Opposition Brief — Baltimore City Police Department v. Fraternal Order of Police, Lodge 3

No. 98-1802

In The

Supreme Court of the United States

BALTIMORE CITY POLICE DEPARTMENT, et al.,

Petitioners,

FRATERNAL ORDER OF POLICE, LODGE 3, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

S

MicHaet L. MARSHALL

Counsel of Record

SCHLACHMAN, BELSKY

& Weiner, P.A.

207 E. Redwood Street, 9th Floor

Baltimore, Maryland 21202

(410) 685-2022

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

oa

Dor

TABLE OF CONTENTS

PEE 66-685 0a vie Re eh Sewee hb einen b4c'ed nes on

3.

The Instant Case Is Unlike the One Contemplated

in Auer, and No Inter-circuit Conflict Exists with

Respect to Ansr’S MOANING ... 6. ccccccsccccccess

The “Comprehensive Record” in this Case Refers

in Large Part to the Salary Basis Test Portion of

Part 541, Which Was Not at Issue on Appeal in

the Fourth Circuit. The Fourth Circuit Acted

Properly Because it Recognized That a Balancing

Test Was Inapplicable to the Circumstances of

BE EP reer eT Tee eT eT TTT PEETEEEe

No Basis Exists for Challenging the Application

of the FLSA’s Primary Duty Test to State and

RAGE FOE SION 6 500 cevcncvecneresecececay's

a. While the Costs to State and Local Govern-

ments Imposed by Application of the Fair

Labor Standards Act to Municipal Police

Departments May Be Significant, Those Same

Costs Are Offset by the Amount of Money

States and Localities Receive from the Federal

EE SNORE FE op nin ese xecsaccessccds:

b. Notice and Comment under the Administra-

tive Procedure Act Has Been Satisfied as to

the Primary Duty Test, the Only Portion of

Part 541 at Issue on Appeal in this Case...

c. It Is Not “Arbitrary” and “Capricious” to

Apply the Primary Duty Test Found in Part

541 to Police Officers, Nor Is it Contrary to

ROI TRIG, «oo vccvcsccevccseadeves

9

il

TABLE OF CONTENTS - Continued

Page

d. There Has Been No Failure in the National

Political Process, Contemplated in Garcia,

That Has Imposed Undue Burdens on States

by the Application of the Fair Labor Stan-

dards Act to Police Officers................ 13

e. The Application of the FLSA and Related

Regulations to Police Officers Is Constitu-

COREE occ cccscntdacvvanes see teen eeeee anes 14

1) Extension of the FLSA to State and Local

Law Enforcement Was a Valid Exercise of

Delegated Congressional Commerce

Power, Especially in Light of this Court’s

Molding iff GOP oo ccccevinsacnescedens 14

2) Extension of the FLSA to State and Local

Law Enforcement is not foreclosed by the

Necessary and Proper Clause........... 15

3) Extension of the FLSA to State and Local

Law Enforcement is not foreclosed by the

Guarentee CHB. «565034045 ceseaeee ee 16

4) The Court’s Recent Decisions Are Consis-

tent with Garcia, and There Is No Real

Evidence to Suggest That the States Are

Not Adequately Protected by the Struc-

ture of the Federal Government, as Garcia

BORGOUEROG «ooo cccvavartcdeveneeesieses 17

CONCTATSUIN ccs ccasivdsnes decease sbesdateereseens 19

iii

TABLE OF AUTHORITIES

Page

Cases:

Adams v. United States, 40 Fed. Cl. 303 (Fed. Cl.

Pinker ceabseeee Gs beceseetddncenbewncneeers 2,3

Arrington v. City of Macon, 973 F. Supp. 1467 (M.D.

eer err rer rr TT TT Terre a 3, 9

Ass'n of Bituminous Contractors, Inc. v. Apfel, 156

i Pe PC COPED oscocdccvessrenvsseseesecs 3

Auer v. Robbins, 519 U.S. 452 (1997)............. passim

Balgowin v. New Jersey, 115 F.3d 478 (D.C. Cir.

ETT CETTE LECT CRT CET ETE TTT OCTET TTT 2

Bowman v. City of Indianapolis, 133 F.3d 513 (7th

Ot i ) ce a & F

Boyd v. Glickman, 12 F. Supp. 2d 1261 (M.D. Ala.

SESS Te eer ee ere TT TTT Tre TET Teer Tei 1

Cassell v. FTC, 154 F.3d 478 (D.C.Cir. 1998)........... 3

Chevron U.S.A. v. Natural Resources Defense Council,

Ce ssh aesedeekteervanessanss 1 > 1

FERC v. Mississippi, 456 U.S. 472 (1982) .............. 6

Fort Hood Barbers Ass'n v. Herman, 137 F.3d 302

EE EP OTe TTT eT eee Tere eT Te Teer ee 3

Garcia v. San Antonio Metropolitan Transit Author-

ity, 469 U.S. 528 (1985) .........cceceeseeceese passim

Heart of Atlanta Motel v. United States, 379 U.S. 241

ES Lei cheesenbbUFe eedetaneenexhs sieban evens 15

iv

TABLE OF AUTHORITIES - Continued

Page

McCullough v. Maryland, 4 Wheat 316, 4 L.Ed. 579

CORRE os nde Vonccquccandsesens shedaecesanveenree 16

National League of Cities v. Usery, 426 U.S. 833

GRIF OE a kth i inwaec cence wddenekssseemakdeinenbwosdenn 4

New York v. United States, 505 U.S. 152 (1992)

cu edMR WEG Me PANE eet eksoetalasatendeant 6 7,%, 7,

Printz v. United States, __ U.S. __, 117 S. Ct. 2365

SENT 64 ound cnueeeewatedenses scans 5, 6, 7, 15, 16, 18

United States v. Darby, 312 U.S. 100 (1941)........... 14

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) .... 18

STATUTES:

OF ees Te 444 eS et aeediceaaewbeneeruiaas 14

ae SP EE 0 6 on hn 533 6a sets vnve es soerevancee: 14

SO USL. § TAGS onc sccess oh) ee ee 8

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Se Wn We eA ete eh osc dbnskaceneensedesresnseons 8

ee eae IE ied oa orb nkoeentetineenecnaneee eerie 8

Se Deas Oe PRRs. s0 lee ieisedesekonsuteses see 8 |

Oe Waew O CREPE es bond cdveecereesevversnevicsuetaers 8 }

Oe i Uk PAK iio bhesukcceckseusaceeeteesrecnees 8

Brady Handgun Violence Prevention Act, Pub.L.

SPs FF BO TA ch ansncdcunsecesevasepuenees 5

erential

Vv

TABLE OF AUTHORITIES - Continued

Page

Cope OF FEDERAL REGULATIONS:

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Be Re SE sexkesionakdase cab cinaganadeeadtane 10

OTHER:

Fe PUT, TRGB 0 vc cccsicvsdceccsvewevevéustbans 10

Fee PE FI Ske kc ec ceaccenceedeaceurabianver 16

Deborah Jones Merritt, The Guarantee Clause and

State Authority: Federalism for a Third Century, 88

Ce: Ean. SHU Bae er nd bck coke eeus okeweueees 17

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ARGUMENT

1. The Instant Case Is Unlike the One Contem-

plated in Auer, and No Inter-circuit Conflict

Exists with Respect to Auer’s Meaning.

The language in Auer cited by the Department in its

Petition for Certiorari at page 12 does not “invite” a case

like the one presented here, primarily because the issues

the Department raises are those which have been

addressed by this Court in other cases involving the

FLSA in general, the salary basis test of Part 541 in

particular, and their application to local law enforcement

officers. See Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985) (involving application of

FLSA to public employers); Auer v. Robbins, 519 U.S. 452

(1997) (involving application of the salary basis test to

police officers). In addition, the Petitioners’ Auer refer-

ence regarding challenges to rulemaking does not

address the specific subject matter of the FLSA, the salary

basis test, and law enforcement officers. It merely illus-

trates the distinction between a challenge to an agency’s

failure to amend a regulation and a challenge to an

agency’s regulation based on its interpretation of the

enabling statute or based on flaws in procedural require-

ments under the APA.! If this Court wanted to express a

1 Interestingly, the standard of review is different for the

two types of challenges which the Auer Court recognized as

entitled to judicial review without initial recourse to the agency

directly. See Boyd v. Glickman, 12 F. Supp. 2d 1261, 1266 (M.D.

Ala. 1998). In that case, the District Court distinguished the two,

noting that the standard of review for interpretative challenges

was governed by Chevron U.S.A. v. Natural Resources Defense

Council, 467 U.S. 837 (1984) and the procedural challenge was

governed by the APA §§ 701-706.

desire to hear a case specifically addressing the disciplin-

ary-deduction rule of Part 541 as applied to state and

local governments, it presumably would have used “the

Department of Labor’s regulation” instead of “an

agency.” To say that this Court “invited this case as a

vehicle to address defects in the application of Part 541 to

State and local government employers,” Pet. for Cert. at

12, is to grossly overstate the ordinary understanding of

the Court’s language. |

Even if the Court did in fact invite this particular

type of case with the quoted language from Aver, the case

at issue here is not a candidate for Supreme Court review

because the issue raised by the Department in its Petition

for Certiorari mirrors that raised in the Fourth Circuit -

the applicability of the salary basis test of Part 541 to

local law enforcement. The salary basis test is no longer

at issue in this case. Respondent Sergeants and Lieuten-

ants have repeatedly argued in favor of application of the

“primary duty” test of Part 541, which the Department

fails to address anywhere in its Petition. The salary basis

test has been abandoned as an issue in this case; there-

fore, there is no need for the Court to hear this case.

ea

For much the same reason as noted above, any

“[p]ost-Auer confusion” among the lower courts, if any

truly exists, is largely irrelevant here. Several cases to

which the Petitioner cite as approving of or ignoring the

Auer language and which involve the application of the

FLSA to the public sector again address only the salary

basis test. See Balgowin v. New Jersey, 115 F.3d 478 (D.C.

Cir. 1997); Bowman v. City of Indianapolis, 133 F.3d 513 (7th

Cir. 1998); Arrington v. City of Macon, 973 F. Supp. 1467

(M.D. Ga. 1997); Adams v. United States, 40 Fed. Cl. 303 |

|

Seeeeeeerteiiemeiilil

(Fed. Cl. 1998). Two cases even make a point to say that

the primary duty test is not an issue at all. See Arrington,

973 F. Supp. at 1469; Bowman, 133 F.3d at 515-16. Because

Garcia foreclosed the relitigation of the propriety of

applying the FLSA overtime provisions to public

employees absent a failure of the national political pro-

cess, the only proper issue in this case was resolved by

the Fourth Circuit consistent with prior Supreme Court

decisions.

The Police Department's discussion on page 14 of its

Petition, citing cases in which challenges to regulations

were permitted, is incomplete. Ass’n of Bituminous Con-

tractors, Inc. v. Apfel, 156 F.3d 1246 (D.C.Cir. 1998), did not

challenge rulemaking procedures, but addressed agency

interpretation, invoking analysis under Chevron. The

same was true of Fort Hood Barbers Ass'n v. Herman, 137

F.3d 302 (5th Cir. 1998) and Adams v. U.S., 40 Fed. Cl. 303

(Fed. Cl. 1998). To the extent Adams did address the

propriety of rulemaking, it followed Auer. Adams, 40

Fed.Cl. At 306. Cassell v. FTC, 154 F.3d 478 (D.C.Cir. 1998),

specifically declined to address a rulemaking challenge

under the exhaustion doctrine. Id. at 485.

The same is true of the asserted conflict appearing in

part 3.e. of the Petition, page 22. Those cases did not

address rulemaking or notice and comment challenges.

Rather, they addressed agency interpretation utilizing an

arbitrary and capricious standard.

2. The “Comprehensive Record” in this Case

Refers in Large Part to the Salary Basis Test

Portion of Part 541, Which Was Not at Issue on

Appeal in the Fourth Circuit. The Fourth Circuit

Acted Properly Because it Recognized That a

Balancing Test Was Inapplicable to the Circum-

stances of this Case.

As noted above, the issue involving the disciplinary-

deduction portion of the salary basis test was disposed of

in the lower court. However, the record to which the

Department refers has been developed almost exclusively

on the basis of the numerous challenges to the salary

basis portion of Part 541. In fact, the primary duty test is

not mentioned at all in the Department's Petition.

A substantial portion of the Petitioner’s argument

revolves around the standard for limiting congressional

power under the Commerce Clause developed in Garcia.

There, this Court determined that the test from National

League of Cities v. Usery, 426 U.S. 833 (1976), i.e., that

Congress’ commerce power did not extend to regulations

which affected the states in “areas of traditional govern-

mental function,” was impractical and difficult to apply.

Garcia, 469 U.S. at 537-48 (quoting Usery, 426 U.S. at 845,

852, 854). When Garcia was decided, this Court estab-

lished a new test — that the commerce power extended to

regulation of state activities as long as the states had a

meaningful opportunity to be involved in the national

political process. Garcia, 469 U.S. at 554-56. As long as the

political process functions normally - as the Framers

envisioned — the reasoning goes, rules that are “unduly

burdensome” to the States will not be promulgated. Id. at

554, 556.

However, it is difficult to see how the Department

comes to the conclusion that the Court has molded the

Garcia standard into a balancing test through its decisions

in Printz v. United States, __ U.S. __, 117 S. Ct. 2365

(1997). and New York v. United States, 505 U.S. 152 (1992).

Both cases invalidated attempts by Congress to regulate

the states through legislation requiring states or localities

to expend resources and essentially become the vehicle to

implement the congressional mandate.? Neither case

made any reference to balancing tests; each legislative

scheme was rejected based on rather transparent attempts

by Congress to force states to implement unpopular gov-

ernment policies. In Printz, this Court chose to focus on

three areas: 1) the historical background of congressional

attempts to impose obligations on the executive and judi-

cial branches; 2) the structure of the Constitution itself —

namely, the conscious decision of the Framers to create a

system that would govern the people, not the states and to

establish a federal system; and 3) the Court’s previous

2 In Printz, the challenge was to a temporary provision of

the Brady Handgun Violence Prevention Act, Pub.L. 103-159,

107 Stat. 1536, which required local law enforcement agencies to

perform background checks on applicants who wanted to

purchase handguns until the national system mandated by the

statute was in place. 117 S. Ct. at 2368. New York involved a

provision of the Low-level Radioactive Waste Policy Act that

required states who did not comply with one of several

“options” given them by the statute to “take title” to all the low-

level radioactive waste that state produced, as well as to accept

all liability for any direct or indirect damages incurred by the

owners for failing to take title promptly. 505 U.S. at 153-54. The

effect would be for the state to pay to dispose of waste produced

by all private entities within that state’s boundaries. Id. at

174-77.

decisions, including New York. Printz, 117 S. Ct. at 2369. In

New York, this Court made it clear that, even if the Com-

merce Clause gave Congress the power to legislate the

performance or prohibition of certain acts, it did not give

Congress the ability to directly force the states to perform

or prohibit those activities. New York, 505 U.S. at 161

(citing FERC v. Mississippi, 456 U.S. 472, 762-66 (1982).

Neither case addresses a regulation promulgated under a

constitutional federal statute; neither attempts to weigh

the interests of the states against the interests of the

federal government. In fact, the New York Court made it

clear that no Justice had “ever suggested that [a partic-

ularly strong] federal interest would enable Congress to

command a state government to enact state legislation.”

505 U.S. at 178. Printz and New York instead look to basic

concepts of federalism, as it has been understood from

the founding of this nation, to determine whether Con-

gress has crossed the line.

While it is true that the Garcia Court did not specify

what such a “failure in the national political process”

would be in practical terms, the record in this case shows

that the Petitioners have been unsuccessful in their

attempt to demonstrate how the application of the FLSA

to state and local law enforcement officers is evidence of

a major threat to our system of constitutional federalism.

Furthermore, the fact that no legislation has been invali-

dated using a Garcia balancing test does not mean there

has been a misperception of Garcia by lower courts, as

suggested by the Police Department at pages 16-17 of

their Petition. It is far more likely evidence that our

national political process, which has worked for over 200

years, continues to do so.

3. No Basis Exists for Challenging the Application

of the FLSA’s Primary Duty Test to State and

Local Police Officers

a. While the Costs to State and Local Govern-

ments Imposed by Application of the Fair

Labor Standards Act to Municipal Police

Departments May Be Significant, Those

Same Costs Are Offset by the Amount of

Money States and Localities Receive from

the Federal Government Each Year.

It is significant that the regulations at issue here,

those which apply the FLSA to public employers includ-

ing local law enforcement, do not have the same fatal

flaw that the attempted regulations in Printz and New

York had. The laws challenged in those cases mandated

States and localities to act in certain ways directly, by

forcing them to expend their own resources to implement

Congress’ wishes. In contrast, the instant case involves

applying long-existing Department of Labor regulations

to public sector employers. The Supreme Court has

already passed on the propriety of such application in

numerous cases, including Garcia and Auer. As a result,

the Police Department attempts to show what it believes

are the enormous costs associated with compliance and

litigation. However, it is important to remember that the

same entities who now must comply with regulations

under the FLSA receive a sizeable amount of federal

money each year, even if not linked directly to the FLSA.

The FLSA is not the only federal legislation that requires

the states to make financial expenditures in order to

comply with a congressional mandate and which has

been upheld as a valid exercise of the commerce power.

See e.g., the Clean Air Act, 42 U.S.C. § 7401, the Fair

Housing Act, 42 U.S.C. § 3601, environmental policy leg-

islation, 42 U.S.C. § 4321, the Age Discrimination in

Employment Act, 42 U.S.C. § 6101, the Americans with

Disabilities Act, 42 U.S.C. § 12101, pollution control legis-

lation, 42 U.S.C. § 13101 and the Veteran’s Re-employ-

ment Rights Act, 38 U.S.C. § 2021. In the face of the

cumulative effect of such impositions, the Police Depart-

ment has offered no empirical evidence of state and local

governments being crippled.

In addition, it is necessary to keep the figures cited

by the Petitioners in perspective. They rely on figures

provided by the Advisory Commission on Intergovern-

mental Relations (“ACIR”) but do not specify what types

of costs were included in those figures. Pet. for Cert. at

18. Another issue that the statistics do not address is

whether the costs associated with implementing the regu-

lations would remain static every year. It is entirely possi-

ble that the initial costs would be high as a result of

creating mechanisms for determining ‘exempt status and

adjusting work schedules to try to avoid paying overtime

to non-exempt employees, but costs in later years could

dissipate. The potential litigation costs the Petitioners

address may be a factor precisely because of cases such as

this one, where state or local governments attempt to

relitigate issues that are not at issue on appeal.

b. Notice and Comment under the Administra-

tive Procedure Act Has Been Satisfied as to

the Primary Duty Test, the Only Portion of

Part 541 at Issue on Appeal in this Case.

The Police Department’s entire discussion of the

allegedly improper procedure used by the Department of

Labor when it applied Part 541 to state and local entities

centers around the salary basis test, which was not at

issue on appeal in this case. The Police Department has

not attempted to mount any sort of challenge to the

primary duty test portion of Part 541, even though that

portion of the regulation was adopted for application to

the public sector along with the salary basis test in Part

553. Presumably, then, the Department would have every

reason to challenge its notice of that portion of the

exemption test as well. Yet in its Petition, the Department

consistently refers only to the DOL’s failure to complete

its informal rulemaking process of revising Part 541 with

respect to the salary basis test. In fact, most of the cases

cited by the Department do not even address the primary

duty test; those that do mention it only do so to say that it

has been satisfied. See Arrington, 973 F. Supp. at 1469;

Bowman, 133 F.3d at 515-16. Even more importantly, this

case is indistinguishable from the facts of Auer, as the

Fourth Circuit noted:

it is clear that the City’s challenge, although

phrased in terms of notice and comment, is

really an attack on DOL’s failure to revisit

rulemaking in the wake of Garcia. Therefore,

because the record does not reveal that the City

has petitioned DOL to undertake amendatory

rulemaking, we conclude that the City’s chal-

lenge is premature.

10

Pet. for Cert., App. 5a. Also of importance is the fact that

notice and comment rulemaking existed in reference to

the original 1974 amendments extending the FLSA to

state and local governments. The Baltimore Police

Department was in existence at the time of these amend-

ments, and the 1974 provisions, at least as to the EAP

exemptions, virtually mirror the post-Garcia exceptions.

Additionally, the notice and comment in reference to

29 C.F.R. 553, which also applies to police, not only

mirrors § 541 exemptions, but specifically incorporates

§ 541 by reference:

(a) There are other exemptions from the mini-

mum wage and/or overtime requirements of the

FLSA which may apply to certain public agen-

cies. The following sections provide a discussion

of some of the major exemptions which may be

applicable. This list is not comprehensive.

+ + *

Section 13(a)(1) of the Act provides an exemp-

tion from both the minimum wage and overtime

pay requirements from any employee employed

in a bona fide executive, administrative, profes-

sional, or outside sales capacity, as those terms

are defined and delimited in Part 541 of this

title. An employee will qualify for exemption if

he or she meets all of the pertinent tests relating

to duties, responsibilities, and salary.

29 C.F.R. § 553.32. 51 Fed. Reg. 13,410 incorporated the

Part 541 reference regarding the notice of the EAP exemp-

tions:

§ 13(a)(1) of the Act provides an exemption from

both the minimum wage and overtime require-

ments for any employee employed in a bona

11

fide executive, administrative, professional, or

outside sales capacity, as those terms are

defined and delimited in Part 541 of this title.

An employee will qualify for exemption if he or

she meets all the pertinent tests relating to

duties, responsibilities, and salary.

Finally, the so-called “futility” in Auer’s requirement of

first petitioning the Department of Labor, as suggested by

the Police Department at page 22 of its petition, would

apply, if at all, to salary basis regulations. As discussed

supra, that is no longer a basis for the Sergeants’ and

Lieutenants’ claims. The Police Department has continu-

ally hinged its arguments on salary basis issues, and

continues to doggedly attack provisions not part of the

Respondents’ analysis. Indeed, the Amicus petition is

nothing but a salary basis attack, underscoring the inap-

posite nature of the Petitioners’ analysis.

c. It Is Not “Arbitrary” and “Capricious” to

Apply the Primary Duty Test Found in Part

541 to Police Officers, Nor Is it Contrary to

Congressional Intent.

As noted above, the Department has voiced no oppo-

sition to the primary duty test of Part 541 during the

entire thirteen years that the notice and comment period

for the revised Part 541 has been ongoing. Even if they

were to challenge the test under the “arbitrary” and

“capricious” standard of Chevron, that case makes it clear

that a court should give great deference to an agency’s

interpretation of congressional direction as provided by

the legislation. 457 U.S. at 842-46. The Chevron analysis

12

requires first that the reviewing court look to the statu-

tory language to see if Congress has provided a clear

mandate. Id. at 842-43. If so, the court looks to the

agency's interpretation of that language to see if it is in

accord with the mandate. Id. If the language is ambig-

uous, the court must then defer to the agency’s expertise

in the area as long as “the agency’s answer is based on a

permissible construction of the statute.” Id. at 844. No

such test was performed by the Court in Auer, so the

Department’s lengthy discussion of the salary basis test

and the relationship of Auer’s language precluding

review of certain administrative law issues is largely

irrelevant and serves merely to bootstrap the Depart-

ment’s contention that Auer does not foreclose review of

this case.

As to congressional intent, there is little evidence to

show that Congress is opposed to the application of

_DOL’s regulations to public employees. Garcia was

decided in 1985; to date, Congress has taken no action to

illustrate a desire to prevent local law enforcement from

coming under the umbrella of the FLSA. Subsequent

cases specifically addressing the relationship between the

FLSA and local law enforcement, cited at length by the

Petitioners, have likewise failed to spur congressional

action to reverse the direction taken by the DOL.

13

d. There Has Been No Failure in the National

Political Process, Contemplated in Garcia,

That Has Imposed Undue Burdens on States

by the Application of the Fair Labor Stan-

dards Act to Police Officers.

The Police Department’s expert witnesses testified as

to their own perceptions of the direction our government

has taken, based on their experience in politics and schol-

arship. However, neither the experts themselves nor the

Department in its Petition was able to show with partic-

ularity how the experts’ ruminations about state and local

governments’ inability to participate in the political pro-

cess was borne out in the instant case. The Petitioners

have failed to show any sort of nexus between the appli-

cation of Part 541 to state and local entities and the

testimony of the experts as to the failure of the national

political process. Nowhere did they suggest that states

and municipalities were unable to provide meaningful

input into the process of implementing the FLSA. In fact,

states and municipalities are free to petition the DOL for

a revision of the current standards; they were also able to

participate in the initial notice and comment rulemaking

under which the current rules are promulgated. If they

then feel that their concerns are not being addressed, they

have recourse to forming coalitions and lobbying Con-

gress for a change in the law, or even to influence future

congressional elections.* But it is disingenuous to argue

that the national political process has failed just because

3 A good example of such organization is the numerous

groups who have filed as amici curiae with this Court as well as

with the Fourth Circuit.

14

the complaining states’ wishes were not granted with

respect to FLSA exemptions. The argument is similar to

an appellate advocate who, having presented his argu-

ment to the Court, complains of a failure of the judicial

process because the Court did not rule in his favor.

In fact, evidence of state and local ability to influence

legislation exists empirically in 29 U.S.C. § 207(k), provid-

ing for more flexible computation of overtime payment

periods for, inter alia, police, and 29 U.S.C. § 207(o),

allowing crediting public employees with compensatory

time. How such clear concessions to state and local gov-

ernments could exist given the utter failure of the

national political process suggested by the Petitioners

remains unexplained.

e. The Application of the FLSA and Related

Regulations to Police Officers Is Constitu-

tional.

1) Extension of the FLSA to State and Local

Law Enforcement Was a Valid Exercise

of Delegated Congressional Commerce

Power, Especially in Light of this

Court’s Holding in Garcia.

The interstate nexus required by the Commerce

Clause is met by application of the regulations promul-

gated under the FLSA to police officers because the

nature of police work can and does have a “substantial

effect on interstate commerce,” the standard established

in United States v. Darby, 312 U.S. 100, 119-20 (1941). In

the case at bar, the Sergeants and Lieutenants presented

evidence showing that Baltimore City Police respond to

i

15

calls on Interstates 83 and 95, two major thoroughfares

for interstate travel to the Port of Baltimore. Among other

things, it provides protection to businesses and manufac-

turers that engage in interstate commerce, some of its

officers conduct out-of-state investigations and assist fed-

eral authorities in investigations, it investigates crimes

that cross state lines, and is required to go out of state to

apprehend fugitives. As a result of such connections,

police work in Baltimore City cannot truly be charac-

terized as a purely intrastate activity. Even if the work

could be considered purely intrastate, that activity does

have a substantial effect on interstate commerce, because

absent the Baltimore City Police’s presence and their

efforts to apprehend criminals and protect people and

businesses, interstate commerce passing through the state

of Maryland would be severely reduced. Such a situation

is analogous to that involved in Heart of Atlanta Motel v.

United States, 379 U.S. 241 (1964). There this Court held

that motel owners could not engage in racial discrimina-

tion to prevent black people from patronizing their estab-

lishment because, although motel business was a purely

intrastate activity, it nonetheless substantially affected

interstate commerce. Id. at 255-258.

2) Extension of the FLSA to State and Local

Law Enforcement is not foreclosed by

the Necessary and Proper Clause

The Petitioners are misguided in believing that Printz

governs their contention that the Necessary and Proper

Clause, U.S. Const. art. I, § 8, cl. 18, precludes the applica-

tion of the FLSA to this case. Printz involved a direct

congressional mandate to states and localities that the

16

Court found was impermissible under the Constitution.

117 S. Ct. at 2384. It specifically noted that no provision of

the Constitution governed such an action, so this Court

resorted to a review of history, the structure of the Con-

stitution, and the Court's prior jurisprudence to arrive at

a decision. Id. at 2369. What is more germane to the

necessary and proper issue is the reading of “necessary

and proper” by Alexander Hamilton in the Federalist No.

22: “necessary often means no more than needful, requi-

site, incidental, useful, or conductive to,” The Federalist

No. 22, at 97, which has been consistently upheld by this

Court. See e.g., McCullough v. Maryland, 4 Wheat 316, 4

L.Ed. 579 (1819). This broader interpretation conforms to

a more reasonable understanding of the federal govern-

ment’s role that limits Congress’ power while simul-

taneously giving Congress the tools it needs to function

in its role as a dual sovereign.

3) Extension of the FLSA to State and Local

Law Enforcement is not foreclosed by

the Guarantee Clause

The Sergeants and Lieutenants do not argue with the

assertion that the guarantee clause operates to protect

“dual sovereignty,” New York, 505 U.S. at 184-86; Printz,

117 S. Ct. at 2376-77. What they do disagree with, how-

ever, is the contention that national regulation of the

wages of local police officers somehow prohibits the fed-

eral government from guaranteeing the states a republi-

can form of government. While it is true that police

officers enforce state law, it is also true that those officers

to whom the regulation at issue would apply are not the

—

17

individuals with the discretion to determine “what con-

duct constitutes a crime and when to effect an arrest.” (p.

28, quoting Deborah Jones Merritt, The Guarantee Clause

and State Authority: Federalism for a Third Century, 88

Colum. L. Rev. 1, 57 (1988)). For the most part, the officers

who potentially are affected by the overtime regulations

of the FLSA are individuals who follow policies set by the

Commissioner and his advisors. Their discretion is neces-

sarily limited by their position at the lower end of the

hierarchy and the need to have a set of uniform rules to

ensure that all people are treated fairly. The fact that the

Commissioner is the ultimate arbiter of policy belies the

Petitioners’ argument; the Commissioner is appointed by

the Mayor and is ultimately responsible to the Mayor and

the citizens who elected him. Finally, Garcia mandates

that the FLSA regulations apply to all public employees;

the Police Department’s implication that police officers

are in the same category as governors, legislators, and

judges* is inexplicable.

4) The Court’s Recent Decisions Are Con-

sistent with Garcia, and There Is No

Real Evidence to Suggest That the States

Are Not Adequately Protected by the

Structure of the Federal Government, as

Garcia Emphasized.

New York and Printz should not be read to alter the

way the Court views federalism, because, while neither

4 These categories of public employees are exempt from the

FLSA by the statute itself.

18

explicitly relied on Garcia's “failure of the political pro-

cess” standard, both involved situations in which this

Court did not need to articulate that standard. Both cases

involved congressional attempts to directly regulate

states and localities which, this Court noted in Printz, is

not directly addressed in the Constitution. 117 S. Ct. at

2369. The two cases are inapposite to the situation pre-

sented by this case which, contrary to the Petitioners’

assertions, is controlled by Garcia because police officers

are public employees and the DOL’s regulations were

promulgated under properly delegated commerce power.

Although a different type of employee was involved in

Garcia, the fact that both cases involved overtime regula-

tions under the FLSA suggests more of a connection than

Printz and New York, which involved federal legislation

forcing states to act in certain ways. Finally, the Peti-

tioners are in error when they assert that a Garcia analysis

would invalidate application of the FLSA in this case. Pet.

for Cert. at 30. They neglect to explain what they mean

when they say that the states were “politically iso-

lated .. . at the time of the 1974 Amendments to the

FLSA,” and that Congress “stripped” the states of their

“natural allies.” Id. The argument is ultimately revealed

to be circular; because the FLSA was applied to the States,

this necessarily means that States were politically iso-

lated, unable to act.

Even assuming that the Police Department correctly

interprets the Court as endorsing the belief that the mem-

bers of Congress of a State do not represent the citizens of

that state, it is important to remember that it is the

citizens of that State who elect those same congressional

members. The Police Department's citation to U.S. Term

19

Limits v. Thornton, 514 U.S. 779, 803 (1995), omits the

context of the discussion, which involved the inability of

states to prescribe qualifications for congressional mem-

bers. To draw from that discussion a conclusion that these

elected officials no longer respond to concerns of their

respective home states is unwarranted.

¢

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

MICHAEL MARSHALL

Counsel of Record

SCHLACHMAN, Betsky &

Weiner, P.A.

207 East Redwood Street,

9th Floor

Baltimore, Maryland 21202

(410) 685-2022

Attorneys for Respondents

App. 1

: APPENDIX

29 U.S.C. § 207(k):

Employment by public agency

engaged in fire protection or law

enforcement activities

No public agency shall be deemed to have vio-

lated subsection (a) of this section with respect

to the employment of any employee in fire pro-

tection activities or any employee in law

enforcement activities (including security per-

sonnel in correctional institutions) if -

(1) in a work period of 28 consecutive

days the employee receives for tours of

duty which in the aggregate exceed the

lesser of (A) 216 hours, or (B) the aver-

age number of hours (as determined

by the Secretary pursuant to section

6(c)(3) of the Fair Labor Standards

Amendments of 1974) in tours of duty

of employees engaged in such activ-

ities in work periods of 28 consecutive

days in calendar year 1975; or

(2) in the case of such an employee to

whom a work period of at least 7 but

less than 28 days applies, in his work

period the employee receives for tours

of duty which in the aggregate exceed

a number of hours which bears the

same ratio to the number of consecu-

tive days in his work period as 216

hours (or if lower, the number of hours

referred to in clause (B) of paragraph

(1)) bears to 28 days,

App. 2

compensation at a rate not less than one and

one-half times the regular rate at which he is

employed.

29 U.S.C. § 207(o):

Compensatory time

(1) Employees of a public agency which is a

State, a political subdivision of a State, or an

interstate governmental agency may receive, in

accordance with this subsection and in lieu of

overtime compensation, compensatory time off

at a rate not less than one and one-half hours for

each hour of employment for which overtime

compensation is required by this section.

51 Fed. Reg. 13,410:

§ 13 (a)(1) of the Act provides an exemption

from both the minimum wage and overtime

requirements for any employee employed in a

bona fide executive, administrative, profes-

sional, or outside sales capacity, as those terms

are defined and delimited in Part 541 of this

title. An employee will qualify for exemption if

he or she meets all the pertinent tests relating to

duties, responsibilities, and salary.