F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 DEC 28 2004
                                 FOR THE TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 CHENEAH WILLIAMS; MICKIE
 KENDALL,

                 Plaintiffs-Appellants,
                                                               No. 04-6051
 v.                                                      (D.C. No. CV-03-1478-R)
                                                               (W.D. Okla.)
 OKLAHOMA DEPARTMENT OF
 HUMAN SERVICES,

                 Defendant-Appellee.


                                  ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and PORFILIO , Circuit Judges.


          Mickie Kendall   1
                               appeals the district court’s dismissal of her Fair Labor

Standards Act (“FLSA”) claim for overtime compensation. The district court


      After examining the briefs and appellate record, this panel has determined
      *

unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.

     On November 1, 2004, counsel for plaintiffs-appellants filed notice with this
      1

court that plaintiff-appellant Cheneah Williams had stipulated to the dismissal of
her appeal. Thus, only plaintiff-appellant Mickie Kendall remains to proceed on
appeal.
dismissed Kendall’s claim against the Oklahoma Department of Human Services

on Eleventh Amendment immunity grounds.         2
                                                    Kendall argues that the State of

Oklahoma waived its immunity from suit in federal court by: (1) adopting an

administrative rule stating that it was the policy of the Oklahoma Department of

Human Services “to comply fully with the provisions of the Federal Fair Labor

Standards Act (FLSA), as amended,” Okla. Admin. Code § 340:2-1-33(a); (2)

passing a general law permitting compensatory time to be given to “nonexempt

employees under certain conditions as provided for and in compliance with the

Fair Labor Standards Act, 29 U.S.C., Section 201, et seq.,” Okla. Stat. tit. 74,

§ 840-2.15(A); and (3) promulgating additional internal policies and rules that

comport with the Fair Labor Standards Act. We exercise appellate jurisdiction

pursuant to 28 U.S.C. § 1291, and    AFFIRM .




    2
     Kendall also contends the district court erred by not allowing her to amend
her complaint to state a 42 U.S.C. § 1983 claim against individual defendants.
However, she did not file a motion to amend, instead relying on commentary in a
footnote to the objection to the Defendant’s Motion to Dismiss and Supporting
Brief. (Appellant’s App. at 22.)       Our case law is clear that the proper way to
invoke the discretion of the court in requesting leave to amend is to file a motion
to amend under Rule 15(a) prior to dismissal or a motion under Rule 59(e) or
Rule 60(b) after dismissal. See Calderon v. Kansas Dep’t of Soc. and Rehab.
Servs. , 

, 1185-86 (10th Cir. 1999);       Glenn v. First Nat’l Bank , 

, 370-371 (10th Cir. 1989). Kendall asks us to conclude that the district
court abused its discretion notwithstanding her own failure to appropriately
invoke that discretion in the first place. We decline to do so.       See Brannon v.
Boatmen’s First. Nat. Bank , 

, 1150 (10th Cir. 1998).

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      We review a district court’s conclusion of law de novo,         Elder v. Holloway ,

, 516 (1994), and agree that Kendall’s suit is barred from federal

court by the Eleventh Amendment.       See , e.g ., Employees of the Dep’t of Public

Health & Welfare, Mo. v. Dep’t of Pub. Health & Welfare, Mo.           , 

,

282-85 (1973) (establishing that a state may not, under the Eleventh Amendment,

be subject to a private action under the FLSA without its consent). Kendall’s

various arguments that Oklahoma has waived its immunity from suit in federal

court by adopting legislation and administrative rules that comply with the

provisions of the Federal Fair Labor Standards Act (FLSA) are not convincing.

The issue in this case is not whether Oklahoma has agreed to comply with the

FLSA; the issue is whether Oklahoma has agreed that its employees may sue to

enforce their FLSA claims in federal court.         See 

Innes v. Kan. State

Univ. (In re Innes) , 

, 1278 (10th Cir. 1999). Because a state may

specifically determine the forum in which it may be sued to enforce the FLSA,             see

Employees of Dep’t of Public Health.     , 411 U.S. at 282-85, the test for

determining whether a state has waived its Eleventh Amendment immunity to suit

in federal court is stringent. Courts “will find waiver only 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.”         Edelman v. Jordan , 

, 673 (1974) (internal quotation marks and brackets omitted).



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       We conclude that the cited language of the statute and regulatory rules

neither conveys “by the most express language” nor “by such overwhelming

implications from the text” that Oklahoma has waived its immunity to FLSA

claims in federal court.   

rule requiring the Oklahoma

Department of Human Services “to comply fully with the provisions of the

Federal Fair Labor Standards Act,” Okla. Admin. Code § 340:2-1-33(a), compels

the agency to adopt employment policies in accordance with the FLSA, not to

permit the state to be sued in federal court to enforce the federal act. The

legislation permitting state agencies to grant compensatory time “under certain

conditions as provided for and in compliance with the Fair Labor Standards Act,”

Okla. Stat. tit. 74, § 840-2.15(A), allows agencies flexibility in how they

compensate workers. It does not speak to the choice of forum available to

employees for challenging the decisions of those agencies. The fact that other

internal state policies and rules comport with the FLSA demonstrates that state

agencies have interpreted their mandate under state law to comply with the FLSA,

not that the state intended that its agencies be subject to suit in federal court.

There is thus “room for [another] reasonable construction” in each of the




                                           -4-
pronouncements upon which plaintiff relies.     Edelman , 415 U.S. at 673.

      AFFIRMED.


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




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