Nigg v. USPS

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT NIGG; KEITH LEWIS, as 
private attorney generals and on
behalf of themselves and all others
similarly situated, No. 05-55650
Plaintiffs-Appellants,
D.C. No.
and
 CV-03-01611-GLT
GINA HARRELL, ORDER AND
Plaintiff, OPINION
v.
UNITED STATES POSTAL SERVICE,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
April 9, 2007—Pasadena, California
Filed February 4, 2009
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge McKeown
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
1199
1202 NIGG v. USPS
COUNSEL
Daniel A. Osborn, Beatie & Osborn, LLP, New York, New
York, for the appellants.
Leon W. Weidman and Jason K. Axe, Assistant United States
Attorneys, Los Angeles, California, for the appellee.
ORDER
The petition for panel rehearing is granted in part. The
opinion filed August 27, 2007, and appearing at 501 F.3d
1071, is withdrawn. It may not be cited as precedent by or to
this court or any district court of the Ninth Circuit. A new
opinion is filed contemporaneously.
OPINION
McKEOWN, Circuit Judge:
This appeal principally involves the relationship between
two labor statutes—the Fair Labor Standards Act of 1938 and
a 1996 statute related to compensation for postal inspectors,
39 U.S.C. § 1003(c). Robert Nigg, a postal inspector1 cur-
rently employed by the United States Postal Service (“the
1
In general, postal inspectors undertake criminal, civil and administra-
tive investigations involving the postal laws. See Sprague v. United States,
677 F.2d 865 (Cl. Ct. 1982) (explaining postal inspectors’ job duties).
NIGG v. USPS 1203
Postal Service”) and Keith Lewis, a retired postal inspector,
sued the Postal Service alleging that the inspectors are entitled
to overtime pay under the Fair Labor Standards Act (“FLSA”
or “the Act”), 29 U.S.C. §§ 201-219. The Postal Service does
not pay postal inspectors FLSA overtime, instead claiming
that their pay is governed by 39 U.S.C. § 1003(c). At issue is
whether the compensation provision in § 1003(c) trumps the
overtime provisions of the FLSA.
The district court granted summary judgment in favor of
the Postal Service, reasoning that 39 U.S.C. § 1003(c), which
requires the Postal Service to pay the inspectors on a basis of
“comparability” to other similarly tasked executive branch
employees, permits the Postal Service to provide “availability
pay” rather than FLSA overtime. The court adopted the Postal
Service’s argument that postal inspectors are comparable to
certain other federal law enforcement officers who receive
availability pay under the Law Enforcement Availability Pay
Act, Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994).
FLSA overtime and availability pay differ significantly,
both in terms of the hours of work required to qualify, and the
way in which pay is calculated. For example, FLSA overtime
entitles a covered employee to overtime pay for all hours
worked in excess of 40 hours per week. See 29 U.S.C.
§ 207(a)(1). In contrast, availability pay requires a covered
employee to work an average of two extra hours of overtime
per day beyond the eight hour day for the entire year to be
entitled to extra pay for the extra hours worked. See, e.g., 5
U.S.C. § 5545a(a)-(d).
FLSA’s overtime provisions presumptively apply to federal
employees, such as the inspectors, unless a specific FLSA
exemption applies. See 5 C.F.R. § 551.202(a) (“Each
employee is presumed to be FLSA nonexempt unless the
employing agency correctly determines that the employee
clearly meets one or more of the exemption criteria[.]”). In
enacting § 1003(c), Congress did not explicitly amend or
1204 NIGG v. USPS
repeal the FLSA. However, whether these statutes implicitly
conflict depends on whether any employees of the executive
branch are both (1) engaged in work comparable to that of the
postal inspectors, and (2) paid FLSA over-time. See Moyle v.
Dir., Office of Workers’ Comp. Programs, 147 F.3d 1116,
1120 (9th Cir. 1998) (“ ‘Repeals by implication . . . are not
favored and will only be found when the new[er] statute is
clearly repugnant, in words or purpose, to the old statute
. . . .’ ”) (quoting Kee Leasing Co. v. McGahan (In re Glacier
Bay), 944 F.2d 577, 581 (9th Cir. 1991)). We reverse the dis-
trict court’s grant of summary judgment to the Postal Service
and remand with instructions to consider (1) whether any
employees of the executive branch who are eligible to receive
FLSA over-time perform work comparable to that of the
inspectors, and (2) whether the inspectors satisfy any FLSA
exemption or are entitled to FLSA overtime.
ANALYSIS
I. THE LEGISLATIVE LANDSCAPE
Because our decision rests on a series of labor statutes,
principally the FLSA and 39 U.S.C. § 1003(c), we begin by
briefly reviewing the relevant Congressional enactments and
their implications for postal inspectors’ pay.
A. THE FAIR LABOR STANDARDS ACT—1938
[1] In 1938, Congress enacted the FLSA to improve “con-
ditions detrimental to the maintenance of the minimum stan-
dard of living necessary for health, efficiency, and general
well-being of workers.” 29 U.S.C. § 202(a). The FLSA
requires most employers to pay “overtime” compensation to
employees working more than forty hours per week “at a rate
not less than one and one-half times the regular rate.” Id.§ 207(a)(1). In 1974, Congress amended the FLSA to include
all federal, state, and local government employees, and in par-
ticular, individuals employed by the Postal Service. See id.
NIGG v. USPS 1205
§ 203(e)(2)(B) (“ ‘[E]mployee’ means . . . any individual
employed by the United States Postal Service . . . .”).
The FLSA provides detailed exemptions excluding certain
classes of employees from the Act’s overtime pay require-
ments. See id. § 213. For example, § 213(a)(1) exempts “ad-
ministrative” employees, a matter we address in more detail
below. Section 213(b)(20) exempts federal law enforcement
officers if the federal agency “employs during the workweek
less than 5 employees . . . in law enforcement activities.” Id.
§ 213(b)(20). According to the implementing regulations “in
all exemption determinations,” employees are “presumed to
be FLSA nonexempt.” 5 C.F.R. § 551.202.
B. FEDERAL LAW ENFORCEMENT PAY REFORM ACT—1990
In 1990, Congress passed the Federal Law Enforcement
Pay Reform Act (“FLEPA”) as part of the Federal Employees
Pay Comparability Act of 1990. Under FLEPA, certain fed-
eral law enforcement officers are guaranteed overtime pay
(referred to as “administratively uncontrollable overtime” or
“AUO”) among other pay protections. See 5 U.S.C. § 5305.
At the request of the Postal Service, postal inspectors were
not included in FLEPA. See Postal Inspection Service Com-
pensation Task Force: Pay Comparability for Postal Inspec-
tors Report, June 1991.
C. THE LAW ENFORCEMENT AVAILABILITY
PAY ACT (“LEAP”)—1994
In 1994, Congress enacted LEAP, codified at 5 U.S.C.
§ 5545a, amending FLEPA and ending administratively
uncontrollable overtime for most federal law enforcement
agents, though some federal agents still receive AUO pay. See
Pub. L. No. 103-329 § 633, 108 Stat. 2382 (1994). LEAP
requires that covered federal law enforcement officers, in
addition to their regular work schedule, be available to work
an average of two extra hours per day. 5 U.S.C.
1206 NIGG v. USPS
§ 5545a(d)(1). If a law enforcement officer averages two extra
hours of availability each work day for the whole year, then
the officer is entitled to additional pay in the amount of 25%
of the annual base pay. See 5 U.S.C. § 5545a(h).
Because postal inspectors were not included in FLEPA,
they were not included in LEAP, which basically sought to
revise the FLEPA pay regime. See id. § 2105(e) (“Except as
otherwise provided by law, an employee of the United States
Postal Service or of the Postal Rate Commission is deemed
not an employee for purposes of this title.”); see also Nigg v.
Merit Sys. Prot. Bd., 321 F.3d 1381, 1384 (Fed Cir. 2003). To
protect federal agencies from having to pay law enforcement
officers both LEAP and FLSA overtime, Congress amended
the FLSA to exempt officers who received LEAP from
receiving FLSA overtime. See 29 U.S.C. § 213(a)(16).
D. POSTAL INSPECTORS’ COMPENSATION, 39 U.S.C.
§ 1003(c)—1996
[2] In 1996, Congress passed 39 U.S.C. § 1003(c) to raise
the salaries and benefits paid to postal inspectors to corre-
spond with the compensation for investigators from other fed-
eral agencies. Section 1003(c) provides:
Compensation and benefits for all Postal Inspectors
shall be maintained on a standard of comparability to
the compensation and benefits paid for comparable
levels of work in the executive branch of the Gov-
ernment outside the Postal Service. As used in this
subsection, the term “Postal Inspector” included [sic]
any agent to whom any investigative powers are
granted under section 3061 of title 18.
Thus, the statute requires that compensation and benefits for
postal inspectors be comparable to that paid to executive
branch employees with comparable levels of work, but does
not define more precisely how this comparability should be
NIGG v. USPS 1207
determined. In enacting § 1003(c), Congress did not amend
the FLSA to exempt overtime pay for postal inspectors as it
did to exempt investigators receiving availability pay under
LEAP.
II. THE PARTIES’ POSITIONS
According to the Postal Service, § 1003(c) permits the
Postal Service to pay the inspectors comparably to those fed-
eral law enforcement officers who receive availability pay and
not FLSA overtime. The Postal Service claims that GS-1811
investigators in the executive branch perform comparable
work to postal inspectors and are not paid FLSA overtime
because they are exempt under LEAP, 5 U.S.C. § 5545(a),
and the LEAP amendment to the FLSA, 29 U.S.C.
§ 213(a)(16). But see Nigg, 321 F.3d at 1384 (“The provisions
of Title 5 do not apply to the Postal Service unless Congress
has specifically so provided . . . . [LEAP] section 5545a is not
one of the exceptional provisions that Congress has made
applicable to the Postal Service.”) (citations omitted).
The inspectors reject the Postal Service’s interpretation of
§ 1003(c) because it fails to give full effect to both that statute
and the FLSA’s overtime provisions. The inspectors counter
that the Postal Service could give effect to both statutes by
paying the inspectors in a similar manner to comparably
tasked executive branch investigators who receive FLSA
overtime pay.
III. RECONCILING THE STATUTES
Both the FLSA and 39 U.S.C. § 1003 address the subject
of pay for postal inspectors. As explained in the preceding
section, the FLSA’s overtime provisions apply to “any indi-
vidual employed by the United States Postal Service” unless
exempt. See 29 U.S.C. § 203(e)(2)(B). And Congress enacted
§ 1003(c) to ensure that the compensation and benefits for
postal inspectors are “maintained on a standard of compara-
1208 NIGG v. USPS
bility” to that “paid for comparable levels of work in the exec-
utive branch . . . outside of the Postal Service.” The statutory
text of the FLSA makes clear that postal inspectors are enti-
tled to overtime pay unless they are subject to a specific enu-
merated exemption, and § 1003(c) is silent on what its pay
comparability requirement entails with respect to overtime
pay.
Hence, we have two statutes addressing compensation for
postal inspectors and the question is whether they can be rec-
onciled or whether one of them trumps the other. The
Supreme Court has cautioned:
The courts are not at liberty to pick and choose
among congressional enactments, and when two stat-
utes are capable of co-existence, it is the duty of the
courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.
Morton v. Mancari, 417 U.S. 535, 551 (1974).
The Postal Service’s interpretation of § 1003(c)—a statute
it is charged to administer—is entitled to deference under
Chevron U.S.A. v. Natural Resources Defense Council, Inc,
467 U.S. 837 (1984), so long as it is reasonable. See id. at
842-43. Yet, since administration of the FLSA is not the spe-
cial province of the Postal Service, the Postal Service’s inter-
pretation of the FLSA is not entitled to Chevron deference.
See Ass’n of Civilian Technicians v. Fed. Labor Relations
Auth., 200 F.3d 590, 592 (9th Cir. 2000) (“Although courts
owe Chevron deference to an agency’s construction of a stat-
ute it is charged with administering, courts do not owe defer-
ence to an agency’s interpretation of a statute it is not charged
with administering or when an agency resolves a conflict
between its statute and another statute.”).
[3] If only § 1003(c) were at issue, the Postal Service’s
construction of the statute—that § 1003(c) empowers the
NIGG v. USPS 1209
Postal Service to provide “availability pay” rather than FLSA
overtime—would be permissible under Chevron.2 However,
the Postal Service’s interpretation of § 1003(c) conflicts with
the clear meaning of the FLSA, which guarantees overtime
pay to non-exempt employees. Accordingly, the Postal Ser-
vice’s interpretation is reasonable only if the Postal Service
can establish either that § 1003(c) repealed the application of
FLSA’s overtime provisions to the inspectors, or, that the
inspectors are otherwise exempt from the FLSA. We address
each possibility in turn.
A. REPEAL BY IMPLICATION
As is evident from a chronological review of the statutes,
postal inspectors were not part of the legislative compensation
reform for law enforcement officers in 1990 and 1994. For
officers covered under the LEAP reform, Congress explicitly
amended the FLSA to exempt those officers. See 29 U.S.C.
§ 213(a)(16).
2
The postal inspectors argue that the Postal Service’s “availability pay”
system, while similar in some respects to the premium pay afforded by
LEAP, is not the same as LEAP pay. The postal inspectors note the fol-
lowing inadequacies:
[T]he Postal Service’s “availability pay” system does not com-
pensate postal inspectors for scheduled overtime as required
under LEAP; it does not properly count available hours—i.e,
[sic] when postal inspectors are required by the needs of the
Postal Service to be generally and reasonably accessible beyond
their normal workweek; and it is essentially mandatory overtime
because a postal inspector who fails to meet the hourly require-
ment will be disciplined for failing to do so.
While these perceived shortcomings in the Postal Service’s implementa-
tion of § 1003(c) may render the Postal Service’s availability pay plan
somewhat less attractive to the inspectors than LEAP, § 1003(c) does not
require that the postal inspectors’ pay and benefits be absolutely identical
to that of a specific set of executive employees, only that they be compara-
ble. Further, the question of whether the Postal Service has properly
implemented the comparability requirements of § 1003(c) in relation to
LEAP’s pay and benefits is not before us in this appeal.
1210 NIGG v. USPS
[4] In contrast to the express Congressional repeal of FLSA
in LEAP, nothing in the text of § 1003(c) repeals any portion
of the FLSA. Nor is there any amendment to the FLSA con-
temporaneous with or following the enactment of § 1003(c)
that exempts postal inspectors from overtime pay under the
FLSA. Repeals by implication are disfavored—“[t]he inten-
tion of the legislature to repeal ‘must be clear and manifest.’ ”
Morton, 417 U.S. at 551 (quoting United States v. Borden,
308 U.S. 188, 198 (1939)).
Because § 1003(c) does not reflect an intent to alter the
FLSA’s overtime provisions as applied to postal inspectors,
any claim that § 1003(c) constitutes an implied repeal falls
short of the “clear and manifest” requirement. Indeed, we
have little, if any, evidence of congressional intent in enacting
§ 1003(c), apart from the plain language of the statute.
Section 1003(c) was passed as part of an omnibus appropri-
ations bill for the Department of Defense for the fiscal year
1997. The bill, H.R. 3610, is more than 500 pages long, but
the portion relating to postal inspector compensation takes up
less than one page, and all provisions relating to the postal
service span only five pages. Nothing in the legislative history
conveys any particular view with respect to § 1003(c) and
overtime pay, apart from a general interest in ensuring pay
equity for postal inspectors.3
Significantly, we know from adoption of LEAP just two
years earlier that Congress was not unaware of the FLSA in
connection with law enforcement and postal inspector func-
3
The House Conference Report explains that the more general provi-
sions in the statute relating to the postal service created an independent
Office of the Inspector General (“IG”) for the Postal Service. See 142
Cong. Rec. H12051-02. In a deposition in this case of James K. Belz, a
Postal Service executive in charge of budget issues, Belz testified he
believed that with the creation of the IG office, longstanding pay inequi-
ties for postal inspectors had to be addressed or else the Postal Service
inspectors would all seek to leave to go to the IG’s office.
NIGG v. USPS 1211
tions. In enacting § 1003(c), Congress could have followed
the path it took in LEAP, amending the FLSA, but it did not.
The Postal Service argues that the Supreme Court’s analy-
sis in Lorillard v. Pons, 434 U.S. 575, 580-81 (1978), sug-
gests that through § 1003(c) Congress intended to maintain
the status quo of denying FLSA overtime to postal inspectors
because when “Congress adopts a new law . . . [it] can be pre-
sumed to have had knowledge of the interpretation given to
the incorporated law, at least insofar as it affects the new stat-
ute.” Id. at 581. This argument lacks traction for two reasons.
First, the presumption of Congressional awareness of existing
interpretations of a given statute ordinarily applies to situa-
tions where Congress re-enacts the same statute. See, e.g.,
Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975).
Second, as in Lorillard, where awareness of a different statu-
tory scheme is presumed, sections of that other statute were
incorporated in the statute in question; such is not the statu-
tory scheme here. 434 U.S. at 580-81.
[5] Despite the lack of evidence of congressional intent in
§ 1003(c) to repeal the FLSA, there remain two well-settled
and judicially-recognized categories of repeal by implication.
One category entails situations in which the later act covers
the entire subject of the earlier one and is plainly intended as
a substitute. See Radzanower v. Touche Ross & Co., 426 U.S.
148, 154 (1976) (citing Posadas v. Nat’l City Bank, 296 U.S.
497, 503 (1936)); In re Glacier Bay, 944 F.2d at 581. Section
1003(c) is a very narrow provision that does not touch upon
or overlap in any manner with the broad provisions of the
FLSA. Section 1003, even viewed in its entirety, cannot be
regarded as a substitute for the FLSA.
The second category of repeals by implication involves
instances in which provisions of two acts are in irreconcilable
conflict; in such case, the later act, to the extent of the con-
flict, constitutes an implied repeal of the earlier one. See In re
Glacier Bay, 944 F.2d at 581. “Irreconcilable conflict will not
1212 NIGG v. USPS
be found merely because two statutes compel different results
in a particular case. Rather, there must be a repugnancy
between the words or purposes of the two statutes.” Lujan-
Armendariz v. I.N.S., 222 F.3d 728, 744 (9th Cir. 2000) (inter-
nal quotations and citations omitted).
[6] The FLSA’s overtime provisions and § 1003(c) are not
in irreconcilable conflict if there are employees of the execu-
tive branch who (1) perform work that is comparable to the
work performed by the postal inspectors, and (2) are eligible
for FLSA overtime. The inspectors argue that the Postal Ser-
vice could have paid the inspectors the same over-time pro-
vided to Customs Officers, employees in the U.S. Secret
Service Uniformed Division, and employees of the U.S. Park
Police. However, the district court did not consider whether
employees in these positions perform work that is comparable
to that of the postal inspectors. Consequently, we reverse and
remand to the district court for the determination of whether
the postal inspectors perform work that is comparable to the
work performed by any executive branch employee who
receives FLSA over-time pay.
B. FLSA EXEMPTION
The only other way the Postal Service could comply with
both statutes and persist in its current application of § 1003(c)
is if the Postal Service were to establish that the inspectors are
not entitled to overtime pay under the FLSA. The Postal Ser-
vice cannot rely on § 1003(c) as an implicit exemption of the
inspectors from the FLSA. See Citicorp Indust. Credit, Inc. v.
Brock, 483 U.S. 27, 35 (1987) (“[W]here the FLSA provides
exemptions ‘in detail and with particularity,’ we have found
this to preclude ‘enlargement by implication.’ ”) (quoting
Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 617
(1944)).
[7] Of the specific exemptions to the FLSA, the only one
which postal inspectors potentially may satisfy is the adminis-
NIGG v. USPS 1213
trative employee exemption, which exempts from overtime
pay “any employee employed in a bona fide executive,
administrative, or professional capacity.” 29 U.S.C.
§ 213(a)(1). The Postal Service thus argues in the alternative
that the inspectors are administratively exempt, leaving the
agency free to interpret 39 U.S.C. § 1003(c) without regard
for the FLSA.
“Whether employees are exempt from the requirements of
the [FLSA] is primarily a question of fact.” Hodgson v. The
Klages Coal & Ice, Co., 435 F.2d 377, 382 (6th Cir. 1970)
(citing Walling v. Gene. Indust. Co., 330 U.S. 545, 550
(1947)). “The burden of proof rests with the agency that
asserts the exemption.” 5 C.F.R. § 551.202(c). “The criteria
provided by the regulations are absolute and the employer
must prove that any particular employee meets every require-
ment before the employee will be deprived of the protection
of the Act.” Bratt v. County of Los Angeles, 912 F.2d 1066,
1069 (9th Cir. 1990) (internal quotations and citation omit-
ted).
Relying on a 1982 United States Court of Claims opinion,
the Postal Service claims that postal inspectors are exempt
administrative employees. Sprague, 677 F.2d at 868-69. That
opinion, which references a 1976 Opinion Letter from the
Department of Labor, reflects the intensely factual nature of
an exemption determination:
In 1976, the Postal Service sought a determination
from the Wage and Hour Division, Department of
Labor, whether postal inspectors were administrative
employees within the meaning of 29 U.S.C.
§ 213(a)(1). The submissions accompanying that
request detailed the specific information the Wage
and Hour Division . . . had indicated it would need
to decide the postal inspectors’ status. . . . [T]he
Wage and Hour Division concluded: “Based on our
review of the information submitted-it is our view
1214 NIGG v. USPS
that the Postal Inspectors, all of whom meet the . . .
salary test . . . would qualify as exempt . . . employ-
ees under the special proviso for high salaried
[administrative] employees . . . . Such employees
appear to have as their primary duty the performance
of work directly related to the general business oper-
ation of their employer, including the exercise of dis-
cretion and judgment.”
Id. at 868 (quoting Letter from Ronald James, Administrator
of the Wage and Hour Division, to C. Neil Benson, Chief
Inspector, United States Postal Service (December 27, 1976)).
The inspectors argue that the duties associated with their
position have changed fundamentally since 1976. According
to the postal inspectors:
At the time of these decisions [e.g. Sprague], postal
inspectors also performed “audit” functions. The
Department of Labor’s determination that postal
inspectors were administrative employees was based,
in large part, on the performance of these audit func-
tions. As a result of the 1996 amendments to the
Postal Reorganization Act, Congress created the
Office of the Inspector General which took over the
audit functions of postal inspectors, meaning that
their primary job function became that of a law
enforcement officer. Since law enforcement officers
are not administrative employees, postal inspectors
no longer fit within the administrative employee
exemption.
In addition to being a factual question, “[t]he designation of
an employee as FLSA exempt or nonexempt ultimately rests
on the duties actually performed by the employee.” 5 C.F.R.
§ 551.202(i).
Because the grant of summary judgment was premised on
interpretation of § 1003(c), the district court did not address
NIGG v. USPS 1215
the postal inspectors’ status vis-a-vis the exemptions to the
FLSA. In particular, the court did not analyze whether, given
the changed circumstances that the inspectors allege, the
inspectors currently fall within the FLSA’s administrative
exemption based on duties actually performed.
[8] We cannot properly determine for the first time on
appeal whether there are executive branch employees who
perform work comparable to that of the postal inspectors and
who are paid FLSA over-time, and whether the inspectors are
entitled to FLSA overtime or are administratively exempt.
Thus, we reverse and remand to the district court to resolve
these issues.
IV. DISCOVERY DISPUTE
The inspectors also challenge a discovery order denying in
part their motion to compel the production of documents from
the Postal Service, but permitting the inspectors to file a less
burdensome request. Given that the inspectors may tailor their
request on remand to more precisely specify the documents
they seek, the district court did not deprive the inspectors of
relevant material altogether or clearly abuse its discretion. See
United States v. Kitsap Physicians Service, 314 F.3d 995,
1000 (9th Cir. 2002) (stating that a district court’s discovery
ruling will not be overturned in the absence of a clear abuse
of discretion) (internal quotations and citations omitted). In
any event, this discovery issue is unrelated to the district
court’s legal analysis of the text of § 1003(c), the only basis
for the court’s summary judgment ruling. See Home Indem-
nity Company v. Lane Powell Moss and Miller, 43 F.3d 1322,
1327 (9th Cir. 1995) (citations omitted) (holding that discov-
ery rulings are only reversible error if party appealing can
show prejudice).
CONCLUSION
We remand for a determination of whether there are execu-
tive branch employees who perform work comparable to that
1216 NIGG v. USPS
of the postal inspectors and who are paid FLSA overtime, and
whether the inspectors are entitled to FLSA overtime or are
administratively exempt. We affirm on the challenge to the
discovery order.
AFFIRMED in part; REVERSED in part and
REMANDED. Costs on appeal are awarded to appellants.