Warren E. Burger: We’ll hear arguments next in 71-1021, Employees against to the Department of Public Health and Welfare. Mr. Zwerdling, you may proceed whenever you’re ready.
Speaker: Mr. Chief Justice, may it please the Court. We are here on certiorari from a five-four decision of Eighth Circuit granting motion to dismiss a complaint filed by employees of the State of Missouri. They sue for time-and-a-half overtime pay and additional equal amount as liquidated damages and reasonable counsel fees as provided for in a Fair Labor Standards Act known as the Wage-Hour Law. That Act was amended in 1966 to apply to such state employees. Complaint was filed on Federal District Court in 1969, alleging violation of the overtime provisions commencing in 1967 on February of that year and continuing thereafter. In 1966, amendments to the Act under which these employees of state schools and hospital sue was held to a proper exercise of the congressional power under Commerce Clause in Maryland versus Wirtz by this Court. And the case today presents the question which was expressly reserved in Maryland versus Wirtz as unnecessary to decision there of whether employees may sue in federal court to enforce rights given them by 1966 Amendments. We submit that Congress intended to permit such employee suits against the States for violation of the Act and that Congress have the power under the Commerce Clause to so provide not withstanding the Eleventh Amendment. The congressional intent is clear. Statute in 16 (b) of that Act provides and I quote “Any employer -- any employer who violates the provisions of Section 6 or Section 7, those are the minimum wage and overtime pay provisions. Any employer who so violates the provisions of this Act shall be a liable to the employees affected in the amount of their unpaid minimum wages or their unpaid overtime compensation as the case may be, and then in additional equal amount as liquidated damages. Actions to recover such liability may be maintained at any court of competent jurisdiction in Section (b), the language of States. Now the term “employer” which is used in that Section as defined in Section 3 of the Act and what those amendments in 1966 did was to expand this definition to bring under the statute as employers within the meaning of that Section, the States and their political subdivisions with the respect to certain institutions, schools, and hospitals. Prior to that year of the amendments, the Section said employer shall not include the United States or any state or political subdivision of a state. But when they added the amendatory language, Congress specifically injected a removal of that exclusion of the states from the definition by inserting the language in 1966, “except with respect to employees of a state or political subdivision thereof, employed in a hospital, institution, or school referred to in a last sentence of Subsection (r) of this Section. And so Congress chose explicitly to remove this previously excluded category and the subsection to which it reversed in this definition is the definition of the word “enterprise.” Here, Congress added to the list of covered enterprises, the operation of a hospital, institution, or school, and once again on those amendments, Congress underlined its expressed intention by adding these words, “Regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit.” Nothing could be clear or more explicit and again, in the next Subsection which speaks of the definition of “enterprise engaged in commerce or in the production of goods for commerce.” Congress added the same language once again stressing, “Regardless of whether or not such hospital, institution, or school is public or private.” The remedy of the employee’s suit in Section 16 (b) has existed in the statute since it was enacted in 1938. It reaches the States here because it says, “Any employer who violate this Sections will be subject to such suits.” And by expanding that definition of employer thus this remedy comes into play.
Potter Stewart: It actually says, shall be liable to the employee and --
Speaker: That’s right, Your Honor.
Potter Stewart: It’s for a -- do I understand that if there is a recovery, it is automatic that the recovery be a double recovery?
Speaker: That is explicit in Section 16 (b) it says, “And in an additional equal amount as liquidated damages.”
Potter Stewart: And it’s a lot clear that there is no discretion in the trial court too?
Speaker: There is some discretion, Your Honor. But the purpose of the liquidated damages is it is instead of interest rates for purposes of certainty in setting the language --
Potter Stewart: For other purpose, but I asked -- I wondered and I am asking for information, is the law clear or is it not that when there is a recovery, the recovery has to be a double recovery?
Speaker: There is discretion in the courts to reduce at other some circumstances, Your Honor.
Potter Stewart: That’s, is that clear under the law?
Speaker: Yes, Your Honor.
Potter Stewart: And how about the provision further down in 16 (b), the Court in such action shall in addition to any judgment awarded, allow reasonable attorney’s fee to be paid, that’s of course in addition to the double recovery.
Speaker: Yes, Your Honor and cause of the action.
Potter Stewart: And cause and what is the law as to whether or not there is any discretion.
Speaker: And I understand that there is discretion and the specific section is Section 60 that is its 260 of 29 U.S. Code.
Potter Stewart: Is that you know in the appendix to your brief?
Speaker: That’s -- that section is not the appendix, Your Honor.
Potter Stewart: I was asking as I say for information because I didn’t know whether how automatic this statutory language had been held to be. It sounds as though there is no discretion.
Speaker: In the brief in the court below, there is citation of that Section on page 11 (a) of the white document which is a petition for certiorari, Your Honor which says, quoting the Court, “Under the Section 260 remission of liquidated damages in whole or in part is only allowable,” quoting the statute now, “if the employer shows to the satisfaction of the court that the act or omission giving raise to such action was in good faith and that he had reasonable ground for believing that his act or omission was not a violation of the Fair Labor Standard Act that was amended”. The court goes on and even if they required showing is made, the remission is left to the sound discretion of the court.
Potter Stewart: And that there’s nothing there about attorney’s fees?
Speaker: No, Your Honor.
Warren E. Burger: Do you suggest that that discretion that we exercise with respect to an erroneous evaluation of the law for example. If you are correct in your case here, would the judgment of the State of Missouri which is in disagreement with yours be the kind of factor that would allow the court to exercise that discretion?
Speaker: As to whether or not Congress had exerted its jurisdiction through exercise the Commerce Clause, Your Honor?
Warren E. Burger: Oh, no, no on double -- the same subject as Justice Stewart has been presenting to you on the double damages on the penalty.
Speaker: Yes, I believe there would be the discretion.
Potter Stewart: Well, except to Maryland against Wirtz, I wonder if Missouri could say that it had reasonable grounds for believing that its act was not a violation of the Federal Labor Standards Act of 1938.
Speaker: And I misunderstood the question then. If the question addresses itself to whether there is discretion to be exercise by the court in reviewing whether or not the state exercise the waiver, that is something that is dealt with as I would point out -- as pointed out in the brief in the decision of a court in which it’s made clear that that waiver occurs by virtue of continuing to operate and that that waiver need be neither knowing nor intelligent to use the citation by the dissent in that case of what the court held. In the case to which we refer in the Parden case which is the case which is key to the problem before us, in that case, which was Parden versus Alabama Terminal Railroad. That was the case that was decided in 1964 in which the Court had before it that Federal Employers’ Liability Act and in that case as here, there was the question of private employees suit to enforce the rights under that statute. And there the court held that by virtue of the fact that the statute enacted by Congress in the exercise of its commerce power as was the case here and the exercise by Congress of its commerce power here in dealing with the federal -- the Fair Labor Standards Act in the Parden case which involved the Federal Employers’ Liability Act which is the Act under which employees can sue for redress, for damage to the employee and injury on the railroad. In that case, involving a railroad which was a state owned railroad at the docks of Alabama. The Court held that Commerce Clause enabled Congress to act in this manner to provide that private employee remedy that’s lawsuit as a means of remedy and the court held that this occurred by virtue of the continuing operation of that railroad. The same principal applying here and has --
Byron R. White: This is one of those -- these businesses that States didn’t usually engage in railroad or the railroad business?
Speaker: As to whether it’s usually engage in, Your Honor. I do not believe that is a distinction that the courts have held to make the constitutional difference. That discussion has occurred by this Court in two cases involving the State of California which we discuss in our brief. And in the Parden case and numerous other cases in which the question -- I think Your Honor is alluding to the concept --
Byron R. White: No, the question is -- the question is you say that labor does not need even to be voluntary? May not need to be intelligent, but is it does have to be voluntary to be labor at all?
Speaker: Well, it’s a voluntary in the sense that as here, the state of Missouri was well aware of the fact that in the case of Maryland versus Wirtz in which the validity of the Wage-Hour Law Amendments here before the Court was dealt with expressly as to their constitutionality in that case --
Byron R. White: But it does -- the state might have a choice about whether they will engage in a railroad business, but it doesn’t have much choice about whether it’s going to conduct certain operations or to -- it doesn’t have much choice about whether he’s going to run a mental hospital?
Speaker: Well, I think Your Honor is alluding to what we are familiar with as the ancient argument as to proprietary versus governmental powers --
Byron R. White: I didn’t state it. You brought those words up, I didn’t. I just said that the state does not have much choice about whether it’s going to run to mental hospital. Does it or not?
Speaker: I presume that the state doesn’t have much choice as to whether it is going to run a mental hospital.
Byron R. White: And so it’s priced for running a mental hospital as to waive its constitutional right to immunity under the Eleventh Amendment, is that it?
Speaker: When Congress enacts this kind of statute under the commerce power which is plenary unlike the federal taxing power, commerce can lay down under the commerce power, the conditions or operation in reference to anything that affects commerce and that is what Congress did in this case. That is what was upheld in Maryland versus Wirtz. That is what was dealt with in Maryland versus Wirtz which involved the very state which is before us here today among other states, the State of Missouri. And the State of Missouri was unnoticed when that decision was handed down in 1968, that commerce and the exercise of its plenary power under the Commerce Clause had determined that the problem of labor disputes, the problem of maintaining of eliminating unfair competition between the States and the effects on commerce was best dealt with by that enactment in its wisdom and it’s so acted and the Court so upheld the action of Congress in Maryland versus Wirtz. As I say, that case involved not only the State of Maryland, but the State of Missouri, they were a party to it. It was ruled upon. They continue to operate thereafter. They were on full knowledge of the situation. But as the majority held in the Parden case, such waiver need be neither knowing nor intelligent. The point is that it is a matter of the plenary power of Congress under the commerce power.
Warren E. Burger: But then, what you’re saying in effect is that under the Eleventh Amendment, the governmental function aspect of the activity is irrelevant?
Speaker: As to the distinction between governmental and proprietary, and if I may now allude to those words Mr. Chief Justice. Maryland versus Wirtz said, “In the first place, it is clear the Federal Government, when acting within a delegated power may override countervailing state interest whether this be described as governmental or proprietary in character.” That was disposed of many times before. Mr. Chief Justice Frankfurter in the Indian Towing case which involved a waiver of immunity question said, “There is nothing in Tort Claims Act which was involved there which shows that Congress intended to draw distinctions so finespun and capricious” to use the words of the Court as Mr. Justice Frankfurter as to be almost incapable of being held in mind for adequate formulation. And again, in the Rayonier case, Rayonier Inc. versus United States, the court said, “we expressly decided in Indian Towing that an injured party cannot be deprived of its rights under the Act by resorting to an alleged distinction, imported from the law of municipal corporations between the Government’s negligence when it acts on a proprietary capacity and its negligence when it acts in uniquely governmental capacity.”
William H. Rehnquist: Well, didn’t Mr. Justice Frankfurter also say in those bottled water cases in -- was New York --
Speaker: Sanitary District or the bottled water --
William H. Rehnquist: But there could be a distinction between what the state traditionally did as a state and the state entering into business.
Speaker: There was reference to that just as in contrast in the Sanitary District case which I thought, Your Honor had in mind. There was reference to the overriding commerce power enabling the Congress to prevent the state from taking water from Lake Michigan which was essential to its inhabitants because it was in contravention of an enactment by the state -- by the United States in connection with the commerce power.
William H. Rehnquist: But that wasn’t authorizing any private individual to sue the state, was it? You know this isn’t --
Speaker: That did not involve a private suit. Parden which is the governing case here we believe, Parden versus Alabama Terminal Railway did so involved private suit. And in that case, this Court upheld the specifically ruled on this very questioned of the immunity of the States from private suit and held that that immunity did not fasten to the extent of precluding the exercise of the commerce power to enable this private suit which has its purpose, not simply to help the individual as such, but more importantly as has been pointed out by the courts including Parden, the purpose of enforcement of the statute of enabling what could not, otherwise occur by the Government, the enforcement of this exercise of commerce power.
William H. Rehnquist: When you say a state operation for railroad, it’s no different than a state operation of a mental hospital?
Speaker: It depends, Your Honor, on whether one is a mental patient or one who is involved in railroad operation. I don’t need to be fictitious whether it’s essential or not and one fixes on mental hospitals. This statute embraces much more than mental hospitals. It involves hospitals, institutions which exist in the private sector as well as the public sector and it’s function is as stated to by eliminating the differential between what must be paid over 40 hours time-and-a-half, and what may much be paid minimum wage for a public employee as opposed to a private employee by eliminating the unfair competition against private industry by that enactment.
Byron R. White: Well, do you agree, you do agree that the state has a constitutional right to immunity from suits by its own citizens or citizens of other States?
Speaker: We believe it is totally unnecessary here for purposes of this suit to -- of this case to challenge the Eleventh Amendment interpretation, that is right, Your Honor.
Byron R. White: Well, that was an Eleventh Amendment interpretation, was it?
Speaker: Hans versus Louisiana.
Byron R. White: I didn’t think that was an interpreted to Eleventh Amendment?
Speaker: I believe it is, Your Honor?
Byron R. White: I thought it said there was a constitutional right to immunity?
Speaker: By virtue of the Constitution other than the Eleventh Amendment, Your Honor?
Byron R. White: Yes. Well anyway, you do -- you do agree there is a constitutional right in the state to immunity suit?
Speaker: When it does not collide with the plenary power of Congress over the commerce power, Your Honor.
Byron R. White: Well the Congress could certainly -- the issue here isn’t whether Congress can impose the wage and hour conditions of the state. The issue is whether private individuals can sue the state to enforce it.
Speaker: The issue, Your Honor --
Byron R. White: Congress can’t legislate the way the constitutional immunity just by saying it doesn’t exist.
Potter Stewart: As far as the Federal Constitution immunity goes, isn’t it applicable only in federal courts?
Speaker: The statute, Your Honor?
Potter Stewart: No, no, the Federal Constitutional immunity of a sovereign state from suit?
Speaker: That is right --
Potter Stewart: Is that only in Federal [Voice Overlap]
Speaker: Federal support, that’s right.
Byron R. White: But its just private individual reports -- does the statute prevent these suits being brought in state courts?
Speaker: No Your Honor. May I cite what Mr. Justice Right -- White wrote in United State versus California, which is -- I’m sorry in the Parden case in which statement was made on behalf of minority, and this was on behalf on the minority, “I agree that it is within the power of Congress to condition a States’ permit to engage in the interstate transportation business which is what was involved there. On a waiver of the state sovereign immunity from suits arising out of such business, Congress might well determine that allowing regular both conducts such as the operation of a railroad to be undertaken by a body legally immune from liability directly resulting from these operations is so inimical to the purposes of each regulation that the state must be put to the option of either forgoing participation in the conduct or consenting to a legal responsibility or injury caused thereby.”
Byron R. White: In case involving a railroad?
Speaker: Yes, Your honor. I’d like to reserve the balance of my time if there are no further questions.
Byron R. White: And I spoke it the same?
Speaker: Yes, Your Honor, as I pointed out.
Warren E. Burger: Mr. Wallace.
Lawrence G. Wallace: Mr. Chief Justice and may it please the Court. The petitioners here are nonprofessional employees of state hospitals and of a state school in Missouri. Their complaint which was dismissed does not specify their citizenship, but presumably, they are also citizens of Missouri and the suit therefore does not come within the literal terms of the Eleventh Amendment. The protections of the Fair Labor Standards Act were extended to these employees in 1966 Amendments to the Act which this Court upheld as constitutional in Maryland against Wirtz. And they are seeking here to sue their employers in Federal Court for unpaid overtime compensation. As Mr. Zwerdling ably pointed it out at the beginning of his argument on their face, the remedial provisions they invoked under the Act apply to these employees and their employers just as they do to any others covered by the Act. And so the question presented is whether constitutional considerations nonetheless require that this category of employees be discriminated against by being denied a remedy against their employers provided by Congress and available to all others within the Act’s coverage. The answer in our view is to be found by putting together this Court’s decision in Maryland against Wirtz, with its prior decision and Parden against Terminal Railway. What Parden holds is that where a state engages in activities that are validly subject to congressional regulation under the Commerce Clause, it is subject to that regulation as fully as if it were private person or a corporation, and specifically that Congress can in effect condition the states continued participation in the regulated activity on constructive consent to be sued under the federal regulatory statute. And Maryland against Wirtz of course adds to this that the activities involves here are activities that are validly subject to congressional regulation under the Commerce Clause. It seems to us that these cases have developed that as the relevant test rather than the old distinctions that were attempted to be drawn between governmental and proprietary functions or what might be called essential functions or traditional functions.
Byron R. White: But the function really is, whether you can reasonably say the state has waived, isn’t that the basic question?
Lawrence G. Wallace: I -- we don’t regard Parden --
Byron R. White: What Parden is all about?
Lawrence G. Wallace: Well, the dissent said that it was a waiver. I don’t think that word was used in their court’s opinion. It really amounted to a constructive consent. It’s a condition. It’s --
Byron R. White: And if you want to do this, you have to do that so --
Lawrence G. Wallace: Congress has undertaken to regulate the activities in this field rather perform by a state or by a business and to undertake them evenhandedly it has notified the state that if they continue to engage in this activity, they are subject to the same federal regulation of that -- of the business enterprises also engaging in this activity are subject to. And by continuing to engage in the activity the state constructively consents to be sued. Therefore, that’s what the court reasoned in Parden.
Byron R. White: That’s what’s all about it where there is consented -- it is said to have consented to suit in a federal court?
Lawrence G. Wallace: That is correct Your Honor, by engaging in the activity. Now, indeed, we think that in two important respects, this case really follows a fortiori from Parden. First, the FELA which was the statute at issue in Parden made no reference to state-owned railroads. It merely said that “Every common carrier by railroad while engaging in commerce” is liable to injured employees and subject to suit and the court there had to decide whether this general language should be construed to include state-owned the railroads. A majority held that it should although four dissenting justices were of the view that Congress should speak more specifically in order to subject States to suit if they engage in activity subject to regulation under the Commerce Clause and here Congress has explicitly amended a series of definitional provisions in the Fair Labor Standards Act to make the Act’s provision apply.
William H. Rehnquist: Mr. Wallace, would you say that Parden is basically a constitutional holding?
Lawrence G. Wallace: The Court was unanimously of the view in Parden that Congress had the constitutional power to impose in effect this constructive consent under States activity that was divided five to four on whether Congress had in fact done so. So it was both the constitutional under statutory decision. The court was unanimous on its constitutional holding but divided five to four on a statutory construction. There is no question but under this Act, the state has been put on noticed which was the query raised in the dissent in part. It’s been put on noticed that the provisions applied to it and it is been put on noticed that it surely a subject to suit if it violates them by withholdings, the wages that are due surely subject to suit by the secretary and on the face of the Act also subject to suit and by the employees as well. So, --
Potter Stewart: The remedies in suit by the Secretary or what and injunction he can enjoin --
Lawrence G. Wallace: He can enjoin --
Potter Stewart: And he can get a recovery of the single wages, is that it?
Lawrence G. Wallace: Of the single wages without interest and without consequential damages of any kind. In the ordinary suit brought by the employee to fully compensate him, Congress has provided for liquidated damages --
Potter Stewart: Double recovery plus interest, plus attorney’s fees?
Lawrence G. Wallace: It’s not plus interest, Your Honor.
Potter Stewart: Plus attorney’s fees?
Lawrence G. Wallace: It is in lieu of interest and in lieu of consequential damages --
Potter Stewart: And plus attorney’s fees?
Lawrence G. Wallace: Plus attorney’s fees, otherwise, many of these suits I doubt would be in Court.
Potter Stewart: Right.
Lawrence G. Wallace: Because many of them are relatively smart --
Potter Stewart: Well, I understand the argument. I am just asking for information and the -- if the Secretary does move in and the wage earners’ lawsuit is displaced, is that right?
Lawrence G. Wallace: That is correct. And those instances where the Secretary sues. The Court long ago held that the liquidated damages provision is compensatory in nature that there are many consequential damages as suffered by wage earners in low pay categories such as, the non-professional employees in hospitals, schools and volunteers and many consequential damages from withheld wages which are difficult to ascertain in lieu of either interests or consequential damages, this is the measure of compensation.
Potter Stewart: What happens when Secretary recovers money? Is that payable immediately to the employees?
Lawrence G. Wallace: That is turned over to the employee the recovery, yes.
Potter Stewart: With just that much?
Lawrence G. Wallace: Just that much, just the amount of the withheld wages. So that in effect the judgment against the employer in that case is nothing but he should have paid all along and sometime earlier and he’s had the use of the money in the 31:48. Now, there is another important respect in which this case in our view follows a fortiori from Parden. Here the substantive requirements of the Act clearly apply to the state of employers and the only question is whether in the context of state employment, this substantive right should be separated from the statutory remedy provided for employees. In our view, even if this kind of divorce of rights from remedies might be possible in interpreting some statutes, it is particularly inappropriate with respect to the Fair Labor Standards Act. Because under the Fair Labors Standards Act, the remedy is not merely compensatory as it is in most statutes including the FELA which was involved in Parden but the remedy itself also accomplishes an important part of the regulatory objective that Congress had. Since one of the principle purposes of the act is to insure that some employers do not gain an unfair advantage over their competitors by paying substandard wages, that is why this Court has said that Section 16 (b) of the Act involved here has both a public and a private character that it is both compensatory and an enforcement provision. And significantly, the Senate Report on the 1966 Amendments specifically said that one of the purposes of extending the Act to cover this state-run institutions was to bring about a competitively equality with similar activities carried on by business enterprises. We have the quote on page 17 of our brief from the report. They were attempting to follow through on the Act’s original basic purpose of eliminating unfair methods of competition in Congress -- in commerce.
Warren E. Burger: Would that -- that means you’re telling us that the operation of a mental hospital or a university by the States is unfair competition against private universities and private hospitals?
Lawrence G. Wallace: Well, this was the view Congress took. They are --
Warren E. Burger: If you think that was --
Lawrence G. Wallace: I think there is a rational basis for concluding that in many instances they are competing with privately run instances they are competing with privately-run enterprises and Congress spell was unfair for the privately-run enterprise to have to comply with the provisions in the Fair Labor Standard Act and to have competing services made available by state institutions at lower clause to uses of those services partly because low paid non-professional personnel are being paid substandard wages. This was one of the conclusions Congress came to and enacting the amendments that this Court upheld in Maryland against Wirtz. Another basic purpose of the Fair Labor Standards Act resided in the Act itself was to avoid labor disputes that interfere with the commerce. Congress wanted to take these controversies about substandard wages and overtime compensation out of the streets and into the courts. Yet what could be more calculated to lead to labors strife than a holding that employees whose federal statutory rights have been violated are to be denied a judicial remedy. So in this respect too, the remedy here is an integral part of the regulatory objective. But it is not merely compensatory and not merely designed to encourage compliance with the Act as our most remedies in statutes. Of course, it also does encourage compliance and thereby furthers the Act’s other objectives such as reducing unemployment by encouraging employers to hire more people rather than to work their employees at overtime. This is one of the basic objectives of the act and except continuing importance with our persistent unemployment. Now, the fact that the Secretary of Labor is also empowered to bring enforcement suits here which will not fully compensate the employees does not in our view call for a different result than in Parden because of the vast numbers of employees and establishments covered by the Act. The Secretary is unable to bring suits except in the small proportion of the cases in which violations occur. Indeed, the Secretary is not staffed even to be able to investigate. All possible violations let alone to bring suit against all the violations that occur and of necessity the Secretary’s limited staff of 15 attorneys and 13 regional offices must concentrate their efforts on cases that involved the greatest public interest. From the beginning, Congress decided to provide a private remedy in the Act rather than to create the best federal bureaucracy that would otherwise be required if enforcement were to be entirely in the hands of the Secretary.
Warren E. Burger: But how much exactly of vast bureaucracy would you need if you allocated this enforcement just with respect to the States?
Lawrence G. Wallace: Well, of the covered employees to 2.7 million of them are in these covered state institutions and this involves 118,000 such institutions, so it’s a substantial part. All together we’re talking about 2 million establishments and 45 million employees but it is still a very substantial figure and the problem would be very much exacerbated Mr. Justice by the same issue which arises under 1972 amendments to the Fair Labor Standards Act which extend coverage of the equal pay for equal work regardless of sex provisions to professional employees in this covered institutions including the state institutions. Those are cases that tend to involve special facts that have to be developed with regard to the particular individuals covered and to whether their work is comparable to somebody else’s work. They’re quite time-consuming lawsuits and in many instances of employees denied compensation. You have time-consuming factual problems to be developed in the suits. There’s little doubt to what the Secretary could not bring suit on behalf of all who would be entitled to recovery and the Secretary would then be in a very awkward position and his refusal to bring suit that would constitute a final denial of a remedy in particular cases. And there is no reason to believe that Congress intended to give the Secretary that kind of essentially unreviewable authority over the rights of individuals protected by this Act. Thank you.
Warren E. Burger: Very well. Mr. Blackmar.
Charles A. Blackmar: Mr. Chief Justice, may it please the Court. I think I would discuss first of all, what is not at issue in this case the way the State of Missouri to use the case. First, there’s no question that Congress has the power to include state schools and hospitals under the definition of employer found in the Federal Labor or Fair Labor Standards Act and there is no doubt that Congress has done so. That is Maryland versus Wirtz in the 1966 Amendment to the Act. Furthermore, there’s no doubt that Missouri has an obligation to obey the Act. And looking at the Parden case, we do not dispute the fact that Congress has power to require Missouri to waive its constitutional immunity from suit as a condition to entering into activities where Congress has regulated it -- regulated the activities pursuant towards commerce power, if Congress so provides. And finally, there is no question presented by this case as to whether a state court would be required to hear an action brought under 216 (b) or 16 (b) by a private employee whether that would be required either by Federal Constitutional law or by Missouri law.
Potter Stewart: You -- do I understand that you concede that an action such as this could be brought in a state court?
Charles A. Blackmar: No, Your Honor, I am saying that that question is not presented by this case. I do not concede that in this case although I think there are very persuasive arguments that certainly could be made that the state court would under the Sixth Amendment or Article 6 of the Constitution where it required to enforce the federal laws have a duty to hear such a case.
Potter Stewart: And you do concede I would or do you that so far as the Federal Constitution goals with its protection of state sovereign immunity that protection extends only to federal court actions?
Charles A. Blackmar: Yes, Your Honor.
Potter Stewart: Certainly the terms of the Eleventh Amendment talked in terms of extending the power in federal courts.
Charles A. Blackmar: Whether we speak in terms of the Eleventh Amendment or the basic constitutional principle recognized in the Hans case --
Potter Stewart: Hans against Louisiana.
Charles A. Blackmar: That was not the Eleventh Amendment. We will suggest that it only applies to the federal courts.
Potter Stewart: Federal courts.
Charles A. Blackmar: What is at issue is one narrow question that is whether the remedies provided that private employer by 16 (b) were intended by Congress to be available to such employees against the State of Missouri. Now, in 1938 --
Warren E. Burger: Will you concede the right then that say but you challenge the remedy?
Charles A. Blackmar: That’s precisely it, Your Honor. I feel we have to concede the right on the basis of both the minority and majority in the Parden case which recognized that Congress does have a power to require the state to waive it’s consent to suit as a condition to entering activities regulated by Congress and the Maryland versus Wirtz case which holds that Congress has the power to regulate wages from schools.
William J. Brennan, Jr.: So you say, the only issue then is where the Congress required Missouri to waive?
Charles A. Blackmar: Yes, Your Honor. That is Missouri’s position. In 1938 when the wage Fair Labor Standards Act has initially passed, states were excluded from coverage of the Act. In 1966, an exception to that exclusion was written into the Act in the case of state schools and hospitals. The Act has four remedy provisions. First of all, there are criminal sanctions in Section 16 (a). Secondly, the Secretary of Labor by Section 16 (c) is authorized to file a suit when requested by employees in behalf of the employees to recover wages that are not been paid to them.
Warren E. Burger: We’ll resume right there after lunch.[Noon Recess] You may continue Mr. Blackmar.
Charles A. Blackmar: Mr. Chief Justice and members of the Court, we were discussing the four remedies that Congress has provided under the Fair Labor Standards Act. In matching that first was this criminal sanction under Section 16 (a). Secondly, there was the suit by the Secretary of Labor when the employees requested him to maintain a suit where he may recover unpaid wages in behalf of the employees which he ultimately will turn over to the employer.
Potter Stewart: And he can do that only on requests?
Charles A. Blackmar: This is a suit under 16 (c). Now, there is a remedy under Section 17 as to the third remedy where the Secretary of Labor may seek an injunction against the employer and as part of this equitable relief, request restitution of unpaid wages. It would seem that Section 17 has pretty much eliminated Section 16 (b) as an effective remedy by the Secretary of Labor, because he can do more under that Section with fewer restraints than it can under Section 16 (b). 16 (b) has a provision that he may not bring an action when there is a novel legal question undecided by the courts. That restraint is not found on Section 17. And finally, the remedy of Section 16 (b) if I say 16 (b) before I meant 16 (c), the Section 16 (c) allows private individuals to sue there employers to recover their unpaid compensation an equal amount as liquidated damages, termed “liquidated damages” are the words that Congress has used and reasonable Attorney’s fees. I get --
Potter Stewart: We’re talking here only about 16 (c)?
Charles A. Blackmar: Only 16 (c) and this is the only situation where the employer is required to pay more than has been withheld illegally. Again, to the question presented in this case as specifically and expressly left unanswered by the Maryland versus Wirtz question. And the question is, “Did the exclusion of State employees under the Fair Labor Standards Act automatically result in an intention that Congress would make applicable the 16 (b) remedies of private suit against the State to such employers?” Really the question is, “Did Congress destroy the State’s constitutional immunity from suit in this area?” We note that there is not one word in the Fair Labor Standards Act itself where the 1966 amendments indicates that a state is subject to suit by private individuals notwithstanding its constitutional immunity. It has often been observed that the federal courts are courts of limited jurisdiction. Now, the Fair Labor Standards Act does not, in itself, confer jurisdiction to hear a case arising from the Act in the federal courts. The jurisdiction is conferred by 28 U.S.C. Section 1339, which is a jurisdiction statute and an act -- deals with an act of Congress regulating commerce. That is the jurisdictional section that the plaintiffs below brought this case under. Now, it has been held by this Court that the mere fact that there is a federal question in the case does not mean that the states are subject to suit by private individuals in the federal courts. And we would submit that since the basic federal question jurisdictional statute is little different except for jurisdiction amount and the jurisdiction statute that is involved in cases of Congress or cases arising out of acts of Congress regulating Congress that it can be argued and should be argued that Congress has not intended one, in one way to any degree to change the State’s basic position which is that they are immune from suit in the federal courts.
Byron R. White: How does that argument survive Parden?
Charles A. Blackmar: Well, Parden, Section 56 of the FELA specifically allowed the employee to maintain an action in the federal courts. I would submit that that is a jurisdictional --
Byron R. White: That is expressly an congressional intent that is not present in this case?
Charles A. Blackmar: Yes, Your Honor. That is the jurisdiction that I think not only shows an attempt on Congress --
Byron R. White: Now, but that the 16 (c) permit the employee to suit?
Charles A. Blackmar: In the court of competent jurisdiction and the federal courts here are not courts of competent jurisdiction.
Byron R. White: Unless --
Charles A. Blackmar: The State --
Byron R. White: Unless they are otherwise competent?
Charles A. Blackmar: Unless the State has consented to suit. And that’s the Eleventh Amendment and the constitutional principle of sovereign immunity. Now, the Parden case --
Thurgood Marshall: But isn’t it true that without that the employees are practically without remedy?
Charles A. Blackmar: I don’t think that this is certainly the situation in Missouri as our brief indicates the Secretary of Labor has filed an action under Section 17 against the State of Missouri. That action included some 2,000 or 3,000 employees and they have been successful in that action and the State has as a matter of fact had an appropriation to pay those employees and it has paid those employees.
Thurgood Marshall: But that’s not the Congress’ action as I understand it. This private action was in order to get enforcement sufficient for the employees, am I right?
Charles A. Blackmar: To have future enforcement, although the Court declined an injunction and to recover past unpaid compensation.
Thurgood Marshall: That was the purpose of 6 (c)? That was the purpose of that Section, am I right?
Charles A. Blackmar: The purpose of Section 16 (b) was to permit private actions by the employees. The suit that I'm talking about --
Thurgood Marshall: Well, isn’t that just as valid if the State is or as a private person?
Charles A. Blackmar: Pardon me?
Thurgood Marshall: Isn’t that just as valid to protect the employee of a State as it is necessary to protect the employee of a private employer?
Charles A. Blackmar: Well, except that there has been a traditional principle that the states are immune from suit in the federal courts and --
Thurgood Marshall: But why did Congress leave it there? Why did Congress leave it, 16 (c)?
Charles A. Blackmar: Well, because it would have application. Well, 16 (c) is the section that permits the Secretary of Labor to bring suit.
Thurgood Marshall: Well, I thought I was -- well, which ever Section involved allows the private employee. Now, what section is that?
Charles A. Blackmar: That’s 16 (b).
Thurgood Marshall: That’s what I thought. But under 16 (b), is it just as necessary for the employee working for the State as it is for an employee working for private individual?
Charles A. Blackmar: I don’t know. I would think that there are different considerations between public employment and private employment. I think for one thing that you have a single entity that is generally inclined  to obey the law. It is generally not engaged in competition, and as soon as it can administratively solve the problems that exists in complying with the Fair Labor Standards Act is reasonable and it has been our experience in Missouri that it has. It seems to me that there are special incentives possibly to private employers to violate the Act in competitive --
Thurgood Marshall: But then there’s no need to bring the State under the Act?
Charles A. Blackmar: Competitive advantage. Well, Congress has brought some activities of the State under the Act, but I think that the congressional purposes in so doing can be fully vindicated without finding that Congress intended that the State waived its immunity from suit. And that is the proposition that I am arguing to the Court today. Congress did not say that the State would lose its immunity as a condition of continuing to operate state schools and hospitals after it became covered with respect to those activities. And I submit that it is not reasonable to infer that that was the congressional intention.
Warren E. Burger: The Solicitor General’s brief I think and the argument indicated that about 95% of all the employees covered with the Act are private, truly private employees, and perhaps 4-5% more or less are public. Do you quarrel with that figure?
Charles A. Blackmar: I would think that would be a reasonable estimate. Very few --
Warren E. Burger: In your point of view, the only thing supporting the -- govern the Solicitor General’s view and his friend is that it’s more convenient to let the private -- the employee sue in a private suit rather than have the Secretary sue for them?
Charles A. Blackmar: That appears to be the Solicitor General’s argument and I thought he advanced to a rather novel proposition which was because of the limited staff available in the Solicitor of Labor’s Office that Congress must not have intended that would be the sole vehicle by which the Act could be enforced against the State. As a matter fact, the Department of Labor has sued Missouri and has sued, to my knowledge, at least ten other states to recover unpaid overtime compensation. I think that in this area that one or two state suits against the State pretty much forces sustaining the containing the compliance. When that is done, the State gives its employees what they have coming under the Act. Since there are only 50 States, I think sooner or later, United States persist in disobeying the Act and it will be compelled by the remedies available under the Act to comply whether it likes it or not and it will not be particularly difficult for the Secretary of Labor to maintain such suits. Parden recognizes that a State must consent to suit and the Court in that case went on to find that Alabama when it commenced operation of a railroad 20 years after the FELA was enacted necessarily consented to such suit. In this case, we would have to ask, when did Missouri consent? Did it consent when Congress passed the Act and the Act became effective? That it consents after Maryland versus Wirtz were decided or was it some other date at which it was consented. It is known and is recognized by the court below that Missouri operated schools and hospitals prior to the effective date of the 1966 Amendments. At some point according to the arguments advanced by the petitioners Missouri must have consented to the Act. But I do not see how you can say that the State continuing the activities that it has historically engaged in, in which it had been recognized as functions of state government consented to waive its constitutional immunity from suit in a federal courts. Certainly, the Act did not advise Missouri in express language that it was going to have to make what the District Court in Idaho was temred to Hobson’s choice of either foregoing the operation of its schools and hospitals or consenting to suit by private individuals in the federal court. Congress very easily could have provided an expressed waiver provision where it would advise the States that they would lose this immunity but it has not done so. And that leads me to three factors which the court below distinguished this case from Parden, and I think each of these factors are very important in considering that question of what did Congress intend when it made the State subject to the Act. First of all, there is the very nature of schools and hospitals. There are traditionally activities States engage in. Considering the nature of those activities, is it reasonable to infer that Congress would intend that an employee would recover double before the State were to spend funds on the care of the patients or the students of the institutions covered? And of course, there’s the fact that there are double damages and attorney’s fees that are available to the private employees that they are permitted to maintain the suit. It does not seem again that Congress would intend that this type of remedy be available against the State. I think that there are more -- at least it’s a policy judgment that should be made expressly and not found by a court on the basis of silence. And finally, the Court --
Byron R. White: Would you make that argument if there was a suit brought under the Act in the State Court?
Charles A. Blackmar: I would consider making that argument, I don’t know.
Byron R. White: It would be very difficult for you to do so?
Charles A. Blackmar: It would be very difficult to argue that if the State Court had jurisdiction that the provisions of the Act did not apply.
Byron R. White: Yes.
Charles A. Blackmar: And as I mentioned earlier, I am not necessarily conceding that the --
Byron R. White: So really -- your argument really is should be whether the Congress intended to make the remedy available in the federal court?
Charles A. Blackmar: That’s -- well, the argument -- yes, it would be --
Byron R. White: Rather than et al.
Charles A. Blackmar: This goes to -- the fact that there are the double damages, I think, goes to the intent of the Congress and I think that when you have an extreme remedy of that nature, that it certainly raises a question as to whether Congress intended that that type of remedy would be available against the State.
Warren E. Burger: Well, what does that -- enlighten me on this. What does that have to do with whether the suit is brought in the state court or to the federal court?
Charles A. Blackmar: Well, the Parden case --
Warren E. Burger: Eleventh Amendment is --
Charles A. Blackmar: It’s whether the Congress intended that the State waive its immunity.
Warren E. Burger: Well, but you’ve indicated or at least I thought you had that you would not have this defense that you’re arguing to a suit in the state court.
Charles A. Blackmar: Yes.
Warren E. Burger: How could they recover double damages in all of the statutory remedies in the state court?
Charles A. Blackmar: They will certainly be in a position to argue that they could, and we would be --
Warren E. Burger: Is there anything in the Act that indicates that you wouldn’t get the same remedy in the state court as in the federal court?
Charles A. Blackmar: No, there isn’t.
Warren E. Burger: So, you’re really just arguing the forum, aren’t you?
Charles A. Blackmar: I am arguing the forum and I think in view of the remedy there is -- it certainly raises the question as to whether Congress intended that the forum be available.
Potter Stewart: Well as I understood you General Blackmar, you haven’t conceded, however, that this kind of suit could be part of the state court. You simply pointed out that question is not before us?
Charles A. Blackmar: Yes, I have to try to limit it to that question. The final factor I think the Eight Circuit relied on and I think is significant is the fact that there are alternative remedies which will vindicate the congressional purpose behind the Fair Labor Standards Act amendments. Now in the Parden case, if the Court had not found that the federal form was available to the employee suing the State of Alabama, he would’ve been left without a remedy. The whole purpose of the Federal Employers Liability Act was to permit injured employees to recover. Now I think, the Fair Labor Standards Act and it's been discussed by the --
William J. Brennan, Jr.: No, but that Act, that Act permit suit in the state court?
Charles A. Blackmar: It permits suits in state court as well as federal court and expressly and expressly -- expressly says to either court this Act, Your Honors, only says a court of competent jurisdiction.
Warren E. Burger: Well, that certainly doesn’t give any intimations of excluding state courts --, state courts being courts of general jurisdiction. I thought earlier under your argument you have virtually conceded that not in this last colloquy but --
Charles A. Blackmar: Well, I’ve considered --
Warren E. Burger: Well, what?
Charles A. Blackmar: -- that the State of Missouri -- I do not believe the question is before the Court.
Warren E. Burger: Well, I know. I know, of course.
Charles A. Blackmar: But I would say --
Byron R. White: Well, don’t we?
Charles A. Blackmar: That is a difficult question and that Missouri placed on several cases would be hard-pressed to argue that the state court cannot or did not have jurisdiction to hear the action.
William H. Rehnquist: Mr. Blackmar, Am I right in taking that there might be two separate inquiries as to whether a suit like this might be entertained in the state courts of Missouri. The first being whether under Missouri State law, you could sue this particular public institution and the second being whether Congress might have by implication required the state courts to entertain such action?
Charles A. Blackmar: Right, it would be right. I’ll probably reverse the order as to the order you asked the questions but there would be two separate inquiries. If it wasn’t --
Byron R. White: May I ask you -- is there a form of Missouri for employees to stay in suit for back pay? Let’s assume there is -- has Missouri waived its own sovereign immunity with its own?
Charles A. Blackmar: Missouri historically has been very, very reluctant to yield one bit of its sovereign immunity. Now, there is a fairly recent case involving a state contract where the court --
Byron R. White: Is this judicial -- almost an entirely judicial constructed Missouri or is it statutory?
Charles A. Blackmar: No, it is basically judicial. We do not have constitutional provisions like Alabama does and I believe Illinois which are very expressed on that question of sovereign immunity.
Potter Stewart: I suppose you could therefore make the argument that a state court would not be a court of competent jurisdiction?
Charles A. Blackmar: Well, --
Potter Stewart: But in any event you have pointed out at the outset that [Voice Overlap].
Charles A. Blackmar: I would hate to leave myself into the position of arguing against the position. I may have to rgue sometime in the state court.
Potter Stewart: All right. In any event that questions not before us and that’s your real point?
Charles A. Blackmar: And finally, the Eighth Circuit didn't consider the alternative remedies that are available which I think really will indicate the Act and certainly have in Missouri. After the Secretary of Labor filed his action in Missouri Legislature for the first time took cognizance of the problem. They appropriated a sum of money which was sufficient to satisfy the judgment. The people who had compensation coming to them were paid and the State was able to pay them reserving its traditional practices of paying on appropriations and warrants drawn by the State Treasurer, after action by the state legislature. It was asked as to whether the State of Missouri would have a defense to the double damage provisions. Section 11 of the Portal to Portal Act, allows us an employer to make a defense that the act or admission giving rise to such action was in good faith that is act or admission giving rise to the failure to pay wages. After reading the Portal to Portal cases, I do not -- I am not at all share and I’m rather pessimistic that Missouri would have any defense that would meet the traditional Portal to Portal Act arguments that Missouri has acted in good faith and should be in permitted not to have to pay the double damages. This is a serious question and it’s a question that goes to where I think the heart of our federal system. It may not be fair from a strict equity sense that States are immune from suit in the federal courts for their wrongs where there is established law. When the Court held otherwise back in the case Chisholm versus Georgia, there wasn’t immediate response by on the part of Congress and the States with the enactment of the Eleventh Amendment. Ever since that date, the courts have been very respectful of the States Sovereign Immunity. Congress has not expressly said that the States are to lose that immunity. I don’t think it’s fair to read that into Act by implication. I would like to close my argument of this observation. When the Portal to Portal Act was enacted, the Congress started out with this finding. The Congress finds that the Fair Labor Standards Act of 1938 as amended has been interpreted judicially in this regard of long established customs and precedents. I would think that if the Court would find that Missouri has lost its constitutional immunity that that would be a holding that would be contrary to long established customs and precedents. Thank you.
Warren E. Burger: Thank you Mr. Blackmar. Mr. Zwerdling you have few minutes left.
Speaker: Mr. Chief Justice, my approach to the statutory intent here was perhaps more pedestrian than that of my brother debar. I went to the statute and I cited very carefully and explicitly to this Court the language that Congress injected in 1966 by its amendments. And I traced carefully the result by virtue of that set of statutory amendments and nothing could be more explicit than the congressional intent of that. I will not yield to the temptation of laundering into the thicket of the question of whether the state courts are in or out. I would merely observe that assuming for the sake of argument only that the state courts are available as a remedy, Congress chose to give the employees access to the federal system to the federal courts with all of the advantages that flow therefrom. Including --
Warren E. Burger: What specific language do you rely on to indicate that they were explicit, I think you said, in granting a federal a suit against the state in federal court?
Speaker: By saying that in a definition, in the Amendment of Section 3 of the definitions, giving access to Section 16 (b) to these employees covered by amendments where it says in Section 16 (b) “Any court of competent jurisdiction.”
Warren E. Burger: And do you think that’s explicit enough to take care of the Eleventh Act?
Speaker: It is particularly explicit in the light of the fact that the statute has been on the books since 1938 and almost invariably the suits occur in federal court. And Congress had the experience of all of the years since 1938 of the exercise of this statutory language in thousands and tens and thousands of private employee suits in federal court where they almost been variably go under Section 16 (b). And in the light of that experience, Congress and its Amendment of the definitions chose to pass on to the public employees covered as it had in 38 private employees that access.
Warren E. Burger: Does the legislative history show any discussion or consideration of the Eleventh Amendment problem?
Speaker: Not at such, Your Honor.
Warren E. Burger: You wouldn’t think that that would escape their attention?
Speaker: It would escape their attention I believe it were -- if it were not in question as it appeared not to be in question since they enacted this amendments in 1966 barely two years after this Court handed down Parden, which laid down the disposition of this question, and in the light of that knowledge, Congress enacted the amendments of 1966. There are 50 States as this counsel points out, but there are some 118,000 establishments in question here which is a harsh of somewhat of different color in terms of the problem of the Secretary of Labor enforcement. And just to illustrate in the facts of this case, the complaint here was filed when? The compliant was filed by these employees in August of 1969 for backpay and liquidated damages commencing in February of 1967. The Secretary of Labor came in later in January of 1971, reaching back only to January of 1969 and then only because of the course of this litigation and its disposition. Let me just conclude by reemphasizing once again that as was said in Parden, “By empowering Congress to regulate commerce then, the states necessarily surrender any portion of their sovereignty that would stand in the way of such regulation.” Such regulation involves two parts, two sides of the coin. It involves reaching the substantives matter by exercise of the commerce power to achieve this coverage that we’re talking about, but at the same time, there goes with that exercising commerce power to reach the remedy which is the chosen means, which has been utilized successfully since 1938 which Congress in the light of that long experienced with millions of situations around the country with some 40 million people decided to extend to certain limited classes of state employees as they did here. We believe that Maryland versus Wirtz and Parden govern and as was said in Maryland versus Wirtz, I conclude on this if I may. It said “This Court was, of course, concerned only with the finding of a substantially effect on interstate competition and not where the consequent policy decisions.” Quoting another case, Katz and Buck, this Court said, “Where we find that the legislatures have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation isn’t at an end.” May I submit that in Parden when that case was concluded the Court had already determined as to this situation that that case -- that this investigation is at an end.
Warren E. Burger: Mr. Zwerdling, would you think as another factor to be taken into account the greater uniformity that might be achieved in dealing with these cases in Eleventh Circuit as distinguished from 50 --
Speaker: Mr. Chief Justice, that argument is better than mine. It is all of the aspects of the federal jurisdiction, the availability of liberal discovery which is very important to employees in these suits, the uniformity that you point out, the fact that there is more expertise in interpreting federal laws, all of the panoply of reasons, which would cause Congress to be moved to make this remedy available in any court of competent jurisdiction. If there are not further questions, thank you.
Warren E. Burger: Thank you Mr. Zwerdling. Thank you gentlemen. The case is submitted.