Fedweek Legal

In Mercier v. United States, No. 2014-5074 (May 15, 2015), the U.S. Court of Appeals for the Federal Circuitreversed the decision of the Court of Federal Claims, which had dismissed a claim for overtime pay brought by nurses of the Department of Veterans Affairs. The Federal Circuit found that the Court of Federal Claims had erred when it found that overtime must be “officially ordered or approved” by express direction to be compensable.

The nurses claimed entitlement to overtime pay under the statutory provision which requires compensation for “officially ordered or approved” overtime work. The Court of Federal Claims dismissed the nurses’ claims because the nurses had not alleged that the agency “expressly directed” their overtime. The nurses alleged that they were required to work overtime on a recurring an involuntary basis, in order to perform time sensitive tasks related to patient care. The nurses alleged that not only did the agency have knowledge that they worked overtime, the agency expected and required that they perform those time sensitive tasks.


This case involved an interpretation of the words “officially ordered or approved” in 38 U.S.C. §7453(e)(1), the statute which provides overtime pay for VA nurses. This statute does not require an official order or approval of overtime to be in any particular form. The Federal Circuit noted that the agency had not enacted any regulation interpreting the statute as mandating any particular procedure that must be followed to qualify for overtime pay. The Federal Circuit found that the words “officially ordered or approved” should have the same meaning as the same words which appear in another statute, the Federal Employee Pay Act (FEPA), 5 U.S.C. §5542(a). FEPA authorizes overtime pay for federal employees not covered by other statutes. The Federal Circuit noted that when Congress uses the same language in two statutes having similar purposes, it is appropriate to presume that Congress intended the text to have the same meaning in both statutes.

The Federal Circuit reversed and remanded the case for further proceedings consistent with its findings in prior cases that overtime that the government induces its employees to perform is “officially ordered or approved” under FEPA, and must therefore be compensated.

* This information is provided by the attorneys at Passman& Kaplan, P.C.