*

The Honorable Max Rosenn, Senior U.S. Circuit Judge for the

Third Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-4253.

Juan GAMBETTA, Plaintiff-Appellant,

v.

PRISON REHABILITATIVE INDUSTRIES AND DIVERSIFIED ENTERPRISES,

INC., Pamela J. Davis, President and Member of the Board of

Directors of PRIDE, Inc., J. Floyd Glisson, former President and

Member of the Board of Directors of PRIDE, Inc., State of Florida

Department of Corrections, Harry K. Singletary, Secretary, State of

Florida Department of Corrections, in his individual capacity,

Defendants-Appellees,

Richard L. Dugger, former Secretary, State of Florida Department

of Corrections, in his individual capacity, Defendant.

May 15, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-592-cv-DTKH), Daniel T.K. Hurley,

Judge.

Before ANDERSON and EDMONDSON, Circuit Judges, and ROSENN*

, Senior

Circuit Judge.

ROSENN, Senior Circuit Judge:

This appeal presents an important question of economic and

penological concern of first impression in this circuit, wherein

prisoners incarcerated for violations of Florida criminal laws seek

the benefits of federal minimum wage laws when they engage in

correctional work programs operated by a non-profit corporation

established by the State. In its entirety, this question would

require that we explore largely uncharted waters, in that neither

the Supreme Court nor the courts of appeals have addressed the

matter comprehensively. Because we conclude as a matter of law,
however, that the employer in this matter is a state

instrumentality, we need pursue only a more limited inquiry. The

result of that inquiry is that we affirm the district court's grant

of summary judgment in favor of the defendants.

I.

Chapter 946 of the Florida Statutes mandates that a private,

non-profit corporation be established, independent of the state, to

operate the correctional work program for the state Department of

Corrections (DOC). Since 1981, the program has been operated by

Prison Rehabilitative Industries and Diversified Enterprises, Inc.

("PRIDE"). Using prisoner labor, PRIDE manufactures and produces

a wide range of products which it sells both internationally and to

government entities in this country. In order to prepare inmates

for release, PRIDE simulates a real-world business environment:

inmates complete employment applications and are interviewed,

receive on-the-job training and performance evaluations, and can

file grievances and be terminated for cause. PRIDE currently pays

inmate workers 45 to 50 cents per hour, some of which goes to repay

the cost of incarceration, some to victim restitution, and some

into the inmate's account.

 In 1993, plaintiff Juan Gambetta, for himself and other

Florida inmates, filed suit in the United States District Court for

the Southern District of Florida, alleging that PRIDE had violated

the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (1992),

by failing to pay them minimum wages prescribed by the Act. Named

as defendants were DOC, its past and present Secretaries, PRIDE,

and its past and present Presidents. For the purpose of this
 1

We affirm, although not precisely on the same ground. An

appellate court may affirm a correct judgment of the district

court even if that decision may be based on another ground. 

Powers v. United States, 996 F.2d 1121, 1123-24 (11th Cir.1993). 

 2The district court had federal question jurisdiction over

this case pursuant to 28 U.S.C. § 1331 and we have jurisdiction

pursuant to 28 U.S.C. § 1291 as an appeal from a final order. 

review, we assume that DOC and its officials are no longer involved

in the suit, having been dismissed for all but injunctive purposes.

The district court granted summary judgment to PRIDE,1

 holding that

plaintiffs are not "employees" of PRIDE, and plaintiffs timely

appealed.2

II.

Summary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of

fact is genuine if the record as a whole could lead a rational

trier of fact to find for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). It is inappropriate at the summary judgment

stage for the court to weigh the evidence and determine the truth

of the matter. Id. at 249, 106 S.Ct. at 2510-11. Rather, the

court's function is to determine whether there exists an issue for

trial.

The appellants contend that the district court erred in

granting summary judgment to the defendants because PRIDE is a

private corporation that is granted a monopoly to operate the
 3

All sectional references in this opinion, unless

specifically designated otherwise, are to Florida Statutes. 

state's correctional industries, generating over $70 million in

annual revenues, paying its executives and outside lawyers and

lobbyists handsome salaries and fees, and competing against other

companies engaged in interstate commerce. They, therefore,

vigorously argue that PRIDE is not exempt from federal minimum-wage

requirements, that inmates participating in PRIDE's correctional

programs meet the definition of "employee" under the FLSA, and that

they are not exempt from coverage.

On the other hand, the appellees note that PRIDE's primary

mission in operating the correctional industries is to reduce

inmate idleness and promote rehabilitation and job-training by

"duplicating, as nearly as possible, the operating activities of a

free-enterprise type of profitmaking enterprise." § 946.501

Fla.Stat.3

 Appellees assert that inmate activities, however, are

still governed by state law and agreements between the DOC and

PRIDE by which the Department retains ultimate control over

placement of the inmates and that, as structured, PRIDE is an

instrumentality of state government.

PRIDE conducts its operations independently of state

government and its policies and salaries are established by its

Board of Directors. The Board determines policies, reviews its

financial condition, and approves the corporation's annual

operating budget. Its president reports to the Board and is in

charge of the company's day to day operations. The Board hires,

discharges, and pays its employees (non-inmates) and ostensibly
operates as a private business, conducting its own accounting and

purchasing system, manufacturing and shipping, and develops its own

operating policies. It receives no funding from the State.

Under state statute, PRIDE sells the products produced by

inmates working in the State correctional programs only to agencies

of the State, political subdivisions, other states, foreign

entities, agencies of the federal government, or any contract

vendor of such agencies. § 946.515(1). PRIDE may, however, sell

agricultural goods to private entities. § 946.515(3). In 1992,

the Florida legislature amended the statute creating PRIDE so as to

provide that ""PRIDE' is deemed to be a corporation primarily

acting as an instrumentality of the state." § 946.5026. The

amendatory statute also provided that the provisions of § 768.28

defining "state agency" also shall apply to PRIDE.

Although the inmates may not be compelled to work for PRIDE,

it is the DOC that statutorily determines which inmates may

participate in the correctional work programs operated by PRIDE.

§ 946.511(1). The DOC evaluates and prescribes education, work and

work-training for each inmate entering the correctional system, and

assigns the inmates. The Department is required to review the

inmate assignments every six months. PRIDE's policies and

procedures relating to the use of inmates in its correctional work

programs must be submitted to the Department for approval. §

946.511(2).

PRIDE, however, establishes policies and procedures which

govern its non-inmate employees and, as to them, it is not required

to follow the State's hiring or compensation policies. PRIDE
retains outside consultants, attorneys, accountants, lobbyists, and

public relations firms. It is not required to comply with the

State's bidding procedures in the purchase of goods, materials, and

services for use in its correctional work programs. PRIDE

maintains its own purchasing and accounting systems and controls

all manufacturing and shipping functions.

The salaries of PRIDE's non-inmate employees and its top

managers have no relationship to salaries, pensions and benefits of

state employers. Although PRIDE contracts for its prison industry

program with the State and is technically required to make lease

payments, it has never made such payments although it maintains and

makes capital improvements to property which belongs to the State.

The lease of facilities to PRIDE at each correctional work

program are required by statute to be negotiated by Florida

Department of Management Service and approved by the Attorney

General, and the Governor and cabinet sitting as the Board of

Trustees of the Internal Improvement Trust Fund. § 946.504(5)(b)

and (c). All of the property leased by the State to PRIDE, or

subsequently purchased by it, is insured in behalf of the DOC

through the Department's existing policy and account. § 946.509.

All of PRIDE's assets revert to full ownership of the Department

when PRIDE ceases to utilize them. § 946.505. The State also

provides PRIDE with liability insurance. § 964.510.

PRIDE is exempt from the payment of sales taxes and is

routinely audited by the Auditor General of the State. It is

required to report to the Governor and the legislature as to the

status of its correctional work programs and submit an annual,
 4

We are particularly hesitant about endorsing the first

factor. The district court believes that plaintiffs are not

"employees" because the PRIDE program has at least in part a

rehabilitative purpose. Presumably, all prison work programs

have at least a small rehabilitative component, and so the

court's reasoning might exclude all prisoners from FLSA coverage. 

Excluding all prisoners seems contrary to Congressional intent

and runs counter to numerous statements made by various Courts of

Appeals. See, e.g., Danneskjold v. Hausrath, 82 F.3d 37, 44 (2d

Cir.1996); Watson v. Graves, 909 F.2d 1549, 1554 (5th Cir.1990); 

Vanskike v. Peters, 974 F.2d 806, 808 (7th Cir.1992); Hale v.

Arizona, 993 F.2d 1387, 1392 (9th Cir.1993). The district court

itself states that prisoners are not categorically excluded from

the FLSA (D.C. op. at 3). 

independently audited financial statement. § 946.516(1).

The statute initially setting up PRIDE as an independent

entity in 1981 specifically provided that all members of its Board

of Directors be appointed by the Governor of the State and

confirmed by the Florida Senate. The Secretary of the DOC also

sits on the Board of Directors.

III.

 The district court here granted summary judgment to PRIDE

because it determined that the plaintiffs were not "employees"

under the FLSA (D.C. op. at 6). Having reviewed the relevant

authorities, the court concluded that the proper test to determine

whether an inmate is an "employee" focuses on "(1) the goals sought

to be achieved by the work program; and (2) the relationship

between the Department of Corrections and the managing entity."

(Id.) We decline to address the question of whether the district

court applied the proper test,4

 and instead affirm solely on the

basis that, as a matter of law, the "managing entity" (i.e., PRIDE)

is a state instrumentality.

Appellants have presented considerable evidence that PRIDE
operates independently of the Department of Corrections. This

evidence includes: statements made by the Secretary and former

Secretary of DOC and by the president of PRIDE; the statement of

legislative intent in Chapter 946 that the program authorized "can

best operate independently of state government," § 946.502(5);

PRIDE's position that it is exempt from state public disclosure

laws; and expenditures made by PRIDE for lobbying, despite a

Florida law forbidding the use of public funds for this purpose.

Although there may be some evidence to the contrary, we

believe that significant evidence establishes that as a matter of

law PRIDE is an instrumentality of the state. It is true that, as

originally authorized, PRIDE was to operate "independently." In

1992, however, the Florida Legislature enacted § 946.5026,

specifically providing that PRIDE "is deemed to be a corporation

primarily acting as an instrumentality of the state." At least one

Florida state court has held that § 946.5026 was enacted "merely to

clarify and make entirely free from any doubt PRIDE's [previously]

existing status...." PRIDE v. Betterson, 648 So.2d 778, 780

(Fla.Dist.Ct.App.1994). Also of great significance is the

statutory control that the State has over the selection and

appointment of the Board of Directors of PRIDE.

PRIDE's salaries for its top managers and its non-inmate

employees bear no relationship to the salaries and emoluments of

state employees. To a notable degree, PRIDE's operations are

conducted independently of state government and its Board of

Directors determines its policies, its operating budget, and

entrepreneurial features. In the final analysis, however, power
 5

Although Williams was decided under the since-overruled

National League of Cities v. Usery regime, 426 U.S. 833, 96 S.Ct.

2465, 49 L.Ed.2d 245 (1976), nothing in Usery was essential to

the court's statement. 

and control over PRIDE and custody over the inmates is vested in

the State. By statute, all members of the Board are appointed by

the Governor of the State and confirmed by the Florida Senate. All

of PRIDE's assets revert to full ownership of the State when it

discontinues their use. It is exempt from sales taxes, is audited

by the State, and is required to report to the Governor and

legislature on the status of its correctional programs, and to

submit an audited financial statement. There are other factors,

especially the 1992 statutory amendment, which endow PRIDE with the

characteristics of a state instrumentality.

We think it important to distinguish Williams v. Eastside

Mental Health Center, 669 F.2d 671 (11th Cir.), cert. denied, 459

U.S. 976, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982), in which this court

reversed a district court decision deeming a community mental

health center created pursuant to Alabama statute to be an

instrumentality of the state. In that case, we stated that if a

state chooses to delegate certain functions to a separately

incorporated non-profit institution, rather than perform the

functions itself, "it must live with the consequences." Id. at

678.5 In the case at bar, Florida exercises far greater control

over PRIDE than Alabama did over Eastside, and so we consider that

case to be inapposite.

IV.

 Having concluded as a matter of law that PRIDE is an
 6

There is no question that the FLSA does not apply to the

more ordinary situation where a prisoner performs labor which

does not generate income (e.g., janitorial services within the

prison). "[N]o Court of Appeals has ever questioned the power of

a correctional institution to compel inmates to perform services

for the institution without paying the minimum wage. Prisoners

may thus be ordered to cook, staff the library, perform

janitorial services, work in the laundry, or carry out numerous

other tasks that serve various institutional missions of the

prison...." Danneskjold v. Hausrath, 82 F.3d 37, 43 (2d

Cir.1996). 

instrumentality of the State of Florida, we now ascertain the

impact of that status upon the applicability of the FLSA. More

specifically, because PRIDE is operating, in a sense, as an arm of

the Department of Corrections, pursuing a corrections function that

traditionally has been the responsibility of state government, we

examine cases from our sister circuits involving the applicability

of the FLSA to prison industries which generate income for the

prison.6

In recent years, at least three other courts of appeals have

addressed situations very much like the case at bar: the Fourth

Circuit in Harker v. State Use Industries, 990 F.2d 131 (4th Cir.),

cert. denied, 510 U.S. 886, 114 S.Ct. 238, 126 L.Ed.2d 192 (1993);

the Eighth Circuit in McMaster v. Minnesota, 30 F.3d 976 (8th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1116, 130 L.Ed.2d

1080 (1995); and the Ninth Circuit in Hale v. Arizona, 993 F.2d

1387 (9th Cir.), cert. denied, 510 U.S. 946, 114 S.Ct. 386, 126

L.Ed.2d 335 (1993). In each case, state prison inmates sought to

be paid federal minimum wage for their labor in state prison

industries. Each of the three courts of appeals rejected the

inmates' claims on the basis that they were not "employees" under

the FLSA.
 7

Congress enacted Ashurst-Sumners in 1935 and the FLSA in

1938. Congress has never replaced Ashurst-Sumners but has

periodically amended and recodified it. See Harker, 990 F.2d at

134. The two statutes must be read in pari materia, "and it is

axiomatic that, in this situation, the more specific statute must

control." Id. 

Each court looked to the dual purposes of the FLSA—the

provision of a decent standard of living for all workers and the

avoidance of unfair competition, Harker, 990 F.2d at 133, 134;

McMaster, 30 F.3d at 980; Hale, 993 F.2d at 1396—and concluded

that neither was implicated. Each court noted that the state

provides prisoners with food, shelter, and clothing, so that their

standard of living is not at issue in this sort of case. Harker,

990 F.2d at 133; McMaster, 30 F.3d at 980; Hale, 993 F.2d at

1396. And each court noted that Congress has addressed the issue

of unfair competition more specifically in the Ashurst-Sumners Act,

18 U.S.C. §§ 1761-62, which criminalizes the transportation in

interstate commerce of prison-made goods in instances where

prisoner labor threatens fair competition. 7

 Harker, 990 F.2d at

134; McMaster, 30 F.3d at 980; Hale, 993 F.2d at 1397. Moreover,

Ashurst-Sumners exempts prison-made goods manufactured for use by

federal, state and local governments. 18 U.S.C. § 1761(b). We are

persuaded by the reasoning of our sister circuits, and we join them

in the conclusion that inmates who work for state prison industries

are not covered by the FLSA.

Like Judge Wilkinson in Harker, supra, we too are concerned

with the dramatic effects that a contrary decision would have on

public policy, specifically at a time when federal and state

prisons are struggling with the mounting costs of maintaining
prisoners and with their burgeoning numbers. FLSA coverage for

prisoners may also open the door to worker's compensation,

overtime, and vacation pay. See Alexander B. Wellen, Comment,

Prisoners and the FLSA: Can the American Taxpayer Afford Extending

Prison Inmates the Federal Minimum Wage?, 67 Temp.L.Rev. 295, 296

(1994). Compelling states to pay the minimum wage to every inmate

engaged in a PRIDE-type program could escalate costs enormously and

could well compel correctional systems to curtail or terminate

their highly-desirable programs. If FLSA coverage is to extend

inside prison walls, this is a decision for Congress and not the

courts. See Harker, 990 F.2d at 136.

V.

Accordingly, we hold that inmates of state prisons who work

for industries operated as state instrumentalities are not covered

by the Fair Labor Standards Act and are not entitled to receive

federal minimum wage for their labor. Therefore, the judgment of

the district court in favor of appellees is AFFIRMED.