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Mercier v. United States

United States Court of Appeals, Federal Circuit

May 15, 2015

STEPHANIE MERCIER, AUDRICIA BROOKS, Plaintiffs-Appellants
v.
UNITED STATES, Defendant-Appellee

Appeal from the United States Court of Federal Claims in No. 1:12-cv-00920-EDK, Judge Elaine Kaplan.

REVERSED IN PART AND REMANDED.

DAVID M. COOK, Cook & Logothetis, LLC, Cincinnati, OH, argued for plaintiffs-appellants. Also represented by CLEMENT L. TSAO, CLAIRE W. BUSHORN.

JESSICA R. TOPLIN, Commercial Litigation Branch, Civil Division, United States Department of Justice. Washington, DC, argued for defendant-appellee. Also represented by SHELLEY D. WEGER, JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES, JR.; GIA M. CHEMSIAN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before WALLACH and CLEVENGER, Circuit Judges, and FOGEL, District Judge.[*]

OPINION

Page 972

Clevenger, Circuit Judge.

In a final decision dated February 27, 2014, the United States Court of Federal Claims dismissed the complaint of certain nurses employed by the Department of Veterans Affairs (" the agency" ). The nurses claimed entitlement to overtime pay under a statutory provision which requires the agency to compensate " officially ordered or approved" overtime work. 38 U.S.C. § 7453(e)(1). The trial court dismissed the nurses' claim because they did not allege that the agency " expressly directed" their overtime. Mercier v. United States, 114 Fed.Cl. 795, 802 (2014). Because the court erred in requiring that the nurses' overtime be officially ordered or approved by express direction to be compensable, we reverse and remand the case for further proceedings. That result renders moot the nurses' separate claim that they are entitled to at least basic pay for overtime hours worked.

I

This case turns on the interpretation of the words " officially ordered or approved" in 38 U.S.C. § 7453(e)(1), the statute which provides overtime pay for nurses employed by the Department of Veterans Affairs. The statute does not require the official order or approval to be in any particular form, and the agency has not enacted any regulation interpreting the statute as mandating any particular procedure that must be followed to qualify for overtime pay.[1]

Page 973

The agency asserts, and we agree as a matter of statutory interpretation, that the words " officially ordered or approved" in § 7453(e)(1) should have the same meaning as the same words which appear in the Federal Employee Pay Act (FEPA), 5 U.S.C. § 5542(a), which authorizes overtime pay generally for federal employees not covered by other specific statutes, such as § 7453(e)(1). Appellee's Br. at 14.

Substantially the same regulation has applied to FEPA's overtime provision since shortly following its enactment in 1945. In its present form, the regulation requires that overtime work " may be ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated." 5 C.F.R. § 550.111(c); see also 10 Fed. Reg. 8191, 8194 (July 4, 1945) (original regulation). We refer to this as the " writing regulation" or the " OPM regulation" after the agency that most recently enacted it. See 5 U.S.C. § 5548.

A

The words " officially ordered or approved" in FEPA have long been interpreted by the Court of Claims, one of our predecessor courts, the decisions of which bind panels of this court. South Corp. v. United States, 690 F.2d 1368, 1370 (Fed. Cir. 1982) (en banc).

For the first decade after the enactment of FEPA, the Court of Claims enforced the regulation's requirement that approval be " in writing." Thus, Gaines v. United States, 131 F.Supp. 925, 132 Ct.Cl. 408 (1955) held that overtime had to be " ordered or approved" in compliance with the regulation to be compensable: " any claim must be based upon the performance of overtime services which were expressly authorized or approved in writing" by an authorized official. Id. at 412-13. Prior to Gaines, the court twice approved of the requirement in dicta. In Post v. United States, 121 Ct.Cl. 94 (1951), the court called the writing regulation " a necessary safeguard against subjecting the Government to improper expense." Id. at 99. In Tabbutt v. United States, 121 Ct.Cl. 495 (1952), it remarked that a supervisor's signature approving daily time reports " could hardly be said to take the place of an order for these men to work overtime, or of an approval of their claim to compensation for having done so." Id. at 498, 505.

The Court of Claims' treatment of the regulation changed in Anderson v. United States, 136 Ct.Cl. 365 (1956).[2] The agency in Anderson had " induced" employees to work overtime but, in order to escape compensating them for that time, had not ordered or approved the overtime in writing. Id. at 370-71.

Anderson held that overtime that is " induced," but not explicitly required, is nonetheless " ordered or approved" under FEPA. Id. at 370. Further, the court held, the writing regulation could not limit the scope of that substantive right to overtime pay. " The writing was required by the regulations, not by the statute," it explained. " The withholding of written orders or approval reflected observance of the letter of the regulation but denial of

Page 974

the substance of the statute." Id. at 370-71. The court concluded that the statutory " mandate to pay additional compensation for overtime hours, when the work was . . . officially ordered or approved," including by inducement, was " overriding," and compensation for such work was therefore " mandatory." Id. at 371.

For more than forty years following Anderson, the Court of Claims and its successor courts applied Anderson 's holdings that " induced" overtime is " ordered or approved" under FEPA, and that the writing regulation does not limit the statutory right to compensation for such time.

Two early leading cases applying Anderson were Adams v. United States, 162 Ct.Cl. 766 (1963) and Byrnes v. United States, 330 F.2d 986, 163 Ct.Cl. 167 (Ct. Cl. 1963). Adams compensated overtime that was " induce[d]" by an agency whose supervisors " knew and approved of this overtime, and in effect authorized it," but withheld written authorization. 162 Ct.Cl. at 768-69. Byrnes explained that regulations requiring written authorization of overtime " cannot avoid the plain requirements of the statute for overtime pay when the performance of this overtime is induced by the Government, as it was in Anderson, . . . and in this case." 330 F.2d at 989-90.

Later cases in the Anderson line considered the boundaries of what constituted " order or approval" by inducement. Thus, the court held that an employer's " mere knowledge" that an employee is working overtime, without inducement or written approval, is not enough to order or approve that work. Bilello v. United States, 174 Ct.Cl. 1253, 1258 (1966). Likewise, a " tacit expectation" that employees show up five minutes earlier than ordered did not show that employees were induced to work overtime. Albright v. United States, 161 Ct.Cl. 356, 361 (1963). Where there was " more than only a 'tacit expectation'" but less than an express directive to work overtime, the court asked whether the overtime was " induced." Baylor v. United States, 198 Ct.Cl. 331, 359-60 (1972).

By the early 1970s, in the Court of Claims' words, Anderson and its progeny had " firmly established" that employees could recover under FEPA for overtime their employers had induced but not expressly ordered. McQuown v. United States, 199 Ct.Cl. 858, 866 (1972); see Baylor, 198 Ct.Cl. at 359-60 (applying Anderson and holding that employer had induced overtime); Fix v. United States, 368 F.2d 609, 613, 177 Ct.Cl. 369 (Ct. Cl. 1966) (applying Anderson and holding that an agency could not prohibit compensating overtime that was " required or induced by responsible officials" ); Bantom v. United States, 165 Ct.Cl. 312, 318 (1964) (applying Anderson and finding that overtime was not induced where employees " voluntarily came to work earlier than required" in order to get ready there rather than at home); Rapp v. United States, 340 F.2d 635, 644-45, 167 Ct.Cl. 852 (Ct. Cl. 1964) (applying Anderson and compensating induced overtime because the agency " could not--by arbitrarily characterizing the [overtime] as 'voluntary'--abrogate plaintiffs' rights under the statute" ); Gaines v. United States, 158 Ct.Cl. 497 (1962), cert. denied, 371 U.S. 936, 83 S.Ct. 309, 9 L.Ed.2d 271, 159 Ct.Cl. 614 (1962) (explaining that Anderson " allow[s] recovery [for overtime] even though there may have been no express order, authorization, or approval, and the administrative officials have refused to characterize the work as 'overtime" ); Gray v. United States, 136 Ct.Cl. 312, 313 (1956) (in a case decided the same day as Anderson, denying an overtime claim because plaintiff was not " induced or directed by his superiors directly or indirectly by writing or otherwise to work overtime" ). Judge Skelton twice

Page 975

dissented on the basis that the overtime was not ordered or approved in writing by an authorized official as the regulation required, but his view never gained a majority. Baylor, 198 Ct.Cl. at 371 (Skelton, J., dissenting); Anderson v. United States, 201 Ct.Cl. 660, 671-72 (1973) (Skelton, J., dissenting).

Then, the Supreme Court decided Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam) ( Hansen ) and Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) ( Richmond ), neither of which dealt with FEPA. As we discuss below, this court later held that the rationale of these cases overruled Anderson 's holding that the writing regulation was invalid.

Plaintiff in Hansen sought certain benefits under the Social Security Act. The Act extended benefits only to one who " has filed application," 42 U.S.C. § 402(g)(1)(D), and a regulation required the application to be in writing, 20 C.F.R. § 404.602 (1974). When plaintiff asked a Social Security Administration field representative if she was eligible for a certain benefit, the representative erroneously told her that she was not, and she delayed in filing her application in reliance on that advice. Upon later learning she was eligible, plaintiff filed an application, and sought back payments based on the date of her oral application to the field representative. 450 U.S. at 786-87.

The Second Circuit held that the government was estopped from denying plaintiff benefits retroactive to her oral application. It reasoned that she was " substantively eligible" for benefits and had simply failed to fulfill a " procedural requirement," and held that under such circumstances the field representative's conduct estopped the government from applying the writing requirement. Hansen v. Harris, 619 F.2d 942, 948 (2d Cir. 1980), rev'd sub nom. Schweiker, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685.

The Supreme Court reversed. It reasoned that the field representative's error did not remove " the duty of all courts to observe the conditions defined by Congress for charging the public treasury." Hansen, 450 U.S. at 788-89 (quoting Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385, 68 S.Ct. 1, 92 L.Ed. 10 (1947)). The Court therefore rejected the Second Circuit's conclusion that plaintiff could show estoppel against the government because she was substantively eligible for benefits and simply failed to satisfy a procedural requirement. It held:

Congress expressly provided in the Act that only one who " has filed application" for benefits may receive them, and it delegated to [the Secretary of Health and Human Services] the task of providing by regulation the requisite manner of application. A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits.

Id. at 790.

Plaintiff in Richmond was the recipient of a federal disability annuity. When he sought advice about increasing his work hours while retaining the annuity, federal employees twice gave him erroneous information based on a prior version of the relevant statute. In reliance on that information, plaintiff increased his hours beyond the limits set by the then-current statute and lost six months' worth of benefits. 496 U.S. at 416-18.

The Supreme Court rejected plaintiff's claim that the government was estopped from denying him those benefits. The parties had agreed that plaintiff sought

Page 976

benefits to which he was not entitled under the statute. Id. at 424. The Court therefore held that the Appropriations Clause of the Constitution, under which " 'no money can be paid out of the Treasury unless it has been appropriated by an act of Congress,'" prevented plaintiff's recovery of benefits to which he was not entitled by statute. Id. (quoting Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 81 L.Ed. 1122, 1937-1 C.B. 317 (1937)). " [T]he equitable doctrine of estoppel cannot grant respondent a money remedy that Congress has not authorized," the Court explained. Id. at 426.

Meanwhile, the Claims Court and then the Court of Federal Claims, successors to the Court of Claims' trial division, continued to apply Anderson 's holdings that overtime can be " ordered or approved" under FEPA by inducement, and that the writing regulation is inoperative so far as it limits that right. See Crowley v. United States, 53 Fed.Cl. 737, 789-90 (2002), aff'd in part on other grounds, rev'd in part on other grounds, 398 F.3d 1329 (Fed. Cir. 2005); Buckley v. United States, 51 Fed.Cl. 174, 217-18 (2001), aff'd in part on other grounds, rev'd in part on other grounds sub nom. Crowley, 398 F.3d 1329[3] Hannon v. United States, 29 Fed.Cl. 142, 149 (1993); DeCosta v. United States, 22 Cl.Ct. 165, 176 (1990), aff'd on other grounds, 987 F.2d 1556 (Fed. Cir. 1993); Manning v. United States, 10 Cl.Ct. 651, 663 (1986); Bennett v. United States, 4 Cl.Ct. 330, 337 (1984). See also Bowman v. United States, 7 Cl.Ct. 302, 308, 308 n.6 (1985) (applying Anderson to a different provision of FEPA the court considered " analogous" ).

A claim to FEPA overtime under § 5542, which contains the " officially ordered or approved" language, first came before this court in Doe v. United States, 372 F.3d 1347 (2004). Plaintiffs in that case were a class of Department of Justice attorneys who sought compensation for overtime hours they alleged that they had been induced, but not explicitly ordered, to perform. Id. at 1349-50.

The Court of Federal Claims granted summary judgment for plaintiffs on the issue of liability, holding that although the overtime had not been ordered " in writing" as required by the regulation, under Anderson plaintiffs were nevertheless entitled to pay if they could prove the overtime was " officially ordered or approved" through inducement. Doe v. United States, 54 Fed.Cl. 404, 410, 414-18 (2002). The United States petitioned for interlocutory appeal in order to decide whether overtime hours may be " officially ordered or approved" under § 5542 of FEPA without meeting the writing regulation's requirements, and this court granted its petition. Doe v. United States, 67 F.App'x 596, 597 (Fed. Cir. 2003).

On appeal, this court reversed. Doe, 372 F.3d 1347. We first held that the rationale of Hansen and Richmond overruled Anderson 's holding that the writing regulation could not limit the substantive scope of the statutory right to compensation for overtime that was " officially ordered or approved." To the extent that the Anderson cases held the writing regulation was invalid because it added a procedural requirement, we explained, they are directly contradicted by Hansen 's holding that " [a] court is no more authorized to overlook the valid regulation requiring that applications be in writing than

Page 977

it is to overlook any other valid requirement for the receipt of benefits." Id. at 1354-56 (quoting Hansen, 450 U.S. at 790). To the extent that the Anderson cases imposed liability on the government for equitable reasons, we held they were contradicted by Richmond 's holding that equitable considerations cannot grant a money remedy Congress has not authorized. Id. at 1356-57 (citing Richmond, 496 U.S. at 426).

We therefore held:

[T]o the extent that the Anderson line of Court of Claims cases held that the Civil Service Commission was without authority to impose a " procedural" written order requirement because it restricted the substantive scope of the overtime statute or because of equitable considerations, they are inconsistent with Hansen and Richmond. In light of Hansen and Richmond, we are compelled to hold that the Anderson line of cases is no longer good law and that the written order requirement is not invalid on the ground that it imposes a procedural requirement that limits the right to overtime compensation under the statute or because it is inequitable.

Id. at 1357.

Having determined that the writing regulation could not be disregarded, we next considered whether it was entitled to Chevron deference. Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Because the phrase " ordered or approved" is ambiguous as to whether the order or approval must be in writing or may instead be oral, our analysis proceeded to step two. Doe, 372 F.3d at 1358-59.

At Chevron step two, we held that the writing regulation is a reasonable interpretation of FEPA's " officially ordered or approved" requirement. The regulation was enacted pursuant to express congressional authorization to engage in rulemaking, which is " a very good indicator" that Chevron deference is warranted. Id. at 1359 (quoting United States v. Mead Corp., 533 U.S. 218, 229, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)). Plaintiffs therefore bore the burden of showing that the writing regulation was " arbitrary or otherwise unreasonable." Id. (quoting Koyo Seiko Co. v. United States, 258 F.3d 1340, 1347 (Fed. Cir. 2001)).

Doe held that plaintiffs had not met their burden of proving the regulation was unreasonable because the writing requirement " does not contradict the language of FEPA." Id. at 1360. We reasoned that the writing requirement does not contradict the statute's plain text: the statute's limitation to " officially ordered or approved" overtime " in and of itself is not at odds with the regulation's writing requirement, nor does it suggest that inducement is sufficient to constitute official order or approval." Id. On this point, we distinguished the corresponding provision of the Fair Labor Standards Act of 1938 (FLSA), which applies generally to non-government employees. An employee is entitled to overtime pay under FLSA if the employer " suffer[s] or permit[s]" overtime work, a broad category that can include overtime about which the employer has mere knowledge, as well as induced overtime. 29 U.S.C. § 203(g); Doe, 372 F.3d at 1360-61. That FEPA's " officially ordered or approved" language is narrower, we reasoned, suggests that it does not require compensating all overtime that is " suffer[ed] or permit[ted]." Id. Finally, we reasoned that the writing requirement served one of FEPA's purposes, namely, " to control the government's liability for overtime," and noted that other purposes include, for example, " ensuring that employees receive[] overtime compensation."

Page 978

Id. at 1361. We concluded that the writing regulation was entitled to Chevron deference, Id. at 1362, and reversed the grant of summary judgment on liability for plaintiffs because they had failed to show it was satisfied, Id. at 1364.

B

Plaintiffs in this case are two individuals and a putative class of registered nurses currently or formerly employed by the agency under Title 38. They contend that the agency denied them overtime pay to which they were entitled under 38 U.S.C. § 7453, which requires the agency to compensate nurses for " officially ordered or approved" overtime work. 38 U.S.C. § 7453(e)(1).

The nurses allege that they were required to work overtime on a " recurring and involuntary basis" in order to perform tasks known as View Alerts, which the nurses describe as time-sensitive requests for information related to patient care. Compl. ¶ ¶ 15, 17. They allege that agency personnel with the authority to order or approve overtime had " knowledge" the nurses were working overtime, and in fact " expected, required, and induced" that work. Id. at ¶ 17. The nurses add that the agency subjected nurses who failed to timely complete View Alerts to enhanced scrutiny and greater risk of disciplinary action, Id. at ¶ 18, continued to increase the volume of View Alerts assigned despite knowing that nurses were unable to complete them during regular hours, Id. at ¶ ¶ 19, 20, and responded to nurses' requests for compensation inadequately or inconsistently, Id. at ¶ ¶ 21-24.

The Court of Federal Claims dismissed the nurses' claim to overtime under § 7453 for failure to state a claim on which relief could be granted. Mercier v. United States, 114 Fed.Cl. 795 (2014). It noted that the nurses' allegations, if proven true, " would likely suffice to establish precisely the sort of 'inducement'" to work overtime that the Anderson line of cases held was sufficient to constitute " order or approval" of overtime under FEPA. Id. at 801-02. Because § 7453 of Title 38 and § 5542 of FEPA have identical language in that respect, Id. at 801, the court recognized that the key issue before it was whether the Anderson standard regarding inducement remains good law following this court's decision in Doe. Id. at 802.

The Court of Federal Claims concluded that Doe had overruled Anderson in its entirety and therefore that, following Doe, " entitlement to overtime pay is triggered only when an authorized VA official has, either verbally or in writing, expressly directed" specified overtime work or approved pay for it after the fact. Id. It pointed to Doe 's two bases for overruling Anderson: first, to the extent Anderson and its progeny held the writing regulation invalid simply because it added an extra procedural requirement, Hansen overruled that holding; and second, to the extent the Anderson cases used equitable considerations to hold the government liable for overtime it had induced, both Hansen and Richmond undermined their reasoning. Id. at 802-03 (citing Doe, 372 F.3d at 1354-57).

The Court of Federal Claims did not analyze whether Hansen or Richmond affected more than the writing regulation under FEPA. Nor did it consider whether a panel of this court could overrule binding precedent on an issue not disturbed by intervening Supreme Court or en banc authority.

Because the nurses had alleged that they were " induce[ d]" to work overtime but not that their overtime was " expressly directed," the court dismissed their claim. Id. at 805. The nurses timely appealed,

Page 979

and we have jurisdiction under 28 U.S.C. § 1295(a)(3).

II

On appeal, the nurses argue that Doe did not overrule Anderson's interpretation of the statutory phrase " officially ordered or approved," and in fact could not have overruled that holding on the authority of Hansen and Richmond. They do not contest that Doe held Hansen and Richmond overruled Anderson so far as it invalidated the FEPA writing regulation, either as a procedural limit on the substantive right granted by the statute, or for equitable reasons. Instead, the nurses correctly contend that holding is not relevant to their case, because no procedural regulations interpret the Title 38 overtime provision, and they seek no relief by way of equity.

Presumably because the claimant in Richmond sought benefits that the statute concededly did not provide, 496 U.S. at 424, the nurses focus their arguments on Hansen. They contend that Hansen is not relevant to whether induced overtime is " officially ordered or approved" under FEPA. Specifically, the nurses note that Hansen concerned an entirely different statutory scheme, and did not interpret that statute, much less determine whether it included inducement. Hansen turned instead entirely on the validity of the different writing regulation it considered, making it irrelevant to Anderson 's statutory interpretation. The nurses conclude that Doe could not have held that Hansen overruled Anderson 's interpretation of FEPA. Further, no en banc decision of this court has interpreted FEPA's " ordered or approved" language to exclude order or approval by way of inducement.

To the extent that Doe can be read to consider the " inducement" standard, the nurses argue that its statements are dicta or not relevant here. They argue that Doe interpreted FEPA only so far as was necessary to find that the writing regulation was not unreasonable at Chevron step two. It follows that Doe 's statement that FEPA " does [not] suggest that inducement is sufficient to constitute official order or approval," 372 F.3d at 1360, considered a question that was not directly before the court.

The nurses conclude that Anderson 's interpretation of the phrase " officially ordered or approved" in FEPA survives Hansen and Richmond, and thus Doe, too. Because Title 38's provision for nurse overtime was enacted in 1991, following decades of consistent application of the Anderson standard by the Court of Claims and its successors, the nurses contend that we should consider Congress to have intended the same interpretation to apply to § 7453. PL 102-40, May 7, 1991, 105 Stat. 187. They therefore ask us to hold that the Court of Federal Claims erred in dismissing their complaint for failure to allege an " express directive" to work overtime, when they alleged " inducement" that would have sufficed under the Anderson standard.

III

The government agrees that the phrase " officially ordered or approved," as it appears in § 7453, should carry the same meaning as the same language in FEPA. Appellee's Br. at 14; Oral Argument at 29:00-29:30.

It argues that the phrase " officially ordered or approved" in FEPA requires an express directive to work overtime. For support, the government relies on Doe 's statement that the phrase " officially ordered or approved" in FEPA " does [not] suggest that inducement is sufficient to

Page 980

constitute official order or approval," which it characterizes as a holding. 372 F.3d at 1360.

When asked at oral argument how the Doe court had the authority to overrule Anderson 's interpretation of FEPA, the government responded that Hansen had undermined Anderson 's rationale for adopting the inducement standard. Oral Argument at 30:30. It could not, however, point to any language in Hansen in support of this view. Specifically, the government could not identify any part of Hansen that is relevant to Anderson 's interpretation of FEPA, including its holding that overtime may be " ordered or approved" through inducement. Id. at 24:30. The government did not argue that Richmond overruled Anderson 's statutory interpretation, nor could it, because plaintiff in Richmond agreed he sought a right the statute did not grant. 496 U.S. at 424.

IV

We review de novo the Court of Federal Claims' dismissal of a complaint for failure to state a claim upon which relief may be granted. Hearts Bluff Game Ranch, Inc. v. United States, 669 F.3d 1326, 1328 (Fed. Cir. 2012). In so doing we must presume that the facts are as the complaint alleges and draw all reasonable inferences in the plaintiff's favor. Gould Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991). To avoid dismissal, a complaint must allege facts " plausibly suggesting (not merely consistent with)" a showing of entitlement to relief." Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007)).

A

As Doe recognized, Court of Claims decisions bind this court unless they are overruled by intervening Supreme Court authority or by this court en banc. Doe, 372 F.3d at 1354; see also Tex. Am. Oil Corp. v. United States Dep't of Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc); S. Corp. v. United States, 690 F.2d 1368, 1370-71, 1370 n.2 (Fed. Cir. 1982) (en banc); Bankers Trust N.Y. Corp. v. United States, 225 F.3d 1368, 1373 (Fed. Cir. 2000).

The government has failed to present any Supreme Court or en banc precedent overruling the Court of Claims' holding, in Anderson and its progeny, that overtime the government induces its employee to perform is " ordered or approved" under FEPA and must be compensated if that Act's other requirements are met. Anderson, 136 Ct.Cl. at 370.

Neither Hansen nor Richmond has any relevance to Anderson 's interpretation of FEPA, and the government points to no other binding authority in support of its argument. Both Hansen and Richmond denied the plaintiff's claim of entitlement under principles of equity to a benefit otherwise denied the plaintiff by a valid regulation (in Hansen ) or statute (in Richmond ). Those cases reached this result based on the principle that it is " the duty of all courts to observe the conditions defined by Congress for charging the public treasury." Hansen, 450 U.S. at 788; Richmond, 496 U.S. at 420; see also Koyen v. Office of Pers. Mgmt., 973 F.2d 919 (Fed. Cir. 1992) (citing Hansen and Richmond and noting that " [t]he Supreme Court has left no doubt" of that principle). The issue here is not whether the nurses are entitled to a payment from the public treasury without Congressional authorization. It is clear that Congress, in both § 5542 of FEPA and § 7453 of Title 38, did authorize the payment of " officially ordered or approved"

Page 981

overtime work. Instead, the question Anderson decided when it interpreted the FEPA provision, and the question before us now with respect to § 7453, is whether plaintiffs' overtime is within the scope of the statutory grant. Neither Hansen nor Richmond bear on that question, all the more so because they arose under different statutory schemes.

In the absence of authority from the Supreme Court, this court could only overrule the " inducement" aspect of the Anderson line of cases were we to sit en banc. George E. Warren Corp. v. United States, 341 F.3d 1348, 1351-52 (Fed. Cir. 2003) (" [T]o overrule a precedent, this court must rule en banc." ); see also Fed. Cir. Rule 35(a)(1) (" only the court en banc may overrule a binding precedent" ). It follows, of course, that neither this panel nor the Doe court could overrule Anderson 's interpretation that inducement satisfies FEPA's " officially ordered or approved" requirement.

The government's reliance on Doe 's statement to the effect that the phrase " ordered or approved" does not necessarily include induced overtime is therefore misplaced. 372 F.3d at 1360. As discussed, the Doe court did not have the authority to overrule Anderson 's statutory interpretation. Nor did it try to do so. That statement was made in the course of determining whether the writing regulation was a reasonable interpretation of FEPA entitled to Chevron deference. Id. The court made it simply by way of concluding that requiring a written order does not contradict FEPA's plain text. Id.

The rest of Doe' s discussion of inducement comes in the context of distinguishing FEPA's " ordered or approved" standard from the more liberal " suffer or permit" standard of FLSA. 372 F.3d at 1360-61. FLSA's standard compensates overtime work which the employer merely " knows or has reason to believe" the employee is performing, as well as overtime the employer induces. 29 C.F.R. § 785.11 (2015); see also Doe, 372 F.3d at 1360-61. The Doe court correctly concluded that FEPA's use of the narrower phrase " ordered or approved" suggests that its coverage is not so broad as FLSA's. 372 F.3d at 1361. This, however, is simply because FEPA does not require compensating for overtime of which the employer has " mere knowledge," as recognized in the Anderson line of cases. Bilello v. United States, 174 Ct.Cl. 1253, 1257 (1966).[4]

Doe ultimately held that the OPM regulation's interpretation of the phrase " officially ordered or approved" in FEPA as requiring a writing was entitled to Chevron deference " because it comports with, and indeed furthers, the language and purpose of FEPA." 372 F.3d at 1362. Its analysis ended there. Where Anderson held the regulation invalid and accordingly considered the full scope of the statutory right, Doe enforced the writing regulation and had no cause to consider whether the phrase " officially ordered or approved" encompassed forms of order or approval that might by their nature never be put " in writing." The question before us today--whether overtime may be " ordered or approved" by inducement, albeit under a different statute--was simply never considered by the Doe court. To the contrary, as Doe explained when discussing

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Hansen, a procedural regulation is not invalid simply because it narrows the breadth of a statutory right. 372 F.3d at 1355-56. In order to hold the writing requirement enforceable, Doe did not need to overrule, and could not have overruled, Anderson 's earlier holding about the statute's breadth. Thus, our current clarification of Doe does not in any way undermine its holding that the regulation was entitled to Chevron deference.

We therefore hold that Anderson 's interpretation of 5 U.S.C. § 5542, namely that overtime is " officially ordered or approved" where it is induced by one with the authority to order or approve overtime but not expressly directed, remains good law. See Anderson, 136 Ct.Cl. at 370.

B

The foregoing section concerns the interpretation of the phrase " officially ordered or approved" as it appears in § 5542 of FEPA. The parties agree that the same phrase in § 7453 of Title 38 should carry the same interpretation.

We agree. The Supreme Court has held, as the government observes, that " when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes." Smith v. City of Jackson, Miss., 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005); Appellee's Br. at 14. The overtime provisions in FEPA and Title 38 are certainly similar in purpose.

Further, Title 38 was amended to add § 7453 in 1991. Department of Veterans Affairs Health-Care Personnel Act of 1991, PL 102-40, May 7, 1991, 105 Stat. 187 (adding § § 7451-58, which govern pay for nurses and other healthcare personnel, among other provisions). Subpart 7453(e)(1), which includes the phrase " officially ordered or approved," has not changed since the statute's enactment.[5] By 1991, as explained above, the Court of Claims and its successor courts had consistently enforced the Anderson standard for more than thirty years. We presume that Congress was aware of that existing interpretation of 5 U.S.C. § 5542 when it enacted 38 U.S.C. § 7453, and that it intended for induced overtime to also be considered " ordered or approved" under the later statute. See Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978).

We therefore hold that the Anderson line of cases' interpretation of the phrase " officially ordered or approved" in 5 U.S.C. § 5542 also governs that language where it appears in 38 U.S.C. § 7453.

The nurses allege the agency has " knowledge" that they work overtime " on a recurring and involuntary basis," and that the agency ordered or approved such work through " expectation, requirement, and inducement." Compl. ¶ 40; see also id. at ¶ ¶ 14-26. As the trial court correctly observed, their allegations state a claim upon which relief may be granted under Anderson 's interpretation of the phrase " officially ordered or approved." Mercier, 114 Fed.Cl. at 801-02. We therefore reverse the dismissal of the nurses' claim and remand for further proceedings under the Anderson standard.

C

The nurses also appeal the trial court's dismissal of the nurses' claim that, in the

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event they are not compensated at an overtime rate for any overtime hours worked, they are entitled to basic pay for those hours. Compl. ¶ ¶ 68-74.

At oral argument, the nurses agreed that a decision in their favor on their claim to statutory overtime pay would moot the claim to basic pay for overtime hours. Oral Argument at 4:20. We thus do not reach, and express no view on, their claim to basic pay.

Conclusion

Accordingly, we reverse the Court of Federal Claims' dismissal of the nurses' claim to overtime pay under 38 U.S.C. § 7453 and remand for further proceedings under the correct interpretation of that statute.

REVERSED IN PART AND REMANDED

Costs

No costs.


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