Vittorio Mineo, on Behalf of Himself and All Others Similarly Situated v. Port Authority of New York and New Jersey

They Unit. are authorized the laws of ADAMS, Before BECKER and VAN DU- New York and New Jersey to police act as SEN, Judges. Circuit officers, 1.20, N.Y.Crim.Proc.L. subdivi- § 34(k) sion 1981); (McKinney NJ.Stat.Ann. OPINION OF THE COURT (West 1963), 32.2-25 § and same DUSEN, VAN Judge. Senior Circuit powers police directly employed by the This before court on the district two states. Cohen, See State 73 N.J. court’s pursuant certification to 28 U.S.C. (1977).1 A.2d 1292(b) (1982), presents question Port Authority is a municipal instrumental- appellees (hereinafter “Detec- ity of New York and Jersey New created tives”), are who employed detectives compact between these two states by appellant, The Authority Port of New with the consent Congress (hereinafter York (hereinafter and New Jersey “Port “Compact”). See 154; Ch. N.Y.Laws Authority”), are wage covered and NJ.Laws Ch. pp. 412-22; S.J. provisions hour of the Fair Labor Stan- Res. (1921).2 42 Stat. 174 According Authority’s job specifica- facilities; Port thority investigating complaints duty it is the Detectives to fellow Authority members perform investigations confidential pur- "for the police; conducting investigations character pose maintaining security internal at Port Authority employees; Port gathering evi- Authority preventing facilities and unlawful concerning dence vehicular accidents and air- specification conduct." Job 2601 identifies the emergencies craft involving Authority Port facil- major duties of the Detectives to include: estab- 33a-34a). (App. ities lishing factual evidence of conduct violation federal, state, laws, municipal as well as 2. The Port is authorized and directed regulations; maintaining plan, develop, surveil- operate facilities of com- prevent lance to activity criminal promote Port Au- merce economy of the Port premium that this ty had contended 25% collective origins had case This be- being paid to the Detectives wage Detectives between dispute bargaining latter’s required often they over work cause were and the one Detectives pay the in- they alleged refusal received for which hourly regular rate times one-half as- hourly wage. The Detectives creased forty hours in excess worked hours serted, however, entitled were midst of 10,1980, the in On October week. they performed because premium the 25% a filed the Detectives negotiations, contract by performed in to those duties addition alleging that court the district complaint police officers and Authority regular Port rate violat- this overtime pay to the refusal did not premium therefore that the 25% They later regulations. Authority Port ed one- in lieu of time and payment represent the allege that to complaint the amended settlement contract half for overtime. pay overtime to Authority’s refusal Port dispute, and not end the overtime thus did of FLSA.3 a violation constituted provision no agreement contained the and 1980, 2, the Detectives December On present lawsuit.5 the termination of the bar- Authority signed a collective Port the discovery, Following period a of limited ef- that took retroactive agreement gaining the to dismiss Authority moved agreement This July 1978. fect as of Supreme contending the that complaint, paid the Detectives would provided in National Court’s decision on a worked for hours one-half time and 833, 96 S.Ct. Usery, 426 U.S. if day, not but or vacation regular day off exempted state em- (1976), 49 L.Ed.2d a certain more than simply worked they from FLSA such as Detectives ployees the given Under in a week.4 of hours number gov- “traditional performed a they because paid were Detectives agreement, the the re- The Detectives function.” ernmental regular police offi- hour than an more 25% summary partial moving for sponded Authority. Dur- Port employed by cers the held a hear- The district court judgment. negotiations contract ing course the the September motions. On ing on both Port Authori- parties, the the two between one one-half times compensation of at least and approxi- District, comprises an area which states, hourly regular hours worked rate those 1,500 the center- square mately miles both 207(a)(1). forty § Specifically, hours. 29 U.S.C. In excess ing York harbor. about New public a "employer" to include purchase, con- Authority defines is authorized Port struct, lease, agency” 203(d). "public any A agency, or trans- operate and, § terminal 29 U.S.C. State, thereto, "any a or agency of ... facility anas incident to include portation defined State; any inter- personal property and or of a political real or or lease subdivision own 203(x). property. See money agency.” § such U.S.C. governmental secured borrow 1979); (McKinney § N.Y.Unconsol.Laws 1963). (West Examples 32:1-7 § NJ.Stat.Ann. Port April 4. On operated transportation facilities of some Associa- Endowment Detectives Port one its subsidiaries agree- bargaining collective tion executed new Goethals, George Bayonne, and include: Washington July retroactively as of effect took ment 3, Bridges; and Lincoln the Holland agree- this new terms of Under 1983. Guardia, Newark, Tunnels; JFK La ment, paid time and one-half are the Detectives Elizabeth, Hoboken, Airports; the International pre- than a if work more for overtime Terminals; the World Hook Marine and Red per week. hours number of scribed Park; Center; Bathgate Industrial Trade (PATH) Authority Trans-Hudson Port and the proceed subsequently moved Detectives 5. The Authority of See Port railroad. commuter of Fed.R. procedures action the class under Report Jersey Annual and New New York granted mo- court The district Civ.P. Landis, & generally Frankfurter See 1-4 Port respect to the claim tion Authority Study in the Constitution—A Compact Clause of regulations, or- but its own violated Adjustments, 34 Yale L.J. Interstate claim under pursue their FLSA them dered (discussion history (1925) of Port Au- 746-47 statute, provisions of joinder permissive thority). with these 216(b). In accordance 29 U.S.C. police detectives became twenty-five provisions, employ shall employer provides 3.FLSA join the FLSA action by opting to plaintiffs longer employees for workweek any its Authority. against the employees receive forty hours unless than 1982, the district court filed opinion an and provisions of FLSA may be constitutionally denying order Authority’s motion applied to employees of publicly owned and to dismiss. The court based ruling on operated mass systems. transit Because this court’s earlier decision in Kramer of the similarity between question New Castle Area Transit Authority, 677 presented to Court and the (3d Cir.1982), denied, cert. presented one here, we decided to hold this 74 L.Ed.2d 993 case under advisement pending the Court’s (1983), which held that a mass transit au decision. On February 1985, the Su thority was integral operation in an preme Court decided the Garcia and Dono area of a state’s “traditional van cases overruling National League and, therefore, functions” that its bus driv Usery, Cities v. ers not exempted were from coverage un 2465, 49 L.Ed.2d holding der Id. at FLSA. 310. Reasoning that the that no exempt is engaged in the business ed from coverage under FLSA. See Gar transit, of mass the district court concluded v. cia San Metropolitan Antonio Transit its employees, including the Detec — Authority, -,U.S. 1005, 105 S.Ct. tives, are not exempt from coverage 1020, 83 L.Ed.2d (1985). We then under League Cities.6 requested parties the to supplemen submit Because the case revolved po- around a tal briefs addressing question whether dispositive tentially legal question, viz., Garcia controlled this case. parties The whether Detectives are covered disagreed as to the propriety of applying FLSA, the Port Authority requested that Garcia retroactively to serve as the gov the district court September amend its 29 erning law this suit. This princi is the order certify question to for interlocu- question pal we must now decide. tory appeal under 28 1292(b) U.S.C. § agreed, The court 23, and on May II. 1983, it amended its September 29 order determining Before accordingly. Shortly whether to apply thereafter this court granted Garcia retroactively so as Authority’s govern to petition for leave to we will file an review the state interlocutory of the appeal pursu- prior ant to 5(a).7 explain Garcia Fed.R.App.P. why how and changed such law. Prior to the date on which the case was to be heard court, 1974, in this In Supreme Congress amended FLSA to sub- Court heard argument ject ap persons consolidated almost all employed by the peals of Garcia v. San Antonio states Metropoli political and their subdivisions to its — tan Transit Authority, U.S. -, wage provisions. and hour Fair Labor 1005, S.Ct. 1016, 83 L.Ed.2d and Donovan Standards Amendments of Pub.L. v. San Antonio Metropolitan Transit Au No. 88 Stat. 59. The National — thority, -,U.S. League S.Ct. of Cities and the National Gover- L.Ed.2d presented which question nors’ Conference challenged the amend- whether the minimum-wage and ments, overtime contending unconstitution- 15, 1982, 6. On November the district court to the class of consisting September amended its deny 29 order to Detec- represented by detectives plaintiffs, tives’ partial motion summary judgment. for appeal an immediate from the order will The court concluded that there existed a materi- materially advance the ultimate termination al issue of fact as to whether the Detectives had litigation since a determination actually worked defined FLSA. finally legal relating resolve issue to the applicability prior of the statute to the need May 7. district court order includ- lengthy proceeding establishing the dam- following ed the language: ages, any, if due each member of the class opinion Court, “In the this Order should the statute be found to been vio- controlling law, involves a question of wheth- lated.” provisions er the of the Fair Labor Standards relating Act wage applicable and hour are at the Court sovereignty. 96 S.Ct. left states’ infringed upon ally determining the task the deter lower courts agreed that Court operations were tradi- wages is an other state employees’ whether of state mination sovereignty, National tional. of state attribute at 426 U.S. Usery, League Cities Garcia, deciding rather than In Congress held that at operations are tradi- state’s mass transit im power to not use the Commerce may FLSA, exempt tional thus regarding states its upon choices pose League overruled National Court of traditional in areas essential decisions Garcia, Writing 1021. at S.Ct. Cities. 855, 96 at functions. Id. Blackmun stated majority, Justice for the thus declared The Court at 2476. S.Ct. that, contrary to the determination Court’s extent that FLSA unconstitutional Cities, nothing in in National employees per apply to state purported sovereignty destructive of FLSA is 852, 96 Id. at forming functions. Id. of the Constitution. violative 2474. The National participate feder- the states Because in a deci was clarified later principle wrote, sufficiently they can system, he al & sion, Mining Virginia Hodel Surface from federal themselves laws protect Assoc., Recl. sovereignty. upon their unduly infringe set out three- L.Ed.2d Id. congres determining when part analysis an whether turn to We now conduct exceeded of state regulation sional of National of or that law Garcia power: Clause its Commerce applied to the Detec- be Cities showing that the “First, a must be there tives’ claim. regulates ‘States challenged statute regula- Second, federal as States.’ III. are indis- that address matters tion must sovereign- principle putably is a time-honored It ‘attribute^] third, apparent it must be And in effect at ty.’ apply the law courts will the federal compliance with the States’ States a case. See United time decide ability ‘to directly impair their (1 Cranch) law would 5 U.S. Peggy, v. The Schooner in integral operations areas structure result, a recent decision (1801).8 As a 102 ” functions.’ governmental traditional dispute that even to applied generally holding. This (citations the court’s prior to 287-88, 2366 arose 101 S.Ct. at Id. advanced rubric reinforces the omitted). approach but do not make judges “that Blackstone to the Court presented question The Bowers, v. law.” Marino mérely ‘discover’ application an concerned Garcia (in banc) Cir.1981) 1363, (3d 1365 F.2d 657 The test. Court the Hodel part third 618, Walker, 381 U.S. (citing Linkletter applying to determine was asked 1733-38, 14 L.Ed.2d 1731, 85 S.Ct. of the San Antonio FLSA to However, application at times (1965)). 601 Authority would con- Transit Metropolitan ineq precept produces retroactivity of this abil- impairment Antonio’s San stitute or results, parties who penalizing uitable of traditional operate in an area ity to on reliance in reasonable affairs dered their Garcia, 105 S.Ct. functions. governmental later invalidated. rule of law in National Although the Court at 1007. undesirable, only be inequity Such certain had identified League of involved, party harm the cause of operations, types discourages adherence it because but also as “tradi- prevention, fire protection and Consequently, it contemporary laws. functions,” 426 atU.S. tional Cir.1984); 394, (3d Williams 396 Corp., F.2d Peggy re- 724 The Schooner has cited This court 121, Inc., Growers, 124 747 F.2d Tri-County following v. Dana cently cases: Perez N.J., Inc. v. Cir.1984); Fund 581, (3d (3d Black United Div., F.2d 584 Corp., Frame 718 Parish Cir.1985). (3d Kean, 160 Passenger Cir.1983); R.R. v. National DiSabatino has been held that courts in certain circum- seen change in that law. reason, For this stances appropriately may determine not to we conclude that the decision Garcia v. apply a decision retroactively. San Antonio Metropolitan Transit Au — thority, U.S. -, Court, in its decision in L.Ed.2d (1985), should not be applied Chevron Oil v. Huson, Co. retroactively to this case. S.Ct. 30 L.Ed.2d adopted the following three-part analysis for deter- A. mining the retroactive effect of new law in part first civil cases: Chevron analysis counsels retroactive “In our dealing cases with the nonre- judicial decision if that decision establish- troactivity question, we have generally es a new principle law, either overrul- considered separate three First, factors. ing past clear precedent on parties which the decision to applied nonretroactive may have relied or by deciding an ly issue of must establish a new principle law, impression, first the resolution of either which overruling past precedent clear had not been foreshadowed. Chevron, litigants relied, e.g., see U.S. at 92 S.Ct. at 355. The Port Hanover Shoe v. United Shoe Machin Authority claims that ery Garcia Corp., case U.S. [392 clearly overturned prior law governing 20 L.Ed.2d 1231 (1968)], byor de and that applying ciding an issue now impression first whose inequitable because resolution relied on was not clearly foreshadowed, prior law in taking see, the position during e.g., Allen v. State Board Elec collective bargaining tions, Detectives [393 were not entitled to time and one-half for 1 (1969) L.Ed.2d Second, it ]. has overtime. been stressed that ‘we must weigh ... the merits and demerits in each ease As the Port Authority structured con- looking prior history of the rule in tract with the Detectives, it was not in question, its purpose effect, and compliance and with certain aspects of FLSA. retrospective operation will fur The Port Authority’s conclusion the that ther or operation.’ retard its Linkletter terms of this contract were exempt from Walker, v. 618, 629, U.S. [381 85 S.Ct. FLSA was based on the Port Authority’s 1731, 1738, 14 L.Ed.2d 601 (1965)]. Fi of questions assessment two First, of law. nally, we weighed have the inequity im the Port Authority, an entity created posed by retroactive application, for compact, bi-state is a state for the purposes ‘[w]here decision of this Court could the of Tenth Amendment the National produce substantial inequitable results if League Second, Cities case. the Detec- of applied retroactively, there ample basis tives were performing a traditional state in our cases for avoiding “injustice the function because were engaged in the hardship” by holding of nonretroactivi activity police protection. In order for ty.’ Cipriano City Houma, the 1980 [395 contract between Port the Author- S.Ct. 23 ity and the Detectives to be exempt from (1969) L.Ed.2d 647 ].” FLSA under the National League Cities doctrine, Chevron, the Port 106-07, Authority U.S. at must re- garded as We state and the analyze therefore work of this the case under each Detectives police must be a protection Chevron’s three ac- factors to deter- tivity. mine When Garcia whether Garcia overruled given National ret- League Cities, roactive effect. these two issues became moot because all state activities became case, In this the defendant reasonably subject to FLSA. relied on the law in force at the time it negotiations, conducted labor and it is un- We initially observe that the mere fair to make it suffer because of an unfore- fact Supreme that the Court renders a deci- as functions such traditional to status is insufficient prior law overruling sion Indeed, the command of police protection. test. Chevron part of the first satisfy the distinguish is to League Cities National applica seeking nonretroactive party perform tradi- among employees who those relied must have decision the new tion of those who do not. tional functions Moreover, reliance prior law. on the Bronze reasonable. been must have decision, by that the Garcia conclude We Serv., Civil Shields, Dept. Inc. v. N.J. Cities, League overturning National Cir.1981), (3d cert. de 1074, 1085 the past precedent which clear overruled 2510, 73 1122, 102 S.Ct. nied, 458 U.S. Thus, the Authority may relied. have Port Ti (1982); Flying Singer weighs L.Ed.2d prong first Chevron (9th Inc., 652 F.2d Line ger application of Gar- retroactive the Cir.1981). cia decision. Port that concluded We B. pri- on the law reasonably relied (404 U.S. at factor The second Chevron in determining that in toor Garcia 355-56) requires us to subject to not be would contract stant in history of the rule prior new consider case has cited party FLSA. Neither effect, to purpose its question, and aby bi- authority created holding that application will fur- determine if retroactive pur not a state for was compact operation. ther or retard Moreover, Tenth Amendment. poses of the retro- Authority contends that below, are IV(A) there part in discussed as decision active Eleventh under analogous cases future necessary to insure adherence entities treating similar Amendment Court Now the decision. for the reasonable It was states. no state explicitly that has ruled in Na rely on the statement Authority to coverage, from FLSA exempt protec are Cities tional maintains, is no reason there function9 is a traditional municipalities will states and in believe are involved that the Detectives conclude agree. The future. We comply in not activity.10 The dissent police protection that, the law clear makes decision Authority oper Garcia that because sists future, comply states must status and the systems, transit mass ates we decide Regardless of how FLSA. under of such functions suspect that is no reason there unclear, has been by FLSA. refuse to be bound states protection relying on the at risk free decide leaves us This situation However, fact that decision. equitable prin- its facts and on among instant case mass transit Authority includes furthering or for concern ciples without the not mean does many activities This operation of Garcia. retarding the employees doubt. was of all its status nor neither favors factor second Chevron en municipalities control and states Even the of application retroactive opposes the pub nontraditional and other trepreneurial decision. the Garcia entities, does not affect this

lic but administering law public the of functions dual League Cities stated: in National 9. The Court of furnishing public services.” and appellee's accept assess- even if we “For at 2474. U.S. at concerning impact the [FLSA] the ments Wage Hour Di- of the The Administrator amendments, application none- will their promulgated Department of Labor vision of the displace the significantly or alter theless regulations December on several employer-employ- to structure States' abilities adopted which, part, restated relevant preven- relationships areas fire in such ee tion, language National quoted the sanitation, public protection, 775.4(a) 775.2(a), §§ C.F.R. Cities. See health, These ac- parks recreation. performed by state typical those tivities are IV(C). in Part discharging below 10. See discussion governments in and local C. provide services the at lowest cost. When The prong third involved in labor negotiations, the organiza the Chevron requires us to any consider inequities possesses tion estimates of many how would result from retroactively applying it hours thinks the employees will work and (404 the new how much money it has to compenfsate 355). If application retroactive of Garcia them. Within parameters, those orga would inequitable, be then prong this may nization opt for pay various struc Chevron test would counsel its ret tures. example, For some employees may application. roactive As above, discussed paid others; be more than compensa some Port Authority apparently structured may deferred; may contract the Detectives based on get higher base pay in return for reduced assumptions that it was a state for overtime pay. It appears that the last situ purposes of Cities, ation present was in the instant case. Rea and that the Detectives were engaged in sonably believing itself to be unshackled traditional state functions. In Part IV of from the restrictions FLSA, opinion, this we decide that assump these Authority offered an attractive pay base tions are consistent with our interpretation that was balanced lower overtime com of the law. In this section opinion, pensation. The agreed Detectives we analyze this the Port Authority’s actions arrangement. when employment retroactive agreement application was en tered Garcia to into in 1980 to give determine situation would whether it inequitable would be to retroactively Detectives apply pay increased overtime without opinion. the Garcia any reduction in pay. base To allow the get Detectives pay premised raise 111(A) We decided Part above that the retroactive assumptions of an two by the unforeseen made de Authori- ty cision were reasonable.11 made almost years two was faced awith situation after the where it end period had contract would ,predict what the law was on two inequitable different to the Port Authority and issues. It made a decision and based its would constitute a windfall to the Detec contract thereon. below, As discussed we tives. Morrison, See Inc. Donovan, only think that not was the Port Authori- (11th Cir.1983). ty’s assessment of reasonable, the law Inasmuch as the Port Authority encoun- was also correct. years later, Over four tered law, unresolved issue on which the Garcia decision overruled entire it took a position, reasonable retroactive body relevant of case law. Applying Gar- application of Garcia to foreclose its re- cia retroactively punish the Port Au- liance on National League Cities is thority having made a decision which equitable. Employing agree we rule of based on an accurate assess- in this ment case thus contrary law at the time both decision was made. In the first and prongs normal third setting, business of the Chevron test. party must take action and cannot See wait Smith v. City Pittsburgh, 764 F.2d indefinitely precise judicial resolutions; (3d Cir.1985); see also Northern courts should recognize this fact and not Pipeline Construction Co. v. Marathon punish unfairly engage those who in rea- Pipe Co., Line 50, 88, 458 U.S. sonable business decision-making. (1982) 73 L.Ed.2d 598 (plurality Any public private or organization opinion); must id. at (Rehn- 102 S.Ct. at 2882 manage its revenues efficiently most quist, J., concurring). 11. A full discussion of the merits of these two not address these issues until we reach the mer- issues follows in opinion. Part IV of this The its of the case. Our only discussion here relates discussion is point relevant both at this and possible inequities to the of applying the Garcia respect with prong to the first of the Chevron decision retroactively. However, test. being repetitive, to avoid dowe as must regulate “States States.” We de-

IV. Authority, entity cide now turn to the National We by compact, is a state for created bi-state progeny if case and to see exempt from with the Tenth purposes is FLSA Amendment. Port Detec payments to the respect to overtime requires analysis This determination be- 9,1978, until period July tives for the Authority possesses cause the Port certain above, the Na July 1983. As discussed typical agency federal incidents that a state clari principle was League Cities tional However, considering lacks. after its fed- Virginia fied in Hodel v. West Surface comparing eral traits and them with its Assoc., Mining & Recl. traits, conclude that the Port Au- we 69 L.Ed.2d where purposes for the of the thority is a “state” Court said: requirement of the Hodel test. first “First, showing that the there must be a I, Article section of the United States regulates the challenged statute ‘States Second, regula- federal provides part: in relevant “No as States.’ Constitution that are indis- tion must address matters shall, State without the Consent Con- sovereign- putably ‘attribute[s] any Agreement gress, enter into or ... third, apparent must ty.’ And State_” Compact another compliance with the federal the States’ Const, I, the Port Author- art. When ability directly impair their ‘to 1921, Congress consent- ity created was integral operations in areas of structure (1921). Similarly, ed to it. Stat. ” governmental functions.’ traditional Authority produced its Com- when the (citations Id. Plan, by prehensive it too consented to omitted). examine each of these three We (1922). Congress. While Con- 42 Stat. the Detec- and conclude that requirements involved in the struc- gress has not been by case are not covered tives in the instant management ture or period. for the above language in is both since there Comprehensive A. Plan that Compact and the provide for continu- interpreted to could be requirement of the Hodel The first Congress.12 Arguably, this ing by challenged regulation must control test is that That, approval subject always Congress pro- approved by Compact "... 12. The as agents as of the United States officers and vides: touching Congress required Acts of authority hereby port is au- The "ART. 18. States regula- jurisdiction control of the United and to make suitable rules thorized thereof, matters, any part the Constitution of covered tions not inconsistent with or over the State, resolution, Congress or of either and sub- the United States the consent this power Congress, ject to the exercise of the hereby given_” naviga- improvement the conduct of for the (1922). Comprehensive Plan 42 Stat. 822 commerce, which, when concurred tion and further states: legislatures of both in or authorized hereby giv- Congress is the consent of “And States, binding upon all shall be and effective Provided, nothing con- herein That en ...: thereby.” corporations persons affected impairing or in as shall be construed tained (1921). Compact also states: Stat. right jurisdiction affecting any any or manner hereby Congress That the consent "... region over the States in and of the United agreement, given and to each and to the said agreement: subject of said forms the Provided, That every part article thereof: tunnels, bridges, or further, That Provided nothing be construed contained shall therein across, under, be built structures shall other affecting any any impairing or in manner States, United any waters of the or in right jurisdiction States in of the United or navigable change in the be made shall and no subject region which forms the and over the waters, any un- capacity or condition agreement. of said approved been plans therefor til the amend, alter, right or That the "SEC. 2. Secretary of Engineers Chief hereby expressly re- repeal resolution is War. served.” amend, alter, right “SEC. 2. That 42 Stat. 180 hereby expressly re- is repeal resolution by approved Con- Comprehensive Plan The served.” gress states: 948 language could justify congressional con- currently not part of the federal tradi-

trol of the Port Authority through FLSA. tion. Since we are basing our conclusion that Authority is a

A state for similar issue was before the District of purpose of thé Hodel test on a balancing Columbia in Tobin Circuit States, v. United (D.C.Cir.), 306 F.2d denied, attributes, its state and cert. 270 federal we 371 feel it is 902, U.S. 83 S.Ct. inappropriate 9 not L.Ed.2d (1962). 165 to leave the resolution of In that the District Congress’ power of Columbia “alter, Cir to amend or re- cuit reversed the conviction of the peal” Execu in this situation to day. another tive Director the Port Authority for con One minor federal attribute of an inter tempt of Congress for fully failure to com state compact is that the compact itself ply with subpoena. appellant The argued becomes federal law. Texas v. New Mexi Congress that lacked the power under the co, 554, 564, 462 2558, 2565, 103 U.S. S.Ct. Compact Clause of the Constitution to “al (1983). 77 L.Ed.2d 1 But Petty see v. Ten ter, amend or repeal”13 its consent Comm’n, nessee-Missouri 359 U.S. Compact which was the purpose stated 785, 791, 3 (1959) L.Ed.2d 804 the investigating subcommittee. The court (Frankfurter, J., dissenting). This charac reversed the conviction, finding that terization serves not to Congress allow to appellant had adequately complied with the sidestep the Tenth Amendment but rather subpoena. The court admitted its reluc give to the federal courts question federal tance to resolve issue of whether Con jurisdiction (see Cuyler Adams, v. gress 449 “alter, U.S. could repeal” amend or 433, 438, 703, 706, S.Ct. Compact.14 101 66 L.Ed.2d recognize We 641 the District of (1981)) and makes Columbia Circuit’s available the doctrine of reluctance and believe preemption prevent that this issue to need not be states from avoiding resolved in this opinion. Our their compact obligations research has citing revealed no case contrary holding (see Congress that possesses state law West Virginia ex such Dyer rel. power.15 We note.today only Sims, v. pow that the 341 S.Ct. 71 er of Congress “alter, repeal” amend or (1951).16 95 L.Ed. 713 (1922). 42 Stat. 826 proposition was the Tobin The case. court held merely compact is not immune from “alter, phrase 13. The repeal” amend or comes subsequent legislation federal that affects it. Compact from the 1921 Compre- and the 1922 The issue before the court was not whether (1921); hensive 42 Plan. Stat. 178 42 Stat. 822 compacts similarly treated as the (1922). See note 12. states but compacts rather whether should be court, 14. The stating power after special afforded a status different than that Clause, not conferred Compact expressed which the states were reject entitled. court reluctance implied find power: such an ed the legislation claim and found the to be way "We have knowing what enforceable the compact. ramifica- tions holding would result from a that Con- gress implied has power constitutional ‘to 16.We note Court held that alter, repeal' amend or its consent to an inter- certain employees were not state compact. Certainly, view of the num- employees Gerhardt, Helvering v. 304 U.S. variety ber and compacts of interstate in ef- 405, 423, L.Ed. today, holding fect such a up would stir an air involving in a case whether the federal income uncertainty in those areas our national taxation of salaries of state contra- presently life affected the existence of vened the Tenth This Amendment. doctrine compacts. these suspicion No doubt the States, abandoned New York United potential even impermanency would be dam- 90 L.Ed. 326 aging very concept of interstate com- Helvering decision in was based on a con- pacts." clusion not failed to States, Tobin v. United 306 F.2d at 273. entity constitute a state but that the Port Author- ity Andrews, 15. In corporation was a Riverside Irr. Dist. state-owned F.Supp. rather than (D.Colo.1983), aff'd, (10th political the state or a itself subdivision. Cir. 1985), "congress court stated in U.S. at Though dicta that 58 S.Ct. at 976. the Solici- unilaterally right cannot reserve the tor contended that amend General repeal compact.” an interstate F.Supp. was not a because it was not created only authority put 589. The alone, forward for this states the Court did address this con- agency supervi- dent state with little or no notwith few federal attributes These government. sion the federal that the Port standing, concluded we have state attrib Authority possesses sufficient Although today the issue we face has not entity for the as a state qualify utes been resolved the context of the Tenth of the Hodel prong of the first purposes and the Amendment sixty-five years inception test. From involving there are cases entity Authority has been an ago, in- Eleventh Amendment18 that we find New York compacting states. of the two that entities structive. Courts held appointed commis Jersey New each by compact qualify created as a state for possibility an investigate the sioners to purpose enjoying immunity 426, p. Ch. agreement. 1917 N.Y.Laws example, For the Eleventh Amendment. 130, A 1325; p. 288. 1917 N.J.Laws Ch. Authority,19 Howell v. Port New York was sub report (D.N.J.1940), of the commissioners joint F.Supp. the court was governors in 1920. respective argument faced that the Port Au- mitted to appointed thority municipal corporation and not following year the states was a The compact. agency. a state The court discussed the negotiate commissioners 841; composition of the Port and its 1921 N.J. p. 1921 N.Y.Laws Ch. serving primary role of func- Compact was p. 412. The Laws Ch. concluding: tions of the states before being sent to by the states before ratified Authority, corpora- N.Y. Laws Ch. “The Congress consent. 1921 bi-state tion, joint agency is a or common 492; p. 412. ... p. 1921 NJ.Laws Ch. Jersey. the states of New York and New Plan also drafted Comprehensive was The performs governmental functions It states before consent and ratified lines, beyond project and is N.Y.Laws given by Congress. was immune from suit without its consent. 61; p. 25. p. Ch. N.J.Laws Ch. Authority reveals history of the Port F.Supp. at 801. beyond its mere involvement little federal was recently, More the Second Circuit Compre Compact consent involving the the same issue faced with Plan. hensive Commission, an Interstate Park Palisades by compact between New entity formed Moreover, Authority is adminis- Jersey. The court noted York and New ap- agency. Each state tered as a state paid to be any judgment would have who are to be points six commissioners “We treasuries and stated: from the state N.J. respective states. residents of why a bi-state perceive any reason fail to (1963); N.Y.Unconsol. 32:1-5 Rev.Stat. § cannot, in the feder when sued commission 1979). There is no (McKinney Laws § court, Amendment enjoy the Eleventh al government provision for the federal signatory states.” Trot immunity of its 1922, Con- appoint commissioners. Since Com’n, Park Interstate man v. Palisades legis- any gress has not consented (2d Cir.1977). 35, 38 557 F.2d Authority’s struc- regarding the Port lation opportunity to Supreme Court had and functions.17 We view ture Petty v. Tennessee- the issue indepen- address entity run as an Citizens of United States one of the at 979 U.S. at tention. See 304 State, Subjects J., or (Butler, dissenting). or Citizens another any Foreign State." Plan, approv- Comprehensive 17. Pursuant to the Const., amend. XI. granted by bridges been and tunnels has al for Department. 42 Stat. the War originally called the was 19.The Port apparently based on the federal was This review July Authority." As of “Port of New York navigation. supervising concern changed Au- to the "Port the name Jersey.” NJ.Rev. thority New New York and provides: Eleventh Amendment 18. The (West Supp.1985); N.Y.Unconsol. Stat. 32:1-4 § power United States "The Judicial 1979). (McKinney Laws any suit in construed to extend not be shall prosecuted equity, commenced law or Comm’n, Missouri 359 U.S. 79 sovereignty. S.Ct. The Court concluded: “Our 804 3 L.Ed.2d but instead as examination of the effect of [applying Eighth immunity found one as sumed, that Circuit, arguendo, it the might commission had in the same a state. that the have had.20 In the The Court then suit be treated waived the court any visions mum FLSA] divisions, integral governmental wage to the States and will satisfies us that both the mini and the maximum impermissibly their interfere with functions of political hour ^[23] sub pro had reached the issue and found “the de these bodies.” 426 U.S. at 96 S.Ct. at fendant agency Commission was the or in 2474. We conclude that the second re strument of the two quirement States not an of the Hodel test is met. separate entity apart from the States.” Petty v. Bridge Tennessee-Missouri Com C. mission, (8th Cir.1958), 254 F.2d 857 rev’d requirement The third of the Hodel on other grounds, U.S. test is that it apparent must be that the (1959). L.Ed.2d compliance states’ with the federal These Eleventh Amendment cases dem- directly impair ability to struc onstrate willing that courts are to treat integral ture operations in of areas tradi by

entities created compacts interstate tional functions. 452 U.S. at agree states.21 We that in analogous 288, 101 S.Ct. at 2366. We conclude that situation presented in this case that engaged Detectives are in a traditional Authority, an entity created an governmental function. compact, interstate should be treated as a In League Cities, National the Court purposes state for the of the National stated: League Cities doctrine.22 application of FLSA to the “[The States significantly displace alter will]

B. States’ abilities to structure employer- requirement The second of the employee Hodel relationships in such areas as is regulation that federal prevention, fire must police protection, sanita- address matters that are indisputably tion, at public health, parks and recrea- tributes of sovereignty. 452 U.S. tion. These activities are typical of those 287-88, 101 S.Ct. at 2365-66. The performed attribute govern- state and local question in in the instant case is overtime in discharging ments their dual functions wages paid employees. of administering National public law and fur- League Cities case makes clear nishing public Indeed, services. is wages are an attribute govern- functions such as these which split 20. The groups Court was into three League three holding Cities. Our is limit justices. dissenting justices The three finding could ed to that the Port is a state immunity. find no waiver The three concur- purposes resolving for the the instant case. ring justices joined opinion with the Court but clarified that the Court had Derian, Defining 22. See also 'State as State’: reached issue bi-state commis- Nonprofit Corporation Is a Contract Under sions can be immunized under Eleventh Integral a State to an Government Func- Perform Amendment. Immunity tion Entitled to the Fair Labor Standards Cities?, Act under the National 21. The rejected per Hasting Court (1983) Const.L.Q. se rule stated, Country Regional ("Simply Lake entity Estates v. government Tahoe Plan owned, ning 400-01, Agency, managed by appointed directors government officials, (1979), stating statutorily designated 59 L.Ed.2d 401 public corporation compact presumed each as a must be considered based on its (footnotes governmental”) omitted). own attributes determine if it is entitled to immunity. Eleventh Amendment This reason ing applicable to Tenth Amendment cases too. 23. "Maximum hour” as used FLSA and Na- today We do not hold that all entities created essentially synonymous tional Cities is compacts interstate purpose are states wages. for the with overtime habits”) provide, (citing Dict.); created to services Com., mente are Webster’s such as these which States have tra- Hum. Rela. Com’n v. City Beaver Falls ditionally Council, afforded their citizens.” 469 Pa. 366 A.2d reasons, For these we conclude (emphasis at 2474 plaintiffs as detectives engaged are omitted). Thus, added) (footnote we are police protection which is gov a traditional police protection is a tradi- instructed purposes ernmental function for the governmental function. If the De- tional requirement third of the Hodel test. function, performing police tectives are a requirement then the third of the Hodel 2366) (452 U.S. at 101 S.Ct. Y. satisfied.24 light In of our decision all three Notwithstanding the fact that the Detec requirements of the Hodel test are satis patrolmen, tives are not uniformed we be fied, application we hold that the of the they clearly in the lieve that are involved wage provisions of the Fair Labor activity police protection. The detective plaintiff-Detectives Standards Act to the crime, appears at the scene of the

who during period the from 1978 to 1983 would witnesses, pursues suspects interviews be a violation of the doctrine announced very system police is at the heart of our Supreme the Court in National Collegiate protection. Webster’s New Dic Usery, Cities 96 S.Ct. 882,1979 ed.) tionary (p. “police” defines (1975). 49 L.Ed.2d 245 We will reverse the department government include “the district court’s denial of the Port Authori charged prevention, detection and ty’s motion to dismiss and will remand the prosecution public nuisance and crimes.” case to the district court with directions to language scope encompass a This indicates (No. 80-03307, dismiss this civil action D.N. ing just patrolman includes more than —it J.). people investigating reported crimes.25 the Moreover, as members of the Port Authori BECKER, Judge, dissenting. Circuit force, Detectives the ty police “have all misapplied I powers police majority conferred law on officers believe the has my in the enforcement of test to this case. col- or constables laws Chevron Unlike apprehension leagues, application I find that of the first this state and the of violators prongs weighs of the test thereof.” N.J.Stat.Ann. 32:2-25 and second § Accord, 1.20, application subdivi favor of retroactive of Garcia. N.Y.Crim.Proc.L. 34(k) 1981); view, my only prong may In the third favor (McKinney sion State v. Co but, hen, 331, 337, application, weigh- A.2d 262 non-retroactive N.J. (West 1977). ing equities prong requires, as the third Rapids also & I. See Grand significant Ind.App. 83 I do not find them definite Ry. King, Co. v. (1908) (a enough tip Because I con- “po detective is a the balance. N.E. governing should be the rogues liceman whose business is to detect clude that Garcia respectfully I adroitly investigating in this dissent. their haunts and deciding dangers cases more inherent in 24. We need not decide whether all Port Authori- govern- required by precise ty employees performing broadly issues are traditional than reasoned, goal prin- presented. mental The issue before us is limited functions. must plaintiffs solely upon grounds detectives. We heed cipled to the who are nec- results based Judge controversy.” disposition the advice of Adams: essary Montemuro, 1083-84 Conover v. raised, resolving the issues we must be "In J., Cir.1973) (Adams, (3d concurring). See also judicial power only mindful that our extends 477 F.2d at 1093. deciding specific presented case to us. attempting While the essential maintain only presented to us decide the issue 25. We preserving federal courts both in role of healthy relationship opinion today. express as to whether We nation and between the officials, engaged prosecutors, are such as other protecting constitutional the states and in rights, protection. judiciary the federal must be alert to I. upon rated in Hodel v. Virginia West Sur Mining Assoc., and Recl. noted, majority As the has fact face 69 L.Ed.2d 1 Court renders a decision over experienced courts ruling prior had law is insurmountable dif satisfy insufficient to ficulties part Rather, identifying the first Chevron test. those party seeking applica functions that nonretroactive were traditional and those new decision must that, have relied result, were not and as a law, prior on the and such reliance must had come to fundamentally inconsistent been reasonable. Where conclusions. prior law has been erratic and inconsist majority is unmoved erratic- ent, subsequent overruling decision prior point. points law on this It to lan- law cannot be said to have overruled clear guage in past precedent on parties may which the subsequently promulgated Department of reasonably have relied. City See Smith v. Labor regulations which explicitly consider Pittsburgh, (3d 764 F.2d Cir. “police protection” as a gov- “traditional 1985); Corp., Perez v. Dana Frame Parish function,” ernmental and concludes Div., 581, (3d Cir.1983). 718 585 F.2d clearly detectives were excluded from Here, although Supreme-Court’s deci- coverage Therefore, of the FLSA. the ma- sion in Garcia to overrule National concludes, jority the Port Authority’s re- League hardly predictable, Cities was of liance (and on League National Cities of application of the League National Department regulations) Labor principle involving cases state em- denying pay overtime to the detectives was ployees not specifically identified reasonable. performing Court as govern- traditional me, For the matter is not simple. so quite mental functions had been erratic and Port Authority significant acts to a Indeed, extent inconsistent. this inconsistency in as a authority.2 Department transit served as a La- primary reason for regulations bor existing prior the Court’s decision to the execu- overrule National League tion of Cities.1 Id. 105 the collective bargaining agreement S.Ct. at 1016. The Court observed that at issue specifically under the tradi- here op- identified the governmental tional function test set forth eration local systems mass transit as not League being Cities and elabo- governmental a traditional function.3 Compare Cleveland, City 1. Amersbach v. Corporation. 6603, 598 See N.Y.Unconsol.Laws §§ 1033, (6th Cir.1979) F.2d 1037 (operation 1979); of an (McKinney 6612 §§ NJ.Stat.Ann. 32:1- airport Hughes 35.52, is traditional Corp. Air (West v. Supp.1985). 32:1-35.61 1963 & Cf. Comm'n, 1334, Public Utilities 644 F.2d 1340 29 C.F.R. § 775.2: (9th Cir.1981) (regulation transportation of air traditional); compare is not Enrique Molina-Es 21, 1979, 3.On December Administrator Auth., 841, Hwy. trada v. Puerto Rico 680 F.2d Wage Department and Hour Division of the (1st Cir.1982) (building maintaining 845 and promulgated regulations giving of Labor its in- public roads is traditional with Friends of terpretation governmental of non-traditional 25, Carey, (2d Cir.) (regulat Earth v. 552 F.2d 38 functions: ing public traditional), traffic on roads is not Special policy 775.2 enforcement con- denied, 902, 296, cert. 434 U.S. 98 S.Ct. political cerning and States subdivisions. (1977); compare High L.Ed.2d 188 v. N.L.R.B. (a) On June the United States Su- view, Inc., (5th Cir.1979) (op 590 F.2d preme Court ruled in National nursing traditional) eration home is with Bon Cities, Usery, et al. v. 426 U.S. Agency, nette Health & California Welfare wage L.Ed.2d 245 that minimum (9th 1983) (provision F.2d Cir. of in- compensation provisions and overtime aged house domestic service for and handi (FLSA) Fair standards Act Labor are not con- traditional). capped is not stitutionally applicable integral opera- tunnels, operating bridges, In addition to political sea- tions the States and their subdivi- ports, airports, transporta- and other facilities sions in areas of traditional commerce, include, others, tion Authority operates and among Such functions. areas through wholly commuter railroad hospitals, prevention, its police owned schools and fire subsidiary, Authority sanitation, health, protection, public Trans Hudson precariousness posi- recognized the of its confirmed this decisional Subsequent exempt its detectives were tion that from Transportation Un United position. See coverage under National Co., FLSA 455 U.S. R. Long Island ion By failing comply jurisprudence. L.Ed.2d 547 Cities 686, 102 S.Ct. requirements, the FLSA’s overtime Tran with Area v. New Castle (1982); Kramer Cir.1982), (3d might at risk that it was Authority, 677 sit pay by liable subse- denied, found rt. ce judicial determination that the detec- majority quent (1983). The L.Ed.2d 993 covered,by the FLSA. were tives that the suggests its municipality, with like a state treated conclude, therefore, I was according to disparately treated Authority to have for the Port reasonable approach While this functions. prior the law it existed relied self-evident, it is means plausible, position that its detec- for the Garcia it. support for caselaw is no and there coverage. exempt FLSA tives were authority for the no clear Thus there factors thus The first of Chevron were exclud detectives proposition applica- weighs in favor of the retroactive coverage. ed from decision. are autho- Moreover, although appellees officers law-enforcement serve as

rized to II. Jersey, York New of New by statutes requires factor us The second Chevron by the Port employed they are prior history of the consider the new any of their states or by the two and not effect, purpose question, rule such, they perform As municipalities. application if will determine retroactive performed would not be some duties operation. its or retard further directly for New working policemen municipality there- York, Jersey, or a New analysis of the second majority’s investi- in, including conducting character limited to whether prong Chevron is en- employees, gations application of the Garcia retroactive in- regulations, and forcing Port discourage future adher- would decision against Port Au- complaints vestigating agree I with the the decision. ence Thus, not appellees are thority personnel. that, Supreme Court’s given the majority policemen that the type of necessarily the employees are ruling explicit that no from exclude intended to Supreme Court coverage, there is no FLSA exempt from by the National of the FLSA coverage municipal- that states and to believe reason decision.4 This comply in the future. not ities will however, not, exhaust in- law, finding does prior see the inconsistent In view of application retroactive quiry as to whether strong indication note supra opera- retard or further will not of Garcia were that transit workers case law holding. of that have covered, include, are not tradition- political its subdivisions They not parks do and recreation. is others, each function after operation rail- The date listed amoung of a al.... [sic] a State. original in the publication n. Federal at the date road S.Ct. at 2475 n. 18. Register ... of States Nontraditional functions § 775.3 political subdivisions. and their systems (3) December mass Local transit (a) decision it In the National 21, 1979. operation of a railroad clear that the made C.F.R. 775.3 § not an political subdivision or its a State of traditional integral operation in the area disposition appropriate my view of the Given 4. n. governmental functions. opinion express an I need not of this n. 18. analysis majority's aspects of the the other (b) purpose notice referred For the IV. Part 775.2(b), has deter- the Administrator § to in following of a State that the functions mined I believe that application non-retroactive Chevron test, therefore, points also strong- of Garcia in the spectacle results unseemly ly in the direction of application retroactive of the court’s deciding this case under a of Garcia.6 pre-existing analytical framework that Supreme Court has found to be unsound in III. principle in practice.5 unworkable Part III of the Chevron requires Garcia, Thus, 1016. in Part IV consideration of any inequities that would opinion of its the majority is forced to result from retroactively applying the new apply analysis an Court First, law. the Port Authority argues that denigrated has as “not faithful to the role in good relied faith on National League of federalism in a democratic society” and Cities, well Department as of Labor “disserve[ing] principles of democratic self- regulations, in maintaining position governance.” Id. 1016. More- plaintiffs were not covered under over, this court’s recognition continued of FLSA, and thus that it would ineq- exemptions in the coverage of the FLSA uitable for the court to now enforce the that were solely by created judicial FLSA retroactively. As I explained, branch and have since been invalidated given the uncertainty of the pre-existing an unjustifiable constitute intrusion law, the Port Authority was risk that the legislative into the branch’s authority and detectives might exempted not be from divergence unwarranted congres- coverage; hence it would not be sional intent. manifestly unjust if the Authority were reasons, For these I believe that retroac- found liable under the FLSA as a result of application tive would further operation our directing the district court to apply rule; new the second prong of the this case.7 may 5. It though seem as this factor would al- the Garcia (The decision was rendered. Act ways suggest retroactive provides a Court also three-year for a statute of limita- decision. That so: sometimes the Court tion for willful violations the FLSA. See 29 prior overturns law as changed the result of 255(a) (1982)). U.S.C. Congress, on the other circumstances hand, rather than because the earlier intended the provision FLSA’sovertime analytically decision was unsound and apply unwork- beginning May able. Fair See Labor Standards Amendments of Pub.L. No. §§ 93-259 88 Stat. disagree 6. I Authority’s with the argument Port Thus, 76. application retroactive of Garcia to that the application retroactive might of Garcia employees' suits under the FLSA will result purposes retard the of the FLSA huge because in a financial burden to states that is much less lump-sum backpay resulting awards from retro- what than the states would borne had actively applying wage FLSA require- and hour complied with beginning the FLSA in 1974 as ments would be Congress’s inconsistent with Congress had intended. impose intent to the FLSA burden on states First, gradually. Authority’s my assertion case, 7.Under view of the even if Garcia is Congress that phase intended to in FLSA applied cover- retroactively, the Port Authority may age governments over and local gradually still be able liability to avoid to the detectives is incorrect. The 1974 speci- FLSA amendments under the asserting the Portal-to-Portal fied coverage that FLSA over the good-faith Act defense. designed This defense is governments state and local begin immediately, protect to liability employers from who acted in 1,May as 1974. H.Conf.Rep. No. 93rd interpretation reliance on an a Cong., reprinted 2d Sess. in 1974 U.S.Code agency, agency’s even if the inter- Cong. Furthermore, & Ad.News pretation ret- subsequently determined to be in- application roactive compel Garcia so as to Equal correct. Employment Opportunity compensate states past to workers for work Co., ac- (2d Comm’n v. Home Ins. 672 cording provisions Cir.1982). FLSA would not employer good An who relies in place any greater financial burden on the upon states faith order, a regulation, written administrative than originally which that was contemplated by ruling of the Administrator Indeed, Congress. because suits Wage state em- and Hour Department Division of the ployees to provisions enforce FLSA subject are subject will liability Labor not be to for its two-year limitations, to a statute of see 29 pay wages U.S.C. failure to minimum or overtime com- 255(a) states can potentially pensation liable required by the FLSA. See 29 backpay only for years prior for two to the date My U.S.C. § 259 conclusion that the court take such wage package. The would Second, Port contends determining the appellees into account when compensating facts backpay award a hourly with which to calcu- regular appropriate their base rate one-half times one inappropri- compensation. My proposed hours is past overtime overtime rate for late windfall. a constitute would to this there- application ate because of Garcia Authority, the Port According to the fore, subject not would hour more an paid were 25% detectives unjustly large assessment of dam- and ac- Authority police Port other than ages provide detectives exchange for not in premium cepted this windfall.8 overtime, one-half receiving time and for that a Finally, majority believes police. paid to the being other was detectives lump-sum backpay award retro- Thus, Authority maintains Port inequitable to past would be overtime result in of Garcia application active recognize I that the Authority. Port See to the detectives. a financial windfall Authority may Port liability of potential Donovan, 700 F.2d Morrison, Inc. v. I consider this significant, do not deny Cir.1983). (11th The detectives Nevertheless, amount lightly. factor pay was hourly rate of premium that their highly speculative at this liability is overtime, asserting that in lieu of made ought to be balanced stage,9 and of other greater than that this rate inequities workers occasioned they per- Authority police because Port resulting wages, a situation lower extra duties. formed Nation subsequently overturned retroactive It is thus unclear Moreover, holding. my League Cities al in a would result application Garcia Authority’s potential about concern ex- majority, without (though the windfall tempered by the two- liability financial posi- Authority’s adopts the Port planation, actions of period for FLSA limitations year problem poses no point). This this tion on Thus, poten sort, n. 6. supra see this application retroactive any event because hardship imposed on the Port financial tial stipu- we require that does significant definite or Authority is not the district hourly rate that late the base of a favor enough tip the balance determining backpay court should use application Garcia. non-retroactive if the compensation for overtime award Rath- to be liable. Authority is found IV. deter- er, court district I believe the therefore, conclude, I agreed detectives mine whether that the dictates the Chevron one- in lieu of time and hourly higher rate as the should serve Garcia decision therefore, and, the Court’s half overtime thus case. I would law in governing different agreed to a parties would have ques- court’s certified the district in the answer had been included pay base equal amount of penalty in an amount applica- to bar retroactive too law was unsettled 216(b) compensation. § See 29 unpaid U.S.C. validity of a Portal-to- does not decide tion Nevertheless, of this (1982). assessment view, Thus, my the Port on defense. Portal may discretionary. court The district penalty is defense be able assert would employer damages liquidated if an remand, and, award found the if the district court reasonable sufficiently had demonstrates good-faith on Port reliance of such existence not believing did actions grounds for liability ensue. Authority’s part, would no FLSA U.S.C. See 29 the FLSA. violate Thus, liable, vein, Authority’s even if found reject I similar 8. In a liquidated subject necessarily that, to the detec- argument if it is found liable penalty. damages wages of a a result for back tives overtime it will also application of Garcia,, retroactive quantify parties not been able damages penalty in an 9. liquidated incur accuracy amount degree any wages of back equal to the amount amount because action damages in this potential employer found lia- recognize I owed. discovery before only limited conducted unpaid com- under the FLSA ble appeal. interlocutory for an damages case was certified liquidated subject pensation to a by holding the wage and hour provisions apply to the class

of Port Authority employees consisting of represented detectives plain-

tiffs. America,

UNITED STATES Appellee, RANKIN, Appellant.

Kevin

No. 84-1562.

United States Court of Appeals,

Third Circuit.

Argued Nov. 1985.

Decided Jan.

F. Emmett Fitzpatrick (argued), Philadel- phia, Pa., for appellant. Pichini,

Louis R. (argued), Sp. Ed- Atty., Dennis, ward Jr., S.G. Atty., Philadel- phia, Pa., Bryson, William C. Dept, of Jus- tice, Washington, D.C., appellee. SEITZ, WEIS, Before ROSENN, Cir- cuit Judges.

OPINION OF THE COURT WEIS, Judge. Circuit scheduling trials involving busy lawyers is a problem difficult of court ad- ministration compounded that is when both state and federal compete courts for the time of the. same attorneys. To meet this concern, the courts Philadelphia adopted compact to honor the commitments of counsel while actually in trial. In the case hand, judge district denied a continu-

Case Details

Case Name: Vittorio Mineo, on Behalf of Himself and All Others Similarly Situated v. Port Authority of New York and New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 6, 1986

Citation: 779 F.2d 939

Docket Number: 83-5588

Court Abbreviation: 3rd Cir.