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Yanko v. United States

United States Court of Appeals, Federal Circuit

September 6, 2017

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
v.
UNITED STATES, Defendant-Appellee

         Appeal from the United States Court of Federal Claims in No. 1:15-cv-01560-SGB, Chief Judge Susan G. Braden.

          Ira M. Lechner, Washington, DC, argued for plaintiff-appellant.

          Mark 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.

          Before Prost, Chief Judge, Bryson and Stoll, Circuit Judges.

          BRYSON, CIRCUIT JUDGE.

         Plaintiff 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.

         I

         A

         There 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.[1] Federal employees, including part-time employees, are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. §§ 610.405, 610.406. When employees are required to work on 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).

         In 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).

         Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits. For such employees, if a holiday falls on a day outside the employee's basic workweek, the employee's 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).[2] 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).

         There 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.

         B

         Mr. 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.

         It is 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 have ...


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