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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0793%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 812

## Text

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

Se Os a 0 00 a oes pan snnenennenaneseshheeanee 8

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:
BP Gees GEE scccncvenvecndsccnevaedesesasusunes passim
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

)
Serene etree rere meer ern
a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0793%3A2. Public record. Not legal advice.