Belt, et al v. Emcare Inc, et al

REVISED APRIL 4, 2006
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-40370
______________
JUNE BELT,
ON BEHALF OF HERSELF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;
PAUL MAIOCCO, WASHINGTON PLAINTIFF;
DONALD CHRISTIAN, NEW YORK PLAINTIFF;
LUCILLE MOYLAN, ILLINOIS PLAINTIFF;
VICTOR AMBROSIA, ILLINOIS PLAINTIFF;
HUNTINGTON YEO;
DARYL WEIN, UCL AND CALIFORNIA PLAINTIFF;
JEANETTE SHELLY, UCL AND CALIFORNIA PLAINTIFF;
RONALD MARTINEZ, UCL AND CALIFORNIA PLAINTIFF;
JULIE JUNG, UCL AND CALIFORNIA PLAINTIFF;
DEBORAH GASKINS, UCL AND CALIFORNIA PLAINTIFF;
DAVID DONA, UCL AND CALIFORNIA PLAINTIFF;
MASON CARLIN, UCL AND CALIFORNIA PLAINTIFF;
SUSAN BERTELSEN, UCL AND CALIFORNIA PLAINTIFF;
NEIL ADLER, UCL AND CALIFORNIA PLAINTIFF;
DEBORAH NICHOLS, ARIZONA PLAINTIFF;
FLSA EMPLOYEES,
Plaintiffs-Appellees,
VERSUS
EMCARE, INC., AND TEXAS EM-I MEDICAL SERVICES, P.A.,
Defendants-Appellants.
United States Court of Appeals
Fifth Circuit
F I L E D
March 24, 2006
Charles R. Fulbruge III
Clerk

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

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nicians and assistants.[3]
Nurse practitioners provide basic preven-
tive 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 over-
time. EmCare responded that it did not owe
plaintiffs additional pay, because they qualify
for an exemption as bona fide professionals un-
der 29 C.F.R. § 541.3(e) (1973). The parties
filed cross-motions for partial summary judg-
ment on this issue, and the district court grant-
ed plaintiffs’ motion. See June Belt v. EmCare
Inc., 351 F. Supp. 2d 625 (E.D. Tex. 2005).
The court reasoned that § 541.3(e) is ambig-
uous, so it deferred to the DOL’s informal pro-
nouncements on § 541.3(e), including a DOL
opinion letter and the Wage and Hours Field
Operations Handbook, which tended to show
that PA’s and NP’s must be paid on a salary ba-
sis to be exempt from the FLSA. The court
based its decision on Auer, 519 U.S. at 461,
which held that an agency’s interpretation of
its own ambiguous regulation is controlling
unless clearly erroneous or inconsistent with
the regulation.
The court also considered the history of the
FLSA’s professional exemption, which
showed that the DOL had rejected earlier ef-
forts 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 lat-
est version of the applicable regulations, ef-
fective August 23, 2004,5 which codified a
previous informal interpretation of § 541.3(e)
(i.e., provided notice and comment), requiring
that certain analogous professions, such as
nurses and certified medical technologists, be
salaried to be exempt from the overtime re-
quirements. The court certified its order for
interlocutory appeal under 28 U.S.C.
§ 1292(b),6 and we granted leave to appeal.
II.
The FLSA provides that a covered em-
ployee shall receive compensation at one-and-
one-half times the regular rate for every hour
3 Physician Assistants, in BUREAU OF LABOR
STATISTICS, U.S. DEP’T OFLABOR, OCCUPATIONAL
O U T L O O K H A N D B O O K 2 0 0 6 - 0 7 ,
http://www.bls.gov/oco/ocos081.htm (last visited
March 13, 2006).
4 Nurse Practitioners, in BUREAU OF LABOR
STATISTICS, U.S. DEP’T OFLABOR, OCCUPATIONAL
O U T L O O K H A N D B O O K 2 0 0 6 - 0 7 ,
http://www.bls.gov/oco/ocos083.htm (last visited
March 13, 2006). Plaintiffs and the DOL represent
that the duties of PA’s and NP’s are almost indis-
tinguishable.
5 Though the district court found the 2004 re-
visions instructive, the facts underlying this case
occurred before the recent amendments took effect.
Therefore, this case is governed by the regulations
as codified in 1973.
6 A district court may certify an order for in-
terlocutory appeal under § 1292(b) where the order
“involves a controlling question of law as to which
there is substantial ground for difference of opinion
and . . . an immediate appeal from the order may
materially advance the ultimate termination of the
litigation.”

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

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with respect to the specific question consid-
ered.”11
Second, if the regulation is ambiguous, the
agency’s interpretation (as contained in, e.g.,
opinion letters) is “controlling unless plainly er-
roneous 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 omit-
ted). If the regulation is unambiguous, we may
still consider agency interpretation, but only ac-
cording to its persuasive power.12
A.
EmCare argues that PA’s and NP’s unam-
biguously practice medicine or a branch of
medicine within the meaning of § 541.3(e),
and plaintiffs maintain the regulation does not
speak to this precise question. Before ad-
dressing the issue on the merits, however,
plaintiffs contend it is waived because EmCare
raises it for the first time on appeal, having
consistently represented to the district court
that § 541.3(e) is ambiguous, and having relied
instead on the interpretive regulation,
29 C.F.R. § 541.314 (1973), to make its case.
EmCare replies that “an argument is not
waived on appeal if the argument on the issue
before the district court was sufficient to per-
mit the district court to rule on it.”13 The dis-
trict 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 regula-
tion 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 determining whether
a matter was raised below.” N.Y. Life Ins. Co.
v. Brown, 84 F.3d 137, 142 n.4 (5th Cir.
1996).
EmCare’s corporate representative, Mr.
11 Moore v. Hannon Food Serv., 317 F.3d 489,
495 (5th Cir. 2003); Christensen v. Harris County,
529 U.S. 576, 588 (2000) (finding Auer deference
appropriate “only when the language of the regula-
tion is ambiguous”).
12Moore, 317 F.3d at 495; Christensen, 529
U.S. at 587 (stating that “interpretations contained
in formats such as opinion letters are entitled to re-
spect . . . but only to the extent that those interpreta-
tions have the power to persuade.”) (internal quo-
tations omitted). The Court described this degree of
deference in Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944):
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.
13 Lifemark Hosps., Inc. v. Liljeberg Enters.,
304 F.3d 410, 428 n.29 (5th Cir. 2002).

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

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

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controlling because the regulation was unam-
biguous: It permitted employers to include a
compelled use clause in an agreement (“may
include”), but by no means required them to do
so. Id. at 588. Therefore, the Court held that
absent an express prohibition, the county could
pursue its policy of compulsory leave. Id.
Because the regulation in Christensen was
unambiguous, even though it did not discuss
every method the county could use to imple-
ment its policy, EmCare argues that § 541.3(e)
is also unambiguous, even though it fails spe-
cifically to discuss whether NP’s and PA’s fall
within its scope.
EmCare’s reliance on Christensen is mis-
placed. The regulation there spoke directly to
the binary issue posed by the case: Did the
agency exclude non-contractual methods of en-
forcing 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 unam-
biguous, they were not confronted with the tax-
onomic 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 dis-
ease.” RANDOM HOUSE WEBSTER’S DICTION-
ARY 447 (3d ed. 1998). Using that broad defi-
nition and the licensing requirement of
§ 541.3(e), EmCare formulates its proposed
reading of the rule, which is the analytical core
of its entire argument, as follows: “[A]ny per-
son who has received formal permission from
the relevant authority to practice in the art or
science of preserving health and treating dis-
ease is included within the Salary Basis Excep-
tion.” EmCare argues that NP’s and PA’s un-
ambiguously fall within this definition because
they are (1) licensed and (2) act to preserve
health and treat disease.19
The decision in Clark v. United Emergency
Animal Clinic, Inc., 390 F.3d 1124,1127 (9th
Cir. 2004), lends some support to EmCare’s
position; that court held, when considering the
applicabilityof § 541.3(e) to veterinarians, that
“[l]ogically as well as linguistically, veterinary
medicine is a ‘branch’ of medicine.” The court
used the “ordinary, dictionary meaning of the
terms” of the regulation to reinforce its view,
id., which is language almost identical to Em-
Care’s proposed formulation: “[A] doctor of
veterinary medicine is a practitioner licensed
and practicing in the field of medical science
and healing on animals, a branch of medicine.”
Id. at 1128.
Nevertheless, Clark is inapposite. First, the
fact that Clark also considered § 541.314, the
DOL interpretive regulation, suggests that that
court may have believed (or at least assumed
arguendo) that § 541.3(e) is ambiguous. See
Clark, 390 F.3d at 1127. Second, and more
importantly, plaintiffs argue that the “practice
of . . . medicine” is a term of art that should be
construed as a single phrase.20
19 See supra notes 3-4 and accompanying text.
20 La. Pub. Serv. Comm’n v. FCC, 476 U.S.
(continued...)

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

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11
sional exemption to registered nurses.25 This
evidence does not suggest that § 541.3(e) un-
ambiguously excludes PA’s and NP’s, but it is
sufficient for us to find that § 541.3(e) is am-
biguous and to look to DOL’s interpretive
statements for additional guidance.
C.
The DOL issued in 1949, and revised in
1973, an interpretive regulation (without notice
and comment) regarding the meaning of the
phrase “or any of its branches” in § 541.3(e):
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 pro-
fessions.
(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 gen-
eral practitioners and specialists, and
osteopathic physicians (doctors of oste-
opathy). Other practitioners in the field
of medical science and healing may in-
clude podiatrists (sometimes called chi-
ropodists), dentists (doctors of dental
medicine), optometrists (doctors of
optometry or bachelors of science in
optometry).
(2) [Section excepting interns and resi-
dents from salary-basis test omitted]
(3) In the case of medical occupations,
the exception from the salary or fee re-
quirement does not apply to pharma-
cists, nurses, therapists, technologists,
sanitarians, dietitians, social workers,
psychologists, psychometrists, or other
professions which service the medical
profession.
29 C.F.R. § 541.314(a), (b)(1)-(3) (1973).
Because neither PA’s nor NP’s are specifically
mentioned, we must ask whether, under
§ 541.314, plaintiffs are members of the “tra-
ditional profession[] of . . . medicine” or “re-
lated professions which merely service the
[medical] profession.”
EmCare reasons that the language of
§ 541.314(b)(1) is intentionally broad, and
EmCare reiterates that anyone who holds a li-
cense and practices in a medical field qualifies
for the salary-basis exception. In Clark, the
court concluded that veterinarians are “other
practitioners” within the meaning of § 541.-
314(b)(1), because the DOL did not intend the
list provided to be exhaustive and because vets
practiced “in the field of medical science and
healing,” albeit on animals. Clark, 390 F.3d at
1127. Plaintiffs point out, however, that the
Clark court supported its interpretation by cit-
ing the DOL’s Occupational Outlook
Handbook, which lists as “Related Profes-
sions” to veterinarians “chiropractors, dentists,
optometrists, physicians and surgeons, and po-
diatrists” but does not list any of these fields as
25 See, e.g., 29 C.F.R. § 541.314(b)(3) (1973);
Brock v. Superior Care, Inc., 840 F.2d 1054, 1061
n.1 (2d Cir. 1988) (holding that § 541.3(e) does not
apply to nurses); Harrison v. Washington Hosp.
Ctr., 1979 WL 1923, at *2-*3 (D.D.C. 1979)
(same).

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12
“Related Professions” to NP’s and PA’s.26
Plaintiffs rely on the words “traditional pro-
fessions of law, medicine, and teaching” to ar-
gue that NP’s and PA’s cannot possibly fall
within the scope of § 541.314(b)(1) because
these professions developed only in the mid-
1960’s and therefore did not exist in 1949 and
could hardly have been traditional in 1973.27
EmCare predictably replies that job duties, not
job titles, should control who qualifies as a tra-
ditional practitioner,28 and because PA’s and
NP’s perform many of the traditional duties of
physicians, they should qualify under the broad
language of § 541.314(b)(1).
The best textual argument drawn from
§ 541.314(b) is that subheading (3) specifically
excludes NP’s from the salary-basis exception
under the general category of “nurses.” The
DOL has repeatedly categorized NP’s under the
heading of “Registered Nurses” and has noted
than an NP is a nurse with advanced academic
or clinical training.29 Plaintiffs also point out
that PA’s and NP’s are not “physicians, law-
yers, [or] teachers” as indicated in the title of
§ 541.314. In sum, though the text of § 541.-
314 alone does not suffice to reveal entirely
the agency’s position on this issue, plaintiffs’
case gains some traction from straightforward
textual analysis.
The parties next turn to the history of
§ 541.314(b). Plaintiffs emphasize in particu-
lar that the DOL has resisted efforts to expand
the salary-basis exception several times since
its inception, rejecting a proposal in 1949 to
include “architects, engineers, and librarians”
and specifically excluding pharmacists and
nurses. The official report on the 1949 pro-
posals stated, as the reason for keeping the
salary-basis exception limited to lawyers and
doctors, the following: “the traditional stand-
ing of these professions, the recognition of
doctors and lawyers as quasi-public officials, []
the universal requirement of licensing by the
various jurisdictions[, and the] relatively
simple problems of classification presented by
these professions.” U.S. DEP’TOF LABOR, RE-
PORT AND RECOMMENDATIONS ON THE PRO-
POSED REVISIONS OF REGULATIONS, PART 541,
77 (1949).
EmCare maintains that the history poses no
obstacle to its position, because unlike archi-
tects, engineers, and librarians (at least histori-
cally), NP’s and PA’s require a license to prac-
tice, and unlike nurses and pharmacists, NP’s
and PA’s help develop treatment plans for pa-
26 See id; BUREAU OF LABOR STATISTICS, U.S.
DEP’T OF LABOR,OCCUPATIONAL OUTLOOK HAND-
BOOK, supra notes 3 and 4. Although Clark cites
the 2000 Handbook, the current version includes,
inter alia, “physicians and surgeons” as “Related
Occupations” for Registered Nurse. See supra note
4.
27 See Elizabeth Harrison Hadley, Nurses and
Prescriptive Authority: A Legal and Economic An-
alysis, 15 AM. J.L. & MED. 245, 268 n.104 (1989)
(noting that the first training programs for NP’s and
PA’s arose in the 1960’s).
28 To that end, EmCare notes that other
practitioners with similarly limited responsibilities
also qualify for the salary-basis exception under
§ 541.314; these include optometrists, who often
cannot write prescriptions or perform eye surgery,
and interns and residents, who must work under a
physician’s supervision.
29 BUREAU OF LABOR STATISTICS, U.S. DEP’T
OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK,
supra note 4 (including NP’s under “Registered
Nurses” heading and listing NP as an “advanced
practice nursing specialt[y]”).

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13
tients. 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 amend-
ments to the DOL regulations as persuasive au-
thority. The amendments effectively adopted
§ 541.314 after notice and comment, without
substantive change,30 thereby tending to show
that the text of § 541.3(e) does not contradict
the former § 541.314. EmCare notes that the
new regulations specifically list PA’s alongside
nurses and technologists as “learned pro-
fessionals” who satisfy the duty requirements
for the professional exemption, id. at § 301-
(e)(4), but does not include PA’s among nurses
and technologists in the list of professions that
fall outside the salary-basis exception, id. at
§ 541.600(e). Though this observation alone
is insufficient to show that EmCare should
prevail, it does support EmCare’s case
somewhat.31
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 state-
ments 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,
§ 541.3(e), is unambiguous; EmCare also
questions the thoroughness with which the
30 See 29 C.F.R. § 541.304. The DOL noted
that it had “received few comments on this provision
and does not believe any substantive changes are
necessary in light of those comments.” 69 Fed. Reg.
22,122, 22,158 (Apr. 23, 2004).
31 The district court’s reliance on this point to
support plaintiffs’ position seems an unnatural in-
ference. The court basically reasoned that because
all three professions are expressly mentioned in the
duty section, all three should also be excluded from
the salary-basis exception, even though that section
mentions only nurses and technologists. See Belt,
351 F. Supp. 2d at 632.
32 Also, EmCare notes that no NP’s are listed as
covered by the salary-basis test; therefore, we
should assume that they, like physicians, fall within
the salary-basis exception.
33 WAGE AND HOUR DIV., U.S. DEP’T OF
LABOR, FIELD OPERATIONS HANDBOOK § 22d23
(1994), available at http://www.dol.gov/esa/whd-
/FOH/FOH_Ch22.pdf (stating that, to qualify, the
PA must be “compensated for his or her services
on a salary basis of not less than $250 a week, ex-
clusive of board, lodging, or other facilities”).

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14
agency considered its position in the letter.
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 po-
sition 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 in-
terpreted 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 regu-
lation § 541.314) and 1994 Handbook, which
explicitly subject PA’s to the salary-basis test,
and the DOL’s classification of NP’s as a subset
of registered nurse in its Occupational Outlook
guide. Also, the history of the exception
suggests that the agency intended to limit its
reach to traditional medical practitioners, and
state licensing regimes appear to mirror this ap-
proach. Although it seems beyond question
that NP’s and PA’s assume many of the tradi-
tional duties of doctors, the language of
§ 541.3(e) “comfortably bears the meaning the
Secretary assigns.” Id. at 461.
Our decision in Moore does not require a
contrary result. There we noted that “[Chev-
ron] deference is not appropriate for an inter-
pretation of a regulation found in an amicus
curiae brief.”34 We recognized, 317 F.3d at
494, however, that the Court in Auer had giv-
en controlling weight to an amicus brief, and
we correctly concluded that the critical ques-
tion after Christensen, in deciding when to de-
fer to informal interpretations of agency rules,
is whether the underlying regulation is ambig-
uous.
We did not have occasion to defer to the
Secretary’s position as amicus in Moore, be-
cause the agency rule was plain. See id. at
497. Because, however, we decide that
§ 541.3(e) is ambiguous, we give controlling
weight to the DOL opinion letter, Handbook,
and amicus brief under AuerSSmore than the
mere respect required by Skidmore.35
34 Moore, 317 F.3d at 494; see also Christen-
sen, 529 U.S. at 587 (stating that “interpretations
contained in formats such as opinion letters are
‘entitled to respect’ under our decision in Skid-
more[], but only to the extent that those
interpretations have the ‘power to persuade[.]’”).
35 We leave intact our observation in Moore
that Chevron deference is inappropriate for
informal agency interpretations, such as opinion
letters and amicuscuriae briefs. See Moore, 317
F.3d at 494. The most important reason for
extending greater deference to an amicus brief that
purports to interpret an agency’s own ambiguous
regulation (under Auer), than a brief that interprets
the organic statute directly (under Chevron), is the
greater expertise and familiarity of the agency with
(continued...)

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15
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 am-
bit. Though courts often find broad language
unambiguous,36 this case presents mixed evi-
dence 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 distin-
guishing 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
(1971),
[w]e need not take sides in the somewhat
theological debates . . . that the phrasing of
this regulation has forced upon so many fed-
eral courts. Rather, since the meaning of the
language is not free from doubt, we are ob-
ligated to regard as controlling a reasonable,
consistently applied administrative interpre-
tation if the Government’s be such.
Because the language of § 541.3(e) is not “free
from doubt,” and in view of the fact that the
Secretary’s position finds support in past prac-
tice and is not “plainly erroneous or inconsis-
tent with the regulation,” Auer, 519 U.S. at
461, deference is appropriate.
IV.
Congress has entrusted the DOL with the
task of defining who is eligible for the profes-
sional 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 traditionalSSi.e., well-established and easily
identifiableSSprofessions 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 de-
ciding the question de novo and deferring to
the agency’s less formal, but more specific, in-
terpretive statements.
Auer counsels that deference better accords
with Congress’s intent and the agency’s com-
parative 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 so-
phistication of their practice, are nascent pro-
fessions 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
35(...continued)
respect to the history and content of its own enacted
rules. See John F. Manning, Constitutional
Structure and Judicial Deference to Agency
Interpretations of Agency Rules, 96 COLUM. L.
REV. 612, 630-31 (1999). But see id. at 618 (con-
cluding that, “by providing the agency an incentive
to promulgate imprecise and vague rules, [Auer-type
deference] undercuts important deliberative process
objectives of the APA, and it creates potential
problems of inadequate notice and arbitrariness in
the enforcement of agency rules.”).
36 See, e.g., MCI Telecomms. Corp. v. AT&T
Co., 512 U.S. 218 (1994) (finding that the ordinary
meaning of “modify” unambiguously precluded the
FCC’s interpretation under the Communications
Act).
37 81 CONG. REC. 4983 (1937) (message of
President Roosevelt).

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16
this matter is REMANDED for further
proceedings.

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