REVISED APRIL 4, 2006

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-40370

______________

JUNE BELT,

ON BEHALF OF HERSELF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

PAUL MAIOCCO, WASHINGTON PLAINTIFF;

DONALD CHRISTIAN, NEW YORK PLAINTIFF;

LUCILLE MOYLAN, ILLINOIS PLAINTIFF;

VICTOR AMBROSIA, ILLINOIS PLAINTIFF;

HUNTINGTON YEO;

DARYL WEIN, UCL AND CALIFORNIA PLAINTIFF;

JEANETTE SHELLY, UCL AND CALIFORNIA PLAINTIFF;

RONALD MARTINEZ, UCL AND CALIFORNIA PLAINTIFF;

JULIE JUNG, UCL AND CALIFORNIA PLAINTIFF;

DEBORAH GASKINS, UCL AND CALIFORNIA PLAINTIFF;

DAVID DONA, UCL AND CALIFORNIA PLAINTIFF;

MASON CARLIN, UCL AND CALIFORNIA PLAINTIFF;

SUSAN BERTELSEN, UCL AND CALIFORNIA PLAINTIFF;

NEIL ADLER, UCL AND CALIFORNIA PLAINTIFF;

DEBORAH NICHOLS, ARIZONA PLAINTIFF;

FLSA EMPLOYEES,

Plaintiffs-Appellees,

VERSUS

EMCARE, INC., AND TEXAS EM-I MEDICAL SERVICES, P.A.,

Defendants-Appellants.

United States Court of Appeals

Fifth Circuit

F I L E D

March 24, 2006

Charles R. Fulbruge III

Clerk
2
3

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________

Before KING, SMITH, and BENAVIDES, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This appeal presents the question whether

physician assistants (“PA’s”) and nurse practitioners (“NP’s”)1

qualify for the professional

exemption to the overtime requirements of the

Fair Labor Standards Act (“FLSA”). Plaintiffs,

and the Department of Labor (“DOL”) as amicus curiae, contend that the regulation interpreting the professional exemption, 29 C.F.R.

§ 541.3 (1973), does not speak to the precise

question before us and that the agency’s informal interpretive statements excluding plaintiffs

fromthe exemption merit deference under Auer

v. Robbins, 519 U.S. 452 (1997). We agree

and affirm, and remand for further proceedings.

I.

Plaintiffs are 59 PA’s and 20 NP’s who provide health care services for EmCare, Inc., in

hospital emergency rooms in twenty states.2

Plaintiffs are paid hourly at a flat rate for all

hours worked, including overtime (i.e., all

hours over forty in a workweek). The DOL’s

Bureau ofLabor Statistics’ OccupationalOutlook Handbook provides an overview of the

job descriptions of PA’s and NP’s:

Physician assistants (PAs) practice medicine under the supervision of physicians and

surgeons . . . PAs are formally trained to

provide diagnostic, therapeutic, and preventive health care services, as delegated by

a physician. Working as members of the

health care team, they take medical histories, examine and treat patients, order and

interpret laboratory tests and x rays, and

make diagnoses. They also treat minor

injuries, by suturing, splinting, and casting.

PAs record progress notes, instruct and

counsel patients, and order or carry out

therapy. In 48 States and the District of

Columbia, physician assistants may prescribe medications. PAs also may have

managerial duties. Some order medical

supplies or equipment and supervise tech1 Although the defendant employers tend to refer

to plaintiffs by their official titles, plaintiffs are

prone to use the collective term “mid-level providers.” Recognizing that the respective choices of

terms are strategic, we use the official titles.

2 Defendant Texas EM-I is a physicians group

responsible for adequately staffing hospital emergency rooms. It contracted with EmCare to help

(continued...)

2

(...continued)

perform administrative tasks. EmCare states that

it assists Texas EM-I by “providing recruiting,

scheduling, malpractice insurance coverage, risk

management, and clinician payroll support.” We

refer to defendants jointly as “EmCare.”
4

nicians and assistants.[3]

Nurse practitioners provide basic preventive health care to patients, and increasingly

serve as primaryand specialtycare providers

in mainly medically underserved areas . . .

Inmost States, advanced practice nurses can

prescribe medications.[4]

Plaintiffs sued EmCare for back wages and

liquidated damages under the FLSA, alleging

that EmCare was violating the FLSA by failing

to pay time-and-a-half compensation for overtime. EmCare responded that it did not owe

plaintiffs additional pay, because they qualify

for an exemption as bona fide professionals under 29 C.F.R. § 541.3(e) (1973). The parties

filed cross-motions for partial summary judgment on this issue, and the district court granted plaintiffs’ motion. See June Belt v. EmCare

Inc., 351 F. Supp. 2d 625 (E.D. Tex. 2005).

The court reasoned that § 541.3(e) is ambiguous, so it deferred to the DOL’sinformal pronouncements on § 541.3(e), including a DOL

opinion letter and the Wage and Hours Field

Operations Handbook, which tended to show

that PA’s and NP’s must be paid on a salary basis to be exempt from the FLSA. The court

based its decision on Auer, 519 U.S. at 461,

which held that an agency’s interpretation of

its own ambiguous regulation is controlling

unless clearly erroneous or inconsistent with

the regulation.

The court also considered the history ofthe

FLSA’s professional exemption, which

showed that the DOL had rejected earlier effortsto expand the exemption to include other

professionals,such as engineers and architects,

and that the NP and PA professions had not

fully developed when the exemption was

created. The court further considered the latest version of the applicable regulations, effective August 23, 2004,5 which codified a

previous informal interpretation of § 541.3(e)

(i.e., provided notice and comment), requiring

that certain analogous professions, such as

nurses and certified medical technologists, be

salaried to be exempt from the overtime requirements. The court certified its order for

interlocutory appeal under 28 U.S.C.

§ 1292(b),6and we granted leave to appeal.

II.

The FLSA provides that a covered employee shallreceive compensation at one-andone-half times the regular rate for every hour

3 Physician Assistants, in BUREAU OF LABOR

STATISTICS,U.S.DEP’T OFLABOR,OCCUPATIONAL

O UTLOOK H ANDBOOK 2006-07,

http://www.bls.gov/oco/ocos081.htm (last visited

March 13, 2006).

4 Nurse Practitioners, in BUREAU OF LABOR

STATISTICS,U.S.DEP’T OFLABOR,OCCUPATIONAL

O UTLOOK H ANDBOOK 2006-07,

http://www.bls.gov/oco/ocos083.htm (last visited

March 13, 2006). Plaintiffs and the DOL represent

that the duties of PA’s and NP’s are almost indistinguishable.

5 Though the district court found the 2004 revisions instructive, the facts underlying this case

occurred before the recent amendments took effect.

Therefore, this case is governed by the regulations

as codified in 1973.

6 A district court may certify an order for interlocutory appeal under § 1292(b) where the order

“involves a controlling question of law as to which

there issubstantial ground for difference of opinion

and . . . an immediate appeal from the order may

materially advance the ultimate termination of the

litigation.”
5

over forty worked during the week,7but not if

he is “employed in a bona fide executive, administrative, or professional capacity . . . as

such terms are defined and delimited from time

to time by regulations of the Secretary.” 29

U.S.C. § 213(a)(1). Pursuant to this authority,

the DOL, after notice and comment, issued

§ 541.3, which defines a “bona fide . . . professional” as an employee who satisfies certain duty requirements8

and “is compensated for services on a salary or fee basis” (the “salary-basis

test”).9

Section 541.3(e) further provides that the

salary-basistest does not apply to “an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof” (the “salary-basis exception”). Because the parties

agree that plaintiffs satisfy the duty requirements of the professional exemption and are

paid hourly, the sole interpretive issue in this

appeal is whether NP’s and PA’s hold a license

permitting, and actually engage in, “the

practice of . . . medicine or any of [its]

branches.” 

If NP’s and PA’s practice medicine within

the meaning of § 541.3(e), plaintiffs do not

need to satisfy the salary-basis test to qualify

for the exemption, and EmCare can deny additional overtime pay. If, however, plaintiffs

do not practice medicine under § 541.3(e),

they are subject to the salary-basis test, they

do not fall within the exemption, and they are

eligible for time-and-a-half compensation. We

are the first circuit to address the precise issue

presented by this case.

III.

When confronted with a statute administered by an executive agency, we defer to the

agency’s interpretation of the statute if (a) the

statute is silent as to the precise question at issue and (b) the agency’s interpretation is reasonable.10 We employ a similar two-step test

when interpreting an agency regulation. First,

we ask whether the regulation is “ambigu[ous]

7

“[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce,

or is employed in an enterprise engaged in commerce or in the production of goods for commerce,

for a workweek longer than forty hours unless such

employee receives compensation for his employment

in excess of the hours above specified at a rate not

less than one and one-half times the regular rate at

which he is employed.” 29 U.S.C. § 207(a)(1).

8 The relevant duty provisions require that an

employee’s (a) “primary duty consist[] of the performance of . . . [w]ork requiring knowledge of an

advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study,”

(b) “work requires the consistent exercise of discretion and judgment in its performance,” (c) “work

is predominantly intellectual and varied in character,” and (d) at least 80 percent of the employee’s

time must be so occupied. 29 C.F.R. § 541.3 (a)-

(d) (1973). 

9

Id. § 541.3(e). Neither side argues that the

DOL lacked authority to issue these implementing

regulations. An employee is considered paid on a

“salary . . . basis” if “under his employment agreement he regularly receives each pay period on a

weekly, or less frequent basis, a predetermined

amount constituting all or part of his compensa-

(continued...)

9

(...continued)

tion.” Id. § 541.118(a) (1973). 

10 Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43

(1984). 
6

with respect to the specific question considered.”11

Second, if the regulation is ambiguous, the

agency’s interpretation (as contained in, e.g.,

opinion letters) is “controlling unless plainly erroneous or inconsistent with the regulation.”

Auer, 519 U.S. at 461 (articulating the rule in

the context of interpreting a different aspect of

the salary-basis test) (internal quotations omitted). If the regulation is unambiguous, we may

still consider agency interpretation, but only according to its persuasive power.12

A.

EmCare argues that PA’s and NP’s unambiguously practice medicine or a branch of

medicine within the meaning of § 541.3(e),

and plaintiffs maintain the regulation does not

speak to this precise question. Before addressing the issue on the merits, however,

plaintiffs contend it is waived because EmCare

raises it for the first time on appeal, having

consistently represented to the district court

that § 541.3(e) is ambiguous, and having relied

instead on the interpretive regulation,

29 C.F.R. § 541.314 (1973), to make its case.

EmCare replies that “an argument is not

waived on appeal if the argument on the issue

before the district court was sufficient to permit the district court to rule on it.”13 The district court held that “[t]hese regulations do not

expressly address whether physician assistants

and nurse practitioners are exempted from the

salary-basis test, and, on thisissue, the regulation is therefore ambiguous.” Belt, 351 F.

Supp. 2d at 627.

We have spoken to this waiver issue:

If a litigant desiresto preserve an argument

for appeal, the litigant must press and not

merely intimate the argument during the

proceedings before the district court. If an

argument is not raised to such a degree that

the district court has an opportunity to rule

on it, we will not address it on appeal.

FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.

1994). We have noted, however, that “[n]o

bright-line rule exists for determining whether

a matter wasraised below.” N.Y. Life Ins. Co.

v. Brown, 84 F.3d 137, 142 n.4 (5th Cir.

1996).

EmCare’s corporate representative, Mr.

11 Moore v. Hannon Food Serv., 317 F.3d 489,

495 (5th Cir. 2003); Christensen v. Harris County,

529 U.S. 576, 588 (2000) (finding Auer deference

appropriate “only when the language of the regulation is ambiguous”).

12Moore, 317 F.3d at 495; Christensen, 529

U.S. at 587 (stating that “interpretations contained

in formats such as opinion letters are entitled to respect . . . but only to the extent that those interpretations have the power to persuade.”) (internal quotations omitted). The Court described this degree of

deference in Skidmore v. Swift &Co., 323 U.S. 134,

140 (1944):

We consider that the rulings, interpretations and

opinions of the [agency], while not controlling

upon the courts by reason of their authority, do

constitute a body of experience and informed

judgment to which courts and litigants may

properly resort for guidance. The weight of such

a judgment in a particular case will depend upon

the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with

earlier and later pronouncements, and all those

factors which give it power to persuade, if

lacking power to control.

13 Lifemark Hosps., Inc. v. Liljeberg Enters.,

304 F.3d 410, 428 n.29 (5th Cir. 2002).
7

Wilson, stated under oath that EmCare was relying onlyon the DOL’sinterpretive regulation,

not § 541.3. EmCare contends, however, that

it argued to the district court that the court

should not rely on a 1974 DOL opinion letter

because plaintiffs “are included within the unambiguousterms of § 541.3 and § 541.314, and

that any agency interpretation of those regulations should be given only persuasive deference, if any, under Skidmore.” 

Our review of the record, coupled with the

fact that EmCare can provide no specific quotation or any excerpt from any district court

filing to support its claim,suggests EmCare did

not “press . . . the argument” in the district

court. Mijalis, 15 F.3d at 1327. Because,

however, a finding that § 541.3 is ambiguous

was necessary to the district court’s ultimate

conclusion that it was appropriate to defer to

the agency’s informal interpretive statements

under Auer, the issue wassufficiently raised for

the court to rule on it, see Liljeberg, 304 F.3d

at 428 n.29, and is preserved for appeal. 

B.

Plaintiffs claim that regulatory exemptions

from the FLSA must be “narrowly construed

against the employers seeking to assert them

and their application limited to those [employers] plainly and unmistakably within their terms

and spirit.” Arnold v. Ben Kanowsky, Inc., 361

U.S. 388, 392 (1960). In Arnold, however, the

Court applied its canon of strict construction

against employers in the course of interpreting

ambiguous statutory language in the former

exemption from FLSA overtime requirements

for a retail establishment. See 29 U.S.C. §

213(a)(2), (4) (1949). Because there was no

regulatory interpretation of the relevant

provisions of § 213, the Court needed to consider legislative history, past precedent, and

canons of construction to reach its result. See

Arnold, 361 U.S. at 392-94. Here, the current

§ 213(a)(1) explicitly gives the DOL authority

to define and cabin the definition of “bonafide . . . professional” and hence the scope of

the professional exemption. It would be inappropriate to apply a canon of strict (as opposed to fair) construction to the agency’s discretionary exercise of its own, lawfully delegated authority.

14

Therefore, because the regulations do not

define the terms used in § 541.3(e), we must

consider the words’ ordinary meaning.15 EmCare argues that capacious language does not

automatically entail ambiguity and that NP’s

and PA’s unambiguously fall within the broad

scope of § 541.3(e). EmCare relies on caselaw, dictionary definitions, and the employment duties of NP’s and PA’s to make its

argument.

First, in Moore we considered 29 C.F.R.

§ 541.118(a)(6), which provides a “window of

correction” for employers who make improper

deductionsfrom the paychecks of exempt employees under the FLSA. The regulation

statesthat an employee will automatically lose

exempt status unless the deduction is made

through “inadvertence, or is made for reasons

other than lack of work.” Id. at § 541.118-

(a)(6). We reasoned that the relevant deductions in that case, made as a disciplinary pen14 See Auer, 519 U.S. at 463 (“A rule requiring

the Secretary to construe his own regulations narrowly would make little sense, since he is free to

write the regulations as broadly as he wishes, subject only to the limits imposed by the statute.”).

15 See Gore, Inc. v. Espy, 87 F.3d 767, 773 (5th

Cir. 1996) (holding that where the regulations do

not provide a definition, “we must first determine

whethertheSecretary applied the ordinary meaning

of that term.”).
8

alty for cash registershortages, were “made for

reasons other than lack of work” and therefore

could be corrected by the employer. Moore,

317 F.3d at 496-98. In the course of reaching

our decision, we noted that

[t]he presence or lack of ambiguity in a regulation should be determined without reference to proposed interpretations; otherwise,

a regulation will be considered ‘ambiguous’

merely because its authors did not have the

forethought expressly to contradict any creative contortion that may later be constructed to expand or prune its scope.

Id. at 497. EmCare cites this language to support its contention that we should give no

weight to agency interpretations that seek to

“narrow” the reach of § 541.3(e) to exclude

NP’s and PA’s merely because the regulation

does not explicitly mention them.

Moore is distinguishable: We held, based on

the regulation’s language, that “lack of work”

exhausted the universe of reasons why an

employer could not correct an improper deduction. Moore, 317 F.3d at 497 (applying

reasoning akin to expressio unius). Because

disciplinary deductions were not made for “lack

of work,”16there was no “ambiguity with

respect to the specific question considered.”

Id. at 495. In contrast, § 541.3(e) contains no

similarly forthright exclusionary language:

Just because a regulation limited to persons

“actually engaged in the practice” of medicine

“or any of [its] branches” must exclude someone, this fact does not make it obvious whether NP’s and PA’s fall within its scope.17

Likewise, in Christensen the Court considered a regulation that allowed employers to

contractually obligate employeesto take mandatory leave to reduce accrued compensatory

time.18 In that case, Harris County implemented a mandatory policy, not in the initial employment agreements, but only after it became

apparent that the county could not pay employeesfor accrued time. Plaintiffs relied on a

DOL opinion letter that stated employers

could institute this policy only in the text of

the agreement itself. Christensen, 529 U.S. at

581.

The Court found that the letter was not

16 The Secretary of Labor made no effort in

Moore to argue that the deductions in question were

made for “lack of work.” Instead, the Secretary

argued, despite the text of the regulation, that no

employer who engages in a practice of impermissible deductions can cure the problem through the

window of correction, except for inadvertence. See

Moore, 317 F.3d at 493-94 (quoting Klem v.

County of Santa Clara, 208 F.3d 1085, 1091 (9th

Cir. 2000)). In contrast, the instant parties present

competing positions on whether NP’s and PA’s fall

within the general regulatory language; i.e., the

(continued...)

16(...continued)

“branches” of medicine.

17 Moore would be more helpful to EmCare if,

for example, § 541.3(e)stated that all employeesin

medicine or related fields, “other than interns and

residents,” qualify for the professional exemption.

Because NP’s and PA’s plainly are not interns or

residents, they likely would fall within the broad

scope of the regulation, even if the agency offered

a contrary interpretation.

18 See Christensen, 529 U.S. at 587-88; 29

C.F.R. § 553.23(a)(2) (providing that “the

[employment] agreement or understanding may include other provisions governing the preservation,

use, or cashing out of compensatory time so long

asthese provisions are consistent with [the relevant

statute]”).
9

controlling because the regulation was unambiguous: It permitted employers to include a

compelled use clause in an agreement (“may

include”), but by no meansrequired them to do

so. Id. at 588. Therefore, the Court held that

absent an express prohibition, the county could

pursue its policy of compulsory leave. Id.

Because the regulation in Christensen was

unambiguous, even though it did not discuss

every method the county could use to implement its policy, EmCare argues that § 541.3(e)

is also unambiguous, even though it fails specifically to discuss whether NP’s and PA’s fall

within its scope. 

EmCare’s reliance on Christensen is misplaced. The regulation there spoke directly to

the binary issue posed by the case: Did the

agencyexclude non-contractualmethods of enforcing a compelled leave policy? Moore posed

a similar yes-or-no question: Did the rule deny

the window of correction to any employer that

deducted pay for any reason besides lack of

work? 

It is possible to pose the question in this case

in a similar way: Does the regulation exempt

from the FLSA anyone who practices medicine

or one of its branches? The problem is that one

cannot answer this questionwithout addressing

the key terminological dispute: whether NP’s

and PA’s practice medicine or a branch of

medicine. When the courts in Moore and

Christensen found broad language unambiguous, theywere not confronted with the taxonomic difficulties presented here.

EmCare tries to resolve this problem with

dictionary definitions; most importantly, that

the ordinary meaning of medicine is “the art or

science of preserving health and treating disease.” RANDOM HOUSE WEBSTER’S DICTIONARY 447 (3d ed. 1998). Using that broad definition and the licensing requirement of

§ 541.3(e), EmCare formulates its proposed

reading of the rule, which isthe analytical core

of its entire argument, asfollows: “[A]ny person who has received formal permission from

the relevant authority to practice in the art or

science of preserving health and treating disease isincluded within the SalaryBasis Exception.” EmCare argues that NP’s and PA’s unambiguously fall within this definition because

they are (1) licensed and (2) act to preserve

health and treat disease.19

The decision in Clark v. United Emergency

Animal Clinic, Inc., 390 F.3d 1124,1127 (9th

Cir. 2004), lends some support to EmCare’s

position; that court held, when considering the

applicabilityof§ 541.3(e) to veterinarians, that

“[l]ogically as well as linguistically, veterinary

medicine is a ‘branch’ ofmedicine.” The court

used the “ordinary, dictionary meaning of the

terms” of the regulation to reinforce its view,

id., which is language almost identical to EmCare’s proposed formulation: “[A] doctor of

veterinary medicine is a practitioner licensed

and practicing in the field of medical science

and healing on animals, a branch of medicine.”

Id. at 1128.

Nevertheless, Clark isinapposite. First, the

fact that Clark also considered § 541.314, the

DOLinterpretive regulation,suggeststhat that

court may have believed (or at least assumed

arguendo) that § 541.3(e) is ambiguous. See

Clark, 390 F.3d at 1127. Second, and more

importantly, plaintiffs argue that the “practice

of . . . medicine” is a term of art that should be

construed as a single phrase.20

19 See supra notes 3-4 and accompanying text.

20 La. Pub. Serv. Comm’n v. FCC, 476 U.S.

(continued...)
10

For example, neither NP’s nor PA’s qualify

to “practice medicine” under Texas law.21

Wilson conceded that, as far as he was aware,

NP’s and PA’s are not licensed to practice

medicine within the meaning of any state’s

medical practices law.22 EmCare gives no satisfactory answer why this evidence should not

count toward finding ambiguity in the regulation, other than to note that the DOL nowhere

explicitly adopted anystate’s definition ofmedical practice.

Though we routinely consult dictionaries as

a principal source of ordinary meaning,23 we

may also look to other statutes dealing with

the same subject that use identical, or nearly

identical, language, to resolve a difficult

interpretive problem.24 The fact that NP’s and

PA’s are not licensed to practice medicine

under any state’s medical practices statute is

strongly persuasive evidence that these

professions do not view “practicing medicine”

as part of their job description. It is plausible

that the words “or any of [its] branches” in

§ 541.3(e) are limited to traditional medical

fields whose licenses are recognized by the

states; e.g., osteopath, dentist, chiropractor, or

optometrist. See, e.g., TEX. OCC. CODE

§ 104.003. 

Also, it is difficult to draw a limiting principle from EmCare’s proposed definition: It

would seem that registered nurses are both

(1) licensed and (2) practice the art or science

of preserving health and treating disease. But,

the courts and DOL interpretive regulations

have rejected the applicability of the profes20(...continued)

355, 372 (1986) (noting that “technical terms of art

should be interpreted by reference to the trade or

industry to which they apply”).

21 See, e.g., Weyandt v. State, 35 S.W.3d 144,

148 (Tex. App.SSHouston [14th Dist.] 2000, no

pet.) (affirming jury verdict of guilty for advanced

NP practicingmedicinewithout a license); Bradford

v. Alexander, 886 S.W.2d 394, 397 (Tex.

App.SSHouston [1st Dist.] 1994, no pet.) (stating

that PA does not practice medicine as contemplated

by the former Texas Medical Liability and

Insurance Improvement Act).

22 For example, the Texas Occupancy Code defines “practicing medicine” more strictly as “the

diagnosis, treatment, or offer to treat a mental or

physical disease or disorder or a physical deformity

or injury by any system or method, or the attempt to

effect cures of those conditions, by a person who

(A) publicly professes to be a physician or surgeon;

or (B) directly or indirectly charges money or other

compensation for those services.” TEX.OCC.CODE

§ 151.002. The Code lists neither PA’s nor NP’s as

licensed to practice the healing arts. See id.

§ 104.003.

23 United States v. Orellana, 405 F.3d 360, 365

(continued...)

23(...continued)

(5th Cir. 2005) (quoting Thompson v. Goetzmann,

337 F.3d 489, 497 n.20 (5th Cir. 2003)).

24 See Preferred Physicians Mut. Risk

Retention Group v. Pataki, 85 F.3d 913, 917-18

(2d Cir. 1996) (interpreting the word

“discriminate” by reference to ordinary meaning

and its use in other statutes); Liberty

Lincoln-Mercury, Inc. v. Ford Motor Co., 171

F.3d 818, 823 (3rd Cir. 1999) (noting the rule and

citing 2B NORMAN J. SINGER, SUTHERLAND ON

STATUTORY CONSTRUCTION §§ 51.01, 51.02,

51.03 (5th ed. 1992)); United States v. Gibson

Specialty Co., 507 F.2d 446, 450 (9th Cir. 1974)

(noting that the word “facilitate” was held to have

its ordinary meaning in the context of the statute at

issue and other statutes).
11

sional exemption to registered nurses.25 This

evidence does not suggest that § 541.3(e) unambiguously excludes PA’s and NP’s, but it is

sufficient for us to find that § 541.3(e) is ambiguous and to look to DOL’s interpretive

statements for additional guidance. 

C.

The DOL issued in 1949, and revised in

1973, an interpretive regulation (without notice

and comment) regarding the meaning of the

phrase “or any of its branches” in § 541.3(e):

Exception for physicians, lawyers, and

teachers.

(a) . . . This exception applies only to the

traditional professions of law, medicine, and

teaching and not to employees in related

professions which merely serve these professions.

(b) In the case of medicine:

(1) The exception applies to physicians

and other practitioners licensed and

practicing in the field ofmedicalscience

and healing or any of the medical

specialties practiced by physicians or

practitioners. The term physicians

means medical doctors including general practitioners and specialists, and

osteopathic physicians(doctors of osteopathy). Other practitioners in the field

of medical science and healing may include podiatrists(sometimes called chiropodists), dentists (doctors of dental

medicine), optometrists (doctors of

optometry or bachelors of science in

optometry).

(2) [Section excepting interns and residents from salary-basis test omitted]

(3) In the case of medical occupations,

the exception from the salary or fee requirement does not apply to pharmacists, nurses, therapists, technologists,

sanitarians, dietitians, social workers,

psychologists, psychometrists, or other

professions which service the medical

profession.

29 C.F.R. § 541.314(a), (b)(1)-(3) (1973).

Because neither PA’s nor NP’s are specifically

mentioned, we must ask whether, under

§ 541.314, plaintiffs are members of the “traditional profession[] of . . . medicine” or “related professions which merely service the

[medical] profession.”

EmCare reasons that the language of

§ 541.314(b)(1) is intentionally broad, and

EmCare reiterates that anyone who holds a license and practices in a medical field qualifies

for the salary-basis exception. In Clark, the

court concluded that veterinarians are “other

practitioners” within the meaning of § 541.-

314(b)(1), because the DOL did not intend the

list provided to be exhaustive and because vets

practiced “in the field of medical science and

healing,” albeit on animals. Clark, 390 F.3d at

1127. Plaintiffs point out, however, that the

Clark court supported itsinterpretation by citing the DOL’s Occupational Outlook

Handbook, which lists as “Related Professions” to veterinarians “chiropractors, dentists,

optometrists, physicians and surgeons, and podiatrists” but does not list any of these fields as

25 See, e.g., 29 C.F.R. § 541.314(b)(3) (1973);

Brock v. Superior Care, Inc., 840 F.2d 1054, 1061

n.1 (2d Cir. 1988) (holding that § 541.3(e) does not

apply to nurses); Harrison v. Washington Hosp.

Ctr., 1979 WL 1923, at *2-*3 (D.D.C. 1979)

(same).
12

“Related Professions” to NP’s and PA’s.26

Plaintiffs rely on the words “traditional professions of law, medicine, and teaching” to argue that NP’s and PA’s cannot possibly fall

within the scope of § 541.314(b)(1) because

these professions developed only in the mid1960’s and therefore did not exist in 1949 and

could hardly have been traditional in 1973.27

EmCare predictably replies that job duties, not

job titles, should control who qualifies as a traditional practitioner,28 and because PA’s and

NP’s perform many of the traditional duties of

physicians, they should qualify under the broad

language of § 541.314(b)(1).

The best textual argument drawn from

§ 541.314(b) is that subheading (3) specifically

excludes NP’s from the salary-basis exception

under the general category of “nurses.” The

DOLhasrepeatedlycategorizedNP’s underthe

heading of “Registered Nurses” and has noted

than an NP is a nurse with advanced academic

or clinical training.29 Plaintiffs also point out

that PA’s and NP’s are not “physicians, lawyers, [or] teachers” as indicated in the title of

§ 541.314. In sum, though the text of § 541.-

314 alone does not suffice to reveal entirely

the agency’s position on this issue, plaintiffs’

case gains some traction from straightforward

textual analysis.

The parties next turn to the history of

§ 541.314(b). Plaintiffs emphasize in particular that the DOL has resisted effortsto expand

the salary-basis exception several times since

its inception, rejecting a proposal in 1949 to

include “architects, engineers, and librarians”

and specifically excluding pharmacists and

nurses. The official report on the 1949 proposals stated, as the reason for keeping the

salary-basis exception limited to lawyers and

doctors, the following: “the traditional standing of these professions, the recognition of

doctors and lawyers as quasi-public officials, []

the universal requirement of licensing by the

various jurisdictions[, and the] relatively

simple problems of classification presented by

these professions.” U.S.DEP’TOFLABOR, REPORT AND RECOMMENDATIONS ON THE PROPOSED REVISIONSOFREGULATIONS,PART 541,

77 (1949).

EmCare maintainsthat the history poses no

obstacle to its position, because unlike architects, engineers, and librarians(at least historically), NP’s and PA’srequire a license to practice, and unlike nurses and pharmacists, NP’s

and PA’s help develop treatment plans for pa26 See id; BUREAU OF LABOR STATISTICS, U.S.

DEP’T OF LABOR,OCCUPATIONAL OUTLOOKHANDBOOK, supra notes 3 and 4. Although Clark cites

the 2000 Handbook, the current version includes,

inter alia, “physicians and surgeons” as “Related

Occupations” for Registered Nurse. See supra note

4.

27 See Elizabeth Harrison Hadley, Nurses and

Prescriptive Authority: A Legal and Economic Analysis, 15 AM.J.L. & MED. 245, 268 n.104 (1989)

(noting that the first training programs for NP’s and

PA’s arose in the 1960’s).

28 To that end, EmCare notes that other

practitioners with similarly limited responsibilities

also qualify for the salary-basis exception under

§ 541.314; these include optometrists, who often

cannot write prescriptions or perform eye surgery,

and interns and residents, who must work under a

physician’s supervision.

29 BUREAU OF LABOR STATISTICS, U.S. DEP’T

OF LABOR,OCCUPATIONALOUTLOOK HANDBOOK,

supra note 4 (including NP’s under “Registered

Nurses” heading and listing NP as an “advanced

practice nursing specialt[y]”).
13

tients. Hence, Emcare represents that nowhere

in the history does the DOL ever exclude a

“practitioner” (as EmCare definesthat term) of

medical science or healing.

The parties also reference the 2004 amendmentsto the DOL regulations as persuasive authority. The amendments effectively adopted

§ 541.314 after notice and comment, without

substantive change,30 thereby tending to show

that the text of § 541.3(e) does not contradict

the former § 541.314. EmCare notes that the

new regulations specifically list PA’s alongside

nurses and technologists as “learned professionals” who satisfy the duty requirements

for the professional exemption, id. at § 301-

(e)(4), but does not include PA’s among nurses

and technologists in the list of professions that

fall outside the salary-basis exception, id. at

§ 541.600(e). Though this observation alone

is insufficient to show that EmCare should

prevail, it does support EmCare’s case

somewhat.31

Plaintiffs and the district court also noted a

statistical chart in the 2004 rule’s preamble that

showsthat 53,420 hourly paid PA’s and 34,053

salaried PA’s are subject to the salary-basistest;

no physicians, dentists, or optometrists,

however, are subject to it. The court reasoned

that because the DOL had not changed the

substance of the 1973 rule in 2004, the salarybasis exception included PA’s both before and

after the revisions. See Belt, 351 F. Supp. 2d

at 632-33. EmCare contends that we cannot

consider the preamble because it is not a

“sufficiently clear” indication of the agency’s

intent to bind itself to the underlying policy,

see Kennecott Utah Copper Corp. v. United

States Dep’t of Interior, 88 F.3d 1191, 1223

(D.C. Cir. 1996), and because the Clark court

determined that veterinarians fall within the

salary-basis exception even though the

preamble also lists 1,037 hourly-paid vets and

16,267 salaried vets as subject to the salarybasis test.32

The most specific DOL interpretive statements on point include a 1974 DOL opinion

letter and 1994 Field Operations Handbook

(which contains almost identical language to

the opinion letter) that state that PA’s need to

be compensated on a salary basisto qualify for

the Professional Exemption.33 EmCare does

not dispute the meaning of the letter and

Handbook but repeats its position that we

should not consider agency interpretations in

light of the fact that the 1973 regulation,

§ 541.3(e), is unambiguous; EmCare also

questions the thoroughness with which the

30 See 29 C.F.R. § 541.304. The DOL noted

that it had “received few comments on this provision

and does not believe any substantive changes are

necessary in light of those comments.” 69 Fed. Reg.

22,122, 22,158 (Apr. 23, 2004).

31 The district court’s reliance on this point to

support plaintiffs’ position seems an unnatural inference. The court basically reasoned that because

all three professions are expressly mentioned in the

duty section, all three should also be excluded from

the salary-basis exception, even though that section

mentions only nurses and technologists. See Belt,

351 F. Supp. 2d at 632.

32 Also, EmCare notes that no NP’s are listed as

covered by the salary-basis test; therefore, we

should assume that they, like physicians, fallwithin

the salary-basis exception.

33 WAGE AND HOUR DIV., U.S. DEP’T OF

LABOR, FIELD OPERATIONS HANDBOOK § 22d23

(1994), available at http://www.dol.gov/esa/whd-

/FOH/FOH_Ch22.pdf (stating that, to qualify, the

PA must be “compensated for his or her services

on a salary basis of not less than $250 a week, exclusive of board, lodging, or other facilities”).
14

agency considered its position in the letter.

Finally, the DOL’s amicus brief unambiguously

adopts the position that NP’s and PA’s do not

qualify for the professional exemption.

D.

The DOL’s interpretive statements come to

this court in a wide variety of formats, and we

must decide what weight to give them under

our precedents. We conclude that Auer applies,

so we give controlling weight to the DOL’s position adopted in the 1974 opinion letter, 1994

Handbook, and amicus brief, excluding PA’s

(and by extension, NP’s) from the professional

exemption to the FLSA overtime rules. 

InAuer, theCourt found that the Secretary’s

amicus briefsufficed to show how the DOL interpreted its own ambiguous regulation: The

brief “is in no sense a ‘post-hoc rationalization’

advanced by an agency seeking to defend past

agency action against attack. There is simply

no reason to suspect that the interpretation

does not reflect the agency’s fair and

considered judgment on the matter in

question.” Auer, 519 U.S. at 462.

Similarly, there is no reason here to doubt

the good faith of the Secretary’s position, as

amicus, that NP’s and PA’s must satisfy the

salary-basis test. In particular, the position is

consistent with the department’s 1974 opinion

letter (written one year after interpretive regulation § 541.314) and 1994 Handbook, which

explicitly subject PA’s to the salary-basis test,

and the DOL’s classification of NP’s as a subset

of registered nurse in its Occupational Outlook

guide. Also, the history of the exception

suggests that the agency intended to limit its

reach to traditional medical practitioners, and

state licensing regimes appear to mirror this approach. Although it seems beyond question

that NP’s and PA’s assume many of the traditional duties of doctors, the language of

§ 541.3(e) “comfortably bearsthe meaning the

Secretary assigns.” Id. at 461.

Our decision in Moore does not require a

contrary result. There we noted that “[Chevron] deference is not appropriate for an interpretation of a regulation found in an amicus

curiae brief.”

34 We recognized, 317 F.3d at

494, however, that the Court in Auer had given controlling weight to an amicus brief, and

we correctly concluded that the critical question after Christensen, in deciding when to defer to informal interpretations of agency rules,

is whether the underlying regulation is ambiguous. 

We did not have occasion to defer to the

Secretary’s position as amicus in Moore, because the agency rule was plain. See id. at

497. Because, however, we decide that

§ 541.3(e) is ambiguous, we give controlling

weight to the DOL opinion letter, Handbook,

and amicus brief under AuerSSmore than the

mere respect required by Skidmore.

35

34 Moore, 317 F.3d at 494; see also Christensen, 529 U.S. at 587 (stating that “interpretations

contained in formats such as opinion letters are

‘entitled to respect’ under our decision in Skidmore[], but only to the extent that those

interpretations have the ‘power to persuade[.]’”).

35 We leave intact our observation in Moore

that Chevron deference is inappropriate for

informal agency interpretations, such as opinion

letters and amicuscuriae briefs. See Moore, 317

F.3d at 494. The most important reason for

extending greater deference to an amicus brief that

purports to interpret an agency’s own ambiguous

regulation (under Auer), than a brief that interprets

the organic statute directly (under Chevron), is the

greater expertise and familiarity of the agency with

(continued...)
15

EmCare’s basic position is that it is possible

to attribute a sufficiently clear scope to general

language such as “practice . . . medicine or any

of [its] branches” to allow a court to decide

whether a particular person falls within its ambit. Though courts often find broad language

unambiguous,36 this case presents mixed evidence of ordinary meaning, particularly in the

conflict between the strict definition of medical

practice used bythe Medical Practices Acts and

EmCare’s more generous definition, derived

from common usage. Whether, in the abstract,

NP’s and PA’s “practice medicine” presents a

close question of classification, akin to distinguishing among the Platonic Forms, but it is

one that we need not reach. As explained in

Ehlert v. United States, 402 U.S. 99, 105

(1971),

[w]e need not take sides in the somewhat

theological debates . . . that the phrasing of

thisregulation hasforced upon so many federal courts. Rather, since the meaning of the

language is not free from doubt, we are obligated to regard as controlling a reasonable,

consistently applied administrative interpretation if the Government’s be such.

Because the language of § 541.3(e) is not “free

from doubt,” and in view of the fact that the

Secretary’s position findssupport in past practice and is not “plainly erroneous or inconsistent with the regulation,” Auer, 519 U.S. at

461, deference is appropriate.

IV.

Congress has entrusted the DOL with the

task of defining who is eligible for the professional exemption to the FLSA. The agency

has determined that a necessary indicator of

professional status in most cases is salaried

compensation, with the limited exception of

the traditionalSSi.e., well-established and easily

identifiableSSprofessions oflaw,medicine, and

teaching. Absent a plain statement in a formal

rule that NP’s and PA’s fall within this

exception, the courtsmust choose between deciding the question de novo and deferring to

the agency’s lessformal, but more specific, interpretive statements. 

Auer counselsthat deference better accords

with Congress’s intent and the agency’s comparative expertise. Not only is the agency in a

better position to determine when a salary is

necessaryto identifya professional: the agency

is also better placed to make the calibrated

policy judgment that PA’s and NP’s, despite

higher barriers to entry and the increasing sophistication of their practice, are nascent professions in need of the FLSA’s protection

against the threat of “the evil of overwork as

well as underpay.”37

The summary judgment is AFFIRMED, and

35(...continued)

respect to the history and content of its own enacted

rules. See John F. Manning, Constitutional

Structure and Judicial Deference to Agency

Interpretations of Agency Rules, 96 COLUM. L.

REV. 612, 630-31 (1999). But see id. at 618 (concluding that, “by providing the agency an incentive

to promulgate imprecise and vague rules, [Auer-type

deference] undercuts important deliberative process

objectives of the APA, and it creates potential

problems of inadequate notice and arbitrariness in

the enforcement of agency rules.”).

36 See, e.g., MCI Telecomms. Corp. v. AT&T

Co., 512 U.S. 218 (1994) (finding that the ordinary

meaning of “modify” unambiguously precluded the

FCC’s interpretation under the Communications

Act). 

37 81 CONG. REC. 4983 (1937) (message of

President Roosevelt).
16

this matter is REMANDED for further

proceedings.