Plaintiff No. 1 v. United States

• Decision Date: 20 May 2021
• Docket Number: No. 19-1019C,19-1019C
• Parties: PLAINTIFF NO. 1, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

PLAINTIFF NO. 1, Plaintiff, v. THE UNITED STATES, Defendant.

No. 19-1019C

United States Court of Federal Claims

Reissued: June 4, 2021^*

May 20, 2021

FOR PUBLICATION

Daniel M. Rosenthal, James & Hoffman, P.C., Washington, D.C., for Plaintiff. With him on briefs were Brita Zacek, James & Hoffman, P.C., Washington, D.C., as well as Linda Lipsett, Bernstein & Lipsett, P.C., Washington, D.C.

Alison S. Vicks, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. for defendant, United States. With her on briefs were Joseph H. Hunt, Assistant Attorney General, Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C, as well as Ryan E. Bull, Brian T. Critz, and Kristin B. McGrory, United States Department of Defense, Alexandria, Virginia.

OPINION AND ORDER

Plaintiff¹ — a staff officer with the Department of Defense ("DOD") — has sued for backpay under the Fair Labor Standards Act ("FLSA"). He alleges that he is entitled to compensation for time he spent outside working hours completing the DOD Counterintelligence Agent Course ("DCAC"). Plaintiff brings claims under FLSA regulations promulgated by the Department of Labor ("DOL"), see 29 C.F.R. § 785.27, and by the Office of Personnel Management ("OPM"), see 5 C.F.R. § 551.423(a)(2). See Am. Compl. ¶¶ 31-45 (ECF 36) (Counts I and II, respectively).² The Government's motion to dismiss under RCFC 12(b)(6) is ripe for decision.³

The Court holds that Plaintiff has alleged work under FLSA and — although the applicable legal standard is still in doubt — has adequately pleaded a claim under both DOL and OPM regulations. Plaintiff has also established a likely conflict between OPM and DOL regulations that would render the OPM regulations invalid under the test set forth in Billings v. United States, 322 F.3d 1328 (Fed. Cir. 2003). Accordingly, Defendant's motion to dismiss is DENIED.

BACKGROUND

The Amended Complaint alleges the following facts. Plaintiff has been employed at DOD since 2017 as an FLSA non-exempt staff officer. Am. Compl. ¶¶ 1, 7. Before then, he spent many years working in the intelligence field. Id. ¶ 18.

From January 4, 2018 through March 2, 2018, Plaintiff attended the DCAC. Id. ¶ 8. The purpose of the DCAC was "to provide graduates with the knowledge necessary to conduct the diverse duties of a defense counterintelligence agent." Id. ¶ 9. Successful attendees received a badge and credentials "permit[ing] them to more effectively conduct meetings and activities in support of missions." Id. ¶ 10. Plaintiff believed that if he did not pass the DCAC, he would eventually be removed from his position as a staff officer. Id. ¶ 12.

The course not only involved in-person training sessions, but required attendees to "study materials, write reports, prepare presentations, prepare for and perform interviews, and perform model problems." Id. ¶ 14. Those aspects of the DCAC were all "integral" to the course and "necessary" to complete it successfully. Id. ¶ 15. The coursework was "mandatory, supervised, and graded, and required to be performed inside of a secure access facility." Id. ¶ 16.

DOD informed DCAC attendees that the course "would require them to work late and on weekends." Id. ¶ 13. But DOD also informed attendees that it would not assist in tracking evening and weekend hours spent on coursework. Id. ¶ 17. Plaintiff alleges that he "regularly worked beyond 8 hours each day and/or 40 hours per week in order to complete the mandatory coursework." Id. ¶ 19.

Plaintiff was not compensated for all overtime hours he spent on the DCAC. Id. ¶ 21. DOD informed Plaintiff after he took the course that attendees may be entitled to compensation, id. ¶ 22, and ultimately paid 11 hours of overtime. Id. ¶ 23. Plaintiff spent "substantially" more time on the course, however, a fact he alleges DOD was aware of. Id. Subsequent DCAC participants were offered more than 11 hours of overtime. Id.

DISCUSSION

I. Legal Standard

A. Motion to Dismiss

When considering a motion to dismiss under RCFC 12(b)(6), the Court "must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the Plaintiff." Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Frankel v. United States, 842 F.3d 1246, 1249 (Fed. Cir. 2016) (applying Iqbal and Twombly to RCFC 12(b)(6)). A complaint should be dismissed under RCFC 12(b)(6) "when the facts asserted by the claimant do not entitle him to a legal remedy." Welty v. United States, 926 F.3d 1319, 1323 (Fed. Cir. 2019) (quoting Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)).

B. The Fair Labor Standards Act

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 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, 322 F.3d at 1333. When Congress later extended FLSA to federal employees, 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. 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 (1944); Dufrene v. Browning-Ferris, Inc., 207 F.3d 264, 267 (5th Cir. 2000); Condo v. Sysco Corp., 1 F.3d 599, 604 (7th Cir. 1993). 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, 551.103.

In response to concerns that extending FLSA to federal employees in that way 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." Billings, 322 F.3d at 1333 (quoting H.R. Rep. No. 913, 1974 U.S.C.C.A.N. 2811, at 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, 770-71 (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

Congress did not specify what constitutes "work" regulated by FLSA. Reich v. N.Y.C. Transit Auth., 45 F.3d 646, 649 (2d Cir. 1995); see also Bull v. United States, 68 Fed. Cl. 212, 221, decision clarified, 68 Fed. Cl. 276 (2005), aff'd, 479 F.3d 1365 (Fed. Cir. 2007). The definitions instead emerge in regulatory interpretations and caselaw. For OPM-regulated federal employees, "[a]ll time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is 'hours of work.'" 5 C.F.R. § 551.401(a). Work "suffered or permitted" by an agency counts if "the employee's supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed." 5 C.F.R. § 551.104. See Bull, 68 Fed. Cl. at 222; Abou-el-Seoud v. United States, 136 Fed. Cl. 537, 570 (2018). That is consistent for present purposes with the test applied in other settings. See 29 C.F.R. §§ 785.7, 785.11; Tenn. Coal, Iron & R.R. Co. v. Muscoda Loc. No. 123, 321 U.S. 590, 598 (1944), superseded on other grounds by statute, Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84, as recognized in Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27 (2014).

Both DOL and OPM have promulgated regulations applicable to time spent in after-hours training. DOL's regulation provides that training time is work, except in circumstances covered by a four-factor test:

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:

(a) Attendance is outside of the employee's regular working hours; (b) Attendance is in fact voluntary;

(c) The course, lecture, or meeting is not directly related to the employee's job; and

(d) The employee does not perform any productive work during such attendance.

29 C.F.R. § 785.27.

Some of those terms are clarified by other DOL regulations. One explains voluntariness:

Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the

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