The opinion of the court was delivered by: Leighton, District Judge.
This is defendants' motion to dismiss the complaint with
prejudice, under Rule 12(b). Plaintiffs are police officers
employed by the Village of Lincolnwood Police Department;
defendants are the Village of Lincolnwood, its mayor and the
village chief of police.
In Count I, plaintiffs allege violations of the overtime pay
provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a).
They contend that on January 1, 1980, the Village through
its chief of police, promulgated an employment policy requiring
all police officers to report for work thirty to forty-five
minutes prior to the start of their shift. Plaintiffs further
allege that they were required to be "on call" during meal
periods and were required to attend firearms training once a
month. They contend that defendants' policy in regard to
compensable time does not include these additional periods of
work, in violation of § 207(a) of FLSA.
Count II alleges a pendent state law claim for breach of
contract, stating that defendants had agreed to pay overtime
rates for work performed in excess of forty hours per week.
Plaintiffs allege that this agreement was reduced to writing on
January 11, 1985 as Department General Order # 48 (Order #
In Count III, plaintiffs seek a declaration that the previous
overtime pay practices of the village, as evidenced by Order #
48, violated 29 U.S.C. § 207(a)(1) of the FLSA, which applies to
the Village of Lincolnwood Police Department.
In their motion to dismiss, defendants contend first that when
the case was filed on March 25, 1985, there was no case or
controversy presented because the Supreme Court had not yet
denied the rehearing in Garcia v. San Antonio Metropolitan
Transit Authority, ___ U.S. ___, 105 S.Ct. 1005, 83 L.Ed.2d 1016
reh. denied, ___ U.S. ___, 105 S.Ct. 2041, 85 L.Ed.2d 340 (1985),
the case in which the Court overruled its 1976 decision, National
League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49
L.Ed.2d 245 (1976). National League of Cities had held that the
Commerce Clause did not empower Congress to enforce minimum wage
and overtime provisions of FLSA against the states in areas of
"traditional government functions". Id. at 852, 96 S.Ct. at 2474.
In overruling this decision, the Court in Garcia held that
nothing in the overtime and minimum wage requirements of FLSA was
destructive of state sovereignty or violated the Constitution.
Id. at 1020. FLSA was thus made applicable to municipalities.
The threshold issue presented to this court is whether the
Supreme Court's ruling in Garcia removing the constitutional
barriers to the application of the FLSA to municipalities should
be applied retrospectively. First, however, the court must decide
whether it has jurisdiction over this matter. The court finds
that a case or controversy does exist between the parties at this
point in time. Plaintiffs claim to have suffered an injury and
this injury would be redressed by the relief requested. The
requirement of ripeness is therefore satisfied. Stewart v.
Hannon, 675 F.2d 846 (7th Cir. 1982).
With regard to the retrospective application of Garcia, the
court must look to three factors in determining whether
non-retrospective application is proper. Chevron Oil Co. v.
Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); see also
Northern Pipeline Const. v. Marathon Pipe Line Co., 458 U.S. 50,
102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). First, the decision to be
applied non-retrospectively must establish a new principle of law
either by overruling clear past precedent on which the litigants
may have relied, or deciding an issue of first impression.
Second, the prior history of the rule in question must be
examined to determine whether retrospective application will
further or retard the operation of the rule. Third, the
inequities of retrospective application must be balanced.
Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355.
In Garcia, the Supreme Court overruled the clear past precedent
of National League of Cities which held that the tenth amendment
limited Congress' power to enforce FLSA against municipalities in
areas of traditional government functions. Plaintiffs argue,
however, that defendants cannot establish their prior reliance on
National League of Cities because the overtime policy of the
department had been in effect prior to 1976 when that case was
decided. This does not establish that defendants did not rely on
National League of Cities in believing that their overtime pay
policies would not be subject to the requirements of FLSA. On
January 3, 1980, when defendants' policies were put into writing,
National League of Cities represented the law governing this
case. The court cannot assume that defendants could have foreseen
that National League of Cities would be overturned. Thus, the
first factor favoring non-retrospective application has been met.
As to the second factor, retrospective application of FLSA to
municipalities would cause substantial problems that would retard
the application of the Garcia ruling. As defendants point out,
plaintiffs' salaries are appropriated and expended by the village
on an annual basis. Retrospective application of Garcia would
wreak havoc on municipal budgeting and create unanticipated
financial liability for already strapped municipalities. Such a
result cannot be said to further the application of the Garcia
ruling, which merely sought to remove an unworkable standard of
municipal immunity from federal law.
Finally, the retrospective application of Garcia would create
substantial inequities. Until the Garcia decision, National
League of Cities constituted clear authority that FLSA could not
be applied to municipalities in areas of traditional government
functions. It would be unjust to hold defendants to a rule that
did not exist at the time their policies were in effect. The
court therefore holds that the Supreme Court's decision in Garcia
removing municipality tenth amendment immunity to FLSA should not
be applied retrospectively. Plaintiffs' claim in Count I based on
the retrospective application of FLSA must therefore be
The court will enter a declaratory judgment only when such
relief will serve a useful purpose. Cook County Legal Assistance
Foundation v. Pauken, 573 F. Supp. 231 (N.D.Ill. 1983). Because
Order # 48 is no longer in effect and Order # 89 which is now in
effect seeks to comply with the requirements of FLSA, a
declaration by this court that Order # 48 violated FLSA would
serve no useful purpose. Plaintiffs have not alleged that
Department Order # 89 fails to comply with the FLSA. For these
reasons, the court declines to enter a declaratory judgment;
Count III is therefore dismissed. Since plaintiffs' federal
claims have been dismissed, the court declines to exercise
jurisdiction over the pendent state law claim for ...