[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invalid because it relied on a state statute that had been superseded by a regulation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
2
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 “