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: 1 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 represented by STEPHEN GIRARD DENIGRIS, The DeNigris Law 

Firm PLLC, Albany, NY.

 REBECCA SARAH KRUSER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, 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 Defense, Washington, DC.

 ______________________

Before LOURIE, SCHALL, and DYK, Circuit Judges.

Case: 20-1622 Document: 35 Page: 2 Filed: 03/15/2021
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 summary judgment in favor of the United States and rejecting 

their claim for overtime compensation under the Fair Labor Standards Act (“FLSA”). We affirm.

BACKGROUND

I

The FLSA was enacted in 1938 to protect workers 

“from substandard wages and excessive hours which endangered 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 excess 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 structure for fire protection and law enforcement personnel, entitling 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 Plaintiffs are not subject to § 207(k), and in any event, applying 

§ 207(k) to Plaintiffs’ claim would not change the outcome 

of this case.

Case: 20-1622 Document: 35 Page: 3 Filed: 03/15/2021
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 Plaintiffs thus received two breaks per shift—one for which they 

were compensated and one for which they were not. Plaintiffs 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 responsible 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 patrol 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 anywhere 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-minute 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.

Case: 20-1622 Document: 35 Page: 4 Filed: 03/15/2021
AKPENEYE v. UNITED STATES 5

eating areas, microwaves, refrigerators, televisions, and 

computers.

PFPA officers were subject to various restrictions during 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 playing video games.

PFPA officers also had some duties while on break. 

They were required to remain vigilant and ready to respond to any emergencies that might arise—which occurred 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 overtime or compensatory time.”). Plaintiffs agree that such 

overtime payments were consistently granted when requested.

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 bandwidth.

Case: 20-1622 Document: 35 Page: 5 Filed: 03/15/2021
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 duties 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 complete, and officers spent break time writing incident reports almost every day.

Second, PFPA officers were required to complete between 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, officers 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 computer, 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 required to refuel their assigned vehicle, which typically took

between 10 and 15 minutes once per shift. While not 

Case: 20-1622 Document: 35 Page: 6 Filed: 03/15/2021
AKPENEYE v. UNITED STATES 7

required, this refueling was often done during a break. Officers 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 further 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 compensation for time spent donning and doffing their uniforms 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 government’s favor on this claim.

Case: 20-1622 Document: 35 Page: 7 Filed: 03/15/2021
8 AKPENEYE v. UNITED STATES

genuine dispute of material fact and that the movant is entitled 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 Plaintiffs’ 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. Telecomms. 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 Supreme Court has held that “work,” for purposes of the 

FLSA, means “physical or mental exertion (whether burdensome or not) controlled or required by the employer and 

pursued necessarily and primarily for the benefit of the employer and his business.” Tenn. Coal, Iron & R.R. Co. v. 

Muscoda Local 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). 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 interruptions, 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 relieved 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: 8 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 complete 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 required 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 continue with any duties related to his work.’”).

The second approach, following the Supreme Court’s 

decision in Tennessee Coal, applies the predominant benefit 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 Lexington, 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: 9 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 regulation, 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 principle 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 benefit 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 conceded 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 required 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).

Case: 20-1622 Document: 35 Page: 10 Filed: 03/15/2021
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 affect 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 contend 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 question of fact that is ordinarily resolved by the trier of fact 

after hearing all of the evidence.”).

Case: 20-1622 Document: 35 Page: 11 Filed: 03/15/2021
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 testified 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 qualified 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 applying 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 AstenJohnson, 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 legal conclusions and were thus not binding on the government. The Claims Court correctly focused on Plaintiffs’ 

“actual obligations,” rather than Chief Kusse’s characterization of those obligations. See J.A. 23.

B

Plaintiffs next argue that they performed security-related duties during their breaks and that, in effect, they 

were on standby status during their breaks. They were required 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. 

Case: 20-1622 Document: 35 Page: 12 Filed: 03/15/2021
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 firefighters who remained on call overnight at company firehalls. 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 various amusements in the firehalls, such as playing cards, radios, 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 significantly different position. Whereas the firefighters in Armour 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 under the FLSA to police, security officers, and others based 

on standby duties, but these cases are also distinguishable. 

Case: 20-1622 Document: 35 Page: 13 Filed: 03/15/2021
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 public); Bernard, 154 F.3d at 263–65 (5th Cir. 1998) (maintenance 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 committed 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 required 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 Chicago 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. Instead, the court explained that while “a judge or a jury as 

factfinder might ultimately find for the defendant,” the issue required further “development of the facts to enable a 

capable application of the appropriate predominant benefit 

standard.” Id. at 339 & n.9.

Case: 20-1622 Document: 35 Page: 14 Filed: 03/15/2021
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, transform 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 obligations 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 emergencies requiring a response arise frequently at the Pentagon 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 interrupted. 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 entitle them to overtime.

Case: 20-1622 Document: 35 Page: 15 Filed: 03/15/2021
16 AKPENEYE v. UNITED STATES

C

Plaintiffs argue that their administrative duties—such 

as completing paperwork, maintaining their vehicles, completing 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 vehicles. 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 compensable 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, notwithstanding 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 enjoy their breaks or pursue activities for their own benefit. 

Plaintiffs were able to move freely throughout the 

Case: 20-1622 Document: 35 Page: 16 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’ personal 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 activities while in public. In this respect, the record also suggests—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 (testimony 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 without 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: 17 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 administrative 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 entitled to overtime compensation.

AFFIRMED

Case: 20-1622 Document: 35 Page: 18 Filed: 03/15/2021