Abril v. Com. of Virginia

• Decision Date: 21 May 1998
• Docket Number: AFL-CIO,No. 97-1072,97-1072
• Citation: 1998 WL 255069,145 F.3d 182
• Parties: 135 Lab.Cas. P 33,686, 4 Wage & Hour Cas.2d (BNA) 1110 Rosemarie C. ABRIL, Plaintiff-Appellant, American Federation of State, County and Municipal Employees,; Virginia Alliance of State Employees, et al., Plaintiffs, v. COMMONWEALTH OF VIRGINIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 182

145 F.3d 182

135 Lab.Cas. P 33,686, 4 Wage & Hour Cas.2d

(BNA) 1110

Rosemarie C. ABRIL, Plaintiff-Appellant,

American Federation of State, County and Municipal

Employees, AFL-CIO; Virginia Alliance of State

Employees, et al., Plaintiffs, v. COMMONWEALTH OF VIRGINIA, Defendant-Appellee.

No. 97-1072.

United States Court of Appeals,

Fourth Circuit.

Argued July 17, 1997.

Decided May 21, 1998.

ARGUED: John Bertram Mann, Levit & Mann, Richmond, VA, for Appellant. George Walerian Chabalewski, Asst. Atty. Gen., Office of Atty. Gen., Richmond, VA, for Appellee. ON BRIEF: James S. Gilmore, III, Atty. Gen. of VA, Catherine C. Hammond, Deputy Atty. Gen., Neil A. McPhie, Sr. Asst. Atty. Gen., Office of the Atty. Gen., Richmond, VA, for Appellee.

Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.

Affirmed by published opinion. Senior Judge Phillips wrote the majority opinion, in which Judge Murnaghan joined. Senior Judge Butzner wrote a dissenting opinion.

OPINION

PHILLIPS, Senior Circuit Judge:

The question is whether the Eleventh Amendment provides immunity to suit for the Commonwealth of Virginia ("the Commonwealth") in actions filed against it in federal court by state employees seeking to recover damages for wage and overtime violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, as amended. The district court, rejecting contentions that the Commonwealth's immunity had been constitutionally abrogated by Congress under enforcement powers conferred by Section 5 of the Fourteenth Amendment or, alternatively, had been waived by the Commonwealth, dismissed the action for lack of subject matter jurisdiction. We affirm.

I.

Employees of twenty-one Virginia state prison and mental health facilities ¹ filed separate actions against the Commonwealth in the United States District Courts for the Eastern and Western Districts of Virginia, alleging violations of the FLSA in various respects affecting their compensation as state employees. ² On July 10, 1995, the district court denied the Commonwealth's motion to dismiss the then-consolidated actions on Eleventh Amendment jurisdictional grounds, holding that under Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), Congress had the power under the Commerce Clause unilaterally to abrogate the states' Eleventh Amendment immunity to federal FLSA actions and had unequivocally done so by its 1974 amendments to that Act. See 949 F.Supp. 438, 440 (W.D.Va.1996) (reciting procedural history).

Following an unsuccessful effort by the Commonwealth to obtain interlocutory review of that decision, and while the consolidated actions were pending disposition in the district court, the Supreme Court overruled Union Gas, holding in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), that Congress did not have power under Article I of the Constitution unilaterally to abrogate the Eleventh Amendment immunity of nonconsenting states to suits in federal court for the recovery of monetary relief.

The district court then directed the parties to re-brief the issue of Eleventh Amendment immunity in light of Seminole Tribe. Responding, the Commonwealth moved, with supporting briefs, for reconsideration of its motion to dismiss, relying on Seminole Tribe as dispositive of the issue in its favor. The employees, resisting the Commonwealth's motion, contended that Congress's express abrogation of the states' Eleventh Amendment immunity was yet constitutionally valid as an exercise of its enforcement powers under Section 5 of the Fourteenth Amendment. Alternatively, they contended that, in any event, the Commonwealth had waived its immunity by participating in federal regulated activity. And finally, contending that the Commonwealth may have waived its immunity by participating in federal programs that require contractual waivers, they moved for leave to conduct limited discovery respecting that possibility.

Following a hearing on the parties' cross-motions, the district court ruled in the Commonwealth's favor on each point, holding that Congress' attempted abrogation of the Commonwealth's Eleventh Amendment immunity to FLSA claims for monetary relief was not authorized as an exercise of enforcement powers conferred by Section 5 of the Fourteenth Amendment; that the Commonwealth had not, as a matter of law, waived its immunity by participating in federal regulated activity; and, as a matter of the court's discretion, that discovery as to possible contractual waivers would not be allowed. Accordingly, the district court dismissed the actions for lack of subject matter jurisdiction.

This appeal followed. On it, the employees challenge each of the district court rulings above identified. We take them in turn.

II.

We first consider whether, as the district court held, Congress's attempted abrogation of the states' (hence here the Commonwealth's) Eleventh Amendment immunity to private FLSA damage suits was unconstitutional. Conceding that under Seminole Tribe abrogation could not be upheld as an exercise of Article I Commerce Clause powers (the source expressly invoked by Congress), the employees contend that the requisite power can be found in the enforcement provision, Section 5, of the Fourteenth Amendment. ³ Specifically, the contention is that abrogation was effective as an exercise of Section 5 power because it served to enforce two rights protected by the Fourteenth Amendment: (1) primarily, the Equal Protection Clause right not to be subjected to invidious discrimination by a state's unequal treatment of comparably situated classes of persons, here that of private-sector and public-sector employees resulting from Eleventh Amendment immunity, and (2) an alleged First Amendment right of access to the courts as incorporated in the Fourteenth Amendment. See Appellants' Brief pp. 15, 16. ⁴

Because we think that the employees' "right of access" contention is essentially subsumed in their equal protection contention (the only unequal treatment relied upon being that respecting access to the federal forum), we consider the abrogation issue as confined to that created by the employees' equal protection contention. As so confined, ⁵ we review it de novo. See Harter v. Vernon, 101 F.3d 334, 336-37 (4th Cir.1996). Though it is one of first impression in this court, four of our sister circuits have addressed it and each has held, rejecting comparable state-employee contentions, that the attempted abrogation cannot be upheld as an exercise of Section 5 power to enforce Equal Protection Clause rights. See Mills v. Maine, 118 F.3d 37, 43-49 (1st Cir.1997); Raper v. Iowa, 115 F.3d 623, 624 (8th Cir.1997); Aaron v. Kansas, 115 F.3d 813, 817 (10th Cir.1997); Wilson-Jones v. Caviness, 99 F.3d 203, 206-11 (6th Cir.1997), amended on other grounds by 107 F.3d 358 (6th Cir.1997); see also Powell v. Florida, 132 F.3d 677, 678 (11th Cir.1998) (per curiam) (semble). ⁶ We now join those circuits in so holding.

Between them, these other courts of appeal have thoroughly canvassed the issue and come to the same conclusion, though by varying depths of analysis and by somewhat different reasoning at a few points. ⁷ Because we agree with their common conclusion and with the essentials of their common reasoning to it, we need not attempt a wholesale re-invention of the wheel and will simply summarize the salient points of their common reasoning with which we agree, expanding somewhat at the end-stage of the analysis.

The determination whether in enacting the 1974 amendments to the FLSA Congress validly abrogated the states' Eleventh Amendment immunity to private FLSA suits in federal court turns on two questions: "whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity' " and "whether Congress has acted 'pursuant to a valid exercise of power.' " Seminole Tribe, 116 S.Ct. at 1123, 116 S.Ct. 1114 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)).

The 1974 amendments to the FLSA contain the required unequivocal expression of Congress's intent to abrogate that immunity. See 29 U.S.C. § 203(d) ("Employer" defined to "include[ ] a public agency"); § 203(e)(2)(C) ("individual employed by a public agency" defined to mean "employed by a State"); § 216(b) ("action [for FLSA violation] ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction ..."); Mills, 118 F.3d at 42 (citing other decisions so holding).

Although in enacting the 1974 abrogation amendments Congress expressly invoked only the same Commerce Clause powers it invoked to enact the original and amending substantive FLSA provisions, that, standing alone, does not preclude a judicial determination that the attempted abrogation was effective as an exercise of Section 5 power. It is settled that abrogation may, in appropriate circumstances, be effected under the Section 5 power. See Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). And, under general principles of constitutional adjudication, such abrogation does not require that a specific provision be invoked as the source of congressional power. See Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 68 S.Ct. 421, 92 L.Ed. 596 (1948) ("The question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise."); Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir.1977) (question identified as "whether Congress had the authority to adopt the legislation, not whether it correctly guessed the source of that power") (citation omitted).

Whether an attempted abrogation may be upheld under Congress's Section 5 enforcement powers--expressly invoked or not--is determined under the general "appropriate means" test first laid down to define the reach of the Necessary and...