In 1940, D promulgated regulations, interpreting the exemptions to the overtime requirements of FLSA. The exemptions applicable to this case are those covering executive, administrative, or professional employees. These regulations related solely to private sector employers. The FLSA did not apply to public employers. Eventually, the Supreme Court declared that FLSA was applicable to public employers. P, in reliance on a 1974 opinion letter, treated its probation officers as exempt employees under FLSA. In 1988, D issued two opinion letters holding that probation officers were not exempt as administrative, executive or professional employees. D assessed overtime charges against P and P refused to pay. P did agree to pay overtime from that time forward to probation officers and all other employees covered by D's letter. However, it reiterated its belief that the probation officers were exempt under FLSA. P now treats the probation officers as nonexempt employees and declares that it will continue to do so until a judicial resolution of the issue. P sued and D claimed that none of its opinion letters were binding, so the changes from 1974 to 1988 did not require notice and comment and that P’s action was not reviewable as D’s actions were not final agency action. P contends the 1988 opinion letters are final agency action because D treats them as binding on all probation departments including P. The district court dismissed the action for lack of subject matter jurisdiction. This appeal resulted.