Austin v. United States

In the United States Court of Federal Claims

No. 13-446C

(Filed: September 19, 2016)

) Keywords: 5 U.S.C. § 7453; 5 U.S.C.

LINDA G. AUSTIN, et al., ) § 6103; Holiday Pay; Summary Judgment;

) E.O. 11,582; “In Lieu Of” Holiday; Part-

Plaintiffs, ) Time Employees.

)

v. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

Steve Winton, Winton Law Corporation, San Diego, CA, for the Plaintiffs. Ira M. Lechner,

Washington, DC, Of Counsel.

Joseph Edward Ashman, Trial Attorney, with whom were Benjamin C. Mizer, Principal Deputy,

Assistant Attorney General, Robert E. Kirschman, Jr., Director, Deborah A. Bynum, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of Justice,

Washington, DC, for Defendant. Soquel Harding, Office of General Counsel, United States

Department of Veterans Affairs, Of Counsel.

OPINION AND ORDER

KAPLAN, Judge.

This case is currently before the Court on Plaintiffs’ motion for reconsideration of the

Court’s decision in Austin v. United States, 124 Fed. Cl. 410 (2015) (hereinafter “Austin I”) and

on the parties’ second set of cross-motions for partial summary judgment. In Austin I, the Court

resolved the parties’ first set of cross-motions for partial summary judgment, which concerned

the lawfulness of certain holiday pay policies that the Department of Veterans Affairs (VA)

applies to its full-time nurses and other health care workers (hereinafter “full-time nurses”). After

the Court decided Austin I, the parties filed a second set of cross-motions for partial summary

judgment addressing the VA’s holiday pay policies with respect to nurses employed on a part-

time and intermittent basis (hereinafter “part-time nurses”).

For the reasons set forth below, Plaintiffs’ motion for reconsideration is DENIED and

each of the parties’ cross-motions for partial summary judgment as to the claims of part-time

nurses is GRANTED-IN-PART and DENIED-IN-PART.

BACKGROUND

The background of this case is set forth in detail in the Court’s opinion in Austin I. See

124 Fed. Cl. at 412–15. To summarize briefly, by statute, VA nurses (whether employed on a

full or part-time basis) are entitled to receive “additional pay” when they perform “service on a

holiday designated by Federal statute or Executive order.” 38 U.S.C. § 7453(d); see also id.

§ 7454. In their complaint and in subsequent pleadings, Plaintiffs alleged that the VA’s official

policies (set forth in its Handbook) are inconsistent with this statutory provision in several

respects.

In Austin I, the Court entered summary judgment for the government as to two of

Plaintiffs’ claims, one of which challenged VA’s policy of not providing additional pay to full-

time nurses who work a tour of duty that begins the day before a calendar holiday and that ends

on such holiday, and a second which objected to what Plaintiffs characterized as an illegal

official policy of not providing additional pay to full-time nurses for overtime work performed

on a holiday. 124 Fed. Cl. at 419–21; 422–24. On the other hand, the Court entered summary

judgment for Plaintiffs as to their challenge to the lawfulness of VA’s policy of providing full-

time nurses additional pay for only their first tour of duty when they work two tours of duty that

both begin on a calendar holiday. Id. at 421–22.

In Austin I the Court limited its judgment to the claims of full-time nurses because the

government had expressly stated that its motion did not address holiday pay entitlement for part-

time nurses and because Plaintiffs waited until their reply brief to press their claims on behalf of

part-time nurses. 124 Fed. Cl. at 421 n.4. Accordingly, after Austin I, the Court issued a

Scheduling Order to govern briefing of these remaining issues on summary judgment. ECF No.

63. And after briefing on the second set of cross-motions was completed, Plaintiffs filed a

motion for reconsideration of the Court’s decision in Austin I regarding the claims of the full-

time nurses. ECF No. 68.

Thereafter, the Court directed the government to respond to Plaintiffs’ motion for

reconsideration. ECF No. 71. It also requested that both parties submit supplemental briefs to

clarify whether and to what extent VA’s official holiday pay policies for part-time nurses were

consistent with the holiday pay policies applicable to full-time nurses that were at issue in

Austin I. ECF No. 69. Those briefs have now been filed and all pending motions are ready for

disposition.1

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In light of the extensive briefing of the issues before the Court and the fact that oral argument

was held on the first set of cross-motions for partial summary judgment, the Court has concluded

that oral argument on the pending motions is unnecessary.

2

DISCUSSION

I. Plaintiffs’ Motion for Reconsideration

Plaintiffs have moved for reconsideration of two aspects of this Court’s decision in

Austin I. See Pls.’ Mot. for Recons. of Order and Op. Re Summ. J. (Pls.’ Mot. for Recons.), ECF

No. 68. First, they challenge this Court’s denial of their motion for partial summary judgment as

to the claims of full-time nurses who worked a tour of duty that began the day before a calendar

holiday and extended into the holiday, but did not work another tour of duty that began on that

calendar holiday. See id. at 9–24. In Austin I, this Court held that VA’s policy of not providing

full-time nurses additional pay for such single tours of duty was lawful because under Executive

Order No. 11,582 (hereinafter “the E.O.” or “E.O. 11,582”) and 5 U.S.C. § 6103, no part of the

workday on which the single tour was performed would be considered a holiday. Instead, another

workday would be designated as the employee’s “in lieu of” holiday pursuant to the rules set

forth in the E.O. and the statute. 124 Fed. Cl. at 420–21. In their motion for reconsideration,

Plaintiffs argue that the Court misinterpreted the E.O. when it reached this conclusion.

Second, Plaintiffs request that the Court reconsider its decision to grant summary

judgment to the government as to Plaintiffs’ claim that the VA has violated the statute by

maintaining an official policy of not providing additional pay to full-time nurses for overtime

work performed on a holiday. See Pls.’ Mot. for Recons. at 24–25. Plaintiffs request

reconsideration “on the limited ground that defendant admits the VA had a past practice of ‘split

tours’ which denied full-time nurses holiday premium pay.” Pls.’ Mot. for Recons. at 24. For the

reasons set forth below, Plaintiffs’ motion for reconsideration is DENIED.

A. Plaintiffs’ Grounds for Seeking Reconsideration Are Insufficient

It is well established that “[m]otions for reconsideration must be supported ‘by a showing

of extraordinary circumstances which justify relief.’” Caldwell v. United States, 391 F.3d 1226,

1235 (Fed. Cir. 2004) (quoting Fru–Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300

(1999)). “Specifically, the moving party must show: (1) the occurrence of an intervening change

in the controlling law; (2) the availability of previously unavailable evidence; or (3) the necessity

of allowing the motion to prevent manifest injustice.” Webster v. United States, 92 Fed. Cl. 321,

324 (2010) (quoting Matthews v. United States, 73 Fed. Cl. 524, 526 (2006)). “The decision

whether to grant reconsideration lies largely within the discretion of the [trial] court.” Yuba Nat.

Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990).

In this case, Plaintiffs have failed to demonstrate that there exist extraordinary

circumstances justifying their request that the Court reconsider its opinion in Austin I. They

point to no intervening change in controlling law. Nor do they identify evidence that was

unavailable when the original cross-motions for partial summary judgment were before the

Court. Instead, in their motion, Plaintiffs largely repeat arguments that they made earlier

regarding the interpretation of E.O. 11,582 or pose variations on those arguments that they could

have presented during the original round of briefing. Because “the movant . . . must do more than

‘merely reassert[ ] arguments which were previously made and carefully considered by the

court,’” Bannum, Inc. v. United States, 59 Fed. Cl. 241, 243 (2003) (alteration in original)

(quoting Henderson Cty. Drainage Dist. No. 3 v. United States, 55 Fed. Cl. 334, 337 (2003)),

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Plaintiffs have failed to make the extraordinary showing required to warrant this Court’s

reconsideration of its earlier decision.

B. In Any Event, Plaintiffs’ Arguments Lack Merit

In any event, Plaintiffs’ variations on their previous arguments lack merit. Plaintiffs argue

that the Court erred when it held that section 5 of E.O. 11,582 is inapplicable when full-time

nurses work a single tour of duty that begins the day before and extends into the calendar

holiday, but do not work a subsequent tour of duty that begins on the calendar holiday. As

described in Austin I, the Court concluded that section 5 of the E.O. is applicable only where the

nurse has another workday that commences on the holiday. 124 Fed. Cl. at 419–20. The Court

held that in the single tour situation, on the other hand, section 3 of E.O. 11,582 and 5 U.S.C.

§ 6103(b) are the operative holiday-designating authorities. Id. at 420–21. And, as the Court

described in detail, under those authorities, a nurse who worked a single tour that began the day

before the calendar holiday (and whose next workday did not begin on the calendar holiday)

would observe the calendar holiday on another scheduled workday during her basic workweek.

That “in lieu of” holiday would be determined on the basis of the complex rules set forth in the

E.O. and the statute, which are also contained in the VA Handbook. Id.

Plaintiffs’ first ground for seeking reconsideration—that the Court erred when it did not

apply section 5 to single tour situations—is without merit. Section 5 of E.O. 11,582 provides that

Any employee whose workday covers portions of two calendar days

and who would, except for this section, ordinarily be excused from

work scheduled for the hours of any calendar day on which a holiday

falls, shall instead be excused from work on his entire workday

which commences on any such calendar day.

In its decision in Austin I, the Court concluded that section 5 does not apply in a single tour

situation because the language of section 5 contemplates that the nurse will begin a second

workday on the same calendar holiday on which her first workday ended. Plaintiffs contend that

this conclusion is incorrect, arguing that the phrase “entire workday which commences on any

such calendar day” encompasses not just the workday that begins on the calendar holiday, but

also the workday that begins on the calendar day preceding the calendar holiday. Pls.’ Mot. for

Recons. at 11–15. Therefore, Plaintiffs argue, full-time nurses who work a single tour should

either be excused from work for the tour of duty that began the day before the calendar holiday,

or be provided additional pay for working it.

This interpretation of section 5, which Plaintiffs also proffered during the first round of

briefing, is unpersuasive. First, the most natural reading of the phrase “any such calendar day” is

that it refers to the immediately preceding phrase “any calendar day on which a holiday falls”—

i.e., the calendar holiday. Plaintiffs’ argument that it instead refers to the “two calendar days”

over which an employee’s workday falls ignores that the phrase “any such calendar day” is

singular, while the phrase “two calendar days” is plural. Moreover, under Plaintiffs’ construction

of section 5, nurses who are not in the single tour situation—i.e., nurses scheduled to begin a tour

of duty on the same calendar holiday on which their previous tour ended—would be excused

from work (or, if not excused, would receive additional pay) for both the entire workday that

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ended on the calendar holiday and the entire workday that began on it. In other words, plaintiffs

who work two eight-hour tours of duty, each of which straddles a single calendar holiday, would

be granted the benefit of two holidays.

But the Court already rejected this interpretation of section 5 in Austin I, when Plaintiffs

offered it in connection with their challenge to VA’s pay policy for employees who work two

tours of duty that both straddle the same calendar holiday (a challenge it has apparently now

abandoned). See Pls.’ Mot. for Recons. at 12 n.7 (observing that “[o]n reflection, Plaintiffs agree

with the Court’s finding that when an employee is scheduled to work a tour from July 3 to July 4

followed by a second tour from July 4 to July 5, the VA within its administrative discretion may

select the second tour beginning on the holiday itself as the designated holiday”). As the Court

stated there:

Section 6 of the Executive Order states that the “workdays referred

to in sections 3, 4, and 5 shall be treated as holidays in lieu of the

corresponding calendar holidays” for purposes of “administering the

provisions of law relating to pay.” E.O. 11,582 (emphasis added).

Contrary to Plaintiffs’ argument, the term “workdays” in section 6

clearly refers to the workdays that have been designated as holidays

under those sections. For purposes of section 5, such workdays are

those that commence on the calendar holiday. That is the most

natural reading of the E.O.’s text. Further, it is the most sensible

reading because it results in employees receiving holiday pay only

for tours of duty from which they would otherwise be excused. On

the other hand, adopting the Plaintiffs’ reading would mean that,

although nurses were not otherwise excused from a tour of duty that

began the day before and extended into the calendar holiday, they

would still be entitled to additional pay for working that tour.

124 Fed. Cl. at 419–20.

Similarly unpersuasive is Plaintiffs’ argument that section 3 of the E.O. (which this Court

concluded was the operative holiday-designating provision for purposes of single tour of duty

situations) “does not establish rules for when the employee’s scheduled ‘workday covers

portions of two calendar days.’” Pls.’ Mot. for Recons. at 14 (emphasis in original); see also id.

at 5 (observing that “Plaintiffs believe that section 3(a) applies predominately to the hundreds of

thousands of federal employees who work only tours of duty which occur entirely on and within

a single ‘calendar day’”). Contrary to Plaintiffs’ argument, it is clear that section 3 does apply to

employees who work tours of duty that straddle two calendar days. Section 3(a) of the E.O., for

example, states that an employee “shall be excused from work on the next workday of his basic

workweek whenever a holiday falls on Sunday.” See also § 3(b) (referring to employee’s next

“workday”). And the word “workday” is defined in section 2(b) of the E.O. to mean “those hours

which comprise in sequence the employee’s regular daily tour of duty within any 24 hour period,

whether falling entirely within one calendar day or not.”

In their motion for reconsideration, Plaintiffs appear to claim that—notwithstanding the

VA policy regarding “in lieu of” holidays for nurses in the single tour of duty situation, which is

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covered by VA Handbook 5011/23, Part II, Chapter 3, ¶ 3 (see Austin I, 124 Fed. Cl. at 420)—

some unspecified plaintiffs have worked single tours of duty without being granted an “in lieu

of” holiday. Pls.’ Mot for Recons. at 23. The government, on the other hand, cites the contrary

testimony of its expert, Thurstan Hunter, and notes that the pay records it submitted for at least

one of the plaintiffs reflect that the VA does follow the Handbook’s policy in single tour

situations. Def.’s Resp. to Pls.’ Mot. for Recons. at 7–9.

To the extent that Plaintiffs are now claiming that the VA is violating its policy with

respect to full-time nurses who work a single tour of duty by not granting them an “in lieu of”

holiday, that claim is outside the parameters of this action, which was certified as a class on the

basis of Plaintiffs’ characterization of their claims in their complaint as involving challenges to

official VA pay policies. See Austin I, 124 Fed. Cl. at 423–24 (declining to consider Plaintiffs’

new claim that systemic timekeeper errors have resulted in the failure of the VA to compensate

nurses for overtime worked on a holiday, because the gravamen of their complaint was based on

the existence of “an official and deliberate VA policy and practice of failing to compensate

nurses for overtime worked on holidays”).

For similar reasons, the Court declines to reconsider its decision to grant summary

judgment to the government as to Plaintiffs’ claim that the VA has violated the statute by

maintaining an official policy—set forth at VA Handbook 5007/43, Part V, Chapter 6, ¶ 1(c)—of

not providing additional pay to full-time nurses for overtime work performed on a holiday. In

Austin I the Court granted summary judgment to the government on this claim because the

undisputed facts showed that VA’s official policy when full-time nurses work overtime on a

holiday is to provide them with double their regular rate of pay. 124 Fed. Cl. at 422–24. The

Court declined to consider Plaintiffs’ argument—raised for the first time in their opposition to

the government’s motion (and based on the statements made by the government’s expert)—that

notwithstanding the official policy, the VA systemically violated it as a result of timekeeper

errors. Id.

Now, Plaintiffs seek reconsideration of the Court’s grant of summary judgment as to the

overtime claims “on the limited ground that defendant admits the VA had a past practice of

‘split’ tours which denied nurses holiday premium pay.” Pls.’ Mot. for Recons. at 24.

Specifically, according to Plaintiffs, “[t]he record is crystal clear the VA had a past practice, at

least in Memphis, Tennessee, which unlawfully denied nurses holiday premium pay when they

worked overtime on late night tours of duty which consecutively covered portions of two

calendar days.” Id.

The Court declines to grant reconsideration on this basis because the claim that Plaintiffs

would have the Court decide—that there was a past practice among timekeepers in Memphis,

Tennessee (and perhaps elsewhere) of creating split tours that denied nurses holiday pay for the

overtime they worked—is outside the scope of the complaint in this case. Plaintiffs’ argument,

beginning with the filing of their complaint and continuing up through their motion for class

certification and through discovery, was that the VA maintained an official policy of not

providing additional pay to nurses who worked overtime on a holiday. See Compl. ¶ 16 (alleging

that “VA Handbooks and other official instructions as to the computation of holiday pay

specifically exclude ‘overtime service’ which is specifically included within the computation of

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holiday pay by 38 U.S.C. § 7453(d)”); Pls.’ Mem. in Supp. of Mot. for Class Certification at 1,

ECF 20-1 (failure to provide additional pay “was based upon official VA policy, set forth in the

VA Handbook, which directly contradicts the holiday pay statute”); Pls.’ Reply Mem. in Supp.

of Mot. for Class Certification at 2, ECF No. 22 (stating that the failure to provide additional pay

to the class was “the product of official VA policy as set forth in VA Handbook 5007/43, Part V,

Chapter 6, Section 1(c)(1)”).

It was not until their response to the government’s motion for partial summary judgment

that Plaintiffs shifted gears and argued, on the basis of Mr. Hunter’s review of payroll records,

that there existed a systemic problem at the VA of timekeeper errors that resulted in the failure to

provide additional pay to some of the named plaintiffs and others for overtime they worked on

holidays. Pls.’ Mem. in Supp. of Pls.’ Opp. to Def.’s Mot. for Summ. J. at 18–21, ECF 47-1. In

their Motion for Reconsideration, Plaintiffs have further refined this new claim by casting it as a

challenge to an alleged past practice of establishing “split tours” to avoid paying nurses

additional pay for overtime at one or more VA facilities. Pls.’ Mot. for Recons. at 24–26.

Nothing in the Plaintiffs’ motion persuades the Court that it should reconsider its grant of

summary judgment as to Plaintiffs’ overtime claims and allow them to raise a different, entirely

new claim at this stage in the litigation, after discovery has been completed and dispositive

motions resolved. To be sure, the class definition includes all nurses who “worked overtime on a

tour of duty any portion of which fell on the holiday,” and who “did not receive ‘additional pay’

pursuant to 38 U.S.C. § 7453(d), 38 U.S.C. § 7454(a) or 38 U.S.C. § 7454(b)(1) for each and

every hour of such service . . . including overtime service.” Order, ECF No. 26. But the class

definition does not allow the Court to consider every possible ground upon which these class

members might claim entitlement to compensation for overtime worked on a holiday; rather, the

Court may consider only those grounds Plaintiffs asserted in their complaint and upon which the

Court certified the class.

For these reasons, and based on the Court’s decision in Austin I, Plaintiffs’ motion for

reconsideration is DENIED.

II. Cross-Motions for Partial Summary Judgment as to Claims of Part-Time Nurses

A. Holiday Pay Policy for Part-Time Nurses

As described in Austin I, in 2010 Congress extended to part-time nurses the same

entitlement to additional pay for work performed on a holiday that was previously enjoyed only

by full-time nurses. 124 Fed. Cl at 413 (citing Caregivers and Veterans Omnibus Health Services

Act of 2010, Pub. L. No. 111-163, 124 Stat. 1171, § 601(k)(1), and 38 U.S.C. § 7453(a) (stating

that “[i]n addition to the rate of basic pay provided for nurses, a full-time nurse or a part-time

nurse shall receive additional pay as provided by this section”)). Thus, pursuant to 38 U.S.C.

§ 7453(d), “a [part-time] nurse performing service on a holiday designated by Federal statute or

Executive order shall receive for each hour of such service the nurse’s hourly rate of basic pay,

plus additional pay at a rate equal to such hourly rate of basic pay, for that holiday service,

including overtime service.”

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The VA’s holiday pay policy for part-time nurses is set forth in VA Handbook 5007/43

Part V, Chapter 6, ¶ (2). It provides that part-time nurses “shall receive additional pay on the

same basis as that for a full-time employee, except . . . [a] part-time nurse shall be entitled to

holiday pay only for service performed on the actual calendar holiday.” Id. Therefore, and

pertinent to the claims that are currently before the Court, part-time nurses, unlike full-time

nurses, do not receive the benefit of so-called “in lieu of” holidays under VA policy. See Def.’s

Suppl. Br. at 2; id. Attach. at 1–2; VA Timekeepers Manual Chapter 1, § 105.07(a)(3)–(4) (ECF

No. 59) (noting that provisions of the Timekeepers Manual regarding legal holidays falling on

Saturdays, Sundays, or days off in lieu of Saturdays and Sundays are not applicable to part time

employees).2

At first blush, the language of the Handbook appears to suggest that part-time nurses,

unlike their full-time counterparts, will receive additional pay only for the hours worked on the

calendar holiday itself, regardless of whether their shift begins or ends on that day. In order to

clarify whether that is, in fact, VA’s policy, the Court requested that the parties file supplemental

briefs addressing how VA’s pay policy applies in the following circumstances (which the Court

addressed in Austin I with respect to full-time nurses): 1) where a part-time nurse works a single

tour of duty that begins the day before the calendar holiday and ends on the calendar holiday; 2)

where a part-time nurse works a tour of duty that begins on a calendar holiday but ends the next

day; 3) where a part-time nurse works portions of two tours of duty on a calendar holiday, one

which begins the day before the calendar holiday and the other which begins on the calendar

holiday; and 4) where a part-time nurse works two shifts, both of which begin on the calendar

holiday.

Each of these scenarios was addressed by the government in its supplemental brief, with

a supporting declaration from the government’s expert, Mr. Thurstan Hunter. Plaintiffs state that

they do not take issue with the government’s statement of its current official policy with respect

to part-time nurses. See Pls.’ Suppl. Br. at 1.

Thus, it is undisputed that a part-time nurse who works a single tour of duty that begins

the day before the calendar holiday and ends on the calendar holiday currently does not receive

holiday pay for any part of that workday (including the hours worked on the calendar holiday).

According to Mr. Hunter, this result obtains because “the VA has recognized regularly scheduled

tours that begin on the actual calendar holiday as the tour eligible for holiday pay entitlement.”

Def.’s Suppl. Br. Attach. at 1.

Second, it is undisputed that under VA policy a part-time nurse who works a tour of duty

that begins on a calendar holiday but ends the next day receives holiday pay for the entire tour of

duty (i.e., both for the hours worked on the calendar holiday and the hours worked the next day).

Third, as Mr. Hunter explains, where a part-time nurse works portions of two tours of duty on a

calendar holiday, one which begins the day before the calendar holiday and the other which

begins on the calendar holiday, the tour that begins on the calendar holiday is designated as her

2

In Austin I, the Court incorrectly cited to VA Handbook 5007/43, Part V, Chapter 6, ¶ 2(c) for

this premise. See 124 Fed. Cl. at 421 n.4.

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holiday for purposes of additional pay. Id. at 2. Accordingly, no part of the tour that began the

day before the calendar holiday is treated as a holiday for pay or leave purposes.

Finally, Mr. Hunter states that, under VA policy, where a part-time nurse works two tours

of duty, both of which begin on the calendar holiday, she receives holiday pay for all hours

worked on each tour. Id. He further states that a nurse who was excused from the first tour

because it was a holiday will be required to work the second tour (and will receive holiday pay

for that second tour). Id.

B. Standards for Motion for Summary Judgment

As the Court noted in Austin I, summary judgment is appropriate where there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rules of

the Court of Federal Claims (RCFC) 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). A fact is material if it “might affect the outcome of the suit under the governing law.”

Anderson, 477 U.S. at 248. An issue is genuine if it “may reasonably be resolved in favor of

either party.” Id. at 250.

The moving party bears the burden of establishing the absence of any genuine issue of

material fact, and all significant doubts regarding factual issues must be resolved in favor of the

party opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d 1387,

1390 (Fed. Cir. 1987). “The fact that both parties have moved for summary judgment does not

mean that the court must grant judgment as a matter of law for one side or the other; summary

judgment in favor of either party is not proper if disputes remain as to material facts.” Id. at

1391.

In this case, the material facts are not in dispute. The issues before the Court are purely

legal ones. Accordingly, the case is appropriate for disposition by summary judgment.

C. “In Lieu of” Holidays and Part-Time Nurses Who Work Single Tours

As described above, Plaintiffs’ opening brief in support of their initial motion for partial

summary judgment did not contain any specific discussion regarding VA’s holiday policies with

respect to part-time nurses. In their reply brief on the initial motion, Plaintiffs raised for the first

time a claim that VA’s failure to provide part-time nurses additional pay for service performed

on the “in lieu of” holidays established by federal statute and executive order violates

section 7453(d). Pls.’ Reply to Def.’s Opp’n to Pls.’ [First] Mot. for Partial Summ. J. at 15–16,

ECF No. 52. As stated above, however, under VA policy, part-time nurses are not afforded “in

lieu of” holidays. Accordingly, Plaintiffs have now reframed their argument, contending that

VA’s failure to provide part-time nurses with “in lieu of” holidays is inconsistent with 5 U.S.C.

§ 6103 and E.O. 11,582. Pls.’ Mem. in Supp. of Second Mot. for Partial Summ. J. (Pls.’ Mem.)

at 4–11. The Court finds this argument unpersuasive.

As described in detail in Austin I, 5 U.S.C. § 6103 and E.O. 11,582 are the operative

holiday-designating authorities for employees of the federal government, including VA nurses.

In addition to identifying the calendar holidays that the federal government will observe for pay

and leave purposes, 5 U.S.C. § 6103 and E.O. 11,582 also provide rules by which employees

enjoy the benefit of “in lieu of” holidays in certain circumstances where a calendar holiday falls

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on an employee’s non-workday. Thus, 5 U.S.C. § 6103(b)(1)(A) states that for “employees

whose basic workweek is Monday through Friday,” “[i]nstead of a holiday that occurs on a

Saturday, the Friday immediately before is a legal public holiday.” Id. Section 6103(b)(2), in

turn, establishes rules for designating such an “in lieu of” holiday for “an employee whose basic

workweek is other than Monday through Friday.” Id. § 6103(b)(2); see also Austin I, 124 Fed.

Cl. at 420–21 (providing examples).

Similarly, pursuant to section 6 of E.O. 11,582, certain “in lieu of” holidays described in

sections 3 and 4 of the E.O. are recognized for pay and leave purposes.3 Section 3(a) creates an

“in lieu of” holiday for “[a]ny employee whose basic workweek does not include Sunday and

who would ordinarily be excused from work on a holiday falling within his basic workweek.” It

states that when a holiday falls on a Sunday, the employee will “be excused from work on the

next workday of his basic workweek.” See Austin I, 124 Fed. Cl. at 420–21 (providing

examples). Section 3(b) establishes “in lieu of” holidays for “[a]ny employee whose basic

workweek includes Sunday and who would ordinarily be excused from work on a holiday falling

within his basic workweek.” See id. (providing examples).

The VA applies section 5 of the executive order to part-time nurses, so that they receive

holiday pay for their second shift when they work two shifts that straddle the same calendar

holiday. It does not, however, give part-time nurses the benefit of the “in lieu of” holidays

provided by section 3 or 5 U.S.C. § 6103(b). The government contends that those provisions do

not apply to part-time nurses because they do not work a “basic workweek.” See Def.’s Resp. to

Pls.’ [Second] Mot. for Partial Summ. J. and Cross-Mot. for Summ. J. (Def.’s Resp.) at 4–5, ECF

No. 65. That view was recently endorsed by the court in Yanko v. United States, No. 15-1560,

2016 WL 4256897, at *12 (Fed. Cl. Aug. 12, 2016), a case brought pursuant to 5 U.S.C.

§ 5546(b), which is the holiday pay provision that applies to Title 5 employees. Plaintiffs

disagree, claiming that the government’s argument is inconsistent with the Federal Circuit’s

decision in Fathauer v. United States, 566 F.3d 1352 (Fed. Cir. 2009), and that the term

“employee” in the E.O. and in 5 U.S.C. § 6103(b) includes both part-time and full-time

employees. Pls.’ Reply to Def.’s Resp. at 6–8. They also argue, on a variety of grounds, that the

term “basic workweek” applies to both full-time and part-time employees. See id. at 2–6.

The Court finds Plaintiffs’ arguments unconvincing. First, principles of statutory

construction support the government’s argument that the phrase “basic workweek” as used in

both the statute and the E.O. means a forty-hour workweek. Section 6103 is the second of the

five “general provisions” contained in Subchapter 1 of Chapter 61 of Title 5 (entitled

“Holidays”). The first section of that subchapter, § 6101, is entitled “Basic 40-hour workweek;

work schedules; regulations.” It instructs that the head of each agency shall “establish a basic

administrative workweek of 40 hours for each full-time employee in his organization.” 5 U.S.C.

§ 6101(a)(2) (emphasis added). Further, in 5 U.S.C. § 6101(a)(3), the phrases “basic workweek”

and “basic 40-hour workweek” are used interchangeably. See 5 U.S.C. § 6101(a)(3)(B) (“the

3

Section 4 of the executive order explicitly applies to “full-time employee[s]” whose “basic

workweek[s]” are established by the head of his agency “because of the impracticability of

prescribing a regular schedule of definite hours of duty for each workday.” Both parties

recognize that the claims of part-time nurses are not subject to this provision.

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basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the

2 days outside the basic workweek are consecutive”); 5 U.S.C. § 6101(a)(3)(C) (instructing that

“the working hours in each day in the basic workweek are the same”); and 5 U.S.C.

§ 6101(a)(3)(E) (directing that “the occurrence of holidays may not affect the designation of the

basic workweek”).

Indeed, since at least 1945, the statute has consistently employed the phrase “basic

workweek” to mean “a basic administrative workweek of forty hours.” In section 604(a) of the

Federal Employees Pay Act of 1945, 79 Pub. L. 106, 59 Stat. 295, titled “Establishment of Basic

Workweek; Pay Computation Methods,” Congress instructed the head of each agency “to

establish . . . for all full-time officers and employees in their respective organizations . . . a basic

administrative workweek of forty hours.” Id. at 303 (emphasis added).

Further, construction of the phrase “basic workweek” to mean a forty-hour workweek is

the interpretation that is used by the Office of Personnel Management (OPM)—the agency

“charged with prescribing regulations for administration of the statutory scheme for

establishment of a workweek and accrual of leave.” See Armitage v. United States, 23 Cl. Ct.

483, 489 (1991) (citing 5 U.S.C. §§ 6101(c), 6311), aff’d, 991 F.2d 746 (Fed. Cir. 1993). “OPM

has consistently construed the ‘basic administrative workweek’ to consist of 40 hours.” Id.; see

also 5 C.F.R. § 610.111(a). Further, OPM has consistently taken the position that part-time

employees are not entitled to the benefit of “in lieu of” holidays. See 5 C.F.R. § 610.405; see

also Pay & Leave, OPM.Gov, https://www.opm.gov/policy-data-oversight/pay-leave/pay-

administration/fact-sheets/holidays-work-schedules-and-pay (last visited September 14, 2016).

It has also been the Comptroller General’s (CG) position since at least 1953 that part-time

employees are not entitled to “in lieu of” holidays. That year, the CG ruled that a predecessor to

E.O. 11,582 applied “only to employees who have a regularly established basic workweek of at

least 40 hours and [did] not apply to part-time employees.” Holidays – Compensation – Part-

Time Employees, 32 Comp. Gen. 378, 378 (1953). In reaching this conclusion, the CG reviewed

section 604(a) of the Federal Employees Pay Act of 1945, and explained that:

[I]t appears reasonable to conclude that the term ‘basic workweek,’

as used in the executive order hereinabove quoted properly should

be accorded the commonly understood meaning of said term as

employed in the forgoing pay act and applicable civil service

regulations. Specifically, therefore, that term as used in the

executive order will be construed as relating only to employees who

have a regularly established workweek of at least 40 hours.

Id. at 380; see also In re Lombardo, 63 Comp. Gen. 306, 306 (1984) (concluding that “[p]art-

time employees are not covered by 5 U.S.C. § 6103(b) and Executive Order 11582[,] which

authorize designated and in lieu of holidays for full-time employees when an actual holiday falls

on an employee’s nonworkday”).

Further, the Court agrees with the CG that affording part-time employees the benefit of

“in lieu of” holidays would create the paradoxical situation in which “the smaller the number of

regularly scheduled workdays, the greater the [part-time employee’s] entitlement to designated

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or in lieu of holidays.” 63 Comp. Gen. at 307. That Plaintiffs’ interpretation would lead to this

anomalous result provides further support for the CG’s decades-long interpretation of the E.O.

and 5 U.S.C. § 6103.

To be sure, Plaintiffs are correct that part-time employees fall within the definition of the

word “employee” as that word is used in 5 U.S.C. § 6103 and in E.O. 11,582. Pls.’ Reply to

Def.’s Resp. at 6–7 (citing Fathauer, 566 F.3d at 521). But that observation begs the question

before the Court because, unlike section 5 of E.O. 11,582 (which the VA does, in fact, apply to

determine the holiday pay entitlement of part-time nurses), it is not enough to be “an employee”

to qualify for an “in lieu of” holiday; an employee must also work a “basic workweek.”

Plaintiffs counter that part-time employees in fact do have “basic workweeks” because

they perform their part-time work on a regular schedule that is set in advance. Pls.’ Reply. to

Def.’s Resp. at 11. But this argument conflates the concept of a “basic workweek” with that of a

regular, pre-scheduled workweek. As described above, the phrase “basic workweek” or “basic

administrative workweek” is consistently used to refer to the forty-hour workweek that is the

basis for full-time employment status. Even if an individual part-time nurse works a set schedule

and set number of hours, there is no “basic workweek” applicable to part-time employment

because, by definition, the workweek of a part-time employee can vary in length between sixteen

and thirty-two hours. See 5 U.S.C. § 3401(2) (stating that “‘part-time career employment’ means

part-time employment of 16 to 32 hours a week (or 32 to 64 hours during a biweekly pay period

in the case of a flexible or compressed work schedule under subchapter II of chapter 61 of this

title) under a schedule consisting of an equal or varied number of hours per day.”). Plaintiffs

have failed to provide any citation to a statute, regulation, or even non-binding guidance in

which the phrase “basic workweek” is used in reference to part-time employment.4

There is similarly no merit to Plaintiffs’ contention that the phrase “basic workweek” as

set forth in 5 C.F.R. § 550.103 “specifically contemplates that the phrase applies not just to full-

time employees” because it states that “[b]asic workweek, for full-time employees, means the

40-hour workweek established in accordance with § 610.111 of this chapter.” Pls.’ Mem. at 9–

10. According to Plaintiffs, “the placement of commas before and after ‘for full time employees’

reflects the recognition that part-time employees also have basic workweeks.” Id. at 10. As noted

above, however, in OPM’s view, part-time employees are not entitled to “in lieu of” holidays.

Further, the Court has not been made aware of any instance in OPM’s regulations or elsewhere

in which the phrase “basic workweek” is used in connection with the schedules of part-time

employees. The Court, accordingly, declines to rely upon the placement of the commas in

4

Along with their current motion for partial summary judgment, Plaintiffs submitted the

Declaration of Daniel Kowalski, who served for thirty-four years as a Human Resources

specialist and HR manager at VA. According to Plaintiffs, Mr. Kowalski’s declaration supports

their interpretation of the meaning of the statutory phrase “basic workweek.” The Court agrees

with the government that to the extent that Plaintiffs offer Mr. Kowalski as an expert witness, his

testimony is inadmissible because Plaintiffs failed to identify him as an expert witness as

required by RCFC 26. Moreover, and in any event, the definition of “basic workweek” for

purposes of the E.O. and statute involves a question of law as to which Mr. Kowalski’s views as

a VA official are not entitled to any particular deference.

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section 610.111 to derive a meaning of the regulations that is at odds with OPM’s own

interpretation.

Finally, Plaintiffs assert that the phrase “basic workweek” must encompass part-time

employees because “the definition of ‘compressed schedule’ referenced in 5 U.S.C.

§ 6103(d)(1)(A) specifically contemplates the designation of in lieu holidays for part-time

workers working such schedules.” Pls.’ Mem. at 9. This assertion, however, is inconsistent with

OPM’s interpretation of the statute, as 5 C.F.R. § 610.406 specifically states that part-time

employees on a compressed schedule are not entitled to “in lieu of” holidays.

OPM’s interpretation, moreover, is a reasonable reading of the rather convoluted

statutory language. Thus, section 6103(d)(2) grants agencies the discretion to adjust the “in lieu

of” holidays set forth in subsection (b) for employees on a compressed schedule “if the agency

head determines that it is necessary to do so in order to prevent an adverse agency impact.”

Section 6103(d)(1) defines “compressed schedule” in accordance with section 6121(5), which

includes a definition for both full-time and part-time employees on compressed schedules. See 5

U.S.C. § 6121(5)(A) and (B). But it is clear that section 6103(d) only addresses full-time

employees on compressed schedules because section 6103(d)(2) grants agencies discretion to

establish certain employees’ “in lieu of” holidays “other than as provided by subsection (b).”

(emphasis added). As explained above, the “in lieu of” holidays conferred in subsection (b) apply

to employees for whom the agency head has established a “basic workweek,” which means a

forty-hour workweek.

D. Failure to Provide Additional Pay for Work Performed on the Calendar

Holiday Itself Where Part-Time Nurses Work Single Tours

For the reasons set forth above, the Court concludes that part-time nurses are not entitled

to observe “in lieu of” holidays. However, that result does not compel the denial in their entirety

of Plaintiffs’ claims on behalf of part-time nurses who work single tours of duty that begin the

day before the calendar holiday. To the contrary, VA’s policy of not providing such nurses with

any additional pay for work performed on the portion of those single tours that falls on the

calendar holiday violates section 7453.

Thus, in its supplemental brief, the government acknowledges that the VA’s policy with

respect to part-time nurses who work single tours of duty is problematic precisely because,

unlike full-time nurses, part-time nurses do not observe “in lieu of” holidays. Def.’s Suppl. Br. at

2. The only holiday available to part-time nurses is the calendar holiday. As a result, the

government “concedes that there is not a basis to deny part-time nurses holiday pay for the hours

of a tour of duty falling on a calendar holiday, when the nurse’s tour of duty began the day

before the holiday and the nurse does not have a second tour beginning on the holiday.” Def.’s

Suppl. Br. at 2 n.1. Accordingly, while part-time nurses are not entitled to “in lieu of” holidays,

those who have worked single tours of duty are entitled to summary judgment in their favor to

the extent that the government did not compensate them with additional pay for the hours they

worked on the calendar holiday during those tours of duty.

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E. Part Time Nurses Who Work Two Tours Which Both Begin on a Calendar

Holiday

Finally, Plaintiffs have asked that the Court “clarify that the portion of its prior ruling

granting Plaintiffs’ Motion for nurses who perform two tours of duty which both begin on a

holiday applies to part-time nurses, and also applies to intermittent nurses who worked on

calendar holidays.” But the government has asserted (and Plaintiffs do not deny) that under

current VA policy, part-time nurses are, in fact, provided additional pay for both shifts when they

work two tours of duty that both begin on a holiday. Def.’s Suppl. Br. at 2; id. Attach. at 2–3.

Therefore, the government, and not Plaintiffs, is entitled to summary judgment as to this claim.

CONCLUSION

On the basis of the foregoing:

1. Plaintiffs’ Motion for Reconsideration is DENIED.

2. Plaintiffs’ Motion for Partial Summary Judgment as to the claims of part-time nurses is

GRANTED as to part-time nurses who worked a single tour of duty (as described above) but did

not receive additional pay for work performed on the calendar holiday. Plaintiffs’ motion is

otherwise DENIED.

3. The government’s Cross-Motion for Partial Summary Judgment is DENIED as to part-

time nurses who worked a single tour of duty but did not receive additional pay for work

performed on the calendar holiday. Otherwise, the government’s cross-motion is GRANTED.

The parties shall file a joint status report within 30 days, proposing further proceedings in

this case.

IT IS SO ORDERED.

s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Judge

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