Brinkman v. Dept. of Corr. of State of Kan.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: Charles E. Simmons, Kansas Dept. of Corrections, Topeka, Kan., for defendant
• Citation: Brinkman v. Dept. of Corr. of State of Kan., 804 F.Supp. 163 (D. Kan. 1992)
• Decision Date: 16 September 1992
• Docket Number: No. 91-4208-C.,91-4208-C.
• Parties: Albert L. BRINKMAN, et al., Plaintiffs, v. The DEPARTMENT OF CORRECTIONS OF THE STATE OF KANSAS, Defendant.

804 F. Supp. 163

Albert L. BRINKMAN, et al., Plaintiffs, v. The DEPARTMENT OF CORRECTIONS OF THE STATE OF KANSAS, Defendant.

No. 91-4208-C.

United States District Court, D. Kansas.

September 16, 1992.

Brad E. Avery, Kansas Ass'n of Public Employees, Topeka, Kan., for plaintiffs.

Charles E. Simmons, Kansas Dept. of Corrections, Topeka, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on four motions: the defendant's motion to dismiss based upon principles from the Tenth and Eleventh Amendments (Dk. 18); the defendant's motion to dismiss (Dk. 42) premised on the doctrines of res judicata and collateral estoppel; and the defendant's motion (Dk. 44) and the plaintiffs' motion (Dk. 46) for summary judgment grounded on the lack of material facts to prevent entering judgment on the merits of the plaintiffs' claims under the Fair Labor Standards Act of 1938 ("FLSA" or "the Act"), 29 U.S.C. § 201 et seq. The motions will be decided seriatim.

Defendant's Motion to Dismiss (Dk. 18).

The defendant argues the FLSA's application to employees of a state correctional system impinges upon state sovereignty in violation of the Tenth Amendment. In effect, the defendant asks the court to resurrect a test from an overruled Supreme Court decision and to abrogate the FLSA's coverage of state and local government employees accordingly.

To trace the meandering path taken by the Supreme Court and Congress in making the FLSA applicable to state and local governments, the court will use as road maps two decisions from the Tenth Circuit, Lamon v. City of Shawnee, Kansas, 972 F.2d 1145 (10th Cir.1992), and Local 2203 v. West Adams Cty. Fire Protection Dist., 877 F.2d 814 (10th Cir.1989). As enacted in 1938, the FLSA expressly exempted the states and their political subdivisions from its comprehensive remedial scheme that set a minimum wage and an overtime wage. 29 U.S.C. § 203(d) (1940). Congress, in 1966, removed this exemption by including within the definition of "employer" the state or its political subdivisions operating certain schools, hospitals, nursing homes, railways or carriers. 29 U.S.C. § 203(d) (1966). The Supreme Court in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), found this amendment constitutionally valid under the Commerce Clause. In 1974, Congress expanded the reach of FLSA to cover virtually all state and local government employees. FLSA Amendments of 1974, 29 U.S.C. § 203(d) and (x). Overruling Wirtz, the Supreme Court in 1976 invalidated FLSA's extension to state and local governments when those entities were performing traditional governmental functions. National League of Cities v. Usery, 426 U.S. 833, 851-52, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976). The Court believed that Congress' authority under the Commerce Clause could not be wielded so as to deny effectively the States' sovereign existence. Id. at 851-52, 96 S.Ct. at 2474. Overruling itself again, the Supreme Court rejected, "as unsound in principle and unworkable in practice," the "integral" or "traditional" governmental test established in Usery. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546, 105 S.Ct. 1005, 1014, 83 L.Ed.2d 1016 (1985). Out of "due respect for the reach of congressional power within the federal system," the Garcia majority believed that the political process provided an adequate check on Congress' exercise of Commerce Clause power and that this check displaced any constitutional need for articulating limits on this power in this setting. 469 U.S. at 556-57, 105 S.Ct. at 1020. To cushion the blow from the Act's revived application, Congress gave state and local employers a grace period running to April 15, 1986, before the Act became applicable to them. Fair Labor Standards Amendments of 1985, Pub.L. No. 99-150 (1985).

Defendant asks the court to resurrect the test from Usery arguing the Supreme Court in Gregory v. Ashcroft, 501 U.S. ___, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), dealt a blow to Garcia. The Gregory decision certainly reaffirms much of the federalism principles espoused in Usery. It also adopts a plain statement rule for use in deciding whether Congress actually intended to override a state's sovereign powers. The Court found no clear and manifest statement that the Age Discrimination in Employment Act was intended to cover appointed state judges. Even so, the Court expressly acknowledged Garcia and said it was avoiding any decision on whether Congress had exceeded its authority under the Commerce Clause and was deciding only whether Congress had exercised that authority.¹ The Court in Gregory did not question the precedential force of Garcia but simply worked around it. The defendant may have cause to wish and hope that Gregory is a harbinger of Garcia's overruling, but this court has no concrete basis for concluding that Garcia is not controlling here. The FLSA's coverage of employees of state correctional system does not violate the Tenth Amendment. See Renfro v. City of Emporia, Kan., 948 F.2d 1529, 1541 (10th Cir.1991), cert. dismissed, ___ U.S. ___, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992); Bratt v. County of Los Angeles, 912 F.2d 1066, 1068 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 962, 112 L.Ed.2d 1049 (1991).

The defendant's next constitutional volley is the Eleventh Amendment. Congress may override the States' Eleventh Amendment immunity in the exercise of its Commerce Clause power. Pennsylvania v. Union Gas Co., 491 U.S. 1, 14-15, 109 S.Ct. 2273, 2281, 105 L.Ed.2d 1 (1989) (plurality opinion); see id. at 57, 109 S.Ct. at 2295 (White, J., concurring in the judgment). This is accomplished only when Congress' intent to do so is manifested in "unmistakable language in the statute itself." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985).

On two recent occasions, the Ninth Circuit has rejected Eleventh Amendment challenges to the FLSA, Hale v. State of Ariz., 967 F.2d 1356 (9th Cir.1992); and Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1323-24 (9th Cir.1991). In a somewhat surprising decision, not cited by either side, a federal district court in New Mexico held that the Eleventh Amendment barred an action by corrections officers against the New Mexico Corrections Department. AFSCME v. Corrections Dept. of State of N.M., 783 F.Supp. 1320 (D.N.M. 1992). The federal judge there gleaned an exacting standard from the relevant Supreme Court decisions and concluded that the FLSA fell short of it. 783 F.Supp. at 1324-26. This court is not persuaded by this precedent within the Tenth Circuit principally because the judge did not consider the effect of the 1985 amendment which gave the states until April 15, 1986, to conform to FLSA procedures. Pub.L. No. 99-150, 99 Stat. 787 § 2(c)(1) (1985), 29 U.S.C. § 216 (historical note) (1988). This 1985 amendment, read in conjunction with 29 U.S.C. §§ 203(x) and 216(b), is unequivocal, textual evidence of Congress' intent to abrogate the States' Eleventh Amendment immunity. See Hale, 967 F.2d at 1362; Gilbreath, 931 F.2d at 1324.

Defendant's Motion to Dismiss (Dk. 42).

Calling upon the doctrines of res judicata and collateral estoppel, the defendant argues the plaintiffs are bound by a prior state court decision on the issue whether their meal times are compensable. The defendant also seeks leave to amend its answer to add these affirmative defenses of collateral estoppel and res judicata. The plaintiffs contend the defendant has waived these defenses and the court should deny it leave to add them. Since the filing of the plaintiffs' memorandum in opposition, the parties have submitted an agreed pretrial order which was signed and filed by the court on August 31, 1992. The affirmative defense of res judicata appears, without reservation or objection, in the pretrial order as one of the defendant's contentions and as one of the issues of law. As evidenced by the pretrial order, the plaintiffs have dropped their objections to the defendants' addition of this affirmative defense, and the issue of res judicata is properly before the court.

In deciding a motion to dismiss, the court must accept as true on their face the well-pleaded factual allegations of the complaint, and all reasonable inferences are made in favor of the plaintiffs. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). Dismissal is appropriate only if it appears beyond a reasonable doubt that the plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In ruling on a rule 12(b)(6) motion, the court may not consider material beyond the pleadings unless it is submitted or attached as part of the complaint. Hal Roach Studios v. Richard Feiner and Co., 883 F.2d 1429, 1441 n. 18 (9th Cir.1989). If extraneous matters are submitted by either side and accepted by the court, the motion must be converted into one for summary judgment. Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th Cir.1977). Upon conversion of the motion, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R.Civ.P. 12(b).

The defendant's motion to dismiss is flawed for any number of reasons. The merits of the motion cannot be decided from the face of the pleadings. Nor has the defendant submitted as exhibits the complaint or orders from the prior state court action. Nor has the defendant applied in any meaningful way the doctrines to the facts and issues of the prior state court action and the current federal court action. While pointing to the state district court's holding that the officer's meal periods were not compensable, the defendant does not say what legal or factual theories were alleged or decided there. While identifying those persons who were parties to...