Nuñez v. Indiana Department of Child Services, 817 F.3d 1042

Plaintiffs Arlene Núñez and Veronica Martinez were long‑time investigators for the Indiana Department of Child Services (DCS) who sued under the FLSA alleging unpaid overtime (working through lunch and being on call) while paid for 40 hours/week.
They sued DCS in federal court seeking damages and injunctive/declaratory relief under 29 U.S.C. § 207(a).
The district court dismissed the complaint on Eleventh Amendment grounds, ruling Indiana had not consented to suit in federal court; the dismissal was entered as a separate final judgment.
Plaintiffs argued Indiana waived Eleventh Amendment immunity by statute (Ind. Code § 34‑13‑1‑1(a)) and by incorporating employment/FLSA standards into state law.
The Seventh Circuit reviewed de novo and affirmed, holding Indiana had not clearly waived sovereign immunity for FLSA suits in federal court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Indiana waived Eleventh Amendment immunity to allow private FLSA suits in federal court	§ 34‑13‑1‑1(a) permits suits on express/implied contracts; employment is a contract and FLSA terms are embedded in employment, so Indiana consented	Eleventh Amendment bars suit absent a clear, express waiver; the statute is a general contract‑suit provision and does not expressly waive sovereign immunity for FLSA claims	Held: No waiver — statute does not clearly and expressly consent to federal‑court FLSA suits
Whether the district court’s dismissal (styled “without prejudice”) was appealable final judgment	Plaintiffs implied dismissal without prejudice might be non‑final	District court entered a separate Rule 58 final judgment and dismissal was on immunity grounds not curable by amendment, making it final in practical terms	Held: Appealable final judgment; appellate jurisdiction proper

Alden v. Maine, 527 U.S. 706 (holding FLSA did not abrogate states’ Eleventh Amendment immunity)
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (states immune from private suits in federal court absent consent)
Ex parte Young, 209 U.S. 123 (narrow exception for suits against state officials seeking prospective relief)
College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (stringent standard for finding state waiver of immunity)
Lapides v. Board of Regents of Univ. System of Georgia, 535 U.S. 613 (removal can waive Eleventh Amendment immunity for that case)
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (waiver must be clearly stated)
Edelman v. Jordan, 415 U.S. 651 (waiver must be expressed in unmistakable terms; constructive consent insufficient)
Mueller v. Thompson, 133 F.3d 1063 (7th Cir.) (refusing to find waiver where state statute referenced overtime and incorporated FLSA standards)
Florida Dep’t of Health & Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147 (statutory permission to be sued plus promise to comply with federal program did not waive Eleventh Amendment immunity)