                                                         United States Court of Appeals
                                                                  Fifth Circuit

               REVISED APRIL 4, 2006                          FILED
                                                            March 24, 2006
                              In the                   Charles R. Fulbruge III
           United States Court of Appeals                      Clerk
                     for the Fifth Circuit
                         _______________

                            m 05-40370
                          ______________



                            JUNE BELT,
ON BEHALF OF HERSELF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;
              PAUL MAIOCCO, WASHINGTON PLAINTIFF;
             DONALD CHRISTIAN, NEW YORK PLAINTIFF;
               LUCILLE MOYLAN, ILLINOIS PLAINTIFF;
              VICTOR AMBROSIA, ILLINOIS PLAINTIFF;
                      HUNTINGTON YEO;
           DARYL WEIN, UCL AND CALIFORNIA PLAINTIFF;
         JEANETTE SHELLY, UCL AND CALIFORNIA PLAINTIFF;
         RONALD MARTINEZ, UCL AND CALIFORNIA PLAINTIFF;
            JULIE JUNG, UCL AND CALIFORNIA PLAINTIFF;
         DEBORAH GASKINS, UCL AND CALIFORNIA PLAINTIFF;
           DAVID DONA, UCL AND CALIFORNIA PLAINTIFF;
          MASON CARLIN, UCL AND CALIFORNIA PLAINTIFF;
         SUSAN BERTELSEN, UCL AND CALIFORNIA PLAINTIFF;
            NEIL ADLER, UCL AND CALIFORNIA PLAINTIFF;
              DEBORAH NICHOLS, ARIZONA PLAINTIFF;
                      FLSA EMPLOYEES,

                                           Plaintiffs-Appellees,

                             VERSUS

    EMCARE, INC., AND TEXAS EM-I MEDICAL SERVICES, P.A.,

                                           Defendants-Appellants.
2
                                      _________________________

                               Appeal from the United States District Court
                                    for the Eastern District of Texas
                                     _________________________




Before KING, SMITH, and BENAVIDES,                           Plaintiffs are paid hourly at a flat rate for all
  Circuit Judges.                                            hours worked, including overtime (i.e., all
                                                             hours over forty in a workweek). The DOL’s
JERRY E. SMITH, Circuit Judge:                               Bureau of Labor Statistics’ Occupational Out-
                                                             look Handbook provides an overview of the
   This appeal presents the question whether                 job descriptions of PA’s and NP’s:
physician assistants (“PA’s”) and nurse practi-
tioners (“NP’s”)1 qualify for the professional                    Physician assistants (PAs) practice medi-
exemption to the overtime requirements of the                   cine under the supervision of physicians and
Fair Labor Standards Act (“FLSA”). Plaintiffs,                  surgeons . . . PAs are formally trained to
and the Department of Labor (“DOL”) as ami-                     provide diagnostic, therapeutic, and pre-
cus curiae, contend that the regulation inter-                  ventive health care services, as delegated by
preting the professional exemption, 29 C.F.R.                   a physician. Working as members of the
§ 541.3 (1973), does not speak to the precise                   health care team, they take medical histor-
question before us and that the agency’s infor-                 ies, examine and treat patients, order and
mal interpretive statements excluding plaintiffs                interpret laboratory tests and x rays, and
from the exemption merit deference under Auer                   make diagnoses. They also treat minor
v. Robbins, 519 U.S. 452 (1997). We agree                       injuries, by suturing, splinting, and casting.
and affirm, and remand for further proceedings.                 PAs record progress notes, instruct and
                                                                counsel patients, and order or carry out
                       I.                                       therapy. In 48 States and the District of
   Plaintiffs are 59 PA’s and 20 NP’s who pro-                  Columbia, physician assistants may pre-
vide health care services for EmCare, Inc., in                  scribe medications. PAs also may have
hospital emergency rooms in twenty states.2                     managerial duties. Some order medical
                                                                supplies or equipment and supervise tech-
   1
    Although the defendant employers tend to refer
to plaintiffs by their official titles, plaintiffs are
prone to use the collective term “mid-level pro-
viders.” Recognizing that the respective choices of
                                                                2
terms are strategic, we use the official titles.                 (...continued)
                                                             perform administrative tasks. EmCare states that
   2
     Defendant Texas EM-I is a physicians group              it assists Texas EM-I by “providing recruiting,
responsible for adequately staffing hospital emer-           scheduling, malpractice insurance coverage, risk
gency rooms. It contracted with EmCare to help               management, and clinician payroll support.” We
                                     (continued...)          refer to defendants jointly as “EmCare.”

                                                         3
   nicians and assistants.[3]                            which held that an agency’s interpretation of
                                                         its own ambiguous regulation is controlling
     Nurse practitioners provide basic preven-           unless clearly erroneous or inconsistent with
   tive health care to patients, and increasingly        the regulation.
   serve as primary and specialty care providers
   in mainly medically underserved areas . . .               The court also considered the history of the
   In most States, advanced practice nurses can          FLSA’s professional exemption, which
   prescribe medications.[4]                             showed that the DOL had rejected earlier ef-
                                                         forts to expand the exemption to include other
    Plaintiffs sued EmCare for back wages and            professionals, such as engineers and architects,
liquidated damages under the FLSA, alleging              and that the NP and PA professions had not
that EmCare was violating the FLSA by failing            fully developed when the exemption was
to pay time-and-a-half compensation for over-            created. The court further considered the lat-
time. EmCare responded that it did not owe               est version of the applicable regulations, ef-
plaintiffs additional pay, because they qualify          fective August 23, 2004,5 which codified a
for an exemption as bona fide professionals un-          previous informal interpretation of § 541.3(e)
der 29 C.F.R. § 541.3(e) (1973). The parties             (i.e., provided notice and comment), requiring
filed cross-motions for partial summary judg-            that certain analogous professions, such as
ment on this issue, and the district court grant-        nurses and certified medical technologists, be
ed plaintiffs’ motion. See June Belt v. EmCare           salaried to be exempt from the overtime re-
Inc., 351 F. Supp. 2d 625 (E.D. Tex. 2005).              quirements. The court certified its order for
                                                         interlocutory appeal under 28 U.S.C.
    The court reasoned that § 541.3(e) is ambig-         § 1292(b),6 and we granted leave to appeal.
uous, so it deferred to the DOL’s informal pro-
nouncements on § 541.3(e), including a DOL                                      II.
opinion letter and the Wage and Hours Field                 The FLSA provides that a covered em-
Operations Handbook, which tended to show                ployee shall receive compensation at one-and-
that PA’s and NP’s must be paid on a salary ba-          one-half times the regular rate for every hour
sis to be exempt from the FLSA. The court
based its decision on Auer, 519 U.S. at 461,


   3                                                        5
      Physician Assistants, in BUREAU OF LABOR                Though the district court found the 2004 re-
STATISTICS, U.S. DEP’T OF LABOR, OCCUPATIONAL            visions instructive, the facts underlying this case
OUTLOOK HANDBOOK 2006-07,                                occurred before the recent amendments took effect.
http://www.bls.gov/oco/ocos081.htm (last visited         Therefore, this case is governed by the regulations
March 13, 2006).                                         as codified in 1973.
   4                                                        6
      Nurse Practitioners, in BUREAU OF LABOR                  A district court may certify an order for in-
STATISTICS, U.S. DEP’T OF LABOR, OCCUPATIONAL            terlocutory appeal under § 1292(b) where the order
OUTLOOK HANDBOOK 2006-07,                                “involves a controlling question of law as to which
http://www.bls.gov/oco/ocos083.htm (last visited         there is substantial ground for difference of opinion
March 13, 2006). Plaintiffs and the DOL represent        and . . . an immediate appeal from the order may
that the duties of PA’s and NP’s are almost indis-       materially advance the ultimate termination of the
tinguishable.                                            litigation.”

                                                     4
over forty worked during the week,7 but not if                   Section 541.3(e) further provides that the
he is “employed in a bona fide executive, ad-                salary-basis test does not apply to “an employ-
ministrative, or professional capacity . . . as              ee who is the holder of a valid license or cer-
such terms are defined and delimited from time               tificate permitting the practice of law or medi-
to time by regulations of the Secretary.” 29                 cine or any of their branches and who is actu-
U.S.C. § 213(a)(1). Pursuant to this authority,              ally engaged in the practice thereof” (the “sal-
the DOL, after notice and comment, issued                    ary-basis exception”). Because the parties
§ 541.3, which defines a “bona fide . . . profes-            agree that plaintiffs satisfy the duty require-
sional” as an employee who satisfies certain du-             ments of the professional exemption and are
ty requirements8 and “is compensated for ser-                paid hourly, the sole interpretive issue in this
vices on a salary or fee basis” (the “salary-basis           appeal is whether NP’s and PA’s hold a license
test”).9                                                     permitting, and actually engage in, “the
                                                             practice of . . . medicine or any of [its]
                                                             branches.”
   7
      “[N]o employer shall employ any of his em-
ployees who in any workweek is engaged in com-                   If NP’s and PA’s practice medicine within
merce or in the production of goods for commerce,            the meaning of § 541.3(e), plaintiffs do not
or is employed in an enterprise engaged in com-              need to satisfy the salary-basis test to qualify
merce or in the production of goods for commerce,            for the exemption, and EmCare can deny ad-
for a workweek longer than forty hours unless such           ditional overtime pay. If, however, plaintiffs
employee receives compensation for his employment            do not practice medicine under § 541.3(e),
in excess of the hours above specified at a rate not         they are subject to the salary-basis test, they
less than one and one-half times the regular rate at         do not fall within the exemption, and they are
which he is employed.” 29 U.S.C. § 207(a)(1).                eligible for time-and-a-half compensation. We
   8                                                         are the first circuit to address the precise issue
      The relevant duty provisions require that an
employee’s (a) “primary duty consist[] of the per-           presented by this case.
formance of . . . [w]ork requiring knowledge of an
advanced type in a field of science or learning cus-                                  III.
tomarily acquired by a prolonged course of spe-                 When confronted with a statute adminis-
cialized intellectual instruction and study,”                tered by an executive agency, we defer to the
(b) “work requires the consistent exercise of dis-           agency’s interpretation of the statute if (a) the
cretion and judgment in its performance,” (c) “work          statute is silent as to the precise question at is-
is predominantly intellectual and varied in charac-          sue and (b) the agency’s interpretation is rea-
ter,” and (d) at least 80 percent of the employee’s          sonable.10 We employ a similar two-step test
time must be so occupied. 29 C.F.R. § 541.3 (a)-             when interpreting an agency regulation. First,
(d) (1973).                                                  we ask whether the regulation is “ambigu[ous]
   9
     Id. § 541.3(e). Neither side argues that the
DOL lacked authority to issue these implementing
regulations. An employee is considered paid on a                9
                                                                 (...continued)
“salary . . . basis” if “under his employment agree-         tion.” Id. § 541.118(a) (1973).
ment he regularly receives each pay period on a
                                                                10
weekly, or less frequent basis, a predetermined                   Chevron, U.S.A., Inc. v. Natural Resources
amount constituting all or part of his compensa-             Defense Council, Inc., 467 U.S. 837, 842-43
                                        (continued...)       (1984).

                                                         5
with respect to the specific question consid-                   medicine within the meaning of § 541.3(e),
ered.”11                                                        and plaintiffs maintain the regulation does not
                                                                speak to this precise question. Before ad-
    Second, if the regulation is ambiguous, the                 dressing the issue on the merits, however,
agency’s interpretation (as contained in, e.g.,                 plaintiffs contend it is waived because EmCare
opinion letters) is “controlling unless plainly er-             raises it for the first time on appeal, having
roneous or inconsistent with the regulation.”                   consistently represented to the district court
Auer, 519 U.S. at 461 (articulating the rule in                 that § 541.3(e) is ambiguous, and having relied
the context of interpreting a different aspect of               instead on the interpretive regulation,
the salary-basis test) (internal quotations omit-               29 C.F.R. § 541.314 (1973), to make its case.
ted). If the regulation is unambiguous, we may
still consider agency interpretation, but only ac-                  EmCare replies that “an argument is not
cording to its persuasive power.12                              waived on appeal if the argument on the issue
                                                                before the district court was sufficient to per-
                    A.                                          mit the district court to rule on it.”13 The dis-
   EmCare argues that PA’s and NP’s unam-                       trict court held that “[t]hese regulations do not
biguously practice medicine or a branch of                      expressly address whether physician assistants
                                                                and nurse practitioners are exempted from the
                                                                salary-basis test, and, on this issue, the regula-
   11
      Moore v. Hannon Food Serv., 317 F.3d 489,                 tion is therefore ambiguous.” Belt, 351 F.
495 (5th Cir. 2003); Christensen v. Harris County,              Supp. 2d at 627.
529 U.S. 576, 588 (2000) (finding Auer deference
appropriate “only when the language of the regula-                 We have spoken to this waiver issue:
tion is ambiguous”).
   12
     Moore, 317 F.3d at 495; Christensen, 529                      If a litigant desires to preserve an argument
U.S. at 587 (stating that “interpretations contained               for appeal, the litigant must press and not
in formats such as opinion letters are entitled to re-             merely intimate the argument during the
spect . . . but only to the extent that those interpreta-          proceedings before the district court. If an
tions have the power to persuade.”) (internal quo-                 argument is not raised to such a degree that
tations omitted). The Court described this degree of               the district court has an opportunity to rule
deference in Skidmore v. Swift & Co., 323 U.S. 134,                on it, we will not address it on appeal.
140 (1944):
                                                                FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.
   We consider that the rulings, interpretations and            1994). We have noted, however, that “[n]o
   opinions of the [agency], while not controlling              bright-line rule exists for determining whether
   upon the courts by reason of their authority, do             a matter was raised below.” N.Y. Life Ins. Co.
   constitute a body of experience and informed
                                                                v. Brown, 84 F.3d 137, 142 n.4 (5th Cir.
   judgment to which courts and litigants may
   properly resort for guidance. The weight of such
                                                                1996).
   a judgment in a particular case will depend upon
   the thoroughness evident in its consideration, the              EmCare’s corporate representative, Mr.
   validity of its reasoning, its consistency with
   earlier and later pronouncements, and all those
                                                                   13
   factors which give it power to persuade, if                       Lifemark Hosps., Inc. v. Liljeberg Enters.,
   lacking power to control.                                    304 F.3d 410, 428 n.29 (5th Cir. 2002).

                                                            6
Wilson, stated under oath that EmCare was re-           Arnold, 361 U.S. at 392-94. Here, the current
lying only on the DOL’s interpretive regulation,        § 213(a)(1) explicitly gives the DOL authority
not § 541.3. EmCare contends, however, that             to define and cabin the definition of “bona-
it argued to the district court that the court          fide . . . professional” and hence the scope of
should not rely on a 1974 DOL opinion letter            the professional exemption. It would be inap-
because plaintiffs “are included within the un-         propriate to apply a canon of strict (as op-
ambiguous terms of § 541.3 and § 541.314, and           posed to fair) construction to the agency’s dis-
that any agency interpretation of those regu-           cretionary exercise of its own, lawfully dele-
lations should be given only persuasive defer-          gated authority.14
ence, if any, under Skidmore.”
                                                           Therefore, because the regulations do not
    Our review of the record, coupled with the          define the terms used in § 541.3(e), we must
fact that EmCare can provide no specific quo-           consider the words’ ordinary meaning.15 Em-
tation or any excerpt from any district court           Care argues that capacious language does not
filing to support its claim, suggests EmCare did        automatically entail ambiguity and that NP’s
not “press . . . the argument” in the district          and PA’s unambiguously fall within the broad
court. Mijalis, 15 F.3d at 1327. Because,               scope of § 541.3(e). EmCare relies on case-
however, a finding that § 541.3 is ambiguous            law, dictionary definitions, and the employ-
was necessary to the district court’s ultimate          ment duties of NP’s and PA’s to make its
conclusion that it was appropriate to defer to          argument.
the agency’s informal interpretive statements
under Auer, the issue was sufficiently raised for          First, in Moore we considered 29 C.F.R.
the court to rule on it, see Liljeberg, 304 F.3d        § 541.118(a)(6), which provides a “window of
at 428 n.29, and is preserved for appeal.               correction” for employers who make improper
                                                        deductions from the paychecks of exempt em-
                       B.                               ployees under the FLSA. The regulation
   Plaintiffs claim that regulatory exemptions          states that an employee will automatically lose
from the FLSA must be “narrowly construed               exempt status unless the deduction is made
against the employers seeking to assert them            through “inadvertence, or is made for reasons
and their application limited to those [employ-         other than lack of work.” Id. at § 541.118-
ers] plainly and unmistakably within their terms        (a)(6). We reasoned that the relevant deduc-
and spirit.” Arnold v. Ben Kanowsky, Inc., 361          tions in that case, made as a disciplinary pen-
U.S. 388, 392 (1960). In Arnold, however, the
Court applied its canon of strict construction
                                                           14
against employers in the course of interpreting               See Auer, 519 U.S. at 463 (“A rule requiring
ambiguous statutory language in the former              the Secretary to construe his own regulations nar-
exemption from FLSA overtime requirements               rowly would make little sense, since he is free to
                                                        write the regulations as broadly as he wishes, sub-
for a retail establishment. See 29 U.S.C. §
                                                        ject only to the limits imposed by the statute.”).
213(a)(2), (4) (1949). Because there was no
regulatory interpretation of the relevant                  15
                                                              See Gore, Inc. v. Espy, 87 F.3d 767, 773 (5th
provisions of § 213, the Court needed to con-           Cir. 1996) (holding that where the regulations do
sider legislative history, past precedent, and          not provide a definition, “we must first determine
canons of construction to reach its result. See         whether the Secretary applied the ordinary meaning
                                                        of that term.”).

                                                    7
alty for cash register shortages, were “made for            respect to the specific question considered.”
reasons other than lack of work” and therefore              Id. at 495. In contrast, § 541.3(e) contains no
could be corrected by the employer. Moore,                  similarly forthright exclusionary language:
317 F.3d at 496-98. In the course of reaching               Just because a regulation limited to persons
our decision, we noted that                                 “actually engaged in the practice” of medicine
                                                            “or any of [its] branches” must exclude some-
   [t]he presence or lack of ambiguity in a reg-            one, this fact does not make it obvious wheth-
   ulation should be determined without refer-              er NP’s and PA’s fall within its scope.17
   ence to proposed interpretations; otherwise,
   a regulation will be considered ‘ambiguous’                 Likewise, in Christensen the Court consid-
   merely because its authors did not have the              ered a regulation that allowed employers to
   forethought expressly to contradict any cre-             contractually obligate employees to take man-
   ative contortion that may later be construct-            datory leave to reduce accrued compensatory
   ed to expand or prune its scope.                         time.18 In that case, Harris County implement-
                                                            ed a mandatory policy, not in the initial em-
Id. at 497. EmCare cites this language to sup-              ployment agreements, but only after it became
port its contention that we should give no                  apparent that the county could not pay em-
weight to agency interpretations that seek to               ployees for accrued time. Plaintiffs relied on a
“narrow” the reach of § 541.3(e) to exclude                 DOL opinion letter that stated employers
NP’s and PA’s merely because the regulation                 could institute this policy only in the text of
does not explicitly mention them.                           the agreement itself. Christensen, 529 U.S. at
                                                            581.
   Moore is distinguishable: We held, based on
the regulation’s language, that “lack of work”                 The Court found that the letter was not
exhausted the universe of reasons why an
employer could not correct an improper de-
duction. Moore, 317 F.3d at 497 (applying                      16
                                                                 (...continued)
reasoning akin to expressio unius). Because                 “branches” of medicine.
disciplinary deductions were not made for “lack
of work,”16 there was no “ambiguity with                       17
                                                                  Moore would be more helpful to EmCare if,
                                                            for example, § 541.3(e) stated that all employees in
                                                            medicine or related fields, “other than interns and
   16
      The Secretary of Labor made no effort in              residents,” qualify for the professional exemption.
Moore to argue that the deductions in question were         Because NP’s and PA’s plainly are not interns or
made for “lack of work.” Instead, the Secretary             residents, they likely would fall within the broad
argued, despite the text of the regulation, that no         scope of the regulation, even if the agency offered
employer who engages in a practice of impermissi-           a contrary interpretation.
ble deductions can cure the problem through the
                                                               18
window of correction, except for inadvertence. See                 See Christensen, 529 U.S. at 587-88; 29
Moore, 317 F.3d at 493-94 (quoting Klem v.                  C.F.R. § 553.23(a)(2) (providing that “the
County of Santa Clara, 208 F.3d 1085, 1091 (9th             [employment] agreement or understanding may in-
Cir. 2000)). In contrast, the instant parties present       clude other provisions governing the preservation,
competing positions on whether NP’s and PA’s fall           use, or cashing out of compensatory time so long
within the general regulatory language; i.e., the           as these provisions are consistent with [the relevant
                                       (continued...)       statute]”).

                                                        8
controlling because the regulation was unam-              nition and the licensing requirement of
biguous: It permitted employers to include a              § 541.3(e), EmCare formulates its proposed
compelled use clause in an agreement (“may                reading of the rule, which is the analytical core
include”), but by no means required them to do            of its entire argument, as follows: “[A]ny per-
so. Id. at 588. Therefore, the Court held that            son who has received formal permission from
absent an express prohibition, the county could           the relevant authority to practice in the art or
pursue its policy of compulsory leave. Id.                science of preserving health and treating dis-
Because the regulation in Christensen was                 ease is included within the Salary Basis Excep-
unambiguous, even though it did not discuss               tion.” EmCare argues that NP’s and PA’s un-
every method the county could use to imple-               ambiguously fall within this definition because
ment its policy, EmCare argues that § 541.3(e)            they are (1) licensed and (2) act to preserve
is also unambiguous, even though it fails spe-            health and treat disease.19
cifically to discuss whether NP’s and PA’s fall
within its scope.                                             The decision in Clark v. United Emergency
                                                          Animal Clinic, Inc., 390 F.3d 1124,1127 (9th
    EmCare’s reliance on Christensen is mis-              Cir. 2004), lends some support to EmCare’s
placed. The regulation there spoke directly to            position; that court held, when considering the
the binary issue posed by the case: Did the               applicabilityof § 541.3(e) to veterinarians, that
agency exclude non-contractual methods of en-             “[l]ogically as well as linguistically, veterinary
forcing a compelled leave policy? Moore posed             medicine is a ‘branch’ of medicine.” The court
a similar yes-or-no question: Did the rule deny           used the “ordinary, dictionary meaning of the
the window of correction to any employer that             terms” of the regulation to reinforce its view,
deducted pay for any reason besides lack of               id., which is language almost identical to Em-
work?                                                     Care’s proposed formulation: “[A] doctor of
                                                          veterinary medicine is a practitioner licensed
   It is possible to pose the question in this case       and practicing in the field of medical science
in a similar way: Does the regulation exempt              and healing on animals, a branch of medicine.”
from the FLSA anyone who practices medicine               Id. at 1128.
or one of its branches? The problem is that one
cannot answer this question without addressing                Nevertheless, Clark is inapposite. First, the
the key terminological dispute: whether NP’s              fact that Clark also considered § 541.314, the
and PA’s practice medicine or a branch of                 DOL interpretive regulation, suggests that that
medicine. When the courts in Moore and                    court may have believed (or at least assumed
Christensen found broad language unam-                    arguendo) that § 541.3(e) is ambiguous. See
biguous, they were not confronted with the tax-           Clark, 390 F.3d at 1127. Second, and more
onomic difficulties presented here.                       importantly, plaintiffs argue that the “practice
                                                          of . . . medicine” is a term of art that should be
   EmCare tries to resolve this problem with              construed as a single phrase.20
dictionary definitions; most importantly, that
the ordinary meaning of medicine is “the art or
science of preserving health and treating dis-               19
                                                                  See supra notes 3-4 and accompanying text.
ease.” RANDOM HOUSE WEBSTER’S DICTION-
ARY 447 (3d ed. 1998). Using that broad defi-                20
                                                                  La. Pub. Serv. Comm’n v. FCC, 476 U.S.
                                                                                             (continued...)

                                                      9
   For example, neither NP’s nor PA’s qualify                 may also look to other statutes dealing with
to “practice medicine” under Texas law.21                     the same subject that use identical, or nearly
Wilson conceded that, as far as he was aware,                 identical, language, to resolve a difficult
NP’s and PA’s are not licensed to practice                    interpretive problem.24 The fact that NP’s and
medicine within the meaning of any state’s                    PA’s are not licensed to practice medicine
medical practices law.22 EmCare gives no sat-                 under any state’s medical practices statute is
isfactory answer why this evidence should not                 strongly persuasive evidence that these
count toward finding ambiguity in the regula-                 professions do not view “practicing medicine”
tion, other than to note that the DOL nowhere                 as part of their job description. It is plausible
explicitly adopted any state’s definition of med-             that the words “or any of [its] branches” in
ical practice.                                                § 541.3(e) are limited to traditional medical
                                                              fields whose licenses are recognized by the
   Though we routinely consult dictionaries as                states; e.g., osteopath, dentist, chiropractor, or
a principal source of ordinary meaning,23 we                  optometrist. See, e.g., TEX. OCC. CODE
                                                              § 104.003.

   20
     (...continued)                                              Also, it is difficult to draw a limiting prin-
355, 372 (1986) (noting that “technical terms of art          ciple from EmCare’s proposed definition: It
should be interpreted by reference to the trade or            would seem that registered nurses are both
industry to which they apply”).                               (1) licensed and (2) practice the art or science
                                                              of preserving health and treating disease. But,
   21
      See, e.g., Weyandt v. State, 35 S.W.3d 144,             the courts and DOL interpretive regulations
148 (Tex. App.SSHouston [14th Dist.] 2000, no                 have rejected the applicability of the profes-
pet.) (affirming jury verdict of guilty for advanced
NP practicing medicine without a license); Bradford
v. Alexander, 886 S.W.2d 394, 397 (Tex.
App.SSHouston [1st Dist.] 1994, no pet.) (stating
that PA does not practice medicine as contemplated
                                                                 23
by the former Texas Medical Liability and                          (...continued)
Insurance Improvement Act).                                   (5th Cir. 2005) (quoting Thompson v. Goetzmann,
                                                              337 F.3d 489, 497 n.20 (5th Cir. 2003)).
   22
      For example, the Texas Occupancy Code de-
                                                                 24
fines “practicing medicine” more strictly as “the                     See Preferred Physicians Mut. Risk
diagnosis, treatment, or offer to treat a mental or           Retention Group v. Pataki, 85 F.3d 913, 917-18
physical disease or disorder or a physical deformity          (2d Cir. 1996) (interpreting the word
or injury by any system or method, or the attempt to          “discriminate” by reference to ordinary meaning
effect cures of those conditions, by a person who             and its use in other statutes); Liberty
(A) publicly professes to be a physician or surgeon;          Lincoln-Mercury, Inc. v. Ford Motor Co., 171
or (B) directly or indirectly charges money or other          F.3d 818, 823 (3rd Cir. 1999) (noting the rule and
compensation for those services.” TEX. OCC. CODE              citing 2B NORMAN J. SINGER, SUTHERLAND ON
§ 151.002. The Code lists neither PA’s nor NP’s as            STATUTORY CONSTRUCTION §§ 51.01, 51.02,
licensed to practice the healing arts. See id.                51.03 (5th ed. 1992)); United States v. Gibson
§ 104.003.                                                    Specialty Co., 507 F.2d 446, 450 (9th Cir. 1974)
                                                              (noting that the word “facilitate” was held to have
   23
        United States v. Orellana, 405 F.3d 360, 365          its ordinary meaning in the context of the statute at
                                        (continued...)        issue and other statutes).

                                                         10
sional exemption to registered nurses.25 This                       ropodists), dentists (doctors of dental
evidence does not suggest that § 541.3(e) un-                       medicine), optometrists (doctors of
ambiguously excludes PA’s and NP’s, but it is                       optometry or bachelors of science in
sufficient for us to find that § 541.3(e) is am-                    optometry).
biguous and to look to DOL’s interpretive
statements for additional guidance.                                 (2) [Section excepting interns and resi-
                                                                    dents from salary-basis test omitted]
                       C.
   The DOL issued in 1949, and revised in                           (3) In the case of medical occupations,
1973, an interpretive regulation (without notice                    the exception from the salary or fee re-
and comment) regarding the meaning of the                           quirement does not apply to pharma-
phrase “or any of its branches” in § 541.3(e):                      cists, nurses, therapists, technologists,
                                                                    sanitarians, dietitians, social workers,
   Exception for physicians, lawyers, and                           psychologists, psychometrists, or other
   teachers.                                                        professions which service the medical
                                                                    profession.
   (a) . . . This exception applies only to the
   traditional professions of law, medicine, and            29 C.F.R. § 541.314(a), (b)(1)-(3) (1973).
   teaching and not to employees in related                 Because neither PA’s nor NP’s are specifically
   professions which merely serve these pro-                mentioned, we must ask whether, under
   fessions.                                                § 541.314, plaintiffs are members of the “tra-
                                                            ditional profession[] of . . . medicine” or “re-
   (b) In the case of medicine:                             lated professions which merely service the
                                                            [medical] profession.”
        (1) The exception applies to physicians
        and other practitioners licensed and                    EmCare reasons that the language of
        practicing in the field of medical science          § 541.314(b)(1) is intentionally broad, and
        and healing or any of the medical                   EmCare reiterates that anyone who holds a li-
        specialties practiced by physicians or              cense and practices in a medical field qualifies
        practitioners. The term physicians                  for the salary-basis exception. In Clark, the
        means medical doctors including gen-                court concluded that veterinarians are “other
        eral practitioners and specialists, and             practitioners” within the meaning of § 541.-
        osteopathic physicians (doctors of oste-            314(b)(1), because the DOL did not intend the
        opathy). Other practitioners in the field           list provided to be exhaustive and because vets
        of medical science and healing may in-              practiced “in the field of medical science and
        clude podiatrists (sometimes called chi-            healing,” albeit on animals. Clark, 390 F.3d at
                                                            1127. Plaintiffs point out, however, that the
                                                            Clark court supported its interpretation by cit-
   25
      See, e.g., 29 C.F.R. § 541.314(b)(3) (1973);          ing the DOL’s Occupational Outlook
Brock v. Superior Care, Inc., 840 F.2d 1054, 1061           Handbook, which lists as “Related Profes-
n.1 (2d Cir. 1988) (holding that § 541.3(e) does not        sions” to veterinarians “chiropractors, dentists,
apply to nurses); Harrison v. Washington Hosp.              optometrists, physicians and surgeons, and po-
Ctr., 1979 WL 1923, at *2-*3 (D.D.C. 1979)                  diatrists” but does not list any of these fields as
(same).

                                                       11
“Related Professions” to NP’s and PA’s.26                    than an NP is a nurse with advanced academic
                                                             or clinical training.29 Plaintiffs also point out
    Plaintiffs rely on the words “traditional pro-           that PA’s and NP’s are not “physicians, law-
fessions of law, medicine, and teaching” to ar-              yers, [or] teachers” as indicated in the title of
gue that NP’s and PA’s cannot possibly fall                  § 541.314. In sum, though the text of § 541.-
within the scope of § 541.314(b)(1) because                  314 alone does not suffice to reveal entirely
these professions developed only in the mid-                 the agency’s position on this issue, plaintiffs’
1960’s and therefore did not exist in 1949 and               case gains some traction from straightforward
could hardly have been traditional in 1973.27                textual analysis.
EmCare predictably replies that job duties, not
job titles, should control who qualifies as a tra-               The parties next turn to the history of
ditional practitioner,28 and because PA’s and                § 541.314(b). Plaintiffs emphasize in particu-
NP’s perform many of the traditional duties of               lar that the DOL has resisted efforts to expand
physicians, they should qualify under the broad              the salary-basis exception several times since
language of § 541.314(b)(1).                                 its inception, rejecting a proposal in 1949 to
                                                             include “architects, engineers, and librarians”
   The best textual argument drawn from                      and specifically excluding pharmacists and
§ 541.314(b) is that subheading (3) specifically             nurses. The official report on the 1949 pro-
excludes NP’s from the salary-basis exception                posals stated, as the reason for keeping the
under the general category of “nurses.” The                  salary-basis exception limited to lawyers and
DOL has repeatedly categorized NP’s under the                doctors, the following: “the traditional stand-
heading of “Registered Nurses” and has noted                 ing of these professions, the recognition of
                                                             doctors and lawyers as quasi-public officials, []
                                                             the universal requirement of licensing by the
   26                                                        various jurisdictions[, and the] relatively
      See id; BUREAU OF LABOR STATISTICS, U.S.
                                                             simple problems of classification presented by
DEP’T OF LABOR,OCCUPATIONAL OUTLOOK HAND-
BOOK, supra notes 3 and 4. Although Clark cites
                                                             these professions.” U.S. DEP’TOF LABOR, RE-
the 2000 Handbook, the current version includes,             PORT AND RECOMMENDATIONS ON THE PRO-
inter alia, “physicians and surgeons” as “Related            POSED REVISIONS OF REGULATIONS, PART 541,
Occupations” for Registered Nurse. See supra note            77 (1949).
4.
                                                                EmCare maintains that the history poses no
   27
      See Elizabeth Harrison Hadley, Nurses and              obstacle to its position, because unlike archi-
Prescriptive Authority: A Legal and Economic An-             tects, engineers, and librarians (at least histori-
alysis, 15 AM. J.L. & MED. 245, 268 n.104 (1989)             cally), NP’s and PA’s require a license to prac-
(noting that the first training programs for NP’s and        tice, and unlike nurses and pharmacists, NP’s
PA’s arose in the 1960’s).                                   and PA’s help develop treatment plans for pa-
   28
       To that end, EmCare notes that other
practitioners with similarly limited responsibilities
                                                                29
also qualify for the salary-basis exception under                  BUREAU OF LABOR STATISTICS, U.S. DEP’T
§ 541.314; these include optometrists, who often             OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK,
cannot write prescriptions or perform eye surgery,           supra note 4 (including NP’s under “Registered
and interns and residents, who must work under a             Nurses” heading and listing NP as an “advanced
physician’s supervision.                                     practice nursing specialt[y]”).

                                                        12
tients. Hence, Emcare represents that nowhere                however, are subject to it. The court reasoned
in the history does the DOL ever exclude a                   that because the DOL had not changed the
“practitioner” (as EmCare defines that term) of              substance of the 1973 rule in 2004, the salary-
medical science or healing.                                  basis exception included PA’s both before and
                                                             after the revisions. See Belt, 351 F. Supp. 2d
    The parties also reference the 2004 amend-               at 632-33. EmCare contends that we cannot
ments to the DOL regulations as persuasive au-               consider the preamble because it is not a
thority. The amendments effectively adopted                  “sufficiently clear” indication of the agency’s
§ 541.314 after notice and comment, without                  intent to bind itself to the underlying policy,
substantive change,30 thereby tending to show                see Kennecott Utah Copper Corp. v. United
that the text of § 541.3(e) does not contradict              States Dep’t of Interior, 88 F.3d 1191, 1223
the former § 541.314. EmCare notes that the                  (D.C. Cir. 1996), and because the Clark court
new regulations specifically list PA’s alongside             determined that veterinarians fall within the
nurses and technologists as “learned pro-                    salary-basis exception even though the
fessionals” who satisfy the duty requirements                preamble also lists 1,037 hourly-paid vets and
for the professional exemption, id. at § 301-                16,267 salaried vets as subject to the salary-
(e)(4), but does not include PA’s among nurses               basis test.32
and technologists in the list of professions that
fall outside the salary-basis exception, id. at                  The most specific DOL interpretive state-
§ 541.600(e). Though this observation alone                  ments on point include a 1974 DOL opinion
is insufficient to show that EmCare should                   letter and 1994 Field Operations Handbook
prevail, it does support EmCare’s case                       (which contains almost identical language to
somewhat.31                                                  the opinion letter) that state that PA’s need to
                                                             be compensated on a salary basis to qualify for
   Plaintiffs and the district court also noted a            the Professional Exemption.33 EmCare does
statistical chart in the 2004 rule’s preamble that           not dispute the meaning of the letter and
shows that 53,420 hourly paid PA’s and 34,053                Handbook but repeats its position that we
salaried PA’s are subject to the salary-basis test;          should not consider agency interpretations in
no physicians, dentists, or optometrists,                    light of the fact that the 1973 regulation,
                                                             § 541.3(e), is unambiguous; EmCare also
                                                             questions the thoroughness with which the
   30
        See 29 C.F.R. § 541.304. The DOL noted
that it had “received few comments on this provision
                                                                32
and does not believe any substantive changes are                   Also, EmCare notes that no NP’s are listed as
necessary in light of those comments.” 69 Fed. Reg.          covered by the salary-basis test; therefore, we
22,122, 22,158 (Apr. 23, 2004).                              should assume that they, like physicians, fall within
                                                             the salary-basis exception.
   31
       The district court’s reliance on this point to
                                                                33
support plaintiffs’ position seems an unnatural in-                WAGE AND HOUR DIV., U.S. DEP’T OF
ference. The court basically reasoned that because           LABOR, FIELD OPERATIONS HANDBOOK § 22d23
all three professions are expressly mentioned in the         (1994), available at http://www.dol.gov/esa/whd-
duty section, all three should also be excluded from         /FOH/FOH_Ch22.pdf (stating that, to qualify, the
the salary-basis exception, even though that section         PA must be “compensated for his or her services
mentions only nurses and technologists. See Belt,            on a salary basis of not less than $250 a week, ex-
351 F. Supp. 2d at 632.                                      clusive of board, lodging, or other facilities”).

                                                        13
agency considered its position in the letter.             tional duties of doctors, the language of
Finally, the DOL’s amicus brief unambiguously             § 541.3(e) “comfortably bears the meaning the
adopts the position that NP’s and PA’s do not             Secretary assigns.” Id. at 461.
qualify for the professional exemption.
                                                              Our decision in Moore does not require a
                       D.                                 contrary result. There we noted that “[Chev-
    The DOL’s interpretive statements come to             ron] deference is not appropriate for an inter-
this court in a wide variety of formats, and we           pretation of a regulation found in an amicus
must decide what weight to give them under                curiae brief.”34 We recognized, 317 F.3d at
our precedents. We conclude that Auer applies,            494, however, that the Court in Auer had giv-
so we give controlling weight to the DOL’s po-            en controlling weight to an amicus brief, and
sition adopted in the 1974 opinion letter, 1994           we correctly concluded that the critical ques-
Handbook, and amicus brief, excluding PA’s                tion after Christensen, in deciding when to de-
(and by extension, NP’s) from the professional            fer to informal interpretations of agency rules,
exemption to the FLSA overtime rules.                     is whether the underlying regulation is ambig-
                                                          uous.
   In Auer, the Court found that the Secretary’s
amicus brief sufficed to show how the DOL in-                We did not have occasion to defer to the
terpreted its own ambiguous regulation: The               Secretary’s position as amicus in Moore, be-
brief “is in no sense a ‘post-hoc rationalization’        cause the agency rule was plain. See id. at
advanced by an agency seeking to defend past              497. Because, however, we decide that
agency action against attack. There is simply             § 541.3(e) is ambiguous, we give controlling
no reason to suspect that the interpretation              weight to the DOL opinion letter, Handbook,
does not reflect the agency’s fair and                    and amicus brief under AuerSSmore than the
considered judgment on the matter in                      mere respect required by Skidmore.35
question.” Auer, 519 U.S. at 462.

    Similarly, there is no reason here to doubt              34
                                                                 Moore, 317 F.3d at 494; see also Christen-
the good faith of the Secretary’s position, as            sen, 529 U.S. at 587 (stating that “interpretations
amicus, that NP’s and PA’s must satisfy the               contained in formats such as opinion letters are
salary-basis test. In particular, the position is         ‘entitled to respect’ under our decision in Skid-
consistent with the department’s 1974 opinion             more[], but only to the extent that those
letter (written one year after interpretive regu-         interpretations have the ‘power to persuade[.]’”).
lation § 541.314) and 1994 Handbook, which                   35
explicitly subject PA’s to the salary-basis test,                We leave intact our observation in Moore
and the DOL’s classification of NP’s as a subset          that Chevron deference is inappropriate for
                                                          informal agency interpretations, such as opinion
of registered nurse in its Occupational Outlook
                                                          letters and amicuscuriae briefs. See Moore, 317
guide. Also, the history of the exception                 F.3d at 494. The most important reason for
suggests that the agency intended to limit its            extending greater deference to an amicus brief that
reach to traditional medical practitioners, and           purports to interpret an agency’s own ambiguous
state licensing regimes appear to mirror this ap-         regulation (under Auer), than a brief that interprets
proach. Although it seems beyond question                 the organic statute directly (under Chevron), is the
that NP’s and PA’s assume many of the tradi-              greater expertise and familiarity of the agency with
                                                                                                 (continued...)

                                                     14
    EmCare’s basic position is that it is possible              consistently applied administrative interpre-
to attribute a sufficiently clear scope to general              tation if the Government’s be such.
language such as “practice . . . medicine or any
of [its] branches” to allow a court to decide                Because the language of § 541.3(e) is not “free
whether a particular person falls within its am-             from doubt,” and in view of the fact that the
bit. Though courts often find broad language                 Secretary’s position finds support in past prac-
unambiguous,36 this case presents mixed evi-                 tice and is not “plainly erroneous or inconsis-
dence of ordinary meaning, particularly in the               tent with the regulation,” Auer, 519 U.S. at
conflict between the strict definition of medical            461, deference is appropriate.
practice used by the Medical Practices Acts and
EmCare’s more generous definition, derived                                           IV.
from common usage. Whether, in the abstract,                    Congress has entrusted the DOL with the
NP’s and PA’s “practice medicine” presents a                 task of defining who is eligible for the profes-
close question of classification, akin to distin-            sional exemption to the FLSA. The agency
guishing among the Platonic Forms, but it is                 has determined that a necessary indicator of
one that we need not reach. As explained in                  professional status in most cases is salaried
Ehlert v. United States, 402 U.S. 99, 105                    compensation, with the limited exception of
(1971),                                                      the traditionalSSi.e., well-established and easily
                                                             identifiableSSprofessions of law, medicine, and
   [w]e need not take sides in the somewhat                  teaching. Absent a plain statement in a formal
   theological debates . . . that the phrasing of            rule that NP’s and PA’s fall within this
   this regulation has forced upon so many fed-              exception, the courts must choose between de-
   eral courts. Rather, since the meaning of the             ciding the question de novo and deferring to
   language is not free from doubt, we are ob-               the agency’s less formal, but more specific, in-
   ligated to regard as controlling a reasonable,            terpretive statements.

                                                                Auer counsels that deference better accords
   35
     (...continued)                                          with Congress’s intent and the agency’s com-
respect to the history and content of its own enacted        parative expertise. Not only is the agency in a
rules. See John F. Manning, Constitutional                   better position to determine when a salary is
Structure and Judicial Deference to Agency                   necessary to identify a professional: the agency
Interpretations of Agency Rules, 96 COLUM. L.                is also better placed to make the calibrated
REV. 612, 630-31 (1999). But see id. at 618 (con-            policy judgment that PA’s and NP’s, despite
cluding that, “by providing the agency an incentive          higher barriers to entry and the increasing so-
to promulgate imprecise and vague rules, [Auer-type          phistication of their practice, are nascent pro-
deference] undercuts important deliberative process          fessions in need of the FLSA’s protection
objectives of the APA, and it creates potential              against the threat of “the evil of overwork as
problems of inadequate notice and arbitrariness in
                                                             well as underpay.”37
the enforcement of agency rules.”).
   36
      See, e.g., MCI Telecomms. Corp. v. AT&T                   The summary judgment is AFFIRMED, and
Co., 512 U.S. 218 (1994) (finding that the ordinary
meaning of “modify” unambiguously precluded the
                                                                37
FCC’s interpretation under the Communications                      81 CONG. REC. 4983 (1937) (message of
Act).                                                        President Roosevelt).

                                                        15
this matter is REMANDED for further
proceedings.




                                      16
