US
DISCUSSION
A
The threshold question is whether the Court of Fed-
eral Claims had jurisdiction over the controllers’ claims.
The Tucker Act grants the court jurisdiction over a non-
tort monetary claim “against the United States found-
ed . . . upon . . . any Act of Congress.” 28 U.S.C.
§ 1491(a)(1). 1 As the courts have held at the govern-
ment’s urging for three decades, since soon after the
FLSA was extended to the federal government by the Fair
Labor Standards Amendments Act of 1974, Pub. L. No.
93-259, § 6(a), 88 Stat. 55, 58 (1974), the Tucker Act
applies to a claim against the government under the
monetary-damages provision of the FLSA, 29 U.S.C.
§ 216(b). See Graham v. Henegar, 640 F.2d 732, 734 (5th
Cir. 1981) (noting that “[t]he Government . . . argues
that . . . the Tucker Act is the sole basis of jurisdiction”
over FLSA actions against the government for damages
under 29 U.S.C. § 216(b), the court agrees and orders
transfer to Court of Claims of claim for more than
$10,000); Beebe v. United States, 640 F.2d 1283, 1288-89
(Ct. Cl. 1981); see also Waters v. Rumsfeld, 320 F.3d 265,
270-72 (D.C. Cir. 2003); El-Sheikh v. United States, 177
F.3d 1321, 1324 (Fed. Cir. 1999); Saraco v. United States,
61 F.3d 863, 866 (Fed. Cir. 1995); Parker v. King, 935 F.2d
1174, 1177-78 (11th Cir. 1991); Zumerling v. Devine, 769
F.2d 745, 748-49 (Fed. Cir. 1985). 2 Under this straight-
1 If the claim is for no more than $10,000, district
courts have concurrent jurisdiction under the Little
Tucker Act, 28 U.S.C. § 1346(a)(2). Regardless of the
amount claimed, appellate jurisdiction lies in this court
for a claim under a non-tax statute like the FLSA. Id.
§ 1295(a)(2) & (3).
2 In addition, see, e.g., Adams v. United States, 471
F.3d 1321 (Fed. Cir. 2006); Adams v. United States, 391
ABBEY v. US 11
forward logic and 30-year-old, multi-circuit, apparently
unbroken precedent, the Court of Federal Claims had
jurisdiction here.
Before filing this appeal, the government agreed that
the Court of Federal Claims had jurisdiction over this
case under the Tucker Act. It now argues, however, that
the Supreme Court’s decision in United States v. Bormes,
133 S. Ct. 12 (2012), makes so great a change in analyzing
Tucker Act jurisdiction that it requires overturning the
longstanding, government-supported interpretation that
the Tucker Act applies to FLSA damages cases against
the United States, even though Bormes did not involve
the FLSA. We disagree.
The Supreme Court in Bormes confirmed that Tucker
Act jurisdiction can be “displaced” by other statutes that
themselves lay out remedial schemes that are sufficiently
complete to imply that they “supersede[]” the Tucker Act
as a basis for suing the United States. 133 S. Ct. at 18.
The Court relied on various precedents that bar “an
additional remedy in the Court of Claims . . . when it
contradicts the limits of a precise remedial scheme.”
Id. The Court found the Fair Credit Reporting Act to be
such a scheme, because, among other things, it gives
F.3d 1212 (Fed. Cir. 2004); Berg v. Newman, 982 F.2d 500
(Fed. Cir. 1992); Abreu v. United States, 948 F.2d 1229
(Fed. Cir. 1991); Doyle v. United States, 931 F.2d 1546
(Fed. Cir. 1991); Cook v. United States, 855 F.2d 848 (Fed.
Cir. 1988); Lanehart v. Horner, 818 F.2d 1574 (Fed. Cir.
1987); Slugocki v. United States, 816 F.2d 1572 (Fed. Cir.
1987); United States v. Cook, 795 F.2d 987 (Fed. Cir.
1986); Qualls v. United States, 678 F.2d 190 (Ct. Cl.
1982). See also, e.g., Moore v. Donley, No. Civ-12-1003-
HE, 2013 WL 3940898 (W.D. Okla. July 30, 2013) (grant-
ing government motion to transfer FLSA suit to Court of
Federal Claims).
12 ABBEY v. US
jurisdiction to identified courts—including “any appropri-
ate United States district court,” 15 U.S.C. § 1681p—and
hence “‘precisely define[s] the appropriate forum.’” Id. at
19 (quoting Hinck v. United States, 550 U.S. 501, 507
(2007)). Thus, the Fair Credit Reporting Act itself “ena-
bles claimants to pursue in court the monetary relief
contemplated by the statute” without any resort to the
Tucker Act, id.—indeed, in a forum (district court) not
available under the Tucker Act for claims over $10,000.
In that context, “any attempt to append a Tucker Act
remedy to the statute’s existing remedial scheme inter-
feres with its intended scope of liability.” Id. at 20.
That ruling and its rationale do not extend to this
FLSA suit. In sharp contrast to the statute at issue in
Bormes, the FLSA contains no congressional specification
of a non-Tucker Act forum for damages suits, or any other
basis, from which one can infer that application of the
Tucker Act would override choices about suing the gov-
ernment embodied in the remedial scheme of the statute
providing the basis for liability. That statute-specific
conclusion takes this FLSA case outside the reach of the
Bormes principle.
In 1974, Congress unmistakably provided for judicial
imposition of monetary liability on the United States for
FLSA violations. (In Bormes, in contrast, the government
contested, and the Court left open, whether the Fair
Credit Reporting Act subjected the United States to
damages suits for its violation. 133 S. Ct. at 20.) The
1974 Congress expanded FLSA coverage to “any individu-
al employed by the Government of the United States.” 29
U.S.C. § 203(e)(2)(A); see also id. § 203(d) (“Employer”). It
provided that “[a]ny employer who violates the provisions
of section 206 or section 207 of [the FLSA] shall be liable
to the employee or employees affected.” Id. § 216(b). And
it added:
ABBEY v. US 13
An action to recover the liability prescribed in ei-
ther of the preceding sentences may be main-
tained against any employer (including a public
agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and
in behalf of himself or themselves and other em-
ployees similarly situated.
Id.
The crucial language—“any Federal or State court of
competent jurisdiction”—does not specify a forum that is
contrary to that specified by the Tucker Act. In this
respect, it differs critically from the Fair Credit Reporting
Act. Indeed, given that, in the FLSA, Congress plainly
meant to subject the United States to damages suits for
violations (a disputed point for the statute at issue in
Bormes), the fairest reading of section 216(b) is that it
affirmatively invokes the forum specification for those
damages suits found outside the four corners of the FLSA.
The Tucker Act is the only available specification that has
been identified. Thus, not only does the FLSA embody no
choices about remedy that might be impaired by Tucker
Act coverage; it is best read as affirmatively, if implicitly,
invoking such coverage.
In its oral argument to the Supreme Court in Bormes,
the government noted the possible distinction of the FLSA
from the Fair Credit Reporting Act by quoting 29 U.S.C.
§ 216(b) and observing that “it’s possible to read that
statute as essentially incorporating the Tucker Act as
setting forth what the court of competent jurisdiction
would be.” Tr. of Oral Argument, United States v.
Bormes, 133 S. Ct. 12 (2012) (No. 11-192), 2012 WL
4506576, at *9. We think that this is the best reading.
With section 216(b) so plainly having authorized damages
suits against the United States, it is natural to read the
provision as implicitly specifying a forum (the Tucker Act
forum) in order to complete the waiver of sovereign im-
14 ABBEY v. US
munity, given the background principle that waivers of
sovereign immunity are generally tied to particular
courts. See United States v. Shaw, 309 U.S. 495, 501
(1940); Minnesota v. United States, 305 U.S. 382, 388
(1939); McElrath v. United States, 102 U.S. 426, 440
(1880); U.S. Marine, Inc. v. United States, 722 F.3d 1360,
1365-66 (Fed. Cir. 2013).
We long ago adopted this reading. We explained that
the jurisdictional language of the FLSA “require[s] one to
look elsewhere to find out what court, if any, has jurisdic-
tion.” Zumerling, 769 F.2d at 749. The United States
reiterated the point in its brief in the Saraco case in 1994:
In a suit against the Federal Government pursu-
ant to section 216(b), however, there is no reason
to construe the term “court of competent jurisdic-
tion” as extending to courts lacking Tucker Act ju-
risdiction. Where the Federal Government is sued
for damages or back pay, the court of competent
jurisdiction can only be one exercising Tucker Act
jurisdiction, i.e., the [Court of Federal Claims], or,
for claims less than $10,000, a district court.
Brief for Defendants-Appellees, Saraco v. United States,
61 F.3d 1321 (1995) (No. 94-3388), 1994 WL 16181941, at
*8. The government added that “the FLSA cannot be
viewed as a waiver of sovereign immunity independent of
the Tucker Act” and endorsed the trial court’s conclusion
that “‘[t]he waiver of sovereign immunity applicable to
[FLSA] claims is found in the Tucker Act.’” Id.
The inquiry into displacement, or supersession, does
not incorporate a rigid rule that, for a statute to displace
the Tucker Act, the statute must itself create an alterna-
tive remedy and identify a forum. For example, the
Supreme Court in Nichols v. United States held that
Congress, without itself designating a forum, clearly
specified that the remedy for challenged collections of
customs duties was not a suit against the United States
ABBEY v. US 15
but suits against individual customs officers (which
require no waiver of sovereign immunity, such waivers
generally being court-specific). 7 Wall. (74 U.S.) 122, 131,
130 (1868); see Cary v. Curtis, 44 U.S. 236, 240 (1845);
Remedies Against the United States and Its Officials, 70
HARV. L. REV. 827, 838-40 (1957). The crucial point for
present purposes is that there is no basis, in any forum
specification or otherwise, for finding that Congress in the
FLSA made a remedial choice that explicitly or implicitly
displaces Tucker Act suits—which, rather, the FLSA is
best read as affirmatively approving.
This conclusion is not only what we think is the best
view of the FLSA when examined through the lens of
Bormes. It is also supported by a consistent body of
precedent from this court and others, apparently not
meaningfully challenged or criticized over a 30-year span
beginning soon after Congress extended the FLSA to
authorize money suits against the United States for its
violation. With the statutory analysis readily allowing
the interpretation, this body of statutory precedent,
though from outside the Supreme Court, is entitled to
substantial weight. See, e.g., Blue Chip Stamps v. Manor
Drug Stores, 421 U.S. 723, 733 (1975).
The weight of this particular body of precedent is es-
pecially great because of the regular, uncontested practice
under it. For decades, a significant number of judgments
have been rendered against the United States under
section 216(b), year in and year out, and the Department
of the Treasury has recorded them annually with—at
least for the last decade, perhaps longer—the forum
identified as the “CT OF CLAIMS.” 3 Moreover, since
3 That is the identification in the payment reports
from 2003 to 2013, which are available, in Excel spread-
sheet form, on the website of the Department of Treasury.
See, e.g., All Payments Fiscal Year 2003, All Payments
16 ABBEY v. US
1981, Congress has acted a number of times to amend
both the FLSA and statutes that modify the FLSA specifi-
cally for federal employees. 4 FLSA duties imposed on the
United States, enforced under the Tucker Act for more
than three decades, are part of a legal field regularly
tended by Congress.
Fiscal Year 2008, and the 2013 Judgment Fund Trans-
parency Report to Congress, Financial Management
Service, United States Dep’t of the Treasury, available at
https://jfund.fms.treas.gov/jfradSearchWeb/JFPymtSearch
Action.do, https://www.fms.treas.gov/judgefund/congress-
reports.html.
4 As to the FLSA, see Pub. L. No. 101-157, 103 Stat.
938 (1989); Pub. L. No. 101-508, 104 Stat. 1388 (1990);
Pub. L. No. 104-174, 110 Stat. 1553 (1996); Pub. L. No.
110-233, 122 Stat. 881 (2008). For amendments of over-
time and compensatory-time provisions specific to federal
employees, 5 U.S.C. §§ 5542 & 5543, see Pub. L. No. 101-
509, 104 Stat. 1389, 1427 (1990); Pub. L. No. 102-378, 106
Stat. 1346, 1352 (1992); Pub. L. No. 103-329, 108 Stat.
2382, 2427 (1994); Pub. L. No. 104-201, 110 Stat. 2422,
2738 (1996); Pub. L. No. 105-277, 112 Stat. 2681-102, -
519, -829 (1998); Pub. L. No. 106-558, 114 Stat. 2776
(2000); Pub. L. No. 108-136, 117 Stat. 1392, 1636 (2003);
Pub. L. No. 109-163, 119 Stat. 3319 (2006); Pub. L. No.
111-383, 124 Stat. 4137, 4383 (2011). For amendments to
provisions concerning overtime and flexible schedules
specific to federal employees, 5 U.S.C. §§ 6120-6133, see
Pub. L. No. 97-221, 96 Stat. 227 (1982); Pub. L. No. 101-
163, 103 Stat. 1041, 1065 (1989); Pub. L. No. 102-40, 105
Stat. 187, 240 (1991); Pub. L. No. 102-378, 106 Stat. 1346,
1352 (1992); Pub. L. No. 103-329, 108 Stat. 2382, 2423
(1994); Pub. L. No. 104-106, 110 Stat. 186, 433 (1996);
Pub. L. No. 111-68, 123 Stat. 2023, 2034 (2009).
ABBEY v. US 17
For these reasons, like the Court of Federal Claims,
see, e.g., Barry v. United States, 113 Fed. Cl. 774 (2013),
we conclude that the Supreme Court’s decision in Bormes
does not call for a different result from the one that our
precedent prescribes for this case. See Conforto v. MSPB,
713 F.3d 1111 (Fed. Cir. 2013) (analyzing new Supreme
Court decision to identify whether it called for departure
from our precedent on an issue not squarely decided by
the new decision); Doe v. United States, 372 F.3d 1347,
1354-56 (Fed. Cir. 2004); Texas Am. Oil Corp. v. U.S.
Dep’t of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en
banc).
B
On the merits, the question before us is whether the
FAA had authority to implement a personnel manage-
ment system that conflicts with the FLSA. We approach
the question in two steps. We ask first whether such
authority exists apart from any continuing authority
under 5 U.S.C. §§ 5543 and 6120-6133. Concluding that it
does not, we next ask whether those particular title 5
provisions provide such authority.
1
We agree with the Court of Federal Claims that un-
less 5 U.S.C. §§ 5543 and 6120-6133 continue to authorize
a departure from the money-payment overtime command
of the FLSA, the FAA cannot act contrary to that com-
mand. As the government agrees, the controllers are
employees who are protected by the FLSA. In order for
the FAA’s policy of compensatory time and credit hours to
be lawful, some other statutory provision must exempt
the FAA from complying with 29 U.S.C. § 207(a). We
conclude that the government has identified no such
provision if 5 U.S.C. §§ 5543 and 6120-6133 are unavaila-
ble to the FAA as exemption authority.
18 ABBEY v. US
The government has invoked two statutory provisions
apart from 5 U.S.C. §§ 5543 and 6120-6133. One is in the
FLSA itself, 29 U.S.C. § 204(f), which provides for OPM
implementation for federal employees. The other is 49
U.S.C. § 40122(g)(1)’s authorization to the FAA to create a
personnel management system that provides “greater
flexibility in . . . compensation.” Neither of those provi-
sions, standing alone (i.e., putting aside 5 U.S.C. §§ 5543
and 6120-6133), can override the FLSA’s requirement
that employees who work overtime must be compensated
with money at a rate of at least one and a half times their
regular rate of pay.
Section 204(f) plainly contains no authorization for
any departure from the FLSA’s command regarding
overtime pay. It simply designates OPM as the agency
responsible for implementing the FLSA as it applies to
federal employees. It says nothing that allows OPM to
override the FLSA’s substantive constraints. In the
absence of any text providing otherwise, OPM’s imple-
mentation authority must be exercised within the clear
constraints set by the statute it administers. See Chev-
ron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 843-44 (1984).
We also conclude that 49 U.S.C. § 40122(g)(1) does not
itself authorize override of the straightforward, specific
command of 29 U.S.C. § 207(a). Section 40122(g)(1) does
not meet the high standards for what would amount to an
implied repeal. See, e.g., Hui v. Castaneda, 559 U.S. 799,
809-10 (2010); Matsushita Elec. Indus. Co. v. Epstein, 516
U.S. 367, 381 (1996); Morton v. Mancari, 417 U.S. 535,
550 (1974); Posadas v. Nat’l City Bank of N.Y., 296 U.S.
497, 503 (1936); Wood v. United States, 41 U.S. 342, 363
(1842). That conclusion is reinforced by the principle that
“‘the specific governs the general.’” RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 566 U.S. ___, ___, 132
S. Ct. 2065, 2071 (2012).
ABBEY v. US 19
Section 40122(g)(1) is not in irreconcilable conflict
with the FLSA’s overtime requirement. To the contrary,
if it were unambiguously clear that Congress meant in
section 40122(g)(2) to eliminate the FLSA-modifying
authority provided in 5 U.S.C. §§ 5543 and 6120-6133, the
general policy directive to the FAA to create a personnel
plan with “greater flexibility,” taken by itself, would not
be specific and clear enough to countermand both that
elimination and the clear command of the FLSA. It would
have to be understood to prescribe flexibility only within
otherwise-applicable clear statutory constraints, i.e., only
with respect to employment matters (e.g., regular pay,
leave, retirement, benefits) that are not the subject of a
specific command like that of 29 U.S.C. § 207(b). And the
legislative history could not compel a different conclusion.
Indeed, that legislative history does not address what
effect section 40122(g)(1) was meant to have apart from
the continuing availability of 5 U.S.C. §§ 5543 and 6120-
6133 as authority for the FAA.
2
We conclude, however, that 5 U.S.C. §§ 5543 and
6120-6133 did survive the Appropriations Act to provide
continued authorization for the FAA’s departure from the
FLSA. Section 40122(g)(1) plays an important role in that
conclusion, which demands considerably less of the provi-
sion than a strict implied-repeal analysis.
We readily recognize that it is possible to draw the
opposite conclusion from the language of 49 U.S.C.
§ 40122(g)(2) read in isolation: that provision says that
“[t]he provisions of title 5 shall not apply to the new
personnel management system . . . with the exception of”
certain title 5 provisions that do not include 5 U.S.C.
§§ 5543 and 6120-6133. In reaching the opposite conclu-
sion, we rely on the need to read the provision, not in
isolation, but in the context of the statutes of which it was
and is a part. See, e.g., Graham Cnty. Soil & Water
20 ABBEY v. US
Conservation Dist. v. United States ex rel. Wilson, 559
U.S. 280, 290 (2010); Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006); Gustafson v. Alloyd Co., 513 U.S. 561,
568 (1995); King v. St. Vincent’s Hosp., 502 U.S. 215, 221
(1991). We think that it is permissible to read the decla-
ration that “[t]he provisions of title 5 shall not apply to
the new personnel management system” to mean only
that title 5 provisions shall not constrain the new sys-
tem—thus not eliminating title 5 provisions, like sections
5543 and 6120-6133, that empower the FAA in defining
the new system. In context, we think, this is the better
reading of section 40122(g)(2). In any event, it is a read-
ing available to the FAA under the discretion it has under
Chevron to adopt reasonable interpretations when the
statute does not unambiguously prescribe the result.
The crucial contextual support comes from two provi-
sions. In the Appropriations Act that added 40122(g)(2),
in the immediately preceding paragraph, Congress ex-
pressly directed the FAA, “notwithstanding the provisions
of title 5 and other Federal personnel laws,” to develop a
personnel management system that, “at a minimum,
provide[s] for greater flexibility in the hiring, training,
compensation, and location of personnel.” 49 U.S.C.
§ 40122(g)(1) (emphasis added). Shortly after giving the
FAA this mandate, Congress enacted the Reauthorization
Act authorizing the FAA administrator to fix employee
compensation. Id. § 106(l)(1). Congress directed that the
administrator would not “be bound by any requirement to
establish such compensation or benefits at particular
levels,” except as provided in section 40122(a) and (g). Id.
§ 106(l)(1) (emphasis added).
The FAA undisputedly had the authority to use com-
pensatory time and credit hours in lieu of FLSA-
mandated overtime pay before the Appropriations Act
was passed. The section 40122(g)(1) directive that the
FAA provide “greater flexibility” must refer, for the as-
sessment of what is “greater,” to a comparison with the
ABBEY v. US 21
pre-enactment state of authority. Reading section
40122(g)(2) to eliminate the pre-enactment authority
would significantly reduce agency flexibility and so is in
great tension with the “greater flexibility” directive. See
Whalen v. United States, 93 Fed. Cl. 579, 594 (2010).
That directive therefore supports the conclusion that
what “shall not apply” in title 5 is what constrains the
employer, not what authorizes the employer to depart
from other constraints. Moreover, the “notwithstanding
the provisions of title 5” language of section 40122(g)(1),
coupled to the greater-flexibility directive, accords with
that interpretation. And the language of section
§ 106(l)(1) strongly reinforces the interpretation in stating
that the FAA is not to “be bound by any requirement” to
set compensation or benefits at particular levels. 49
U.S.C. § 106(l)(1) (emphasis added). It is reasonable to
understand the section 40122(g)(2) language likewise to
be limited to relieving the FAA of requirements.
The legislative histories of the Appropriations Act and
Reauthorization Act provide support for this reading of
section 40122(g)(2). Through the Appropriations Act,
Congress sought to reform the operations of the FAA in
order to “exempt[ ] the [FAA] from current procurement
and personnel laws that hinder its flexibility.” H.R. Rep.
No. 104–475, pt.1, at 31 (1996) (emphasis added). Certain
members of Congress expressed concern about waiving
the provisions of title 5 that provide employees certain
safeguards, see 141 Cong. Rec. 29,362 (1995) (statement of
Rep. Coleman); id. at 29,363 (statement of Rep. Obey);
141 Cong. Rec. 22,896 (1995) (statement of Sen. Glenn),
but the language of concern remained in the final bill,
which became law with an enumeration of only certain
employee-protection provisions of title 5 that were to be
mandatory. 49 U.S.C. § 40122(g)(2). The Reauthorization
Act that soon followed was intended to “provide for a
comprehensive overhaul of the entire FAA by giving the
FAA much more autonomy.” S. Rep. No. 104-251, at 11
22 ABBEY v. US
(1996). Thus, it was designed to provide the FAA with the
“authority to develop new, innovative personnel and
procurement systems, and [the ability] to waive many
federal laws and regulations in the areas of personnel and
procurement that inhibit the effectiveness of FAA.” Id.
The contemplation of flexibility greater than before en-
actment supports the interpretation of section
40122(g)(2)’s “shall not apply” language to make that
greater flexibility possible.
This interpretation of section 40122(g) is consistent
with our decisions in Brodowy v. United States, 482 F.3d
1370 (Fed. Cir. 2007), and Gonzalez v. Dep’t of Trans., 551
F.3d 1373 (Fed. Cir. 2009), neither of which addressed the
issue presented here. Brodowy involved a claim under 5
U.S.C. § 5334(b), which—despite not being listed as an
exception to the general “shall not apply” language of
section 40122(g)(2)—the FAA incorporated into its per-
sonnel plan. 482 F.3d at 1375. In Gonzalez, we consid-
ered whether a controller could be awarded back pay
under the Back Pay Act, 5 U.S.C. § 5596, another provi-
sion of title 5 not enumerated in section 40122(g)(2)—but
this one not incorporated by the FAA into its personnel
management system. The court held that the controller
could not seek back pay under title 5, but instead had to
“comply with the agency’s own personnel management
system which provides four different procedural avenues
for that kind of claim.” Gonzalez, 551 F.3d at 1376. The
decision thus involved a title 5 provision that would
constrain the FAA if it applied, not a title 5 provision that
empowers the FAA. It is thus fully consistent with the
interpretation of section 40122(g) we approve here.
In short, it is reasonable to read section 40122(g)(2) as
leaving in place the provisions of 5 U.S.C. §§ 5543 and
6120-6133 that authorize the FAA to depart from the
otherwise-applicable commands of 29 U.S.C. § 207. And,
we conclude, those are the only provisions the FAA has
identified that provide such authority.
ABBEY v. US 23
C
Given that conclusion, the validity of the challenged
FAA policies on compensatory time and credit hours in
lieu of FLSA overtime pay turns on whether those policies
are within the authorization of 5 U.S.C. §§ 5543 and 6120-
6133. The Court of Federal Claims did not resolve that
issue, and the discussion at oral argument in this court
confirms that the issue warrants further exploration. See,
e.g., Oral Argument at 26:49-28:36, 29:15-30:25, 35:55-
38:30, 40:01-42:21. We remand for that purpose. If the
government on remand newly points to provisions it has
not previously identified as supplying authority for the
departures from the FLSA, the Court of Federal Claims
should consider whether the government has adequately
preserved its ability to so argue.
Accordingly we vacate the decision of the Court of
Federal Claims, vacate the accompanying damages
award, and remand the case for further proceedings
consistent with this opinion.
No costs.
VACATED AND REMANDED
United States Court of Appeals
for the Federal Circuit
______________________
MARK G. ABBEY, L. ROGER ABEL, ETHAN
ABELOV, KURT G. ABERHORN, MARC M.
ABEYTA, GARY LEE ABPLANALP, STEPHEN J.
ABRAHAM, LYNN M. ABRAM, RUSSELL O.
ABSHER, GEORGE G. ACAMPORA, TRACEY E.
ACAMPORA, DIANE L. ACEVES, THOMAS M.
ACHIN, MICHAEL R. ACKERMAN, KRIS ACORD,
ANDREW G. ACRES, JEFFREY S. ADAIR,
LEONARD J. ADAMCZYK, MICHAEL ADAME,
STEVE ADAMEK, AMANDA M. ADAMS, BETH E.
ADAMS, CARL T. ADAMS, CHARLES B. ADAMS,
AND JAMES P. ADAIR,
Plaintiffs-Appellees,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2013-5009
______________________
Appeal from the United States Court of Federal
Claims in No. 07-CV-0272, Chief Judge Emily C. Hewitt.
______________________
O’MALLEY, Circuit Judge, concurring in part, dissenting
in part.
I agree with most of the thoughtful analysis in the
majority opinion. I cannot, however, agree with the
2 ABBEY v. US
ultimate conclusion that the Federal Aviation Admin-
istration (“FAA”) is exempt from the overtime obligations
imposed on employers under the Fair Labor Standards
Act of 1938 (“FLSA”), 29 U.S.C. § 207(a). Specifically, I
agree that: (1) the Court of Federal Claims had jurisdic-
tion over the controllers’ claims under the Tucker Act, 28
U.S.C. § 1491(a)(1); (2) the FAA is an employer within the
meaning of the FLSA and is generally bound by its provi-
sions; (3) the government has failed to identify an express
statutory provision that exempts the FAA from compli-
ance with the overtime requirements under the FLSA;
and (4) the Department of Transportation and Related
Agencies Appropriations Act, 1996 (“Appropriations Act”)
does not prohibit the FAA from adopting personnel poli-
cies that mirror those in Title 5 of the United States Code
and from implementing those policies in ways contem-
plated by Title 5’s implementing regulations, even when
the specific Title 5 policy is not expressly enumerated in
the Appropriations Act. I do not agree, however, that the
FAA is free to adopt a personnel policy from an unenu-
merated section of Title 5 when doing so would violate an
otherwise applicable provision of governing federal law.
In other words, the flexibility granted to the FAA under
the Appropriations Act is not unlimited by other govern-
ing provisions of law. And it does not give the FAA’s
optional personnel policy choices the force of a Congres-
sional enactment sufficient to overcome any such legal
limitations.
For these reasons, I respectfully dissent from the
judgment the majority enters. I would affirm the Claims
Court’s judgment in favor of the controllers and find that:
(1) the express statutory exemption from the overtime
obligations of the FLSA in 5 U.S.C §§ 5543 and 6120–
6133 no longer applies to the FAA and (2) the FAA must
comply with the FLSA overtime compensation provisions
of the FLSA.
ABBEY v. US 3
As the majority notes, the FLSA requires employers
to provide compensation to employees who work “for a
workweek longer than forty hours . . . at a rate not less
than one and one-half times the regular rate at which [the
employee] is employed.” 29 U.S.C. § 207(a)(1). Congress
has extended application of the FLSA overtime provision
to federal employees, see Pub. L. No. 93–259, 88 Stat. 55
(1974) (codified at 29 U.S.C. § 203(e)(2)), and there is no
dispute that the FLSA generally applies to the controllers
here. See Majority at 17. The majority finds, however,
that the FAA has the authority to exempt itself from the
overtime provisions of the FLSA for that class of federal
employees within its employ. I do not agree.
When Congress has intended to exempt certain em-
ployers or employees from the FLSA overtime provisions,
it has created express and unambiguous exceptions to the
requirement. The FLSA itself, for example, provides an
express statutory exception to the overtime provision and
provides for the granting of compensatory time in lieu of
one and one-half times compensation for certain non-
federal government employees. See 29 U.S.C. § 207(o)
(excepting employees of a state, local, and interstate
agency). Likewise, 5 U.S.C. § 5543 contains an express
exception to the FLSA’s overtime requirement for employ-
ees of federal agencies. See 5 U.S.C. § 5543(a). Under
that provision, an agency head may generally grant an
employee compensatory time off from scheduled work or
duty in lieu of monetary compensation. See id. Sections
6120–6133 of Title 5 also provide exceptions to the FLSA
requirement regarding overtime compensation for other
specified classes of federal employees. See Majority at 3–
4. Outside of these express exceptions to the FLSA over-
time provision, that provision mandates monetary over-
time compensation for federal employees generally.
Under the provisions of the Appropriations Act, Con-
gress granted the FAA the authority to develop a person-
nel management system (“PMS”) to provide an overhaul
4 ABBEY v. US
of the FAA and allow it to develop new personnel and
procurement systems. See Appropriations Act, Pub. L.
No. 104–50, §§ 347, 109 Stat. 436 (1995) (codified as
amended at 49 U.S.C. § 40122(g) (2000)); see also S. Rep.
No. 104–251, at 11 (1996)). Part of that authority includ-
ed granting the FAA the ability to avoid many federal
personnel laws and regulations that Congress felt might
inhibit the effectiveness of the FAA. See id. In granting
the FAA that authority, Congress sketched certain
boundaries within which the PMS was to operate. One
express provision stated that the PMS was exempted from
Title 5, save a few enumerated exceptions. See id.
§ 40122(g)(2).
Section 40122(g)(2) of Title 49 states that “[t]he provi-
sions of Title 5 shall not apply to the” PMS. That section
carved out only a few exceptions to this general exemption
from Title 5, but the Title 5 overtime exemption for feder-
al employees was not on that list. See id. Accordingly, a
plain reading of § 40122(g)(2) demonstrates that Congress
intended for the FAA to be free from the strictures of Title
5, save in those areas specifically enumerated. There is
no ambiguity in the language; § 40122(g)(2) does not list
the Title 5 exemption from the FLSA overtime require-
ment for federal employees as a surviving section. The
only route by which the controllers could have received
compensatory time instead of cash, i.e., the Title 5 exemp-
tion, was closed. Congress did not otherwise create an
exception to the FLSA overtime requirement for FAA
employees. And, as the majority notes, absent some
statutory provision exempting the FAA from complying
with the FLSA overtime requirement, the FAA’s compen-
satory time and credit hours policy is unlawful. See
Majority at 17.
Despite this uncontroversial view of the actual lan-
guage of § 40122(g)(2), the majority finds that the Title 5
exemptions to the FLSA overtime requirements impliedly
survived creation of the PMS. Majority at 19–20. Yet, as
ABBEY v. US 5
explained above, when Congress has intended to exempt
employers from the obligation of the FLSA overtime
requirement, it has explicitly said so. When Congress
plainly says what it means in a statute, such as stating
that Title 5 does not apply to the PMS, we are obliged to
give full effect to that intent. See Dodd v. United States,
545 U.S. 353, 357 (2005) (“[The] legislature says in a
statute what it means and means in a statute what it
says there.”) (quoting Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253–54 (1992)). We may not create additional
exceptions contrary to Congress’s will. See United States
v. Smith, 499 U.S. 160, 167 (1991) (“Where Congress
explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in
the absence of a contrary legislative intent.”) (quoting
Andrus v. Glover Construction Co., 446 U.S. 608, 616–17
(1980)).
Had Congress intended to exclude the FAA from the
FLSA overtime requirements, it easily could have includ-
ed the relevant Title 5 exceptions in the list of enumerat-
ed Title 5 provisions that survived the creation of the
PMS. See 49 U.S.C. § 40122(g). It did not.
Congress’s decision to remove the PMS from the stric-
tures of Title 5—and the overtime exemption—was delib-
erate. In 1996, Congress passed the Federal Aviation
Reauthorization Act of 1996, Pub. L. No. 104-264, §§ 201-
30, 110 Stat. 3213, 3232 (Oct. 9, 1996) (“Reauthorization
Act”). The Reauthorization Act authorized the FAA to set
compensation guidelines for FAA employees. See id. § 225
(codified at 49 U.S.C. § 106(l)(1)). The legislative history
of the Reauthorization Act bears out Congress’s decision
to remove the PMS from the FLSA overtime exemption.
Early reports relating to the Reauthorization Act from
the House and Senate demonstrate that Congress was
concerned that, if given free rein to create personnel
policies of its choosing, the FAA might ignore certain
6 ABBEY v. US
provisions of Title 5 that Congress deemed important.
See S. Rep. No. 104–251, at 59 (1996); H.R. Rep. No. 104–
475, at 4 (1996). In its earliest iterations, the bill con-
tained language for a proposed section 49
U.S.C. § 40122(f) that emphasized those provisions of
Title 5 with which Congress was concerned, such as the
whistleblower and antidiscrimination provisions of Title
5, and said that the FAA must comply with those provi-
sions. The other provisions of Title 5 were simply not
mentioned. Later, Congress chose to remove that manda-
tory language and, instead, chose to exempt the FAA from
Title 5 completely, but for a few enumerated sections that,
again, reflected the specific provisions with which Con-
gress was most concerned. The overtime provisions of
Title 5 were never mentioned, either affirmatively—as in
the early drafts—or as enumerated exceptions—reflected
in the final draft. Thus, it is clear that Congress consid-
ered the individual sections of Title 5 and made a con-
scious choice about which provisions would and would not
apply to the FAA.
The majority relies on two points to support its con-
clusion that, although not referenced in the Appropria-
tions Act, 5 U.S.C. §§ 5543 and 6120–6133 continue to
authorize a departure from the FLSA overtime require-
ment. Majority at 17. The majority first looks to 49
U.S.C § 40122(g)(1), which states that the PMS was to
provide “greater flexibility in the hiring, training, com-
pensation, and location of [FAA] personnel.” 49 U.S.C.
§ 40122(g)(1). But, that language is not sufficient to
revive the overtime exemption of Title 5 and give it the
force of law. Whatever the flexibility language in
§ 40122(g)(1) means, it cannot mean that Congress in-
tended to take away most express legal requirements of
Title 5 in one breath and restore those same requirements
in another. While the majority recognizes that
§ 40122(g)(1) must be read in the context of the statutes of
which it is part (Majority at 19), it sweeps away the
ABBEY v. US 7
language directly after it in § 40122(g)(2). As explained
above, § 40122(g)(2) expressly states which provisions of
Title 5 survive the creation of the PMS, and the overtime
exemption is not one of them.
The majority next looks to a provision of 49 U.S.C.
§ 106(l)(1), added by the Reauthorization Act, which
authorized the FAA administrator to fix compensation for
FAA employees and not “be bound by any requirement to
establish such compensation or benefits at particular
levels.” 49 U.S.C. § 106(l)(1). The legislative history of
that section, however, demonstrates that Congress in-
tended through this language to make clear that the
compensation provisions of Title 5 were not to be incorpo-
rated into the PMS. An early Senate proposal regarding
49 U.S.C. § 106(l)(1) explicitly called for FAA employees
to “be compensated in accordance with Title 5.” S. Rep.
No. 104–251, at 50 (1996); S. Rep. No. 104–333, at 52
(1996). A House Report, however, eliminated the applica-
bility of Title 5’s compensation provisions. See H.R. Rep.
No. 104–848, at 21 (1996). 1 And, the language of the
House Report mirrors the final language of § 106(l)(1).
This alone demonstrates that Congress was aware of the
1 “(1) Officers and employees. Except as provided in
section 40122(a) of this title and section 347 of Public Law
104-50, the Administrator is authorized, in the perfor-
mance of the functions of the Administrator, to appoint,
transfer, and fix the compensation of such officers and
employees, including attorneys, as may be necessary to
carry out the functions of the Administrator and the
Administration. In fixing compensation and benefits of
officers and employees, the Administrator shall not en-
gage in any type of bargaining, except to the extent pro-
vided for in section 40122(a), nor shall the Administrator
be bound by any requirement to establish such compensa-
tion or benefits at particular levels.”
8 ABBEY v. US
compensation provisions of Title 5 and explicitly chose not
to make them part of the PMS.
This reading is consistent with the goals behind crea-
tion of the PMS. Congress explained that one primary
reason for creating the PMS was to provide the FAA
flexibility in hiring and compensation matters so as to
make the agency function like a private sector employer.
See H.R. Rep. No. 104–475, at 31 (1996) (stating that the
FAA “should have the flexibility to hire and fire as in the
private sector”); S. Rep. No. 104–251, at 17 (1996) (“ex-
empting the FAA from personnel requirements and
allowing the agency to offer wages that are competitive in
the private market”). Requiring the FAA to comply with
the overtime provisions of the FLSA is consistent with
giving the FAA the flexibility to operate much like private
sector companies, all of whom are bound by the FLSA’s
compensation provisions. Congress intended to give the
FAA the ability to compete with the private sector. A
more reasonable reading of the legislative history—along
with the actual text of the PMS—is that Congress intend-
ed to allow the FAA to operate akin to a private enter-
prise, not subject to most of the provisions of Title 5 and
subject to the overtime compensation requirements of the
FLSA.
While I do not disagree that the FAA is permitted to
mirror its own personnel policies on non-enumerated
sections of Title 5, and, thus, is not barred from adopting,
as its own, Title 5-like policies generally, that permission
is not unbounded. The FAA may not choose to create a
policy mimicking something in Title 5 if that policy would
be otherwise prohibited by law, such as the FLSA.
For these reasons, I would affirm the judgment of the
Claim’s Court.