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; James Perry, 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, v. EMCARE, INC., and Texas EM-I Medical Services, P.A., Defendants-Appellants.
No. 05-40370
United States Court of Appeals, Fifth Circuit
March 24, 2006
444 F.3d 403
JERRY E. SMITH, Circuit Judge
The record reveals that factual disputes abound regarding what happened immediately before Burton shot Ballard: the angle and direction in which the rifle was pointed, whether Ballard had cocked the rifle, whether Ballard pointed the rifle toward Davis and Boling, and whether Burton knew that the rifle was uncocked and/or unloaded and therefore not a danger to anyone. Moreover, Ballard urges that because he entered his plea under Alford, he did not admit facts in the plea agreement that could demonstrate that he placed officers Davis and Boling in imminent danger. Nevertheless, when we view this record in the light most favorable to Ballard and judge Burton‘s use of force from the perspective of a reasonable officer at the scene, these factual disputes do not present issues of material fact about the objective reasonableness of Burton‘s use of force. Because Burton‘s actions were objectively reasonable, his knowledge about whether Ballard‘s rifle was cocked or loaded is of no moment. See Graham, 490 U.S. at 397, 109 S.Ct. 1865 (stating that an officer‘s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force).
We find that, viewed in the light most favorable to Ballard, this summary judgment record reveals that Burton‘s use of force was not unreasonable and that, therefore, neither Burton nor Oktibbeha County violated Ballard‘s Forth Amendment rights against excessive use of force.
III. CONCLUSION
For the foregoing reasons, we conclude that, even though Heck does not bar Ballard‘s
James A. Jones, Gillespie, Rozen, Watsky, Motley & Jones, Dallas, TX, Richard J. Burch (argued), Bruckner Burch, Houston, TX, for Plaintiffs-Appellees.
Before KING, SMITH and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This appeal presents the question whether physician assistants (“PA‘s“) and nurse practitioners (“NP‘s“)1 qualify for the professional exemption to the overtime requirements of the Fair Labor Standards Act (“FLSA“). Plaintiffs, and the Department of Labor (“DOL“) as amicus curiae, contend that the regulation interpreting the professional exemption,
I.
Plaintiffs are 59 PA‘s and 20 NP‘s who provide health care services for EmCare, Inc., in hospital emergency rooms in twenty states.2 Plaintiffs are paid hourly at a
Physician assistants (PAs) practice medicine under the supervision of physicians and surgeons . . . PAs are formally trained to provide diagnostic, therapeutic, and preventive health care services, as delegated by a physician. Working as members of the health care team, they take medical histories, examine and treat patients, order and interpret laboratory tests and x rays, and make diagnoses. They also treat minor injuries, by suturing, splinting, and casting. PAs record progress notes, instruct and counsel patients, and order or carry out therapy. In 48 States and the District of Columbia, physician assistants may prescribe medications. PAs also may have managerial duties. Some order medical supplies or equipment and supervise technicians and assistants.3
Nurse practitioners provide basic preventive health care to patients, and increasingly serve as primary and specialty care providers in mainly medically underserved areas . . . In most States, advanced practice nurses can prescribe medications.4
Plaintiffs sued EmCare for back wages and liquidated damages under the FLSA, alleging that EmCare was violating the FLSA by failing to pay time-and-a-half compensation for overtime. EmCare responded that it did not owe plaintiffs additional pay, because they qualify for an exemption as bona fide professionals under
The court reasoned that
The court also considered the history of the FLSA‘s professional exemption, which showed that the DOL had rejected earlier efforts to expand the exemption to include other professionals, such as engineers and architects, and that the NP and PA professions had not fully developed when the exemption was created. The court further considered the latest version of the applicable regulations, effective August 23, 2004,5 which codified a previous informal interpretation of
II.
The FLSA provides that a covered employee shall receive compensation at one-and-one-half times the regular rate for every hour over forty worked during the week,7 but not if he is “employed in a bona fide executive, administrative, or professional capacity . . . as such terms are defined and delimited from time to time by regulations of the Secretary.”
Section 541.3(e) further provides that the salary-basis test does not apply to “an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof” (the “salary-basis exception“). Because the parties agree that plaintiffs satisfy the duty requirements of the professional exemption and are paid hourly, the sole interpretive issue in this appeal is whether NP‘s and PA‘s hold a license permitting, and actually engage in, “the practice of . . . medicine or any of [its] branches.”
If NP‘s and PA‘s practice medicine within the meaning of
III.
When confronted with a statute administered by an executive agency, we de-
Second, if the regulation is ambiguous, the agency‘s interpretation (as contained in, e.g., opinion letters) is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461 (articulating the rule in the context of interpreting a different aspect of the salary-basis test) (internal quotations omitted). If the regulation is unambiguous, we may still consider agency interpretation, but only according to its persuasive power.12
A.
EmCare argues that PA‘s and NP‘s unambiguously practice medicine or a branch of medicine within the meaning of
EmCare replies that “an argument is not waived on appeal if the argument on the issue before the district court was sufficient to permit the district court to rule on it.”13 The district court held that “[t]hese regulations do not expressly address whether physician assistants and nurse practitioners are exempted from the salary-basis test, and, on this issue, the regulation is therefore ambiguous.” Belt, 351 F.Supp.2d at 627.
We have spoken to this waiver issue:
If a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court. If an argument is not raised to such a degree that the district court has an opportunity to rule on it, we will not address it on appeal.
FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.1994). We have noted, however, that “[n]o bright-line rule exists for determin-
EmCare‘s corporate representative, Mr. Wilson, stated under oath that EmCare was relying only on the DOL‘s interpretive regulation, not
Our review of the record, coupled with the fact that EmCare can provide no specific quotation or any excerpt from any district court filing to support its claim, suggests EmCare did not “press . . . the argument” in the district court. Mijalis, 15 F.3d at 1327. Because, however, a finding that
B.
Plaintiffs claim that regulatory exemptions from the FLSA must be “narrowly construed against the employers seeking to assert them and their application limited to those [employers] plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960). In Arnold, however, the Court applied its canon of strict construction against employers in the course of interpreting ambiguous statutory language in the former exemption from FLSA overtime requirements for a retail establishment. See
Therefore, because the regulations do not define the terms used in
First, in Moore we considered
[t]he presence or lack of ambiguity in a regulation should be determined without reference to proposed interpretations; otherwise, a regulation will be considered “ambiguous” merely because its authors did not have the forethought expressly to contradict any creative contortion that may later be constructed to expand or prune its scope.
Id. at 497. EmCare cites this language to support its contention that we should give no weight to agency interpretations that seek to “narrow” the reach of
Moore is distinguishable: We held, based on the regulation‘s language, that “lack of work” exhausted the universe of reasons why an employer could not correct an improper deduction. Moore, 317 F.3d at 497 (applying reasoning akin to expressio unius). Because disciplinary deductions were not made for “lack of work,”16 there was no “ambiguity with respect to the specific question considered.” Id. at 495. In contrast,
Likewise, in Christensen the Court considered a regulation that allowed employers to contractually obligate employees to take mandatory leave to reduce accrued compensatory time.18 In that case, Harris County implemented a mandatory policy, not in the initial employment agreements, but only after it became apparent that the county could not pay employees for accrued time. Plaintiffs relied on a DOL opinion letter that stated employers could institute this policy only in the text of the agreement itself. Christensen, 529 U.S. at 581.
The Court found that the letter was not controlling because the regulation was un-
EmCare‘s reliance on Christensen is misplaced. The regulation there spoke directly to the binary issue posed by the case: Did the agency exclude non-contractual methods of enforcing a compelled leave policy? Moore posed a similar yes-or-no question: Did the rule deny the window of correction to any employer that deducted pay for any reason besides lack of work?
It is possible to pose the question in this case in a similar way: Does the regulation exempt from the FLSA anyone who practices medicine or one of its branches? The problem is that one cannot answer this question without addressing the key terminological dispute: whether NP‘s and PA‘s practice medicine or a branch of medicine. When the courts in Moore and Christensen found broad language unambiguous, they were not confronted with the taxonomic difficulties presented here.
EmCare tries to resolve this problem with dictionary definitions; most importantly, that the ordinary meaning of medicine is “the art or science of preserving health and treating disease.” RANDOM HOUSE WEBSTER‘S DICTIONARY 447 (3d ed.1998). Using that broad definition and the licensing requirement of
The decision in Clark v. United Emergency Animal Clinic, Inc., 390 F.3d 1124 (9th Cir.2004), lends some support to EmCare‘s position; that court held, when considering the applicability of
Nevertheless, Clark is inapposite. First, the fact that Clark also considered
For example, neither NP‘s nor PA‘s qualify to “practice medicine” under Texas law.21 Wilson conceded that, as far as he was aware, NP‘s and PA‘s are not licensed to practice medicine within the meaning of any state‘s medical practices law.22 EmCare gives no satisfactory answer why this evidence should not count toward finding ambiguity in the regulation, other than to note that the DOL nowhere explicitly adopted any state‘s definition of medical practice.
Though we routinely consult dictionaries as a principal source of ordinary meaning,23 we may also look to other statutes dealing with the same subject that use identical, or nearly identical, language, to resolve a difficult interpretive problem.24 The fact that NP‘s and PA‘s are not licensed to practice medicine under any state‘s medical practices statute is strongly persuasive evidence that these professions do not view “practicing medicine” as part of their job description. It is plausible that the words “or any of [its] branches” in
Also, it is difficult to draw a limiting principle from EmCare‘s proposed definition: It would seem that registered nurses are both (1) licensed and (2) practice the art or science of preserving health and treating disease. But, the courts and DOL interpretive regulations have rejected the applicability of the professional exemption to registered nurses.25 This evidence does not suggest that
C.
The DOL issued in 1949, and revised in 1973, an interpretive regulation (without
Exception for physicians, lawyers, and teachers.
(a) . . . This exception applies only to the traditional professions of law, medicine, and teaching and not to employees in related professions which merely serve these professions.
(b) In the case of medicine:
(1) The exception applies to physicians and other practitioners licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners. The term physicians means medical doctors including general practitioners and specialists, and osteopathic physicians (doctors of osteopathy). Other practitioners in the field of medical science and healing may include podiatrists (sometimes called chiropodists), dentists (doctors of dental medicine), optometrists (doctors of optometry or bachelors of science in optometry).
(2) [Section excepting interns and residents from salary-basis test omitted]
(3) In the case of medical occupations, the exception from the salary or fee requirement does not apply to pharmacists, nurses, therapists, technologists, sanitarians, dietitians, social workers, psychologists, psychometrists, or other professions which service the medical profession.
EmCare reasons that the language of
Plaintiffs rely on the words “traditional professions of law, medicine, and teaching” to argue that NP‘s and PA‘s cannot possibly fall within the scope of
The best textual argument drawn from
The parties next turn to the history of
EmCare maintains that the history poses no obstacle to its position, because unlike architects, engineers, and librarians (at least historically), NP‘s and PA‘s require a license to practice, and unlike nurses and pharmacists, NP‘s and PA‘s help develop treatment plans for patients. Hence, Emcare represents that nowhere in the history does the DOL ever exclude a “practitioner” (as EmCare defines that term) of medical science or healing.
The parties also reference the 2004 amendments to the DOL regulations as persuasive authority. The amendments effectively adopted
Plaintiffs and the district court also noted a statistical chart in the 2004 rule‘s preamble that shows that 53,420 hourly paid PA‘s and 34,053 salaried PA‘s are subject to the salary-basis test; no physicians, dentists, or optometrists, however, are subject to it. The court reasoned that because the DOL had not changed the substance of the 1973 rule in 2004, the salary-basis exception included PA‘s both before and after the revisions. See Belt, 351 F.Supp.2d at 632-33. EmCare contends that we cannot consider the preamble because it is not a “sufficiently clear” indication of the agency‘s intent to bind itself to the underlying policy, see Kennecott Utah Copper Corp. v. United States Dep‘t of Interior, 88 F.3d 1191, 1223 (D.C.Cir.1996), and because the Clark court determined that veterinarians fall within the salary-basis exception even though the preamble also lists 1,037 hourly-paid vets and 16,267 salaried vets as subject to the salary-basis test.32
The most specific DOL interpretive statements on point include a 1974 DOL opinion letter and 1994 Field Operations Handbook (which contains almost identical language to the opinion letter) that state that PA‘s need to be compensated on a salary basis to qualify for the Professional Exemption.33 EmCare does not dispute the meaning of the letter and Handbook but repeats its position that we should not consider agency interpretations in light of the fact that the 1973 regulation,
Finally, the DOL‘s amicus brief unambiguously adopts the position that NP‘s and PA‘s do not qualify for the professional exemption.
D.
The DOL‘s interpretive statements come to this court in a wide variety of formats, and we must decide what weight to give them under our precedents. We conclude that Auer applies, so we give controlling weight to the DOL‘s position adopted in the 1974 opinion letter, 1994 Handbook, and amicus brief, excluding PA‘s (and by extension, NP‘s) from the professional exemption to the FLSA overtime rules.
In Auer, the Court found that the Secretary‘s amicus brief sufficed to show how the DOL interpreted its own ambiguous regulation: The brief “is in no sense a ‘post-hoc rationalization’ advanced by an agency seeking to defend past agency action against attack. There is simply no reason to suspect that the interpretation does not reflect the agency‘s fair and considered judgment on the matter in question.” Auer, 519 U.S. at 462.
Similarly, there is no reason here to doubt the good faith of the Secretary‘s position, as amicus, that NP‘s and PA‘s must satisfy the salary-basis test. In particular, the position is consistent with the department‘s 1974 opinion letter (written one year after interpretive regulation
Our decision in Moore does not require a contrary result. There we noted that “[Chevron] deference is not appropriate for an interpretation of a regulation found in an amicus curiae brief.”34 We recognized, 317 F.3d at 494, however, that the Court in Auer had given controlling weight to an amicus brief, and we correctly concluded that the critical question after Christensen, in deciding when to defer to informal interpretations of agency rules, is whether the underlying regulation is ambiguous.
We did not have occasion to defer to the Secretary‘s position as amicus in Moore, because the agency rule was plain. See id. at 497. Because, however, we decide that
EmCare‘s basic position is that it is possible to attribute a sufficiently clear scope to general language such as “practice . . . medicine or any of [its] branches” to allow a court to decide whether a particular person falls within its ambit. Though courts often find broad language unambiguous,36 this case presents mixed evidence of ordinary meaning, particularly in the conflict between the strict definition of medical practice used by the Medical Practices Acts and EmCare‘s more generous definition, derived from common usage. Whether, in the abstract, NP‘s and PA‘s “practice medicine” presents a close question of classification, akin to distinguishing among the Platonic Forms, but it is one that we need not reach. As explained in Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971),
[w]e need not take sides in the somewhat theological debates . . . that the phrasing of this regulation has forced
upon so many federal courts. Rather, since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government‘s be such.
Because the language of
IV.
Congress has entrusted the DOL with the task of defining who is eligible for the professional exemption to the FLSA. The agency has determined that a necessary indicator of professional status in most cases is salaried compensation, with the limited exception of the traditional—i.e., well-established and easily identifiable—professions of law, medicine, and teaching. Absent a plain statement in a formal rule that NP‘s and PA‘s fall within this exception, the courts must choose between deciding the question de novo and deferring to the agency‘s less formal, but more specific, interpretive statements.
Auer counsels that deference better accords with Congress‘s intent and the agency‘s comparative expertise. Not only is the agency in a better position to determine when a salary is necessary to identify a professional; the agency is also better placed to make the calibrated policy judgment that PA‘s and NP‘s, despite higher barriers to entry and the increasing sophistication of their practice, are nascent professions in need of the FLSA‘s protection against the threat of “the evil of overwork as well as underpay.”37
The summary judgment is AFFIRMED, and this matter is REMANDED for further proceedings.
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE
Notes
We consider that the rulings, interpretations and opinions of the [agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.