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January 21, 1986


Robert J. McNichols, United States District Judge.

The opinion of the court was delivered by: MCNICHOLS

This action was commenced on May 23, 1985 by fifteen employees of Spokane County Fire Protection District No. 9 pursuant to the private enforcement provisions of the Fair Labor Standards Act [FLSA], 29 U.S.C. § 216. Plaintiffs seek an award for unpaid overtime and for liquidated damages in an amount equal to such back pay. Currently pending are cross-motions for summary judgment on the issue of liability only.

 I. Background

 The essential facts are straight-forward and not in dispute. Over the span of years, the fire district entered into collective bargaining agreements from time to time with its employees through their union. The provisions of the CBA giving rise to this litigation contemplated that fire fighters would work "24 on/48 off." That is, employees would serve a single shift of 24 continuous hours, and then take two full days off. The practical import of this arrangement was that over the course of a typical three-week period, a fireman would serve seven complete days, or 168 hours, and yet would receive no overtime. Facially, the failure to pay overtime would appear to contravene the 1974 amendments to the FLSA.

 Shortly after the effective date of the amendments, however, the Supreme Court decided National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976) which addressed FLSA minimum wage and overtime provisions in precisely the same context as presented by the facts at bar. Noting first that the Commerce Clause vested plenary power in Congress over matters affecting interstate commerce, the Court nonetheless held that the Reserved Powers Doctrine embodied in the Tenth Amendment precluded use of that ostensibly plenary authority when an attempt is made to regulate "States qua States," acting in their sovereign capacity, "in areas of traditional governmental functions." Id. at 851-52. Finding this test fully satisfied where Congress invades a local government's prerogatives in such traditional local concerns as public safety, the Court held the minimum pay and overtime provisions of the FLSA unconstitutional as applied to States and their political subdivisions. Id. at 852.

 On February 19, 1985 the Court readdressed the core teaching of National League of Cities in Garcia v. San Antonio Metro. Transit Authority, 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). Holding the "traditional governmental function" prong of the test enunciated in National League of Cities "unsound in principle and unworkable in practice," the Court expressly overruled its earlier position, and found the subject FLSA provisions wholly consonant with precepts of federalism. 105 S. Ct. at 1016.

 Plaintiffs concede that the CBA currently in place complies with FLSA requirements and seek damages only prior to its effective date of April 15, 1985. Adding yet another layer of complexity is Congress' response to Garcia. P.L. 99-150, the Fair Labor Standards Amendments of 1985, became law on November 13, 1985. Section 2(c) of that enactment relieves employers such as defendant in the instant action from liability incurred for failure to abide by the 1974 amendments if such violation occurred before April 15, 1986. However, the effective date of this section is not until April 15, 1986. With this quagmire in place, we commence our inquiry.

 The parties are in agreement on several issues. First, by operation of Garcia, the fire district no longer enjoys immunity from FLSA overtime provisions. Second, the longstanding common law rule is that a decision reformulating federal civil law will usually be applied retroactively, subject to certain delineated exceptions. See generally, Orland & Stebing, Retroactivity in Review: The Federal and Washington Approaches, 16 Gonz. L. Rev. 855, 855-72 (1981). Third, the determinative test for viewing issues relating to retroactive versus prospective application is found in Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). Beyond such limited agreement on general principles, the parties sharply dispute each other's contentions regarding retroactive application of Garcia.

 II. Retroactivity of Garcia in light of Chevron

 Chevron enunciated a three prong test, the satisfaction of which would militate in favor of prospectivity:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed, . . . Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." . . . . Finally, we have weighed the inequity imposed by retroactive application, for "where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship' by a holding of nonretroactivity."

 Id. at 106-07 (citations omitted).

 A. Efficacy of National League of Cities pre-Garcia:

 Plaintiffs argue that the rule emanating from National League of Cities, which exempted States and their subdivisions from the minimum pay and overtime requirements of the FLSA when acting in their sovereign capacities, had been undergoing a steady and foreseeable erosion pre-Garcia. In particular, plaintiffs point to EEOC v. Wyoming, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983), which dissolved such exemption insofar as the Age Discrimination in Employment Act [ADEA] was concerned. It is argued that Garcia is merely a logical extension of EEOC, or at least, that the ultimate result of Garcia was readily foreseeable. There are a number of reasons why this Court cannot agree.

 First, as plaintiffs concede, the "clearly foreshadowed" language of Chevron applies by its own terms only to cases of first impression. Whatever else might be said of National League of Cities and its sequelae, it can hardly be claimed that Garcia was a matter of first impression. Thus, the relevant inquiry is whether Garcia represented a break from "clear past precedent."

 Interestingly, there has been only one change in the complement of the Supreme Court since National League of Cities was decided some ten years ago, and that was when Justice O'Connor was appointed to fill the vacancy left by Justice Stewart. With respect to issues presented by Garcia and National League of Cities, both 5-4 decisions, these two Justices appear to be of the same mind. Thus, it is an easy task to discern the basis underlying the Court's 180-degree turn. Justice Blackmun was the swing vote. Concurring in National League of Cities, he switched sides entirely in Garcia. Indeed, he wrote the opinion. As observed by defendant, perhaps a scholar of the Court could have analyzed Justice Blackmun's writings over the course of the intervening decade and predicted the outcome in Garcia. To attribute such powers of prognostication to the average citizen, or even to the typical lawyer for that matter, is another question entirely.

 The focus, then, must be on the teachings of the Court as expressed in its written decisions during the intervening period. Plaintiffs' reliance on decisions such as EEOC is not well-placed. Ignoring Justice Stevens' clarion call to overrule National League of Cities, as expressed in his concurrence, the majority (which had been the minority in National League of Cities), was content to treat the earlier case as controlling, and to merely distinguish EEOC on the grounds that bringing the States under the umbrella of the ADEA would not "'directly impair' the State's ability to 'structure integral operations in areas of traditional governmental functions.'" 460 U.S. at 239. Indeed, the Court went further by commenting that its ruling would not prevent employment decisions predicated upon age, but only that the States would hereafter be constrained by the objective criteria set forth in the ADEA. Id. at 239-40.

 Finally, we come to Garcia. If there was any feeling among observers of the Court that National League of Cities had been vitiated by intervening decisions, it was lost on the lawyers who argued the Garcia case. The Court itself had to solicit an attack upon the continuing vitality of National League of Cities, 468 U.S. 1213, 104 S. Ct. 3582, 82 L. Ed. 2d 880 (1984). After supplemental argument, the majority discarded the "traditional governmental functions" prong of the National League of Cities test by holding such inquiry to be both "unsound" and "unworkable." 105 S. Ct. at 1016. Any doubt that Garcia represented a drastic turn-about is dispelled by Justice Powell's dissenting opinion:

The Court today, in its 5-4 decision, overrules National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), a case in which we held that Congress lacked authority to impose the requirements of the Fair Labor Standards Act on state and local governments. Because I believe this decision substantially alters the federal system embodied in the Constitution, I dissent.
There are, of course, numerous examples over the history of this Court in which prior decisions have been reconsidered and overruled. There have been few cases, however, in which the principle of stare decisis and the rationale of recent decisions were ignored as abruptly as we now witness. The reasoning of the Court in National League of Cities, and the principle applied there, have been reiterated consistently over the past eight years. Since its decision in 1976, National League of Cities has been cited and quoted in opinions joined by every member of the present Court.

 105 S. Ct. at 1021 (footnote and citations omitted).

 There is little room for arguing the proposition that National League of Cities met with less than unanimity in legal circles. To begin with, the majority's opinion was dependent for its vitality upon Justice Blackmun's somewhat reluctant concurrence in which he sought to impose an additional element in the form of a balancing test which would require a comparative analysis of federal and state interests. 426 U.S. at 856. Nor were the dissenters particularly gentle, characterizing the decision as "ill-conceived," "devoid of meaningful content," and "mischievous." Id. at 867, 873 & 880 (Brennan, J., dissenting). Strident cries of revisionism reverberated throughout the halls of academia. See EEOC v. Wyoming, 514 F. Supp. 595, 598 (D. Wyo. 1981), rev'd, 460 U.S. 226, 75 L. Ed. 2d 18, 103 S. Ct. 1054 (1983) and authorities cited therein. The decision was bombarded with frontal attacks in subsequent opinions. See, e.g., EEOC, supra, 460 U.S. at 250 (Stevens, J., concurring) (National League of Cities is a "modern embodiment of the spirit of the Articles of Confederation.").

 For all of this manifest hostility, however, there is one truism which must control the instant inquiry. National League of Cities was the law. It was "clear precedent" within the meaning of Chevron, supra, from the date of announcement forward until struck down in Garcia. As noted by Justice Powell in his dissent in Garcia, National League of Cities had on occasion been distinguished and narrowed, but "there was no hint . . . that National League of Cities -- or its basic standard -- was subject to the infirmities discovered today." 105 S. Ct. at 1022.

 Of necessity, the topic of National League of Cities ' continuing vitality pre-Garcia will bear further discussion in relation to the third prong of Chevron; viz., equitable considerations. For purposes of viewing the first prong, however, the Court concludes that Garcia "established a new principle of law . . . by overruling clear ...

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