Doe v. United States

46 Fed. Cl. 399, 6 Wage & Hour Cas.2d (BNA) 462, 2000 U.S. Claims LEXIS 47, 2000 WL 307125
CourtUnited States Court of Federal Claims
DecidedMarch 24, 2000
DocketNo. 98-896 C
StatusPublished
Cited by8 cases

This text of 46 Fed. Cl. 399 (Doe v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doe v. United States, 46 Fed. Cl. 399, 6 Wage & Hour Cas.2d (BNA) 462, 2000 U.S. Claims LEXIS 47, 2000 WL 307125 (uscfc 2000).

Opinion

OPINION AND ORDER

HODGES, Judge.

This is a class action against the United States on behalf of current and former Department of Justice Attorneys. The class claims that its members are entitled to overtime pay or compensatory time off pursuant to The Federal Employees Pay Act, 5 U.S.C. §§ 5542, 5543 and 5545(c)(2). Sections 5542 and 5543 provide that government employees are entitled to premium pay or compensatory time for overtime work that is ordered or approved by an authorized person, with certain exceptions. Perhaps alternatively, plaintiffs argue that § 5545(c)(2) provides premium pay for administratively uncontrollable overtime.

The parties are in the process of deposing attorneys in two test offices to determine the nature of any orders to work overtime or approval of such work by authorized persons. Meanwhile, defendant has filed a motion to dismiss two claims on legal grounds. One of these is plaintiffs’ claim that current or former GS-15, Step 10 employees may be included in the class of attorneys eligible for overtime pay or compensatory time off. The other claim is that Department of Justice attorneys can claim administratively uncontrollable overtime. AUO provides premium pay on an annual basis for employees who incur “substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty____”

For the reasons stated below, we grant defendant’s motion.

DISCUSSION

A. GS-15 Claims

Three sections of the Federal Employees Pay Act control this issue. 5 U.S.C. § 5542 states generally that Federal employees who work overtime are entitled to premi[400]*400urn pay, “except as otherwise provided by this subchapter----”1

5 U.S.C. § 5547 provides that § 5542 does not apply to any person whose aggregate rate of pay during a given pay period would exceed the maximum rate for GS-15 because of premium pay.2

5 U.S.C. § 5543(a) provides that an employee entitled to overtime pay may request compensatory time off instead. Such compensatory time is subject to approval by the appropriate supervisor. However, an employee above GS-10 may receive overtime pay only if the agency permits it; he or she must receive compensatory time if the agency does not permit overtime pay.3 Such person is not entitled to overtime pay to the extent that it would exceed the maximum rate for GS-15 during any pay period.

To simplify further, up to GS-11 a government employee is entitled to overtime pay unless the employee requests compensatory time instead. Employees GS-11 to GS-15/10 are not entitled to overtime pay unless the Agency permits it, but they are entitled to compensatory time in lieu thereof with certain exceptions. GS-15/10 employees and above are not entitled to overtime pay or compensatory time.

Section 5547’s limitation on premium pay is absolute as it applies to GS-15/10 and above. Compensatory time is not an alternative to overtime pay at those levels. The purpose of § 5543 is to provide compensatory time in lieu of overtime pay to which an employee otherwise is entitled pursuant to § 5542. Section 5547 employees are not entitled to any pay pursuant to § 5542. Any employee who is not covered by § 5542 cannot be covered under § 5543.

We must interpret statutes in such a way as to give effect to all of the provisions if possible. United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (“settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect.”) The three sections discussed above establish a reasonable hierarchy of pay levels: below GS-11, GS-11 through GS-15/9, and GS-15/10 and above. This scheme is logical and understandable. It is consistent and coherent. Employees below GS-11 are entitled to cash for overtime but may request compensatory time instead. Middle range employees are not entitled to cash unless the Agency permits it, but they must receive compensatory time in lieu. Higher level employees are not entitled to overtime or compensatory time.

Section 5547 states that employees whose payment during any pay period would exceed the GS-15/10 level because of overtime are not entitled to payment beyond that level. If we determine that the other requirements of “ordered and approved” are met, the parties must assist the court in determining the extent to which individuals qualifying for overtime pay or compensatory time under § 5542 and § 5543(a)(2) may have exceeded this limit during a given pay period and how such information may be calculated in the context of a class action.

[401]*401B. Administratively Uncontrollable Overtime

Defendant moved to dismiss plaintiffs’ claims for Administratively Uncontrollable Overtime contending that the Agency head has discretion to determine whether to authorize AUO payments. Plaintiffs allege that 5 U.S.C. § 5545(c)(2) provides an absolute right to overtime payments for attorneys who meet the statutory requirements.

Section 5545(c)(2) states:

The head of an agency, with the approval of the Office of Personnel Management, may provide that—
an employee in a position in which the hours of duty cannot be controlled administratively, and which requires substantial amounts of irregular, unscheduled overtime duty with the employee generally being responsible for recognizing, without supervision, circumstances which require the employee to remain on duty, shall receive premium pay for this duty on an annual basis instead of premium pay provided by other provisions of this subchapter, except for regularly scheduled overtime, night, and Sunday duty, and for holiday duty.

The discretion to determine whether an employee will be provided premium pay under this section rests with the head of the Agency, with the approval of the Office of Personnel Management. Both agencies must exercise discretion in deciding whether an employee is entitled to AUO pay pursuant to this statute.

The Attorney General issued DOJ Order 1551.4A, which “establishes policy and procedures governing the payment of premium pay on an annual basis for administratively uncontrollable overtime____” The Order at paragraph 6 sets forth criteria for determining which positions are eligible for AUO pay. Paragraph 7 of the Order describes the authorized positions:

Premium pay under this order may be paid to eligible employees assigned to the classes of positions listed in Appendix 1 to this order.

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Cite This Page — Counsel Stack

Bluebook (online)
46 Fed. Cl. 399, 6 Wage & Hour Cas.2d (BNA) 462, 2000 U.S. Claims LEXIS 47, 2000 WL 307125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doe-v-united-states-uscfc-2000.