Case: 22-2249   Document: 42     Page: 1    Filed: 01/22/2024




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

     JASON LAMBRO, INDIVIDUALLY AND ON
       BEHALF OF SIMILARLY SITUATED
                INDIVIDUALS,
               Plaintiff-Appellant

                            v.

                   UNITED STATES,
                   Defendant-Appellee
                 ______________________

                       2022-2249
                 ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:21-cv-01447-ZNS, Judge Zachary N. Somers.
                  ______________________

                Decided: January 22, 2024
                 ______________________

     JOSEPH ANTHONY WHITCOMB, Whitcomb, Selinsky, PC,
 Denver, CO, argued for plaintiff-appellant. Also repre-
 sented by TIMOTHY TURNER.

     MATTHEW JUDE CARHART, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for defendant-appellee. Also
 represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN,
 PATRICIA M. MCCARTHY.
                  ______________________
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 2                                              LAMBRO v. US




 Before TARANTO, CHEN, and CUNNINGHAM, Circuit Judges.
 TARANTO, Circuit Judge.
     Jason Lambro brought this action against the United
 States, on behalf of himself and others similarly situated,
 under the Fair Labor Standards Act, 

 et seq.
 (FLSA). He alleged that the federal agency for which he
 had long done work under a series of contracts, Voice of
 America (VOA), had denied him benefits such as overtime
 pay guaranteed to employees under the FLSA. His key
 contention is that, although he was concededly not a fed-
 eral employee under Title 5 of the United States Code or
 other non-FLSA law, he was a federal employee for FLSA
 purposes under the applicable definitions of “employee”
 and “employ” contained in the FLSA itself. The Court of
 Federal Claims (Claims Court)—which received the case by
 unopposed transfer from a district court in which it was
 originally filed—dismissed the action for failure to state a
 claim, holding that the FLSA’s definitions, even if his cir-
 cumstances would bring Mr. Lambro within their terms,
 were simply inapplicable to federal employees. See Lambro
 v. United States, 

, 351, 353–55 (2022).
     We reject the Claims Court’s conclusion that the FLSA
 does not cover a person asserting coverage as a federal gov-
 ernment employee unless a congressional authorization
 outside the FLSA creates the asserted employment rela-
 tionship with the federal government, a condition that Mr.
 Lambro concededly does not meet. We hold that the FLSA
 itself, through its definitional provisions, provides the ap-
 plicable standard for recognizing an employment relation-
 ship for FLSA purposes, so the Claims Court must evaluate
 whether Mr. Lambro was employed by VOA under the
 FLSA’s own standard for being employed. We therefore va-
 cate the Claims Court’s dismissal and remand the case for
 further proceedings.
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 LAMBRO v. US                                             3



                              I
      In the operative complaint, Mr. Lambro alleged that he
 had worked since 2002 as a studio technician for VOA, a
 division of what is now called the United States Agency for
 Global Media. Mr. Lambro performed that work under a
 series of purchase order agreements, renewed repeatedly,
 which stated that “no employer-employee relationship ex-
 ist[ed]” between Mr. Lambro and VOA. 1 J.A. 18, 36. Mr.
 Lambro alleged, however, that VOA “significantly con-
 trolled and continues to control” his work. J.A. 18 ¶ 28.
 For example, he noted that he was unable to subcontract
 or to set his own schedule; VOA provided all his equipment;
 and he was expected to perform non-contracted-for tasks.
 J.A. 17–20. Given the significant control VOA allegedly ex-
 ercised, Mr. Lambro contended that he was misclassified



    1 At first, Mr. Lambro personally contracted with VOA,

 but in “early 2018,” he formed a limited liability company,
 Wayne Industries, LLC, and thereafter, his LLC con-
 tracted with VOA. J.A. 21–22. He alleges that the nature
 of his relationship with VOA did not change when the 2018
 change occurred and that VOA never treated his LLC as an
 entity separate from him. We answer here—in the affirm-
 ative—only the question of whether Mr. Lambro is entitled
 to have the FLSA’s own “employee” and “employ” defini-
 tions, as long interpreted by the courts, applied to deter-
 mine whether, for FLSA purposes, he is an employee of the
 federal government. The Claims Court did not, in its anal-
 ysis, distinguish periods when Mr. Lambro was the con-
 tractor from periods when his LLC was the contractor; nor
 has the government done so on appeal. We have no occa-
 sion to address, and suggest no view about, whether the
 identity of the contractor might play a role, when applying
 the FLSA’s standards, in determining Mr. Lambro’s status
 at particular times as an employee of the federal govern-
 ment.
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 4                                                LAMBRO v. US




 as an independent contractor and should have been treated
 as an employee entitled to benefits, including overtime pay,
 under the FLSA. Mr. Lambro sought damages under the
 Tucker Act, 

(a)(1), invoking the FLSA as a
 violated money-mandating statute, see 

(b),
 and he sought a declaratory judgment of his employee sta-
 tus in conjunction with the damages claim.
      The government moved to dismiss, and the Claims
 Court granted the government’s motion. In a ruling not
 disputed on appeal, the court concluded first that claims
 which accrued before January 28, 2018, were barred by the
 statute of limitations for FLSA claims. Lambro, 162 Fed.
 Cl. at 349–50. The Claims Court then concluded that Mr.
 Lambro’s complaint failed to state a claim upon which re-
 lief could be granted because he was, under the complaint’s
 facts, not a federal employee covered by the FLSA. 

 at
 350–55. Finally, with the monetary claim dismissed, the
 Claims Court dismissed Mr. Lambro’s request for a declar-
 atory judgment, a ruling not challenged on appeal sepa-
 rately from the challenge to the dismissal of the monetary
 claims. 

.
     In reaching its conclusion on the point in dispute on
 appeal, the Claims Court first observed that the FLSA pro-
 vides a broad and rather uninformative definition of the
 word “employee”—namely, “any individual employed by an
 employer.” 

(e)(1); see Lambro, 162 Fed. Cl.
 at 350. The court then sought “to fill in the gaps left by this
 definition.” Lambro, 162 Fed. Cl. at 350. Mr. Lambro ar-
 gued that the court should apply the judicially formulated
 standard (sometimes termed the “economic realities test”)
 typically used in FLSA contexts, which looks to the nature
 of a person’s work, including its supervision, to determine
 employee status. Id. at 350–51 The government argued
 that the general FLSA approach was not applicable to
 those who (like Mr. Lambro) assert FLSA coverage as fed-
 eral-government employees; rather, “‘only those who are
 appointed or are hired pursuant to specific [c]ongressional
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 LAMBRO v. US                                               5



 authority creating an employer-employee relationship’”
 outside the FLSA may be deemed federal employees under
 the FLSA. Id. at 351 (quoting Lambro v. United States, No.
 21-cv-1447, ECF No. 41 at 15 (Fed. Cl. Nov. 18, 2021)).
     The Claims Court agreed with the government. It
 noted first that the FLSA, in its definitions, separates “any
 individual employed by an employer,” 

(e)(1),
 from “an individual employed by a public agency,” 

 § 203(e)(2). Lambro, 162 Fed. Cl. at 351. The question,
 then, was whether Mr. Lambro was a “federal employee.”
 Id.
      To answer that question, the Claims Court—rather
 than proceed further within the FLSA or even within the
 definitional section, 

, to subsections (e) and
 (g)—turned to a line of cases from this court and our pre-
 decessor that described the standards, often involving ap-
 pointment and related formalities, defining when a person
 has employee status within the civil service. 

.
 The Claims Court noted that this court has stated that “‘ab-
 sent specific legislation, federal employees derive the ben-
 efits and emoluments of their positions from appointment
 rather than from any contractual or quasi-contractual re-
 lationship with the government.’” 

 at 354 (quoting Chu
 v. United States, 

 (Fed. Cir. 1985)).
 Without adopting any particular definition of “federal em-
 ployee,” the Claims Court concluded that, because Mr.
 Lambro never alleged that he was appointed (and, in fact,
 did not seem to contest that he was not), he could not have
 sufficiently alleged that he was a federal employee. 

 at
 354–55. On that basis, the Claims Court rejected the pos-
 sibility of being “a de facto federal employee through appli-
 cation of the economic realities test” of the FLSA. Id. at
 351.
     The Claims Court entered final judgment on Septem-
 ber 20, 2022. Mr. Lambro timely filed his notice of appeal
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 6                                              LAMBRO v. US




 the next day.    We have jurisdiction under 

(a)(3).
                              II
     The question on appeal is one of statutory interpreta-
 tion—a legal issue we decide de novo. Dixon v. United
 States, 

 (Fed. Cir. 2023); Ampersand
 Chowchilla Biomass, LLC v. United States, 

 (Fed. Cir. 2022).
     The parties agree on two important underlying legal
 propositions. First, Mr. Lambro accepts that specific con-
 gressional authorization is necessary for the creation of an
 employment relationship with the federal government.
 Oral Arg. at 6:34–6:49, 11:28–12:31; see also Federal Ac-
 quisition Regulation (FAR) 37.104, 

 (not-
 ing that Congress must “specifically authorize[]” the
 government to enter into contracts that create an employ-
 ment relationship). Second, the government accepts that
 “appointment” is not the sole congressionally authorized
 method by which agencies may create employment rela-
 tionships with workers. Government’s Br. at 17–18, 18 n.5;
 Oral Arg. at 26:41–27:36. For example, the government
 acknowledges that, pursuant to FAR 37.104, an agency, if
 specifically authorized to do so by Congress, may enter into
 a personal services contract with an individual, creating an
 employment relationship between the agency and the con-
 tracted-with worker, even though that worker has not been
 appointed. Government’s Br. at 18 n.5; see Lee v. United
 States, 

, 1367 n.3, 1370 (Fed. Cir. 2018).
     Given those two propositions, we are asked to decide
 whether Mr. Lambro, who concededly had no employment
 relationship with the federal government under any con-
 gressional authorization outside the FLSA, can neverthe-
 less be a federal employee under the FLSA itself and thus
 entitled to its protections. The Claims Court answered this
 question in the negative, finding the absence of appoint-
 ment or other specific congressional authorization outside
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 LAMBRO v. US                                               7



 the FLSA dispositive. Lambro, 162 Fed. Cl. at 351. We
 disagree. We hold that the FLSA does authorize the recog-
 nition—solely for application of the FLSA’s own provi-
 sions—of an employment relationship between the federal
 government and those federal government workers who
 satisfy the FLSA’s definitions, notably its definitions of
 “employee” and “employ,” under the standards long
 adopted by the courts. Mr. Lambro is entitled to a deter-
 mination of whether he met those standards.
                              A
      The FLSA was first enacted in 1938 “to raise substand-
 ard wages and to give additional compensation for over-
 time work as to those employees within its ambit, thereby
 helping to protect this nation ‘from the evils and dangers
 resulting from wages too low to buy the bare necessities of
 life and from long hours of work injurious to health.’”
 United States v. Rosenwasser, 

 (1945)
 (quoting S. REP. NO. 75-884, at 4 (1937)). The FLSA provi-
 sion on maximum hours and overtime pay, at issue here,
 applies to “employer[s]” in their treatment of “employees.”
 

(a)(1)–(2). It is not disputed that the provi-
 sion applies to the federal government. 2
     The statutory inquiry here focuses on 

,
 which provides definitions of several words “[a]s used in
 this chapter.” The FLSA defines “employee,” in relevant
 part, as follows:




    2  In particular, § 207(a) addresses how an “employer”
 treats an “employee[]” who “is employed in an enterprise
 engaged in commerce or in the production of goods for com-
 merce.” 

(a)(1). That phrase is defined to
 include “an activity of a public agency.” 

 § 203(s)(1)(C).
 And “public agency” is defined to include “the Government
 of the United States.” Id. § 203(x).
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 8                                                LAMBRO v. US




     (1) Except as provided in paragraphs (2), (3), and
     (4), the term “employee” means any individual em-
     ployed by an employer.
     (2) In the case of an individual employed by a public
     agency, such term means—
         (A) any individual employed by the Govern-
         ment of the United States—
             (i) as a civilian in the military de-
             partments (as defined in section
             102 of title 5),
             (ii) in any executive agency (as de-
             fined in section 105 of such title),
             (iii) in any unit of the judicial
             branch of the Government which
             has positions in the competitive
             service,
             (iv) in a nonappropriated fund in-
             strumentality under the jurisdic-
             tion of the Armed Forces,
             (v) in the Library of Congress, or
             (vi) the Government Publishing Of-
             fice;
         ....
 Id. § 203(e). It defines “employer” as including
     any person acting directly or indirectly in the inter-
     est of an employer in relation to an employee and
     includes a public agency, but does not include any
     labor organization (other than when acting as an
     employer) or anyone acting in the capacity of officer
     or agent of such labor organization.
 Id. § 203(d). Perhaps most importantly, it defines “employ”
 as including “to suffer or permit to work.” Id. § 203(g).
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 LAMBRO v. US                                               9



     The text thus straightforwardly directs the inquiry to
 whether Mr. Lambro is, under 

(e)(2)(A)(ii),
 “employed by the Government of the United States,” as rel-
 evant here, “in any executive agency (as defined in [

]),” which means “an Executive department, a
 Government corporation, and an independent establish-
 ment,” 

. The government does not dispute
 that VOA comes within that definition. Whether Mr. Lam-
 bro was so “employed” by VOA then depends on 

(g)—whether VOA suffered or permitted him to work.
     The Supreme Court long ago characterized the § 203(g)
 definition of “employ” as “broad,” Rutherford Food Corp. v.
 McComb, 

 (1947), and the § 203 defini-
 tions generally as “comprehensive enough to require [the
 FLSA’s] application to many persons and working relation-
 ships, which prior to this Act, were not deemed to fall
 within an employer-employee category,” Walling v. Port-
 land Terminal Co., 

, 150–51 (1947). Decades
 later, in a non-FLSA case, the Court noted that the “expan-
 sive[]” definition of “employ” in the FLSA is of “striking
 breadth” and leads to coverage that, for example, “on its
 face[] goes beyond” the definition of “employee” as “any in-
 dividual employed by an employer” found in the Employee
 Retirement Income Security Act of 1974, 

(6). Nationwide Mutual Insurance Co. v. Darden,
 

 (1992).
      The broad definition of “employ” has been applied by
 considering the “economic reality” of a work relationship
 rather than “technical concepts.” Goldberg v. Whitaker
 House Cooperative, Inc., 

 (1961) (first citing
 United States v. Silk, 

 (1947); and then
 citing Rutherford, 

). 3 Thus, even a worker


     3As the Claims Court noted, “[t]here appears to be
 some variance in the factors considered by courts in
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 10                                              LAMBRO v. US




 labelled an independent contractor might be an employee
 for FLSA purposes. See, e.g., Keller v. Miri Microsystems
 LLC, 

 (6th Cir. 2015) (“To effect Con-
 gress’s broad purpose, we must look to see whether a
 worker, even when labeled as an ‘independent contractor,’
 is, as a matter of ‘economic reality,’ an employee.”); Scant-
 land v. Jeffry Knight, Inc., 

 (11th Cir.
 2013) (“This inquiry is not governed by the ‘label’ put on
 the relationship by the parties or the contract controlling
 that relationship . . . .”); Henderson v. Inter-Chem Coal Co.,
 

 (10th Cir. 1994) (“[O]ur inquiry is not lim-
 ited by any contractual terminology . . . .”).
     Thus, on its face, the FLSA grants the protections at
 issue to all those suffered or permitted to work by the fed-
 eral government, where “suffered or permitted to work” has
 a meaning, focused on economic realities, that courts have
 repeatedly set forth. This is a congressional authorization
 of the recognition of an employment relationship with the
 federal government for FLSA purposes. It calls for the in-
 quiry under the judicially developed standards that the
 Claims Court held unavailable to Mr. Lambro.
      The government relies on the fact that § 203(e)(1)’s def-
 inition of “employee” as “any individual employed by an
 employer” is expressly subject to exceptions, one of which
 is for “an individual employed by a public agency,”
 § 203(e)(2). 4 But that separation does not remove the latter
 provision from the § 203(g) definition of “employ,” a term
 used in both paragraphs (e)(1) and (e)(2). The separation


 applying the economic realities test[.]” Lambro, 162 Fed.
 Cl. at 351. Any variance does not alter our analysis.
     4 The exceptions stated in § 203(e)(1) are for “para-

 graphs (2), (3), and (4).” 

(e)(1). Paragraph
 (2) concerns public-agency employees; paragraph (3) con-
 cerns certain agricultural workers; and paragraph (4) con-
 cerns certain government agency volunteers.
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 LAMBRO v. US                                                 11



 serves other evident purposes, permitting further specifi-
 cation of who qualifies as an “employee” or “employer” un-
 der the FLSA in the public-agency sphere—within the
 federal realm, for example, requiring that an individual “in
 the military departments” be a “civilian” to be covered, 

(e)(2)(A)(i), and identifying which parts of the
 “Government of the United States” are covered employers,
 

 § 203(e)(2)(A)(ii)–(vi); see also id. § 203(e)(2)(B) (postal
 service and postal regulatory commission); § 203(e)(2)(C)
 (certain non-federal, government entities). With all the ad-
 ditional specification, what is constant is the statute’s use
 of the word “employed” without any further qualification or
 elaboration. See generally, id. § 203(e)(1)–(2).
     Congress could have redefined “employ” in § 203(e)(2)
 to have a meaning different from the one set out in § 203(g)
 or otherwise removed § 203(e)(2), or parts of it, from the
 reach of § 203(g). It did not. Congress could have redefined
 “employee” so as to borrow the definition in Title 5, 

, or to otherwise limit coverage to those persons ac-
 quiring employee status independently of the FLSA itself.
 It did not. In particular, in referring to an “executive
 agency (as defined in [

]),” 

(e)(2)(A)(ii), all Congress did was identify which exec-
 utive agencies were covered; it did not change the defini-
 tion of being employed by those identified agencies.
 Textually, the § 203(g) definition applies throughout
 § 203(e).
     As confirmation, we note that the language in
 § 203(e)(2) was added in 1974, 

(a)(2),
 

, 58–59 (1974), when Congress broadly extended
 FLSA protections to federal employees. See H.R. REP. NO.
 93-913, at 2 (1974). The key House committee report rec-
 ognized that extending FLSA protections to federal work-
 ers could cause some confusion given other provisions
 addressing federal workers’ pay. 

. Congress ad-
 dressed that concern by adding to an earlier bill under con-
 sideration a provision that charged the Civil Service
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 12                                             LAMBRO v. US




 Commission (now, the Office of Personnel Management)
 with administering the FLSA for federal government em-
 ployees, namely, 

(f) (providing that, with
 some exceptions, “the Director of the Office of Personnel
 Management is authorized to administer the provisions of
 this chapter with respect to any individual employed by the
 United States”). See H.R. REP. NO. 93-913, at 28; S. REP.
 NO. 93-358, at 27 (1973) (Conf. Rep.) (conference report for
 1973 bill that was vetoed, containing provision that was
 unchanged in bill enacted in 1974).
     OPM has adopted the FLSA’s broad definition of em-
 ployment in its regulation specifying who is covered:
      (a) Covered. Any employee of an agency who is not
      specifically excluded by another statute is covered
      by the Act. This includes any person who is:
         (1) Defined as an employee in section 2105
         of title 5, United States Code;
         (2) A civilian employee appointed under
         other appropriate authority; or
         (3) Suffered or permitted to work by an
         agency whether or not formally appointed.
 

(a). That regulation, incorporating the
 terms of 

(g), is confirmation of our under-
 standing of the statutory text.
                              B
     The government points to “the presumption that Con-
 gress ‘legislate[s] against the backdrop of existing law.’”
 Government’s Br. at 24 (alteration in original) (quoting
 Morgan v. Principi, 

 (Fed. Cir. 2003)).
 And it expresses general concern about a reading of the
 FLSA that would disturb the “distinctive legal framework
 governing [f]ederal employment,” which provides “benefits
 and emoluments” to federal employees, whose definition is
 important      for   “safeguard[ing]   Treasury    funds.”
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 LAMBRO v. US                                             13



 Government’s Br. at 22, 26. These concerns are important
 ones, but they do not overcome the straightforward mean-
 ing of the FLSA text.
     For one thing, the “backdrop” principle hardly points in
 a single direction. In 1974, when Congress was extending
 the FLSA to the federal government, Congress was acting
 against the backdrop of the FLSA’s already-existing
 § 203(g) definition and its broad judicial interpretation.
 And it refrained from taking the readily available textual
 steps, as we have noted, that might have made that provi-
 sion inapplicable to federal employees. We see no persua-
 sive reason for not following the text of the FLSA as
 defining the coverage of the FLSA at issue here.
      The government never demonstrates that other stat-
 utes governing federal employment actually create an in-
 compatibility that would preclude giving the FLSA the
 straightforward meaning we adopt. The OPM regulation
 quoted above is an indication that there is no such incom-
 patibility. Notably, the FLSA, by defining employee “[a]s
 used in this chapter,” does not authorize the creation of an
 employment relationship for non-FLSA purposes. For ex-
 ample, workers who fall under the definition of “employee”
 set forth in 

(a) have certain employment
 protections associated with the competitive service and the
 merit system. See, e.g., 

(b), (d) (providing
 for procedural protections and appeal rights for federal em-
 ployees regarding personnel actions such as removal). Our
 holding does not mean that workers who fall under the
 FLSA definition would be entitled to those protections. 5


     5    Our holding could affect non-FLSA statutes to the
 extent they explicitly apply when the FLSA applies. See,
 e.g., 

(3) (Title I of the Family and Medical
 Leave Act, defining “employ” and “employee” as having
 “the same meanings given such terms in subsections
 . . . (e)[] and (g) of section 203 of this title”).
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 14                                              LAMBRO v. US




 Nor does our conclusion, which is based on § 203(g)’s defi-
 nition of “employ” (and its longstanding interpretation),
 reach statutes without that language, which would require
 a separate analysis.
     The government urges us to look to the Title 5 defini-
 tion of “employee,” 

(a), as part of the rele-
 vant backdrop of existing law, but the argument has
 evident flaws. Section 203(e)(2) does not incorporate that
 definition when it points to other provisions of Title 5 for
 other purposes, such as identifying which federal agencies
 can be employers. Moreover, § 2105(a) itself expressly pro-
 vides a definition only “[f]or the purpose of this title,”
 namely, Title 5 (not, e.g., Title 29). 

(a). And
 the government acknowledges that 

(a) is
 not the only congressional authorization for formation of
 an employment relationship, as we noted above.
      The government notes that, in Jackson v. Modly, the
 D.C. Circuit looked to Title 5 to determine whether the
 plaintiff, a uniformed member of the armed forces, was an
 “‘employee[] . . . in military departments’” under Title VII
 of the Civil Rights Act of 1964. 

, 769–70 (D.C.
 Cir. 2020) (quoting 42 U.S.C. § 2000e-16(a)). But Title VII,
 unlike the FLSA, has no definition of “employ.” More gen-
 erally, the issue in Jackson was one Title VII does not ex-
 pressly answer without looking beyond its own words,
 whereas the FLSA does: whether only civilian military de-
 partment personnel, not uniformed members of the armed
 forces, are covered. Compare 42 U.S.C. § 2000e-16(a) (Title
 VII) (“employees or applicants for employment . . . in mili-
 tary departments as defined in section 102 of [T]itle 5”),
 with 

(e)(2)(A)(i) (FLSA) (“civilian[s] in the
 military departments”). In that circumstance, the D.C.
 Circuit had to look beyond Title VII, and it had good tex-
 tual, historical, precedential, and practical reasons to infer
 that the coverage of military-department employees was
 limited to civilian employees. Jackson, 949 F.3d at 768–
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 LAMBRO v. US                                              15



 70. That reasoning does not extend to the different issue,
 under a different statute, presented in this case.
      The government, like the Claims Court’s opinion,
 points to our non-precedential decision in Guevara v. Im-
 migration and Naturalization Service. 

, 

 (Fed. Cir. Jan. 6, 1992) (unpublished table deci-
 sion). There, we held that individuals being detained by
 the Immigration and Naturalization Service before trial,
 who received $1 per day for working voluntarily, were not
 “employees” under the FLSA and thus not entitled to min-
 imum wage payment. 

. In part, we
 noted that the “FLSA was not intended by Congress to
 cover the circumstances presented by plaintiffs in this
 case.” 

 We also said that a “further reason” to dismiss
 that case was the fact that the plaintiffs had not been ap-
 pointed. 

 at *1–2. But appointment, as the government
 concedes, is not always necessary for employment status
 with the federal government (even for general-purpose em-
 ployment status); the court in Guevera did not conduct the
 full statutory analysis presented here; and under the FLSA
 itself, the circumstances of Guevara, including the fact that
 the detainees “volunteer[ed],” id. at *1, were remarkably
 different from those here. See Ndambi v. CoreCivic, Inc.,
 

, 372–74 (4th Cir. 2021) (rejecting application
 of FLSA to custodial setting, citing wide consensus of cir-
 cuits); cf. Walling, 

 (holding that unpaid
 trainees whose “work serve[d] only [their] own interest[s]”
 were not suffered or permitted to work and thus were not
 employees under the FLSA). Our non-precedential deci-
 sion in Guevara does not alter our conclusion.
                              C
     Mr. Lambro points to two decisions from other circuits
 to support his position that employee status should be de-
 termined using the ordinary FLSA standard. Neither is a
 FLSA case. The decisions offer him some, but limited, sup-
 port.
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 16                                                 LAMBRO v. US




     In Spirides v. Reinhardt, the D.C. Circuit held that the
 district court had erred in granting a motion to dismiss the
 Title VII claims of the plaintiff, a contractor for the federal
 government. 

 (D.C. Cir. 1979). The D.C. Cir-
 cuit concluded that whether the plaintiff was a federal “em-
 ployee” covered by Title VII turned on issues of fact about
 the economic realities of her employment. 

.
 The D.C. Circuit rejected the government’s argument that
 the controlling definition of “employee” for Title VII should
 be taken from 

, noting that the § 2105 defi-
 nition was for “‘this title,’ i.e., Title [5],” Spirides, 

 (quoting 

(a)), and that “[u]se of the
 restrictive civil service definition here would not effectuate
 the broad remedial purposes of the [Civil Rights] Act,” 

. We need not adopt the conclusion or reasoning of
 Spirides to reach our result here. The court in Spirides ad-
 dressed the definition of “employee” under Title VII, not
 the FLSA, and Title VII does not have a section analogous
 to 

(g) defining “employ.” See generally 42
 U.S.C. § 2000e (defining “employer” and “employee” but
 not “employ”). But our conclusion is consistent with the
 D.C. Circuit’s conclusion in Spirides—a conclusion that the
 D.C. Circuit in Jackson explicitly declined to disturb. Jack-
 son, 

 (recognizing the difference between
 the civilian/uniformed issue and the “employ” issue).
     Mr. Lambro also cites Lopez v. Johnson, where the
 Ninth Circuit affirmed the district court’s grant of sum-
 mary judgment against a plaintiff claiming a violation of
 Section 501 of the Rehabilitation Act of 1973, 

. 

 (9th Cir. 2003). The Ninth Circuit con-
 cluded that it was clear from the factual record that the
 plaintiff, an employee of an independent contractor with
 the Navy, was not a federal employee under any of the ar-
 gued tests for federal employment—none of them simply
 the Title 5 test. 

. Section 501 borrows the
 “remedies, procedures, and rights” of Title VII, 29 U.S.C.
 § 794a(a)(1), and the Ninth Circuit consequently looked to
Case: 22-2249    Document: 42       Page: 17   Filed: 01/22/2024




 LAMBRO v. US                                               17



 Title VII standards to determine whether Lopez was an
 employee, Lopez, 

. Notably, in Lopez, the
 government itself argued for the application of a common-
 law agency test, not for restricting the relevant law to Title
 5 law, in determining Lopez’s employee status. Defend-
 ants-Appellees Brief, No. 02-35334, 

, at
 *11–12 (9th Cir. Jul. 15, 2002). Lopez is thus consistent
 with the conclusion we have reached from analyzing the
 statutory language of the FLSA.
                              III
     We have considered the government’s other arguments
 and find them unpersuasive. Because the Claims Court did
 not consider whether Mr. Lambro plausibly alleged that he
 was an employee entitled to FLSA protections under the
 ordinary FLSA standard, and because we hold that the
 FLSA authorizes the application of this standard to federal
 and non-federal employees alike, we vacate the Claims
 Court’s dismissal of Mr. Lambro’s timely claims. We re-
 mand the case for further proceedings consistent with this
 opinion.
     Costs are awarded to Mr. Lambro.
                VACATED AND REMANDED