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PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________

No. 96-5119

_____________

D. C. Docket No. 95-6233-Civ-WJZ

JAMES E. POWELL, on behalf of

himself and all others present

and former employees similarly

situated, RUSSELL R. SMITH,

Plaintiffs-Appellants,

versus

STATE OF FLORIDA, LAWTON CHILES,

Governor, WILLIAM LINDER, Secretary, 

Secretary of the Department of 

Management Services,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Southern District of Florida ____________

(January 9, 1998)

Before TJOFLAT and BIRCH, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

Plaintiff, James E. Powell, attempting to bring a class action, sued the

State of Florida for back wages for overtime work and for injunctive enforcement

of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1994). He alleges that

he and his alleged class members were misclassified as “excluded” employees for

the purpose of not paying overtime wages for overtime hours that they worked.
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The district court properly dismissed the claim for unpaid overtime wages

based on the State’s Eleventh Amendment immunity. Seminole Tribe of Florida v.

Florida, __ U.S. __, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). See Quillin v.

Oregon, Nos. 96-35790, 96-35777, 1997 WL 644043 at *1 (9th Cir. Oct. 21, 1997);

Close v. New York, No. 1248, Docket 96-9252, 1997 WL 540848 at *4 (2d Cir. Sept.

4, 1997); Mills v. Maine, 118 F.3d 37, 40 (1st Cir. 1997); Aaron v. Kansas, 115

F.3d 813, 814 (10th Cir. 1997); Raper v. Iowa;, 115 F.3d 623, 624 (8th Cir.

1997); Balgowan v. New Jersey, 115 F.3d 214, 217 (3d Cir. 1997); Moad v.

Arkansas State Police Dep’t, 111 F.3d 585, 586 (8th Cir. 1997); Wilson-Jones v.

Caviness, 99 F.3d 203, 210 (6th Cir. 1996), reh’g denied and amended by 107 F.3d

358 (6th Cir. 1997). Compare Timmer v. Michigan Dep’t of Commerce, 104 F.3d 833,

838-40 (6th Cir. 1997) (no Eleventh Amendment immunity from suits brought under

the Equal Pay Act because that Act could have been passed pursuant to Congress’s

Fourteenth Amendment powers).

The district court properly held that the right to bring an action for

injunctive relief under the Fair Labor Standards Act rests exclusively with the

United States Secretary of Labor. See 29 U.S.C. §§ 211(a), 216(b) (1994); Reorg.

Plan No. 6 of 1950, 15 Fed. Reg. 3174, reprinted in 5 U.S.C. app. at 1469 (1994).

Although this Court has not yet addressed the issue, we follow the decisions of

the other circuits which have held that the plain language of the Act provides

that the Secretary of Labor has the exclusive right to bring an action for

injunctive relief. See Barrentine v. Arkansas-Best Freight System, 750 F.2d 47,

51 (1984 ) (“only the Secretary is vested with the authority to seek an

injunction”); Morelock v. NCR Corp., 546 F.2d 682, 688 (6th Cir. 1976), rev’d on

other grounds, 435 U.S. 911 (1978) (“[I]ndividuals are limited to seeking legal

remedies and are precluded from obtaining injunctive relief.”); Powell v.

Washington Post Co., 267 F.2d 651, 652 (D.C. Cir. 1959) (“In so far as

plaintiff’s prayer relates to action by the Secretary to restrain violations, the

answer is that the appeal is to his discretion.”); Roberg v. Phipps Estate, 156
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F.2d 958, 963 (2d Cir. 1946) (“[T]he Administrator has exclusive authority to

bring such an [injunction] action.”); Bowe v. Judson C. Burns, Inc., 137 F.2d 37,

39 (3d Cir. 1943) (“We think it is plain from this language that the right of the

administrator to bring an action for injunctive relief is an exclusive right.”).

With this decision, it is apparent that the argument that alleged class

members should have been given opt-in notification is moot.

AFFIRMED.