Only one case scheduled for oral argument in September attracted an amicus brief. That case is an employment law case, Lesko v United States. It raises questions concerning how “officially ordered or approved” in 5 U.S.C. § 5542(a) should be interpreted after Loper Bright Enterprises v. Raimondo, and ultimately whether the Office of Personnel Management is authorized to adopt a requirement that any overtime pay be authorized in writing. After a panel of the court heard oral argument, the court voted sua sponte for en banc consideration. This is our argument preview.
When the Federal Circuit granted en banc status, it identified the following questions for the parties to address in subsequent briefing:
- “Considering Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), how should ‘officially ordered or approved’ in 5 U.S.C. § 5542(a) be interpreted?”
- “Is this a case in which ‘the agency is authorized to exercise a degree of discretion’ such that the Office of Personnel Management (‘OPM’) has authority to adopt its writing requirement? Loper, 603 U.S. at 394.”
- “Is there a statutory provision (e.g., 5 U.S.C. §§ 1104, 5548) that provides such authority?”
In Lesko’s en banc opening brief, Lesko argues that, in “light of the Supreme Court’s decision in Loper,” the Federal Circuit should interpret “’officially ordered or approved’ . . . as encompassing Ms. Lesko’s inducement theory of overtime.” Lesko contends the “plain meaning of the statute unambiguously supports” her interpretation, and that the government conceded this point “at initial oral argument.” Lesko maintains the Federal Circuit’s precedent rejecting an inducement theory, Doe, was decided under Chevron, and, since “Chevron is gone, Doe should as well.” Furthermore, Lesko argues that no constitutionally delegated authority “specifically authorizes OPM to define the term ‘officially ordered or approved’” or to otherwise adopt a requirement that overtime be authorized in writing.
In its en banc response brief, the United States argues the Federal Circuit should hold “that the writing requirement contained in 5 C.F.R. § 550.111(c) is a valid construction of the ‘officially ordered or approved’ language in 5 U.S.C. § 5542(a).” The government contends that, “[b]y declining to specify how overtime must be ordered or approved . . . Congress left it to OPM to ‘fill up the details of the statutory scheme.’” The government maintains that statutory interpretation principles “long applied by the courts” provide “further support” for the OPM’s construction. Finally, it rejects Lesko’s proposed standard because it “invites problems of administration.”
In her en banc reply brief, Lesko argues that “Federal workers should be paid for the overtime that they are required to, and do, perform.” She suggests “[t]he government’s arguments to the contrary propose a standard of agency deference that would essentially be a return to Chevron, which Loper overruled.”
The Chamber of Commerce of the United States filed an amicus brief in support of neither party. The brief argues, that under the precedent set by Loper Bright, “courts must exercise their independent judgment when it comes to the meaning of statutes that govern federal agencies.” The Chamber of Commerce argues this means “courts must conduct de novo review and use all the traditional tools of statutory interpretation to arrive at the ‘best’ reading of the statute,” and that determining the meaning of “officially ordered or approved” in this case “requires this Court to exercise its independent judgment under Loper Bright.”
Oral argument is scheduled for Friday, September 12, 2025, at 10:00 am in Courtroom 201.
We will keep track of this case and report on any developments.