Employees of Dept. of PH & W. v. DEPARTMENT OF PH & W.

• Decision Date: 27 March 1972
• Docket Number: No. 20204.,20204.
• Citation: 452 F.2d 820
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: EMPLOYEES OF the DEPARTMENT OF PUBLIC HEALTH & WELFARE, STATE OF MISSOURI, et al., Appellants, v. DEPARTMENT OF PUBLIC HEALTH & WELFARE, STATE OF MISSOURI, et al., Appellees.

452 F.2d 820 (1971)

EMPLOYEES OF the DEPARTMENT OF PUBLIC HEALTH & WELFARE, STATE OF MISSOURI, et al., Appellants, v. DEPARTMENT OF PUBLIC HEALTH & WELFARE, STATE OF MISSOURI, et al., Appellees.

No. 20204.

United States Court of Appeals, Eighth Circuit.

November 11, 1971.

Certiorari Granted March 27, 1972.

Charles R. Oldham, St. Louis, Mo., for appellants.

Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, Mo., John C. Danforth, Atty. Gen., for appellees.

Before MATTHES, Chief Judge, VAN OOSTERHOUT,^* Senior Circuit Judge, and MEHAFFY, GIBSON, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges, sitting en banc.

Certiorari Granted March 27, 1972. See 92 S.Ct. 1294.

VAN OOSTERHOUT, Senior Circuit Judge.

Plaintiffs, named employees of various Missouri State institutions, brought this class action under 29 U.S.C.A. § 216(b)¹ to recover unpaid overtime compensation due them under the Fair Labor Standards Act as amended, 29 U.S.C.A. § 201 et seq. They also seek an equal amount as liquidated damages and ask for attorney's fees, all of which is provided for by § 216(b).

Plaintiffs are named employees of five mental hospitals and a cancer hospital operated by the State of Missouri, and employees of the state training schools for girls operated under the Department of Corrections of the State of Missouri.²

Defendants are the Department of Public Health & Welfare of the State of Missouri, the State Board of Training Schools and various State Board members and officials having supervision of the state hospitals and training schools. Such officials are sued in their official capacity and as individuals.

The trial court sustained defendants' motion to dismiss the complaint upon the ground that this is a suit by citizens of the State against the State and as such is barred by the Eleventh Amendment. Plaintiffs took a timely appeal from the judgment of dismissal.

A panel of this court to which the appeal was submitted reversed the judgment of dismissal for reasons stated in an opinion filed April 2, 1971. The writer of this opinion dissented. A rehearing en banc was granted; supplemental briefs were filed by the parties. At the invitation of the court, James D. Hodgson, Secretary of Labor, filed a brief amicus curiae supporting the position of the plaintiff-employees. Rehearing en banc was held on September 13, 1971.

The basic issue presented by this appeal is whether the plaintiffs' action is barred by the Eleventh Amendment. The subsidiary question is whether the State has waived sovereign immunity. We hold that the present action is barred by the Eleventh Amendment and that the State of Missouri has not waived sovereign immunity or consented to this suit. We vacate our prior judgment of reversal and affirm the judgment of dismissal for the reasons hereinafter stated.

The Fair Labor Standards Act of 1938 did not cover State employees. Employees of State schools and hospitals were first brought under the coverage of the Act by a 1966 amendment. The nature and scope of the Amendment are set out in Maryland v. Wirtz, 392 U.S. 183, 88 S.Ct. 2017, 20 L.Ed.2d 1020. The majority opinion in that case authoritatively determined that Congress can and did under its Commerce Clause power make the overtime and minimum wage provisions of the Fair Labor Standards Act as amended applicable to employees of State schools and hospitals.

All of the State hospitals here involved fairly fall within the definition of hospital in the amended Act. Under Wirtz, the hospital employees are clearly covered by the Act. A fact issue arises as to whether the training school for girls is a school within the meaning of the amended Act but we will for the purpose of this case assume that it is a school without so deciding.

We now reach the sovereign immunity issue. The Eleventh Amendment, which became effective in 1794, 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."

Although the Eleventh Amendment by its terms bars only suits against the State by citizens of other States, the Amendment has been consistently interpreted as barring suits against the State by its own citizens. Parden v. Terminal Ry., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233; Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842. As pointed out in Hans, the Eleventh Amendment was the prompt response of Congress, the States and the people to the holding of a divided Supreme Court in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440, that states were subject to suits by individuals. Supreme Court opinions handed down since Chisholm have repudiated the majority opinion in that case rejecting pre-Eleventh Amendment sovereign immunity on the part of the States. Thus in Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282, the Court denied the right of a foreign government to sue a State on the basis of sovereign immunity. No express State immunity from such a suit is found in the Constitution. The Court quotes views expressed by Madison, Hamilton and Marshall and states:

"There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been `a surrender of this immunity in the plan of the convention.\'" 292 U.S. 313, 322-323, 54 S.Ct. 745, 748.

The Court holds:

"The `entire judicial power granted by the Constitution\' does not embrace authority to entertain such suits in the absence of the State\'s consent. Ex parte State of New York, No. 1, supra 256 U.S. 490, p. 497 41 S.Ct. 588, 65 L.Ed. 1057; Missouri v. Fiske, 290 U.S. 18, 25, 26 54 S.Ct. 18, 78 L.Ed. 145.

"4. Protected by the same fundamental principle, the States, in the absence of consent, are immune from suits brought against them by their own citizens or by federal corporations, although such suits are not within the explicit prohibitions of the Eleventh Amendment. * * *" 292 U.S. 313, 329-330, 54 S.Ct. 745, 751.

Accord, Parden v. Terminal Ry., supra; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 88 L.Ed. 1121; Hans v. Louisiana, 134 U.S. 1, 10-16, 10 S.Ct. 504, 33 L.Ed. 842.

It fairly appears from the authorities just cited that a state is immune from a suit brought against it by its citizens on the basis of a reasonable interpretation of the original Constitution and additionally upon the basis of the Eleventh Amendment.

Parden v. Terminal Ry., supra, relied upon by the plaintiffs and by the Tenth Circuit in Briggs v. Sagers, 10 Cir., 424 F.2d 130, in both the majority and minority opinion, fully recognizes that sovereign immunity exists upon the factual background both in that case and in this case. The Parden majority holds: "Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State's own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent." 377 U.S. 184, 192, 84 S.Ct. 1207, 1213.

The Parden minority in an opinion by Mr. Justice White, concurred in by Justices Douglas, Harlan and Stewart, agrees that State immunity exists, stating:

"The majority today follows the Court\'s consistent holdings that an unconsenting State is constitutionally immune from federal court suits brought by its own citizens as well as by citizens of other States. It should not be easily inferred that Congress, in legislating pursuant to one article of the Constitution, intended to effect an automatic and compulsory waiver of rights arising under another." 377 U.S. 184, 198, 84 S.Ct. 1207, 1216.

The minority opinion then expresses sharp disagreement with the view of the majority on the waiver issue:

"In previous opinions the Court has indicated that waiver of sovereign immunity will be found only where stated by `the most express language, or by such overwhelming implication from the text as would leave no room for any other reasonable construction.\' Murray v. Wilson Distilling Co., 213 U.S. 151, 171 29 S.Ct. 458, 464, 53 L.Ed. 742. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 468-470 65 S.Ct. 347, 352-353, 89 L.Ed. 389. If the automatic consequence of state operation of a railroad in interstate commerce is to be waiver of sovereign immunity, Congress\' failure to bring home to the State the precise nature of its option makes impossible the `intentional relinquishment or abandonment of a known right or privilege\' which must be shown before constitutional rights may be taken to have been waived. Johnson v. Zerbst, 304 U.S. 458, 464 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; Fay v. Noia, 372 U.S. 391 83 S.Ct. 822, 9 L.Ed.2d 837. The majority in effect holds that with regard to sovereign immunity, waiver of a constitutional privilege need be neither knowing nor intelligent." 377 U.S. 184, 199-200, 84 S.Ct. 1207, 1217.

The critical issue in our present case, as in Parden, is whether the State has consented to a suit against it by its citizen employees. The Supreme Court in Wirtz clearly states that it is not passing on the sovereign immunity issue which now squarely confronts us. The Court cites Parden but does not discuss or pass upon whether the Parden waiver theory applies in the present situation.³

On the sovereign immunity issue, the Wirtz Court states:

"Percolating through each of these provisions for relief are interests of the United States and problems of immunity, agency, and consent to suit. Cf. Parden v. Terminal R. Co., 377 U.S. 184 84 S.Ct. 1207, 12 L.Ed.2d 233. The constitutionality of applying the substantive requirements of the Act to the States is not, in our view, affected by the possibility that one or more of

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