Belt v. EmCare, Inc.

United States Court of Appeals

Fifth Circuit

REVISED APRIL 4, 2006 FILED

March 24, 2006

In the Charles R. Fulbruge III

United States Court of Appeals Clerk

for the Fifth Circuit

_______________

m 05-40370

______________

JUNE BELT,

ON BEHALF OF HERSELF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

PAUL MAIOCCO, WASHINGTON PLAINTIFF;

DONALD CHRISTIAN, NEW YORK PLAINTIFF;

LUCILLE MOYLAN, ILLINOIS PLAINTIFF;

VICTOR AMBROSIA, ILLINOIS PLAINTIFF;

HUNTINGTON YEO;

DARYL WEIN, UCL AND CALIFORNIA PLAINTIFF;

JEANETTE SHELLY, UCL AND CALIFORNIA PLAINTIFF;

RONALD MARTINEZ, UCL AND CALIFORNIA PLAINTIFF;

JULIE JUNG, UCL AND CALIFORNIA PLAINTIFF;

DEBORAH GASKINS, UCL AND CALIFORNIA PLAINTIFF;

DAVID DONA, UCL AND CALIFORNIA PLAINTIFF;

MASON CARLIN, UCL AND CALIFORNIA PLAINTIFF;

SUSAN BERTELSEN, UCL AND CALIFORNIA PLAINTIFF;

NEIL ADLER, UCL AND CALIFORNIA PLAINTIFF;

DEBORAH NICHOLS, ARIZONA PLAINTIFF;

FLSA EMPLOYEES,

Plaintiffs-Appellees,

VERSUS

EMCARE, INC., AND TEXAS EM-I MEDICAL SERVICES, P.A.,

Defendants-Appellants.

2

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________

Before KING, SMITH, and BENAVIDES, Plaintiffs are paid hourly at a flat rate for all

Circuit Judges. hours worked, including overtime (i.e., all

hours over forty in a workweek). The DOL’s

JERRY E. SMITH, Circuit Judge: Bureau of Labor Statistics’ Occupational Out-

look Handbook provides an overview of the

This appeal presents the question whether job descriptions of PA’s and NP’s:

physician assistants (“PA’s”) and nurse practi-

tioners (“NP’s”)1 qualify for the professional Physician assistants (PAs) practice medi-

exemption to the overtime requirements of the cine under the supervision of physicians and

Fair Labor Standards Act (“FLSA”). Plaintiffs, surgeons . . . PAs are formally trained to

and the Department of Labor (“DOL”) as ami- provide diagnostic, therapeutic, and pre-

cus curiae, contend that the regulation inter- ventive health care services, as delegated by

preting the professional exemption, 29 C.F.R. a physician. Working as members of the

§ 541.3 (1973), does not speak to the precise health care team, they take medical histor-

question before us and that the agency’s infor- ies, examine and treat patients, order and

mal interpretive statements excluding plaintiffs interpret laboratory tests and x rays, and

from the exemption merit deference under Auer make diagnoses. They also treat minor

v. Robbins, 519 U.S. 452 (1997). We agree injuries, by suturing, splinting, and casting.

and affirm, and remand for further proceedings. PAs record progress notes, instruct and

counsel patients, and order or carry out

I. therapy. In 48 States and the District of

Plaintiffs are 59 PA’s and 20 NP’s who pro- Columbia, physician assistants may pre-

vide health care services for EmCare, Inc., in scribe medications. PAs also may have

hospital emergency rooms in twenty states.2 managerial duties. Some order medical

supplies or equipment and supervise tech-

1

Although the defendant employers tend to refer

to plaintiffs by their official titles, plaintiffs are

prone to use the collective term “mid-level pro-

viders.” Recognizing that the respective choices of

2

terms are strategic, we use the official titles. (...continued)

perform administrative tasks. EmCare states that

2

Defendant Texas EM-I is a physicians group it assists Texas EM-I by “providing recruiting,

responsible for adequately staffing hospital emer- scheduling, malpractice insurance coverage, risk

gency rooms. It contracted with EmCare to help management, and clinician payroll support.” We

(continued...) refer to defendants jointly as “EmCare.”

3

nicians and assistants.[3] which held that an agency’s interpretation of

its own ambiguous regulation is controlling

Nurse practitioners provide basic preven- unless clearly erroneous or inconsistent with

tive health care to patients, and increasingly the regulation.

serve as primary and specialty care providers

in mainly medically underserved areas . . . The court also considered the history of the

In most States, advanced practice nurses can FLSA’s professional exemption, which

prescribe medications.[4] showed that the DOL had rejected earlier ef-

forts to expand the exemption to include other

Plaintiffs sued EmCare for back wages and professionals, such as engineers and architects,

liquidated damages under the FLSA, alleging and that the NP and PA professions had not

that EmCare was violating the FLSA by failing fully developed when the exemption was

to pay time-and-a-half compensation for over- created. The court further considered the lat-

time. EmCare responded that it did not owe est version of the applicable regulations, ef-

plaintiffs additional pay, because they qualify fective August 23, 2004,5 which codified a

for an exemption as bona fide professionals un- previous informal interpretation of § 541.3(e)

der 29 C.F.R. § 541.3(e) (1973). The parties (i.e., provided notice and comment), requiring

filed cross-motions for partial summary judg- that certain analogous professions, such as

ment on this issue, and the district court grant- nurses and certified medical technologists, be

ed plaintiffs’ motion. See June Belt v. EmCare salaried to be exempt from the overtime re-

Inc., 351 F. Supp. 2d 625 (E.D. Tex. 2005). quirements. The court certified its order for

interlocutory appeal under 28 U.S.C.

The court reasoned that § 541.3(e) is ambig- § 1292(b),6 and we granted leave to appeal.

uous, so it deferred to the DOL’s informal pro-

nouncements on § 541.3(e), including a DOL II.

opinion letter and the Wage and Hours Field The FLSA provides that a covered em-

Operations Handbook, which tended to show ployee shall receive compensation at one-and-

that PA’s and NP’s must be paid on a salary ba- one-half times the regular rate for every hour

sis to be exempt from the FLSA. The court

based its decision on Auer, 519 U.S. at 461,

3 5

Physician Assistants, in BUREAU OF LABOR Though the district court found the 2004 re-

STATISTICS, U.S. DEP’T OF LABOR, OCCUPATIONAL visions instructive, the facts underlying this case

OUTLOOK HANDBOOK 2006-07, occurred before the recent amendments took effect.

http://www.bls.gov/oco/ocos081.htm (last visited Therefore, this case is governed by the regulations

March 13, 2006). as codified in 1973.

4 6

Nurse Practitioners, in BUREAU OF LABOR A district court may certify an order for in-

STATISTICS, U.S. DEP’T OF LABOR, OCCUPATIONAL terlocutory appeal under § 1292(b) where the order

OUTLOOK HANDBOOK 2006-07, “involves a controlling question of law as to which

http://www.bls.gov/oco/ocos083.htm (last visited there is substantial ground for difference of opinion

March 13, 2006). Plaintiffs and the DOL represent and . . . an immediate appeal from the order may

that the duties of PA’s and NP’s are almost indis- materially advance the ultimate termination of the

tinguishable. litigation.”

4

over forty worked during the week,7 but not if Section 541.3(e) further provides that the

he is “employed in a bona fide executive, ad- salary-basis test does not apply to “an employ-

ministrative, or professional capacity . . . as ee who is the holder of a valid license or cer-

such terms are defined and delimited from time tificate permitting the practice of law or medi-

to time by regulations of the Secretary.” 29 cine or any of their branches and who is actu-

U.S.C. § 213(a)(1). Pursuant to this authority, ally engaged in the practice thereof” (the “sal-

the DOL, after notice and comment, issued ary-basis exception”). Because the parties

§ 541.3, which defines a “bona fide . . . profes- agree that plaintiffs satisfy the duty require-

sional” as an employee who satisfies certain du- ments of the professional exemption and are

ty requirements8 and “is compensated for ser- paid hourly, the sole interpretive issue in this

vices on a salary or fee basis” (the “salary-basis appeal is whether NP’s and PA’s hold a license

test”).9 permitting, and actually engage in, “the

practice of . . . medicine or any of [its]

branches.”

7

“[N]o employer shall employ any of his em-

ployees who in any workweek is engaged in com- If NP’s and PA’s practice medicine within

merce or in the production of goods for commerce, the meaning of § 541.3(e), plaintiffs do not

or is employed in an enterprise engaged in com- need to satisfy the salary-basis test to qualify

merce or in the production of goods for commerce, for the exemption, and EmCare can deny ad-

for a workweek longer than forty hours unless such ditional overtime pay. If, however, plaintiffs

employee receives compensation for his employment do not practice medicine under § 541.3(e),

in excess of the hours above specified at a rate not they are subject to the salary-basis test, they

less than one and one-half times the regular rate at do not fall within the exemption, and they are

which he is employed.” 29 U.S.C. § 207(a)(1). eligible for time-and-a-half compensation. We

8 are the first circuit to address the precise issue

The relevant duty provisions require that an

employee’s (a) “primary duty consist[] of the per- presented by this case.

formance of . . . [w]ork requiring knowledge of an

advanced type in a field of science or learning cus- III.

tomarily acquired by a prolonged course of spe- When confronted with a statute adminis-

cialized intellectual instruction and study,” tered by an executive agency, we defer to the

(b) “work requires the consistent exercise of dis- agency’s interpretation of the statute if (a) the

cretion and judgment in its performance,” (c) “work statute is silent as to the precise question at is-

is predominantly intellectual and varied in charac- sue and (b) the agency’s interpretation is rea-

ter,” and (d) at least 80 percent of the employee’s sonable.10 We employ a similar two-step test

time must be so occupied. 29 C.F.R. § 541.3 (a)- when interpreting an agency regulation. First,

(d) (1973). we ask whether the regulation is “ambigu[ous]

9

Id. § 541.3(e). Neither side argues that the

DOL lacked authority to issue these implementing

regulations. An employee is considered paid on a 9

(...continued)

“salary . . . basis” if “under his employment agree- tion.” Id. § 541.118(a) (1973).

ment he regularly receives each pay period on a

10

weekly, or less frequent basis, a predetermined Chevron, U.S.A., Inc. v. Natural Resources

amount constituting all or part of his compensa- Defense Council, Inc., 467 U.S. 837, 842-43

(continued...) (1984).

5

with respect to the specific question consid- medicine within the meaning of § 541.3(e),

ered.”11 and plaintiffs maintain the regulation does not

speak to this precise question. Before ad-

Second, if the regulation is ambiguous, the dressing the issue on the merits, however,

agency’s interpretation (as contained in, e.g., plaintiffs contend it is waived because EmCare

opinion letters) is “controlling unless plainly er- raises it for the first time on appeal, having

roneous or inconsistent with the regulation.” consistently represented to the district court

Auer, 519 U.S. at 461 (articulating the rule in that § 541.3(e) is ambiguous, and having relied

the context of interpreting a different aspect of instead on the interpretive regulation,

the salary-basis test) (internal quotations omit- 29 C.F.R. § 541.314 (1973), to make its case.

ted). If the regulation is unambiguous, we may

still consider agency interpretation, but only ac- EmCare replies that “an argument is not

cording to its persuasive power.12 waived on appeal if the argument on the issue

before the district court was sufficient to per-

A. mit the district court to rule on it.”13 The dis-

EmCare argues that PA’s and NP’s unam- trict court held that “[t]hese regulations do not

biguously practice medicine or a branch of expressly address whether physician assistants

and nurse practitioners are exempted from the

salary-basis test, and, on this issue, the regula-

11

Moore v. Hannon Food Serv., 317 F.3d 489, tion is therefore ambiguous.” Belt, 351 F.

495 (5th Cir. 2003); Christensen v. Harris County, Supp. 2d at 627.

529 U.S. 576, 588 (2000) (finding Auer deference

appropriate “only when the language of the regula- We have spoken to this waiver issue:

tion is ambiguous”).

12

Moore, 317 F.3d at 495; Christensen, 529 If a litigant desires to preserve an argument

U.S. at 587 (stating that “interpretations contained for appeal, the litigant must press and not

in formats such as opinion letters are entitled to re- merely intimate the argument during the

spect . . . but only to the extent that those interpreta- proceedings before the district court. If an

tions have the power to persuade.”) (internal quo- argument is not raised to such a degree that

tations omitted). The Court described this degree of the district court has an opportunity to rule

deference in Skidmore v. Swift & Co., 323 U.S. 134, on it, we will not address it on appeal.

140 (1944):

FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.

We consider that the rulings, interpretations and 1994). We have noted, however, that “[n]o

opinions of the [agency], while not controlling bright-line rule exists for determining whether

upon the courts by reason of their authority, do a matter was raised below.” N.Y. Life Ins. Co.

constitute a body of experience and informed

v. Brown, 84 F.3d 137, 142 n.4 (5th Cir.

judgment to which courts and litigants may

properly resort for guidance. The weight of such

1996).

a judgment in a particular case will depend upon

the thoroughness evident in its consideration, the EmCare’s corporate representative, Mr.

validity of its reasoning, its consistency with

earlier and later pronouncements, and all those

13

factors which give it power to persuade, if Lifemark Hosps., Inc. v. Liljeberg Enters.,

lacking power to control. 304 F.3d 410, 428 n.29 (5th Cir. 2002).

6

Wilson, stated under oath that EmCare was re- Arnold, 361 U.S. at 392-94. Here, the current

lying only on the DOL’s interpretive regulation, § 213(a)(1) explicitly gives the DOL authority

not § 541.3. EmCare contends, however, that to define and cabin the definition of “bona-

it argued to the district court that the court fide . . . professional” and hence the scope of

should not rely on a 1974 DOL opinion letter the professional exemption. It would be inap-

because plaintiffs “are included within the un- propriate to apply a canon of strict (as op-

ambiguous terms of § 541.3 and § 541.314, and posed to fair) construction to the agency’s dis-

that any agency interpretation of those regu- cretionary exercise of its own, lawfully dele-

lations should be given only persuasive defer- gated authority.14

ence, if any, under Skidmore.”

Therefore, because the regulations do not

Our review of the record, coupled with the define the terms used in § 541.3(e), we must

fact that EmCare can provide no specific quo- consider the words’ ordinary meaning.15 Em-

tation or any excerpt from any district court Care argues that capacious language does not

filing to support its claim, suggests EmCare did automatically entail ambiguity and that NP’s

not “press . . . the argument” in the district and PA’s unambiguously fall within the broad

court. Mijalis, 15 F.3d at 1327. Because, scope of § 541.3(e). EmCare relies on case-

however, a finding that § 541.3 is ambiguous law, dictionary definitions, and the employ-

was necessary to the district court’s ultimate ment duties of NP’s and PA’s to make its

conclusion that it was appropriate to defer to argument.

the agency’s informal interpretive statements

under Auer, the issue was sufficiently raised for First, in Moore we considered 29 C.F.R.

the court to rule on it, see Liljeberg, 304 F.3d § 541.118(a)(6), which provides a “window of

at 428 n.29, and is preserved for appeal. correction” for employers who make improper

deductions from the paychecks of exempt em-

B. ployees under the FLSA. The regulation

Plaintiffs claim that regulatory exemptions states that an employee will automatically lose

from the FLSA must be “narrowly construed exempt status unless the deduction is made

against the employers seeking to assert them through “inadvertence, or is made for reasons

and their application limited to those [employ- other than lack of work.” Id. at § 541.118-

ers] plainly and unmistakably within their terms (a)(6). We reasoned that the relevant deduc-

and spirit.” Arnold v. Ben Kanowsky, Inc., 361 tions in that case, made as a disciplinary pen-

U.S. 388, 392 (1960). In Arnold, however, the

Court applied its canon of strict construction

14

against employers in the course of interpreting See Auer, 519 U.S. at 463 (“A rule requiring

ambiguous statutory language in the former the Secretary to construe his own regulations nar-

exemption from FLSA overtime requirements rowly would make little sense, since he is free to

write the regulations as broadly as he wishes, sub-

for a retail establishment. See 29 U.S.C. §

ject only to the limits imposed by the statute.”).

213(a)(2), (4) (1949). Because there was no

regulatory interpretation of the relevant 15

See Gore, Inc. v. Espy, 87 F.3d 767, 773 (5th

provisions of § 213, the Court needed to con- Cir. 1996) (holding that where the regulations do

sider legislative history, past precedent, and not provide a definition, “we must first determine

canons of construction to reach its result. See whether the Secretary applied the ordinary meaning

of that term.”).

7

alty for cash register shortages, were “made for respect to the specific question considered.”

reasons other than lack of work” and therefore Id. at 495. In contrast, § 541.3(e) contains no

could be corrected by the employer. Moore, similarly forthright exclusionary language:

317 F.3d at 496-98. In the course of reaching Just because a regulation limited to persons

our decision, we noted that “actually engaged in the practice” of medicine

“or any of [its] branches” must exclude some-

[t]he presence or lack of ambiguity in a reg- one, this fact does not make it obvious wheth-

ulation should be determined without refer- er NP’s and PA’s fall within its scope.17

ence to proposed interpretations; otherwise,

a regulation will be considered ‘ambiguous’ Likewise, in Christensen the Court consid-

merely because its authors did not have the ered a regulation that allowed employers to

forethought expressly to contradict any cre- contractually obligate employees to take man-

ative contortion that may later be construct- datory leave to reduce accrued compensatory

ed to expand or prune its scope. time.18 In that case, Harris County implement-

ed a mandatory policy, not in the initial em-

Id. at 497. EmCare cites this language to sup- ployment agreements, but only after it became

port its contention that we should give no apparent that the county could not pay em-

weight to agency interpretations that seek to ployees for accrued time. Plaintiffs relied on a

“narrow” the reach of § 541.3(e) to exclude DOL opinion letter that stated employers

NP’s and PA’s merely because the regulation could institute this policy only in the text of

does not explicitly mention them. the agreement itself. Christensen, 529 U.S. at

581.

Moore is distinguishable: We held, based on

the regulation’s language, that “lack of work” The Court found that the letter was not

exhausted the universe of reasons why an

employer could not correct an improper de-

duction. Moore, 317 F.3d at 497 (applying 16

(...continued)

reasoning akin to expressio unius). Because “branches” of medicine.

disciplinary deductions were not made for “lack

of work,”16 there was no “ambiguity with 17

Moore would be more helpful to EmCare if,

for example, § 541.3(e) stated that all employees in

medicine or related fields, “other than interns and

16

The Secretary of Labor made no effort in residents,” qualify for the professional exemption.

Moore to argue that the deductions in question were Because NP’s and PA’s plainly are not interns or

made for “lack of work.” Instead, the Secretary residents, they likely would fall within the broad

argued, despite the text of the regulation, that no scope of the regulation, even if the agency offered

employer who engages in a practice of impermissi- a contrary interpretation.

ble deductions can cure the problem through the

18

window of correction, except for inadvertence. See See Christensen, 529 U.S. at 587-88; 29

Moore, 317 F.3d at 493-94 (quoting Klem v. C.F.R. § 553.23(a)(2) (providing that “the

County of Santa Clara, 208 F.3d 1085, 1091 (9th [employment] agreement or understanding may in-

Cir. 2000)). In contrast, the instant parties present clude other provisions governing the preservation,

competing positions on whether NP’s and PA’s fall use, or cashing out of compensatory time so long

within the general regulatory language; i.e., the as these provisions are consistent with [the relevant

(continued...) statute]”).

8

controlling because the regulation was unam- nition and the licensing requirement of

biguous: It permitted employers to include a § 541.3(e), EmCare formulates its proposed

compelled use clause in an agreement (“may reading of the rule, which is the analytical core

include”), but by no means required them to do of its entire argument, as follows: “[A]ny per-

so. Id. at 588. Therefore, the Court held that son who has received formal permission from

absent an express prohibition, the county could the relevant authority to practice in the art or

pursue its policy of compulsory leave. Id. science of preserving health and treating dis-

Because the regulation in Christensen was ease is included within the Salary Basis Excep-

unambiguous, even though it did not discuss tion.” EmCare argues that NP’s and PA’s un-

every method the county could use to imple- ambiguously fall within this definition because

ment its policy, EmCare argues that § 541.3(e) they are (1) licensed and (2) act to preserve

is also unambiguous, even though it fails spe- health and treat disease.19

cifically to discuss whether NP’s and PA’s fall

within its scope. The decision in Clark v. United Emergency

Animal Clinic, Inc., 390 F.3d 1124,1127 (9th

EmCare’s reliance on Christensen is mis- Cir. 2004), lends some support to EmCare’s

placed. The regulation there spoke directly to position; that court held, when considering the

the binary issue posed by the case: Did the applicabilityof § 541.3(e) to veterinarians, that

agency exclude non-contractual methods of en- “[l]ogically as well as linguistically, veterinary

forcing a compelled leave policy? Moore posed medicine is a ‘branch’ of medicine.” The court

a similar yes-or-no question: Did the rule deny used the “ordinary, dictionary meaning of the

the window of correction to any employer that terms” of the regulation to reinforce its view,

deducted pay for any reason besides lack of id., which is language almost identical to Em-

work? Care’s proposed formulation: “[A] doctor of

veterinary medicine is a practitioner licensed

It is possible to pose the question in this case and practicing in the field of medical science

in a similar way: Does the regulation exempt and healing on animals, a branch of medicine.”

from the FLSA anyone who practices medicine Id. at 1128.

or one of its branches? The problem is that one

cannot answer this question without addressing Nevertheless, Clark is inapposite. First, the

the key terminological dispute: whether NP’s fact that Clark also considered § 541.314, the

and PA’s practice medicine or a branch of DOL interpretive regulation, suggests that that

medicine. When the courts in Moore and court may have believed (or at least assumed

Christensen found broad language unam- arguendo) that § 541.3(e) is ambiguous. See

biguous, they were not confronted with the tax- Clark, 390 F.3d at 1127. Second, and more

onomic difficulties presented here. importantly, plaintiffs argue that the “practice

of . . . medicine” is a term of art that should be

EmCare tries to resolve this problem with construed as a single phrase.20

dictionary definitions; most importantly, that

the ordinary meaning of medicine is “the art or

science of preserving health and treating dis- 19

See supra notes 3-4 and accompanying text.

ease.” RANDOM HOUSE WEBSTER’S DICTION-

ARY 447 (3d ed. 1998). Using that broad defi- 20

La. Pub. Serv. Comm’n v. FCC, 476 U.S.

(continued...)

9

For example, neither NP’s nor PA’s qualify may also look to other statutes dealing with

to “practice medicine” under Texas law.21 the same subject that use identical, or nearly

Wilson conceded that, as far as he was aware, identical, language, to resolve a difficult

NP’s and PA’s are not licensed to practice interpretive problem.24 The fact that NP’s and

medicine within the meaning of any state’s PA’s are not licensed to practice medicine

medical practices law.22 EmCare gives no sat- under any state’s medical practices statute is

isfactory answer why this evidence should not strongly persuasive evidence that these

count toward finding ambiguity in the regula- professions do not view “practicing medicine”

tion, other than to note that the DOL nowhere as part of their job description. It is plausible

explicitly adopted any state’s definition of med- that the words “or any of [its] branches” in

ical practice. § 541.3(e) are limited to traditional medical

fields whose licenses are recognized by the

Though we routinely consult dictionaries as states; e.g., osteopath, dentist, chiropractor, or

a principal source of ordinary meaning,23 we optometrist. See, e.g., TEX. OCC. CODE

§ 104.003.

20

(...continued) Also, it is difficult to draw a limiting prin-

355, 372 (1986) (noting that “technical terms of art ciple from EmCare’s proposed definition: It

should be interpreted by reference to the trade or would seem that registered nurses are both

industry to which they apply”). (1) licensed and (2) practice the art or science

of preserving health and treating disease. But,

21

See, e.g., Weyandt v. State, 35 S.W.3d 144, the courts and DOL interpretive regulations

148 (Tex. App.SSHouston [14th Dist.] 2000, no have rejected the applicability of the profes-

pet.) (affirming jury verdict of guilty for advanced

NP practicing medicine without a license); Bradford

v. Alexander, 886 S.W.2d 394, 397 (Tex.

App.SSHouston [1st Dist.] 1994, no pet.) (stating

that PA does not practice medicine as contemplated

23

by the former Texas Medical Liability and (...continued)

Insurance Improvement Act). (5th Cir. 2005) (quoting Thompson v. Goetzmann,

337 F.3d 489, 497 n.20 (5th Cir. 2003)).

22

For example, the Texas Occupancy Code de-

24

fines “practicing medicine” more strictly as “the See Preferred Physicians Mut. Risk

diagnosis, treatment, or offer to treat a mental or Retention Group v. Pataki, 85 F.3d 913, 917-18

physical disease or disorder or a physical deformity (2d Cir. 1996) (interpreting the word

or injury by any system or method, or the attempt to “discriminate” by reference to ordinary meaning

effect cures of those conditions, by a person who and its use in other statutes); Liberty

(A) publicly professes to be a physician or surgeon; Lincoln-Mercury, Inc. v. Ford Motor Co., 171

or (B) directly or indirectly charges money or other F.3d 818, 823 (3rd Cir. 1999) (noting the rule and

compensation for those services.” TEX. OCC. CODE citing 2B NORMAN J. SINGER, SUTHERLAND ON

§ 151.002. The Code lists neither PA’s nor NP’s as STATUTORY CONSTRUCTION §§ 51.01, 51.02,

licensed to practice the healing arts. See id. 51.03 (5th ed. 1992)); United States v. Gibson

§ 104.003. Specialty Co., 507 F.2d 446, 450 (9th Cir. 1974)

(noting that the word “facilitate” was held to have

23

United States v. Orellana, 405 F.3d 360, 365 its ordinary meaning in the context of the statute at

(continued...) issue and other statutes).

10

sional exemption to registered nurses.25 This ropodists), dentists (doctors of dental

evidence does not suggest that § 541.3(e) un- medicine), optometrists (doctors of

ambiguously excludes PA’s and NP’s, but it is optometry or bachelors of science in

sufficient for us to find that § 541.3(e) is am- optometry).

biguous and to look to DOL’s interpretive

statements for additional guidance. (2) [Section excepting interns and resi-

dents from salary-basis test omitted]

C.

The DOL issued in 1949, and revised in (3) In the case of medical occupations,

1973, an interpretive regulation (without notice the exception from the salary or fee re-

and comment) regarding the meaning of the quirement does not apply to pharma-

phrase “or any of its branches” in § 541.3(e): cists, nurses, therapists, technologists,

sanitarians, dietitians, social workers,

Exception for physicians, lawyers, and psychologists, psychometrists, or other

teachers. professions which service the medical

profession.

(a) . . . This exception applies only to the

traditional professions of law, medicine, and 29 C.F.R. § 541.314(a), (b)(1)-(3) (1973).

teaching and not to employees in related Because neither PA’s nor NP’s are specifically

professions which merely serve these pro- mentioned, we must ask whether, under

fessions. § 541.314, plaintiffs are members of the “tra-

ditional profession[] of . . . medicine” or “re-

(b) In the case of medicine: lated professions which merely service the

[medical] profession.”

(1) The exception applies to physicians

and other practitioners licensed and EmCare reasons that the language of

practicing in the field of medical science § 541.314(b)(1) is intentionally broad, and

and healing or any of the medical EmCare reiterates that anyone who holds a li-

specialties practiced by physicians or cense and practices in a medical field qualifies

practitioners. The term physicians for the salary-basis exception. In Clark, the

means medical doctors including gen- court concluded that veterinarians are “other

eral practitioners and specialists, and practitioners” within the meaning of § 541.-

osteopathic physicians (doctors of oste- 314(b)(1), because the DOL did not intend the

opathy). Other practitioners in the field list provided to be exhaustive and because vets

of medical science and healing may in- practiced “in the field of medical science and

clude podiatrists (sometimes called chi- healing,” albeit on animals. Clark, 390 F.3d at

1127. Plaintiffs point out, however, that the

Clark court supported its interpretation by cit-

25

See, e.g., 29 C.F.R. § 541.314(b)(3) (1973); ing the DOL’s Occupational Outlook

Brock v. Superior Care, Inc., 840 F.2d 1054, 1061 Handbook, which lists as “Related Profes-

n.1 (2d Cir. 1988) (holding that § 541.3(e) does not sions” to veterinarians “chiropractors, dentists,

apply to nurses); Harrison v. Washington Hosp. optometrists, physicians and surgeons, and po-

Ctr., 1979 WL 1923, at *2-*3 (D.D.C. 1979) diatrists” but does not list any of these fields as

(same).

11

“Related Professions” to NP’s and PA’s.26 than an NP is a nurse with advanced academic

or clinical training.29 Plaintiffs also point out

Plaintiffs rely on the words “traditional pro- that PA’s and NP’s are not “physicians, law-

fessions of law, medicine, and teaching” to ar- yers, [or] teachers” as indicated in the title of

gue that NP’s and PA’s cannot possibly fall § 541.314. In sum, though the text of § 541.-

within the scope of § 541.314(b)(1) because 314 alone does not suffice to reveal entirely

these professions developed only in the mid- the agency’s position on this issue, plaintiffs’

1960’s and therefore did not exist in 1949 and case gains some traction from straightforward

could hardly have been traditional in 1973.27 textual analysis.

EmCare predictably replies that job duties, not

job titles, should control who qualifies as a tra- The parties next turn to the history of

ditional practitioner,28 and because PA’s and § 541.314(b). Plaintiffs emphasize in particu-

NP’s perform many of the traditional duties of lar that the DOL has resisted efforts to expand

physicians, they should qualify under the broad the salary-basis exception several times since

language of § 541.314(b)(1). its inception, rejecting a proposal in 1949 to

include “architects, engineers, and librarians”

The best textual argument drawn from and specifically excluding pharmacists and

§ 541.314(b) is that subheading (3) specifically nurses. The official report on the 1949 pro-

excludes NP’s from the salary-basis exception posals stated, as the reason for keeping the

under the general category of “nurses.” The salary-basis exception limited to lawyers and

DOL has repeatedly categorized NP’s under the doctors, the following: “the traditional stand-

heading of “Registered Nurses” and has noted ing of these professions, the recognition of

doctors and lawyers as quasi-public officials, []

the universal requirement of licensing by the

26 various jurisdictions[, and the] relatively

See id; BUREAU OF LABOR STATISTICS, U.S.

simple problems of classification presented by

DEP’T OF LABOR,OCCUPATIONAL OUTLOOK HAND-

BOOK, supra notes 3 and 4. Although Clark cites

these professions.” U.S. DEP’TOF LABOR, RE-

the 2000 Handbook, the current version includes, PORT AND RECOMMENDATIONS ON THE PRO-

inter alia, “physicians and surgeons” as “Related POSED REVISIONS OF REGULATIONS, PART 541,

Occupations” for Registered Nurse. See supra note 77 (1949).

4.

EmCare maintains that the history poses no

27

See Elizabeth Harrison Hadley, Nurses and obstacle to its position, because unlike archi-

Prescriptive Authority: A Legal and Economic An- tects, engineers, and librarians (at least histori-

alysis, 15 AM. J.L. & MED. 245, 268 n.104 (1989) cally), NP’s and PA’s require a license to prac-

(noting that the first training programs for NP’s and tice, and unlike nurses and pharmacists, NP’s

PA’s arose in the 1960’s). and PA’s help develop treatment plans for pa-

28

To that end, EmCare notes that other

practitioners with similarly limited responsibilities

29

also qualify for the salary-basis exception under BUREAU OF LABOR STATISTICS, U.S. DEP’T

§ 541.314; these include optometrists, who often OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK,

cannot write prescriptions or perform eye surgery, supra note 4 (including NP’s under “Registered

and interns and residents, who must work under a Nurses” heading and listing NP as an “advanced

physician’s supervision. practice nursing specialt[y]”).

12

tients. Hence, Emcare represents that nowhere however, are subject to it. The court reasoned

in the history does the DOL ever exclude a that because the DOL had not changed the

“practitioner” (as EmCare defines that term) of substance of the 1973 rule in 2004, the salary-

medical science or healing. basis exception included PA’s both before and

after the revisions. See Belt, 351 F. Supp. 2d

The parties also reference the 2004 amend- at 632-33. EmCare contends that we cannot

ments to the DOL regulations as persuasive au- consider the preamble because it is not a

thority. The amendments effectively adopted “sufficiently clear” indication of the agency’s

§ 541.314 after notice and comment, without intent to bind itself to the underlying policy,

substantive change,30 thereby tending to show see Kennecott Utah Copper Corp. v. United

that the text of § 541.3(e) does not contradict States Dep’t of Interior, 88 F.3d 1191, 1223

the former § 541.314. EmCare notes that the (D.C. Cir. 1996), and because the Clark court

new regulations specifically list PA’s alongside determined that veterinarians fall within the

nurses and technologists as “learned pro- salary-basis exception even though the

fessionals” who satisfy the duty requirements preamble also lists 1,037 hourly-paid vets and

for the professional exemption, id. at § 301- 16,267 salaried vets as subject to the salary-

(e)(4), but does not include PA’s among nurses basis test.32

and technologists in the list of professions that

fall outside the salary-basis exception, id. at The most specific DOL interpretive state-

§ 541.600(e). Though this observation alone ments on point include a 1974 DOL opinion

is insufficient to show that EmCare should letter and 1994 Field Operations Handbook

prevail, it does support EmCare’s case (which contains almost identical language to

somewhat.31 the opinion letter) that state that PA’s need to

be compensated on a salary basis to qualify for

Plaintiffs and the district court also noted a the Professional Exemption.33 EmCare does

statistical chart in the 2004 rule’s preamble that not dispute the meaning of the letter and

shows that 53,420 hourly paid PA’s and 34,053 Handbook but repeats its position that we

salaried PA’s are subject to the salary-basis test; should not consider agency interpretations in

no physicians, dentists, or optometrists, light of the fact that the 1973 regulation,

§ 541.3(e), is unambiguous; EmCare also

questions the thoroughness with which the

30

See 29 C.F.R. § 541.304. The DOL noted

that it had “received few comments on this provision

32

and does not believe any substantive changes are Also, EmCare notes that no NP’s are listed as

necessary in light of those comments.” 69 Fed. Reg. covered by the salary-basis test; therefore, we

22,122, 22,158 (Apr. 23, 2004). should assume that they, like physicians, fall within

the salary-basis exception.

31

The district court’s reliance on this point to

33

support plaintiffs’ position seems an unnatural in- WAGE AND HOUR DIV., U.S. DEP’T OF

ference. The court basically reasoned that because LABOR, FIELD OPERATIONS HANDBOOK § 22d23

all three professions are expressly mentioned in the (1994), available at http://www.dol.gov/esa/whd-

duty section, all three should also be excluded from /FOH/FOH_Ch22.pdf (stating that, to qualify, the

the salary-basis exception, even though that section PA must be “compensated for his or her services

mentions only nurses and technologists. See Belt, on a salary basis of not less than $250 a week, ex-

351 F. Supp. 2d at 632. clusive of board, lodging, or other facilities”).

13

agency considered its position in the letter. tional duties of doctors, the language of

Finally, the DOL’s amicus brief unambiguously § 541.3(e) “comfortably bears the meaning the

adopts the position that NP’s and PA’s do not Secretary assigns.” Id. at 461.

qualify for the professional exemption.

Our decision in Moore does not require a

D. contrary result. There we noted that “[Chev-

The DOL’s interpretive statements come to ron] deference is not appropriate for an inter-

this court in a wide variety of formats, and we pretation of a regulation found in an amicus

must decide what weight to give them under curiae brief.”34 We recognized, 317 F.3d at

our precedents. We conclude that Auer applies, 494, however, that the Court in Auer had giv-

so we give controlling weight to the DOL’s po- en controlling weight to an amicus brief, and

sition adopted in the 1974 opinion letter, 1994 we correctly concluded that the critical ques-

Handbook, and amicus brief, excluding PA’s tion after Christensen, in deciding when to de-

(and by extension, NP’s) from the professional fer to informal interpretations of agency rules,

exemption to the FLSA overtime rules. is whether the underlying regulation is ambig-

uous.

In Auer, the Court found that the Secretary’s

amicus brief sufficed to show how the DOL in- We did not have occasion to defer to the

terpreted its own ambiguous regulation: The Secretary’s position as amicus in Moore, be-

brief “is in no sense a ‘post-hoc rationalization’ cause the agency rule was plain. See id. at

advanced by an agency seeking to defend past 497. Because, however, we decide that

agency action against attack. There is simply § 541.3(e) is ambiguous, we give controlling

no reason to suspect that the interpretation weight to the DOL opinion letter, Handbook,

does not reflect the agency’s fair and and amicus brief under AuerSSmore than the

considered judgment on the matter in mere respect required by Skidmore.35

question.” Auer, 519 U.S. at 462.

Similarly, there is no reason here to doubt 34

Moore, 317 F.3d at 494; see also Christen-

the good faith of the Secretary’s position, as sen, 529 U.S. at 587 (stating that “interpretations

amicus, that NP’s and PA’s must satisfy the contained in formats such as opinion letters are

salary-basis test. In particular, the position is ‘entitled to respect’ under our decision in Skid-

consistent with the department’s 1974 opinion more[], but only to the extent that those

letter (written one year after interpretive regu- interpretations have the ‘power to persuade[.]’”).

lation § 541.314) and 1994 Handbook, which 35

explicitly subject PA’s to the salary-basis test, We leave intact our observation in Moore

and the DOL’s classification of NP’s as a subset that Chevron deference is inappropriate for

informal agency interpretations, such as opinion

of registered nurse in its Occupational Outlook

letters and amicuscuriae briefs. See Moore, 317

guide. Also, the history of the exception F.3d at 494. The most important reason for

suggests that the agency intended to limit its extending greater deference to an amicus brief that

reach to traditional medical practitioners, and purports to interpret an agency’s own ambiguous

state licensing regimes appear to mirror this ap- regulation (under Auer), than a brief that interprets

proach. Although it seems beyond question the organic statute directly (under Chevron), is the

that NP’s and PA’s assume many of the tradi- greater expertise and familiarity of the agency with

(continued...)

14

EmCare’s basic position is that it is possible consistently applied administrative interpre-

to attribute a sufficiently clear scope to general tation if the Government’s be such.

language such as “practice . . . medicine or any

of [its] branches” to allow a court to decide Because the language of § 541.3(e) is not “free

whether a particular person falls within its am- from doubt,” and in view of the fact that the

bit. Though courts often find broad language Secretary’s position finds support in past prac-

unambiguous,36 this case presents mixed evi- tice and is not “plainly erroneous or inconsis-

dence of ordinary meaning, particularly in the tent with the regulation,” Auer, 519 U.S. at

conflict between the strict definition of medical 461, deference is appropriate.

practice used by the Medical Practices Acts and

EmCare’s more generous definition, derived IV.

from common usage. Whether, in the abstract, Congress has entrusted the DOL with the

NP’s and PA’s “practice medicine” presents a task of defining who is eligible for the profes-

close question of classification, akin to distin- sional exemption to the FLSA. The agency

guishing among the Platonic Forms, but it is has determined that a necessary indicator of

one that we need not reach. As explained in professional status in most cases is salaried

Ehlert v. United States, 402 U.S. 99, 105 compensation, with the limited exception of

(1971), the traditionalSSi.e., well-established and easily

identifiableSSprofessions of law, medicine, and

[w]e need not take sides in the somewhat teaching. Absent a plain statement in a formal

theological debates . . . that the phrasing of rule that NP’s and PA’s fall within this

this regulation has forced upon so many fed- exception, the courts must choose between de-

eral courts. Rather, since the meaning of the ciding the question de novo and deferring to

language is not free from doubt, we are ob- the agency’s less formal, but more specific, in-

ligated to regard as controlling a reasonable, terpretive statements.

Auer counsels that deference better accords

35

(...continued) with Congress’s intent and the agency’s com-

respect to the history and content of its own enacted parative expertise. Not only is the agency in a

rules. See John F. Manning, Constitutional better position to determine when a salary is

Structure and Judicial Deference to Agency necessary to identify a professional: the agency

Interpretations of Agency Rules, 96 COLUM. L. is also better placed to make the calibrated

REV. 612, 630-31 (1999). But see id. at 618 (con- policy judgment that PA’s and NP’s, despite

cluding that, “by providing the agency an incentive higher barriers to entry and the increasing so-

to promulgate imprecise and vague rules, [Auer-type phistication of their practice, are nascent pro-

deference] undercuts important deliberative process fessions in need of the FLSA’s protection

objectives of the APA, and it creates potential against the threat of “the evil of overwork as

problems of inadequate notice and arbitrariness in

well as underpay.”37

the enforcement of agency rules.”).

36

See, e.g., MCI Telecomms. Corp. v. AT&T The summary judgment is AFFIRMED, and

Co., 512 U.S. 218 (1994) (finding that the ordinary

meaning of “modify” unambiguously precluded the

37

FCC’s interpretation under the Communications 81 CONG. REC. 4983 (1937) (message of

Act). President Roosevelt).

15

this matter is REMANDED for further

proceedings.

16