Nigg v. USPS

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT NIGG; KEITH LEWIS, as 

private attorney generals and on

behalf of themselves and all others

similarly situated, No. 05-55650

Plaintiffs-Appellants,

D.C. No.

and

 CV-03-01611-GLT

GINA HARRELL, ORDER AND

Plaintiff, OPINION

v.

UNITED STATES POSTAL SERVICE,

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Gary L. Taylor, District Judge, Presiding

Argued and Submitted

April 9, 2007—Pasadena, California

Filed February 4, 2009

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and Ronald M. Whyte,* District Judge.

Opinion by Judge McKeown

*The Honorable Ronald M. Whyte, United States District Judge for the

Northern District of California, sitting by designation.

1199

1202 NIGG v. USPS

COUNSEL

Daniel A. Osborn, Beatie & Osborn, LLP, New York, New

York, for the appellants.

Leon W. Weidman and Jason K. Axe, Assistant United States

Attorneys, Los Angeles, California, for the appellee.

ORDER

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1071, is withdrawn.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.

OPINION

McKEOWN, Circuit Judge:

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 inspector1 cur-

rently employed by the United States Postal Service (“the

1

In general, postal inspectors undertake criminal, civil and administra-

tive investigations involving the postal laws. See Sprague v. United States,

677 F.2d 865 (Cl. Ct. 1982) (explaining postal inspectors’ job duties).

NIGG v. USPS 1203

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

1204 NIGG v. USPS

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 dis-

trict 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.

ANALYSIS

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

[1] In 1938, Congress enacted the FLSA to improve “con-

ditions detrimental to the maintenance of the minimum stan-

dard 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 par-

ticular, individuals employed by the Postal Service. See id.

NIGG v. USPS 1205

§ 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 require-

ments. See id. § 213. For example, § 213(a)(1) exempts “ad-

ministrative” 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 fed-

eral 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. See Postal Inspection Service Com-

pensation Task Force: Pay Comparability for Postal Inspec-

tors Report, June 1991.

C. THE LAW ENFORCEMENT AVAILABILITY

PAY ACT (“LEAP”)—1994

In 1994, Congress enacted LEAP, codified at 5 U.S.C.

§ 5545a, amending FLEPA and ending administratively

uncontrollable overtime for most federal law enforcement

agents, though some federal agents still receive AUO pay. See

Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994). LEAP

requires that covered federal law enforcement officers, in

addition to their regular work schedule, be available to work

an average of two extra hours per day. 5 U.S.C.

1206 NIGG v. USPS

§ 5545a(d)(1). If a law enforcement officer averages two extra

hours of availability each work day for the whole year, then

the officer is entitled to additional pay in the amount of 25%

of the annual base pay. See 5 U.S.C. § 5545a(h).

Because postal inspectors were not included in FLEPA,

they were not included in LEAP, which basically sought to

revise the FLEPA pay regime. See id. § 2105(e) (“Except as

otherwise provided by law, an employee of the United States

Postal Service or of the Postal Rate Commission is deemed

not an employee for purposes of this title.”); see also Nigg v.

Merit Sys. Prot. Bd., 321 F.3d 1381, 1384 (Fed Cir. 2003). To

protect federal agencies from having to pay law enforcement

officers both LEAP and FLSA overtime, Congress amended

the FLSA to exempt officers who received LEAP from

receiving FLSA overtime. See 29 U.S.C. § 213(a)(16).

D. POSTAL INSPECTORS’ COMPENSATION, 39 U.S.C.

§ 1003(c)—1996

[2] In 1996, Congress passed 39 U.S.C. § 1003(c) to raise

the salaries and benefits paid to postal inspectors to corre-

spond with the compensation for investigators from other fed-

eral agencies. Section 1003(c) provides:

Compensation and benefits for all Postal Inspectors

shall be maintained on a standard of comparability to

the compensation and benefits paid for comparable

levels of work in the executive branch of the Gov-

ernment outside the Postal Service. As used in this

subsection, the term “Postal Inspector” included [sic]

any agent to whom any investigative powers are

granted under section 3061 of title 18.

Thus, the statute requires that compensation and benefits for

postal inspectors be comparable to that paid to executive

branch employees with comparable levels of work, but does

not define more precisely how this comparability should be

NIGG v. USPS 1207

determined. In enacting § 1003(c), Congress did not amend

the FLSA to exempt overtime pay for postal inspectors as it

did to exempt investigators receiving availability pay under

LEAP.

II. THE PARTIES’ POSITIONS

According to the Postal Service, § 1003(c) permits the

Postal Service to pay the inspectors comparably to those fed-

eral law enforcement officers who receive availability pay and

not FLSA overtime. The Postal Service claims that GS-1811

investigators in the executive branch perform comparable

work to postal inspectors and are not paid FLSA overtime

because they are exempt under LEAP, 5 U.S.C. § 5545(a),

and the LEAP amendment to the FLSA, 29 U.S.C.

§ 213(a)(16). But see Nigg, 321 F.3d at 1384 (“The provisions

of Title 5 do not apply to the Postal Service unless Congress

has specifically so provided . . . . [LEAP] section 5545a is not

one of the exceptional provisions that Congress has made

applicable to the Postal Service.”) (citations omitted).

The inspectors reject the Postal Service’s interpretation of

§ 1003(c) because it fails to give full effect to both that statute

and the FLSA’s overtime provisions. The inspectors counter

that the Postal Service could give effect to both statutes by

paying the inspectors in a similar manner to comparably

tasked executive branch investigators who receive FLSA

overtime pay.

III. RECONCILING THE STATUTES

Both the FLSA and 39 U.S.C. § 1003 address the subject

of pay for postal inspectors. As explained in the preceding

section, the FLSA’s overtime provisions apply to “any indi-

vidual employed by the United States Postal Service” unless

exempt. See 29 U.S.C. § 203(e)(2)(B). And Congress enacted

§ 1003(c) to ensure that the compensation and benefits for

postal inspectors are “maintained on a standard of compara-

1208 NIGG v. USPS

bility” to that “paid for comparable levels of work in the exec-

utive branch . . . outside of the Postal Service.” The statutory

text of the FLSA makes clear that postal inspectors are enti-

tled to overtime pay unless they are subject to a specific enu-

merated exemption, and § 1003(c) is silent on what its pay

comparability requirement entails with respect to overtime

pay.

Hence, we have two statutes addressing compensation for

postal inspectors and the question is whether they can be rec-

onciled or whether one of them trumps the other. The

Supreme Court has cautioned:

The courts are not at liberty to pick and choose

among congressional enactments, and when two stat-

utes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional

intention to the contrary, to regard each as effective.

Morton v. Mancari, 417 U.S. 535, 551 (1974).

The Postal Service’s interpretation of § 1003(c)—a statute

it is charged to administer—is entitled to deference under

Chevron U.S.A. v. Natural Resources Defense Council, Inc,

467 U.S. 837 (1984), so long as it is reasonable. See id. at

842-43. Yet, since administration of the FLSA is not the spe-

cial province of the Postal Service, the Postal Service’s inter-

pretation of the FLSA is not entitled to Chevron deference.

See Ass’n of Civilian Technicians v. Fed. Labor Relations

Auth., 200 F.3d 590, 592 (9th Cir. 2000) (“Although courts

owe Chevron deference to an agency’s construction of a stat-

ute it is charged with administering, courts do not owe defer-

ence to an agency’s interpretation of a statute it is not charged

with administering or when an agency resolves a conflict

between its statute and another statute.”).

[3] If only § 1003(c) were at issue, the Postal Service’s

construction of the statute—that § 1003(c) empowers the

NIGG v. USPS 1209

Postal Service to provide “availability pay” rather than FLSA

overtime—would be permissible under Chevron.2 However,

the Postal Service’s interpretation of § 1003(c) conflicts with

the clear meaning of the FLSA, which guarantees overtime

pay to non-exempt employees. Accordingly, the Postal Ser-

vice’s interpretation is reasonable only if the Postal Service

can establish either that § 1003(c) repealed the application of

FLSA’s overtime provisions to the inspectors, or, that the

inspectors are otherwise exempt from the FLSA. We address

each possibility in turn.

A. REPEAL BY IMPLICATION

As is evident from a chronological review of the statutes,

postal inspectors were not part of the legislative compensation

reform for law enforcement officers in 1990 and 1994. For

officers covered under the LEAP reform, Congress explicitly

amended the FLSA to exempt those officers. See 29 U.S.C.

§ 213(a)(16).

2

The postal inspectors argue that the Postal Service’s “availability pay”

system, while similar in some respects to the premium pay afforded by

LEAP, is not the same as LEAP pay. The postal inspectors note the fol-

lowing inadequacies:

[T]he Postal Service’s “availability pay” system does not com-

pensate postal inspectors for scheduled overtime as required

under LEAP; it does not properly count available hours—i.e,

[sic] when postal inspectors are required by the needs of the

Postal Service to be generally and reasonably accessible beyond

their normal workweek; and it is essentially mandatory overtime

because a postal inspector who fails to meet the hourly require-

ment will be disciplined for failing to do so.

While these perceived shortcomings in the Postal Service’s implementa-

tion of § 1003(c) may render the Postal Service’s availability pay plan

somewhat less attractive to the inspectors than LEAP, § 1003(c) does not

require that the postal inspectors’ pay and benefits be absolutely identical

to that of a specific set of executive employees, only that they be compara-

ble. Further, the question of whether the Postal Service has properly

implemented the comparability requirements of § 1003(c) in relation to

LEAP’s pay and benefits is not before us in this appeal.

1210 NIGG v. USPS

[4] In contrast to the express Congressional repeal of FLSA

in LEAP, nothing in the text of § 1003(c) repeals any portion

of the FLSA. Nor is there any amendment to the FLSA con-

temporaneous with or following the enactment of § 1003(c)

that exempts postal inspectors from overtime pay under the

FLSA. Repeals by implication are disfavored—“[t]he inten-

tion of the legislature to repeal ‘must be clear and manifest.’ ”

Morton, 417 U.S. at 551 (quoting United States v. Borden,

308 U.S. 188, 198 (1939)).

Because § 1003(c) does not reflect an intent to alter the

FLSA’s overtime provisions as applied to postal inspectors,

any claim that § 1003(c) constitutes an implied repeal falls

short of the “clear and manifest” requirement. Indeed, we

have little, if any, evidence of congressional intent in enacting

§ 1003(c), apart from the plain language of the statute.

Section 1003(c) was passed as part of an omnibus appropri-

ations bill for the Department of Defense for the fiscal year

1997. The bill, H.R. 3610, is more than 500 pages long, but

the portion relating to postal inspector compensation takes up

less than one page, and all provisions relating to the postal

service span only five pages. Nothing in the legislative history

conveys any particular view with respect to § 1003(c) and

overtime pay, apart from a general interest in ensuring pay

equity for postal inspectors.3

Significantly, we know from adoption of LEAP just two

years earlier that Congress was not unaware of the FLSA in

connection with law enforcement and postal inspector func-

3

The House Conference Report explains that the more general provi-

sions in the statute relating to the postal service created an independent

Office of the Inspector General (“IG”) for the Postal Service. See 142

Cong. Rec. H12051-02. In a deposition in this case of James K. Belz, a

Postal Service executive in charge of budget issues, Belz testified he

believed that with the creation of the IG office, longstanding pay inequi-

ties for postal inspectors had to be addressed or else the Postal Service

inspectors would all seek to leave to go to the IG’s office.

NIGG v. USPS 1211

tions. In enacting § 1003(c), Congress could have followed

the path it took in LEAP, amending the FLSA, but it did not.

The Postal Service argues that the Supreme Court’s analy-

sis in Lorillard v. Pons, 434 U.S. 575, 580-81 (1978), sug-

gests that through § 1003(c) Congress intended to maintain

the status quo of denying FLSA overtime to postal inspectors

because when “Congress adopts a new law . . . [it] can be pre-

sumed to have had knowledge of the interpretation given to

the incorporated law, at least insofar as it affects the new stat-

ute.” Id. at 581. This argument lacks traction for two reasons.

First, the presumption of Congressional awareness of existing

interpretations of a given statute ordinarily applies to situa-

tions where Congress re-enacts the same statute. See, e.g.,

Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975).

Second, as in Lorillard, where awareness of a different statu-

tory scheme is presumed, sections of that other statute were

incorporated in the statute in question; such is not the statu-

tory scheme here. 434 U.S. at 580-81.

[5] Despite the lack of evidence of congressional intent in

§ 1003(c) to repeal the FLSA, there remain two well-settled

and judicially-recognized categories of repeal by implication.

One category entails situations in which the later act covers

the entire subject of the earlier one and is plainly intended as

a substitute. See Radzanower v. Touche Ross & Co., 426 U.S.

148, 154 (1976) (citing Posadas v. Nat’l City Bank, 296 U.S.

497, 503 (1936)); In re Glacier Bay, 944 F.2d at 581. Section

1003(c) is a very narrow provision that does not touch upon

or overlap in any manner with the broad provisions of the

FLSA. Section 1003, even viewed in its entirety, cannot be

regarded as a substitute for the FLSA.

The second category of repeals by implication involves

instances in which provisions of two acts are in irreconcilable

conflict; in such case, the later act, to the extent of the con-

flict, constitutes an implied repeal of the earlier one. See In re

Glacier Bay, 944 F.2d at 581. “Irreconcilable conflict will not

1212 NIGG v. USPS

be found merely because two statutes compel different results

in a particular case. Rather, there must be a repugnancy

between the words or purposes of the two statutes.” Lujan-

Armendariz v. I.N.S., 222 F.3d 728, 744 (9th Cir. 2000) (inter-

nal quotations and citations omitted).

[6] The FLSA’s overtime provisions and § 1003(c) are not

in irreconcilable conflict if there are employees of the execu-

tive branch who (1) perform work that is comparable to the

work performed by the postal inspectors, and (2) are eligible

for FLSA overtime. The inspectors argue that the Postal Ser-

vice could have paid the inspectors the same over-time pro-

vided to Customs Officers, employees in the U.S. Secret

Service Uniformed Division, and employees of the U.S. Park

Police. However, the district court did not consider whether

employees in these positions perform work that is comparable

to that of the postal inspectors. Consequently, we reverse and

remand to the district court for the determination of whether

the postal inspectors perform work that is comparable to the

work performed by any executive branch employee who

receives FLSA over-time pay.

B. FLSA EXEMPTION

The only other way the Postal Service could comply with

both statutes and persist in its current application of § 1003(c)

is if the Postal Service were to establish that the inspectors are

not entitled to overtime pay under the FLSA. The Postal Ser-

vice cannot rely on § 1003(c) as an implicit exemption of the

inspectors from the FLSA. See Citicorp Indust. Credit, Inc. v.

Brock, 483 U.S. 27, 35 (1987) (“[W]here the FLSA provides

exemptions ‘in detail and with particularity,’ we have found

this to preclude ‘enlargement by implication.’ ”) (quoting

Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 617

(1944)).

[7] Of the specific exemptions to the FLSA, the only one

which postal inspectors potentially may satisfy is the adminis-

NIGG v. USPS 1213

trative employee exemption, which exempts from overtime

pay “any employee employed in a bona fide executive,

administrative, or professional capacity.” 29 U.S.C.

§ 213(a)(1). The Postal Service thus argues in the alternative

that the inspectors are administratively exempt, leaving the

agency free to interpret 39 U.S.C. § 1003(c) without regard

for the FLSA.

“Whether employees are exempt from the requirements of

the [FLSA] is primarily a question of fact.” Hodgson v. The

Klages Coal & Ice, Co., 435 F.2d 377, 382 (6th Cir. 1970)

(citing Walling v. Gene. Indust. Co., 330 U.S. 545, 550

(1947)). “The burden of proof rests with the agency that

asserts the exemption.” 5 C.F.R. § 551.202(c). “The criteria

provided by the regulations are absolute and the employer

must prove that any particular employee meets every require-

ment before the employee will be deprived of the protection

of the Act.” Bratt v. County of Los Angeles, 912 F.2d 1066,

1069 (9th Cir. 1990) (internal quotations and citation omit-

ted).

Relying on a 1982 United States Court of Claims opinion,

the Postal Service claims that postal inspectors are exempt

administrative employees. Sprague, 677 F.2d at 868-69. That

opinion, which references a 1976 Opinion Letter from the

Department of Labor, reflects the intensely factual nature of

an exemption determination:

In 1976, the Postal Service sought a determination

from the Wage and Hour Division, Department of

Labor, whether postal inspectors were administrative

employees within the meaning of 29 U.S.C.

§ 213(a)(1). The submissions accompanying that

request detailed the specific information the Wage

and Hour Division . . . had indicated it would need

to decide the postal inspectors’ status. . . . [T]he

Wage and Hour Division concluded: “Based on our

review of the information submitted-it is our view

1214 NIGG v. USPS

that the Postal Inspectors, all of whom meet the . . .

salary test . . . would qualify as exempt . . . employ-

ees under the special proviso for high salaried

[administrative] employees . . . . Such employees

appear to have as their primary duty the performance

of work directly related to the general business oper-

ation of their employer, including the exercise of dis-

cretion and judgment.”

Id. at 868 (quoting Letter from Ronald James, Administrator

of the Wage and Hour Division, to C. Neil Benson, Chief

Inspector, United States Postal Service (December 27, 1976)).

The inspectors argue that the duties associated with their

position have changed fundamentally since 1976. According

to the postal inspectors:

At the time of these decisions [e.g. Sprague], postal

inspectors also performed “audit” functions. The

Department of Labor’s determination that postal

inspectors were administrative employees was based,

in large part, on the performance of these audit func-

tions. As a result of the 1996 amendments to the

Postal Reorganization Act, Congress created the

Office of the Inspector General which took over the

audit functions of postal inspectors, meaning that

their primary job function became that of a law

enforcement officer. Since law enforcement officers

are not administrative employees, postal inspectors

no longer fit within the administrative employee

exemption.

In addition to being a factual question, “[t]he designation of

an employee as FLSA exempt or nonexempt ultimately rests

on the duties actually performed by the employee.” 5 C.F.R.

§ 551.202(i).

Because the grant of summary judgment was premised on

interpretation of § 1003(c), the district court did not address

NIGG v. USPS 1215

the postal inspectors’ status vis-a-vis the exemptions to the

FLSA. In particular, the court did not analyze whether, given

the changed circumstances that the inspectors allege, the

inspectors currently fall within the FLSA’s administrative

exemption based on duties actually performed.

[8] We cannot properly determine for the first time on

appeal whether there are executive branch employees who

perform work comparable to that of the postal inspectors and

who are paid FLSA over-time, and whether the inspectors are

entitled to FLSA overtime or are administratively exempt.

Thus, we reverse and remand to the district court to resolve

these issues.

IV. DISCOVERY DISPUTE

The inspectors also challenge a discovery order denying in

part their motion to compel the production of documents from

the Postal Service, but permitting the inspectors to file a less

burdensome request. Given that the inspectors may tailor their

request on remand to more precisely specify the documents

they seek, the district court did not deprive the inspectors of

relevant material altogether or clearly abuse its discretion. See

United States v. Kitsap Physicians Service, 314 F.3d 995,

1000 (9th Cir. 2002) (stating that a district court’s discovery

ruling will not be overturned in the absence of a clear abuse

of discretion) (internal quotations and citations omitted). In

any event, this discovery issue is unrelated to the district

court’s legal analysis of the text of § 1003(c), the only basis

for the court’s summary judgment ruling. See Home Indem-

nity Company v. Lane Powell Moss and Miller, 43 F.3d 1322,

1327 (9th Cir. 1995) (citations omitted) (holding that discov-

ery rulings are only reversible error if party appealing can

show prejudice).

CONCLUSION

We remand for a determination of whether there are execu-

tive branch employees who perform work comparable to that

1216 NIGG v. USPS

of the postal inspectors and who are paid FLSA overtime, and

whether the inspectors are entitled to FLSA overtime or are

administratively exempt. We affirm on the challenge to the

discovery order.

AFFIRMED in part; REVERSED in part and

REMANDED. Costs on appeal are awarded to appellants.