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

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).

* * *