                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 07-15073                      May 30, 2008
                          Non-Argument Calendar             THOMAS K. KAHN
                        ________________________                 CLERK


                    D. C. Docket No. 06-21595-CV-WMH

FELIX LOBO,
LIZA SUAREZ,

                                                           Plaintiffs-Appellants,

                                    versus

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
BILLY CYPRESS,

                                                          Defendants-Appellees.

                        ________________________

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

                               (May 30, 2008)

Before ANDERSON, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

     Appellants Felix Lobo and Liza Suarez appeal the dismissal of their Fair
Labor Standards Act, 29 U.S.C. § 201 (“FLSA”), complaint. The district court

dismissed the complaint because the Appellees, the Miccosukee Tribe and its

chairman Billy Cypress, enjoy sovereign immunity. On appeal, the Appellants

argue that the district court erred because the FLSA is a statute of general

application that applies to Indian tribes.

       In Florida Paraplegic, Association, Inc. v. Miccosukee Tribe of Indians of

Florida, 166 F.3d 1126 (11th Cir. 1999), we addressed precisely that issue.1 We

noted that although the district court was correct that the Act – in that case the

Americans with Disabilities Act – applied to Indian tribes, there was no indication

that Congress intended to waive Indian sovereign immunity to suit on that act. We

also noted that whether or not a tribe may be subject to a statute and whether or

not a tribe may be sued for violating a statute are “two entirely different

questions.” Id. at 1130. A tribe is not subject to suit unless the tribe waives its

immunity or Congress expressly abrogates it. Id. at 1131. We observed that in

order for Congress to have expressly abrogated immunity, it must have made its

intention “‘unmistakably clear in the language of the statute.’” Id. (quoting

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147


       1
          Although Florida Paraplegic involved a different statute, the case is analogous to the
instant case in that it also involved a statute of general applicability (i.e. the ADA) and it
involved the application of that statute to a similar commercial business of the tribe.

                                                 2
(1985)).

      Turning to the text of the FLSA, it is clear that there is no such indication

that Congress intended to abrogate the tribe’s immunity to suit. Indeed there is no

mention of tribes in the text of the statute. Therefore, the district court did not err

when it dismissed the complaint with regard to the Appellant tribe.

      Turning to its chairman, Appellant Billy Cypress, it is equally clear that he

is immune from suit based on the FLSA. In Tamiami Partners v. Miccosukee

Tribe of Indians of Florida, 177 F.3d 1212 (11th Cir. 1999), we noted that “tribal

officers are protected by tribal sovereign immunity when they act in their official

capacity.” Id. at 1225. There is no allegations that Cypress was not acting in his

official capacity and therefore he is immune from suit.

AFFIRMED.2




      2
           Appellants’ request for oral argument is denied.

                                                 3
