Last week the Federal Circuit held an en banc session to hear oral argument in Lesko v. United States, a federal employment law case. The case raises questions ultimately asking whether the Office of Personnel Management is authorized to adopt a requirement that any overtime pay be authorized in writing. This is our argument recap.
Dimitrios Korovilas argued for the appellant, Jillian Lesko. He began by asserting “it should not be the law of this country that federal workers who are required to and do perform work are not paid for it.” In particular, Korovilas argued, under the government’s interpretation, “even if your boss expressly orders you to work . . . you actually will not get paid unless the order is reduced to writing.” He emphasized there is “great injustice done to federal workers by the current state of the law.” According to Korovilas, this case requires the “court to recognize that some of its precedents . . . are in conflict and in need of resolution.” A judge, however, questioned Korovilas’s premise, noting that “not every supervisor . . . is imbued with the official authority to approve overtime.” As a result, this judge suggest, “it may be the case” that a boss, even if he or she did order overtime in writing, “wouldn’t actually be able to bind the government to overtime.”
Another judge followed up and focused the argument on whether OPM’s regulation, which requires the order of approval be in writing, is valid or invalid. The judge asked “[w]hy . . . OPM lacks the regulatory authority to define what kind of approvals are required.” In response, Korovilas explained that the statute “says [the overtime work] has to be officially ordered.” As a result, he continued, “OPM can promulgate regulations . . . to the extent that it does not contract a judicial interpretation of the statute.” Korovilas, however, contended the current OPM regulation “contradicts” judicial interpretation. He said that in one case “the court acknowledged that the plain language of the statute was broad enough to encompass both written and oral [orders].”
A judge pointed to a section of the governing statute where, this judge indicated, “Congress said that . . . compensatory time must be approved in writing.” This judge asked Korovilas how this impacts his “argument here that ‘ordered or approved’ might not require writing.” Korovilas answered by arguing “it shows you that when Congress intends to require writing, it knows how to do that.” Moreover, he said, “when Congress intends to use words that encompass both oral and written directives, it can do that as well.” Here, he said, Congress was not silent, but instead “has spoken by using the words ‘officially ordered and approved.'” And, he continued, “it’s the court’s job to say what that means.” He suggested, moreover, that the court has interpreted this language to include “inducement.” A judge questioned Korovilas’s reasoning, indicating “there is nothing in the statute that says inducement.” Korovilas agreed.
A judge explained that Korovilas was asking the court not to follow its precedent because it “was based on Chevron in lieu of Loper.” This judge asked whether the court should “stick to” its precedent. In response, Korovilas admitted “it’s a big ask to deviate from a precedent,” but, he argued, “not only do we have intervening Supreme Court authority from Loper” but also conflicting precedent.
Matthew J. Carhart argued on behalf of the United States. He began by asserting that, “21 years ago,” the Federal Circuit “upheld the OPM regulation at issue in this appeal.” He argued it did so because “the regulation falls within the boundaries of authority delegated by Congress.” He said this “delegation is most clearly expressed” in a statutory provision that “allows OPM to enact rules necessary for the administration of the premium pay status.” At this point a judge asked if the provision is “the source of law that gives OPM . . . the ability to designate who constitutes an official under the statute.” Carhart responded that the section “is the most obvious source” of this power.
Carhart later emphasized “[t]here is an element of formality embedded in” the statutory language “that encompasses not just the identity of the approver, but also the process by which” overtime pay is approved. He also argued that, “from a policy perspective, there is a strong argument for clear rules.”
During his rebuttal, Korovilas argued the case turns on the question of how the phrase “officially ordered or approved” should be interpreted. During his rebuttal, a judge indicated “[t]he statute is just completely silent . . . on the writing requirement.” Korovilas, however, argued OPM does not “have the power to . . . change the definition that the courts have given to the statutory phrase in a way that eliminates a whole category of orders, that, by their very nature, could never have been produced writing.”
We will continue monitoring this case and report on developments.