**PUBLISHED**
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 13**  **- 2283** 

LAURA LYNN MARTIN , Plaintiff

- Appell ee ,

v. JACK LEE WOOD ; MILAGROS ALCALA JONES, Defendants

– Appell ant s , and
COMMONWEALTH OF VIRGINIA; COMMONWEALTH OF VIRGINIA DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES; EASTERN STATE HOSPITAL , Defendants.

Appeal from the United States District Court for the Eastern District of Virginia , at Newport News
. Arenda L. Wright Allen , District Judge. ( 4:13

- cv - 00018

- AWA

- LRL )

A rgued : September 17, 2014 Decided: November 18, 2014

Before NIEMEYER, DUNCAN , and THACKER , Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge Niemeyer wrote the opinion, in which Judge Duncan and Judge Thacker joined.

**ARGUED:** Sydney Edmund Rab, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Raymond Lee2 Hogge, Jr., HOGGE LAW, Norfolk, Virginia, for Appellee. **ON BRIEF:**  Kenneth Thomas Cuccinelli, II, Attorney General, Earle Duncan Getchall, Jr., Solicitor General, Wesley Glenn Russell, Jr., Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Kenneth Michael Golski, HOGGE LAW, Norfolk, Virginia, for Appellee.3 NIEMEYER, Circuit Judge: Laura Martin, a registered nurse formerly employed by a
state

- operated hospital in Williamsburg, Virg inia, commenced this damages action against two supervisors at the h ospital, alleging that the supervisors improperly refused to authorize overtime pay for the hours that she worked in excess of 40 hours per week, in violation of the Fair Labor Standards Act of 1938 (“FLSA”) , 29 U.S.C. § § 201

- 219 . The supervisors filed a motion to dismiss the complaint , claimi ng sovereign immunity . They contend that their conduct , as alleged, involved their official duties on behalf of the h ospital , s uch that the compl aint wa s , in reality, directed against the h ospital, which has sovereign immunity

. The district court, howeve r, denied the motion,

r elying on Martin’s assertion in her complaint that she was suing the supervisors in their individual capacit ies

. Because the actions of Martin’s supervisors , as alleged in the complaint, were inextricably tied to their official duties , we conclude that the Commonwealth of Virginia is the real party in interest in this action. Since the Eleventh Amendment has withdrawn jurisdiction over suits of this nature against the States, effectively giving the Commonwealth immunity, we reve rse and remand with instructions t o dismiss the complaint.4 I In her complaint, Martin alleges that from November 2010 until January 2012 she was employed as a registered nurse by Eastern State Hospital and that the Hospital paid her wages on an hourly basis. Because of transitional duties during shift changes at the H ospital, Martin claims that she often began performing her duties 20 minutes or more before her shift started and continued working 30 to 90 minutes after her shift ende d. She also allege s that she often worked through he r 30

- minute lunch break. Even t hough this often resulted in her working more than 40 hours per week , Martin alleges that she was compensated for only 40 hours, in violation of the overtime provision of the FLSA, 29 U.S.C. § 207(a)(1)
. Martin further alleges that , when she complained to Milagros Jones, the registered nurse coordinator for the unit in which Martin worked, about not being paid overtime , Jones refused to take action, attributing Martin’s ex tra time to “inefficiency.” Martin also asserts that Jack Wood, the chief executi ve officer and director of the H ospital, “willfully and deliberately refused to correct” th e failure to pay her overtime. The complaint notes , however, t hat this allegation

wa s “ [ b ] ased upon circumstantial evidence including but not necessarily limited to the job duties and responsibilities of Wood.” The complaint , which named only Wood and Jones as5 defendants, asserts that in failing to authorize overtime pay to Martin, Wo od and Jones “acted directly and indirectly in the interest of Eastern State Hospital in relation to the hours of work and payment of wages to Eastern State Hospital employees including Martin

. ” I t demands damages from the m in their individual capacities in the form of “overtime compensation ,”

“ liquidated damages in an equal amount, ” and interest. Wood and Jones filed a motion to dismiss the complaint under Federal Rules of Civil Procedure 12 (b)( 1 ) and 12 (b)( 6 ) , asserting that they are entitled to the sam e sovereign immunity enjoyed by Eastern State H ospital as an agency of the Commonwealth of Virginia. They noted that the complaint centers on their official authority to direct and control employees, such as Martin, with respect to their hours and wages and that it fails to allege that they acted in an ultra vires manner against Martin or that they acted to serve any personal interest

. Thus , they claimed that , because their conduct was “tied inextricably to their official duties,” they had the same

sover eign immunity as did the H ospital, relying on Lizzi v. Alexander , 255 F.3d 128 , 136 (4th Cir. 2001), overruled in part on other grounds by Nev ada Dep artment of Human Resources v. Hibbs , 538 U.S. 721 (2003). The district court denied Wood and Jones’ motion , explain ing:6 [ T ] he Complaint alleges significant intentional miscond uct committed by Mr. Wood and M s. Jones. The FLSA claims are unquestionably directed against Mr. Wood and M s. Jones in their individual capacities. In sum, Ms. Martin’s Co mplaint, on its face, states FLSA claims against Mr

. Wood and M s. Jones in their individual capacities. Sovereign immunity is inapplicable to such claims. See Hafer [v. Melo , 502 U.S. 21, 31 (1999)]. Wood and Jones filed this interlocutory appeal , contending that the district court erred in denying the m sovereign immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc. , 506 U.S. 139, 144 (1993) (authorizing interlocutory appeals from orders denying Eleventh Amendment immunity)

.

II The FLSA provides tha t “no employer shall employ any of his employees

. . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and

one - half times the regular ra te at which he is employed.” 29
U.S.C. § 207(a)(1). The term “employer” is defined to include “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency.” Id. § 203(d). Martin conced es that Eastern State Hospital , as an agency of the Commonwealth of Virginia , has sovereign immunity from damage s claims brought under the FLSA by reason of the Eleventh7 Amendment

. * In addition , she concedes that sovereign immunity from such claims also e xtends to “state officers acting in their official capacity

. ” Buckhannon Bd. & Care Home, Inc. v. W
. V a. Dep ’ t of Health & Human Res
. , 532 U.S. 598, 609 n.10 (2001) (citing Edelman v. Jordan , 415 U.S. 651 (1974) ). And while a State may, by an unequivocal expression, waive its sovereign immunity, Martin acknowledges that Virginia has not done so.
See Commonwealth v. Luzik , 524 S.E.2d 871 , 878 (Va. 2000). She also acknowledges that while Congress can abrogate Eleventh Amendme nt immunity with respect to rights protected by the Fourteenth Amendment, it did not do so in the FLSA. See Abril v. Virginia , 145 F.3d 182, 189

- 91 (4th Cir. 1998). Rather, s he justifies the court’s jurisdiction over her complaint on the fact that sovere ign immunity does not extend to suits against state officials who are sued in their individual capacit ies

. See Hafer v. Melo , 502 U.S. 21, 31 (1991); Suarez Corp. v.
McGraw , 125 F.3d 222, 229 (4th Cir. 1997) (citing Hafer , 502 U.S. at 31 ) . As Martin cand idly states , “ [ i ] t is for this exact

∗ The Eleventh Amendment provides that “ [ t ] he 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.” U.S. Const. a m end . XI. And the Amendment has been construed to withdraw jurisdiction over any suit brought ag ainst an unconsenting State in federal court by its own citizens

. See Edelman v. Jordan , 415 U.S. 651, 662

- 63 (1974); Booth v. Maryland , 112 F.3d 139, 141 (4th Cir. 1997).8 reason that [she] took care in drafting the Complaint, identifying and setting forth sufficient factual allegations to assert the claims against Appellants Wood and Jones only in their individual capacity.” Thus, to avoid sovereign immunity, Martin did not sue Eastern State Hospital but rather only Wood and Jones , naming them only in their individual capacit ies

. Wood and Jones argue that Martin cannot circumvent the Eleventh Amendment by naming them as defenda nts i n their individual capacities if , in reality , she is suing them for actions taken by them in their official capacit ies on behalf of Eastern State Hospital. We begin the analysis by noting that “ [w] hen [a] suit is brought only against state officials, a qu estion arises as to whether that suit is a suit against the State itself.” Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 101 (1984). And i n addressing this question, the Supreme C ourt has cautioned that allowing an action to proceed simply beca use the complaint names a state official in his or her individual capacit y “would be to adhere to an empty formalism and to undermine the principle

. . . that Eleventh Amendment immunity represents a real limitation on a fe deral court’s federal

question ju risdiction.” Idaho v. Coeur d’Alene Tribe of Idaho , 521 U.S. 261, 270 (1997); see also Bender v. Williamsport Area Sch

. Dist

. , 475 U.S. 534, 543 (1986); Lizzi , 255 F.3d at 1379 ( “ [ T ] he mere incantation of the term ‘individual capacity’ is not enough to transform an official capacity action into an individual capacity action”). Thus, the question presented in this case is whether Martin’s complaint, which names Wood and Jones in the ir individual capacit ies , nonetheless effectively states a claim against the Commonwealth itself. R esolution of this issue requires us to look beyond the form of the c omplaint and the conclusory allegation s against Wood and Jones to determine who is the “ real, substantial party in interest.” Pennhurst , 465 U.S. at 101 (quoting Ford Motor Co. v. Dep’t of Treasury , 323 U.S. 459, 464 (1945)) (internal quotation marks omitted) ; see also Booth v. Maryland , 112 F.3d 139, 142 (4th Cir. 1997) (“Eleventh Amendment immunity also extends to state officials when they are merely the nominal defendants and ‘the state is the real, substantial party in interest’” (quoting Ford , 323
U.S. at 464 ) ).
T o identify the real, substantial party in interest , we thus examine the substance of the claims stated in the complaint , positing inquiries such as: (1) were the allegedly unlawful actions of the state officials “tied inextricably to their official duties,” Lizzi , 255 F.3d at 136; (2) i f the state officials had authorized the desired relief at the outset, would the burden have been borne by the State, cf. Pennhurst , 465 U.S.10 at 109 n.7; (3) w ould a judgment against the state officials be “institutional and official in character , ” such that it would operate ag ainst the State , i d. at 108; (4) w ere the actions of the state officials taken to further personal interests distinct from the State ’s interests , id. ; and ( 5 ) w ere the state officials’ actions ultra vires , id. at 111 ; Lizzi , 255 F.3d
at 136. Here, Martin’s complaint alleges that Eastern State Hospital , as Martin’s employer , failed to compensate her for overtime because Wood and Jones refused to approve such compensation . It alleges further that Wood and Jones , Martin’s supervisors , “ exercised authority to establish a nd control [her] hours of work” at the Hospital and that , in the exercise of that authority, they “failed and refused to include [overtime hours ] in the computation of Martin’s weekly wages , ” in violation of the FLSA. Finally, it alleges that , in doing so , Wood and Jones “acted directly and indirectly in the interest of Eastern State Hospital .” The complaint includes n o allegation that , in so acting, Wood and Jones acted in an ultra vires manner or attempted to serve personal interest s distinct from the
H ospital’s interests

. Examining Martin’s complaint in light of the stated factors, we conclude that virtually every factor indicates that Wood and Jones are being sued in their official capabilities

.11 Martin’s complaint allege s that Wood and Jones had authority to authorize overtime pay and refused to do so and that, if they had authorized overtime pay , it would have been funded by Eastern State Hospital. The inevitable conclusion follow s that Wood and Jones’ actions were “ inextricably tied” to their

o fficial duties at the H ospital. In these circumstances, we hold that Virginia is the real party in interest, see Pennhurst 465 U.S. at 101; Lizzi , 255 F.3d at 136, and that sovereign immunity

-- ground ed in the Eleventh Amendment

-- requires dismissal of the suit, Lizzi , 255 F.3d at 138; Booth , 112 F.3d
at 142
. Accordingly, w e reverse the district court’s order denying Wood and Jones’ motion to dismiss based on sovereign immunity and remand with instructions to dismiss the complaint.
IT IS SO ORDERED
.