In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1663

Roger Luder, et al.,

Plaintiffs-Appellees,

v.

Jeffrey P. Endicott, et al.,

Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 90-C-694--Barbara B. Crabb, Judge.

Argued September 22, 2000--Decided June 15, 2001



  Before Posner, Manion, and Evans, Circuit
Judges.

  Posner, Circuit Judge. The plaintiffs in
this suit under the Fair Labor Standards
Act, 29 U.S.C. sec.sec. 201 et seq., are
145 employees of a Wisconsin state
prison, seeking damages against the
warden, deputy warden, and personnel
officers of the prison, all in their
individual (personal) rather than
official capacities. Originally the
plaintiffs sought injunctive relief as
well, but the district court held that
only the government may seek injunctive
relief under the FLSA and the plaintiffs
wisely have not appealed that ruling.
E.g., United Food & Commercial Workers
Union, Local 1564 v. Albertson’s Inc.,
207 F.3d 1193, 1197-98 (10th Cir. 2000);
Powell v. Florida, 132 F.3d 677 (11th
Cir. 1998) (per curiam); see 29 U.S.C.
sec.sec. 211, 217; Lorilland v. Pons, 434
U.S. 575, 581 (1978).

  The plaintiffs claim that the defendants
force them to work before and after their
official shifts without paying them. The
work in question includes checking
equipment, reporting to shift
supervisors, and listening to roll-call
announcements before the shift, and,
after the shift, checking equipment and
briefing the employees on the next shift.
The damages sought are the federal
minimum wage (including time and a half
for overtime) that the plaintiffs would
be entitled to if as they contend the
pre-shift and post-shift "work" counts as
work under the Act. Whether it does or
not has not been adjudicated and we
intimate no view on the question.

  The plaintiffs acknowledge that the
Eleventh Amendment would bar a damages
suit brought in federal court under the
Fair Labor Standards Act against either
the State of Wisconsin or, what in law is
the same thing (subject to an exception
discussed later), the defendants in their
official capacities. They therefore seek
damages against the defendants only in
the defendants’ individual capacities.
The district court denied the defendants’
motion to dismiss the suit as barred by
the Eleventh Amendment. The defendants
have taken an interlocutory appeal from
that denial, as they are entitled to do.

  The plaintiffs are employees of the
Wisconsin Department of Corrections,
which is to say of the State of
Wisconsin, and not of the defendants, who
are merely their supervisors. The FLSA
defines "employer," however, to include
"any person acting directly or indirectly
in the interest of an employer in
relation to an employee." 29 U.S.C. sec.
203(d); see, e.g., Riordan v. Kempiners,
831 F.2d 690, 694 (7th Cir. 1987); Herman
v. RSR Security Services Ltd., 172 F.3d
132, 139-40 (2d Cir. 1999); Baystate
Alternatives Staffing, Inc. v. Herman,
163 F.3d 668, 675 (1st Cir. 1998). The
cases we have just cited and others we
could cite interpret this to mean that
the supervisor who uses his authority
over the employees whom he supervises to
violate their rights under the FLSA is
liable for the violation. That’s
precisely what the plaintiffs say the
defendants did to them.

  The Eleventh Circuit has held that a
public officer sued in his individual
capacity cannot be an employer because it
is only in his official capacity that he
has authority over the employees’ terms
of employment. Wascura v. Carver, 169
F.3d 683, 686-87 (11th Cir. 1999); Welch
v. Laney, 57 F.3d 1004, 1011 (11th Cir.
1995). With respect, we think that this
cannot be right, as it would imply that a
police officer who used excessive force
against a person he was arresting could
not be sued in his individual capacity
because it was only by virtue of his
office that he had the authority to make
the arrest. Power and authority are not
synonyms. If the allegations of the
complaint are true (as we must assume
they are, given the posture of the case),
the defendants had and exercised the raw
power to deny the plaintiffs their rights
under the FLSA. In any event, the
distinction on which the Eleventh Circuit
relied had been swept away by the Supreme
Court in Hafer v. Melo, 502 U.S. 21, 28
(1991), which neither of the Eleventh
Circuit cases cited.

  But our conclusion that the plaintiffs
have stated a claim under the FLSA merely
poses, it does not answer, the Eleventh
Amendment question. It cannot be answered
in the abstract. The application of the
amendment to suits against state
officials in their individual capacity
depends on the circumstances. The general
rule is that such suits are not barred by
the amendment, because the plaintiff is
seeking damages from individuals rather
than from the state treasury. E.g., id.
at 30-31; Alden v. Maine, 527 U.S. 706,
757 (1999) (an FLSA case); Papasan v.
Allain, 478 U.S. 265, 278 n. 11 (1986);
Kentucky v. Graham, 473 U.S. 159 (1985);
Travis v. Reno, 163 F.3d 1000, 1007 (7th
Cir. 1998). The fact that the state
chooses to indemnify its employees who
are sued in federal court is irrelevant,
Benning v. Board of Regents, 928 F.2d
775, 778-79 (7th Cir. 1991); Sales v.
Grant, 224 F.3d 293 (4th Cir. 2000);
Jackson v. Georgia Dept. of
Transportation, 16 F.3d 1573, 1577-78
(11th Cir. 1994); Griess v. Colorado, 841
F.2d 1042 (10th Cir. 1988) (per curiam);
Spruytte v. Walters, 753 F.2d 498, 512
and n. 6 (6th Cir. 1985); Demery v.
Kupperman, 735 F.2d 1139, 1146-49 (9th
Cir. 1984), because it is the voluntary
choice of the state, not a cost forced on
it by the federal-court suit. Likewise
irrelevant is the fact that any exposure
of state employees to suit in federal
court will, by increasing the expected
cost of working for the state, compel the
state by reason of competition in the
labor market to pay its employees more
than if they had a blanket immunity from
such suits. Duckworth v. Franzen, 780
F.2d 645, 651 (7th Cir. 1986); Huang v.
Johnson, No. 99-9226, 2001 WL 527402, at
*4 (2d Cir. May 17, 2001); Carlos Manuel
Vazquez, "Eleventh Amendment
Schizophrenia," 75 Notre Dame L. Rev.
859, 880 (2000). It is also irrelevant
that the judgment may exceed the
employee-defendant’s capacity to pay
unless he is indemnified, Huang v.
Johnson, supra, at *4, which is merely a
misfortune for the plaintiffs unless it
places additional pressure on the state
to cough up the money--but that, like the
other labor-market ramifications of
liability arising from public employment,
is irrelevant too.

  These examples show that the Eleventh
Amendment does not protect the states
against every expense or inconvenience
that the suability of their employees in
federal court for violations of federal
law might visit upon the states,
especially but not only expenses and
inconveniences that a state could
largely avoid by being hardhearted about
claims against its employees (i.e., not
pay them!). But even when a suit is
against a public officer in his or her
individual capacity, the court is obliged
to consider whether it may really and
substantially be against the state. Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 270 (1997); Ysleta Del Sur Pueblo v.
Laney, 199 F.3d 281, 286 (5th Cir. 2000).
"[A] suit is against the sovereign if the
judgment sought would expend itself on
the public treasury or domain, or
interfere with the public administration,
or if the effect of the judgment would be
to restrain the Government from acting,
or to compel it to act." Pennhurst State
School & Hospital v. Halderman, 465 U.S.
89, 101 n. 11 (1984). Indirect effects
are not enough; otherwise the practical
necessity for a state to compensate an
employee for bearing liability risks
would place individual-capacity suits
under the bar of the Eleventh Amendment.
But a suit nominally against state
employees in their individual capacities
that demonstrably has the identical
effect as a suit against the state is, we
think, barred. Any other position would
be completely unrealistic and would make
a mockery of the Supreme Court’s
heightened sensitivity to state
prerogatives.

  By way of contrast, suppose the state
had a firm policy of complying with the
FLSA. Indeed, to make it an even clearer
case, suppose the state required even
more generous overtime pay for its
employees than the Act requires. Suppose
that a state supervisory employee who had
formerly worked for a Wall Street law
firm misread the Act to require the
payment of overtime pay only if an
employee had worked more than 100 hours
in the preceding week. This supervisor in
thus violating the Act would be acting in
the interest of his employer, not in a
purely personal interest that would take
him outside of the Act’s definition of
"employer." A suit against him would
advance rather than thwart state policy
and would impose a minuscule or perhaps
even a negative burden on the state.

  This case is the opposite and not only
because the State of Wisconsin does not
share the plaintiffs’ interpretation of
the Fair Labor Standards Act. The
plaintiffs are seeking to accomplish
exactly what they would accomplish were
they allowed to maintain this suit
against the state and did so
successfully: they are seeking to force
the state to accede to their view of the
Act and to pay them accordingly.
Nominally, it is true, they are seeking
damages merely for a period beginning
three years before they filed their suit
and presumably ending on the day a
judgment is entered in their favor. But
this is just the tip of the iceberg. And
not a small tip either. The amount sought
is unclear (indeed cannot be determined
exactly until the judgment is entered),
but it obviously exceeds the ability of
these four defendants to pay (remember
there are 145 plaintiffs), unless persons
of great family wealth are more attracted
to prison employment than strikes us as
likely. It will thus not be an option for
the state to indemnify them. If it
refuses to indemnify them, they will have
only two choices. One will be to declare
bankruptcy and quit; the other will be to
declare bankruptcy and comply with the
FLSA as interpreted by the court by
directing payment of additional wages
(assuming the plaintiffs’ suit is found
to have merit). Compliance will not
involve their paying the plaintiffs for
before-shift and after-shift work. These
defendants are not going to pay a chunk
of the prison’s wages out of their own
shallow pockets. The state will have to
pay. If it refuses to pay, the plaintiffs
will bring a fresh suit against the
defendants--but before that happens, upon
the first inkling that the state will not
be paying the wages to which the
plaintiffs have been adjudged entitled,
the defendants will quit their jobs lest
they be faced with another crushing
judgment. Thus, whether or not the state
indemnifies these supervisory employees,
these FLSA "employers," it will, if the
present suit is allowed to go forward to
judgment for the plaintiffs, be forced to
pay the plaintiffs the additional wages
they seek. The effect will be identical
to a suit against the state. The money
will flow from the state treasury to the
plaintiffs. This is not hypothetical, but
inescapable; and it is not a scenario
found in any of the cases that have
rejected Eleventh Amendment challenges to
individual-capacity suits.

  It may be objected that notwithstanding
the Eleventh Amendment, states can be
enjoined from violating federal law even
though compliance with the injunction
will cost the state. But the objection is
imprecise. The Eleventh Amendment is not
limited to damages judgments. It applies
to injunctive suits, as well, against the
states. Pennhurst State School & Hospital
v. Halderman, supra, 465 U.S. at 100; MSA
Realty Corp. v. Illinois, 990 F.2d 288,
291 (7th Cir. 1993); Cooper v. St. Cloud
State University, 226 F.3d 964, 968 (8th
Cir. 2000); O’Neill v. Baker, 210 F.3d
41, 47 (1st Cir. 2000). There is, it is
true, the exception carved out in Ex
Parte Young: state officials may be sued
in their official capacity for injunctive
relief against violations of federal law,
including of course nonconstitutional as
well as constitutional. E.g., Idaho v.
Coeur d’Alene Tribe of Idaho, supra, 521
U.S. at 281. Even though suits against
state officials in their official
capacity are deemed suits against the
states themselves, and even though the
Eleventh Amendment applies to equitable
as well as to legal relief, the doctrine
of Ex Parte Young in effect enables
injunctive relief to be obtained in
federal court against a state. But the
plaintiffs do not invoke Ex Parte Young.
They cannot, because they are not suing
the defendants in their official
capacities and because they cannot obtain
injunctive relief under the FLSA. They do
not fit within the only exception that
might be applicable to a suit nominally
against individuals but realistically
against the state. This suit is
transparently an effort at an end run
around the Eleventh Amendment.

  The judgment is reversed with
instructions to dismiss the suit with
prejudice.

Reversed.
