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EMPLOYEES DEPARTMENT PUBLIC HEALTH AND WELFARE MISSOURI ET AL. v. DEPARTMENT PUBLIC HEALTH AND WELFARE MISSOURI ET AL.

decided: April 18, 1973.

EMPLOYEES OF THE DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI ET AL
v.
DEPARTMENT OF PUBLIC HEALTH AND WELFARE OF MISSOURI ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and Rehnquist, JJ., joined. Marshall, J., filed an opinion concurring in the result, in which Stewart, J., joined, post, p. 287. Brennan, J., filed a dissenting opinion, post, p. 298.

Author: Douglas

[ 411 U.S. Page 280]

 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;*fn1 C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109-110 (1972).

[ 411 U.S. Page 281]

     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.

[ 411 U.S. Page 282]

     (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. Wirtz, 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 . . . ."

[ 411 U.S. Page 284]

     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 non-consenting 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.*fn2

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

[ 411 U.S. Page 285]

     action silently. The dramatic circumstances of the Parden 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 FELA, 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 FLSA, 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

[ 411 U.S. Page 286]

     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 Parden, "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

[ 411 U.S. Page 287]

     case in light of Art. III and the Eleventh Amendment? Portions of the Court's opinion convey the impression that these questions are but a single issue.*fn2 I do not agree.

Sovereign immunity is a common-law doctrine that long predates our Constitution and the Eleventh Amendment, although it has, of course, been carried forward in our jurisprudence.*fn3 While the present-day immunity of a State from suit by its own citizens or by citizens of another State in the absence of consent obviously cannot be justified on the common-law rationale that "the King can do no wrong," the principle has been said to be applicable to the States because of "the inherent nature of sovereignty," Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 51 (1944). See also Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).

The common-law doctrine of sovereign immunity in its original form stood as an absolute bar to suit against a State by one of its citizens, absent consent. But that doctrine was modified pro tanto in 1788 to the extent that the States relinquished their sovereignty to the Federal Government. At the time our Union was formed, the States, for the good of the whole, gave certain powers to Congress, including power to regulate commerce, and by so doing, they simultaneously subjected to congressional control that portion of their pre-existing common-law sovereignty which conflicted with those supreme powers given over to Congress. This is one of the essential lessons of the decision in Parden v. Terminal R. Co., 377 U.S. 184, 192 (1964), where the Court recognized that "by empowering Congress to regulate commerce

[ 411 U.S. Page 289]

     . . . the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation." Congress having validly exercised its power under the Commerce Clause to extend the protection of the FLSA to state employees such as petitioners, see Maryland v. Wirtz, 392 U.S. 183 (1968), the State may not defeat this suit by retreating behind its common-law shield of sovereign immunity.

Insofar as the Court may now be suggesting that the Congress has not effectively lifted the State's immunity from private suit in the context of the FLSA, I cannot agree. In the 1966 amendments, § 3 (d), 29 U. S. C. § 203 (d), which defines "employer" for the purposes of the FLSA was altered to cover expressly "employees of a State, or a political subdivision thereof, employed . . . in a hospital, institution, or school . . . ."*fn4 In the face of such clear language, I find it impossible to believe that Congress did not intend to extend the full benefit of the provisions of the FLSA to these state employees.*fn5 It is true -- as the Court points out -- that in 1966 Congress did not amend § 16 (b) of the Act, 29 U. S. C. § 216 (b), which provides for private suit by the "employee" against the "employer" to recover unpaid compensation. But this is readily explained by the fact that no amendment to the language of § 16 (b) was necessary to make the desired extension to state employees; the

[ 411 U.S. Page 290]

     alteration of the definition of "employer" in § 3 (d) clearly sufficed to achieve Congress' purpose*fn6 and to express its will. Indeed, to suggest that § 16 (b) may not provide for suit by state employees, despite the alteration of § 3 (d) to include state employers, ignores the basic canon of statutory construction that different provisions of the same statute normally should be construed consistently with one another. See, e. g., Clark v. Uebersee Finanz-Korporation, A. G., 332 U.S. 480, 488 (1947); Markham v. Cabell, 326 U.S. 404, 410-411 (1945); Ex parte Public National Bank, 278 U.S. 101, 104 (1928).

There remains, though, the question, where may these petitioners enforce against the State their congressionally created rights under the FLSA? Section 16 (b) authorizes employee suits "in any court of competent jurisdiction." Has Congress thus successfully compelled the State in this case to submit to employee suits in federal court?

The Eleventh Amendment 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."

On its face the Amendment, of course, makes no mention of a citizen's attempt to sue his own State in federal court, the situation with which we deal here. Nevertheless, I believe it clear that the judicial power of the

[ 411 U.S. Page 291]

     United States does not extend to suits such as this, absent consent by the State to the exercise of such power. This question was first considered in Hans v. Louisiana, 134 U.S. 1 (1890), where a federal court action was brought against a State by one of its citizens who claimed that it had unconstitutionally repudiated certain debt obligations in violation of the Contract Clause of Art. I, § 10. Mr. Justice Bradley, speaking for the Court, observed that the suit was "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of," and he then asked:

"Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in the federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled?" Id., at 15.

The Court rejected such a suggestion in Hans, and it has continued to do so ever since. See Duhne v. New Jersey, 251 U.S. 311 (1920); Fitts v. McGhee, 172 U.S. 516, 524-525 (1899); North Carolina v. Temple, 134 U.S. 22 (1890).

The root of the constitutional impediment to the exercise of the federal judicial power in a case such as this is not the Eleventh Amendment but Art. III of our Constitution. Following the decision in Chisholm v. Georgia, 2 Dall. 419 (1793), in which this Court held that federal jurisdiction encompassed a suit brought against a non-consenting State by citizens of another State, the Eleventh Amendment was introduced to clarify the intent of the Framers concerning the reach of the federal judicial power. See, e. g., Hans v. Louisiana, 134 U.S., at 11-14. It had been widely ...


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