     Case: 12-50049     Document: 00511983510         Page: 1     Date Filed: 09/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 12, 2012

                                     No. 12-50049                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



HILDA L. SOLIS, SECRETARY OF LABOR, UNITED STATES
DEPARTMENT OF LABOR

                                                  Plaintiff-Appellee
v.

STATE OF TEXAS, TEXAS DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES, CHILD PROTECTIVE SERVICES DIVISION

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                 for the Western District of Texas, Austin Division
                            USDC No.1:11-cv-00469-SS


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        The State of Texas appeals the denial of a motion to dismiss a lawsuit filed
against them by the United States Department of Labor under the Fair Labor
Standards Act (“FLSA”). The only issue on appeal is whether this suit is barred
by sovereign immunity. For the following reasons, we AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
  Case: 12-50049    Document: 00511983510     Page: 2   Date Filed: 09/12/2012



                                 No. 12-50049

                       FACTS AND PROCEEDINGS
      The Department of Labor filed suit against Texas under the FLSA, on
behalf of individual employees of the Texas Department of Family and Protective
Services, Child Protective Services Division (“CPS”). The Department of Labor’s
complaint alleges that Texas has acted in violation of the FLSA by employing
CPS employees over 40 hours per week without paying overtime wages. The
complaint further alleges that Texas has failed to maintain adequate records of
the hours worked by CPS employees, in violation of the FLSA and accompanying
regulations.
      The Department of Labor seeks an injunction preventing Texas from
continuing these practices, as well as an order disgorging Texas of the amounts
due to CPS employees.      The order would either require Texas to submit
payments to the Secretary of Labor who would then transmit the payments to
CPS employees, or enjoin Texas from withholding previously unpaid overtime
compensation from the employees.
      Texas moved to dismiss the complaint on sovereign immunity grounds,
arguing that the Department of Labor is acting as a “nominal party” in place of
the CPS employees. The district court denied the motion to dismiss and Texas
appeals.


                         STANDARD OF REVIEW
      The single issue on appeal is whether the Department of Labor is
prohibited from bringing this suit under the doctrine of sovereign immunity. We
review issues of law, such as whether a state is entitled to sovereign immunity,
de novo. Union Pac. R.R. v. La. Pub. Serv. Comm’n, 662 F.3d 336, 339 (5th Cir.
2011); Severance v. Patterson, 566 F.3d 490, 495 (5th Cir. 2009).




                                       2
   Case: 12-50049    Document: 00511983510     Page: 3    Date Filed: 09/12/2012



                                  No. 12-50049

                                 DISCUSSION
      Sovereign immunity is a pre-constitutional guarantee that states cannot
be subject to suits by their own citizens without their consent. See U.S. CONST.
AMEND XI; Alden v. Maine, 527 U.S. 706, 712-13 (1999) (“States’ immunity from
suit is a fundamental aspect of the sovereignty which the States enjoyed before
the ratification of the Constitution, and which they retain today. . .”).
      Sovereign immunity, however, does not prevent a state from being subject
to suit by the United States. Seminole Tribe of Florida v. Florida, 517 U.S. 44,
71 n.14 (1996). As Texas concedes, this court has previously held that sovereign
immunity does not bar a suit by the United States on behalf of individual
citizens under the FLSA. Marshall v. A&M Consol. Indep. Sch. Dist., 605 F.2d
186, 188-89 (5th Cir. 1979) (citing Dunlop v. State of N.J., 522 F.2d 504, 517 (3d
Cir. 1975), vacated and remanded on other grounds by New Jersey v. Usery, 427
U.S. 909 (1976); Brennan v. State of Iowa, 494 F.2d 100, 103 (8th Cir. 1974)).
See also Emps. of Dep’t. of Pub. Health & Welfare, Mo. v. Dep’t of Pub. Health &
Welfare, Mo., 411 U.S. 279, 285-86 (1973) (noting that “the Secretary of Labor
[has] authority to bring suit for unpaid minimum wages or unpaid overtime
compensation under the FLSA . . . [and] suits by the United States against a
State are not barred by the Constitution.”).
      A suit by the Secretary of Labor under the FLSA is a suit in the public
interest, notwithstanding the fact that the money obtained passes to private
individuals. Marshall, 605 F.2d at 188-89; Dunlop, 522 F.2d at 517 (“[T]he
allocation of money damages against the States benefits not only the employees
but aids substantially in the enforcement of the FLSA . . . the provision
authorizing suits by the Secretary [is] based upon Congressional sensitivity to
the delicacy of our federal system.”) (citation omitted). Therefore, sovereign
immunity does not apply to bar this suit. Marshall, 605 F.2d at 188-89. See
also Alden, 527 U.S. at 759-60 (“The difference between a suit by the United

                                        3
   Case: 12-50049    Document: 00511983510     Page: 4   Date Filed: 09/12/2012



                                  No. 12-50049

States on behalf of the employees and a suit by the employees implicates a rule
that the National Government must itself deem the case of sufficient importance
to take action against the State; and history, precedent, and the structure of the
Constitution make clear that, under the plan of the Convention, the States have
consented to suits of the first kind but not of the second.”). Under the precedent
of this circuit, Texas’s argument is foreclosed.
                                CONCLUSION
      We AFFIRM the district court’s denial of Texas’s motion to dismiss on
sovereign immunity grounds.




                                        4
