Taylor v. Com. of Virginia

• Decision Date: 18 December 1996
• Docket Number: Civil Action No. 3:95cv1026.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Lynee C. TAYLOR, et al., Plaintiffs, v. COMMONWEALTH OF VIRGINIA, Department of Transportation, Defendants.

951 F.Supp. 591

Lynee C. TAYLOR, et al., Plaintiffs, v. COMMONWEALTH OF VIRGINIA, Department of Transportation, Defendants.

Civil Action No. 3:95cv1026.

United States District Court, E.D. Virginia, Richmond Division.

December 18, 1996.

James B. Thorsen, Julie M. Whitlock, Hooker, Bode, Collier & Dickinson, Richmond, VA, for Plaintiffs.

Judith B. Anderson, George W. Chabalewski, Mark R. Davis, Catherine S. Gabauer, Office of the Attorney General, Richmond, VA, for Defendant.

PAYNE, District Judge.

MEMORANDUM OPINION

At issue here is whether the Commonwealth of Virginia's constitutionally secured sovereign immunity bars plaintiffs from bringing their Fair Labor Standards Act claim in federal court. Deciding that issue in the affirmative, the court finds that Congress did not have authority, under the Commerce Clause, to abrogate the sovereign immunity conferred under the Eleventh Amendment and that the Commonwealth of Virginia did not waive its immunity.

PROCEDURAL BACKGROUND

Plaintiffs are transportation construction inspectors and employees of the Virginia Department of Transportation ("VDOT"). On December 22, 1995, they filed a complaint against the Commonwealth of Virginia and VDOT seeking recompense for hours worked in excess of those specified in the Fair Labor Standards Act, 29 U.S.C. § 207(a) ("FLSA"). Specifically, plaintiffs seek overtime compensation at a rate of one and one-half times their regular rate of pay for the hours of overtime they worked travelling to and from remote construction sites in vehicles provided by the Commonwealth. They also seek liquidated damages, injunctive relief, attorneys' fees and costs pursuant to the FLSA.

On February 5, 1996, pursuant to 29 U.S.C. § 216(b), notice of this action was sent to all similarly situated VDOT employees who were afforded an opportunity to join the action if they did so before March 22, 1996. On February 13, 1996 and on April 11, 1996, by order of the court, the Taylor action was consolidated with two similar cases, Kennedy v. Commonwealth of Virginia, Department of Transportation, Civil Action No. 3:96cv72, and Boswell v. Commonwealth of Virginia, Department of Transportation, Civil Action No. 3:96cv300. Three hundred and fifty two (352) inspectors ultimately elected to join as plaintiffs against the defendants.

On February 15, 1996, the court, relying in part on Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), denied the defendants' Motion to Dismiss the action over the Commonwealth's assertion of Eleventh Amendment sovereign immunity. On March 27, 1996, the Supreme Court decided Seminole Tribe of Florida v. Florida, ___ U.S. ___, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In Seminole, the Court held that the Indian Commerce Clause does not grant Congress authority to abrogate the States' Eleventh Amendment sovereign immunity. In so holding, the Court overruled Union Gas, on which this court had relied in holding that Congress could, as it did under the FLSA, abrogate the States' sovereign immunity under the Commerce Clause. On April 5, 1996, the defendants filed a motion asking for reconsideration of their motion to dismiss on the ground that this court's decision should be controlled by Seminole. This motion for reconsideration is presently before the court and for the following reasons, the court grants defendant's motion to dismiss.

ELEVENTH AMENDMENT SOVEREIGN IMMUNITY

The analysis begins with the text of the Eleventh Amendment which provides:

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.

U.S. Const.Amend.XI. The proscriptions of the Eleventh Amendment have long been interpreted to prevent citizens from bringing suit against their own State in federal court, notwithstanding that the literal terms of the Amendment do not so provide. Atascadero v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)).

Recently, the Supreme Court explained that: "`we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms' ... first, that each State is a sovereign entity in our federal system; and second, that `[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" Seminole Tribe of Florida v. Florida, ___ U.S. ___, ___, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996) (citations omitted).

State sovereign immunity is not absolute, however. Congress, pursuant to authority bestowed upon it by the constitution, can abrogate sovereign immunity. For example, in Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 2669-71, 49 L.Ed.2d 614 (1976), the Supreme Court held that the:

Eleventh Amendment and the principle of state sovereignty which it embodies ... are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. * * * Congress may in determining `appropriate legislation' for the purpose of enforcing the Fourteenth Amendment provide for private suits against states, which would be constitutionally impermissible in other contexts.

Fitzpatrick, 427 U.S. at 456, 96 S.Ct. at 2671. (citations omitted).

Alternatively, a state may waive its protection under the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). However, waiver will only be found "where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction." Id. at 673, 94 S.Ct. at 1360 (inner quotations omitted).

A. Abrogation

The first question presented here is whether Congress abrogated the States' sovereign immunity in enacting the FLSA or in the amendments which extended the application of the FLSA to State employees. The resolution of any issue involving abrogation of sovereign immunity turns on a two part inquiry: "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, ___ U.S. at ___, 116 S.Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)).

i. Congress Intended to Abrogate Eleventh Amendment Immunity in the FLSA

"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." Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147. "A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically." Atascadero, 473 U.S. at 246, 105 S.Ct. at 3149 (citations omitted); see also Seminole, ___ U.S. at ___, 116 S.Ct. at 1123.

We have in this case such an unmistakably clear statement of Congressional intent to abrogate the States' sovereign immunity. The FLSA provides that "[a]n 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 for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (emphasis added).¹

The FLSA also clearly contemplates that, within its meaning, states are employers and that state workers are employees. Under the FLSA, "employer" is defined to include "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) (emphasis added). "Public agency" includes "the government of a State or political subdivision thereof, any agency of ... a State, or a political subdivision of a State." 29 U.S.C. § 203(x). And, with respect to individuals employed by a public agency, "employee means any individual employed by a State, political subdivision of a State or an interstate governmental agency ..." other than specified exceptions. 29 U.S.C. § 203(e)(2)(C). These "numerous references to the `State' in the text of the FLSA make it indubitable that Congress intended through the Act to abrogate the States' sovereign immunity from suit." See Seminole, ___ U.S. at ___, 116 S.Ct. at 1124 (Indian Gaming Regulatory Act). This conclusion accords with the decisions of numerous courts. See e.g. Brinkman v. Kansas, 21 F.3d 370, 371-72 (10th Cir.1994) ("Congress made clear in the FLSA its intention to override the Eleventh Amendment") (noting agreement with Reich v. New York, 3 F.3d 581, 590 (2d Cir.1993), cert. denied, 510 U.S. 1163, 114 S.Ct. 1187, 127 L.Ed.2d 537 (1994)); Hale v. Arizona, 993 F.2d 1387, 1392 (9th Cir.1992) (en banc) ("The specific inclusion of `public agenc[ies]' and the addition of `any Federal or State court' [to § 16(b)] make the intent of Congress to render states amenable to suit under the FLSA in federal court unmistakably clear."); Karr v. Augusta Correctional Center, 1994 WL 704966 (W.D.Va.) ("under the FLSA, public employers, including states, may be sued in the federal courts"); American Federation of State, County and Municipal Employees, AFL-CIO v. Commonwealth of Virginia, Civ. No. 94-097A, 1995 WL 913191 (W.D.Va. July 10, 1995).

ii. Power to Abrogate

Having determined that in enacting the amendments to the FLSA, Congress clearly intended to abrogate the States' Eleventh Amendment immunity, it is now necessary to examine whether the FLSA was passed "pursuant to a constitutional provision granting Congress the power to abrogate." Seminole, ___ U.S. at ___, 116 S.Ct. at 1125. The court concludes that Congress did not have such...