Aaron v. State of Kan., s. 96-3095

• Decision Date: 17 June 1997
• Docket Number: Nos. 96-3095,96-3096,s. 96-3095
• Parties: 134 Lab.Cas. P 33,551, 3 Wage & Hour Cas.2d (BNA) 1733, 97 CJ C.A.R. 998 Bradley AARON, et al., Plaintiffs-Appellants, v. The STATE OF KANSAS, Defendant-Appellee. Rodney Lee ALBRIGHT, et al., Plaintiffs-Appellants, v. The STATE OF KANSAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 813

115 F.3d 813

134 Lab.Cas. P 33,551, 3 Wage & Hour Cas.2d

(BNA) 1733,

97 CJ C.A.R. 998

Bradley AARON, et al., Plaintiffs-Appellants, v. The STATE OF KANSAS, Defendant-Appellee.

Rodney Lee ALBRIGHT, et al., Plaintiffs-Appellants, v. The STATE OF KANSAS, Defendant-Appellee.

Nos. 96-3095, 96-3096.

United States Court of Appeals Tenth Circuit.

June 17, 1997.

Patricia E. Riley, Weathers & Riley, Topeka, Kansas, for Plaintiffs-Appellants.

Robert E. North, Kansas Department of Administration, Legal Section, Topeka, Kansas (Daniel J. Gronniger, Kansas Department

of Administration, Legal Section, Topeka, Kansas, with him on the brief), for Defendant-Appellee.

Before WHITE, Associate Justice (Ret.) ^* , EBEL and KELLY, Circuit Judges.

EBEL, Circuit Judge.

The plaintiffs in this action are 340 Kansas highway patrol troopers, 42 Kansas Bureau of Investigation Agents, and 18 Conservation Officers employed by the State of Kansas (the "Plaintiffs"). The Plaintiffs now appeal a bench verdict in favor of the State of Kansas on their wage claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (1994). Because we conclude that Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) deprives the federal courts of jurisdiction over the Plaintiffs' claims, we DISMISS this appeal and VACATE the judgment below. ¹

I. Discussion

The Eleventh Amendment to the Constitution reads:

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.

U.S. Const. amend. XI. Although the text of the amendment addresses only those suits brought against a state by persons who are not citizens of that state, the Supreme Court has interpreted the Eleventh Amendment to extend to all suits brought by individuals against unconsenting states in federal court. Seminole Tribe, 517 U.S. at ----, 116 S.Ct. at 1122 (citing Hans v. Louisiana, 134 U.S. 1, 13, 10 S.Ct. 504, 506, 33 L.Ed. 842 (1890)). The Eleventh Amendment bar to suit is not absolute, however. States may consent to be sued in federal court and, in certain circumstances, Congress may abrogate the states' sovereign immunity. Here, it is undisputed that Kansas has not consented to suit; thus, the only issue we address is whether Congress has abrogated the states' sovereign immunity with regard to the Plaintiffs' claims.

Congress can abrogate state sovereign immunity only where "Congress has 'unequivocally expressed its intent to abrogate ... immunity;' and [where] Congress has 'acted pursuant to a valid exercise of power.' " Hurd v. Pittsburg St. Univ., 109 F.3d 1540, 1542 (10th Cir.1997) (quoting Seminole Tribe, 517 U.S. at ----, 116 S.Ct. at 1123 (internal citations omitted)). Thus, in determining whether we possess jurisdiction over this action, we must determine whether Congress intended to abrogate the states' sovereign immunity with regard to claims brought under the FLSA. Only if Congress expressed such an intent need we address whether Congress acted pursuant to a valid source of authority.

A. Intent to Abrogate

This court recognized in a case decided before Seminole Tribe that "Congress made clear in the FLSA its intention to override the Eleventh Amendment." Brinkman v. Dep't of Corrections, 21 F.3d 370, 372 (10th Cir.), cert. denied, 513 U.S. 927, 115 S.Ct. 315, 130 L.Ed.2d 277 (1994) (citing Reich v New York, 3 F.3d 581, 590 (2d Cir.1993), cert. denied, 510 U.S. 1163, 114 S.Ct. 1187, 127 L.Ed.2d 537 (1994)). Although nothing in Seminole Tribe requires us to revisit the Brinkman decision, a quick review of the history of the FLSA reveals how Congress expressed its intent to abrogate the states' Eleventh Amendment immunity with regard to FLSA claims.

In 1973, the Supreme Court determined that Congress did not intend to abrogate state immunity from suit in federal court merely by including states within the FLSA's definition of "employer." Empl. of the Dep't of Pub. Health & Welfare v. Dep't of Pub. Health & Welfare, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973). In response, and, to make clear its intent to abrogate the states' Eleventh Amendment immunity, Congress amended the FLSA in 1974 to provide that an action "may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction...." 29 U.S.C. § 216(b) (1994) (as amended in 1974) (emphasis added). In addition, "employer" was amended to include "any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency," 29 U.S.C. § 203(d) (1994) (as amended 1974), where "public agency" includes "the Government of the United States; the government of a State or political subdivision thereof; any agency of ... a State; or a political subdivision of a State; or any interstate governmental agency." 29 U.S.C. § 203(x) (1994) (as amended 1974). Finally, "[t]he FLSA defines an employee to include 'in the case of an individual employed by a public agency, ... any individual employed by a State, political subdivision of a State, or an interstate governmental agency....' " Brinkman, 21 F.3d at 372 (quoting 29 U.S.C. § 203(e)(2)(C)).

The FLSA's extension of liability to states, coupled with its provision allowing suits in federal court, make clear Congress' intent to abrogate the states' Eleventh Amendment immunity with regard to claims brought under the FLSA. Indeed, the House Report on the 1974 amendments indicates that the amendment allowing actions to be maintained in a federal or state court was "intended to overcome that part of the decision of the Supreme Court in Employees of the Department of Public Health v. Missouri, [411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973) ] which stated that Congress had not explicitly provided in enacting the 1966 amendments that newly covered State and local employees could bring an action against their employer in a Federal court under [29 U.S.C. § 216]." H.R.Rep. No. 93-913, at 43, reprinted in 1974 U.S.C.C.A.N. 2811, 2853.

B. Power to Abrogate

We now turn to the issue of whether the 1974 amendments were passed "pursuant to a valid exercise of power." Seminole Tribe, 517 U.S. at ----, 116 S.Ct. at 1124 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425, 88 L.Ed.2d 371 (1985)).

Prior to Seminole Tribe, the Supreme Court had recognized two sources of authority through which Congress could validly abrogate the states' sovereign immunity: the interstate commerce clause, Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), and Section Five of the Fourteenth Amendment, Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). In Seminole Tribe, however, the Supreme Court overruled Union Gas and determined that the interstate commerce clause does not provide Congress with the authority to abrogate a state's Eleventh Amendment immunity. 517 U.S. at ----, 116 S.Ct. at 1128. The Fourteenth Amendment remains a valid source of authority for Congress to abrogate the states' sovereign immunity, however. Id.

We believe that Congress acted pursuant to the interstate commerce clause in attempting to abrogate state sovereignty with regard to FLSA claims. Congress declared when it enacted the FLSA in 1938 that it was "exercis[ing] ... its power to regulate commerce among the several States...." 29 U.S.C. § 202(b). Indeed, any second-year law student knows that it was matter of Constitutional moment in this country when the Supreme Court upheld the FLSA against constitutional challenge as a valid exercise of Congress's commerce power in United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941). ²

Nonetheless, the Plaintiffs argue that Congress enacted the 1974 amendments to the FLSA pursuant to Section Five of the Fourteenth Amendment and thus Congress properly abrogated the states' Eleventh Amendment immunity. We disagree.

As discussed earlier, Congress amended the FLSA in 1974 to allow state employees to seek existing FLSA protections in federal court. Nowhere in the 1974 amendments does Congress declare that it is acting pursuant to the Fourteenth Amendment. Indeed, the legislative history of the 1974 amendments indicates that the amendments were enacted by Congress through the exercise of its power to regulate interstate commerce. The legislative history of the 1974 amendments reveals that Congress sought to eradicate more fully the burdens on commerce caused by substandard labor conditions by expanding the FLSA's coverage. The House Committee Report on the 1974 amendments explains that the amendments "seek[ ] to implement the policy of Act," H.R.Rep. No. 93-913, at 2, reprinted in 1974 U.S.C.C.A.N. 2811, 2812, after indicating that the policy of the FLSA is contained in the following language of the FLSA concerning the burdens on commerce caused by substandard labor conditions:

(a) The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standards of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; and (5) interferes with the orderly and fair marketing of goods in commerce.

(b) It is hereby declared to be the policy of this Act, through the exercise by Congress of its power to regulate commerce among...