b'Permitting Part-Time Employees to Work\nRegularly Scheduled Weeks of 33 to 39 Hours\nThe statutes governing federal employment permit federal agencies to schedule part-time\nemployees to work regularly scheduled weeks of 33 to 39 hours.\nThe Federal Employees Part-Time Career Employment Act of 1978 does not limit agencies\xe2\x80\x99 preexisting authority to schedule part-time employees to work any number of\nhours per week less than 40.\nDecember 31, 2015\n\nMEMORANDUM OPINION FOR THE\nPRINCIPAL DEPUTY ASSISTANT ATTORNEY GENERAL\nCIVIL RIGHTS DIVISION\nThe Civil Rights Division (\xe2\x80\x9cCRT\xe2\x80\x9d) has asked whether federal agencies\nmay permit their part-time employees to work regularly scheduled workweeks of 33 to 39 hours. 1 In CRT\xe2\x80\x99s view, such arrangements are lawful\nbecause the statutes governing federal employment grant agencies broad\nauthority to set their employees\xe2\x80\x99 schedules and no statute prohibits parttime schedules of 33 to 39 hours per week. 2 The Office of Personnel\nManagement (\xe2\x80\x9cOPM\xe2\x80\x9d) disagrees. It observes that the Federal Employees\nPart-Time Career Employment Act of 1978, Pub. L. No. 95-437, 92 Stat.\n1055 (codified as amended at 5 U.S.C. \xc2\xa7 3401 et seq.) (the \xe2\x80\x9cAct\xe2\x80\x9d), defines\n\xe2\x80\x9cpart-time career employment\xe2\x80\x9d for purposes of the Act as \xe2\x80\x9cpart-time\nemployment of 16 to 32 hours a week.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3401(2). OPM argues\nthat this provision sets forth the exclusive definition of part-time employment in the federal government and, as a result, bars part-time employees from working regular schedules of 33 to 39 hours per week. 3\n1 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal\nCounsel, from Jocelyn Samuels, Acting Assistant Attorney General, CRT, Re: Request for\nLegal Opinion (Nov. 6, 2013) (\xe2\x80\x9cCRT Memorandum\xe2\x80\x9d).\n2 See id.; Memorandum for Karl Thompson, Acting Assistant Attorney General, Office\nof Legal Counsel, from Office of Employment Counsel, CRT, Re: Response to OPM\nComments on Whether Agencies May Permit Employees to Work Part-Time Schedules of\n33 to 39 Hours Per Week (Mar. 25, 2014) (\xe2\x80\x9cCRT Reply\xe2\x80\x9d).\n3 See Memorandum for Virginia Seitz, Assistant Attorney General, Office of Legal\nCounsel, from R. Alan Miller, Associate General Counsel, OPM, Re: Request for OPM\nComments re Issue of Whether Agencies May Permit Employees to Work Part-Time\n\n99\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nWe conclude that the statutes governing federal employment permit\nregular part-time schedules of 33 to 39 hours per week. Before the enactment of the Act in October 1978, federal employment statutes permitted\nagencies to schedule part-time employees to work any number of hours\nper week less than 40, and in our view the Act did not alter that authority.\nThe text of the Act does not prohibit any form of part-time employment,\nand the Act\xe2\x80\x99s purpose, structure, legislative history, and statutory context\ndo not provide a basis to infer such a prohibition.\nIn reaching this conclusion, we do not address whether OPM has authority, independent of the Act, to prohibit agencies from offering parttime employment of more than 32 hours per week or whether agencies\nmay as a policy matter elect to require their components not to offer such\nemployment. Nor do we address what administrative steps, if any, CRT\nwould need to undertake before scheduling part-time employees to work\nregular schedules of more than 32 hours per week.\nI.\nWe begin with the relevant statutory and regulatory background: the\nstatutes that governed part-time employment before enactment of the Act\nin 1978, the provisions of the Act, and subsequent regulatory action relating to the Act.\nA.\nFor many decades, agencies have been authorized to \xe2\x80\x9cemploy such\nnumber of employees . . . as Congress may appropriate for from year to\nyear.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3101 (Supp. II 1966); see 5 U.S.C. \xc2\xa7 43 (1934) (\xe2\x80\x9cThere\nis authorized to be employed in each executive department . . . such\nnumber of employees . . . as may be appropriated for by Congress from\nyear to year.\xe2\x80\x9d). Since the enactment of the Federal Employees Pay Act of\nSchedules of 33 to 39 Hours Per Week (Dec. 31, 2013) (\xe2\x80\x9cOPM Memorandum\xe2\x80\x9d); E-mail\nfor Leondra R. Kruger, Deputy Assistant Attorney General, Office of Legal Counsel, from\nMelanie J. Watson, OPM, Re: Solicitation of Views on Reduced Scheduling Issue att.\n(Feb. 18, 2014, 11:17 AM) (attachment referred to as \xe2\x80\x9cOPM Reply\xe2\x80\x9d); E-mail for Brian\nBoynton, Deputy Assistant Attorney General, Office of Legal Counsel, from Melanie J.\nWatson, OPM, Re: OLC Part-Time Government Employment Opinion: Follow-Up\nQuestions (July 22, 2015, 1:50 PM).\n\n100\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\n1945, Pub. L. No. 79-106, 59 Stat. 295, Congress has required agencies\n\xe2\x80\x9cto establish . . . for all full-time officers and employees . . . a basic administrative workweek of forty hours.\xe2\x80\x9d Id. \xc2\xa7 604(a) (codified as amended\nat 5 U.S.C. \xc2\xa7 6101(a)(2)(A)). But Congress has long made clear that agencies are not limited to hiring only full-time employees. It has enacted\nnumerous statutes that set forth rules governing part-time employees who\nmay work less than the standard 40-hour schedule.\nOne of the first statutes to address part-time federal employment was\nthe 1945 Pay Act itself. In addition to establishing the basic 40-hour\nworkweek, that statute instructed the Director of the Bureau of the Budget\nto \xe2\x80\x9cdetermine the numbers of full-time employees and man-months of\npart-time employment, which in his opinion are required\xe2\x80\x9d for \xe2\x80\x9cthe proper\nand efficient performance\xe2\x80\x9d of each agency\xe2\x80\x99s authorized functions, and to\norder agencies to release or terminate \xe2\x80\x9cany personnel or employment . . .\nin excess thereof.\xe2\x80\x9d Id. \xc2\xa7 607(b). Hence, at the same time that Congress\ncodified the 40-hour workweek for full-time employees, it also acknowledged the existence of \xe2\x80\x9cpart-time employment\xe2\x80\x9d and permitted agencies to\nretain part-time personnel so long as they were not \xe2\x80\x9cin excess\xe2\x80\x9d of administrative personnel ceilings.\nIn the decades that followed, Congress enacted additional statutes addressing part-time federal employment. For instance, in 1949, after\ndiscovering that \xe2\x80\x9cthe estimated 10,000 part-time [federal] employees\xe2\x80\x9d\nworking regular 5-day schedules were ineligible for sick and annual\nleave, H.R. Rep. No. 81-655, at 1, 5 (1949), Congress enacted a statute\nproviding that \xe2\x80\x9cpart-time officers and employees for whom there has\nbeen established a regular tour of duty covering not less than five days in\nany administrative workweek shall . . . be entitled to the benefits pro rata\nof the annual and sick leave Acts.\xe2\x80\x9d Pub. L. No. 81-316, \xc2\xa7 1, 63 Stat. 703,\n703 (1949) (codified as amended at 5 U.S.C. \xc2\xa7 6302(c)). In 1964, Congress enacted the Dual Compensation Act, Pub. L. No. 88-448, 78 Stat.\n484 (1964), which provided that federal employees could work in \xe2\x80\x9cmore\nthan one civilian office\xe2\x80\x9d\xe2\x80\x94including more than one \xe2\x80\x9ctemporary, parttime, or intermittent position\xe2\x80\x9d\xe2\x80\x94for up to \xe2\x80\x9can aggregate of forty hours of\nwork in any one calendar week.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 101(3), 301(a) (codified as\namended at 5 U.S.C. \xc2\xa7\xc2\xa7 5531(a)(2), 5533(a)); see S. Rep. No. 88-935, at\n17 (1964) (explaining that this statute would enable \xe2\x80\x9cpart-time employees\xe2\x80\x9d to hold \xe2\x80\x9ca combination of part-time positions equaling one full-time\n101\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nposition\xe2\x80\x9d). In 1971, seeing \xe2\x80\x9cno reasonable justification for depriving\npart-time and intermittent salaried employees of premium pay,\xe2\x80\x9d S. Rep.\nNo. 92-530, at 1\xe2\x80\x932 (1971), Congress made overtime pay available for\nfederal employees working \xe2\x80\x9cfull-time, part-time and intermittent tours of\nduty.\xe2\x80\x9d Pub. L. No. 92-194, 85 Stat. 648 (1971) (codified as amended at\n5 U.S.C. \xc2\xa7 5542(a)). And in September 1978, Congress enacted the\nFederal Employees Flexible and Compressed Work Schedules Act of\n1978, Pub. L. No. 95-390, 92 Stat. 755, which authorized agencies to\nconduct three-year experiments \xe2\x80\x9cto test a . . . compressed schedule,\xe2\x80\x9d\ndefined \xe2\x80\x9cin the case of a part-time employee\xe2\x80\x9d as a \xe2\x80\x9cbiweekly basic work\nrequirement of less than 80 hours which is scheduled for less than 10\nworkdays.\xe2\x80\x9d Id. \xc2\xa7\xc2\xa7 201(1)(B), 202(a), (d). 4\nThe Civil Service Commission\xe2\x80\x94the agency charged with administering\nthe federal personnel laws until the establishment of OPM in 1978\xe2\x80\x94also\nacknowledged agencies\xe2\x80\x99 authority to hire part-time employees. In 1954,\nfor instance, the Commission promulgated regulations defining a \xe2\x80\x9c[r]egularly scheduled administrative workweek . . . [f]or part-time employees\xe2\x80\x9d\nto mean \xe2\x80\x9cthe officially prescribed days and hours within an administrative\nworkweek during which such employees are required to be on duty regularly.\xe2\x80\x9d 19 Fed. Reg. 7097, 7097 (Nov. 2, 1954). And in 1971, the Commission issued a version of its Federal Personnel Manual that defined a\n\xe2\x80\x9cpart-time employee\xe2\x80\x9d for purposes of administrative personnel ceilings as\nan employee \xe2\x80\x9cwho works less than 40 hours a week.\xe2\x80\x9d Federal Personnel\nManual, ch. 312, app. B, \xc2\xa7 B-2(d) (Apr. 30, 1971).\nB.\nIn October 1978, Congress enacted the Federal Employees Part-Time\nCareer Employment Act. At that time, Congress was aware that part-time\nemployment existed throughout the federal government. See H.R. Rep.\nNo. 95-932, at 2\xe2\x80\x933 (1978) (noting that \xe2\x80\x9c1.9 percent of all nonpostal Federal employees work part time\xe2\x80\x9d and listing percentages of employees\n\nSee also Pub. L. No. 94-397, \xc2\xa7 1(a), 90 Stat. 1202, 1202 (1976) (codified as\namended at 5 U.S.C. \xc2\xa7 8344(a)) (prescribing the civil service annuities available to\nemployees working \xe2\x80\x9con a part-time basis\xe2\x80\x9d); Classification Act of 1949, Pub. L. No.\n81-429, \xc2\xa7 202(30), 63 Stat. 954, 956 (codified as amended at 5 U.S.C. \xc2\xa7 5102(c)(21))\n(exempting some part-time employees from the pay classification system).\n4\n\n102\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nworking part-time in numerous federal agencies); S. Rep. No. 95-1116, at\n3\xe2\x80\x934 (1978) (stating that \xe2\x80\x9c2.3 percent of the Federal work force were\npermanent part-time employees\xe2\x80\x9d in 1977). But committees in both Houses\nexpressed concern that \xe2\x80\x9c[t]he Federal Government ha[d] lagged far behind\nthe private sphere in providing and improving part-time employment\nopportunities of any type.\xe2\x80\x9d S. Rep. No. 95-1116, at 3; see H.R. Rep. No.\n95-932, at 2. \xe2\x80\x9cThe major obstacle[s] to part-time Federal employment,\xe2\x80\x9d\nthe committees found, were \xe2\x80\x9cagency personnel ceilings set by the Office\nof Management and Budget,\xe2\x80\x9d under which a part-time employee occupied\none of the limited number of positions allotted to each agency \xe2\x80\x9cwhether\nthe employee work[ed] two or 39 hours.\xe2\x80\x9d H.R. Rep. No. 95-932, at 3; see\nS. Rep. No. 95-1116, at 9. As a consequence of this system, the committees concluded, agencies had a tendency \xe2\x80\x9cto hire 39 hour per week \xe2\x80\x98part\ntimers,\xe2\x80\x99\xe2\x80\x9d rather than \xe2\x80\x9ctruly part-time employees,\xe2\x80\x9d H.R. Rep. No. 95-932,\nat 4, 7, and \xe2\x80\x9cin all likelihood employees falling into th[e] 35- to 39-hour a\nweek category made up the vast majority of the new people hired to work\npart-time in the past year,\xe2\x80\x9d S. Rep. No. 95-1116, at 10.\nThe Act was designed to address these problems. Its stated \xe2\x80\x9cpurpose\xe2\x80\x9d is\n\xe2\x80\x9cto provide increased part-time career employment opportunities throughout the Federal Government.\xe2\x80\x9d Act \xc2\xa7 2(b). It defines the term \xe2\x80\x9cpart-time\ncareer employment\xe2\x80\x9d as follows:\nFor the purpose of this chapter . . .\n(2) \xe2\x80\x98part-time career employment\xe2\x80\x99 means part-time employment of\n16 to 32 hours a week (or 32 to 64 hours during a biweekly pay period in the case of a flexible or compressed work schedule under subchapter II of chapter 61 of this title) under a schedule consisting of\nan equal or varied number of hours per day, whether in a position\nwhich would be part-time without regard to this section or one established to allow job-sharing or comparable arrangements, but does not\ninclude employment on a temporary or intermittent basis.\n5 U.S.C. \xc2\xa7 3401.\nTo further its stated purpose, the Act requires the head of each agency\nto \xe2\x80\x9cestablish and maintain a program for part-time career employment.\xe2\x80\x9d\nId. \xc2\xa7 3402(a)(1). Such a program must include, among other things,\n\xe2\x80\x9cprocedures and criteria to be used in connection with establishing or\nconverting positions for part-time career employment,\xe2\x80\x9d \xe2\x80\x9cannual goals\n103\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nfor establishing or converting positions for part-time career employment,\xe2\x80\x9d and \xe2\x80\x9cinterim and final deadlines for achieving such goals.\xe2\x80\x9d Id.\n\xc2\xa7 3402(a)(1)(B), (C). The Act also includes several provisions to protect\nexisting employees from any negative consequences of such programs.\nIt prohibits an agency from \xe2\x80\x9cabolish[ing] any position occupied by an\nemployee in order to make the duties of such position available to be\nperformed on a part-time career employment basis,\xe2\x80\x9d id. \xc2\xa7 3403(a); states\nthat \xe2\x80\x9c[a]ny person who is employed on a full-time basis in an agency\nshall not be required to accept part-time employment as a condition of\ncontinued employment,\xe2\x80\x9d id. \xc2\xa7 3403(b); and makes its provisions inapplicable to positions for which, \xe2\x80\x9con the date of [the Act\xe2\x80\x99s] enactment . . .\nthere is in effect . . . a collective-bargaining agreement which establishes\nthe number of hours of employment a week,\xe2\x80\x9d id. \xc2\xa7 3405(a); see also id.\n\xc2\xa7 3405(b) (stating that the Act does not apply to certain senior-level\npositions).\nThe Act also addresses the application of personnel ceilings to parttime career employees. It provides that \xe2\x80\x9c[i]n administering any personnel\nceiling applicable to an agency (or unit therein), an employee employed\nby such agency on a part-time career employment basis shall be counted\nas a fraction which is determined by dividing 40 hours into the average\nnumber of hours of such employee\xe2\x80\x99s regularly scheduled workweek.\xe2\x80\x9d Id.\n\xc2\xa7 3404. Thus, rather than counting each part-time employee as one full\nemployee for purposes of an agency\xe2\x80\x99s personnel ceiling\xe2\x80\x94the practice that\nthe Act\xe2\x80\x99s drafters thought encouraged the hiring of \xe2\x80\x9c39 hour per week\n\xe2\x80\x98part timers,\xe2\x80\x99\xe2\x80\x9d H.R. Rep. No. 95-932, at 4\xe2\x80\x94the Act \xe2\x80\x9cmandates the use of\na \xe2\x80\x98full-time equivalent\xe2\x80\x99 . . . accounting system\xe2\x80\x9d that counts each part-time\ncareer employee as a fraction equivalent to the fraction of a full-time\nworkweek he works. S. Rep. No. 95-1116, at 9. A part-time career employee who \xe2\x80\x9cwork[s] a regularly scheduled workweek of 20 hours,\xe2\x80\x9d for\nexample, now \xe2\x80\x9ccount[s] as one-half \xe2\x80\x9d of a full-time employee for purposes\nof an agency\xe2\x80\x99s personnel ceiling. Id. at 17.\nFinally, the Act includes \xe2\x80\x9c[m]iscellaneous provisions\xe2\x80\x9d concerning retirement, life insurance, and health benefits. H.R. Rep. No. 95-932, at\n12; S. Rep. No. 95-1116, at 18. The Act states that the Civil Service\nCommission (later replaced by OPM) may not exclude an employee who\noccupies \xe2\x80\x9ca position on a part-time career employment basis\xe2\x80\x9d from\nreceiving retirement, life insurance, or health benefits. Act \xc2\xa7 4(a)\xe2\x80\x93(c)(1)\n104\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\n(codified at 5 U.S.C. \xc2\xa7\xc2\xa7 8347(g), 8716(b), 8913(b)). It also specifies that\ngovernment contributions for part-time career employees\xe2\x80\x99 health insurance are to be prorated based on the number of hours worked per week.\nId. \xc2\xa7 4(c)(2)(A) (codified as amended at 5 U.S.C. \xc2\xa7 8906(b)(3)). Because this proration requirement was a change from the government\xe2\x80\x99s\nprior practice of \xe2\x80\x9ccontribut[ing] to [a part-time employee\xe2\x80\x99s] health\nbenefits the same amount as to an employee working 40 hours a week,\xe2\x80\x9d\nS. Rep. No. 95-1116, at 12, Congress provided that \xe2\x80\x9cany employee\nserving in a position on a part-time career employment basis on the date\nof the enactment of this Act\xe2\x80\x9d would continue to receive full health\nbenefits \xe2\x80\x9cfor such period as the employee continues to serve without a\nbreak in service in that or any other position on such part-time basis,\xe2\x80\x9d\nAct \xc2\xa7 4(c)(2)(B).\nC.\nAfter the Act\xe2\x80\x99s passage, OPM promulgated a set of regulations regarding part-time career employment. See Part-Time Employment; Federal\nEmployees Health Benefits Program, 44 Fed. Reg. 57,379 (Oct. 5, 1979).\nOPM made three statements in the regulations\xe2\x80\x99 preamble that are pertinent here. First, OPM concluded that the Act prohibited agencies from\n\xe2\x80\x9cregularly employ[ing]\xe2\x80\x9d part-time employees \xe2\x80\x9cunder schedules of more\nthan 32 hours per week.\xe2\x80\x9d Id. at 57,379. It reasoned that \xe2\x80\x9c[a]lthough the\nmajor thrust of [the Act] was to expand Federal part-time employment\nopportunities, Congress also evidenced clear intent to end the practice of\nemploying \xe2\x80\x98nominal\xe2\x80\x99 part-time employees in the 33- to 39-hour-per-week\nrange to skirt personnel ceilings.\xe2\x80\x9d Id. Second, OPM stated that this \xe2\x80\x9cprohibition\xe2\x80\x9d on part-time employment of more than 32 hours per week did\n\xe2\x80\x9cnot apply to employment of part-timers who were already working on a\npermanent part-time basis before [April 8, 1979] for as long as they\ncontinue to work part time.\xe2\x80\x9d Id. Third, OPM concluded that because\n\xe2\x80\x9cCongress did not explicitly evidence intent to end the practice of employing career part-timers for less than 16 hours per week in the same\nway that 33- to 39-hour-per-week employment was proscribed,\xe2\x80\x9d agencies\ncould \xe2\x80\x9cemploy permanent workers under regular schedules of less than\n16 hours per week.\xe2\x80\x9d Id. at 57,380; see also id. at 57,382 (adding 5 C.F.R.\n\xc2\xa7 340.202(b)).\n105\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nThe Department of Justice\xe2\x80\x99s Justice Management Division (\xe2\x80\x9cJMD\xe2\x80\x9d) has\nalso issued an order interpreting the Act. As relevant here, that order\nstates that while \xe2\x80\x9ca part-time employee\xe2\x80\x9d may work more than 32 hours\nper week on a temporary basis, \xe2\x80\x9c[a] temporary increase in the tour of duty\nabove 32 hours per week is not permitted for more than two consecutive\npay periods.\xe2\x80\x9d Part-Time Career Employment Program, Human Resources\nOrder DOJ 1200.1, ch. 1-8, \xc2\xb6 B.6 (Mar. 26, 2004), http://www.justice.gov/\njmd/hr-order-doj12001-part-1-employment. JMD has informed this Office\nthat it, like OPM, \xe2\x80\x9cdoes not believe there is authority to expand part time\nschedules to exceed 32 hours on an ongoing basis.\xe2\x80\x9d E-mail for Leondra R.\nKruger, Deputy Assistant Attorney General, Office of Legal Counsel,\nfrom Arthur E. Gary, General Counsel, JMD, Re: Question about parttime employment (Nov. 25, 2014, 6:48 PM).\nII.\nHaving set forth the relevant background, we now consider the legal\nquestion at issue: Does federal law permit agencies to schedule their parttime employees to work regular schedules of 33 to 39 hours per week?\nWe first analyze the scope of agencies\xe2\x80\x99 authority to schedule part-time\nworkers before the Act. We then address the effect of the Act on prior\nlaw, considering at the outset the standard that governs our inquiry and\nthen evaluating the Act under that standard.\nA.\nWe begin with the scope of agencies\xe2\x80\x99 authority prior to the Act\xe2\x80\x99s adoption. Both OPM and CRT assert that before the Act became law, agencies\nhad authority both to hire part-time employees and to schedule them to\nwork 33 to 39 hours per week. See OPM Memorandum at 5 (\xe2\x80\x9cPrior to\nenactment of the Act, agencies could employ individuals on a part-time\nwork schedule of 33 to 39 hours per week.\xe2\x80\x9d); CRT Reply at 1 (similar).\nWe agree that agencies possessed both types of authority.\nFirst, before the Act, agencies possessed authority to hire part-time\nemployees. As noted above, for decades Congress had vested agencies\nwith general authority to \xe2\x80\x9cemploy such number of employees . . . as\nCongress may appropriate for from year to year,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3101 (Supp.\nII 1966); see 5 U.S.C. \xc2\xa7 43 (1934) (similar), and in numerous statutes\n106\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nbetween 1945 and October 1978, Congress made clear that the \xe2\x80\x9cemployees\xe2\x80\x9d agencies could hire included part-time employees. For example,\nCongress permitted agencies to employ \xe2\x80\x9cpart-time employ[ees]\xe2\x80\x9d within\nlimits set by the Director of the Bureau of the Budget, Pub. L. No. 79-106,\n\xc2\xa7 607(b); made \xe2\x80\x9cpart-time officers and employees\xe2\x80\x9d eligible for annual and\nsick leave, Pub. L. No. 81-316, \xc2\xa7 1; permitted employees to work in more\nthan one \xe2\x80\x9cpart-time . . . position\xe2\x80\x9d for up to an aggregate of 40 hours per\nweek, Pub. L. No. 88-448, \xc2\xa7\xc2\xa7 101(3), 301(a); extended overtime pay to\nemployees working \xe2\x80\x9cpart-time . . . tours of duty,\xe2\x80\x9d Pub. L. No. 92-194; and\nallowed \xe2\x80\x9cpart-time employee[s]\xe2\x80\x9d to work compressed schedules, Pub. L.\nNo. 95-390, \xc2\xa7 201(1)(B). These statutes were premised on the lawfulness\nof part-time employment across the federal government. See, e.g., H.R.\nRep. No. 81-655, at 2 (describing existing part-time employees whom\nstatute would benefit); S. Rep. No. 92-530, at 1\xe2\x80\x932 (same). It is therefore\nstraightforward to conclude from them that agencies possessed the authority to hire part-time employees. See Tex. Dep\xe2\x80\x99t of Hous. & Cmty. Affairs\nv. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2520 (2015) (inferring\nthat \xe2\x80\x9cdisparate-impact liability exists\xe2\x80\x9d under the Fair Housing Act from a\nseries of amendments \xe2\x80\x9cthat assume the existence of disparate-impact\nclaims\xe2\x80\x9d); Bilski v. Kappos, 561 U.S. 593, 607 (2010) (inferring that business methods are patentable from provisions that \xe2\x80\x9cexplicitly contemplate[]\nthe existence of at least some business method patents\xe2\x80\x9d and that would be\n\xe2\x80\x9crender[ed] . . . meaningless\xe2\x80\x9d if those patents were unlawful).\nCongress again recognized agencies\xe2\x80\x99 preexisting authority to hire parttime employees when it enacted the Act. Several of the Act\xe2\x80\x99s provisions\nrefer to or acknowledge part-time employees hired prior to the Act\xe2\x80\x99s\nenactment. See Act \xc2\xa7 4(c)(2)(B) (grandfathering health benefits for \xe2\x80\x9cany\nemployee serving in a position on a part-time career employment basis on\nthe date of the enactment of this Act\xe2\x80\x9d); id. \xc2\xa7 2(b) (stating that the Act\xe2\x80\x99s\npurpose is \xe2\x80\x9cto provide increased part-time career employment opportunities throughout the Federal Government\xe2\x80\x9d (emphasis added)); 5 U.S.C.\n\xc2\xa7 3401(2) (referring to \xe2\x80\x9cposition[s] which would be part-time without\nregard to this section\xe2\x80\x9d). Moreover, Congress\xe2\x80\x99s central concern in enacting\nthe Act was that agencies were hiring too few part-time employees. See\nS. Rep. No. 95-1116, at 3\xe2\x80\x934, 8\xe2\x80\x9310; H.R. Rep. No. 95-932, at 2\xe2\x80\x933, 8.\nNothing in the Act\xe2\x80\x99s legislative history reveals any doubt about agencies\xe2\x80\x99\nauthority to hire part-time employees in the first place.\n107\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nSecond, prior to the Act, agencies also possessed authority to schedule part-time employees to work any number of hours per week below\n40. For full-time employees, Congress set \xe2\x80\x9ca basic administrative workweek of 40 hours.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 6101(a)(2)(A) (1976). But Congress did\nnot set a specific number of hours that part-time employees were required to work. By implication, agencies could not schedule part-time\nemployees to work a full-time schedule of 40 hours per week. See Webster\xe2\x80\x99s Third New International Dictionary 1648 (1976) (defining \xe2\x80\x9cparttime\xe2\x80\x9d to mean \xe2\x80\x9cemployed for or working less than the amount of time\nconsidered customary or standard\xe2\x80\x9d). Otherwise, however, agencies had\nunrestricted authority to schedule part-time employees to work any\nnumber of hours per week below 40\xe2\x80\x94including, if they chose, 33 to 39\nhours. See 5 U.S.C. \xc2\xa7 6101(b)(1) (Supp. II 1966) (recognizing the authority of agency heads to set employee schedules); 5 C.F.R. \xc2\xa7 25.203(a)(2)\n(1961) (defining the \xe2\x80\x9c\xe2\x80\x98[r]egularly scheduled administrative workweek\xe2\x80\x99\n. . . [f ]or part-time employees\xe2\x80\x9d as \xe2\x80\x9cthe officially prescribed days and\nhours within an administrative workweek during which such employees\nare required to be on duty regularly\xe2\x80\x9d); Federal Personnel Manual, ch.\n312, app. B, \xc2\xa7 B-2(d) (Apr. 30, 1971) (defining a \xe2\x80\x9cpart-time employee\xe2\x80\x9d\nas one \xe2\x80\x9cwho works less than 40 hours a week\xe2\x80\x9d); see also Pub. L. No. 95390, \xc2\xa7 201(1)(B) (defining a compressed schedule for part-time employees as a \xe2\x80\x9cbiweekly basic work requirement of less than 80 hours which\nis scheduled for less than 10 workdays\xe2\x80\x9d (emphasis added)).\nCongress has not repealed any of the major enactments discussed\nabove. Except for the provision of the 1945 Pay Act regarding personnel\nceilings, all of the statutes and regulations concerning part-time employment or granting agencies employment or scheduling authority remain in\neffect. See 5 U.S.C. \xc2\xa7 3101 (2012 & Supp. II 2014) (employment authority); id. \xc2\xa7\xc2\xa7 5531(2), 5533(a) (dual compensation); id. \xc2\xa7 5542(a) (premium\npay); id. \xc2\xa7 6101(a)(3) (scheduling authority); id. \xc2\xa7 6121(5)(B) (compressed schedules); id. \xc2\xa7 6302(c) (annual and sick leave); 5 C.F.R.\n\xc2\xa7 610.102 (2015) (part-time workweek); see also Pub. L. No. 81-784,\n\xc2\xa7 301(85) (1950), 64 Stat. 832, 843 (repealing statutory personnel ceilings). Hence, unless Congress has enacted a statute limiting that authority,\nagencies may continue to schedule part-time employees to work 33 to 39\nhours per week.\n108\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nB.\nWe now consider the effect of the Federal Employees Part-Time Career\nEmployment Act on the prior law governing part-time employment. In\norder to do so, we must first identify the standard that will control our\nanalysis. CRT and OPM suggest different governing standards in support\nof their respective constructions of the Act.\nOn one hand, CRT argues that the Act should not be construed to diminish agencies\xe2\x80\x99 authority to set part-time work schedules unless it clearly states that it was intended to have that effect. See CRT Memorandum at\n4. CRT relies on the principle that \xe2\x80\x9c\xe2\x80\x98[r]epeals by implication . . . will not\nbe found unless an intent to repeal is clear and manifest.\xe2\x80\x99\xe2\x80\x9d Id. (quoting\nRodriguez v. United States, 480 U.S. 522, 524 (1987) (per curiam)); see\nUnited States v. Fausto, 484 U.S. 439, 453 (1988) (stating that \xe2\x80\x9cit can be\nstrongly presumed that Congress will specifically address language on the\nstatute books that it wishes to change\xe2\x80\x9d). CRT contends that any limitation\nof agencies\xe2\x80\x99 scheduling authority would amount to a partial repeal of\nchapter 61 of title 5 of the United States Code\xe2\x80\x94the chapter granting\nagencies general scheduling authority\xe2\x80\x94and that the Act should therefore\nbe presumed not to impose such a limitation. CRT Memorandum at 4; see\nCRT Reply at 1\xe2\x80\x932.\nWe do not agree that the presumption against implied repeals applies\nhere. Chapter 61 of title 5 does not expressly state that agencies have\nauthority to schedule part-time employees to work any number of hours\nper week below 40. Rather, as relevant, it provides that the basic administrative workweek for full-time employees is 40 hours, see 5 U.S.C.\n\xc2\xa7 6101(a)(2)(A), and suggests that agencies have authority to set different schedules for employees who are not full-time, see, e.g., id.\n\xc2\xa7 6101(a)(3)(A) (requiring agencies to \xe2\x80\x9cprovide, with respect to each\nemployee . . . that assignments to tours of duty are scheduled in advance\xe2\x80\x9d). As discussed above, it is a fair implication that, in the absence\nof any other limit, agencies may schedule part-time employees to work\nup to 39 hours per week. But a statute \xe2\x80\x9cdoes not stand repealed\xe2\x80\x9d whenever its \xe2\x80\x9cimplications . . . may be altered by the implications of a later\nstatute.\xe2\x80\x9d Fausto, 484 U.S. at 453. A repeal occurs\xe2\x80\x94and thus the presumption against repeals by implication is applicable\xe2\x80\x94only where a\nsubsequent statute contradicts \xe2\x80\x9cexpress statutory text,\xe2\x80\x9d not \xe2\x80\x9ca legal dis109\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nposition implied by a statutory text.\xe2\x80\x9d Id. Consequently, we do not believe\nthat the Act must contain a clear statement in order to limit agencies\xe2\x80\x99\npreexisting authority to schedule part-time employees.\nOPM, on the other hand, contends that its 1979 regulations interpreting\nthe Act to bar part-time schedules of more than 32 hours per week \xe2\x80\x9cmerit\ndeference.\xe2\x80\x9d OPM Memorandum at 6. We presume that OPM is referring\nto the type of deference described in Chevron U.S.A., Inc. v. Natural\nResources Defense Council, Inc., 467 U.S. 837 (1984), which held that\ncourts should defer to an \xe2\x80\x9can agency\xe2\x80\x99s construction of the statute which it\nadministers\xe2\x80\x9d where \xe2\x80\x9cthe statute is silent or ambiguous with respect to the\nspecific issue\xe2\x80\x9d under review and the agency\xe2\x80\x99s construction is \xe2\x80\x9cpermissible.\xe2\x80\x9d Id. at 842\xe2\x80\x9343. Chevron deference, however, is inapplicable in this\ncontext. Courts have held that agencies are not entitled to Chevron deference when interpreting \xe2\x80\x9cgeneric statutes that apply to dozens of agencies.\xe2\x80\x9d\nCollins v. Nat\xe2\x80\x99l Transp. Safety Bd., 351 F.3d 1246, 1252 (D.C. Cir. 2003);\nsee Bowen v. Am. Hosp. Ass\xe2\x80\x99n, 476 U.S. 610, 642 n.30 (1986) (explaining\nthat \xe2\x80\x9cthe same basis for deference predicated on expertise\xe2\x80\x9d was not present where an agency was interpreting a statute under which \xe2\x80\x9c[t]wentyseven agencies . . . ha[d] promulgated regulations\xe2\x80\x9d); Proffitt v. FDIC, 200\nF.3d 855, 860 (D.C. Cir. 2000) (declining to grant Chevron deference to\nan agency\xe2\x80\x99s interpretation of a \xe2\x80\x9cstatute of general applicability\xe2\x80\x9d (internal\nquotation marks omitted)); Salleh v. Christopher, 85 F.3d 689, 692 (D.C.\nCir. 1996) (noting a line of decisions \xe2\x80\x9cthat have declined to defer to an\nagency\xe2\x80\x99s interpretation of a statute when more than one agency is granted\nauthority to interpret the same statute\xe2\x80\x9d); cf. Proposed Agency Interpretation of \xe2\x80\x9cFederal Means-Tested Public Benefit[s]\xe2\x80\x9d Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 21 Op.\nO.L.C. 21, 34\xe2\x80\x9335 (1997) (distinguishing a situation in which \xe2\x80\x9ca statute\nassigns a group of agencies a particular task that is related to the duties\nthat the agencies already have been assigned by their governing statutes\xe2\x80\x9d\nand \xe2\x80\x9cthe agencies . . . concur in their interpretation\xe2\x80\x9d of that statute).\nHere, numerous agencies administer, and are required to promulgate\nregulations implementing, the Act. See 5 U.S.C. \xc2\xa7 3402(a)(1) (requiring\n\xe2\x80\x9cthe head of each agency, by regulation, [to] establish and maintain a\nprogram for part-time career employment within such agency\xe2\x80\x9d). OPM\xe2\x80\x99s\nauthority under the Act is limited to \xe2\x80\x9cadvis[ing] and assist[ing]\xe2\x80\x9d agencies\nin developing their own implementing regulations and conducting a\n110\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\n\xe2\x80\x9cresearch and demonstration program with respect to part-time career\nemployment.\xe2\x80\x9d Id. \xc2\xa7 3402(b)(1)\xe2\x80\x93(2). Hence, although OPM\xe2\x80\x99s views concerning the Act merit respect and careful consideration, we do not believe\nthey are entitled to Chevron deference. 5\nBecause neither the presumption against implied repeals nor Chevron\ndeference applies, our role is to identify the best reading of the Act using\nstandard tools of statutory construction. See, e.g., Reimbursing TransitionRelated Expenses Incurred Before the Administrator of General Services\nAscertained Who Were the Apparent Successful Candidates for the Offices\nof President and Vice President, 25 Op. O.L.C. 7, 8 (2001) (endeavoring\nto identify \xe2\x80\x9cthe best reading of the statute\xe2\x80\x9d).\nC.\nThere appear to be two possible ways to interpret the Act. The first\npossible interpretation is that the Act encourages agencies to schedule\npart-time employees to work 16 to 32 hours per week but does not prohibit agencies from setting part-time schedules outside that range. CRT\nfavors this reading. See CRT Memorandum at 2\xe2\x80\x933. The second possible\ninterpretation is that the Act not only encourages \xe2\x80\x9cpart-time career employment\xe2\x80\x9d but also redefines part-time employment to include only employment of 16 to 32 hours per week. OPM favors this reading. See\nOPM Memorandum at 1; 44 Fed. Reg. at 57,379. In the following sections, we examine in turn the Act\xe2\x80\x99s text, purpose, structure, history, and\ncontext to determine which of these competing interpretations is the\nbetter reading of the Act.\n1.\n\xe2\x80\x9c\xe2\x80\x98[W]e start, of course, with the statutory text.\xe2\x80\x99\xe2\x80\x9d Sebelius v. Cloer, 133\nS. Ct. 1886, 1893 (2013) (quoting BP Am. Prod. Co. v. Burton, 549 U.S.\n84, 91 (2006)). As noted above, the Act defines part-time career employment \xe2\x80\x9c[f ]or the purpose of th[e] chapter\xe2\x80\x9d in which it appears as \xe2\x80\x9cpart-time\nemployment of 16 to 32 hours a week.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3401(2). It then proEven if Chevron deference were applicable, the first step in the analysis would be to\ndetermine whether the Act is ambiguous using \xe2\x80\x9ctraditional tools of statutory construction.\xe2\x80\x9d Chevron, 467 U.S. at 843 n.9. Applying those tools here, we do not believe the Act\nis ambiguous for the reasons set forth below.\n5\n\n111\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nvides that, \xe2\x80\x9cin order to promote part-time career employment opportunities in all grade levels,\xe2\x80\x9d each agency \xe2\x80\x9cshall establish and maintain a program for part-time career employment,\xe2\x80\x9d which must include \xe2\x80\x9cprocedures\nand criteria\xe2\x80\x9d and \xe2\x80\x9cannual goals\xe2\x80\x9d for \xe2\x80\x9cestablishing or converting positions\nfor part-time career employment,\xe2\x80\x9d as well as \xe2\x80\x9cinterim and final deadlines\nfor achieving such goals.\xe2\x80\x9d Id. \xc2\xa7 3402(a)(1)(B), (C). The Act also specifies\nthat \xe2\x80\x9c[i]n administering any personnel ceiling,\xe2\x80\x9d a part-time career employee \xe2\x80\x9cshall be counted as a fraction\xe2\x80\x9d equivalent to the fraction of the\nfull workweek she works. Id. \xc2\xa7 3404. Additionally, the Act entitles parttime career employees to full retirement and life insurance benefits and to\nhealth benefits prorated to the portion of the full workweek they work.\nAct \xc2\xa7 4.\nOn its face, the Act thus defines a particular type of part-time employment\xe2\x80\x94\xe2\x80\x9cpart-time career employment\xe2\x80\x9d\xe2\x80\x94and establishes programs and\nrequirements to encourage it. The Act does not state that all part-time\nemployment must satisfy its definition of part-time career employment.\nNor does the Act say that any particular form of part-time employment is\nprohibited or limit the number of hours that employees other than \xe2\x80\x9cparttime career employees\xe2\x80\x9d may work. It simply leaves all part-time employment except part-time career employment unaddressed.\nOPM contends that the Act\xe2\x80\x99s definition of part-time career employment\n\xe2\x80\x9credefine[s] the specific hours which constitute part-time employment\xe2\x80\x9d to\ninclude only \xe2\x80\x9cwork schedules of 16 to 32 hours per week.\xe2\x80\x9d OPM Memorandum at 2; see 44 Fed. Reg. at 57,379 (stating that the Act \xe2\x80\x9cnarrows the\ndefinition of part-time career employment in the Federal Government\nfrom scheduled work of less than 40 hours per week to scheduled work\nbetween 16 and 32 hours per week\xe2\x80\x9d). That interpretation, however, is\ndifficult to reconcile with the plain text of the definition. The Act defines\nonly the specific term \xe2\x80\x9cpart-time career employment,\xe2\x80\x9d not part-time employment generally. 5 U.S.C. \xc2\xa7 3401(2). And it defines that term only\n\xe2\x80\x9c[f ]or the purpose of this chapter\xe2\x80\x9d\xe2\x80\x94i.e., chapter 34 of title 5, which\nconsists exclusively of the Act itself. Id. It is unclear why Congress\nwould have limited the definition in these ways if its intention was to\nredefine part-time employment more broadly. Moreover, numerous courts\nhave expressly declined to \xe2\x80\x9capply a definition from one statutory provision to another\xe2\x80\x9d where it is defined only \xe2\x80\x9cfor purposes of \xe2\x80\x9d a particular\nprovision, even if that provision offers \xe2\x80\x9cthe only definition of [the defined\n112\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nterm] in the [U.S.] Code.\xe2\x80\x9d United States v. Mazza-Alaluf, 621 F.3d 205,\n209\xe2\x80\x93210 (2d Cir. 2010); see, e.g., United States v. Ervin, 601 F. App\xe2\x80\x99x\n793, 799 (11th Cir. 2015) (per curiam); Molski v. M.J. Cable, Inc., 481\nF.3d 724, 733 (9th Cir. 2007); United States v. Savin, 349 F.3d 27, 36 (2d\nCir. 2003); Sierra Club v. EPA, 325 F.3d 374, 383 (D.C. Cir. 2003);\nCunningham v. Scibana, 259 F.3d 303, 308 n.2 (4th Cir. 2001); United\nStates v. Levario-Quiroz, 161 F.3d 903, 908 (5th Cir. 1998); Moldovan v.\nGreat Atl. & Pac. Tea Co., 790 F.2d 894, 901 (3d Cir. 1986).\nHence, the plain text of the Act does not limit agencies\xe2\x80\x99 preexisting\nauthority to schedule part-time employees to work any number of hours\nper week below 40 or redefine \xe2\x80\x9cpart-time\xe2\x80\x9d employment as that term is\nused throughout the laws governing federal employment. E.g., 5 U.S.C.\n\xc2\xa7\xc2\xa7 5531(2), 5542(a), 6121(5)(B), 6302(c). That is a strong indication\nthat the Act does not prohibit part-time employment that falls outside\nthe Act\xe2\x80\x99s definition. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2003)\n(\xe2\x80\x9cIt is well established that when the statute\xe2\x80\x99s language is plain, the\nsole function of the courts\xe2\x80\x94at least where the disposition required by\nthe text is not absurd\xe2\x80\x94is to enforce it according to its terms.\xe2\x80\x9d (internal\nquotation marks omitted)).\n2.\nWe next consider the purpose of the Act. The statute addresses this subject directly: The Act states that its \xe2\x80\x9cpurpose . . . is to provide increased\npart-time career employment opportunities throughout the Federal Government.\xe2\x80\x9d Act \xc2\xa7 2(b). The Act reiterates this objective in its core provision, instructing agencies to establish part-time career employment programs \xe2\x80\x9c[i]n order to promote part-time career employment opportunities\nin all grade levels.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3402(a)(1). These statements of purpose\nindicate that the Act is designed to \xe2\x80\x9cprovide increased . . . opportunities\xe2\x80\x9d\nfor and \xe2\x80\x9cpromote\xe2\x80\x9d part-time career employment, principally through the\nrequirement that agencies establish part-time career employment programs. They do not contain any suggestion that Congress intended to\nprohibit alternative forms of part-time employment. Nor does the Act\ncontain any other expressions of purpose that might arguably support such\na reading. The Act\xe2\x80\x99s stated purpose, therefore, also supports the first\npossible interpretation of the statute.\n113\n\n\x0c39 Op. O.L.C. 99 (2015)\n\n3.\nWe also consider the structure of the Act. As discussed above, the Act\nrequires each agency to \xe2\x80\x9cestablish and maintain a program for part-time\ncareer employment,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3402(a)(1); provides that each part-time\ncareer employee \xe2\x80\x9cshall be counted as a fraction\xe2\x80\x9d of a full-time employee\nfor purposes of federal personnel ceilings, id. \xc2\xa7 3404; and specifies the\nretirement, life insurance, and health benefits to which part-time career\nemployees are entitled, Act \xc2\xa7 4.\nThe principal provisions of the Act\xe2\x80\x94the requirement that agencies\nestablish part-time career employment programs and the new approach\nto counting part-time employees covered by the Act\xe2\x80\x94work just as\nCongress intended under either possible interpretation of the Act. Regardless of whether the Act is read to allow part-time employment that\nfalls outside the Act\xe2\x80\x99s definition of part-time career employment, each\nagency has the same legal duty to \xe2\x80\x9cestablish and maintain a program for\npart-time career employment,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3402(a)(1), thereby ensuring\nthat agencies provide \xe2\x80\x9cincreased part-time career employment opportunities,\xe2\x80\x9d Act \xc2\xa7 2(b). Similarly, no matter whether agencies may hire parttime employees outside the Act, the provision of the Act addressing\nagency personnel ceilings eliminates any incentive to favor part-time\nemployees who work nearly 40 hours per week over part-time employees covered by the Act in order to \xe2\x80\x9cskirt personnel ceilings.\xe2\x80\x9d H.R. Rep.\nNo. 95-932, at 7; see 5 U.S.C. \xc2\xa7 3404.\nOPM contends that support for its interpretation can be found in the\nstructure of the Act\xe2\x80\x99s provisions concerning the benefits available to parttime career employees. See OPM Memorandum at 3\xe2\x80\x936. In considering\nthese provisions, we must be mindful that Congress typically \xe2\x80\x9cdoes not\nalter the fundamental details of a regulatory scheme in vague terms or\nancillary provisions\xe2\x80\x94it does not, one might say, hide elephants in mouseholes.\xe2\x80\x9d Whitman v. Am. Trucking Ass\xe2\x80\x99ns, 531 U.S. 458, 468 (2001). A\nprohibition on part-time employment of less than 16 or more than 32\nhours per week would constitute an important feature of the Act and a\nsignificant limitation on agencies\xe2\x80\x99 scheduling authority. In contrast, the\nAct\xe2\x80\x99s \xe2\x80\x9c[m]iscellaneous provisions\xe2\x80\x9d concerning benefits, H.R. Rep. No.\n95-932, at 12; S. Rep. No. 95-1116, at 18, are ancillary features of the\nstatute that do not purport to address the authority of agencies to permit\n114\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\ndifferent kinds of part-time schedules. It is therefore unlikely that, had\nCongress intended to prohibit part-time employment other than part-time\ncareer employment as defined in the Act, it would have done so\xe2\x80\x94only by\nimplication\xe2\x80\x94in this part of the Act. With that admonition in mind, we\nconsider the Act\xe2\x80\x99s provisions regarding retirement, life insurance, and\nhealth benefits.\na.\nThe Act first addresses retirement benefits. Before the Act became law,\n5 U.S.C. \xc2\xa7 8347(g) stated that the Civil Service Commission \xe2\x80\x9cmay exclude from [retirement benefits] an employee or group of employees in or\nunder an Executive agency whose employment is temporary or intermittent.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 8347(g) (1976). The Act amended this subsection by\nadding a sentence stating that the Commission (now OPM) \xe2\x80\x9cmay not\nexclude any employee who occupies a position on a part-time career\nemployment basis.\xe2\x80\x9d Act \xc2\xa7 4(a).\nOPM contends that this amendment \xe2\x80\x9cdemonstrates congressional intent\nto address benefits coverage for all part-time employees.\xe2\x80\x9d OPM Memorandum at 5 n.2. It is not clear, however, why that is so. The amendment\nsimply \xe2\x80\x9censure[s] that employees employed under a part-time career\nemployment program may not be excluded from civil service retirement\ncoverage.\xe2\x80\x9d H.R. Rep. No. 95-932, at 12; see S. Rep. No. 95-1116, at 18\n(same). The amendment is thus entirely consistent with the view that the\nAct seeks to encourage part-time career employment\xe2\x80\x94in this case, by\nextending to part-time career employees a special guarantee of retirement\nbenefits\xe2\x80\x94without necessarily prohibiting alternative forms of part-time\nemployment. Several other provisions of the Act similarly favor part-time\ncareer employees, including the requirement that agencies establish programs exclusively to promote part-time career employment, 5 U.S.C.\n\xc2\xa7 3402(a)(1), the provision altering the way only part-time career employees are counted for purposes of personnel ceilings, id. \xc2\xa7 3404, and the\nAct\xe2\x80\x99s stated purpose of \xe2\x80\x9cprovid[ing] increased part-time career employment opportunities,\xe2\x80\x9d Act \xc2\xa7 2(b). 6\n6 Moreover, the effect of this amendment was quite limited. The Act expressly provides that part-time career employment \xe2\x80\x9cdoes not include employment on a temporary or\nintermittent basis.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3401(2). As a result, there was no need for Congress to\n\n115\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nb.\nThe Act\xe2\x80\x99s second benefits provision addresses life insurance. Prior to\nthe Act, 5 U.S.C. \xc2\xa7 8716(b) stated that the Civil Service Commission\n\xe2\x80\x9cmay exclude an employee\xe2\x80\x9d from receiving life insurance benefits \xe2\x80\x9con\nthe basis of the nature and type of his employment or conditions pertaining to it, such as short-term appointment, seasonal, intermittent or parttime employment, and employment of like nature.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 8716(b)\n(1976) (emphasis added). In the Act, Congress amended this provision by\nstriking \xe2\x80\x9cpart-time\xe2\x80\x9d and adding a new paragraph stating that the Commission (now OPM) may not exclude \xe2\x80\x9can employee who is occupying a\nposition on a part-time career employment basis\xe2\x80\x9d from receiving life\ninsurance benefits. Act \xc2\xa7 4(b).\nOPM argues that this provision supports its interpretation of the Act in\ntwo ways. First, OPM contends that it would have been illogical for\nCongress to prevent it from excluding part-time career employees from\nlife insurance coverage without granting a similar protection to other parttime employees. OPM Memorandum at 5. But as we have just explained,\nthe Act was intended to increase part-time career employment, and it\nfavors that type of employment in a number of different ways. It therefore\nwould be neither surprising nor irrational if Congress favored part-time\ncareer employees by granting them a special entitlement to life insurance\nbenefits that it did not extend to other part-time employees.\nSecond, OPM argues that there would have been no reason for Congress to delete \xe2\x80\x9cpart-time\xe2\x80\x9d from section 8716(b) if agencies could still\nemploy (and thus still exclude from life insurance coverage) part-time\nemployees who were not part-time career employees. OPM Memorandum\nat 5. Although it is not entirely clear why Congress amended section\n8716(b) in the manner it did, there is at least one plausible reason why\nCongress might have removed the reference to \xe2\x80\x9cpart-time\xe2\x80\x9d employment in\nsection 8716(b) even if agencies could continue to employ part-time\nemployees not covered by the Act. Removing this phrase eliminated any\nexcept part-time career employment from 5 U.S.C. \xc2\xa7 8347(g), which permitted the\nexclusion from retirement benefits of only \xe2\x80\x9ctemporary or intermittent\xe2\x80\x9d employees. See\nH.R. Rep. No. 95-932, at 12 (acknowledging this point); S. Rep. No. 95-1116, at 18\n(same). Similarly, there was no need to clarify that OPM could not exclude other parttime employment that is not temporary or intermittent.\n\n116\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\ninconsistency between the statement that OPM \xe2\x80\x9cmay not exclude . . . parttime career employ[ees]\xe2\x80\x9d and the statement that it \xe2\x80\x9cmay exclude . . . parttime employ[ees],\xe2\x80\x9d a broader category that seemingly would include parttime career employees. At the same time, this amendment continued to\npermit OPM to exclude employees from life insurance benefits \xe2\x80\x9con the\nbasis of the nature and type of [their] employment,\xe2\x80\x9d thus allowing the\nagency to deny benefits to part-time employees not covered by the Act\n(since theirs is a \xe2\x80\x9ctype\xe2\x80\x9d of employment). 5 U.S.C. \xc2\xa7 8716(b) (2012); cf.\n5 C.F.R. \xc2\xa7 870.302(b)(4)\xe2\x80\x93(8) (2015) (relying on this provision to exclude\nemployees paid \xe2\x80\x9c$12 a year or less,\xe2\x80\x9d employees paid on a \xe2\x80\x9ccontract or fee\nbasis,\xe2\x80\x9d \xe2\x80\x9cSenate restaurant employee[s],\xe2\x80\x9d and other such categories from\nlife insurance benefits). Of course, Congress could have accomplished\nthis result in other ways, such as by permitting OPM to exclude an employee from life insurance benefits on the basis of \xe2\x80\x9cpart-time employment\nother than part-time career employment.\xe2\x80\x9d But the fact that \xe2\x80\x9cCongress\ncould have accomplished the same result by phrasing the statute differently\xe2\x80\x9d does not provide a basis for reading unstated limitations into its text.\nUnited States v. Aguilar, 515 U.S. 593, 604 (1995).\nc.\nThe Act\xe2\x80\x99s third benefits provision concerns health insurance. Much like\nthe retirement and life insurance provisions, this provision begins by\nclarifying that OPM may not exclude \xe2\x80\x9can employee who is occupying a\nposition on a part-time career employment basis\xe2\x80\x9d from receiving health\nbenefits. Act \xc2\xa7 4(c)(1) (codified at 5 U.S.C. \xc2\xa7 8913(b)(3)). OPM contends\nthat this amendment \xe2\x80\x9cdemonstrates congressional intent to address benefits coverage for all part-time employees.\xe2\x80\x9d OPM Memorandum at 5 n.2.\nFor the same reasons we have just given, however, we do not agree.\nCongress may have intended to grant part-time career employees a protection to which other part-time employees are not entitled, a goal that would\nbe fully consistent with the purpose and structure of the statute.\nThe health insurance benefits provision goes on to provide that employees \xe2\x80\x9coccupying a position on a part-time career employment basis\xe2\x80\x9d\nshall receive health benefits in an amount prorated to the proportion of the\nfull workweek that they work. Act \xc2\xa7 4(c)(2)(A). OPM makes a stronger\nargument based on this portion of the provision. Neither the Act nor any\nother statute similarly prorates health benefits for other part-time employ117\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nees. OPM thus argues that the Act would result in an anomaly if agencies\ncould employ part-time employees outside of the Act\xe2\x80\x99s definition of parttime career employment: Whereas part-time career employees would\nreceive prorated health benefits, other part-time employees would be\neligible for either full health benefits or no health benefits at all. OPM\nMemorandum at 3 & n.1. OPM asserts that this system would be inconsistent with Congress\xe2\x80\x99s goal of \xe2\x80\x9cproviding appropriate benefits to parttime employees\xe2\x80\x9d and of \xe2\x80\x9climiting Government obligations commensurate\nwith the number of hours in the reduced work schedule of part-time\nemployees.\xe2\x80\x9d Id. at 3.\nWe acknowledge that it would seem somewhat anomalous for Congress to have prorated health benefits for employees in the part-time\ncareer employment program it was trying to promote while failing to do\nso for other part-time employees. But the Supreme Court has cautioned\nthat it \xe2\x80\x9cdoes not revise legislation . . . just because the text as written\ncreates an apparent anomaly as to some subject it does not address.\xe2\x80\x9d\nMichigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2033 (2014). And\nhere, the anomaly OPM identifies is neither particularly serious nor\ninexplicable. Congress has allowed a similar anomaly to exist in other\ncircumstances by declining to prorate health benefits for seasonal, intermittent, and short-term workers and thus putting OPM to the same choice\nof offering those less-than-full-time employees either full health benefits\nor no benefits at all. See 5 U.S.C. \xc2\xa7 8906(b) (prescribing the health\nbenefits to which eligible employees are entitled); id. \xc2\xa7 8913(b) (permitting OPM to exclude such employees from health benefits). Moreover,\nthe legislative history indicates that Congress prorated health benefits for\npart-time career employees for a reason that was inapplicable to other\npart-time employees. The version of the Act initially passed by the House\nwould have granted full health benefits to part-time career employees.\nSee H.R. 10126, 95th Cong. \xc2\xa7 4(c) (as passed by House, Mar. 13, 1978).\nThe relevant Senate committee, however, observed that these benefits\n\xe2\x80\x9ccomprised the major part of the price tag for the House-passed bill\xe2\x80\x9d and\nexpressed concern that \xe2\x80\x9cthe public [would] accept\xe2\x80\x9d the Act only if it held\n\xe2\x80\x9cthe cost of government constant.\xe2\x80\x9d S. Rep. No. 95-1116, at 12. The\nSenate therefore amended the bill to provide that health benefits for parttime career employees \xe2\x80\x9cwould be prorated according to the number of\nhours worked.\xe2\x80\x9d Id.; see S. 518, 95th Cong. \xc2\xa7 4(c)(2)(A) (as passed by\nSenate, Aug. 25, 1978); see also 124 Cong. Rec. 30,968 (1978) (state118\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nment of Rep. Schroeder) (House sponsor of the Act stating that she\nagreed with the Senate amendment because it \xe2\x80\x9cwould save money\xe2\x80\x9d). This\nhistory suggests that Congress did not enact the proration provision to\nestablish a general principle that government obligations should be\n\xe2\x80\x9ccommensurate with the number of hours\xe2\x80\x9d worked, as OPM contends.\nOPM Memorandum at 3. Rather, it enacted the proration provision as\npart of a compromise designed to ensure that the Act would win public\nacceptance. 7\nThe health insurance benefits provision of the Act also states that the\nAct\xe2\x80\x99s proration of health benefits does not apply to \xe2\x80\x9cany employee serving in a position on a part-time career employment basis on the date of the\nenactment of this Act.\xe2\x80\x9d Act \xc2\xa7 4(c)(2)(B). OPM contends that this provision shows that Congress \xe2\x80\x9cintended to bring all types of part-time employment under [the Act\xe2\x80\x99s] coverage\xe2\x80\x9d because it indicates that employees\nhired prior to the date of the Act\xe2\x80\x99s enactment can qualify as part-time\ncareer employees. OPM Memorandum at 4 (emphasis added). We do not\nthink that follows. The fact that part-time employees hired before the Act\ncan fall within the Act\xe2\x80\x99s definition of \xe2\x80\x9cpart-time employment\xe2\x80\x9d provides\nno basis to conclude that Congress foreclosed part-time employment\noutside that definition. Nor is it relevant that the provision applies only to\npart-time career employees. The Act did not alter health benefits for parttime employees who fall outside the Act\xe2\x80\x99s definition, so there was no\nneed to grandfather benefits for such employees.\nIn sum, the Act\xe2\x80\x99s principal provisions would work as Congress intended under either possible reading of the Act, and the Act\xe2\x80\x99s miscellaneous\nbenefits provisions do not provide any strong indication that Congress\nintended to foreclose all part-time employment not covered by the Act.\n7 In its estimate of the bill\xe2\x80\x99s costs, the Senate report does not contemplate any savings\nto the government from the elimination of part-time employees who fall outside the Act.\nSee S. Rep. No. 95-1116, at 19\xe2\x80\x9321. If the second reading of the Act were correct, then the\nSenate bill would have resulted in substantial financial savings to the government by\neliminating its obligation to pay full health benefits to existing part-time employees\nworking less than 16 or more than 32 hours per week. The drafters\xe2\x80\x99 failure to consider\nthat possibility\xe2\x80\x94notwithstanding their close attention to other ways the Act might\ngenerate financial savings, see id. at 20 (identifying possible savings resulting from\nreduced enrollment in health plans by part-time career employees)\xe2\x80\x94suggests that the\ndrafters did not believe that the Act would prohibit part-time employment not covered by\nthe Act.\n\n119\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nThe Act\xe2\x80\x99s structure is thus consistent with either possible interpretation of\nthe statute.\n4.\nWe turn next to the legislative history of the Act generally. Both the\nHouse and Senate committee reports open by stating that \xe2\x80\x9c[t]he purpose\nof [the Act] is to encourage the use of part-time career employment in the\nFederal government by requiring each agency to establish a program to\nprovide for increased part-time career employment opportunities.\xe2\x80\x9d S. Rep.\nNo. 95-1116, at 1; H.R. Rep. No. 95-932, at 1. Similarly, each committee\nreport discusses at length the concern that federal agencies \xe2\x80\x9clagged far\nbehind the private sphere in providing and improving part-time employment opportunities.\xe2\x80\x9d S. Rep. No. 95-1116, at 3; see id. at 3\xe2\x80\x9312 (discussing\nthe scope of this problem); H.R. Rep. No. 95-932, at 2\xe2\x80\x935, 8 (similar).\nThese discussions are consistent with the Act\xe2\x80\x99s statements that its purpose\nis to \xe2\x80\x9cprovide increased opportunities for\xe2\x80\x9d and \xe2\x80\x9cpromote\xe2\x80\x9d part-time career\nemployment. Act \xc2\xa7 2(b); 5 U.S.C. \xc2\xa7 3402(a)(1). And they tend to support\nthe view that Congress intended to encourage part-time career employment but not prohibit alternative forms of part-time employment.\nOPM identifies two passages from the House and Senate reports that it\ncontends support the conclusion that Congress intended to redefine parttime employment to include only employment of 16 to 32 hours per week.\nSee OPM Memorandum at 2\xe2\x80\x933. The first passage OPM identifies appears\nin the House report. In explaining the Act\xe2\x80\x99s definition of part-time career\nemployment, that report says:\nThis legislation defines \xe2\x80\x9cpart-time career employment\xe2\x80\x9d as employment of 16 to 32 hours per week, and does not include temporary or\nintermittent employment. Its aim is to encourage the hiring of truly\npart-time employees, in contrast to the current practice of suing [sic]\nemployees working up to 39 hours per week to skirt personnel ceilings.\nH.R. Rep. No. 95-932, at 7. OPM argues that this passage shows that the\nAct\xe2\x80\x99s drafters \xe2\x80\x9cinten[ded] that part-time employment be limited to hours\nsubstantially less than 40 hours per week.\xe2\x80\x9d OPM Memorandum at 2.\nAlthough that inference is plausible, it is not the only possible reading of\nthe relevant language. The passage says that the Act aims to \xe2\x80\x9cencourage\n120\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nthe hiring of truly part-time employees.\xe2\x80\x9d H.R. Rep. No. 95-932, at 7\n(emphasis added). Even if the drafters believed that employees who do\nnot work 16 to 32 hours per week are not \xe2\x80\x9ctruly part-time,\xe2\x80\x9d the passage\nstates that the drafters\xe2\x80\x99 method of promoting \xe2\x80\x9cpart-time career employment\xe2\x80\x9d under the Act was by encouragement, not mandate. Moreover, the\npassage specifically disapproves of the use of \xe2\x80\x9cemployees working up to\n39 hours per week to skirt personnel ceilings,\xe2\x80\x9d id. (emphasis added), and\nunder any interpretation, the Act eliminates the incentive to engage in that\npractice by changing the manner in which part-time career employees are\ncounted for purposes of personnel ceilings, see 5 U.S.C. \xc2\xa7 3404; S. Rep.\nNo. 95-1116, at 16\xe2\x80\x9317.\nThe second passage OPM cites appears in a section of the Senate report\ndiscussing the definition of part-time career employment contained in the\nSenate\xe2\x80\x99s version of the Act. The passage begins by explaining that the\nSenate bill \xe2\x80\x9cdefines the term[] . . . \xe2\x80\x98part-time career employment\xe2\x80\x99 for the\npurposes of new subchapter VIII . . . to mean part-time employment of 10\nhours, 20 hours, and 30 hours a week.\xe2\x80\x9d S. Rep. No. 95-1116, at 13. It goes\non to acknowledge that this \xe2\x80\x9capproach to the definition of part-time career\nemployment differs from the approach taken in the House.\xe2\x80\x9d Id. at 14. The\npassage then states:\nThe administration contends that part-time employment should be\ndefined as anything less than 40 hours per week. The committee disagrees because such a definition would make possible the current arrangement by which those individuals defined as working part-time\nfor the Federal Government include many working 35 to 39 hours\nper week. In order for the legislation to have an impact, the committee shares the view of the House that part-time employment must be\ndefined so that the jobs created entail significantly less than 40 hours\nof work per week.\nId.\nOPM contends that this passage shows that Congress intended to\n\xe2\x80\x9climit[] part-time employment\xe2\x80\x9d to \xe2\x80\x9cwork schedule[s] [of ] significantly\nless than 40 hours.\xe2\x80\x9d OPM Memorandum at 3. That reading is reasonable;\nit draws support from the drafters\xe2\x80\x99 statement of disapproval of the \xe2\x80\x9carrangement by which those individuals defined as working part-time for\nthe Federal Government include many working 35 to 39 hours per\n121\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nweek,\xe2\x80\x9d and their reference to the definition of \xe2\x80\x9cpart-time employment,\xe2\x80\x9d\nrather than \xe2\x80\x9cpart-time career employment,\xe2\x80\x9d S. Rep. No. 95-1116, at 14.\nBut it is also reasonable to read this passage as stating that the drafters\nintended the Act to encourage only part-time employment falling within\nthe Act\xe2\x80\x99s definition of part-time career employment. In support of this\nreading, the passage says that the drafters intended to ensure that \xe2\x80\x9cthe\njobs created entail significantly less than 40 hours of work per week,\xe2\x80\x9d\nid. (emphasis added)\xe2\x80\x94a goal the Act achieves by limiting the Act\xe2\x80\x99s\ndefinition of \xe2\x80\x9cpart-time career employment\xe2\x80\x9d to employees working\nbetween 16 and 32 hours per week and requiring each agency to \xe2\x80\x9cestablish and maintain a program for part-time career employment,\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 3402(a)(1). Moreover, the passage\xe2\x80\x99s reference to \xe2\x80\x9cpart-time employment\xe2\x80\x9d may simply have been an imprecise shorthand for \xe2\x80\x9cpart-time\ncareer employment.\xe2\x80\x9d The drafters used the same shorthand elsewhere in\nthe Senate report, even where they clearly intended to refer only to parttime career employment; for instance, in two places the report states that\nthe Act entitles \xe2\x80\x9ccurrent personnel working part-time\xe2\x80\x9d to receive full\nhealth benefits, S. Rep. No. 95-1116, at 12 (emphasis added); see id. at 2\n(similar), even though the Act grants that entitlement only to personnel\nworking \xe2\x80\x9con a part-time career employment basis on the date of the\nenactment of this Act,\xe2\x80\x9d Act \xc2\xa7 4(c)(2)(B) (emphasis added), and the\ndrafters were well aware that \xe2\x80\x9cmany\xe2\x80\x9d part-time employees employed on\nthe date of the Act\xe2\x80\x99s enactment were not part-time career employees,\nS. Rep. No. 95-1116, at 14. In addition, the relevant passage opens by\nreferring to the manner in which the Act \xe2\x80\x9cdefines the term[] . . . \xe2\x80\x98parttime career employment\xe2\x80\x99 for the purposes of new subchapter VIII,\xe2\x80\x9d and\ngoes on to refer to the Act\xe2\x80\x99s \xe2\x80\x9cdefinition of part-time career employment.\xe2\x80\x9d Id. at 13\xe2\x80\x9314.\nAs a result, we conclude that the legislative history of the Act is ambiguous with respect to the question at hand. Some statements in the\nHouse and Senate reports support the first possible interpretation of the\nAct, while others might (but need not) be read to support the second\ninterpretation. Because \xe2\x80\x9cthe authoritative statement\xe2\x80\x9d of a statute\xe2\x80\x99s meaning is \xe2\x80\x9cthe statutory text, not the legislative history,\xe2\x80\x9d this equivocal\nevidence of congressional intent bears little weight in construing the\nAct. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568\n(2005); see Milner v. Dep\xe2\x80\x99t of Navy, 562 U.S. 562, 572 (2011) (\xe2\x80\x9cWe will\n122\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\nnot . . . allow[] ambiguous legislative history to muddy clear statutory\nlanguage.\xe2\x80\x9d).\n5.\nFinally, we examine the context in which the Act was drafted and its\n\xe2\x80\x9cplace in the overall statutory scheme.\xe2\x80\x9d Roberts v. Sea-Land Servs., Inc.,\n132 S. Ct. 1350, 1357 (2012) (quoting Davis v. Mich. Dep\xe2\x80\x99t of Treasury,\n489 U.S. 803, 809 (1989)).\na.\nWe begin by considering the Act\xe2\x80\x99s effect on part-time employment arrangements that existed at the time of its enactment. The first possible\ninterpretation of the Act would not appear to have any significant adverse\neffects on preexisting part-time employment arrangements. Under that\ninterpretation, agencies would retain their authority to schedule part-time\nemployees as they see fit, and there would be no disruptive or improbable\neffects on preexisting employees.\nThe second interpretation of the Act, in contrast, would lead to two unlikely and disruptive consequences, which themselves could be avoided\nonly by significantly straining the Act\xe2\x80\x99s text. First, if the Act prohibited\nall part-time employment falling outside of its definition, then the Act\nseemingly would have made it unlawful for agencies to continue to employ part-time employees already working more than 32 hours per week.\nCongress was aware that agencies employed numerous such employees\nwhen the Act was enacted. See S. Rep. No. 95-1116, at 10 (stating that\n\xe2\x80\x9cthe vast majority\xe2\x80\x9d of new part-time employees worked between 35 and\n39 hours per week); H.R. Rep. No. 95-932, at 4 (stating that \xe2\x80\x9cthe tendency\nis to hire 39 hour per week \xe2\x80\x98part timers\xe2\x80\x99\xe2\x80\x9d). Yet nothing in the text or\nhistory of the Act indicates that Congress contemplated that agencies\nwould need to terminate or reschedule all of those employees\xe2\x80\x94an omission that is particularly notable given that Congress showed solicitude for\nother employees potentially affected by the Act\xe2\x80\x99s provisions. See 5 U.S.C.\n\xc2\xa7 3403(a) (prohibiting agencies from abolishing positions to make them\navailable to part-time career employees); id. \xc2\xa7 3403(b) (prohibiting agencies from requiring full-time employees to accept part-time employment);\nAct \xc2\xa7 4(c)(2)(B) (grandfathering health benefits for preexisting part-time\n123\n\n\x0c39 Op. O.L.C. 99 (2015)\n\ncareer employees). Congress\xe2\x80\x99s silence on this subject strongly suggests\nthat Congress did not intend to proscribe part-time employment not within\nthe Act\xe2\x80\x99s definition. Cf. Chisom v. Roemer, 501 U.S. 380, 396 n.23 (1991)\n(\xe2\x80\x9cCongress\xe2\x80\x99 silence in this regard can be likened to the dog that did not\nbark.\xe2\x80\x9d).\nOPM attempted to mitigate this severe consequence of its interpretation\nwhen it promulgated regulations concerning the Act in 1979. In the preamble to those regulations, OPM\xe2\x80\x94applying its understanding of the\nAct\xe2\x80\x94asserted that the Act\xe2\x80\x99s \xe2\x80\x9cprohibition\xe2\x80\x9d on the employment of part-time\nemployees working 33 to 39 hours per week \xe2\x80\x9cd[id] not apply\xe2\x80\x9d to anyone\nemployed prior to April 8, 1979. 44 Fed. Reg. at 57,379. But OPM did not\ncite any statutory basis for this assertion, and we have identified none.\nSecond, if the Act offered the exclusive definition of part-time employment for federal employees, then the statute would prohibit not only\npart-time employment of more than 32 hours per week, but also part-time\nemployment of less than \xe2\x80\x9c16 . . . hours a week.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3401(2). Yet\nas OPM observed, there is no evidence\xe2\x80\x94even in the legislative history\xe2\x80\x94\nthat Congress \xe2\x80\x9cinten[ded] to end the practice of employing\xe2\x80\x9d part-time\nemployees who work 1 to 15 hours per week. 44 Fed. Reg. at 57,380.\nAccordingly, OPM promulgated a regulation stating that agencies could\ncontinue to permit schedules of 1 to 15 hours per week \xe2\x80\x9cunder the authority provided in 5 U.S.C. 3402(a)(3).\xe2\x80\x9d 5 C.F.R. \xc2\xa7 340.202(b). But this\nexception too lacks a firm basis in the Act\xe2\x80\x99s text. Section 3402(a)(3)\nprovides that \xe2\x80\x9c[r]egulations established under\xe2\x80\x9d section 3402(a)(1) \xe2\x80\x9cmay\nprovide for such exceptions as may be necessary to carry out the mission\nof the agency.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3402(a)(3). The \xe2\x80\x9c[r]egulations established\nunder\xe2\x80\x9d section 3402(a)(1), however, are ones that \xe2\x80\x9cestablish and maintain\na program for part-time career employment\xe2\x80\x9d by setting various procedures\nfor establishing, reviewing, and setting goals and timetables for the creation of part-time career employment positions. Id. \xc2\xa7 3402(a)(1). Section\n3402(a)(3) thus appears to permit exceptions only to the various procedures that constitute an agency\xe2\x80\x99s part-time career employment program.\nSee S. Rep. No. 95-1116, at 15 (\xe2\x80\x9cParagraph (3) provides that agency\nregulations establishing part-time career employment programs may\nprovide for such exceptions to such programs as may be necessary to\ncarry out the mission of the agency.\xe2\x80\x9d (emphasis added)); H.R. Rep. No.\n95-932, at 10 (same). It is doubtful that an exception altering the defini124\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\ntion of \xe2\x80\x9cpart-time career employment\xe2\x80\x9d falls within that authority.8 OPM\xe2\x80\x99s\ninterpretation of the Act would therefore either compel a result that Congress apparently did not intend (elimination of part-time schedules of less\nthan 16 hours per week) or require a significant expansion of the Act\xe2\x80\x99s\ntext to avoid that result.\nb.\nWe next consider three potentially relevant statutes enacted subsequent\nto the Act. First, as discussed above, a few weeks before the Act\xe2\x80\x99s passage, Congress enacted a statute establishing a three-year experimental\nprogram \xe2\x80\x9cto test . . . compressed schedule[s]\xe2\x80\x9d that defined a compressed\nschedule for a \xe2\x80\x9cpart-time employee\xe2\x80\x9d as \xe2\x80\x9ca biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays.\xe2\x80\x9d\nPub. L. No. 95-390, \xc2\xa7\xc2\xa7 201(1)(B), 202(a). Three years later, Congress\nmade this program permanent by enacting the Federal Employees Flexible\nand Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96\nStat. 227 (codified as amended at 5 U.S.C. \xc2\xa7 6120 et seq.). In this new\nstatute, Congress reenacted without change the prior definition of a compressed schedule. 5 U.S.C. \xc2\xa7 6121(5)(B). Congress also amended the\nAct\xe2\x80\x99s definition of \xe2\x80\x9cpart-time career employment\xe2\x80\x9d to state that it includes\npart-time employment of \xe2\x80\x9c32 to 64 hours during a biweekly pay period in\nthe case of a flexible or compressed schedule under subchapter II of\nchapter 61 of this title.\xe2\x80\x9d Pub. L. No. 97-221, \xc2\xa7 3. This pair of definitions\nin the 1982 statute indicates that the enacting Congress did not believe\nthat all part-time employees were required to work between 16 and 32\nhours per week. The statute provides that agencies may permit a \xe2\x80\x9cparttime employee\xe2\x80\x9d to work \xe2\x80\x9cless than 80 hours\xe2\x80\x9d over a biweekly period, or\nless than 40 hours in a single workweek. 5 U.S.C. \xc2\xa7 6121(5)(B); see id.\n\xc2\xa7 6127(a) (authorizing agencies to \xe2\x80\x9cestablish programs which use a 4-day\nworkweek or other compressed schedule\xe2\x80\x9d). At the same time, it provides\nthat agencies may permit a \xe2\x80\x9cpart-time career employ[ee]\xe2\x80\x9d to work only\n\xe2\x80\x9c32 to 64 hours\xe2\x80\x9d over a biweekly period, or 16 to 32 hours in a single\nworkweek. Id. \xc2\xa7 3401(2) (emphasis added). If Congress believed that all\npart-time employees were part-time career employees, then these defini8 As noted above, we do not address whether OPM might have authority under other\nstatutes to limit or expand the scope of part-time employment.\n\n125\n\n\x0c39 Op. O.L.C. 99 (2015)\n\ntions should have been the same\xe2\x80\x94all such employees should have been\npermitted to work only 32 to 64 hours in a biweekly period. This statute\nthus appears to reflect Congress\xe2\x80\x99s belief that, subsequent to the Act,\nagencies could continue to employ part-time employees who worked more\nthan 32 hours per week. The fact that Congress \xe2\x80\x9cseems clearly to have\ncontemplated\xe2\x80\x9d such conduct is \xe2\x80\x9centitled to significant weight\xe2\x80\x9d in interpreting the Act. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S.\n572, 595\xe2\x80\x9396 (1980); see Almendarez-Torres v. United States, 523 U.S.\n224, 237 (1998) (describing circumstances in which later-enacted laws\nmay inform the interpretation of earlier provisions, including when there\nis \xe2\x80\x9cdirect focus by Congress upon the meaning of the earlier enacted\nprovisions\xe2\x80\x9d). 9\nA second potentially relevant statute amended 5 U.S.C. \xc2\xa7 6323, a provision granting \xe2\x80\x9cpermanent or temporary indefinite\xe2\x80\x9d employees the right\nto accrue leave for military purposes \xe2\x80\x9cat the rate of 15 days per fiscal\nyear.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 6323(a)(1). In 1980, Congress added a new subsection\nto this provision stating that employees \xe2\x80\x9cemployed on a part-time career\nemployment basis\xe2\x80\x9d would accrue military leave at a rate prorated to the\nportion of the full workweek they work. Pub. L. No. 96-431, \xc2\xa7 1, 94 Stat.\n1850, 1850 (codified at 5 U.S.C. \xc2\xa7 6323(a)(2)). OPM argues that this\namendment supports its reading of the Act, presumably on the theory\nthat\xe2\x80\x94as with the Act\xe2\x80\x99s health benefits provision\xe2\x80\x94it would be anomalous\nif this statute prorated leave for part-time career employees while entitling\nother part-time employees to full military leave. OPM Reply at 4. But we\nthink this argument rests on a mistaken premise. Prior to the enactment of\nthis statute, the Comptroller General had consistently interpreted section\n6323 and its predecessor, 10 U.S.C. \xc2\xa7\xc2\xa7 371\xe2\x80\x93371a, to entitle part-time\nemployees to no military leave. See William P. Wisinger, 59 Comp. Gen.\n9 OPM argues that this discrepancy is the result of \xe2\x80\x9cinartful drafting\xe2\x80\x9d: It speculates that\nthe \xe2\x80\x9cless than 80 hours\xe2\x80\x9d language is an \xe2\x80\x9coversight\xe2\x80\x9d that Congress inadvertently included\nin this statute as a \xe2\x80\x9cremnant\xe2\x80\x9d of the 1978 flexible and compressed schedules statute. OPM\nReply at 1\xe2\x80\x933. We do not think this theory is persuasive. Congress did not simply copy the\ntext of the 1978 flexible and compressed schedules statute without accounting for the\npassage of the Act. On the contrary, it expressly amended the Act\xe2\x80\x99s definition of \xe2\x80\x9cparttime career employment\xe2\x80\x9d to specify the hours that constituted a compressed schedule for\npart-time career employees. Congress\xe2\x80\x99s failure to similarly amend the definition of\n\xe2\x80\x9ccompressed schedule\xe2\x80\x9d for all part-time employees thus appears to have been a deliberate\nchoice, not an oversight.\n\n126\n\n\x0cPermitting Part-Time Employees to Work Regularly Scheduled Weeks of 33 to 39 Hours\n\n365, 365 (1980) (citing prior decisions and legislative history supporting\nthis view). In 1980, Congress concluded that this longstanding interpretation ran \xe2\x80\x9ccounter to the Federal Employees Part-time Career Employment\nAct\xe2\x80\x9d as applied to part-time career employees and therefore extended the\nmilitary leave statute to part-time career employees on a prorated basis.\nH.R. Rep. No. 96-1128, at 3 (1980). At least against the legal backdrop as\nCongress understood it, 10 this statute thus granted part-time career employees a benefit to which other part-time employees would not be entitled\xe2\x80\x94a result, as we have said, that is entirely consistent with the Act\xe2\x80\x99s\nstructure and purpose. See supra Part II.C.3.a.\nA third statute referencing the Act was enacted in 1991. That statute,\nthe Department of Veterans Affairs Health-Care Personnel Act of 1991,\nPub. L. No. 102-40, 105 Stat. 187, authorizes the Secretary of Veterans\nAffairs to make appointments to the Veterans Health Administration\nwithout regard to a number of civil service requirements. Id. \xc2\xa7 401(b)(2)\n(codified at 38 U.S.C. \xc2\xa7\xc2\xa7 7405(a), 7406(a)(1)); id. \xc2\xa7 401(b)(3) (codified at\n38 U.S.C. \xc2\xa7 7425). As relevant here, the statute provides that the Act\xe2\x80\x99s\nprovisions \xe2\x80\x9cpertaining to part-time career employment\xe2\x80\x9d do \xe2\x80\x9cnot apply to\n[covered] part-time appointments.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 7407(e). OPM argues that\nthis exemption \xe2\x80\x9cdemonstrat[es] that an exclusion was required to prevent\xe2\x80\x9d\nall part-time employees from being subject to the Act. OPM Reply at 4.\nBut we do not think the statute supports such an inference. Congress often\nexempts classes of persons from requirements that apply to some but not\nall class members, including elsewhere in the Department of Veterans\nAffairs Health-Care Personnel Act itself. See, e.g., 38 U.S.C. \xc2\xa7 7425(a)\n(exempting all employees appointed pursuant to the statute from requirements applicable only to the Senior Executive Service). Indeed, many of\nthe \xe2\x80\x9cpart-time appointments\xe2\x80\x9d authorized by this statute are required to be\n\xe2\x80\x9ctemporary,\xe2\x80\x9d id. \xc2\xa7 7405(d), (g)(1), and so would not be subject to the Act\nunder any reading. See 5 U.S.C. \xc2\xa7 3401(2) (stating that \xe2\x80\x9c\xe2\x80\x98part-time career\nemployment\xe2\x80\x99 . . . does not include employment on a temporary or intermittent basis\xe2\x80\x9d). Hence, this statute too is fully consistent with the view\nthat the Act did not eliminate part-time employment outside of its definition of part-time career employment.\n10 We express no view on whether the Comptroller General\xe2\x80\x99s decisions are correct or\nwhether part-time employees who fall outside the Act\xe2\x80\x99s definition are eligible for military\nleave under 5 U.S.C. \xc2\xa7 6323(a).\n\n127\n\n\x0c39 Op. O.L.C. 99 (2015)\n\nFor these reasons, we think that the statutes enacted subsequent to the\nAct support the first reading of the statute. The Federal Employees Flexible and Compressed Work Schedules Act seems clearly to contemplate\nthe existence of part-time employees who do not work between 16 and 32\nhours per week, whereas the other two statutes we have considered are\nequally consistent with either the first or second reading of the Act. The\ncontext of the Act as a whole thus bolsters the conclusion that it does not\nprohibit part-time employment that falls outside its definition.\n* * * * *\nIn sum, several significant considerations support the conclusion that\nthe Act does not limit agencies\xe2\x80\x99 preexisting authority to schedule parttime employees to work more than 32 hours per week. The Act\xe2\x80\x99s plain\ntext and stated purpose do not purport to limit agencies\xe2\x80\x99 preexisting\nauthority; its principal provisions would work as Congress intended if\nagencies retained that authority; and a contrary conclusion would lead to\nimprobable results and undermine a later-enacted statute. In contrast, a\nconclusion that the Act prohibits all part-time employment of more than\n32 hours per week would find support only in potential inferences drawn\nfrom the Act\xe2\x80\x99s ancillary benefits provisions and in ambiguous statements\ncontained in the Act\xe2\x80\x99s legislative history. Accordingly, we think that the\nAct is best read not to limit agencies\xe2\x80\x99 preexisting authority to hire parttime employees and to schedule them for regular workweeks of 33 to 39\nhours.\nIII.\nFor the foregoing reasons, we conclude that the statutes governing federal employment permit part-time schedules of 33 to 39 hours a week. As\nnoted above, we do not address whether OPM has authority, independent\nof the Act, to prohibit agencies from offering such schedules or whether\nagencies may elect (or require their components) not to offer such employment. Nor do we address what administrative steps, if any, would be\nrequired before CRT could begin authorizing part-time employees to work\nthose schedules.\nBRIAN M. BOYNTON\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n128\n\n\x0c'