Christensen v. Harris County, 529 U.S. 576, 18 (2000)

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Cite as: 529 U. S. 576 (2000)

Stevens, J., dissenting

of noncash compensation may be imposed on those employees without their consent. Because their consent is a condition without which the employer cannot qualify for the exception from the general rule, it seems clear to me that their agreement must encompass the way in which the compensatory time may be used.

In an effort to avoid addressing this basic point, the Court mistakenly characterizes petitioners' central argument as turning upon the canon expressio unius est exclusio alter-ius.1 According to the Court, petitioners and the United States as amicus curiae contend that because employees are granted the power under the Act to use their compensatory time subject solely to the employers' ability to make employees wait a "reasonable time" before using it, "all other methods of spending compensatory time are precluded." Ante, at 583. The Court concludes that expressio unius does not help petitioners because the "thing to be done" as prescribed by the statute (and because of which all other "things" are excluded) is simply a guarantee that employees will be allowed to make some use of compensatory time upon request, rather than an open-ended promise that employees will be able to choose (subject only to the "reasonable time" limitation) how to spend it. Ibid.

This description of the debate misses the primary thrust of petitioners' position. They do not, as the Court implies, contend that employers generally must afford employees essentially unlimited use of accrued comp time under the statute; the point is rather that rules regarding both the avail-1 It must be noted that neither petitioners' brief nor the brief for the United States as amicus curiae actually relies upon this canon. Indeed, the sole mention of it in either brief is in petitioners' statement of the case, in which petitioners refer in a single sentence to an argument made by the Court of Appeals for the Eighth Circuit in Heaton v. Moore, 43 F. 3d 1176 (1994) (rejecting compelled-use policy absent agreement to that effect), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995).


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