United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 22, 2005 Decided February 3, 2006

 Reissued March 20, 2006

No. 05-7029

EMMA RODRIGUEZ, INDIVIDUALLY AND ON BEHALF OF OTHERS

SIMILARLY SITUATED,

APPELLEE

v.

PUERTO RICO FEDERAL AFFAIRS ADMINISTRATION, AND

INDIVIDUAL DEFENDANTS, ET AL.,

APPELLANTS

UNITED STATES OF AMERICA,

INTERVENOR

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02246)

Richard H. Pildes argued the cause for appellants. On the

briefs were Lawrence I. Kiern and Gene C. Schaerr. Eric P.

Gotting entered an appearance.

Dan Getman argued the cause and filed the brief for

appellee.
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Scott R. McIntosh, Attorney, U.S. Department of Justice,

argued the cause for intervenor. With him on the brief were

Peter D. Keisler, Assistant Attorney General, Gregory G.

Katsas, Deputy Assistant Attorney General, Mark B. Stern,

Appellate Litigation Counsel, Allen H. Feldman, Associate

Deputy Solicitor, U.S. Department of Labor, Nathaniel I.

Spiller, Senior Counselor, and Edward D. Sieger, Senior

Attorney. Kenneth L. Wainstein, U.S. Attorney, entered an

appearance. 

Before: TATEL and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: The issue presented arises from the

intersection of the Puerto Rican Federal Relations Act (FRA),

the Fair Labor Standards Act (FLSA), and principles of state

sovereign immunity as set forth in two Supreme Court

decisions: Seminole Tribe of Florida v. Florida, 517 U.S. 44

(1996), and Alden v. Maine, 527 U.S. 706 (1999). Holding that

Article I of the United States Constitution gives Congress no

authority to abrogate State sovereign immunity, Seminole Tribe

and Alden effectively invalidated the FLSA’s private right of

action as applied against state agencies. In this case, we must

decide whether, despite those two decisions, the FLSA’s private

right of action still applies against an agency of the Puerto Rican

government. Because FRA section 734 provides that “[t]he

statutory laws of the United States . . . shall have the same force

and effect in Puerto Rico as in the United States,” and because

Seminole Tribe and Alden have left the FLSA’s private right of

action without “force and effect” against state agencies “in the

United States,” we hold that it does not. 
3

I.

Ending the Spanish American War, the 1899 Treaty of Paris

ceded Puerto Rico to the United States as a territory entirely

subject to Congress’s regulatory will. Treaty of Paris, 30 Stat.

1754 (1899). According to the Treaty, “[t]he civil rights and

political status of [Puerto Rico’s] native inhabitants . . . shall be

determined by the Congress.” Id. at 1759. Moreover, Article IV

of the Constitution authorizes Congress to “make all needful

Rules and Regulations respecting the Territory . . . belonging to

the United States.” See U.S. Const. art. IV, § 3, cl. 2. 

In a series of statutes beginning with the Foraker Act of

1900 and culminating with the enactment of Public Law 600 in

1950, Congress granted Puerto Rico ever increasing selfgoverning authority. See Foraker Act, ch. 191, 31 Stat. 77

(1900) (establishing Puerto Rico’s first civilian government and

vesting it with executive, legislative, and judicial powers); Jones

Act of 1917, ch. 145, 39 Stat. 951 (1917) (providing Puerto Rico

with a wider degree of local self-government, establishing a

territorial bill of rights, and conferring American citizenship on

Puerto Rican citizens); Elective Governor Act, Pub. L. No. 80-

362, 61 Stat. 770 (1947) (investing the People of Puerto Rico

with full control over the executive branch); Act of July 3, Pub.

L. No. 81-600, 64 Stat. 319 (1950). “[A]dopted in the nature of

a compact,” Public Law 600 authorized the People of Puerto

Rico to “organize a government pursuant to a constitution of

their own adoption.” Act of July 3, Pub. L. No. 81-600, 64 Stat.

319 (1950). Through popular referendum, the People of Puerto

Rico approved Public Law 600’s proposed allocation of

power—supreme national power to the U.S. Congress and full

local control to the Puerto Rican government—and then adopted

a draft constitution. Congress approved the constitution, subject

to three amendments: two unrelated to the claim before us and

one requiring any future amendments to be “consistent with the

resolution enacted by the Congress of the United States
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approving this constitution, with the applicable provisions of the

Constitution of the United States, with the Puerto Rican Federal

Relations Act, and with Public Law 600, Eighty-first Congress,

adopted in the nature of a compact.” H.R.J. Res. 430, 82nd

Cong. (1952). The Constitutional Convention of Puerto Rico

accepted the amendments and then ratified the constitution “in

the name of the people.” See id. (outlining procedure for

ratification); Examining Bd. of Eng’rs, Architects & Surveyors

v. Flores de Otero, 426 U.S. 572, 594-95 (1976) (noting Puerto

Rico’s acceptance of amendments and ratification of the

constitution).

Public Law 600 included the Puerto Rican Federal Relations

Act, Act of July 3, Pub. L. No. 81-600, § 4, 64 Stat. 319 (1950),

which codified all earlier statutory provisions regarding Puerto

Rico that survived the Compact, including the following

language first drafted for the Foraker Act: “[t]he statutory laws

of the United States . . . shall have the same force and effect in

Puerto Rico as in the United States.” 48 U.S.C. § 734; see Jones

Act of 1917, ch. 145, § 9, 39 Stat. 954 (1917) (containing

section 734’s language); Foraker Act, ch. 191 § 14, 31 Stat. 77

(1900) (containing language similar to section 734). Now found

in FRA section 734 and central to the issue before us, that

language has defined the application of federal law to Puerto

Rico since 1900. See, e.g., P.R. Dep’t of Consumer Affairs v.

Isla Petroleum Corp., 485 U.S. 495, 499 (1988) (relying on

section 734 to delineate the test for federal preemption of Puerto

Rican law).

The Fair Labor Standards Act protects employees from

“labor conditions [that are] detrimental to the maintenance of the

minimum standard of living,” 29 U.S.C. § 202(a). The Act

prescribes minimum wage and overtime rates for employees

either engaged in interstate commerce or working for employers

engaged in interstate commerce. Id. §§ 206, 207. In order “[t]o
5

encourage employees to enforce their FLSA rights in court, and

thus to further the public policies underlying the FLSA,”

Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,

740 n.16 (1981), FLSA section 16(b) provides that “[a]n action

to recover” for violations of the Act’s minimum wage, overtime,

and non-retaliation provisions “may be maintained against any

employer (including a public agency) in any Federal or State

court of competent jurisdiction by any one or more employees.”

29 U.S.C. § 216(b). Congress added the parenthetical reference

to public agencies—defined to include both states and

territories—to “overcome . . . the Supreme Court [decision] in

Employees of the Department of Public Health v. Missouri (93

S. Ct. 1614, April 18, 1973) which stated that Congress had not

explicitly provided . . . [that] State and local employees could

bring an action against their employer in a Federal court under

section 16.” H.R. Rep. No. 93-913, at 45 (1974); see also 29

U.S.C. § 203(x) (defining “[p]ublic agency” to include “the

government of a State or political subdivision thereof” and “any

agency of . . . a State, or a political subdivision of a State”); id.

§ 203(c) (defining “State” to mean “any State of the United

States or the District of Columbia or any Territory or possession

of the United States”).

In Seminole Tribe, however, the Supreme Court held that

Article I gives Congress no authority to divest States of

sovereign immunity from suit in federal court. Seminole Tribe,

517 U.S. at 72-73. And three years later in Alden, which

involved FLSA section 16(b), the Court extended Seminole

Tribe to suits brought in state court. Alden, 527 U.S. at 754.

Taken together, Seminole Tribe and Alden mean that state

employees no longer have any “court of competent jurisdiction,”

29 U.S.C. § 216(b), in which to sue their employers for FLSA

violations. 
6

Appellee, Emma Rodriguez, filed suit in the United States

District Court for the District of Columbia under FLSA section

16(b), alleging that the Puerto Rico Federal Affairs

Administration (PRFAA), an executive agency of the

Commonwealth of Puerto Rico, violated the FLSA by

underpaying her and then retaliating against her after she

complained. PRFAA moved to dismiss, arguing that Seminole

Tribe and Alden entitled it to sovereign immunity from FLSA

suits. The district court denied the motion, explaining that “[i]t

is for Congress, and not this court, to decide, in light of

Seminole Tribe and its progeny,” whether Puerto Rico should be

subject to suit under section 16(b) when States are not.

Rodriguez v. P.R. Fed. Affairs Admin., 338 F. Supp. 2d 125, 130

(D.D.C. 2004). PRFAA then moved under section 1292(b) to

certify the sovereign immunity question for interlocutory appeal.

See 28 U.S.C. § 1292(b) (allowing district courts to certify for

interlocutory appeal any “controlling question of law as to

which there is substantial ground for difference of opinion and

[if] an immediate appeal . . . may materially advance the

ultimate termination of the litigation”). The district court

granted the motion, Rodriguez v. P.R. Fed. Affairs Admin., No.

03-2246 (D.D.C. Dec. 13, 2004), and PRFAA timely filed a

petition for permission to appeal. Fed. R. App. P. 5(a)

(requiring that parties petition for permission to bring

discretionary appeals “within the time specified by the statute or

rule authorizing the appeal”). Because the district court properly

certified the issue, and because both parties encourage usto hear

this appeal, we grant PRFAA’s petition. The federal

government has intervened to defend the constitutionality of

section 16(b) as applied to Puerto Rico.

II.

PRFAA argues that section 734 enunciates a “default rule”

under which courts must construe federal statutes to apply

equally to Puerto Rico and the fifty States unless Congress
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expressly provides otherwise. For additional support, PRFAA

relies on theCompact, arguing that “no courtshould lightly infer

that Congress has broken faith with its solemn undertaking in

the Compact [to reaffirm and bolster Puerto Rico’s sovereign

immunity] in the absence of a clear statement of intent by the

Congress.” Appellants’ Br. 7. Because Seminole Tribe and

Alden barsection 16(b)suits against States, and because nothing

in the FLSA reveals any congressional intent to treat Puerto

Rico differently with respect to private section 16(b) suits,

PRFAA argues that the district court should have dismissed

Rodriguez’s complaint. We agree.

FRA section 734 provides that “[t]he statutory laws of the

United States . . . shall have the same force and effect in Puerto

Rico as in the United States.” 48 U.S.C. § 734. Here, we

consider how to apply this mandate to FLSA section 16(b),

which allows employeesto maintain private actions against any

employer, “including a public agency.” 29 U.S.C. § 216(b).

Section 3(x) defines “public agency” to include the government

of a “State,” 29 U.S.C. § 203(x), and section 3(c) defines a

“State” to include “any State” or “any Territory,” 29 U.S.C. §

203(c). If, as Rodriguez argues, section 16(b) continues to

authorize such actions against Puerto Rico, then the provision

would have a different “force and effect in Puerto Rico [than it

does]in the United States”: in PuertoRico a “State”—as defined

by the statute—can be sued, while in the United States, after

Seminole Tribe and Alden, a “State” cannot. The only way to

give section 16(b) “the same force and effect in Puerto Rico as

in the United States” is to hold, as PRFAA urges, that Puerto

Rico likewise enjoys immunity from private FLSA enforcement

suits.

The district court is certainly correct that “[i]t is for

Congress, and not this court,” to decide what to do with section

16(b) given Seminole Tribe and Alden. Rodriguez, 338 F. Supp.
8

2d at 130. Indeed, as Rodriguez points out, Seminole Tribe itself

says that courts are not “free to rewrite the statutory scheme in

order to approximate what we think Congress might have

wanted had it known that [the provision] was beyond its

authority.” Seminole Tribe, 517 U.S. at 76. Here, however, we

need not “rewrite the statutory scheme” to reflect what “we

think Congress might have wanted had it known” that section

16(b)’s private right of action could no longer be applied to

States. FRA section 734, though originally enacted almost a

century before Seminole Tribe and Alden, tells us exactly how

to apply section 16(b) to Puerto Rico now that, by virtue of

those two decisions, its private right of action has become

inapplicable to States. Specifically, section 16(b)’s private right

of action must have the same “force and effect” against “State”

agencies in Puerto Rico, namely no force or effect at all. See 29

U.S.C. § 203(c) (defining “State” to include territories for FLSA

purposes).

The First Circuit, the court most expert on Puerto Rico’s

status, agrees. In Jusino Mercado, also a section 16(b) suit

against Puerto Rico, the First Circuit concluded: 

[G]iven the language of the FLSA, the context in which

Congress amended it to reach public agencies, and the

guidance provided by the Federal Relations Act, reading

the law to intrude more profoundly on Puerto Rico’s

sovereignty than on that of the states would contradict what

we discern to be Congress’s manifest intent. To harmonize

our reading of the statute with this intent and to maintain

the parallelism that Congress sought to achieve, we

construe the FLSA as failing to overcome Puerto Rico’s

immunity.

Jusino Mercado v. Puerto Rico, 214 F.3d 34, 44 (1st Cir. 2000).
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Rodriguez’s arguments to the contrary are unpersuasive.

First, twisting section 16(b)’s plain language, she argues that

“[a]t most, the [FRA] holds that the FLSA has applicability in

Puerto Rico [because the] statute [is] applicable in the states.”

Appellee’s Br. 21. But, she continues, section 734 does not

accord to Puerto Rico the same defense to individual claims in

federal court that the U.S. Constitution provides States.

Although it is true that the FLSA applies both in the United

States and in Puerto Rico, Congress commanded that section

16(b) apply to Puerto Rico according to its force and effect in the

United States. After Seminole Tribe and Alden, section 16(b) no

longer has the force and effect Congress purported to give it:

States now enjoy immunity from private rights of action.

Section 734’s “same force and effect” command thus requires

that we accord the same immunity to Puerto Rico. 

Pointing out that Congress intended the FLSA to apply

broadly to “all employees within the scope of the Act,” United

States v. Rosenwasser, 323 U.S. 360, 363 (1945), Rodriguez

next argues that “under the FLSA’s rules of interpretation[],

there can be no implied exemptions to the FLSA,” Appellee’s

Br. 22. But Rodriguez provides no citation to any FLSA “rules

of interpretation,” and we are unaware of any such rules. More

important, our ruling today creates no “implied exemption” to

the FLSA, but merely follows Congress’s express direction to

give “[t]he laws of the United States . . . the same force and

effect in Puerto Rico as in the United States.” 48 U.S.C. § 734.

Next, Rodriguez urges us to ignore section 734 altogether

since “an implicit ‘default rule’ cannot be said to override

explicit language in a statute that clearly expresses a contrary

position. Because Congress made Puerto Rico liable under the

FLSA specifically, the default rule cannot trump Congress’s

specific instructions.” Appellee’s Br. 22. But neither section

16(b) nor the definitional terms it incorporates “specifically”
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refer to Puerto Rico. FLSA section 3(c) broadly defines the

term “State”—a category of “covered employers”—to include

“any State of the United States or the District of Columbia or

any Territory.” 29 U.S.C. § 203(c) (emphasis added). By

comparison, section 734 applies expressly to Puerto Rico.

Accordingly, because the canons of statutory construction

require that the specific govern the general, instead of ignoring

section 734, we must apply section 16(b) (the more general of

the two provisions) as directed by section 734, giving it the same

“force and effect in Puerto Rico as in the United States.” 

Last, assuming for argument’s sake that the “default rule”

applies, Rodriguez argues that it does “not bar this suit, because

there is a rational basis for treating Puerto Rico differently from

the states—namely that the states have constitutional sovereign

immunity . . . and Puerto Rico does not.” Appellee’s Br. 22. 

The fact that Congress may have had a rational basis for treating

Puerto Rico differently from States, however, is irrelevant given

that it expressly chose not to do so for purposes of section 16(b)

private enforcement actions. 29 U.S.C. § 216(b) (providing

“[a]n action to recover” for FLSA violations “may be

maintained against any employer (including a public agency)”;

id. § 203(x) (defining “[p]ublic agency” to include “any agency

of . . . a State”); id. § 203(c) (defining “State” to include “any

State” and “any Territory”). Because of this, and because of

section 734's “same force and effect” command, we have no

basis for treating Puerto Rico differently from the fifty States.

We reverse the district court’s decision and remand with

instructions to dismiss the complaint. 

So ordered.