*1 provision i°- 10. Mississippi'santi-single-shot Mississippi's county elections. apply to not did that, testified witnesses Two black view, Woodville residents the black their contrast, By number politically cohesive. in Wilkinson office held have of blacks years. County recent for petition respects, all DENIED, no member and
rehearing is active ser- regular Judge in nor panel
this having requested Court on the
vice (Fed- rehearing en banc polled be Court and Lo- Procedure Appellate Rules of
eral Rehearing for Suggestion Rule cal is DENIED.
En Banc Jr., WILCOX, M.
William
Plaintiff-Appellant, VOL- DISTRICT FIFTH
TERRYTOWN DEPARTMENT, FIRE UNTEER Defendant-Appellee.
INC., 89-3378. Appeals, States Court
United
Fifth Circuit.
April Rehearing on Denial
Opinion Rehearing En Banc and Gardner, Ur- Robein, Robein & L. Louis 21,1990. May Woodley, La., A. Metairie, ann, Thomas D.C., Washington, Hickey, &
Mulholland plaintiff-appellant. Labor, Dept, of U.S. Jorgenson, Leif Secretary D.C., for Washington, amicus— Labor. Bordelon, Walker, Jr., Bordelon, Alvin J. Orleans, New Hamlin, Hardy, Theriot & defendant-appellee. La., for Lan- A. Gremillion, Wade Gregory G. Harvey La., III, Harvey, glois, amicus— Co. DAVIS, GARZA, GEE, Before Judges. Judge: GEE, Circuit very diffi- the close Today we decide Terrytown Fifth whether question cult *2 766 Department, Fire
District Volunteer agency defined, Inc. Public is is 3(x) in section “public agency” a as that term is of the Fair defined in Act, Labor Standards as fol- Act, the Fair Labor Standards lows: 29 U.S.C. 203(x). We determine that it is. § (x) agency” “Public means the Govern- ment of the States; United Facts and Proceedings govern- Prior the ment of a State political or subdivision William Wilcox is a full employee time thereof; any agency of the United States Terrytown Volunteer Department, the (including the United States Postal Ser- (“Terrytown”), non-profit a Inc. corporation vice and Postal Commission), Rate a protection fire provides that services to an State, political or a State; subdivision of a unincorporated sector Parish, of Jefferson any or governmental interstate agency. 1985, Terrytown Louisiana. In instituted 29 203(x). U.S.C. § changes, paying workweek op- overtime to on, erators who worked a 24-hour 48- 2. What “public is a agency?” cycle, off only hours work but they after Unfortunately, simple a reading of sec- 212 had worked hours in a 28-day cycle. 3(x) tion of the FLSA does not the answer Terrytown in the acted belief that it was a question of, “What public is a agency?” agency” “public exempt from the overtime Being less than a model of statutory draft- requirements of the Fair Labor Standards ing, 3(x) section includes its definition of Act. public agency several categories of entities. December, 1988, William Wilcox filed The difficulty comes in determining what suit, seeking declaratory relief and back (and many) how those categories are. We pay for all hours worked over forty in a set forth statutory the framework here in Terrytown workweek. filed a motion for outline form so as to simplify that task. summary judgment, contending as that a “Public agency” means: agency” it “public exempt was from the [1.] Government of the United requirement. The overtime district court States; Terrytown’s granted motion. ap- Wilcox the government [2.] peals. a State or [a] Discussion political [b] subdivision state]; a [of 1. Fair Labor Standards Act or providing in 207(a) After forty- § a any agency of [3.] work week and hour time and a half for ..., United [a] States hours, the Fair excess Labor Standards Act State, a or [b] exemption provides an to the overtime pay political a [c] State; subdivision of a requirements of 207(a) for § employees of or agencies engaged in protection fire any [4.] interstate governmental agen- 29 activities. 207(k). U.S.C. § Under cy. 207(k), an employee § who works a 24- on, hours 48-hours off work cycle did When the section —as is viewed in light, this Wilcox—is entitled to overtime pay only it becomes clear that the relevant inquiry (or after 216 working hours some lesser here is whether the Terrytown Fifth Dis- trict Volunteer Fire Department, Inc. is an if, by as amount determined the Secretary 6(c)(3), pursuant to average number § “agency of political a subdivision of a by of hours employees worked engaged in (Section State.” 3.c of outline).1 our More is such activities less than day specifically, the Terrytown is Fifth District cycle. Volunteer Fire Department, Inc. an agency dispute Terrytown is no 1. There political falls within subdivision of a (emphasis State" add- categories. Rather, listed ed). none A reading careful 3(x) of section leads us dispute primary has been whether the narrow- to the legislature conclusion that the intended to category provided include in agency 3(x) est “po- “public section its definition agency,” any political of a "agency of a litical subdivision State” or subdivision of a State. Parish, by Louisiana?2 nized Jefferson Parish to deliver to the Jefferson Terrytown citizens of fire and fire agency” “public is a Terrytown services, have, which services as above, specifically note we been delineated district argues, and the Terrytown governmental as traditional functions *3 definition meets the ruled, Terrytown that “agency League the courts. National it is an Cities v. because public agency of of hold, 2465, not Usery, We 426 U.S. 96 49 S.Ct. subdivision.” political of a proper (1976) (rev’d made the court L.Ed.2d 245 district only that the proper re- the grounds); it reached inquiry, Metropolitan that see San Antonio but face, result, appears First, on its the Authority McLaughlin, Transit v. 876 sult. is, in a department A fire (5th Cir.1989). correct. patently F.2d 441 fur- agency; sense, archtypical public the addition, Department In the Fire is fund- agency to type of ther, exactly the it is exclusively by proceeds ed almost the of a 207(k) specifically directed. is which § millage imposed upon tax Jefferson Parish by “Employment 207(k) (Section is entitled by residents and allocation of certain state or protection in fire engaged public agency tax dollars. La.R.S. 22:1585. The Fire De- activities.”)3 enforcement law partment remains accountable to Jefferson stronger foot- Second, on somewhat and way the in money Parish for which such is lead us to con- of this case ing, the facts spent only and can use these funds to public agency. Terrytown is a that clude provide protection fire and related services is, Terrytown as the no doubt that We have necessary operation that for the of the found, agency an of Jefferson district court department. It must submit annual finan- Parish, district court’s The Louisiana. reports cial to the financial director of Jef- here from we analysis is sound and borrow detailing ferson Parish all how funds opinion. and well-reasoned its well-written by addition, received it were disbursed. determining key factors department the must submit to the Parish be con private party should whether a budget its annual for fire servic- the public agency are whether sidered a advance, year in es one so that the Parish public offi directly responsible to entity is may budget for these costs. general public and whether to the cials or Department performs its fire- The Fire as designate them parties’ contracts the agreement pursuant services to an independent con than agencies rather state District No. between it and Fire Protection Air Museum Powell v. Tucson tractors. specifically provides The contract 5. 771 F.2d County, Pima Foundation governing authority of the Fire Protec- the Cir.1985), (9th citing Skills 1311-12 No. 5 is the Parish tion District Jefferson Donovan, Services, v. Inc. Development contract, of the Under the terms Council. (6th Cir.1984) F.2d 294 Williams 728 comply all Department must with the Fire Inc., Center, 669 Health Mental Eastside made recommendations reasonable Cir.1982). (11th F.2d 671 Council, the Parish agencies appointed by found, de court As the district Fire and (Jefferson Department of Parish agency of a Department is an Fire fendant Property In- Emergency and The Services state. of the political subdivision Louisiana), it or surance Association is a non- Department Fire The defendant hearing held before must show cause at a orga- corporation that was Louisiana profit why cannot. Parish it the Jefferson Council dispute Inc., F.Supp. that Louisiana again, is no Dept., there 666 2. Once Fire ma Park Volunteer political Parish is dismissed, and that Jefferson is a state F.2d 465 (D.Md.1987), appeal 838 stated, of that state. subdivision Cir.1988). Conway "the (4th As the apply em- 207(k) to an exemption not does § Mary- district court that a federal We note engaged in merely or she ployee because he held, it we case before and in the has land We do Id. at protection activities.” fire so, the 18 fire properly that 15 of believe however, are,We hold otherwise. not here providing services in corporations then rescue Montgomery facts, which very different set with a faced public agencies County were not reached from that here different a result call for 207(k) advantage entitled to take ex- § Conway. emption payment. Conway to overtime v. Tako- Although the Jefferson Parish Council does directly control the daily activities of Department,
the Fire it is clear from the agreement
contractual that the Council has power
the ultimate and authority over the
activities Department.
After analyzing the facts of this case in conjunction with the factors set forth
above, we are convinced that Terrytown is agency
an political subdivision of the
State of Louisiana and that judgment
of the district court is correct. The Terry- town Fifth District Depart- Volunteer Fire
ment, falls within the exemption set forth
in 29 207(k). U.S.C. § judgment of the district court is
AFFIRMED.
ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING
EN BANC
PER CURIAM:
The Petition for Rehearing DENIED;
and, panel no member of this Judge nor
regular active on the having service Court
requested that polled the Court be on re- banc, (Federal
hearing en Appel- Rules of
late 35) Procedure Local Sug- Rule
gestion for Rehearing En Banc is
DENIED.1
DISTRICT 37 OF the INTERNATIONAL
ASSOCIATION OF MACHINIST & WORKERS,
AEROSPACE and its Lo- Lodge cal Plaintiffs-Appel-
lants,
LOCKHEED ENGINEERING &
MANAGEMENT SERVICES
COMPANY, INC., Defendant-Appellee.
No. 89-2533.
United States Court of Appeals,
Fifth Circuit.
April Appellant’s Suggestion of (at p. 767) Reconsideration statement En that ”[t]he defendant Fire 2) (p. Banc (panel) Petition for Department Rehearing organized ... was by Jefferson Par- (p. both assert factual error opinion's ish to deliver ... fire and fire Fickman, Os, P.C., Fickman, Van
Bruce Houston, Tex., plaintiffs-appellants. Londa, Grundy, Jeffrey Hutcheson & C. Houston, Tex., defendant-appellee. CLARK, Judge, and Chief Before WILLIAMS, Judges. POLITZ and *5 WILLIAMS, Judge: JERRE S. Internation- Appellants, District 37 of the Aerospace of Machinists & al Association (col- Lodge its Local Workers and Union”), appellee, Lock- lectively “the Management Engineering & Services heed (“LEMSCO”),entered into a Company, Inc. August agreement on bargaining collective 1983, employees of the 27, of the on behalf Engineering Space Center NASA/Johnson Air Program Ellington at and Science 1986, August in Texas. Force Base Powell, employee bargaining unit Rosalie steward, grievance filed and union grievance, she In the against LEMSCO. company Article violated claimed that bargaining collective section hourly its bar- when it laid off agreement1 hiring sala- illustrators while gaining unit personnel perform to illustration ried normally performed by employees “work unit”.2 bargaining of this dis- sought arbitration The Union grievance pro- agreement’s pute under the tions, applicable in this is, however, which none a di- ...” The statement services. finding by case].... quote the trial from a factual rect — attacked as one which was not incor- Company will use best efforts to its erroneous, rect, clearly appeal let alone as provision are the terms of this ensure to us. throughout applied the Com- understood keeping with the herein. pany intent part: provides agreement in relevant 1. The Article grievance, separate also chal- Powell In a Performing Employees Section 11—Salaried alleging lay-off lenged discrimi- anti-union her Bargaining Unit Work denied, grievance was and Powell nation. This perform personnel shall A. Salaried did not take it to arbitration. and the Union employees performed normally work unit_ excep- several bargaining [with