Mercier v. United States

United States Court of Appeals
for the Federal Circuit
______________________
STEPHANIE MERCIER, AUDRICIA BROOKS,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5074
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00920-EDK, Judge Elaine Kaplan.
______________________
Decided: May 15, 2015
______________________
DAVID M. COOK, Cook & Logothetis, LLC, Cincinnati,
OH, argued for plaintiffs-appellants. Also represented by
CLEMENT L. TSAO, CLAIRE W. BUSHORN.
JESSICA R. TOPLIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice.
Washington, DC, argued for defendant-appellee. Also
represented by SHELLEY D. WEGER, JOYCE R. BRANDA,
ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES, JR.; GIA
M. CHEMSIAN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
2 MERCIER v. US
Before WALLACH and CLEVENGER, Circuit Judges, and
FOGEL, District Judge. *
CLEVENGER, Circuit Judge.
In a final decision dated February 27, 2014, the Unit-
ed States Court of Federal Claims dismissed the com-
plaint of certain nurses employed by the Department of
Veterans Affairs (“the agency”). The nurses claimed
entitlement to overtime pay under a statutory provision
which requires the agency to compensate “officially or-
dered or approved” overtime work. 38 U.S.C. § 7453(e)(1).
The trial court dismissed the nurses’ claim because they
did not allege that the agency “expressly directed” their
overtime. Mercier v. United States, 114 Fed. Cl. 795, 802
(2014). Because the court erred in requiring that the
nurses’ overtime be officially ordered or approved by
express direction to be compensable, we reverse and
remand the case for further proceedings. That result
renders moot the nurses’ separate claim that they are
entitled to at least basic pay for overtime hours worked.
I
This case turns on the interpretation of the words “of-
ficially ordered or approved” in 38 U.S.C. § 7453(e)(1), the
statute which provides overtime pay for nurses employed
by the Department of Veterans Affairs. The statute does
not require the official order or approval to be in any
particular form, and the agency has not enacted any
regulation interpreting the statute as mandating any
* The Honorable Jeremy Fogel, District Judge,
United States District Court for the Northern District of
California and Director of the Federal Judicial Center,
sitting by designation.
MERCIER v. US 3
particular procedure that must be followed to qualify for
overtime pay. 1
The agency asserts, and we agree as a matter of stat-
utory interpretation, that the words “officially ordered or
approved” in § 7453(e)(1) should have the same meaning
as the same words which appear in the Federal Employee
Pay Act (FEPA), 5 U.S.C. § 5542(a), which authorizes
overtime pay generally for federal employees not covered
by other specific statutes, such as § 7543(e)(1). Appellee’s
Br. at 14.
Substantially the same regulation has applied to
FEPA’s overtime provision since shortly following its
enactment in 1945. In its present form, the regulation
requires that overtime work “may be ordered or approved
only in writing by an officer or employee to whom this
authority has been specifically delegated.” 5 C.F.R.
§ 550.111(c); see also 10 Fed. Reg. 8191, 8194 (July 4,
1945) (original regulation). We refer to this as the “writ-
ing regulation” or the “OPM regulation” after the agency
that most recently enacted it. See 5 U.S.C. § 5548.
A
The words “officially ordered or approved” in FEPA
have long been interpreted by the Court of Claims, one of
1 The agency’s handbook presents various policies
related to overtime, including, for example, that overtime
is to be used only when necessary. J.A. 70. The handbook
is an informal agency interpretation and is entitled to
deference only “proportional to [its] ‘power to persuade.’”
James v. Von Zemenszky, 284 F.3d 1310, 1319 (Fed. Cir.
2002) (quoting United States v. Mead Corp., 533 U.S. 218,
235 (2001)). We do not find the handbook persuasive, for
example because it fails to describe any procedure under
which nurses’ overtime may be explicitly ordered or
approved.
4 MERCIER v. US
our predecessor courts, the decisions of which bind panels
of this court. South Corp. v. United States, 690 F.2d 1368,
1370 (Fed. Cir. 1982) (en banc).
For the first decade after the enactment of FEPA, the
Court of Claims enforced the regulation’s requirement
that approval be “in writing.” Thus, Gaines v. United
States, 132 Ct. Cl. 408 (1955) held that overtime had to be
“ordered or approved” in compliance with the regulation
to be compensable: “any claim must be based upon the
performance of overtime services which were expressly
authorized or approved in writing” by an authorized
official. Id. at 412–13. Prior to Gaines, the court twice
approved of the requirement in dicta. In Post v. United
States, 121 Ct. Cl. 94 (1951), the court called the writing
regulation “a necessary safeguard against subjecting the
Government to improper expense.” Id. at 99. In Tabbutt v.
United States, 121 Ct. Cl. 495 (1952), it remarked that a
supervisor’s signature approving daily time reports “could
hardly be said to take the place of an order for these men
to work overtime, or of an approval of their claim to
compensation for having done so.” Id. at 498, 505.
The Court of Claims’ treatment of the regulation
changed in Anderson v. United States, 136 Ct. Cl. 365
(1956). 2 The agency in Anderson had “induced” employees
to work overtime but, in order to escape compensating
them for that time, had not ordered or approved the
overtime in writing. Id. at 370–71.
Anderson held that overtime that is “induced,” but not
explicitly required, is nonetheless “ordered or approved”
under FEPA. Id. at 370. Further, the court held, the
writing regulation could not limit the scope of that sub-
2 The Court of Claims sat en banc in Anderson and,
as we later observed, in many of the cases that followed it.
Doe v. United States, 372 F.3d 1347, 1355 (2004).
MERCIER v. US 5
stantive right to overtime pay. “The writing was required
by the regulations, not by the statute,” it explained. “The
withholding of written orders or approval reflected ob-
servance of the letter of the regulation but denial of the
substance of the statute.” Id. at 370–71. The court con-
cluded that the statutory “mandate to pay additional
compensation for overtime hours, when the work was . . .
officially ordered or approved,” including by inducement,
was “overriding,” and compensation for such work was
therefore “mandatory.” Id. at 371.
For more than forty years following Anderson, the
Court of Claims and its successor courts applied Ander-
son’s holdings that “induced” overtime is “ordered or
approved” under FEPA, and that the writing regulation
does not limit the statutory right to compensation for such
time.
Two early leading cases applying Anderson were Ad-
ams v. United States, 162 Ct. Cl. 766 (1963) and Byrnes v.
United States, 330 F.2d 986 (Ct. Cl. 1963). Adams com-
pensated overtime that was “induce[d]” by an agency
whose supervisors “knew and approved of this overtime,
and in effect authorized it,” but withheld written authori-
zation. 162 Ct. Cl. at 768–69. Byrnes explained that
regulations requiring written authorization of overtime
“cannot avoid the plain requirements of the statute for
overtime pay when the performance of this overtime is
induced by the Government, as it was in Anderson, . . .
and in this case.” 330 F.2d at 989–90.
Later cases in the Anderson line considered the
boundaries of what constituted “order or approval” by
inducement. Thus, the court held that an employer’s
“mere knowledge” that an employee is working overtime,
without inducement or written approval, is not enough to
order or approve that work. Bilello v. United States, 174
Ct. Cl. 1253, 1258 (1966). Likewise, a “tacit expectation”
that employees show up five minutes earlier than ordered
6 MERCIER v. US
did not show that employees were induced to work over-
time. Albright v. United States, 161 Ct. Cl. 356, 361
(1963). Where there was “more than only a ‘tacit expecta-
tion’” but less than an express directive to work overtime,
the court asked whether the overtime was “induced.”
Baylor v. United States, 198 Ct. Cl. 331, 359–60 (1972).
By the early 1970s, in the Court of Claims’ words,
Anderson and its progeny had “firmly established” that
employees could recover under FEPA for overtime their
employers had induced but not expressly ordered.
McQuown v. United States, 199 Ct. Cl. 858, 866, 1972
U.S. Ct. Cl. LEXIS 454, *11 (1972); see Baylor, 198 Ct. Cl.
at 359–60 (applying Anderson and holding that employer
had induced overtime); Fix v. United States, 368 F.2d 609,
613 (Ct. Cl. 1966) (applying Anderson and holding that an
agency could not prohibit compensating overtime that was
“required or induced by responsible officials”); Bantom v.
United States, 165 Ct. Cl. 312, 318 (1964) (applying
Anderson and finding that overtime was not induced
where employees “voluntarily came to work earlier than
required” in order to get ready there rather than at
home); Rapp v. United States, 340 F.2d 635, 644–45 (Ct.
Cl. 1964) (applying Anderson and compensating induced
overtime because the agency “could not—by arbitrarily
characterizing the [overtime] as ‘voluntary’—abrogate
plaintiffs’ rights under the statute”); Gaines v. United
States, 158 Ct. Cl. 497 (1962), cert. denied, 371 U.S. 936
(1962) (explaining that Anderson “allow[s] recovery [for
overtime] even though there may have been no express
order, authorization, or approval, and the administrative
officials have refused to characterize the work as ‘over-
time”); Gray v. United States, 136 Ct. Cl. 312, 313 (1956)
(in a case decided the same day as Anderson, denying an
overtime claim because plaintiff was not “induced or
directed by his superiors directly or indirectly by writing
or otherwise to work overtime”). Judge Skelton twice
dissented on the basis that the overtime was not ordered
MERCIER v. US 7
or approved in writing by an authorized official as the
regulation required, but his view never gained a majority.
Baylor, 198 Ct. Cl. at 371 (Skelton, J., dissenting); Ander-
son v. United States, 201 Ct. Cl. 660, 671–72 (1973) (Skel-
ton, J., dissenting).
Then, the Supreme Court decided Schweiker v. Han-
sen, 450 U.S. 785 (1981) (per curiam) (Hansen) and Office
of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990) (Rich-
mond), neither of which dealt with FEPA. As we discuss
below, this court later held that the rationale of these
cases overruled Anderson’s holding that the writing
regulation was invalid.
Plaintiff in Hansen sought certain benefits under the
Social Security Act. The Act extended benefits only to one
who “has filed application,” 42 U.S.C. § 402(g)(1)(D), and a
regulation required the application to be in writing, 20
C.F.R. § 404.602 (1974). When plaintiff asked a Social
Security Administration field representative if she was
eligible for a certain benefit, the representative erroneous-
ly told her that she was not, and she delayed in filing her
application in reliance on that advice. Upon later learning
she was eligible, plaintiff filed an application, and sought
back payments based on the date of her oral application to
the field representative. 450 U.S. at 786–87.
The Second Circuit held that the government was es-
topped from denying plaintiff benefits retroactive to her
oral application. It reasoned that she was “substantively
eligible” for benefits and had simply failed to fulfill a
“procedural requirement,” and held that under such
circumstances the field representative’s conduct estopped
the government from applying the writing requirement.
Hansen v. Harris, 619 F.2d 942, 948 (2d Cir. 1980), rev'd
sub nom. Schweiker, 450 U.S. 785.
The Supreme Court reversed. It reasoned that the
field representative’s error did not remove “the duty of all
courts to observe the conditions defined by Congress for
8 MERCIER v. US
charging the public treasury.” Hansen, 450 U.S. at 788–89
(quoting Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380,
385 (1947)). The Court therefore rejected the Second
Circuit’s conclusion that plaintiff could show estoppel
against the government because she was substantively
eligible for benefits and simply failed to satisfy a proce-
dural requirement. It held:
Congress expressly provided in the Act that only
one who “has filed application” for benefits may
receive them, and it delegated to [the Secretary of
Health and Human Services] the task of providing
by regulation the requisite manner of application.
A court is no more authorized to overlook the valid
regulation requiring that applications be in writ-
ing than it is to overlook any other valid require-
ment for the receipt of benefits.
Id. at 790.
Plaintiff in Richmond was the recipient of a federal
disability annuity. When he sought advice about increas-
ing his work hours while retaining the annuity, federal
employees twice gave him erroneous information based on
a prior version of the relevant statute. In reliance on that
information, plaintiff increased his hours beyond the
limits set by the then-current statute and lost six months’
worth of benefits. 496 U.S. at 416–18.
The Supreme Court rejected plaintiff’s claim that the
government was estopped from denying him those bene-
fits. The parties had agreed that plaintiff sought benefits
to which he was not entitled under the statute. Id. at 424.
The Court therefore held that the Appropriations Clause
of the Constitution, under which “‘no money can be paid
out of the Treasury unless it has been appropriated by an
act of Congress,’” prevented plaintiff’s recovery of benefits
to which he was not entitled by statute. Id. (quoting
Cincinnati Soap Co. v. United States, 301 U.S. 308, 321
(1937)). “[T]he equitable doctrine of estoppel cannot grant
MERCIER v. US 9
respondent a money remedy that Congress has not au-
thorized,” the Court explained. Id. at 426.
Meanwhile, the Claims Court and then the Court of
Federal Claims, successors to the Court of Claims’ trial
division, continued to apply Anderson’s holdings that
overtime can be “ordered or approved” under FEPA by
inducement, and that the writing regulation is inopera-
tive so far as it limits that right. See Crowley v. United
States, 53 Fed. Cl. 737, 789–90 (2002), aff’d in part on
other grounds, rev’d in part on other grounds, 398 F.3d
1329 (Fed. Cir. 2005); Buckley v. United States, 51 Fed.
Cl. 174, 217–18 (2001), aff’d in part on other grounds,
rev’d in part on other grounds sub nom. Crowley, 398 F.3d
1329 3; Hannon v. United States, 29 Fed. Cl. 142, 149
(1993); DeCosta v. United States, 22 Cl. Ct. 165, 176
(1990), aff’d on other grounds, 987 F.2d 1556 (Fed. Cir.
1993); Manning v. United States, 10 Cl. Ct. 651, 663
(1986); Bennett v. United States, 4 Cl. Ct. 330, 337 (1984).
See also Bowman v. United States, 7 Cl. Ct. 302, 308, 308
n.6 (1985) (applying Anderson to a different provision of
FEPA the court considered “analogous”).
A claim to FEPA overtime under § 5542, which con-
tains the “officially ordered or approved” language, first
came before this court in Doe v. United States, 372 F.3d
1347 (2004). Plaintiffs in that case were a class of De-
partment of Justice attorneys who sought compensation
for overtime hours they alleged that they had been in-
duced, but not explicitly ordered, to perform. Id. at 1349–
50.
3 Crowley and Buckley were consolidated along with
other cases and appealed to this court, which did not
consider whether plaintiffs’ overtime had been “ordered or
approved.” Crowley, 398 F.3d 1329.
10 MERCIER v. US
The Court of Federal Claims granted summary judg-
ment for plaintiffs on the issue of liability, holding that
although the overtime had not been ordered “in writing”
as required by the regulation, under Anderson plaintiffs
were nevertheless entitled to pay if they could prove the
overtime was “officially ordered or approved” through
inducement. Doe v. United States, 54 Fed. Cl. 404, 410,
414–18 (2002). The United States petitioned for interlocu-
tory appeal in order to decide whether overtime hours
may be “officially ordered or approved” under § 5542 of
FEPA without meeting the writing regulation’s require-
ments, and this court granted its petition. Doe v. United
States, 67 F. App'x 596, 597 (Fed. Cir. 2003).
On appeal, this court reversed. Doe, 372 F.3d 1347.
We first held that the rationale of Hansen and Richmond
overruled Anderson’s holding that the writing regulation
could not limit the substantive scope of the statutory right
to compensation for overtime that was ”officially ordered
or approved.” To the extent that the Anderson cases held
the writing regulation was invalid because it added a
procedural requirement, we explained, they are directly
contradicted by Hansen’s holding that “[a] court is no
more authorized to overlook the valid regulation requiring
that applications be in writing than it is to overlook any
other valid requirement for the receipt of benefits.” Id. at
1354–56 (quoting Hansen, 450 U.S. at 790). To the extent
that the Anderson cases imposed liability on the govern-
ment for equitable reasons, we held they were contradict-
ed by Richmond’s holding that equitable considerations
cannot grant a money remedy Congress has not author-
ized. Id. at 1356–57 (citing Richmond, 496 U.S. at 426).
We therefore held:
[T]o the extent that the Anderson line of Court of
Claims cases held that the Civil Service Commis-
sion was without authority to impose a “procedur-
al” written order requirement because it restricted
MERCIER v. US 11
the substantive scope of the overtime statute or
because of equitable considerations, they are in-
consistent with Hansen and Richmond. In light of
Hansen and Richmond, we are compelled to hold
that the Anderson line of cases is no longer good
law and that the written order requirement is not
invalid on the ground that it imposes a procedural
requirement that limits the right to overtime
compensation under the statute or because it is
inequitable.
Id. at 1357.
Having determined that the writing regulation could
not be disregarded, we next considered whether it was
entitled to Chevron deference. Chevron U.S.C. Inc. v.
Natural Res. Def. Council, 467 U.S. 837, 842–43 (1984).
Because the phrase “ordered or approved” is ambiguous
as to whether the order or approval must be in writing or
may instead be oral, our analysis proceeded to step two.
Doe, 372 F.3d at 1358–59.
At Chevron step two, we held that the writing regula-
tion is a reasonable interpretation of FEPA’s “officially
ordered or approved” requirement. The regulation was
enacted pursuant to express congressional authorization
to engage in rulemaking, which is “a very good indicator”
that Chevron deference is warranted. Id. at 1359 (quoting
United States v. Mead Corp., 553 U.S. 218, 229 (2001)).
Plaintiffs therefore bore the burden of showing that the
writing regulation was “arbitrary or otherwise unreason-
able.” Id. (quoting Koyo Seiko Co. v. United States, 258
F.3d 1340, 1347 (Fed. Cir. 2001)).
Doe held that plaintiffs had not met their burden of
proving the regulation was unreasonable because the
writing requirement “does not contradict the language of
FEPA.” Id. at 1360. We reasoned that the writing re-
quirement does not contradict the statute’s plain text: the
statute’s limitation to “officially ordered or approved”
12 MERCIER v. US
overtime “in and of itself is not at odds with the regula-
tion's writing requirement, nor does it suggest that in-
ducement is sufficient to constitute official order or
approval.” Id. On this point, we distinguished the corre-
sponding provision of the Fair Labor Standards Act of
1938 (FLSA), which applies generally to non-government
employees. An employee is entitled to overtime pay under
FLSA if the employer “suffer[s] or permit[s]” overtime
work, a broad category that can include overtime about
which the employer has mere knowledge, as well as
induced overtime. 29 U.S.C. § 203(g); Doe, 347 F.3d at
1360–61. That FEPA’s “officially ordered or approved”
language is narrower, we reasoned, suggests that it does
not require compensating all overtime that is “suffer[ed]
or permit[ted].” Id. Finally, we reasoned that the writing
requirement served one of FEPA’s purposes, namely, “to
control the government’s liability for overtime,” and noted
that other purposes include, for example, “ensuring that
employees receive[] overtime compensation.” Id. at 1361.
We concluded that the writing regulation was entitled to
Chevron deference, id. at 1362, and reversed the grant of
summary judgment on liability for plaintiffs because they
had failed to show it was satisfied, id. at 1364.
B
Plaintiffs in this case are two individuals and a puta-
tive class of registered nurses currently or formerly em-
ployed by the agency under Title 38. They contend that
the agency denied them overtime pay to which they were
entitled under 38 U.S.C. § 7453, which requires the
agency to compensate nurses for “officially ordered or
approved” overtime work. 38 U.S.C. § 7453(e)(1).
The nurses allege that they were required to work
overtime on a “recurring and involuntary basis” in order
to perform tasks known as View Alerts, which the nurses
describe as time-sensitive requests for information related
to patient care. Compl. ¶¶ 15, 17. They allege that agency
MERCIER v. US 13
personnel with the authority to order or approve overtime
had “knowledge” the nurses were working overtime, and
in fact “expected, required, and induced” that work. Id. at
¶ 17. The nurses add that the agency subjected nurses
who failed to timely complete View Alerts to enhanced
scrutiny and greater risk of disciplinary action, id. at ¶
18, continued to increase the volume of View Alerts as-
signed despite knowing that nurses were unable to com-
plete them during regular hours, id. at ¶¶ 19, 20, and
responded to nurses’ requests for compensation inade-
quately or inconsistently, id. at ¶¶ 21–24.
The Court of Federal Claims dismissed the nurses’
claim to overtime under § 7453 for failure to state a claim
on which relief could be granted. Mercier v. United States,
114 Fed. Cl. 795 (2014). It noted that the nurses’ allega-
tions, if proven true, “would likely suffice to establish
precisely the sort of ‘inducement’” to work overtime that
the Anderson line of cases held was sufficient to constitute
“order or approval” of overtime under FEPA. Id. at 801–
02. Because § 7453 of Title 38 and § 5542 of FEPA have
identical language in that respect, id. at 801, the court
recognized that the key issue before it was whether the
Anderson standard regarding inducement remains good
law following this court’s decision in Doe. Id. at 802.
The Court of Federal Claims concluded that Doe had
overruled Anderson in its entirety and therefore that,
following Doe, “entitlement to overtime pay is triggered
only when an authorized VA official has, either verbally
or in writing, expressly directed” specified overtime work
or approved pay for it after the fact. Id. It pointed to Doe’s
two bases for overruling Anderson: first, to the extent
Anderson and its progeny held the writing regulation
invalid simply because it added an extra procedural
requirement, Hansen overruled that holding; and second,
to the extent the Anderson cases used equitable consider-
ations to hold the government liable for overtime it had
induced, both Hansen and Richmond undermined their
14 MERCIER v. US
reasoning. Id. at 802–03 (citing Doe, 372 F.3d at 1354–
57).
The Court of Federal Claims did not analyze whether
Hansen or Richmond affected more than the writing
regulation under FEPA. Nor did it consider whether a
panel of this court could overrule binding precedent on an
issue not disturbed by intervening Supreme Court or en
banc authority.
Because the nurses had alleged that they were “in-
duce[d]” to work overtime but not that their overtime was
“expressly directed,” the court dismissed their claim. Id.
at 805. The nurses timely appealed, and we have jurisdic-
tion under 28 U.S.C. § 1295(a)(3).
II
On appeal, the nurses argue that Doe did not overrule
Anderson’s interpretation of the statutory phrase “official-
ly ordered or approved,” and in fact could not have over-
ruled that holding on the authority of Hansen and
Richmond. They do not contest that Doe held Hansen and
Richmond overruled Anderson so far as it invalidated the
FEPA writing regulation, either as a procedural limit on
the substantive right granted by the statute, or for equi-
table reasons. Instead, the nurses correctly contend that
holding is not relevant to their case, because no procedur-
al regulations interpret the Title 38 overtime provision,
and they seek no relief by way of equity.
Presumably because the claimant in Richmond sought
benefits that the statute concededly did not provide, 496
U.S. at 424, the nurses focus their arguments on Hansen.
They contend that Hansen is not relevant to whether
induced overtime is “officially ordered or approved” under
FEPA. Specifically, the nurses note that Hansen con-
cerned an entirely different statutory scheme, and did not
interpret that statute, much less determine whether it
included inducement. Hansen turned instead entirely on
MERCIER v. US 15
the validity of the different writing regulation it consid-
ered, making it irrelevant to Anderson’s statutory inter-
pretation. The nurses conclude that Doe could not have
held that Hansen overruled Anderson’s interpretation of
FEPA. Further, no en banc decision of this court has
interpreted FEPA’s “ordered or approved” language to
exclude order or approval by way of inducement.
To the extent that Doe can be read to consider the “in-
ducement” standard, the nurses argue that its statements
are dicta or not relevant here. They argue that Doe inter-
preted FEPA only so far as was necessary to find that the
writing regulation was not unreasonable at Chevron step
two. It follows that Doe’s statement that FEPA “does [not]
suggest that inducement is sufficient to constitute official
order or approval,” 372 F.3d at 1360, considered a ques-
tion that was not directly before the court.
The nurses conclude that Anderson’s interpretation of
the phrase “officially ordered or approved” in FEPA
survives Hansen and Richmond, and thus Doe, too. Be-
cause Title 38’s provision for nurse overtime was enacted
in 1991, following decades of consistent application of the
Anderson standard by the Court of Claims and its succes-
sors, the nurses contend that we should consider Congress
to have intended the same interpretation to apply to
§ 7453. PL 102–40, May 7, 1991, 105 Stat. 187. They
therefore ask us to hold that the Court of Federal Claims
erred in dismissing their complaint for failure to allege an
“express directive” to work overtime, when they alleged
“inducement” that would have sufficed under the Ander-
son standard.
III
The government agrees that the phrase “officially or-
dered or approved,” as it appears in § 7453, should carry
the same meaning as the same language in FEPA. Appel-
lee’s Br. at 14; Oral Argument at 29:00–29:30.
16 MERCIER v. US
It argues that the phrase “officially ordered or ap-
proved” in FEPA requires an express directive to work
overtime. For support, the government relies on Doe’s
statement that the phrase “officially ordered or approved”
in FEPA “does [not] suggest that inducement is sufficient
to constitute official order or approval,” which it charac-
terizes as a holding. 372 F.3d at 1360.
When asked at oral argument how the Doe court had
the authority to overrule Anderson’s interpretation of
FEPA, the government responded that Hansen had un-
dermined Anderson’s rationale for adopting the induce-
ment standard. Oral Argument at 30:30. It could not,
however, point to any language in Hansen in support of
this view. Specifically, the government could not identify
any part of Hansen that is relevant to Anderson’s inter-
pretation of FEPA, including its holding that overtime
may be “ordered or approved” through inducement. Id. at
24:30. The government did not argue that Richmond
overruled Anderson’s statutory interpretation, nor could
it, because plaintiff in Richmond agreed he sought a right
the statute did not grant. 496 U.S. at 424.
IV
We review de novo the Court of Federal Claims’ dis-
missal of a complaint for failure to state a claim upon
which relief may be granted. Hearts Bluff Game Ranch,
Inc. v. United States, 669 F.3d 1326, 1328 (Fed. Cir.
2012). In so doing we must presume that the facts are as
the complaint alleges and draw all reasonable inferences
in the plaintiff’s favor. Gould Inc. v. United States, 935
F.2d 1271, 1274 (Fed. Cir. 1991). To avoid dismissal, a
complaint must allege facts “plausibly suggesting (not
merely consistent with)” a showing of entitlement to
relief.” Cary v. United States, 552 F.3d 1373, 1376 (Fed.
Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 127
S. Ct. 1955, 1966 (2007)).
MERCIER v. US 17
A
As Doe recognized, Court of Claims decisions bind this
court unless they are overruled by intervening Supreme
Court authority or by this court en banc. Doe, 372 F.3d at
1354; see also Tex. Am. Oil Corp. v. United States Dep't of
Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc); S.
Corp. v. United States, 690 F.2d 1368, 1370–71, 1370 n.2
(Fed. Cir. 1982) (en banc); Bankers Trust N.Y. Corp. v.
United States, 225 F.3d 1368, 1373 (Fed. Cir. 2000).
The government has failed to present any Supreme
Court or en banc precedent overruling the Court of
Claims’ holding, in Anderson and its progeny, that over-
time the government induces its employee to perform is
“ordered or approved” under FEPA and must be compen-
sated if that Act’s other requirements are met. Anderson,
136 Ct. Cl. at 370.
Neither Hansen nor Richmond has any relevance to
Anderson’s interpretation of FEPA, and the government
points to no other binding authority in support of its
argument. Both Hansen and Richmond denied the plain-
tiff’s claim of entitlement under principles of equity to a
benefit otherwise denied the plaintiff by a valid regulation
(in Hansen) or statute (in Richmond). Those cases reached
this result based on the principle that it is “the duty of all
courts to observe the conditions defined by Congress for
charging the public treasury.” Hansen, 450 U.S. at 788;
Richmond, 496 U.S. at 420; see also Koyen v. Office of
Pers. Mgmt., 973 F.2d 919 (Fed. Cir. 1992) (citing Hansen
and Richmond and noting that “[t]he Supreme Court has
left no doubt” of that principle). The issue here is not
whether the nurses are entitled to a payment from the
public treasury without Congressional authorization. It is
clear that Congress, in both § 5542 of FEPA and § 7453 of
Title 38, did authorize the payment of “officially ordered
or approved” overtime work. Instead, the question Ander-
son decided when it interpreted the FEPA provision, and
18 MERCIER v. US
the question before us now with respect to § 7453, is
whether plaintiffs’ overtime is within the scope of the
statutory grant. Neither Hansen nor Richmond bear on
that question, all the more so because they arose under
different statutory schemes.
In the absence of authority from the Supreme Court,
this court could only overrule the “inducement” aspect of
the Anderson line of cases were we to sit en banc. George
E. Warren Corp. v. United States, 341 F.3d 1348, 1351–52
(Fed. Cir. 2003) (“[T]o overrule a precedent, this court
must rule en banc.”); see also Fed. Cir. Rule 35(a)(1) (“only
the court en banc may overrule a binding precedent”). It
follows, of course, that neither this panel nor the Doe
court could overrule Anderson’s interpretation that in-
ducement satisfies FEPA’s “officially ordered or approved”
requirement.
The government’s reliance on Doe’s statement to the
effect that the phrase “ordered or approved” does not
necessarily include induced overtime is therefore mis-
placed. 372 F.3d at 1360. As discussed, the Doe court did
not have the authority to overrule Anderson’s statutory
interpretation. Nor did it try to do so. That statement was
made in the course of determining whether the writing
regulation was a reasonable interpretation of FEPA
entitled to Chevron deference. Id. The court made it
simply by way of concluding that requiring a written
order does not contradict FEPA’s plain text. Id.
The rest of Doe’s discussion of inducement comes in
the context of distinguishing FEPA’s “ordered or ap-
proved” standard from the more liberal “suffer or permit”
standard of FLSA. 372 F.3d at 1360–61. FLSA’s standard
compensates overtime work which the employer merely
“knows or has reason to believe” the employee is perform-
ing, as well as overtime the employer induces. 29 C.F.R.
§ 785.11 (2015); see also Doe, 372 F.3d at 1360–61. The
Doe court correctly concluded that FEPA’s use of the
MERCIER v. US 19
narrower phrase “ordered or approved” suggests that its
coverage is not so broad as FLSA’s. 372 F.3d at 1361.
This, however, is simply because FEPA does not require
compensating for overtime of which the employer has
“mere knowledge,” as recognized in the Anderson line of
cases. Bilello v. United States, 174 Ct. Cl. 1253, 1257
(1966). 4
Doe ultimately held that the OPM regulation’s inter-
pretation of the phrase “officially ordered or approved” in
FEPA as requiring a writing was entitled to Chevron
deference “because it comports with, and indeed furthers,
the language and purpose of FEPA.” 372 F.3d at 1362. Its
analysis ended there. Where Anderson held the regulation
invalid and accordingly considered the full scope of the
statutory right, Doe enforced the writing regulation and
had no cause to consider whether the phrase “officially
ordered or approved” encompassed forms of order or
approval that might by their nature never be put “in
writing.” The question before us today—whether overtime
may be “ordered or approved” by inducement, albeit under
a different statute—was simply never considered by the
Doe court. To the contrary, as Doe explained when dis-
cussing Hansen, a procedural regulation is not invalid
simply because it narrows the breadth of a statutory
right. 372 F.3d at 1355–56. In order to hold the writing
requirement enforceable, Doe did not need to overrule,
and could not have overruled, Anderson’s earlier holding
4 Doe also noted that the writing regulation was
consistent with one of the key purposes of FEPA, namely
“to control the government’s liability for overtime,” while
another key purpose evidenced by the legislative history
is to “ensur[e] that employees received overtime compen-
sation.” 372 F.3d at 1361. Anderson adopted the induce-
ment standard in order to fulfill that second purpose. 136
Ct. Cl. at 370–71.
20 MERCIER v. US
about the statute’s breadth. Thus, our current clarifica-
tion of Doe does not in any way undermine its holding
that the regulation was entitled to Chevron deference.
We therefore hold that Anderson’s interpretation of 5
U.S.C. § 5542, namely that overtime is “officially ordered
or approved” where it is induced by one with the authority
to order or approve overtime but not expressly directed,
remains good law. See Anderson, 136 Ct. Cl. at 370.
B
The foregoing section concerns the interpretation of
the phrase “officially ordered or approved” as it appears in
§ 5542 of FEPA. The parties agree that the same phrase
in § 7453 of Title 38 should carry the same interpretation.
We agree. The Supreme Court has held, as the gov-
ernment observes, that “when Congress uses the same
language in two statutes having similar purposes, partic-
ularly when one is enacted shortly after the other, it is
appropriate to presume that Congress intended that text
to have the same meaning in both statutes.” Smith v. City
of Jackson, Miss., 544 U.S. 228, 233 (2005); Appellee’s Br.
at 14. The overtime provisions in FEPA and Title 38 are
certainly similar in purpose.
Further, Title 38 was amended to add § 7453 in 1991.
Department of Veterans Affairs Health-Care Personnel
Act of 1991, PL 102–40, May 7, 1991, 105 Stat. 187 (add-
ing §§ 7451–58, which govern pay for nurses and other
healthcare personnel, among other provisions). Subpart
7453(e)(1), which includes the phrase “officially ordered or
approved,” has not changed since the statute’s enact-
ment. 5 By 1991, as explained above, the Court of Claims
5 The section has been amended twice with no
changes to § 7453(e)(1). Other amendments were tech-
nical or are not relevant. Veterans’ Benefits Improve-
MERCIER v. US 21
and its successor courts had consistently enforced the
Anderson standard for more than thirty years. We pre-
sume that Congress was aware of that existing interpre-
tation of 5 U.S.C. § 5542 when it enacted 38 U.S.C.
§ 7453, and that it intended for induced overtime to also
be considered “ordered or approved” under the later
statute. See Lorillard v. Pons, 434 U.S. 575, 581 (1978).
We therefore hold that the Anderson line of cases’ in-
terpretation of the phrase “officially ordered or approved”
in 5 U.S.C. § 5542 also governs that language where it
appears in 38 U.S.C. § 7453.
The nurses allege the agency has “knowledge” that
they work overtime “on a recurring and involuntary
basis,” and that the agency ordered or approved such
work through “expectation, requirement, and induce-
ment.” Compl. ¶ 40; see also id. at ¶¶ 14–26. As the trial
court correctly observed, their allegations state a claim
upon which relief may be granted under Anderson’s
interpretation of the phrase “officially ordered or ap-
proved.” Mercier, 114 Fed. Cl. at 801–02. We therefore
reverse the dismissal of the nurses’ claim and remand for
further proceedings under the Anderson standard.
C
The nurses also appeal the trial court’s dismissal of
the nurses’ claim that, in the event they are not compen-
sated at an overtime rate for any overtime hours worked,
they are entitled to basic pay for those hours. Compl. ¶¶
68–74.
At oral argument, the nurses agreed that a decision in
their favor on their claim to statutory overtime pay would
ments Act of 1994, PL 103–446, Nov. 2, 1994, 108 Stat.
4645; Caregivers and Veterans Omnibus Health Services
Act of 2010, PL 111-163, May 5, 2010, 124 Stat. 1130.
22 MERCIER v. US
moot the claim to basic pay for overtime hours. Oral
Argument at 4:20. We thus do not reach, and express no
view on, their claim to basic pay.
CONCLUSION
Accordingly, we reverse the Court of Federal Claims’
dismissal of the nurses’ claim to overtime pay under 38
U.S.C. § 7453 and remand for further proceedings under
the correct interpretation of that statute.
REVERSED IN PART AND REMANDED
COSTS
No costs.