Petition for Writ of Certiorari — LaForte v. Horner

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87-1369

No.

IN THE

Suprenv Court of the United States

OCTOBER TERM, 1987

RICHARD A. LAFORTE AND RICKEY A. ROGERS,

Petitioners

¥é

CONSTANCE HORNER, DIRECTOR,

U.S. OFFICE OF PERSONNEL MANAGEMENT,

AND UNITED STATES OF AMERICA,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

EARL C. DUDLEY, JR.

Counsel of Record

RONALD G. PRECUP

NUSSBAUM, OWEN & WEBSTER

One Thomas Circle, N.W.

Washington, D.C. 20005

(202) 833-8900

IRA M. LECHNER

1920 L Street, N.W.

Suite 501

Washington, D.C. 20036

(202) 296-7222

Attorneys for Petitioners

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® i + 60

QUESTION PRESENTED FOR REVIEW

Do federal agencies violate the overtime pay provisions

of the. Fair Labor Standards Act by compensating fire-

fighters for overtime work at half their regular rate of

pay rather than one-and-one-half times that regular

rate?

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW iesehaoenes

Se hs a ca

a a ogc a seus cisesenvannnananssesensecsanecems

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. The Court Below Decided an Important Ques-

: tion of Federal Law in a Manner Inconsistent

With the Evident Meaning of the Statutory

Scheme and Prior Decisions of This Court......

II. The Decision Below Thwarts Fundamental La-

bor Standards Policies

eon nccevnosccvnnnresennnss

APPENDIX

Opinion and Judgment of Court of Appeals _....

Order, Judgment, and Opinion of the District

Sia ee

Comptroller Degision B-216610 (Unpublished)

Federal Personnel Manual Letter 551-5 .

(iii)

LY)

TABLE OF AUTHORITIES

Cases: Page

Bay Ridge Operating Company v. Aaron, 334 U.S.

Se Ce ee aD aks lunnadaaneseinasetian 7-9

Overnight Motor Transportation Co. v. Missel, 316

i ee OIE acecthccastnsonkosstopupeacasistasscssekenssceaaaenios 11 n.5

United States v. Townsley, 323 U.S. 557 (1945). 11-12

Zumerling v. Devine, 769 F.2d 745 (Fed. Cir.

BE (ciacsacsen DD etna Pie RSE ILI pr oN ar Ee 4, 5, 6, 10

Statutes:

Be a Oe I cicacescsocaceasswedkatsslouiecndikecsicsatebeoasumusciannin passim

A Ree te I cocoer esaciesncesasadeceneancens Secaskskhanchasonaneanicens 9

5 U.S.C. § 5545 Coie ee er a eee 4

Be Ua. Tee... ps AEN ON RSE SAO TEPIINS 2

29 U.S.C. § § 207 ( EAR Pa AE torshiatinnsot, 2

RE Re 6 ' EU eepaad i nA SAPARD A RSRLAZEDS AV Be SRE NE AIOOS 2

Legislative materials:

1945 Cong. Rec. 6060-6072, 79th Cong., Ist Sess.,

I BG ED sackeic nate cee tcomnectasan ceo etedcentacnbionaanes 9-10

Miscellaneous:

Frederic Evans, Jr., Comp. Gen. B-216640, March

13, 1985 (unpublished), on reconsideration, Sep-

tember 18, 1985 (unpublished) 0.0... 10

IN THE

Suprenw Cant of the United States

OCTOBER TERM, 1987

No.

RICHARD A. LAFORTE AND RICKEY A. ROGERS,

Petitioners

, &

CONSTANCE HORNER, DIRECTOR,

U.S. OFFICE OF PERSONNEL MANAGEMENT,

AND UNITED STATES OF AMERICA,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Petitioners, Richard A. LaForte and Rickey A. Rogers,

respectfully pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Federal Circuit.entered November 17, 1987.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Federal Circuit is reported at 833 F.2d 977 and is

reprinted in the Appendix at p. la. infra. The order,

judgment, and opinion of the United States District

Court for the District of Maryland are not reported.

They are reprinted in the Appendix at p. 30a, infra.

JURISDICTION

The Court of Appeals issued its judgment affirming

the judgment of the United States District Court for the

District of Maryland on November 17, 1987. Petitioners’

suggestion for rehearing en bane was denied on Decem-

ber 23, 1987. This court has jurisdiction pursuant to

28 U.S.C. § 125411).

STATUTES INVOLVED

Act of June 25, 1938, c. 676, § Tia), (k), 52 Stat.

1063, as amended, 29 U.S.C. $ 207(a), (ki:

(a) il) Except as otherwise provided in this sec-

tion, no employer shall employ any of his employees

who in any workweek is engaged in commerce or in

the production of goods for commerce, or is employed

in an enterprise engaged in commerce or in the

production of goods for commerce, for a workweek

longer than forty hours unless such employee re-

ceives compensation for his employment in excess of

the hours above specified at a rate not less than one

and one-half times the regular rate at which he is

employed.

7 * * >

(k} No public agency shall be deemed to have

violated subsection (a) of this section with respect to

the employment of any employee in fire protection

activities or any employee in law enforcement activ-

ities ‘including security personnel in correctional

institutions) if—

(1) in a work period of 28 consecutive days

the employee receives for tours of duty which in

the aggregate exceed the less of (A) 216 hours,

or (Bi the average number of hours ‘as deter-

mined by the Secretary pursuant to section 6

ie) (3) of the Fair Labor Standards Amend-

ments of 1974) in tours of duty of employees

engaged in such activities in work periods of

28 consecutive days in calendar year 1975; or

(2) in the case of such an employee to whom

a work period of at least 7 but less than 28 days

applies, in his work period the employee receives

for tours of duty which in the aggregate exceed

a number of hours which bears the same ratio to

the number of consecutive days in his work

period as 216 hours (or if lower, the number of

hours referred to in clause (B) of paragraph

(1)) bears to 28 days,

compensation at a rate not less than one and one-

half times the regular rate at which he is employed.

5 U.S.C. § 5504(b) (Supp. IV 1986); the bracketed

portion indicates matter deleted by the Consolidated

Omnibus Budget Reconciliation Act of 1985, Pub. L. No.

99-272, § 15203, 100 Stat. 83, 334 (1986):

\For pay computation purposes affecting an em-

ployee, the annual rate of basic pay established by or

under statute is deemed payment for employment

during 52 basic administrative workweeks of 40

hours.| When it is necessary for computation of

pay under this subsection to convert an annual rate

of basic pay to a basic hourly rate, the following

rules govern: (1) to derive an hourly rate, divide

the annual rate by 2,807 * * *.

STATEMENT OF THE CASE

Petitioners, one a present and the other a former fed-

erally employed firefighter at Andrews Air Force Base,

Maryland, sued the Directer of the Office of Personnel

Management and the United States in district court.

seeking a declaratory judgment and backpay for over-

time wages. They challenged, as contrary to the Fair

Labor Standards Act (the Act), Federal Personnel Man-

ual (FPM) Letter 551-5 (reprinted in the Appendix at

p. 52a', which regulates the calculation of overtime pay

for firefighters. The district court had jurisdiction pur-

suant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331.

Petitioners alleged that their overtime pay was less

than that to which the Act entitles them, principally

because the FPM Letter spreads their basic pay, on

which their overtime premium is calculated, over a

greater number of hours than 5 U.S.C. § 5504'b) per-

mits. The district court, considering itself bound by the

decision in Zumerling v. Devine, 769 F.2d 745 (Fed.

Cir. 1985), entered judgment for respondents on cross-

motions for summary judgment. The court of appeals,

in a 2-to-1 decision, affirmed.

Unlike that of most federal workers, a firefighter’s

tour of duty consists of three 24-hour shifts, each of

& hours duty and 16 hours standby, for a total of 72

hours per week; his 14-day pay period thus covers 144

hours of work. In addition to his regular rate of pay

under the General Schedule, he receives up to 25-percent

of that regular rate as a pay differential “for irregular

or intermittent duty involving unusual physical hard-

ship or hazard,” as preseribed in 5 U.S.C. § 5045/c¢) (1).

This differential is called premium or “standby” pay.

By virtue of 29 U.S.C. ¢ 207(k), quoted above, 106 of

the 144 hours per pay period are considered his normal

tour of duty, and he is paid overtime pay for the addi-

tional 38 hours. There is no dispute about that amount

of regular and standby pay nor about the 38 hours for

which overtime is paid.

The dispute in this case is over the rate at which peti-

tioners are statutorily entitled to be compensated for the

22 hours of regularly worked overtime. Simply put, the

question is whether the Fair Labor Standards Act’ re-

quires that they be compensated for the 38 hours of over-

i The Fair Labor Standards Amendments of 1974, Pub. L. No.

92-259, 88 Stat. 55, extended the Act’s coverage to federal employees.

The Office of Personnel Management, as successor to the Civil

Service Commission, is charged with the Act’s administration with

respect to federal employees. See 29 U.S.C. § 204( f).

time at time-and-a-half pay, rather than, as FPM 551-5

prescribes, at half-time only.

Petitioners, basing their position on the plain meaning

of 5 U.S.C. § 5504(b),° asserted that although their

standby pay may be properly allocable to the entire 144-

hour tour of duty, their basic pay must be deemed al-

locable only to the first 80 hours.

FPM Letter 551-5, in contrast, treats the combined

regular and standby pay as a firefighter’s ‘“‘regular rate”

for 144 hours of work. Respondents pay one-half that

rate for the 38 overtime hours, regarding petitioners as

having already been compensated straight time for those

38 hours in the form of their regular and standby pay.

The district court, adhering to the appellate court’s

earlier decision in Zumerling, granted summary judg-

ment for respondents. The court of appeals majority af-

firmed, upholding the validity of the FPM formula on

grounds of the reasonableness of OPM’s interpretation

and the deference due a consistent agency interpretation,

previously upheld by the court, of a statute that it is

charged with interpreting. It further stated that “ac-

ceptance of |petitioners’] rigid adherence to the printed

statute .. . would necessarily mean that the challenges

2 At the time suit was filed, the first sentence of § 5504(b) pro-

vided that “for pay cémputation purposes” an employee’s rate of

basic pay “is deemed payment for employment during 52 basic

administrative workweeks of 40 hours.” Congress deleted that sen-

tence in 1986. The court of appeals noted that the earlier version

of the statute applies to this case (App. at 9a), but expressed

doubt that Congress intended the deletion to change significantly

the “pay computation method of federal firefighters.” Jd. at 14a.

Petitioners agree that the computation of a firefighter’s overtime

pay should be the same under both the applicable and the current

versions of § 5504(b).

previously considered were at least in part incorrectly

rejected by this court.” (App. at 13a.) It held 5 U.S.C.

$ 5504 (b) to be irrelevant.

The dissent concluded, however, that the statute was

directly on point, stating (App. at 26a) that “the addi-

tional one-half regular rate method employed by OPM

is contrary to statute and must fall.”

REASONS FOR GRANTING THE WRIT

I. The Court Below Decided an Important Question of

Federal Law in a Manner Inconsistent With the Evi-

dent Meaning of the Statutory Scheme and Prior De-

cisions of This Court.

This case presents an important question concerning

the interpretation a basie provision of the Fair Labor

Standards Act: the computation of “time and one-half”

vay for overtime.*

The Office of Personnel Management (OPM) has deter-

mined that the “regular rate” for federal firefighters is

their basic and standby pay spread over 72 hours each

week (If PM Letter 551-5, Attachment 2, para. D.2, App.

at pp. 62a-63a). Firefighters, therefore, receive only one-

half times their regular rate of pay for each of the 19

° The decision below affects the compensation of more than 10,000

federally employed firefighters, most of whom are regularly and

customarily employed 72 hours each week. Unlike most other fed-

eral employees, who earn overtime pay after 40 hours of work per

week, firefighters earn overtime pay only after 53 hours (29 U.S.C.

§ 207(k)). Thus they work 19 hours of overtime a week, or 38 hours

each two-week pay period. In January 1984, petitioners each

earned $530.40 basic pay and $132.80 standby pay per pay period

(a total of £665.20), for an effective hourly rate of $4.60. For their

38 hours of overtime, each was paid £2.50 an hour (one-half the

$4.60 regular rate), or 87.50, as prescribed by FPM 551-5. But

ecah should be paid $6.90 ;er overtime hour (one and one-half times

the regular rate), or $262.20, as prescribed by the statute.

hours of overtime because they have already been paid

“time” by virtue of receiving their regular rate for

working all 72 hours in the workweek.

But Congress itself, in § 5504(b), directed that the

basic pay received by all federal employees “is deemed

payment for employment during 52 basic administrative

workweeks of 40 hours.” The majority determined that

$ 5504(b) “simply is not relevant to a determination of

overtime wages” (id.), and therefore it considered the

interpertation of the meaning of time and one-half by

OPM to be “reasonable” even though it is at variance

with the plain meaning of § 5504(b).

By deeming $ 5504(b) irrelevant, the majority ignored

the plain meaning of the section, as it had earlier in

Zumerling v. Devine, and refused to face the question

whether Zumerling was wrongly decided.

But in this case, the question of the section’s appli-

cability was squarely raised and the record presents the

issue with crystal clarity. The government formally

admitted in the trial court, pursuant to the Federal Rules

of Civil Procedure, that ‘for pay computation purposes,

non-exempt Federal Fire Fighters are deemed to receive

payment of their annual rate of GS basic pay for employ-

ment during 52 basic administrative workweeks of 40

hours,’ and that “for pay computation purposes, non-

exempt Federal Fire Fighters are deemed to receive no

payment of their annual rate of GS basic pay for employ-

ment in excess of 40 hours during any of the 52 basic

administrative workweeks.” See App. at 9a.

This Court dealt with a similar question in Bay Ridge

Operating Company v. Aaron, 334 U.S. 446 (1948), where

the Court granted certiorari “on account of the impor-

tance of the method of computing the regular rate of pay

in employment contracts providing for extra pay.” Jd. at

459. There, certain longshoremen covered by a collective

bargaining agreement sought to recover statutory over-

OF pect

time pay under the Fair Labor Standards Act. The labor

contracts provided “straight time” pay for a normal work-

week of 8 a.m. to 12 noon and 1 p.m. to 5 p.m. Monday

through Friday and 8 a.m. to 12 noon on Saturday. A

second pay scale, called “overtime,” applied to work at

all other hours of the week. The contracts provided no

pay differential for work in excess of forty hours per

week. /d. at 451. Because nearly all stevedoring during

the war-time period in question was performed for the

government, the Department of Justice represented the

petitioners, the United States being the real party in

interest. Jd. at 458.

The longshoremen contended that their regular rate of

pay for overtime computation purposes must be consid-

ered to be the actual pay they received during the first

40 hours of a workweek, even though the forty hours

were often a mix between the straight-time and overtime

hours prescribed by the labor agreements. The govern-

ment, on the other hand, argued that no rate except the

straight-time rate could be used in computing the long-

shoremen’s regular rates of pay, and that statutory over-

time was therefore one and one-half the straight-time

rate and no more. Jd. at 453.

In deciding for the respondents, the Court held (id. at

476):

iwach respondent is entitled to receive compensation

for his hours worked in excess of forty at one and a

half times his regular rate, computed as the weighted

average of the rates worked during the week. In

computing the amount to be paid, the petitioners may

credit against the obligation to pay statutory excess

compensation the amount already paid to each re-

spondent which is allocab’e to work in those excess

hours.*

*The Court emphasized that true overtime compensation, that is,

“cxtra pay for work because of previous work for a specified number

of hours in the workweek or workday,” is to be excluded from com-

putation of the regular rate. 334 U.S. at 465.

Since the firefighters’ basic pay is allocabie only to the

first 40 hours of work each week, and since they earn 19

hours of statutory overtime in the same period, no part

of their basic pay is “allocable to work in those excess

hours.” Bay Ridge, at 476. Hence the government is not

entitled, consistent with Bay Ridge, to credit itself with

having already paid petitioners “£100 percent for all hours

in his tour of duty” as FPM 551-5 prescribes.

This Court should grant the writ to consider this im-

portant question.

II. The Decision Below Thwarts Fundamental Labor

Standards Policies.

It was in 1945 that Congress ordained that annual

basic pay “shall be regarded as payment for employment

during fifty-two basic administrative workweeks of forty

hours” and that employees should receive “in addition to

their basic compensation,” overtime pay for work in ex-

cess of 40 hours in a week equal to ‘one and one-half

times the basic hourly rate of compensation.” Federal

Employees Pay Act of 1945, 59 Stat. 296, 504, ch. 212,

$$ 201, 604(d), June 30, 1945, now codified at 5 U.S.C.

§$ 5504(b), 5542(a).

Before 1945 General Schedule (GS) employees worked

a 48-hour week during World War II and received over-

time of approximately one and one-twelfth times their

basic hourly rate of pay. See, 1945 Cong. Rec. 6060-

6061, 6064, 79th Cong., Ist Sess., June 13, 1945. Con-

gressman Angell explained the purposes of federal pay

reform (id. at 6061-6062) :

The Fair Labor Standards Act passed by the Con-

gress some years back requires time and a half over-

time in private industry. It would seem fair for the

Federal Government to accord the same treatment to

its own employees it requires of others * * *.

Mr. Chairman, this bill is in line with the general

program of the Congress to classify and _ stabilize

salaries of Federal employees so that they may be on

a parity, so far as it is possible, with respect to

hours, pay schedules, basic time, and overtime.

The Congressional debate expressly included mention of

the applicability of the 40-hour week to federal fire-

fighters. (Jd. at 6672).

In 1954, Congress replaced the time and one-half over-

time system for law enforcement officers and firefighters

with premium pay (standby pay) of up to 25 percent of

the employee’s basic pay, in lieu of overtime pay. See

Zumerling v. Devine, 769 F.2d at 751.

When federal employees were brought within the cov-

erage of the Fair Labor Standards Act in 1974, they

once again became entitled to time and one-half overtime

pay in addition to their basic pay and standby premium

pay. With express reference to firefighters’ pay under

the Act, the Comptroller General has squarely decided

that basic pay is payment only for 80 hours in a two-week

pay period. In Frederick Evans, Jr., B-216640, March

13, 1985 (unpublished), (reprinted in App. at p. 40a),

the Comptroller General decided against a union’s claim

that federal firefighters’ basic pay should be computed on

the basis of their 144-hour tour of duty. He held that

firefighters “may not be compensated on the basis of 144

hours times their hourly wage since the existing statutes

provide for compensation on the basis of 80 hours times

the hourly wage plus a premium for standby duty.”

Adhering to his initial decision upon reconsideraton,

(B-216650, September 18, 1985 (unpublished), reprinted

in App. at p. 46a), the Comptroller General stated:

The union cites provisions of the FPM which state

that when an employee is paid additional pay under

section 5545(c) (1), the employee’s regularly sched-

uled administrative workweek is the total number of

regularly scheduled hours of duty a week. But the

length of the administrative workweek does not allow

the employee to receive basic pay for hours of work

in excess of 40 hours per week. (Emphasis added).

These decisions further evince the strong statutory policy

underlying the payment of basic pay only for a forty-

hour week.

Employers have previously contended, as does OPM in

FPM Letter 551-5, that employees paid a salary for more

than 40 hours of work were entitled only to “half-time”

as extra compensation for overtime, because they already

had received straight time for all hours worked as part

of their salary. But in United States v. Townsley, 323

U.S. 557 (1945), this Court rebuffed the argument.’

Townsley involved the overtime claim of a federal em-

ployee regularly scheduled to work 48 hours per week.

The statute there applicable," like section 7 of the Fair

Labor Standards Act and 5 U.S.C. § 5504(b), provided

that “the regular hours of labor shall not be more than

forty per week; and all overtime shall be compensated

for at a rate of not less than time and one half.”

The government contended that if the statute applied

at all to the employee, who was paid a monthly wage,

then his overtime entitlement for the regularly scheduled

six-day workweek was limited to an additional one-half

straight time for the additional eight hours worked, since

his basic pay compensated him for every day in the

month. Thls Court rejected the contention (323 U.S. at

073):

|A]ecording to this contention, the respondent will

already have been overpaid for, according to the

5 Cf. Overnight Motor Transportation Co. v. Missel, 316 U.S. 572

(1942), where this Court’s approved the payment of half-time under

the Fair Labor Standards Act where the employee’s weekly salary

was meant to compensate him for all hours, including overtime

hours, worked in a widely fluctuating weekly schedule. The case has

no application here, where a firefighter’s tour of duty is fixed and

his basic and premium pay compensate him for only a portion of

those hours.

® Section 23 of the Independent Offices Appropriation Act of 1935,

Act of March 28, 1934, c. 102, 48 Stat. 522.

argument, he has been paid straight time for the

seventh day of each week although he only worked

six days and has, therefore, reeeived additional over-

pay for the sixth day. * * * After the adoption

of |the statute} the respondent was in effect hired

for a work week of forty hours, or a five day week,

and his daily wage was to be determined on that

basis. He has not been paid for the sixth day of each

week and should recover straight time and one-half

for the sixth day.

Townsley teaches that half-time pay for overtime is

not justified, even though an employee is regularly sched-

uled to work more than 40 hours a week, when his weekly

pay is intended to cover only 40 hours of work. The

same principle, grounded in strong statutory policy, ap-

plies to petitioners, whose basie and standby pay covers

only 106 of their 144 hours of work per pay period. They

have not been paid straight time for the other 38 hours.

This Court should not permit the government to thwart

Congress’ intent.

CONCLUSION

The Writ of Certiorari should be granted.

: Respectfully submitted,

EARL C, DUDLEY, JR.

Counsel of Record

RONALD G. PRECUP

NUSSBAUM, OWEN & WEBSTER

One Thomas Circle, N.W.

Washington, D.C. 20005

(202) 833-8900

IRA M. LECHNER

1920 L Street, N.W.

Suite 501

Washington, D.C, 20036

(202) 296-7222

Attorneys for Petitioners

APPENDICES

APPENDIX

UNITED STATES COURT OF APPEALS

FEDERAL CIRCUIT

No. 87-1138

RICHARD A. LAFORTE and RICKEY A. ROGERS,

Plaintiffs-A ppellants,

CONSTANCE HORNER, DIRECTOR,

U.S. OFFICE OF PERSONNEL MANAGEMENT and the

UNITED STATES OF AMERICA,

Defendants-A ppellees.

Nov. 17, 1987

Ira N. Leckner, Connerton & Bernstein, Washington,

D.C., argued for plaintiffs-appellants. With him on the

brief was Linda Lipsett.

Robert A. Reutershan, Asst. Director, Commercial Lit-

igation Branch, Dept. of Justice, Washington, D.C., ar-

gued for defendants-appellees. With him on the brief

were Richard K. Willard, Asst. Atty. Gen. and David

M. Cohen, Director.

Before MARKEY, Chief Judge, BENNETT, Senior

Circuit Judge, and NEWMAN, Circuit Judge.

PER CURIAM.

DECISION

Appellants, two federal firefighters, appeal from the

judgment of the United States District Court for the Dis-

trict of Maryland (Black, J.), granting appellee’s motion

for summary judgment. Correspondingly denying appel-

lants’ motion for summary judgment, the district court

ruled that the formula in Federal Personnel Manual

(FPM) Letter 551-5 used by the Office of Personnel

Management (OPM) to calculate the overtime pay en-

titlements for appellant firefighters under the Fair Labor

Standards Act (FLSA), 29 U.S.C. §§ 201-219 (1982

& Supp. III 1985), was valid and in conformity with the

requirements of Title 5, the FLSA, and Department of

Labor regulations. We affirm.

BACKGROUND

At the time that this action was filed, appellants Rich-

ard A. LaForte and Rickey A. Rogers were civilian fed-

eral firefighters (grade GS-5, step 1) employed at An-

drews Air Force Base in Maryland. Federal firefighters

do not work a 40-hour workweek, but instead are em-

ployed for 144 hours per 14-day biweekly work period.

The firefighters are on duty for six 24-hour shifts during

each 14-day work period. Each 24-hour shift consists of

8 hours of work, and 16 hours of standby time during

which the firefighters are confined to their work stations

and subject to immediate duty in the event of a fire or

other emergency.

Congress recognized that the work schedules of fire-

fighters differ from those of typical general schedule

(GS) government employees and provided for those dif-

ferences in the statutes governing the firefighters’ pay.

The firefighters receive basic general schedule pay, see

5 U.S.C. § 5332, and in addition, in accordance with 5

U.S.C. §$5545(e)(1) (1982), the firefighters receive

“premium pay” of up to 25 percent of their basic GS

pay in recognition of the substantial portion of their

regularly scheduled duty spent in a standby status. Ad-

ditionally, section 7(a) of the FLSA provides that fed-

eral employees are not to be employed for a longer work-

week than 40 hours unless they receive compensation at

a rate not less than one and one-half times the regular

rate at which they are employed. However, federal fire-

fighters initially were excepted from the FLSA provi-

sions when the federal government became subject to the

FLSA in 1974.

An amendment to the FLSA, taking effect on Janu-

ary 1, 1975, and codified as 29 U.S.C. § 207(k), pro-

vided an exception to section 207(a) for public agency

employees engaged in fire protection services. The cur-

rent version of 29 U.S.C. $ 207(k) reads, in pertinent

part, that:

No public agency shall be deemed to have violated

subsection (a) of this section with respect to the

employment of any employee in fire protection ac-

tivities... if—

(1) in a work period of 28 consecutive days

the employee receives for tours of duty which

in the aggregate exceed the lesser of (A) 216

hours, or (B) the average number of hours...

in tours of duty of employees engaged in such

activities in work periods of 28 consecutive days

in calendar year 1975; or

(2) in the case of such an employee to whom

a work period of at least 7 but less than 28

days applies, in his work period the employee

receives for tours of duty which in the aggre-

gate exceed a number of hours which bears the

same ratio to the number of consecutive days in

his work period as 216 hours ‘or if lower, the

number of hours referred to in clause (B) of

paragraph (1)) bears to 28 days,

compensation at a rate not less than one and one-

half times the regular rate at which he is employed.

Thus, in addition to their basic pay and premium

pay, federal firefighters also are entitled to receive ad-

ditional compensation under the FLSA, the amount of

which is caleulated in accordance with the formula out-

lined in FPM Letter 551-5. FPM Letter 551-5 was prom-

ulgated by the Civil Service Commission, the predecessor

agency to OPM, within weeks of the enactment of sec-

tion 207(k) and contained detailed guidelines for com-

puting FLSA pay for firefighters in accordance with that

section. However, not satisfied with the manner in which

their FLSA overtime compensation was calculated, the

appellants filed suit in the district court, challenging the

validity of the FPM formula and seeking to recover any

compensation improperly withheld, together with inter-

est, liquidated damages, and attorneys’ fees as provided

in 29 U.S.C. § 216(b).

The appellants’ suit is not the first court challenge to

the method by which federal firefighters are compensated.

The leading case is Zumerling v. Devine, 769 F.2d 745

(Fed.Cir.1985), a case involving a challenge to the com-

putation method of firefighters’ FLSA pay in which this

court decided several issues that provide a backdrop for

the present case. We will not repeat the entire analysis

contained in the Zumerling opinion; nevertheless, an un-

derstanding of the issues presented and decided in that

case is crucial to the resolution of the present case.

Under section 7 of the FLSA, federal firefighters are

entitled to be compensated at a rate not less than one

and one-half times their “regular rate” of pay, see 29

U.S.C. § 207(e), for a portion of their 144-hour, 2-week

work period. The plaintiffs in Zumerling challenged the

method in which the regular rate was calculated under

PM Letter 551-5 as used by OPM.' The court in Zum-

' The district court in the Zumerling case noted that “[{p]laintiffs

do not challenge F.P.M. Letter 551-5." Zumerling v. Marsh, 591

F.Supp. 537, 540 n.4 (W.D.Pa. 1984). Appellants here rely on that

footnote as grounds for this panel to review FPM Letter 551-5 on a

erling observed that OPM had the authority to interpret

the FLSA statute and concluded that FPM Letter 551-5

was a valid exercise of that authority. 769 F.2d at 750

(citing Beebe v. United States, 640 F.2d 1283, 226 Ct.Cl.

308 (1981)). Citing with approval the discussion in Al-

exander v. United States, 1 Cl.Ct. 653 (1983), the court

concluded that OPM’s administration of the FLSA over-

time provisions was both reasonable and consistent with

the statute, the regulations promulgated by the Secre-

tary of Labor, and the intent of Congress. 769 F.2d at

749-52.

The court in Zumerling expressly decided that the

“regular rate’ of pay for firefighters is equal to the em-

ployees’ total remuneration (basic pay plus premium

pay) divided by the total number of hours worked in a

work period (144 hours). Jd. at 749-52. In reaching

this conclusion, the court determined that the premium

pay received by the firefighters was not excluded under

29 U.S.C. § 207(e) from being included in the regular

rate calculation:

The firefighters’ premium pay is not received in re-

turn for any particular hours of work. Rather it is

a function of the government’s recognition that fire-

fighters don’t work the typical work schedule of the

federal system. The annual! basis payment, there-

fore, is not an overtime payment, but a means of

generally compensating the employees given the con-

fines of the federal pay schedule. As such, it is part

of the wage typically paid for each hour of work

and must be included [in the calculation of “regular

rate” }.

Id. at 751. Therefore, the court rejected arguments that

the “total remuneration” should not include premium

clean slate. However, it is clear from an examination of the prior

opinion of this court in the appeal from that decision in that case

that FPM Letter 551-5 was indeed “squarely at issue” and addressed

by this court. 769 F.2d at 747.

pay received pursuant to 5 U.S.C. $5545. The court

also rejected the argument that, in order to determine

the “regular rate,” the total remuneration should not be

divided by the total number of hours for which it is re-

ceived, 144 hours in a 2-week pay period.’ Finally, the

court concluded that the formula reflected in the FPM

Letter was both proper and consistent with the statute

and regulations in allowing additional compensation of

one-half the regular rate rather than one and one-half

times the rate because the employee’s total remuneration

calculation compensates the employee at 100 percent for

all the hours in his tour of duty and the additonal one-

half thereby allows the employee to receive one and one-

half times the regular rate at which he or she is em-

ployed. 769 F.2d at 752-53.

In granting the government’s motion for summary

judgment in the present case, the district court ruled that

issues in Zumerling were identical to those presented by

the case before it, that the result reached there was cor-

rect, and that, in any event, it was bound by that deci-

sion since any appeal in the present case would come to

this court. Not surprisingly, in appealing the district

eourt’s decision in this court, the appellants argue that

Zumerling did not decide issues identical to the present

case and, to the extent that it did, it was wrongly de-

cided. However, te the extent that the issues in the pres-

ent case are identical to those decided in Zumerling, this

panel is bound by that decision as only the court sitting

in bane can overrule prior decisions of this court. Capi-

tal Electric Co. v. United Stutes, 729 F.2d 748, 746

(Fed.Cir.1984). Thus, we must identify and address the

issues raised in this appeal left unanswered by the court

* Specifically, the plaintiffs in Zumerling had proposed that the

regular rate be calculated as the employees’ GS basic pay for the

2-week work period divided by 80 hours or, alternatively, as the

employees’ total remuneration (basic pay plus premium pay) di-

vided by the statutory average tour of duty (the statutory nonover-

time hours) as calculated under 29 U.S.C. § 207(k). See also

Wheeler v. United States, 9 Cl.Ct. 579 (1986).

in Zumerling or alternatively conclude, as did the district

court, that the issues presented are identical and that we

are bound by that decision.

OPINION

Having seen a series of challenges to the method in

which the firefighters’ regular rate is calculated under

FPM Letter 551-5 rejected by the decisions in Zumerling

and Wheeler, the appellants here do not challenge the

regular rate calculation but now choose to attack the

adequacy of their pay calculation from another direction

by challenging what the OPM can properly use as an

offset against the one and one-half times regular rate

amount that constitutes their minimum compensation

entitlement under 29 U.S.C. § 207(k). The appellants

provide several alternative grounds in support of their

position which distills into a single proposition. The ap-

pellants argue, in short, that they cannot be deemed to

receive their regular rate of pay for each of the 144

hours that they are on duty because basic pay is limited

by 5 U.S.C. § 5504(b) to 80 hours per week.

Thus, while conceding that Zumerling held that pre-

mium pay is earned in every hour on duty, appellants

contend that the basic GS pay of a federal firefighter can

only be deemed payment for 80 hours of work in a 2-

week work period and therefore cannot be considered

either as payment for any of the 38 hours for which they

are to be compensated under 29 U.S.C. § 207(k) or as an

offset against the government’s liability to pay appel-

lants one and one-half times their regular rate for those

hours.* Thus, appellants argue that they should be

deemed to receive both basic pay and premium pay for

% Under 29 U.S.C. §207(k), the appellants in this case were

apparently entitled to such compensation after 106 hours in their

144-hour, 2-week work shift. In Zumeriling, the firefighters were

entitled to be compensated at one and one-half times their regular

rate after 108 hours of duty. 769 F.2d at 747. See also Lanehart v.

Horner, 818 F.2d 1574, 1576 n. 4 (Fed.Cir. 1987).

only the first 80 hours of each 2-week work period and

to receive only premium pay for the last 64 hours, in-

cluding the 38 hours for which they are to be compen-

sated in accordance with 29 U.S.C. § 207(k). Since they

are entitled to one and one-half times their regular rate

for each of the last 38 hours worked in each 144-hour

work period, appellants contend that their pay (per

hour) for those hours should equa! the difference between

one and one-half times their regular rate and their

“hourly premium pay” instead of one-half times their

regular rate as instructed by FPM Letter 551-5.4

Appellants base their argument on the language of 5

U.S.C. §$ 5504(b) which stated, at the time relevant to

this case:

For pay computation purposes affecting an em-

ployee, the annual rate of basic pay established by

or under statute is deemed payment for employment

during 52 administrative workweeks of 40 hours.

When it is necessary fer computation of pay under

this subsection to convert an annual rate of basic

pay to a basic hourly .. . rate, the following rules

govern:

+The appellants’ arguments necessarily require that a federal

firefighter such as one of the appellants be deemed to receive his

overall pay during his regularly scheduled 144-hour work period

in the following manner. In each of the first 80 hours, he would

receive 1/80th of his basic GS pay for the 2-week period and

1/144th of his premium pay for the 2-week period. For each of the

next 26 hours, he would only receive 1/144th of his premium pay.

Finally, for the last 38 hours, he would be deemed to receive 1/144th

of his premium pay and sufficient additional pay to bring the total

compensation for each of those 38 hours to equal his regular rate

of pay times one and one-half. Thus, since the appellants have

already received one-half their regular rate of pay for each of the

last 38 hours in the 2-week work period, their proposed calculation

would mean that they have been underpaid for each of the last

38 hours of each 2-week work period by an amount equal to the dif-

ference between their regular rate of pay and 1/144th of their

premium pay for the 2-week period.

(1) To derive an hourly rate, divide the annual

rate by 2,080.°

They also base their argument on two responses made by

the government in the course of this litigation to re-

quests for admissions. In response to the first request,

the government responded “‘admit” to the query that “for

pay computation purposes, non-exempt Federal Fire

Fighters are deemed to receive payment of the annual

rate of GS basic pay for employment during 52 basic ad-

ministrative workweeks of 40 hours.” To the second re-

quest, the government also answered “admit” to the

query that “for pay computation purposes, non-exempt

Federal Fire Fighters are deemed to receive no payment

of their annual rate of GS basic pay for employment in

excess of 40 hours during any of the 52 basic adminis-

trative workweeks.” Appellants argue that these admis-

sions confirm the plain meaning of section 5504(b) and

should be deemed admissions against interest under Fed.

R.Civ.P. 36(b).

Addressing the appellants’ last contention first, we

note that requests for admissions are designed to secure

the just, speedy and inexpensive determination of ac-

tions by avoiding the time, trouble and expense required

to prove undisputed facts which should be admitted. Fed.

R.Civ.P. 36(b). The government argues that its admis-

sions were intended merely to admit that section 5504 (b)

“says what it says.’ Since appellants’ argument is based

on “the plain language” of section 5504(b), it could be

presumed that they could read what section 5504(b)

says without the government’s redundant assistance.

Nevertheless, we do not find the government’s admis-

sions to be determinative of the meaning of 5 U.S.C.

5 In 1986, among other changes, the entire first sentence quoted

in the text was deleted from the statute language. See Consolidated

Omnibus Budget Reconciliation Act of 1985, Pub.L. No. 99-272,

§$ 15203, 100 Stat. 82, 334 (1986) (codified at 5 U.S.C. § 5504(b)

(Supp. IV 1986) ).

10a

§5504(b) intended by Congress. That question is a

legal issue which must be determined, if necessary, by

the courts, and one which the appellants have addressed

comprehensively and exhaustively in their briefs. Fur-

thermore, as the government’s admissions do simply par-

rot the language of the statute, the true import and

meaning of the government’s admissions depend upon the

proper interpretation of the statute. We do not believe

that the appellants have been prejudiced in advancing

their arguments without reliance on the government’s

admissions. See Gutting v. Falstaff Brewing Corp., 710

F.2d 1309, 1314 (8th Cir. 1983); see also Hull v. United

States, 571 F.2d 1098, 1103 n. 9 (9th Cir.1978).

As noted above, the court in Zumerling stated that

“employees receive their regular rate of pay for each of

the 144 hours they work.” 769 F.2d at 752. Thus, the

government argues that the Zumerling opinion rejected

the basic premise of the appellants’ case—that they do

not receive their regular rate of pay for each of the 144

hours in their 2-week work period—and therefore should

control this case. However, appellants argue that the

court did not expressly determine whether 5 U.S.C.

$ 5504(b) had any relevance, in the manner urged here

by appellants, to the allocation of the appellants’ pay to

the various hours worked. Contrary to the government’s

contentions, an awareness of section 5504(b), as indi-

cated by citation to it by both the district court and this

court in their respective Zumerling opinions, does not

necessarily without more show an implicit consideration

and rejection by the courts of the specific interpretation

urged here.°

Nevertheless, having examined the appellants’ conten-

tions carefully, we are not persuaded that their reading

® On the other hand, we note that the Claims Court in Wheeler

apparently was not struck by the “plain language” of section

5504(b) when rejecting an assertion based on section 5504(b)

that calculation of the regular rate should be based on &0 hours,

rather than 144 hours. 9 Cl.Ct. at 583-84 (relying on Zumerling).

lla

of section 5504(b) properly reflects the intent of Con-

gress with respect to those federal employees engaged in

fire protection services. Nor do appellants’ arguments

persuade us of the need to alter the result reached in

Zumerling. It is axiomatic that “a clear and unam-

biguous statute speaks for itself.” Selman v. United

States, 498 F.2d 1354, 1356, 204 Ct.Cl. 675 (1974). See

also Horner v. Jeffrey, 823 F.2d 1521, 1525 (Fed.Cir.

1987). However, it is also true that ‘‘even where a stat-

ute is clear on a purely linguistic level, interpretation

may be necessary if that interpretation does not do jus-

tice to the realities of the situation.” Texas State Com-

mission for the Blind v. United States, 796 F.2d 400, 406

(Fed.Cir. 1986), cert. denied, USS. , 107 S.Ct.

874, 93 L.Ed.2d 828 (1987); see also Church of the Holy

Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511,

512, 36 L.Ed. 226 (1892). The realities of the situation

before us are that Congress has recognized that fire-

fighters are not situated the same as other general sched-

ule federal workers and that firefighters do not work

standard 40-hour workweeks. As a result, the compen-

sation scheme applicable to firefighters as devised and

intended by Congress differs significantly from that of

the standard GS federal employee. See Wheeler, 9 Cl.Ct.

at 581.

Here, FPM Letter 551-5 was issued by the Civil Serv-

ice Commission within 2 weeks of the effective date of

the amendment to the FLSA which became 29 U.S.C.

$ 207(k) and is a comprehensive document covering all

aspects of the pay entitlements of federal employees en-

gaged in firefighting and law enforcement activities un-

der the FLSA and Title 5. See United States v. Clark,

454 U.S. 555, 565, 102 S.Ct. 805, 811-12, 70 L.Ed.2d 768

(1982) (“construction of a statute by those charged with

its administration is entitled to great deference, partic-

ularly when that interpretation has been followed con-

sistently over a long period of time”). As recognized in

Zumerling, OPM had “the power to interpret the FLSA

12a

statute and to set forth the guidelines and policy of the

agency” and the court concluded that FPM Letter 551-4

was a valid exercise of the authority delegated to it by

Congress. 769 F.2d at 750. As stated by this court

recently in Slugocki v. United States, 816 F.2d 1572,

1578 (Fed.Cir.1987), petition for cert. filed, 56 U.S.L.W.

3184 (U.S. Aug. 31, 1987) (No. 87-361):

This court |in Zumerling| held that ‘““OPM’s admin-

istration of the FLSA overtime provisions [was]

both reasonable and consistent with the statute, the

regulations promulgated by the Secretary of Labor,

and the intent of Congress.” . . . Moreover, one of

our predecessor courts, the Court of Claims, held in

Beebe v. United States, 640 F.2d 1283, 226 Ct.Cl.

308 (1981), that FPM Letter 551-5 was a proper

exercise of authority delegated to OPM and that it

was proper for an agency to rely on it: in imple-

menting the FLSA provisions. Zumerling, 769 F.2d

at 750. We are bound by the Zumerling and Beebe

decisions....

In keeping with the Supreme Court’s instructions, this

court has consistently stressed that its review of an

agency regulation is restricted in that ‘“[t]he long-stand-

ing interpretation placed on a statute by the agency

charged with its administration should be followed un-

less they are compelling reasons that it is wrong.” Money

v. Office of Personnel Management, 811 F.2d 1474, 1477

(Fed.Cir.1987) (citing Chevron U.S.A. Inc. v. Natural

Resources Defense Council, 467 U.S. 837, 843-44, 104

S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) ; see also Minne-

sota Power & Light Co. v. United States, 782 F.2d 167,

170 (Fed.Cir.1986). As this court stated in Consumer

Products Division, SCM Corp. v. Silver Reed America,

Inc., 753 F.2d 1033, 1039 (Fed.Cir.1985) :

(I|t is a cardinal principle that the Secretary’s in-

terpretation of the statute need not be the only rea-

sonable interpretation or the one which the court

13a

views as the most reasonable. See, e.g., Fulman v.

United States, 434 U.S. 528, 534-36 [98 S.Ct. 841,

845-46, 55 L.Ed.2d 1] (1978) (regulation which had

a “reasonable basis” in the statutory history upheld,

even though taxpayer’s challenge had “logical

force’). See also United States v. Correll, 389 U.S.

299, 307 [88 S.Ct. 445, 450, 19 L.Ed.2d 537] (1967)

(“{I|f found to ‘implement the Congressional man-

date in some reasonable manner,’ [the regulation]

must be upheld.’’).

(Emphasis and bracketed material in original.)

In the case before us, the computation formula pro-

posed by appellants appears to be confusing, to say the

least, and perhaps unworkable. Even if it was deemed

logical or reasonable in its own right, the issue before us

is not the reasonableness of the appellants’ method but

whether the method employed by OPM to calculate the

appellants’ pay is reasonable and in accordance with the

statute. We believe that the interpretation given by

OPM to the relevant statutes, as reflected in FPM Letter

551-5, is entirely reasonable. Furthermore, we believe

that the deference to be paid to a consistent agency in-

terpretation of a statute that it is charged with inter-

preting is even more compelling when that interpretation

has been upheld several times by the reviewing court.

While appellants’ argument poses a challenge to FPM

Letter 551-5 in a slightly different light from the pre-

vious challenges, acceptance of its rigid adherence to the

printed statute without taking into consideration Con-

gress’s overall compensation scheme for federal firefight-

ers would necessarily mean that the challenges previously

considered were at least in part incorrectly rejected by

this court. We do not agree with such a result, even if

we were empowered to reach it.

It is clear that appellants could not advance their cur-

rent argument based on the language of section 5504(b)

as it now reads because, as noted above, the Consolidated

14a

Omnibus Budget Reconciliation Act of 1985 deleted the

sentence from section 5504(b) relied on by appellants.

We do not believe that Congress intended that amend-

ment to make a significant and substantive change to the

pay computation method of federal firefighters. The sec-

tion in the Act enacting the amendment to section

5504(b) was entitled “Computation of Hourly Rates of

Pay,” which appears to confirm that section 5504(b) was

never intended to do anything more than provide a

method to enable employees receiving annual pay to cal-

culate a corresponding hourly, daily, or weekly rate. In

fact, the lack of any specific legislative history accom-

panying the 1986 amendments to section 5504‘b) indi-

cates that Congress was unaware of any arguable effect

the amendments might have on firefighters’ pay and is an

even better indication that Congress did not amend sec-

tion 5504(b) with the precise issue of the firefighters’

FLSA pay in mind. This confirms our result since where

“Congress has not directly addressed the precise ques-

tion at issue,” the question for the reviewing court is

only whether the interpreting agency’s answer “is based

on a permissible construction of the statute.” Chevron

U.S.A., 467 U.S. at 843, 104 S.Ct. at 2782.

We believe that the OPM’s interpretation is permissi-

ble and reasonable in light of the statutes. We find the

appellants’ proposed pay computation method to be just

one more attempt by federal firefighters to gain a pay

windfall through creative mathematics rather than from

the intentions of Congress. Therefore, we conclude, as

did the district court in this case, that 5 U.S.C. § 5504

(b) is “simply not relevant to a determination of over-

time wages” for federal firefighters. The judgment of

the district court is affirmed.

AFFIRMED.

15a

BENNETT, Senior Circuit Judge, dissenting.

I respectfully dissent. I do so with firm conviction,

but great reluctance as my review of the present case

leads me to disagree not only with the conclusions of

the present majority, but with certain aspects of the re-

sult previously reached by this court in Zumerling v. De-

vine, 769 F.2d 745 (Fed.Cir.1985). Mindful of the doc-

trine of stare decisis and of the reluctance of courts to

overrule recent decisions, and in full recognition that

any alteration of the reasoning and conclusions in Zumer-

ling would require in bane action by this court, I never-

theless feel compelled to outline my disagreement here,

my first opportunity to do so.'

It is clear that this court in Zumerling did not ex-

pressly address nor, in my opinion, did it implicitly de-

termine the effect of 5 U.S.C. § 5504(b) on the calcula-

tions relevant to the federal firefighters’ pay entitlements.

Unlike the majority, I have been convinced that section

5504(b) is quite relevant to both the result in Zumer-

ling and the pay computations of federal firefighters in

general. In my view, the plain language of 5 U.S.C.

$ 5504(b) unavoidably compels the conclusion urged by

appellants that the annual rate of basic GS pay of every

federal employee, including federal firefighters such as

appellants, is and should only be considered as “payment

for employment during 52 basic administrative work-

weeks of 40 hours.” *

'T further note that the ramifications resulting from the adoption

of my view might not be confined to Zumerling as the conclusions

contained therein with which I disagree have bene relied on in

subsequent decisions of this court and of the Claims Court. See,

e.g., Slugocki v. United States, 816 F.2d 1572 (Fed.Cir. 1987),

petition for cert. filed, 56 U.S.L.W. 3184 (U.S. Aug. 31, 1987)

(No. 87-361); Wheeler v. United States, 9 Cl.Ct. 579 (1986).

2 Contrary to the majority’s suggestion, the 1986 amendment

deleting the specific language relied on by the appellants from the

statute has no relevance to the present appeal. If the amendment

l6a

Neither the majority nor the appellees have offered,

nor have I been able to discern on my own, any support-

able justification for excluding firefighters from the plain

language of 5 U.S.C. §$5504(b). In fact, federal fire-

fighters were not excepted from the provisions of the sec-

tion when it was enacted and there has been no sugges-

tion or showing that subsequent statutory enactments

and amendments affecting the pay of the firefighters did

anything to alter the section’s applicability to federal

firefighters. Actually, as discussed below, the legislative

histories of the subsequent statutes and amendments pro-

vide additional support for this conclusion. Cf. Horner v.

Jeffrey, 823 F.2d 1521 (Fed.Cir.1987) (plain and un-

ambiguous language of a statute, especially where sup-

ported by clear legislative history, is determinative even

where agency regulation in conflict with statute has been

consistently applied over long period). Thus, in accord-

ance with this court’s actions in Jeffrey where an

agency’s regulations were in conflict with a statute, I

must conclude that those portions of FPM Letter 551-5

which are contrary to the intentions of Congress, as evi-

denced in plain statutory language and confirmed by ac-

companying legislative history, are invalid with respect

to firefighters such as appellants. See Board of Gover-

was not intended to be a substantive change, it is clear that prior

to the amendment basic pay was intended by Congress to be com-

pensation for only 40 hours per week and therefore must still be

considered as such. On the other hand, if the amendment was in-

tended to be substantive and to alter the pay entitlements of fed-

eral firefighters, it has no relevance here as the present suit was

filed prior to March 1, 1986, the effective date of the amendment.

See Pub.L. No. 99-272, § 15203(b), 100 Stat. 82, 334 (1986).

3 Other cases cited in the majority opinion and the briefs in-

volving the same or similar issues have involved federal law enforce-

ment personnel in addition to or in lieu of firefighters. While

similarly situated to firefighters in many respects, I express no

opinion here as to whether the conclusions reached in this opinion

would be applicable to federal personnel other than firefighters. See,

e.g., Slugocki, 816 F.2d 1572 (Deputy United States Marshals) ;

17a

nors of the Federal Reserve System v. Dimension Finan-

cial Corp., 474 U.S. 361, 368, 106 S.Ct. 681, 686, 88

L.Ed.2d 691 (1986) ‘traditional deference courts pay to

agency interpretation is not to be applied to alter clearly

expressed intent of Congress); Chevron U.S.A. Ine. v.

Natural Resources Defense Council, 467 U.S. 837, 843,

104 S.Ct. 2778, 2782, 8 L.Ed.2d 694 (1984); Jeffrey,

823 F.2d at 1531 (and cases cited therein).

As appellants point out, the predecessor to 5 U.S.C.

$ 5504(b) was enacted as part of the Federal Employees

Pay Act of 1945 [hereinafter “1945 Act”), Pub.L. No.

79-106, ch. 212, § 604(b) & (di (1), 59 Stat. 295, 303-04

(codified at 5 U.S.C. § 944 (1946)). The 1945 Act was

part of a comprehensive post-war effort to improve wage

and salary administration in the federal service and in-

cluded, inter alia, pay provisions for overtime, night, and

holiday work. The 1945 Act provided that federal em-

ployees covered by its provisions would receive compen-

sation for all officially ordered or approved hours of em-

ployment in excess of 40 in any administrative work-

week at overtime rates, dependent upon their annual

basic salary, of up to one and one-half times their basic

hourly rate of compensation. See id. § 201, 59 Stat. at

296-97. Most importantly, for the purposes of the pres-

ent discussion, federal firefighters were included among

the employees covered by the hourly pay provisions of

the Act and therefore received overtime compensation for

all hours worked in excess of 40 in any single week.

In 1954, Congress amended section 201 of the 1945

Act to provide overtime pay at one and one-half rate for

all employees whose basic salaries did not exceed the

maximum scheduled rate of grade GS-9. Federal Em-

ployees Pay Act Amendments of 1954, Pub.L. No. 83-

763, ch. 1208, § 203, 68 Stat. 1105, 1109 [hereinafter

Zumerling, 769 F.2d 745 (firefighters and law enforcement per-

sonnel): Alexander v. United States, 1 Ct.Cl. 653 (1983) (customs

service employees).

18a

“1954 Amendments’’}. However, by this time Congress

had also recognized that firefighters and law enforce-

ment personnel did not fit well within the standard over-

time-pay provisions of the 1945 Act and that the inclu-

sion of those two groups caused serious administrative

problems as a result of the large amount of irregular

overtime or standby duty required of these employees.

See S.Rep. No. 1992, 83rd Cong., 2d Sess., reprinted in

1954 U.S.Code Cong. & Ad. News 3816, 3834 (report of

U.S. Civil Service Commission on S, 2665). As a result,

Congress enacted a new title into the 1945 Act which

provided for premium compensation on an annual basis

at a rate not to exceed 25 percent of the basic pay for

GS-9 in lieu of all overtime, night, and holiday pay for

all employees who, like the firefighters in this case, spent

a substantial amount of time in a standby status. That

new title, in part, provided the following:

Sec. 401. The head of any department, independ-

ent establishment, or agency, including Government-

owned or controlled corporations, or of the munici-

pal government of the District of Columbia may,

with the approval of the Civil Service Commission,

provide that—

(1) any officer or employee in a position re-

quiring him regularly to remain at, or within

the confines of, his station during longer than

ordinary periods of duty, a substantial part of

which consists of remaining in a standby status

rather than performing work, shall receive pre-

mium compensation for such duty on an annual

basis in lieu of premium compensation provided

by any other provisions of this Act. Premium

compensation under this paragraph shall be

determined as an appropriate percentage (not

in excess of 25 per centum) of such part of the

rate of basic compensation for any such position

as does not exceed the minimum scheduled rate

19a

of basic compensation provided for grade

GS-9. ...

1954 Amendments, § 208, 68 Stat. 1111.4

Thus, by 1954, Congress had explicitly recognized that

firefighters did not work a standard 40-hour workweek

like other federal employees and had included specific,

separate provisions in the pay statutes to account for the

differences. But it is also clear that prior to 1954, fed-

eral firefighters had been deemed to be paid their basic

GS pay for 52 consecutive workweeks of 40 hours, just

like other federal employees. The government argues

here that the adoption of premium pay in 1954 indicates

that section 5504(b) no longer had any applicability to

those federal employees covered by the premium pay

provisions contained in the new title. But it is un-

deniable, and the government concedes, that Congress did

not expressly alter the provisions of the predecessor to

5 U.S.C. § 5504(b) to provide an exception for federal

firefighters. Repeals by implication can only be justified

where the earlier and later statutes cannot be reconciled.

Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474,

2482, 41 L.Ed.2d 290 (1974); Jeffrey, 823 F.2d at 1527.

However, as will be seen, no fatal irreconcilability exists

in the present case to support an implied repeal of sec-

tion 5504(b) with respect to federal firefighters. In fact,

since premium pay was designed to compensate only for

the hours worked in excess of 40 in a given week, the

premium pay statutes are in perfect harmony with the

language of section 5504(b) making basie pay attribu-

table only to the first 40 hours of the workweek.

Following the addition of the new title in the 1954

Amendments, firefighters did not receive any one and

one-half time compensation for overtime as the premium

4 By 1970, the upper limit for such pay had been changed to the

minimum rate of basic pay for GS-10. See 5 U.S.C. § 5545(c) (1)

(1970).

20a

pay and basic pay were the sole compensation paid to

the firefighters, regardless of the number of scheduled

and unscheduled hours worked. Cf. Bean v. United

States, 175 F.Supp. 166, 146 Ct.Cl. 267 (1959). How-

ever, Congress soon realized that the firefighters and

other classes of employees subject to long standby duty

were the only salaried federal employees who received

no compensation for unscheduled and irregular overtime

duty performed beyond their regularly scheduled tours

of duty. See H.Rep. No. 1870, 85th Cong., 2d Sess.,

reprinted in 1958 U.S.Code Cong. & Ad. News 3047, 3048

(report on S. 1901). Therefore, Congress amended the

new section 401 added by the 1954 Amendments to allow

the firefighter one and one-half time overtime compensa-

tion for “irregular, unscheduled overtime duty in excess

of his regularly scheduled weekly tour,” such as when a

fire emergency required a firefighter to work beyond the

end of his regular tour of duty. Act of July 18, 1958,

Pub.L. No. 85-525, 72 Stat. 363 (codified at 5 U.S.C.

$926 (1958)) [hereinafter “1958 Amendment’’]; cf.

Burich v. United States, 366 F.2d 984, 177 Ct.Cl. 139

(1966), cert. denied, 389 U.S. 885, 88 S.Ct. 152, 19

L.Ed.2d 182 (1967). As explained in the House Report

accompanying the 1958 Amendment, “|the premium pay

compensation system] will remain in effect but will

represent compensation only for those hours of work in

excess of 40 hours per week performed by an employee

within his regularly scheduled tour of duty.” H.Rep. No.

1870, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code

Cong. & Ad. News at 3048 (emphasis added).

The above legislative history confirms that premium

pay was intended by Congress to be considered as com-

pensation for only those hours of work in excess of 40

hours per week performed by an employee within his

regularly scheduled tour of duty. Unfortunately, this

conclusion suggests that the statement from Zumerling

that the “‘firefighters’ premium pay is not received in

2la

return for any particular hours of work” is not entirely

accurate. See 769 F.2d at 751. In actuality, an em-

ployee’s premium pay is received for an identifiable por-

tion of work—those hours in an employee’s regularly

scheduled tour of duty in excess of the first 40 hours per

week compensated by basic GS pay in accordance with

5 U.S.C. § 5504(b). In the case of the appellants, there-

fore, their basic pay should be considered payment only

for the first 80 hours in each scheduled 144-hour work

period and their premium pay properly should be con-

sidered payment only for the last 64 hours of each sched-

uled work period.

However, the issue raised by appellants here as to the

proper calculation of their overtime entitlement under

the provisions of the FLSA cannot be resolved solely by

concluding that basic pay under 5 U.S.C. §5504(b) is

attributable only to 40 hours per week and by attribut-

ing premium pay to the remaining regularly scheduled

hours in excess of 40 each week. The appellants expressly

stated that they were not challenging any of the conclu-

sions in Zumerling with respect to the regular rate cal-

culation itself; however, in order to resolve properly the

challenges that appellants do make, reexamination of

those conclusions is unavoidable, especially in light of the

heretofore unrecognized applicability of section 5504(b)

to the pay entitlement calculation.

As discussed in the majority opinion, the firefighters

became entitled in 1975 to additional compensation under

the amendment to the FLSA which became section 207

(k). Under section 207(k), a federal firefighter is to

receive compensation at a rate not less than one and one-

half times his regular rate for tours of duty in which

the aggregate hours exceed a statutorily defined “maxi-

mum” number of hours which, in the case before us, is

106 hours in a 144-hour work period. See Wheeler, 9 Cl.

Ct. at 581. Zumerling held that a firefighter’s regular

rate as calculated under 29 U.S.C. § 207(e) is equal to

22a

the employee’s total remuneration (basic pay plus pre-

mium pay) divided by the total number of hours worked

in a work period (144 hours). 769 F.2d at 749-52. The

Zumerling decision also concluded that premium pay did

not fall within the statutory exclusions of 29 U.S.C.

§$207(e) and therefore rejected arguments that the

“total remuneration” should not include premium pay

received pursuant to 5 U.S.C. § 5545(¢e) (1). Id. at 752.

Although in my opinion the characterization of premium

pay as generally compensating the employees for each

hour of work is not what Congress intended, it does not

appear that adoption of the view as outlined in this

opinion would require modification of the regular rate

calculation previously upheld in Zumerling.

Even though the firefighters’ premium pay was ac-

tually intended to compensate for regularly scheduled

hours worked in excess of 40 in a week, it does not neces-

sarily follow that such premium pay should be considered

as an overtime premium payment under the FLSA provi-

sions in Title 29. As recognized in the Zumerling deci-

sion:

Simply because the remuneration is labeled “pre-

mium pay” under Title V does not mean that it is

excluded as premium pay under the FLSA. Section

7ie) does not provide a blanket exclusion of pre-

mium pay; rather only premium pay received for

certain activities is excluded.

769 F.2d at 751.

When it was first enacted in the 1954 Amendments,

premium pay was an increased percentage of annual

basic pay paid in lieu of overtime, holiday, and other

premium compensation. With respect to firefighters, the

premium pay provided under 5 U.S.C. § 5545/e) (1) is

a percentage of annual basic pay given in recognition of

the long periods of standby duty as part of the em-

ployee’s normal working hours and is not covered by any

23a

of the exceptions noted in 29 U.S.C. § 207(e). See 29

C.F.R. § 778.308 (“to qualify as an overtime premium

under section 7/e) (5), (6), or (7), the extra compensa-

tion for overtime hours must be paid pursuant to a pre-

mium rate which is . . . a rate per hour”) ; cf. Slugocki,

816 F.2d at 1578. As pointed out by the government,

unlike other forms of premium pay contained in Title 5,

the firefighters’ premium pay is treated as basic pay in

computing benefits for retirement, 5 U.S.C. § 833113)

(D), life insurance, 5 U.S.C. § 8704(c) (1), severance

pay, 5 U.S.C. §5595(e), and workers compensation, 5

U.S.C. § 8114(e). Thus, the holding in Zumerling that

premium pay is “not an overtime payment, but a means

of generally compensating the employees given the con-

fines of the federal pay schedule,” 769 F.2d at 751, is the

proper interpretation in the context of the FLSA provi-

sions in Title 29.

Therefore, as was concluded in Zumerling, the numera-

tor of the regular rate calculation outlined in FPM Let-

ter 551-5 properly includes both the firefighters’ basic

pay and premium pay. Similarly, Zumerling properly

held that the regular rate is to be calculated based upon

the total hours worked for the remuneration which, in

the context of the facts of Zumerling, was correctly de-

termined to be 144 hours.° However, based on my above

5 It is not clear whether the challenge to the overtime pay en-

titlements in the present case includes the situation where un-

scheduled or irregular overtime hours are worked. To the extent

that it does, it would appear that only regularly scheduled hours

should be used in the denominator of the calculation and that FPM

Letter 551-5 should not include unscheduled overtime duty hours

in the denominator. As noted in the legislative history accompany-

ing the 1958 Amendments, premium pay was intended to compensate

an employee only for those overtime hours within his regularly

scheduled tour of duty and was not designed as compensation for

unscheduled or irregular overtime worked in excess of the regularly

scheduled work period. As noted in Zumerling, the Secretary of

Labor provided that regular rate “is to be calculated ‘by dividing

24a

conclusions, I must disagree with the holding in Zumer-

ling affirming the formula contained in FPM Letter

551-5 which entitles an employee to additional compen-

sation at a rate of one-half times the “regular rate” for

each hour that the employee’s tour of duty exceeds the

maximum hours limitation of 29 U.S.C. § 207(k).

Section 207(k) clearly mandates that a firefighter re-

ceive not less than one and one-half times his regular

rate for each hour worked in excess of the maximum

number of hours for the employee’s work period cal-

culated in accordance with that section. The number of

hours entitled to compensation under section 207(k) and

the method of calculating the applicable regular rate are

not part of the present dispute. The remaining issue to

be considered is how much of the pay already received

by appellants can be attributed toward the required one

and one-half times their regular rate that they are en-

titled to es compensation for the last 38 hours in their

work period. In my opinion, the court’s deference to

OPM’s interpretation is inappropriate in this area of

dispute as well.

FPM Letter 551-5 asserts that the employee’s total

remuneration calculation compensates the employee at

100 percent for all the hours in his tour of duty and

the additional one-half thereby allows the employee to

receive one and one-half times the regular rate at which

[the] total remuneration (except statutory exclusion) in any work-

week [or work period] by the total number of hours actually

worked by [the employee] in that workweek [work period] for

which the compensation was paid.’” 769 F.2d at 752 (quoting 29

C.F.R. § 778.109). Unscheduled overtime hours beyond the fire-

fighters’ normal tour of duty are not hours for which the com-

pensation (basic pay or premium pay) included in the numerator

was paid and therefore should not be part of the denominator in the

regular rate calculation. Cf. Lanehart v. Horner, 818 F.2d 1574,

1583 n. 17 (Fed.Cir. 1987) (finding Title 29 overtime pay for irregu-

lar overtime work outside of the normal scheduled work period not

to be part of firefighters’ customary and regular pay).

25a

he or she is employed. Zumerling affirmed this method

of calculation, finding that the firefighters “receive their

regular pay for each of the 144 hours they work’ and

“bly receiving an additional [one-half]* regular rate

salary for overtime hours, their overtime compensation

equals the statutorily mandated amount.” 769 F.2d at

752-53. In reaching its conclusion, the Zumerling court

found the OPM calculation to be consistent with the Sec-

retary’s regulations. Jd. at 753.

In my opinion, none of the Secretary of Labor’s regula-

tions involving salaried workers, pieceworkers, day-rate

workers, two-or-more-job workers, etc., cited by the court

in Zumerling or the parties here are directly applicable

to the situations involving federal employees receiving

basic GS pay in accordance with 5 U.S.C. § 5504(b) and

premium pay in accordance with 5 U.S.C. § 5545(c¢) (1).

The premium pay system devised by Congress for fire-

fighters is unique to the federal pay schedule. None of

the Secretary’s regulations covers a pay system involving

two types of annual pay received for chronologically dis-

tinct hours of work. So, rather than attempt to discern

the closest parallel from the myriad of regulations cover-

ing equally varied pay systems not part of the present

facts, I prefer to look to the language chosen by Congress

in the statutes covering this unique federal pay system to ~

determine whether OPM’s instructions in FPM Letter

551-5 are reasonable.

As described above, Congress has clearly indicated that

the firefighters receive basic pay for the first 80 hours

in their 144-hour work period and premium pay for the

excess hours in their reguiarly scheduled work period.

Therefore, under the pay system devised by Congress,

the firefighters cannot be held to receive their regular

rate for any of the hours worked in their work period

8 In the official Reporter, this was incorrectly described as “an

additional one-hour regular rate salary.” 769 F.2d at 753.

26a

because their regular rate is merely a fictional rate uti-

lized solely in calculating their overtime entitlement un-

der the FLSA. Thus, while mathematically supportable,

the additional one-half regular rate method employed by

OPM is contrary to statute and must fall. See Jeffrey,

823 F.2d at 1531-32.

Since only premium pay is received for the hours in

excess of 80 in their 2-week work period, appellants’ posi-

tion is that the government is only entitled to offset the

amount of premium pay attributable to each of the last

38 hours from the one and one-half times regular rate

due as compensation for those hours. In its attempt to

discredit appellants’ arguments, the government argues

that the only time that the FLSA allows an employer to

take a credit against an obligation to pay FLSA overtime

pay is when the employer already is paying “extra com-

pensation provided by a premium rate.” See 29 U.S.C.

§ 207(h). Since the premium pay under 5 U.S.C. § 5545

rate for the purposes of exclusion under section 207/e)

from the regular rate calculation, the government’s argu-

ment has arguable initial force, although perhaps not in

the manner intended by the government.’

However, the language of section 207(k) makes it

clear that the compensation due under that section for

hours worked in excess of the maximum number is not

a lump-sum figure, but a minimum amount below which

the employee’s compensation for those hours must not

fall. See 29 U.S.C. § 207(k) (no violation of section if

7 Actually, the same argument appears to undermine the govern-

ment’s position in this appeal as well. Since the regular rate cal-

culated for firefighters is a weighted average of the basic pay and

premium pay received, neither of which is a premium rate under

section 207(e), if the argument were accepted, the government also

would be prevented from offsetting the reguiar rate derived from the

“nonpremium” rates against the one and one-half times regular

rate due under section 207(k).

27a

employee receives “compensation at a rate not less than

one and one-half times the regular rate at which he is

employed”). Under 5 U.S.C. § 5545(¢) (1), Congress has

clearly provided premium pay as compensation for those

hours worked in excess of 80 in the 2-week work period,

including the 38 covered by the provisions of 29 U.S.C.

§ 207(k). As provided in FPM Letter 551-5, to the ex-

tent that the FLSA provides a greater overtime benefit

to employees than does the benefit payable under Title 5,

they are entitled to the FLSA benefit, but they are not

entitled to combined benfits from both titles. See Lane-

hart, 818 F.2d at 1576. Since the amount received by

appellants for each of the 38 hours in question under

Title 5 is less than that provided in Title 29, they would

be entitled to the greater figure, but not both amounts.

Nevertheless, my agreement with the appellants’ cen-

tral contention as to the meaning and application of sec-

tion 5504(b) does not lead to adoption of their asserted

computation mathematics for their overtime pay entitle-

ments under 29 U.S.C. § 207(k). As stated above, I do

not agree with the Zumerling. conclusion that premium

pay should be considered part of the wage received for

every hour worked. Not surprisingly, this is one state-

ment from Zumerling that went unchallenged by appel-

lants since attributing premium pay to each hour worked

rather than to the hours in excess of 40 each week would

result in a higher recovery of appellants. Consistent with

that view, I believe that the proper offset for appellants’

premium pay already reecived should be 1/64th of the

premium pay, not 1/144th of it as urged by appellants

in light of Zumerling. 2

Thus, in order that appellants not receive compensa-

tion at a rate not less than one and one-half times their

regular rate for the last 38 hours of their 144-hour work

period, appellants should have received as their FLSA

overtime compensation the difference between one and

one-half times their regular rate and 1/64 of their pre-

28a

mium pay for each of the 38 hours. Since they only re-

ceived one-half times their regular rate for those hours,

the amount owed them for each of the 38 hours would be

the difference between their regular rate and 1/64th of

their premium pay, subject to any proper adjustments

not at issue in this appeal.

For the above reasons, I dissent from the majority

opinion. As the government asserts that 29 U.S.C. § 259

shields it, as an employer, from any liability for back

pay, I would remand the case to the district court for

consideration of that issue including a determination of

whether it properly was and remains before that court.’

If it is, the merits of the government’s asserted section

259 defense should be passed on by the district court

before we make any statement on the subject.

8 29 U.S.C. § 259 provides, in pertinent part:

(a) In any action or proceeding based on any act or omis-

sion ...no employer shall be subject to any liability or punish-

ment for or on account of the failure of the employer to pay...

overtime compensation under the Fair Labor Standards Act of

1938, as amended . . . if he pleads and proves that the act or

omission complained of was in good faith in conformity with

and in reliance on any written administrative regulation, order,

ruling, approval, or interpretation of the [ Administrator of the

Wage and Hour Division of the Department of Labor]... .

Such a defense, if established, shall be a bar to the action or

proceeding, notwithstanding that after such act or omission,

such administrative regulation, order, ruling, approval, inter-

pretation, practice, or enforcement policy is modified or re-

scinded or is determined by judicial authority to be invalid

or of no legal effect.

29a

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

87-1138

RICHARD A. LAFORTE and RICKY A. ROGERS,

Plaintiffs-A ppellants,

CONSTANCE HORNER, DIRECTOR,

U.S. OFFICE OF PERSONNEL MANAGEMENT and the

UNITED STATES OF AMERCIA,

Defendants-A ppellees.

JUDGMENT

On Appeal from the United States District Court for

the District of Maryland in Case No(s). Civil Action No.

B-84-411

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

AFFIRMED.

ENTERED BY ORDER OF THE COURT

/s/ Francis X. Gindhart

FRANCIS X. GINDHART

Clerk

Dated Nov. 17, 1987

Issued as a Mandate: Dec. 23, 1987

30a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. B-84-411

RICHARD A. LAFORTE and RIcKy A. ROGERS

Vs.

CONSTANCE HORNER, DIRECTOR,

U.S. OFFICE OF PERSONNEL MANAGEMENT and

UNITED STATES OF AMERICA

Baltimore, Maryland

October 31, 1986

Before: His Honor, WALTER E. BLACK, JR.

ORAL OPINION OF THE COURT

APPEARANCES

For the Plaintiff:

Ira M. Lechner and Donald H. Feige

For the Defendant:

Robert Rutershan and Donna Helen Triptow

OPINION

THE COURT: Counsel, as I indicated to you I had

already indicated my ruling in this regard, I do want to

put something on the record for the benefit of counsel if

in future proceedings in this matter, and I will do so by

means of a very informal oral opinion. Reserving the

right to edit that opinion if it is transcribed without in

any way changing the result or the essential meaning.

3la

The two plaintiffs in this action are or were federal

employees engaged in fire protection activities for An-

drews Air Force Base in Maryland. Mr. LaForte worked

as a fire fighter from August 15th, 1983, to October 27th,

1984, and Mr. Andrews is still so employed at Andrews

since August 15th, 1983. The defendants are Ms. Con-

stance Horner, acting essentially as director of the Office

of Personnel Management, and the United States govern-

ment. In their second amended complaint the plaintiffs

allege that since the date of their employment they have

been paid at a rate less than the “one and one-half times

the regular rate’ for overtime hours required by the

Fair Labor Standards Act.

The plaintiffs have requested the following relief:

That the Court enter a declaratory judgment with

respect to the appropriate computation of the overtime

wages pursuant to the FLSA;

That the defendants make a full and accurate account-

ing of all wages or overtime compensation due each plain-

tiff with the Court, and that the Court enter judgment

accordingly pursuant to Section 16(a) of the FLSA;

That the Court award appropriate interest and attor-

neys’ fees to the plaintiffs; and,

That the Court grant any other relief deemed to be

necessary and proper.

This case now comes before the court on Cross Motions

for Summary Judgment which, upon resolution, will effec-

tively dispose of all issues presented by these parties.

A motion for summary judgment can only be granted

under the Federal Rules of Civil Procedure Rule 56 if

there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law.

Poller Columbia Broadcasting System, Inc., 368 U.S. 464,

467 (1962). The Court agrees that there are no genuine

issues of fact and, therefore, is able to resolve the case

on the narrow legal issue presented.

siete tacenieeneniiiemie

32a

The only issue the Court finds pertinent for disposition

of this case is whether it is bound by the decision of the

Court of Appeals for the Federal Circuit in Zumerling

versus Devine, 769 F2d 745 (1985). Writing for the

Court was senior Circuit Judge Nichols who stated that

the issue in Zumerling was whether

“OPM has properly applied section 7(k) of the Fair

Labor Standards Act . .. in formulating its equa-

tion for the calculation of overtime payments for

federal firefighters . . .”

That is a quote from page 746.

The Zumerling court found that the calculation by OPM

was “both reasonable and consistent the FLSA.” At page

749. This Court finds that the issue presented in this

case is identical to that in Zumerling and that the result

reached by that court was correct. Consequently, the

Court finds no persuasive reason not to abide by that

decision, especially in the light of the fact that any ap-

peal of this decision by the parties will indeed go to the

Court of Appeals for the Federal Circuit. Accordingly,

having read the briefs and upon hearing oral argument

this afternoon the Court will deny the plaintiff’s Motion

for Summary Judgment, paper 14, and grant the Cross

Motion for Summary Judgment as filed by the defend-

ants, paper 16. The Court will, however, address the

concerns raised by the plaintiffs as to the validity of the

Zumerling decision with respect to the specific circum-

stances of this case.

The focus of the inquiry in this Court and the Zumer-

ling court was the last sentence contained in section 207

(k) which reads, in pertinent part, that overtime work

is to be compensated “at a rate not less than one and one-

half times the regular rate at which the firefighter is

employed”. The firefighters employed by the United States

government receive annual G.S. “basic pay”; “premium

pay” (to compensate firefighters for the fact that they

33a

don’t work the typical work schedule of the federal sys-

tem); and overtime pay. To figure out the amount of

overtime pay owed to a firefighter there must be first a

determination as to of the regular rate. The Court under-

stands that the formula used to compute the regular rate

is not at issue in this case. The regular rate equals the

total renumeration (defined as basic pay plus “standby”

premium pay) divided by the total hours worked (sched-

uled and nonscheduled) during the work period. Fire-

fighters generally work a 72 hour week and get paid

biweekly for 144 hours. This fact is not in dispute, nor

is the fact that a 144 is the proper demoninator when

calculating the regular rate for overtime purposes. For

all intents and purposes the number of overtime hours

that these firefighters generally work is 38 because the

statutory minimum number of hours which firefighters

must work before overtime pay is warranted has been set

at 53 hours in a seven day work period versus the 40

hour week which governs most employees. Once the regu-

lar rate has been calculated, ‘one and one-half times”

that amount is multiplied by the number of overtime

hours worked, for example, by 38.

OPM has determined, and the Zumerling court has by

implication supported that determination, that the appro-

priate multiplier is really ‘one-half’? the regular rate

times the number of overtime hours worked rather than

“one and one-half’. Support for this method of computa-

tion is found in the Supreme Court’s opinion in Bay Ridge

Operating Co., Inc. versus Aaron, 334 U.S. 446 (1948).

Quoting:

“In computing the amount to be paid, (employers)

may credit against the obligation to pay statutory

excess compensation ‘overtime pay) the amount al-

ready paid to each employee which is allocable to

work in those excess hours.”

A quote from page 476. For example, in this context

if an employer has already paid its employee basic pay

ait eae nna

34a

for working 144 hours, it should be able to “credit”

against obligation to pay 38 hours of overtime overlapping

those 144 hours (144 less the statutory maximum of 106),

the basic pay allocable to those 38 hours. Justification

for this analysis was offered by OPM in its attachment

two to the letter 551-5:

“NOTE: The employee’s additional compensation for

overtime work is computed at one-half times the

‘regular rate’ and not one and one-nalf times the

regular rate for all overtime hours under the FLSA.

A simple explanation is that in computing an em-

ployee’s total renumeration for the work period, the

employee has already been compensated a hundred

percent for all hours in his tour of duty. Therefore,

once the employee’s ‘regular rate’ is computed, the

employee is thus entitled to additional compensation

of 50 percent times his ‘regular rate’ for those hours

in excess of the maximum hours limitations of Sec-

tion 7(k) of the FLSA. This method of computing

an employee’s overtime entitlement under the FLSA

results in the employee being compensated for over-

time work at a rate of ‘one and one-half times the

regular rate at which he is employed.’ ”

The crux of the plaintiff’s position in Zumerling was

that OPM incorrectly divided the total renumeration by

the total hours by which it is received (144 hours). Cit-

ing Zumerling at page 750. It was their argument that

the correct divisor was 80 hours or alernatively 108 hours

(which was the statutory nonovertime hours at the time

of that decision) at pages 751 and 2. On the contrary,

the plaintiffs in this case do not dispute this portion of

the regular rate computation. Instead, they rely on the

argument that because basic pay is not for 144 hours

work week, two weeks, but rather for an 80 hour two

weeks, “none of the firefighters basic pay may be used as

an offset or as a ‘credit against the obligation to pay

statutory excess compensation .. .’ because none of basic

35a

pay is allocable to any of the overtime hours.” Citing the

plaintiff’s motion at page 9. They conclude that fire-

fighters have not been paid one and one-half times the

regular rate then because the government cannot credit

38 hours of basic pay as having already been paid at the

regular rate. At the outset, the Court notes that plain-

tiffs’ argument is internally inconsistent in any event

because it is self evident that “total renumeration” equals

basic pay plus premium pay, therefore, it is illogical to

find that basic pay for firefighters is only for 80 hours

work and not for the total hours worked, that number

being 144. Plaintiffs apparently do not disagree that

“standby” premium pay is indeed allocable to the 38 hours

and available as a credit against the government’s obli-

gation to pay overtime wages. Referring to the Plain-

tiffs’ motion at page seven.

In support of their argument, the plaintiffs offer vari-

ous factors that they allege the Zumerling court either

did not or could not have considered in their decision.

This, plaintiffs say, resulted in an erroneous opinion, or

at the very least, an opinion not binding on the Court in

the circumstances they are faced with here. Each factor

is offered to support the premise that no portion of a fire-

fighter’s basic pay is deemed payment for any of the over-

time hours they work in each pay period. Plaintiffs con-

tend that basic G.S. pay is payment for only 80 hours of

work biweekly and not for 144 hours of work.

Only two of plaintiffs’ arguments are worthy of con-

sideration here. First, plaintiffs’ point to language in

Title V of the United States Code regarding the compen-

sation of pay that,

“the annual rate of basic pay established by or under

statute is deeded payment for employment during 52

basic administrative workweeks of 40 hours.”

That being a quote from 5 United States Code Section

5504 (b).

36a

The Court is not persuaded by this language. First, as

defendants have correctly pointed out, this sentence in

Section 5504(b) has been repealed, but this may not have

any particular significance in light of the portion of the

section which remains. Moreover, 5504(b) was promul-

gated to enable employees to compute their annual rate of

basic pay to a “basic hourly, daily, weekly, or biweekly

rate” only and is not a factor in determining the “regu-

lar rate’. Firefighters are paid a certain basic pay based

on 144 hour work week and their compensation is not

based on an 80 hour work week as plaintiffs suggest.

And the Court would refer to the opinion in Zumerling v.

March 591 F.Supp. 537, at 548 in the Western District

of Pennslvania in 1984, which opinion clearly shows that

the application of the statute was considered in the Zum-

erling litigation. Section 5504(b) is simply not relevant

to a determination of overtime wages.

For similar reasons, plaintiffs’ argument that the gov-

ernment has admitted that firefighters “are deemed to

receive payment of their annual rate of G.S. basic pay for

employment auring 52 basic administrative work weeks

of 40 hours” must also fail. First, clearly the govern-

ment was repeating, almost verbatim, the language of

Section 5504(b) and the Court has already determined

that 5504(b) is not pertinent here. Plaintiff refer to this

admission as one of “fact” and thereby attempt to differ-

entiate this case from that in Zumerling where such a

fact was not presented to the Court.

The Court is not at all sure that this admission is one

of fact but rather a conclusion of law based on the gov-

ernment’s reading of 5504(b) and taken out of context

by the plaintiffs. Since the so-called admissions add noth-

ing to the language of Section 5504(b) it makes no dif-

ference to the posture of either this case or Zumerling

whether the government has made such an admission.

As the Court finds that the Zumerling court satisfac-

torily laid to rest the concerns of firefighters regarding

37a

their overtime pay, it will not reopen the issue by read-

dressing the substantive questions raised by plaintiffs’

Motion for Summary Judgment. As plaintiffs’ interpreta-

tion as to the validity of Zumerling as binding precedent

in this case and on this Court is incorrect, defendant’s

argument that their claims for retroactive pay would

have been barred by 29 United States Code, Section 259,

need not be addressed. Therefore, in accordance with the

principle set forth in Zumerling, the Court holds that

OPM’s calculation of overtime, as mandated by the FLSA

is properly determined by multiplying one-half of the

“regular” rate times the number of hours overtime

worked. By receiving one-half additional pay, the fire-

fighter does receive in total one and one-half times the

regular rate at which he is employed. Citing Zumerling,

again, 769 F2d at 752.

So the Court will enter an order granting the defend-

ant’s Cross Motion for Summary Judgment and denying

the plaintiffs Motion for Summary Judgment.

And with that I will send you all on your way to the

next court.

MR. LECHNER: Thank you.

MR. RUTERSHAN: Thank you, Your Honor.

(Hearing concluded. )

38a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. B-84-411

RICHARD A. LAFORTE and RICKY A. ROGERS

CONSTANCE HORNER, Director,

U.S. Office of Personnel Management and

UNITED STATES OF AMERICA

ORDER AND JUDGMENT

Presently pending are the litigants’ cross-motions for

summary judgment—Plaintiffs’ Motion for Summary

Judgment (Paper 14) and Defendants’ Motion for Sum-

mary Judgment (Paper 16). A responsive Reply Brief

has been filed on plaintiffs’ behalf, and the Court has had

the benefit of oral argument on behalf of the parties at a

hearing herein on October 31, 1986. In accordance with

the Court’s oral opinion rendered at the conclusion of said

hearing, IT IS, this 8rd day of November, 1986,

ORDERED and ADJUDGED as follows:

1. That Plaintiffs’ Motion for Summary Judgment

(Paper 14) BE, and the same hereby IS, DENIED;

2. That Defendants’ Motion for Summary Judgment

(Paper 16) BE, and the same hereby IS, GRANTED;

3. That judgment BE, and the same hereby IS,

ENTERED in favor of defendants, Constance Horner,

Director, U.S. Office of Personnel Management, and the

United States of America, against the plaintiffs, Richard

A. LaForte and Ricky A. Rogers; and,

39a

4, That the Clerk shall transmit copies of this Order

and Judgment to counsel of record for the parties to this

action.

/s/ Walter E. Black, Jr.

WALTER E. BLACK, JR.

United States District Judge

File:

40a

THE COMPTROLLER GENERAL

OF THE UNITED STATES

Washington, D.C. 20548

[SEAL ]

DECISION

DATE: March 18, 1985

B-216640

Matter of: Frederick Evans, Jr.—Computation of

Digest:

Pay for Firefighters

Union of federal firefighters claims that their

basic pay should be computed on the basis of their

144-hour tour of duty times their hourly wage.

However, under the statutes and regulations, fed-

eral firefighters are entitled to basic pay for 80

hours biweekly plus premium pay for standby

duty under title 5, United States Code. Decisions

of our Office and the courts recognize that part

of these 144-hour tours of duty involve noncom-

pensable eating and sleeping time.

Union of federal firefighters seeks extension of

our decision involving Fair Labor Standards Act

(FLSA) overtime and court leave to apply also

to annual and sick leave. Our decision in 62

Comp. Gen. 216 (1983) held that FLSA overtime

may not be reduced during periods of court leave,

but that rationale does not extend to annual or

sick leave.

ISSUES

The first issue in this decision involves the computation

of basic pay for federal firefighters who work a 144-hour

tour of duty biweekly. We hold that such firefighters

may not be compensated on the basis of 144 hours times

4la

their hourly wage since the existing statutes provide for

compensation on the basis of 80 hours times the hourly

wage plus premium pay for standby duty.

The second issue involves whether annual and sick leave

may be treated the same as court leave for the purposes

of overtime under the Fair Labor Standards Act (FLSA).

Although we held that FLSA overtime may not be reduced

during periods of court leave, that same rationale does

not apply to annual or sick leave which are not considered

“hours of work” under the FLSA.

BACKGROUND

This decision is in response to a request from Frederick

Evans, Jr., President, Local F-100, International Associa-

tion of Fire Fighters, Newport Naval Base, Newport,

Rhode Island. The request was processed under our labor-

management procedures contained in 4 C.F.R. Part 22

(1984), and while we received no comments from the

Department of the Navy, we requested and received com-

ments on this matter from the Office of Personnel Man-

agement (OPM).

Union argument

Mr. Evans states that firefighters at the Newport Naval

Base work a regularly scheduled 144-hour tour of duty

every 2 weeks. However, he argues that the Navy com-

putes basic pay on the basis of an 80-hour biweekly pay

period, and thus firefighters are not compensated for the

additional 64 hours (144-80) they work every 2 weeks.

He contends that basic pay should be computed on the

basis of 144 hours times the employee’s hourly rate, in-

stead of the agency’s method of 80 hours times the hourly

rate.

OPM position

The report from OPM states that federal firefighters

are entitled to overtime under two laws, title 5, United

States Code, and the FLSA. The report continues that

42a

under title 5, firefighters are compensated in a manner

different than most General Schedule employees who work

a 40-hour workweek. As noted by Mr. Evans, firefighters

have a 72-hour per week tour of duty, consisting of three

24-hour shifts, and OPM points out that during each 24-

hour shift, 8 hours are considered actual work and 16

hours are treated as standby. The OPM report continues

by stating that firefighters receive basic pay and annual

premium pay for regularly scheduled standby duty (nor-

mally 25 percent) under section 5545(c) (1) of title 5,

United States Code. This standby pay is in lieu of pre-

mium pay for regularly scheduled night, Sunday, and

holiday work, except for irregular, unscheduled overtime

duty in excess of the employee’s regularly scheduled

weekly tour. In addition, the OPM report points out that

the standby pay is considered to be basic pay for the pur-

poses of severance pay, compensation for work injuries,

and life insurance.

OPINION

We know of no basis to allow the union’s claim. Under

the provisions of 5 U.S.C. § 6101 (1982), heads of agen-

cies may establish the administrative workweek, which

permits the establishment of this 72-hour workweek. See

also 5 C.F.R. Part 610 (1984). In addition, under sub-

chapter V of chapter 55, title 5, United States Code, the

Congress has provided for the payment of overtime or pre-

mium pay for work in excess of 40 hours in an adminis-

trative workweek.

As noted in the OPM report, 5 U.S.C. § 5545(e) (1)

provides premium pay up to 25 percent to an employee

““ * * in a position requiring him regularly to remain

at, or within the confines of his station during longer

than ordinary periods of duty, a substantial part of which

consists of remaining in a standby status rather than

performing work * * *.” This method of compensating

federal firefighters has long been recognized in decisions

43a

of this Office! and the court.? For an example of the cal-

culation of overtime pay for firefighters, see 55 Comp.

Gen. 908, 910.

As we pointed out in our decision in 25 Comp. Gen. 161

(1945), we recognized the adoption of the so-called “two-

thirds rule;” that is, for assignments of 24 hours or more,

one-third of the time represents time for eating and sleep-

ing and need not be regarded as hours of employment for

the purposes of title 5, United States Code. See Thomas

A. Donohue, B-213886, October 2, 1984, 64 Comp. Gen. 1.

A change in the 72-hour workweek for federal fire-

fighters was passed by the Congress in 1978 but vetoed

by the President. The bill, H.R. 3161, would have

amended chapter 61 of title 5 to reduce the workweek of

federal firefighters from 72 hours to 56 hours, and in its

consideration of the bill, the Congress took no exception

to the then-existing and still-current method of compen-

sating federal firefighters under title 5, United States

Code.*

We note that federal firefighters are also entitled to

overtime under the FLSA for duty hours in excess of 106

hours in a biweekly work period. See 62 Comp. Gen. 216,

cited above, and 55 Comp. Gen. 908 (1976). See also

Federal Personnel Manual Letter 551-20, September 22,

1983. However, Mr. Evans has not objected to the com-

putation of overtime under the FLSA, so we need not

discuss this entitlement further.

In view of the above discussion, we hold that the basic

pay of federal firefighters is properly computed, and we

'See 62 Comp. Gen. 216 (1983); 55 Comp. Gen. 908 (1976);

and 25 Comp. Gen. 161 (1945).

*See Bean v. United States, 175 F. Supp. 166 (Ct. Cl. 1959);

and Collins v. United States, 141 Ct. Cl. 573 (1958).

3 Cong. Rec. 9915-22 (daily ed. April 12, 1978) ; Cong. Rec. 16242-

3 (daily ed. June 5, 1978): and Cong. Rec. 183112-12 (daily ed.

June 21, 1978).

44a

deny the union’s claim that basic pay should be computed

on the basis of 144 hours times the employee’s hourly

rate.

FLSA Overtime for Leave

Union position

In his second contention, Mr. Evans points out that

under our decision in 62 Comp. Gen. 216 (B-207710),

federal firefighters who are on court leave continue to

receive overtime pay under the FLSA. He argues that

this decision should be excluded to include annual leave

and sick leave since 5 U.S.C. § 6302(a) provides that

days of leave are days on which an employee would other-

wise work and receive pay, exclusive of holidays and

nonworkdays.

OPM position

The report from OPM points out that periods of non-

work (leave, holidays, or excused absences) are not hours

of work for the purposes of the FLSA. 5 C.F.R.

§ 551.401(b) ; Louis Pohopek, 60 Comp. Gen. 493 (1981) ;

and R. Elizabeth Rew, 55 Comp. Gen. 1035 (1976). As

to the issue of FLSA overtime for periods of court leave

or military leave, the OPM report notes that this issue is

currently being litigated in federal court.*

Opinion

As noted by the OPM report, we have held that periods

of nonwork such as annual leave or sick leave are not

considered to be “hours of work” for the purposes of the

FLSA. Pohopek and Rew, cited above. Furthermore, our

decision in 62 Comp. Gen. 216 regarding court leave did

not treat such leave as “hours of work” under the FLSA.

Rather, we pointed out that section 6322 of title 5, United

4 Lanehart v. Devine, C.A. No. Y-83-3543 (D. Md.); and Davila

v. Weinberger, C.A. No. 83-3910 (D.D.C.).

45a

States Code, provide leave for jury duty without reduc-

tion or loss of pay to which otherwise entitled. Therefore,

we held that the FLSA overtime entitlement of fire-

fighters may not be reduced during absence for court

leave.

We know of no basis to extend this decision to apply

to annual leave or sick leave since those sections of title

5 (6303, 6304, and 6307) do not contain the same lan-

guage protecting against loss or reduction in pay as is

contained in section 6323 (miiltary leave). Therefore,

we hold that absences for annual or sick leave do not con-

stitute “hours of work” for the purposes of the FLSA.

for ‘s’ Milton J. Dorolan

Comptroller General

of the United States

46a

THE COMPTROLLER GENERAL

OF THE UNITED STATES

Washington, D.C. 20548

[SEAL ]

DECISION

DATE: September 18, 1985

File: B-216640 :

Matter of: Reconsideration cf Frederick Evans, Jr.—

Pay for Firefighters

Digest :

1. Union of federal firefighters requests reconsid-

eraiion uf prior decision holding they are entitled

to basic pay for 80 hours biweekly plus premium

pay for the remainder of their 144-hour tour of

duty. Under the applicable statutes and regula-

tions, firefighters are not entitled to basic pay for

their entire 144-hour tour of duty.

2. Union of federal firefighters requests reconsidera-

tion of prior decision concerning reduction of

overtime under Fair Labor Standards Act

(FLSA) for periods of annual or sick leave.

Regulations cited by union concerning overtime

for periods of annual or sick leave apply to

overtime under title 5, United States Code, not to

overtime under the FLSA, a separate statutory

authority.

ISSUES

The first issue in this decision involves the computa-

tion of basic pay for federal firefighters who work a 144-

hour tour of duty during a 2-week period. We sustain

our prior decision holding that firefighters are compen-

47a

sated for 80 hours times their basic wage plus overtime

or premium pay for hours in excess of 80 hours.

The second issue involves whether annual and sick leave

niay reduce the employee’s entitlement to overtime. We

hold that although such absences do not affect overtime

entitlement under title 5, United States Code, such ab-

sences are not considered “hours of work’”’ under the

Fair Labor Standards Act.

BACKGROUND

This decision is in response to a request from Fred-

erick Evans, Jr., President, Local F-100, International

Association of Fire Fighters, Newport Naval Base,

Newport, Rhode Island. Mr. Evans requests reconsidera-

tion of our decision in Frederick Evans, Jr., B-216640,

March 13, 1985, concerning the computation of pay for

Federal firefighters.

In our prior decision, we held that under the applica-

ble statutes and regulations, federal firefighters are en-

titled to basic pay “or 80 hours biweekly plus premium

pay for standby duty under title 5, United States Code.

We denied the union’s claim that the basic pay of fire-

fighters should be computed on the basis of their 144-

hour tour of duty times their hourly wage. In addition,

we held that absences for annual leave or sick leave do

not constitute “hours of work” under the Fair Labor

Standards Act (FLSA) and, therefore, such absence will

reduce an employee’s overtime entitlement under the

FLSA.

In the request for reconsideration, the union again

argues that their regularly scheduled administrative

workweek is 144 hours but that they are paid for only

80 hours, citing provisions of the Federal Personnel Man-

ual (FPM). The union also argues that the “two-thirds

rule” which permits deduction of eating and sleeping

48a

time is not applicable to firefighters who receive prem-

ium pay for stand-by duty under 5 U.S.C. § 5545(e¢) (1).

Finally, the union cites various provisions of the FPM

stating that overtime shall not be reduced by absences

for annual leave or sick leave.

DISCUSSION

As we stated in our prior decision, we know of no

basis to allow the union’s claim that these employees be

compensated on the basis of their 144-hour tour of duty

times their hourly wage.

Title 5 of the United States Code provides that when

an employee works more than 40 hours in an administra-

tive workweek or more than 8 hours in a day, the em-

ployee shall be compensated by overtime or premium pay.

See 5 U.S.C. §§$ 5542, 5544, and 5545 (1982). We are

unaware of any statute which authorizes the payment of

basic pay in excess of 40 hours in an administrative

workweek.

As we cited in our prior decision, section 5545(c¢) (1)

of title 5, United States Code, provides premium pay up

to 25 percent to an employee ‘“* * * in a position requir-

ing him regularly to remain at, or within the confines of

his station during longer than ordinary periods of duty,

a substantial part of which consists of remaining in a

standby status rather than performing work * * *.” We

also stated that this method of compensating Federal

firefighters has long been recognized in decisions of this

Office and the courts.

The union cites provisions of the FPM which state that

when an employee is paid additional pay under section

5545(¢c)(1), the employee’s regularly scheduled admin-

istrative workweek is the total number of regularly

scheduled hours of duty a week. But the length of the

administrative workweek does not allow the employee

to receive basic pay for hours of work in excess of 40

49a

hours per week. As we stated above, basic pay for pur-

poses of title 5, United States Code, is payable for up

to 40 hours of work per week, and hours in excess of 40

are compensable by means of overtime or premium pay.

Simply put, the hours in excess of 80 hours every two

weeks are being compensated, not by means of basic

pay but rather through premium pay. See 5 C.F.R.

§§ 550.141-550.144. The purpose for establishing the reg-

ularly scheduled administrative workweek is to deter-

mine whether there is irregular, unscheduled overtime

duty in excess of the employee’s regularly scheduled

weekly tour which will be compensated at overtime rates.

See 5 U.S.C. § 5545(¢c) (1), and House Report No. 1870,

85th Cong. 2d Sess., reprinted in 1958 U.S. Code Cong.

& Ad. News 3047, 3048.

With regard to the union’s statement that the two-

thirds rule is not applicable to an employee receiving

premium pay under 5545(¢c) (1), we agree with respect

to the employee’s regularly scheduled workweek. The

provisions of section 5545(¢c) (1) were adopted in 1954

with the intention of replacing the two-thirds rule. See

the discussion in Bean v. United States, 175 F. Supp. 166

(Ct. Cl. 1959). However, the two-thirds rule may still

be applied to a firefighter in determining entitlement to

compensation for irregular overtime in excess of the reg-

ularly scheduled workweek. See Thomas A. Donohue,

B-213886, October 2, 1984, 64 Comp. Gen. 1.

Finally, we note that the union cites various provisions

of the FPM concerning the payment of overtime during

periods of annual leave or sick leave. We agree with

the union that for purposes of title 5, United States Code,

leave with pay such as annuai leave or sick leave is

deemed employment and does not reduce the amount of

overtime pay to which an employee is entitled during an

adminisirative workweek. See 5 C.F.R. § 550.112(ce).

However, these regulations do not govern overtime

computed under different statutory authority, the FLSA.

50a

See 29 U.S.C. §§ 201-219 (1982). Such absences for

leave or holidays do not constitute “hours of work” under

the FLSA. See 5 C.F.R. § 551.401(b). See also Louis

Pohopek, 60 Comp. Gen. 493 (1981); and R. Elizabeth

Rew, 55 Comp. Gen. 1035 (1976). Therefore, we sus-

tain our prior decision that annual or sick leave does

not constitute “hours of work” for the purposes of FLSA

overtime.

Accordingly, for the reasons stated above, we sustain

our prior decision.

‘s/ Milton J. Dorolar

Acting Comptroller General

of the United States

5la

COMPENSATION

Overtime

Firefighting

Two-thirds rule application

COMPENSATION

Overtime

Irregular, unscheduled

Firefighting assignments

COMPENSATION

Overtime

Two-thirds rule application

LABOR-MANAGEMENT RELATIONS

Federal service

Requests for GAO decisions, ete.

COMPENSATION

Overtime

Firefighting

Fair Labor Standards Act

Entitlement

COMPENSATION :

Overtime

Fair Labor Standards Act

Standby, etc. time

Criteria for entitlement

Claim denied

LABOR-MANAGEMENT RELATIONS

Federal service

Requests for GAO decisions, etc.

laa ei

52a

PLAINTIFFS EXHIBIT 1(d)

UNITED STATES CIVIL SERVICE COMMISSION

FEDERAL PERSONNEL MANUAL SYSTEM

LETTER

Washington, D.C. 20415

January 15, 1975

FPM Letter No. 551-5

Subject: Instructions for Applying the Fair Labor

Standards Act (FLSA) to Federal Employees

Engaged in Fire Protection Activities or Law

Enforcement Activities

Heads of Departments and Agencies:

This is another in a series of FPM letters pertaining to

the Fair Labor Standards Act as was mentioned in FPM

Letter 551-1, May 15, 1974.

The Department of Labor regulations for applying the

FLSA to employees engaged in fire protection activities

or law enforcement activities in public agencies under its

administrative authority are contained in part 553 of

title 29, Code of Federal Regulations. The instructions

contained in this FPM Letter pertain to Federal employ-

ees engaged in fire protection activities or law enforce-

ment activities under the administrative authority of the

Civil Service Commission as provided in section 4(f) of

the FLSA, as amended. The contents of this FPM Letter

have been coordinated with the Department of Labor and,

where relevant, common language has been used in the

Commission and the Department of Labor instructions

to ensure the maximum possible uniform application of

the FLSA to all employees in public agencies engaged in

these activities.

53a

1. Introduction

The Fair Labor Standards Amendments of 1974 (Public

Law 93-259) provide a special exemption and a special

overtime provision for employees engaged in fire protec-

tion activities or law enforcement activities under section

13(b) (20) and 7(k) of the Fair Labor Standards Act

(FLSA), as amended.

INQUIRIES:

(1) Bureau of Policies and Standards, Pay Policy

Division, code 101, ext. 25604 or 63-25604 (on

pay entitlements)

(2) Bureau of Policies and Standards, Standards

Division, code 101, ext. 25612 or 63-25612 (on

exemptions and definitions of fire protection ac-

tivities and law enforcement activities )

CSC CODE 551, Pay Administration Under the Fair

Labor Standards Act

DISTRIBUTION: FPM (Advance edition limited)

2. Definitions of “Fire Protection Activities” and “Law

Enforcement Activities

Attachment 1 to these instructions defines the functions

and kinds-of employees included or excluded under the

terms “fire protection activities’ or “law enforcement

activities” as these terms are used in the FLSA.

3. Applicable Provisions of the FLSA

Those provisions of the FLSA that apply to employees

engaged in fire protection activities or law enforcement

activities are contained in attachment to these instruc-

tions. Included in this attachment are the exemptions

provided in the FLSA, the overtime provisions in the

FLSA that apply to these employees, the definition of

“tour of duty” what constitutes “hours of work’ under

_ C—O

54a

the special overtime provision of section 7(k) of the

FLSA, and an explanation of how to compute an em-

ployee’s overtime pay entitlement under section 7(k) of

the FLSA.

4. Applicable Provisions of Title 5, United States Code

Those provisions of title 5 that pertain to employees en-

gaged in fire protection activities or law enforcement

activities are contained in attachment to these instruc-

tions. Included in this attachment is a discussion of the

different overtime pay provisions that apply to these em-

ployees under title and a discussion of the term “tour

of duty” and what constitutes “hours of work” under

title 5.

5. Overtime Pay Entitlements—Title 5 versus FLSA

Title 5 provides Federal employees certain pay entitle-

ments for overtime. Section 7(k) of the FLSA estab-

lishes a minimum standard for entitlement to overtime

pay for employees covered by this special overtime provi-

sion. T— individual application of these laws could re-

sult in different pay treatment for covered employees.

To the extent that the FLSA would provide a greater

overtime pay benefit to these employees than the benefit

payable under title 5 the employee is entitled to the FLSA

benefit. If title 5 provides a greater overtime pay bene-

fit, of course, the employee continues to receive that

benefit.

4. Overtime Pay Computations under Various Work

Schedules

Attachment 4 to these instructions contains examples of

overtime pay computations under various combinations

of work periods and tours of duty. These examples il-

lustrate the method for computing “tours of duty” and

overtime pay entitlements under both title 5 and FLSA,

and the resulting differences in pay treatment for typical

55a

employee situations, and how to determine which statute

(title 5 or FLSA) provides the employee the greater

overtime pay benefit.

/s/ Bernard Rosen

BERNARD ROSEN

Executive Director

Attachments

56a

Attachment 2 to FPM Ltr. 551-5

APPLICABLE PROVISIONS OF THE FLSA

PERTAINING TO EMPLOYEES ENGAGED IN

FIRE PROTECTION ACTIVITIES OR LAW

ENFORCEMENT ACTIVITIES

A. Exemptions Provided in the FLSA

1. General Exemption in Section 13(a)(1) of the

FLSA for Bona Fide Executive, Administrative,

and Professional Employees

Section 13(a)(1) of the FLSA, as amended, which ex-

empts executive, administrative, and professional em-

ployees, applies to employees in fire protection activities

and law enforcement activities on the same basis as it

applies to other occupations. This exemption should be

applied first, to identify any exempt executive, adminis-

trative, or professional employees. Further consideration

is required only for those employees who are non-exempt

under section 13(a) (1) of the FLSA.

2. Special Exemption in Section 13(b)(20) of the

FLSA for Employees of a Public Agency Who

are Engaged in Fire Protection Activities or Law

Enforcement Activities

The FLSA provides special overtime treatment for em-

ployees engaged in fire protection activites or law en-

forcement activities. First, all of these employees were

temporarily exempted from the overtime provisions of

the FLSA for the period May 1, 1974, through December

31, 1974. Second, effective January 1, 1975, this exemp-

tion applies permanently in small agencies having fewer

than five employees engaged in either fire protection

activities or in law enforcement activities. This exemp-

tion is contained in section 13(b) (20) of the FLSA, as

amended. Third, effective January 1, 1975, the law pro-

57a

vides special overtime treatment for employees who are

nonexempt. under section 138(a)(1) of the FLSA and

who are nonexempt under section 13(b)(20) of the

FLSA. This special overtime provision of section 7(k)

of the FLSA, is discussed in B below.

B. Overtime Provisions in the FLSA

1. Special Overtime Provision in Section 7(k) of

the FLSA for Employees Engaged in Fire Pro-

tection Activities or Law Enforcement Activities

Section 7(k) of the FLSA, as amended, provides that

nonexempt employees engaged in fire protection activities

or law enforcement activities shall be compensated at a

rate not less than one and one-half times the regular

rate at which they are employed if their “tour of duty”

exceeds:

a. 240 hours in a work period of 28 days (60 hours

in a work period of seven days or in the case of any work

period between seven and 28 days, a proportionate num-

ber of hours in the work period) beginning January 1,

1975.

b. 232 hours in a work period of 28 days (58 hours

in a work period of seven days or in the case of any

work period between seven and 28 days, a proportionate

number of hours in this work period) beginning January

1, 1976, or

ce. 216 hours in a work period of 28 days (54 hours

in a work period of seven days or in the case of any work

period between seven and 28 days, a proportionate num-

ber of hours in this work period) beginning January 1,

1977, and thereafter; except that if on the basis of sepa-

rate studies to be conducted of the average 1975 duty

hours of fire protection and law enforcement personnel

that these average duty hours are lower than 216 hours

in a work period of 28 days, then these lower duty hours

shall be effective January 1, 1978, and thereafter.

58a

NOTE: This special overtime provision does not require

Federal agencies to reduce the number of hours in the

“tour of duty” for employees in these activities, but re-

quires that agencies compensate these employees at an

overtime rate for all hours in the “tour of duty” that

exceed the maximum hours limitation specified in section

7(k) of the FLSA.

2 Basic Overtime Provision in Section 7(a) of the

FLSA

Nonexempt employees engaged in fire protection activi-

ties or law enforcement activities who are not included

under the special overtime provision of section 7( k) of

the FLSA are entitled to additional compensation for all

hours actually worked in excess of 40 in a workweek

under section 7(a) of the FLSA. The rules for deter-

mining hours of work contained in FPM Letters 551-1

through 551-4 (and subsequent instructions to be issued

by the Civil Service Commission on the FLSA) for em-

ployees subject to the basic overtime provision of the

FLSA shall apply.

C. Tour of Duty and Hours of Work Under Section

7(k) of the FLSA

1. General Statement

In extending the coverage of the FLSA to employees en-

gaged in fire protection activities or law enforcement ac-

tivities, Congress was aware that the work schedules of

these employees vary from the work schedules of other

employees, and clearly recognized that some adjustment

would have to be made in the usual rules for determining

hours of work in their case. Thus, Congress departed

from the standard “hours of work’ concept and adopted

an overtime standard keyed to the length of the “tour of

duty”. In addition, Congress also adopted a new work

period concept which may be used instead of the usual

workweek basis for determining overtime hours.

59a

2. Tour of Duty

The term “tour of duty,” as used in section 7(k) of the

FLSA, means the period during which an employee is on

duty. It may be a scheduled or unscheduled period.

Scheduled periods refer to shifts, i.e., the period of time

which elapses between scheduled arrival and departure

times (as in the case for example, of a firefighter who

has a scheduled 24 hour shift from 8:00 a.m. one morn-

ing until 8:00 a.m. the next morning; or in the case for

example, of a criminal investigator who has a scheduled

eight and one-half hour shift from 8:30 a.m. until 5:00

p.m. the same day), or to scheduled periods outside the

shift (as in the case for example, of a special detail in-

volving crowd control during a parade or other such

event). Unscheduled periods refer to time spent by em-

ployees on duty outside their scheduled shift (for exam-

ple; time spent by firefighters fighting a fire outside their

scheduled shift, time spent by police officers in court out-

side their scheduled shift, time spent by criminal investi-

gators shadowing a suspect in continuation of their

scheduled shift, or time spent by employees after a shift

in order to complete required work). When an employee

is actually on duty fewer hours than those specified in

his scheduled shift, the employee’s tour of duty is re-

duced accordingly.

3. Work Period

a. Establishment of Work Periods. Each agency is

responsible for establishing the work period to be used

for scheduling employees included under section 7(k) of

the FLSA. The work period shall be at least seven days

and not more than 28 days. If an agency establishes a

work period of less than 28 days, the maximum number

of hours in the tour of duty before the requirement to

pay overtime shall be proportionate to the appropriate

maximum number of hours requirement for the 28-day

work period in effect for that calendar year. For exam-

;

60a

ple, during calendar year 1975 the agency may establish

a 28-day work period with 240 hours as the maximum

number of hours before the requirement to pay overtime,

a 14-day work period with 120 hours as the maximum

number of hours before the requirement to pay over-

time, a 7-day work period with 60 hours as the maximum

number of hours before the requirement to pay overtime,

ete.

An agency which uses employees in activities other than

those included in the definitions contained in attachment

1 to perform fire protection or law enforcement duties

during an emergency situation shall apply the seven day

work period for determining the percentage of total

hours worked by these employees in fire protection of law

enforcement duties and for applying the special overtime

provision of section 7(k) of the FLSA.

b. Establishment of a Regularly Scheduled Tour of

Duty. Each agency is responsible for establishing a regu-

larly scheduled tour of duty for the work period for

employees included under section 7‘k) of the FLSA.

An agency may include regularly scheduled overtime in

this tour of duty.

4. Sleeping and Meal Time

a. Duty of 24 Hours or Less. Sleep and meal time

shall not be excluded from hours worked in the case of

any employee engaged in fire protection activities or law

enforcement activities when the employee is required to

be on duty for 24 hours or less.

b. Duty of More Than 24 Howrs. Sleep and meal time

may, however, be excluded in the case of fire protection

or law enforcement employees who are on duty for more

than 24 hours, but only if the employer and the employee

have agreed to exclude this time. In the absence of any

agreement, sleep and meal time shall constitute hours of

work. If, on the other hand, the agreement provides for

6la

the exclusion of sleep time, the amount of this time shall,

in no event, exceed 8 hours, which is also the amount of

time permitted when the agreement fails to specify the

duration of sleep time. If the sleep time is interrupted

by a call to duty, the interruption shall be counted as

hours worked, and if the period is interrupted to such

an extent that the employee cannot get a reasonable

night’s sleep (at least five hours), the entire time shall

be counted as hours of work.

5. General Rules for Hours of Work

The general rules for determining hours of work remain

in effect, except as modified in paragraphs 2 through 4

above. These general rules are contained in FPM Letters

551-1 through 551-4 (and subsequent instructions to be

issued by the Civil Service Commission on the FLSA).

NOTE: The rules for determining tour of duty, work

period, and hours of work in paragraphs 2 through 4

above apply only to employees engaged in fire protection

activities or law enforcement activities under the special

overtime provision of section 7(k) of the FLSA.

6. Of Duty

Periods during which an employee is completely relieved

from duty and which are long enough to enable him to

use the time effectively for his own purposes are not

hours worked. For example, a forest firefighter on the

fireline with a 12-hour alternating shift (12 hours on

duty and 12 hours off duty) who is allowed to return to

base camp after a 12-hour shift on duty and who is not

scheduled for return to duty for a period sufficient

enough to enable him to use the time effectively for his

own purposes, is considered relieved from duty for this

off duty period.

7. Periods of Nonwork

Only those hours that the employee is actually on duty

during the tour of duty shall be included in hours worked

62a

under the FLSA. Paid time off during the work period

(holiday, annual leave, sick leave, or any excused ab-

sence with pay) shall not be included as hours worked.-

D. Computation of Overtime Pay Entitlement—FLSA

1. Computation of “Regular Rate”’—FLSA

An employee’s regular rate of pay must first be deter-

mined in order to compute his overtime pay entitlement

under the FLSA. Section Tie) of the FLSA requires

inclusion in the “regular rate” of “all remuneration for

employment paid to, or on behalf of, the employee” ex-

cept for certain specific exclusions. Premium pay on an

annual basis for regularly scheduled standby duty (5

U.S.C. 5545(¢)(1)) and premium pay on an annual

basis for administratively uncontrollable work (5 U.S.C.

5545(¢)(2)) do not qualify as statutory exclusions from

the “regular rate” and therefore, they are included in

computing an employee’s total remuneration.

The employee’s hourly “regular rate” is then determined

by dividing the employee’s total remuneration for em-

ployment in any work period by the total number of

hours in the employee’s tour of duty under the FLSA

(all hours actually on duty including scheduled and un-

scheduled periods}.

Regular Rate—Total Remuneration of the Work

Period Tour of Duty

The regular rate of pay at which the employee is em-

ployed shall in no event be less than the statutory mini-

mum specified under section 6 of the FLSA. (See attach-

ment 3 to FPM Letter 551-1 for the appropriate mini-

mum wage rates).

2. Computation of Overtime Pay—FLSA

Once an employee’s hourly “regular rate” is determined,

the employee is then entitled to additional compensation

at a rate of one-half times the “regular rate’? for each

63a

hour the employee’s tour of duty exceeds the maximum

hours limitation of section 7(k) of the FLSA.

Additional—':, X Regular Rate X Number of

Overtime Hours Compensation

NOTE: The employee’s additional compensation for

overtime work is computed at one-half times the “regular

rate” and not one and one-half times the “regular rate”

for all overtime hours under the FLSA. A simple ex-

planation is that in computing an employee’s total re-

muneration for the work period, the employee has al-

ready been compensated at 100 percent for all hours in

his tour of duty. Therefore, once the employee’s “regular

rate” is computed, the employee is then entitled to addi-

tional compensation of 50 percent times his “regular

rate” for those hours in excess of the maximum hours

limitation of section 7(k) of the FLSA. This method of

computing an employee’s overtime entitlement under the

FLSA results in the employee being compensated for

overtime work at a rate of “one and one-half times the

regular rate at which he is employed.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.