Affirmed by published opinion. Senior Judge Phillips wrote the majority opinion, in which Judge Mumaghan joined. Senior Judge Butzner wrote a dissenting opinion.
[184]*184OPINION
PHILLIPS, Senior Circuit Judge:
The question is whether the Eleventh Amendment provides immunity to suit for the Commonwealth of Virginia (“the Commonwealth”) in actions filed against it in federal court by state employees seeking to recover damages for wage and overtime violations . of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as amended. The district court, rejecting contentions that the Commonwealth’s immunity had been constitutionally abrogated by Congress under enforcement powers conferred by Section 5 of the Fourteenth Amendment or, alternatively, had been waived by the Commonwealth, dismissed the action for lack of subject matter jurisdiction. We affirm.
I.
Employees of twenty-one Virginia state prison and mental health facilities1 filed separate actions against the Commonwealth in the United States District Courts for the Eastern and Western Districts of Virginia, alleging violations of the FLSA in various respects affecting their, compensation as state employees.2 On July 10, 1995, the district court denied the Commonwealth’s motion to dismiss the then-consolidated actions on Eleventh Amendment jurisdictional grounds, holding that under Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), Congress had the power under the Commerce Clause unilaterally to abrogate the states’ Eleventh Amendment immunity to federal FLSA actions and had unequivocally done so by its 1974 amendments to that Act. See 949 F.Supp. 438, 440 (W.D.Va.1996) (reciting procedural history).
Following an unsuccessful effort by the Commonwealth to obtain interlocutory review of that decision, and while the consolidated actions were pending disposition in the district court, the Supreme Court overruled Union Gas, holding in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), that Congress did not have power under Article I of the Constitution unilaterally to abrogate the Eleventh Amendment immunity of noncon-senting states to suits in federal court for the recovery of monetary relief.
The district court then directed the parties to re-brief the issue of Eleventh Amendment immunity in light of Seminole Tribe. Responding, the Commonwealth moved, with supporting briefs, for reconsideration of its motion to dismiss, relying on Seminole Tribe as dispositive of the issue in its favor. The employees, resisting the Commonwealth’s motion, contended that Congress’s express abrogation of the states’ Eleventh Amendment immunity was yet constitutionally valid as an exercise of its enforcement powers under Section 5 of the Fourteenth Amendment. Alternatively, they contended that, in any event, the Commonwealth had waived its immunity by participating in federal regulated activity. And finally, contending that the Commonwealth may have waived its immunity by participating in federal programs that require contractual waivers, they moved for leave to conduct limited discovery respecting that possibility.
Following a hearing on the parties’ cross-motions, the district court ruled in the Commonwealth’s favor on each point, holding that Congress’ attempted abrogation of the Commonwealth’s Eleventh Amendment immunity to FLSA claims for monetary relief was not authorized as an exercise of enforcement powers conferred by Section 5 of the Fourteenth Amendment; that the Commonwealth had not, as a matter of law, waived its immunity by participating in federal regulated activity; and, as a matter of the court’s discretion, that discovery as to possible contractual waivers would not be allowed. Accordingly, the district court dismissed the actions for lack of subject matter jurisdiction.
[185]*185This appeal followed. On it, the employees challenge each of the district court rulings above identified. We take them in turn.
II.
We first consider whether, as the district court held, Congress’s attempted abrogation of the states’ (hence here the Commonwealth’s) Eleventh Amendment immunity to private FLSA damage suits was unconstitutional. Conceding that under Seminole THbe abrogation could not be upheld as an exercise of Article I Commerce Clause powers (the source expressly invoked by Congress), the employees contend that the requisite power can be found in the enforcement provision, Section 5, of the Fourteenth Amendment.3 Specifically, the contention is that abrogation was effective as an exercise of Section 5 power because it served to enforce two rights protected by the Fourteenth Amendment: (1) primarily, the Equal Protection Clause right not to be subjected to invidious discrimination by a state’s unequal treatment of comparably situated classes of persons, here that of private-sector and public-sector employees resulting from Eleventh Amendment immunity, and (2) an alleged First Amendment right of access to the courts as incorporated in the Fourteenth Amendment. See Appellants’ Brief pp. 15, 16.4
Because we think that the employees’ “right of access” contention is essentially subsumed in their equal protection contention (the only unequal treatment relied upon being that respecting access to the federal forum), we consider the abrogation issue as confined to that created by the employees’ equal protection contention. As so confined,5 we review it de novo. See Harter v. Vernon, 101 F.3d 334, 336-37 (4th Cir.1996). Though it is one of first impression in this court, four of our sister circuits have addressed it and each has held, rejecting comparable state-employee contentions, that the attempted abrogation cannot be upheld as an exercise of [186]*186Section 5 power to enforce Equal Protection Clause rights. See Mills v. Maine, 118 F.3d 37, 43-49 (1st Cir.1997); Raper v. Iowa, 115 F.3d 623, 624 (8th Cir.1997); Aaron v. Kansas, 115 F.3d 813, 817 (10th Cir.1997); Wilson-Jones v. Caviness, 99 F.3d 203, 206-11 (6th Cir.1997), amended on other grounds by 107 F.3d 358 (6th Cir.1997); see also Powell v. Florida, 132 F.3d 677, 678 (11th Cir.1998) (per curiam) (semble).6 We now join those circuits in so holding.
Between them, these other courts of appeal have thoroughly canvassed the issue and come to the same conclusion, though by varying depths of analysis and by somewhat different reasoning at a few points.7Because we agree with their common conclusion and with the essentials of them common reasoning to it, we need not attempt a wholesale re-invention of the wheel and will simply summarize the salient points of their common reasoning with which we agree, expanding somewhat at the end-stage of the analysis.
The determination whether in enacting the 1974 amendments to the FLSA Congress validly abrogated the states’ Eleventh Amendment immunity to private FLSA suits in federal court turns on two questions: “whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity’ ” and “whether Congress has acted ‘pursuant to a valid exercise of power.’” Seminole Tribe, 116 S.Ct. at 1123, 116 S.Ct. 1114 (quoting Green v.
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Affirmed by published opinion. Senior Judge Phillips wrote the majority opinion, in which Judge Mumaghan joined. Senior Judge Butzner wrote a dissenting opinion.
[184]*184OPINION
PHILLIPS, Senior Circuit Judge:
The question is whether the Eleventh Amendment provides immunity to suit for the Commonwealth of Virginia (“the Commonwealth”) in actions filed against it in federal court by state employees seeking to recover damages for wage and overtime violations . of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as amended. The district court, rejecting contentions that the Commonwealth’s immunity had been constitutionally abrogated by Congress under enforcement powers conferred by Section 5 of the Fourteenth Amendment or, alternatively, had been waived by the Commonwealth, dismissed the action for lack of subject matter jurisdiction. We affirm.
I.
Employees of twenty-one Virginia state prison and mental health facilities1 filed separate actions against the Commonwealth in the United States District Courts for the Eastern and Western Districts of Virginia, alleging violations of the FLSA in various respects affecting their, compensation as state employees.2 On July 10, 1995, the district court denied the Commonwealth’s motion to dismiss the then-consolidated actions on Eleventh Amendment jurisdictional grounds, holding that under Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), Congress had the power under the Commerce Clause unilaterally to abrogate the states’ Eleventh Amendment immunity to federal FLSA actions and had unequivocally done so by its 1974 amendments to that Act. See 949 F.Supp. 438, 440 (W.D.Va.1996) (reciting procedural history).
Following an unsuccessful effort by the Commonwealth to obtain interlocutory review of that decision, and while the consolidated actions were pending disposition in the district court, the Supreme Court overruled Union Gas, holding in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), that Congress did not have power under Article I of the Constitution unilaterally to abrogate the Eleventh Amendment immunity of noncon-senting states to suits in federal court for the recovery of monetary relief.
The district court then directed the parties to re-brief the issue of Eleventh Amendment immunity in light of Seminole Tribe. Responding, the Commonwealth moved, with supporting briefs, for reconsideration of its motion to dismiss, relying on Seminole Tribe as dispositive of the issue in its favor. The employees, resisting the Commonwealth’s motion, contended that Congress’s express abrogation of the states’ Eleventh Amendment immunity was yet constitutionally valid as an exercise of its enforcement powers under Section 5 of the Fourteenth Amendment. Alternatively, they contended that, in any event, the Commonwealth had waived its immunity by participating in federal regulated activity. And finally, contending that the Commonwealth may have waived its immunity by participating in federal programs that require contractual waivers, they moved for leave to conduct limited discovery respecting that possibility.
Following a hearing on the parties’ cross-motions, the district court ruled in the Commonwealth’s favor on each point, holding that Congress’ attempted abrogation of the Commonwealth’s Eleventh Amendment immunity to FLSA claims for monetary relief was not authorized as an exercise of enforcement powers conferred by Section 5 of the Fourteenth Amendment; that the Commonwealth had not, as a matter of law, waived its immunity by participating in federal regulated activity; and, as a matter of the court’s discretion, that discovery as to possible contractual waivers would not be allowed. Accordingly, the district court dismissed the actions for lack of subject matter jurisdiction.
[185]*185This appeal followed. On it, the employees challenge each of the district court rulings above identified. We take them in turn.
II.
We first consider whether, as the district court held, Congress’s attempted abrogation of the states’ (hence here the Commonwealth’s) Eleventh Amendment immunity to private FLSA damage suits was unconstitutional. Conceding that under Seminole THbe abrogation could not be upheld as an exercise of Article I Commerce Clause powers (the source expressly invoked by Congress), the employees contend that the requisite power can be found in the enforcement provision, Section 5, of the Fourteenth Amendment.3 Specifically, the contention is that abrogation was effective as an exercise of Section 5 power because it served to enforce two rights protected by the Fourteenth Amendment: (1) primarily, the Equal Protection Clause right not to be subjected to invidious discrimination by a state’s unequal treatment of comparably situated classes of persons, here that of private-sector and public-sector employees resulting from Eleventh Amendment immunity, and (2) an alleged First Amendment right of access to the courts as incorporated in the Fourteenth Amendment. See Appellants’ Brief pp. 15, 16.4
Because we think that the employees’ “right of access” contention is essentially subsumed in their equal protection contention (the only unequal treatment relied upon being that respecting access to the federal forum), we consider the abrogation issue as confined to that created by the employees’ equal protection contention. As so confined,5 we review it de novo. See Harter v. Vernon, 101 F.3d 334, 336-37 (4th Cir.1996). Though it is one of first impression in this court, four of our sister circuits have addressed it and each has held, rejecting comparable state-employee contentions, that the attempted abrogation cannot be upheld as an exercise of [186]*186Section 5 power to enforce Equal Protection Clause rights. See Mills v. Maine, 118 F.3d 37, 43-49 (1st Cir.1997); Raper v. Iowa, 115 F.3d 623, 624 (8th Cir.1997); Aaron v. Kansas, 115 F.3d 813, 817 (10th Cir.1997); Wilson-Jones v. Caviness, 99 F.3d 203, 206-11 (6th Cir.1997), amended on other grounds by 107 F.3d 358 (6th Cir.1997); see also Powell v. Florida, 132 F.3d 677, 678 (11th Cir.1998) (per curiam) (semble).6 We now join those circuits in so holding.
Between them, these other courts of appeal have thoroughly canvassed the issue and come to the same conclusion, though by varying depths of analysis and by somewhat different reasoning at a few points.7Because we agree with their common conclusion and with the essentials of them common reasoning to it, we need not attempt a wholesale re-invention of the wheel and will simply summarize the salient points of their common reasoning with which we agree, expanding somewhat at the end-stage of the analysis.
The determination whether in enacting the 1974 amendments to the FLSA Congress validly abrogated the states’ Eleventh Amendment immunity to private FLSA suits in federal court turns on two questions: “whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity’ ” and “whether Congress has acted ‘pursuant to a valid exercise of power.’” Seminole Tribe, 116 S.Ct. at 1123, 116 S.Ct. 1114 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)).
The 1974 amendments to the FLSA contain the required unequivocal expression of Congress’s intent to abrogate that immunity. See 29 U.S.C. § 203(d) (“Employer” defined to “inelude[ ] a public agency”); § 203(e)(2)(C) (“individual employed by a public agency” defined to mean “employed by a State”); § 216(b) (“action [for FLSA violation] ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction ... ”); Mills, 118 F.3d at 42 (citing other decisions so holding).
Although in enacting the 1974 abrogation amendments Congress expressly invoked only the same Commerce Clause powers it invoked to enact the original and amending substantive FLSA provisions, that, standing alone, does not preclude a judicial determination that the attempted abrogation was effective as an exercise of Section 5 power. It is settled that abrogation may, in appropriate circumstances, be effected under the Section 5 power. See Fitzpatrick v. Bitzer, 427 U.S. 445, 453-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). And, under general principles of constitutional adjudication, such abrogation does not require that a specific provision be invoked as the source of congressional power. See Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 68 S.Ct. 421, 92 L.Ed. 596 (1948) (“The question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”); Usery v. Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir.1977) (question identified as “whether Congress had the authority to adopt the legislation, not whether it correctly guessed the source of that power”) (citation omitted).
Whether an attempted abrogation may be upheld under Congress’s Section 5 enforcement powers — expressly invoked or not — is determined under the general “appropriate means” test first laid down to define the reach of the Necessary and Proper Clause, Art. 1, § 8, cl. 18, in M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316, 421, 4 L.Ed. 579 (1819),8 as later specifically applied [187]*187to the reach of the enforcement provisions of the Reconstruction Amendments in Ex parte Virginia, 100 U.S. 339, 345-46, 25 L.Ed. 676 (1879),9 of the Fifteenth Amendment in South Carolina v. Katzenbach, 383 U.S. 301, 324 & 326, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), and even more specifically to the reach of Section 5 as a means of enforcing equal protection rights in Katzenbach v. Morgan, 384 U.S. 641, 650-51, 86 S.Ct. 1731, 16 L.Ed.2d 828 (1966).10Though the test has always been ascribed over this course of applications to its origins in M’Culloch, its exact formulation has varied over time. In its most recent and specifically relevant formulation for application to the abrogation issue before us, the test was expressed in Morgan as being whether the enactment in question (1) “may be regarded as an enactment to enforce the Equal Protection Clause”; (2) “is ‘plainly adapted to that end’ ”; and (3) “is not prohibited by but is consistent with the ‘letter and spirit of the Constitution.’ ” Morgan, 384 U.S. at 651, 86 S.Ct. 1731 (quoting M’Culloch, 17 U.S. at 421).11
Applying the test as most recently and relevantly expressed in Morgan, the attempted abrogation here at issue fails that test’s first requirement: it may not properly “be regarded as an enactment to enforce the Equal Protection Clause.” True, it would in the end remove an inequality of treatment of different classes of persons. True, though that inequality might not itself involve a constitutional violation, it need not do so in order to fall within the prophylactic reach of the Section 5 enforcement power. See Morgan, 384 U.S. at 651, 86 S.Ct. 1731; Mills, 118 F.3d at 46. But, it cannot be that Congress’s Section 5 enforcement power may “appropriately” be exercised — even for prophylactic purposes — to eradicate every classification of persons imposed (or allowed to continue if externally imposed) by a state. See Oregon v. Mitchell, 400 U.S. 112, 127, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (“Nor was the Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every discrimination between groups of people.”).
Though that basic proposition may be thought self-evident from the very use of the term “appropriate” in enforcement section text- and judicial rule, the limits on enforcement power that it implies surely are not— either from constitutional text or judicial decision. Seeking the limits elsewhere, we agree with the First and Sixth Circuits that they are to be found by considering, in light of developed equal protection jurisprudence, whether the particular inequality targeted by the attempted abrogation is such as to justify [188]*188congressional elimination as a means of enforcing Equal Protection Clause guarantees. See Mills, 118 F.3d at 46-47; Wilson-Jones, 99 F.3d at 209-10.
Without recapitulating in full the familiar hierarchy of equal treatment interests and corresponding protections that has emerged in equal protection jurisprudence, it suffices to observe that the inequality targeted by the attempted abrogation here does not involve any interest at the core of developed equal protection concerns. Public-sector employees are not a recognized “suspect” or “quasi-suspect” group, nor is their interest in any guaranteed level of wages a “fundamental” one. Consequently, the Equal Protection Clause would only afford protection against unequal treatment respecting public-sector employees’ entitlement to, or means of securing, FLSA wages if it resulted from arbitrary state action — action that has no rational basis. See Mills, 118 F.3d at 46-47; Wilson-Jones, 99 F.3d at 210. That limited measure of protection therefore defines the end “comprehended by” the Equal Protection Clause, see South Carolina, 383 U.S. at 324 & 326, 86 S.Ct. 803, for guarding against such a non-core inequality of treatment and, accordingly, the limited power of Congress acting under Section 5 to eliminate or prohibit the inequality. To the extent this particular inequality of treatment cannot be laid to arbitrary, irrational state action, an attempt to eliminate it by abrogation, could not therefore be “regarded as an enactment to enforce the Equal Protection Clause.” Morgan, 384 U.S. at 651, 86 S.Ct. 1731.
The specific inequality of treatment here at issue — that resulting from the Commonwealth’s Eleventh Amendment immunity to FLSA damage suits in federal court by pub-lie-sector, but not private-sector, employees — cannot be laid to any arbitrary, irrational state action. In the first place, it concerns only legal process — access to a federal judicial forum — and not the underlying substantive entitlement to FLSA-mandated wages as to which equality of treatment is already ensured for both groups by substantive provisions of the FLSA as enacted under Congress’s Commerce Clause powers. While it is true that in appropriate circumstances the Section 5 power extends to the removal, by abrogation, of precisely this forum-access inequality, see Fitzgerald, just as it extends to the removal of substantive inequalities, see, e.g., Morgan, we think a proper question whenever abrogation is sought to be upheld as an exercise of Section 5 powers is whether legislation removing a related substantive inequality could be upheld on that basis. Put another way, we do not believe that abrogation of Eleventh Amendment immunity to particular actions could be upheld as an appropriate exercise of Section 5 power to enforce the Equal Protection Clause unless legislation to remove a related, underlying substantive inequality could be upheld on that basis. Here, that would require asking whether the FLSA amendments of 1960 and 1966 that extended substantive coverage to public-sector employees could have been upheld as an appropriate exercise of Section 5 powers. They were not upheld on that basis, but as an appropriate exercise of Commerce Clause powers. See Maryland v. Wirtz, 392 U.S. 183, 188-99, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). Whether they could also have been upheld under Section 5 has not, therefore, required decision. We are satisfied that they could not be so upheld, because we do not believe that even the provision by state action of unequal minimum wage guarantees for public sector and private-sector employees could ordinarily be found arbitrary and unreasonable. As the First Circuit pointed out in Mills, “[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.” 118 F.3d at 48. Differentiation on the basis of such practical economic and public financing concerns could not easily be considered arbitrary.
If such substantive inequality of treatment by a state could not be considered for equal protection purposes to be arbitrary and unreasonable, hence subject to elimination by Congress under its Section 5 powers, we are satisfied that even less so could be state action whose only effect is to impose (or [189]*189permit continuation of) an inequality of legal process (not amounting to total preclusion) to vindicate those substantive interests.
Accordingly, we conclude, affirming the district court’s ruling, that the attempted abrogation by Congress of the states’ Eleventh Amendment immunity to FLSA suits by state employees cannot be upheld as an exercise of Section 5 enforcement powers.
III.
We next consider the employees’ fall-back contention that the Commonwealth has implicitly, or constructively, waived, or may have waived, its Eleventh Amendment immunity and consented to suit on these FLSA claims.12 Specifically, the employees invoke two theories of implied waiver/consent: (1) waiver by operating these facilities after Congress had first extended FLSA coverage to state employees, then clearly stated its intent in the 1974 FLSA amendments that the Commonwealth’s employees should be able to sue it on FLSA claims in federal court (“regulated activity” theory); and (2) waiver by participating in federally-funded programs as to which Congress had expressly conditioned participation on the state’s consenting to suit in federal court (“exacted consent” theory). As to the “regulated activity” theory, the employees contend that it should now be applied as a matter of law to defeat the Commonwealth’s immunity defense, the facts for its application being undisputed on the present record. As to the “exacted consent” theory, the employees contend that the facts may be there to support it in the form of consenting documents in the Commonwealth’s possession, and that they should be entitled to discovery to determine whether they do exist. The district court rejected both contentions. We agree with its conclusions as to each.
A.
The “active participation” contention traces back to the doctrine first applied in Parden v. Terminal Ry., 377 U.S. 184, 192, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), to hold that by beginning to operate an interstate railroad twenty years after Congress had enacted, under its Commerce Clause power, the Federal Employers’ Liability Act (FELA), the State of Alabama had impliedly consented to being sued in federal court by its injured railroad employees on FELA claims.13 Assuming that after Seminole Tribe the Parden doctrine of implied waiver by a state’s participation in activities regulated under the Commerce Clause has continued vitality, a matter not wholly free of doubt,14 developments since Parden have [190]*190made clear the theory’s inapplicability in any event to the facts here in issue. Not long-after Parden was decided, the Supreme Court, noting that that case concerned “a rather isolated state activity,” a “railroad business ... operated ’for profit’ ” in an “area where private persons and corporations normally ran the enterprise,” declined to extend its waiver by participation theory to find an implied waiver of immunity to FLSA suits in Missouri’s continued operation of non-profit hospitals and other facilities after FLSA coverage was extended to state employees. Employees of Department of Public Health & Welfare v. Department of Public Health & Welfare, (Missouri Employees ), 411 U.S. 279, 284-85, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). Noting that to imply consent in respect of such traditionally governmental operations would involve consent to suit by all employees, high and low, “in a state’s governmental hierarchy,” the Court declined to find waiver. The obvious rationale was that such a wide-ranging waiver could not fairly be implied from no more than a state’s continued employment of people to conduct traditional governmental operations, there being no real choice in the matter. Though Missouri Employees was decided before Congress plainly expressed in 1974 its intent that such suits should be allowed, the Missouri Employees rationale surely must survive that expression of Congressional intent. It remains the case that the Commonwealth has done no more in the aftermath of Congress’s attempted abrogation of its immunity to FLSA suits (an attempt we have now found ineffectual in any event).15We therefore agree with the Second Circuit which, on that rationale, declined to find an implied waiver simply in New York’s continuation of traditional non-commercial governmental operations following the FLSA’s extension to public employers and Congress’s later attempt to abrogate immunity to FLSA suits. See Close, 125 F.3d at 40 (holding that because “New York had employees before the enactment of the FLSA and before it was made applicable to the States, its continued status as an employer cannot realistically be construed as a waiver of immunity”) (footnote omitted); see also Digiore, 962 F.Supp. at 1075-76 (noting that as to such essential governmental functions, “[a] state can hardly manifest consent to suit by ... hiring and paying its- employees” “activities that the state has but little choice to engage in”).16
B.
As indicated, the employees’ contention in reliance on the “exacted consent” theory of implied waiver is not that the evidence of record now demonstrates such a waiver, but that because there may have been such consent, they should be allowed discovery to pursue the possibility. The district court denied their motion for the discovery sought and we find no abuse of discretion in that ruling.
Assuming, as we did with respect to the waiver-by-participation contention, that waiver by exacted consent remains a viable doctrine after Seminole Tribe, it would require [191]*191here a showing (1) that Congress had validly funded a program or programs available for administration by the states in the operation of their prison and mental health facilities, and in doing so had unambiguously conditioned receipt of the federal funding upon the states’ waiver of immunity to FLSA suits by employees of those facilities, and (2) that the Commonwealth had received such funding and properly given the consent required as a condition of its receipt. See generally Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); College Bank, 131 F.3d at 362-63.
The district court denied the motion for discovery on the basis that to warrant it the employees must have made at least a “color-able showing of waiver,” and that here they had not done so. Specifically, the court rightly pointed out that it would not suffice to prove waiver if discovery revealed no more than that the Commonwealth had participated in federal programs in connection with which it had agreed to comply with all relevant federal laws, including even the, FLSA. See Florida Dep’t. of Health and Rehabilitative Services v. Florida Nursing Home Ass’n., 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981). And, the court noted that the employees had identified no specific federally funded program in which the Commonwealth participates that specifically requires waiver as a condition to participation or receipt of funds. Under these circumstances, the court concluded that because the Eleventh Amendment protects states not only from liability, but from “the indignity of ... coercive process of judicial tribunals at the instance of private parties,” discovery should only be permitted upon a colorable showing of waiver not made here. Seminole Tribe, 116 S.Ct. at 1124 (quoting Puerto Rico Aqueduct and Sewer Authority v. Metcalf and Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (internal quotation omitted)). We find no abuse of discretion in that ruling. See Mills, 118 F.3d at 50 (so holding on comparable reasoning).
rv.
We therefore affirm the district court’s rulings that Congress’s attempted abrogation in 1974 of the states’ immunity from FLSA damage suits in federal court was not a valid exercise of its power under the Commerce Clause nor under the enforcement powers conferred by Section 5 of the Fourteenth Amendment; that the Commonwealth had not been proven to have impliedly waived its immunity to such suits; and that the employees’ motion for discovery should be denied. Accordingly, we affirm the district court’s judgment dismissing the employees’ actions.17
AFFIRMED.