Appeal from the United States District Court for the Central District of California Gary L. Taylor, District Judge, Presiding D.C. No. and CV-03-01611-GLT
The opinion of the court was delivered by: McKEOWN, Circuit Judge
Argued and Submitted April 9, 2007-Pasadena, California
Before: Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and Ronald M. Whyte,*fn1 District Judge.
The petition for panel rehearing is granted in part. The opinion filed August 27, 2007, and appearing at 501 F.3d 1071, is withdrawn. It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A new opinion is filed contemporaneously.
This appeal principally involves the relationship between two labor statutes-the Fair Labor Standards Act of 1938 and a 1996 statute related to compensation for postal inspectors, 39 U.S.C. § 1003(c). Robert Nigg, a postal inspector*fn2 currently employed by the United States Postal Service ("the Postal Service") and Keith Lewis, a retired postal inspector, sued the Postal Service alleging that the inspectors are entitled to overtime pay under the Fair Labor Standards Act ("FLSA" or "the Act"), 29 U.S.C. §§ 201-219. The Postal Service does not pay postal inspectors FLSA overtime, instead claiming that their pay is governed by 39 U.S.C. § 1003(c). At issue is whether the compensation provision in § 1003(c) trumps the overtime provisions of the FLSA.
The district court granted summary judgment in favor of the Postal Service, reasoning that 39 U.S.C. § 1003(c), which requires the Postal Service to pay the inspectors on a basis of "comparability" to other similarly tasked executive branch employees, permits the Postal Service to provide "availability pay" rather than FLSA overtime. The court adopted the Postal Service's argument that postal inspectors are comparable to certain other federal law enforcement officers who receive availability pay under the Law Enforcement Availability Pay Act, Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994).
FLSA overtime and availability pay differ significantly, both in terms of the hours of work required to qualify, and the way in which pay is calculated. For example, FLSA overtime entitles a covered employee to overtime pay for all hours worked in excess of 40 hours per week. See 29 U.S.C. § 207(a)(1). In contrast, availability pay requires a covered employee to work an average of two extra hours of overtime per day beyond the eight hour day for the entire year to be entitled to extra pay for the extra hours worked. See, e.g., 5 U.S.C. § 5545a(a)-(d).
FLSA's overtime provisions presumptively apply to federal employees, such as the inspectors, unless a specific FLSA exemption applies. See 5 C.F.R. § 551.202(a) ("Each employee is presumed to be FLSA nonexempt unless the employing agency correctly determines that the employee clearly meets one or more of the exemption criteria[.]"). In enacting § 1003(c), Congress did not explicitly amend or repeal the FLSA. However, whether these statutes implicitly conflict depends on whether any employees of the executive branch are both (1) engaged in work comparable to that of the postal inspectors, and (2) paid FLSA over-time. See Moyle v. Dir., Office of Workers' Comp. Programs, 147 F.3d 1116, 1120 (9th Cir. 1998) (" 'Repeals by implication . . . are not favored and will only be found when the new[er] statute is clearly repugnant, in words or purpose, to the old statute . . . .' ") (quoting Kee Leasing Co. v. McGahan (In re Glacier Bay), 944 F.2d 577, 581 (9th Cir. 1991)). We reverse the district court's grant of summary judgment to the Postal Service and remand with instructions to consider (1) whether any employees of the executive branch who are eligible to receive FLSA over-time perform work comparable to that of the inspectors, and (2) whether the inspectors satisfy any FLSA exemption or are entitled to FLSA overtime.
I. THE LEGISLATIVE LANDSCAPE
Because our decision rests on a series of labor statutes, principally the FLSA and 39 U.S.C. § 1003(c), we begin by briefly reviewing the relevant Congressional enactments and their implications for postal inspectors' pay.
A. THE FAIR LABOR STANDARDS ACT-1938
 In 1938, Congress enacted the FLSA to improve "conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). The FLSA requires most employers to pay "overtime" compensation to employees working more than forty hours per week "at a rate not less than one and one-half times the regular rate." Id. § 207(a)(1). In 1974, Congress amended the FLSA to include all federal, state, and local government employees, and in particular, individuals employed by the Postal Service. See id. § 203(e)(2)(B) (" '[E]mployee' means . . . any individual employed by the United States Postal Service . . . .").
The FLSA provides detailed exemptions excluding certain classes of employees from the Act's overtime pay requirements. See id. § 213. For example, § 213(a)(1) exempts "administrative" employees, a matter we address in more detail below. Section 213(b)(20) exempts federal law enforcement officers if the federal agency "employs during the workweek less than 5 employees . . . in law enforcement activities." Id. § 213(b)(20). According to the implementing regulations "in all exemption determinations," employees are "presumed to be FLSA nonexempt." 5 C.F.R. § 551.202.
B. FEDERAL LAW ENFORCEMENT PAY REFORM ACT-1990
In 1990, Congress passed the Federal Law Enforcement Pay Reform Act ("FLEPA") as part of the Federal Employees Pay Comparability Act of 1990. Under FLEPA, certain federal law enforcement officers are guaranteed overtime pay (referred to as "administratively uncontrollable overtime" or "AUO") among other pay protections. See 5 U.S.C. § 5305. At the request of the Postal Service, postal inspectors were not included in FLEPA. ...