MICHAEL HORVATH, INDIVIDUALLY, AND ON BEHALF OF THE CLASSES OF FEDERAL SECRET SERVICE AGENTS SIMILARLY SITUATED TO HIM, Plaintiff-Appellant
UNITED STATES, Defendant-Appellee
from the United States Court of Federal Claims in No.
1:16-cv-00688-LKG, Judge Lydia Kay Griggsby.
Nicholas Wieczorek, Clark Hill PLLC, Las Vegas, NV, argued
for plaintiff-appellant. Also represented by David James
Vendler, Law Offices of David J. Vendler, San Marino, CA.
Bae, 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., Claudia Burke.
Dyk, Chen, and Stoll, Circuit Judges.
Horvath brought this putative class-action lawsuit in the
Court of Federal Claims ("Claims Court") seeking
overtime and related compensation on behalf of himself and
similarly situated special agents of the U.S. Secret Service.
Among his theories of recovery, Mr. Horvath asserted that
regulations promulgated by the Office of Personnel Management
("OPM") improperly required that certain overtime
hours be worked consecutively in order to trigger
compensation. See 5 C.F.R. §§
550.111(f)(2)(ii), 550.182(b)(2). Because we find that those
challenged regulations are contrary to the unambiguous
meaning of the relevant statute, we reverse in part the
Claims Court's dismissal of Mr. Horvath's complaint
and remand for further proceedings. We affirm in all other
Horvath has been employed as a special agent of the Secret
Service since 2010. As such, he is a law-enforcement officer
entitled to certain enhancements to his pay to compensate for
his availability and overtime hours.
Mr. Horvath receives a 25% enhancement to his base salary
under a provision known as Law Enforcement Availability Pay
or "LEAP." See 5 U.S.C. §
5545a(h)(1). The LEAP statute "provide[s] premium pay to
criminal investigators to ensure the availability of criminal
investigators for unscheduled duty in excess of a 40 hour
work week based on the needs of the employing agency."
Id. § 5545a(b). There is no dispute that Mr.
Horvath is a criminal investigator within the meaning of the
LEAP statute, that he otherwise meets its eligibility
requirements, and that he has accordingly been receiving LEAP
Mr. Horvath is additionally entitled to overtime compensation
for some--but not all--of the overtime hours he works. For
employees receiving LEAP pay, the overtime-pay statute makes
an important distinction between unscheduled overtime and
scheduled overtime (i.e., "overtime work which is
scheduled in advance of the administrative workweek").
Id. § 5542(d)(1). For scheduled overtime, those
employees are compensated for work which is:
(A) in excess of 10 hours on a day during such
investigator's basic 40 hour workweek; or
(B) on a day outside such investigator's basic 40 hour
workweek . . . .
Id. All other overtime--scheduled or unscheduled--is
considered to be compensated by the LEAP pay enhancement
rather than by additional hourly wages. Id. §
there is an exception when performing certain duties,
including the protective services performed by the Secret
Service. Id. § 5542(e). For that kind of work,
employees are compensated for all scheduled overtime,
notwithstanding subsection (d)(1)'s limitations, "if
the investigator performs, on that same day, at least 2 hours
of overtime work not scheduled in advance of the
administrative workweek." Id. OPM has
promulgated regulations substantially restating this
exception but adding one relevant detail: the exception
applies only if "[t]he investigator performs on that
same day at least 2 consecutive hours of overtime
work that are not scheduled in advance of the administrative
workweek and are compensated by availability pay." 5
C.F.R. § ...