Jenne v. Maranto

• Decision Date: 08 May 2002
• Docket Number: No. 4D01-2147.,4D01-2147.
• Citation: 825 So.2d 409
• Parties: Ken JENNE, Sheriff of Broward County, Appellant, v. Christine MARANTO, Appellee.
• Court: Florida District Court of Appeals

825 So.2d 409

Ken JENNE, Sheriff of Broward County, Appellant, v. Christine MARANTO, Appellee.

No. 4D01-2147.

District Court of Appeal of Florida, Fourth District.

May 8, 2002.

Opinion on Denial of Rehearing August 21, 2002.

Harry O. Boreth and Lloyd S. Glasser of Glasser & Boreth, P.A., Plantation, for appellant.

William R. Amlong of Amlong & Amlong, P.A., Fort Lauderdale, for appellee.

FARMER, J.

An employee of the Sheriff of Broward County has sued him in the circuit court below, claiming that he violated federal law by paying her less than he pays male employees for the same work. The Sheriff moved to dismiss on the basis that he is immune from this suit under the Eleventh Amendment to the United States Constitution. The trial judge decided that the immunity had been waived and denied the motion. The Sheriff timely appeals under rule 9.130(a)(3)(C)(vii).

We first address an issue relating to appellate jurisdiction. Rule 9.130(a)(3)(C)(vii) allows nonfinal review of orders determining that "as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law." We are thus required to assess whether plaintiffs claim under the Equal Pay Act¹ (EPA) is a civil rights claim and whether the Sheriff is claiming absolute or qualified immunity so as to place his attempted nonfinal appeal within rule 9.130(a)(3)(C)(vii).

The EPA was added by amendment to the Fair Labor Standards Act (FLSA).² The EPA was placed within an FLSA statute setting minimum wage rates for employees in commerce. Its essential and only function is to prohibit paying wages to employees of one sex at a rate less than that paid to employees of the other sex for the same work. The FLSA, and thus also the EPA, is codified under Title 29, United States Code, which comprises labor legislation enacted as an exercise of congressional powers under Article I, section 8, of the United States Constitution.

One year after the adoption of the EPA, Congress enacted Title VII of the Civil Rights Act of 1964 (Title VII).³ Title VII bans invidious discrimination on the basis of sex in any of the terms and conditions of employment. The EPA bans sex discrimination only in matters of pay and compensation in employment. In contrast to EPA, Title VII was adopted—at least in part—pursuant to Congress's powers under section 5 of the Fourteenth Amendment, which authorizes legislation applicable even against the States to enforce the constitutional guarantee of the equal protection of the laws contained in the Fourteenth Amendment. Title VII is codified within Title 42, United States Code, along with several other civil rights acts.

As originally adopted the EPA did not apply to the States. In 1974, however, Congress amended the statute to do so.⁴ The 1974 legislation does not indicate what constitutional powers Congress relied on in extending the EPA to cover the States, but under recent Supreme Court decisions that omission does not preclude judges from inferring a Congressional purpose to rely on section 5 of the Fourteenth Amendment in order to validate such legislation. As the Court explained in Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000):

"`Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' We agree with petitioners that the ADEA satisfies that test.... Section 216(b), in turn, clearly provides for suits by individuals against States. That provision authorizes employees to maintain actions for backpay `against any employer (including a public agency) in any Federal or State court of competent jurisdiction....' Any doubt concerning the identity of the `public agency' defendant ... is dispelled by looking to §§ 203(x), which defines the term to include `the government of a State or political subdivision thereof,' and `any agency of ... a State, or a political subdivision of a State.' Read as a whole, the plain language of these provisions clearly demonstrates Congress' intent to subject the States to suit for money damages at the hands of individual employees." [c.o.]

528 U.S. at 73-74, 120 S.Ct. 631.

As the United States Court of Appeals for the Eleventh Circuit has explained about the 1974 amendment to the EPA:

"The original enactment of the Equal Pay Act in 1963 applied only to private employers and stated that Congress was legislating pursuant to its powers under the Interstate Commerce Clause. In 1974, when Congress extended the Equal Pay Act to the States, Congress did not state the basis for its power to abrogate the States' sovereign immunity. This lack of language by Congress stating the basis of its power to legislate is not fatal because the Supreme Court has acknowledged the long-recognized rule that `[t]he constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.'"

Hundertmark v. State of Fla., Dept. of Transp., 205 F.3d 1272, 1274-75 (11th Cir. 2000).

Applying that analysis to the 1974 amendment to the EPA, it appears to us as it did to the Eleventh Circuit that while EPA was originally enacted under the interstate commerce powers given to Congress in Article I, section 8, the extension of EPA to cover State employers was based on the power given to Congress in section 5 of the Fourteenth Amendment. Unlike the Eleventh Circuit, however, we do not think that an amendment to the EPA extending it to cover governmental employers necessarily makes the EPA civil rights legislation.

We emphasize that the EPA was itself an amendment to the FLSA statute setting minimum wage rates, a statute no one would characterize as civil rights legislation. The EPA is still today a part of that same FLSA statute. The 1974 amendment extending the EPA to cover the States was in fact an amendment that directly applied to FLSA, not to EPA. In Alden v. Maine, the Court considered a claim of "constitutional design" immunity and the Eleventh Amendment in a suit brought under the FLSA against the State of Maine in a Maine court. Alden v. Maine, 527 U.S. 706, 712, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The Court began its analysis by implicitly holding that FLSA must be considered under Congress's Article I powers. 527 U.S. at 712, 119 S.Ct. 2240. The Court went on to hold that Congress had no Article I power to make the States subject to suits in their own courts:

"We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA."

527 U.S. at 711, 119 S.Ct. 2240.

Our jurisdiction has been invoked under rule 9.130. As the supreme court explained about nonfinal review under this rule:

"The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment."

Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla.1984). The enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning. 443 So.2d at 960 ("Petitioner's argument is contrary to the plain meaning of the rule...."). The rule does not authorize judges to enlarge its provisions to permit review of nonfinal orders not specified within its provisions. See BE & K Inc. v. Seminole Kraft Corp., 583 So.2d 361, 364 (Fla. 1st DCA 1991) ("Piecemeal review of non-final orders prior to final disposition of all issues must be strictly limited as much as possible to conserve the sparse judicial resources available at the appellate level.").

In this case, the Sheriff claims the pure immunity of the sovereign States protected by the Eleventh Amendment, rather than the absolute or qualified immunity of individual officials confronted by the Florida Supreme Court in Tucker v. Resha, 648 So.2d 1187 (Fla.1994). In Tucker, the court concluded that nonfinal review should be allowed for denials of absolute or qualified immunity in civil rights cases and instructed the Appellate Rules Committee to draft an amendment to rule 9.130 providing for such review. The claim in Tucker did not involve an action against the State of Florida, or one of its officials who partook of the State's fundamental "constitutional design" immunity and was therefore—like the State itself—directly protected against the suit by the Eleventh Amendment.⁵

Instead the immunity at issue in Tucker was an individual immunity of governmental officials, often officials of cities and local governments, who are sued for acts committed while purporting to act within their lawful discretion but who are not protected by the Eleventh Amendment.⁶ This qualified or absolute immunity is an affirmative defense which must be pleaded and proved by the official claiming it.⁷ In contrast, the sovereign immunity of the States protected by the Eleventh Amendment has the character of a limitation on judicial jurisdiction and cannot be waived by mere inaction on the part of the State; it takes a positive act of waiver by the State to lose it.⁸ Applying the plain meaning of rule 9.130(a)(3)(C)(vii), we are forced to construe the EPA to be something other than civil rights legislation for purposes of our jurisdiction under the rule. The rule specifically limits its sweep to claims only of "absolute or qualified immunity in a civil rights claim arising under federal law...." The plain meaning of these words is obviously to cover only the kind of immunity— absolute or qualified—claimed by individual officials who are perforce not entitled to the "constitutional design" immunity protected by the Eleventh Amendment. Because...