James Stewart, et al.,; Donald K. Chan, Plaintiffs-appellants, v. City and County of San Francisco, Defendant-appellee, 69 F.3d 545 (9th Cir. 1995)

MEMORANDUM^* 

James Stewart, Donald Chan, and other employees of the City and County of San Francisco appeal the district court's partial summary judgment for the City and County of San Francisco ("City") in these two related actions brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 200-219, alleging that they are entitled to overtime compensation as non-exempt employees under the FLSA.

The issues raised on appeal are: (1) the validity of the 1954 version of the salary test as applied to the City; (2) the procedural validity of the 1991 interim final regulation; and (3) the validity of the new regulation. Our resolution of all of these issues is controlled by this court's recent decision in Service Employees Int'l Union, Local 102 v. County of San Diego, 60 F.3d 1346 (9th Cir. 1995). In that case we held that the 1954 version of the salary test did not validly apply to the public sector; that the 1991 interim regulation did not violate the Administrative Procedure Act; and that the 1992 regulation properly amended the salary test as applied to the public sector.

In their opening brief, the Chan appellants did not challenge the City's compliance with the new regulations. Issues raised only in a reply brief are not properly before the court. See United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Moreover, the affidavit appellants rely upon does not contain evidence relating specifically to the City's conduct during the period after enactment of the new regulations.

AFFIRMED.