411 U.S. 279 (1973), 71-1021, Employees of the Department of Public Health & Welfare of

Docket Nº:No. 71-1021
Citation:411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251
Party Name:Employees of the Department of Public Health & Welfare of
Case Date:April 18, 1973
Court:United States Supreme Court

Page 279

411 U.S. 279 (1973)

93 S.Ct. 1614, 36 L.Ed.2d 251

Employees of the Department of Public Health & Welfare of

No. 71-1021

United States Supreme Court

April 18, 1973

Missouri v. Missouri Public Health & Welfare of Missouri

Argued January 15, 1973




Petitioners, employees of state health facilities, brought suit for overtime pay due them under § 16(b) of the Fair Labor Standards Act (FLSA) and damages, which the District Court dismissed as being an unconsented action against the State of Missouri, and thus barred by the Eleventh Amendment. The Court of Appeals affirmed.

Held: Although amendments to the FLSA in 1966 extended statutory coverage to state employees, the legislative history discloses no congressional purpose to deprive a State of its constitutional immunity to suit in a federal forum by employees of its nonprofit institutions, particularly since Congress made no change in § 16(b), which makes no reference to suits by employees against the State. Parden v. Terminal R. Co., 377 U.S. 184, distinguished. The amendments' extension of coverage to state employees is not without meaning as the Secretary of Labor is thereby enabled to bring remedial action on their behalf under § 17 of the FLSA. Pp. 281-287.

452 F.2d 820, affirmed.

DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the result, in which STEWART, J., joined, post, p. 287. BRENNAN, J., filed a dissenting opinion, post, p. 298.

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DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

The Eleventh Amendment, adopted in 1795, and formally ratified in 1798, provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

[93 S.Ct. 1616] The Eleventh Amendment is the basis of a motion by Missouri to dismiss a complaint filed by employees of state agencies of that State, the Department of Public Health and Welfare, and two of its divisions, the Division of Mental Disease and the Division of Health, and various officials of the Department and of the two Divisions.

Although the Eleventh Amendment is not literally applicable, since petitioners who brought suit are citizens of Missouri, it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens, as well as by citizens of another State. See Hans v. Louisiana, 134 U.S. 1; Duhne v. New Jersey, 251 U.S. 311; Parden v. Terminal R. Co.,1 377 U.S. 184; 1 C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109-110 (1972).

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The employees seek overtime compensation due them under 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b), and an equal amount as liquidated damages and attorneys' fees. The District Court dismissed the complaint. The Court of Appeals, sitting in a panel of three, reversed, one judge dissenting. No. 20,204, Apr. 2, 1971 (not reported). On the filing of a petition for rehearing, the Court of Appeals sat en banc and, by a closely divided vote, set aside the panel decision and affirmed the judgment of the District Court. 452 F.2d 820. The case is here on a petition for a writ of certiorari, which we granted. 405 U.S. 1016.

The panel of three thought the present case was governed by Parden v. Terminal R. Co., supra. The court, sitting en banc, thought Parden was distinguishable. That is the central issue argued in the present case.

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Parden involved a state-owned railroad operating in interstate commerce, and the claims were those of employees under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq. The term "carrier," for purposes of that Act, was defined by Congress as including "[e]very common carrier by railroad while engaging in commerce between any of the several States." Id., § 51. The Court concluded that Congress designed to bring state-owned, as well as privately owned, carriers within that definition and that it was empowered to do so by the Commerce [93 S.Ct. 1617] Clause. The State's operation of its railroad in interstate commerce, it held, was in subordination to the power of Congress to regulate interstate commerce and application of the FELA to a State in those circumstances was not precluded by sovereign immunity. 377 U.S. at 191-193. The Parden case, in final analysis, turned on the question of waiver, a majority of the Court holding that it was a federal question, since any consent of the State to suit did not arise from an act "wholly within its own sphere of authority," but in the area of commerce, which is subject to pervasive federal regulation. Id. at 196.

It is said that the Fair Labor Standards Act (FLSA) stands on the same foundation, reflecting the power of Congress to regulate conditions of work of those producing goods for commerce, United States v. Darby, 312 U.S. 100, and those whose activities are necessary to the production of goods for commerce. Kirschbaum Co. v. Walling, 316 U.S. 517, 524. By § 3(d) of the Act, "employer" was first defined to exclude the United States or any State or political subdivision of a State. But, in 1966, there was added to § 3(d) an "except" clause which reads

except with respect to employees of a State, or a political subdivision thereof, employed (1) in a hospital, institution, or school referred to in the last sentence of subsection

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(r) of this section. . . .

Section 3(r) was amended at the same time to include:

the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit). . . .

Identical language was also added in 1966 to subsection 3(s), which defines "[e]nterprise engaged in commerce or in the production of goods for commerce."

By reason of the literal language of the present Act, Missouri and the departments joined as defendants are constitutionally covered by the Act, as the Court held in Maryland v. Wirtz, 392 U.S. 183. The question is whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court -- a question we reserved in Maryland v. Wirtz, supra, at 199-201.

There is no doubt that Congress desired to bring under the Act employees of hospitals and related institutions. S.Rep. No. 1487, 89th Cong., 2d Sess., 8, 22-23; H.R.Rep. No. 1366, 89th Cong., 2d Sess., 3, 11-12, 15, 16-17, 18. But § 16(b) remained the same. Prior to 1966 and afterward, it read in relevant part:

Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction. . . .

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The history and tradition of the Eleventh Amendment indicate that, by reason of that barrier, a federal court is not competent to render judgment against a nonconsenting State. Parden involved the railroad business which Alabama operated "for profit." 377 U.S. at 185. Parden was in the area where private persons and corporations normally ran the enterprise.

State mental hospitals, state cancer hospitals, and training schools for delinquent girls which are not operated for profit are not proprietary.

Before 1810, only a few eastern-seaboard states [93 S.Ct. 1618] had incorporated private institutions to care for the mentally ill, and Virginia alone had established a public asylum.

D. Rothman, The Discovery of the Asylum 130 (1971). But, as Rothman relates, after that, the public sector took over.2

Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such

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action silently. The dramatic circumstances of the Parden case, which involved a rather isolated state activity, can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, supra, and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be.

But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts. The Parden opinion did state that it would be "surprising" to learn that Congress made state railroads liable to employees under the FELA, yet provided "no means by which that liability may be enforced." 377 U.S. at 197. It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16(b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity...

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