Board of Regents of University of Nebraska v. Dawes

• Decision Date: 03 January 1974
• Docket Number: No. CV73-L-190.,CV73-L-190.
• Parties: The BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, Plaintiff, v. A. Neil DAWES and all Extension Employees at the University of Nebraska, College of Agriculture, who are similarly situated, Defendants.
• Court: U.S. District Court — District of Nebraska

370 F. Supp. 1190

The BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, Plaintiff, v. A. Neil DAWES and all Extension Employees at the University of Nebraska, College of Agriculture, who are similarly situated, Defendants.

No. CV73-L-190.

United States District Court, D. Nebraska.

January 3, 1974.

L. Bruce Wright, Lincoln, Neb., for plaintiff.

Stanley M. Talcott, Lincoln, Neb., for defendants.

MEMORANDUM AND ORDER ON MOTION TO STRIKE

URBOM, Chief Judge.

This matter is before the court on the motion of the defendants, filing No. 10, to strike paragraph numbered 7 of the amended reply of the plaintiff.

The plaintiff, a political subdivision of Nebraska, has brought this declaratory judgment action, seeking a declaration that a compensation adjustment plan implemented by the University of Nebraska whereby salaries of women employees were increased does not violate the equal pay provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.

The defendants, employees of the University of Nebraska, have counterclaimed for unpaid wages, liquidated damages, and attorney fees under § 16(b) of the Fair Labor Standards Act. In its amended reply to this counterclaim, the plaintiff in paragraph numbered 7 asserts that the Eleventh Amendment of the Constitution bars the counterclaim and that the plaintiff has neither waived immunity from suit nor consented to be sued. The defendants have moved to strike this portion of the reply, on the ground that the plaintiff by bringing suit has consented to be sued by counterclaim.

The Eleventh Amendment 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."

It has been held that the Eleventh Amendment bars suit against a state by citizens of the same state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Immunity from suit, however, may be waived by a state, or suits may be prosecuted against a state by its citizens, if authorized by statute. Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1944); Brennan v. University of Kansas, 451 F.2d 1287 (C.A. 9th Cir. 1971).

It has recently been held by the Supreme Court that § 16(b) of the Fair Labor Standards Act does not effect a waiver of sovereign immunity by the states and does not permit citizens to sue their state directly. Employees of Department of Public Health & Welfare of Missouri v. Department of Public Health & Welfare of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). It is certain that the defendants could not sue the state, or a state agency, directly under § 16(b) of the Act.

Furthermore, as to counterclaims, the general rule is as stated in State of Alaska v. O/S Lynn Kendall, 310 F. Supp. 433, 435 (U.S.D.C.Alaska 1970):

"Although a counterclaim may be asserted against a sovereign by way of setoff or recoupment to defeat or diminish the sovereign's recovery, no affirmative relief may be given against the sovereign in the absence of consent. United States v. U. S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1939); United States v. Finn, 239 F.2d 679 (9th Cir. 1956); In re Greenstreet, Inc., 209 F. 2d 660 (7th Cir. 1954); Rule 13(d), Federal Rules of Civil Procedure."

See, United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940).

Because it does not appear that the counterclaim alleged against the plaintiff sounds in recoupment or setoff, the issue is whether the plaintiff, a governmental unit of a state, consents to being sued by a counterclaim when the plaintiff files a declaratory judgment action. I think it does not.

Citing Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), State of Iowa v. Union Asphalt & Roadoils, Inc., 409 F.2d 1239 (C. A. 8th Cir. 1969), and People of Porto Rico v. Ramos, 232 U.S. 627, 34 S.Ct. 461, 58 L.Ed. 763 (1914), the defendants argue that the plaintiff has consented. Examination must be made of those cases. Each is distinguishable.

In Parden the court held that a state, by owning and operating a railroad, consented to come within the requirements of a federal act, FELA, and within the specific provision of that act that "every common carrier . . . shall be liable in damages . . ." and "under this chapter an action may be brought in a district court of the United States." Congress' constitutional power to control interstate commerce was given as the basis for power to force a state to be subject to suit in a federal court, if it chose to operate a railroad. The court distinguished cases holding that a state's intention and state law governed the waiver issue, saying:

"Where a State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere — whether it be interstate compacts or interest commerce — subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law. Here, as in Petty Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804, the States by venturing into the congressional realm `assume the conditions that Congress under the Constitution attached.' 359 U.S., at 281-282 79 S.Ct. 785, at 790."

But Congress has not made suability in the federal court a condition of coverage under the Fair Labor Standards Act. This is an irresistible implication of Employees of Department of Public Health & Welfare of Missouri v. Department of Public Health & Welfare of Missouri, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). The Supreme Court has distinguished Parden by saying that it involved operation of a railroad for profit, and, as to nonprofit facilities subject to the Fair Labor Standards Act, "we cannot conclude that Congress conditioned the operation of these facilities (hospitals and training schools for delinquent girls) on the forfeiture of immunity from suit in a federal forum." In the present case the institution is a university, a nonprofit institution,¹ and Parden undoubtedly does not apply. Thus, there is no waiver or consent merely by operation of the University of Nebraska. Moreover, the filing of a suit in a federal court can scarcely be argued to be the "venturing into the congressional realm" contemplated by Parden.

Certain language in State of Iowa v. Union Asphalt & Roadoils, Inc., supra, appears to be broad enough to suggest that filing of a lawsuit waives immunity from a counterclaim:

"Having voluntarily invoked the jurisdiction of the federal court the state must submit to any valid order or judgment within the authority of the court to enter."

That broad language was not written with any counterclaim issue in mind. The state legislature of Iowa had specifically assented to suit "in a court having jurisdiction over the subject matter thereof." As long as it reasonably could be concluded that the state legislature intended thereby to consent to suit in a federal court, as the state attorney general conceded it had, consent was well-founded. In the face, however, of United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888 (1940), and Ford...