## REVISED APRIL 4, 2006
In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 05-40370

______________



### J UNE 

### B ELT 

### , ON B EHALF OF H ERSELF AND ON B EHALF OF ALL O THERS S IMILARLY S ITUATED ;



### P AUL 

### M AIOCCO 

### , WASHINGTON P LAINTIFF ; 

### D ONALD 

### C HRISTIAN 

### , N EW Y ORK P LAINTIFF ; 

### L UCILLE 

### M OYLAN 

### , I LLINOIS P LAINTIFF ; 

### V ICTOR 

### AMBROSIA 

### , I LLINOIS P LAINTIFF ; 

### H UNTINGTON 

### Y EO 

### ; D ARYL 

### W EIN 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### J EANETTE 

### S HELLY 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### R ONALD 

### M ARTINEZ 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### J ULIE 

### J UNG 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### D EBORAH 

### G ASKINS 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### D AVID 

### D ONA 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### M ASON 

### C ARLIN 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### S USAN 

### B ERTELSEN 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### N EIL 

### ADLER 

### , UCL AND C ALIFORNIA P LAINTIFF ; 

### D EBORAH 

### N ICHOLS 

### , ARIZONA P LAINTIFF ; 

### FLSA E MPLOYEES 

### , Plaintiffs-Appellees,

VERSUS


### E M 

### C ARE 

### , I NC 

### ., AND 

### T EXAS 

### EM-I M EDICAL 

### S ERVICES 

### , P.A., Defendants-Appellants. United States Court of Appeals

Fifth Circuit 

## F I L E D March 24, 2006 Charles R. Fulbruge III Clerk23 _________________________ Appeal from the United States District Court fo r the Eastern District of Texas

_________________________

Before K

ING , S MITH , and B ENAVIDES , Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

This appeal presents th e question whet her physician assistants (“PA’s”) and nurse practitioners (“NP’s”) 1 qualify fo r th e prof essional exemption to th e overtime requirements of the Fair Labor Standards Act (“FLSA”). Pl aint iffs, and th e Departm

ent of Labor (“DOL”) as amicus curiae , contend th at th e regu lation interpreting th e prof

essional exemption, 29 C. F .R. § 541.3 (1 973), does not speak to the preci se question before us and th at th e agency’s informal int erpretive statem

ents excluding plaint iffs from th e exemption merit deference under Auer v. Robbins , 519 U.S. 452 (1997). We agree and affirm, and remand fo r further proceedings.

I. Pl aint iffs are 59 PA’s and 20 NP’s who provide health care services fo r Em Care, Inc., in hospital emergency rooms in twenty states. 2 Pl aint iffs are paid hou rly at a flat rate for all hours wo rked, including overtime (i.e., all hours over fo rty in a workweek). The DOL’s Bureau of Labor Stati stics’ Occupational Outlo ok Handbook provides an overview of the jo b descriptions of PA’s and NP’s:Physician assistants (PAs) practice medicine under the supervision of physicians and surgeons
. . . PAs are fo rm ally t rained to provide diagnostic, therapeutic, and preventive health care services, as delegated by
a physician. Wo rking as members of the health care team , they take medical histories, e xam ine and treat patients, order and int erpret labo ratory te sts and x ray s, and
make di agnoses. They also treat minor injuries, by suturing, splint ing, and casting. PAs record progress notes, inst ruct and counsel p ati ents, and order or carry out therapy. In 48 States and the District of Col umbia, physician assistants may prescribe medicat io ns. PAs also may have managerial duties. Som e order m

edical 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 col lective term “mid-level providers.” Recognizing that the re spective choices of terms are strategic, we use the official titles.

2 Defendant Texas EM-I is a physicians group
re sponsible 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 “p roviding recruiting, scheduling, ma lpractice insurance coverage, risk
ma nagement, 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 primary and specialty care providers in mainly med ically underserved areas . . . In mo st States, advanced practice nurses can prescribe medications.[ 4 ]

Pl aint iffs sued EmCare fo r back wages and liquidated damages under th e FLSA, alleging th at Em Care was vio lat ing th e FLSA by failing to pay time-and-a-half com pensation fo r overtime. Em

Care responded that it did not owe plaint iffs additional pay, because th ey qualify fo r an exemption as bona fide prof essionals under 29 C.F.R. § 541.3(e) (1973). The parties filed cross-motions fo r parti al summary judgment on this issue, and th e district court granted plaint iffs’ mo tion. S ee June Belt v. EmCare Inc. , 351 F. Supp. 2d 625 (E.D. Tex. 2005).

The court reasoned th at § 541.3(e) is ambiguous, so it deferred to th e DOL’s info rmal pronouncements on § 541.3(e), including a DOL opinio n let ter and the Wage and Hours Field Operatio ns Handbook, which tended to show th at PA’s and NP’s must be paid on a salary basis to be exempt from th e FLSA. Th e court based it s decision on Auer , 519 U.S. at 461, which held th at an agency’s int e rpretation of it s own ambiguous regulation is cont rolling unless clearly erroneous or inconsistent with the regulation.

The court also considered the hist ory of the FLSA’s professional exemption, which showed that the DOL had rej ected earlier effo rts to expand the exemption to include other prof essionals, such as engineers and architects, and th at the NP and PA prof essions had not fully developed when the exe mpt ion was created. The court further considered the latest version of the applicable regulations, effec ti ve August 23, 2004, 5 which codified a previous informal interpretation of § 541.3(e) (i .e., provided notice and com ment ), requiring th at certain analogous prof essions , such as
nurses and certified medical technologists, be salaried to be exempt f

rom the overtime requirements. The court certified it s order for int erlocutory appeal under 28 U.S.C. § 1292(b), 6 and we granted leave to appeal.

II. The FLSA provides that a covered employee shall receive com

pensation at one-andone-half times the regular rate fo r every hour

3 Physici an Assistants , i n B UREA U OF L AB OR S TA TISTICS , U.S. D E P ’ T OF L AB OR , O CCUPA TIONAL O UTLOOK H ANDBOOK 2006-07, http:/ / www.bls.gov/oco/ocos081.htm (last visited March 13, 2006).

4 Nurse Practitioners , in B U REA U OF L AB OR S TA TISTICS , U.S. D EP ’ T OF L AB OR , O CCUPA TIONAL O UTLOOK H ANDBOOK 2006-07, http://www.bls.gov/oco/ocos083.htm (last vi s ited 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 re
visions instructive, the facts underlying this case occurred before the recent am endments 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 is substantial ground for difference of opinion and . . . an im

mediate appeal from the order ma y ma terially advance the ultimate termination of the litigation.”5

over forty worked during the week, 7 but not if he is “emplo yed in a bona fide executive, administ rative, or prof

essional capacity . . . as such terms are defined and delimit ed from time to time by regulations of th e Secretary .” 29 U.S.C. § 213(a)(1). Pursuant to thi s authority , th e DOL, aft er no ti ce and comment, issued § 541.3, which defines a “bo na fide

. . . professio nal” as an employee who sati sfies certain duty requi rements 8 and “is com

pensated fo r services on a salary or fee basis” (the “salary-basis test”). 9 Section 541.3(e) further provides th at the salary-basis test does not apply to “an employee who is the holder of a valid license or certificat e 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 t he parties agree th at plaint iffs sati sfy the duty requirement s of the prof

es s io nal exemption and are paid hourly, the sole int erpretive issue in this appeal is whether NP’s and PA’s hold a license permitting, and actually e ngage in, “the practice of . . . m

edicine or any of [its] branches.”

If NP’s and PA’s practice medicine wit hin t he meaning of § 541.3(e), plaintiffs do not need to sati s fy the salary-basis test to qualify fo r the exemption, and Em Care can deny addit io nal o vertime pay. If, however, plaintiffs do not practice medic ine under § 541.3(e), they are subject to the salary -basis test, they do not f all wit hin the exemption, and they are eligible fo r time-and-a-half com pensation. We
are the fir st circuit to address the precise issue presented by this case.

III. When confronted wit h a statute administered by an executive agency, we defer to the agency’s int erpretation 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 t wo-step test when int erpreting 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 commer ce or in the production of goods for commerce, or is emp loyed in an enterprise engaged in commer ce or in the production of goods for commerce, for a workweek longer than forty hours unless such employ ee 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 a n advanced type in a field of science or learning customari ly acquired by a prolonged course of specialized intellectual in struction 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 emp loyee is considered paid on a “salary . . . basis” if “under his employment agreement he regularly receives each pay period on a weekly, or less freq uent basis, a predetermined
am ount co nstituting 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

wit h respect to t he specific question considered.” 11
Second, if th e regulation is ambiguous, the agency’s int erpretation (as contained in, e.g., opinio n let ters) is “controlling unless plainly erroneous or inco nsist ent with the regulation.” Auer , 519 U.S. at 461 (art iculating the rule in th e context of int erpreting a different aspect of th e salary-basis test) (int ernal quotations om it

ted). If the regulation is unambiguous, we may still consider agency int erpretation, but only according to its persuasive power. 12

A. Em Care argue s that PA’s and NP’s unamb iguously practice medicine or a bran ch of medicine wit hin the meaning of § 541.3(e), and plaint iffs maint ain the regulation does not speak to th is precise question. Before addressing the issue on the merit s, however, plaint iffs contend it is waived because Em Care raises it fo r th e first time on appeal, having consistently represented to th e district court th at § 541.3(e) is ambiguous, and having relied inst ead on the int erpret ive regulation, 29 C.F.R. § 541.314 (1973), to make it s case.
Em Care repl ies that “an argument is not waived on appeal if t he argument on the issuebefore the district court was sufficient to permit the district court to rule on it .” 13 The district court held th at “[t]hese regulations do not expressly address whether physician assistants and nurse practi

tioners are exempted from the salary-basis test, and, on this issue, the regulation is therefore ambig uous.” B elt , 351 F. Supp. 2d at 627. We have spoken to this waiver issue:

If a lit igant desires to preserve an argument fo r app eal, the l

it igant must press and not merely int imat e the argument during the proceedings before the district court. If an argument is not raised to such a degree th at 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, t hat “[n]o bright-line rule exists fo r determ ining whether
a mat ter was raised belo w.” N .Y. Life Ins. Co.
v. Brow n , 84 F.3d 137, 142 n.4 (5th Cir. 1996).

Em Care’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”).

12 Moore , 317 F.3d at 495; C hristensen , 529 U.S. at 587 (stating that “interpretations contained in formats such as opinion letters are entitled to re
spect

. . . but only to the extent that those interpretation s 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 re sort 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 re asoning, its consistency with earlier and later pronouncements , an d all those factors which give it power to persuade, if lacking power to control. 13 Lifemark Hosps., Inc. v. Liljeberg E nters. , 304 F.3d 410, 428 n.29 (5th Cir. 2002).7

Wilso n, stated under oath th at Em Care was relying only on th e DOL’s int erpretive regulation, not § 541.3. Em

Care contends, however, that it argued to th e district court th at the c o urt sho uld not rel

y o n a 1974 DOL opinion letter be cause pl aint iffs “are included within the unambiguous terms of § 541.3 and § 541.314, and th at any agency int erpretation of th ose regulat io ns should be given only persuasive deference, if any, under Skidmore .”

Our review of th e record, coupled wit h the fact th at Em

Care can provide no specific quotation or any excerpt f

rom any dist rict court filing to support it s claim, suggests Em Care did not “press

. . . the argum ent” in the district
c ourt. Mijalis , 15 F.3d at 1327. Because, however, a finding th at § 541.3 i s ambiguous
was nec essary to th e district court’s ultimate conclusion th at it w as appropri ate to def er to th e agency’s info rmal int erpretive statements under Auer , th e issue was sufficient ly raised fo r th e court to rule on it , see Liljeberg , 304 F.3d at 428 n.29, and is preserved for appeal.

B. Pl aint iffs claim th at regulator y exemptions from th e FLSA must be “narrowly construed against th e employers seeking to assert them and th eir application limited to those [employers] plainly and unmist akably wit hin th eir terms and spirit.” A rnold v. Ben Kanow sky, Inc. , 361 U.S. 388, 392 (1960). In A rnold , however, the Court applied it s canon of strict construction against employers in t he course of interpreting ambiguous statutory lang uage in t he former exemption from FLSA overtime requirements fo r a retail e stabl

ishment

. S ee 29 U.S.C. § 213(a)(2), (4) (1949). Because t here was no regulatory int erpretation of th e rele vant provisions of § 213, th e Court needed to consider legislat ive hist ory , pas t precedent, and canons of construction to reach its result. S ee Arnold , 361 U.S. at 392-94. Here, the current § 213(a)(1) explicit ly gives the DOL authority to define an d cabin the definit io n of “bo nafide

. . . prof

essional” and hence the scope of the prof essional exemption. It would be inappropri ate to appl

y a canon of strict (as opposed to fair) construction to the agency’s discretionary exercise of it s own, lawfully delegated authori

ty

. 14
Therefore, because the regulatio ns do not define the ter m s used in § 541.3(e), we must consider the words’ ordinary meaning. 15 Em

Care argues th at capacious language does not automatically e nt ail ambiguit y and that NP’s and PA’s unambiguously fall wit hin the broad scope of § 541.3(e). EmCare relies on caselaw, dictionary def

init io ns, 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” fo r employers who make improper deductions from the paychecks of exempt employees under th e FLSA. The regulation states th at an employee will automatically lo se exempt status unless the deduction is made th rough “inadvertence, or is made fo r reasons other th an lack of work.” I d. at § 541.118- (a)(6). We reasoned th at the relevant deductions in th at case, made as a disciplinary pen14 See Auer , 519 U.S. at 463 (“A rule requiringthe 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 , “w e must first determine whether the Secretary applied the ordinary meaning of that term.”).8

alt y fo r cash register shortages, were “made fo r reasons oth er th an lack of work” and therefore could be corrected by th e employer

. Moore , 317 F.3d at 496-98. In th e course of reaching our deci sio n, we noted that
[t]he presence or lack of ambiguit y in a regulation should be determ

ined wit hout reference to proposed int erpretations; otherwise,
a regulation will be considered ‘ambiguous’ merely because its authors did not have the fo rethought expressly to contradict any creative contortion th at may lat er be constructed to expand or prune its scope.

Id. at 497. Em

Care cites this language to support its contention that we should give no weight to agency int erpretatio ns that seek to “narrow” th e reach of § 541.3(e) to e xclude NP’s and PA’s merely because the regulation does not explicitly ment io n t hem.

Moore is distinguishable: We held, based on th e regulation’s language, th at “lack of work” exhausted the universe of reasons why an employer could not corr ect an improper deduction. M

oore , 317 F.3d at 497 (applyi ng reasoning akin to expressio unius ). Because disciplinary deductions were not made fo r “lack of work,” 1 6 th ere was no “ambiguit y wit h respect to the specific question considered.” Id. at 495. In contrast, § 541.3(e) contains no similarly fo rthright exclusionary language: Just because a regulation limit ed to persons “actually engaged in the practice” of medicine “o r 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 r egul ation that allo wed employers to contractually obligate employees to take mandatory leave to reduce accrued com pensatory time. 18 In that case, Harris County implemented a mandatory pol

icy, not in the initial employment agreements, but only aft er it became apparent th at the county could not pay employees fo r accrued time. Pl aint iffs relied on a DOL opinio n let ter that stated em ployers coul d institute this policy only in the text o f the agreement it self. C

hristensen , 529 U.S. at 581.

The Court fo und that the letter was not

16 The Secretary of Labor ma de no effort in Moore to argue that the deductions in question were ma de for “lack of work.” Instead, the Secretary argued, despite the text of the regul ation, that n o employer who engages in a practice of impermissible deductions can cure the problem through the window of correction, except for inadvertence. S ee Moore , 317 F.3d at 493-94 (quoting K lem 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 employees in medic i ne or related fields, “other than interns and
re sidents,” qualify for the professional exemption. Because NP’s and PA’s plainly are not interns or
re sidents, 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 ma y include other provisions governing the preservation, use, or cashing out of compensatory time so long
as these provisions are consistent with [the relevant statute]”).9

controlling because th e regulat io n was unambiguous: It p ermitted employer s to include a
com pelled use cl ause in an agreement (“m ay include”), but by no means required th em to do
so. Id. at 588. Therefore, the Court held that absent an express prohibition, th e county could pursue it s p o licy of com pulsory leave. I

d. Because th e regulation in Christens en w as u n ambiguous, even th ough it did not discuss every met hod th e county could use to implement it s pol

icy, Em Care argues th at § 541.3(e) is also unambiguous, even though it fails specifically to di scuss whether NP’s and PA’s fall wit hin it s scope.
Em Care’s reliance on Christensen is misplaced. The regulation th ere spoke directly to th e binary issue posed by th e case: Did the agency exclude non-contractual met hods of enfo rcing a com

pelled leave pol

icy? M oore posed
a similar yes-or-no question: Did the rule deny th e window of correction to any employer th at deducted p ay fo r any reason besides lack of work?

It is possible to pose th e question in this case in a similar way: Does the regul ation exempt from th e FLSA anyo ne who practices medicine
or one of it s branches? The problem is that one cannot answer this question wit hout addressing th e key term

ino lo gical dispute: whether NP’s and PA’s practic e m

edicine or a branch of medicine. When the courts in M oore and Christense n fo und broad language unambiguous, th ey were not confronted wit h the taxonom ic difficult ies presented here.

Em Care tries to resolve this problem wit h dictionary definit io ns; mo st impo rtantly, that th e ordinary meaning of medicine is “t he art or science of preser ving health and treating disease.” RANDOM H OUSE W EBSTER ’ S D ICTION

ARY 447 (3d ed. 1998). Using that broad definit io n and the licen sing requirement of § 541.3(e), Em

Care fo rm

ulates it s proposed reading of the rule, which is the analyt ical core of it s entire argument, as fo llo ws: “[A]ny person who has received formal permission from the relevant authority to practice in the art or science of preserving healt h and treating disease is included wit hin the Salary Basis Exception.” Em

Care argues that NP’s and PA’s unambiguously fall wit hin this definit io n 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 so me support to Em Care’s position; th at court held, when considering the applicabilit y of § 541.3(e) to veterinarians, th at “[l]ogically as well as linguist ically, veterinary medicine is a ‘branch’ of medicine.” The court used the “ordinary, dictionary meaning of the terms” of the regulation to reinforce it s view, id. , which is language almo st identical to Em

Care’s proposed form

ulation: “[A] doctor of veterinary medicine is a practi t io ner licensed
a nd practicing in the field of medical scien c e and healing on animals, a branch of medicine.” Id. at 1128.
Nevertheless, Clark is inapposite. First, the fact th at Clark also considered § 541.314, the DOL int erpretive regulation, suggests th at th at court may have believ ed (or at least assumed arguendo ) that § 541.3(e) i s ambiguous. S ee Clark , 390 F.3d at 1127. Second, and m ore impo rtantl

y, plaint iffs argue th at the “practice of

. . . medicine” is a term of art th at should be construed as a single phrase. 20

19 See supra notes 3-4 and accompanying text.

2 0 La. Pub. Serv. Comm’n v. FCC , 476 U .S. (continued...)10

For example, neither NP’s nor PA’s qualify to “pract ice medicine” under Texas law. 2 1 Wilso n conceded th at, as far as he was aware, NP’s and PA’s are not licensed to practice m edicine within the meaning of any state’s medical practices law. 22 Em Care gives no satisfactory an swer why this evidence should not count toward finding ambiguit y in th e regulation, oth er th an to note that the DOL nowhere explicit ly adopted any state’s definit io n of medical practice. Though we routinely consult dictionaries as a principal source of ordinary meaning, 23 we may also lo ok to other st atutes deal ing wit h the same subj ect that use identical, or nearly identical , l anguage, to resolve a difficult int erpretive problem. 24 The fact that NP’s and PA’s are not licensed to practice medicine under any stat e’s m

edical practices statute is strongl y persuasive evid ence th at these prof essions do not view “practicing medicine”
as part of their job description. It is plausible th at the words “o r any of [its] branches” in § 541.3(e) are limit ed to traditional medical fields whose licenses ar

e recognized by the states; e.g., osteopath, dentist, chiropractor, or optom et r ist

. S ee, e.g. , T EX

. O CC

. C ODE § 104.003.

Also , it is difficu lt to draw a limit ing principle from Em

Car e ’s proposed definit io n: It would seem th at registered nu rses are both (1) licensed and (2) practice the art or science of preserving health and treating disease. But, the courts an d DOL int erpretive regulations have rej ected the applicability of the profes20 (...continued) 355, 372 (1986) (noting that “technical terms of art should be inte

rpreted 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. SS

Houston [14th Dist.] 20 00, no pet.) (a f firming jury verdict of guilty for advanced NP practicing medicine without a license); Bradfor d
v. Alexander , 886 S.W.2d 39 4, 397 (Tex. App. SS Houston [1st Dist.] 1994, no pet.) ( statin g 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 medici ne” more strictly as “the diagnosis, treatment, or offer to tre at a m ental 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.” T E X

. O CC

. C ODE § 151.002. The Code lists neither PA’s nor NP’s as licensed to practice the healing arts. S ee 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 S ee Preferred Physicians Mut. Risk Retention Group v. Pataki , 85 F. 3d 913, 917-18 (2d Cir. 1996) (interpreting the word “discriminate” by re fe

rence to ordinary meaning and its use in other statutes); L i berty Lincoln-Mercury, Inc. v. Ford Motor Co. , 171 F.3d 818, 823 (3rd Cir. 1999) (noting the rule and citing 2B N ORMAN J. S INGER , S UTHERLAND ON S TA TUTORY C ONSTRUCTIO N §§ 51.01, 51.02, 51.03 (5th ed. 1992)); U nited States v. Gibson Specialty Co. , 507 F.2d 446, 450 (9th Cir. 1974) (noting that the word “facilitate” was held to have its ordinary mea ning in the context of the statute at issue and other statutes).11

sio nal exemption to registered nurses. 2 5 This evidence does not suggest th at § 541.3(e) unambiguously excludes PA’s and NP’s, but it is sufficie nt fo r us to f

ind t hat § 541.3(e) is ambiguous and to lo ok to DOL’s int erpretive statem ents for additional guidance.

C. The DOL issued in 1949, and revi sed in 1973, an int erpretive regulation (with out notice and com ment) regarding the meaning of the phrase “or any of its branches” in § 541.3(e): Exceptio n for physicians, lawyers, and teachers.
(a)

. . . This exception applies only to the traditional prof

essions of law, medicine, and teaching and not to em

ployees in related prof essions which merely serve these professions. (b) In the case of medicine:
(1) The exception applies to physicians and oth er practi

tioners licensed and practicing in th e field of medical science and healing or any of the medical specialties practiced by physicians or practi tioners. The term physicians
means medic a l doctors including general practi

tio ners and specialists, and osteopathic physicians (doctors of osteopathy). Other practi

tioners in the field of medical science and healin g may include podi atri sts (som

etimes called chiropodi sts), de n ti sts (doctors of dental medicine), optom

e tri sts (doctors of optom etry or bachelor s of science in optom etry). (2) [Section excepting int erns and residents from salary-basis test omitted]
(3) In the case of medical occupations, the exception from the salary or fee requirement does not app ly t o pharmacists, nurses, therapists, technologists, sanitarians, dietitians, soci al workers, p sycholo gists, psychometrists, or other prof essio n s which service the medical prof ession.

29 C.F.R. § 541.314(a), (b)(1)-(3) (1973). Because neit her PA’s nor NP’s are specifically ment io ned, we m

ust ask whether, under § 541.314, plaint iffs are members of the “tradit io nal prof

ession[] of . . . medicine” or “relat ed prof

essions which merely service the [m edical] profession.”

Em Care reasons th at the language of § 541. 314(b)(1) i s int entionally broad, and Em Care reiterates th at anyo ne who holds a license and practices in a medical field qualifies fo r the salary-basis exception. In Clark , the co urt con cluded that veterinarians are “other practi t io ners” wit hin the meaning of § 541.- 314(b)(1), because the DOL did not int end 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 112 7. Pl aint iffs po int out, however, that the Clark court supported it s int erpretation by cit

i ng the DOL’s Occupational Ou tl ook Handbook, which list s as “Related Professio ns” to veterinarians “chiropractors, dentist s, optom etri sts, 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) (1 9 73); 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, a t * 2-* 3 (D.D.C. 1979) (same).12

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

Pl aint iffs rely on th e words “t raditional professions of law, medicine, and teaching” to argue th at NP’s and PA’s cannot possibly fall
w it hin th e scope of § 541.314(b)(1) bec ause th ese prof

essions developed only in the mid1960’s and therefore did not exist in 1949 and could hardly have been traditional in 1973. 27 Em Care predictably replies th at jo b duties, not jo b ti tles, should control who qualifies as a tradit io nal practi

tioner, 28 and because PA ’s and NP’s perform many of the traditional duties of physicians, th ey should qualify under the broad language of § 541.314(b)(1).

The best textual argument drawn from § 541.314(b) is th at subheading (3) specifically
e xcludes NP’s from th e salary-basis exceptio n under th e general category of “nurses.” The DOL has repeatedly categorized NP’s under the heading of “Registered Nurses” and has noted th an an NP is a nurse wit h advanced academic
or clinical training. 2 9 Pl aint iffs also point out th at PA’s and NP’s are not “physicians, lawyers, [or] teachers” as indicated in the ti tle of § 541.314. In sum, though the text of § 541.- 314 alo ne do es not suf

fice t o reveal entirely the agency’s position on this issue, plaint iffs’
case gains som

e traction from straightforward textual analysis.

The parties next turn to th e history of § 541.314(b). Pl aint iffs emphasize in particular th at the DOL has resisted effo rts to expand the salary-basis exception several times since it s inception, rejecting a proposal in 1949 to include “architects, engineers, and librarians” and specifically excluding pharmacist s andnurses. The official report on the 1949 proposals stated, as the reason fo r keeping the salary-basis exception limit ed to l awyers and doctors, the follo wing: “t he traditional standing of these prof

essions, the recognition of doctors and lawyers as quasi-public of ficials, [] the universal requirement of licensing by t he various jurisdict io ns[, and the] relatively simple problems of classificat io n presented by these prof essions.” U.S. D EP ’ T OF LABOR , RE

PORT AND RECOM M ENDATIONS ON THE P RO

POSED REVISIONS OF REGULATIO NS , PART 541, 77 (1949).

Em Care maint ains th at the hist ory poses no obstacle to i

ts position, because unlike architects, engineers, and librarians (at least hist ori

cally), NP’s and PA’s require a license to practice, and unlike nurses and pharmacists, NP’s and PA’s help develop treatm ent plans fo r pa26 See id ; B UREA

U OF L AB OR S TA

TISTICS , U.S. D EP ’ T O F LAB OR , O CCUPA TIONAL O UTLOOK H AND

BOOK , supra notes 3 and 4. Although C lark c i tes the 2000 Handbook, the current version includes, inter alia , “physicians and surgeons” as “Related Occupations” for Registered Nurse. S ee supra note 4.

27 See Elizabeth Harr ison Hadley, N urses and Prescriptive Authority: A Legal and Economic Analysis , 15 A

M

. J.L. & M ED

. 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 re sponsibi lities also qualify for the sal ary-basis exception under § 541.314; these include optometrists, who often cannot write prescriptio ns or perform eye surgery, and inter ns and residents, who must work under a physician’s supervision. 29 B UREA U OF L AB OR S TA

TISTICS , U.S. D EP ’ T OF LA BOR , O CCUPA

TIONAL O UTLOO K HANDBOOK , supra note 4 (including NP’s under “Registered Nurses” heading and listing NP as an “a d vanced practice nursing specialt[y]”).13

tients. Hence, Emcare represents that nowhere in th e hist ory does th e DOL ever e xclude a “practitioner” (as Em

Care defines th at term

) of medical science or healing.

The parties also reference the 2004 amendment s to th e DOL regulations as persuasive auth ority

. The amendments effectively adopted § 541.314 after notice and comment, without substantive change, 30 th ereby tending to show th at th e text o f § 541.3(e) does not contradict th e fo rm er § 541.314 . EmCare notes that the
new regulations specifically list PA’s alo ngside
nurses and technolog ist s as “learned professionals” who sati sfy th e duty requi rements fo r th e professional exemption, i d. at § 301- (e)(4), but does not include PA’s amo ng nurses and technologists in the list of prof essions that fall outside th e salary -basis exception, i d. at § 541.600(e). Though this observation alone is insufficient to sh ow that Em Care should prevail, it does support EmCare’s case
som ewhat. 31

Pl aint iffs and th e district court al so noted a stati stical chart in th e 2004 rule’s preamble th at shows th at 53,420 hourly paid PA’s and 34,053 salaried PA’s are subject to th e salary-basis test; no physicians, dentists, or optometrists, however, are subject to it

. The court reasoned t hat because the DOL had not changed th e substance of the 1973 rule in 2004, the salarybasis exception included PA’s both before and aft er the revisions. See Belt , 351 F. Supp. 2d at 632-33. Em

Care contends that we cannot
c o nsider the preamble because it is not a “sufficient ly clear” indication of the age ncy ’s int ent to b ind it self t o th e underlying policy,
see Kennecott Utah Copper Corp. v. United States Dep’t of Interior , 88 F.3d 1191, 122 3 (D.C. Cir. 1996), and because the Clark court determ ined th at vete r inarians fall wit hin the salary-basis exception even th ough the preamble also list s 1,037 hourly-paid vets and 16,267 salaried vets as subject to the salarybasis test. 32

The mo st spe cific DOL interpretive statement s on point include a 1974 DOL opinio n let ter and 1994 Field Operations Handbook (which contains almo st identical language to the opinio n let ter) th at state th at PA’s need to be com pensated on a salary basis to qualify fo r the P rof essional Exemption. 3 3 Em Care does not dispute the meaning of the let ter and Handbook but repeats it s position th at we should not consider agency interpretations in light of the fact th at the 1973 regulati on, § 541.3(e), is unambiguous; EmCare also questions the th oroughness wit h 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 cha n ges 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 i n
ference. The court basically re asoned 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. S ee 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, fall within the salary-basis exception.

33 W AGE AND H OUR D IV ., U.S. D EP ’ T OF L AB OR , F IELD O PERA TIONS H ANDBOOK § 22d2 3 (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 it s position in the letter. Finally, th e DOL’s amicus brief unambiguously adopts the position that NP’s and PA’s do not qualify fo r the professional exemption.

D. The DOL’s int erpretive statem ents com e to this court in a wide variety of formats, and we must decide what weight to give them under
our precedents. We conclude that A uer applies,
so we give controlling weight to th e DOL’s posit io n adopted in th e 1974 opinio n let ter, 1994 Handbook, and a micus brief, excluding PA’s (and by extension, NP’s) from th e prof essional exemption to the FLSA overtime rules.

In Auer , the Court fo und th at th e Secretary ’s amicus brief sufficed to show how th e DOL interpreted it s own ambiguous regulatio n: 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 th at th e int erpretation does not reflect th e agency’ s f air and considered judgm

ent on the matter in question.” Auer , 519 U.S. at 462.

Similarly, there is no reason here to doubt th e good f

ait h of the Secretary’s position, a s amicus , th at NP’s and PA’s must sati sfy t he salary-basis test. In particular, the position is consistent with th e departm ent’s 1974 opinion let ter (written one year aft er interpretive regulat io n § 541.314) and 1994 Handb ook, which explici tly subject PA’s to the salary-basis test, and th e DOL’s classificat io n of NP’s as a subset of registered nurse in it s Occupational Outlook guide. Also , the history of th e exception suggests th at th e agency int ended to limit its reach to traditional medical pract it io ners, and state licensing regimes appear to mirror this approach . Although it seems beyond question t hat NP’s and PA’s assume many of the traditional duties of doctors, the l anguage of § 541.3(e) “comfortably bears the 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 appropri ate for an interp retation of a regulation fo und in an amic u s curiae brief. ” 34 We recognized, 317 F.3d at 494, however, th at the Court in Auer had given controlling weight to an amicus br ief, and
we correctl

y concluded th at the critical question aft er Christensen , in deciding when to defer to info rmal int erpretations 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 M oore , becau se the agency rule was plain. S ee 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 Auer

### SS mo re th an 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 contai ned in formats such as opinion letters are ‘entitled to re spect’ under our decisio n in Skidmore [], but only to the extent that those interpretations have the ‘power to persuade[.]’”).

35 We leave intact our observ atio n in M oore that Chevron deference is inappropriate f o r informal agency interpretations, such as opinion letters a nd amicuscuriae briefs. S ee Moore , 317 F.3d at 494. The most important reason for extending greater deference to an amicus brief that purports to interpr et 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

Em Care’s basic position is th at it is possible to attri bute a sufficient ly clear scope to general language such as “practice

. . . medicine or any of [its] branc hes” to allo w 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 th e strict definit io n of medical practice used by th e Medical Practices Acts and Em Care’s mo re generous definit io n, derived from com mo n usage. Whether, in the abstract, NP’s and PA’s “practice medicine” p resents a clo se question of classificat io n, akin to distinguishing amo ng th e Pl atonic Forms, but it is
one th at we need not reach. As explained in Ehlert v. United States , 402 U.S. 99, 105 (1971),
[w]e nee d not take sides in the somewhat th eological debates . . . that the phrasing of this regulation has fo rced upon so many federal courts. Rather, since the meaning of the language is not free from doubt, we are obligat ed to regard as controlling a reasonable, co nsist ent ly applied administ rative int erpretation 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 finds support in past practice and is not “plainly erroneous or inconsistent with the regulation,” A uer , 519 U.S. at 461, deference is appropriate.

IV. Congre ss has entrusted the DOL with the task of defining who is eligible fo r the professio n al exemption to the FLSA. The agency has determ

ined th at a necessary indicator of prof essional stat u s in mo st cases is salaried
com pensation, wit h the limit ed exception of th e tradi ti onal 

### S S i. e., well-established and easily identifiable 

### SS

prof essions of law, medicine, and teaching. Absent a plain statement in a formal rule th at NP’s and PA’s fall wit hin t his exception, the courts must choose between decid ing the question de novo and deferring to the agency’s less fo rmal, but mo re specific, interpretive statements.
Auer counsels th at deference better accords wit h Congress’s intent and the agency’s com
parative expertise. Not onl y is t he agency in a better position to determ ine when a salary is necessary to identify a prof essional: the agency is als o better pl aced to make the calibrated pol icy judgment th at PA’s and NP’s, despitehigher 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

Th e summary judgment is AFFIRMED, and 35 (...continued)
re spect to the history and content of its own enacted
r ules. S ee John F. Manning, Constitutiona l Structure and Judicial De ference to Agency Interpretations of Agency Rules , 96 C OLUM

. L. R EV

. 612, 630-31 (1999). B ut see id. at 618 (concluding that, “by providing the agency an incentive to promulgate imprecise and vague rule s, [ Auer

- type deference] undercuts important deliberative process objectives of the APA, and it creates potential prob lems of inadequate notice and arbitrariness in the enforcement of agency rules.”).

36 See, e.g. , MCI Teleco mms. Corp. v. AT& T Co. , 512 U.S. 218 (1994) (finding that the ordinary
mea ning of “m

odify” unambiguously precluded the FCC’s interpretation under the Communications Act). 37 81 C ONG

. R EC

. 49 83 (1937) (m essage of President Roosevelt).16

this mat ter is RE MANDED f or f urther proceedings.