Employees of the Department of Public Health & Welfare, State of Missouri v. Department of Public Health & Welfare, State of Missouri

grant ex- entitled to immediate traordinary summary determine: then we relief which abortive the record A. injunction provides. preliminary is It injunctive relief. justify not does stage least the preliminary this proper. At necessary or to be not shown plaintiffs. equities favor do not ac- court filed have not Defendants position of plaintiffs in the are These is plaintiffs there tions appropriated and effort having work action. of such no immediate threat seeking post au- the defendants preliminary B. Continuation approval dit, speak, aid and toso court injunction trial entered demanding it vali- equity court of legal stay effect denial of the date their actions. action which court declare void reasons, then, it is the regardless For all future, these might in the be filed that the defendants’ court order of character, contrary this as of its form stay court’s district motion for a at the threshold. and invalid federal law en- injunction heretofore preliminary This cannot hold. be on November tered file it is C. If an action were on or- hereby granted it is the same intervention doubtful whether federal preliminary court said der proper of the re- would be in view stayed order injunction further till prescribed straints 28 U.S.C. § this court. injunc- proscribes section motion part defendants’ That excep- except specific tive seeking stay proceedings in the of all statute. tional instances set forth us pending review district exceptions None of these are shown injunction preliminary should exist here. being un- hereby is denied the same Again, if had D. an action or actions unwarranted der the circumstances been filed state court the doctrine of part defendants’ unjustified. That abstention as enunciated in the noted hearing on seeking expedited motion probably Court decisions would being held time appeal is preclude granting enjoining of relief abeyance. proceedings. the state court injunction temporary E. The broad,

grossly inclu- indefinite and all proceeds It as a class action with-

sive. compliance

out with Rule 23 and forbids prosecution defendants from of unidenti- throughout fied actions the nation and OF EMPLOYEES the DEPARTMENT OF prohibits instituting of ac- well WELFARE, PUBLIC HEALTH & tions unde- all members of an MISSOURI, al., STATE lants, Appel OF et they fined class no matter who are or they where are located. finally F. We not and DEPARTMENT need do OF PUBLIC HEALTH & WELFARE, MISSOURI, legal STATE OF dispute decide the as to whether al., Appellees. et by plain-

the Act of tiffs, relied on No. provides copyright pro- 20204. which Act recordings tection to the defendants’ United States Appeals, Court of February 15, 1972, oper- from and after Eighth Circuit. deprive ates to all the defendants of Nov. 1971. property rights recordings their 27, March Granted Certiorari of all state remedies in the It interim. See 92 S.Ct. say plaintiffs is sufficient have position failed to convince us that regard they

in clear so Judge, Bright, dissented Circuit Judges opinion in Circuit which filed Stephenson Heaney concurred.

Lay, filed Judge, also

Stephenson, Circuit dissenting opinion. Louis, Mo., Oldham, R. St.

Charles appellants. Atty. Gen., Blackmar, A. Charles Asst. Danforth, City, Mo., C.

Jefferson John Gen., appellees. Atty. Judge, MATTHES, VAN Before Chief Judge,

OOSTERHOUT,* Senior Circuit LAY, MEHAFFY, GIBSON, HEANEY, BRIGHT, STE ROSS sitting Judges, PHENSON, en Circuit banc.

* panel participated Judge of this court of this case decision Van Oosterhout 2, 1971. opinion April was filed on OOSTERHOUT, Senior Circuit is barred Amendment. VAN timely Judge. appeal Plaintiffs from the took judgment of dismissal. Plaintiffs, various named ap- panel A of this court to which the institutions, brought Missouri State judg- peal was submitted reversed the 216(b) class action under 29 U.S.C.A. § in ment of dismissal for reasons stated compensation unpaid overtime to recover opinion April an filed The writ- 1971. Labor- due them under Fair Stand- the opinion er of this A rehear- dissented. amended, 29 U.S.C.A. Act § ards as ing granted; supplemental en was banc They equal amount seq. et also seek by parties. theAt briefs were filed the liquidated ask for attor- and Hodg- court, invitation the James D. of by ney’s fees, provided is for all of which Labor, son, Secretary filed a brief of 216(b). § supporting position of amicus curiae the Rehearing plaintiff-employees. en the employees five of Plaintiffs are named September 1971. banc held on was hospital hospitals and a cancer mental Missouri, by and operated by ap- of the State presented The basic issue training employees schools plaintiffs’ is peal the action is whether Department girls operated under the by barred Eleventh Amendment. the of of Missouri.2 subsidiary the question of Corrections State is whether State sovereign immunity. holdWe has waived Department of are the Defendants by action is barred the State & of Public Health Welfare State Amendment and Training Missouri, Board of of the State sovereign has not waived of Missouri mem- Board and various State Schools immunity We to this suit. consented having supervision of bers and officials judgment reversal prior of our training vacate hospitals schools. the state judgment dismissal for of and affirm in official sued their officials are Such hereinafter stated. reasons capacity as individuals. The trial court sustained Fair defendants’ Labor Standards Act of 1938 complaint employees. motion to upon dismiss the did not cover State Em- ground by ployees hospitals this is a suit of of State schools and citizens brought coverage of State the State and as such first under the were 216(b) any party plaintiff 1. 29 U.S.C.A. reads: to become a such “Any employer provi- filing action, who of violates shall terminate complaint by sions of section 206 or section of Labor employee this title shall be liable to the in an action under section of this employees any sought in affected the amount of title is of unpaid in which restraint unpaid delay wages, payment their minimum or their further unpaid wages, unpaid compensation, overtime as the minimum or the amount of may be, equal compensation, case and in an overtime additional case liquidated damages. be, owing employee amount as under section Action liability may by an recover such be maintained 206 or section 207 of this title any jurisdiction by provi- competent employer in any court of liable therefor under the employees one or more in sions this subsection.” behalf himself or themselves and other employees similarly brought as a class action. situated. No em- This action ployee party any provides employee plaintiff 216(b) shall be that no Section party gives plaintiff such action he be a unless written unless his consent shall writing party given in to become such a consent thereto is and filed with given been consent has such consent filed the court which court. Such brought. plaintiffs. such action is The court in such Whether consent the named any given by shall, judgment other members of action in addition to has been plaintiff plaintiffs, appear. awarded The issue al- class does not attorney’s paid other than members of the class low a reasonable fee to be defendant, plaintiffs this action are covered and costs of the action. named light right provided by the dismissal. immaterial subsection opinion upon bring express this issue. no or on behalf of employee, right and the foreign government The na- amendment. denied the a 1966 scope to sue a Amendment State on the basis of ture immunity. express Maryland No State set out from such a suit L.Ed.2d found the Constitu quotes expressed authorita- majority opinion case tion. in that views Madison, can and tively Hamilton and Marshall and determined power Clause states: its Commerce did wage minimum the overtime make postulate “There is also Standards Fair Labor provisions of the Union, possessing still attributes applicable to amended Act as sovereignty, shall be immune from hospitals. schools State suits, consent, without save where there has ‘a been surrender of All of here involved immunity plan fairly in fall within the definition hos- ” 313, 322-323, vention.’ 292 pital U.S. 54 in the amended Act. Under 745, 748. hospital employees clearly S.Ct. are covered by the Act. A fact issue arises as to The holds: Court training girls school for granted by judicial power ‘entire “The meaning a school within the au the Constitution’ does not embrace pur- amended Act but we will for the thority entertain such suits pose of this ease assume that it is a Ex of the State’s consent. absence deciding. school without so 1, supra York, parte State of No. New We now reach the 588, 490], p. 497 S.Ct. [41 [256 U.S. Amendment, issue. Eleventh which 1057]; Fiske, 290 L.Ed. Missouri v. 65 became effective in reads: 1794. 18, 18, 25, L.Ed. 26 78 [54 U.S. S.Ct. 145]. power

“The Judicial United ex- shall not be construed to by “4. Protected funda- same equity, in or com- tend to law principle, States, mental in the ab- against prosecuted one menced or consent, sence of immune by Citizens of an- the United States brought against by suits them by State, or other Citizens Sub- by corporations, own citizens or Foreign jects State.” although such suits are not within the explicit prohibitions of the Eleventh Although by the Eleventh Amendment ” * ** 313, Amendment. 292 U.S. only against its bars terms suits 329-330, 745, 54 by S.Ct. 751. States, State citizens of other consistently Amendment has been Accord, Ry., supra; inter Parden v. Terminal preted barring suits Read, the State Great Northern Life Ins. Co. 322 v. by its 1121; own 47, citizens. Parden 51, 873, v. Terminal U.S. 64 S.Ct. 88 L.Ed. Ry., 184, 1207, 377 1, 84 Louisiana, 10-16, U.S. S.Ct. 12 L. Hans v. 134 10 U.S. 233; Louisiana, 1, Ed.2d 504, Hans 134 v. U.S. 33 L.Ed. 842. S.Ct. 504, 10 pointed S.Ct. 33 As L.Ed. 842. fairly appears It from the au Hans, out in the Eleventh Amendment just im thorities cited that prompt response was Congress, by brought against it mune from suit people holding States and the of a on the its citizens basis a reasonable Supreme divided Court in Chisholm v. original interpretation of the Constitu Georgia, 419, 440, 2 Dall. 1 L.Ed. additionally upon the basis of tion and by states were to suits individ the Eleventh Amendment. Supreme opinions Court uals. handed repudiated down since Chisholm have Ry., supra, Parden v. Terminal relied majority opinion rejecting upon by in plaintiffs that case the Tenth pre-Eleventh Briggs Amendment im Sagers, Cir., Circuit v. munity part 130, on the Thus majority States. F.2d in both the and minor- 313, Mississippi, ity opinion, fully recognizes Monaco v. U.S. that sover- eign immunity 54 S.Ct. the Court L.Ed. exists the factual option background precise and in of its case State nature both majority impossible holds: Parden makes ‘intentional re- case. congressional power “Recognition linquishment abandonment of a FELA privilege’ under the must render a suable known State rights doc- be shown does not mean before constitutional may trine, embodied in the waived. be taken have been respect Zerbst, citizens of to- Johnson Amendment with 304 U.S. 1461]; 1019, 1023, extended to 82 L.Ed. and as [58 other States case, Fay Noia, Hans own citizens U.S. State’s majority in being remains the 9 L.Ed.2d It 837]. overridden. here regard sover- not be sued effect holds that with that a State law eign immunity, a constitu- its consent.” 377 waiver of individual without privilege need be neither know- tional 84 S.Ct. intelligent.” ing nor minority opinion in an 199-200, White, concurred Jus- Justice Mr. agrees Douglas, Stewart, case, Harlan and The critical tices issue in our stating: immunity exists, as in State whether the has consented to a suit citi- today majority “The follows employees. zen holdings that an Court’s consistent clearly passing Wirtz states that it is not constitutionally unconsenting State is on the issue which suits immune from squarely now confronts us. The Court brought by its own citizens as well pass Parden but does not cites discuss by It should citizens of other States. theory whether the Parden waiver Congress, easily not inferred that be applies present situation.3 legislating pursuant of to one article Constitution, intended to effect an sovereign issue, immunity On the compulsory of waiver automatic Wirtz Court states: rights arising 377 under another.” “Percolating through each of these 1207, 198, 184, 1216. S.Ct. U.S. 84 provisions for relief of are interests expresses minority opinion then The problems the United States and im- of disagreement of sharp with view munity, agency, and consent to suit. majority issue: the waiver on Co., Cf. Parden Terminal 377 U.S. R. v. previous opinions 1207, “In the Court has 184 S.Ct. 12 L.Ed.2d [84 233]. sovereign constitutionality applying indicated that waiver of im- munity only requirements be found will where stated substantive of the Act language, view, express not, ‘the most in our affected the States is overwhelming implication possibility one more of might provides the text as leave no room the remedies the Act other reasonable construction.’ available a State is not be when Murray Distilling Co., Particularly employer-defendant. v. 213 Wilson 151, light ‘separability’ provi- 458, 464, the Act’s U.S. 171 53 [29 S.Ct. 219, sion, see no reason 29 we L.Ed. Ford Motor Co. U.S.C. 742]. See portions Department Treasury, valid to strike down otherwise v. U.S. 323 por- simply 459, 347, 352-353, other of the Act because 468-470 S.Ct. might tions be 89 L.Ed. If the automatic 389]. hypothetical cases. applied to future sequence a rail- time, be decline to At same road in interstate commerce to be discussion sovereign an abstract immunity, into Con- drawn waiver complex gress’ issues bring the numerous home to failure majority Supreme sharply on remained 3. bers of Parden Court had divided remained four dissenters the Court. Parden. At on waiver issue decision, only mem- the Court. time of the Wirtz two on might arise in connection with the Sixth rep- Amendment to be provisions. Act’s various remedial resented counsel. Here the constitu- They impossible and most sovereign almost tional involved is immu- unnecessary nity granted by to resolve advance the Eleventh Amend- particular facts, claims, States, stated ment. The United like State plaintiffs governments, identified possesses defendants. im- Questions immunity munity. are there- appropriate reserved fore future respect sovereign immunity by With cases.” (Emphasis added.) 392 U.S. States, United 2017, 88 S.Ct. 2025. jurisdiction reads consent question Thus the of whether the restrictively. the statutes Honda v. theory applies waiver Clark, sit- 484, factual 386 U.S. presented uation open this case is an 244; States, L.Ed.2d McMahon v. United and undecided issue. 26; U.S. 72 S.Ct. 96 L.Ed. United Sherwood, original v. pointed As heretofore out the 1058; 61 S.Ct. 85 L.Ed. Unit- Constitution and the Eleventh Amend- Shaw, ed States v. sovereigns ment afford States as immu- 659, 84 888. See nity Peterson Unit- L.Ed. from suits individuals. States, Cir., ed 428 F.2d disputed It is not ac- tion in effect officials Controlling legal principles Maryland a suit the State. See proper require federal-state relations supra; Northern Life Great applicable the standards to federal Read, supra, p. Ins. Co. v. applicable should U.S., 64 sovereign immunity of the States. parties agree to this action appropriate principles applicable the State of Missouri has no constitu- sovereign immunity to State are well statutory authorizing provision tional or summarized in his Justice Mr. White a suit such as this and that it has never dissenting opinion in heretofore expressly consented to this suit. referred to. present If consent to the A serious doubt exists whether exists, it arises out of the Parden waiver Congress by express appropri could theory. Plaintiffs of contend waiver language provide ate that a State sovereign immunity ap- State must be govern continuing operate to essential plied upon the basis that the State con- functions, involved, ment such as here operate hospitals tinued to its and train- constitutionally guaranteed would its lose ing subsequent adoption schools the of to sovereign immunity. prohibition of the 1966 Amendment to Fair the Labor against is the State suits individuals Act. Standards Waiver been defined has broadly Amend stated in the Eleventh relinquishment as “an intentional or language the is in There no ment. right priv- abandonment of a known or impliedly expressly Amendment which ilege.” Zerbst, 458, Johnson v. given rights excepts from its 1019, 1461; 58 S.Ct. 82 L.Ed. government the Com under the Fay Noia, 83 S.Ct. U.S. that To the merce Clause. extent 822, 9 L.Ed.2d 837. powers inconsistency the exists between Zerbst, Johnson p. of granted the Clause the Commerce U.S., p. S.Ct., 1023 of 58 the Amendment, Eleventh states: “It pointed has been out expres recent the more Amendment as indulge ‘courts every pre reasonable pre people should of the sion of the will against sumption waiver’ of fundamental Am.Jur.2d, Constitutional See 16 vail. rights constitutional and that we ‘do Law, cited. 69 and cases there § presume acquiescence in the loss of fun ” rights.’ damental rights any balancing The constitutional If under right right involved was the accused’s Commerce Clause sovereign immunity recog- specifically is re- State’s The Wirtz Court well-recognized quired, pro- nized that other than those remedies guarantee sovereign immunity 216(b) should vided in available. Such § prevail. provided An adverse commerce effect on remedies are for in the form might preserving Secretary result sov- which of actions §§ ereign immunity (c) in situation Suits State minimal, particularly injunctive in of other view for be available relief remedies available enforcement State in their individual officials provisions Young, capacities parte Act.4 under Ex 52 L.Ed. The discontinuance of the mental State needing hospitals for those un- care and sought (2) remedy Par- pay, able to and the discontinuance damages. Sec den did not include double seriously correctional schools would damages 216(b) permits double tion adversely public affect interest and attorney’s cannot It allowance fees. welfare the State. If the State ceased reasonably from the be inferred statute unlikely perform services, to such legislative history that and its private enterprise step in to impose penalties on to such intended fill the need. in brief States. The Moreover, nothing find in the 1966 in its sound the trial court states amendment Labor Standards Fair discretion can under 29 U.S.C.A. § legislative history in its damages Act or liquidated or reduce withhold fairly informs it will damages, consequently liq constitutionally granted damages sover- lose its premature. We uidated issue eign immunity by continuing operate agree. remission do not Under training Prior part schools. liquidated whole employer resolution only issue shows “if allowable question existed substantial the court satisfaction of Fair Labor giving such action omission act rise good Act could extended to Standards had rea faith that he was dissenting opinion believing in Wirtz. grounds that his States. See sonable omission not a violation was act or the State are satisfied that Fair Labor Standards intelligently knowingly and at no time ** amended, if the And even defense its waived showing made, the remission required is by present The continuance action. sound discretion is left hospitals and of its mental the State court. training subsequent the 1966 schools to that record, said be Upon it cannot a waiver does constitute amendment court any certainty a that there is sovereign immunity. finding required will make The waiver rule announced Parden made, it finding would or if such enlarged have to be and extended court for discretion an abuse be present to fit case. Parden is dis- damages. double allow tinguishable present from our case pun respects: permit four To a federal by awarding double ish a State (1) states, In Parden “It the Court with the well-entrenched is inconsistent surprising would be even more to learn immunity sovereign and the doctrine the FELA does Terminal make the immunity. background of such historical Railway but, petitioners, ‘liable’ to un- “But fortunately, provides majority (3) Parden states: no means which The liability sphere that a State leaves be enforced.” 377 when exclusively into ac- enters its own and injunction back-pay on be- that he for and his brief states hospital employees. January commenced an on half the State congressional regula- prior judgment tivities of this court re- tion, subjects regulation versing judgment itself to that of the trial court fully dismissing private person complaint as as if it were a is vacated and corporation.” judgment dismissing set aside. The operation complaint 1215. The of the rail- is affirmed. Parden proprietary road function BRIGHT, Judge, Circuit reasonably with whom which could considered as be STEPHENSON, LAY, HEANEY and departure sphere from a the State Judges, join dissenting. exclusively Circuit opera- its was own. The training hospitals tion the mental and reject majority the thesis of the present govern- in our is a schools case any waiver of Hospitalization mental of a function. actual, to suit in must this case rest patients substantial number mental constructive, opposed as consent to be required protection public for Where, sued the State of Missouri. patients. as well here, policy fed- conflicts with a option The State open has no erally realistic right, question of created waiv- to it to hospitals discontinue its scope mental er non is determined vel training schools forthwith. law. and effect of the federal resolving Mis- In the issue whether (4) the Federal Labor Amend- souri its has waived Standards Act had been in effect within the ment twenty years some before the State com- context of the 1966 amendments operation. menced its railroad In our Act, necessary it is Fair Labor Standards present case, the State federally to examine nature training schools had been in existence right, under- created many years before the legislation, pinning for the federal enactment of the 1966 Amendment of Congress. the intent of the Fair Labor Standards Act. did not enter into new form of operates State of Missouri schools activity subsequent to the enactment of hospitals, employees the Amendment. wages now entitled to minimum and over- compensation time pursuant to the 1966 factual distinctions between our amendments to Fair Labor Standards present Parden are such as to case (FLSA). gives The Act satisfy us that the waiver action “in sovereign immunity holding should not competent jurisdiction” court of to re- applied be extended to and employer cover amounts due who situation. We are convinced that wage violates the minimum or overtime State has not waived its im- compensation provisions of the Act.1 munity or consented to sued an ac- hospital training tion school Pursuant to these amendments and oth- employees compensation provisions for overtime un- er of the Fair Labor Stand- 216(b). (29 der 201-19), plain- § ards Act U.S.C. §§ 216(b). 1. competent jurisdiction 29 § U.S.C. The Fair Labor court of ” * * * provides Standards Act several remedies. recover the amount of such claim. granting employees 216(c). In addition However, 29 U.S.C. § the con private unpaid employee of action for their sent an of an action wages unpaid Secretary minimum or overtime com of Labor constitutes “a waiver pensation, they may any right also recover “an addi [of action] equal liquidated may (b).” tional amount as dam he have subsection Id. ages” may Secretary may bring and collect “a reasonable at The an also action * * * torney’s injunctive seeking against any fee and costs.” Id. relief em provides that, upon ployer violating The Act also written the Act. 29 §§ U.S.C. request eligible employee, 211(a), “the may bring of Labor an action 828 tiffs, employees higher (regardless of several Missouri education brought institutions, hospital, whether or not such institu- seeking unpaid tion, com- public overtime private to recover or school is or or pensation operated profit profit). additional amounts for and not for or attorney’s fees. liquidated 203(s) (4) (Supp.1970)] [29 U.S.C. § agree parties the instant Congress expanded defi- also the Act’s primarily the State directed “employer” nition of to include Missouri, plaintiffs further subdivisions, political States and their expressly has never admit Missouri affording protection thus of the Act by the motion to this On consented suit. working in such hos- State, court dismissed the federal district institutions, pitals, 29 and schools. action, concluding principles 203(d) (Supp.1970). U.S.C. § immunity incorporated sovereign 183, Maryland In 392 U.S. ju- Amendment bar the Eleventh (1968), the 20 L.Ed.2d 1020 Plaintiffs action in this suit. dicial held the amend- Court judgment prosecute appeal from the this legislation en- ments constitute valid Upon initial submission of dismissal. pursuant federal commerce acted to the case, panel of court reversed rejected power. the conten- Judge, (Bright, Circuit the district Maryland and other states tions reversal; Judge, Neville, District Congress’ power com- over interstate Judge, Oosterhout, dissent- Circuit Van ing).2 yield to a state’s merce must below, For reasons stated performance of in the latter’s agree and would panel decision with the governmental Har- functions. Justice

reverse. Court, lan, speaking observed: for the engaging ac- in economic If a State statutory briefly first review regulated by validly tivities that are Act history Standards of the Fair Labor engaged when the Federal Government there amendments too persons, the State legislation protect “to serves This to. its activ- to conform forced population from groups of certain regulation. U.S. [392 to federal ities wages hours and excessive substandard at 2024] [endanger] health the national which goods well-being Court, however, specifically free flow reserved Brooklyn Sav. enforceability pro- in interstate commerce.” comment on the O’Neil, through 65 S. Bank v. which suits the Act visions of (1945). See 89 L.Ed. Ct. could be directed the State. form, original the majority In its U.S.C. stated: “any specifically or excluded Act political Percolating through each these aof subdivision State” interests of for relief are “employer” of an the definition problems im- the United provisions of to the the Act. munity, agency, to suit. and consent protection afford extended Co., Terminal R. Cf. employees of in ed the Act L.Ed.2d enterprise stitution constitutionality apply- 233]. engaged hospital, ing requirements of the of a the substantive view, engaged not, primarily institution our Act the States sick, aged, possibility the care men- one affected tally provides ill remedies the defective who reside on the more of the might premises institution, a when State such a school not be available Particularly mentally physically handicapped employer-defendant. for or pro- gifted light children, “separability” elementary or or Act’s 219, rea- secondary school, see no vision, 29 U.S.C. we or an institution of unreported. April 2,1971, panel opinion, 20,204, No.

829 por- brought by citizens, down otherwise valid a son to strike state’s own well as simply other tions of the act because as citizens from other states. Hans v. might Louisiana, portions 1, 504, not be constitutional 134 U.S. 10 S.Ct. hypothetical eases. applied (1890). future L.Ed. 842 time, to be At the decline same Appellants contend that the State of abstract discussion drawn into an Missouri has waived its Eleventh Amend complex issues numerous the might rights by continuing operate ment in connection arise with hospitals knowing schools employees provisions. remedial Act’s various pro thereof are now afforded They impossible most almost are by the Fair tection Labor Standards Act. unnecessary in advance to resolve urging rights, ap In a waiver of these claims, facts, particular stated rely pellants primarily upon Supreme plaintiffs and defendants. identified Court’s decision Terminal v. immunity Questions there- of state Ry., 377 U.S. 12 L.Ed. S.Ct. appropriate future fore reserved (1964), 2d 233 Tenth Circuit’s U.S. at cases. Briggs, ruling supra, 424 F.2d 130. 2025]. Parden, employees In anof Alabama- dismissing plaintiffs-appellants’ ac In railway brought owned an action in fed- upon tion, relied a de court the district against eral court railway the state court a federal district cision rendered personal injuries under the Federal Em- dismissing suit, one a similar in Utah ployers’ Liability (FELA), 45 U.S.C. brought by department em welfare state 51-60. §§ Alabama contended that Con- against for re ployees the State of Utah gress lacked the authority compensation under covery of overtime a state to a suit under Briggs Sagers, 301 F. the FLSA. v. FELA, express consent, without its However, 1969). (D.Utah Supp. 1023 because the Eleventh Amendment reversed has now the Tenth Circuit guarantee. Supreme Court conclud- Briggs Sagers, F.2d 130 decision. ed that the state’s of a railroad denied, Cir.), (10th cert. in interstate commerce constituted a (1970). L.Ed.2d 59 waiver of its op- one, by resident this A suit such as erated aas consent to be sued its em- State, against does ployees in federal courts under the literal terms not fall within FELA. The Court ruled in Parden that Amendment, provides: consent suit rested conditions power The Judicial of the United action, attached to the state’s States extend shall not be construed to given. and actual assent need In not be equity, in law com- ruling, Supreme so Court relied in against prosecuted menced or one of part upon Petty its earlier decision in the United anoth- States Citizens of Bridge Comm’n, Tennessee-Missouri State, Subjects er Citizens or 3 L.Ed.2d any Foreign State. (1959), permitted where the Court a Supreme Court has construed claim a Jones Act bi-state au- thority compact.3 amendment suits in federal court to bar an interstate created Petty, plaintiff brought arising compact. Interpreting In an action under agency law, under the Jones Act these instruments under federal Tennessee States and Missouri Court determined compact suit, which had been created to this hind of al- had consented language though, law, into them entered between with the compact preserved Congress. approving sent of com- would have liability pact, Congress proviso had attached from by tort States’ approval plaintiff. should not be construed as asserted diminishing impairing, panel affecting, reversed court jurisdiction Petty which, over matters v. Tennessee-Missouri (foot- F.2d at 133-134 [424 in Parden: draw. observed The Court omitted)] legislation Here, gress unlike the considered explicitly placed certain state em- in ployees the amendment to coverage within the of the Act. brought specifically Congress FLSA state em- adopted in these amendments ployees light and certain schools affording of other coverage Act. within the of the Thus employees right compensation a to collect against the issue which divided offending employer “in in Parden is not in jurisdiction.” competent court of same in this Mr. Justice context case. 216(b). think unreason- U.S.C. it § the dissenters in Parden con- White for presume Congress able to that ceded : protection have intended the Act’s to employees, cover agree state at same power of I that it is within deny appropriate time in them an forum Congress permit to condition a State’s rights. which to their As the engage enforce transporta- to in the interstate Supreme Court noted in Parden: tion business on a waiver State’s arising sovereign immunity from suits say, presume should not [W]e to Congress might out of such business. provision express to absence allowing regulable well determine that contrary, [Congress] in- of a rail- conduct such group particular tended to a exclude legal- body undertaken a road to be such from the workers benefits ly liability directly re- immune from ferred the Act. To read a “sov- (cid:127) sulting operations so from these ereign immunity exception” into the regula- purposes of its to the moreover, inimical result, in a Act would * * put right remedy tion the State must *. a without foregoing participa- option unwilling of either that Con- to conclude We are consenting conduct or to gress tion pointless frus- intended so injury legal responsibility caused for trating a U.S. at result. thereby. S.Ct. at 1211] However, impose the decision statutory language Under far less com Congress for and not for conditions is pelling, interpreted Parden the statute 198, 84 at [Id. the courts. question apply there to state-em 1216] ployers Moreover, and to authorize suit. Although we do not believe that the existence of statute here under con specific other indirect avenues of relief for sideration is inclusion employee state employees, under FLSA makes state we must next consider inapplicable. rationale These it is inferable from the Act that against legal indirect avenues of recourse intended that states be private suit the state include suit for violations employees agree of Labor on under 29 majori FLSA. behalf While we with the 216(c) ty in history U.S.C. or an action § 1966 amend junctive relief under 29 U.S.C. ments to the no direct FLSA discloses sug 1, supra. majority note legislative See expression of concern intent gests employees their su ing right sue to sue periors in Ex enunciated doctrines employer unpaid compen his to recover Young, Parte wages Act, sation due find under the (1908). 52 L.Ed. 714 surrounding in the circumstances legislation strong inference Con majority of- appellees nor the Neither gress employees intended afford why these alternatives fer reasons right the same direct remedy than appropriate afford a more employers possessed by as is cov employees private action m nongovernmental ered e Act. the State violation ployers. statutory en- fact, scheme the Act’s give preference already enacting seems forcement We have noted that of action. FLSA, the individual’s 1966 amendments to Con- specifies “Any employer It federal, that: state, who on law. See discus- ** violates the of Parden, Act] supra, [the sion in 195-196, employee em- the dissenting shall be liable to opinion at ployees amount of their affected in the wages, unpaid unpaid or their minimum suggestion Finally, turn we to the * * *,” compensation 29 overtime waiver constructive consent to 216(b); authorizes Sec- but the U.S.C. § since, implied should not be Par- unlike retary bring of an an action on behalf den, Congress legislated long in this field request only a written “[w]hen after Missouri had entered into busi- the 216(c). we Since filed.” U.S.C. § operating ness of schools the and hos- statutory indicate find no basis to pitals question. here in forego employees should individual argument adopt the We made state personal of Briggs Sagers, supra, court in F. reject employer, would as an we 2d 130: argument. Although rely part in does ground, majority a For second intervening twenty lapse of distinguishes here the statute years, prin- it is not so crucial to the as- allows the FLSA in since ciples cause reversal involved as to damages and at- liquidated of sessment Appellees’ interpre- that fact. absent yet torney’s is not be- This issue fees. implies case that because tation fact, district court since fore us in year delay twenty in com- there awas entirety. in its the action dismissed mencing business, Ala- the interstate to envision us difficult for it is While knowing and bama must have made a intelligent enforce- justifying the circumstances true, If that were waiver. provisions of the FLSA penalty ment of against language twenty year think the we light state-employer significance. How- increase would guide- we, 260,4 in accord with U.S.C. § argument unpersuasive in ever, the Wirtz, supra, no see suggested in lines light that the contention Alabama’s valid otherwise strike down reason “to im- its intend to waive did not other simply because portions munity such a waiver or know that as might not portions be Furthermore, even the result. Id. cases.” hypothetical future applied to not view did in Parden dissent opinion at 2026. at pivoting the fact on Rather, dis- Thirdly, necessity dis- intentional waiver. senting see no we major- tinguish understood Justices Parden on the basis regard sov- ity “that to hold with nature of the state’s function—denomi- immunity, ereign of a constitu- waiver nating pro- the railroad in Parden as a neither know- privilege need be function, prietary tional and the schools rule, intelligent.” ing Under that governmental nor here as a one. Utah that when it sufficient majority think support this cites no case to institu- operation of the its continued supra, distinction. * “* * knowing passage of the tion, noted: clear [I]t im- Amendments, it waived acting Government, with- Federal when provided in munity to the remedies delegated power, in tervailing override coun- footnote)] (omitting Act. [Id. these interests logic unpersuaded ‘governmental’ ‘pro- We described rely majority. on (392

prietary’ in continue character.” Briggs. authority 2023). of Parden Moreover, distinc- 88 light Arguments appears tion advanced immaterial demonstrate to suit turns of Labor as amicus curiae rule that waiver grants grounds” omis- That section discretion “reasonable believe his deny liquidated sion a violation of the FLSA. was not district court employer “good if shows faith” or practical support STEPHENSON, Judge (dis- reversal for a Circuit congressional senting) case as consistent with . underlying purpose FLSA dissent, I join the but I-add a comment to attain a “minimum amendments my position to make order unmistak- health, living necessary for standard efficiency, ably clear. well-being general Railway I read Parden Terminal * * * all deliberate workers with Alabama, supra, authority policy speed consistent with the proposition that a is amenable to American act and the welfare private suit in a federal forum under Admin.News, U.S.Cong. people.” 2 carefully defined circumstances. certain p. agree, Accordingly, I cannot in view of Secretary advises: holding the still live coverage complaint already To vast that this Court in Act, think, some added I the 1966 amendments deficient as a matter of law. 657,000 alleges which, if employees contrarily, es- facts 11.3 million increase, true, 2.7 provide some tablishments. Of basis granted. 119,000 conceivably employees estab- million relief could be local sector of I the Court lishments government connection note were (Secretary’s recognized employment. more specifically that “one might provides Report the 92nd remedies the 4(d), em- is the Tables available when Section FLSA not be a State Maryland 35). v. ployer-defendant.” U.S., p. of 88 supra, p. 200 of 392 magnitude The sheer enforce- ment burden which has been extended forty-six employees million and almost two prac- million establishments and the impossibility investigating

tical more percent per than four of these businesses

year, Hodgson Ricky Fashions, (5th 1970), F.2d n. 2 Cir. strong demonstrates the need for em- McGINNIS, of Cor- Paul Commissioner D. ployees state, persons of a like those Respondents-Appellants, rection, al., et employment, possess employer. A suit POL- rel. Milton ex STATES UNITED 216(b) rep- a state under § Petitioner-Appellee. LACK, only resents remedial 71-1874. Docket No. op- the Act which assures him of the portunity having presented Appeals, claim his United possesses Circuit. a court. dis- Second 216(e) cretion to sue under and 217. § Argued Nov. Secretary’s interest not be iden- 2, 1971. Dec. Decided personal tical interests of an in- employee. dividual

Accordingly, ef- we would hold that to extending purposes fectuate the FLSA

coverage govern- of state conducting ment, specific falling Act, activities structively within its covered consents to

employees and its Eleventh waives immunity.

Amendment this case reverse and remand

We would proceedings.

for further notes to suit is al- consent State’s Where a wholly leged an act not to arise from principles By application the authority but sphere of its own within Briggs, reject Missouri’s and Parden sphere it be a within —whether Eleventh Amendment claim of com- compacts interstate interstate immunity. that actual think clear to merce— a is immaterial when state consent a Government, the power of the Federal plaintiff a cause a state sues act question whether the State’s rights expressly created action on based alleged is one of consent stitutes the by Congress. results state’s consent Petty, Here, as in federal law. the activities from the interrelation congres- venturing into States regulations placed thereon and the state conditions “assume sional realm generally Congress. Private See Congress the Constitution under Federal Against Suits Courts, U.S., [79 281-82 at attached.” (1966). U.Chi.L.Rev. 790], at S.Ct., at majority opinion dis- seeks to at 1215] tinguish grounds, Parden as- on several applied The Tenth Circuit the Parden 1) serting: provides the FLSA Since rejected Briggs, supra, doctrine in remedies through Act for violations of defense of Utah’s suit under §§ a federal court under suit the FLSA 216(c) be able employees. said: individuals; supervisors to sue their express think Con- intent of [W]e however, construed, not should be gress language and the of Parden must to authorize a direct suit regulatory control the matter. remedy employees; 2) State power Congress, although limited to not, here, approved pro- did g., constitutionally matters, defined e. penalty plus vide double commerce, plenary as to interstate fees; attorney’s 3) In Parden proprietary was those matters. Since the FLSA func- Albania exercised a authority through enacted railroad; operating Mis- tion in here Clause, Commerce and inasmuch as governmental function souri exercises right imposed by operating hospitals; and schools congression- fully within FLSA existing 4) has continued an Missouri regulatory power, it would incon- al activity schools gruous Congress power deny while, Parden, com- Alabama prompt, date for such name a effective railroading twenty years after menced suppress cor- To amendments. the enactment of FELA. power run counter responding plenary the constitution- nature of ground relates The first of distinction authority regulatory ally defined statutory problem construction. to a purpose of could, part, defeat the act, the Court considered legislation. urgently required conferring which, though a federal rem- generally employees, did edy to railroad

Notes

[*]

[*] *- employees of specifically mention constitutionally When at 188- state-owned railroads. engage hinges of a State Parden Court 1207. The ame- upon its in interstate commerce nability rail- applied “to state act nonetheless by pri- a federal court employees.” 377 U.S. roads decide eo parties, must the States vate or with- at 1211. to continue instante (8th the Eleventh Bridge Comm’n, from suit Cir. mune 254 F.2d 857 agency 1958), ruled bi-state Amendment. had instrumentality im- of both States

Case Details

Case Name: Employees of the Department of Public Health & Welfare, State of Missouri v. Department of Public Health & Welfare, State of Missouri

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 27, 1972

Citation: 452 F.2d 820

Docket Number: 20204

Court Abbreviation: 8th Cir.