United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 96-2594

Delbert D. Moad, On Behalf Of * Self and All Others Similarly * Situated; Joe M. Martz, On * Behalf Of Self and All Others * Similarly Situated; Dennis * Gifford, On Behalf of Self and * All Others Similarly Situated; * Carroll Seaton, On Behalf of * Self and All Others Similarly * Situated; and Jody S. Garner, * B. R. Skipper, James Myron * Hall, Jefery A. Ramsey, * Donald H. Sims, R. W. Neel, * James H. Kelloms, Ronald L. * Welch, Galey Gates, Don Smith, * Charles A. Hefner, Don W. * Browning, Alex Sylvester, * Jerry H. Chancellor, Bobby * Carlton, Andrew Clay, Ralph J. * Lobbs, Robert Mark Batson, * Wendell W. Adams, Gene Hicks, * William T. Cochran, Jerry W. * White, Mitchell E. Carolan, * Darrell W. Lainhart, Glenn O. * Maxwell, Edward L. Davis, * Tommy L. Morrow, James T. * Linkous, David M. Fullen, * Gordon Ray Diffee, Vernon R. * Dollar, Scotty Dodd, Robert L. * Meek, Duvall W. Moore, Ron * Ball, R. L. Newton, Howard * Smith, Tate G. Floyd, III, * A. J. McElroy, Lyle R. Smith, * Joe Roberson, Martha Williams, * Jackie Hopkins, Lloyd Martz, * Mack Thompson, Dudley Lemon, * Kelly Watkins, Barry Spivey, * Larry Lassiter, Michael * Springer, Andrew Wiley, Donald * Brown, Don Lafarlette, Paul * Halley, Tim Land, David * Hathcoat, Charles Watson, *

### The Honorable George F. Gunn, Jr., United States Distric t 1 

### Judge for the Eastern District of Missouri, sitting by desig nation.
-2- Dennis Morris, Kevin Richmond, * Olen Craig, Michael Linville, * Joe F. Bradshaw, Roger Whitmore, * Doug Stark, Phillip Glasgow, * Harvey George, Victor Coleman, * Hayes Hogue, Dennis Duran, * Melvin Hensley, James M. * Sullivan, Jerry D. Willis, * Carey J. Lovaas, and Jerry L. * Watts, * * Appellants, * * Appeal from the United States v. * District Court for the Eastern * District of Arkansas. Arkansas State Police * Department, Also Known as * Arkansas State Police, * * Appellee. *

Submitted: January 17, 1997 Filed: April 15, 1997

Befor e LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and GUNN, 1 District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Th e plaintiffs are Arkansas state troopers who are seekin g compensation for unpa id overtime. They sued, alleging that the state of Arkansas violated the Fair Labor Standards Act (FLSA). Relying on Seminol e Tribe of Florida v. Florida , 116 S. Ct. 1114 (1996), the district cour t dismissed the troopers' case for lack of

### The Honorab le William R. Wilson, Jr., United States District 2 

### Judge for the Eastern District of Arkansas.
-3- subject matter jurisdiction. The troopers appea l. We affirm the judgment of the district court. 2

I. The Eleventh Amendment to the Constitution provides that th e "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 th e United States by Citi zens of another State, or by Citizens or Subjects of any Fore ign State." U.S. Const. amend. XI. "Although the text of th e
ame ndment speaks only of suits against a state by persons who are no t citizens of that state, the Supreme Court has interpreted the Elevent h Amendment to extend to suits by all persons against a state in federa l court." Mancuso v. New York State Thruway Auth. , 86 F.3d 289, 292 (2d Cir

. 1996), cert. denied , 117 S. Ct. 481 (1996). According to Seminole Tribe , 116 S. Ct. at 1131-32, "[t]he Eleventh Amendment restricts the judicia l power under Article III, and Article I [relating to the legislative powers of Congress, specifically, the power of Congress pursuant to the Interstat e Commer ce Clause] cannot be used to circumvent the constitutiona l limitations placed upon federal jurisdiction."

Until 1996, the Supreme Court had held that Congress had th e author ity to abrogate a state's Eleventh Amendment immunity under tw o const itutional provisions: the Fourteenth Amendment, see Fitzpatrick v

. Bitzer , 427 U.S. 445, 456 (1976), and the Interstate Commerce Clause, see Pennsylvania v. Union Gas Co. , 491 U.S. 1, 23 (1989) (plurality opinion). In Semino le Tribe , 116 S. Ct. at 1133, however, the Court held that a statute requiring a state to enter into mediatio n enacted under the Indian Commerce Clause could not

### -4-

validly authorize a lawsuit against a state by an individual. The Court also explicitly overruled Union Gas

. See id. at 1128. In the case before
us, the state troopers are making precisely the same argument that was mad e in Union Gas , namely, that Congress had the power to abrogate a state' s Eleventh Amendment immunity pursuant to the Interstate Commerce Clause

. By overruling Union G as in Seminole Tribe , however, the Supreme Court has now explicitly rejected that argument.

II. The s tate troopers contend in the alternative that the FLSA coul d have b een enacted pursuant to Congress's power under the Fourteent h Amendment because their exclusion from the abili ty to sue in federal court for t he protections afforded by the FLSA violates their right to equa l protection. This issue was not raised in the district court and was raise d in our court only in the troopers' reply brief. Under these circumstances , we dec line to consider the issue of whether the FLSA could have bee n enacted under the Fou rteenth Amendment. See , e.g. , Bendix Autolite Corp. v. Midwesco Enterprises, Inc. , 486 U.S. 888, 895 (1988).

The s tate troopers also contend that prior to the Supreme Court' s decision in Seminole Tribe , the state of Arkansas allowed itself to be sue d pursuant to the FLSA and that this evidences a waiver by the state of its Eleventh Amendment immunity. We have examined t he record carefully and we find no evidence that this issue was ever raised in the district court wit h respect t o the Eleventh Amendment. (We do not consider their Tent h Amendment arguments s ufficient to raise the Eleventh Amendment question.) We therefore decline to consider the issue of waiver on appeal. See , e.g. , Singleton v. Wulff , 428 U.S. 106, 120 (1976).

### -5- The day b efore oral argument in this case, the state troopers moved to supplement the record to include a state cour t ruling that the Arkansas courts had no subject matter jurisdiction over FLSA cases. In that motion , the tro opers argue for the first time that if the district court had n o jurisdiction to enter tain their case, they would be left without a remedy in any court, a violation, they assert, of their Fourteenth Amendment righ t to due process. (We note, however, that the state court ruling referred the state employee FLSA plaintiffs to the Arkans as Claims Commission. See Ark

. Code Ann. § 19-10-204.) Because this argument comes so late, w e express no view on it s merits and deny the troopers' motion to supplement the record. See , e.g. , Bendix Autolite Corp. , 486 U.S. at 895. III. For the reasons indicated, we hold that in enacting the FLSA , Con gress had no power to abrogate a state's Eleventh Amendment immunit y under t he Interstate Commerce Clause. The district court thus lacke d subj ect matter jurisdiction over the state troopers' case. See als o Wilson-Jones v. Caviness , 99 F.3d 203, 211 (6th Cir. 1996), modified o n other grounds , 1997 WL 57109 (6th Cir. 1997) ( pe r curiam ). Because of our holding on the question of subject matter jurisdiction, we need not addres s the troopers' additional argument with respect to the district court's ora l ruling in regard to meals and on-call status. We note, however, that no order was ever entered on those rulings.

IV. We therefore affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.