                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-2283


LAURA LYNN MARTIN,

                 Plaintiff - Appellee,

           v.

JACK LEE WOOD; MILAGROS ALCALA JONES,

                 Defendants – Appellants,

           and

COMMONWEALTH   OF   VIRGINIA;  COMMONWEALTH   OF   VIRGINIA
DEPARTMENT OF BEHAVIORAL HEALTH AND DEVELOPMENTAL SERVICES;
EASTERN STATE HOSPITAL,

                 Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:13-cv-00018-AWA-LRL)


Argued:   September 17, 2014             Decided:   November 18, 2014


Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.


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


ARGUED: Sydney Edmund Rab, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants.    Raymond Lee
Hogge, Jr., HOGGE LAW, Norfolk, Virginia, for Appellee.        ON
BRIEF: Kenneth Thomas Cuccinelli, II, Attorney General, Earle
Duncan Getchall, Jr., Solicitor General, Wesley Glenn Russell,
Jr., Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants.     Kenneth Michael
Golski, HOGGE LAW, Norfolk, Virginia, for Appellee.




                                2
NIEMEYER, Circuit Judge:

     Laura Martin, a registered nurse formerly employed by a

state-operated       hospital    in   Williamsburg,     Virginia,       commenced

this damages action against two supervisors at the hospital,

alleging that the supervisors improperly refused to authorize

overtime pay for the hours that she worked in excess of 40 hours

per week, in violation of the Fair Labor Standards Act of 1938

(“FLSA”), 29 U.S.C. §§ 201-219.             The supervisors filed a motion

to dismiss the complaint, claiming sovereign immunity.                         They

contend that their conduct, as alleged, involved their official

duties on behalf of the hospital, such that the complaint was,

in reality, directed against the hospital, which has sovereign

immunity.      The    district    court,     however,   denied    the    motion,

relying   on   Martin’s    assertion    in    her   complaint    that    she    was

suing the supervisors in their individual capacities.

     Because the actions of Martin’s supervisors, as alleged in

the complaint, were inextricably tied to their official duties,

we conclude that the Commonwealth of Virginia is the real party

in interest in this action.            Since the Eleventh Amendment has

withdrawn jurisdiction over suits of this nature against the

States, effectively giving the Commonwealth immunity, we reverse

and remand with instructions to dismiss the complaint.




                                        3
                                               I

        In her complaint, Martin alleges that from November 2010

until January 2012 she was employed as a registered nurse by

Eastern State Hospital and that the Hospital paid her wages on

an hourly basis.           Because of transitional duties during shift

changes    at    the     Hospital,      Martin      claims       that       she    often      began

performing       her     duties    20 minutes           or     more    before          her    shift

started and continued working 30 to 90 minutes after her shift

ended.     She also alleges that she often worked through her 30-

minute lunch break.               Even though this often resulted in her

working more than 40 hours per week, Martin alleges that she was

compensated       for    only     40 hours,        in    violation          of    the    overtime

provision of the FLSA, 29 U.S.C. § 207(a)(1).

        Martin    further       alleges        that,         when     she        complained     to

Milagros Jones, the registered nurse coordinator for the unit in

which    Martin     worked,       about    not      being       paid        overtime,         Jones

refused    to     take    action,       attributing           Martin’s       extra       time   to

“inefficiency.”          Martin also asserts that Jack Wood, the chief

executive officer and director of the Hospital, “willfully and

deliberately       refused        to    correct”         the        failure       to    pay     her

overtime.        The complaint notes, however, that this allegation

was   “[b]ased     upon     circumstantial              evidence       including         but    not

necessarily limited to the job duties and responsibilities of

Wood.”      The    complaint,          which    named        only     Wood       and    Jones   as

                                               4
defendants, asserts that in failing to authorize overtime pay to

Martin, Wood and Jones “acted directly and indirectly in the

interest of Eastern State Hospital in relation to the hours of

work and payment of wages to Eastern State Hospital employees

including     Martin.”             It   demands        damages         from    them    in    their

individual capacities in the form of “overtime compensation,”

“liquidated damages in an equal amount,” and interest.

      Wood    and     Jones    filed       a    motion       to    dismiss      the    complaint

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),

asserting that they are entitled to the same sovereign immunity

enjoyed      by     Eastern        State       Hospital       as       an     agency    of     the

Commonwealth of Virginia.                 They noted that the complaint centers

on their official authority to direct and control employees,

such as Martin, with respect to their hours and wages and that

it fails to allege that they acted in an ultra vires manner

against      Martin    or      that       they       acted    to       serve    any     personal

interest.         Thus, they claimed that, because their conduct was

“tied inextricably to their official duties,” they had the same

sovereign     immunity        as    did    the       Hospital,      relying      on    Lizzi    v.

Alexander, 255 F.3d 128, 136 (4th Cir. 2001), overruled in part

on   other    grounds    by        Nevada      Department         of    Human    Resources      v.

Hibbs, 538 U.S. 721 (2003).

      The     district        court         denied      Wood        and       Jones’     motion,

explaining:

                                                 5
       [T]he   Complaint   alleges   significant   intentional
       misconduct committed by Mr. Wood and Ms. Jones.     The
       FLSA   claims  are   unquestionably  directed   against
       Mr. Wood and Ms. Jones in their individual capacities.

            In sum, Ms. Martin’s Complaint, on its face,
       states FLSA claims against Mr. Wood and Ms. Jones in
       their individual capacities.   Sovereign immunity is
       inapplicable to such claims. See Hafer [v. Melo, 502
       U.S. 21, 31 (1999)].

       Wood and Jones filed this interlocutory appeal, contending

that    the    district      court    erred    in    denying   them   sovereign

immunity.      See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc.,    506 U.S.     139,     144    (1993)    (authorizing     interlocutory

appeals from orders denying Eleventh Amendment immunity).


                                          II

       The FLSA provides that “no employer shall employ any of his

employees . . . for a workweek longer than forty hours unless

such employee receives compensation for his employment in excess

of the hours above specified at a rate not less than one and

one-half times the regular rate at which he is employed.”                     29

U.S.C. § 207(a)(1).           The term “employer” is defined to include

“any person acting directly or indirectly in the interest of an

employer      in   relation    to    an   employee   and   includes   a   public

agency.”      Id. § 203(d).

       Martin concedes that Eastern State Hospital, as an agency

of the Commonwealth of Virginia, has sovereign immunity from

damages claims brought under the FLSA by reason of the Eleventh

                                          6
Amendment. *      In addition, she concedes that sovereign immunity

from such claims also extends to “state officers acting in their

official capacity.”         Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 609 n.10 (2001)

(citing Edelman v. Jordan, 415 U.S. 651 (1974)). And while a

State may, by an unequivocal expression, waive its sovereign

immunity, Martin acknowledges that Virginia has not done so.

See Commonwealth v. Luzik, 524 S.E.2d 871, 878 (Va. 2000).                     She

also       acknowledges    that    while   Congress   can    abrogate    Eleventh

Amendment       immunity    with    respect    to   rights   protected    by   the

Fourteenth Amendment, it did not do so in the FLSA.                     See Abril

v. Virginia, 145 F.3d 182, 189-91 (4th Cir. 1998).                 Rather, she

justifies the court’s jurisdiction over her complaint on the

fact that sovereign immunity does not extend to suits against

state officials who are sued in their individual capacities.

See Hafer v. Melo, 502 U.S. 21, 31 (1991); Suarez Corp. v.

McGraw, 125 F.3d 222, 229 (4th Cir. 1997) (citing Hafer, 502

U.S. at 31).       As Martin candidly states, “[i]t is for this exact


       ∗
       The Eleventh Amendment provides that “[t]he judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.” U.S. Const. amend. XI. And
the Amendment has been construed to withdraw jurisdiction over
any suit brought against an unconsenting State in federal court
by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-
63 (1974); Booth v. Maryland, 112 F.3d 139, 141 (4th Cir. 1997).


                                           7
reason     that       [she]     took      care      in      drafting          the      Complaint,

identifying and setting forth sufficient factual allegations to

assert    the    claims       against      Appellants           Wood    and     Jones    only       in

their individual capacity.”                 Thus, to avoid sovereign immunity,

Martin did not sue Eastern State Hospital but rather only Wood

and Jones, naming them only in their individual capacities.

     Wood       and   Jones     argue      that     Martin           cannot    circumvent          the

Eleventh     Amendment         by     naming       them         as    defendants        in    their

individual      capacities          if,   in   reality,          she    is     suing    them       for

actions taken by them in their official capacities on behalf of

Eastern State Hospital.

     We begin the analysis by noting that “[w]hen [a] suit is

brought only against state officials, a question arises as to

whether     that      suit     is     a    suit       against          the     State     itself.”

Pennhurst    State      Sch.    &     Hosp.    v.     Halderman,             465 U.S.    89,       101

(1984).     And in addressing this question, the Supreme Court has

cautioned that allowing an action to proceed simply because the

complaint       names    a    state       official         in    his    or     her     individual

capacity    “would      be     to    adhere      to    an       empty    formalism           and    to

undermine the principle . . . that Eleventh Amendment immunity

represents       a    real    limitation       on      a    federal          court’s     federal-

question jurisdiction.”               Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261, 270 (1997); see also Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 543 (1986); Lizzi, 255 F.3d at 137

                                               8
(“[T]he mere incantation of the term ‘individual capacity’ is

not    enough     to    transform   an    official      capacity    action      into     an

individual capacity action”).

       Thus,      the    question   presented      in    this     case     is     whether

Martin’s       complaint,      which      names   Wood     and     Jones     in        their

individual      capacities,      nonetheless      effectively       states      a      claim

against     the    Commonwealth        itself.       Resolution     of     this        issue

requires us to look beyond the form of the complaint and the

conclusory allegations against Wood and Jones to determine who

is    the   “real,       substantial      party   in    interest.”         Pennhurst,

465 U.S. at 101 (quoting Ford Motor Co. v. Dep’t of Treasury,

323 U.S. 459, 464 (1945)) (internal quotation marks omitted);

see also Booth v. Maryland, 112 F.3d 139, 142 (4th Cir. 1997)

(“Eleventh Amendment immunity also extends to state officials

when they are merely the nominal defendants and ‘the state is

the real, substantial party in interest’” (quoting Ford, 323

U.S. at 464)).

       To identify the real, substantial party in interest, we

thus    examine         the   substance     of    the    claims     stated        in     the

complaint, positing inquiries such as:                    (1) were the allegedly

unlawful actions of the state officials “tied inextricably to

their official duties,” Lizzi, 255 F.3d at 136; (2) if the state

officials had authorized the desired relief at the outset, would

the burden have been borne by the State, cf. Pennhurst, 465 U.S.

                                            9
at 109 n.7; (3) would a judgment against the state officials be

“institutional and official in character,” such that it would

operate against the State, id. at 108; (4) were the actions of

the state officials taken to further personal interests distinct

from    the     State’s     interests,      id.;       and   (5) were        the     state

officials’      actions     ultra    vires,     id.     at 111;     Lizzi,    255     F.3d

at 136.

       Here,     Martin’s     complaint        alleges       that      Eastern       State

Hospital, as Martin’s employer, failed to compensate her for

overtime       because     Wood     and   Jones       refused     to      approve     such

compensation.        It alleges further that Wood and Jones, Martin’s

supervisors, “exercised authority to establish and control [her]

hours of work” at the Hospital and that, in the exercise of that

authority, they “failed and refused to include [overtime hours]

in the computation of Martin’s weekly wages,” in violation of

the FLSA.      Finally, it alleges that, in doing so, Wood and Jones

“acted directly and indirectly in the interest of Eastern State

Hospital.”        The complaint includes no allegation that, in so

acting,    Wood      and   Jones    acted     in   an    ultra      vires    manner     or

attempted       to    serve   personal         interests      distinct       from      the

Hospital’s interests.

       Examining      Martin’s      complaint      in     light      of     the     stated

factors, we conclude that virtually every factor indicates that

Wood and Jones are being sued in their official capabilities.

                                          10
Martin’s complaint alleges that Wood and Jones had authority to

authorize overtime pay and refused to do so and that, if they

had    authorized   overtime      pay,    it    would   have     been    funded   by

Eastern State Hospital.          The inevitable conclusion follows that

Wood    and   Jones’    actions    were       “inextricably      tied”   to   their

official duties at the Hospital.                 In these circumstances, we

hold that Virginia is the real party in interest, see Pennhurst

465    U.S.   at 101;   Lizzi,    255    F.3d    at 136,   and    that   sovereign

immunity -- grounded       in     the     Eleventh      Amendment --      requires

dismissal of the suit, Lizzi, 255 F.3d at 138; Booth, 112 F.3d

at 142.

       Accordingly, we reverse the district court’s order denying

Wood and Jones’ motion to dismiss based on sovereign immunity

and remand with instructions to dismiss the complaint.

                                                               IT IS SO ORDERED.




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