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March 27, 1997

DENNIS DIGIORE et al., Plaintiffs,
STATE OF ILLINOIS, GEORGE RYAN, both as Secretary of State and individually, and GIACOMO A. PECORARO, both as Director of the Department of Police and individually, Defendants.

The opinion of the court was delivered by: CASTILLO

 Plaintiffs are police officers employed at the Illinois Secretary of State Police Department. They have filed suit against the State of Illinois, as well as Secretary of State George Ryan and Director of Police Giacomo Pecoraro, in both their official and personal capacities, alleging that the defendants deprived them of overtime and other pay in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the Illinois Minimum Wage Act, 820 ILCS 105/1 et seq. As redress, plaintiffs request that this Court order defendants to pay the wages to which the Act entitles them, along with liquidated damages and attorneys' fees. The defendants have responded with a motion to dismiss, contending that Eleventh Amendment immunity strips the Court of subject-matter jurisdiction. This dispute requires the Court to delve into the doctrinal snare that is the Eleventh Amendment, and determine its state following the Supreme Court's latest pronouncement on sovereign immunity in Seminole Tribe v. Florida, 134 L. Ed. 2d 252, 116 S. Ct. 1114 (1996).


 The Fair Labor Standards Act ("FLSA") provides covered employees with maximum hour and minimum wage protections. Under the Act, employers are generally prohibited from imposing work weeks longer than forty hours without compensating their employees one-and-one-half times their regular wages. 29 U.S.C. § 207(a). Public agencies and their employees, at one time excluded, became subject to the Act in 1974. The Act now protects employees at state agencies unless their duties or salary render them "bona fide executive, administrative or professional" workers. Id. § 213(a)(1); see 29 C.F.R. § 541.1(1)(f).

 Digiore and the other plaintiffs hold the rank of sergeant or higher at the Illinois Secretary of State Police Department, and are compensated on an hourly basis. Compl. P 14; Pl. Resp. at 1. Their central allegation is that the defendants require them to work overtime without time-and-a-half pay. Id. P 16. In addition, plaintiffs allegedly perform numerous duties uncompensated -- working through lunch, reviewing paperwork that reporting officers generate after the shift has ended, and reporting and responding to telephone beeper calls before the shift begins. Id. P 17. Responsibility for these policies, which plaintiffs claim violate the FLSA and Illinois' Minimum Wage Law ("IMWL"), allegedly lies with Secretary Ryan and Director Pecoraro. Plaintiffs seek to hold Ryan and Pecoraro, both individually and in their official capacities, jointly and severally liable with the State of Illinois for unpaid wages, unpaid overtime, and liquidated damages, plus reasonable costs and attorneys' fees.

 Defendants have moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss this suit for lack of subject matter jurisdiction, arguing that they are immune from prosecution under the Eleventh Amendment. Defendants claim that Congress no longer has the power to abrogate state immunity under FLSA, that Illinois and its two defendant officials have not waived their immunity to suit in federal court, and that this immunity extends to Ryan and Pecoraro in their personal capacities. The Court agrees that the State of Illinois is immune to suit in federal court. But we find that, while the individual defendants likewise enjoy immunity in their official capacities, they remain personally subject to this lawsuit. Accordingly, the Court grants the defendants' l2(b)(1) motion in part, and denies it in part.


 I. Legal Standards Applicable to 12(b)(1) Motions

 Rule 12(b)(1) requires that an action be dismissed if the court lacks jurisdiction over the subject matter of the suit. Montgomery Ward & Co., Inc. v. Warehouse, Mail Order, Office, Technical & Professional Employees Union, Local 743, 911 F. Supp. 1094, 1099 (N.D. Ill. 1995). In the absence of evidence raising a fact question as to jurisdiction, the Court's inquiry is limited. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984). We simply ask whether the complaint's allegations, construed in the light most favorable to the plaintiff, are sufficient to support jurisdiction. Id. ; Bergemann v. Rhode Island, 958 F. Supp. 61, 1997 U.S. Dist. LEXIS 2636, 1997 WL 102428, at *3 (D.R.I. 1997). Although a factual dispute over jurisdiction should prompt the court to hold an evidentiary hearing and weigh the conflicting evidence to determine whether jurisdiction exists, see Bowyer v. United States Dep't of Air Force, 875 F.2d 632, 635 (7th Cir. 1989), where the jurisdictional facts "are relatively simple and substantially uncontroverted," as they are here, "the court may rule on a 12(b)(1) motion without pausing to make findings on disputed questions of fact." Bergemann, 958 F. Supp. 61, 1997 U.S. Dist. LEXIS 2636, 1997 WL 102428, at *3 (quoting Commodities Export Co. v. United States Custom Serv., 888 F.2d 431, 436 (6th Cir. 1989)) (internal quotations omitted).

 II. Legal Standards Governing Eleventh Amendment Immunity

 The Eleventh Amendment bars suits brought by private parties in federal court against unconsenting states. MSA Realty Corp. v. State of Illinois, 990 F.2d 288, 291 (7th Cir. 1993). The bar is jurisdictional, not prudential; "the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). It applies "regardless of the nature of the relief sought." Id. at 100. When state officials are named defendants, the question of immunity becomes more complicated -- the Court must ask whether "the state is the real, substantial party in interest." Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 65 S. Ct. 347 (1945). This is the case "when the action is in essence one for the recovery of money from the state," entitling the state "to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Edelman v. Jordan, 415 U.S. 651, 663, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) (quoting Ford Motor Co., 323 U.S. at 464) (internal quotations omitted). In practical terms, this means that private plaintiffs may not sue state officials requesting money damages or seeking injunctive relief that would require retroactive payments from the state treasury. MSA Realty, 990 F.2d at 291-92.

  Federal courts may, however, entertain suits that allege federal statutory or constitutional violations on the part of state officials. Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Still, if the officials are sued in their official capacities, the court is limited to issuing an injunction contemplating prospective relief; it cannot award money damages. MSA Realty, 990 F.2d at 291. Damages are available only to plaintiffs suing state officials in their personal capacities; and even then, relief is confined to the official's personal assets. Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985).

 These rules of sovereign immunity are not without exceptions. In fact, there are two: the state may waive its immunity by consenting to be sued in federal court, or Congress may use the increasingly disfavored mechanism of abrogating sovereign immunity through a statutory enactment. MSA Realty, 990 F.2d at 291; see Seminole, 134 L. Ed. 2d 252, 116 S. Ct. 1114 at 1131, 1132 (holding that Congress can no longer invoke its powers of abrogation under Article I of Constitution). Waiver will be found "only where stated by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction." Edelman, 415 U.S. at 673 (internal quotations and citations omitted). Similarly, to abrogate state immunity, Congress must "make its intention unmistakably clear in the language of the statute." Seminole, 116 S. Ct. at 1123 (internal quotations and citations omitted). These stringent standards for waiver and abrogation derive from dual considerations: "first, that each State is a sovereign entity in our federal system; and second, that 'it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.'" Id. (quoting Hans v. Louisiana, 134 U.S. 1, 13, 33 L. Ed. 842, 10 S. Ct. 504 (1890)).

 With these standards in mind, we proceed to evaluate the parties' jurisdictional arguments. First, we consider whether Congress has abrogated state immunity under the FLSA. Answering that question in the negative, we determine whether the defendants have nevertheless waived their immunity to suit in federal court. Although we find no waiver, and therefore dismiss the State of Illinois and the individual defendants in their official capacities, we retain Ryan and Pecoraro as defendants in their personal capacities.


 I. Abrogation

 We begin our analysis by noting that, absent abrogation or waiver, the state and its officials, as officials, are immune to this suit because Digiore *fn1" requests only retroactive relief in the form of money damages. See MSA Realty, 990 F.2d at 291 ("Under the prevailing view of the [Eleventh] amendment, a state cannot be sued in federal court for monetary damages . . . . The eleventh amendment bar extends to suits for money damages against state officials sued in their official capacities . . . ."). While he seeks, in addition to liquidated damages, what could be construed as an injunction -- a court order to remit unpaid wages -- this has the obvious effect of requiring payments from the state treasury, prohibited by the Eleventh Amendment. Id. at 292 ("The [Supreme] Court has never approved an order against a state official that would have the effect of requiring a state to make retroactive payments . . . ."). Digiore urges that the abrogation exception applies to nullify this clear immunity -- he claims that in enacting FLSA, Congress possessed both the power and intent to subject states to suit in federal court.

 A. Congress Intended to Abrogate State Immunity Through FLSA

 There are two prerequisites to congressional abrogation: first, Congress must have "unequivocally expressed its intent to abrogate the immunity"; second, Congress must have acted "pursuant to a valid exercise of power." 116 S. Ct. at 1123 (quoting Green v. Mansour, 474 U.S. 64, 68, 88 L. Ed. 2d 371, 106 S. Ct. 423 (1985)) (internal quotations omitted). With regard to intent, "[a] general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985). Section 216(a) of FLSA provides that "an action to recover [unpaid wages, overtime compensation and an equal amount in liquidated damages] may be maintained against any employer (including a public agency) in any Federal or State court . . . ." "Employer" means "any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency . . . ." 29 U.S.C. § 203(d). "Public agency" includes the state and its agencies. Id. § 203(x). Finally, "employee" includes "any individual employed by a State, political subdivision of a State or an interstate governmental agency," with a few exceptions. Id. § 203(e)(2)(C). Such abundant references to the "State," in conjunction with language authorizing suit in federal court, are sufficient to constitute intent to abrogate. See Seminole, 116 S. Ct. at 1124. Moreover, since FLSA's 1974 amendment, which swept states into the Act's purview, courts have consistently held that Congress clearly intended to subject states to suit under the Act. See Brinkman v. Kansas, 21 F.3d 370, 371-72 (10th Cir. 1994) ("Congress made clear in the FLSA its intention to override the Eleventh Amendment."); Hale v. Arizona, 993 F.2d 1387, 1392 (9th Cir. 1992) (en banc) ("The specific inclusion of 'public agencies' and the addition of 'any Federal or State court' make the intent of Congress to render states amenable to suit under the FLSA in federal court unmistakably clear."); Wilson-Jones v. Caviness, 99 F.3d 203, 207 (6th Cir. 1996), amended on denial of reh'g, 107 F.3d 358, 1997 WL 57109 (6th Cir. 1997) (same); Taylor v. Virginia, 170 F.R.D. 10, 951 F. Supp. 591, 594 (E.D. Va. 1996) ("We have in this [FLSA] case such an unmistakably clear statement of Congressional intent to abrogate the States' sovereign immunity."). We agree with these decisions that FLSA provides far more than a mere general authorization for suit; it specifically encompasses states and exhibits a clear intent to submit them to federal jurisdiction.

 B. Congress Has Not Acted Pursuant to a Valid Power

 The more substantial question, however, is whether Congress was acting pursuant to a valid power in this endeavor. It is clear that, in enacting FLSA, Congress relied, at least in part, on the Commerce Clause. FLSA's statement of policy and findings reveal that Congress passed the Act to remedy intolerable employment conditions "through the exercise . . . of its power to regulate commerce among the several States and with foreign nations." 29 U.S.C. § 202(b). Time and again, the Supreme Court has viewed FLSA as a manifestation of Congress' commerce power, although it has wavered on the Act's constitutionality as applied to public entities. See Maryland v. Wirtz, 392 U.S. 183, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968) (validating FLSA's extension to public schools and hospitals under the commerce power); National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976) (Tenth Amendment prohibits Congress from using commerce power to subject states to FLSA; overruling Wirtz); Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985) (overruling Usery and holding that the Tenth Amendment does not restrict Congress' commerce power to extend FLSA to the states); see also Wilson-Jones, 99 F.3d at 207 ("Neither party ...

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