United States Court of Appeals 

for the Federal Circuit ______________________ 

STEPHANIE MERCIER, AUDRICIA BROOKS,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2014-5074

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:12-cv-00920-EDK, Judge Elaine Kaplan.

______________________ 

Decided: May 15, 2015 

______________________ 

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. 

______________________ 
2 MERCIER v. US

Before WALLACH and CLEVENGER, Circuit Judges, and 

FOGEL, District Judge.*

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 

* The Honorable Jeremy Fogel, District Judge, 

United States District Court for the Northern District of 

California and Director of the Federal Judicial Center, 

sitting by designation.

 
MERCIER v. US 3

particular procedure that must be followed to qualify for 

overtime pay.1

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 § 7543(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 

1 The agency’s handbook presents various policies 

related to overtime, including, for example, that overtime 

is to be used only when necessary. J.A. 70. The handbook 

is an informal agency interpretation and is entitled to 

deference only “proportional to [its] ‘power to persuade.’” 

James v. Von Zemenszky, 284 F.3d 1310, 1319 (Fed. Cir. 

2002) (quoting United States v. Mead Corp., 533 U.S. 218, 

235 (2001)). We do not find the handbook persuasive, for 

example because it fails to describe any procedure under 

which nurses’ overtime may be explicitly ordered or 

approved. 

 
4 MERCIER v. US

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, 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 sub2 The Court of Claims sat en banc in Anderson and, 

as we later observed, in many of the cases that followed it. 

Doe v. United States, 372 F.3d 1347, 1355 (2004).

 
MERCIER v. US 5

stantive 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 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 (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
6 MERCIER v. US

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 

U.S. Ct. Cl. LEXIS 454, *11 (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 (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 (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 

(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 

dissented on the basis that the overtime was not ordered 
MERCIER v. US 7

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 (1981) (per curiam) (Hansen) and Office 

of Pers. Mgmt. v. Richmond, 496 U.S. 414 (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. 

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 
8 MERCIER v. US

charging the public treasury.” Hansen, 450 U.S. at 788–89

(quoting Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 

385 (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 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

(1937)). “[T]he equitable doctrine of estoppel cannot grant 
MERCIER v. US 9

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 

13293; 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.

3 Crowley and Buckley were consolidated along with 

other cases and appealed to this court, which did not 

consider whether plaintiffs’ overtime had been “ordered or 

approved.” Crowley, 398 F.3d 1329. 

 
10 MERCIER v. US

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 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 
MERCIER v. US 11

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.C. Inc. v. 

Natural Res. Def. Council, 467 U.S. 837, 842–43 (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., 553 U.S. 218, 229 (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” 
12 MERCIER v. US

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, 347 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.” 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 
MERCIER v. US 13

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
14 MERCIER v. US

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, 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 
MERCIER v. US 15

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.
16 MERCIER v. US

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 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, 127 

S.Ct. 1955, 1966 (2007)). 
MERCIER v. US 17

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” overtime work. Instead, the question Anderson decided when it interpreted the FEPA provision, and 
18 MERCIER v. US

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 
MERCIER v. US 19

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 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 

4 Doe also noted that the writing regulation was 

consistent with one of the key purposes of FEPA, namely 

“to control the government’s liability for overtime,” while 

another key purpose evidenced by the legislative history 

is to “ensur[e] that employees received overtime compensation.” 372 F.3d at 1361. Anderson adopted the inducement standard in order to fulfill that second purpose. 136 

Ct. Cl. at 370–71.

 
20 MERCIER v. US

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 (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 

5 The section has been amended twice with no 

changes to § 7453(e)(1). Other amendments were technical or are not relevant. Veterans’ Benefits Improve-

 
MERCIER v. US 21

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 (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 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 

ments Act of 1994, PL 103–446, Nov. 2, 1994, 108 Stat. 

4645; Caregivers and Veterans Omnibus Health Services 

Act of 2010, PL 111-163, May 5, 2010, 124 Stat. 1130.

 
22 MERCIER v. US

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.