Doe No. 1 v. United States

In the United States Court of Federal Claims

No. 19-1747C

(Filed Under Seal: July 26, 2022)

(Reissued: August 9, 2022)

FOR PUBLICATION

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DOE NO. 1, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

*

Defendant. *

*

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Daniel M. Rosenthal, James & Hoffman, P.C., Washington, D.C., for Plaintiff.

With him on briefs were Alice Hwang and Michael Ellement, James & Hoffman, P.C.,

Washington, D.C., as well as Linda Lipsett, Jules Bernstein, and Michael Bernstein,

Bernstein & Lipsett, P.C., Washington, D.C.

Sarah E. Kramer, Trial Attorney, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C., for Defendant,

United States. With her on briefs were Brian M. Boynton, Acting Assistant Attorney

General, Robert E. Kirschman, Jr., Director, Martin F. Hockey, Jr., Acting Director,

and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C, as well as Eric A.

Huang and Monica L. Hansen, Assistant General Counsel, Federal Bureau of

Investigation, Washington, D.C.

OPINION AND ORDER

Plaintiff1 — an intelligence analyst with the Federal Bureau of Investigation

(“FBI”) — alleges that the government failed to pay him for all the time he spent

outside regular working hours completing the FBI Basic Field Training Course

(“BFTC”). He seeks backpay and related forms of relief under the Fair Labor



Pursuant to the protective order in this case, the Court initially filed this opinion under seal on

July 26, 2022, for the parties to propose redactions of confidential or proprietary information. The

parties were directed to propose redactions by August 9, 2022. The parties notified the court on

August 8 that there were no proposed redactions. The Court hereby releases publicly the opinion and

order of July 26 in full.

1 This case is subject to a protective order to avoid disclosing Plaintiff’s identity. See Protective Order

(ECF 6); Amended Protective Order (ECF 53).

Standards Act (“FLSA”) and other statutes. Defendant’s motion for summary

judgment is ripe for decision.2 But because Defendant has failed to establish that it

is entitled to judgment as a matter of law, the motion is DENIED.

BACKGROUND

The following facts are undisputed. Plaintiff is an employee of the FBI. Doe

No. 1 Decl. ¶ 3 (ECF 54-1). In 2018, Plaintiff transferred within the FBI to his position

as an intelligence analyst. Id. ¶¶ 3–4. To become an intelligence analyst, Plaintiff had

to meet certain standards and requirements, one of which was completing the BFTC.

Id. ¶¶ 5–7, 19–20; Def.’s App’x at 32–33 (ECF 48-1). Plaintiff began the BFTC on the

day of his job transfer. Doe No. 1 Decl. ¶¶ 4, 7.

The BFTC is a training program for new FBI agents and intelligence analysts.

Def.’s App’x at 32; Doe No. 1 Decl. ¶¶ 9–10, 20. Besides in-person training sessions,

the course required Plaintiff to complete various assessments and “to study

materials, work on team projects, write reports and other training documents,

prepare briefings, and prepare for and perform interviews[.]” Doe No. 1 Decl. ¶ 21;

Def.’s App’x at 5, 33–34. Some of that activity was scheduled outside working hours

or had to be completed on Plaintiff’s own time. Doe No. 1 Decl. ¶ 21. Plaintiff claims

that although he worked more than 8 hours per day and 40 hours per week during

the BFTC, he was not compensated for all overtime hours. Id.

Defendant moved to dismiss on the ground that BFTC participants are entry-

level trainees and therefore ineligible for the overtime compensation under 5 C.F.R.

§ 551.423(a)(3). See Motion to Dismiss (ECF 23). The judge previously assigned to the

case converted the motion to a motion for summary judgment, see Scheduling Order

(ECF 40), and the case was reassigned to me, Order (ECF 44).

After summary judgment briefing was complete, I denied a motion to dismiss

based on 5 C.F.R. § 551.423(a)(3) in Plaintiff No. 1 v. United States, a similar case

involving the Department of Defense Counterintelligence Agent Course. 154 Fed. Cl.

95 (2021). I held in Plaintiff No. 1 that Section 551.423(a)(3) was potentially invalid,

though I reserved the question of whether the government could eventually provide

evidence or argument sufficient to justify reliance on it. Id. at 105. After hearing oral

argument on the motion for summary judgment in this case, I ordered supplemental

2Compl. (ECF 1); Def.’s Mot. for Sum. J. (ECF 48) (“Def.’s Mot.”); Pl.’s Opp. to the Govt.’s Mot. for Sum

J. (ECF 54) (“Pl.’s Opp.”); Def.’s Reply in Supp. of Its Mot. for Sum. J. (ECF 59) (“Def.’s Reply”). I held

oral argument on Defendant’s Motion on August 18, 2021, Tr. of Oral Arg. (ECF 64) (“Tr.”), and ordered

the parties to file supplemental briefing, Order (ECF 60); see Def.’s Suppl. Br. (ECF 65); Pl.’s Suppl.

Br. in Resp. to the Govt.’s Mot. for Sum J. (ECF 66) (“Pl.’s Suppl. Br.”).

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briefing to address (1) the issue reserved in Plaintiff No. 1, and (2) the legal standard

applicable in this case if Section 551.423(a)(3) is invalid. Order (ECF 60).

DISCUSSION

I. Jurisdiction

The United States Court of Federal Claims has jurisdiction under the Tucker

Act to adjudicate “any claim against the United States founded … upon … any Act of

Congress or any regulation of an executive department … in cases not sounding in

tort.” 28 U.S.C. § 1491(a)(1). Because the Tucker Act is “a jurisdictional statute [that]

does not create any substantive right enforceable against the United States for money

damages,” United States v. Testan, 424 U.S. 392, 398 (1976) (citing Eastport S.S.

Corp. v. United States, 178 Ct. Cl. 599, 605–07 (1967)), parties asserting Tucker Act

jurisdiction must “identify a substantive right for money damages against the United

States separate from the Tucker Act itself.” Todd v. United States, 386 F.3d 1091,

1094 (Fed. Cir. 2004). That requires a “money-mandating” source of law, i.e., a statute

or regulation that “can fairly be interpreted as mandating compensation by the

Federal Government for the damage sustained and is reasonably amenable to the

reading that it mandates a right of recovery in damages.” Jan’s Helicopter Serv., Inc.

v. F.A.A., 525 F.3d 1299, 1307 (Fed. Cir. 2008) (quotes and citations omitted) (quoting

United States v. Mitchell, 463 U.S. 206, 217 (1983), and United States v. White

Mountain Apache Tribe, 537 U.S. 465, 473 (2003)).

FLSA is a money-mandating source of law. See Abbey v. United States, 745

F.3d 1363, 1369 (Fed. Cir. 2014) (“As the courts have held … for three decades, since

soon after the FLSA was extended to the federal government …, the Tucker Act

applies to a claim against the government under the monetary-damages provision of

the FLSA.”) (citation omitted). It is undisputed that Plaintiff is a government

employee bringing FLSA claims for overtime compensation, Compl. ¶¶ 1, 5; Def.’s

Mot. at 1; Doe No. 1 Decl. ¶ 3, so this Court has jurisdiction to adjudicate his money-

mandating claims.

Statutes of limitations in this Court are uniquely jurisdictional, requiring sua

sponte consideration. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 132

(2008). FLSA provides a general two-year statute of limitations for violations of

overtime payment provisions, and a three-year limitations period for willful

violations. 29 U.S.C. § 255(a). A claim accrues when “all the events which fix the

Government’s alleged liability have occurred and the Plaintiff was or should have

been aware of their existence.” Hopland Band of Pomo Indians v. United States, 855

F.2d 1573, 1577 (Fed. Cir. 1988) (emphasis omitted). “As a general rule, ‘a claim for

unpaid overtime under the FLSA accrues at the end of each pay period when it is not

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paid.’” Udvari v. United States, 28 Fed. Cl. 137, 139 (1993) (quoting Cook v. United

States, 855 F.2d 848, 851 (Fed. Cir. 1988)).

Plaintiff began the BFTC on January 7, 2018, and completed it on April 4,

2018. Doe No. 1 Decl. ¶ 7. He filed his complaint on November 12, 2019, less than two

years later. See Compl. His claims are therefore within the limitations period,

regardless of whether the alleged violations were willful.

II. Merits

Defendant argues, as in its motion to dismiss, that summary judgment should

be granted because the BFTC is “entry-level training,” which would mean that

training time outside regular working hours does not count as “hours of work” and

cannot be compensated as overtime. Def.’s Mot. at 10–13; Def.’s Reply at 11–16. As

before, Defendant cites 5 C.F.R. § 551.423(a)(3). But the regulation still does not

appear to be valid under the applicable standard — even after Defendant’s

opportunity for supplemental briefing — and Defendant therefore cannot rely upon

it. Whether Plaintiff is entitled to compensation depends, rather, on FLSA and

regulatory standards that the parties have not adequately briefed.3

A. Legal Standards

Under FLSA, “no employer shall employ any of his employees … 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). That

overtime compensation requirement applies not only to work directed by the

employer, but work that the employer “suffer[s] or permit[s].” Id. § 203(g).

Originally, FLSA exempted federal employees, who were covered instead by

separate civil service overtime laws. Billings v. United States, 322 F.3d 1328, 1333

(Fed. Cir. 2003). When Congress later extended FLSA to federal employees, see Fair

Labor Standards Amendments of 1974, Pub. L. No. 93–259, 88 Stat. 55 (1974)

(codified in relevant part at 29 U.S.C. § 203(e)(2)(A)), it preserved the parallel

regulatory frameworks for federal and non-federal employees. The Department of

Labor (“DOL”) would continue to administer FLSA with respect to private, State, and

local government employees and employers. See 29 U.S.C. § 204(a); see also Skidmore

v. Swift & Co., 323 U.S. 134, 137–38 (1944); Dufrene v. Browning-Ferris, Inc., 207

3A large portion of the parties’ briefing addresses whether the BFTC is in fact “entry-level training,”

Def.’s Mot. at 11–13; Pl.’s Opp. at 10–17; Def.’s Reply at 11–14, and whether Plaintiff’s employment

was “probationary,” Def.’s Mot. at 10–11, 17–20; Pl.’s Opp. at 17–21; Def.’s Reply at 15–16. I need not

reach those issues of fact and law — or even determine their relevance — until the parties address

them under the correct legal standard.

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F.3d 264, 267 (5th Cir. 2000); Condo v. Sysco Corp., 1 F.3d 599, 604 (7th Cir. 1993).

The Office of Personnel Management (“OPM”) now administers FLSA for most

covered federal employees and employers. See 29 U.S.C. § 204(f) (providing that, with

certain exceptions, “the Director of the Office of Personnel Management is authorized

to administer the provisions of this chapter with respect to any individual employed

by the United States”); see also 5 C.F.R. §§ 551.102(a), 551.103.

In response to concerns that extending FLSA to federal employees would

“confuse administration” of FLSA and the civil service laws, Billings, 322 F.3d at

1333, Congress charged OPM with administering FLSA “consisten[tly] with the

meaning, scope, and application established by the rulings, regulations,

interpretations, and opinions of the Secretary of Labor which are applicable in other

sectors of the economy.” Id. (quoting H.R. Rep. No. 93-913, at 28 (1974), reprinted in

1974 U.S.C.C.A.N. 2811, 2837–38); Zumerling v. Devine, 769 F.2d 745, 750 (Fed. Cir.

1985); Am. Fed’n of Gov’t Emps., AFL-CIO v. Off. of Pers. Mgmt., 821 F.2d 761, 769,

770 (D.C. Cir. 1987); see also 5 C.F.R. § 551.101(c). When OPM’s regulations are

inconsistent with DOL’s, a court must “determine whether the OPM interpretation

of the statute is reasonable, as well as whether any difference between OPM’s

interpretation and the Labor Department standard is required to effectuate the

consistency of application of the provision to both federal and non-federal employees.”

Billings, 322 F.3d at 1334.4 If the government cannot justify a deviation from DOL’s

regulations, then the OPM regulation is invalid. See Am. Fed’n of Gov’t Emps., 821

F.2d at 771.

To prevail on a motion for summary judgment, the moving party must show

“that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” RCFC 56(a). A material fact must “affect the outcome

of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).5 As such, factual disputes with no bearing on the resolution of the suit

4 The rule of consistency between OPM and DOL regulations does not appear in FLSA or its statutory

amendments. It comes from a House committee report. See Riggs v. United States, 21 Cl. Ct. 664, 681

(1990). The significance of committee reports for statutory interpretation is a matter of intense debate.

Compare Robert A. Katzmann, Judging Statutes 38 (2014) (referring to committee reports as

“authoritative” legislative history that should inform courts’ interpretation of statutes), with Brett M.

Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2122–24 (2016), and John F.

Manning, Why Does Congress Vote on Some Texts but Not Others?, 51 Tulsa L. Rev. 559, 565–70 (2016).

But there is no occasion to sort out that question here. Billings adopted the House committee’s

standard for the validity of OPM regulations, Billings, 322 F.3d at 1334, and that holding binds this

Court even if the legislative history otherwise would not. See Crowley v. United States, 398 F.3d 1329,

1335 (Fed. Cir. 2005).

5 Kraft, Inc. v. United States, 85 F.3d 602, 605 n.6 (Fed. Cir.) (“The precedent interpreting the Federal

Rules of Civil Procedure applies with equal force to the comparable Rules of the Court of Federal

Claims.”), modified on denial of reh’g, 96 F.3d 1428 (Fed. Cir. 1996).

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are not material. Id. When considering a motion for summary judgment under RCFC

56(a), the Court “must … view[] [all evidence] in the light most favorable to the

nonmoving party, and all reasonable factual inferences should be drawn in favor of

the nonmoving party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202

(Fed. Cir. 1994).

B. Section 551.423(a)(3) Impermissibly Departs from DOL Regulations

OPM has provided that — subject to exceptions the parties do not claim are

relevant here — “[t]ime spent in … entry level training … outside regular working

hours shall not be considered hours of work, provided no productive work is performed

during such periods[.]” 5 C.F.R. § 551.423(a)(3); see also 5 C.F.R. § 410.402(d)

(providing that Section 551.423 “govern[s] overtime pay for employees covered by

[FLSA] during training, education, lectures, or conferences”).6 Defendant claims that

because BFTC is entry-level training, time spent on the course outside regular

working hours does not count as compensable hours of work. Def.’s Mot. at 10–13;

Def.’s Reply at 11–16. Plaintiff responds that Section 551.423(a)(3) is inconsistent

with DOL regulations on compensation for training and is therefore invalid. Pl.’s Opp.

at 13–17.

As I explained in Plaintiff No. 1, “[n]o similarly broad exception for entry-level

training seems to exist in DOL regulations.” 154 Fed. Cl. at 105. “Instead, DOL has

exceptions for ‘bona fide apprenticeship programs,’ see 29 C.F.R. § 785.32, and

outside-working-hours training by State and local government employees when

required by law to obtain a certification, see 29 C.F.R. § 553.226(b).” Id. Because

“DOL’s exceptions are distinctly narrower than the OPM exception,” Section

551.423(a)(3)’s rule against compensation for entry-level training activities outside

working hours is inconsistent with DOL’s interpretations of FLSA. Id. (citing Am.

Fed’n of Gov’t Emps., 821 F.2d at 771 (holding that another OPM regulation was

inconsistent with DOL’s because it defined a FLSA exemption more broadly)).

Because of that departure, the OPM regulation is valid only if it is “reasonable”

and “required to effectuate the consistency of application of the provision to both

federal and non-federal employees.” Billings, 322 F.3d at 1334; Adams v. United

States, 40 Fed. Cl. 303, 307 (1998) (“OPM rules may legitimately deviate from DoL

rules if the government can justify a contrary practice.”). Otherwise, it is invalid. See

Am. Fed’n of Gov’t Emps., 821 F.2d 761 at 771.

6 Plaintiff does not claim that BFTC overtime involved “productive work” or that the allegedly

uncompensated overtime activities occurred during “regular working hours.” See 5 C.F.R.

§ 551.423(a)(3).

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OPM’s interpretation of FLSA could be reasonable, at least in the abstract.

Defendant must also explain, however, why the divergence between OPM and DOL

standards is “required to effectuate the consistency of application of the provision to

both federal and non-federal employees.” Billings, 322 F.3d at 1334. Defendant

identifies two federal statutes governing federal employment, but neither justifies

OPM’s categorical rule for entry-level training overtime.

First, Defendant points to the Government Employees Training Act (“GETA”),

which rules out overtime compensation for federal employees’ training time. See 5

U.S.C. § 4109(a)(1) (authorizing the heads of federal agencies to “pay all or a part of

the pay (except overtime, holiday, or night differential pay) of an employee of the

agency selected and assigned for training under this chapter, for the period of

training”); Def.’s Suppl. Br. at 3–4. OPM implemented that prohibition by rule.7 See

5 C.F.R. § 410.402(a) (providing that, with certain exceptions, “an agency may not

use its funds, appropriated or otherwise available, to pay premium pay to an

employee engaged in training by, in, or through Government or non-government

facilities”); 5 C.F.R. § 532.501 (defining “premium pay” to include overtime

compensation); see also 5 U.S.C. § 4118(a)(8) (authorizing OPM to implement GETA’s

training provisions). But OPM also provided that GETA — including the prohibition

on overtime for training — does not apply to federal employees covered by FLSA. See

5 C.F.R. § 410.402(d) (“Regulations governing overtime pay for employees covered by

[FLSA] during training … are found in § 551.423 of this chapter. The prohibitions on

paying premium pay … are not applicable for the purpose of paying FLSA overtime

pay.”). Because the parties do not dispute that Plaintiff is covered by FLSA, the GETA

prohibition on overtime payment for training does not apply.

Defendant argues that because OPM’s authorization for overtime pay under

FLSA is an exception to the pre-existing statutory prohibition in GETA, it should be

interpreted narrowly. Def.’s Suppl. Br. at 5–7. It is not evident what that has to do

with entry-level training specifically, considering that OPM has authorized overtime

compensation for other kinds of training. See 5 C.F.R. § 551.423(a)(2). Once OPM

permits overtime for training, excluding entry-level training is an arbitrary deviation

from FLSA. Defendant has thus failed to explain how its regulation “effectuate[s] the

7 Plaintiff disagrees that GETA prohibits overtime compensation, arguing that while “GETA does not

authorize such pay[,] … a lack of authorization is not the same as a prohibition.” Pl’s. Suppl. Br. at 5.

That is not accurate: An agency “literally has no power to act ... unless and until Congress confers

power upon it,” so everything unauthorized is prohibited. La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355,

374 (1986). Plaintiff’s contrary authority, Maine Community Health Options v. United States, holds

simply that Congress can create a payment obligation by statute, without a specific appropriation. 140

S. Ct. 1308, 1319–23 (2020).

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consistency of application of [relevant labor laws] to both federal and non-federal

employees.” Billings, 322 F.3d at 1334.

Even more fundamentally, Defendant’s theory misunderstands the nature of

rules and their exceptions. Writing an exception into a rule is simply a way of crafting

the underlying rule itself, not a distinct act that needs to be treated in special ways.

The presence of an exception in a text “result[s] from the often fortuitous

circumstance that the language available to circumscribe a legal rule or principle is

broader than the regulatory goals the rule or principle is designed to further.”

Frederick Schauer, Exceptions, 58 U. Chi. L. Rev. 871, 872 (1991). The Supreme Court

has accordingly explained that an “exception” is not to be interpreted any differently

than other statutory provisions. BP P.L.C. v. Mayor & City Council of Baltimore, 141

S. Ct. 1532, 1538–39 (2021) (“This Court has ‘no license to give statutory exemptions

anything but a fair reading.’ … Exceptions and exemptions are no less part of

Congress’s work than its rules and standards — and all are worthy of a court's

respect.”) (quoting Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366

(2019)). Put another way, there is nothing “exceptiony” about an exception that

requires reading it more narrowly or broadly than an ordinary reading of its text

requires.

That means FLSA and GETA are simply different statutes with different

domains, with the border between them established by regulation. See 5 C.F.R.

§ 410.402(d); see also Federal Pay Administration Under the Fair Labor Standards

Act, 45 Fed. Reg. 85659, 85661 (Dec. 30, 1980) (noting “that the two laws are to be

administered separately and independently”). Where FLSA applies, OPM is obligated

to hew to DOL’s interpretations. See Billings, 322 F.3d at 1333. OPM cannot depart

from the DOL interpretations simply because a different statute with a different scope

applies in other circumstances.

Second, Defendant points out that the Federal Employee Pay Comparability

Act (“FEPCA”) granted OPM authority to determine what counts as “hours of work”

for FLSA-covered employees. Def.’s Suppl. Br. at 4–5; 5 U.S.C. § 5542(c). According

to Defendant, OPM’s authority to define “hours of work” is an “important difference

between the Federal and private sector.” Id. at 4.

That might have been significant if OPM had chosen to define “hours of work”

to exclude Plaintiff’s overtime. The problem for the government is that OPM did not

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choose to define “hours of work” more narrowly than DOL.8 On the contrary, when it

promulgated Section 551.423(a)(3), OPM made clear its intention to follow DOL:

[W]e have modified our original determination to provide that time

spent in training outside regular working hours is compensable as hours

of work under the FLSA if certain specific criteria are met. This change

will bring OPM’s administration of the FLSA into line with that of the

Department of Labor in the private sector and will produce consistency

in OPM’s administration of the Act. We have modified the language in

§ 551.423. [sic] and have prepared an FPM letter to provide

supplemental instructions in response to the myriad of comments

received on this section.

Federal Pay Administration Under the Fair Labor Standards Act, 45 Fed. Reg. at

85661 (emphasis added). Defendant cannot retroactively justify Section 551.423(a)(3)

as a departure from DOL’s approach when it initially promulgated the regulation to

be consistent with DOL’s. SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).

Even if Section 551.423(a)(3) does redefine “hours of work,” Defendant has

more difficulties. The point of OPM’s authority to define “hours of work” is “to ensure

that no employee receives less pay by reason of” application of FLSA rather than

other civil service laws. 5 U.S.C. § 5542(c). The language Defendant cites, in other

words, was not a delegation of authority to depart from DOL’s interpretations, but a

direction to treat civil service protections as a floor when applying FLSA. If anything,

that underscores the importance of consistency between DOL’s interpretation of

FLSA and OPM’s implementation of FLSA for federal employees.

In short, Section 551.423(a)(3) creates a categorical rule against overtime for

entry-level training outside working hours that is not consistent with DOL’s

regulations, and Defendant has not justified the departure with any difference

between federal and private employment. See Billings, 322 F.3d at 1334. The

regulation is therefore invalid under the Billings analysis. Defendant cannot rely on

Section 551.423(a)(3) to obtain dismissal of this case or to refuse to pay overtime to

trainees.

C. Compensability of Training Under FLSA

Given that Defendant cannot rely on Section 551.423(a)(3), what is the

standard for payment of overtime for training? On that score, the parties agree —

8Defendant concedes that point. Def.’s Suppl. Br. at 5 (“In response, OPM added provisions in the

FLSA regulations to state that hours of work under Title 5 rules would also qualify as FLSA hours of

work, but did not change the FLSA hours of work rules.”).

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rightly — that the Court should apply FLSA directly, Pl.’s Suppl. Br. at 9; Def.’s

Suppl. Br. at 7, together with all valid and relevant OPM regulations.9

Section 551.423(a) reflects OPM’s effort to implement FLSA’s rules for

training-related compensation. Leaving aside the invalid carve-out for entry-level

training, the general rule for when “[t]ime spent in training outside regular working

hours” can be compensated appears in Section 551.423(a)(2) — which the parties have

barely mentioned. Almanza v. United States, 935 F.3d 1338–39. As explained in

Plaintiff No. 1, however, that provision may not be valid either because it shifts the

burden of proving compensability from the employer to the employee. 154 Fed. Cl. at

103–05.

If OPM has not validly regulated in the field, FLSA’s underlying standards

control. As mentioned above, FLSA requires employers to pay for their employees’

work. 29 U.S.C. §§ 206(a), 207(a). The statute does not define “work,” but has been

held to cover “trainees, beginners, apprentices, or learners if they are employed to

work for an employer for compensation.” Walling v. Portland Terminal Co., 330 U.S.

148, 151 (1947). FLSA does not, however, cover true students who “without any

express or implied compensation agreement, might work for their own advantage on

the premises of another.” Id. at 152. Since Walling, courts have sometimes

interpreted FLSA to distinguish between individuals’ activities in their capacity as

employees (which must be compensated as work) and their activities as students

(which need not be compensated). Ballou v. Gen. Elec. Co., 433 F.2d 109, 111–12 (1st

Cir. 1970); Bienkowski v. Ne. Univ., 285 F.3d 138, 141 (1st Cir. 2002); Chao v.

Tradesman Int’l, Inc., 310 F.3d 904, 910 (6th Cir. 2002); see Almanza v. United States,

935 F.3d 1332, 1340–41 (Fed. Cir. 2019) (finding that activities done after hours

primarily for employees’ learning and development are not “hours of work”).10

Because Defendant briefed its motion under the wrong legal standard, the

parties have not fully developed the correct one. Nor is it clear how the correct test

applies to the facts of Plaintiff’s training. I therefore cannot conclude that Defendant

9 The parties also appear to agree that DOL’s regulations might be persuasive authority in interpreting

FLSA. Pl.’s Suppl. Br. at 10; Def.’s Suppl. Br. at 7. DOL’s authority has been displaced by statute in

federal employment. 29 U.S.C. § 204(f). Nor are DOL’s regulations binding, even on their own terms.

See 29 C.F.R. § 785.2. But “while not controlling upon the courts by reason of their authority,” they

“do constitute a body of experience and informed judgment to which courts and litigants may properly

resort for guidance.” Skidmore, 323 U.S. at 140. DOL regulations might be especially persuasive if —

as discussed above — OPM intended to follow them but simply miswrote its own regulations. Whether

any particular DOL regulation is in fact persuasive can wait for further proceedings.

10 Contrary to Defendant’s argument, Def.’s Mot. at 17–20, those cases do not create a special

compensation rule for training undergone by “probationary” employees, except to the extent that an

individual’s probationary status sheds light on whether he is an employee doing compensable work.

See, e.g., Bienkowski, 285 F.3d at 141.

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has established that there is no dispute of material fact or that Defendant is entitled

to judgment as a matter of law. RCFC 56(a).

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF

48) is DENIED. The parties are ORDERED to submit a status report proposing

further proceedings no later than August 25, 2022.

Pursuant to the Court’s March 31, 2021 Amended Protective Order (ECF 53),

this Opinion has been issued under seal. The transcript of the August 18, 2022

hearing is under seal as well. The parties shall have two weeks to propose redactions

and, accordingly, shall file notice of their proposed redactions no later than August 9,

2022. To aid the Court’s evaluation of the proposed redactions and in light of the

“presumption of public access to judicial records,” Baystate Techs., Inc. v. Bowers, 283

F. App’x 808, 810 (Fed. Cir. 2008) (per curiam), each party shall file a memorandum

explaining why redactions are necessary for each item of information for which a

redaction is proposed.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ

Judge

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