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January 31, 1977

The National League Of Cities, et al., Plaintiffs
F. Ray Marshall, Secretary of Labor of the United States, Defendant

Per Curiam

Plaintiff states and cities brought this suit to challenge the Fair Labor Standards Amendments of 1974, P.L. 93-259, 88 Stat. 55, amending the Fair Labor Standards Act (FLSA), 29 USC §§ 201, et seq. We were troubled by plaintiffs' contentions, but being bound by the Supreme Court's Wirtz decision, we held for the defendant Secretary of Labor. *fn1" In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), the Supreme Court reversed and remanded for entry of an appropriate decree implementing the Court's opinion.

I. Applicability to Other Statutes

Plaintiffs seek a decree preventing the Secretary from seeking application to employees of state and local government of statutes, which, though passed independently of the FLSA, have either been codified into the FLSA or refer to the FLSA for definitions which determine their scope. Specifically, plaintiffs assert that National League of Cities requires the conclusion that state and local government employees are not covered by: the Equal Pay Act, 29 USC § 206(d), the Portal to Portal Act, 29 USC §§ 251, et seq., and the Age Discrimination in Employment Act, 29 USC §§ 621 et seq.

 A contrary conclusion was reached in Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir. 1976), in reversing dismissal of a complaint charging violation of the Equal Pay Act by a county hospital. The court held that the Supreme Court's National League of Cities opinion did not preclude application of the Equal Pay Act to a political subdivision of a state. This holding was based on the fact that the Equal Pay Act was a separate enactment. Moreover, even if it were considered as a more conventional amendment to the FLSA, the court gave decisional effect to the FLSA's separability clause, 29 USC § 219. Finally, the court upheld the constitutionality of the Equal Pay Act's prohibition of wage discrimination on the basis of sex, in view of Congress's power under section 5 of the Fourteenth Amendment. *fn2" Most of the district courts that have considered the matter are apparently of the same view, *fn3" although some have agreed with the plaintiffs. *fn4"

 This court will not grant the plaintiffs the decree now requested. The case they brought was concerned with the application of the minimum wage and overtime provisions of the FLSA to state and local governments. The applicability of the other statutory provisions keyed into the scope of the FLSA is not within the prayer of the complaint or formulation of the issues by the parties, nor within the realm of the discussion either by this court or by the Supreme Court.

 II. Application to "Nontraditional" Employees

 A more difficult question is presented by the plaintiffs' prayer for a decree that will preclude application to any state and local government employees of any provisions regulating minimum wages and maximum hours, 29 USC §§ 206(a)-(c), 207. Justice Rehnquist's opinion in Usery is limited to invalidating regulation, under the commerce clause, of the hours and wages of those state and local government employees engaged in activities integral to and traditionally provided by government. *fn5"

 The issue for us is whether the Act, being constitutionally inapplicable to a substantial number of state and local government employees, is to be taken, as a matter of discerning legislative intent, as rendered inapplicable to all state and local government employees. We think not. The FLSA has a broad separability clause, dealing with the present situation of the invalidity of application to certain persons. It reads:


If any provision of this chapter or the application of such provision to any person or circumstance is held invalid, the remainder of this chapter and the application of such provision to other persons or circumstances shall not be affected thereby. (Emphasis added.)

 29 USC § 219. This separability provision is deliberately broad, and must be given full effect. Opp Cotton Mills v. Administrator of Wage and Hour Division of Department of Labor, 111 F.2d 23, 27 (5th Cir. 1940), aff'd, 312 U.S. 126, 85 L. Ed. 624, 61 S. Ct. 524 (1941).

 The government has proposed that this court issue an order giving declaratory relief as follows:


The application of the minimum wage and overtime provisions of sections 6(a), 6(b), 6(c) and 7 of the Fair Labor Standards Act, as amended, to the States and their political subdivisions is precluded insofar as those provisions operate to displace the States' freedom to structure integral operations in areas of traditional governmental functions.

 We are concerned whether this relief adequately protects the plaintiffs. Justice Rehnquist's opinion in Usery listed certain activities as within the traditional governmental functions test, *fn6" and hence immune from federal hours and wages regulation. These were examples, not an exhaustive list. *fn7"

 There is certainly a gray area, which will require elucidation in the factual settings presented by future cases. Employees asserting they are in non-traditional activities may claim that double damage penalties accrued pending the resolution. It may be appropriate to provide some protection to the state and local governments. We have requested counsel to submit memoranda with suggestions for appropriate relief.

 Government counsel agreed at argument that in the meantime, pending the issuance of a decree, the Department of Labor will not institute or proceed with enforcement of the FLSA wage and hour provisions against state and local governmental entities. Hence, there is no need for a formal decree for interim relief. The court will proceed in due course to the framing of the final decree.

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