Employees of Department of Public Health v. Department of Public Health

411 U.S. 279, 93 S. Ct. 1614, 36 L. Ed. 2d 251, 1973 U.S. LEXIS 156, 5 Empl. Prac. Dec. (CCH) 8566

• Court: Supreme Court of the United States
• Decided: April 18, 1973
• Docket: 71-1021
• Status: Published

Opinions

Mr. Justice Douglas

delivered the opinion of the Court.

The Eleventh Amendment, adopted in 1795, and formally ratified in 1798, provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Eleventh Amendment is the basis of a motion by Missouri to dismiss a complaint filed by employees of state agencies of that State, the Department of Public Health and Welfare, and two of its divisions, the Division of Mental Disease and the Division of Health, and various officials of the Department and of the two Divisions.

Although the Eleventh Amendment is not literally applicable since petitioners who brought suit are citizens of Missouri, it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. See Hans v. Louisiana, 134 U. S. 1; Duhne v. New Jersey, 251 U. S. 311; Parden v. Terminal R. Co., 377 U. S. 184;¹ C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109-110 (1972).

The employees seek overtime compensation due them under § 16 (b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 216 (b), and an equal amount as liquidated damages and attorneys’ fees. The District Court dismissed the complaint. The Court of Appeals, sitting in a panel of three, reversed, one judge dissenting. No. 20,204, Apr. 2, 1971 (not reported). On the filing of a petition for rehearing, the Court of Appeals sat en banc and by a closely divided vote set aside the panel decision and affirmed the judgment of the District Court. 452 F. 2d 820. The case is here on a petition for a writ of certiorari which we granted. 405 U. S. 1016.

The panel of three thought the present case was governed by Parden v. Terminal R. Co., supra. The court sitting en banc thought Parden was distinguishable. That is the central issue argued in the present case.

Farden involved a state-owned railroad operating in interstate commerce; and the claims were those of employees under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq. The term carrier for purposes of that Act was defined by Congress as including “[e]very common carrier by railroad while engaging in commerce between any of the several States.” Id., § 51. The Court concluded that Congress designed to bring state-owned, as well as privately owned, carriers within that definition and that it was empowered to do so by the Commerce Clause. The State’s operation of its railroad in interstate commerce, it held, was in subordination to the power of Congress to regulate interstate commerce and application of the FELA to a State in those circumstances was not precluded by sovereign immunity. 377 U. S., at 191-193. The Farden case in final analysis turned on the question of waiver, a majority of the Court holding that it was a federal question since any consent of the State to suit did not arise from an act “wholly within its own sphere of authority” but in the area of commerce, which is subject to pervasive federal regulation. Id., at 196.

It is said that the Fair Labor Standards Act (FLSA) stands on the same foundation, reflecting the power of Congress to regulate conditions of work of those producing goods for commerce, United States v. Darby, 312 U. S. 100, and those whose activities are necessary to the production of goods for commerce. Kirschbaum Co. v. Walling, 316 U. S. 517, 524. By § 3 (d) of the Act, “employer” was first defined to exclude the United States or any State or political subdivision of a State. But in 1966 there was added to § 3 (d) an “except” clause which reads “except with respect to employees of a State, or a political subdivision thereof, employed (1) in a hospital, institution, or school referred to in the last sentence of subsection (r) of this section . . . .” Section 3 (r) was amended at the same time to include: “the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit) . . . Identical language was also added in 1966 to subsection 3 (s), which defines “ [enterprise engaged in commerce or in the production of goods for commerce.”

By reason of the literal language of the present Act, Missouri and the departments joined as defendants are constitutionally covered by the Act, as the Court held in Maryland v. Wirts, 392 U. S. 183. The question is whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court — a question we reserved in Maryland v. Wirtz, supra, at 199-201.

There is no doubt that Congress desired to bring under the Act employees of hospitals and related institutions. S. Rep. No. 1487, 89th Cong., 2d Sess., 8, 22-23; H. R. Rep. No. 1366, 89th Cong., 2d Sess., 3, 11-12, 15, 16-17, 18. But § 16 (b) remained the same. Prior to 1966 and afterward, it read in relevant part:

“Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction . . . .”

The history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State. Parden involved the railroad business which Alabama operated “for profit.” 377 U. S., at 185. Parden was in the area where private persons and corporations normally ran the enterprise.

State mental hospitals, state cancer hospitals, and training schools for delinquent girls which are not operated for profit are not proprietary. “Before 1810, only a few eastern-seaboard states had incorporated private institutions to care for the mentally ill, and Virginia alone had established a public asylum.” D. Rothman, The Discovery of the Asylum 130 (1971)., But, as Rothman relates, after that the public sector took over.²

Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such action silently. The dramatic circumstances of the Par-den case, which involved a rather isolated state activity can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State’s governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, supra, and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be.

But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts. The Parden opinion did state that it would be “surprising” to learn that Congress made state railroads liable to employees under the PELA, yet provided “no means by which that liability may be enforced.” 377 U. S., at 197. It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16 (b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum.

By holding that Congress did not lift the sovereign immunity of the States under the PLSA, we do not make the extension of coverage to state employees meaningless. Cf. Parden v. Terminal R. Co., supra, at 190. Section 16 (c) gives the Secretary of Labor authority to bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA. Once the Secretary acts under § 16 (c), the right of any employee or employees to sue under § 16' (b) terminates. Section 17 gives the Secretary power to seek to enjoin violations of the Act and to obtain restitution in behalf of employees. Sections 16 and 17 suggest that since private enforcement of the Act was not a paramount objective, disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States. For suits by the United States against a State are not barred by the Constitution. See United States v. Mississippi, 380 U. S. 128,140-141. In this connection, it is not amiss to note that § 16 (b) allows recovery by employees, not only of the amount of unpaid wages, but of an equal amount as liquidated damages and attorneys’ fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress in pursuit of a harmonious federalism desired to treat the States so harshly. The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through the Secretary of Labor.

The Solicitor General, as amicus curiae, argues that Hans v. Louisiana, 134 U. S. 1, should not be construed to apply to the present case, his theory being that in Hans the suit was one to collect on coupons attaching to state bonds, while in the instant case the suit is a cause of action created by Congress and contained in § 16 (b) of the Act. It is true that, as the Court said in Harden, “the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.” 377 U. S., at 191. But we decline to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is not clear.

We are told that the FLSA in 1971 covered 45.4 million employees and nearly 2 million establishments, and that 2.7 million of these employees and 118,000 of these establishments were in state or local government employment. We are also told that less than 4% of these establishments can be investigated by the Secretary of Labor each year. The argument is that if we deny this direct federal court remedy, we in effect are recognizing that there is a right without any remedy. Section 16 (b), however, authorizes employee suits in “any court of competent jurisdiction.” Arguably, that permits suit in the Missouri courts but that is a question we need not reach. We are concerned only with the problem of this Act and the constitutional constraints on “the judicial power” of the United States.

Affirmed.

1 The dissent argues that “Parden held that a federal court determination of such suits cannot be precluded by the doctrine of sovereign immunity because the States surrendered their sovereignty to that extent when they granted Congress the power to regulate commerce.” Post, at 299. But, the plain language of the Court’s opinion in Parden belies this assertion. For example, the Court stated:

“Recognition of the congressional power to render a State suable under the FELA does not mean that the immunity doctrine, as embodied in the Eleventh Amendment with respect to citizens of other States and as extended to the State’s own citizens by the Hans case, is here being overridden. It remains the law that a State may not be sued by an individual without its consent.” 377 U. S. 184, 192. The Court then repeated that “[a] State’s immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court.” Id., at 196. As we read these passages, and clearly as the dissent in Parden read them, id., at 198, they dealt with constitutional constraints on the exercise of the federal judicial power. Moreover, if Parden was concerned merely with the surrender of common-law sovereign immunity when the States granted Congress the power to regulate commerce, it would seem unnecessary to reach the question of waiver or consent, for Congress could subject the States to suit by their own citizens whenever it was deemed necessary or appropriate to the regulation of commerce. No more would be required. But, there can be no doubt that the Court’s holding in Parden was premised on the conclusion that Alabama, by operating the railroad, had consented to suit in the federal courts under FELA. Id., at 186.

2 “Few departures from colonial practices occurred in the first forty years after independence; the insane commonly languished in local jails and poorhouses or lived with family and friends. But in the course of the next few decades, in a dramatic transformation, state after state constructed asylums. Budding manufacturing centers like New York and Massachusetts erected institutions in the 1830’s, and so did the agricultural states of Vermont and Ohio, Tennessee and Georgia. By 1850, almost every northeastern and midwestern legislature supported an asylum; by 1860, twenty-eight of the thirty-three states had public institutions for the insane. Although not all of the mentally ill found a place within a hospital, and a good number among the aged and chronic poor remained in almshouses and jails, the institutionalization of the insane became the standard procedure of the society during these years. A cult of asylum swept the country.” Ibid.