Last month, the Federal Circuit released its opinion in Lesko v. United States, an en banc case addressing federal employment law. In it, the Federal Circuit reviewed a federal employee’s argument that a writing requirement for overtime approval was not a valid exercise of the Office of Personnel Management’s rulemaking authority. In an opinion authored by Chief Judge Moore, the en banc court concluded that the writing requirement was a valid exercise of OPM’s rulemaking authority. Judge Stoll and three other judges dissented. This is our opinion summary.
Majority Opinion
Chief Judge Moore outlined the relevant statutory and procedural background:
[T]he statute and regulation governing overtime pay for federal employees have existed for eighty years. On June 30, 1945, Congress enacted the Federal Employees Pay Act of 1945 (FEPA or the Act) to ‘improve salary and wage administration in the Federal service” and “to provide pay for overtime.” Included in FEPA was § 201, which provided for overtime compensation. . . In 1954, Congress amended § 201 but made no relevant changes to the “officially ordered or approved” language. In 1966, Congress recodified Title 5 but again made no relevant changes to the “officially ordered or approved” language. . . In addition to providing overtime compensation, FEPA expressly delegated rulemaking authority to administer the Act to the Civil Service Commission . . . Although Congress has amended this statute since it was enacted— including by changing “may be necessary” to “necessary” and substituting “Office of Personal Management” for “Civil Service Commission”—the current version of the statute delegates with similar language . . . On July 4, 1945—four days after Congress enacted FEPA—the Civil Service Commission promulgated regulations, approved by the President, to implement the Act. Regulations under the Federal Employees Pay Act of 1945, 10 Fed. Reg. 8191 (July 4, 1945). Among the initial regulations was § 401(c), which included an overtime writing requirement . . . For the first decade after FEPA was enacted, the Court of Claims . . enforced the writing requirement. That changed in Anderson v. United States . . . when the en banc Court of Claims interpreted ‘officially ordered or approved’ in the overtime statute as including induced overtime and not requiring a writing. . . In Doe v. United States . . . We held ‘the Anderson line of cases is no longer good law’ in light of intervening Supreme Court precedent’ . . . Having concluded the writing requirement was not invalid, we . . . up held it. . . . Ms. Lesko worked as a registered nurse . . . for eight months during the COVID-19 pandemic. . . . During this time, she alleges ‘[s]upervisors and managers regularly and reoutinely required nurses to stay after hours and work without compensation.’ . . . After resigning from IHS, Ms. Lesko filed a complaint for a class action suit, which she amended after the Government moved to dismiss it. . . . In Count II, Ms. Lesko alleges the Government violated the overtime statute by failing to pay . . . for overtime induced by their supervisors. . . . The Government moved to dismiss all counts for failure to state a claim. . . . The Government argued Ms. Lesko . . . [did not have] written authorization for overtime as required by the overtime regulation. . . . A panel of this Court heard oral argument on October 9, 2024. . . . On March 18, 2025, we sua sponte granted en banc hearing and ordered briefing and argument limited to the following issues: a) Considering Loper Bright Enterprises v. Raimondo . . . how should ‘officially ordered or approved’ in 5 U.S.C. § 5542(a) be interpreted? b) Is this a case in which ‘the agency is authorized to exercise a degree of discretion such that OPM has authority to adopt its writing requirement? c) Is there a statutory provision . . . that provides such authority?
Chief Judge Moore’s analysis focused on whether the writing requirement for approval of federal workers’ overtime was a valid exercise of the Office of Personnel Management’s rulemaking authority. She explained that, “[w]hen a reviewing court concludes the best reading of a statute is that is delegates discretionary authority to an agency, the court should uphold the regulation if the delegation is constitutional and the agency engaged in ‘reasoned decisionmaking.’”
Chief Judge Moore then addressed the construction of the statutory phrase “officially ordered or approved.” She noted that “FEMA does not specify what this phrase means, nor does it expressly delegate to OPM the authority to define this phrase.” Additionally, she said, “the statutory text surrounding the phrase does not specify whether overtime . . . must be in writing or how it should otherwise be done.” Thus, Chief Judge Moore looked to the plain meaning of “officially ordered or approved.” On behalf of the court, she concluded that “‘[o]fficially ordered or approved’ overtime is . . . overtime commanded or ratified with proper authorization.” She went on to explain that the phrase “presupposes a process for authorizing overtime with sufficient formalities, but provides no guidance as to the mechanics for that process.” Relatedly, Chief Judge Moore explained that the court did not agree with the government’s argument that the plain language of the statute requires overtime orders and approvals to be in writing. She concluded that “Congress contemplated formalities when it required overtime to be ‘officially ordered or approved,’ but was silent as to the requisite formalities.”
Chief Judge Moore went on to consider Congress’s delegation of rulemaking authority to OPM. She explained that, “[w]hile the overtime statute is silent as to the formalities required . . . FEPA is not silent about who Congress intended to fill in those details.” According to Chief Judge Moore, “Congress delegated rulemaking authority to OPM to ‘prescribe regulations . . . necessary for the administration of this subchapter.” And importantly, she said, “[t]his delegation falls within the type of delegations that provide agencies discretion to regulate.” Moreover, she went on, the delegation to OPM to fill in the details of the authorization process “is also a flexible delegation.” She said “[t]he delegation in this statute is of the type enumerated in Loper Bright that gives agencies discretionary authority to regulate.”
“Because OPM has discretionary authority to regulate the authorization process for overtime,” Chief Judge Moore explained, “OPM has the authority to require that such orders or approvals be in writing so long as it is necessary for administering the overtime statute.”
Chief Judge Moore dismissed Lesko’s argument that, “because the Government functioned in the past without an enforceable writing requirement. . . a writing requirement is not necessary today.” She also dismissed Lesko’s argument that the writing requirement “improperly restricts a statutory right for the sake of ‘budgetary concerns’ and ‘administrative ease.”
The court also considered whether the delegation to OPM–to determine the form an order or approval must take to be properly authorized–was constitutional and reasoned decisionmaking. As to its constitutionality, Chief Judge Moore noted how the “writing requirement does not restrict the scope a substantive right because there is no right to overtime that is not officially authorized.” She went on to say that “Congress regularly delegates authority to agencies to prescribe regulations ‘necessary’ to implement a statutory scheme,” and “agencies regularly prescribe writing requirements.” As to whether the writing requirement is a product of reasoned decisionmaking, Chief Judge Moore found Lesko’s argument that the writing requirement contradicts the overtime statute’s plain language unpersuasive.
Chief Judge Moore concluded by pointing out “two important aspects” of her opinion “that will help federal employees moving forward.” First, she said, “employees now know that overtime must be authorized in writing.” Second, she continued, “supervisors . . . can retroactively approve overtime that was orally ordered by ratifying the overtime in writing.”
As a result of Chief Judge Moore’s analysis, the Federal Circuit affirmed the dismissal of one of the claims in the casee and referred the remainder of the appeal back to the panel for resolution.
Judge Stoll Dissent
Judge Stoll, joined by Judges Reyna, Cunningham, and Stark, dissented. In her dissent, Judge Stoll disagreed with the majority’s determination that “Congress delegated to OPM ‘discretionary authority to determine the formalities required to administer the authorization process for overtime.” She explained her view that “the best meaning of the statutory phrase ‘hours of work officially ordered or approved in excess of 40 hours in an administrative work week’ does not require a writing.”
Judge Stoll argued “Congress knows how to prescribe a writing requirement when it wishes to do so,” and “Congress does not mean what it does not say.” Because Congress included a writing requirement in different section of the same statute, but did not in statute at issue, Judge Stoll argued the court “should not assume Congress intended to allow OPM to impose a writing requirement.” Rather, she said, “Congress’s choice strongly suggests . . . that it did not intend for a writing requirement.”
Judge Stoll went on to say that Loper Bright does not support “delegation to the agency to change the plain meaning of ‘officially ordered or approved.” She said “such purported delegation is not clear or direct, especially in comparison to the exemplary delegations identified in Loper Bright.” According to Judge Stoll, “the best meaning of the statute does not limit orders or approvals to only those made in writing.” Thus, she said, “any delegation . . . must be within this boundary of congressional intent.”
Judge Stoll agreed with the majority in not relying “on the first category of delegation described in Loper Bright: statutes that expressly delegate the authority to give meaning to a statutory term.” She agreed no such delegation applies in the present case. Moreover, she said the “statute on its face allows orders or approvals that are not in writing.”
As to the majority’s analysis of the reasonableness of the policy of requiring a writing, Judge Stoll simply said “judging the reasonableness of policy is not the role of the judiciary.” Anyway, she continued, “the agency’s choice of language cannot override the best meaning of Congress’s chosen language.” “In sum,” Judge Stoll concluded, “it is up to Congress, not OPM, to impose a writing requirement.”