PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROSEMARIE C. ABRIL,
Plaintiff-Appellant,

and

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO; VIRGINIA ALLIANCE OF                                       No. 97-1072
STATE EMPLOYEES, et al.,
Plaintiffs,

v.

COMMONWEALTH OF VIRGINIA,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Samuel G. Wilson, Chief District Judge.
(CA-94-97-A, CA-94-153-A, CA-94-165-A, CA-95-5-A,
CA-95-6-A, CA-95-7-A, CA-95-8-A, CA-95-26-A,
CA-95-57-A, CA-95-58-A, CA-95-59-A, CA-95-60-A,
CA-95-98-A, CA-95-138-A, CA-95-209-A, CA-96-9-A,
CA-96-10-A, CA-96-11-A, CA-96-13-A, CA-96-111-A,
CA-95-27-A)

Argued: July 17, 1997

Decided: May 21, 1998

Before MURNAGHAN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

_________________________________________________________________
Affirmed by published opinion. Senior Judge Phillips wrote the
majority opinion, in which Judge Murnaghan joined. Senior Judge
Butzner wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Bertram Mann, LEVIT & MANN, Richmond, Vir-
ginia, for Appellant. George Walerian Chabalewski, Assistant Attor-
ney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney
General of Virginia, Catherine C. Hammond, Deputy Attorney Gen-
eral, Neil A. McPhie, Senior Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

The question is whether the Eleventh Amendment provides immu-
nity to suit for the Commonwealth of Virginia ("the Commonwealth")
in actions filed against it in federal court by state employees seeking
to recover damages for wage and overtime violations of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, as amended.
The district court, rejecting contentions that the Commonwealth's
immunity had been constitutionally abrogated by Congress under
enforcement powers conferred by Section 5 of the Fourteenth Amend-
ment or, alternatively, had been waived by the Commonwealth, dis-
missed the action for lack of subject matter jurisdiction. We affirm.

I.

Employees of twenty-one Virginia state prison and mental health
facilities1 filed separate actions against the Commonwealth in the
United States District Courts for the Eastern and Western Districts of
_________________________________________________________________
1 The facilities are identified in the district court's opinion. See 949
F. Supp. 438, 440 n.2 (W.D. Va. 1996).

                    2
Virginia, alleging violations of the FLSA in various respects affecting
their compensation as state employees.2 On July 10, 1995, the district
court denied the Commonwealth's motion to dismiss the then-
consolidated actions on Eleventh Amendment jurisdictional grounds,
holding that under Pennsylvania v. Union Gas Co. , 491 U.S. 1 (1989),
Congress had the power under the Commerce Clause unilaterally to
abrogate the states' Eleventh Amendment immunity to federal FLSA
actions and had unequivocally done so by its 1974 amendments to
that Act. See 949 F. Supp. 438, 440 (W.D. Va. 1996) (reciting proce-
dural history).

Following an unsuccessful effort by the Commonwealth to obtain
interlocutory review of that decision, and while the consolidated
actions were pending disposition in the district court, the Supreme
Court overruled Union Gas, holding in Seminole Tribe of Florida v.
Florida, 116 S. Ct. 1114 (1996), that Congress did not have power
under Article I of the Constitution unilaterally to abrogate the Elev-
enth Amendment immunity of nonconsenting states to suits in federal
court for the recovery of monetary relief.

The district court then directed the parties to re-brief the issue of
Eleventh Amendment immunity in light of Seminole Tribe. Respond-
ing, the Commonwealth moved, with supporting briefs, for reconsid-
eration of its motion to dismiss, relying on Seminole Tribe as
dispositive of the issue in its favor. The employees, resisting the
Commonwealth's motion, contended that Congress's express abroga-
tion of the states' Eleventh Amendment immunity was yet constitu-
tionally valid as an exercise of its enforcement powers under
Section 5 of the Fourteenth Amendment. Alternatively, they con-
tended that, in any event, the Commonwealth had waived its immu-
nity by participating in federal regulated activity. And finally,
contending that the Commonwealth may have waived its immunity by
participating in federal programs that require contractual waivers,
they moved for leave to conduct limited discovery respecting that
possibility.
_________________________________________________________________
2 Over the course of the litigation, all of the actions were ultimately
consolidated for determination by the United States District Court for the
Western District of Virginia, and were determined by that court's final
order dismissing on the same grounds all the actions.

                    3
Following a hearing on the parties' cross-motions, the district court
ruled in the Commonwealth's favor on each point, holding that Con-
gress' attempted abrogation of the Commonwealth's Eleventh
Amendment immunity to FLSA claims for monetary relief was not
authorized as an exercise of enforcement powers conferred by Sec-
tion 5 of the Fourteenth Amendment; that the Commonwealth had
not, as a matter of law, waived its immunity by participating in fed-
eral regulated activity; and, as a matter of the court's discretion, that
discovery as to possible contractual waivers would not be allowed.
Accordingly, the district court dismissed the actions for lack of sub-
ject matter jurisdiction.

This appeal followed. On it, the employees challenge each of the
district court rulings above identified. We take them in turn.

II.

We first consider whether, as the district court held, Congress's
attempted abrogation of the states' (hence here the Commonwealth's)
Eleventh Amendment immunity to private FLSA damage suits was
unconstitutional. Conceding that under Seminole Tribe abrogation
could not be upheld as an exercise of Article I Commerce Clause
powers (the source expressly invoked by Congress), the employees
contend that the requisite power can be found in the enforcement pro-
vision, Section 5, of the Fourteenth Amendment. 3 Specifically, the
contention is that abrogation was effective as an exercise of Section 5
power because it served to enforce two rights protected by the Four-
teenth Amendment: (1) primarily, the Equal Protection Clause right
not to be subjected to invidious discrimination by a state's unequal
treatment of comparably situated classes of persons, here that of
private-sector and public-sector employees resulting from Eleventh
Amendment immunity, and (2) an alleged First Amendment right of
access to the courts as incorporated in the Fourteenth Amendment.
See Appellants' Brief pp. 15, 16.4
_________________________________________________________________
3 Pursuant to U.S. Const. amend. XIV, § 5, "The Congress shall have
power to enforce, by appropriate legislation, the provisions of this arti-
cle."
4 Judge Butzner in dissent would rest decision on yet another abroga-
tion theory: that the attempted abrogation may be upheld as an exercise

                     4
Because we think that the employees' "right of access" contention
is essentially subsumed in their equal protection contention (the only
unequal treatment relied upon being that respecting access to the fed-
eral forum), we consider the abrogation issue as confined to that cre-
ated by the employees' equal protection contention. As so confined,5
_________________________________________________________________
of Section 5 power to enforce the Privileges and Immunities Clause. The
theory is interesting, but under the most fundamental principles con-
straining our appellate review function it simply is not before us. It has
not been advanced or even adverted to by any party at any level--by
pleading, motion, briefing, oral argument or otherwise. It is therefore not
only a "new" issue in this litigation, it would appear to be a "novel" one
in general Section 5 abrogation jurisprudence. While we have consider-
able discretion in "the matter of what questions may be taken up and
resolved for the first time on appeal," Singleton v. Wolff, 428 U.S. 106,
121 (1975), that discretion is not unbounded. And, one of its surest
boundaries is that imposed by requirements of fairness to affected liti-
gants. Here, it would be patently unjust to decide this appeal against the
Commonwealth on the basis of an issue--particularly one this novel--on
which it has had no opportunity to be heard. See id. Accordingly, we may
not properly consider it as a matter of discretion.
5 Aside from the point that the"right of access" contention is effec-
tively subsumed within the broader equal protection contention, we have
grave doubts that there is any free-standing Fourteenth Amendment
"right of access" specifically to a federal forum to be enforced under Sec-
tion 5. We know of no Supreme Court decision recognizing any such
specific access right--under the First Amendment, due process, equal
protection or otherwise. And, while we do not either know of any deci-
sions specifically denying the existence of such a right, there are power-
ful intimations to that effect. See, e.g., Younger v. Harris, 401 U.S. 37
(1971) (effectively denying, on federalism grounds, the right to a lower
federal court forum to enjoin on federal constitutional grounds ongoing
state criminal proceedings); Michael J. Wells & Edward J. Larson,
Original Intent and Article III, 70 Tul. L. Rev. 75, 89 (1995) (arguing
that Supreme Court limitations on federal habeas review have been based
upon principle that "there is no constitutional right of access to a federal
forum").

Two district courts considering the contention that abrogation in this
situation could involve enforcement of such a free-standing Fourteenth
Amendment right of access have rejected it on the basis that any denial
of such a right of access was not by any positive state action but solely

                    5
we review it de novo. See Harter v. Vernon, 101 F.3d 334, 336-37
(4th Cir. 1996). Though it is one of first impression in this court, four
of our sister circuits have addressed it and each has held, rejecting
comparable state-employee contentions, that the attempted abrogation
cannot be upheld as an exercise of Section 5 power to enforce Equal
Protection Clause rights. See Mills v. Maine, 118 F.3d 37, 43-49 (1st
Cir. 1997); Raper v. Iowa, 115 F.3d 623, 624 (8th Cir. 1997); Aaron
v. Kansas, 115 F.3d 813, 817 (10th Cir. 1997); Wilson-Jones v.
Caviness, 99 F.3d 203, 206-11 (6th Cir. 1997), amended on other
grounds by 107 F.3d 358 (6th Cir. 1997); see also Powell v. Florida,
132 F.3d 677, 678 (11th Cir. 1998) (per curiam) (semble).6 We now
join those circuits in so holding.

Between them, these other courts of appeal have thoroughly can-
vassed the issue and come to the same conclusion, though by varying
depths of analysis and by somewhat different reasoning at a few points.7
Because we agree with their common conclusion and with the essen-
tials of their common reasoning to it, we need not attempt a wholesale
re-invention of the wheel and will simply summarize the salient
points of their common reasoning with which we agree, expanding
somewhat at the end-stage of the analysis.
_________________________________________________________________

by force of the Eleventh Amendment. See Taylor v. Commonwealth, 951
F. Supp. 591, 600 (E.D. Va. 1996); Raper v. Iowa, 940 F. Supp. 1421,
1426 (S.D. Iowa 1966), aff'd on other grounds , 115 F.3d 623 (8th Cir.
1997). The Commonwealth relies on that theory and those decisions in
opposing the employee's Section 5 argument. See Appellee's Brief, pp.
11-12. Because we think the contention may be rejected on the more fun-
damental and less problematic grounds above noted, we avoid addressing
it.

6 The United States District Court for the Eastern District of Virginia
has also rejected a claim of abrogation under Section 5 enforcement
power. See Taylor, 951 F. Supp. at 597-600.
7 The most in-depth analyses are those of the First Circuit in Mills and,
earlier, of the Sixth Circuit in Wilson-Jones . The intervening decisions
of the Eighth Circuit in Raper and the Tenth Circuit in Aaron essentially
adopted without independent analysis the critical final stage conclusion
by the Sixth Circuit in Wilson-Jones that abrogation could not be upheld
as an "appropriate" enforcement enactment under Section 5. See Raper,
115 F.3d at 624; Aaron, 115 F.3d at 817.

                     6
The determination whether in enacting the 1974 amendments to the
FLSA Congress validly abrogated the states' Eleventh Amendment
immunity to private FLSA suits in federal court turns on two ques-
tions: "whether Congress has `unequivocally expresse[d] its intent to
abrogate the immunity'" and "whether Congress has acted `pursuant
to a valid exercise of power.'" Seminole Tribe, 116 S. Ct. at 1123
(quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).

The 1974 amendments to the FLSA contain the required unequivo-
cal expression of Congress's intent to abrogate that immunity. See 29
U.S.C. § 203(d) ("Employer" defined to"include[ ] a public agency");
§ 203 (e)(2),(C) ("individual employed by a public agency" defined
to mean "employed by a State"); § 216(b) ("action [for FLSA viola-
tion] . . . may be maintained against any employer (including a public
agency) in any Federal or State court of competent jurisdiction . . .");
Mills, 118 F.3d at 42 (citing other decisions so holding).

Although in enacting the 1974 abrogation amendments Congress
expressly invoked only the same Commerce Clause powers it invoked
to enact the original and amending substantive FLSA provisions, that,
standing alone, does not preclude a judicial determination that the
attempted abrogation was effective as an exercise of Section 5 power.
It is settled that abrogation may, in appropriate circumstances, be
effected under the Section 5 power. See Fitzpatrick v. Bitzer, 427 U.S.
445, 453-56 (1976). And, under general principles of constitutional
adjudication, such abrogation does not require that a specific provi-
sion be invoked as the source of congressional power. See Woods v.
Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) ("The question of the
constitutionality of action taken by Congress does not depend on
recitals of the power which it undertakes to exercise."); Usery v.
Charleston County Sch. Dist., 558 F.2d 1169, 1171 (4th Cir. 1977)
(question identified as "whether Congress had the authority to adopt
the legislation, not whether it correctly guessed the source of that
power") (citation omitted).

Whether an attempted abrogation may be upheld under Congress's
Section 5 enforcement powers--expressly invoked or not--is deter-
mined under the general "appropriate means" test first laid down to
define the reach of the Necessary and Proper Clause, Art. 1, § 8, cl.

                    7
18, in M'Culloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 (1819),8
as later specifically applied to the reach of the enforcement provisions
of the Reconstruction Amendments in Ex parte Virginia, 100 U.S.
339, 345-46 (1879),9 of the Fifteenth Amendment in South Carolina
v. Katzenbach, 383 U.S. 301, 324 & 326 (1966), and even more spe-
cifically to the reach of Section 5 as a means of enforcing equal pro-
tection rights in Katzenbach v. Morgan, 384 U.S. 641, 650-51 (1966).10
Though the test has always been ascribed over this course of applica-
tions to its origins in M'Culloch, its exact formulation has varied over
time. In its most recent and specifically relevant formulation for
application to the abrogation issue before us, the test was expressed
in Morgan as being whether the enactment in question (1) "may be
regarded as an enactment to enforce the Equal Protection Clause";
(2) "is `plainly adapted to that end'"; and (3) "is not prohibited by but
is consistent with the `letter and spirit of the Constitution.'" Morgan,
384 U.S. at 651 (quoting M'Culloch, 17 U.S. at 421).11
_________________________________________________________________
8 "Let the end be legitimate, let it be within the scope of the constitu-
tion, and all means which are appropriate, which are plainly adapted to
that end, which are not prohibited, but consist with the letter and spirit
of the constitution, are constitutional." Id.
9 "Whatever legislation is appropriate, that is adapted to carry out the
objects of the [Reconstruction] amendments have in view, whatever
tends to enforce submission to the prohibitions they contain, and to
secure to all persons the enjoyment of perfect equality of civil rights and
the equal protection of the laws against State denial or invasion, if not
prohibited, is brought within the domain of congressional power." Id.

10 The test finds textual expression in Section 5 and other enforcement
provisions only in the narrow form, "appropriate legislation." Though
bare-bones and independently unhelpful, this short-form usage was obvi-
ously intended to embody, through "appropriate," the more expansive
M'Culloch and Ex parte Virginia formulations. See, e.g., South Carolina,
383 U.S. at 325-26 (referring to M'Culloch test as that to be applied in
determining reach of § 2 of Fifteenth Amendment); Morgan, 384 U.S. at
650 & n.9 ("appropriate legislation" language intended to embody
M'Culloch test).
11 The First Circuit in Mills and the Sixth Circuit in Wilson-Jones view
differently the significance of the Morgan formulation. The Sixth Circuit
considered it a significant refinement and narrowing of the then-evolved
test specifically adapted to cabin in the reach of Section 5 power to

                    8
Applying the test as most recently and relevantly expressed in
Morgan, the attempted abrogation here at issue fails that test's first
requirement: it may not properly "be regarded as an enactment to
enforce the Equal Protection Clause." True, it would in the end
remove an inequality of treatment of different classes of persons.
True, though that inequality might not itself involve a constitutional
violation, it need not do so in order to fall within the prophylactic
reach of the Section 5 enforcement power. See Morgan, 384 U.S. at
651; Mills, 118 F.3d at 46. But, it cannot be that Congress's Section 5
enforcement power may "appropriately" be exercised--even for pro-
phylactic purposes--to eradicate every classification of persons
imposed (or allowed to continue if externally imposed) by a state. See
Oregon v. Mitchell, 400 U.S. 112, 127 (1970) ("Nor was the Enforce-
ment Clause of the Fourteenth Amendment intended to permit Con-
gress to prohibit every discrimination between groups of people.").

Though that basic proposition may be thought self-evident from the
very use of the term "appropriate" in enforcement section text and
judicial rule, the limits on enforcement power that it implies surely
are not--either from constitutional text or judicial decision. Seeking
the limits elsewhere, we agree with the First and Sixth Circuits that
they are to be found by considering, in light of developed equal pro-
tection jurisprudence, whether the particular inequality targeted by the
attempted abrogation is such as to justify congressional elimination as
a means of enforcing Equal Protection Clause guarantees. See Mills,
118 F.3d at 46-47; Wilson-Jones, 99 F.3d at 209-10.
_________________________________________________________________

enforce the open-ended Equal Protection Clause. See Wilson-Jones, 99
F.3d at 209. The First Circuit disagreed, believing that Morgan simply
carried the general M'Culloch test forward as it had regularly been
applied in determining the reach of specific enforcement provisions. See
Mills, 118 F.3d at 45. In the end, as indicated, the two courts came to the
same conclusion--that under the proper test as each differently under-
stood it, abrogation could not be effected under Congress's Section 5
powers. Though choosing sides on that rather subtle intermediate point
of disagreement between those courts is not necessary to our decision,
our view is that the essentials of the test have not been intentionally var-
ied by its somewhat different formulations over the years.

                     9
Without recapitulating in full the familiar hierarchy of equal-
treatment interests and corresponding protections that has emerged in
equal protection jurisprudence, it suffices to observe that the inequal-
ity targeted by the attempted abrogation here does not involve any
interest at the core of developed equal protection concerns. Public-
sector employees are not a recognized "suspect" or "quasi-suspect"
group, nor is their interest in any guaranteed level of wages a "funda-
mental" one. Consequently, the Equal Protection Clause would only
afford protection against unequal treatment respecting public-sector
employees' entitlement to, or means of securing, FLSA wages if it
resulted from arbitrary state action--action that has no rational basis.
See Mills, 118 F.3d at 46-47; Wilson-Jones, 99 F.3d at 210. That lim-
ited measure of protection therefore defines the end"comprehended
by" the Equal Protection Clause, see South Carolina, 383 U.S. at 324
& 326, for guarding against such a non-core inequality of treatment
and, accordingly, the limited power of Congress acting under Sec-
tion 5 to eliminate or prohibit the inequality. To the extent this partic-
ular inequality of treatment cannot be laid to arbitrary, irrational state
action, an attempt to eliminate it by abrogation could not therefore be
"regarded as an enactment to enforce the Equal Protection Clause."
Morgan, 384 U.S. at 651.

The specific inequality of treatment here at issue--that resulting
from the Commonwealth's Eleventh Amendment immunity to FLSA
damage suits in federal court by public-sector, but not private-sector,
employees--cannot be laid to any arbitrary, irrational state action. In
the first place, it concerns only legal process--access to a federal
judicial forum--and not the underlying substantive entitlement to
FLSA-mandated wages as to which equality of treatment is already
ensured for both groups by substantive provisions of the FLSA as
enacted under Congress's Commerce Clause powers. While it is true
that in appropriate circumstances the Section 5 power extends to the
removal, by abrogation, of precisely this forum-access inequality, see
Fitzgerald, just as it extends to the removal of substantive inequali-
ties, see, e.g., Morgan, we think a proper question whenever abroga-
tion is sought to be upheld as an exercise of Section 5 powers is
whether legislation removing a related substantive inequality could be
upheld on that basis. Put another way, we do not believe that abroga-
tion of Eleventh Amendment immunity to particular actions could be
upheld as an appropriate exercise of Section 5 power to enforce the

                     10
Equal Protection Clause unless legislation to remove a related, under-
lying substantive inequality could be upheld on that basis. Here, that
would require asking whether the FLSA amendments of 1960 and
1966 that extended substantive coverage to public-sector employees
could have been upheld as an appropriate exercise of Section 5 pow-
ers. They were not upheld on that basis, but as an appropriate exercise
of Commerce Clause powers. See Maryland v. Wirtz , 392 U.S. 183,
188-99 (1968). Whether they could also have been upheld under Sec-
tion 5 has not, therefore, required decision. We are satisfied that they
could not be so upheld, because we do not believe that even the provi-
sion by state action of unequal minimum wage guarantees for public-
sector and private-sector employees could ordinarily be found arbi-
trary and unreasonable. As the First Circuit pointed out in Mills,
"[d]ifferences in the manner, method, and amount of payment that
private sector and state employees receive, to the extent they exist,
usually flow from a myriad of factors, including state budgetary con-
cerns and the levels of public expenditure and taxation deemed proper
by normal political processes." 118 F.3d at 48. Differentiation on the
basis of such practical economic and public financing concerns could
not easily be considered arbitrary.

If such substantive inequality of treatment by a state could not be
considered for equal protection purposes to be arbitrary and unreason-
able, hence subject to elimination by Congress under its Section 5
powers, we are satisfied that even less so could be state action whose
only effect is to impose (or permit continuation of) an inequality of
legal process (not amounting to total preclusion) to vindicate those
substantive interests.

Accordingly, we conclude, affirming the district court's ruling, that
the attempted abrogation by Congress of the states' Eleventh Amend-
ment immunity to FLSA suits by state employees cannot be upheld
as an exercise of Section 5 enforcement powers.

III.

We next consider the employees' fall-back contention that the
Commonwealth has implicitly, or constructively, waived, or may
have waived, its Eleventh Amendment immunity and consented to

                    11
suit on these FLSA claims.12 Specifically, the employees invoke two
theories of implied waiver/consent: (1) waiver by operating these
facilities after Congress had first extended FLSA coverage to state
employees, then clearly stated its intent in the 1974 FLSA amend-
ments that the Commonwealth's employees should be able to sue it
on FLSA claims in federal court ("regulated activity" theory); and
(2) waiver by participating in federally-funded programs as to which
Congress had expressly conditioned participation on the state's con-
senting to suit in federal court ("exacted consent" theory). As to the
"regulated activity" theory, the employees contend that it should now
be applied as a matter of law to defeat the Commonwealth's immu-
nity defense, the facts for its application being undisputed on the pres-
ent record. As to the "exacted consent" theory, the employees contend
that the facts may be there to support it in the form of consenting doc-
uments in the Commonwealth's possession, and that they should be
entitled to discovery to determine whether they do exist. The district
court rejected both contentions. We agree with its conclusions as to
each.

A.

The "active participation" contention traces back to the doctrine
first applied in Parden v. Terminal Ry., 377 U.S. 184, 192 (1964), to
hold that by beginning to operate an interstate railroad twenty years
after Congress had enacted, under its Commerce Clause power, the
Federal Employers' Liability Act (FELA), the State of Alabama had
impliedly consented to being sued in federal court by its injured rail-
road employees on FELA claims.13 Assuming that after Seminole
Tribe the Parden doctrine of implied waiver by a state's participation
in activities regulated under the Commerce Clause has continued
_________________________________________________________________
12 No contention is made that the Commonwealth has expressly waived
its immunity.
13 When Parden was decided, its implied waiver holding was not
dependent upon Congress's having plainly stated its intention that partic-
ipation by a state in the regulated activity would be deemed an implied
waiver of immunity. That requirement was later imposed as a condition
for finding implied waiver in Welch v. Texas Department of Highways
& Public Transportation, 483 U.S. 468, 478 (1987) (plurality opinion).

                    12
vitality, a matter not wholly free of doubt,14 developments since
Parden have made clear the theory's inapplicability in any event to
the facts here in issue. Not long after Parden was decided, the
Supreme Court, noting that that case concerned "a rather isolated state
_________________________________________________________________

14 In Seminole Tribe's aftermath, there have been judicial speculations
and one alternative holding by a lower federal court, that the Seminole
Tribe decision may effectively have eviscerated the Parden doctrine of
implied waiver by participation (or by exacted consent). See College Sav.
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 948 F. Supp.
400, 419 (D.N.J. 1996) (holding implied waiver by participation no lon-
ger possible in view of Seminole Tribe's rejection of Parden's "surren-
der" theory upon which implied waiver doctrine based), aff'd on other
grounds, 131 F.3d 353 (3d Cir. 1997); Digiore v. Illinois, 962 F. Supp.
1064, 1075 (N.D. Ill. 1997) (suggesting possibility on basis that Seminole
Tribe impliedly embraced Justice Scalia's dissenting position in
Pennsylvania v. Union Gas Co., 491 U.S. 1, 43-44 (1989), that Congress
can no more use its Article I power to invite state waivers of immunity
than it can directly abrogate the immunity, but rejecting implied waiver
contention on more narrow grounds); see also Close v. New York, 125
F.3d 31, 40 (2d Cir. 1997) (suggesting that "Parden's viability in light
of Seminole is precarious," but rejecting implied waiver contention on
more narrow grounds).

Other courts, without adverting to the possibility of such a wholesale
evisceration, have assumed continued viability of implied waiver doc-
trine after Seminole Tribe and either found waiver or rejected it on nar-
row merit grounds. See, e.g., Mills, 118 F.3d at 45 (rejecting claim of
implied waiver for failure of proof of plain statement of intent to exact
consent); Premo v. Martin, 119 F.3d 764, 770-71 (9th Cir. 1997) (finding
implied waiver by state participation in cooperative federal-state program
where participation expressly conditioned upon submitting to federal
judicial review of grievance arbitration); U.S. West Communications, Inc.
v. TCG Seattle, 971 F. Supp. 1365, 1369-70 (W.D. Wa. 1997) (same,
essentially).

This court recently has acted on the same unstated assumption that
implied waiver doctrine survives Seminole Tribe . See Booth v. Maryland,
112 F.3d 139, 145 (4th Cir. 1997) (rejecting claim for lack of plain state-
ment of congressional intent to condition participation in federally regu-
lated activity on consent to suit in federal court).

We proceed on the same assumption here, reserving decision on the
broader question. See College Sav. Bank, 131 F.3d at 365 (same).

                    13
activity," a "railroad business . . . operated`for profit'" in an "area
where private persons and corporations normally ran the enterprise,"
declined to extend its waiver by participation theory to find an
implied waiver of immunity to FLSA suits in Missouri's continued
operation of non-profit hospitals and other facilities after FLSA cov-
erage was extended to state employees. Employees of the Department
of Public Health & Welfare v. Department of Public Health &
Welfare, (Missouri Employees), 411 U.S. 279, 284-85 (1973). Noting
that to imply consent in respect of such traditionally governmental
operations would involve consent to suit by all employees, high and
low, "in a state's governmental hierarchy," the Court declined to find
waiver. The obvious rationale was that such a wide-ranging waiver
could not fairly be implied from no more than a state's continued
employment of people to conduct traditional governmental opera-
tions, there being no real choice in the matter. Though Missouri
Employees was decided before Congress plainly expressed in 1974 its
intent that such suits should be allowed, the Missouri Employees
rationale surely must survive that expression of Congressional intent.
It remains the case that the Commonwealth has done no more in the
aftermath of Congress's attempted abrogation of its immunity to
FLSA suits (an attempt we have now found ineffectual in any event).15
We therefore agree with the Second Circuit which, on that rationale,
declined to find an implied waiver simply in New York's continuation
of traditional non-commercial governmental operations following the
FLSA's extension to public employers and Congress's later attempt
to abrogate immunity to FLSA suits. See Close , 125 F.3d at 40 (hold-
ing that because "New York had employees before the enactment of
the FLSA and before it was made applicable to the States, its contin-
ued status as an employer cannot realistically be construed as a
waiver of immunity") (footnote omitted); see also Digiore, 962
F. Supp. at 1075-76 (noting that as to such essential governmental
functions, "[a] state can hardly manifest consent to suit by . . . hiring
_________________________________________________________________

15 It cannot be the case that a constitutionally invalid plain statement of
intent to abrogate could nevertheless serve as the valid plain statement
of intent to treat state participation as an implied waiver that Welch
requires.

                     14
and paying its employees" "activities that the state has but little
choice to engage in").16

B.

As indicated, the employees' contention in reliance on the "exacted
consent" theory of implied waiver is not that the evidence of record
now demonstrates such a waiver, but that because there may have
been such consent, they should be allowed discovery to pursue the
possibility. The district court denied their motion for the discovery
sought and we find no abuse of discretion in that ruling.

Assuming, as we did with respect to the waiver-by-participation
contention, that waiver by exacted consent remains a viable doctrine
after Seminole Tribe, it would require here a showing (1) that Con-
gress had validly funded a program or programs available for admin-
istration by the states in the operation of their prison and mental
health facilities, and in doing so had unambiguously conditioned
receipt of the federal funding upon the states' waiver of immunity to
FLSA suits by employees of those facilities, and (2) that the Com-
monwealth had received such funding and properly given the consent
required as a condition of its receipt. See generally Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 241 (1985); College Bank, 131 F.3d
at 362-63.

The district court denied the motion for discovery on the basis that
to warrant it the employees must have made at least a "colorable
showing of waiver," and that here they had not done so. Specifically,
the court rightly pointed out that it would not suffice to prove waiver
_________________________________________________________________
16 The employees rely on Briggs v. Sagers, 424 F.2d 130 (10th Cir.
1970) and Carey v. White, 407 F. Supp. 121 (D. Del. 1976), both of
which held that there was a "choice," though concededly a difficult one,
in continuing or dismantling essential governmental operations after the
FLSA's extension to state employers and on that basis found implied
waivers respecting FLSA claims. The cases are inapposite. Both pre-
dated Seminole Tribe, which expressly rejected Parden's "surrender of
sovereignty" theory upon which both relied, and both also pre-dated
Welch's imposition of a plain statement requirement that was not then or
later met in respect of FLSA suits.

                     15
if discovery revealed no more than that the Commonwealth had par-
ticipated in federal programs in connection with which it had agreed
to comply with all relevant federal laws, including even the FLSA.
See Florida Dep't. of Health and Rehabilitative Services v. Florida
Nursing Home Ass'n., 450 U.S. 147, 150 (1981). And, the court noted
that the employees had identified no specific federally funded pro-
gram in which the Commonwealth participates that specifically
requires waiver as a condition to participation or receipt of funds.
Under these circumstances, the court concluded that because the Elev-
enth Amendment protects states not only from liability, but from "the
indignity of . . . coercive process of judicial tribunals at the instance
of private parties," discovery should only be permitted upon a color-
able showing of waiver not made here. Seminole Tribe, 116 S. Ct. at
1124 (quoting Puerto Rico Aqueduct and Sewer Authority v. Metcalf
and Eddy, Inc., 506 U.S. 139, 146 (1993) (internal quotation omit-
ted)). We find no abuse of discretion in that ruling. See Mills, 118
F.3d at 50 (so holding on comparable reasoning).

IV.

We therefore affirm the district court's rulings that Congress's
attempted abrogation in 1974 of the states' immunity from FLSA
damage suits in federal court was not a valid exercise of its power
under the Commerce Clause nor under the enforcement powers con-
ferred by Section 5 of the Fourteenth Amendment; that the Common-
wealth had not been proven to have impliedly waived its immunity to
such suits; and that the employees' motion for discovery should be
denied. Accordingly, we affirm the district court's judgment dismiss-
ing the employees' actions.17

AFFIRMED
_________________________________________________________________

17 This decision applies only to private damage actions for FLSA viola-
tions. It affects none of the other available means for enforcing state
employees' substantive FLSA rights. See 29 U.S.C. § 216(c) (damage
actions by federal government with remittance to employees); Ex parte
Young, 209 U.S. 123 (1908) (private action for injunctive relief against
enforcing state official); Testa v. Katt, 330 U.S. 386 (1947) (private
action in state court to enforce federal right).

                    16
BUTZNER, Senior Circuit Judge, dissenting:

I respectfully dissent from the proposition that the Eleventh
Amendment bars state employees from suing in federal court to
enforce the provisions of the Fair Labor Standards Act, 29 U.S.C.
§§ 201-219.

I

Section 1 of the Fourteenth Amendment provides in part: "No State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States." Section 5 of the Four-
teenth Amendment provides: "The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article."

Congress cannot define the meaning of "privileges," for this would
involve interpreting the Constitution. City of Boerne v. Flores, 117
S. Ct. 2157, 2168 (1997). This responsibility is the province of the
judiciary. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
Nevertheless, the Fourteenth Amendment confers important enforce-
ment powers on Congress. The Supreme Court has described Con-
gress' function as follows:

          Legislation which deters or remedies constitutional viola-
          tions can fall within the sweep of Congress' enforcement
          power even if in the process it prohibits conduct which is
          not itself unconstitutional and intrudes into "legislative
          spheres of autonomy previously reserved to the States."

Boerne, 117 S. Ct. at 2163 (citation omitted).

The first inquiry is to ascertain whether Virginia has made or
enforced any law pertaining to its employees' wages. The employees
allege that Virginia "under-credits hours worked" and denies them
proper compensation. Subject to budgetary constraints enacted by the
General Assembly, the power to fix wages is conferred on the Gover-
nor who acts after receiving recommendations from the Department
of Personnel and Training. Va. Code Ann. § 2.1-114.5 ¶ 2 (Michie
1995 & Supp. 1997). There can be no doubt that Virginia has made
and enforced a law that governs its employees' wages.

                    17
Whether Virginia law pertaining to wages abridges the privileges
of citizens of the United States depends on whether the protections of
the Fair Labor Standards Act are among such privileges. This requires
a judicial inquiry into the constitutional meaning of the term "Privi-
leges."

The opinion in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36
(1873), which is the font of law concerning the Privileges and Immu-
nities Clause, cautions against a broad reading of the Clause. The
Court in the Slaughter-House Cases, however, was not concerned
with legislation enacted by Congress. Instead, the Court held that the
Privileges and Immunities Clause itself [without benefit of congres-
sional legislation] did not prohibit a state legislature from granting a
monopoly. It was in this context that the Court cautioned against a
broad reading of the Clause.

Distinguished constitutional scholars, beginning with Philip B.
Kurland, have recognized the "existent and potential needs that the
privileges or immunities clause may be able to meet" if it is not cab-
ined by the caution voiced in the Slaughter-House Cases. Philip B.
Kurland, The Privileges and Immunities Clause: Its Hour Come
Round at Last?, 1972 Wash. U. L.Q. 405, 418; see also John H. Ely,
Democracy and Distrust 22-30 (1980); Laurence H. Tribe, American
Constitutional Law 558-59 (2d ed. 1988); Gerald Gunther & Kathleen
M. Sullivan, Constitutional Law 429-31 (13th Ed. 1997).

To satisfy judicially imposed constitutional requirements, the
Court's opinion in the Slaughter-House Cases explains that a privi-
lege or immunity must owe its "existence to the Federal government,
its National character, its Constitution, or its laws." 83 U.S. (16 Wall.)
at 79 (emphasis added). Analysis of the Fair Labor Standards Act in
accordance with these instructions establishes the following:

The Fair Labor Standards Act owes its existence to the Federal
government.

It is National in character. Subject to the Act's statutory exemp-
tions, every wage earner in the United States is brought within its
coverage.

                     18
It was constitutionally enacted pursuant to power conferred on
Congress by the Commerce Clause, Article 1 Section 8. See Garcia
v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). Congress
found that "labor conditions detrimental to the maintenance of the
minimum standard of living necessary for health, efficiency, and gen-
eral well-being of workers" burdened interstate commerce. 29 U.S.C.
§ 202 (1994).

It is a duly enacted law of the United States, which provides for
minimum wages and maximum hours, among other things.

The Fair Labor Standards Act discloses Congress' unequivocal and
express intent to abrogate the immunity conferred by the Eleventh
Amendment. An employer is defined to include a "public agency," 29
U.S.C. § 203(d); "a public agency" is defined to include a state,
§ 203(x); an individual employed by a public agency means "any
individual employed by a State," § 203(e)(2)(C); a state means "any
State of the United States," § 203(c). An action for violation of the
Act may be brought against "any employer (including a public
agency) in any Federal or State court of competent jurisdiction."
§ 216(b).

Not only must Congress clearly state its intent to abrogate a state's
Eleventh Amendment immunity, but it must act "pursuant to a valid
exercise of power." Seminole Tribe of Florida v. Florida, 517 U.S.
44, 55 (1996) (citation omitted). This ultimately depends on whether
the protections of the Fair Labor Standards Act are among the privi-
leges of national citizenship protected by the Fourteenth Amendment.
Not every law passed by Congress creates such a privilege. The Court
has held that the privileges of state citizenship are those that are "fun-
damental" and those that may be "comprehended under the following
general heads: protection by the government, with the right to acquire
and possess property of every kind, and to pursue and obtain happi-
ness and safety, subject, nevertheless, to such restraints as the govern-
ment may prescribe for the general good of the whole." Slaughter-
House Cases, 83 U.S. (1 Wall.) at 76. The privileges of United States
citizenship are of no less significance.

To determine whether Congress has validly exercised its power to
enforce the Privileges and Immunities Clause through Section 5 of the

                     19
Fourteenth Amendment, one needs to examine what the Supreme
Court and other courts have said about the fundamental nature and
importance of the Fair Labor Standards Act.

The Supreme Court has affirmed the Act's fundamental importance
to the nation. In one of its fullest and earliest expositions, the Court
noted that the FLSA is intended

          to protect certain groups of the population from sub-
          standard wages and excessive hours which endangered the
          national health and well-being and the free flow of goods in
          interstate commerce. The statute was a recognition of the
          fact that due to the unequal bargaining power as between
          employer and employee, certain segments of the population
          required federal compulsory legislation to prevent private
          contracts on their part which endangered national health and
          efficiency and as a result the free movement of goods in
          interstate commerce. To accomplish this purpose standards
          of minimum wages and maximum hours were provided.

Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 706-7 (1945) (footnotes
omitted).

The Court recognized that

          The Fair Labor Standards Act was designed "to extend the
          frontiers of social progress" by "insuring to all our able-
          bodied working men and women a fair day's pay for a fair
          day's work." Any exemption from such humanitarian and
          remedial legislation must therefore be narrowly construed,
          giving due regard to the plain meaning of statutory language
          and the intent of Congress. To extend an exemption to other
          than those plainly and unmistakably within its terms and
          spirit is to abuse the interpretative process and to frustrate
          the announced will of the people.

A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493 (1945) (citation
omitted).

                     20
The Fair Labor Standards Act "secure[s] for the lowest paid seg-
ment of the Nation's workers a subsistence wage" and assures the
maintenance of a minimum living standard. D.A. Schulte, Inc. v.
Gangi, 328 U.S. 108, 116 (1946); see also Wirtz v. Ti Ti Peat Humus
Co., 373 F.2d 209, 212 (4th Cir. 1967).

"[T]he FLSA was designed to give specific minimum protections
to individual workers and to ensure that each employee covered by
the Act would receive a fair day's pay for a fair day's work and would
be protected from the evil of overwork as well as underpay."
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739
(1981) (internal quotation marks and citation omitted).

"The Fair Labor Standards Act is a major enactment by Congress
of social and economic policy, intended to protect certain groups of
the population from substandard wages and excessive hours. . . ."
Foremost Dairies, Inc. v. Wirtz, 381 F.2d 653, 655 (5th Cir. 1967).

"The purpose of the Act . . . was not to regulate interstate com-
merce as such, but to eliminate, as rapidly as practicable, substandard
labor conditions throughout the nation." Mitchell v. Empire Gas
Eng'g Co., 256 F.2d 781, 783 (5th Cir. 1958).

The Act restores bargaining power to workers to prevent their
exploitation. See Isaacson v. Penn Community Servs., Inc., 450 F.2d
1306, 1310 (4th Cir. 1971); McComb v. Homeworkers' Handicraft
Coop., 176 F.2d 633, 636 (4th Cir. 1949).

The Act is "comprehensive in its purpose and remedial in charac-
ter." Missel v. Overnight Motor Transp. Co. , 126 F.2d 98, 103 (4th
Cir.), aff'd, 316 U.S. 572 (1942).

These excerpts from judicial opinions establish that the protections
of the Fair Labor Standards Act are among the privileges secured by
the Privileges and Immunities Clause.

II

Dissenting, I conclude that the Fair Labor Standards Act is reme-
dial legislation that protects privileges of national citizenship guaran-

                     21
teed by Section 1 of the Fourteenth Amendment. A state may not
enact any law that abridges these privileges. Congress has expressed
an intent in the Act to abrogate States' Eleventh Amendment immu-
nity. The Fair Labor Standards Act is appropriate legislation enacted
by Congress, pursuant to Section 5 of the Fourteenth Amendment, to
enforce the Privileges and Immunities Clause.

                    22
