Wilson-Jones v. Caviness

Citation99 F.3d 203
Decision Date16 January 1997
Docket Number95-3143,Nos. 95-3086,WILSON-JONES,s. 95-3086
Parties, 132 Lab.Cas. P 33,450, 3 Wage & Hour Cas.2d (BNA) 929 Robin M., et al., Plaintiffs-Appellees/Cross-Appellants, v. Rev. E. Theophilus CAVINESS, et al., Defendants-Appellants/Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Linda Kathryn Fiely (briefed), Ohio Civil Service Employees Association, Columbus, OH, Michael A. Moses (argued and briefed), Columbus, OH, for Plaintiffs-Appellees/Cross-Appellants.

Linda Kathryn Fiely, Ohio Civil Service Employees Association, Columbus, OH, Christa D. Thompson, Bexley, OH, Michael A. Moses, Columbus, OH, for Debra K. Payne in No. 95-3086.

Robert L. Griffin, Asst. Attorney Gen. (argued and briefed), Columbus, OH, for Defendants-Appellants/Cross-Appellees.

Before: BOGGS and NORRIS, Circuit Judges; and HOOD, ** District Judge.

BOGGS, Circuit Judge.

The plaintiffs in this action seek money damages from the Ohio Civil Rights Commission ("Commission") for violation of the Fair Labor Standards Act ("FLSA"). In light of Seminole Tribe of Florida v. Florida, --- U.S. ----, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), we hold that the part of the FLSA that purports to give federal courts jurisdiction over an action against a state for violation of the FLSA's minimum wage and maximum hour provisions is unconstitutional and, therefore, the district court was without jurisdiction over the plaintiffs' case.

I

Plaintiffs are employees of the Ohio Civil Rights Commission who believe that the Commission violated the overtime provisions of the FLSA. The district court awarded the plaintiffs money damages, and the defendants filed a timely notice of appeal. After Seminole Tribe was decided, we informed the parties by letter of a possible lack of subject matter jurisdiction. We asked the parties to address the implications of Seminole Tribe at oral argument, which they did admirably on short notice.

II

A threshold question is the extent of our obligation to decide the jurisdictional issue. In Patsy v. Board of Regents, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982), the Supreme Court noted in dicta that it had never held that the Eleventh Amendment "is jurisdictional in the sense that it must be raised and decided by this Court on its own motion." Circuit courts generally interpreted this language to mean that a federal court may or may not raise the issue of a state's immunity, in its discretion. E.g., Biggs v. Meadows, 66 F.3d 56, 60 (4th Cir.1995); Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 735 n. 5 (7th Cir.1994).

We believe that Patsy 's permissive language is superseded by Seminole Tribe 's holding that "[t]he Eleventh Amendment restricts the judicial power under Article III." As an amendment to the scope of the judicial power under Article III, state immunity is jurisdictional in the same sense as the complete diversity requirement, Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806), or the well-pleaded complaint rule, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Although both of the latter two doctrines are based only on statutory interpretation, state immunity is similar to them in that neither the litigants' consent, nor oversight, nor convenience can justify a court's exercise of illegal power. 1 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984) ("[a] federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." (emphasis added) (dicta)); Gorka v. Sullivan, 82 F.3d 772, 774 (7th Cir.1996) (Eleventh Amendment a jurisdictional bar, and court must dismiss case even when state defendant removed to federal court voluntarily). Mascheroni v. Board of Regents, 28 F.3d 1554, 1557-59 (10th Cir.1994) (discussing the conflict between the permissive dicta in Patsy and the mandatory dicta in Pennhurst ).

We are therefore required to ask whether Congress has effectively waived Ohio's Eleventh Amendment immunity.

III

Congress passed the FLSA in 1938. It requires certain employers to pay their employees a minimum wage and also to pay them one and one-half times their regular rate of pay for hours worked in excess of 40 during one week. In its original form, the FLSA did not apply to "any State or political subdivision of a State," §§ 3(d), 13(a)(9) of the FLSA, 52 Stat. 1060, 29 U.S.C. § 203(d) (1940 ed.), and the Supreme Court unanimously upheld it as a valid exercise of Congress's commerce power. United States v. Darby, 312 U.S. 100, 115, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941).

Congress began to expand the FLSA to cover the states' relationship with their employees in the 1960s. In 1961, Congress included state-run "enterprises" engaged in commerce or the production of goods for commerce in the Act's definition of "employer." 75 Stat. 65, 29 U.S.C. §§ 203(r) & (s), 206(b), 207(a)(2) (1964 ed.). In 1966, Congress included state-owned schools, hospitals, nursing homes, and mental institutions. 80 Stat. 831, 832, 29 U.S.C. §§ 203(d), 203(s)(4) (1964 ed., Supp. II). The Supreme Court held that both of these amendments were within Congress's power under the Commerce Clause. Maryland v. Wirtz, 392 U.S. 183, 188, 88 S.Ct. 2017, 2019, 20 L.Ed.2d 1020 (1968).

In 1973, the Supreme Court squarely faced for the first time the question of whether the FLSA abrogated--or "waived"--the states' immunity from suit in federal court under the Eleventh Amendment. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), (Eleventh Amendment protects states from suits by private citizens brought in federal court). The Court found no clear statement of a congressional intent to abrogate the states' immunity, and held that a non-consenting state could not be sued by an individual citizen under the FLSA in federal court. Employees v. Missouri Public Health Dept., 411 U.S. 279, 281, 93 S.Ct. 1614, 1616, 36 L.Ed.2d 251 (1973).

In 1974, Congress amended the FLSA to add the clear statement required by the Court. The amendment, still the law today, broadened the definition of "employer" to include a "public agency," 88 Stat. 55, 29 U.S.C. § 203(d) (1978 ed.), and defined "public agency" to include "the government of a State or political subdivision thereof [or] any agency of ... a State, or a political subdivision of a State," 29 U.S.C. § 203(x) (1978 ed.). After this amendment, the Eleventh Amendment issue seemed resolved, and courts consistently denied state claims of Eleventh Amendment immunity. E.g., Spencer v. Auditor of Public Accounts, 705 F.Supp. 340, 344-45 (E.D.Ky.1989). It was clear, then, that Congress could abrogate a state's sovereign immunity by an express statement. Pennsylvania v. Union Gas Co., 491 U.S. 1, 17, 109 S.Ct. 2273, 2283, 105 L.Ed.2d 1 (1989). Litigation focused instead on the substantive provisions of the Act, rather than the jurisdictional grant, challenging the FLSA's application to the states on the ground that it interfered with vital state functions in violation of the Tenth Amendment. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth. 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985).

Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1131, overruled Pennsylvania v. Union Gas. The power of Congress to abrogate by express statement a state's Eleventh Amendment immunity is no longer unlimited. This power depends on the particular purpose for which Congress attempts to take away the state's immunity. The regulation of interstate commerce alone cannot justify a waiver, because Congress's power to regulate interstate commerce, which is part of Congress's Article I powers, is limited by the Eleventh Amendment. Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1131 (Congress cannot waive limits on its Article I powers).

IV

Neither party disputes the obvious fact that the FLSA's wage and hour provisions were enacted pursuant to Congress's commerce power. The FLSA begins:

It is hereby declared to be the policy of this Act, through the exercise by Congress of its power to regulate commerce among the several States, to correct and as rapidly as practicable eliminate the conditions above referred to in such industries without substantially curtailing employment or earning power.

52 Stat. 1060. Nor does either party dispute that the commerce power alone is insufficient authority for Congress to abrogate state sovereign immunity. See Seminole Tribe, --- U.S. at ----, 116 S.Ct. at 1131. Faced with a similar case, a district court has twice held that an action for overtime compensation under the FLSA against a state cannot proceed in federal court absent the state's consent. Blow v. State of Kansas, 929 F.Supp. 1400 (D.Kan.1996) ("Seminole Tribe determined that Congress does not have authority under the Interstate Commerce Clause to abrogate a state's Eleventh Amendment immunity, [and] there can be no cause of action against a state or any of its agencies under the FLSA."); Adams v. State of Kansas, 934 F.Supp. 371 (D.Kan.1996) (same).

Our present case is made difficult only by the contention of the plaintiffs that the federal courts have subject matter jurisdiction over their action despite Seminole Tribe because the FLSA is within the power of Congress to enforce the Equal Protection Clause under § 5 of the Fourteenth Amendment. It is settled that the Eleventh Amendment does not limit the effectiveness of legislation passed pursuant to Congress's power under the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 453-55, 96 S.Ct. 2666, 2670-71, 49 L.Ed.2d 614 (1976). For such legislation to confer federal jurisdiction over actions against states by private...

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