                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                        F I L E D
                                                                        April 29, 2003
                            REVISED JUNE 16, 2003
                                                                   Charles R. Fulbruge III
                                                                           Clerk
                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                          _______________________

                                No. 01-21117

                           _______________________

    HOUSTON POLICE OFFICERS’ UNION; HANS MARTICIUC; ANDREA BURKE;
       STEVEN CAIN; RICHARD HAHN; MICHAEL LUMPKIN; SHAWN PALIN;
        CLYDE ROOKE; STEVEN MURDOCK; EIGHT HUNDRED EIGHTY-NINE
                        ADDITIONAL COUNSELORS,

                                                      Plaintiffs-Appellants,
                                    versus


                           CITY OF HOUSTON, TEXAS,

                                                      Defendants-Appellees.

_________________________________________________________________

             Appeal from the United States District Court
                  for the Southern District of Texas

_________________________________________________________________



Before JONES, SMITH, and SILER,* Circuit Judges.

EDITH H. JONES, Circuit Judge:

             The principal question raised in this appeal is whether

section 207(o)(5) of the Fair Labor Standards Act (“FLSA”) requires

a   public   agency   to    allow   its   employees    the   use   of    accrued



       *
      United States Court of Appeals for the Sixth Circuit, sitting
by designation.
compensatory time on those days specifically requested by the

employees, unless to do so would “unduly disrupt” the agency’s

function. In support of this proposition, appellant Houston Police

Officers’ Union and others (collectively, the “Union”) argue that

this court must defer to various statements and regulations of the

Department of Labor construing section 207(o)(5).              Because the

statutory language is clear, however, deference is inappropriate.

The summary judgment of the district court in favor of the City of

Houston (“City”) is accordingly affirmed.

                                BACKGROUND

            The FLSA requires all employers, including states and

their political subdivisions, to provide overtime compensation for

employees who work more than 40 hours per week.         29 U.S.C. § 207

(2003). In the private sector, compensation for excess hours is to

be paid at a rate of not less than one-and-a-half times the

employee’s hourly wage.    Id. at § 207(a)(1).     To ease the burden on

public    employers,   Congress   allows   these   entities    to   provide

overtime compensation in the form of compensatory time (“comp

time”) at a rate of one-and-a-half hours for every excess hour

worked.    Id. at § 207(o)(1).    An employer that would utilize this

provision must have a collective bargaining agreement with its

employees    or   agreements   with   individual   employees    explicitly

permitting such a practice.       Id. at § 207(o)(2).



                                      2
          During   the    period   covered   by   this   litigation,1    the

Houston Police Department (“HPD”) administered comp-time usage by

way of a log known as the “Red Book,” one of which was kept in each

of the HPD’s units.      A unit’s Red Book listed all of the officers

in the unit who were scheduled, for whatever reason, to be off-duty

on any given day.     Each unit had a predetermined limit on the

number of officers who could be off on a particular day.                This

limit was based on the shift commander’s estimate of the unit’s

manpower needs.    The primary considerations in formulating this

estimate were the unit’s anticipated workload (based on historical

trends), the unit’s efficiency, and the unit’s ability to tolerate

disruption in its operations.       In general, the Shift Commanders

(with approval from Division Commanders) limited the spaces in the

Red Book to ten percent of the unit’s staff.       An officer wishing to

use his accrued comp time had to sign his name in his unit’s Red

Book for the day(s) he wished to take off.        If the Red Book’s limit

for the requested day had not been reached, the officer received

his requested comp time.

          The Union was displeased with this system, as it could

frustrate an officer’s attempt to choose the dates on which he


     1
      The parties have stipulated that they have been in agreement
since July 2001 regarding the manner in which accrued comp time is
to be used. Because the Union’s suit is for past damages, the
parties’   current   agreement  does   not   moot  the   statutory
interpretation question this case presents.

                                    3
would use      comp    time.    Instead    of    allowing   an    individualized

assessment of the inconvenience that an officer’s absence on a

particular day might place on his unit, the Red Book system imposed

an inflexible ten-percent limit on all days.                      Forced by the

department to work overtime at the HPD’s convenience, members of

the   Union    would    have   preferred    to    use   comp     time   for   their

convenience.

              The Union accordingly sued the City in federal court,

alleging, inter alia, that the HPD’s Red Book system violated the

FLSA by failing to provide individualized assessments of the

disruption that comp-time requests over and above the ten-percent

limit might cause to the operations of the HPD.

              Upon receiving cross-motions for summary judgment, the

district court entered summary judgment for the City, holding that

the FLSA does not grant the employees of public agencies the right

to use their accrued comp time on days of their own choosing.                  The

Union appealed.

                               STANDARD OF REVIEW

              This court reviews the grant of summary judgment de novo,

applying the same        standards as the district court.               Sherrod v.

American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998);

McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir.

1998).   Summary judgment under Rule 56 of the Federal Rules of



                                       4
Civil Procedure is appropriate only “if . . . the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.”   FED. R. CIV. P. 56(c).

          A fact is material if it could affect the outcome of the

lawsuit, and a dispute about a material fact is genuine if the

evidence is such that a reasonable jury could return a verdict for

the non-moving party.    Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).   Reviewing courts must look at the evidence and

draw all inferences therefrom in a light most favorable to the non-

moving party.   Hibernia Nat’l Bank v. Carner, 997 F.2d 94, 97 (5th

Cir. 1993).

                             DISCUSSION

          Two issues are raised on appeal: what is the proper

interpretation of section 207(o)(5), and whether the HPD correctly

applied the provision to its operations.   We discuss each issue in

turn.

I.   Section 207(o)(5)

          The FLSA provides, in pertinent part, that:

     [a]n employee of a public agency which is a State,
     political subdivision of a State, or an interstate
     governmental agency—
          (A) who has accrued compensatory time off . . .
               and



                               5
              (B)
                who has requested the use of such compensatory
                time,
      shall be permitted by the employee’s employer to use such
      time within a reasonable period after making the request
      if the use of the compensatory time does not unduly
      disrupt the operations of the public agency.

29   U.S.C.    §    207(o)(5).        The    litigants   offer    two   conflicting

interpretations of this provision.                 The City contends that the

phrase “within a reasonable period after making the request”

obliges an employing public agency to authorize an employee’s use

of accrued comp time within a certain temporal range (a “reasonable

period”) following the date on which the request is made.                        Comp

time may be delayed, nonetheless, in the event that the employee’s

desired usage would “unduly disrupt” the agency’s operation.

              Without     gainsaying        the   plausibility     of   the     City’s

interpretation,         the   Union    advances      another     reading   of    this

requirement: The employing agency must allow the employee’s use of

comp time on the day specifically requested, unless it would

“unduly disrupt” the agency’s operation.                 The Union fortifies its

interpretation by arguing that it is advocated by the Department of

Labor in at least three separate and legally relevant venues: (1)

the statute’s implementing regulations, Application of the Fair

Labor Standards Act to Employees of State and Local Governments, 29

C.F.R. § 553 et seq. (esp. § 553.25), which the Department of Labor

enacted in 1987, pursuant to formal notice-and-comment rulemaking




                                             6
(“Regulations”);2 (2) an opinion letter produced by the DOL’s Wage

and Hour Division in 1994, 1994 WL 1004861 (“Opinion Letter”);3 and

(3) the amicus brief filed by the Secretary of Labor in an action

resembling the instant case, DeBraska v. City of Milwaukee, 131 F.

Supp.2d 1032 (E.D. Wisc. 2000) (“Amicus Brief”).4

          When   construing   a   federal   statute   that   has   been

interpreted by an administrative agency, courts look first to the

language of the statute.   If Congress has “directly spoken to the



     2
      See 29 C.F.R. § 553.25(d):     “When an employer receives a
request for compensatory time off, it shall be honored unless to do
so would be ‘unduly disruptive’ to the agency’s operations. Mere
inconvenience to the employer is an insufficient basis for denial
of a request for compensatory time off. (See H. Rep. 99-331, p.
23.) For an agency to turn down a request from an employee for
compensatory time off requires that it should reasonably and in
good faith anticipate that it would impose an unreasonable burden
on the agency’s ability to provide services of acceptable quality
and quantity for the public during the time requested without the
use of the employee’s services.”
     3
      The   Opinion   Letter   states,   “It   is   our   position,
notwithstanding [an agreement between the Police Officers
Association and the City] that an agency may not turn down a
request from an employee for compensatory time off unless it would
impose an unreasonable burden on the agency’s ability to provide
services of acceptable quality and quantity for the public during
the time requested without the use of the employee’s services. The
fact that overtime may be required of one employee to permit
another employee to use compensatory time off would not be a
sufficient reason for an employer to claim that the compensatory
time off request is unduly disruptive” (emphasis added).
     4
      Amicus Brief at 7 (“In providing that an employee shall be
permitted to use comp. time ‘within a reasonable period after
making the request,’ Congress obviously intended to prescribe a
minimum notice requirement, not a maximum time after the date of
the leave request that comp. time may be used.”).

                                  7
precise question at issue,” i.e. “[i]f the intent of Congress is

clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of

Congress.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842–43, 104 S.Ct. 2778 (1984).          If the statute is

ambiguous, however,

     the court does not simply impose its own construction on
     the statute, as would be necessary in the absence of
     administrative interpretation.     Rather, . . . the
     question for the court is whether the agency’s answer is
     based on a permissible construction of the statute.

Id. at 843.   The Chevron doctrine thus requires a litigant, such as

the Union, who would have a court defer to an agency’s regulations,

to jump two hurdles.      He must show that the statute is in fact

ambiguous regarding the question at bar, and he must demonstrate

that the regulation’s statutory interpretation, whether or not

preferable,   is   permissible.     Before    considering   the   various

statements from the Department of Labor, then, the statute must be

carefully reviewed.

          The text of section 207(o)(5) plainly defines the period

between the date the employee submits his request and the date the

employer allows the employee to use the comp time: the employee

“shall be permitted . . . to use such [comp] time within a

reasonable    period   after   making   the   request.”     29   U.S.C.   §

207(o)(5).    As the City suggests, mandating a “reasonable period”

for use of comp time is different from mandating the employee’s

                                    8
chosen dates.     The language offers a span of time to the employer,

the beginning of which is the date of the employee’s request.

           The Union responds in two ways to this grammatically

appealing interpretation.             First, the Union asserts that “such

time” means “the specific time requested by the employee.” This is

untenable,     however,    because       within        section     207(o)(5)         “time”

consistently refers to the number of compensatory hours to which an

employee is entitled, not, as the Union would have it, to the date

or dates on which an employee asks to be let off work.                          Words are

ordinarily    interpreted        to   have       a   uniform    meaning    in    a   given

statutory context.

           The Union also argues that “[t]he interplay between the

‘reasonable      period’       and    ‘unduly        disrupt’    clauses        generates

ambiguity within the language of the statute.”                         While the Union

concedes that it is possible that the “reasonable period” clause

refers only to the time between request and comp-time consumption,

the presence of the “unduly disrupt” clause raises the possibility

that the “reasonable period” clause refers, rather, to the time

between intended and actual date of comp-time consumption.                              We

understand     the    interaction       between        these     two    clauses      quite

differently.         Instead    of    obscuring       the   proper      object    of   the

“reasonable period” clause, the “unduly disrupt” clause serves to

clarify its obvious meaning.                     The “reasonable period” clause

imposes   upon    the    employer      the        obligation     to    facilitate      the

                                             9
employee’s timely usage of his accrued compensatory time.                    The

“unduly disrupt” clause suggests conditions, however, that would

release the public employer from the previously imposed condition.

The statute, thus construed, reflects a balance between obligation

and exemption.5

              Finally,     according      to     the    Union,    the     City’s

interpretation expands the impact of the “reasonable period” clause

while leaving the “unduly disrupt” clause without meaning.                 Thus,

the Union contends, when an employee makes a reasonably timely

request for a specific period of comp-time leave, the employer must

grant    it   unless     doing   so   would    unduly   disrupt   the   agency’s

operation for each such request.               We have just explained how a

straightforward reading of the provision balances obligation and

exemption.      But even more to the point, the Union’s explanation

requires linguistic contortion where it is obvious that Congress

could have chosen much simpler language to express the Union’s

desired policy. Had Congress intended to do as the Union suggests,

alternative statutory language is not hard to envision.                 Congress

     5
      Though there is no need to rest our argument on the cushions
of armchair legislative history — the logic found in the statute’s
plain text is sufficient for the question at hand — the events
compelling Congress to enact this statute strongly suggest the
prudence of construing these two phrases as a compromise between
the interests of public agencies and their employees.       For an
exposition of such, see Justice Thomas’s discussion in Christensen
v. Harris County, 529 U.S. 576, 578–580, 120 S.Ct. 1655 (2000).
See also Moreau v. Klevenhagen, 508 U.S. 22, 25–28, 113 S.Ct. 1905
(1993).

                                        10
might have worded subparagraph (B) to refer to an employee “who has

requested    with     reasonable    advance          notice     the     use    of     such

compensatory    time,”     while   eliminating         the    “reasonable       period”

language from the latter part of the sentence.                        Congress might

alternatively       have   substituted        “as    requested”       for     “within       a

reasonable period” after making the request. That Congress did not

forthrightly choose such obvious means to describe employee rights

undermines the Union’s interpretation.

            For all these reasons, we conclude that the statute does

not require     a    public   employer     to       authorize    comp-time          use    as

specifically    requested     by   an    employee       (subject       to     the    undue

disruption clause), but instead requires that the comp time be

permitted within a reasonable period after the employee requests

its use.     Although this conclusion ends the analysis for Chevron

purposes, it is useful to address the errors in the Union’s

reliance on DOL interpretations referenced above.

            First, the regulation implementing section 207(o)(5),

supra n.2, simply does not address whether the statute mandates an

employee’s    specifically     requested        dates    for     comp       time.         The

regulation highlights that actual disruption, rather than “mere

inconvenience,” be caused to the agency as a justification for

denying comp-time use, but it neither addresses case-specific

determinations nor prohibits an agency from determining, as HPD has

done, that an absentee rate exceeding ten percent of a unit’s staff

                                         11
actually   jeopardizes     the    department’s       ability   to   protect   the

citizens of Houston.6      While the regulation would be entitled to

Chevron deference if it spoke to the issue at hand, and if the

statute    were    ambiguous,    that    case   is    not    before    us.    See

Christensen, 529 U.S. at 587–88, 120 S.Ct. at 1663.

            The Union’s additional administrative crutches include

the DOL’s 1994 Opinion Letter, supra n.3, and its Amicus Brief

filed in federal district court litigation, supra n.4. Contrary to

the   Union’s     view,   we    are   not    obliged    to     defer   to    these

interpretations of section 207(o)(5) under Auer v. Robbins, 519

U.S. 452, 117 S.Ct. 905 (1997), as that case concerns judicial

deference to administrative interpretations of the agency’s own

ambiguous regulations.         Auer, 519 at 461, 117 S.Ct. 911; see also

Christensen, 529 U.S. at 588, 120 S.Ct. at 1662 (referring to “Auer

deference”); Moore v. Hannon Food Service, Inc., 317 F.3d 489 (5th

Cir. 2003).7      Nor is it clear, after United States v. Mead Corp.,

533 U.S. 218, 121 S.Ct. 2164 (2001), whether these pronouncements

      6
      We emphasize, moreover, that the Red Book limits were in
practice ameliorated by an appeals process. See infra n.9.
      7
      The City’s reliance on Christensen wholly to forestall our
deferring to these authorities is equally misplaced. See Barnhart
v. Walton, 535 U.S. 212, 220–22, 122 S.Ct. 1265, 1271-
72(emphasizing that agency interpretations reached through less
formal means than notice and comment rulemaking are not
“automatically deprive[d]” of Chevron deference, and “[i]f this
Court’s opinion in Christensen, suggested an absolute rule to the
contrary, our later opinion in [Mead] denied the suggestion”
(citations omitted)).

                                        12
are sufficiently authoritative to merit Chevron deference.                 That

knotty issue may be pretermitted, however, because neither the

Opinion    Letter   nor   the    Amicus    Brief   persuades   us   that    our

construction of section 207(o)(5) is wrong or that the provision is

ambiguous, as would be required for Chevron deference.

            The   Union   also   relies    on   court   opinions    that   have

perceived   ambiguity in section 207(o)(5), most notably a district

court in    DeBraska v. City of Milwaukee, 131 F. Supp.2d 1032 (E.D.

Wisc. 2000), but also Judge Ryan’s dissent from a Sixth Circuit

opinion in Aiken v. City of Memphis, 190 F.3d 753 (6th Cir. 1999).

These cases fail to advance the Union’s argument, not only because

they are not legally binding, but also because they do not address

the threshold issue of statutory ambiguity.8

II.   Application of Section 207(o)(5)



      8
      In DeBraska, the most the court provides in defense of its
conclusory assertion that “[t]he language of the statute is
somewhat ambiguous” is its ex post facto judgment that “the statute
could have been better written to reflect either one of the
competing interpretations.”    131 F. Supp.2d at 1034.    Nor does
Judge Ryan’s dissent, despite a thoughtful discussion of the
application of the DOL Regulations to the case before that court,
give the slightest consideration to the question of the statute’s
ambiguity. Finally, the Union cites three other cases in which
federal district courts found the statute to be ambiguous. Meyer
v. Raleigh, 5:99 CV 324 BO(3) (E.D.N.C. Aug. 10, 2001); Long Beach
Police Ass’n v. Luman, CV 99-13090 FMC (JMJX) (C.D. Cal. May 10,
2001); Canney v. Brookline, 2000 U.S. Dist. 16279 (D. Mass. October
19, 2000). The Union did not provide copies of these difficult-to-
access decisions, and they are district court cases, from other
circuits, that do not bind us.

                                      13
            The Union also attempted to adduce sufficient summary

judgment evidence to suggest that, under the HPD’s “Red Book”

system, complainant police officers were unable to use their

accrued comp time within a “reasonable period after making the

request.”        After a careful review of the record, this court

concludes, as did the district court, that the Union has failed to

create a genuine issue of material fact on the HPD’s alleged

misapplication of section 207(o)(5).

            The principal evidence to which the Union points consists

of the following: (1) the deposition of Joe L. Breshears (HPD

Executive Assistant Chief); (2) HPD General Order 300-07, September

18, 1995; (3) the data and testimony of Dr. P.R. Jeanneret (HPD

expert witness); and (4) the memorandum of G.S. Stewart (Assistant

Chief, South Patrol Unit, HPD).                   These documents do not, either

individually or collectively, present any evidence whatsoever that

the HPD’s Red Book system prevented the city’s police officers from

using accrued comp time within a “reasonable period after making

the request.”         The most that can be found here is some slight

evidence    of    the    fact       that     certain    forms       of     police    work,

particularly      patrol      duty,    are    ill-suited       to    the       removal   and

substitution of non-fungible officers.

            To    review      the     evidence      briefly:    In       the    deposition

testimony of Chief Breshears can be found a detailed description of

the   manner     in   which    the     Red   Book    policy    was       formulated      and

                                             14
administered; in General Order 300-07 there is a formal policy

statement of the same; and in Chief Stewart’s memorandum are the

results of a poll saying, once again, that comp time could be taken

on a first-come, first-served basis.       The sharpest version of all,

of course, is the information provided by Dr. Jeanneret, as his

data and testimony were prepared by the HPD in response to this

suit.     In none of these reports is there the slightest hint that

the Red Book system, either in theory or practice, violated the

FLSA as interpreted above.9

            Nonetheless, one of the Union’s points calls for a more

substantial response.     This is that officers on patrol duty had

experienced rather more substantial delays in their ability to

consume their accrued comp time.

            The report prepared by Dr. P.R. Jeanneret concluded with

the following statement: “For the most part, an employee who is

eligible for compensatory time off is able to obtain approval for

a   specific   time   period   requested   without   difficulty.”   Dr.

Jeanneret goes on, however, to note an exception to this general

rule:


      9
      Even more surprising, the summary judgment evidence in this
case also fails to sustain the Union’s own interpretation of the
FLSA. In Chief Breshears’ testimony and Dr. Jeanneret’s report
there is a strong suggestion that the HPD did a more-than-adequate
job of responding, via an informal appeals system, to officers’
individual requests to override the Red Book’s theoretically
mandatory ten percent absentee quota.

                                    15
     The exception to this conclusion occurs in Patrol and
     especially those divisions that have a high volume of
     calls for service. The divisions with high volumes of
     service calls where operations have been using below
     minimum staffing levels presented circumstances when not
     everyone might be able to obtain the specific
     compensatory time off they had requested.           These
     relatively limited circumstances arise when the red book
     slots are filled and when making exceptions would present
     the division with safety concerns and unacceptable
     increases in response time to calls for service.

While the Union does not appear to dispute Dr. Jeanneret’s basic

conclusion, it argues that his qualification of the general rule is

significantly understated.   What he fails to mention, the Union

argues, is that, of the over 5000 police officers in the HPD,

approximately 40% work in patrol.    The exception thus swallows the

rule.

          The Union’s clarification does not suffice to create a

fact issue concerning HPD’s violation of section 207(o)(5). First,

the proposition to which this factum constitutes an exception is

not an exception to the assertion that Houston police officers were

unable to take compensatory time “within a reasonable period after

making the request.”   It is apposite, rather, to the proposition

that officers are “able to obtain approval for a specific time

period requested without difficulty.”    As has been discussed, the

FLSA does not grant such a right.      The HPD’s denial of such an

option to patrol officers cannot, therefore, be actionable.

          We also note, moreover, that this exception would be void

of legal significance even if the Union’s reading of the FLSA were

                                16
correct.       This is so because requiring comp-time usage-on-demand

would,    as    Dr.   Jeanneret’s     uncontroverted        analysis    concludes,

“unduly disrupt” the operations of the HPD.                As he said:

     Such understaffing would severely impact the operational
     efficiency and effectiveness of HPD and undermine the
     Department’s continued efforts to provide the required
     levels of service within the budget allocations provided
     in the City of Houston.

In other words, local neighborhoods could be seriously adversely

affected when too many regular duty officers are off work.                      The

FLSA requires, generally, that officers be allowed to take comp

time within reasonable periods after making their requests.                     The

burden that this statute places upon public employers is waived,

however, in those circumstances where compliance would “unduly

disrupt the       operations    of    the     public    agency.”      This   balance

represents the statutory compromise between the interests of public

agencies and their employees.            Without adequate evidence placing

Dr. Jeanneret’s conclusion of undue disruption into dispute, this

court must conclude, as did the district court, that the Union has

no claim cognizable under section 207(o)(5).

                                     CONCLUSION

               The clearly articulated details of section 207 of the

FLSA strike a balance between the employee’s right to use comp time

promptly and the public agency’s need to avoid disruption, a

balance    expressed     with        sufficient        clarity   to   resolve   the



                                            17
interpretive dispute before us.       Moreover, the Union’s summary

judgment evidence is insufficient to create a fact issue over HPD’s

alleged   misapplication   of   section   207(o)(5).    This   court

accordingly affirms the district court’s grant of summary judgment

to the City.

          Judgment AFFIRMED.




                                 18
