USCA1 Opinion
No. 96-1973
JON MILLS, ET AL.,
Plaintiffs, Appellants,
v.
STATE OF MAINE,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
____________________
Before
Stahl, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
John R. Lemieux for appellants.
Peter J. Brann, Assistant Attorney General, with whom Andrew
Ketterer, Attorney General, and Thomas D. Warren, Assistant Attorney
General, were on brief for appellee.
____________________
July 7, 1997
____________________
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,
116 S. Ct. 1114 (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. S 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. S 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.
-2-
2
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.
Main
e, 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, 116 S. Ct. 1114 (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 1131-32, and thus overruled
Pennsylvania
v.
Union
Gas Co., 491 U.S. 1 (1989). On the basis
of
the
holding
in
Seminol
e 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. Maine, 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
-3-
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, 115 S. Ct. 2581 (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, 116 S. Ct. at
1123
(internal
citation
omitted) (quoting Green v. Mansour, 474
U.S. 64, 68 (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.
-4-
4
Darby, 312 U.S. 100 (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 (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 (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
-5-
5
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
(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 (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. S 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. S 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
-6-
6
court
of
competent jurisdiction by any one or more employees."
29 U.S.C. S 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
Comm.,
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, 116 S. Ct. at 1123
(quoting Mansour, 474 U.S. at 68).
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
-7-
7
original
FLSA
and
the
subsequent amendments to the Act that are
at
issue
in
this case. See 29 U.S.C. S 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, 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 116 S. Ct. at 1131-32.
The
probation officers, however, point out that Seminole Tribe
reaffirmed
Congress'
power to abrogate state immunity from suit
in federal court by enacting legislation pursuant to section
five
of
the
Fourteenth
Amendment, see id. at 1125, 1128 (citing
Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56 (1976)), and
contend
that
the
FLSA
amendments still subject unwilling states
to suit in federal court because Congress had the power to
enact those amendments under section five of the Fourteenth
Amendment.
While Congress' invocation of its Commerce Clause
powers is probative, it is not dispositive of whether it had
the power to enact the FLSA amendments in question under
section five of the Fourteenth Amendment. "'Our duty in
passing
on
the
constitutionality of legislation is to determine
whether Congress had the authority to adopt legislation, not
-8-
8
whether it correctly guessed the source of that power.'"
Timmer, 104 F.3d at 839 (quoting Usery v. Charleston County
Sch. Dist., 558 F.2d 1169, 1171 (4th Cir. 1977)). As the
Supreme Court has explained, "[t]he question of the
constitutionality of action taken by Congress does not depend
on recitals of the power which it undertakes to exercise."
Woods
v.
Cloy
d W. Miller Co., 333 U.S. 138, 144 (1948) (quoted
in EEOC v. Wyoming, 460 U.S. 226, 243-44 n.18 (1983) and
Ramirez
v.
Pu
erto Rico Fire Serv., 715 F.2d 694, 698 (1st Cir.
1983)). See also Laurence H. Tribe, American Constitutional
Law 307 n.6 (2d ed. 1988) ("An otherwise valid exercise of
congressional authority is not, of course, invalidated if
Congress happens to recite the wrong clause [of the
Constitution] . . . or, indeed, if Congress recites no clause
at all.") (citing Woods).
Specifically
with
respect to congressional exercises
of
power
pursuant to section five of the Fourteenth Amendment,
we have indicated that "[t]he omission of any ritualistic
incantation
of
powers
by
the Congress is not determinitive, for
there
is
no
requirement
that the statute incorporate buzz words
such as 'Fourteenth Amendment' or 'section 5' or 'equal
protection'." Ramirez, 715 F.2d at 698. Our Fourteenth
Amendment approach is one that we have directly adopted from
Supreme
Court
precedent.
See Wyoming, 460 U.S. at 243-44 n.18.
-9-
9
Accordingly, as we have had previous occasion to
point
out,
"absent
an
outright congressional declamation, it is
th[is] court's task to decipher whether Congress has enacted
legislation pursuant to its section 5 powers. . . . Such an
inquiry
necessarily focuses upon whether or not the objectives
of the legislation are within the scope of Congress' power
under section 5 of the Fourteenth Amendment." Ramirez, 715
F.2d at 698. In undertaking this inquiry, we are mindful of
the Supreme Court's cautionary admonition that "we should not
quickly attribute to Congress an unstated intent to act under
its
authority to enforce the Fourteenth Amendment." Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16 (1981). This
word of warning suggests that "a court should carefully
consider the propriety and effect of concluding that Congress
has acted pursuant to S 5." Timmer, 104 F.3d at 840.
In
this
case,
the
litigants do not dispute that there
is no congressional statement in the FLSA or the statute's
legislative
history
of
any recourse to section five, Fourteenth
Amendment powers. Indeed, the State of Maine essentially
contends that because Congress invoked its Commerce Clause
powers
in
passing
the
FLSA and the amendments pertinent to this
dispute,
the
statute cannot be justified under section five of
the
Fourteenth Amendment or any constitutional provision other
than the Commerce Clause. Even considering Pennhurst's
'proceed
with caution' rule, the problem with this argument is
-10-
10
that it is contrary to binding Supreme Court precedent and
prior decisions of this circuit and is not logical. As other
federal
courts
have
expla
to
the
FLSA,
one cannot read Congress' statement regarding the
Act's validity under the Commerce Clause to "indicat[e] that
Congress intended to exclude other applicable constitutional
bases for the Act." Brown v. County of Santa Barbara, 427 F.
Supp. 112, 114 (C.D. Cal. 1977) (citing Usery v. Allegheny
County Hosp., 544 F.2d 148, 155 (3d Cir. 1976)).
Because Congress' recital of its Commerce Clause
powers
did
not
evince
an
intent to exclude other constitutional
bases for its action, we thus must "carefully consider," see
Timmer, 104 F.3d at 840, whether the FLSA amendments at issue
in this case "are within the scope of Congress' power under
section 5 of the Fourteenth Amendment." Ramirez, 715 F.2d at
698.1
l
interpretatio
n advanced in a recent dissent to a Sixth Circuit
1.
ined in looking at the 1974 amendments
We thus reject a contrary view of constitutiona
decision concerning an amendment to the FLSA, the Equal Pay
Act.
See
Tim
mer, 104 F.3d at 845-47 (Boggs, J., concurring in
part and dissenting in part). The dissent's author explained
that
he
could
not
agree
that Congress' "exclusive invocation of
only one source of power was not only unnecessary, but
completely
irrelevant." Id. at 846. "If that were the case,"
he contended, "then any such statement . . . would always be
mere surplusage and a court would always be free to rummage
through the Constitution to find some clause that the court
thinks might support the exercise of power." Id. While the
reasoning in the Timmer dissent has some surface appeal, we
choose
not
to
embrace
it
in light of the contrary Supreme Court
and First Circuit precedent that we consider above. See
Wyoming, 460 U.S. at 243-44 n.18; Woods, 333 U.S. at 144;
Ramirez, 715 F.2d at 698.
-11-
11
2. The FLSA Amendments and Equal Protection
Section five of the Fourteenth Amendment, which
provides that "[t]he Congress shall have power to enforce, by
appropriate legislation, the provisions of [this Amendment],"
is a congressional enforcement clause that is by no means
unique. Virtually identical language is also found in the
Thirteenth, Fifteenth, Eighteenth, Nineteenth, Twenty-third,
Twenty-fourth, and Twenty-sixth Amendments. When determining
whether congressional enactments are "appropriate" and valid
exercises
of
enforcement
clause powers such as the one at issue
here,
Supreme
Court
precedent indicates that we look to whether
the
act
is
a
"rational means" to an end that is "comprehended"
by
the
underlying constitutional amendment. South Carolina v.
Katzenbach, 383 U.S. 301, 324, 326 (1966) (upholding Voting
Rights
Act
of 1965 under the Fifteenth Amendment's enforcement
clause); see also James Everard's Breweries v. Day, 265 U.S.
545,
558-59,
563
(1924)
(upholding Supplemental Prohibition Act
of 1921 under the Eighteenth Amendment's enforcement clause).
The classic touchstone for determining whether a
congressional enactment is rationally related to a proper end
comprehended by a constitutional provision is Chief Justice
Marshall's formulation in McCulloch v. Maryland:
We admit, as all must admit, that the powers
of the government are limited, and that its
limits are not to be transcended. But . . . .
[l]et the end be legitimate, let it be within
the scope of the constitution, and all means
which are appropriate, which are plainly
-12-
12
adapted
to
that end, which are not prohibited,
but consist with the letter and spirit of the
constitution, are constitutional.
17 U.S. (4 Wheat.) 316, 421 (1819).
The Supreme Court has specifically turned to Chief
Justice
Marshall's
exposition in discussing the reach and limits of
congressional
power
under section five of the Fourteenth Amendment,
and has concluded that congressional power under this enforcement
provision "ha[s] th[e] same broad scope" as that sketched in
McCulloch. Katzenbach v. Morgan, 384 U.S. 641, 650 (1966). The
operative Fourteenth Amendment test is indeed little more than a
paraphrasing of Chief Justice Marshall's formulation. See id. at
650-51; Ex parte Virginia, 100 U.S. 339, 345-46 (1879)
(interpreting scope of congressional power under the enforcement
clauses
of
the Reconstruction Amendments). In Morgan, the Supreme
Court articulated a three-pronged test for determining whether
congressional legislation is enacted to enforce the Fourteenth
Amendment's Equal Protection Clause. Specifically, the Court
determined that a congressional enactment is "appropriate
legislation" under section five for Equal Protection purposes in
the following circumstances: (1) if it "may be regarded as an
enactment to enforce the Equal Protection Clause," (2) if it "is
'plainly
adapted
to
that
end,'" and (3) if it "is not prohibited by
but is consistent with 'the letter and spirit of the
-13-
13
constitution.'" , 1
U.S. at 421).2
The Sixth Circuit has concluded that the three
Morgan, 384 U.S. at 651 (quoting McCulloch 7
Morgan
factors effectively reworked the longstanding constitutional test
we
have
outlined above by requiring something more than a rational
relationship between a congressional enactment and the ends
comprehended by the Fourteenth Amendment. See Wilson-Jones, 99
F.3d at 209 ("It is clear to us that these three . . . factors
cannot be kept so permissive as to make them collapse into the
'rationally related' test generally used for the enforcement
clauses of other constitutional amendments."). What was clear to
the Sixth Circuit panel is not so easy to discern because our
review
of
Supreme
Court
precedent, as indicated above, convinces us
that Morgan does not treat section five differently than other
enforcement clauses and does not depart from the traditional
formulation of such clauses' broad scope. Were the Sixth Circuit
panel correct, we would have to conclude that Morgan essentially
overruled Ex parte Virginia and its progeny sub silentio.
2. This case does not directly implicate the Supreme Court's
recent decision in City of Boerne v. Flores, -- S. Ct. --,
1997 WL 345322 (U.S. June 25, 1997) (No. 95-2074). In
Boerne, the Court held that Congress' section five power to
enforce the Fourteenth Amendment does not encompass a
substantive, nonremedial power to alter or redefine what
constitutes a violation of the Constitution. The situation
that the Court confronted in Boerne does not pertain here,
where what is at issue is congressional power to enact a
remedial scheme for the violation of federal statutory law
that includes a grant of federal jurisdiction over cases
involving private plaintiffs and states not consenting to
suit.
-14-
14
We do not read Morgan to accomplish what the Sixth
Circuit suggests. See Ramirez 715 F.2d at 698 ("The sweep of [Ex
parte Virginia's] mandate was reaffirmed in Katzenbach v.
Morgan."). Pointing to Ex parte Virginia, the Morgan Court
explained that "congressional power under S 5 ha[s] th[e] same
broad scope" as McCulloch determined Congress has under the
Commerce Clause, as South Carolina v. Katzenbach determined
Congress
has
under section two of the Fifteenth Amendment, see 383
U.S.
at
326,
and
as
James
Everard's Breweries, see 265 U.S. at 558-
59, determined Congress had under the enforcement clause of the
now-repealed Eighteenth Amendment. See Morgan 384 U.S. at 650-51
(discussing cases). On our reading of the case, we cannot agree
with the Sixth Circuit that a rearticulated and heightened
Fourteenth
Amendment standard now applies by virtue of Morgan. We
thus see no reason to doubt the correctness of our decision in
Ramirez
regarding
Morgan
and the rational basis standard enunciated
therein,
which
we
reaffirm as controlling in this circuit. See 715
F.2d at 698.
The
scope
of
the
rational basis test, however, requires
some clarification. The Sixth Circuit defends its rearticulated
Fourteenth Amendment standard by highlighting the unacceptable
consequences
that
it
believes would be attendant upon retaining the
rational
basis standard. See Wilson-Jones, 99 F.3d at 209 ("If we
were to say that an act is valid if it is rationally related to
achieving
equal protection of the laws, then S 5 becomes a license
-15-
15
to Congress to pass any sort of legislation whatsoever."). We do
not
agree
that
the
rational basis test regarding enforcement of the
Fourteenth Amendment's equal protection guaranty gives Congress a
license
to
pass
any
sort
of legislation whatsoever. The Fourteenth
Amendment does not render "every discrimination between groups of
people a constitutional denial of equal protection." Oregon v.
Mitchell, 400 U.S. 112, 127 (1970) (opinion of Black, J.).
Similarly, every congressional action that enlargens the scope of
a law to encompass a new class of people -- thereby eliminating a
previous 'discrimination' that the law had made -- is not, ipso
facto, a means towards enforcing section five of the Fourteenth
Amendment, because that provision does not "permit Congress to
prohibit
every discrimination between groups of people." Id. Put
in a different fashion, "'[t]he Fourteenth Amendment does not
profess to secure to all persons in the United States the benefit
of the same laws and the same remedies.'" Holden v. Hardy, 169
U.S. 366, 388 (1898) (quoting Missouri v. Lewis, 101 U.S. 22, 31
(1879)).
When the Supreme Court first examined the Fourteenth
Amendment's
equal
protection guaranty in the Slaughter-House Cases,
it
"suggested that the racial concern exhausted the meaning of the
clause." Gerald Gunther, Constitutional Law 601 (12th ed. 1991);
see 83 U.S. (16 Wall.) 36, 71-72 (1873) (5-4 decision) ("[N]o one
can fail to be impressed with the one pervading purpose found in
[the Reconstruction Amendments], lying at the foundation of each,
-16-
16
and without which none of them would have been even suggested; we
mean the freedom of the slave race, the security and firm
establishment
of
that
freedom, and the protection of the newly-made
freeman
and
citizen from the oppressions of those who had formerly
exercised
unlimited
dominion over him. . . . [I]n any fair and just
construction of any section or phrase of these amendments, it is
necessary to look to the purpose which . . . was the pervading
spirit of them all, [and] the evil which they were designed to
remedy.").
The Court has since moved away from this narrow
conception of the Fourteenth Amendment. The Supreme Court has
struck down state statutes under the Equal Protection Clause that
did
not
classify
or
'discriminate' on the basis of race, but rather
on some other impermissible basis, such as sex, alienage,
illegitimacy, indigency, criminal conviction, or unreasonable
arbitrariness.
See
,
e.g.
, Mitchell, 400 U.S. at 150-52 (opinion of
Douglas,
J.)
(collecting cases); New York Transit Auth. v. Beazer,
440
U.S.
568, 592 n.39 (1979) ("'[L]egislative classifications are
valid unless they bear no rational relationship to the State's
objectives.'"
) (quoting Massachusetts Bd. of Retirement v. Murgia,
427 U.S. 307, 314 (1976) (per curiam)); Smith v. Cahoon, 283 U.S.
553, 566-67 (1931) (unanimous decision) ("[T]he constitutional
guaranty of equal protection of the laws is interposed against
discriminatio
ns that are entirely arbitrary.") Gulf, Colo. & Santa
Fe Ry. Co. v. Ellis, 165 U.S. 150, 165-66 (1897) (explaining that
-17-
17
"the mere fact of classification" in legislation does not violate
the equal protection guaranty, but "a mere arbitrary selection"
does);
Atchison,
Topeka
& Santa Fe Ry. Co. v. Vosburg, 238 U.S. 56,
62 (1915) (same).
The scope and thrust of such decisions indicate that
Equal Protection jurisprudence is not narrowly confined to
traditional
suspect or quasi-suspect classifications. Whereas, as
is
well-known, classifications aimed at "suspect" classes or those
aimed at "fundamental" interests must pass strict scrutiny, see,
e.g.
,
Loving
v.
Virginia
,
388 U.S. 1, 11-12 (1967), or, in the case
of sex discrimination, intermediate review, see, e.g., Craig v.
Boren, 429 U.S. 190, 197-99 (1976), more mundane government
classifications that do not target such groups or interests are
subject only to more deferential rational basis review.
Accordingly, government legislation or action "[i]n the area of
economics
and social welfare does not violate the Equal Protection
Clause merely because the classifications [it makes] are
imperfect," Dandridge v. Williams, 397 U.S. 471, 485 (1970),
because
"[i]t is no requirement of equal protection that all evils
of the same genus be eradicated or none at all." Railway Express
Agency, Inc. v. New York, 336 U.S. 106, 110 (1949). Instead, in
this
subset
of
concerns,
the Equal Protection Clause requires "that
cities, states and the Federal Government must exercise their
powers so as not to discriminate between their inhabitants except
upon some reasonable differentiation fairly related to the object
-18-
18
of regulation." Id. at 112 (Jackson, J., concurring). Viewed
against this backdrop, "[e]qual protection of the laws means that
'no
person
or class of persons shall be denied the same protection
of the laws which is enjoyed by other persons or other classes in
the same place and under like circumstances.'" Walsh v.
Massachusetts, 618 F.2d 156, 158 (1st Cir. 1980) (emphasis added)
(quoting Lewis, 101 U.S. at 31).
Supreme Court precedent, however, does not narrowly
limit
congressional
power to enforce the Equal Protection Clause to
what the Clause itself prohibits. The Court has explained that
legislation enacted pursuant to section five "would be upheld so
long
as
the
Court
could
find that the enactment 'is plainly adapted
to
[the]
end' of enforcing the Equal Protection Clause and 'is not
prohibited by but is consistent with the letter and spirit of the
constitution,' regardless of whether the practices outlawed by
Congress
in
themselves
violated the Equal Protection Clause." City
of
Rome
v.
United
States
,
446 U.S. 156, 176 (1980) (quoting Morgan,
384 U.S. at 651). Accordingly, we have previously explained that
it is "irrelevant whether the activities which Congress seeks to
forbid
by
legislation are themselves unconstitutional either under
the Equal Protection Clause or under other provisions of the
Fourteenth Amendment, for Congress' reach under the Civil War
Amendments has been enlarged in order to make these accretions
fully effective." Ramirez, 715 F.2d at 698 (citing City of Rome,
446 U.S. at 179; Morgan, 384 U.S. at 648-49).
-19-
19
In
the
instant case, it would be difficult to conclude
that the probation officers constitute "a class of persons
characterized by some unpopular trait or affiliation . . . [that
would]
reflect
any
special likelihood of bias [against them] on the
part of the ruling majority." Beazer, 440 U.S. at 593. In other
words, the state employees are neither a "suspect class" nor do
they allege a state infringement of a "fundamental interest," as
those terms have been defined in Fourteenth Amendment
jurisprudence. Insofar as any congressional enforcement of the
Equal
Protection Clause concerns the plaintiff probation officers,
therefore,
it would be as against unreasonable and arbitrary state
action. To be a legitimate expression of Congress' section five
power to enforce the Fourteenth Amendment, therefore, the 1974
amendments at issue in this case, which extended the FLSA's wage
and hour provisions to states and state employees, have to be
"rational
means" towards the end "comprehended" in this context by
the
Equal
Protection Clause, South Carolina, 383 U.S. at 324, 326,
namely, the guaranty against "irrational," and therefore
"unjustified," government action. Ramirez, 715 F.2d at 699.
The relevant Supreme Court precedents we have
considered above indicate that Congress, when acting pursuant to
section five of the Fourteenth Amendment, can prohibit or take
measures designed to remedy unreasonable and arbitrary
classifications made by states, or the effects of such
classifications, and when doing so can, consistent with Seminole
-20-
20
Tribe, abrogate the states' sovereign immunity to suit in federal
court. Conversely, these precedents indicate that Congress'
section five enforcement power, as it pertains to the Equal
Protection Clause in cases not involving suspect or quasi-suspect
classes
or
fundamental interests, is limited to the elimination of
arbitrariness or the effects of arbitrary government action, and
does
not
permit
Congress
to prohibit or otherwise target reasonable
state decisions or practices. We believe that this limitation on
Congress'
power
to
enforce the Equal Protection Clause follows from
the end that the Clause comprehends in this specific context and
the corollary fact that the Fourteenth Amendment does not render
"every discrimination between groups of people a constitutional
denial
of
equal
protection." Mitchell, 400 U.S. at 127 (opinion of
Black,
J.).
To reiterate, the cases discussed above indicate that
every congressional action that enlargens the scope of a law to
encompass a new class of people -- thereby eliminating a previous
'discrimination' that the law had made -- is not, ipso facto, a
means of enforcing the Fourteenth Amendment because section five
does
not
"permit Congress to prohibit every discrimination between
groups of people." Id.
We evaluate the FLSA amendments at issue against this
framework to determine whether, in addition to being enactments
made pursuant to Congress' Commerce Clause powers, they can be
viewed appropriately as legislation that enforces the Equal
Protection
Clause.
In
our estimation, one would be hard-pressed to
-21-
21
conclude that the FLSA amendments at issue here are rationally
related
to
eliminating any arbitrary or unreasonable state action.
Differences in the manner, method, and amount of payment that
private sector and state employees receive, to the extent they
exist, usually flow from a myriad of factors, including state
budgetary concerns and the levels of public expenditure and
taxation deemed proper by normal political processes. However,
nothing in the record indicates that anything arbitrary or
irrational
explains or characterizes the states' practices in this
area
to
the
extent
they
may be prejudicial to state employees. Nor
do we think, as the plaintiff probation officers would have us
believe, that state employees and private sector employees are so
similarly situated that differences in how and when they accrue
premium pay for overtime violates the Equal Protection Clause's
requirement that "'no person or class of persons shall be denied
the same protection of the laws which is enjoyed by other persons
or
other
classes in the same place and under like circumstances.'"
Walsh
,
618
F.2d
at
158
(emphasis added) (quoting Lewis, 101 U.S. at
31);
see
,
e.g
., Employees, 411 U.S. at 286 (noting the significant
difference
between private employers and states as employers owing
to
federalism
concerns).
Accordingly, we conclude that we will not
"attribute to Congress an unstated intent to act under its
authority
to
enforce
the
Fourteenth Amendment," Pennhurst, 451 U.S.
at 16, because on the record before us there is no evidence that
the
1974
FLSA amendments are rationally related to the elimination
-22-
22
of any unreasonable and arbitrary state action, or the effects of
such action, which Congress is empowered to remedy pursuant to
section
five
of the Fourteenth Amendment. Thus, we do not believe
that Congress can, consistent with Seminole Tribe and Fitzpatrick
v. Bitzer, abrogate the states' sovereign immunity to suit in
federal court in this context.
In arriving at this conclusion, our analysis does not
suggest any reason or need for us to revisit our earlier
pronouncements
regarding
the FLSA wage and hour provisions at issue
here. Specifically, we have previously determined that Congress'
"authority" to impose on the states the FLSA's wage and hour
requirements was "squarely bottomed on the commerce clause." New
Hampshire Dep't of Employment Sec. v. Marshall, 616 F.2d 240, 247
(1st Cir. 1980). In so doing, we indicated that the FLSA
provisions at issue here differed from other congressional
legislation, like the Equal Pay Act, which, we explained, was
applied "to the states as a legitimate exercise of congressional
authority
to
adopt
legislation enforcing the fourteenth amendment's
guaranty of equal protection of the law." Id. (citing Usery v.
Charlestown City Sch. Dist., 558 F.2d 1169 (4th Cir. 1977); Usery
v. All egheny County Institution Dist., 544 F.2d 148 (3d Cir.
1976)). Today we state the corollary that we did not explicitly
state
in
so
many words in Marshall: whatever constitutional basis
they may have in the Commerce Clause, the 1974 amendments to the
FLSA in dispute again here did not apply the Act's wage and hour
-23-
23
provisions to the states and state employees as a legitimate
exercise of congressional authority to adopt legislation under
section five of the Fourteenth Amendment.
This conclusion, of course, is fatal to the plaintiff
probation officers' argument on appeal because in Seminole Tribe,
see 116 S. Ct. at 1131-32, the Supreme Court held that Congress
cannot exercise its Commerce Clause power, or any of its other
Article
I
powers,
to
abrogate a state's Eleventh Amendment immunity
from
suit
in
federal
court, thereby overruling the contrary rule of
Union Gas. See 491 U.S. at 15 (plurality opinion).
The force of the above line of reasoning helps to
explain why every post-Seminole Tribe federal district court
decision of which we are aware has dismissed private FLSA actions
for
lack
of
subject
matter jurisdiction, even if the reasons stated
were summary or did not always squarely address the section five,
Fourteenth Amendment argument that we reject here today. See,
e.g.
,
Raper
v.
Iowa
,
940
F. Supp. 1421 (S.D. Iowa 1996) (dismissing
case and rejecting Fourteenth Amendment theory of the FLSA);
Chauvin
v.
Louisiana
,
937 F. Supp. 567, 570 (E.D. La. 1996) (same);
Powell
v.
Florida
,
No.
95-6233-CIV-ZLOCH (S.D. Fla. August 6, 1996)
(same); Walden v. Florida Dep't of Corrections, TCA 95-40357-WS
(N.D. Fla. June 23, 1996) (same); Moad v. Arkansas State Police
Dep't, No. LR-C-94-450, 1996 WL 819805 (E.D. Ark. May 15, 1996),
aff'd
by
Moad
v. Arkansas State Police Dep't, No. 96-2594, 1997 WL
177392 (8th Cir. April 15, 1997) (declining to consider whether
-24-
24
FLSA
could
have
been
enacted under Fourteenth Amendment where issue
was
not
raised
in
district court and raised on appeal only in reply
brief);
Bergemann
v.
Rhod
e Island, No. CA 95-579ML, 1997 WL 102428,
(D.R.I. Mar. 5, 1997) (dismissing case but not addressing
Fourteenth Amendment theory); Close v. New York, No. 94-CV-0906,
1996 WL 481550 (N.D.N.Y. August 19, 1996) (same); Arndt v.
Wisconsin
Dep't
of
Corrections, No. 95-C-937-C (W.D. Wisc. June 20,
1996) (same); Stuhr v. Oregon, No. 95-6118-TC (D. Ore. June 17,
1996) (same); Ross v. Middle Tenn. St. Univ., No. 3-95-1203 (M.D.
Tenn. [n.d.] 1996) (same).
In sum, we see no reason to doubt the correctness of
these results, the Sixth Circuit's result in Wilson-Jones, see 99
F.3d at 211, or the conclusions of commentators who view with
skepticism post-Seminole attempts to rescue private FLSA actions
against states by recourse to arguments about section five of the
Fourteenth Amendment. See, e.g., Daniel J. Meltzer, The Seminole
Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 49 &
n.230
(noting
that
the
merits of the section five "strategy," while
varying with different statutes, "would be hard to execute as to
the
Fair
Labor Standards Act," in part because it is doubtful that
"the Supreme Court would accept an argument that would so sharply
limit the effective scope of Seminole").
The Retroactivity of Seminole Tribe
Having
concluded that Seminole Tribe controls, we next
consider whether we should apply it retroactively to this case,
-25-
25
which was properly pending in federal court before the Supreme
Court overruled Union Gas. The plaintiff probation officers ask
that in the event we do not agree with their section five, equal
protection
argument, we refrain from dismissing their federal suit
by applying the equitable standards articulated in Northern
Pipeline
Constr.
Co.
v.
M
arathon Pipe Line Co., 458 U.S. 50 (1982),
and Che vron Oil v. Huson, 404 U.S. 97 (1971). Those cases
articulated a three-pronged analysis that seeks to minimize the
"visit[ation of] substantial injustice and hardship upon those
litigants who relied" upon a congressional statute's grant of
jurisdiction. Marathon Pipe Line, 458 U.S. at 88 (plurality
opinion) (Brennan, J.) (construing Huson).
There are several difficulties with the probation
officers' argument. First, the Supreme Court in recent years has
largely rejected the pertinent propositions in both Marathon Pipe
Line and Huson. See Reynoldsville Casket Co. v. Hyde, 514 U.S.
749,
752
(1995) (describing Huson as having been overruled in part
as stated by Harper v. Virginia Dep't of Tax'n, 509 U.S. 86
(1993)). Second, subject matter jurisdiction and Eleventh
Amendment
immunity can be raised at any time, and when raised, the
issue
is
not
whether
the
court had jurisdiction at some time in the
past,
but
whether
the
court today still has jurisdiction. Thus, in
a decision that postdates the two largely discredited cases on
which the state employees in this dispute so heavily rely, the
Supreme Court has emphasized that "'a court lacks discretion to
-26-
26
consider the merits of a case over which it is without
jurisdiction,
and thus, by definition, a jurisdictional ruling may
never be made prospective only.'" Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 203 (1988) (unanimous decision) (quoting
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80
(1981)).
Finally, the probation officers' request contravenes our
own recent pronouncement on this issue. See Stella v. Kelley, 63
F.3d
71,
74
(1st
Cir.
1995) ("When dealing with matters that govern
a
court's
jurisdiction, there is no conceivable bar to retroactive
application of a 'new,' judicially declared rule.").
The Denial of Plaintiffs' Discovery Request
We
next
consider the probation officers' argument that
the district court improperly denied their request to conduct
discovery on whether Maine waived its Eleventh Amendment immunity
by voluntarily participating in a federal program that expressly
conditions state participation upon a state's consent to suit in
federal court. We review a district court's decision to deny
discovery on a dispositive motion for abuse of discretion. See
Fennell v. First Step Designs, Ltd., 83 F.3d 526, 530 (1st Cir.
1996) (interpreting Fed. R. Civ. P. 56(f)).
The
probation
officers
argue that a state is subject to
suit in federal court where it has waived its Eleventh Amendment
sovereign
immunity,
either expressly or implicitly by participating
in a federal program conditioned on a state's consent to suit in
federal court. See Atascadero State Hosp. v. Scanlon, 473 U.S.
-27-
27
234,
241
(1985). The probation officers also argue that litigants
are generally afforded the right to undertake discovery when they
are faced with a jurisdictional bar. See Gould, Inc. v. Pechiney
Uguine Kuhlmann, 853 F.2d 445, 451 (6th Cir. 1988); Majd-Pour v.
Georgiana
Community Hosp. Inc., 724 F.2d 901, 903 (11th Cir. 1984)
("Although the plaintiff bears the burden of proving the court's
jurisdiction, the plaintiff should be given the opportunity to
discover facts that would support his allegations of
jurisdiction.").
Maine law authorizes the Maine Department of
Corrections to receive federal funds "to carry out federal law."
See
Me.
Rev.
Stat.
Ann.
tit. 34-A, SS 1403(4), 1209(2)(B) & (4)(F).
The probation officers contend that these statutes, even standing
alone, support a finding that Maine has voluntarily subjected
itself to federal court jurisdiction in lawsuits brought pursuant
to
the
FLSA.
At
the
very least, they contend, they should have the
opportunity to undertake discovery on Maine's participation in
federal programs because the State controls the information about
the federal programs in which it actually participates.
In evaluating the merits of the probation officers'
argument on this point, we begin by noting that "[t]he test for
determining whether a State has waived its immunity from federal-
court jurisdiction is a stringent one." Atascadero, 473 U.S. at
241.
We
have had previous occasion to explain that "a waiver must
be unambiguously manifested, and because of that requirement a
-28-
28
state's
mere
participation in a federal program . . . has been held
insufficient to demonstrate a state's waiver of its immunity."
WJM, Inc. v. Massachusetts Dep't of Pub. Welfare, 840 F.2d 996,
1002 (1st Cir. 1988) (citing Atascadero, 473 U.S. at 244-46).3
Courts that have considered the waiver theory have
confronted plaintiffs who at least had identified some federal
program or statute that supposedly required a waiver of state
immunity as a condition for state participation or receipt of
federal money. Cf. Manypenny v. United States, 948 F.2d 1057,
1066-67 (8th Cir. 1991) (plaintiffs identify White Earth Land
Settlement
Act); Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84,
88 (2d Cir. 1991) (plaintiff identifies Boren Amendment to the
Medicaid Act). But cf. Baxter v. Vigo County Sch. Corp., 26 F.3d
728, 731-32 (7th Cir. 1994) (plaintiffs fail to name federal
program
or
statute).
The plaintiffs in this case want to undertake
discovery to identify the federal programs in which Maine
participates. In other words, Maine argues, the plaintiffs "not
only want to conduct a fishing expedition, they want to conduct
discovery in order to locate the lake in which to conduct the
fishing expedition." We believe that this assessment, whatever
else it may be, sufficiently describes the situation confronting
3. While our subsequent decision in Reopell v.
Massachusetts, 936 F.2d 12, 15 (1st Cir. 1991) reversed one
of WJM's holdings regarding prejudgment interest in light of
the Supreme Court's intervening decision in Missouri v.
Jenkins, 491 U.S. 274 (1989), we note that the proposition
for which we cite WJM remains intact.
-29-
29
us, and on these facts we cannot conclude, particularly given the
stringent waiver standard articulated in Atascadero and WJM, that
the district court abused its discretion in deciding to deny
discovery
on
the plaintiffs' motion. See Fennell, 83 F.3d at 530.
The State Transfer Issue
We next consider the appellants' argument that,
assuming
Seminole
Tribe
precludes federal jurisdiction in this FLSA
action, the district court improperly dismissed the case rather
than transfer it to state court. Whether a district court had
authority to transfer a case to a state court is a legal question
we
review
de
novo. See Industrial Gen. Corp. v. Sequoia Pac. Sys.
Corp.
,
44
F.3d 40, 43 (1st Cir. 1995). Whether the district court
should have exercised its authority to transfer a case to another
court
is
a
question
we
review for abuse of discretion. See Service
Employees Int'l Union v. Local 1199 N.E., 70 F.3d 647, 655 (1st
Cir. 1995).
The probation officers' argument is flawed in several
respects.
First,
the
Federal Rules of Civil Procedure mandate that
a federal court that determines it lacks subject matter
jurisdiction has only one course of action left open to it:
"Whenever
it
appears
by
suggestion of the parties or otherwise that
the
court
lacks
jurisdiction of the subject matter, the court shall
dismiss the action." Fed. R. Civ. P. 12(h)(3) (emphasis added).
Second, the probation officers' request runs afoul of
earlier
pronouncements
from this and other circuits. See Dantes v.
-30-
30
Western Found. Corp., 614 F.2d 299, 301 (1st Cir. 1980) ("'Where,
as here, the court lacks jurisdiction over the subject matter . .
. [a defect] which precludes it from acting at all, a fortiori, a
court lacks power to transfer.'") (quoting Atlantic Ship Rigging
Co. v. McLellan, 288 F.2d 589, 591 (3rd Cir. 1961) and citing
Panhandle E. Pipeline Co. v. FPC, 343 F.2d 905, 908 (8th Cir.
1965)); Klett v. Pim, 965 F.2d 587, 591 n.7 (8th Cir. 1992) ("[A]
court
without
subject
matter jurisdiction cannot transfer a case to
another court.").
Third, the probation officers overlook 28 U.S.C. S
1631, which limits a federal court's power to transfer a case "to
any other such court" defined in 28 U.S.C. S 610, which, in turn,
includes
only
other
federal courts. See Moravian Sch. Advisory Bd.
v. Rawlins, 70 F.3d 270, 274 (3d Cir. 1995) (citing McLaughlin v.
ARCO Polymers, Inc., 721 F.2d 426, 469 (3rd Cir. 1983)).
Finally,
we
are unpersuaded by the probation officers'
reliance on a Third Circuit decision, Weaver v. Marine Bank, 683
F.2d
744
(3rd Cir. 1982). In Weaver, the Third Circuit confronted
an arguably similar situation in which plaintiffs had originally
filed their claim in federal court believing that the court had
subject matter jurisdiction under federal securities law. The
Supreme Court subsequently ruled that the plaintiffs had no such
claim. See Weaver v. Marine Bank, 455 U.S. 551, 559 (1982). On
remand, there was no other federal question upon which to base
jurisdiction, diversity was lacking, and the Third Circuit faced
-31-
31
the
possibility
that
the
plaintiffs' cause of action in state court
would be time-barred. See 683 F.2d at 745-46. In this set of
circumstances
, the Third Circuit took the step of transferring the
matter
to
state court pursuant to a Pennsylvania enabling statute.
See id. at 748.
Maine does not have a statute identical to the
Pennsylvania law upon which the Third Circuit relied, but the
probation officers indicate that Maine has a savings statute that
permits cases to be transferred to the proper court when the
original action fails "for any matter of form." Me. Rev. Stat.
Ann.
tit.
14,
S
855.
The probation officers argue that the savings
statute should be read to permit transfer of an action from a
federal district court to a state court.
We
believe
this
argument underestimates the importance
that the Third Circuit attached to the unique nature of the
Pennsylvania
statute
on
which it relied in transferring the case to
state
court.
The
Third
Circuit explained that this statute, on its
face,
expressed "Pennsylvania's willingness to accept jurisdiction
over cases improvidently brought in the federal courts," and
specifically
"provide[d
both] that a federal court within the state
may
transfer
erroneously
filed cases to the state courts," and that
matters transferred under the statute's provisions "'shall be
treated
.
.
. as if originally filed in the transferee court . . .
on the date first filed in a [federal] court.'" 683 F.2d at 748,
745, 746 (quoting 42 Pa. Cons. Stat. S 5103(a)).
-32-
32
In transferring the case, the Third Circuit explained
that
it
had
the
authority to do so as a result of this specifically
worded
Pennsylvania
statute and its "underlying" power as a federal
court
"to
elect to use such a state mechanism, if available." Id.
at
747.
In
this regard, the Third Circuit analogized the transfer
to a situation in which a federal court certifies a question of
doubtful
state
law
to
a
state supreme court authorized by state law
to accept it, and noted that the Supreme Court had approved
certification, despite a lack of federal statutory authorization
for the practice, because it "'helps build a cooperative judicial
federalism.'" Id. (quoting Lehman Bros. v. Schein, 416 U.S. 386,
391 (1974)).
The Pennsylvania enabling statute that rests at the
heart of Weaver bears no resemblance to the Maine general savings
statute in this case from which the appellants seek succor. See
Me. Rev. Stat. Ann. tit. 14, S 855. The Maine statute makes no
mention
of
transfer and only permits a re-filing in state court of
a case that has been "defeated for any matter of form." Id.
Neither the parties' nor our own research has uncovered any Maine
caselaw
that
addresses
whether this description would encompass the
case at bar as a matter of state law. We note, however, that on
our reading of the statute we glean no manifestation of a
willingness
on the part of the State of Maine analogous to that of
the
Commonwealth of Pennsylvania to accept jurisdiction over cases
improvidently
filed
in
federal court with relation back to the time
-33-
33
of
the
filing of the case in federal court. The importance of the
Pennsylvania
statute and its specialized provisions to the outcome
in Weaver is evident when one considers that the Third Circuit
subsequently has explicitly stated that "[a]bsent statutory
authority, the traditional general rule that a court may not
transfer a matter over which it lacks jurisdiction governs."
Shendock v. Director, Office of Workers' Comp. Programs, 893 F.2d
1458, 1467 (3rd Cir. 1990) (en banc).
While
we
express
no
view
on the question of whether the
Third Circuit's analysis in Weaver warrants our agreement,4 we
believe that there can be no question that, in the absence of any
specialized state statute, "it is the duty of the trial court, if
it finds that jurisdiction does not exist, to proceed no further
but to dismiss the suit." Joy v. Hague, 175 F.2d 395, 396 (1st
Cir. 1949) (emphasis added) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 182 (1936)).
4. We note, however, that we have previously rejected as
"unpersuasive" decisions from other circuits that "stand for
the proposition that a court bereft of jurisdiction has an
'inherent power' to transfer" a case. Dantes, 614 F.3d at
301 n.2 (criticizing Pearce v. Director, Office of Workers'
Comp. Programs, 603 F.2d 763, 771 (9th Cir. 1979) and Dayton
Power & Light Co. v. EPA, 520 F.2d 703, 708 (6th Cir. 1975));
see also Natural Resources Defense Council, Inc. v. EPA, 465
F.2d 492, 495-96 (1st Cir. 1972) (per curiam) (granting
motion to transfer case to the District of Columbia Circuit
on basis of express statutory authority, but declining to
reach issue of whether federal court has an inherent power to
transfer case to a transferee court having jurisdiction and
venue).
-34-
34
The Motion to Amend The Complaint and Ex parte Young
On the eve of oral argument before this court, the
plaintiffs-appellants filed an unusual motion to amend their
complaint to add the Maine Commissioner of Corrections as a new
party
defendant. This motion constitutes an eleventh hour attempt
by plaintiffs to bring their case under the aegis of the doctrine
of Ex parte Young, 209 U.S. 123 (1908), and thereby overcome the
Eleventh
Amendment bar to their FLSA action. For the reasons that
follow, we deny the motion.
Although not the routine, appellate courts have
authority
to
allow amendments to complaints because "'[t]here is .
. . in the nature of . . . appellate jurisdiction, nothing which
forbids the granting of amendments.'" Newman-Green, Inc. v.
Alfonzo-Larra
in, 490 U.S. 826, 834 (1989) (quoting Anonymous, 1 F.
Cas. 996, 997 (C.C. Mass. 1812) (No. 444) (Story, Circuit
Justice)). This feature of appellate court power "long predates
the enactment of the Federal Rules," and stems from common law
practice,
which
"permitted 'the superior court . . . [to] make such
amendments, as the court below may.'" Newman-Green, 490 U.S. at
834 (quoting Anonymous, 1 F. Cas. at 997) (quoting King v.
Ponsonby, 1 Wils. 303, 95 Eng. Rep. 631 (K.B. 1751)). See 28
U.S.C. S 1653 ("Defective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.").
The
plaintiff probation officers' argument in favor of
their
motion
rests on three arguments. The first is the amendment
-35-
35
authorization contained in 28 U.S.C. S 1653. The second is the
doctrine of Ex parte Young, which allows plaintiffs to avoid the
Eleventh Amendment bar by naming a state officer in his official
capacity in cases where prospective declaratory and injunctive
relief is sought under federal law. The third is the liberal
standard of Rule 15(a) of the Federal Rules of Civil Procedure,
which, in relevant part, provides:
A
party
may
amend the party's pleading once as
a matter of course at any time before a
responsive pleading is served . . . .
Otherwise a party may amend the party's
pleading only by leave of court or by written
consent of the adverse party; and leave shall
be freely given when justice so requires.
Fed. R. Civ. P. 15(a) (emphasis added).
While intriguing at first glance, closer inspection
reveals that the plaintiffs-appellants' argument runs aground at
each
juncture.
In
the
first place, 28 U.S.C. S 1653 does not allow
what the probation officers seek here. Section 1653 allows
amendments to cure "[d]efective allegations of jurisdiction."
(emphasis added). This statutory language "suggests that it
addresses only incorrect statements about jurisdiction that
actually exists, and not defects in the jurisdictional facts
themselves." Newman-Green, 490 U.S. at 831. Specifically, the
Newman-Green Court refused to interpret section 1653 as
"empower[ing]
federal courts to amend a complaint so as to produce
jurisdiction where none actually existed before." Id.
-36-
36
The
Newman-Green
Court's
interpretation of section 1653
thus precludes the amendment that the probation officers desire.
The
unequivocal rule of Newman-Green is that section 1653 does not
authorize
the
addition
or elimination of parties in order to create
jurisdiction where jurisdiction does not exist. See Newman-Green
at 830-31. This rule is fatal to the plaintiffs-appellants'
argument because this is exactly the relief they seek in asking
that their complaint be amended by adding the Commissioner of
Corrections as a new party defendant.
Moreover,
we
reiterate
our view that, where a party has
had an opportunity to seek to amend its pleadings in the district
court,
it
is
not
appropriate for that party belatedly to seek leave
to
amend
on
appeal
pursuant to 28 U.S.C. S 1653. See Joy, 175 F.2d
at 396. Accord Sarnoff v. American Home Prods. Corp., 798 F.2d
1075, 1079 (7th Cir. 1986). The appellants here, like the Joy
appellants, "having refused to amend" before the district court,
"come
to
this
court
asking leave to do what they failed to do below
and attempt to create an error upon the part of the trial court
because
of
matter never before that court." Joy, 175 F.2d at 396.
After
the
Supreme
Court
handed down its decision in Seminole Tribe,
and
certainly after the State of Maine filed its motion to dismiss
for lack of subject matter jurisdiction based upon the ruling of
Seminole Tribe, the probation officers had every reason to
"suspect[] a jurisdictional difficulty" with their case, but took
"no
reasonable
opportunity to cure it before the appeal." Sarnoff,
-37-
37
798
F.2d
at
1079.
Under
these circumstances, we believe it is only
fair and reasonable to conclude that the appellants "had fair
warning in the district court and failed to act on it; enough is
enough." Id.
Furthermore,
the
proposed amendment is a futile attempt
to bring this case under the ambit of Ex parte Young. The only
relief that the plaintiffs have sought in this case, prior to the
filing
of
their
proposed
amendment on appeal, has been unpaid wages
and
liquidated
damages
under the FLSA. Ex parte Young allows a way
around the bar to federal jurisdiction erected by the Supreme
Court's Eleventh Amendment jurisprudence only in cases where
prospective declaratory or injunctive relief is sought under
federal
law.
See Seminole Tribe, 116 S. Ct. at 1132 ("[S]ince our
decision in Ex parte Young, we often have found federal
jurisdiction over a suit against a state official when that suit
seeks only prospective injunctive relief in order to 'end a
continuing
violation
of
federal law.'") (internal citation omitted)
(quoting Mansour, 474 U.S. at 68). The Ex parte Young doctrine
does not apply in cases where plaintiffs seek monetary relief for
past
violations
of
federal law, regardless of whether the party the
plaintiffs seek to designate as a defendant is nominally a state
officer
sued
in his official capacity. See Pennhurst State Sch. &
Hosp.
v.
Hald
erman, 465 U.S. 89, 102-03 (1984); Edelman v. Jordan,
415 U.S. 651, 668 (1974).
-38-
38
These
cases
preclude
the
probation officers' attempt to
rescue their monetary claims against the State of Maine via their
proposed
addition
of
the
Commissioner of Corrections as a new party
defendant.
5
The plaintiffs-appellants nonetheless argue that just
because they "may be deprived of recovering retroactive money
damages in federal court should not also mean that they are
deprived
of
the
benefit
of their efforts to have their rights under
[the] FLSA declared." However, both sides to this dispute agree
that there is no continuing violation of federal law, as the
background
litigation
between them also indicates is the case. See
Blackie v. Maine, 75 F.3d 716 (1st Cir. 1996), aff'g Blackie v.
Maine, 888 F. Supp. 203 (D. Me. 1995).6
No
declaratory
relief
can issue in these circumstances.
See Mansour, 474 U.S. at 71-73. The Mansour Court concluded that
injunctive
and declaratory relief could not issue for a variety of
5. In fact, the appellants concede that if we find that
Seminole Tribe deprives this case of federal jurisdiction,
then "they will not be able to recover money damages in this
action."
6. We are not unmindful of the Supreme Court's recent
decision in Idaho v. Coeur d'Alene Tribe of Idaho, -- S. Ct.
--, 1997 WL 338603 (U.S. June 23, 1997) (No. 94-1474), which
cabins and limits the availability of the Ex parte Young
doctrine even where prospective declaratory and injunctive
relief is sought against state officers in their individual
capacities for allegedly ongoing violations of federal law.
This new development in the Court's jurisprudence is not
implicated here. Unlike Coeur d'Alene, this case does not
involve an ongoing violation of federal law, but instead
concerns a backwards-looking dispute over past FLSA
violations by the State of Maine and possible overtime back
pay owed the plaintiff probation officers as a result.
-39-
39
reasons
that
also exist in this case. First, the Court in Mansour
noted that monetary relief was not available because it was
"prohibited by the Eleventh Amendment." Id. at 73. Second, the
Court
explained
that
"[b]ecause there is no continuing violation of
federal law to enjoin in this case, an injunction is not
available." Id. at 71. Third, the Court conceded that it had
construed the Declaratory Judgment Act of 1934, 28 U.S.C. S 2201,
to mean that "declaratory relief may be available even though an
injunction is not," but explained that it had also "held that a
declaratory judgment is not available in a number of instances."
Id.
at
72.
Specifically, declaratory relief was unavailable where
"the award of declaratory judgment . . . would be useful in
resolving the dispute over the past lawfulness of respondent's
action only if it might be offered in state-court proceedings as
res
judicata
on
the
issue of liability, leaving to the state courts
only
a
form
of
accounting proceeding whereby damages or restitution
could be computed." Id. at 73. The Court concluded that "the
issuance of a declaratory judgment in these circumstances would
have much the same effect as a full-fledged award of damages or
restitution
by the federal court, the latter kinds of relief being
of course prohibited by the Eleventh Amendment." Id.
In
view
of
the marked similarity between the situation
that confronted the Mansour Court and that confronts us in this
case, we cannot help but note Mansour's admonition that "a
declaratory judgment is not available when the result would be a
-40-
40
partial
'end
run'" around the rest of the Supreme Court's Eleventh
Amendment jurisprudence, particularly its limitations on the Ex
parte Young doctrine. Id.
Moreover, Seminole Tribe suggests that the probation
officers could not seek injunctive relief, even if there were a
continuing
violation
in
this case, because the FLSA only authorizes
the Secretary of Labor to seek injunctive relief, limiting
employees
to
suits
for
unpaid wages and liquidated damages. See 29
U.S.C. SS 216, 217; cf. Donovan v. Brown Equip. & Serv. Tools,
Inc., 666 F.2d 148, 155-56 (5th Cir. 1982) (reviewing legislative
history). In the face of this statutory scheme, the appellants'
motion to amend their complaint is particularly suspect. As the
Supreme Court explained in Seminole Tribe, "where Congress has
prescribed a detailed remedial scheme for the enforcement against
a State of a statutorily created right, a court should hesitate
before casting aside those limitations and permitting an action
against
a
state officer based upon Ex parte Young." 116 S. Ct. at
1132.7
In sum, with no right on the part of the plaintiff
probation officers to seek retroactive money damages, with no
continuing violation to justify injunctive relief, and with no
clearly apparent right on the part of the plaintiffs to seek
7. We believe that the Sixth Circuit's view on this matter
may thus be precluded by Seminole Tribe. See Wilson-Jones,
99 F.3d at 211 (arguing that state employees can invoke Ex
parte Young to sue a state officer in federal court for
injunctive relief).
-41-
41
injunctive relief even if a continuing violation were present,
declaratory relief, as in Green v. Mansour, would serve no useful
purpose.
See
474
U.S.
at 73. The only possible use of declaratory
relief in this case now would be for the purpose of asserting res
judicata in state court proceedings. As we saw above, however,
Mansour
precludes this option as an impermissible "end run" around
Eleventh
Amendment
jurisprudence because the result would be little
different than a prohibited direct federal court award of money
damages against the state to the extent it would reduce a state
court
proceeding
into
a
mere accounting session "whereby damages or
restitution could be computed." Id.
The Supreme Court has identified a range of
circumstances, including undue delay and futility of amendment,
that should preclude granting a motion to amend. See Foman v.
Davis
,
371
U.S.
178,
182
(1962) (construing Fed. R. Civ. P. 15(a)).
Suffice to say that the panoply of legal arguments we have
canvassed above indicates that the plaintiff probation officers'
eleventh hour motion to amend to seek declaratory relief fails
under
more
than one prong of the Foman standard. In particular, a
declaratory judgment is unavailable where, as here, the parties
agree that there is no ongoing legal violation.8
8. This case thus differs from one that the Third Circuit
recently confronted when it granted a motion to amend brought
on appeal by state employees seeking to add a new party
defendant (the Commissioner) and a claim for prospective
declaratory relief to their pending FLSA claim for overtime
compensation. See Balgowan v. New Jersey, Dep't of Transp.,
-- F.3d --, 1997 WL 305290 (3rd Cir. 1997) (granting the
-42-
42
Conclusion
In concluding, we stress that our decision today does
not remove state employees from the aegis of the FLSA. In
determining that Seminole Tribe controls this case and that no
federal jurisdiction exists, our decision only relates to that
portion of the FLSA that purports to give federal courts
jurisdiction
over
private FLSA actions brought by employees against
states. See 29 U.S.C. S 216(b).
For the reasons stated above, we conclude that the
district court's decision to dismiss for lack of subject matter
jurisdiction was correct, and we deny the plaintiffs-appellants'
motion to amend their complaint.
Affirmed. Costs to appellee.
motion to amend where there was a dispute as to whether the
state was complying with FLSA wage and hour requirements).
-43-
43
