Mercado v. Commonwealth of Puerto Rico

• Citation: 214 F.3d 34
• Decision Date: 08 March 2000
• Docket Number: N,No. 99-1661,99-1661
• Parties: (1st Cir. 2000) LUIS JUSINO MERCADO, ET AL., PLAINTIFFS, APPELLANTS, v. COMMONWEALTH OF PUERTO RICO, ET AL., DEFENDANTS, APPELLEES. CARLOS VEGA CASTRO, ET AL., PLAINTIFFS, APPELLANTS, V. COMMONWEALTH OF PUERTO RICO, ET AL., DEFENDANTS, APPELLEES. . o. 99-1584. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 34

214 F.3d 34 (1st Cir. 2000)

LUIS JUSINO MERCADO, ET AL., PLAINTIFFS, APPELLANTS, v. COMMONWEALTH OF PUERTO RICO, ET AL., DEFENDANTS, APPELLEES.

CARLOS VEGA CASTRO, ET AL., PLAINTIFFS, APPELLANTS,

V.

COMMONWEALTH OF PUERTO RICO, ET AL., DEFENDANTS, APPELLEES.

United States Court of Appeals, First Circuit.

No. 99-1661, No. 99-1584.

Heard March 8, 2000.

Decided May 31, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Heector M. Laffitte, United States District Judge, Hon. Daniel R. Domnguez, U.S. District Judge. [Copyrighted Material Omitted] Michael T. Leibig, with whom Carla M. Siegel and Zwerdling, Paul, Leibig, Kahn, Thompson & Wolly, P.C., were on brief, for appellants.

Gustavo A. Gelpi, Solicitor General, with whom Edda Serrano-Blasini, Deputy Solicitor General, Leticia Casalduc-Rabell and Irene S. Soroeta-Kodesh, Assistant Solicitors General, were on brief, for appellees.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Circuit Judge.

Spurred by the Supreme Court's changing explication of Eleventh Amendment jurisprudence, we recently determined that a non-consenting state cannot be sued in a federal venue by public employees who seek to enforce the penalty provisions of the Fair Labor Standards Act, 29 U.S.C. §§§§ 201-219 (FLSA). See Mills v. Maine, 118 F.3d 37, 49 (1st Cir. 1997); accord Abril v. Virginia, 145 F.3d 182, 185-86 (4th Cir. 1998) (collecting similar cases). This result was compelled by the Court's decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996). ¹ The instant appeals raise a somewhat different - and more nuanced - question: does that selfsame prohibition extend to suits brought by public employees against Puerto Rico, notwithstanding Congress's plenary power over territories and possessions? We hold that, absent further congressional action, Puerto Rico, like the fifty states, is immune from federal damages actions brought by individuals under the FLSA.

I. TRAVEL OF THE CASE

On May 15, 1998, two separate groups of public employees - one composed of police officers and the other composed of correctional officers - filed class action complaints in the United States District Court for the District of Puerto Rico. Each suit named the Commonwealth of Puerto Rico and various commonwealth entities (hereinafter collectively Puerto Rico) as defendants and sought overtime pay, liquidated damages, and kindred relief arising out of alleged FLSA violations. ² Mindful that this court long had held that Puerto Rico enjoys the benefit of Eleventh Amendment immunity, see, e.g., Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 3 (1st Cir. 1999); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 697 (1st Cir. 1983); Fernandez v. Chardon, 681 F.2d 42, 59 n.13 (1st Cir. 1982), the defendants moved to dismiss both suits. In each instance, the district court obliged. See Jusino Mercado v. Puerto Rico, Civ. No. 98-1536 (D.P.R. Mar. 23, 1999); Vega Castro v. Puerto Rico, 43 F. Supp. 2d 186 (D.P.R. 1999). Both sets of plaintiffs appealed and we consolidated the cases.

II. THE APPELLANTS' ARGUMENT

The appellants advance an arresting argument. They claim that the Supreme Court's decisions in Seminole Tribe and its progeny have made it pellucid that the rationale behind Eleventh Amendment immunity hinges upon the constitutional bargain in which states joined the Union but retained their inherent sovereignty. Although that bargain circumscribes the federal government's authority, it is specific to the states; thus, the appellants reason, it cannot insulate other entities (like Puerto Rico).

An historical overview may help to place this sophisticated argument into perspective. For many years, the Supreme Court fostered the impression that Congress could authorize individuals to sue states in federal courts pursuant to the exercise of its plenary powers under Article I, as long as it signaled its intention clearly enough. See, e.g., Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20 (1989) (plurality opinion) (arguing that Congress's plenary power under the Commerce Clause would be incomplete without the power to render the states liable in damages); Employees v. Department of Pub. Health & Welfare, 411 U.S. 279, 284-85 (1973) (stating that Congress can legislate if it concludes that "national policy" dictates an elevation of state employees' economic status, but that "Congress, acting responsibly, would not be presumed to take such action silently"); see also Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 475-76 & n.5 (1987) (assuming the point arguendo). In these cases, the Supreme Court interpreted the Eleventh Amendment more as an acknowledgment that states retained common-law sovereign immunity over matters not specifically addressed by the Constitution than as an absolute protection of states' sovereign immunity generally. See, e.g., Union Gas, 491 U.S. at 19-20; see also Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213, 2245 (1996).

In Seminole Tribe, the Court abandoned this well-trodden path and insisted upon a two-step inquiry to determine whether a federal statute effectively trumped a state's Eleventh Amendment protections. It asked first whether Congress unequivocally had declared an intent to abrogate the states' immunity and then asked whether the attempted abrogation occurred pursuant to a constitutional clause that entails the power to abrogate. See Seminole Tribe, 517 U.S. at 55. In the statute at issue there (which concerned gaming on Indian reservations), Congress had made no secret of its intention to override the states' immunity, but it had acted under the Indian Commerce Clause, U.S. Const. art. I, §§ 8, cl. 3. As a result, the Court found the law's attempted abrogation of immunity invalid. See id. at 72-73. In reaching this conclusion, the Court held flatly that Congress could not subdue the states' sovereign immunity in furtherance of its Article I powers, no matter how emphatically it stamped its foot. See id.

This holding represented a sea change in prevailing Eleventh Amendment jurisprudence. The Court not only negated its earlier assumption that Congress could abrogate states' sovereign immunity in pursuance of Article I as long as it expressed its intent to do so with sufficient clarity, but also overruled Union Gas. See id. at 66. In the process, the Court repudiated the notion that "to the extent that the States gave Congress the authority to regulate commerce, they also relinquished their immunity where Congress found it necessary, in exercising this authority, to render them liable." Union Gas, 491 U.S. at 19-20. It posited instead that the states retained their immunity when the original constitutional bargain was struck (citing the Eleventh Amendment as a confirmation of that fact). See Seminole Tribe, 517 U.S. at 64; see also Alden v. Maine, 119 S. Ct. 2240, 2256 (1999) ("Although the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design."). In short, Seminole Tribe signifies that when Article I is the only applicable wellspring of congressional authority, the Eleventh Amendment precludes Congress from allowing individuals to sue non-consenting states in federal court. ³ See Kimel v. Florida Bd. of Regents, 120 S. Ct. 631, 643-44 (2000).

Building on this foundation, the appellants argue that the district court should have allowed their FLSA suits to go forward. In their view, the first part of the Seminole Tribe test - intent - is satisfied here because, in enacting the FLSA, Congress unmistakably expressed its intention to pierce the shield of the states' immunity, see Mills, 118 F.3d at 42, and did so in a way that enveloped Puerto Rico, see 29 U.S.C. §§ 203(c).

The second part of the Seminole Tribe test - validity - is fulfilled, the appellants asseverate, because Puerto Rico was not a party to the constitutional bargain that protects the states' immunity from overreaching exercises of Congress's Article I powers. Although it may be reasonable to say that the states did not surrender their sovereign immunity when they pledged fealty to a document that included the Commerce Clause, the appellants reject such a claim regarding Puerto Rico. Puerto Rico is a territory, not a state, and in their view, the Territorial Clause gives Congress plenary power to do whatever it deems useful in respect to the territories (including the abrogation of their sovereign immunity). See U.S. Const. art. IV, §§ 3, cl. 2 (investing Congress with the power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States"). Consequently, the appellants' thesis runs, the FLSA's intended abrogation of sovereign immunity, though impuissant as to the states by virtue of the Eleventh Amendment, has force as to Puerto Rico.

Despite the syllogistic ease of this thesis, there is a rather large fly in the ointment. Puerto Rico became an American dependency in 1898, and the Supreme Court recognized its common-law sovereign immunity almost immediately thereafter. See Porto Rico v. Rosaly y Castillo, 227 U.S. 270, 273 (1913). Congress subsequently gave the people of Puerto Rico a substantial measure of autonomy over their own affairs. See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8 (1982). This special treatment crested in 1953 when Puerto Rico gained the option (promptly exercised) of drafting its own constitution, to take effect after being adopted by the people and approved by Congress. See 48 U.S.C. §§§§ 731b-731e. This overture was "in the nature of a compact" and, when accepted, guaranteed "a republican form of government" for the island. Id. §§§§ 731b-731c; see generally ...