Luder v. Endicott

• Decision Date: 15 June 2001
• Docket Number: No. 00-1663,00-1663
• Citation: 253 F.3d 1020
• Parties: (7th Cir. 2001) Roger Luder, et al., Plaintiffs-Appellees, v. Jeffrey P. Endicott, et al., Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1020

253 F.3d 1020 (7th Cir. 2001)

Roger Luder, et al., Plaintiffs-Appellees, v. Jeffrey P. Endicott, et al., Defendants-Appellants.

No. 00-1663

In the United States Court of Appeals For the Seventh Circuit

Argued September 22, 2000

Decided June 15, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 90-C-694--Barbara B. Crabb, Judge.

Before Posner, Manion, and Evans, Circuit Judges.

Posner, Circuit Judge.

The plaintiffs in this suit under the Fair Labor Standards Act, 29 U.S.C. sec.sec. 201 et seq., are 145 employees of a Wisconsin state prison, seeking damages against the warden, deputy warden, and personnel officers of the prison, all in their individual (personal) rather than official capacities. Originally the plaintiffs sought injunctive relief as well, but the district court held that only the government may seek injunctive relief under the FLSA and the plaintiffs wisely have not appealed that ruling. E.g., United Food & Commercial Workers Union, Local 1564 v. Albertson's Inc., 207 F.3d 1193, 1197-98 (10th Cir. 2000); Powell v. Florida, 132 F.3d 677 (11th Cir. 1998) (per curiam); see 29 U.S.C. sec.sec. 211, 217; Lorilland v. Pons, 434 U.S. 575, 581 (1978).

The plaintiffs claim that the defendants force them to work before and after their official shifts without paying them. The work in question includes checking equipment, reporting to shift supervisors, and listening to roll-call announcements before the shift, and, after the shift, checking equipment and briefing the employees on the next shift. The damages sought are the federal minimum wage (including time and a half for overtime) that the plaintiffs would be entitled to if as they contend the pre-shift and post-shift "work" counts as work under the Act. Whether it does or not has not been adjudicated and we intimate no view on the question.

The plaintiffs acknowledge that the Eleventh Amendment would bar a damages suit brought in federal court under the Fair Labor Standards Act against either the State of Wisconsin or, what in law is the same thing (subject to an exception discussed later), the defendants in their official capacities. They therefore seek damages against the defendants only in the defendants' individual capacities. The district court denied the defendants' motion to dismiss the suit as barred by the Eleventh Amendment. The defendants have taken an interlocutory appeal from that denial, as they are entitled to do.

The plaintiffs are employees of the Wisconsin Department of Corrections, which is to say of the State of Wisconsin, and not of the defendants, who are merely their supervisors. The FLSA defines "employer," however, to include "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. sec. 203(d); see, e.g., Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987); Herman v. RSR Security Services Ltd., 172 F.3d 132, 139-40 (2d Cir. 1999); Baystate Alternatives Staffing, Inc. v. Herman, 163 F.3d 668, 675 (1st Cir. 1998). The cases we have just cited and others we could cite interpret this to mean that the supervisor who uses his authority over the employees whom he supervises to violate their rights under the FLSA is liable for the violation. That's precisely what the plaintiffs say the defendants did to them.

The Eleventh Circuit has held that a public officer sued in his individual capacity cannot be an employer because it is only in his official capacity that he has authority over the employees' terms of employment. Wascura v. Carver, 169 F.3d 683, 686-87 (11th Cir. 1999); Welch v. Laney, 57 F.3d 1004, 1011 (11th Cir. 1995). With respect, we think that this cannot be right, as it would imply that a police officer who used excessive force against a person he was arresting could not be sued in his individual capacity because it was only by virtue of his office that he had the authority to make the arrest. Power and authority are not synonyms. If the allegations of the complaint are true (as we must assume they are, given the posture of the case), the defendants had and exercised the raw power to deny the plaintiffs their rights under the FLSA. In any event, the distinction on which the Eleventh Circuit relied had been swept away by the Supreme Court in Hafer v. Melo, 502 U.S. 21, 28 (1991), which neither of the Eleventh Circuit cases cited.

But our conclusion that the plaintiffs have stated a claim under the FLSA merely poses, it does not answer, the Eleventh Amendment question. It cannot be answered in the abstract. The application of the amendment to suits against state officials in their individual capacity depends on the circumstances. The general rule is that such suits are not barred by the amendment, because the plaintiff is seeking damages from individuals rather than from the state treasury. E.g., id. at 30-31; Alden v. Maine, 527 U.S. 706, 757 (1999) (an FLSA case); Papasan v. Allain, 478 U.S. 265, 278 n. 11 (1986); Kentucky v. Graham, 473 U.S. 159 (1985); Travis v. Reno, 163 F.3d 1000, 1007 (7th Cir. 1998). The fact that the state chooses to indemnify its employees who are sued in federal court is irrelevant, Benning v. Board of Regents, 928 F.2d 775, 778-79 (7th Cir. 1991); Sales v. Grant, 224 F.3d 293 (4th Cir. 2000); Jackson v. Georgia Dept. of Transportation, 16 F.3d 1573, 1577-78 (11th Cir. 1994); Griess v. Colorado, 841 F.2d 1042 (10th Cir. 1988) (per curiam); Spruytte v. Walters, 753 F.2d 498, 512 and n. 6 (6th Cir. 1985); Demery v. Kupperman, 735 F.2d 1139, 1146-49 (9th Cir. 1984), because it is the voluntary choice of the state, not a cost forced on it by the federal-court suit. Likewise irrelevant is the fact that any exposure of state employees to suit in federal court will, by increasing the expected cost of working for the state, compel the state by reason of competition in the labor market to pay its employees more than if they had a blanket immunity from such suits. Duckworth v. Franzen, 780 F.2d 645, 651 (7th Cir. 1986); Huang v. Johnson, 251 F.3d 65, at 70-71(2d Cir.2001); Carlos Manuel Vazquez, "Eleventh Amendment Schizophrenia," 75 Notre Dame L. Rev. 859, 880 (2000). It is also irrelevant that the judgment may exceed the employee-defendant's capacity to pay unless he is indemnified, Huang v. Johnson, supra, at 70-71, which is merely a misfortune for the plaintiffs unless it places additional pressure on the state to cough up the money--but that, like the other labor-market ramifications of liability arising from public employment, is irrelevant too.

These examples show that the Eleventh Amendment does not protect the states against every expense or inconvenience that the suability of their employees in federal court for violations of federal law might visit upon the states, especially but not only expenses and inconveniences that a state could largely avoid by being hardhearted about claims against its employees (i.e., not pay them!). But even when a suit is against a public officer in his or her individual capacity, the court is obliged to consider whether it may really and substantially be against the state. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 270 (1997); Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 286 (5th Cir. 2000). "[A] suit is against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101 n. 11 (1984). Indirect effects are not enough; otherwise the practical necessity for a state to compensate an employee for bearing liability risks would place individual-capacity suits under the bar of the Eleventh Amendment. But a suit nominally against state employees in their individual capacities that demonstrably has the identical effect as a suit against the state is, we think, barred. Any other position would be completely unrealistic and would make a mockery of the Supreme Court's heightened sensitivity to state prerogatives.

By way of contrast, suppose the state had a firm policy of complying with the FLSA. Indeed, to make it an...