                                                                   [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                  FILED
                                                       U.S. COURT OF APPEALS
                             _______________             ELEVENTH CIRCUIT
                                                              10/25/99
                                                           THOMAS K. KAHN
                               No. 97-6047                     CLERK
                             _______________

                      D. C. Docket No. 93-0555-AH-M


CLYDE H. FREEMAN, CHARLIE AGEE, et al.,

                                                          Plaintiffs-Appellants,

                                   versus

CITY OF MOBILE, ALA., a municipal corporation,


                                                           Defendant-Appellee.


                    ______________________________

                 Appeal from the United States District Court
                    for the Southern District of Alabama
                   ______________________________

                             (October 25, 1999)


Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit Judges.

PER CURIAM:
      In this case, several dozen police officers (“Appellants”) seek overtime

compensation from the City of Mobile, Alabama (“City”) pursuant to the Fair Labor

Standards Act, 29 U.S.C. §§ 201-19 (“FLSA”) for time spent on roll-call and other

pre- and post-shift duties and overtime pay on a state law contract claim based on a

1969 Alabama law entitling policemen in Mobile County to overtime compensation

for work in excess of 40 hours per week. The district court granted summary

judgment to the City on three grounds: (1) that the City was entitled to a statutory

exemption under 29 U.S.C. § 207(k) (“7(k) exemption”) and, thus, was not required

by FLSA to pay overtime compensation for policemen who worked no more than 86

hours per 14-day pay period; (2) that the City was not liable for docking the pay of

certain sergeants and lieutenants who had worked more than 86 hours in 14-day pay

periods because the Department of Labor's no-docking regulation, 29 C.F.R. § 541-

118(a), was invalid as applied to the City; and (3) that the state law contract law was

invalid because it relied on a state statute that had been superseded by a regulation

promulgated by the Mobile County Personnel Board. On appeal, we upheld the

district court's finding that the City was entitled to the 7(k) exemption, see Freeman

v. City of Mobile, 146 F.3d 1292, 1297 (11th Cir. 1998) (Freeman I), but held,

pursuant to Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905 (1997), that the district

court erred in holding that the no-docking regulation was invalid as applied to the


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City, see Freeman I, 146 F.3d at 1297-98. While we held that there were disputed

questions of fact as to whether the City had reimbursed the improperly docked

sergeants and lieutenants pursuant to the no-docking rule's “window of corrections,”

id. at 1298 (citing 29 C.F.R. § 541.118(a)(6)), we held the remand on that issue in

abeyance pending certification of two questions on the state law contract issue to the

Alabama Supreme Court. The first question certified was:

       QUESTION ONE: DOES THE MOBILE COUNTY PERSONNEL
       BOARD HAVE THE POWER TO REPEAL OR OTHERWISE
       AMEND OR SUPPLANT LOCAL ACTS PASSED BY THE
       ALABAMA STATE LEGISLATURE SUCH AS 1969 ALA. LOCAL
       ACTS 856?

If the answer to the first question was “yes,” we asked the Alabama Supreme Court

to answer a second, subsidiary question:

       QUESTION TWO: IF THE MOBILE COUNTY PERSONNEL BOARD
       HAS THE POWER TO REPEAL ACT 856, DID THE BOARD IN
       FACT REPEAL ACT 856 BY IMPLICATION WHEN IT ENACTED
       RULE 3.1(c)?

       On September 10, 1999, the Alabama Supreme Court issued its opinion on the

two questions.1 The Alabama Supreme Court answered the first question as follows:

       “It is settled law that the Legislature may not constitutionally delegate its
       powers, whether the general power to make law or the powers

       1
           We acknowledge our appreciation to the Supreme Court of Alabama for accepting our
certification of these important issues of Alabama law. That Court's prompt and thorough response
to our certification allows us to discharge our responsibility for resolution of this case while
respecting the consistency and authority of Alabama law.

                                               3
      encompassed within that general power . . . .” Included within the
      Legislature's general power is “<the power to make, alter, amend and
      repeal laws.'” Thus, although the Legislature can delegate the power to
      make rules and regulations for the “purpose of carrying [the law] into
      practical effect and operation . . . and to secure an effective execution of
      the same,” it cannot delegate the power to repeal, amend, or otherwise
      supplant an act of the Legislature. While the Legislature can certainly
      establish standards and authorize the Personnel Board to adopt rules
      within those standards, “[i]t is an entirely different thing for the
      Legislature to . . . authorize the creature to supersede the enactments of
      the creator.”
      Moreover, even if the Legislature could validly delegate the power to
      repeal, amend, or otherwise supplant an act of the Legislature, the
      Legislature has not attempted to do so in this case. Section IX(c) of Act
      470 specifically provides that the rules adopted by the Personnel Board
      “may include any provisions relating to the Classified Service, not
      inconsistent with the laws of the state, which may be necessary or
      appropriate to give effect to the provisions and purposes of this Act.”
      (Emphasis added.) The Personnel Board cannot adopt any rule contrary
      to Act 470 because Act 470 is the act from which the Personnel Board
      derives its authority. Thus, the Legislature could not – and it has not
      attempted to – authorize the Personnel Board to repeal, amend, or
      otherwise supplant an act of the Alabama Legislature.

Freeman v. City of Mobile, No. 1971847, slip op. at 4-6 (Ala. Sept. 10, 1999)

(citations omitted; alterations in original). Because it answered “no” to the first

question, the Alabama Supreme Court did not answer the second, supplementary

question. Id. at 2 & n.1.

      In light of the Alabama Supreme Court's answer to the first certified question,

we VACATE the district court's grant of summary judgment to the City on the state

law contract question. In accordance with our previous opinion and with the Alabama

                                           4
Supreme Court's answer, we REMAND to the district court to consider the FLSA no-

docking claims and the state law contract claims.




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