                                             Filed:   October 8, 1998

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 97-1081
                            (CA-92-1066-B)



Fraternal Order of Police, etc., et al,

                                               Plaintiffs - Appellees,

           versus


Baltimore City Police Department, et al,

                                              Defendants - Appellants.



                              O R D E R



           The court amends its opinion filed September 23, 1998, as

follows:

           On page 4, section 5 -- the status is changed to read

“Remanded by unpublished opinion.   Judge Murnaghan wrote the opin-

ion, in which Senior Judge Butzner and Judge Fox joined.”



                                          For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                   Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRATERNAL ORDER OF POLICE, LODGE
3; ROBERT B. ACKERMAN; EDWARD E.
ADELHARDT; DEAL G. ALLEN, JR.;
THOMAS MEREDITH ARTHUR; JOHN
ROBERT BAILEY; PAUL F. BAILEY;
JESS R. BAKER; JOHN F. BAKER, JR.;
THOMAS D. BANNON; JOSEPH J.
BELING, JR.; THOMAS BERENDS; JOHN
MICHAEL BEVILACQUA; GEORGE E.
BEWLEY; AUGUST A. BEYER, III;
GABRIEL T. BITTNER; RANDY W.
BLADES, SR.; PAUL M. BLAIR, JR.;
EDWIN J. BOSTON; THOMAS B.
BRANNOCK; LARRY BRAY; DAVID R.
BROWN; ROGER D. BROWN; ANTHONY
G. CANNAVALE, JR.; JOHN CANNON;
                                      No. 97-1081
MICHAEL CANNON; JAMES G.
CAPPUCCINO, JR.; MICHAEL J.
CASSIZZI; CLIFTON M. CAVEY; JOSEPH
A. CHIANCA, JR.; GARY T. CHILDS;
JOHN J. CHRISTIAN; JOSEPH C.
CHRISTIANSEN; STEVEN D. COTHERN;
JOHN S. COWAN, JR.; JOHN G. CREE,
JR.; JOHN R. CUNNINGHAM; JACK N.
D'AMARIO; JOSEPH J. DARCHICOURT;
LEWIS C. DAVIS, III; PAUL E. DAVIS;
ROBERT DEANGELIS; GERARD G.
DEMANSS; FREDERICK DILLON;
CHARLES J. DIXON; STANLEY R.
DORSEY; JOHN R. DRAA; E. K.
FINKENBINDER; ROBERT FLOYD, JR.;
REGIS LEO FLYNN; JOHN FOSTER;
DEBRA L. FOX; MARTY FRIDINGER;
MARVIN A. FRONEBERGER; VICTOR
CHARLES GEARHART; JOSEPH T.
GEFFERT; EDWARD C. GLACKEN, III;
PHILIP G. GONYO; BERRY GRANT;
VERNON W. GRAY, JR.; LLOYD W.
GREEN; J. CHARLES GUTBERLET, III;
WILLIAM G. HAMLIN; RICHARD L.
HANCOCK; NEIL E. HANSEN; MICHAEL
T. HARDING; PHYLLIS K. HARRIS;
ROBERT HAUKDAL; DON W. HELMS;
JOHN R. HERGENROEDER; HENRY
HEROLD, JR.; MICHAEL J. HICKS;
LOUIS F. HILL; RUDOLPH HOLLEY;
JAMES R. HORNER, SR.; CARL
JOHNSON; VAN STEVEN JOHNSON;
ROBERT E. JONES, SR.; JAMES V.
KELLY; WINDSOR W. KESSLER; JERRY
M. KINGSBURY; RICHARD L. KLINE;
FREDERICK V. KOCH; EDWARD C.
KOLUCH; DONALD F. KRAMER, SR.;
DONALD L. KREBS; LOUIS N.
KULAGA; MICHAEL T. KUNDRAT;
RONALD J. LAMARTINA; JAY C.
LANDSMAN; JOHN W. LAUFERT;
ROBERT M. LEFTWICH; DAVID
LIPSCOMB; HARRY J. LOBER, JR.;
RICHARD J. LONG, III; KURT LURZ;
LAWRENCE S. MALOY; THOMAS A.
MALY; TIMOTHY C. MARKLAND;
DOMINIC MASTROMATTEO; JOHN R.
MCCULLOM; JOHN E. MCHALE;
FRANCIS K. MELCAVAGE;

              2
STANLEY F. MEZEWSKI; C. F.
MILLAND; JOHN H. MILLER; PAUL S.
MILLER; DONALD E. MORGAN;
HAROLD GENE MUNCY; JULIUS
MURFREE; LEANDER S. NEVIN; MIKE
NEWTON; ROGER W. NOLAN; DONALD
E. OAKJONES; EDWARD V.
O'HALLORAN; ROBERT A. OROS;
ALEXANDER F. ORR, JR.; STEPHEN R.
PAGOTTO; NICHOLAS R. PALMERI;
KATHLEEN T. PATEK; KENNETH S.
PEACH; RICHARD PIEL; RICHARD G.
PULLER; TONY C. RESTIVO; JOSEPH B.
RICHARDSON; JOSEPH RIHA; WILLIAM
A. ROBBINS, III; JEFFREY ROSEN;
VICTOR A. SANTIAGO; ANTHONY J.
SARRO, JR.; EDWARD C. SCHMITT, JR.;
JAMES P. SCHUCH; ROBERT P. SHARP;
JAMES R. SHARPE; RUSSELL N. SHEA,
JR.; DAVID W. SHIREY; JOHN V.
SIERACKI, JR.; JOHN L. SIPES; JOHN E.
SLAWINSKI; RONALD M. SMEDBERG;
JAMES E. SMITH; CHARLES A.
SNITZEL; RONALD E. SPENCER;
ROBERT M. STANTON; JAMES
STARLEPER; JAMES R. STEEDMAN; ROY
ALLEN STEVENS; KENNETH M.
STOCKWELL; WILLIAM F. STONE;
HAROLD STREAT; ANDRE M. STREET;
CHRISTOPHER M. STREETT; WILLIAM
SULLIVAN; ALLAN R. SWENSON;

               3
MICHAEL L. TABOR; JOSEPH E.
TEANO; JOHN F. TEWEY; THOMAS J.
UZAROWSKI; JERRY VAN DER
MEULEN; WALTER A. VAUGHN;
ROBERT G. VINCI; JO ANN VOELKER;
JOHN L. WADE; JOSEPH WEBER;
CHARLES WERNZ; JOHN M. WHEELER;
GARY F. WHITE, SR.; JOHN WILEY;
MELVIN WILSON; WAYNE R. WILSON,
Plaintiffs-Appellees,

v.

BALTIMORE CITY POLICE DEPARTMENT;
THOMAS C. FRAZIER,
Defendants-Appellants.

INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; THE CITY OF NEW
YORK; SECRETARY OF LABOR,
Amici Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-92-1066-B)

Argued: July 16, 1997

Decided: September 23, 1998

Before MURNAGHAN, Circuit Judge, BUTZNER,
Senior Circuit Judge, and FOX, United States District Judge
for the Eastern District of North Carolina,
sitting by designation.

_________________________________________________________________

Remanded by unpublished opinion. Judge Murnaghan wrote
the opinion, in which Senior Judge Butzner and Judge Fox
joined.

                   4
COUNSEL

ARGUED: John D. Maddox, ARTER & HADDEN, Washington,
D.C., for Appellants. Edward Dean Sieger, Senior Appellate Attor-
ney, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Amicus Curiae Secretary. Michael Lawrence Marshall,
SCHLACHMAN, BELSKY & WEINER, P.A., Baltimore, Maryland,
for Appellees. ON BRIEF: Thomas H. Odom, Terri L. Bowman,
ARTER & HADDEN, Washington, D.C.; Otho M. Thompson, City
Solicitor, James S. Ruckle, Jr., Associate City Solicitor, BALTI-
MORE CITY LAW DEPARTMENT, Baltimore, Maryland, for
Appellants. J. Davitt McAteer, Acting Solicitor of Labor, Allen H.
Feldman, Associate Solicitor for Special Appellate and Supreme
Court Litigation, Nathaniel I. Spiller, Deputy Associate Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Amicus Curiae Secretary. Henry W. Underhill, Jr., Donna
Clemons-Sacks, INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION, Washington, D.C.; Renee R. Christina, Greenville,
South Carolina, for Amicus Curiae IMLA. Paul A. Crotty, Corpora-
tion Counsel of the City of New York, Kristin M. Helmers, Timothy
J. O'Shaughnessy, New York, New York, for Amicus Curiae City.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Appellant, Baltimore City Police Department (City), appeals the
district court's denial of its motion for summary judgment in a suit
brought by the Fraternal Order of Police and various City police ser-
geants and lieutenants (collectively, Officers), to collect overtime
compensation they believe they are entitled to under the Fair Labor
Standards Act (FLSA), 29 U.S.C. §§ 207-219. Following summary
judgment, the district court certified four questions of law pursuant to

                    5
28 U.S.C. § 1292(b), and we granted the City permission for an inter-
locutory appeal.

I.

The first certified question is:

           Whether Department of Labor (DOL) regulations estab-
          lishing criteria for exemption, 29 C.F.R. Part 541 (with the
          exception of 29 C.F.R. § 541.5d) are invalid as applied to
          States and their subdivisions because they were promulgated
          without adequate notice and comment as required by the
          Administrative Procedure Act (APA), 5 U.S.C. § 553?

The FLSA mandates that covered employers pay overtime compen-
sation to eligible employees at a rate of one and a half times the
employee's regular rate of pay for each hour worked. See 29 U.S.C.
§ 207(a)(1). The Act expressly excludes from that requirement any
employee who works in a "bona fide executive, administrative, or
professional capacity," as those terms are "defined and delimited" by
the Secretary of Labor. See 29 U.S.C. § 213(a)(1). In 1938, DOL pro-
mulgated regulations, 29 C.F.R. Part 541, to define the duties that
qualify for executive, administrative, or professional exemption. The
exemption was further defined during the 1940s, with DOL's creation
of the "salary basis" and "primary duty" tests, both of which provide
standards for the application of Part 541. See 14 Fed. Reg. 7705-07,
7730-40 (1949).

As originally enacted, the FLSA applied only to private sector
employers. However, in 1974, Congress amended the Act to include
within the definition of a covered employer any "public agency,"
thereby making the FLSA applicable to a broad range of state and
local government employers. See 29 U.S.C. § 203(d). The 1974
amendments were initially declared unconstitutional by the Supreme
Court in National League of Cities v. Usery, 426 U.S. 833 (1976), on
the ground that they encroached upon "traditional governmental func-
tions," such as police activities, that are beyond the reach of the fed-
eral commerce power, id. at 852. But nine years later, in Garcia v.
San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), the Supreme

                     6
Court overruled National League of Cities, and Congress reinstated
the extension of the FLSA to state and local governments.

In the case at bar, the City contends that Part 541 is invalid because
DOL failed to undertake notice and comment rulemaking, pursuant to
the APA, 5 U.S.C. § 553(b)-(d), following the extension of the FLSA
to public agencies. We believe the City's argument is foreclosed by
the Supreme Court's recent decision in Auer v. Robbins, 117 S. Ct.
905 (1997). There, the St. Louis Board of Police Commissioners
argued that DOL acted arbitrarily and capriciously in failing to revisit
rulemaking with respect to the FLSA's salary-basis test in the wake
of Garcia. See id. at 908. However, the Court rejected the claim as
premature, since the Commissioners had not first petitioned DOL to
undertake amendatory rulemaking, as required by § 553(e) of the
APA. See id. at 910. The Court held that"complaints about the failure
to amend the disciplinary-deduction rule cannot be raised in the first
instance in the present suit. . . . The proper procedure for pursuit of
respondents' grievance is set forth explicitly in the APA: a petition to
the agency for rulemaking, § 553(e), denial of which must be justified
by a statement of reasons, § 555(e), and can be appealed to the courts,
§§ 702, 706." Id.

We believe the present case is indistinguishable from Auer. While
it is true that Auer recognized an exception from § 553(e)'s petition-
filing requirement in cases where the challenge pertains to a failure
to comply with notice and comment procedures, see id., the City con-
cedes, as it must, that DOL complied with all necessary notice and
comment requirements when Part 541 was promulgated.* In light of
that concession, 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 challenge is pre-
mature.
_________________________________________________________________

* See 12 Fed. Reg. 6896 (1947) (providing notice); 14 Fed. Reg. 5573
(1949) (same); 14 Fed. Reg. at 7705 (subpart A regulations); 14 Fed.
Reg. at 7730 (subpart B regulations).

                    7
II.

The second certified question is:

           Whether application of Part 541 to law enforcement man-
          agement by States and their subdivisions is arbitrary, capri-
          cious, and inconsistent with congressional intent?

This inquiry, like the first, is answered by the Supreme Court's
decision in Auer. See 117 S. Ct. at 910. We therefore conclude that
the City's challenge is premature.

III.

The third certified question is:

           Whether application of the FLSA and Part 541 to States
          and their subdivisions is a result of a failure in the national
          political process that places an undue burden on States and
          their subdivisions within the meaning of Garcia?

The City maintains that application of the FLSA to state and local
law enforcement agencies results from a failure of the national politi-
cal process and places an undue burden on those entities in violation
of Garcia. See 469 U.S. at 556 ("The political process ensures that
laws that unduly burden the States will not be promulgated."); see
also South Carolina v. Baker, 485 U.S. 505, 512 (1988) ("Garcia left
open the possibility that some extraordinary defects in the national
political process might render congressional regulation of state activi-
ties invalid under the Tenth Amendment . . . .").

We find the City's contention to be without merit. Although the
City called two experts who testified that the power of political action
committees has limited the City's ability to bring about change in the
structure and application of the FLSA, we think that evidence is insuf-
ficient to demonstrate a failure in the national political process. The
City presented no evidence to suggest that it is unable to petition DOL
to change its regulations; to lobby Congress to amend the FLSA or
elect new congressmen who might do so; or to combine its efforts

                     8
with other cities and states in order to increase its resources and bar-
gaining power. We therefore agree with the district court that the City
has no claim under Garcia.

IV.

The fourth certified question is:

           Whether application of the FLSA and Part 541 to state
          and local police management is unconstitutional?

The present case was initially held in abeyance pending our deci-
sion in West v. Anne Arundel County, Md., 137 F.3d 752 (4th Cir.
1998). In West, we held that, in light of Garcia, inferior state and fed-
eral courts are precluded from holding the FLSA unconstitutional
because it has been extended to include state and local governments.
See id. at 760. In light of that holding, we answer the fourth certified
question in the negative.

V.

In summary, our answers to the four certified questions are as fol-
lows:

First and Second questions -- premature, without prejudice to
administrative remedies;

Third and Fourth questions -- no.

The case is remanded for further proceedings consistent with this
opinion. Each party shall bear its own costs.

REMANDED

                     9
