MICHAEL YANKO, AS AN INDIVIDUAL, AND ON BEHALF OF ALL OTHER PART-TIME GS AND WG FEDERAL EMPLOYEES WHO ARE OR WERE EMPLOYED BY ALL FEDERAL AGENCIES AND WHO ARE SIMILARLY SITUATED, Plaintiff-Appellant
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:15-cv-01560-SGB, Chief Judge Susan G. Braden.
Lechner, Washington, DC, argued for plaintiff-appellant.
E. Porada, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellee. Also represented by Chad A. Readler,
Robert E. Kirschman, Jr., Reginald T. Blades, Jr.
Prost, Chief Judge, Bryson and Stoll, Circuit Judges.
BRYSON, CIRCUIT JUDGE.
Michael Yanko is a part-time federal employee of the U.S.
Department of Veterans Affairs. In his class action
complaint, which he filed for himself and "on behalf of
all other part-time GS and WG federal employees who are or
were employed by all federal agencies and who are similarly
situated, " he asserts that the class members are
entitled to premium pay for work performed on each day
designated by statute or Executive Order as an
"in-lieu-of" holiday. The Court of Federal Claims
rejected his claim. We affirm.
are ten federal holidays each year. Six of them are
celebrated on Mondays, while the other four (New Year's
Day, Independence Day, Thanksgiving Day, and Christmas Day)
are celebrated on the day on which they fall. Federal
employees, including part-time employees, are paid for
holidays that fall on a workday but on which the employee is
not required to work. 5 C.F.R. §§ 610.405, 610.406.
When employees are required to work on holidays, they are
entitled to premium pay for their work on that day that is
not in excess of eight hours and is not overtime work. 5
U.S.C. § 5546(b). The rate of premium pay for holiday
work is equal to the employee's rate of basic pay,
id., which means that an employee who works on a
holiday is in effect paid double time for that work. Both
full-time and part-time employees are entitled to premium pay
for designated holidays on which they are required to work. 5
C.F.R. § 610.202(a).
addition to holidays that fall on employees' workdays,
holidays sometimes fall on days that particular employees are
not scheduled to work. By statute and Executive Order,
certain employees whose basic workweek of five workdays is
Monday through Friday are granted days off
"in-lieu-of" holidays for those days. In the case
of a holiday that falls on a Saturday, Congress has provided
that the Friday before that Saturday is a holiday. 5 U.S.C.
§ 6103(b)(1)(A). In the case of a holiday that falls on
a Sunday, an Executive Order provides that the Monday after
that Sunday is a holiday for those employees. Exec. Order No.
11, 582, § 3(a), 36 Fed. Reg. 2957 (Feb. 11, 1971). Such
Friday and Monday holidays are referred to as
"in-lieu-of holidays." Employees who are entitled
to such in-lieu-of holidays are relieved from having to work
on those days or, if required to work, earn premium pay for
those days. 5 U.S.C. § 6103(b)(1)(A); Exec. Order No.
11, 582, § 3(a).
whose basic workweek of five workdays is other than Monday
through Friday enjoy corresponding benefits. For such
employees, if a holiday falls on a day outside the
employee's basic workweek, the employee's in-lieu-of
holiday is observed during the employee's workweek, on
either the day before or the day after the actual holiday. 5
U.S.C. § 6103(b)(2); Exec. Order No. 11, 582, §
3(b). The employees are relieved from work on
that in- lieu-of day or given premium pay if they are
required to work. See 5 U.S.C. § 6103(b)(2);
Exec. Order No. 11, 582, § 3(b).
is no dispute between the parties regarding how the
in-lieu-of provisions operate with regard to fulltime
employees. The dispute concerns whether, and to what extent,
the in-lieu-of provisions apply to part-time employees such
as Mr. Yanko.
Yanko has been employed by the Department of Veterans Affairs
on a part-time basis for some time, including the entire
six-year period prior to the filing of his complaint. His
regular workweek consists of five days, from Sunday through
Thursday. Thus, his weekly non-workdays regularly fall on
Fridays and Saturdays. Between December 15, 2009, and May 16,
2016, there were eight official public holidays that fell on
either a Friday or a Saturday (New Year's Day of 2010,
2011, and 2016; Independence Day of 2014 and 2015; and
Christmas Day of 2009, 2010, and 2015). Because Mr. Yanko is
a part-time employee, he was not credited with an in-lieu-of
holiday during the preceding or succeeding workweek for any
of those eight days.
the longstanding policy of the Office of Personnel Management
("OPM") that part-time employees are not entitled
to an in-lieu-of holiday corresponding to a particular
holiday when that holiday falls on a non-workday for the
part-time employee. That policy is reflected in regulations
issued by OPM pursuant to notice-and-comment rulemaking. 5
C.F.R. §§ 610.405, 610.406. Contending that
OPM's policy and regulations are contrary to section
6103(b) and Executive Order 11, 582, Mr. Yanko seeks to
recover an amount equal to the premium pay to which he would