
USCA1 Opinion

	




       No. 96-1973                                 JON MILLS, ET AL.,                               Plaintiffs, Appellants,                                         v.                                   STATE OF MAINE,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                ____________________                                       Before                                Stahl, Circuit Judge,                            Bownes, Senior Circuit Judge,                              and Lynch, Circuit Judge.                                ____________________            John R. Lemieux for appellants.            Peter J.  Brann,  Assistant Attorney  General,  with whom  Andrew       Ketterer, Attorney  General, and Thomas D.  Warren, Assistant Attorney       General, were on brief for appellee.                                ____________________                                    July 7, 1997                                ____________________                      STAHL, Circuit  Judge.   This case  requires us  to            determine  whether  the   Eleventh  Amendment,  as   recently            interpreted                        by the Supreme Court in Seminole Tribe v. Florida,            116 S. Ct. 1114 (1996), bars a federal suit for overtime  pay            under the Fair Labor Standards Act ("FLSA") brought by  state            employees against  the State of  Maine.   The district  court            concluded                      that                          Seminole                                   Tribe was a bar and dismissed the suit.            For the reasons that  follow, we affirm that ruling and  thus            find unconstitutional a  grant of federal court  jurisdiction            contained in a provision of 29 U.S.C. S 216(b).  We also deny            a              motion                     made                         on                            appeal                                   by plaintiffs-appellants to amend their            complaint.                            Background and Prior Proceedings                       In this  case, filed in  federal district court  in            December 1992, ninety-six  current and  former probation  and            parole                   officers (plaintiffs-appellants) have asserted that the            State  of Maine  improperly failed  to pay  them overtime  in            accordance with the requirements imposed by Section 7 of  the            FLSA,                  as                     codified                             at                                29                                   U.S.C. S 207.  Maine contended that the            probation  officers were  exempt  from  the  FLSA's  overtime            provisions.  The district court concluded that the plaintiffs            were covered  employees but  came within  the FLSA's  partial            exemption  for  law  enforcement  officers,  thus   requiring            additional proceedings on the scope of Maine's liability  and            the damages  recoverable by the  probation officers, if  any.                                         -2-                                          2            Following                      the                         district                                  court's ruling, the state brought itself            into                 compliance                            with                                the                                    FLSA's wage and hour requirements, but            because                    the                       litigants                                 disputed how much overtime back pay Maine            owed the probation officers, the district court submitted the            plaintiffs' claims and time sheets to a special master.   See            Mills                                  v.                     Main                        e, 853 F. Supp. 551, 552 (D. Me. 1994) (ruling on            "issues                    affecting                             what                                  damages the State must pay the probation            officers"); Mills  v. Maine,  839 F.  Supp. 3  (D. Me.  1993)            (finding liability).                      The                          proceedings on liability and damages had not yet            concluded when  the  Supreme  Court issued  its  decision  in            Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996).   Seminole            Tribe held that Congress cannot exercise its Article I powers            to abrogate the states' Eleventh Amendment immunity from suit            in  federal court,  see id.  at 1131-32,  and thus  overruled            Pennsylvania                                               v.                           Union                                 Gas Co., 491 U.S. 1 (1989).  On the basis            of               the                   holding                          in                             Seminol                                   e Tribe, Maine filed a motion with the            district court asking that the case be dismissed for lack  of            subject matter jurisdiction.  The district court granted  the            motion  and dismissed the  case pursuant to  Fed. R. Civ.  P.            12(b)(1).  See Mills v. Maine, No. 92-410-P-H, 1996 WL 400510            (D.                Me.                    July                         3,                           1996).                                                                     In so doing, the district court refused            the probation officers' request  that the court either  allow            them                 to                    conduct discovery on whether Maine waived its Eleventh                                         -3-            Amendment immunity or,  alternatively, transfer  the case  to            state court.  This appeal ensued.                                 Standard of Review                      We review de novo a district court's dismissal  for            lack of subject matter jurisdiction under Rule 12(b)(1).  See            Murphy v. United States,  45 F.3d 520, 522 (1st Cir.),  cert.            denied, 115 S. Ct. 2581 (1995).                   Seminole Tribe and Eleventh Amendment Immunity                      To determine  whether  Congress has  abrogated  the            states'                    Eleventh Amendment immunity from suit in federal court            in               enacting                        the FLSA amendments at issue in this case, we must            examine   two  issues:      "first,  whether   Congress   has            'unequivocally  expresse[d]  its   intent  to  abrogate   the            immunity,'                       and second, whether Congress has acted 'pursuant to            a valid exercise of power.'"   Seminole Tribe, 116 S. Ct.  at            1123                 (internal                          citation                                   omitted) (quoting Green v. Mansour, 474            U.S. 64, 68 (1985)).             A.  Intent to Abrogate                      A centerpiece of the New Deal, Congress enacted the            Fair                 Labor                       Standards Act in 1938.  The constitutional validity            of the Act's minimum  wage, maximum hour, and  record-keeping            requirements, in addition  to its  prohibition of  interstate            shipment                     of                       proscribed                                  goods, was challenged under the Commerce            Clause                   as                      well as the Fifth and Tenth Amendments.  A unanimous            Supreme Court upheld the Act  in 1941.  See United States  v.                                         -4-                                          4            Darby, 312  U.S. 100  (1941).   While the  original 1938  Act            specifically excluded states and their political subdivisions            from its aegis, Congress amended the FLSA in 1961 and 1966 to            extend coverage  to  some  state workers  employed  in  state            schools, hospitals, and nursing homes.  These amendments were            challenged under the Tenth  Amendment, but the Supreme  Court            ruled in 1968 that the amendments were legitimate expressions            of Congress' Commerce Clause powers.  See Maryland v.  Wirtz,            392 U.S. 183, 198-99 (1968).                      In 1973, however, the Supreme Court concluded  that            the  FLSA did not  subject states to  suits brought by  state            employees in federal court because Congress had not indicated            with sufficient  clarity an  intent to  abrogate the  states'            Eleventh Amendment sovereign immunity.  See Employees of  the            Dep't of Pub. Health & Welfare v. Department of Pub. Health &            Welfare                  ,                     411                        U.S.                             279,                                  285 (1973).  The Court noted that it had            scrutinized the statute's  text and legislative history,  but            "ha[d]                   found                         not                            a                              word                                   . . . to indicate a purpose of Congress            to make it  possible for a citizen  of that State or  another            State to sue the State in the federal courts."  Id.                       In 1974,  in the wake  of the  Court's decision  in            Employees                    ,                       Congress amended the FLSA to cover almost all state            employees  and to  express its  intent to  subject states  to            private suits  brought in federal  court.   Two years  later,            however, in 1976, the Supreme Court overruled Wirtz, and held                                         -5-                                          5            that                 Congress                          did                             not                                 have the power to extend FLSA protections            to  state employees  in  "areas of  traditional  governmental            functions."                                                 National League of Cities v. Usery, 426 U.S. 833,            855                (1976)                      (5-4                           decision).  In 1985, however, the Supreme Court            reversed                     itself yet again and overruled Usery in Garcia v. San            Antonio  Metro.  Transit Auth.,  469  U.S.  528  (1985)  (5-4            decision).                                               "The                            result                                   of Garcia was to bring all employees of            the states and their  political subdivisions within the  full            coverage of the FLSA."  Gilbreath v. Cutter Biological, Inc.,            931 F.2d 1320, 1324 (9th Cir. 1991).                      There can  be little doubt  that the  FLSA, in  its            current                    form,                         makes                               clear Congress' intention to abrogate state            immunity from suit in federal court in private FLSA  actions.            The Act, as amended, defines "Employer" as "any person acting            directly  or indirectly  in the  interest of  an employer  in            relation to  an employee and includes  a public agency."   29            U.S.C. S 203(d).  In relevant part, it further provides that,            "In                the                    case                        of                           an                              individual employed by a public agency, such            term                 means                       .                         . . any individual employed by a State, political            subdivision                        of a State, or an interstate governmental agency."            29 U.S.C.  S 203(e)(2),(C).   Finally, the  Act, as  amended,            provides in pertinent  part that, "An  action to recover  the            liability  prescribed .  . .  may be  maintained against  any            employer (including a public agency) in any Federal or  State                                         -6-                                          6            court                  of                     competent jurisdiction by any one or more employees."            29 U.S.C. S 216(b).                      In                         light                               of                                 this                                      language and the history surrounding            it, we  agree with  the  other courts  of appeals  that  have            examined                     the                         FLSA's provisions and have concluded that the Act            contains                     the                         necessary clear statement of congressional intent            to abrogate state sovereign immunity.  See Timmer v. Michigan            Dep't                  of                    Comm.,                           104                               F.3d                                    833, 837 (6th Cir. 1997); Wilson-Jones            v.               Caviness                      ,                        99                           F.3d                                203, 208 (6th Cir. 1996), reh'g denied and            amended                                      by                                           107                          F.3d                               358                                   (6th Cir. 1997); Brinkman v. Department            of               Corrections                        ,                           21                              F.3d                                   370, 372 (10th Cir. 1994); Reich v. New            York, 3 F.3d 581, 590-91 (2d Cir. 1993); Hale v. Arizona, 993            F.2d 1387, 1391 (9th Cir. 1993) (en banc) ("Congress has made            unmistakably clear  its intention to  apply the  FLSA to  the            states.").            B.  Power to Abrogate                      Having  determined   that  Congress   has   clearly            manifested                       its                           intent                                 to                                    abrogate state sovereign immunity from            private FLSA suits  in federal courts, we must next  consider            whether Congress in doing so "has acted 'pursuant to a  valid            exercise of  power.'"   Seminole Tribe,  116 S.  Ct. at  1123            (quoting Mansour, 474 U.S. at 68).                       1.  The Recital/Declamation of Power Issue                      Both  sides in  this  dispute agree  that  Congress            referred                     to                        its                           Commerce                                    Clause powers when it enacted both the                                         -7-                                          7            original                     FLSA                          and                             the                                 subsequent amendments to the Act that are            at               issue                     in                        this case.  See 29 U.S.C. S 202(b) (declaring that            the FLSA is an "exercise by Congress of its power to regulate            commerce                     among the several States and with foreign nations.").            The                probation                         officers                                  concede that, whatever may have been the            law                of                   the                      land                           under                                 the holding of Union Gas, see 491 U.S. at            23, Seminole  Tribe  now precludes  Congress from  using  its            Commerce                     Clause powers or any of its other Article I powers to            grant                  jurisdiction to federal courts in suits involving states            that do  not consent to be sued.  See 116 S. Ct. at  1131-32.            The                probation officers, however, point out that Seminole Tribe            reaffirmed                       Congress'                                power to abrogate state immunity from suit            in federal court by enacting legislation pursuant to  section            five                 of                    the                       Fourteenth                                  Amendment, see id. at 1125, 1128 (citing            Fitzpatrick v.  Bitzer,  427 U.S.  445, 452-56  (1976)),  and            contend                    that                         the                            FLSA                                 amendments still subject unwilling states            to suit  in federal court because  Congress had the power  to            enact those amendments under  section five of the  Fourteenth            Amendment.                      While Congress' invocation  of its Commerce  Clause            powers is probative, it is not dispositive of whether it  had            the  power to  enact the  FLSA amendments  in question  under            section  five of  the Fourteenth  Amendment.   "'Our duty  in            passing                    on                      the                          constitutionality of legislation is to determine            whether Congress had the authority to adopt legislation,  not                                         -8-                                          8            whether it  correctly  guessed the  source of  that  power.'"            Timmer, 104 F.3d  at 839 (quoting Usery v. Charleston  County            Sch. Dist.,  558 F.2d 1169,  1171 (4th Cir.  1977)).  As  the            Supreme  Court  has   explained,  "[t]he   question  of   the            constitutionality of action taken by Congress does not depend            on recitals of  the power which  it undertakes to  exercise."            Woods                                  v.                     Cloy                        d W. Miller Co., 333 U.S. 138, 144 (1948) (quoted            in EEOC  v. Wyoming,  460 U.S.  226, 243-44  n.18 (1983)  and            Ramirez                                      v.                       Pu                        erto Rico Fire Serv., 715 F.2d 694, 698 (1st Cir.            1983)).  See also Laurence H. Tribe, American  Constitutional            Law 307  n.6 (2d ed. 1988)  ("An otherwise valid exercise  of            congressional  authority is  not, of  course, invalidated  if            Congress  happens  to  recite   the  wrong  clause  [of   the            Constitution] . . . or, indeed, if Congress recites no clause            at all.") (citing Woods).                       Specifically                                    with                                        respect to congressional exercises            of               power                     pursuant to section five of the Fourteenth Amendment,            we have  indicated that  "[t]he omission  of any  ritualistic            incantation                        of                           powers                                 by                                    the Congress is not determinitive, for            there                  is                     no                       requirement                                   that the statute incorporate buzz words            such as  'Fourteenth  Amendment'  or 'section  5'  or  'equal            protection'."   Ramirez,  715 F.2d  at 698.   Our  Fourteenth            Amendment approach is one that we have directly adopted  from            Supreme                    Court                         precedent.                                     See Wyoming, 460 U.S. at 243-44 n.18.                                         -9-                                          9                      Accordingly, as we  have had  previous occasion  to            point                  out,                       "absent                              an                                 outright congressional declamation, it is            th[is] court's task to decipher whether Congress has  enacted            legislation pursuant to its section  5 powers. . . . Such  an            inquiry                    necessarily focuses upon whether or not the objectives            of the legislation  are within the  scope of Congress'  power            under section 5  of the Fourteenth Amendment."  Ramirez,  715            F.2d at 698.  In undertaking this inquiry, we are mindful  of            the Supreme Court's cautionary admonition that "we should not            quickly attribute to Congress an unstated intent to act under            its                authority to enforce the Fourteenth Amendment."  Pennhurst            State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16 (1981).  This            word of  warning  suggests  that "a  court  should  carefully            consider the propriety and effect of concluding that Congress            has acted pursuant to S 5."  Timmer, 104 F.3d at 840.                      In                         this                              case,                                   the                                       litigants do not dispute that there            is no congressional  statement in the  FLSA or the  statute's            legislative                        history                               of                                  any recourse to section five, Fourteenth            Amendment powers.   Indeed,  the State  of Maine  essentially            contends that because  Congress invoked  its Commerce  Clause            powers                   in                      passing                             the                                 FLSA and the amendments pertinent to this            dispute,                     the                         statute cannot be justified under section five of            the                Fourteenth Amendment or any constitutional provision other            than  the Commerce  Clause.    Even  considering  Pennhurst's            'proceed                     with caution' rule, the problem with this argument is                                        -10-                                         10            that it is  contrary to binding  Supreme Court precedent  and            prior decisions of this circuit and is not logical.  As other            federal                    courts                          have                               expla            to               the                   FLSA,                         one cannot read Congress' statement regarding the            Act's validity under the Commerce Clause to "indicat[e]  that            Congress intended to exclude other applicable  constitutional            bases for the Act."  Brown v. County of Santa Barbara, 427 F.            Supp. 112, 114  (C.D. Cal. 1977)  (citing Usery v.  Allegheny            County Hosp., 544 F.2d 148, 155 (3d Cir. 1976)).                      Because Congress'  recital of  its Commerce  Clause            powers                   did                       not                          evince                                 an                                    intent to exclude other constitutional            bases for its action, we thus must "carefully consider,"  see            Timmer, 104 F.3d at 840, whether the FLSA amendments at issue            in this case "are  within the scope of Congress' power  under            section 5 of the Fourteenth Amendment."  Ramirez, 715 F.2d at            698.1                                                                        l            interpretatio                        n advanced in a recent dissent to a Sixth Circuit            1.                                   ined in looking at the 1974 amendments                  We  thus  reject  a  contrary  view  of  constitutiona            decision concerning an  amendment to the FLSA, the Equal  Pay            Act.                                   See                                          Tim                        mer, 104 F.3d at 845-47 (Boggs, J., concurring in            part and dissenting in part).  The dissent's author explained            that                 he                    could                         not                             agree                                   that Congress' "exclusive invocation of            only  one source  of  power  was not  only  unnecessary,  but            completely                       irrelevant."  Id. at 846.  "If that were the case,"            he contended, "then any such statement . . . would always  be            mere surplusage and a  court would always be free to  rummage            through the Constitution  to find some clause that the  court            thinks might support the exercise of power."  Id.  While  the            reasoning in the  Timmer dissent has some surface appeal,  we            choose                   not                       to                         embrace                                 it                                    in light of the contrary Supreme Court            and  First Circuit  precedent that  we consider  above.   See            Wyoming,  460 U.S. at  243-44 n.18; Woods,  333 U.S. at  144;            Ramirez, 715 F.2d at 698.                                            -11-                                         11                      2.  The FLSA Amendments and Equal Protection                      Section five  of  the Fourteenth  Amendment,  which            provides that "[t]he Congress shall have power to enforce, by            appropriate legislation, the provisions of [this Amendment],"            is a  congressional enforcement clause  that is  by no  means            unique.  Virtually  identical language is  also found in  the            Thirteenth, Fifteenth, Eighteenth, Nineteenth,  Twenty-third,            Twenty-fourth, and Twenty-sixth Amendments.  When determining            whether congressional enactments are "appropriate" and  valid            exercises                      of                        enforcement                                    clause powers such as the one at issue            here,                  Supreme                         Court                               precedent indicates that we look to whether            the                act                    is                       a                         "rational means" to an end that is "comprehended"            by               the                   underlying constitutional amendment.  South Carolina v.            Katzenbach, 383 U.S. 301,  324, 326 (1966) (upholding  Voting            Rights                   Act                       of 1965 under the Fifteenth Amendment's enforcement            clause); see also James Everard's Breweries v. Day, 265  U.S.            545,                 558-59,                         563                            (1924)                                   (upholding Supplemental Prohibition Act            of 1921 under the Eighteenth Amendment's enforcement clause).                      The classic  touchstone for  determining whether  a            congressional enactment is rationally related to a proper end            comprehended by a  constitutional provision is Chief  Justice            Marshall's formulation in McCulloch v. Maryland:                    We admit, as all must admit, that the  powers                    of the government  are limited, and that  its                    limits are not to be transcended. But . . . .                    [l]et the end be legitimate, let it be within                    the scope of the constitution, and all  means                    which  are  appropriate,  which  are  plainly                                        -12-                                         12                    adapted                            to                               that end, which are not prohibited,                    but consist with the letter and spirit of the                    constitution, are constitutional.          17 U.S. (4 Wheat.) 316, 421 (1819).                      The Supreme Court  has specifically  turned to  Chief          Justice                  Marshall's                            exposition in discussing the reach and limits of          congressional                        power                             under section five of the Fourteenth Amendment,          and has concluded that congressional power under this enforcement          provision  "ha[s] th[e]  same broad  scope" as  that sketched  in          McCulloch.  Katzenbach v. Morgan, 384 U.S. 641, 650 (1966).   The          operative Fourteenth Amendment test is indeed little more than  a          paraphrasing of Chief Justice Marshall's formulation.  See id. at          650-51;  Ex   parte  Virginia,  100   U.S.  339,  345-46   (1879)          (interpreting scope of congressional power under the  enforcement          clauses                  of                     the Reconstruction Amendments).  In Morgan, the Supreme          Court articulated a  three-pronged test  for determining  whether          congressional legislation is  enacted to  enforce the  Fourteenth          Amendment's  Equal Protection  Clause.   Specifically, the  Court          determined  that  a   congressional  enactment  is   "appropriate          legislation" under section five for Equal Protection purposes  in          the following circumstances:   (1) if it  "may be regarded as  an          enactment to enforce the Equal Protection Clause," (2) if it  "is          'plainly                   adapted                           to                             that                                  end,'" and (3) if it "is not prohibited by          but  is   consistent  with  'the   letter  and   spirit  of   the                                        -13-                                         13          constitution.'"                                             ,  1          U.S. at 421).2                      The Sixth Circuit has concluded that the three                            Morgan,  384 U.S. at 651 (quoting McCulloch    7                                                                     Morgan          factors effectively reworked the longstanding constitutional test          we             have                  outlined above by requiring something more than a rational          relationship  between a  congressional  enactment  and  the  ends          comprehended by the Fourteenth  Amendment.  See Wilson-Jones,  99          F.3d at  209 ("It is clear to us  that these three . . .  factors          cannot be kept  so permissive as to  make them collapse into  the          'rationally  related' test  generally  used for  the  enforcement          clauses of other constitutional amendments.").  What was clear to          the Sixth  Circuit panel is  not so easy  to discern because  our          review                 of                    Supreme                           Court                                 precedent, as indicated above, convinces us          that Morgan does  not treat section  five differently than  other          enforcement clauses  and  does not  depart from  the  traditional          formulation of such clauses' broad scope.  Were the Sixth Circuit          panel correct, we would have to conclude that Morgan  essentially          overruled Ex parte Virginia and its progeny sub silentio.             2.  This case does not directly implicate the Supreme Court's            recent decision in City of Boerne v. Flores, -- S. Ct. --,            1997 WL 345322 (U.S. June 25, 1997) (No. 95-2074).  In            Boerne, the Court held that Congress' section five power to            enforce the Fourteenth Amendment does not encompass a            substantive, nonremedial power to alter or redefine what            constitutes a violation of the Constitution.  The situation            that the Court confronted in Boerne does not pertain here,            where what is at issue is congressional power to enact a            remedial scheme for the violation of federal statutory law            that includes a grant of federal jurisdiction over cases            involving private plaintiffs and states not consenting to            suit.                                        -14-                                         14                      We do not  read Morgan to  accomplish what the  Sixth          Circuit suggests.  See Ramirez 715 F.2d at 698 ("The sweep of [Ex          parte  Virginia's]  mandate  was  reaffirmed  in  Katzenbach   v.          Morgan.").   Pointing  to Ex  parte  Virginia, the  Morgan  Court          explained that "congressional  power under S  5 ha[s] th[e]  same          broad scope"  as  McCulloch  determined Congress  has  under  the          Commerce  Clause, as  South  Carolina  v.  Katzenbach  determined          Congress                   has                       under section two of the Fifteenth Amendment, see 383          U.S.               at                  326,                       and                          as                             James                                  Everard's Breweries, see 265 U.S. at 558-          59, determined Congress  had under the enforcement clause of  the          now-repealed Eighteenth Amendment.  See Morgan 384 U.S. at 650-51          (discussing cases).  On our reading of the case, we cannot  agree          with  the  Sixth Circuit  that  a  rearticulated  and  heightened          Fourteenth                     Amendment standard now applies by virtue of Morgan.  We          thus see no  reason to doubt the  correctness of our decision  in          Ramirez                                  regarding                           Morgan                                                                  and the rational basis standard enunciated          therein,                   which                        we                           reaffirm as controlling in this circuit.  See 715          F.2d at 698.                      The                          scope                                of                                  the                                      rational basis test, however, requires          some clarification.  The Sixth Circuit defends its  rearticulated          Fourteenth Amendment  standard by  highlighting the  unacceptable          consequences                       that                           it                              believes would be attendant upon retaining the          rational                   basis standard.  See Wilson-Jones, 99 F.3d at 209 ("If we          were to  say that an act is valid if it is rationally related  to          achieving                    equal protection of the laws, then S 5 becomes a license                                        -15-                                         15          to Congress to pass any sort of legislation whatsoever.").  We do          not              agree                    that                        the                            rational basis test regarding enforcement of the          Fourteenth Amendment's equal protection guaranty gives Congress a          license                  to                     pass                         any                             sort                                  of legislation whatsoever.  The Fourteenth          Amendment does not render "every discrimination between groups of          people a constitutional  denial of equal protection."  Oregon  v.          Mitchell,  400 U.S.  112,  127  (1970) (opinion  of  Black,  J.).          Similarly, every congressional action that enlargens the scope of          a law to encompass a new class of people -- thereby eliminating a          previous 'discrimination' that the  law had made -- is not,  ipso          facto, a means  towards enforcing section five of the  Fourteenth          Amendment, because  that provision does  not "permit Congress  to          prohibit                   every discrimination between groups of people."  Id.  Put          in a  different fashion,  "'[t]he Fourteenth  Amendment does  not          profess to secure to all persons in the United States the benefit          of the same laws and the  same remedies.'"  Holden v. Hardy,  169          U.S. 366, 388 (1898) (quoting Missouri v. Lewis, 101 U.S. 22,  31          (1879)).                      When the Supreme Court first examined the  Fourteenth          Amendment's                      equal                           protection guaranty in the Slaughter-House Cases,          it             "suggested that the racial concern exhausted the meaning of the          clause."  Gerald Gunther, Constitutional Law 601 (12th ed. 1991);          see 83 U.S. (16 Wall.) 36, 71-72 (1873) (5-4 decision) ("[N]o one          can fail to be impressed with the one pervading purpose found  in          [the Reconstruction Amendments], lying at the foundation of each,                                        -16-                                         16          and without which none of them would have been even suggested; we          mean  the  freedom of  the  slave  race, the  security  and  firm          establishment                        of                          that                               freedom, and the protection of the newly-made          freeman                  and                      citizen from the oppressions of those who had formerly          exercised                    unlimited                             dominion over him. . . . [I]n any fair and just          construction of any section or phrase of these amendments, it  is          necessary to look to  the purpose which .  . . was the  pervading          spirit of them  all, [and] the evil  which they were designed  to          remedy.").                      The Court  has  since  moved away  from  this  narrow          conception of the  Fourteenth Amendment.   The Supreme Court  has          struck down state statutes under the Equal Protection Clause that          did              not                  classify                          or                             'discriminate' on the basis of race, but rather          on  some  other  impermissible  basis,  such  as  sex,  alienage,          illegitimacy,  indigency, criminal  conviction,  or  unreasonable          arbitrariness.                                                  See                           ,                              e.g.                                 , Mitchell, 400 U.S. at 150-52 (opinion of          Douglas,                   J.)                       (collecting cases); New York Transit Auth. v. Beazer,          440              U.S.                   568, 592 n.39 (1979) ("'[L]egislative classifications are          valid unless they  bear no rational  relationship to the  State's          objectives.'"                      ) (quoting Massachusetts Bd. of Retirement v. Murgia,          427 U.S. 307, 314 (1976) (per curiam)); Smith v. Cahoon, 283 U.S.          553, 566-67  (1931) (unanimous  decision) ("[T]he  constitutional          guaranty of equal  protection of the  laws is interposed  against          discriminatio                      ns that are entirely arbitrary.") Gulf, Colo. & Santa          Fe Ry. Co. v. Ellis, 165 U.S. 150, 165-66 (1897) (explaining that                                        -17-                                         17          "the mere fact of classification" in legislation does not violate          the equal protection guaranty,  but "a mere arbitrary  selection"          does);                 Atchison,                          Topeka                                 & Santa Fe Ry. Co. v. Vosburg, 238 U.S. 56,          62 (1915) (same).                      The scope and thrust of such decisions indicate  that          Equal  Protection  jurisprudence  is  not  narrowly  confined  to          traditional                      suspect or quasi-suspect classifications.  Whereas, as          is             well-known, classifications aimed at "suspect" classes or those          aimed at "fundamental" interests must pass strict scrutiny,  see,          e.g.             ,                Loving                                           v.                         Virginia                                ,                                  388 U.S. 1, 11-12 (1967), or, in the case          of sex discrimination, intermediate  review, see, e.g., Craig  v.          Boren, 429  U.S.  190,  197-99 (1976),  more  mundane  government          classifications that do  not target such groups or interests  are          subject  only  to   more  deferential   rational  basis   review.          Accordingly, government legislation or  action "[i]n the area  of          economics                    and social welfare does not violate the Equal Protection          Clause  merely  because   the  classifications  [it  makes]   are          imperfect," Dandridge  v.  Williams, 397  U.S. 471,  485  (1970),          because                  "[i]t is no requirement of equal protection that all evils          of the same genus be eradicated or none at all."  Railway Express          Agency, Inc. v. New York, 336 U.S. 106, 110 (1949).  Instead,  in          this               subset                      of                        concerns,                                  the Equal Protection Clause requires "that          cities, states  and the  Federal Government  must exercise  their          powers so as not to discriminate between their inhabitants except          upon some reasonable differentiation fairly related to the object                                        -18-                                         18          of regulation."   Id. at 112  (Jackson, J., concurring).   Viewed          against this backdrop, "[e]qual protection of the laws means that          'no              person                     or class of persons shall be denied the same protection          of the laws which is enjoyed by other persons or other classes in          the  same  place  and  under  like  circumstances.'"    Walsh  v.          Massachusetts, 618 F.2d 156, 158 (1st Cir. 1980) (emphasis added)          (quoting Lewis, 101 U.S. at 31).                        Supreme Court precedent,  however, does not  narrowly          limit                congressional                             power to enforce the Equal Protection Clause to          what the Clause itself  prohibits.  The Court has explained  that          legislation enacted pursuant to section five "would be upheld  so          long               as                  the                     Court                           could                                 find that the enactment 'is plainly adapted          to             [the]                   end' of enforcing the Equal Protection Clause and 'is not          prohibited by but is consistent with the letter and spirit of the          constitution,' regardless of  whether the  practices outlawed  by          Congress                   in                     themselves                                violated the Equal Protection Clause."  City          of             Rome                  v.                     United                           States                                ,                                  446 U.S. 156, 176 (1980) (quoting Morgan,          384 U.S. at 651).  Accordingly, we have previously explained that          it is "irrelevant whether the activities which Congress seeks  to          forbid                 by                    legislation are themselves unconstitutional either under          the  Equal Protection  Clause or  under other  provisions of  the          Fourteenth Amendment,  for Congress'  reach under  the Civil  War          Amendments has been  enlarged in order  to make these  accretions          fully effective."  Ramirez, 715 F.2d at 698 (citing City of Rome,          446 U.S. at 179; Morgan, 384 U.S. at 648-49).                                        -19-                                         19                      In                         the                             instant case, it would be difficult to conclude          that  the  probation officers  constitute  "a  class  of  persons          characterized by some unpopular trait or affiliation . . .  [that          would]                 reflect                        any                            special likelihood of bias [against them] on the          part of the ruling majority."  Beazer, 440 U.S. at 593.  In other          words, the state employees  are neither a "suspect class" nor  do          they allege a state infringement of a "fundamental interest,"  as          those   terms  have   been   defined  in   Fourteenth   Amendment          jurisprudence.  Insofar as  any congressional enforcement of  the          Equal                Protection Clause concerns the plaintiff probation officers,          therefore,                     it would be as against unreasonable and arbitrary state          action.  To be a legitimate expression of Congress' section  five          power to  enforce the Fourteenth  Amendment, therefore, the  1974          amendments at issue in this case, which extended the FLSA's  wage          and  hour provisions to  states and state  employees, have to  be          "rational                    means" towards the end "comprehended" in this context by          the              Equal                    Protection Clause, South Carolina, 383 U.S. at 324, 326,          namely,  the   guaranty  against   "irrational,"  and   therefore          "unjustified," government action.  Ramirez, 715 F.2d at 699.                        The  relevant  Supreme   Court  precedents  we   have          considered above indicate that Congress, when acting pursuant  to          section five of  the Fourteenth Amendment,  can prohibit or  take          measures  designed   to   remedy   unreasonable   and   arbitrary          classifications  made   by  states,  or   the  effects  of   such          classifications, and when doing so can, consistent with  Seminole                                        -20-                                         20          Tribe, abrogate the states' sovereign immunity to suit in federal          court.   Conversely,  these  precedents indicate  that  Congress'          section five  enforcement  power, as  it  pertains to  the  Equal          Protection Clause in cases not involving suspect or quasi-suspect          classes                  or                     fundamental interests, is limited to the elimination of          arbitrariness or the effects of arbitrary government action,  and          does               not                   permit                         Congress                                  to prohibit or otherwise target reasonable          state decisions or practices.  We believe that this limitation on          Congress'                    power                         to                            enforce the Equal Protection Clause follows from          the end that the Clause comprehends in this specific context  and          the corollary fact that the Fourteenth Amendment does not  render          "every discrimination between  groups of people a  constitutional          denial                 of                   equal                         protection."  Mitchell, 400 U.S. at 127 (opinion of          Black,                 J.).                                             To reiterate, the cases discussed above indicate that          every congressional action that  enlargens the scope of a law  to          encompass a new class of people -- thereby eliminating a previous          'discrimination' that the law had  made -- is not, ipso facto,  a          means of enforcing the Fourteenth Amendment because section  five          does               not                   "permit Congress to prohibit every discrimination between          groups of people."  Id.                      We evaluate the FLSA amendments at issue against this          framework to determine whether,  in addition to being  enactments          made pursuant to  Congress' Commerce Clause  powers, they can  be          viewed  appropriately as  legislation  that  enforces  the  Equal          Protection                     Clause.                                                          In                                our estimation, one would be hard-pressed to                                        -21-                                         21          conclude that the  FLSA amendments at  issue here are  rationally          related                  to                     eliminating any arbitrary or unreasonable state action.          Differences 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 concerns  and  the  levels of  public  expenditure  and          taxation deemed proper by  normal political processes.   However,          nothing  in  the record  indicates  that  anything  arbitrary  or          irrational                     explains or characterizes the states' practices in this          area               to                  the                     extent                            they                                 may be prejudicial to state employees.  Nor          do we  think, as the plaintiff  probation officers would have  us          believe, that state employees and private sector employees are so          similarly situated that  differences in how and when they  accrue          premium pay for overtime  violates the Equal Protection  Clause's          requirement that "'no person or class of persons shall be  denied          the same protection of the laws which is enjoyed by other persons          or             other                   classes in the same place and under like circumstances.'"          Walsh              ,                 618                     F.2d                         at                            158                                (emphasis added) (quoting Lewis, 101 U.S. at          31);               see                 ,                    e.g                      ., Employees, 411 U.S. at 286 (noting the significant          difference                     between private employers and states as employers owing          to             federalism                       concerns).                                   Accordingly, we conclude that we will not          "attribute  to Congress  an  unstated  intent to  act  under  its          authority                    to                       enforce                              the                                  Fourteenth Amendment," Pennhurst, 451 U.S.          at 16, because on the record before us there is no evidence  that          the              1974                   FLSA amendments are rationally related to the elimination                                        -22-                                         22          of any unreasonable and arbitrary state action, or the effects of          such action, which  Congress is empowered  to remedy pursuant  to          section                  five                       of the Fourteenth Amendment.  Thus, we do not believe          that Congress can, consistent with Seminole Tribe and Fitzpatrick          v. Bitzer,  abrogate the states'  sovereign immunity  to suit  in          federal court in this context.                       In arriving at this conclusion, our analysis does not          suggest  any  reason  or  need for  us  to  revisit  our  earlier          pronouncements                         regarding                                  the FLSA wage and hour provisions at issue          here.  Specifically, we have previously determined that Congress'          "authority" to  impose on  the states  the FLSA's  wage and  hour          requirements was "squarely bottomed on the commerce clause."  New          Hampshire Dep't of Employment Sec. v. Marshall, 616 F.2d 240, 247          (1st  Cir.  1980).   In  so doing,  we  indicated that  the  FLSA          provisions  at  issue  here  differed  from  other  congressional          legislation, like  the Equal Pay  Act, which,  we explained,  was          applied "to the states as a legitimate exercise of  congressional          authority                    to                      adopt                            legislation enforcing the fourteenth amendment's          guaranty of equal protection of  the law."  Id. (citing Usery  v.          Charlestown City Sch. Dist., 558 F.2d 1169 (4th Cir. 1977); Usery          v. All egheny County  Institution Dist.,  544 F.2d  148 (3d  Cir.          1976)).  Today we state the corollary that we did not  explicitly          state                in                   so                      many words in Marshall:  whatever constitutional basis          they may have in the Commerce Clause, the 1974 amendments to  the          FLSA in dispute again here did not apply the Act's wage and  hour                                        -23-                                         23          provisions  to the  states and  state employees  as a  legitimate          exercise of congressional  authority to  adopt legislation  under          section five of the Fourteenth Amendment.                       This conclusion, of course, is fatal to the plaintiff          probation officers' argument on appeal because in Seminole Tribe,          see 116 S. Ct. at  1131-32, the Supreme Court held that  Congress          cannot exercise  its Commerce Clause power,  or any of its  other          Article                  I                    powers,                           to                              abrogate a state's Eleventh Amendment immunity          from               suit                    in                      federal                              court, thereby overruling the contrary rule of          Union Gas.  See 491 U.S. at 15 (plurality opinion).                        The force  of the above  line of  reasoning helps  to          explain  why every  post-Seminole  Tribe federal  district  court          decision of which we are aware has dismissed private FLSA actions          for              lack                   of                     subject                             matter jurisdiction, even if the reasons stated          were summary or did not always squarely address the section five,          Fourteenth Amendment argument  that we reject  here today.   See,          e.g.             ,                Raper                                          v.                        Iowa                           ,                              940                                  F. Supp. 1421 (S.D. Iowa 1996) (dismissing          case and  rejecting  Fourteenth Amendment  theory of  the  FLSA);          Chauvin                                  v.                     Louisiana                            ,                               937 F. Supp. 567, 570 (E.D. La. 1996) (same);          Powell                                v.                    Florida                         ,                            No.                                95-6233-CIV-ZLOCH (S.D. Fla. August 6, 1996)          (same); Walden v. Florida  Dep't of Corrections, TCA  95-40357-WS          (N.D. Fla. June 23,  1996) (same); Moad v. Arkansas State  Police          Dep't, No. LR-C-94-450, 1996 WL 819805 (E.D. Ark. May 15,  1996),          aff'd                by                   Moad                       v. Arkansas State Police Dep't, No. 96-2594, 1997 WL          177392 (8th Cir.  April 15, 1997) (declining to consider  whether                                        -24-                                         24          FLSA               could                     have                         been                              enacted under Fourteenth Amendment where issue          was              not                  raised                        in                           district court and raised on appeal only in reply          brief);                  Bergemann                                                    v.                              Rhod                                 e Island, No. CA 95-579ML, 1997 WL 102428,          (D.R.I.  Mar.  5,  1997)  (dismissing  case  but  not  addressing          Fourteenth Amendment theory); Close v. New York, No.  94-CV-0906,          1996  WL 481550  (N.D.N.Y.  August  19, 1996)  (same);  Arndt  v.          Wisconsin                    Dep't                         of                            Corrections, No. 95-C-937-C (W.D. Wisc. June 20,          1996) (same); Stuhr v.  Oregon, No. 95-6118-TC (D. Ore. June  17,          1996) (same); Ross v. Middle Tenn. St. Univ., No. 3-95-1203 (M.D.          Tenn. [n.d.] 1996) (same).                        In sum, we see no reason to doubt the correctness  of          these results, the Sixth Circuit's result in Wilson-Jones, see 99          F.3d at  211, or  the conclusions of  commentators who view  with          skepticism post-Seminole attempts to rescue private FLSA  actions          against states by recourse to arguments about section five of the          Fourteenth Amendment.  See, e.g., Daniel J. Meltzer, The Seminole          Decision and State Sovereign Immunity, 1996 Sup. Ct. Rev. 1, 49 &          n.230                (noting                        that                            the                                merits of the section five "strategy," while          varying with different statutes, "would be hard to execute as  to          the              Fair                   Labor Standards Act," in part because it is doubtful that          "the Supreme Court would accept an argument that would so sharply          limit the effective scope of Seminole").                         The Retroactivity of Seminole Tribe                      Having                             concluded that Seminole Tribe controls, we next          consider whether we  should apply it retroactively to this  case,                                        -25-                                         25          which was properly  pending in federal  court before the  Supreme          Court overruled Union Gas.  The plaintiff probation officers  ask          that in the event we do not agree with their section five,  equal          protection                     argument, we refrain from dismissing their federal suit          by  applying the  equitable  standards  articulated  in  Northern          Pipeline                   Constr.                          Co.                              v.                                 M                                 arathon Pipe Line Co., 458 U.S. 50 (1982),          and Che vron Oil  v. Huson,  404  U.S. 97  (1971).   Those  cases          articulated a three-pronged analysis  that seeks to minimize  the          "visit[ation of] substantial  injustice and  hardship upon  those          litigants who  relied" upon  a congressional  statute's grant  of          jurisdiction.   Marathon  Pipe Line,  458 U.S.  at 88  (plurality          opinion) (Brennan, J.) (construing Huson).                       There are  several  difficulties with  the  probation          officers' argument.  First, the Supreme Court in recent years has          largely rejected the pertinent propositions in both Marathon Pipe          Line and Huson.  See  Reynoldsville Casket Co. v. Hyde, 514  U.S.          749,               752                   (1995) (describing Huson as having been overruled in part          as  stated by  Harper v.  Virginia Dep't  of Tax'n,  509 U.S.  86          (1993)).    Second,  subject  matter  jurisdiction  and  Eleventh          Amendment                    immunity can be raised at any time, and when raised, the          issue                is                   not                      whether                              the                                  court had jurisdiction at some time in the          past,                but                    whether                           the                               court today still has jurisdiction.  Thus, in          a decision that  postdates the two  largely discredited cases  on          which the  state employees in this  dispute so heavily rely,  the          Supreme Court has  emphasized that "'a court lacks discretion  to                                        -26-                                         26          consider  the  merits  of  a  case  over  which  it  is   without          jurisdiction,                       and thus, by definition, a jurisdictional ruling may          never be made prospective only.'"  Budinich v. Becton Dickinson &          Co., 486  U.S.  196,  203 (1988)  (unanimous  decision)  (quoting          Firestone Tire  & Rubber  Co. v.  Risjord, 449  U.S. 368,  379-80          (1981)).                                       Finally, the probation officers' request contravenes our          own recent pronouncement on this issue.  See Stella v. Kelley, 63          F.3d               71,                   74                     (1st                          Cir.                               1995) ("When dealing with matters that govern          a            court's                    jurisdiction, there is no conceivable bar to retroactive          application of a 'new,' judicially declared rule.").                     The Denial of Plaintiffs' Discovery Request                      We                         next                              consider the probation officers' argument that          the district  court improperly  denied their  request to  conduct          discovery on whether Maine waived its Eleventh Amendment immunity          by voluntarily participating in a federal program that  expressly          conditions state participation upon a state's consent to suit  in          federal  court.  We  review a district  court's decision to  deny          discovery on a dispositive  motion for abuse of discretion.   See          Fennell v. First Step Designs,  Ltd., 83 F.3d 526, 530 (1st  Cir.          1996) (interpreting Fed. R. Civ. P. 56(f)).                      The                          probation                                   officers                                            argue that a state is subject to          suit in federal court where it has waived its Eleventh  Amendment          sovereign                    immunity,                             either expressly or implicitly by participating          in a federal program conditioned on a state's consent to suit  in          federal court.  See  Atascadero State Hosp. v. Scanlon, 473  U.S.                                        -27-                                         27          234,               241                   (1985).  The probation officers also argue that litigants          are generally afforded the right to undertake discovery when they          are faced with a jurisdictional bar.  See Gould, Inc. v. Pechiney          Uguine Kuhlmann, 853 F.2d 445, 451 (6th Cir. 1988); Majd-Pour  v.          Georgiana                    Community Hosp. Inc., 724 F.2d 901, 903 (11th Cir. 1984)          ("Although the plaintiff bears the burden of proving the  court's          jurisdiction, the  plaintiff should be  given the opportunity  to          discover   facts  that   would   support   his   allegations   of          jurisdiction.").                      Maine  law   authorizes  the   Maine  Department   of          Corrections to receive federal funds "to carry out federal  law."          See                          Me.                  Rev.                      Stat.                            Ann.                                 tit. 34-A, SS 1403(4), 1209(2)(B) & (4)(F).          The probation officers contend that these statutes, even standing          alone, support  a finding  that Maine  has voluntarily  subjected          itself to federal court jurisdiction in lawsuits brought pursuant          to             the                 FLSA.                                              At                          the                              very least, they contend, they should have the          opportunity to undertake  discovery on  Maine's participation  in          federal programs because the State controls the information about          the federal programs in which it actually participates.                      In evaluating the  merits of the probation  officers'          argument on this point, we  begin by noting that "[t]he test  for          determining whether a State has waived its immunity from federal-          court jurisdiction is a stringent one."  Atascadero, 473 U.S.  at          241.                               We                   have had previous occasion to explain that "a waiver must          be unambiguously  manifested, and because  of that requirement  a                                        -28-                                         28          state's                  mere                      participation in a federal program . . . has been held          insufficient to  demonstrate a state's  waiver of its  immunity."          WJM, Inc. v. Massachusetts  Dep't of Pub. Welfare, 840 F.2d  996,          1002 (1st Cir. 1988) (citing Atascadero, 473 U.S. at 244-46).3                       Courts that have  considered the  waiver theory  have          confronted plaintiffs  who at least  had identified some  federal          program or  statute that supposedly  required a  waiver of  state          immunity as  a condition for  state participation  or receipt  of          federal money.   Cf. Manypenny v.  United States, 948 F.2d  1057,          1066-67 (8th  Cir. 1991)  (plaintiffs identify  White Earth  Land          Settlement                     Act); Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84,          88 (2d Cir.  1991) (plaintiff identifies  Boren Amendment to  the          Medicaid Act).  But cf. Baxter v. Vigo County Sch. Corp., 26 F.3d          728,  731-32 (7th  Cir. 1994)  (plaintiffs fail  to name  federal          program                  or                     statute).                                                             The plaintiffs in this case want to undertake          discovery  to  identify  the  federal  programs  in  which  Maine          participates.  In other words, Maine argues, the plaintiffs  "not          only want to conduct  a fishing expedition, they want to  conduct          discovery in  order to locate  the lake in  which to conduct  the          fishing expedition."  We  believe that this assessment,  whatever          else it may be, sufficiently describes the situation  confronting            3.  While our subsequent decision in Reopell v.            Massachusetts, 936 F.2d 12, 15 (1st Cir. 1991) reversed one            of WJM's holdings regarding prejudgment interest in light of            the Supreme Court's intervening decision in Missouri v.            Jenkins, 491 U.S. 274 (1989), we note that the proposition            for which we cite WJM remains intact.                                               -29-                                         29          us, and on these facts we cannot conclude, particularly given the          stringent waiver standard articulated in Atascadero and WJM, that          the  district court  abused its  discretion in  deciding to  deny          discovery                    on                       the plaintiffs' motion.  See Fennell, 83 F.3d at 530.                              The State Transfer Issue                      We  next  consider  the  appellants'  argument  that,          assuming                   Seminole                           Tribe                                                                precludes federal jurisdiction in this FLSA          action, the district court  improperly dismissed the case  rather          than transfer it  to state court.   Whether a district court  had          authority to transfer a case to a state court is a legal question          we             review                    de                                            novo.  See Industrial Gen. Corp. v. Sequoia Pac. Sys.          Corp.              ,                 44                    F.3d 40, 43 (1st Cir. 1995).  Whether the district court          should have exercised its authority to transfer a case to another          court                is                   a                    question                             we                                review for abuse of discretion.  See Service          Employees Int'l Union v. Local  1199 N.E., 70 F.3d 647, 655  (1st          Cir. 1995).                      The probation officers' argument is flawed in several          respects.                                         First,                           the                               Federal Rules of Civil Procedure mandate that          a  federal  court  that   determines  it  lacks  subject   matter          jurisdiction has  only one  course  of action  left open  to  it:          "Whenever                    it                       appears                              by                                 suggestion of the parties or otherwise that          the              court                   lacks                         jurisdiction of the subject matter, the court shall          dismiss the action."  Fed. R. Civ. P. 12(h)(3) (emphasis added).                       Second, the probation officers' request runs afoul of          earlier                  pronouncements                                from this and other circuits.  See Dantes v.                                        -30-                                         30          Western Found. Corp., 614 F.2d 299, 301 (1st Cir. 1980) ("'Where,          as here, the court lacks jurisdiction over the subject matter . .          . [a defect] which precludes it from acting at all, a fortiori, a          court lacks power to transfer.'") (quoting Atlantic Ship  Rigging          Co. v.  McLellan, 288 F.2d  589, 591 (3rd  Cir. 1961) and  citing          Panhandle E.  Pipeline Co. v.  FPC, 343 F.2d  905, 908 (8th  Cir.          1965)); Klett v. Pim, 965 F.2d 587, 591 n.7 (8th Cir. 1992) ("[A]          court                without                       subject                               matter jurisdiction cannot transfer a case to          another court.").                      Third, the probation  officers overlook  28 U.S.C.  S          1631, which limits a federal court's power to transfer a case "to          any other such court" defined in 28 U.S.C. S 610, which, in turn,          includes                   only                       other                             federal courts.  See Moravian Sch. Advisory Bd.          v. Rawlins, 70 F.3d 270, 274 (3d Cir. 1995) (citing McLaughlin v.          ARCO Polymers, Inc., 721 F.2d 426, 469 (3rd Cir. 1983)).                       Finally,                               we                                  are unpersuaded by the probation officers'          reliance on a Third Circuit decision, Weaver v. Marine Bank,  683          F.2d               744                   (3rd Cir. 1982).  In Weaver, the Third Circuit confronted          an arguably similar situation in which plaintiffs had  originally          filed their claim in  federal court believing that the court  had          subject matter  jurisdiction under federal  securities law.   The          Supreme Court subsequently ruled that the plaintiffs had no  such          claim.  See Weaver v. Marine Bank, 455 U.S. 551, 559 (1982).   On          remand, there  was no other federal  question upon which to  base          jurisdiction, diversity was lacking, and the Third Circuit  faced                                        -31-                                         31          the              possibility                          that                              the                                  plaintiffs' cause of action in state court          would be  time-barred.  See 683 F.2d  at 745-46.  In this set  of          circumstances                      , the Third Circuit took the step of transferring the          matter                 to                    state court pursuant to a Pennsylvania enabling statute.          See id. at 748.                       Maine  does  not have  a  statute  identical  to  the          Pennsylvania law  upon which the  Third Circuit  relied, but  the          probation officers indicate that Maine has a savings statute that          permits cases  to be  transferred to  the proper  court when  the          original action fails "for any  matter of form."  Me. Rev.  Stat.          Ann.               tit.                    14,                        S                         855.                                                             The probation officers argue that the savings          statute should  be read to  permit transfer of  an action from  a          federal district court to a state court.                        We                          believe                                 this                                      argument underestimates the importance          that the  Third Circuit  attached  to the  unique nature  of  the          Pennsylvania                       statute                              on                                 which it relied in transferring the case to          state                court.                                              The                           Third                                 Circuit explained that this statute, on its          face,                expressed "Pennsylvania's willingness to accept jurisdiction          over cases  improvidently  brought in  the federal  courts,"  and          specifically                       "provide[d                                 both] that a federal court within the state          may              transfer                      erroneously                                  filed cases to the state courts," and that          matters  transferred under  the statute's  provisions "'shall  be          treated                  .                    .                      . as if originally filed in the transferee court . . .          on the date first filed in a [federal] court.'"  683 F.2d at 748,          745, 746 (quoting 42 Pa. Cons. Stat. S 5103(a)).                                         -32-                                         32                      In transferring the case, the Third Circuit explained          that               it                  had                     the                         authority to do so as a result of this specifically          worded                 Pennsylvania                             statute and its "underlying" power as a federal          court                "to                    elect to use such a state mechanism, if available."  Id.          at             747.                                     In                      this regard, the Third Circuit analogized the transfer          to a situation in which  a federal court certifies a question  of          doubtful                   state                         law                            to                               a                                 state supreme court authorized by state law          to accept  it, and  noted  that the  Supreme Court  had  approved          certification, despite a lack of federal statutory  authorization          for the practice, because it "'helps build a cooperative judicial          federalism.'"  Id. (quoting Lehman Bros. v. Schein, 416 U.S. 386,          391 (1974)).                       The Pennsylvania enabling  statute that rests at  the          heart of Weaver bears no resemblance to the Maine general savings          statute in this case from which the appellants seek succor.   See          Me. Rev.  Stat. Ann. tit. 14, S 855.  The Maine statute makes  no          mention                  of                     transfer and only permits a re-filing in state court of          a case that  has been  "defeated for any  matter of  form."   Id.          Neither the parties' nor our own research has uncovered any Maine          caselaw                  that                      addresses                                whether this description would encompass the          case at bar as a matter of state law.  We note,  however, that on          our  reading  of the  statute  we  glean no  manifestation  of  a          willingness                      on the part of the State of Maine analogous to that of          the              Commonwealth of Pennsylvania to accept jurisdiction over cases          improvidently                        filed                             in                                federal court with relation back to the time                                        -33-                                         33          of             the                 filing of the case in federal court.  The importance of the          Pennsylvania                       statute and its specialized provisions to the outcome          in Weaver  is evident when one  considers that the Third  Circuit          subsequently  has  explicitly  stated  that  "[a]bsent  statutory          authority,  the traditional  general rule  that a  court may  not          transfer a  matter  over which  it lacks  jurisdiction  governs."          Shendock v. Director, Office of Workers' Comp. Programs, 893 F.2d          1458,      1467      (3rd     Cir.     1990)     (en      banc).                       While                            we                               express                                      no                                         view                                              on the question of whether the          Third Circuit's  analysis in Weaver  warrants our agreement,4  we          believe that there can be no question that, in the absence of any          specialized state statute, "it is the duty of the trial court, if          it finds that jurisdiction does not exist, to proceed no  further          but to  dismiss the suit."  Joy v. Hague, 175 F.2d 395, 396  (1st          Cir. 1949)  (emphasis  added) (citing  McNutt v.  General  Motors          Acceptance Corp., 298 U.S. 178, 182 (1936)).             4.  We note, however, that we have previously rejected as            "unpersuasive" decisions from other circuits that "stand for            the proposition that a court bereft of jurisdiction has an            'inherent power' to transfer" a case.  Dantes, 614 F.3d at            301 n.2 (criticizing Pearce v. Director, Office of Workers'            Comp. Programs, 603 F.2d 763, 771 (9th Cir. 1979) and Dayton            Power & Light Co. v. EPA, 520 F.2d 703, 708 (6th Cir. 1975));            see also Natural Resources Defense Council, Inc. v. EPA, 465            F.2d 492, 495-96 (1st Cir. 1972) (per curiam) (granting            motion to transfer case to the District of Columbia Circuit            on basis of express statutory authority, but declining to            reach issue of whether federal court has an inherent power to            transfer case to a transferee court having jurisdiction and            venue).                                         -34-                                         34                The Motion to Amend The Complaint and Ex parte Young                      On the eve  of oral argument  before this court,  the          plaintiffs-appellants  filed an  unusual  motion to  amend  their          complaint to add the  Maine Commissioner of Corrections as a  new          party                defendant.  This motion constitutes an eleventh hour attempt          by plaintiffs to bring their case under the aegis of the doctrine          of Ex parte Young, 209 U.S. 123 (1908), and thereby overcome  the          Eleventh                   Amendment bar to their FLSA action.  For the reasons that          follow, we deny the motion.                      Although  not  the  routine,  appellate  courts  have          authority                    to                       allow amendments to complaints because "'[t]here is .          . . in the nature of . . . appellate jurisdiction, nothing  which          forbids the  granting  of amendments.'"   Newman-Green,  Inc.  v.          Alfonzo-Larra                      in, 490 U.S. 826, 834 (1989) (quoting Anonymous, 1 F.          Cas.  996,  997  (C.C. Mass.  1812)  (No.  444)  (Story,  Circuit          Justice)).  This feature of appellate court power "long  predates          the enactment  of the Federal Rules,"  and stems from common  law          practice,                    which                         "permitted 'the superior court . . . [to] make such          amendments, as the court below may.'"  Newman-Green, 490 U.S.  at          834  (quoting Anonymous,  1  F. Cas.  at  997) (quoting  King  v.          Ponsonby, 1 Wils.  303, 95 Eng.  Rep. 631 (K.B.  1751)).  See  28          U.S.C. S  1653  ("Defective allegations  of jurisdiction  may  be          amended, upon terms, in the trial or appellate courts.").                       The                          plaintiff probation officers' argument in favor of          their                motion                       rests on three arguments.  The first is the amendment                                        -35-                                         35          authorization contained in 28 U.S.C.  S 1653.  The second is  the          doctrine of Ex parte Young, which allows plaintiffs to avoid  the          Eleventh Amendment bar by naming a state officer in his  official          capacity in cases  where prospective  declaratory and  injunctive          relief is  sought under federal  law.  The  third is the  liberal          standard of Rule 15(a)  of the Federal Rules of Civil  Procedure,          which, in relevant part, provides:                    A                      party                            may                                amend the party's pleading once as                    a matter  of  course  at any  time  before  a                    responsive  pleading  is  served  .  .  .   .                    Otherwise  a  party  may  amend  the  party's                    pleading only by leave of court or by written                    consent of the adverse party; and leave shall                    be freely given when justice so requires.          Fed. R. Civ. P. 15(a) (emphasis added).                       While intriguing at  first glance, closer  inspection          reveals that the plaintiffs-appellants' argument runs aground  at          each               juncture.                                                  In                            the                                first place, 28 U.S.C. S 1653 does not allow          what the  probation  officers seek  here.   Section  1653  allows          amendments to  cure  "[d]efective allegations  of  jurisdiction."          (emphasis added).    This statutory  language "suggests  that  it          addresses  only  incorrect  statements  about  jurisdiction  that          actually exists,  and  not defects  in the  jurisdictional  facts          themselves."  Newman-Green,  490 U.S. at 831.  Specifically,  the          Newman-Green  Court  refused   to  interpret   section  1653   as          "empower[ing]                       federal courts to amend a complaint so as to produce          jurisdiction where none actually existed before."  Id.                                        -36-                                         36                      The                          Newman-Green                                                                          Court's                                              interpretation of section 1653          thus precludes the amendment that the probation officers  desire.          The              unequivocal rule of Newman-Green is that section 1653 does not          authorize                    the                       addition                                or elimination of parties in order to create          jurisdiction where jurisdiction does not exist.  See Newman-Green          at  830-31.   This rule  is fatal  to the  plaintiffs-appellants'          argument because this is  exactly the relief they seek in  asking          that their  complaint be amended  by adding  the Commissioner  of          Corrections as a new party defendant.                      Moreover,                                we                                  reiterate                                            our view that, where a party has          had an opportunity to seek to amend its pleadings in the district          court,                 it                    is                      not                          appropriate for that party belatedly to seek leave          to             amend                   on                     appeal                            pursuant to 28 U.S.C. S 1653.  See Joy, 175 F.2d          at 396.  Accord Sarnoff v. American  Home Prods. Corp., 798  F.2d          1075, 1079 (7th  Cir. 1986).  The  appellants here, like the  Joy          appellants, "having refused to amend" before the district  court,          "come                to                   this                       court                             asking leave to do what they failed to do below          and attempt to create an error  upon the part of the trial  court          because                  of                     matter never before that court."  Joy, 175 F.2d at 396.          After                the                    Supreme                           Court                                 handed down its decision in Seminole Tribe,          and              certainly after the State of Maine filed its motion to dismiss          for lack of subject matter jurisdiction based upon the ruling  of          Seminole  Tribe,  the probation  officers  had  every  reason  to          "suspect[] a jurisdictional difficulty" with their case, but took          "no              reasonable                        opportunity to cure it before the appeal."  Sarnoff,                                        -37-                                         37          798              F.2d                   at                      1079.                                                       Under                                  these circumstances, we believe it is only          fair and  reasonable to conclude  that the  appellants "had  fair          warning in the district court and failed to act on it; enough  is          enough."  Id.                       Furthermore,                                   the                                      proposed amendment is a futile attempt          to bring  this case under the ambit of Ex parte Young.  The  only          relief that the plaintiffs have sought in this case, prior to the          filing                 of                    their                         proposed                                  amendment on appeal, has been unpaid wages          and              liquidated                        damages                                under the FLSA.  Ex parte Young allows a way          around the  bar to federal  jurisdiction erected  by the  Supreme          Court's  Eleventh Amendment  jurisprudence  only in  cases  where          prospective  declaratory or  injunctive  relief is  sought  under          federal                  law.                        See Seminole Tribe, 116 S. Ct. at 1132 ("[S]ince our          decision  in  Ex  parte  Young,  we  often  have  found   federal          jurisdiction over a suit against a state official when that  suit          seeks only  prospective  injunctive relief  in  order to  'end  a          continuing                     violation                              of                                 federal law.'") (internal citation omitted)          (quoting Mansour, 474 U.S. at  68).  The Ex parte Young  doctrine          does not apply in cases where plaintiffs seek monetary relief for          past               violations                         of                            federal law, regardless of whether the party the          plaintiffs seek to designate as a defendant is nominally a  state          officer                  sued                       in his official capacity.  See Pennhurst State Sch. &          Hosp.                              v.                   Hald                      erman, 465 U.S. 89, 102-03 (1984); Edelman v. Jordan,          415 U.S. 651, 668 (1974).                                          -38-                                         38                      These                            cases                                  preclude                                          the                                              probation officers' attempt to          rescue their monetary claims against the State of Maine via their          proposed                   addition                            of                              the                                  Commissioner of Corrections as a new party          defendant.                   5                                                                 The plaintiffs-appellants nonetheless argue that just          because they  "may be  deprived of  recovering retroactive  money          damages in  federal court  should  not also  mean that  they  are          deprived                   of                      the                         benefit                                 of their efforts to have their rights under          [the] FLSA declared."  However, both sides to this dispute  agree          that there  is no  continuing violation  of federal  law, as  the          background                     litigation                               between them also indicates is the case.  See          Blackie v. Maine, 75 F.3d  716 (1st Cir. 1996), aff'g Blackie  v.          Maine, 888 F. Supp. 203 (D. Me. 1995).6                      No                         declaratory                                    relief                                           can issue in these circumstances.          See Mansour, 474 U.S. at 71-73.  The Mansour Court concluded that          injunctive                     and declaratory relief could not issue for a variety of            5.  In fact, the appellants concede that if we find that            Seminole Tribe deprives this case of federal jurisdiction,            then "they will not be able to recover money damages in this            action."             6.  We are not unmindful of the Supreme Court's recent            decision in Idaho v. Coeur d'Alene Tribe of Idaho, -- S. Ct.             --, 1997 WL 338603 (U.S. June 23, 1997) (No. 94-1474), which            cabins and limits the availability of the Ex parte Young            doctrine even where prospective declaratory and injunctive            relief is sought against state officers in their individual            capacities for allegedly ongoing violations of federal law.             This new development in the Court's jurisprudence is not            implicated here.  Unlike Coeur d'Alene, this case does not            involve an ongoing violation of federal law, but instead            concerns a backwards-looking dispute over past FLSA            violations by the State of Maine and possible overtime back            pay owed the plaintiff probation officers as a result.                                         -39-                                         39          reasons                  that                       also exist in this case.  First, the Court in Mansour          noted that  monetary  relief was  not  available because  it  was          "prohibited by the Eleventh Amendment."  Id. at 73.  Second,  the          Court                explained                         that                              "[b]ecause there is no continuing violation of          federal  law  to  enjoin  in this  case,  an  injunction  is  not          available."  Id. at  71.  Third, the  Court conceded that it  had          construed the Declaratory Judgment Act of 1934, 28 U.S.C. S 2201,          to mean that "declaratory relief may be available even though  an          injunction is not," but explained  that it had also "held that  a          declaratory judgment is not available in a number of  instances."          Id.                          at                 72.                                           Specifically, declaratory relief was unavailable where          "the  award of  declaratory judgment  . .  . would  be useful  in          resolving the  dispute over the  past lawfulness of  respondent's          action only if it might be offered in state-court proceedings  as          res              judicata                       on                         the                             issue of liability, leaving to the state courts          only               a                 form                     of                        accounting proceeding whereby damages or restitution          could be computed."   Id. at 73.   The Court concluded that  "the          issuance of a declaratory  judgment in these circumstances  would          have much the same effect  as a full-fledged award of damages  or          restitution                      by the federal court, the latter kinds of relief being          of course prohibited by the Eleventh Amendment."  Id.                       In                         view                              of                                 the marked similarity between the situation          that confronted the Mansour  Court and that confronts us in  this          case,  we cannot  help  but  note Mansour's  admonition  that  "a          declaratory judgment is not available when the result would be  a                                        -40-                                         40          partial                  'end                       run'" around the rest of the Supreme Court's Eleventh          Amendment jurisprudence, particularly  its limitations on the  Ex          parte Young doctrine.  Id.                      Moreover, Seminole Tribe suggests that the  probation          officers could not seek  injunctive relief, even if there were  a          continuing                     violation                              in                                 this case, because the FLSA only authorizes          the  Secretary  of Labor  to  seek  injunctive  relief,  limiting          employees                    to                       suits                            for                                unpaid wages and liquidated damages.  See 29          U.S.C. SS 216,  217; cf. Donovan v.  Brown Equip. & Serv.  Tools,          Inc., 666 F.2d 148, 155-56 (5th Cir. 1982) (reviewing legislative          history).  In the face of this statutory scheme, the  appellants'          motion to amend their complaint is particularly suspect.  As  the          Supreme Court  explained in Seminole  Tribe, "where Congress  has          prescribed a detailed remedial scheme for the enforcement against          a State of a  statutorily created right, a court should  hesitate          before casting aside those  limitations and permitting an  action          against                  a                    state officer based upon Ex parte Young."  116 S. Ct. at          1132.7                       In sum,  with no right on  the part of the  plaintiff          probation officers  to seek  retroactive money  damages, with  no          continuing violation  to justify injunctive  relief, and with  no          clearly apparent  right on  the part  of the  plaintiffs to  seek            7.  We believe that the Sixth Circuit's view on this matter            may thus be precluded by Seminole Tribe.  See Wilson-Jones,            99 F.3d at 211 (arguing that state employees can invoke Ex            parte Young to sue a state officer in federal court for            injunctive relief).                                        -41-                                         41          injunctive relief  even if a  continuing violation were  present,          declaratory relief, as in Green v. Mansour, would serve no useful          purpose.                                       See                                             474                           U.S.                                at 73.  The only possible use of declaratory          relief in this case now would be for the purpose of asserting res          judicata in state court  proceedings.  As we saw above,  however,          Mansour                                  precludes this option as an impermissible "end run" around          Eleventh                   Amendment                            jurisprudence because the result would be little          different than a  prohibited direct federal court award of  money          damages against the state to  the extent it would reduce a  state          court                proceeding                           into                               a                                 mere accounting session "whereby damages or          restitution could be computed."  Id.                             The  Supreme  Court   has  identified   a  range   of          circumstances, including undue  delay and futility of  amendment,          that should preclude  granting a motion to  amend.  See Foman  v.          Davis              ,                 371                     U.S.                         178,                              182                                  (1962) (construing Fed. R. Civ. P. 15(a)).          Suffice  to say  that  the panoply  of  legal arguments  we  have          canvassed above indicates that the plaintiff probation  officers'          eleventh hour motion  to amend to  seek declaratory relief  fails          under                more                     than one prong of the Foman standard.  In particular, a          declaratory judgment is unavailable  where, as here, the  parties          agree that there is no ongoing legal violation.8            8.  This case thus differs from one that the Third Circuit            recently confronted when it granted a motion to amend brought            on appeal by state employees seeking to add a new party            defendant (the Commissioner) and a claim for prospective            declaratory relief to their pending FLSA claim for overtime            compensation.  See Balgowan v. New Jersey, Dep't of Transp.,            -- F.3d --, 1997 WL 305290 (3rd Cir. 1997) (granting the                                        -42-                                         42                                     Conclusion                      In concluding, we stress that our decision today does          not  remove state  employees from  the  aegis of  the FLSA.    In          determining that Seminole  Tribe controls this  case and that  no          federal jurisdiction  exists, our decision  only relates to  that          portion  of  the  FLSA  that  purports  to  give  federal  courts          jurisdiction                       over                           private FLSA actions brought by employees against          states.  See 29 U.S.C. S 216(b).                        For the  reasons stated above,  we conclude that  the          district court's decision  to dismiss for lack of subject  matter          jurisdiction was correct, and we deny the  plaintiffs-appellants'          motion to amend their complaint.                       Affirmed.  Costs to appellee.            motion to amend where there was a dispute as to whether the            state was complying with FLSA wage and hour requirements).                                            -43-                                         43
