Jillian Lesko v. United States

United States Court of Appeals
for the Federal Circuit
______________________
JILLIAN LESKO,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1823
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00715-CNL, Judge Carolyn N. Lerner.
______________________
Decided: December 12, 2025
______________________
D IMITRIOS VASILIOU K OROVILAS, Wucetich & Korovilas
LLP, El Segundo, CA, argued for plaintiff-appellant. Also
represented by JASON MATTHEW WUCETICH ; M ICHAEL S.
M ORRISON, Alexander Morrison & Fehr LLP, Los Angeles,
CA.
M ATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by REGINALD THOMAS BLADES, JR., PATRICIA
M. MC CARTHY , BRETT SHUMATE .
______________________
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LESKO v. US 2
Before M OORE, Chief Judge, LOURIE , D YK, PROST, REYNA,
TARANTO, CHEN, H UGHES, S TOLL, CUNNINGHAM, and
S TARK, Circuit Judges.1
Opinion for the court filed by Chief Judge M OORE , in
which Circuit Judges LOURIE , DYK, PROST, TARANTO,
CHEN, and HUGHES join.
Dissenting Opinion filed by Circuit Judge STOLL, in which
Circuit Judges REYNA , CUNNINGHAM, and S TARK join.
M OORE , Chief Judge.
Jillian Lesko appeals a decision of the Court of Federal
Claims dismissing all five counts in her Amended Com-
plaint for failure to state a claim. We granted en banc re-
view sua sponte to address a narrow issue concerning
Count II—is the overtime writing requirement in 5 C.F.R.
§ 550.111(c) a valid exercise of the Office of Personnel Man-
agement’s (OPM) rulemaking authority in light of the stat-
utory requirement in 5 U.S.C. § 5542(a) that the
Government pay overtime “officially ordered or approved”?
We conclude the writing requirement is valid and affirm
the Court of Federal Claims’ dismissal of Count II. We re-
fer the remainder of the appeal back to the panel for reso-
lution.
BACKGROUND
I. Legal Background
In relevant part, the statute and regulation governing
overtime pay for federal employees have existed for eighty
years.
A. Statutory Scheme
On June 30, 1945, Congress enacted the Federal Em-
ployees Pay Act of 1945 (FEPA or the Act) to “improve
1 Circuit Judge Newman did not participate.
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LESKO v. US 3
salary and wage administration in the Federal service” and
“to provide pay for overtime.” Pub. L. No. 79-106, 59 Stat.
295 (1945). Included in FEPA was § 201, which provided
for overtime compensation:
Officers and employees to whom this title applies
shall, in addition to their basic compensation, be
compensated for all hours of employment, officially
ordered or approved, in excess of forty hours in any
administrative workweek . . . .
Id. at 296 (emphasis added).2 In 1954, Congress amended
§ 201 but made no relevant changes to the “officially or-
dered or approved” language. Pub. L. No. 83-763, 68 Stat.
1109 (1954). In 1966, Congress recodified Title 5 but again
made no relevant changes to the “officially ordered or ap-
proved” language. Pub. L. No. 89-554, 80 Stat. 485 (1966).
The present statutory language, now codified at 5 U.S.C.
§ 5542(a), has undergone additional amendments since re-
codification in 1966 but, as relevant to this appeal, it con-
tains the same operative language as the originally enacted
statute:
[H]ours of work officially ordered or approved in ex-
cess of 40 hours in an administrative workweek,
or . . . in excess of 8 hours in a day, performed by
an employee are overtime work and shall be paid
for . . . .
5 U.S.C. § 5542(a) (hereafter, overtime statute).
In addition to providing overtime compensation, FEPA
expressly delegated rulemaking authority to administer
the Act to the Civil Service Commission:
The Civil Service Commission is hereby authorized
to issue such regulations, subject to the approval of
2 Unless otherwise noted hereafter, emphases are
added.
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LESKO v. US 4
the President, as may be necessary for the admin-
istration of the foregoing provisions of this Act . . . .
Pub. L. No. 79-106, § 605, 59 Stat. 304 (1945). Although
Congress has amended this statute since it was enacted—
including by changing “may be necessary” to “necessary”
and substituting “Office of Personal Management” for
“Civil Service Commission”—the current version of the
statute delegates with similar language:
The Office of Personnel Management may pre-
scribe regulations, subject to the approval of the
President, necessary for the administration of this
subchapter . . . .
5 U.S.C. § 5548(a) (hereafter, delegation statute).
B. Regulatory Scheme
On July 4, 1945—four days after Congress enacted
FEPA—the Civil Service Commission promulgated regula-
tions, approved by the President, to implement the Act.
Regulations under the Federal Employees Pay Act of 1945,
10 Fed. Reg. 8191 (July 4, 1945). Among the initial regu-
lations was § 401(c), which included an overtime writing
requirement:
No overtime in excess of the administrative work-
week shall be ordered or approved except in writing
by an officer or employee to whom such authority
has been specifically delegated by the head of the
department or independent establishment or
agency, or Government-owned or controlled corpo-
ration.
Id. at 8194.
In 1968, the Civil Service Commission revised the reg-
ulations implementing FEPA to conform to the recodifica-
tion of Title 5 but made “no substantive changes in the
regulations.” Revision of Regulations, 33 Fed. Reg. 12402
(Sept. 4, 1968). The present regulatory language
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LESKO v. US 5
implementing the writing requirement, now codified at 5
C.F.R. § 550.111(c), has undergone additional amendments
since recodification but, as relevant to this appeal, it con-
tains the same operative language as the originally prom-
ulgated regulation:
Overtime work in excess of any included in a regu-
larly scheduled administrative workweek may be
ordered or approved only in writing by an officer or
employee to whom this authority has been specifi-
cally delegated.
5 C.F.R. § 550.111(c) (hereafter, overtime regulation).
C. Case Law
For the first decade after FEPA was enacted, the Court
of Claims—one of our predecessor courts whose decisions
bind this court’s panels—enforced the writing requirement
in the overtime regulation. See, e.g., Gaines v. United
States, 132 Ct. Cl. 408, 412–13 (1955) (“[A]ny claim must
be based upon the performance of overtime services which
were expressly authorized or approved in writing by an of-
ficer or employee to whom such authority has been specifi-
cally delegated.”). That changed in Anderson v. United
States, 136 Ct. Cl. 365 (1956), when the en banc Court of
Claims interpreted “officially ordered or approved” in the
overtime statute as including induced overtime and not re-
quiring a writing. 136 Ct. Cl. at 368–71. For the next forty
years, the Court of Claims and its successor courts applied
Anderson’s holdings. See, e.g., Adams v. United States, 162
Ct. Cl. 766, 768–69 (1963); Baylor v. United States, 198 Ct.
Cl. 331, 359–60 (1972); DeCosta v. United States, 22 Cl. Ct.
165, 176 (1990), aff’d on other grounds, 987 F.2d 1556 (Fed.
Cir. 1993).
In Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004),
this court first addressed the overtime statute and regula-
tion. We held “the Anderson line of cases is no longer good
law” in light of intervening Supreme Court precedent. Doe,
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LESKO v. US 6
372 F.3d at 1354–57 (holding that, after Schweiker v. Han-
sen, 450 U.S. 785 (1981), “the written order requirement is
not invalid on the ground that it imposes a procedural re-
quirement that limits the right to overtime compensation
under the statute”). Having concluded the writing require-
ment was not invalid, we then held the overtime regulation
was entitled to Chevron deference and upheld it. Id. at
1358–63.
In Mercier v. United States, 786 F.3d 971 (Fed. Cir.
2015), this court again interpreted “officially ordered or ap-
proved” overtime, albeit in a different statute that had no
corresponding regulation. 786 F.3d at 972 (“This case
turns on the interpretation of the words ‘officially ordered
or approved’ in 38 U.S.C. § 7453(e)(1), the statute which
provides overtime pay for nurses employed by the Depart-
ment of Veterans Affairs.”). We held Doe could not overrule
Anderson’s interpretation of “officially ordered or ap-
proved” in FEPA as allowing for induced overtime. Id. at
980–82. We further held “officially ordered or approved”
overtime in 38 U.S.C. § 7453(e)(1) should have the same
meaning as “officially ordered or approved” overtime in the
overtime statute, which includes induced overtime per An-
derson. Id. at 982.
Against this backdrop, Ms. Lesko filed her appeal.
II. Procedural Background
Ms. Lesko worked as a registered nurse for the Indian
Health Service (IHS) for eight months during the COVID-
19 pandemic. J.A. 2.3 During this time, she alleges nurses
“were stretched to their limits” and “[s]upervisors and
managers regularly and routinely required nurses to stay
after hours and work without compensation to meet the pa-
tient demands.” J.A. 82 ¶ 42. After resigning from IHS,
3 “J.A.” refers to the parties’ Joint Appendix filed at
ECF No. 22.
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LESKO v. US 7
Ms. Lesko filed a complaint for a class action suit, which
she amended after the Government moved to dismiss it.
J.A. 3. The Amended Complaint includes five counts and
alleges Ms. Lesko and all other similarly situated regis-
tered nurses employed by IHS were denied pay enhance-
ments in violation of various statutes and regulations.
J.A. 91–99 ¶¶ 73–115. In Count II, Ms. Lesko alleges the
Government violated the overtime statute by failing to pay
registered nurses for overtime induced by their supervi-
sors. Id. at 93–95 ¶¶ 81–91. The Government moved to
dismiss all counts for failure to state a claim. J.A. 145–65.
The Government argued dismissal was warranted, in part,
because Ms. Lesko did not allege she or any potential class
members had written authorization for overtime as re-
quired by the overtime regulation. Id. at 156–60. The
Court of Federal Claims granted the motion and dismissed
all counts. J.A. 1–9. Ms. Lesko appeals.
A panel of this court heard oral argument on October
9, 2024. On March 18, 2025, we sua sponte granted en banc
hearing and ordered briefing and argument limited to the
following issues:
a. Considering Loper Bright Enterprises v. Rai-
mondo, 603 U.S. 369 (2024), how should “officially
ordered or approved” in 5 U.S.C. § 5542(a) be inter-
preted?
b. Is this a case in which “the agency is authorized
to exercise a degree of discretion” such that OPM
has authority to adopt its writing requirement?
Loper, 603 U.S. at 394.
c. Is there a statutory provision (e.g., 5 U.S.C.
§§ 1104, 5548) that provides such authority?
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LESKO v. US 8
Lesko v. United States, 130 F.4th 1385, 1385–86 (Fed. Cir.
2025).4 We heard argument on September 12, 2025. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
D ISCUSSION
The Government argues we should affirm the dismissal
of Count II because the writing requirement in the over-
time regulation reflects a valid exercise of OPM’s congres-
sionally delegated rulemaking authority. We agree.
We review de novo the Court of Federal Claims’ dismis-
sal of a complaint for failure to state a claim upon which
relief may be granted. Hearts Bluff Game Ranch, Inc. v.
United States, 669 F.3d 1326, 1328 (Fed. Cir. 2012). Stat-
utory interpretation is a question of law we review de novo.
Bartels Tr. ex rel. Cornell Univ. v. United States, 617 F.3d
1357, 1359 (Fed. Cir. 2010).
“[C]ourts must exercise independent judgment in de-
termining the meaning of statutory provisions” and may
not defer to agency interpretations of ambiguous statutes.
Loper Bright, 603 U.S. at 394, 413. The best reading of a
statute, however, “may well be that the agency is author-
ized to exercise a degree of discretion.” Id. at 394. The
Supreme Court in Loper Bright provided examples of stat-
utes that delegate discretionary authority to agencies:
(1) statutes that expressly delegate to an agency the au-
thority to define statutory terms, (2) statutes that empower
an agency to prescribe rules to “fill up the details” of a stat-
utory scheme, and (3) statutes that provide agencies with
“flexibility” to regulate. Id. at 394–95. When a reviewing
court concludes the best reading of a statute is that it del-
egates discretionary authority to an agency, the court
should uphold the regulation if the delegation is
4 In addition to the parties’ briefs, we received one
amicus brief from the Chamber of Commerce of the United
States of America. Dkt. 70.
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LESKO v. US 9
constitutional, and the agency engaged in “reasoned deci-
sionmaking” within the boundaries of its delegated author-
ity. Id. at 395 (citation omitted).
I. Construction of “officially ordered or approved”
We begin our analysis with the overtime statute, which
obligates the Government to pay for overtime “officially or-
dered or approved.” 5 U.S.C. § 5542(a). FEPA does not
specify what this phrase means, nor does it expressly dele-
gate to OPM the authority to define this phrase. And the
statutory text surrounding the phrase does not specify
whether overtime “officially ordered or approved” must be
in writing or how it should otherwise be done. We therefore
look to the plain meaning of “officially ordered or ap-
proved.”
The ordinary meaning of “order”5 is to command or di-
rect, while the ordinary meaning of “approve”6 is to confirm
5 Webster’s New International Dictionary 1716 (2d
ed. 1939) (defining “order” as “direct” and “to command”);
Black’s Law Dictionary 1298 (3d ed. 1933) (defining “order”
as “a command or direction authoritatively given”); Web-
ster’s Third New International Dictionary 1588 (2002) (de-
fining “order” as “to issue commands”); Black’s Law
Dictionary 1319 (12 ed. 2024) (defining “order” as “[a] com-
mand, direction, or instruction”).
6 Webster’s New International Dictionary 133 (2d ed.
1939) (defining “approve” as “[t]o sanction officially; to rat-
ify; confirm”); Black’s Law Dictionary 131 (3d ed. 1933) (de-
fining “approve” as “[t]o confirm, ratify, sanction, or
consent to some act or thing done by another”); Webster’s
Third New International Dictionary 106 (2002) (defining
“approve” as “to express often formal[] agreement with and
support of or commendation of as meeting a standard”);
Black’s Law Dictionary 126 (12 ed. 2024) (defining
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LESKO v. US 10
or ratify. Both terms connote that someone with authority
gives the order or approval, as confirmed by dictionaries
ranging from the time FEPA was enacted in 1945 until the
present day. Regarding the form required for a valid order
or approval, we agree with the panel in Doe that these
words, standing alone, can encompass written form, oral
form, or both. 372 F.3d at 1358–59. The overtime statute
does not specify the required form. The statute’s only guid-
ance on this issue derives from the word “officially,” which
functions as an adverb describing both “ordered” and “ap-
proved.”
“Officially”7 means having proper authorization, which
includes both the person providing authorization and the
necessary formality (i.e., the form) needed for authoriza-
tion. “Officially ordered or approved” overtime is thus over-
time commanded or ratified with proper authorization.8
“approve” as “[t]o give formal sanction to; to confirm au-
thoritatively”).
7 Webster’s Third New International Dictionary 1567
(2002) (defining “officially” as “with official authorization:
formally” (capitalization normalized); defining “official” as
“prescribed or recognized as authorized” and “a person au-
thorized to act for a government”); Funk & Wagnalls New
Standard Dictionary of the English Language 1714 (1940)
(defining “officially” as “[b]y the proper officer; formally or
properly”); Black’s Law Dictionary 1306 (12th ed. 2024) (de-
fining “official” as “[a]uthorized or approved by a proper au-
thority”); New Oxford American Dictionary 1217 (3d ed.
2010) (defining “official” as “properly authorized”; defining
“officially” as “in a formal and public way”).
8 Given that an order must occur before the act that
is being ordered, an order to work overtime occurs before
the employee works overtime. In contrast, because an ap-
proval confirms or ratifies some act or request, an approval
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LESKO v. US 11
The plain language of this phrase presupposes a process for
authorizing overtime with sufficient formalities but pro-
vides no guidance as to the mechanics of that process (i.e.,
who can authorize overtime and how they can do it (oral,
written, or both)). See Oral Arg. 5:58–6:13 (Ms. Lesko
agreeing the overtime statute does not specify the mechan-
ics of the authorization process). Accordingly, the best in-
terpretation of the overtime statute is that Congress
mandated an authorization process for directing or ratify-
ing overtime but did not determine the requisite formali-
ties in the statutory text. To the extent the Government
has argued that the plain language of the statute requires
that such overtime orders or approvals must be in writing,
we do not agree; nor do we give any deference to the agency
interpretation of the language of the statute. We conclude
that Congress contemplated formalities when it required
overtime to be “officially ordered or approved,” but was si-
lent as to the requisite formalities.
II. Delegation to OPM
While the overtime statute is silent as to the formali-
ties required to officially order or approve overtime, FEPA
is not silent about who Congress intended to fill in those
details. Congress delegated rulemaking authority to OPM
to “prescribe regulations, subject to the approval of the
President, necessary for the administration of this sub-
chapter.” 5 U.S.C. § 5548(a). Given the overtime statute
is in the same subchapter as this delegation, we conclude
that Congress expressly delegated rulemaking authority to
to work overtime can occur before, during, or after the em-
ployee works overtime.
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LESKO v. US 12
OPM to prescribe regulations necessary for administering
the overtime statute, subject to approval by the President.9
A. Discretionary Delegation
This delegation falls within the type of delegations that
provide agencies discretion to regulate. Loper Bright, 603
U.S. at 394–95. The delegation is a fill-up-the-details del-
egation, id. at 395, because the overtime statute is silent
regarding the formalities required for overtime to be “offi-
cially ordered or approved,” despite the plain meaning of
the phrase requiring such formalities. Congress’s silence
on this issue, in combination with its delegation of author-
ity to OPM to prescribe regulations necessary for adminis-
tering the overtime statute, clears the path for OPM to fill
up the details of the authorization process.
The delegation is also a flexible delegation. In Loper
Bright, the Supreme Court cited a statute that directs the
Environmental Protection Agency (EPA) to regulate power
plants “if the Administrator finds such regulation is appro-
priate and necessary” as an example of a type of flexible
delegation. 603 U.S. at 395 n.6 (quoting 42 U.S.C.
§ 7412(n)(1)(A)). Like the EPA statute, the delegation stat-
ute provides OPM flexibility to regulate as “necessary” for
administering the overtime statute. Compare 5 U.S.C.
§ 5548(a), with 42 U.S.C. § 7412(n)(1)(A). The delegation
in this statute is of the type enumerated in Loper Bright
that gives agencies discretionary authority to regulate. We
conclude that under these circumstances, OPM has the
9 President Harry S. Truman approved the writing
requirement, which the parties do not dispute has re-
mained unchanged since the original overtime regulation
was promulgated. Regulations under the Federal Employ-
ees Pay Act of 1945, 10 Fed. Reg. 8191–96 (July 4, 1945).
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LESKO v. US 13
discretionary authority to determine the formalities re-
quired to administer the authorization process for over-
time.
B. Necessity of the Writing Requirement
Because OPM has discretionary authority to regulate
the authorization process for overtime, OPM has the au-
thority to require that such orders or approvals be in writ-
ing so long as it is necessary for administering the overtime
statute. Based on the plain language of the overtime stat-
ute and the practical considerations enumerated by the
Government, we conclude the writing requirement meets
this necessary-for-administration requirement.
Congress required overtime be “officially” ordered or
approved. In order to administer the overtime statute,
OPM must determine the mechanics of the authorization
process; it could not administer the statute otherwise. Con-
gress did define, in the statute itself, the timing when over-
time can be ordered (prospective) or approved (prospective,
concurrent, or retrospective). But it did not define who can
authorize overtime or how overtime can be authorized.
Ms. Lesko admits the statute is silent regarding who can
order or approve overtime and that therefore OPM has the
authority to determine who can authorize overtime. Oral
Arg. 1:13–40, 4:43–5:15, 5:57–6:23, 6:46–7:10, 8:05–8:25,
14:06–14:17, 19:47–20:14, 21:21–21:48. Ms. Lesko also ad-
mits OPM has the authority to require employees to submit
timecards to be entitled to overtime, which goes to the issue
of how overtime can be authorized. Oral Arg. 1:00:28–
1:01:02. There is little reason to preclude OPM from also
determining the form of authorized overtime, which like-
wise addresses how overtime can be authorized. If we al-
lowed OPM to determine the who but not certain aspects of
the how, we would be arbitrarily parsing the authority del-
egated to OPM based on a distinction the overtime and del-
egation statutes never draw.
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LESKO v. US 14
Ms. Lesko argues the writing requirement is not neces-
sary because there is no evidence the Government was un-
able to administer overtime pay without an enforceable
writing requirement for the forty-eight years between An-
derson and Doe. Lesko Br. 33–34. In response, the Gov-
ernment argues Anderson’s amorphous “inducement”
standard was problematic for administering the overtime
statute. Gov. Br. 50–51. The Government also argues the
writing requirement is necessary because it (1) controls the
Government’s liability for overtime by limiting unexpected
liabilities that may arise when an employee claims, after
the fact, she was entitled to overtime; (2) provides evidence
overtime was actually authorized, which reduces the like-
lihood of overtime disputes; (3) makes overtime easier to
track for agencies, which promotes fiscal responsibility and
accountability; (4) reduces conflicts over whether overtime
is officially ordered or approved; and (5) provides employ-
ees with clear notice, often in advance of working overtime,
that the overtime is officially ordered or approved. Gov.
Br. 46–51; Oral Arg. 42:20–43:11.
Ms. Lesko does not meaningfully dispute the Govern-
ment’s claims as to the practical necessity of the writing
requirement. Instead, she claims that, because the Gov-
ernment functioned in the past without an enforceable
writing requirement, this shows a writing requirement is
not necessary today. This fails to account for the fact that
OPM and federal employees have relied on the writing re-
quirement for the past twenty years to the benefit of both
parties. This also ignores the problem in Anderson’s amor-
phous “inducement” standard. In describing the difficulty
of applying the correct inducement standard, the trial court
in Doe explained that this “court has taken almost every
conceivable position with regard to overtime. Conse-
quently, an employee seeking overtime can likely find an
opinion of this court that fits his situation regardless of
what it may be.” Doe v. United States, 54 Fed. Cl. 404, 410
(2002) (quoting Anderson v. United States, 201 Ct. Cl. 660,
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LESKO v. US 15
675 (1973) (Skelton, J., dissenting)). As shown by Ander-
son’s progeny of inducement cases, many disputes have
arisen over whether the Government properly adminis-
tered overtime pay. See, e.g., Gray v. United States, 136 Ct.
Cl. 312, 313 (1956); Adams, 162 Ct. Cl. at 781; Albright v.
United States, 161 Ct. Cl. 356, 361 (1963); Rapp v. United
States, 340 F.2d 635, 641 (Ct. Cl. 1964); Fix v. United
States, 368 F.2d 609, 613 (Ct. Cl. 1966); Baylor, 198 Ct. Cl.
at 359–60; Manning v. United States, 10 Cl. Ct. 651, 663
(1986); DeCosta, 22 Cl. Ct. at 176–77; Hannon v. United
States, 29 Fed. Cl. 142, 149 (1993).
Ms. Lesko also argues the writing requirement improp-
erly restricts a statutory right for the sake of “budgetary
concerns” and “administrative ease.” Lesko Reply Br. 23–
24. Again, Ms. Lesko fails to meaningfully engage with the
Government’s specific reasons why the writing require-
ment is necessary. The writing requirement creates clarity
for both the Government and the employees regarding
when overtime will be compensated. It reduces the likeli-
hood of overtime disputes, limits unexpected liabilities,
and creates evidence substantiating that the hours worked
were actually hours required by the Government. The Gov-
ernment justified the necessity of the writing requirement,
and Ms. Lesko has not meaningfully disputed the Govern-
ment’s arguments regarding necessity.
We hold the best interpretation of the overtime and del-
egation statutes is that Congress delegated to OPM the dis-
cretionary authority to promulgate the writing
requirement.10 There is no statutory right to induced
10 In a separate provision, Congress imposed a writ-
ing requirement for waivers of compensatory time off ap-
plicable to border patrol agents who work more than 10
extra hours in a 14-day period. 5 U.S.C. § 5542(g)(4)(B).
Since § 5542(g)(4)(B) expressly dictates the form of a valid
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LESKO v. US 16
overtime, only officially ordered or approved overtime that
is properly authorized. And the delegation statute pro-
vides discretionary authority to OPM to determine what
constitutes proper authorization.
III. Propriety of the Writing Requirement
Having concluded the overtime and delegation statutes
are properly interpreted to delegate to OPM discretionary
authority to determine the form an order or approval must
take to be properly authorized, we evaluate whether the
delegation was constitutional and whether OPM engaged
in reasoned decision making within the boundaries of its
delegated authority. Loper Bright, 603 U.S. at 395.
A. Constitutionality
Ms. Lesko argues any delegation allowing OPM to
promulgate the writing requirement is unconstitutional
under the non-delegation doctrine because it allows OPM
to restrict the scope of a substantive right under the over-
time statute. Lesko Br. 35–37. We do not agree.
The writing requirement does not restrict the scope of
a substantive right because there is no right to overtime
that is not officially authorized. See supra Discussion § I.
While the overtime statute is silent as to the form “officially
ordered or approved” overtime must take to be properly
waiver, there is no discretion for OPM to decide the form.
In contrast, § 5542(a) presupposes a process with formality
for proper authorization of overtime, but Congress pro-
vided no guidance as to proper formalities and delegated
authority to OPM to adopt the requirements necessary for
administration, subject to presidential approval. Under
these circumstances, we do not agree that the writing re-
quirement in § 5542(g)(4)(B) should be understood as Con-
gress’s silent preclusion of OPM’s writing requirement for
§ 5542(a).
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LESKO v. US 17
authorized, Congress delegated authority to OPM to deter-
mine the proper form, which OPM did. See supra Discus-
sion § II. The fact that Ms. Lesko disagrees with the form
specified by OPM does not mean the writing requirement
contradicts the overtime statute. It also does not mean
OPM interpreted the overtime statute as mandating a
writing requirement. Instead, OPM prescribed a rule nec-
essary to implement the overtime statute on an issue FEPA
gave OPM discretion to address.
There also is nothing unusual about the authority del-
egated to OPM in this case. Congress regularly delegates
authority to agencies to prescribe regulations “necessary”
to implement a statutory scheme.11 And agencies regularly
prescribe writing requirements.12 Moreover, there is an
11 See, e.g., 38 U.S.C. § 501(a) (“The Secretary [of the
Department of Veterans Affairs] has authority to prescribe
all rules and regulations which are necessary or appropri-
ate to carry out the laws administered by the Depart-
ment . . . .”); 42 U.S.C. § 7601(a)(1) (“The Administrator [of
the Environmental Protection Agency] is authorized to pre-
scribe such regulations as are necessary to carry out his
functions under this chapter.”); 26 U.S.C. § 7805(a) (“[T]he
Secretary [of the Treasury] shall prescribe all needful rules
and regulations for the enforcement of this title, including
all rules and regulations as may be necessary . . . .”); 47
U.S.C. § 154(i) (“The [Federal Communications] Commis-
sion may . . . make such rules and regulations . . . as may
be necessary in the execution of its functions.”); 16 U.S.C.
§ 825h (“The [Federal Energy Regulatory] Commission
shall have power . . . to prescribe, issue, make, amend, and
rescind . . . regulations as it may find necessary or appro-
priate to carry out the provisions of this chapter.”).
12 See, e.g., 30 C.F.R. § 20.5(f) (“No verbal report of
approval or disapproval will be made to the applicant.
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LESKO v. US 18
intelligible principle in the delegation statute that author-
izes OPM to promulgate the writing requirement—OPM
may only prescribe regulations necessary to implement the
overtime statute. Fed. Commc’ns Comm’n v. Consumers’
Rsch., 606 U.S. 656, 673 (2025) (“To distinguish between
the permissible and the impermissible [delegation], we
have long asked whether Congress has set out an ‘intelligi-
ble principle’ to guide what it has given the agency to do.”).
We therefore conclude the delegation of authority to OPM
to promulgate the writing requirement is constitutional.
B. Reasoned Decision Making
Ms. Lesko also argues the overtime regulation’s writ-
ing requirement is not the product of reasoned decision
making because it contradicts the overtime statute’s plain
language. Lesko Br. 37–44. For the reasons explained
above, we do not agree. See supra Discussion §§ I–II, III.A.
The plain language is silent as to the proper form “officially
ordered or approved” overtime must take to be properly au-
thorized. And the delegation statute provides OPM with
discretion to determine the proper formalities. The writing
requirement therefore does not contradict the overtime
statute.
Because the best reading of the overtime statute is that
Congress constitutionally delegated authority to OPM to
prescribe the writing requirement, which OPM promul-
gated based on reasoned decision making within the
Approval will be made only in writing by [the Mine Safety
and Health Administration].”); 36 C.F.R. § 67.3(b)(5) (“Ap-
proval of applications and amendments to applications is
conveyed only in writing by duly authorized officials of the
[National Park Service] acting on behalf of the Secretary.”);
18 C.F.R. § 35.32(a)(2) (“The utility may provide overall in-
vestment policy to the Trustee or Investment Manager, but
it may do so only in writing . . . .”).
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LESKO v. US 19
boundaries of its delegated authority, we uphold the over-
time regulation. While we are sympathetic to Ms. Lesko
and others similarly situated, we note two important as-
pects of this opinion that will help federal employees mov-
ing forward: (1) employees now know that overtime must
be authorized in writing and can demand written authori-
zation prior to working overtime, and (2) supervisors, un-
der appropriate circumstances, can retroactively approve
overtime that was orally ordered by ratifying the overtime
in writing. For example, the Department of Health and
Human Services Personnel Instruction No. 550–1 requires
that the overtime be “authorized both in advance and in
writing,” but provides that “[i]n emergencies, employees
may be ordered to work overtime without prior approval,
provided approval is documented the next workday.” D EP’T
OF H EALTH & HUM. SERVS., HUMAN RESOURCES M ANUAL,
PERS. INSTR . N O. 550-1-50 at 7 (revised Nov. 3, 2010),
https://www.hhs.gov/sites/default/files/hr-resource-library-
550-1.pdf (last accessed Nov. 14, 2025).
CONCLUSION
We have considered Ms. Lesko’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
hold the writing requirement is valid and affirm the Court
of Federal Claims’ dismissal of Count II. We refer the re-
mainder of the appeal concerning Counts I and III–V back
to the panel for resolution.
AFFIRMED
COSTS
No costs.
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United States Court of Appeals
for the Federal Circuit
______________________
JILLIAN LESKO,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2023-1823
______________________
Appeal from the United States Court of Federal Claims
in No. 1:22-cv-00715-CNL, Judge Carolyn N. Lerner.
______________________
S TOLL, Circuit Judge, dissenting, with whom Circuit
Judges REYNA , CUNNINGHAM, and S TARK join.
There is no dispute that the plain meaning of “officially
ordered or approved” in the overtime statute is not limited
to written orders or approvals. Majority Op. 11. Nonethe-
less, the majority determines that, between the term “offi-
cially ordered or approved” in 5 U.S.C. § 5542(a) and the
grant of authority to OPM to “prescribe regulations[] . . .
necessary for the administration of this subchapter” in
5 U.S.C. § 5548(a), Congress delegated to OPM “discretion-
ary authority to determine the formalities required to ad-
minister the authorization process for overtime.” Majority
Op. 12–13. We see no such delegation in the statutory lan-
guage. Under Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024), we would hold that the best meaning
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LESKO v. US 2
of the statutory phrase “hours of work officially ordered or
approved in excess of 40 hours in an administrative work-
week” does not require a writing.
I
As the Supreme Court has explained, it is the respon-
sibility of the court “to independently interpret the statute
and effectuate the will of Congress.” Loper Bright, 603 U.S.
at 395; see also id. at 400. “[A]mbiguity is not a delegation
to anybody,” and courts must “use every tool at their dis-
posal to determine the best reading of the statute.” Id.
at 400. Applying these principles to the overtime statute
reveals there is a best meaning for the statutory language
“officially ordered or approved”: it includes orders or ap-
provals for overtime that are not put in writing.
First, Congress knows how to prescribe a writing re-
quirement when it wishes to do so. We presume Congress
means what it says. See Sanho Corp. v. Kaijet Tech. Int’l
Ltd., Inc., 108 F.4th 1376, 1382 (Fed. Cir. 2024) (“We as-
sume Congress means what it says and says what it
means.”). We further presume Congress does not mean
what it does not say.
Indeed, Congress included “must be approved in writ-
ing” in another subsection of the very statute at issue in
this case—§ 5542(g)(4)(B). This provision pertains to com-
pensatory time off earned by Customs and Border Protec-
tion agents for time spent performing overtime work when
that overtime work is not ordered or approved in advance
of the workweek:
U.S. Customs and Border Protection may, as it de-
termines appropriate, waive the limitation under
subparagraph (A) for an individual border patrol
agent for hours of irregular or occasional overtime
work, but such waiver must be approved in writing
in advance of the performance of any such work for
which compensatory time off is earned under
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LESKO v. US 3
paragraph (1)(B)(ii), (2)(B)(ii), or (3)(B)(ii). If a
waiver request by a border patrol agent is denied,
the border patrol agent may not be ordered to per-
form the associated overtime work.
5 U.S.C. § 5542(g)(4)(B) (emphasis added). If Congress
wanted to include a writing requirement for overtime “offi-
cially ordered or approved” in § 5542(a), it would have ex-
pressly said so, just as it did in § 5542(g)(4)(B); that
§ 5542(a) lacks such language is telling. Because Congress
directly included a writing requirement for another aspect
of the overtime regime for specific Title 5 employees, but
did not do so in the general provision for overtime at issue
here, we should not assume Congress intended to allow
OPM to impose a writing requirement. In fact, Congress’s
choice strongly supports the opposite conclusion: that it
did not intend for a writing requirement in order for over-
time to be “officially ordered or approved,” since if Congress
did so intend it could have—and would have—said so. If a
writing requirement were truly “necessary for the admin-
istration” of the overtime statute, one would expect Con-
gress to have written that requirement into § 5542(a), just
as it did in § 5542(g)(4)(B).
While the majority discounts the use of “in writing” in
§ 5542(g)(4)(B), see Majority Op. 15–16 n.10, we routinely
treat Congress’s uses of different words to mean different
things. See Metro. Area EMS Auth. v. Sec’y of Veterans
Affs., 122 F.4th 1339, 1345 (Fed. Cir. 2024) (“We under-
stand this difference [in language] to mean Congress in fact
intended two different things.”). Indeed, that Congress
chose not to say “in writing” in the general provision for
overtime yet did include “in writing” in another subsection
of the same statute undermines not only the majority’s con-
clusion that Congress delegated such authority to OPM,
but also undermines the majority’s conclusion that a writ-
ing requirement is “necessary for the administration of
th[e] subchapter.” See Majority Op. 11–16. “When Con-
gress includes particular language in one section of a
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LESKO v. US 4
statute but omits it in another section of the same Act, we
generally take the choice to be deliberate.” Badgerow
v. Walters, 596 U.S. 1, 11 (2022) (cleaned up) (citation omit-
ted).
Second, interpreting the best meaning of “officially or-
dered or approved” to include more than just orders or ap-
provals that are made in writing accords with our court’s
current interpretation of the same language—“officially or-
dered or approved”—in 38 U.S.C. § 7453(e)(1), which au-
thorizes overtime pay for VA nurses. In Mercier v. United
States, 786 F.3d 971 (Fed. Cir. 2015), we held that this
same precise statutory language allows for an induced the-
ory of overtime and does not limit overtime work to that
authorized in writing. When Congress uses the exact same
statutory language—“officially ordered or approved”—in
similar contexts, authorizing overtime pay for various ex-
ecutive branch employees, we should interpret the statutes
consistently, as we assume Congress intends the same
meaning by using the same words. See United States v. Da-
vis, 588 U.S. 445, 458 (2019) (“[W]e normally presume that
the same language in related statutes carries a consistent
meaning.”).
II
While the majority agrees that the plain text of
§ 5542(a) does not require a writing to order or approve
overtime, it concludes that Congress in § 5548(a) delegated
to OPM authority to interpret “officially ordered or ap-
proved” in a manner that does impose a writing require-
ment. The majority finds such a delegation in the statutory
authorization given to OPM to prescribe regulations “nec-
essary for the administration of this subchapter.” Majority
Op. 11–12. We disagree and would conclude that there is
no delegation to the agency to change the plain meaning of
“officially ordered or approved” under Loper Bright.
Loper Bright commands courts to exercise their inde-
pendent judgment in interpreting statutes but also
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LESKO v. US 5
acknowledges that some potential deference to an agency’s
interpretation remains when, under the statute, “the
agency is authorized to exercise a degree of discretion.”
603 U.S. at 394. Loper Bright provides three exemplary
categories of such congressional delegation to an
agency: (1) “statutes [that] ‘expressly delegate[ ]’ to an
agency the authority to give meaning to a particular statu-
tory term,” id. at 394–95 (second alteration in original)
(quoting Batterton v. Francis, 432 U.S. 416, 425 (1977));
(2) “[o]thers [that] empower an agency to prescribe rules to
‘fill up the details’ of a statutory scheme,” id. at 395 (quot-
ing Wayman v. Southard, 23 U.S. 1, 43 (1825)); and (3) still
others that allow agencies “to regulate subject to the limits
imposed by a term or phrase that ‘leaves agencies with flex-
ibility,’” id. (quoting Michigan v. EPA, 576 U.S. 743, 752
(2015)). A court, however, is to keep in mind that, even if
it determines such delegation occurred, it is still the court’s
role “to independently interpret the statute and effectuate
the will of Congress subject to constitutional limits. The
court fulfills that role by recognizing constitutional delega-
tions, fixing the boundaries of the delegated authority, and
ensuring the agency has engaged in reasoned decisionmak-
ing within those boundaries.” Id. (cleaned up) (citation
omitted).
According to the majority, Congress’s use of “officially
ordered or approved” in § 5542(a) and “necessary for the
administration” in § 5548(a) reveals that Congress left
OPM to fill up the details of the statutory scheme and,
hence, provides the agency flexibility to impose a writing
requirement. See Majority Op. 11–12. But such purported
delegation is not clear or direct, especially in comparison to
the exemplary delegations identified in Loper Bright.
A
The majority first relies on the second type of delega-
tion identified in Loper Bright: filling up the details of a
statutory scheme. The majority concludes that because
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LESKO v. US 6
(1) the plain meaning of the phrase “officially ordered or
approved” requires “formalities,” (2) “the overtime statute
is silent regarding the formalities required for overtime,”
and (3) § 5548(a) authorizes “OPM to prescribe regulations
necessary for administering the overtime statute,” Con-
gress intended “for OPM to fill up the details of the author-
ization process”—i.e., to have discretion in defining what
“officially ordered or approved” requires. Majority Op. 12.
We disagree.
Neither the language of § 5542(a) nor of § 5548(a) is
like the exemplary statute Loper Bright cites for filling up
the details. Loper Bright identifies the following statutory
language as “empower[ing] an agency to prescribe rules to
‘fill up the details’ of a statutory scheme,” 603 U.S. at 395
(citation omitted): “[w]henever, in the judgment of the Ad-
ministrator . . . , discharges of pollutants from a point
source . . . would interfere with the attainment or mainte-
nance of that water quality . . . , effluent limitations . . .
shall be established which can reasonably be expected to
contribute to the attainment or maintenance of such water
quality.” 33 U.S.C. § 1312(a); see Loper Bright, 603 U.S.
at 395 n.6 (quoting 33 U.S.C. § 1312(a)). There are mean-
ingful differences between this example and what the ma-
jority relies on as the purported delegation to OPM. Unlike
the clear and direct delegation Congress laid out in
33 U.S.C. § 1312(a) between “the judgment of the Adminis-
trator” and the effluent limitations he is to create to main-
tain water quality, there is no clear or direct connection
drawn between the general provision authorizing OPM to
administer the statute in § 5548(a) and the phrase at issue
(“officially ordered or approved”) in § 5542(a).1
1 In stark contrast to the general delegation in
§ 5548(a) relied on by the majority here, other portions of
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LESKO v. US 7
Indeed, § 5548(a)—authorizing the agency to prescribe
regulations “necessary for the administration of this sub-
chapter”—does not refer back to § 5542 or to the phrase “of-
ficially ordered or approved.” Nor does it give OPM
discretion to define or interpret statutory terms. The
§ 5542 include language that clearly delegates to OPM dis-
cretion to make specified determinations about specified
subject matter. See 5 U.S.C. § 5542(c) (“[T]he Office of Per-
sonnel Management shall by regulation prescribe what
hours shall be deemed to be hours of work and what hours
of work shall be deemed to be overtime hours for the purpose
of such section 7 [of the Fair Labor Standards Act of 1938].”
(emphasis added)); id. § 5542(h)(1)(B)(i) (“The Director of
the Office of Personnel Management . . . shall identify the
situations in which a firefighter shall be deemed to have
worked hours actually worked by a substituting firefighter
under a qualified trade-of-time arrangement.” (emphasis
added)); id. § 5542(h)(2)(A)(ii)(IV) (“. . . in the case of an
employee who is not subject to subchapter III of chapter 83
or chapter 84, holds a position that the Office of Personnel
Management determines would satisfy subclause (I), (II),
or (III) . . .” (emphasis added)). Other sections within the
same subchapter also have language that explicitly dele-
gates discretion to agency heads. See, e.g., 5 U.S.C.
§ 5546a(a) (explaining that certain criteria an employee of
the Federal Aviation Administration or the Department of
Defense needs to meet to receive “premium pay at the rate
of 5 per centum of the applicable rate of basic pay” include
whether the employee’s duties “are determined by the Ad-
ministrator or the Secretary to be directly involved in or
responsible for the operation and maintenance of the air
traffic control system” and “are determined by the Admin-
istrator or the Secretary to be unusually taxing, physically
or mentally, and to be critical to the advancement of avia-
tion safety”).
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LESKO v. US 8
phrase “this subchapter” in § 5548(a) refers to “Subchap-
ter V—Premium Pay,” which contains over a dozen stat-
utes and countless broad terms subject to multiple
meanings, accompanied by congressional silence on which
meaning to choose. Under Loper Bright, we could not rea-
sonably read § 5548(a) as a congressional delegation allow-
ing OPM to narrow every broad term in the subchapter
merely based on OPM’s say so that doing so is “necessary
for the administration of th[e] subchapter.”
Moreover, interpreting “officially ordered or approved”
as a phrase that connotes unstated formalities and allows
the agency to add a writing requirement as a formality
“necessary for . . . administration” displaces congressional
intent. We should not ignore the plain meaning of “offi-
cially ordered or approved”; nor may we latch onto the ex-
istence of general rulemaking authority (like that provided
for by § 5548(a)) to defer to an agency’s interpretation of
statutory silence and ambiguities. See generally SAS Inst.,
Inc. v. Iancu, 584 U.S. 357, 363 (2018) (“Where a statute’s
language carries a plain meaning, the duty of an adminis-
trative agency is to follow its commands as written, not to
supplant those commands with others it may prefer.”).
Loper Bright makes clear that we lack a sufficient basis
here to abandon our judicial role and fail to use all tools at
our disposal and determine the best meaning of the statute.
B
The majority also relies on the third type of delegation
identified in Loper Bright: authority to regulate pursuant
to flexible terms. The majority concludes that the term
“necessary” in the phrase OPM “may prescribe regula-
tions[] . . . necessary for the administration of this sub-
chapter” is similar to the example the Supreme Court
provided in Loper Bright of a flexible term conferring dis-
cretionary regulatory authority on an agency. See Majority
Op. 12. Loper Bright identifies the following as exemplary
statutory language authorizing an agency “to regulate
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LESKO v. US 9
subject to the limits imposed by a term or phrase that
‘leaves agencies with flexibility,’ such as ‘appropriate’ or
‘reasonable,’” 603 U.S. at 395 (citation omitted): “[t]he Ad-
ministrator shall regulate electric utility steam generating
units under this section, if the Administrator finds such
regulation is appropriate and necessary after considering
the results of the study required by this subparagraph.”
42 U.S.C. § 7412(n)(1)(A) (emphases added); see Loper
Bright, 603 U.S. at 395 n.6 (quoting 42 U.S.C.
§ 7412(n)(1)(A)); see also id. at 395 (citing Michigan
v. EPA, 576 U.S. at 752).2
Again, Loper Bright’s exemplary delegation is signifi-
cantly clearer and more direct than the purported delega-
tion identified by the majority. The example specifically
and narrowly defines what the agency may regulate and
upon what grounds it may do so. Unlike the example, there
is nothing in Title 5 that specifically says that OPM may or
shall explicate and interpret “officially ordered or ap-
proved” if it finds such regulation necessary for overtime
administration. Nor does § 5548(a) say that OPM can re-
define or narrow the meaning of Congress’s choice of stat-
utory terms. While it is true that § 5548(a) allows OPM to
“prescribe regulations[] . . . necessary for the administra-
tion of this subchapter,” “officially ordered or approved”
has a best meaning discernible by a court deploying its full
interpretive toolkit, and Congress did not authorize OPM
2 The majority emphasizes the word “necessary” in
this statute to draw an analogy to the use the of word in
§ 5548(a), but review of the analysis in Michigan v. EPA
shows the Supreme Court’s focus on the word “appropri-
ate.” See 576 U.S. at 751–57. This accords with the Court’s
statement in Loper Bright that “a term or phrase that
leaves agencies with flexibility” means terms like “appro-
priate or reasonable.” 603 U.S. at 395 (quotation marks
and citation omitted).
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LESKO v. US 10
to change that best meaning for administrative conven-
ience. As Loper Bright explained, we should view a statute
as delegating authority to define terms only where it is
clear that “the best reading of [the] statute is that it dele-
gates discretionary authority to an agency.” 603 U.S.
at 395.3 We see no such delegation for interpreting the
meaning of “officially ordered or approved” here. And
whatever delegation there is to OPM to administer the
statute, it still must fall within the “fix[ed] . . . boundaries
of [the] delegated authority” by Congress to the agency. Id.
(second alteration in original) (citation omitted). But as ex-
plained above, the best meaning of the statute does not
limit orders or approvals to only those made in writing.
Thus, any delegation that does exist must be within this
boundary of congressional intent.
C
The majority does not rely on the first category of dele-
gation described in Loper Bright: statutes that expressly
delegate the authority to give meaning to a statutory term.
We agree that such express delegation does not apply here.
Loper Bright identifies three examples of statutory lan-
guage that expressly delegates to an agency the authority
to interpret a particular term: (1) “has been deprived of pa-
rental support or care by reason of the unemployment (as
determined in accordance with standards prescribed by the
Secretary) of his father,” Batterton, 432 U.S. at 418 n.2
(emphasis added) (citation omitted), (2) “to provide com-
panionship services for individuals who (because of age or
infirmity) are unable to care for themselves (as such terms
3 It is unclear if a flexible term can grant an agency
the power to define terms at all, as Loper Bright only ap-
proved such agency action where the “statute[] ‘expressly
delegate[s]’ to an agency the authority to give meaning to
a particular statutory term.” Loper Bright, 603 U.S. at 394
(citation omitted).
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LESKO v. US 11
are defined and delimited by regulations of the Secretary),”
or (3) “contains a defect which could create a substantial
safety hazard, as defined by regulations which the Commis-
sion shall promulgate.” Loper Bright, 603 U.S. at 394–95
& n.5 (first quoting 29 U.S.C. § 213(a)(15); and then quot-
ing 42 U.S.C. § 5846(a)(2)). In each example, Congress’s
statutory language identifies a particular term closely fol-
lowed by language authorizing the agency to interpret that
term. These are narrow and direct delegations. No such
language is present in § 5542(a).
D
This is not to say that there is no delegation to the
agency in the congressional authorization to “prescribe reg-
ulations[] . . . necessary for the administration of th[e] sub-
chapter.” It is true that some administrative gaps need to
be filled; but the statute on its face allows orders or approv-
als that are not in writing. Allowing the agency to reinter-
pret the statute to hold otherwise goes beyond the
delegation to administer set forth in § 5548(a).
We do not agree with the majority’s contention that the
writing requirement is simply a means of administering
§ 5542(a) by establishing how overtime can be authorized.
See Majority Op. 13. The writing requirement, instead,
clearly redefines the scope of the overtime liability Con-
gress has authorized. Such a requirement therefore stands
far apart from others such as the timecard requirement
Ms. Lesko’s counsel agreed at oral argument would be per-
missible. The fact that regulations governing the proof re-
quired to establish entitlement to a statutory grant may be
permissible does not mean that regulations redefining the
scope of a statutory entitlement are also permissible. Cf.
Schweiker v. Hansen, 450 U.S. 785 (1981) (finding a regu-
lation merely procedural where it solely specified the man-
ner in which one may invoke a right but did not
substantively redefine the right). Having determined that
the best meaning, and plain language, of the statutory
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LESKO v. US 12
phrase “officially ordered or approved” encompasses orally
ordered overtime, we may not permit OPM to “rewrite clear
statutory terms to suit its own sense of how the statute
should operate” by declaring those same hours non-over-
time absent a writing. Util. Air Regul. Grp. v. EPA,
573 U.S. 302, 328 (2014).
Without a clear delegation of authority to interpret
statutory terms, the judiciary is left to assess the reasona-
bleness of the agency’s policy rationales instead of using
the proper statutory tools to interpret the meaning of “offi-
cially ordered or approved.” See Majority Op. 14–15 (ad-
dressing “the practical necessity of the writing
requirement”). But judging the reasonableness of policy is
not the role of the judiciary. And while we do not discount
the government’s suggestion that OPM’s writing regula-
tion could further the goals of controlling costs and reduc-
ing disputes by creating a documentary record, we do not
see how these goals override Congress’s choice of language.
For all we know, such language might well reflect other
congressional goals, such as paying federal employees for
overtime worked even if that overtime is ordered orally.
And in a post-Chevron world, the agency’s choice of lan-
guage cannot override the best meaning of Congress’s cho-
sen language.4
4 Nor would we uphold the writing requirement on
stare decisis principles. Indeed, our precedent is unclear.
Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004), which
attempted to overturn an earlier en banc decision rejecting
a writing requirement, relied on Chevron deference to up-
hold OPM’s regulation requiring a writing. See 372 F.3d
at 1358–59. And then our later opinion in Mercier under-
mined Doe’s reasoning to revive the earlier en banc court’s
interpretation that overtime “officially ordered or ap-
proved” need not be reduced to a writing. See Mercier,
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LESKO v. US 13
* * *
In sum, it is up to Congress, not OPM, to impose a writ-
ing requirement. Congress chose not to limit the statutory
phrase “officially ordered or approved” to “in writing,” de-
spite imposing such a limit in another subsection of the
same statute. Nor did Congress give OPM the authority to
give meaning to “officially ordered or approved.” That
should be the end of the analysis. We should not “def[y]
the command” emphasized in Loper Bright “that the re-
viewing court—not the agency whose action it reviews—is
to decide all relevant questions of law and interpret . . .
statutory provisions,” and we should not “ignore . . . the
reading th[is] court would have reached had it exercised its
independent judgment.” Loper Bright, 603 U.S. at 398–99
(first ellipsis in original) (quotation marks, emphasis, and
citation omitted).
For the foregoing reasons, we respectfully dissent.
786 F.3d at 980–82. As we have two relatively recent opin-
ions going in different directions on whether a writing re-
quirement is valid, the principles of stare decisis do not
apply. Nor would there be any undue surprise for the Gov-
ernment if we interpret the plain meaning of “officially or-
dered or approved” to encompass more than written orders
or approvals, as our most recent decision in Mercier held
exactly that. Accordingly, this case seems to set up an ex-
emplary situation of when there is a “special justification,”
as contemplated in Loper Bright, for a court to review a
prior agency interpretation approved under Chevron. See
603 U.S. at 412 (citation omitted).
Case: 23-1823 Document: 87 Page: 32 Filed: 12/12/2025

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