# United States **Court of Appeals**  **for the Federal Circuit**

______________________ MICHAEL YANKO, AS AN INDIVIDUAL , AND ON BEHALF OF ALL OTHER PART

- TIME GS AND WG FEDERAL EMPLOYEES WHO ARE OR WERE EMPLOYED BY ALL FEDE RAL AGENCIES AND WHO ARE SIMILARLY SI TUATED, Plaintiff

- Appellant

v.

UNITED STATES, Defendant

- Appellee

______________________

2017

- 1177

______________________ Appeal from the United States Court of Federal Claims in No. 1:15

- cv

- 01560

- SGB, Chief Judge Susan G. Braden.

______________________
Decided: September 6, 2017

______________________

I RA M. L ECHNER , Washington, DC, argued for plai ntiff- appellant.

M ARK E. P ORADA , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, argued for defendant

- appellee. Also represented by C HAD A. R EADLER , R OBERT E. K IRSCHMAN , J R ., R EGINALD T. B LADES , J R

.YANKO v. UNITED STATES 2

______________________
Before P ROST , Chief Judge, B RYSON and S TOLL , Circuit Judges.

B RYSON , Circuit Judge.
Plaintiff Michael Yanko is a part

- time federal emplo yee of the U.S. Department of Veterans Affairs. In his class action complaint, which he filed for himself and “on behalf of all other part

- time GS and WG federal emplo yees who are or were employed by all federal agencies and who are similarly situated ,” he asserts that t he class members are entitled to premium pay for work performed on each day designated by statute or Executive Order as

an “in-lieu- of” holiday

. The Court of Federal Claims rejected his claim . We affirm.

I

A

There are ten federal holidays each year. Six of them

are celebrated on Mondays, while the other four (New Year’s D ay, Independence Day, Thanksgiving Day , and Christmas Day ) are celebrated on the day on which they fall

. 1 Federal employees , including part

- time employees, are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. § § 610.405
, 610.406

. When employees are required to work on hol id ays , they are entitled to premium pay for the ir work on that day that is not in excess of eight hours and is not overtime work

. 5 U.S.C. § 5546(b). The rate of premium pay for holiday work is equal to the employee’s rate of basic pay

, id.

, which mean s that an employee who works

1 For employees in the District of Columbia and ce rtain nearby areas, Inauguration Day is also recognized as a federal holiday. 5 U.S.C. § 6103(c).YANKO v. UNITED STATES 3

on a holiday is in effect paid double time for that work

. Both full

- time and part

- time e mployees are entitled to premium pay for designated holidays on which they are required to work. 5 C.F.R. § 610.202 (a).

In addition to ho lidays that fall on employees’ wor kdays, holidays sometimes fall on days that particular employees are not scheduled to work. By statute and Executive Order, certain employees whose basic wor kweek of five workdays is Monday through Fri day are granted days off “in-lieu-of” hol idays for those days. In the case of a holiday that falls on a Saturday, Congress has provided that the Friday before that Saturday is a holiday. 5 U.S.C. § 6103(b)(1)(A ). In the case of a holiday that falls on a Sunday, an Executiv e Order provides that the Monday after that Sunday is a holiday for those employees. Exec. Order No. 11,582 , § 3(a) , 36 Fed. Reg. 2957 (Feb. 11, 1971). Such Friday and Monday holidays are referred to as “in -lieu-of holidays.” Employees who are entitled to such in -lieu- of holidays are relieved from having to work on those days or, if required to work, earn premium pay for thos e days. 5 U.S.C. § 6103(b)(1)(A ) ; Exec

. Order No. 11,582, § 3(a)

. Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits. For such employees, if a holiday falls on a day outside the employee’s basic workweek, the employee’s inlieu- of holiday is observed during the employee’s wor kweek, on either the day befor e or the day after the actual holiday. 5 U.S.C. § 6103(b)(2) ; Exec

. Order No. 11,582

, § 3(b)

. 2 T he employees are relieved from work on that in2 The statute and Executive Order use somewhat

co n voluted language, but the upshot is that a holiday that falls on the day that is treated as the employee’s Saturday is observed as an in -lieu- of holiday on the last workday before that day, and a holiday that falls on the day that isYANKO v. UNITED STATES 4

lieu-of day or given premium pay if they are required to work. See 5 U.S.C. § 6103(b)(2); Exec

. Order No. 11, 582
, § 3(b)

. There is no dispute between the parties regarding how the in -lieu- of provisions operate with regard to full

time employees. The dispute concerns whether, and to what extent, the in -lieu- of provisions apply to part -time employees such as Mr. Yanko.

B
Mr. Yanko has been employed by the D epartment of V eterans A ffairs on a part

- time basis for some time, including the entire six

- year period prior to the filing of his complaint . His regular workweek consists of five days, from Sunday through Thursday. Thus, his weekly

non

- workdays regularly fall on Fridays and Saturdays. Between December 15, 2009, and May 16, 2016, there were eight official public holidays that fell on either a Friday or a Saturday (New Year’s Day of 2010, 2011, and 2016; In dependence Day of 2014 and 2015; and Christmas Day of 2009, 2010, and 2015)

. Because Mr. Yanko is a part

- time employee, h e was not credited with an in -lieu- of

treated as the employee’s Sunday is observed as an in

lieu- of holiday on the next workday after that day. For example, a full -t ime employee may work Wednesday through Sunday, with Monday off in place of Saturday, and Tuesday off in place of Sunday. For such an emplo yee, if a holiday falls on the non

- workday in place of Satu rday (Monday, in the example), the employee’s immediately preceding work day (Sunday) is treated as an in-lieu- of holiday

. See 5 U.S.C. § 6103(b)(2). If a holiday falls on the e m ployee’s non

- workday in place of Sunday (Tuesday, in the example), the employee’s immediately following work day (Wednesday) is treated as an in -lieu- of hol i day

. See Exec

. Order No. 11,582, § 3(b).YANKO v. UNITED STATES 5

holi day during the preceding or succeeding workweek for any of those eight days.
It is the longstanding policy of the Office of Personnel Management (“OPM”) that part

- time employees are not entitled to an in -lieu-of holid ay corresponding to a parti cular holiday when that holiday falls on a non

- workday for the part

- time employee. That policy is reflected in regul ations issued by OPM pursuant to notice

- and

- comment rulemaking. 5 C.F.R. § § 610.405, 610.406. Contending that OPM’s policy and regulations are contrary to section 6103(b) and Executive Order 11,582
, Mr. Yanko seeks to
recover an amount equal to the premium pay to which he would have been entitled if he had been credited with inlieu-of holi days for the eight holidays that fell outside his normal workweek during the past six years. The Court of Federal Claims disagreed with Mr. Yanko’s s tatutory argument . Instead, the court held that the governing statute and Executive Order do not provide part

- time employee s such as Mr. Yanko with a right to in

lieu-of holi days when federal holidays fall on days outside the employees’ normal workweek. In particular, the court concluded that the term “basic workweek,” which appears in the statute governing in -lieu- of holidays and in Exec utive Order No. 11,582, refers only to full

- time employees, and not to part

- time employees. On appeal, Mr. Yanko chall enges that construction of the statute and the Exec utive Order.

II

A
To begin with, Mr. Yanko objects to the trial court’s dismissal of his complaint for failure to state a claim on which relief can be granted. He argues that he has made factual allegations that preclude the entry of judgment against him as a matter of law . In fact, however, the trial court correctly found that this case turns not on a factualYANKO v. UNITED STATES 6

dispute, but on a pure legal issue of statutory interpret ation : whether part

- time federal employees are entitled to in-lieu- of holidays when federal holidays fall on days on which they are not scheduled to work. For that reason, the court properly resolved this case on legal grounds under Rule 12(b)(6) of the Rules of the Court of Federal Claims. See Amoco Oil Co. v. United States , 234 F.3d 1374, 1377 (Fed. Cir. 200 0 ).

B
On the merits, Mr. Yanko argues that section 6103(b) of t itle 5 and Executive Order No. 11

, 582 , which provide for in -lieu-of holi days, apply by their terms to part

- time employees. For that reason, he argues, OPM’s regulations and its longstanding practice of excluding part

- time employees from the in-lieu- of holi day benefits of section 6103(b) and the Executive Order , are invalid.

Mr. Yanko’s statutory argument proceeds from his contention that part

- time employees are “employees” within the meaning of the pertinent statutes, and that once that proposition is accepted, the in -lieu- of holiday provisions of section 6103(b) and the Executive Order necessaril y appl y with full force to part

- time employees. While we agree that part

- time employees are “employees” as that term is used in the pertinent provisions, see Fathauer v. United States , 566 F.3d 1352, 1356

- 57 (Fed. Cir. 2009)

, that point does not carry the day for Mr. Yanko. 3

3 Mr. Yanko places heavy reliance on this court’s deci sion in Fathauer . That case, however, merely held that the term “employee” in the Sunday premium pay statute, 5 U.S.C. § 5546(a), compri ses both part

- time and full

- time employees. 566 F.3d at 1356. The issue in this case is quite different

— whether the statutory term “basicYANKO v. UNITED STATES 7

Under both section 6103(b) and section 3 of Executive Order No. 11,582 , in -lieu- of holiday benefits are limited to employees who work a “basic workweek,” whether that constitutes Monday through Friday or some period other than Monday through Friday. Referencing 5 U.S.C. § 6101, the government argues that the term “basic workweek” refers to the basic 40

- hour workweek worked by full

- time employees

. S ection 6101 directs each executive agency to “esta blish a basic administrative workweek of 40 hours for each full

- time employee

. ” 5 U.S.C. § 6101(a)(2)(A). The statute also provides that “the basic 40

- hour workweek is sche duled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consec utive .” I d. § 6101(a) (3)(B). The government argues that the term “basic workweek,” as used in section 6101(a) (3)(B) and elsewhere in sections 6101 and 6103 , is simply shorthand for “basic 40

- hour workweek” or “basic administrative workweek of 40 hours

, ” as us ed in section 610 1

. Accordingly, the government asserts

, the use of the shorthand term “basic workweek” in section 6103(b) and in the corresponding portion of Executive Order No. 11,5 8 2 necessarily limits the scope of th os e provisions to employees who wor k a 40

- hour week, i.e., full

- time e mployees. C f. 5 U.S.C. § 3401(2) (part

- time employees work between 16 and 32 hours per week, or between 32 and 64 hours during a biweekly pay period).
Mr. Yanko disagrees, arguing that when Congress intended to refer to the “basic workweek” of full

- time employees, it used the term “basic 40

- hour workweek” or “basic administrative workweek of 40 hours,” and that when it used the unmodified term “basic workweek,” it intended the provisions in question to apply to both full

work week” in 5 U.S.C. § 6103(b) refers to the workweek of all federal employees or only full

- time employees.YANKO v. UNITED STATES 8

time and part

- time employees. For that reason, he co ntends that “there is no ambiguity ” and that the in -lieu-of holiday provision s in section 6103(b) and the Executive Order clearly appl y to part

- time employees. Appellant’s Br. at 33. 4

While the text o f section 6103 and the Executive Order does not explicitly answer the question, an exam ination of the history of th os e provisions and the way they have been interpreted over the past 70 years persuades us to reject Mr. Yanko’s contention that the provision s unambiguously support his position that in -lieu- of holiday benefits are available to part

- time workers.

1 The statutory provisions at issue in this case trace their origins to the Federal Employees Pay Act of 1945, Pub. L. No. 79

- 106, 59 Stat. 295 (“the 1945 Pay Act”)

. Section 604 of that Act, entitled “Establishment of Basic Workweek; Pay Computation Methods,” contained the core provisions governing the establishment of “a basic administrative workweek of forty hours” for full

- time federal employees. 59 Stat. at 303. That section was the precursor of the current section 6101.
Seven years after the enactment of the 1945 Pay Act, President Truman issued an Executive O rder that provi ded for in-lieu- of holi days for federal employees for the first ti me. See Exec

. Order No. 10

, 358, 17 Fed. Reg. 5269

4 Exec utive Order No. 11,582 uses the term “basic workweek” without further defining it. However, neither party in this case has suggested that the term “basic workweek” should be construed differently for the Exec utive Order than for section 6103(b). We agree that there is no textual or contextual basis for drawing a distinction between the two and we therefore treat them as being in pari materia

.YANKO v. UNITED STATES 9

(June 9, 1952). That E xecutive O rder provided that when a holiday fell on a Sunday, an employee “ whose basic workweek does not include Sunday ” would be excused from work on the next work day of the employe e’s basic workweek. In the case of an employee “ whose basic workweek include s Sunday ,” the Executive Order provi ded that when a holiday fell on a day that ha d been admi nistratively scheduled as the employee’s regular non

workday in lieu of Sunday, the employee would be e xcused from work on the next workday of his basic wor kweek. Finally, the Executive Order provided that when a holiday such as Labor Day or Thanksgiving Day ( which always occur on a specific day of the week ) fe ll on a day outside a particular employee’s regular basic workweek, the employee would be “ excused from work on the next workday of his basic workweek. ” The Executive Order made no equivalent provision for holidays falling on a Saturday. The Executive Order also made no explicit reference to whether th o se rules would apply to part -time employees.
The question whether the Executive Order extended to part

- time employees did not remain unresolved for long, however. An opinion was promptly s ought from the Comptroller General as to whether Executive Order No. 10
, 358 applied to part

- time employees. In a decision issued in early 1953, the Comptroller General ruled that it did not. The Comptroller General determined that the holiday benefit provisions of the Executive Order “are for application only to employees who have a regularly esta blished basic workweek of at least 40 hours and do not apply to part

- time employees.” Acting Comp t roller Gen

. Yates to the Adm ’ r of Veterans Affairs

, 32 Comp. Gen. 378, 378 (1953).
The Comptroller General concluded that the term “basic workweek,” as used in the Executive Order, should be construed “accord [ ing to ] the commonly understood meaning of said term [,] as employed in the [ 1945 ] Pay ActYANKO v. UNITED STATES 10

and appl icable civil service regulations, ” to “relat[e] only to employees who have a regularly established workweek of at least 40 hours.” Id. at 380. Six years later, Congress amended the 1945 Pay Act by adding a provision that extended the in -lieu- of holiday rule to Saturdays . The amendment provided that when a holiday fell on a Saturday, the day immediately preceding the Saturday would be recognized as a legal public hol iday. Pub. L. No. 86

- 362, 73 Stat. 643 (1959). In addition, Congress added a provision that is essentially the same as the provision now found in 5 U.S.C. § 6103(b)(2) . It stated that if a holiday fell on a regular non

- workday for an employee whose basic workweek was other than Monday through Friday, and that day was not the non

- workday sch eduled for the employee in lieu of Sunday, the workday immediately preceding that non

- workday would be treated as a holiday for that employee. Id. Other than chan ges in language and organization made as part of a recodification of title 5 in 1966, Congre ss has left the substance of the in -lieu-of holiday rules unaltered since the legislation in 1959.
In 1971, President Nixon issued Executive Order No. 11
, 582, which replaced Executive Order No. 10

, 358. As relevant here, the 1971 order preserved the porti ons of Executive Order No. 10

, 358 relating to employees with regularly scheduled workweeks whose basic workweeks did not include Sundays, see Exec

. Order No. 11

, 582, § 3(a), as well as those employees whose basic workweeks include d Sundays, id. § 3(b).
Nothing in the history of the in -lieu- of holiday prov isions lends any support to Mr. Yanko’s argument that either Congress or the President clearly intended those provisions to apply to part

- time employees. Nothing in the statute or the Executive Order s uggests that the term “basic workweek” applies to part

- time employe e s. I nstead, from as early as the 1945 Pay Act, the term wasYANKO v. UNITED STATES 11

consistently used in reference to full

- time employees. R eading section 6101, section 6103, and Executive Order No. 11,5 8 2 as a whole, it is reasonable to interpret the use of the term “basic workweek” to be a shorthand expre ssion for “basic 40

- hour workweek,” as used in both the text and the heading of section 6101. See Florida Dep’t of Revenue v. Piccadilly Cafeterias, Inc.

, 554 U.S. 33, 47 (2008) (“ [A] subchapter heading cannot substitute for the operative text of a statute, ” but “ statutory titles and section headings are tools available for the resolution of doubt about the meaning of a statute.”) (internal quot ation marks o mitted). We therefore reject Mr. Yanko’s argument that the text of the statute by itself makes clear that the “in -lieu- of” holiday rules apply to part

- time employees.

2 There are only two possible plain meaning constructions of “basic workweek,” as used in section 6103 and the Executive Order : (1) “basic workweek” refers to the 40

- hour workweek of a full

- time employee, or (2) “basic workweek” includes the schedules of part

- time employees. W e have rejected Mr. Yanko’s argument that the latter i s

a n unamb iguous, plain meaning interpretation

. Although the government argues the former, i.e., that the text of the statute and the Executive Order unambiguously supports its position, we find it unnecessary to decide that question, because the consistent adminis trative interpr etation of the statute and the Executive Order by OPM

— the agency charged by Congress with administering the federal personnel laws

— supports the government’s inte rpretation. Applying familiar principles of deference to agency interpretations of ambiguous statutes, see Che vron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837 (1984), we hold that , even assuming the la nguage of section 6103 and Executive Order No. 11,582 does not plainly support the government ’s interpretation,YANKO v. UNITED STATES 12

OPM’s interpretation of the statute and Executive Order is entitled to deference and thus governs this case.

When a statute is ambiguous or silent with respect to an issue of statutory construction, the Supreme Court has held that “admin istrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress has delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” United States v. Mead

, 533 U.S. 218, 226

- 27 (2001). Delegation of such authority can be shown, for example, by an agency’s power to engage in notice

- and

- comment rulemaking. Id. at 227; see al so In re Cuozzo Speed Techs., LLC

, 793 F.3d 1268, 1 279 (Fed. Cir. 201 5 ); Mercier v. United States , 7 86 F.3d 971
, 977

- 78 (Fed. Cir. 2015); Wilder v. Merit Sys. Prot. Bd. , 675 F.3d 1319, 1322 (Fed. Cir. 2012); Carrow v. Merit Sys. Prot. Bd. , 564 F.3d 1359, 1 365 (Fed. Cir. 2009). Applying those principles, we hold that OPM’s interpretation of the in -lieu- of holiday prov isions of section 6103(b) as inapplicable to part

- time employees is entitled to deference

. In 5 U.S.C. § 6101(c), Congress granted OPM the authority to “prescribe regulations, subject to the appro val of the President, necessary for the administration of this section insofar as this section affects employees in or under an Executive agency.” By Executive Order, the President has designated an d empower ed OPM to exe rcise, “without the approval, ratification, or other action of the President,” the authority to issue regulations nece ssary for the administration of the 1945 Pay Act (of which current section 6101 was a part). Exec

. Order No. 10,552 ( Aug. 10 , 19 54 ), as modified by Exec

. Order No. 12
, 107 (Dec. 28, 1978). Thus, in this case there is a clear autho rization, both from Congress and the President, for OPM to engage in formal rulemaking, authority that the SupremeYANKO v. UNITED STATES 13

Court has described as “a very good indicator of deleg ation meriting Chevron treatment.” Mead , 533 U.S. at 229.

Pursuant to that authority, OPM has promulgated regulations that specifically provide that “[ w] hen a hol iday falls on a non

- workday of a part

- time employee, he or she i s not entitled to an in-lieu- of day for that holiday.” 5 C.F.R. §§ 610.405, 610.406. 5 OPM has consistently taken that position since the regulations were promulgated in 1983 , and the rule has been consistently applied in that manner since much earlier. See Barnhart v. Walton , 535 U.S. 212, 220

- 21 (2002) (noting that the “Agency’s inte rpretation is one of long standing” and according Chevron deference in light of, inter alia , “the careful consideration the Agency has given the question over a long period of time”) ; Butterbaugh v. Dep’t of Justice , 336 F.3d 1332, 1341 (Fed. Cir. 2003) (extra deference due to agency’s longstanding interpretations of statutory prescriptions).
Similar principles apply to interpretations of Exec utive Orders by the agency charged with administering the m. See Udall v. Tallman , 380 U.S. 1, 16

- 18 (1965). This court has applied that principle to cases in which OPM has interpreted Executive Orders or other Preside ntial directives governing personnel matters in which, as in thi s case, OPM has been charged with the responsibility to apply and administer the Executive Order or directive.

5 Although the two cited regulations apply specifically to part

- time employees on flexible or compressed work schedules, OPM made clear in comments accomp anying the promulgation of those regulations that it inte rprets in -lieu- of holiday benefits as inappli cable to part

time employees generally and that the specific regulations were based on that general principle. See Hours of Duty; Alternative Work Schedules , 48 Fed. Reg. 44,059, 44,059 (Office Pers. Mgmt. Sept. 27, 1983) (“A part

- time emplo yee is not entitled to in -lieu- of holidays.”).YANKO v. UNITED STATES 14

In such cases, we have held that the court must accord broad deference to the agency’s interpretation of the Executive Order. See Wagner v. Office of Pers. Mgmt. , 783 F.2d 1042, 1045 (Fed. Cir. 1986); Alaniz v. Office of Pers. Mgmt. , 728 F.2d 1460, 1465 (Fed. Cir. 1984); see also Montana Wilderness Ass’n v. Connell , 725 F.3d 988, 994 (9 th Cir. 2013); El

- Ganayni v. U.S. Dep ’ t of Energy , 591 F.3d 1 76, 187 (3d Cir. 2010); Dehainaut v. Peña , 32 F.3d 1066, 1073 (7th Cir. 1994).

Further support for the government’s interpretation of the in -lieu- of holiday provisions comes from the long standing and consistent line of authority from the Comptroller Gene ral holding that the in -lieu- of holiday provisions do not apply to part

- time employees. That line of authority began with the 1953 Comptroller General opinion discussed above, which issued shortly after the promulgation of the first Executive Order granti ng in

lieu- of holiday benefits

. See Acting Comptroller Gen

. Yates to the Adm ’ r of Veterans Affairs , 32 Comp. Gen. 378 (1953) . As shown i n a series of subsequent opinions, the Comptroller General has adhered to that position ever since : Matter of Commissary Employees

— Entitlement to Holiday , B

- 192104, 1978 WL 11300 (Comp. Gen. Sept

. 1, 1978); Matter of Gladys Noon Spellman, House of Repr esentatives , B

- 198472, 1980 WL 16572 ( Comp. Gen. May 21, 1980); Matter of Shirley A. Lombardo

— Part

- Time Employee’s Entitlement to Holiday , 63 Comp. Gen. 306 (1984); Matter of Part

- time Employees , B

- 214156, 1984 WL 44280 ( Comp. Gen. May 29, 1984). While opinions of the Comptroller General are not binding on this court, we have looked to them for guidance in areas in w hich the Comptroller General has been assigned legal responsibil ities, see Cleveland Telecomms. Corp. v. Goldin , 43 F.3d 655, 658 n.1 (Fed. Cir. 1994), as was formerly the case with regard to the resolution of federal employees’ claims
as to compensation and leave, see Adams v. Hinchman

, 154 F.3d 420, 422 n.2 (D.C. Cir. 1998).YANKO v. UNITED STATES 15

The reasonableness of OPM’s position is buttressed by the point made in one of the Comptroller General’s opi nions from 1984 . In that opinion, the Comptroller General pointed out that interpreting the in -lieu- of holiday rule to apply to part

- time employees would mean that part -time employees working fewer than five days per week would obtain disproportionate ly favorable in -lieu-of holiday benefits compared to their full -time colleagues ; as the opinion noted, “the smaller the number of regularly scheduled workdays [for such an employee], the greater the proportional entitlement to designated or in lieu of holidays.” Matter of Shirley A. Lombardo , 63 Comp. Gen.
at 307

. It is not unreasonable for OPM to conclude that Congress would not have intended to implement a system having such a perverse outcome.

In sum

, we hold that it was reasonable for OPM, in its formal regulations, to interpret the reference to “basic workweek” as app lying only to full

- time employees. That position is consistent with the position taken by the Comptroller General in interpreting the statute, and it is consistent with the position taken by OPM since OPM first issued regulations on th e issue

. Because th e la nguage and context of the statute do not clearly indicate that Congress or the President intended a contrary inte rpretation of the term “basic workweek,” we sustain OPM’s interpretation of that term as applicable only to full -time employees. Each party shall bear its own costs for this appeal.

AFFIRMED