                                                                      [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                      No. 10-10987                     SEPT 24, 2010
                                  Non-Argument Calendar                 JOHN LEY
                                                                          CLERK
                                ________________________

                         D.C. Docket No. 8:05-cv-01463-JDW-TBM

KAREN E. KEELER,

llllllllllllllllllll                                                    Plaintiff-Appellant,

                                           versus

FLORIDA DEPARTMENT OF HEALTH,
Division of Disability Determinations,

                                                    l llllllllllllllllllll Defendant-Appellee.

                               ________________________

                         Appeal from the United States District Court
                             for the Middle District of Florida
                               ________________________

                                    (September 24, 2010)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
       Karen Keeler appeals pro se the district court’s dismissal of her amended

complaint for lack of subject matter jurisdiction.                 Keeler’s complaint alleged

violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), against her

former employer, the Florida Department of Health (“the Department”), and the

district court dismissed Keeler’s FLSA claims based on Eleventh Amendment

immunity. Keeler argues on appeal that: (1) the Eleventh Amendment does not bar

her suit because Congress abrogated sovereign immunity in enacting the FLSA; and

(2) even if immunity was not abrogated, Florida waived its sovereign immunity by

receiving federal funding for the Department of Health.1 After careful review, we

affirm.

       The district court’s decision to grant a motion to dismiss for lack of subject

matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is a question of law we review




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          Keeler also raises, for the first time on appeal, arguments that (1) the district court
improperly decided that the relief she sought was only for monetary damages, and she did not
seek injunctive relief; (2) the district court erred by deciding her case before reading her
complaint; and (3) the district court improperly failed to transfer her case to the state court when
it became clear that the district court had no jurisdiction over her case. As Keeler failed to raise
these arguments below, they have not been preserved for this appeal and are not proper before
this Court. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(holding that we will not consider an issue not raised in the district court and raised for the first
time in an appeal); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(holding that although we are required to liberally construe a pro se pleading, issues not raised in
the district court are deemed waived).

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de novo. Estate of Amergi ex rel. Amergi v. Palestinian Authority, 611 F.3d 1350,

1356 (11th Cir. 2010).

      We are unpersuaded by Keeler’s arguments that the Eleventh Amendment does

not bar her claim because Congress abrogated state sovereign immunity in enacting

the FLSA, or in the alternative, that Florida waived its sovereign immunity by

receiving federal funding. The Eleventh Amendment provides: “The Judicial power

of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This

immunity has long been interpreted by the Supreme Court to extend to suits in which

a state is being sued by its own citizen. Hans v. Louisiana, 134 U.S. 1 (1890). While

the Supreme Court has held that the Eleventh Amendment is not jurisdictional in the

sense that courts must address the issue sua sponte, it has held that Eleventh

Amendment immunity is in the nature of a jurisdictional bar. Bouchard Transp. Co.

v. Florida Dept. of Environmental Protection, 91 F.3d 1445, 1448 (11th Cir. 1996).

      Section Five of the Fourteenth Amendment provides that “Congress shall have

power to enforce, by appropriate legislation, the provisions [thereunder].” U.S.

Const. amend. XIV, § 5. The Supreme Court has held that the latter provision allows

Congress to abrogate a state’s sovereign immunity for the purpose of enforcing

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substantive rights guaranteed by the Fourteenth Amendment. See Tennessee v. Lane,

541 U.S. 509, 518 (2004).

      The Department is an instrument of the State of Florida that is generally

protected by the Eleventh Amendment. In Fla. Ass’n of Rehab. Facilities, Inc. v. Fla.

Dept. of Health & Rehab. Servs., 225 F.3d 1208 (11th Cir. 2000), we vacated a

district court order against the Florida Department of Health because the Eleventh

Amendment protected the Department from suit. Id. at 1226. And in Gamble v. Fla.

Dept. of Health & Rehab. Servs., 779 F.2d 1509 (11th Cir. 1986), we held that the

Florida Department of Health was a state agency protected by the Eleventh

Amendment. Id. at 1511.

      However, Eleventh Amendment protections do not apply if Congress abrogated

the state’s immunity through proper legislation under § 5 of the Fourteenth

Amendment, or where the state has waived sovereign immunity. To find that

Congress abrogated state sovereign immunity, we must determine “first, whether

Congress unequivocally expressed its intent to abrogate that immunity; and second,

if it did, whether Congress acted pursuant to a valid grant of constitutional authority.”

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). A valid exercise of

congressional power to abrogate state immunity can only be done using § 5 of the

Fourteenth Amendment. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73

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(1996) (holding that Congress may not abrogate state immunity under its Article I

powers).

      The FLSA was enacted under Congress’s Article I commerce power. 29 U.S.C.

§ 202. Article I commerce power refers to Congress’s power to regulate interstate

commerce. U.S. Const. art. I, § 8, cl. 3. The enforcement provisions of § 216(b) of

the FLSA contain the following abrogation provision, upon which Keeler relies: “An

action to recover the liability prescribed in either of the preceding sentences may be

maintained against any employer (including a public agency) in any Federal or State

court of competent jurisdiction by any one or more employees for and in behalf of

himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b).

      In 1998, this Court extended Seminole Tribe to suits against state employers

under the FLSA. The case, Powell v. Florida, 132 F.3d 677 (11th Cir. 1998),

involved an employee, like Keeler, suing a department of Florida for FLSA

violations. Id. at 678. We held, citing Seminole Tribe, that “[t]he district court

properly dismissed the claim for unpaid overtime wages based on the State’s Eleventh

Amendment immunity.” Id.

      One year later, the Supreme Court provided further clarification of the Eleventh

Amendment, sovereign immunity, and the FLSA. In Alden v. Maine, 527 U.S. 710

(1999), a state employee filed suit in state court alleging violations of the FLSA. Id.

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at 711-12. The Court determined that sovereign immunity applied, holding that

sovereign immunity protected a state from suit in its own courts under a federal law,

such as the FLSA, enacted under Congress’s Article I power. Id.; see also Kimel, 528

U.S. at 91 (holding that the abrogation provisions of § 216(b) of the FLSA, adopted

by the Age Discrimination in Employment Act, did not properly abrogate state

sovereign immunity, despite a clear intent by Congress to do so, because they were

not enacted under § 5 of the Fourteenth Amendment).

      Pursuant to its spending power under Article I, Congress may condition the

expenditures of federal funds on a state’s waiver of sovereign immunity if the

condition is unambiguous. Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344

F.3d 1288, 1293 (11th Cir. 2003). However, “mere receipt of federal funds” is

insufficient to show that a state has waived its sovereign immunity. Atascadero State

Hosp. v. Scanlon, 473 U.S. 234, 246-47 (1985), superseded by statute on other

grounds.

      Reading Powell, Alden, and Kimel together, it is clear that the abrogation

provisions of the FLSA, though explicitly intending to abrogate sovereign immunity,

were not a valid exercise of congressional power, as they were not enacted under §

5 of the Fourteenth Amendment. Consequently, the Eleventh Amendment bars

Keeler’s suit under the FLSA, and the district court did not abuse its discretion in

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dismissing Keeler’s complaint for lack of subject matter jurisdiction based on the

Department’s entitlement to Eleventh Amendment immunity.

      Moreover, Florida did not waive its sovereign immunity by receiving federal

funds. The FLSA was enacted under Congress’s Commerce Clause power; thus, it

did not invoke the spending power and concomitant federal expenditures waiving

sovereign immunity. 29 U.S.C. § 202. Except for the invalidated abrogation

provisions in § 216(b) of the FLSA, nowhere else does the FLSA refer to the

Eleventh Amendment or provide any other unambiguous waiver of sovereign

immunity. 29 U.S.C. §§ 201-219. Accordingly, Florida’s acceptance of federal funds

did not constitute a waiver of sovereign immunity as a matter of law. See Atascadero,

473 U.S. at 246-47.

      AFFIRMED.




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