Mills v. State of Me.

• Decision Date: 05 February 1997
• Docket Number: No. 96-1973,96-1973
• Citation: 118 F.3d 37
• Parties: 134 Lab.Cas. P 33,585, 3 Wage & Hour Cas.2d (BNA) 1802 Jon MILLS, et al., Plaintiffs, Appellants, v. STATE of MAINE, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 37

118 F.3d 37

134 Lab.Cas. P 33,585, 3 Wage & Hour Cas.2d

(BNA) 1802

Jon MILLS, et al., Plaintiffs, Appellants, v. STATE of MAINE, Defendant, Appellee.

No. 96-1973.

United States Court of Appeals First Circuit.

Heard Feb. 5, 1997.

Decided July 7, 1997.

John R. Lemieux, Readfield, ME, for appellants.

Peter J. Brann, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, and Thomas D. Warren, Assistant Attorney General, Augusta, ME, were on brief for appellee.

Before STAHL, Circuit Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

STAHL, Circuit Judge.

This case requires us to determine whether the Eleventh Amendment, as recently interpreted by the Supreme Court in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), bars a federal suit for overtime pay under the Fair Labor Standards Act ("FLSA") brought by state employees against the State of Maine. The district court concluded that Seminole Tribe was a bar and dismissed the suit. For the reasons that follow, we affirm that ruling and thus find unconstitutional a grant of federal court jurisdiction contained in a provision of 29 U.S.C. § 216(b). We also deny a motion made on appeal by plaintiffs-appellants to amend their complaint.

Background and Prior Proceedings

In this case, filed in federal district court in December 1992, ninety-six current and former probation and parole officers (plaintiffs-appellants) have asserted that the State of Maine improperly failed to pay them overtime in accordance with the requirements imposed by Section 7 of the FLSA, as codified at 29 U.S.C. § 207. Maine contended that the probation officers were exempt from the FLSA's overtime provisions. The district court concluded that the plaintiffs were covered employees but came within the FLSA's partial exemption for law enforcement officers, thus requiring additional proceedings on the scope of Maine's liability and the damages recoverable by the probation officers, if any. Following the district court's ruling, the state brought itself into compliance with the FLSA's wage and hour requirements, but because the litigants disputed how much overtime back pay Maine owed the probation officers, the district court submitted the plaintiffs' claims and time sheets to a special master. See Mills v. Maine, 853 F.Supp. 551, 552 (D.Me.1994) (ruling on "issues affecting what damages the State must pay the probation officers"); Mills v. Maine, 839 F.Supp. 3 (D.Me.1993) (finding liability).

The proceedings on liability and damages had not yet concluded when the Supreme Court issued its decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Seminole Tribe held that Congress cannot exercise its Article I powers to abrogate the states' Eleventh Amendment immunity from suit in federal court, see id. at ---- - ----, 116 S.Ct. at 1131-32, and thus overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). On the basis of the holding in Seminole Tribe, Maine filed a motion with the district court asking that the case be dismissed for lack of subject matter jurisdiction. The district court granted the motion and dismissed the case pursuant to Fed.R.Civ.P. 12(b)(1). See Mills v. State, No. 92-410-P-H, 1996 WL 400510 (D.Me. July 3, 1996). In so doing, the district court refused the probation officers' request that the court either allow them to conduct discovery on whether Maine waived its Eleventh Amendment immunity or, alternatively, transfer the case to state court. This appeal ensued.

Standard of Review

We review de novo a district court's dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.), cert. denied, 515 U.S. 1144, 115 S.Ct. 2581, 132 L.Ed.2d 831 (1995).

Seminole Tribe

and Eleventh Amendment Immunity

To determine whether Congress has abrogated the states' Eleventh Amendment immunity from suit in federal court in enacting the FLSA amendments at issue in this case, we must examine two issues: "first, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity,' and second, whether Congress has acted 'pursuant to a valid exercise of power.' " Seminole Tribe, 517 U.S. at ----, 116 S.Ct. at 1123 (internal citation omitted) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 425-26, 88 L.Ed.2d 371 (1985)).

A. Intent to Abrogate

A centerpiece of the New Deal, Congress enacted the Fair Labor Standards Act in 1938. The constitutional validity of the Act's minimum wage, maximum hour, and record-keeping requirements, in addition to its prohibition of interstate shipment of proscribed goods, was challenged under the Commerce Clause as well as the Fifth and Tenth Amendments. A unanimous Supreme Court upheld the Act in 1941. See United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941). While the original 1938 Act specifically excluded states and their political subdivisions from its aegis, Congress amended the FLSA in 1961 and 1966 to extend coverage to some state workers employed in state schools, hospitals, and nursing homes. These amendments were challenged under the Tenth Amendment, but the Supreme Court ruled in 1968 that the amendments were legitimate expressions of Congress' Commerce Clause powers. See Maryland v. Wirtz, 392 U.S. 183, 198-99, 88 S.Ct. 2017, 2024-25, 20 L.Ed.2d 1020 (1968).

In 1973, however, the Supreme Court concluded that the FLSA did not subject states to suits brought by state employees in federal court because Congress had not indicated with sufficient clarity an intent to abrogate the states' Eleventh Amendment sovereign immunity. See Employees of the Dep't of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973). The Court noted that it had scrutinized the statute's text and legislative history, but "ha[d] found not a word ... to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts." Id.

In 1974, in the wake of the Court's decision in Employees, Congress amended the FLSA to cover almost all state employees and to express its intent to subject states to private suits brought in federal court. Two years later, however, in 1976, the Supreme Court overruled Wirtz, and held that Congress did not have the power to extend FLSA protections to state employees in "areas of traditional governmental functions." National League of Cities v. Usery, 426 U.S. 833, 855, 96 S.Ct. 2465, 2476, 49 L.Ed.2d 245 (1976) (5-4 decision). In 1985, however, the Supreme Court reversed itself yet again and overruled Usery in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (5-4 decision). "The result of Garcia was to bring all employees of the states and their political subdivisions within the full coverage of the FLSA." Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1324 (9th Cir.1991).

There can be little doubt that the FLSA, in its current form, makes clear Congress' intention to abrogate state immunity from suit in federal court in private FLSA actions. The Act, as amended, defines "Employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency." 29 U.S.C. § 203(d). In relevant part, it further provides that, "In the case of an individual employed by a public agency, such term means ... any individual employed by a State, political subdivision of a State, or an interstate governmental agency." 29 U.S.C. § 203(e)(2),(C). Finally, the Act, as amended, provides in pertinent part that, "An action to recover the liability prescribed ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees." 29 U.S.C. § 216(b).

In light of this language and the history surrounding it, we agree with the other courts of appeals that have examined the FLSA's provisions and have concluded that the Act contains the necessary clear statement of congressional intent to abrogate state sovereign immunity. See Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 837 (6th Cir.1997); Wilson-Jones v. Caviness, 99 F.3d 203, 208 (6th Cir.1996), reh'g denied and amended by 107 F.3d 358 (6th Cir.1997); Brinkman v. Department of Corrections, 21 F.3d 370, 372 (10th Cir.1994); Reich v. New York, 3 F.3d 581, 590-91 (2d Cir.1993); Hale v. Arizona, 993 F.2d 1387, 1391 (9th Cir.1993) (en banc) ("Congress has made unmistakably clear its intention to apply the FLSA to the states.").

B. Power to Abrogate

Having determined that Congress has clearly manifested its intent to abrogate state sovereign immunity from private FLSA suits in federal courts, we must next consider whether Congress in doing so "has acted 'pursuant to a valid exercise of power.' " Seminole Tribe, 517 U.S. at ----, 116 S.Ct. at 1123 (quoting Mansour, 474 U.S. at 68, 106 S.Ct. at 425-26).

1. The Recital/Declamation of Power Issue

Both sides in this dispute agree that Congress referred to its Commerce Clause powers when it enacted both the original FLSA and the subsequent amendments to the Act that are at issue in this case. See 29 U.S.C. § 202(b) (declaring that the FLSA is an "exercise by Congress of its power to regulate commerce among the several States and with foreign nations."). The probation officers concede that, whatever may have been the law of the land under the holding of Union Gas, see 491 U.S. at 23, 109 S.Ct. at 2286, Seminole Tribe now precludes Congress from using its Commerce Clause powers or any of its other Article I powers to grant jurisdiction to federal courts in suits involving states that do not consent to be sued. See 517 U.S. at ---- - ----, 116 S.Ct. at 1131-32. The probation officers, however, point out...