Akpeneye v. United States ( 2021 )

Case: 20-1622 Document: 35 Page: 1 Filed: 03/15/2021
United States Court of Appeals
for the Federal Circuit
______________________
TEJERE J. AKPENEYE, JONATHAN ALLEN, SAHR
ALPHA-K, JACQUES V. ALSTON, RODOLFO
ANCHETA, JR., WAYNE A. ANTOINE, CARL
ASLAKEN, MICHAEL BAKER, ROCHELLE BANKS,
JAMES BOUYER, JR., MAIA BRADLEY,
GWENDOLYN BROWN, KEVIN L. BROWN, LORI O.
BROWN, TRACY BROWN, GEORGE BURNS,
SHAWN R. BUTTERFIELD, BRAD BYRNES, RYAN
H. CASE, CHRISTY CASSADY, JEFFREY CLUTE,
DAVID L. COUSINS, DEXTER CUMBERBATCH,
WILLIAM A. CUMMINGS, VERONICA COUTEE,
CHARLES DELUGO, LENARDO ECCLES,
BRANDYN FOX, CLYDE A. FRANKLIN, MARY B.
GREEN, NICHOLAS GUZAN, PAUL GUZAN, LARRY
W. HOLLMAND, PETER L. HOWELL, WARREN A.
HUTTON, ANTHONY W. JACKSON, JEFFREY
JOHNSON, GEORGE A. JONES, MICHAEL D.
JONES, LUKE KORNACKI, MICHAEL J. LONG,
OMAR F. MANN, CHRISLINA R. MARSHALL,
JOSEPH A. MCCRAY, KENNEST MEADOR, JAVIER
MONTERO, BERTRAND MOORE, WILLIAM
NIEVES, SR., ALBERT D. NOONAN, GREGORY
NORMAN, ROBERT OLEJNIK, LINDSAY M. ORTIZ,
ALAN PITTS, ROBERT ROBINSON, BERNARD
RUSSELL, JAVIER SANTIAGO, FRANCIS
SARPONG, FRANCIS SELPH, ROOSEVELT
SINGLETON, FRANKLIN D. TAYLOR, KEVIN
TINDAL, SR., JOHN H. TRAVIS, ALEX TREJO,
KENNETH TURNER, ANTHONY O. WASHINGTON,
TWILA WILLIAMS, BYRON M. WILSON,
Plaintiffs-Appellants
Case: 20-1622 Document: 35 Page: 2 Filed: 03/15/2021
2 AKPENEYE v. UNITED STATES
CHRISTOPHER M. BALDWIN, ZANDA BELL, ET
AL.,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1622
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-00732-MMS, Chief Judge Margaret M.
Sweeney.
______________________
Decided: March 15, 2021
______________________
JONATHAN L. GOULD, Law Office of Jonathan L. Gould,
Roxbury, CT, argued for plaintiffs-appellants. Also repre-
sented by STEPHEN GIRARD DENIGRIS, The DeNigris Law
Firm PLLC, Albany, NY.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by JEFFREY B. CLARK, STEVEN JOHN
GILLINGHAM, ROBERT EDWARD KIRSCHMAN, JR.; LUNDI
MCCARTHY SHAFIEI, Headquarters Services & Pentagon
Force Protection Agency, United States Department of De-
fense, Washington, DC.
______________________
Before LOURIE, SCHALL, and DYK, Circuit Judges.
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AKPENEYE v. UNITED STATES 3
DYK, Circuit Judge.
Plaintiffs Tejere J. Akpeneye et al. are police officers
employed by the Pentagon Force Protection Agency
(“PFPA”). They appeal a decision of the United States
Court of Federal Claims (“Claims Court”) entering sum-
mary judgment in favor of the United States and rejecting
their claim for overtime compensation under the Fair La-
bor Standards Act (“FLSA”). We affirm.
BACKGROUND
I
The FLSA was enacted in 1938 to protect workers
“from substandard wages and excessive hours which en-
dangered the national health and well-being and the free
flow of goods in interstate commerce.” Brooklyn Sav. Bank
v. O’Neil, 324 U.S. 697, 706 (1945), superseded on other
grounds by statute, Portal-to-Portal Act of 1947, Pub. L. No.
80-49, 61 Stat. 84. To this end, the FLSA establishes a
forty-hour workweek. 1 29 U.S.C. § 207(a)(1). Employees
are entitled to overtime compensation of at least “one and
one-half times the regular rate” for any time worked in ex-
cess of forty hours. Id. By regulation promulgated by the
Department of Labor, a “bona fide meal period,” which
must ordinarily be at least thirty minutes long, does not
1 The FLSA provides an alternative workweek struc-
ture for fire protection and law enforcement personnel, en-
titling such employees to overtime when they work more
than 212 hours for fire protection employees and 171 hours
for law enforcement employees within a twenty-eight-day
work period, or a proportional number of hours in a work
period of less than twenty-eight days. 29 C.F.R. § 553.201;
see also 29 U.S.C. § 207(k). The parties agree that Plain-
tiffs are not subject to § 207(k), and in any event, applying
§ 207(k) to Plaintiffs’ claim would not change the outcome
of this case.
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4 AKPENEYE v. UNITED STATES
qualify as “worktime.” 29 C.F.R. § 785.19(a). Employees
are thus not entitled to overtime compensation for time
spent on qualifying meal breaks.
Here, in each two-week pay period, PFPA officers were
assigned to ten shifts that were 8.5 hours long (five each
week), during which they received two 35-minute breaks. 2
Under PFPA policy, Plaintiffs were compensated for their
entire shift except for one 30-minute meal period. 3 Plain-
tiffs thus received two breaks per shift—one for which they
were compensated and one for which they were not. Plain-
tiffs argue that they did not receive a bona fide meal period
during either break period because they were required to
work during all break periods, thereby causing Plaintiffs to
work in excess of forty hours per week and entitling them
to overtime compensation.
II
Necessary to an understanding of the overtime claim is
a description of the officers’ duties. PFPA officers were re-
sponsible for security and law enforcement at the Pentagon
reservation. On a day-to-day basis, an officer could have
been assigned to an interior post, an exterior post, or a pa-
trol unit; officers could also have been assigned to work as
“breakers,” whose role was to assume the duties of a post
while another officer went on break.
PFPA officers could spend their breaks nearly any-
where on the Pentagon reservation, which includes two
break rooms closed to the public. The break rooms contain
2 Some PFPA officers were assigned to a different
schedule incorporating 12.5-hour shifts with three 40-mi-
nute breaks, but the difference is immaterial to this appeal.
3 Neither party attaches any significance to the fact
that the scheduled breaks were thirty-five minutes long as
opposed to thirty minutes long.
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AKPENEYE v. UNITED STATES 5
eating areas, microwaves, refrigerators, televisions, and
computers.
PFPA officers were subject to various restrictions dur-
ing their breaks. Officers were not allowed to leave the
Pentagon reservation or remove their uniforms during
break, or to act in a manner that would leave the public
with a negative perception. Because the public would not
necessarily know when an officer was on break, officers on
break were not allowed to congregate in public—e.g., in a
food court—or publicly engage in leisure activities such as
having their shoes shined, watching videos online, or play-
ing video games.
PFPA officers also had some duties while on break.
They were required to remain vigilant and ready to re-
spond to any emergencies that might arise—which oc-
curred frequently at the Pentagon. If an officer was
required to respond to an emergency or contingency during
both break periods (and was thus unable to take a bona fide
meal break), PFPA policy granted overtime pay for one
break period. See, e.g., J.A. 459 (“If a PFPA Police Officer
is called to duty for a contingency during his/her bona fide
meal break, he/she is entitled to be compensated with over-
time or compensatory time.”). Plaintiffs agree that such
overtime payments were consistently granted when re-
quested.
Remaining vigilant also required officers to constantly
monitor their radios to be informed of any contingencies or
emergencies. In addition to responding to emergency radio
calls, until recently, officers were also required to respond
to hourly radio checks. 4
4 The radio checks were discontinued because they
interfered with PFPA operations by clogging radio band-
width.
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6 AKPENEYE v. UNITED STATES
On break, officers were also required to respond to
questions from other employees or members of the public
at the Pentagon reservation. These interactions varied in
length from under a minute to approximately ten minutes
and occurred frequently during officers’ breaks but could
be avoided by going to a break room.
Besides their security duties and obligations to the
public, PFPA officers often performed administrative du-
ties during breaks. These administrative duties fell into
three categories.
First, PFPA officers processed paperwork such as
emails, personnel forms, time sheets, and incident reports.
While not required to do so, officers often performed these
duties while on break. Personnel forms took several
minutes to read, sign, and discuss with a supervisor on a
monthly or quarterly basis. Officers spent ten to fifteen
minutes filling out time sheets every two weeks. Incident
reports took between thirty and forty-five minutes to com-
plete, and officers spent break time writing incident re-
ports almost every day.
Second, PFPA officers were required to complete be-
tween eight and twenty mandatory training courses per
year, which varied in length from twenty minutes to three
hours. When a training course needed to be completed, of-
ficers were notified between seven days and almost a year
in advance. Training courses could be completed during
break time or while an officer was at a post with a com-
puter, and at least some of the training courses were able
to be paused and resumed at a different location. Officers
reviewed or studied training materials multiple times a
week, and sometimes nearly every day. Again, while not
required, officers sometimes worked on training courses
while on break.
Third, when stationed with a vehicle, officers were re-
quired to refuel their assigned vehicle, which typically took
between 10 and 15 minutes once per shift. While not
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AKPENEYE v. UNITED STATES 7
required, this refueling was often done during a break. Of-
ficers were prohibited from using their vehicles on break to
make special trips to buy food, but they were allowed get
food at a nearby location while refueling. Officers were also
required to spend around five minutes per shift inspecting
their vehicle for damage, a task they were not required to
perform while on break, but generally did perform during
breaks.
III
Plaintiffs filed suit under the FLSA, arguing that they
did not receive a bona fide meal break and are therefore
entitled to thirty minutes of overtime compensation per
shift. The parties agreed to initially litigate the claim of
twenty sample plaintiffs. After discovery, Plaintiffs and
the government filed cross-motions for summary judgment.
The Claims Court entered summary judgment in favor of
the government. Plaintiffs conceded that they had no fur-
ther evidence to present with respect to the non-sample
plaintiffs that could change the disposition of their claims.
The Claims Court then entered judgment in favor of the
government, and Plaintiffs appealed. We have jurisdiction
under 28 U.S.C. § 1295(a)(3). 5
DISCUSSION
We review a grant of summary judgment by the Claims
Court de novo. Athey v. United States, 908 F.3d 696, 705
(Fed. Cir. 2018) (citing FastShip, LLC v. United States, 892
F.3d 1298, 1302 (Fed. Cir. 2018)). Summary judgment is
appropriate when the movant shows that there is no
5 Plaintiffs also brought a claim for overtime com-
pensation for time spent donning and doffing their uni-
forms that is not before us on appeal. The Claims Court
ruled against Plaintiffs on this claim after a bench trial.
Plaintiffs have not appealed the judgment in the govern-
ment’s favor on this claim.
Case: 20-1622 Document: 35 Page: 8 Filed: 03/15/2021
8 AKPENEYE v. UNITED STATES
genuine dispute of material fact and that the movant is en-
titled to judgment as a matter of law. Id.I
This appeal requires us to first determine whether the
Claims Court applied the correct legal standard to Plain-
tiffs’ meal break claim under the FLSA.
In cases involving meal break claims, the central issue
is whether employees are required to “work” within the
meaning of the FLSA. E.g., Reich v. S. New. Eng. Tele-
comms. Corp., 121 F.3d 58, 64 (2d Cir. 1997) (citing Henson
v. Pulaski Cnty. Sheriff Dep’t, 6 F.3d 531, 533–34 (8th Cir.
1993)). While the FLSA does not define “work,” the Su-
preme Court has held that “work,” for purposes of the
FLSA, means “physical or mental exertion (whether bur-
densome or not) controlled or required by the employer and
pursued necessarily and primarily for the benefit of the em-
ployer and his business.” Tenn. Coal, Iron & R.R. Co. v.
Muscoda Local No. 123, 321 U.S. 590, 598 (1944), super-
seded on other grounds by statute, Portal-to-Portal Act of
1947, Pub. L. No. 80-49, 61 Stat. 84, as recognized in Integ-
rity Staffing Sols., Inc. v. Busk, 574 U.S. 27 (2014). The
Supreme Court’s approach in Tennessee Coal established
the “predominant benefit” test, which looks to whether the
employer or the employee is the primary beneficiary of the
meal break, even if the meal period is subject to interrup-
tions, duties, or restrictions. See 321 U.S. at 598.
By contrast, the Department of Labor has interpreted
the FLSA to require that, during a “bona fide meal period,”
which is “not worktime,” employees “must be completely re-
lieved from duty for the purposes of eating regular meals.”
29 C.F.R. § 785.19(a) (emphasis added). “The employee is
not relieved if he is required to perform any duties, whether
active or inactive, while eating.” Id. (emphasis added).
Consistent with these two different interpretations of
the FLSA, courts have fashioned two tests to determine
Case: 20-1622 Document: 35 Page: 9 Filed: 03/15/2021
AKPENEYE v. UNITED STATES 9
whether a meal break is compensable. The first, relying on
a literal reading of the Department of Labor regulation, is
the more stringent “complete relief” test. Under the com-
plete relief standard, employees must be compensated for
meal breaks that are subject to any ongoing work duties.
This is the rule utilized in the Ninth Circuit. E.g., Brennan
v. Elmer’s Disposal Serv., Inc., 510 F.2d 84, 88 (9th Cir.
1975) (citing, inter alia, 29 C.F.R. § 785.19) (“An employee
cannot be docked for lunch breaks during which he is re-
quired to continue with any duties related to his work.”);
Alonzo v. Akal Sec. Inc., 807 F. App’x 718, 719 (9th Cir.
2020) (citing Busk v. Integrity Staffing Sols., Inc., 713 F.3d
525, 531–32 (9th Cir. 2013), rev’d on other grounds, 574
U.S. 27 (2014)) (“We apply the ‘completely relieved from
duty’ test to determine whether a meal period is bona
fide.”); see also Busk, 713 F.3d at 531–32 (quoting Brennan,
510 F.2d at 88) (“FLSA does not require compensation for
an employee’s lunch period, but an ‘employee cannot be
docked for lunch breaks during which he is required to con-
tinue with any duties related to his work.’”).
The second approach, following the Supreme Court’s
decision in Tennessee Coal, applies the predominant bene-
fit test. As the Third Circuit has noted, the overwhelming
majority of circuits have rejected “a literal reading” of the
Department of Labor’s regulation on meal breaks and have
instead adopted the predominant benefit test. 6 See
6 See, e.g., Reich v. S. New Eng. Telecomms. Corp.,
121 F.3d 58, 64 (2d Cir. 1997); Babcock v. Butler County,
806 F.3d 153, 156–57 (3d Cir. 2015); Roy v. City of Lexing-
ton, 141 F.3d 533, 544–45 (4th Cir. 1998); Bernard v. IBP,
Inc., 154 F.3d 259, 264–65 (5th Cir. 1998); Hill v. United
States, 751 F.2d 810, 823–14 (6th Cir. 1984); Alexander v.
City of Chicago, 994 F.2d 333, 337 (7th Cir. 1993); Henson
v. Pulaski Cnty. Sheriff Dep’t, 6 F.3d 531, 534 (8th Cir.
1993); Lamon v. City of Shawnee, 972 F.2d 1145, 1155–58
Case: 20-1622 Document: 35 Page: 10 Filed: 03/15/2021
10 AKPENEYE v. UNITED STATES
Babcock v. Butler County, 806 F.3d 153, 156–57 (3d Cir.
2015). Like most of our sister circuits, we agree that we
must adhere to the Supreme Court’s interpretation of
“work” under the FLSA, rather than following the literal
language of the Department of Labor’s regulation, which is
not binding on this court, as the regulations themselves
recognize. See Reich, 121 F.3d at 64–65; see also 29 C.F.R.
§ 785.2 (“The ultimate decisions on interpretations of the
[FLSA] are made by the courts.”).
To be sure, although we are not bound by the regula-
tion, the Supreme Court has held that the Department’s
“interpretations and opinions . . . while not controlling
upon the courts by reason of their authority, do constitute
a body of experience and informed judgment to which
courts and litigants may properly resort for guidance,”
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)—a prin-
ciple that has come to be known as “Skidmore deference”
after the FLSA case. But applying Skidmore deference
here does not lead us to depart from the predominant ben-
efit test.
We therefore adopt the predominant benefit test as the
standard for determining whether a break is compensable
under the FLSA. At oral argument, Plaintiffs’ counsel con-
ceded that the predominant benefit test should apply. The
Claims Court properly used the predominant benefit test
in its analysis.
The most important factor to consider when applying
the predominant benefit test is whether an employee is re-
quired to perform any “substantial duties” or give up a
“substantial measure” of time and effort during a meal
break. Ruffin v. MotorCity Casino, 775 F.3d 807, 811–12
(6th Cir. 2015) (quoting Hill v. United States, 751 F.2d 810,
(10th Cir. 1992); Birdwell v. City of Gadsden, 970 F.2d 802,
807–10 (11th Cir. 1992).
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AKPENEYE v. UNITED STATES 11
814–15 (6th Cir. 1984)); see also Singh v. City of New York,
524 F.3d 361, 371 (2d Cir. 2008) (quoting Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 692 (1946)) (“It is only
when an employee is required to give up a substantial
measure of his time and effort that compensable working
time is involved.”).
Like the Claims Court below, we need not decide
whether the employer or employee has the burden of proof
under the predominant benefit test, since it would not af-
fect the resolution of this case.
II
We now consider whether the Claims Court correctly
applied the predominant benefit test to conclude that there
were no genuine issues of material fact. The officers con-
tend that the claims court misapplied the predominant
benefit test.
Whether a break is predominantly for the employer’s
or employee’s benefit is a question of fact that requires
careful analysis of the totality of the circumstances. See
Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944)
(“Whether time is spent predominantly for the employer’s
benefit or for the employee’s is a question dependent upon
all the circumstances of the case.”); Skidmore, 323 U.S. at
136–37 (“Whether in a concrete case [idle] time falls within
or without the [FLSA] is a question of fact to be resolved by
appropriate findings of the trial court.”); see also, e.g., Perez
v. Mountaire Farms, Inc., 650 F.3d 350, 370 (4th Cir. 2011)
(holding that compensability of meal breaks is a question
of fact to be resolved by the trial court); Bernard v. IBP,
Inc., 154 F.3d 259, 265 (5th Cir. 1998) (“Whether meal time
is predominantly for the benefit of the employer is a ques-
tion of fact that is ordinarily resolved by the trier of fact
after hearing all of the evidence.”).
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12 AKPENEYE v. UNITED STATES
A
As an initial matter, Plaintiffs argue that the Claims
Court should have held that the government was bound by
the testimony of its Rule 30(b)(6) witness, PFPA Chief of
Police Woodrow Kusse. In his deposition, Chief Kusse tes-
tified that he did not “believe that there’s ever a period that
you [the officers] would be completely relieved of duty or
off-duty during your tour.” J.A. 196. He further opined
that officers who were “on-call” during a break still quali-
fied as being “on-duty.” J.A. 229.
Plaintiffs contend that this testimony constitutes a
binding admission against the government under Rule
30(b)(6) of the Rules of the United States Court of Federal
Claims. However, it appears that Chief Kusse was apply-
ing the complete relief standard. See J.A. 196. In any
event, “legal conclusions given during a 30(b)(6) deposition
are generally not binding on the deponent entity.” King v.
United States, 119 Fed. Cl. 277, 285 (2014) (citing Asten-
Johnson, Inc. v. Columbia Cas. Co., 562 F.3d 213, 229 n.9
(3d Cir. 2009)), aff’d, 627 F. App’x 926 (Fed. Cir. 2016).
Chief Kusse’s remarks as to Plaintiffs’ duty status were le-
gal conclusions and were thus not binding on the govern-
ment. The Claims Court correctly focused on Plaintiffs’
“actual obligations,” rather than Chief Kusse’s characteri-
zation of those obligations. See J.A. 23.
B
Plaintiffs next argue that they performed security-re-
lated duties during their breaks and that, in effect, they
were on standby status during their breaks. They were re-
quired to remain vigilant, carry a radio, remain in a state
of readiness, and respond to emergencies and contingencies
as necessary. They were also required to answer radio
checks during part of the period in question.
Plaintiffs point to Supreme Court cases holding that
standby status can constitute the performance of work.
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AKPENEYE v. UNITED STATES 13
They particularly rely on Armour & Co. v. Wantock, 323
U.S. 126 (1944), and Skidmore v. Swift & Co., 323 U.S. 134(1944).
In those cases, the plaintiffs were hired as private fire-
fighters who remained on call overnight at company fire-
halls. Armour, 323 U.S. at 127–28; Skidmore, 323 U.S. at
135. The firefighters had no duties during this time except
to respond to alarms and attend to the sprinklers in the
event they went off. Armour, 323 U.S. at 127; Skidmore,
323 U.S. at 135. In both cases, the plaintiffs’ employers
provided the firefighters with sleeping quarters and vari-
ous amusements in the firehalls, such as playing cards, ra-
dios, and a pool table. See Armour, 323 U.S. at 128;
Skidmore, 323 U.S. at 136. In Armour, the Supreme Court
affirmed that such waiting time was compensable because
the firefighters had been hired to “wait for threats to the
safety of the employer’s property,” holding that such idle
time is not in principle beyond the scope of the FLSA. 323
U.S. at 133–134. Similarly, in Skidmore, the Court held
that “no principle of law found either in the statute or in
Court decisions precludes waiting time from also being
working time” and remanded for further proceedings. 323
U.S. at 136.
Here, Plaintiffs on their meal break were in a signifi-
cantly different position. Whereas the firefighters in Ar-
mour and Skidmore were the only employees on duty
during their idle time, see 323 U.S. at 127–28; 323 U.S. at
135–36, when Plaintiffs took their meal breaks, they were
relieved by “breakers” who covered the duties of their post.
This line of authority addressing the compensability of idle
standby time is therefore inapposite to Plaintiffs’ meal
breaks.
Plaintiffs cite several cases from circuit courts and
state supreme courts awarding overtime compensation un-
der the FLSA to police, security officers, and others based
on standby duties, but these cases are also distinguishable.
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14 AKPENEYE v. UNITED STATES
In Lindell v. General Electric Co., 44 Wash. 2d 386 (1954),
and Kohlheim v. Glynn County, 915 F.2d 1473 (11th Cir.
1990), the courts applied the complete relief standard,
which we have held is inconsistent with the statute. 7
In other cases Plaintiffs rely on, the employees were
not permitted to leave the immediate worksite during their
breaks, Reich, 121 F.3d at 63, or substantially performed
their regular duties during break periods, Raper v. Iowa,
688 N.W.2d 29, 49–51 (Iowa 2004) (police officers spent
most of their meal time discussing patrol business and
were required to remain visible and available to the pub-
lic); Bernard, 154 F.3d at 263–65 (5th Cir. 1998) (mainte-
nance workers on break frequently responded to
maintenance problems and were required to wear their
tools and radios); Lamon v. City of Shawnee, 972 F.2d 1145,
1156 (10th Cir. 1992) (police officers were obligated to take
breaks in public so that they could respond to crimes com-
mitted in their presence, emergency calls, and inquiries
from the public); Banks v. Mercy Villa Care Ctr., 407
N.W.2d 793, 795–97 (Neb. 1987) (maintenance worker re-
quired to remain on premises and allowed to work during
meal breaks); Martin Neb. Co. v. Culkin, 197 F.2d 981,
984–85 (8th Cir. 1952) (guards and firefighters were
7 In Alexander v. City of Chicago, 994 F.2d 333 (7th
Cir. 1993), despite the “myriad regulations” governing Chi-
cago police officers’ conduct while on meal breaks, see 994
F.2d at 334–35, the district court granted judgment on the
pleadings and motions to dismiss in favor of the city, id. at
335. On appeal, the Seventh Circuit did not find that the
officers were necessarily entitled to compensation. In-
stead, the court explained that while “a judge or a jury as
factfinder might ultimately find for the defendant,” the is-
sue required further “development of the facts to enable a
capable application of the appropriate predominant benefit
standard.” Id. at 339 & n.9.
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AKPENEYE v. UNITED STATES 15
primarily “engaged to wait” and spent their lunch breaks
“engaged in their regular duties”).
Thus, the mere fact that Plaintiffs had ongoing security
duties during their breaks does not, in and of itself, trans-
form them into standby employees who were hired to wait
or render their meal breaks primarily for the government’s
benefit. This does not suggest that the officers’ standby ob-
ligations were irrelevant. The existence of standby duties
of sufficient significance in this context could mean that the
break time was primarily for the government’s benefit. But
that was not the case here. While contingencies and emer-
gencies requiring a response arise frequently at the Penta-
gon reservation, Plaintiffs concede that they were not
required to take their breaks in public; that their breaks
were not interrupted on a daily basis; and that they could
not recall a shift during which both breaks were inter-
rupted. That is, if Plaintiffs were interrupted during one
break period, they were able to use their other break period
as a meal period. Furthermore, PFPA policy allowed the
officers to seek and secure overtime compensation if both
breaks were interrupted. In short, the PFPA already had
in place a system for compensating Plaintiffs for those meal
breaks that were in fact compensable—i.e., when Plaintiffs’
security duties prevented them from being the primary
beneficiary of their meal breaks. According to Plaintiffs’
own testimony, requests for overtime under this policy
have never been denied.
Because Plaintiffs were able to use their other break
period as a meal period if one of their break periods was
interrupted, because they could take their breaks outside
of the public eye, and because PFPA policy allowed officers
to file an overtime request if both breaks were interrupted,
we find that the Claims Court correctly determined that
Plaintiffs’ ongoing security duties during breaks did not en-
title them to overtime.
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16 AKPENEYE v. UNITED STATES
C
Plaintiffs argue that their administrative duties—such
as completing paperwork, maintaining their vehicles, com-
pleting training courses, and responding to questions from
the public—made significant intrusions into Plaintiffs’
meal breaks. We disagree. As the Claims Court explained,
on any given day, Plaintiffs spent only a short time writing
reports, filling out personnel documents, checking their
emails, reviewing training materials, and refueling vehi-
cles. Some of these tasks, such as trainings and checking
email, were able to be completed when officers were on duty
at a post with a computer. Additionally, because Plaintiffs
received two breaks during a shift, they also had the option
of attending to their administrative tasks during a compen-
sable break rather than a noncompensable meal break.
As for the requirement that Plaintiffs answer questions
from the public while on breaks, the Claims Court correctly
found that this responsibility did not render Plaintiffs’
meal breaks compensable. Plaintiffs were able to avoid the
public entirely on breaks by going to a break room; when
interactions with the public did occur, they were frequently
short enough that they did not impede Plaintiffs’ ability to
use their meal breaks as they wished.
D
Plaintiffs argue that restrictions imposed on them, not-
withstanding their meal breaks, weigh in their favor. They
contend that they were required to remain in uniform and
on the Pentagon reservation during their meal breaks. The
Claims Court acknowledged that the government benefited
from these restrictions on Plaintiffs’ meal breaks, as the
mere presence of uniformed officers served as a deterrent
to illegal activity on the Pentagon reservation. However,
while these restrictions did benefit the government, they
did not meaningfully interfere with Plaintiffs’ ability to en-
joy their breaks or pursue activities for their own benefit.
Plaintiffs were able to move freely throughout the
Case: 20-1622 Document: 35 Page: 17 Filed: 03/15/2021
AKPENEYE v. UNITED STATES 17
Pentagon reservation and avail themselves of its break
rooms and amenities, and their uniforms did not prevent
them from using their break time as they pleased. We thus
agree with the Claims Court that the location and uniform
restrictions on Plaintiffs’ breaks did not cause their breaks
to primarily benefit the government.
The same is true of the restrictions on Plaintiffs’ per-
sonal activity during their meal breaks. The Claims Court
found that during breaks, Plaintiffs were not allowed to
congregate with one another or engage in other leisure ac-
tivities while in public. In this respect, the record also sug-
gests—though it is less than clear on this point—that
uniformed PFPA officers were not allowed to use their meal
breaks to run personal errands, such as shopping, getting
a haircut, or getting a shoe shine, even if they remained on
the Pentagon reservation. Compare J.A. 208–09 (testi-
mony of Chief Kusse that officers may “pursue those
things . . . on their own time”), with J.A. 203 (testimony of
Chief Kusse that officers “can attend to whatever personal
business or meal that [they] wish during that 30-minute
period”).
The Claims Court found that these restrictions were
immaterial for two reasons: first, because Plaintiffs were
still permitted to use their breaks to engage in other public
activities, such as buying food at a Pentagon restaurant or
using Pentagon amenities, and second, because Plaintiffs
were still able to congregate or enjoy leisure activities with-
out restriction in a non-public break room. We agree with
the Claims Court that these restrictions did not make the
government the primary beneficiary of Plaintiffs’ meal
breaks, thereby entitling Plaintiffs to compensation.
E
Having reviewed individually each of the restrictions
and duties that bear upon Plaintiffs’ meal breaks, we must
also consider them in the aggregate. We agree with the
Claims Court that, in the totality of the circumstances,
Case: 20-1622 Document: 35 Page: 18 Filed: 03/15/2021
18 AKPENEYE v. UNITED STATES
Plaintiffs were the primary beneficiaries of their meal
breaks. As the undisputed facts show, and the Claims
Court correctly concluded, Plaintiffs were not so burdened
by their ongoing responsibilities and restrictions as to be
unable to take at least one uninterrupted meal break per
shift. That is, even if Plaintiffs were required to use some
break time to respond to an emergency, complete their ad-
ministrative tasks, or respond to public questions, and
even if they were subject to some restrictions while on
break, the evidence and Plaintiffs’ own admissions show
that they were generally able to enjoy the primary benefit
of at least one thirty-minute break period during a given
shift.
We therefore agree with the Claims Court’s conclusion
that Plaintiffs received the predominant benefit of their
noncompensable meal breaks, and that they were not enti-
tled to overtime compensation.
AFFIRMED