     Case: 14-51081      Document: 00513177971         Page: 1    Date Filed: 09/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-51081                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 1, 2015
JOEL PAUL BACH,                                                            Lyle W. Cayce
                                                 Plaintiff–Appellant,
                                                                                Clerk
versus
TEXAS STATE UNIVERSITY; MICHAEL THOMAS BLANDA;
BILLY C. COVINGTON, PH.D.,

                                                 Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:14-CV-27




Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*

       Joel Bach sued his employer, Texas State University, for alleged viola-
tions of the Fair Labor Standards Act (“FLSA”). The district court dismissed
the claim as barred by state sovereign immunity. Because Bach has failed to
show waiver, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-51081
                                              I.
       Bach was paid based on a forty-hour workweek but frequently had to
work more hours. He was not compensated time-and-a-half for those hours
despite repeated requests to the school. He sued, contending that the univer-
sity had violated the FLSA by erroneously classifying him as exempt and fail-
ing to pay him overtime. 1

       The university moved to dismiss based on state sovereign immunity.
The magistrate judge recommended dismissal because Bach had not shown a
valid abrogation or waiver of state sovereign immunity. Bach’s objection to the
magistrate judge’s report relied heavily on what Bach contended was the clear
legislative history of the Texas provisions that adopted the FLSA’s rules for
calculating overtime, Texas Government Code Sections 659.015 and 659.016.
The district court dismissed the case as barred by state sovereign immunity.

                                             II.
       Bach challenges only the conclusion that Texas did not waive its sover-
eign immunity in adopting Sections 659.015 and 659.016 “We review de novo
a district court’s grant of a Rule 12(b)(1) motion to dismiss for lack of subject
matter jurisdiction because of state sovereign immunity.” Meyers ex rel. Ben-
ing v. Texas, 410 F.3d 236, 240 (5th Cir. 2005). Because the party asserting
that the federal courts have jurisdiction has the burden of establishing it, Bach
must show that Texas waived its immunity. St. Tammany Parish, ex rel. Davis
v. FEMA, 556 F.3d 307, 315 (5th Cir. 2009).

                                             III.
       The district court was presented with several theories as to why the


       1 After amending his complaint, Bach also asserted claims against his former super-
visors under 42 U.S.C. § 1983. The dismissal of those claims is not challenged in this appeal.
                                              2
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                                      No. 14-51081
university did not enjoy state sovereign immunity, including abrogation by
Congress and acceptance of federal funds. The only theory Bach presses on
appeal is that the legislative history of Sections 659.015 and 659.016 shows
Texas waived immunity.

       That contention is unavailing. “A statute’s legislative history cannot
supply a waiver that does not appear clearly in any statutory text.” Lane v.
Pena, 518 U.S. 187, 192 (1996); see also F.A.A. v. Cooper, 132 S. Ct. 1441, 1448
(2012). The Court has consistently held that such a waiver must be in the text
of a statute. 2 Even if Bach could find an unequivocal statement of waiver in
the legislative history, he would need to show it the text of the statute.

       The text and legislative history both lack an unequivocal waiver of
immunity from private damages suits in federal court. The sole material pro-
vided by Bach is a bill analysis prepared by the Texas Senate to accompany
the legislation that enacted the sections. The only relevant text merely tracks
the language of Section 659.015, which states that, in determining whether an
employee is entitled to overtime compensation, “federal law controls” when
“this section and federal law prescribe a different rule for the same circum-
stance.” 3   That falls far short of a “clear declaration by the State” that
“unequivocally express[es]” its consent to suit. Sossamon, 131 S. Ct. at 1658.
Bach has not shown waiver.

       AFFIRMED.




       2See, e.g., Lane, 518 U.S. at 192; Cooper, 132 S. Ct. at 1448; Gomez-Perez v. Potter,
553 U.S. 474, 491 (2008); Sossamon v. Texas, 131 S. Ct. 1651, 1658 (2011).
       Senate Comm. on Finance, Bill Analysis, Tex. S.B. 174, 76th Leg., R.S. (1999); accord
       3

TEX. GOV’T CODE ANN. § 659.015(b) (West).
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