                                                               PUBLISH



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT                  FILED
                                                   U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                                                          03/09/99
                                                      THOMAS K. KAHN
                             No. 98-4124                   CLERK


                 D.C. Docket No. 97-2521-CIV-UUB


ROSEMARY J. WASCURA,

                                                  Plaintiff-Appellee,

                                versus

NEIL CARVER, et al.

                                                  Defendants-Appellants.




             Appeal from the United States District Court
                 for the Southern District of Florida


                          (March 9, 1999)
Before TJOFLAT, BLACK and CARNES, Circuit Judges.

CARNES, Circuit Judge:

      The defendants, various public officials, appeal from the district court’s

denial of their motion to dismiss plaintiff Rosemary Wascura’s Family and

Medical Leave Act (“FMLA”) claim against them in their individual

capacities. Because the law of this circuit requires us to conclude that public

officials in their individual capacities are not “employers” under the FMLA,

we hold that there is no federal subject matter jurisdiction over these claims.

We therefore reverse the district court’s denial of the defendants’ motion to

dismiss insofar as the FMLA claim against them in their individual capacities

is concerned.

                              I. BACKGROUND

      Plaintiff Rosemary Wascura worked for the City of South Miami as City

Clerk from August 1981 until her termination on May 16, 1995. The defendants,

who were Wascura’s supervisors when she was terminated, are Neil Carver, the

former Mayor of the City, R. Paul Young, the former Vice Mayor of the City,

Ann Bass, a former City Commissioner, and Thomas Todd Cooper, a former City

Commissioner.

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      For present purposes, we are required to assume that all the allegations of

Wascura’s complaint are true. See, e.g., Mesa v. United States, 123 F.3d 1435,

1437 (11th Cir. 1997). According to those allegations, in August 1994 Wascura’s

twenty-seven year old son, Shane, “began to experience the end stages of AIDS

and was unable to care for himself or to obtain the close medical attention he

needed.” Shane asked Wascura if he could move in with her, and she agreed.

Shortly thereafter, he came to live with Wascura and her family.          At some

point prior to February 1995, Wascura “personally notified Carver, Young, Bass

and Cooper of her son’s illness and her consequent potential need to take time off

to care for her son, first as paid leave until her vacation and sick pay were

exhausted, and then later as unpaid leave.” Although Shane was hospitalized

twice between August 1994 and May 1995, Wascura took off only 20 hours from

her job and still had an additional 900 hours of available vacation and sick leave

remaining. Nevertheless, in May 1995, Mayor Carver confronted Wascura and

demanded that she resign because of her “situation at home.” After she refused

to resign, Carver, Young, Bass, and Cooper terminated Wascura at a May 1995

City Commission meeting.



                                        3
      Wascura then sued Carver, Young, Bass, and Cooper (“the defendants”)

in their individual capacities, alleging that she was terminated for attempting to

exercise her rights under the FMLA.1 The FMLA entitles an eligible employee

to, among other things, twelve work weeks of leave during any 12-month period

to care for her child if the child has a serious health condition. See 29 U.S.C. §

2612(a)(1)(c). The defendants promptly filed a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), asserting that they were not

“employers” within the meaning of the FMLA and therefore could not be held

individually liable under the FMLA, or alternatively that they were entitled to

qualified immunity. The district court denied that motion, and the defendants

bring this interlocutory appeal from the denial of qualified immunity.



                                II. DISCUSSION

      On appeal, the defendants contend that the district court’s denial of their

motion to dismiss was in error for two reasons: 1) they are not employers under




       Wascura also sued the City for violating her rights under the FMLA and the
       1

Americans with Disabilities Act, but her claims against the City are not at issue
here. Those claims were still pending in the district court at the time of this appeal.
                                          4
the FMLA, and thus are not subject to liability; and 2) they are entitled to

qualified immunity.

      We have interlocutory appellate jurisdiction over denials of qualified

immunity, and that includes the authority to decide in the interlocutory appeal

whether the alleged action by the defendant officials is a violation of federal law

at all, clearly established or not. See, e.g., County of Sacramento v. Lewis, 118

S.Ct. 1708, 1714 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct.

1789, 1793 (1991). If a district court lacks subject matter jurisdiction over a

claim, that claim cannot provide a basis for imposing liability, and it necessarily

follows that the claim states no violation of federal law. Where that is the case,

the qualified immunity issue is thereby resolved or mooted. So, we begin by

examining whether the district court had subject matter jurisdiction over the

FMLA claim against these defendants in their individual capacities.

      We agree with the Sixth Circuit that where a defendant in an FMLA suit

does not meet the statutory definition of “employer,” there is no federal subject

matter jurisdiction over the claim against that defendant. See Douglas v. E.G.

Baldwin & Assocs., Inc., 150 F.3d 604, 608 (6th Cir. 1998). “If the Court were

to exercise jurisdiction where the employer does not meet the statutory

                                        5
prerequisite, it would effectively be expanding the scope of the [FMLA], and the

scope of our limited [federal question] jurisdiction as defined by Congress. . . .”

Id. This conclusion comports with our previous holding that the question

whether a defendant meets the definition of “employer” under Title VII

determines if there is subject matter jurisdiction over that claim. See Virgo v.

Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir. 1994). We turn now

to the question of whether the district court had subject matter jurisdiction over

the FMLA claim against the defendants in their individual capacities.

      The FMLA provides that “any employer” who interferes with or denies any

rights provided to an employee under the Act is liable for damages. 29 U.S.C. §

2617(a). The term “employer” is defined in 29 U.S.C. § 2611(4)(A) as follows:



      The term "employer"--
             (i) means any person engaged in commerce or in any industry or
      activity affecting commerce who employs 50 or more employees for each
      working day during each of 20 or more calendar workweeks in the current
      or preceding calendar year;
             (ii) includes--
                     (I) any person who acts, directly or indirectly, in the interest of
                     an employer to any of the employees of such employer; and
                     (II) any successor in interest of an employer;
             (iii) includes any “public agency”, as defined in section 203(x) of
             this title; and

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           (iv) includes the General Accounting Office and the Library of
           Congress.
(emphasis added).

      This is our first occasion to address the meaning of “employer” under the

FMLA. The defendants contend that, in interpreting this definition, we should

adopt the course we followed in interpreting the definition of “employer” used

in Title VII, the ADEA, and the ADA, and hold there is no individual liability

under the FMLA. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.

1991) (no individual liability under Title VII); Smith v. Lomax, 45 F.3d 402, 403

n.4 (11th Cir. 1995) (no individual liability under the ADEA); Mason v.

Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (no individual liability under the

ADA). Those precedents would be applicable if the FMLA’s definition of

“employer” were identical to that used in the other statutes, but it is not. Those

other statutes define an employer as a person engaged in an industry affecting

commerce who employs a certain number of people, including “any agent of

such [a] person."    42 U.S.C. § 2000e(b) (Title VII);      29 U.S.C. § 630(b)

(ADEA); 42 U.S.C. § 12111(5)(A) (ADA). In contrast, the FMLA defines

“employer” more expansively to include "any person who acts, directly or



                                        7
indirectly, in the interest of an employer to any of the employees of such

employer." 29 U.S.C. § 2611(4)(A)(ii)(I).

      Instead of tracking the definition in those other statutes, the FMLA’s

definition of “employer” is more similar to, actually it is materially identical

with, the definition of “employer” used in the Fair Labor Standards Act

("FLSA"), 29 U.S.C. § 203(d). The FLSA definition says “‘[e]mployer’ includes

any person acting directly or indirectly in the interest of an employer in relation

to an employee and includes a public agency. . . .” The only difference is that the

FLSA definition inserts the words “in relation” before the phrase “to any of the

employees.” That difference is a matter of grammar, not substance. The fact that

Congress, in drafting the FMLA, chose to make the definition of “employer”

materially identical to that in the FLSA means that decisions interpreting the

FLSA offer the best guidance for construing the term “employer” as it is used

in the FMLA.

      In addition, the applicable Code of Federal Regulation provision indicates

that the term “employer” in the FMLA should be given the same meaning as its

counterpart in the FLSA. Specifically, 29 C.F.R. § 825.104, which addresses the



                                        8
issue of “[w]hat employers are covered by the [FMLA],” provides in pertinent

part as follows:

       (a). . . Employers covered by FMLA also include any person acting,
      directly or indirectly, in the interest of a covered employer to any of the
      employees of the employer. . . .

      ***

      (d) An "employer" includes any person who acts directly or indirectly in
      the interest of an employer to any of the employer's employees. The
      definition of "employer" in section 3(d) of the Fair Labor Standards Act
      (FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly or
      indirectly in the interest of an employer in relation to an employee. As
      under the FLSA, individuals such as corporate officers "acting in the
      interest of an employer" are individually liable for any violations of the
      requirements of FMLA.

      For these reasons, in the absence of any FMLA decisions on point in this

circuit, we look to FLSA decisions to determine whether the term “employer”

includes a public official in his or her individual capacity. Our decision in

Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995), says it does not.

      The plaintiff in Welch was a female dispatcher for the Cullman County

Sheriff’s Department. She reported directly to Cullman County Sheriff David

Laney. After discovering that a male dispatcher in the Sheriff’s Department was

receiving a higher salary, she sued, among other parties, Sheriff Laney in both


                                       9
his official and individual capacities for a violation of the Equal Pay Act. See

Welch, 57 F.3d at 1007. The Equal Pay Act is simply an extension of the FLSA

and incorporates the FLSA’s definition of “employer.” See Corning Glass

Works v. Brennan, 417 U.S. 188, 190, 94 S. Ct. 2223, 2226 (1974) (noting that

the Equal Pay Act of 1963, 77 Stat. 56, § 3, merely “added to § 6 of the Fair

Labor Standards Act of 1938 the principle of equal pay for equal work regardless

of sex”) .

     The issue on appeal in Welch was whether Sheriff Laney in his official and

individual capacities was an “employer” as that term is defined under the FLSA,

29 U.S.C. § 203(d). Although we recognized that Sheriff Laney was an

“employer” in his official capacity, we held that “Sheriff Laney in his individual

capacity had no control over [the plaintiff’s] employment and [therefore did] not

qualify as [an] employer under the Act.” Welch, 57 F.3d at 1011. Thus, Welch

establishes as the law of this circuit that a public official sued in his individual

capacity is not an “employer” subject to individual liability under the FLSA.

Because “employer” is defined the same way in the FMLA and FLSA, Welch

controls this case.



                                        10
     Wascura submitted, as supplemental authority in support of the position that

there is individual liability under the FLSA, the case of Donovan v. Hamm’s

Drive Inn, 661 F.2d 316 (5th Cir. Unit A Sept. 1981). However,

the Welch decision is not inconsistent with Donovan, which involved a suit

against a private corporation and its corporate officers. No government officials

were defendants in Donovan, and it merely recognized that an individual can

be an “employer” under the FLSA. See Donovan, 661 F.2d at 318; see also Patel

v. Wargo, 803 F.2d 632, 637-38 (11th Cir. 1986). That question is different

from the more specific one Welch addressed: whether a public official acting

as such can be an “employer” not only in his official capacity but also in his

individual capacity. See Welch, 57 F.3d at 1010-11. Thus, there is no intra-circuit

conflict on the issue.

     Wascura argues that the reasoning of Welch is unclear and inadequate to

support its holding. We have no occasion to pass on that criticism, because we

are bound by the Welch decision regardless of whether we agree with it. See,

e.g., Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998) (“We are

bound to follow a prior panel or en banc holding, except where that holding has

been overruled or undermined to the point of abrogation by a subsequent en banc

                                        11
or Supreme Court decision.”); United States v. Steele, 147 F.3d 1316, 1317-18

(11th Cir. 1998) (en banc) (“Under our prior precedent rule, a panel cannot

overrule a prior one’s holding even though convinced it is wrong.”).

     We hold that a public official sued in his or her individual capacity is not

an “employer” under the FMLA, and therefore there is no federal subject matter

jurisdiction over such a claim. The district court should have dismissed the

FMLA claim insofar as it is asserted against the defendants in their individual

capacities.

                             III. CONCLUSION

     REVERSED and REMANDED for further proceedings consistent with this

opinion.




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