29 C.F.R. § 541.303(f) (1992). This interpretation is not a regulation promulgated according to the notice and comment requirements of the Administrative Procedure Act; it is merely an expression of the Labor Department's understanding of § 541.3. The interpretation has not been revised since 1949.
The Court is under no obligation to follow the Labor Department's interpretations. Throughout these proceedings, Sherwood's counsel has insisted upon referring to the interpretations as "regulations." Yet they are not regulations, and therefore they do not have the force of law. See Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944). Indeed, they "cannot be decisive in the context of present day journalism. They are useful guides, nothing more." Sherwood v. Washington Post, 677 F. Supp. 9, 14 (D.D.C. 1988) (Gesell, J.), rev'd on other grounds, 276 U.S. App. D.C. 404, 871 F.2d 1144 (D.C. Cir. 1989). The Third Circuit has recently held that the interpretations at issue do not have the force of law. See Gateway Press, 13 F.3d at 699 n.17 ("The DOL interpretations do not have the force of law. . . . They are entitled to some deference, however.").
Sherwood cites several cases in support of his argument that interpretations such as these are "binding" on the Court. See Pl.'s Mem. in Support of Proposed Findings of Fact & Conclusions of Law at 41-42, 58 n.70. These cases are merely an odd assortment of decisions that mistakenly refer to the interpretations as "regulations." See, e.g., Brock v. Claridge Hotel & Casino, 846 F.2d 180, 184 (3d Cir.) (erroneously referring to 29 C.F.R. § 541.118(b) as a "regulation"), cert. denied, 488 U.S. 925, 102 L. Ed. 2d 326, 109 S. Ct. 307 (1988); Clark v. J.M. Benson Co., 789 F.2d 282, 286 (4th Cir. 1986) (erroneously referring to 29 C.F.R. §§ 541.103, 541.206(b) as "regulations"); Roney v. United States, 790 F. Supp. 23, 27 (D.D.C. 1992) (erroneously referring to 29 C.F.R. § 541.205 as a "regulation"). None of these cases explicitly hold that the interpretations are "binding." The most these cases show is that on some occasions, when the difference between regulations and interpretations was not at issue, courts have loosely referred to the interpretations as "regulations," perhaps because they are collected in the Code of Federal Regulations. Agency interpretations do not acquire the force of law simply because a court accidentally mischaracterizes them.
In deciding what weight to accord these nonbinding interpretations, the Court can consider "the thoroughness evident in [the Department's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140. After considering these factors, the Court concludes that the Labor Department interpretations should be accorded very little weight. The evidence submitted at trial demonstrated that in the 1940s, when the interpretations were drafted, newspapers were staffed primarily by "leg men" and "rewrite men" whose jobs consisted entirely of doing what they were told to do. Stories were simple, one-dimensional, and contained virtually no analysis. See PP 45-51 supra. In the forty years since then, the era of the leg men and rewrite men has passed, and the average reporter at the Washington Post displays invention, imagination, and talent that only a few "top-flight" reporters could have demonstrated in 1949. The interpretations still refer to "leg men" and "rewrite men," thus clearly relying upon an outdated conception of the news profession. Their "power to persuade" is meager indeed.
The Court therefore rejects the interpretations' conclusion that "the reporting of news . . . must be considered as nonexempt work." This blanket assertion cannot apply to modern reporters who, like Sherwood, must exercise invention, imagination, and talent to perform their jobs. The Court likewise rejects the interpretations' assertion that a reporter's work is exempt if he or she "collects facts about news events by investigation, interview, or personal observation and writes stories reporting these events for publication." The nature of news reporting and writing has changed so dramatically over the past forty years that this conclusion is clearly false. Similarly, whether Sherwood was an "editorial writer, columnist, critic, or 'top-flight' writer of analytical and interpretative articles" is irrelevant. See Pl.'s Proposed Findings of Fact & Conclusions of Law at 32. In rejecting the conclusion of the interpretations, the Court again distinguishes the facts in this case from the facts in Gateway Press, 13 F.3d 685. The Third Circuit held that local, weekly newspaper reporters, whose primary duties consisted of gathering facts for publications such as school lunch menus and wedding announcements, were not "artistic professionals" under the short test. See Gateway Press, 13 F.3d at 699. As the Third Circuit itself noted, that type of small town reporting is not the type of reporting that demands the skill or expertise of an investigative journalist at the Post. Id. at 700. The Court holds that Sherwood's reporting job at the Post required invention, imagination, and talent that was not required of the Gateway Press reporters. Sherwood covered subjects such as complex D.C. politics, Virginia politics, and vice presidential candidates -- not school lunch menus and church news.
Finally, the Court notes that the last sentence of the Labor Department's interpretation, which is the only sentence containing a specific description of a reporter's duties, still accurately describes nonexempt work. This sentence states that "the leg man, the reporter covering a police beat, the reporter sent out under specific instructions to cover a murder, fire, accident, ship arrival, convention, sport event, etc., are normally performing duties which are not professional in nature." This sentence portrays the daily work of a 1950s reporter, a species of newswriter who was nearly always "sent out under specific instructions" to cover particular stories. If Sherwood had been this sort of reporter, or a small press reporter as in Gateway Press, then his work might have fallen within the scope of the exemption. Sherwood, however, was not a robot run by his editors. See PP 28-34, supra. His job required him to originate his own story ideas, maintain a wide network of sources, write engaging, imaginative prose, and produce stories containing thoughtful analysis of complex issues. A "leg man" or "rewrite man" could never do so much.
For these reasons, the Court finds and concludes that Sherwood's primary duty consisted of the performance of work requiring invention, imagination, and talent. His work was therefore exempt from the overtime provisions of the FLSA. The Court will accordingly enter judgment in favor of the defendant. An appropriate order will issue.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE
Dated: December 28, 1994
ORDER AND JUDGMENT
Upon consideration of the trial of this case, the Court having made findings of fact and conclusions of law, and consistent with the Memorandum Opinion issued today, it is this 28th day of December, 1994,
ORDERED, ADJUDGED, and DECREED that judgment be, and hereby is, entered in favor of the defendant, the Washington Post.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE