Академический Документы
Профессиональный Документы
Культура Документы
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,
Ketterer, Attorney
Assistant Attorney
General,
with whom
Andr
____________________
July 7, 1997
____________________
STAHL, Circuit
determine
whether
the
Judge.
Eleventh
This case
Amendment,
requires us
as
to
recently
interpreted
by the Supreme Court in Seminole Tribe v. Florida,
116 S. Ct. 1114 (1996), bars a federal suit for overtime
under the Fair Labor Standards Act ("FLSA") brought by
pay
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
find unconstitutional a
thus
jurisdiction
We also deny
a
motion
made
on
appeal
by plaintiffs-appellants to amend their
complaint.
Background and Prior Proceedings
In this
case, filed in
current and
former probation
in
and
parole
officers (plaintiffs-appellants) have asserted that the
State
of Maine
improperly failed
to pay
them overtime
in
the
U.S.C. S 207.
probation
officers were
provisions.
from
the
FLSA's
overtime
were covered
exemption
exempt
employees but
for
law
came within
enforcement
the FLSA's
officers,
thus
partial
requiring
recoverable by the
probation officers, if
and
any.
-22
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
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
federal court,
see id.
at 1131-32,
and thus
overruled
Pennsylvania
v.
Union
Gas Co., 491 U.S. 1 (1989).
of
the
holding
in
Seminol
On the basis
12(b)(1).
case pursuant to
of
the
Fed. R. Civ.
P.
(D.
Me.
July
3,
1996).
In so doing, the district court refused
the probation officers' request
allow
them
to
conduct discovery on whether Maine waived its Eleventh
-3-
alternatively, transfer
the case
to
for
See
cert.
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:
'unequivocally
"first,
expresse[d]
its
whether
intent
to
Congress
has
abrogate
the
immunity,'
and second, whether Congress has acted 'pursuant to
a valid exercise of power.'"
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.
of the Act's minimum
requirements, in addition
to its
record-keeping
prohibition of
interstate
shipment
of
proscribed
goods, was challenged under the Commerce
Clause
as
well as the Fifth and Tenth Amendments.
Supreme Court upheld the Act
in 1941.
A unanimous
v.
-44
Darby, 312
U.S. 100
(1941).
While the
original 1938
Act
to
some
state workers
employed
in
state
Court
See Maryland v.
Wirtz,
subject states to
suits brought by
that
state
clarity an
intent to
abrogate the
states'
See Employees of
the
but
"ha[d]
found
not
a
word
. . . to indicate a purpose of Congress
to make it
of that State or
Id.
another
In 1974,
in the wake
of the
Court's decision
in
Employees
,
Congress amended the FLSA to cover almost all state
employees
and to
private suits
express its
intent to
brought in federal
court.
subject states
Two years
to
later,
-55
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).
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
full
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.
or indirectly
relation to
in the
interest of
U.S.C. S 203(d).
an employer
a public agency."
in
29
"In
the
case
of
an
individual employed by a public agency, such
term
means
.
S 203(e)(2),(C).
provides in pertinent
liability
Finally, the
prescribed .
. .
may be
Act, as
amended,
action to recover
the
maintained against
any
State
-66
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.
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
states.").
its intention to
apply the
FLSA to
the
B.
Power to Abrogate
Having
determined
that
Congress
has
clearly
manifested
its
intent
to
abrogate state sovereign immunity from
private FLSA suits
consider
power.'"
Seminole Tribe,
116 S.
Ct. at
valid
1123
this
dispute agree
that
Congress
referred
to
its
Commerce
Clause powers when it enacted both the
-77
original
FLSA
and
the
subsequent amendments to the Act that are
at
issue
in
this case.
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
1131-32.
The
probation officers, however, point out that Seminole Tribe
reaffirmed
Congress'
power to abrogate state immunity from suit
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
to
Fourteenth
Amendment.
While Congress' invocation
of its Commerce
Clause
power to
section
enact the
five of
FLSA amendments
the Fourteenth
in question
Amendment.
had
under
"'Our duty
in
passing
on
the
constitutionality of legislation is to determine
whether Congress had the authority to adopt legislation,
-8-
not
whether it
correctly
guessed the
that
power.'"
Court
source of
has
explained,
"[t]he
1977)).
question
County
As
of
the
the
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)).
Law 307
congressional
Congress
authority is
happens
to
Constitutional
recite
not, of
the
course, invalidated
wrong
clause
[of
of
if
the
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
protection'."
Amendment'
Ramirez,
715 F.2d
or 'section
5'
at 698.
Our
or
'equal
Fourteenth
from
Supreme
Court
precedent.
See Wyoming, 460 U.S. at 243-44 n.18.
-99
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
legislation pursuant to its section
enacted
5 powers. . . . Such
an
inquiry
necessarily focuses upon whether or not the objectives
of the legislation
under section 5
F.2d at 698.
scope of Congress'
power
Ramirez,
715
of
Pennhurst
warning
suggests
that "a
court
should
This
carefully
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
Congress invoked
of Maine
essentially
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
-1010
that it is
contrary to binding
and
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]
Congress intended to exclude other applicable
bases for the Act."
Supp. 112, 114
that
constitutional
(citing Usery v.
Allegheny
recital of
its Commerce
Clause
powers
did
not
evince
an
intent to exclude other constitutional
see
under
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
Pay
Act.
See
Tim
mer, 104 F.3d at 845-47 (Boggs, J., concurring in
part and dissenting in part).
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.
be
rummage
court
Id.
While
the
we
choose
not
to
embrace
it
in light of the contrary Supreme Court
and
First Circuit
Wyoming,
precedent that
460 U.S. at
we consider
above.
See
333 U.S. at
144;
2.
Section five
of
the Fourteenth
Amendment,
which
unique.
Virtually
that is
identical language is
also found in
by no
means
the
Twenty-third,
When determining
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.
Katzenbach, 383 U.S. 301,
South Carolina v.
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
Justice
powers
its
are
appropriate,
which
are
means
plainly
-1212
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
provision
"ha[s] th[e]
McCulloch.
same broad
scope" as
that sketched
The
Ex
parte
Virginia,
100
U.S.
339,
See id. at
345-46
in
(1879)
enforcement
clauses
of
the Reconstruction Amendments).
Court articulated a
three-pronged test
congressional legislation is
Amendment's
determined
enacted to
Equal Protection
that
Clause.
congressional
whether
Fourteenth
Specifically, the
enactment
is
Court
"appropriate
in
an
(1) if it
"may be regarded as
"is
'plainly
adapted
to
that
is
consistent
with
'the
letter
and
spirit
of
the
-1313
constitution.'"
U.S. at 421).2
between a
congressional
cannot be kept
'rationally
Amendment.
and
the
See Wilson-Jones,
so permissive as to
related' test
enactment
generally
the
99
factors
ends
the
enforcement
the Sixth
Circuit panel is
not so easy
to discern because
our
review
of
Supreme
Court
enforcement clauses
and
does not
the
other
traditional
essentially
2.
In
The situation
-1414
We do not
Circuit suggests.
parte
mandate
Pointing
to Ex
as
Sixth
Virginia's]
Morgan.").
read Morgan to
McCulloch
Clause, as
South
was
reaffirmed
parte
in
Virginia, the
power under S
v.
Morgan
5 ha[s] th[e]
determined Congress
Carolina
Katzenbach
has
Katzenbach
under
v.
Court
same
the
determined
Congress
has
the
agree
with
the
Sixth Circuit
that
rearticulated
and
heightened
Fourteenth
Amendment standard now applies by virtue of Morgan.
thus see no
We
in
Ramirez
regarding
Morgan
See 715
F.2d at 698.
The
scope
of
the
Fourteenth Amendment
standard by
highlighting the
rearticulated
unacceptable
consequences
that
it
to
achieving
-1515
We do
not
agree
that
the
The Fourteenth
400 U.S.
112,
(1970) (opinion
of
Oregon
Black,
v.
J.).
ipso
facto, a means
Amendment, because
Fourteenth
to
prohibit
every discrimination between groups of people."
in a
different fashion,
"'[t]he Fourteenth
Id.
Put
Amendment does
not
same remedies.'"
Holden v. Hardy,
U.S. 366, 388 (1898) (quoting Missouri v. Lewis, 101 U.S. 22,
169
31
(1879)).
When the Supreme Court first examined the
Fourteenth
Amendment's
equal
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
-1616
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
. . was the
is
pervading
to
remedy.").
The Court
conception of the
has
since
moved away
Fourteenth Amendment.
from
this
narrow
has
struck down state statutes under the Equal Protection Clause that
did
not
classify
or
some
other
illegitimacy,
impermissible
basis,
indigency, criminal
such
as
conviction,
sex,
or
alienage,
unreasonable
arbitrariness.
See
,
e.g.
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
guaranty of equal
decision) ("[T]he
protection of the
constitutional
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
selection"
does);
Atchison,
Topeka
Protection
jurisprudence
is
not
narrowly
confined
that
to
traditional
suspect or quasi-suspect classifications.
Whereas, as
is
see,
e.g.
,
Loving
v.
Virginia
,
v.
Boren, 429
U.S.
190,
197-99 (1976),
classifications that do
subject
only
to
more
mundane
government
more
deferential
rational
basis
are
review.
of
economics
merely
because
imperfect," Dandridge
the
v.
classifications
Williams, 397
[it
U.S. 471,
makes]
485
are
(1970),
because
Railway Express
Instead,
in
this
subset
of
concerns,
and the
Federal Government
must exercise
their
-1818
of regulation."
Id. at 112
Viewed
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,
narrowly
limit
congressional
prohibits.
that
so
long
as
the
Court
could
whether the
practices outlawed
by
Congress
in
themselves
violated the Equal Protection Clause."
City
of
Rome
v.
United
States
,
to
forbid
by
Equal Protection
Fourteenth Amendment,
Amendments has been
fully effective."
Clause or
under other
for Congress'
enlarged in order
provisions of
reach under
the Civil
to make these
the
War
accretions
-1919
In
the
the
probation officers
constitute
"a
class
of
persons
[that
would]
reflect
any
In other
do
as
those
terms
jurisprudence.
have
been
Insofar as
defined
in
Fourteenth
Amendment
the
Equal
five
1974
wage
and
hour provisions to
employees, have to
be
"rational
the
guaranty
against
relevant
Supreme
"irrational,"
and
therefore
precedents
we
designed
classifications
made
to
remedy
by
states,
can prohibit or
unreasonable
or
the
and
effects
have
to
take
arbitrary
of
such
Seminole
-2020
Conversely,
these
precedents indicate
that
Congress'
section five
enforcement
power, as
it
pertains to
the
Equal
and
does
not
permit
Congress
Congress'
power
to
groups of people a
and
render
constitutional
denial
of
equal
protection."
Black,
J.).
to
five
does
not
Id.
in addition to being
appropriately as
legislation
that
enactments
the
be
Equal
Protection
Clause.
In
-2121
FLSA amendments at
rationally
to
flow from a
budgetary concerns
and
in
and amount
the record
myriad of
the
levels of
of payment
that
to the extent
they
factors, including
public
expenditure
that
state
anything
and
However,
arbitrary
or
irrational
Nor
us
accrue
Clause's
denied
to Congress
an
unstated
intent to
act
under
its
authority
to
enforce
the
that
the
1974
-2222
Congress is empowered
to remedy pursuant
to
section
five
of the Fourteenth Amendment.
sovereign immunity
to suit
in
any
reason
or
need for
us
to
revisit
our
earlier
pronouncements
regarding
"authority" to
impose on
the states
the FLSA's
wage and
hour
New
Cir.
provisions
1980).
at
issue
In
so doing,
here
we
differed
indicated that
from
other
the
FLSA
congressional
legislation, like
Act, which,
we explained,
was
congressional
authority
to
adopt
the law."
v.
Charlestown City Sch. Dist., 558 F.2d 1169 (4th Cir. 1977); Usery
v. All egheny County
1976)).
Institution Dist.,
544 F.2d
148 (3d
Cir.
explicitly
state
in
so
many words in Marshall:
the
FLSA in dispute again here did not apply the Act's wage and
hour
-2323
provisions
to the
states and
exercise of congressional
state employees
authority to
as a
legitimate
adopt legislation
under
Congress
or any of its
other
Article
I
powers,
to
explain
why every
of the above
post-Seminole
line of
reasoning helps
Tribe federal
district
to
court
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
rejecting
Fourteenth Amendment
theory of
the
FLSA);
Chauvin
v.
Louisiana
,
95-40357-WS
Police
1996),
aff'd
by
Moad
-2424
whether
FLSA
could
have
been
Mar.
5,
1997)
(dismissing
case
but
not
WL 481550
(N.D.N.Y.
August
19, 1996)
(same);
addressing
94-CV-0906,
Arndt
v.
Wisconsin
Dep't
of
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
211, or
the conclusions of
with
actions
Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 49 &
n.230
(noting
that
the
to
the
Fair
-25-
case,
25
pending in federal
Supreme
ask
equal
protection
applying the
equitable
standards
articulated
in
Northern
Pipeline
Constr.
Co.
v.
M
v. Huson,
404
U.S. 97
relied" upon
Marathon
(1971).
cases
injustice and
hardship upon
a congressional
Pipe Line,
Those
458 U.S.
the
those
statute's grant
at 88
of
(plurality
several
difficulties with
the
probation
officers' argument.
See
U.S.
749,
752
stated by
(1993)).
Harper v.
Second,
Virginia Dep't
subject
matter
of Tax'n,
jurisdiction
509 U.S.
and
86
Eleventh
Amendment
Thus, in
on
the
-2626
to
consider
the
merits
of
case
over
which
it
is
without
jurisdiction,
U.S.
Firestone Tire
196,
203 (1988)
& Rubber
Co. v.
decision)
U.S. 368,
(quoting
379-80
(1981)).
F.3d
71,
74
(1st
Cir.
the district
court improperly
denied their
request to
conduct
expressly
court.
We
review a district
discovery on a dispositive
in
court's decision to
deny
See
Cir.
Amendment
sovereign
immunity,
See
-2727
in
U.S.
234,
241
(1985).
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
jurisdiction, the
discover
facts
plaintiff should be
that
would
court's
support
his
to
allegations
of
Department
of
jurisdiction.").
Maine
law
authorizes
the
Maine
law."
See
Me.
Rev.
Stat.
Ann.
a finding
that Maine
has voluntarily
subjected
to
the
FLSA.
At
the
discovery on
Maine's participation
in
officers'
for
determining whether a State has waived its immunity from federalcourt jurisdiction is a stringent one."
at
241.
We
-2828
state's
of that requirement
mere
demonstrate a state's
waiver of its
immunity."
996,
considered the
who at least
immunity as
a condition for
federal money.
1066-67 (8th
required a
state
or receipt
(plaintiffs identify
have
federal
waiver of
state participation
Cf. Manypenny v.
Cir. 1991)
waiver theory
of
1057,
White Earth
Land
Settlement
Medicaid Act).
728,
Boren Amendment to
the
731-32 (7th
Cir. 1994)
(plaintiffs fail
to name
federal
program
or
statute).
to
identify
the
federal
programs
in
which
Maine
participates.
order to locate
fishing expedition."
We
the lake in
conduct
which to conduct
3.
"not
the
whatever
confronting
district court
abused its
discretion in
deciding to
deny
discovery
on
the plaintiffs' motion.
next
consider
the
appellants'
argument
that,
assuming
Seminole
Tribe
to state court.
rather
had
Corp.
,
44
F.3d 40, 43 (1st Cir. 1995).
See Service
(1st
Cir. 1995).
respects.
First,
the
federal
court
jurisdiction has
that
only one
determines
course
it
lacks
of action
subject
left open
matter
to
it:
"Whenever
it
appears
by
See Dantes v.
-3030
Western Found. Corp., 614 F.2d 299, 301 (1st Cir. 1980) ("'Where,
Panhandle E.
Pipeline Co. v.
Rigging
citing
Cir.
1965)); Klett v. Pim, 965 F.2d 587, 591 n.7 (8th Cir. 1992) ("[A]
court
without
subject
officers overlook
28 U.S.C.
683
F.2d
744
(3rd Cir. 1982).
originally
The
such
claim.
had
remand, there
On
base
faced
-3131
the
possibility
that
the
time-barred.
at 745-46.
In this set
of
circumstances
, the Third Circuit took the step of transferring the
matter
to
does
not have
statute
identical
Third Circuit
to
the
relied, but
the
to be
transferred to
the proper
matter of form."
court when
Me. Rev.
the
Stat.
Ann.
tit.
14,
S
855.
be read to
permit transfer of
an action from
Third Circuit
attached
to the
unique nature
of
the
Pennsylvania
statute
on
court.
The
Third
improvidently
brought in
the federal
courts,"
and
specifically
"provide[d
transferred under
the statute's
provisions "'shall
be
treated
.
.
-3232
that
it
had
the
Id.
at
747.
In
of
doubtful
state
law
to
a
it, and
noted
that the
Supreme Court
had
approved
authorization
391 (1974)).
The Pennsylvania enabling
the
See
no
mention
of
has been
matter of
form."
Id.
Neither the parties' nor our own research has uncovered any Maine
caselaw
that
addresses
reading
of the
statute
we
We note,
glean no
however, that on
manifestation
of
willingness
-3333
of
the
filing of the case in federal court.
Pennsylvania
subsequently
has
explicitly
authority,
the traditional
transfer a
matter
that
general rule
over which
it lacks
"[a]bsent
that a
Circuit
statutory
court may
jurisdiction
not
governs."
1467
(3rd
Cir.
1990)
(en
banc).
While
we
express
no
view
analysis in Weaver
we
further
(1st
Cir. 1949)
(emphasis
added) (citing
McNutt v.
General
Motors
4.
of oral argument
the
plaintiffs-appellants
complaint to add the
filed an
unusual
motion to
amend
their
new
party
defendant.
the
Eleventh
Amendment bar to their FLSA action.
not
the
routine,
appellate
courts
have
authority
to
granting
of amendments.'"
Newman-Green,
which
Inc.
v.
Alfonzo-Larra
in, 490 U.S. 826, 834 (1989) (quoting Anonymous, 1 F.
Cas.
996,
Justice)).
997
(C.C. Mass.
1812)
(No.
444)
(Story,
the enactment
practice,
which
Circuit
predates
law
(quoting Anonymous,
Ponsonby, 1 Wils.
U.S.C. S
1653
F. Cas.
303, 95 Eng.
997) (quoting
King
v.
1751)).
See
28
of jurisdiction
may
be
("Defective allegations
at
-3535
S 1653.
The second is
the
the
where prospective
law.
declaratory and
The
official
injunctive
third is the
liberal
Procedure,
of
responsive
Otherwise
course
at any
time
before
pleading
is
served
party
may
amend
the
a
.
party's
inspection
at
each
juncture.
In
the
probation
amendments to
cure
(emphasis added).
addresses
only
actually exists,
officers seek
Section
"[d]efective allegations
This statutory
incorrect
and
here.
about
in the
allows
jurisdiction."
language "suggests
statements
not defects
of
1653
that
jurisdiction
jurisdictional
it
that
facts
themselves."
Newman-Green,
Newman-Green
Court
refused
to
interpret
Specifically,
section
1653
the
as
"empower[ing]
Id.
-3636
The
Newman-Green
Court's
desire.
The
830-31.
This rule
is fatal
to the
See Newman-Green
plaintiffs-appellants'
complaint be amended
by adding
asking
the Commissioner
of
Cir. 1986).
The
F.2d
Joy
court,
"come
to
this
court
court
After
the
Supreme
Court
of
Seminole
to
Tribe,
the probation
officers
had
every
reason
Sarnoff,
-3737
798
F.2d
at
1079.
Under
reasonable to conclude
that the
appellants "had
fair
is
enough."
Id.
Furthermore,
the
The
only
relief that the plaintiffs have sought in this case, prior to the
filing
of
their
proposed
bar to federal
Eleventh Amendment
prospective
declaratory or
jurisdiction erected
jurisprudence
injunctive
by the
only in
relief is
Supreme
cases
where
sought
under
federal
law.
in
Ex
parte
Young,
we
often
have
found
federal
prospective
continuing
violation
of
injunctive relief
in
order to
suit
'end
68).
doctrine
does not apply in cases where plaintiffs seek monetary relief for
past
violations
of
state
officer
sued
in his official capacity.
Hosp.
v.
Hald
-3838
These
cases
preclude
the
rescue their monetary claims against the State of Maine via their
proposed
addition
of
the
"may be
deprived of
federal court
should
recovering retroactive
not also
mean that
money
they
are
deprived
of
the
benefit
is no
continuing violation
of federal
agree
law, as
the
See
background
litigation
v.
injunctive
5.
reasons
that
also exist in this case.
noted that
monetary
relief was
not
available because
Id. at 73.
it
was
Second,
the
Court
explained
that
law
available."
to
enjoin
Id. at
71.
in this
case,
Third, the
an
injunction
is
not
had
an
instances."
Id.
at
72.
award of
resolving the
declaratory judgment
dispute over the
. .
. would
past lawfulness of
be useful
respondent's
in
as
judicata
on
the
Id. at 73.
"the
issuance of a declaratory
would
or
restitution
Id.
In
view
of
case,
note Mansour's
we cannot
help
but
admonition
this
that
-4040
"a
partial
'end
Ex
Id.
probation
continuing
violation
in
Secretary
of Labor
to
seek
injunctive
relief,
limiting
employees
to
suits
for
unpaid wages and liquidated damages.
U.S.C. SS 216,
See 29
Tools,
Inc., 666 F.2d 148, 155-56 (5th Cir. 1982) (reviewing legislative
history).
appellants'
explained in Seminole
As
the
has
hesitate
action
against
a
state officer based upon Ex parte Young."
116 S. Ct. at
1132.7
In sum,
with no right on
probation officers
to seek
continuing violation
clearly apparent
7.
retroactive money
to justify injunctive
right on
the part
of the
plaintiff
damages, with
no
no
plaintiffs to
seek
See Wilson-Jones,
injunctive relief
even if a
present,
purpose.
See
474
U.S.
at 73.
relief in this case now would be for the purpose of asserting res
judicata in state court
proceedings.
As we saw above,
however,
Mansour
money
state
court
proceeding
into
a
Supreme
Court
Id.
has
identified
granting a motion to
amend.
range
of
amendment,
See Foman
v.
178,
182
to say
that
the panoply
of
legal arguments
to amend to
we
have
officers'
fails
under
more
than one prong of the Foman standard.
declaratory judgment is unavailable
In particular, a
parties
8.
This case thus differs from one that the Third Circuit
Conclusion
remove state
employees from
of
the
the
aegis of
FLSA
that
purports
to
the FLSA.
In
no
only relates to
give
federal
that
courts
jurisdiction
over
we conclude that
Costs to appellee.
the
matter
plaintiffs-appellants'
-4343