PLAINTIFF NO. 1 v. USA

Filing 63

REPORTED OPINION AND ORDER (re-issuance of May 20, 2021 Sealed Opinion and Order for Publication ECF No. 62.). Signed by Judge Stephen S. Schwartz. (cmc) Service on parties made.

In the United States Court of Federal Claims
No. 19-1019C
(Filed Under Seal: May 20, 2021)
(Reissued: June 4, 2021)*
FOR PUBLICATION
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PLAINTIFF NO. 1,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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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
Pursuant to the protective order in this case, the Court initially filed this opinion under seal on
May 20, 2021, for the parties to propose redactions of confidential or proprietary information. The
parties were directed to propose redactions by June 3, 2021. The parties notified the court via email
on June 3 that there were no proposed redactions. The Court hereby releases publicly the opinion and
order of May 20 in full.
1 This case is subject to a protective order to avoid disclosing Plaintiff’s identity or job description.
Protective Order (ECF 14).
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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

Count III alleges entitlement to various other types of damages and compensation should Plaintiff
prevail on the merits. See Am. Compl. ¶¶ 46–47.
3 Def.’s Mot. to Dismiss (ECF 38); Pl.’s Resp. (ECF 55); Def.’s Reply (ECF 59).
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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,
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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;

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 1333–34, 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).
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(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 continuance of his
employment would be adversely affected by nonattendance.
29 C.F.R. § 785.28. Another explains what it means for training to be “directly related
to the employee’s job”:
The training is directly related to the employee’s job if it is designed to
make the employee handle his job more effectively as distinguished from
training him for another job, or to a new or additional skill.… Where a
training course is instituted for the bona fide purpose of preparing for
advancement through upgrading the employee to a higher skill, and is
not intended to make the employee more efficient in his present job, the
training is not considered directly related to the employee’s job even
though the course incidentally improves his skill in doing his regular
work.
29 C.F.R. § 785.29.
OPM’s regulation takes a different approach. Unlike DOL, OPM provides that
after-hours training time is not work unless certain conditions are met:
Time spent in training outside regular working hours shall be
considered hours of work if:
(i) The employee is directed to participate in the training by his or her
employing agency; and
(ii) The purpose of the training is to improve the employee’s performance
of the duties and responsibilities of his or her current position.
5 C.F.R. § 551.423(a)(2). OPM defines its terms in ways that resemble DOL’s:
(1) Directed to participate means that the training is required by the
agency and the employee’s performance or continued retention in his or
her current position will be adversely affected by nonenrollment in such
training. The fact that an agency pays for all or part of the expenses of
training does not create an entitlement to overtime hours of work unless
participation in the training is directed by the agency.
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(2) Training “to improve the employee’s performance * * * of his or her
current position” is distinguished from upward mobility training or
developmental training to provide an employee the knowledge or skills
needed for a subsequent position in the same career field.
5 C.F.R. § 551.423(b).
II. Analysis
Plaintiff has adequately pleaded claims within this Court’s jurisdiction. He has
alleged that his training was work under FLSA. He has also pleaded that the training
was compensable under both DOL and OPM regulations. 29 C.F.R. § 785.27; 5 C.F.R.
§ 551.423(a)(2). But because the OPM regulations appear to be invalid, further
proceedings will be needed to clarify the applicable law.
A. The Court has Jurisdiction to Hear Plaintiff’s Claims
Before deciding a case, the Court must determine that it has jurisdiction over
the matters before it. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986); Vargas v. United States, 114 Fed. Cl. 226, 232 (2014). I conclude that
jurisdiction exists.
1. Plaintiff’s Claims are Within the Tucker Act’s Grant of Jurisdiction
The United States Court of Federal Claims has jurisdiction under the Tucker
Act to adjudicate “any claim against the United States founded either 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). The Tucker Act, however, is “a jurisdictional
statute; it does not create any substantive right enforceable against the United States
for money damages.… [T]he Act merely confers jurisdiction upon [the United States
Court of Federal Claims] whenever the substantive right exists.” 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)).
“[J]urisdiction under the Tucker Act requires the litigant to 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). A
plaintiff must point to 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)).
A plaintiff must also make “a nonfrivolous assertion that it is within the class of
plaintiffs entitled to recover under the money-mandating source.” Id.
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
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the FLSA.”) (citation omitted). Plaintiff’s non-frivolous allegation that he is an FLSA
non-exempt government employee, entitled to overtime compensation withheld in
violation of FLSA, places him within the class of individuals entitled to recover. This
Court therefore has jurisdiction to adjudicate his claims.
2. Plaintiff’s Claims are Timely
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 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
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 alleges that he began the DCAC on January 4, 2018 and completed it
on March 2, 2018. Am. Compl. ¶ 8. He filed his complaint on July 7, 2019, less than
two years later. See Compl. (ECF 1). His claims are therefore within the limitations
period, regardless of whether the alleged violations were willful.
B. Plaintiff has Pleaded Work under FLSA
Defendant’s first argument for dismissal is that Plaintiff failed to plead that
his participation in the DCAC constituted “work” for FLSA purposes. See Mot. at 10.
As explained above, to plead that the DCAC qualified as work, Plaintiff must allege
that it was (1) “for the benefit” of DOD, 5 C.F.R. § 551.401(a); (2) “controlled” by DOD,
id., and (3) “suffered or permitted” by DOD, meaning his supervisors “kn[ew] or ha[d]
reason to believe that the work [was] being performed and ha[d] an opportunity to
prevent the work from being performed,” 5 C.F.R. § 551.104. See also Bull, 68 Fed.
Cl. at 222; Abou-el-Seoud, 136 Fed. Cl. at 570. Although Plaintiff’s allegations are not
as detailed as they might ideally be, they satisfy those elements at the pleading stage.
First, Plaintiff has pleaded that the DCAC was “for the benefit of an agency.”
5 C.F.R. § 551.401(a). “To benefit the employer, an activity need not be ‘productive’
— rather, it must be necessary to the accomplishment of the employee’s principal
duties to the employer.” Bull, 68 Fed. Cl. at 223 (citing Tenn. Coal, 321 U.S. at 599).
Plaintiff has alleged that the DCAC allowed him to more effectively perform his job
as a staff officer. Am. Compl. ¶¶ 9–10. It is plausible that DOD benefits when staff
officers can better perform their tasks. See Harbourt v. PPE Casino Resorts
Maryland, LLC, 820 F.3d 655, 657–60 (4th Cir. 2016) (reasoning that a casino was
benefited by having a work force trained to its specifications on Maryland’s first day
of legalized gambling). Plaintiff also alleged his belief that he would have been
removed from his staff officer position if he did not complete the DCAC. Am.
Compl. ¶ 12. One plausible inference is that the DCAC was necessary to his principal
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duties, and at the pleading stage, all inferences must be drawn in Plaintiff’s favor.
Cary, 552 F.3d at 1376.
Second, Plaintiff has pleaded that his DCAC time was controlled by DOD. 5
C.F.R. § 551.402(a); see also Bull, 68 Fed. Cl. at 222. Plaintiff alleges that the training
had to be done “inside of a secure access facility,” Am. Compl. ¶ 16, and that the
activities he performed there were mandatory and necessary to complete the course,
id. ¶¶ 15–16. Taking those allegations as true, DOD had the keys, and it let Plaintiff
in to do specific tasks. That gives rise to a plausible inference that the coursework
was “controlled or required.” See Bull, 68 Fed. Cl. at 222.
Third, Plaintiff has pleaded that the DCAC coursework “was known or
reasonably should have been known by the employer to have been performed.” Bull,
68 Fed. Cl. at 222. Here, again, DOD informed trainees that the DCAC would require
work at nights and on weekends, Am. Compl. ¶ 13, the coursework was both
mandatory and necessary, id. ¶¶ 15–16, and it had to be completed in a secure access
facility, id. ¶ 16. DOD presumably had knowledge of and control over who accessed
the facility. It is reasonable to infer not only that DOD was aware of what training
activities were being performed outside regular working hours, when, and by whom,
but that DOD had the literal ability to “prevent” after-hours training by closing the
secure facility. 5 C.F.R. § 551.104.
Defendant points out — inter alia — that the amended complaint does not
address whether “each task performed” in connection with the DCAC satisfied those
three criteria or whether DCAC instructors knew what Plaintiff was doing “on any
specific day.” Mot. at 10. Yet Defendant cites no authority requiring Plaintiff to plead
at that level of particularity. Those objections — and other similar arguments — are
better directed to the merits and to the quantum (if any) of Plaintiff’s eventual
damages. For present purposes, Plaintiff’s pleadings are adequate.
C. Plaintiff has Pleaded a Claim Under the DOL Regulations (Count I)
Count I alleges that DOD failed to properly compensate Plaintiff for overtime
pay under FLSA, as interpreted by DOL’s regulations. See 29 C.F.R. § 785.27. As a
federal employee, Plaintiff is presumptively covered by OPM overtime regulations,
not DOL regulations. Abou-el-Seoud, 136 Fed. Cl. at 563 n.24. Plaintiff argues that
the OPM regulations are invalid because they conflict with DOL regulations, and that
the DOL regulations therefore apply instead. Resp. at 21–27. I agree that OPM’s
regulations appear to be invalid, at least at this stage of the case, and that — if DOL
standards apply — Plaintiff has adequately pleaded a claim under DOL regulations.
Nonetheless, the correct legal standard will require clarification before the Court can
resolve the merits.
1. The OPM Regulation Appears to be Invalid
As previously noted, OPM’s regulations implementing FLSA are supposed to
be consistent with DOL’s. Billings, 322 F.3d at 1333. If OPM’s regulations are not
consistent with DOL’s, the question is “whether the OPM interpretation of the statute
is reasonable, as well as whether any difference between OPM’s interpretation and
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the Labor Department standard is required to effectuate the consistency of
application of the provision to both federal and non-federal employees.” Id. at 1334.
If inconsistent OPM regulations do not meet that test, they are invalid. See Am. Fed’n
of Gov’t Emps., 821 F.2d at 771.
Defendant objects that Plaintiff’s pleadings lack an express challenge to the
validity of OPM regulations. Mot. at 12–13. But no such express challenge is required.
“Federal pleading rules call for ‘a short and plain statement of the claim showing that
the pleader is entitled to relief’; they do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 11 (2014) (quoting Fed. R. Civ. P. 8(a)(2)) (citation
omitted); see also 5 Fed. Prac. & Proc. Civ. § 1219 n.8 (3d ed.). Here, Plaintiff has
identified a claim based on DOL regulations. Defendant moved to dismiss on the
ground that those regulations are inapplicable, Plaintiff opposed, and Defendant filed
a reply. Nothing further is required to bring the issue to the Court’s attention.
Turning to the DOL and OPM regulations, I first look to the text of the relevant
regulations to determine whether a conflict exists. See Angelo v. United States, 57
Fed. Cl. 100, 114 (2003). The two regulations are as follows:
DOL: 29 C.F.R. § 785.275

OPM: 5 C.F.R. § 551.423(a)(2)

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

(2) Time spent in training outside
regular working hours shall be
considered hours of work if:

(a) Attendance is outside of the
employee’s regular working hours;

(i) The employee is directed to
participate in the training by his or her
employing agency; and

(b) Attendance is in fact voluntary;

(ii) The purpose of the training is to
(c) The course, lecture, or meeting is not improve the employee’s performance of
the duties and responsibilities of his or
directly related to the employee’s job;
her current position.
and
(d) The employee does not perform any
productive work during such
attendance.

Defendant claims that the proper DOL comparator is not 29 C.F.R. § 785.27, but 29 C.F.R. § 553.226.
Reply at 2. That misunderstands the regulatory structure. DOL and OPM set out general rules for
training time in Section 785.27 and Section 551.423, respectively. Section 553.226 creates an exception
to DOL’s rule for certain training for State and local government employees. Contrary to Defendant’s
interpretation, it is not a more specific provision that displaces Section 785.27. See 29 C.F.R.
§ 553.226(a) (noting that “general rules for determining the compensability of training time under the
FLSA are set forth in” Section 785.27 and following provisions); see also Misewicz v. City of Memphis,
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At least two material inconsistencies are evident. For one, OPM regulations
shift the burden of proving that training is compensable work from the employer to
the employee. DOL’s regulation presumes that training time is work, but “need not
be counted as work” upon proof of certain criteria. 29 C.F.R. § 785.27. If one criterion
in the regulation’s test is unmet, training time must be classified as work. OPM’s
regulation includes similar factors, but in the opposite way. It presumes that training
time is not work, but “shall be counted as work” if the criteria are all proven. 5 C.F.R.
§ 551.423(a)(2). To show that their training time is compensable work, employees
covered by OPM must affirmatively prove each element.
The difference is even starker when one examines how the elements of the two
regulations interact. Both regulations look to whether the training is voluntary. See
5 C.F.R. § 551.423(a)(2)(i); 29 C.F.R. § 785.27(b). Both also look to whether the
training is intended to improve the employee’s performance in his current job. See 5
C.F.R. § 551.423(a)(2)(ii); 29 C.F.R. § 785.27(c); see also 29 C.F.R. § 785.29 (“The
training is directly related to the employee’s job if it is designed to make the employee
handle his job more effectively as distinguished from training him for another job, or
to a new or additional skill.”). An employee covered by DOL regulations can obtain
compensation if the training was required or if it was designed to improve his job
performance. An employee covered by OPM regulations must prove that it was
required and that it was designed to improve his performance. The regulations are
therefore inconsistent. See Am. Fed’n of Gov’t Emps., 821 F.2d at 771 (holding OPM
regulations were inconsistent with DOL’s because they shifted a presumption from
the employer to the employee).
A second inconsistency intrudes as well. As discussed below, Defendant seeks
to dismiss Plaintiff’s OPM regulation claims on the ground that the DCAC is “entry
level training,” non-compensable under 5 C.F.R. § 551.423(a)(3). That regulation —
an exception for training that would otherwise be compensable work — provides that
generally “[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[.]” No similarly broad exception for entry-level training seems to
exist in DOL regulations. See Reply at 3 (proposing comparisons between 5 C.F.R.
§ 551.423(a)(3) and DOL regulations). 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). DOL’s exceptions are distinctly narrower
Tenn., 771 F.3d 332, 341 (6th Cir. 2014) (“[W]e hold that the plain text of § 553.226, its legislative and
regulatory history, and DOL Opinion Letters on § 553.226 all indicate that this section provides a
stand-alone exception to the general rule that training time is compensable.”). As discussed below,
OPM has exceptions analogous to Section 553.226.
Comparing DOL’s Section 553.226 exception and OPM’s Section 551.423 general rule would
be misleading because the two provisions do not have analogous roles in the agencies’ regulatory
systems. Defendant’s lengthy discussion thus adds up to little because it is apples-to-oranges. An
apples-to-apples comparison, rather, calls for first matching up the two agencies’ general rules on
training time, then doing the same with analogous exceptions.

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than the OPM exception Defendant asserts as a basis for dismissal. See 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).
In at least two places relevant to this case, in short, OPM’s regulations diverge
from DOL’s in ways that are unfriendly to federal employees. That inconsistency calls
for the analysis required by Billings. See 322 F.3d at 1333.
OPM’s interpretations of FLSA are reasonable. Although FLSA’s applicability
to training is long-established, see Walling v. Portland Terminal Co., 330 U.S. 148,
151 (1947), the statute is “silent or ambiguous” on the exact test. Billings, 322 F.3d
at 1333. In the abstract, at least, there is no basis to question OPM’s stricter
approach. The problem, rather, is that Defendant has provided no reason why OPM
has diverged from DOL, let alone any explanation for why the divergence “is required
to effectuate the consistency of application of the provision to both federal and nonfederal employees.” Id. at 1334. On the contrary, OPM stated when the relevant
regulations were promulgated that it intended for them to be consistent with DOL’s.
See Federal Pay Administration Under the Fair Labor Standards Act, 45 Fed. Reg.
85659, 85660 (Dec. 30, 1980).6 As a result, in light of the noted inconsistencies, OPM
appears to have arbitrarily violated the command to hew to DOL’s interpretations.
Billings, 322 F.3d at 1333.
That conclusion is unaffected by this Court’s previous applications of OPM’s
training overtime regulations. See, e.g., Almanza v. United States, 127 Fed. Cl. 521,
528 (2016), aff’d, 935 F.3d 1332 (Fed. Cir. 2019); Bull, 68 Fed. Cl. at 255–56. Neither
case resolved a Billings challenge to the regulations’ validity.7 Nor is there any ruling
from the Federal Circuit that the OPM training overtime regulations are valid. See,
e.g., Crusan v. United States, 86 Fed. Cl. 415, 428, aff’d sub nom. Federico v. United
States, 374 F. App’x 15 (Fed. Cir. 2009), and aff’d, 374 F. App’x 18 (Fed. Cir. 2009)
(declining to apply Billings where clear circuit precedent addressed “driving time”
regulations).
Defendant might seek to justify OPM’s course on factual grounds later in this
case. I express no position on whether such an effort would be procedurally proper,
or on whether it would prevail. At this stage of the case, it appears that OPM’s
training time regulations — 5 C.F.R. § 551.423(a)(2)–(3) — are invalid.
2. Plaintiff has Pleaded Compensable Work Under DOL Regulations
Plaintiff assumes that if OPM’s regulations are invalid, the Court should
simply apply DOL’s regulations instead. Resp. at 27 & n.14.8 That is surely mistaken.
DOL’s regulation has not changed since OPM’s was promulgated. 29 C.F.R. § 785.27 (1980).
The Federal Circuit found that a Billings challenge to 5 C.F.R. § 551.423(a) in Almanza was waived
where the challenge was first raised on appeal. Almanza, 935 F.3d at 1337 (citing M-I Drilling Fluids
UK Ltd. v. Dynamic Air Ltda., 890 F.3d 995, 1000 n.1 (Fed. Cir. 2018)).
8 Defendant may adopt that assumption as well. See Mot. at 12 (“[T]he Court may consider applying
DOL’s regulation instead of OPM’s[.]”); Reply at 2 (“[P]laintiff is a Federal employee whose entitlement
6
7

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When it comes to federal workers like Plaintiff, Congress has granted FLSA
administrative authority to OPM, not DOL. 29 U.S.C. § 204(f). If OPM’s regulations
are invalid, it does not follow that the Court should automatically apply a different
set of regulations, covering a different set of workers, promulgated by a different
agency with a different scope of authority that has been expressly displaced in this
case by statute. See Adams v. United States, 40 Fed. Cl. 303, 306–07 (1998) (“Caution
dictates against simply importing DoL-created standards into the federal sector
without any conscious rulemaking at either DoL or OPM.”). Besides, DOL’s
regulations in this area are not binding. They only “provide a ‘practical guide for
employers and employees as to how the office representing the public interest in its
enforcement will seek to apply it.’” 29 C.F.R. § 785.2 (quoting Skidmore, 323 U.S. at
138). Although cases addressing federal employees treat DOL’s regulation as
persuasive authority, see Akpeneye v. United States, 990 F.3d 1373, 1382 (Fed. Cir.
2021) (applying Skidmore deference and ultimately rejecting a DOL interpretation),
identifying the proper legal standards in this case will require further development.
But whatever weight DOL’s regulations may deserve, I address Plaintiff’s claims
under those regulations. While the allegations are somewhat thin, they are adequate
for the pleading stage.
Under the DOL regulation, 29 C.F.R. § 785.27, training time is compensable
unless four elements are met: (1) The training must be “outside of the employee’s
regular working hours”; (2) attendance must be “in fact voluntary”; (3) the training
must not be “directly related to the employee’s job,” as defined by 29 C.F.R. § 785.29;
and (4) the employee must not “perform any productive work” while in training. There
appears to be no dispute, at this stage, that the portion of the DCAC training for
which Plaintiff seeks compensation took place outside working hours and was not
itself productive for DOD. Count I instead hinges on Plaintiff’s allegation that his
after-hours training time was not voluntary and was directly related to his job.
First, as to voluntariness, DOL regulations provide that training attendance is
not voluntary when the employee “is given to understand or led to believe that his
present working conditions or the continuance of his employment would be adversely
affected by nonattendance.” 29 C.F.R. § 785.28. Plaintiff alleges that he believed he
would be removed from his role if he failed to take or pass the DCAC. Am. Compl.
¶ 12. It is reasonable to infer that he had a basis for that belief. He alleges that he
was informed that the DCAC would necessitate after-hours and weekend work.
Id. ¶ 13. All coursework was mandatory, and after-hours work was necessary to
complete the course. Id. ¶¶ 15–16. Taken together, those allegations suggest a
plausible inference that after-hours DCAC coursework was essential for Plaintiff to
keep his job. Plaintiff has therefore pleaded adequately that attendance at the DCAC
was involuntary within the meaning of DOL regulations.
Second, as to the relationship between the DCAC and Plaintiff’s work, DOL
has provided that training is “directly related” to an employee’s job when it is
to overtime pay is governed by OPM’s regulations, not DOL’s, unless OPM’s regulations are
determined to be invalid.”).

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“designed to make the employee handle his job more effectively as distinguished from
training him for another job.” 29 C.F.R. § 785.29. It is plausible that the DCAC served
just such a purpose. Plaintiff has pleaded that the DCAC allowed him to “gain the
knowledge necessary to conduct the diverse duties of a defense counterintelligence
agent.” Am. Compl. ¶ 9. Staff officers who complete the DCAC “receive a badge and
credentials, which permit them to more effectively conduct meetings and activities in
support of missions.” Id. ¶ 10. Plaintiff, again, alleged his belief that he would be
removed from his job if he did not take the course, id. ¶ 12, that the DCAC would
require after hours and weekend work, id. ¶ 13, and that all the work involved in the
DCAC was necessary, id. ¶¶ 15–16. The thrust of those allegations is that the afterhours DCAC coursework taught Plaintiff how to do his job better. He has therefore
pleaded that the training was directly related to the position he held at the time.
Defendant’s responses — like most of the authorities Defendant relies on —
involve the merits, not the adequacy of Plaintiff’s pleadings. Defendant argues, for
example, that Plaintiff insufficiently alleged that after-hours and weekend time, as
opposed to the DCAC in general, was involuntary or directly related to Plaintiff’s job.
Mot. at 13–14. Defendant does not clearly explain its distinction between the DCAC
and the required coursework, especially given Plaintiff’s allegation — which must be
taken as true — that the after-hours coursework was itself mandatory and necessary
to complete the course. See Am. Compl. ¶¶ 12–13, 15–16. Questions about what
aspects of the DCAC were after-hours, involuntary, and directly related to Plaintiff’s
job go to the merits and to the amount of damages.
Defendant likewise argues that the DCAC taught Plaintiff new skills necessary
to do the job he was hired for. Mot. at 14–15; Reply at 6–8 (citing Bienkowski v. Ne.
Univ., 285 F.3d 138 (1st Cir. 2002), and Chao v. Tradesmen Int’l, Inc., 310 F.3d 904
(6th Cir. 2002)). That may ultimately be correct on the merits, but at the pleading
stage all reasonable inferences must be drawn in Plaintiff’s favor, see, e.g., Cary, 552
F.3d at 1376, and Plaintiff has plausibly alleged that the DCAC was at least partly
directed at improving his performance in the job he held. See Am. Compl. ¶¶ 9, 12.
Defendant raises other objections along similar lines, but none justifies dismissal at
this stage.
D. Plaintiff has Pleaded a Claim Under OPM Regulations (Count II)
Count II alleges that DOD failed to properly compensate Plaintiff for overtime
pay under FLSA, as implemented by OPM regulation. See 5 C.F.R. § 551.423(a)(2).
As previously discussed, the OPM regulations appear to be invalid. Because the
parties have not directly briefed how Count II should be disposed of if the OPM
regulations are invalid, I address Count II for the sake of completeness, and conclude
that Plaintiff has adequately alleged that claim as well.
The OPM regulation, again, provides that “time spent in training outside
regular working hours shall be considered hours of work if: (i) The employee is
directed to participate in the training by his or her employing agency; and (ii) The
purpose of the training is to improve the employee’s performance of the duties and
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responsibilities of his or her current position.” Id. OPM has defined “directed to
participate” and training “to improve the employee’s performance” in much the same
way that DOL defined voluntariness and the relationship or training to the
employee’s job. 5 C.F.R. § 551.423(b)(1)–(2).
Analysis of Plaintiff’s pleadings as to the OPM regulation therefore resembles
the foregoing analysis of Plaintiff’s claims under the DOL regulation. Unlike the DOL
regulation, the OPM regulation requires Plaintiff to plead both elements
(involuntariness and a relationship to his current position) to set out a claim for
uncompensated training time. But as set out above, Plaintiff has done so. Plaintiff
has adequately pleaded that “continued retention in his … current position” would
have been “adversely affected by nonenrollment in” the DCAC, 5 C.F.R.
§ 551.423(b)(1), and was therefore “directed to participate.” He has also adequately
pleaded that the DCAC was intended “to improve [his] performance [in his] current
position.” 5 C.F.R. § 551.423(a)(2)(ii). Defendant’s objections to the sufficiency of the
pleadings in fact go to the merits or the quantification of damages.
Defendant’s principal legal response is that the DCAC is an “entry-level”
training program, and that time spent in the course therefore is not compensable.9
Mot. at 15; 5 C.F.R. § 551.423(a)(3). The relevant regulation provides as follows:
Time spent in apprenticeship or other entry-level training, or internship
or other career related work study training, or training under the
Veterans Recruitment Act (5 CFR part 307) outside regular working
hours shall not be considered hours of work, provided no productive
work is performed during such periods, except as provided by
§ 410.402(b) of this chapter and paragraphs (f) and (g) of § 551.401.
5 C.F.R. § 551.423(a)(3). Plaintiff’s claims should not be dismissed on that ground
unless the only plausible inference from the pleadings is that the DCAC is an entrylevel training. See Mayor & City Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d
129, 139 (2d Cir. 2013) (dismissing where “[e]ven reading the complaints in the light
most favorable to Plaintiffs … only one plausible inference” was possible); see also,
e.g., T-Mobile USA, Inc. v. Huawei Device USA, Inc., 115 F. Supp. 3d 1184, 1192 (W.D.
Wash. 2015) (“There may be other plausible inferences, but that makes no difference
on a motion to dismiss.”). That is not the case here.
Absent a regulatory definition, words are afforded their plain and ordinary
meanings. Tesoro Hawaii Corp. v. United States, 405 F.3d 1339, 1346 (Fed. Cir. 2005)
Other objections are further afield. Defendant argues at length that Plaintiff’s claims should be
dismissed under a DOL regulation providing that “[p]olice officers or employees in fire protection
activities” who live at a job training site can only obtain compensation for time they spend “in class or
at a training session,” not time they may spend on “personal pursuits.” Reply at 4–5 (citing 29 C.F.R.
§ 553.226(c)). Plaintiff is not a police officer or a fireman, does not allege that he lives at the DCAC
site, and does not allege that he should be compensated for personal time. Defendant relies on another
section of the same regulation addressing training for employees of “State and local governments,”
Reply at 5–6 (citing 29 C.F.R. § 553.226(b)), which is also textually inapplicable. Nor is there any
textual basis to read “similar carve-outs” into the OPM regulations. Id. at 8.
9

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(citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414–15 (1945)).
Dictionaries suggest that “entry-level” training refers to training for new employees
with little experience in the field.10 The dictionary definitions are consistent with the
term’s use in the regulation, where “entry-level” accompanies the terms
“apprenticeship,” “internship,” and “work study training” in the regulation. 5 C.F.R.
§ 551.423(a)(3); see United States v. Williams, 553 U.S. 285, 294 (2008) (explaining
that meanings of terms “are narrowed by the commonsense canon of noscitur a sociis
— which counsels that a word is given more precise content by the neighboring words
with which it is associated”).
It is certainly conceivable that the DCAC falls into that definition. Mot. at 16
(arguing that the DCAC “is an entry-level course for anyone, no matter how long they
have been in the counterintelligence field, to specifically become a defense
counterintelligence agent for the United States”). But Plaintiff’s pleadings suggest
the contrary inference just as easily. Plaintiff alleges that he had been employed in
his staff officer position since 2017, Am. Compl. ¶ 7, and had many years of
intelligence experience before beginning as a staff officer. Id. ¶ 18. Unlike in Stevens
v. Holder, where the plaintiffs alleged that “they were accepted into an FBI training
program as new agents employed in a probationary capacity” and were therefore held
to be entry-level employees, 966 F. Supp. 2d 622, 643 (E.D. Va. 2013), Plaintiff’s
pleadings can be taken to mean that the DCAC is more advanced. The parties will
presumably develop a record on the content and purpose of the DCAC, as well as the
entry and retention requirements for Plaintiff’s job. Even to identify those issues,
though, illustrates that they are factual questions, not to be resolved on the pleadings.
The motion to dismiss Count II is therefore denied.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF 38) is
DENIED.
The parties shall submit a joint status report no later than June 21, 2021
proposing further proceedings. As discussed above, although Plaintiff has adequately
pleaded claims under both OPM and DOL regulations, it appears that the former
regulations are invalid, and the latter regulations lack the force of law in this case.
Because the parties have not briefed the subject, the report should address how the
Court should proceed given the uncertainty over the governing law. The parties shall
also address completion of briefing on Plaintiff’s motion to certify a class (ECF 26).
See
Entry-level,
American
Heritage
Dictionary
of
the
English
Language,
https://www.ahdictionary.com/word/search.html?q=entry-level (last visited May 20, 2021) (“1.
Appropriate for or one who is new to something, such as a job or activity,” “2. Of or relating to a job or
position that requires little experience and is low in a hierarchy,” or “3. Appropriate for a beginner;
basic.”);
Entry-level,
Oxford
English
Dictionary,
https://www.oed.com/view/Entry/249639?rskey=QXRd7g&result=1&isAdvanced=false#eid
(last
visited May 20, 2021) (“Designating a job, academic course, etc., occupying the lowest level in a
hierarchy and available to or suitable for people with relatively little relevant experience; of or relating
to such a job, course, etc.”).
10

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Pursuant to the Court’s September 30, 2019 Protective Order (ECF 14), this
Opinion has been issued under seal. The parties shall have two weeks to propose
redactions and, accordingly, shall file notice of their proposed redactions no later than
June 3, 2021. 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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