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Date: 08-28-2007

Case Style: ROBERT NIGG; KEITH LEWIS, as ü private attorney generals and on behalf of themselves and all others similarly situated, et al. v. United States Postal Service

Case Number: 05-55650

Judge: M. Margaret McKeown

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Nothern District of California (San Francisco County)

Plaintiff's Attorney:

Daniel A. Osborn, Beatie & Osborn, LLP, New York, New York, for the appellants.

Defendant's Attorney:

Leon W. Weidman and Jason K. Axe, Assistant United States Attorneys, Los Angeles, California, for the appellee.


This appeal principally involves the relationship between two labor statutes - the Fair Labor Standards Act of 1938 and a 1996 statute related to compensation for postal inspectors, 39 U.S.C. § 1003(c). Robert Nigg, a postal inspector1 currently employed by the United States Postal Service ("the Postal Service") and Keith Lewis, a retired postal inspector, sued the Postal Service alleging that the inspectors are entitled to overtime pay under the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. §§ 201-219. The Postal Service does not pay postal inspectors FLSA overtime, instead claiming that their pay is governed by 39 U.S.C. § 1003(c). At issue is whether the compensation provision in § 1003(c) trumps the overtime provisions of the FLSA.

The district court granted summary judgment in favor of the Postal Service, reasoning that 39 U.S.C. § 1003(c), which requires the Postal Service to pay the inspectors on a basis of "comparability" to other similarly tasked executive branch employees, permits the Postal Service to provide "availability pay" rather than FLSA overtime. The court adopted the Postal Service's argument that postal inspectors are comparable to certain other federal law enforcement officers who receive availability pay under the Law Enforcement Availability Pay Act, Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994).

FLSA overtime and availability pay differ significantly, both in terms of the hours of work required to qualify, and the way in which pay is calculated. For example, FLSA overtime entitles a covered employee to overtime pay for all hours worked in excess of 40 hours per week. See 29 U.S.C. § 207(a)(1). In contrast, availability pay requires a covered employee to work an average of two extra hours of overtime per day beyond the eight hour day for the entire year to be entitled to extra pay for the extra hours worked. See, e.g., 5 U.S.C. § 5545a(a)-(d).

FLSA's overtime provisions presumptively apply to federal employees, such as the inspectors, unless a specific FLSA exemption applies. See 5 C.F.R. § 551.202(a) ("Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets one or more of the exemption criteria[.]"). In enacting § 1003(c), Congress did not amend or repeal the FLSA, either explicitly or implicitly. We conclude that § 1003(c) is not clearly in conflict with the FLSA, and that Congress did not impliedly repeal the FLSA. See Moyle v. Dir., Office of Workers' Comp. Programs, 147 F.3d 1116, 1120 (9th Cir. 1998) (" ‘Repeals by implication . . . are not favored and will only be found when the new[er] statute is clearly repugnant, in words or purpose, to the old statute . . . .' ") (quoting Kee Leasing Co. v. McGahan (In re Glacier Bay), 944 F.2d 577, 581 (9th Cir. 1991)). We reverse the district court's grant of summary judgment to the Postal Service and remand with instructions to consider whether the inspectors satisfy any FLSA exemption or are entitled to FLSA overtime.

* * *

In 1938, Congress enacted the FLSA to improve "conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). The FLSA requires most employers to pay "overtime" compensation to employees working more than forty hours per week "at a rate not less than one and one-half times the regular rate." Id. § 207(a)(1). In 1974, Congress amended the FLSA to include all federal, state, and local government employees, and in particular, individuals employed by the Postal Service. See id. § 203(e)(2)(B) (" ‘[E]mployee' means . . . any individual employed by the United States Postal Service . . . .").

The FLSA provides detailed exemptions excluding certain classes of employees from the Act's overtime pay requirements. See id. § 213. For example, § 213(a)(1) exempts "administrative" employees, a matter we address in more detail below. Section 213(b)(20) exempts federal law enforcement officers if the federal agency "employs during the workweek less than 5 employees . . . in law enforcement activities." Id. § 213(b)(20). According to the implementing regulations "in all exemption determinations," employees are "presumed to be FLSA nonexempt." 5 C.F.R. § 551.202.

* * *

In 1994, Congress enacted LEAP, codified at 5 U.S.C. § 5545a, amending FLEPA and ending administratively uncontrollable overtime for most federal law enforcement agents, though some federal agents still receive AUO pay. See Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994). LEAP requires that covered federal law enforcement officers, in addition to their regular work schedule, be available to work an average of two extra hours per day. 5 U.S.C. § 5545a(d)(1). If a law enforcement officer averages two extra hours of availability each work day for the whole year, then the officer is entitled to additional pay in the amount of 25% of the annual base pay. See 5 U.S.C. § 5545a(h).

Because postal inspectors were not included in FLEPA, they were not included in LEAP, which basically sought to revise the FLEPA pay regime. See id. § 2105(e) ("Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Rate Commission is deemed not an employee for purposes of this title."); see also Nigg v. Merit Sys. Prot. Bd., 321 F.3d 1381, 1384 (Fed. Cir. 2003). To protect federal agencies from having to pay law enforcement officers both LEAP and FLSA overtime, Congress amended the FLSA to exempt officers who received LEAP from receiving FLSA overtime. See 29 U.S.C. § 213(a)(16).

* * *

Outcome: AFFIRMED in part; REVERSED in part and REMANDED.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None

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