     Case: 12-60608       Document: 00512271784         Page: 1     Date Filed: 06/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 12, 2013
                                       No. 12-60608
                                                                           Lyle W. Cayce
                                                                                Clerk
SCOTT W. HENLEY; JAMES IVORY; JACOB L. LOTT; JERIS DAVIS;
STEVEN S. CLARK,

                                                  Plaintiffs - Appellees

v.

COMMISSIONER STEPHEN B. SIMPSON; ALBERT W. SANTA CRUZ,

                                                  Defendants - Appellants


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CV-590


Before STEWART, Chief Judge, and BARKSDALE and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       Stephen B. Simpson, former Commissioner of the Mississippi Department
of Public Safety (MDPS), and Albert W. Santa Cruz, former Director of the
Mississippi Highway Patrol (MHP), appeal, on an interlocutory basis, the district
court’s denying their motion to dismiss, on Eleventh Amendment sovereign-
immunity grounds, monetary claims asserted against them in their individual
capacity for payment of overtime wages allegedly owed Plaintiffs. They also

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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challenge Plaintiffs’ seeking a declaratory judgment upholding their entitlement
to past and future overtime wages, despite the district court’s not having ruled
on that issue.
      Because the State of Mississippi is the real party in interest, Plaintiffs’
monetary claims are barred by the Eleventh Amendment and must be dismissed
for lack of subject-matter jurisdiction; because the district court did not rule on
the declaratory-judgment request, we lack jurisdiction to review that issue.
VACATED and DISMISSED in part; REMANDED in part.
                                        I.
      The facts are undisputed. Plaintiffs Scott W. Henley, James Ivory, Jacob
L. Lott, Jeris Davis, and Steven S. Clark are five former MHP K-9 officers. (“K-
9” is the well-known, common abbreviation for “canine”.) MHP K-9 officers use
their police (service) canines for the purpose of apprehending criminals,
detecting illegal narcotics, and promoting public relations. Pursuant to the MHP
K-9 policy manual, Plaintiffs were required to house, care for, and train their
service canines; this necessitated their working more than 40 hours a week.
      In 2008, Plaintiffs filed grievances with MHP, asserting claims for
payment of wages for all hours worked in excess of 40 a week. MHP denied
relief. Next, Plaintiffs appealed to the Mississippi State Personnel Board,
Employee Appeals Board. It dismissed that appeal because it presented non-
grievable issues.
      In 2010, Plaintiffs filed this action, presenting claims against MDPS
pursuant to 42 U.S.C. § 1983 and 29 U.S.C. § 201 et seq. (Fair Labor Standards
Act (FLSA)). They sought: recovery of overtime wages incurred in caring for,
and training, their service canines while off duty; an injunction requiring
payment of such wages; and a declaratory judgment that the wages were owed
to them.
      MDPS invoked sovereign immunity under the Eleventh Amendment and
moved to dismiss. In response, Plaintiffs amended their complaint to add

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Simpson and Santa Cruz (Defendants) in their official and individual capacity.
MDPS was dismissed without objection.
      In their answers, Defendants raised as an affirmative defense, inter alia,
Eleventh Amendment sovereign immunity, and filed with their answer a motion
for a specific reply, requiring Plaintiffs to plead with particularity facts which
could overcome Defendants’ immunity defenses. That motion was granted; the
ordered Federal Rule of Civil Procedure 7(a) reply alleged Defendants
implemented an unconstitutional policy (the above-referenced MHP K-9 policy
manual) which proximately caused Plaintiffs’ injuries.
      Defendants moved to dismiss for lack of subject-matter jurisdiction under
Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6), contending: a
claim pursuant to § 1983 could not be maintained because FLSA provided the
exclusive remedy; Eleventh Amendment sovereign immunity barred the FLSA
claims; and FLSA barred Plaintiffs’ obtaining injunctive relief.
      The motion was granted in part and denied in part. Henley v. Simpson,
No. 3:10CV590DPJ-FKB, 2012 WL 3017812 (S.D. Miss. 23 July 2012). The
district court held: FLSA provided Plaintiffs’ exclusive remedy; FLSA claims
against Defendants in their official capacity were barred by the Eleventh
Amendment; FLSA claims against Defendants in their individual capacity were
permitted pursuant to Modica v. Taylor, 465 F.3d 174 (5th Cir. 2006) (primarily
concerning Family Medical Leave Act); and FLSA barred injunctive relief,
because only the Secretary of Labor can obtain an injunction under it. It did not
rule on Plaintiffs’ declaratory-judgment request.
                                       II.
      The denial of a Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction based on Eleventh Amendment sovereign immunity is immediately
appealable under the collateral-order doctrine announced by Cohen v. Beneficial
Industrial Loan Corporation, 337 U.S. 541, 546 (1949). P. R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 143-45 (1993). Such denials are

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reviewed de novo. E.g., Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (5th
Cir. 2005) (grant of Rule 12(b)(1) motion to dismiss on sovereign-immunity
grounds reviewed de novo); Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 285
(5th Cir. 2000) (“Eleventh Amendment immunity determinations, like other
questions of subject matter jurisdiction, [are reviewed] de novo”) (internal
quotation marks and citation omitted). Defendants contend they are entitled to
Eleventh Amendment immunity because: despite their being named in their
individual capacity, Mississippi is the real party in interest; and a declaratory
judgment, having the same impermissible effect as would a money judgment, is
foreclosed by Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) and Green
v. Mansour, 474 U.S. 64 (1985).
                                           A.
         Primarily at issue is whether, despite Defendants’ being named in their
individual capacity, Mississippi is the real party in interest. If so, the Eleventh
Amendment is a jurisdictional bar to Plaintiffs’ claims being asserted in federal
court.
         “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.” U.S. CONST. Amend. XI. The Eleventh
Amendment also vests a State with immunity against an action in federal court
by that State’s citizens, Hans v. Louisiana, 134 U.S. 1, 18 (1890); and such
immunity is a limitation on federal courts’ subject-matter jurisdiction, Seminole
Tribe, 517 U.S. at 72-73.
         An action by a citizen against a state official in his official capacity is an
action against the State, and is barred by the Eleventh Amendment, subject only
to the limited exception permitted by Ex parte Young, 209 U.S. 123 (1908)
(action seeking prospective injunctive relief against state officer permissible
against ongoing constitutional violation). Ford Motor Co. v. Dep’t of Treas. of
State of Ind., 323 U.S. 459, 463 (1945) overruled on other grounds by Lapides v.

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Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002). But, an action against
a state official in his individual capacity may not in all instances implicate the
Eleventh Amendment. Hudson v. City of New Orleans, 174 F.3d 677, 687 n.7
(5th Cir. 1999).
      For example, if the State will indemnify an official sued in his individual
capacity, that alone does not extend Eleventh Amendment immunity to that
official. Id. On the other hand, although the Eleventh Amendment does not
preclude monetary relief for past harms when the state official is sued in his
individual capacity and will be personally liable for the judgment, Hafer v. Melo,
502 U.S. 21 (1991); Kentucky v. Graham, 473 U.S. 159 (1985), “when the action
is in essence one for the recovery of money from the state, the state is the real,
substantial party in interest and is entitled to invoke its sovereign immunity
from suit even though individual officials are nominal defendants”, Ford Motor
Co., 323 U.S. at 464. See also Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 101 n.11 (1984) (State is party in interest if “judgment sought would
expend itself on the public treasury . . . or [] compel [the State] to act”) (internal
citation and quotation marks omitted). Thus, if the State of Mississippi is the
real party in interest, the Eleventh Amendment operates as “a real limitation
on . . . federal-question jurisdiction”, and the action cannot be maintained in
federal court. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270 (1997).
      Plaintiffs rely heavily on our court’s earlier-referenced opinion in Modica
v. Taylor, 465 F.3d 174 (5th Cir. 2006), contending it controls the disposition of
this appeal. In Modica, plaintiff asserted claims arising under, inter alia, the
Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., after an alleged
retaliatory termination. 465 F.3d at 183. Contesting a summary-judgment
denial, defendant contended the Eleventh Amendment barred the FMLA claim
because the State was the real party in interest. Id. In affirming, our court
stated the general rule that the Eleventh Amendment does not ordinarily
immunize a public official from an action against him in his individual capacity,

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but qualified that rule by acknowledging the fact-specific nature of the real-
party-in-interest inquiry. Id. at 183-84.
      Plaintiffs also contend Defendants are “employers” as defined by FLSA,
and therefore may be sued individually.         They assert Modica, which held
defendant was an “employer” under FMLA, id. at 185-87, justifies that
contention.   And, according to Plaintiffs, because Defendants were their
“employers”, they may be jointly and severally liable for FLSA violations
resulting from their failure to pay the alleged overtime wages.
      Defendants analogize this action to Luder v. Endicott, 253 F.3d 1020 (7th
Cir. 2001). There, 145 former prison employees made FLSA claims against their
supervisors, in their individual capacity, for payment of back wages. Id. at 1021.
Recognizing that the State treasury would be ultimately liable for any damages
because those supervisors lacked the financial resources to pay the damages
sought, and because the threat of personal liability would dissuade public
officials from succeeding those supervisors, the court held “a suit nominally
against state employees in their individual capacities that demonstrably has the
identical effect as a suit against the state is [ ] barred”. Id. at 1023 (emphasis in
original). Because the requested relief would invade the State fisc and forcibly
align State policy with FLSA, the court held plaintiffs impermissibly
circumvented the Eleventh Amendment by asserting against their supervisors
that which they could not assert against the State. Id. at 1024-25.
      Arguably, Plaintiffs’ “employer” contention may enhance their claim; but,
it alone cannot divest Defendants of immunity shelter. To be sure, Modica held
FMLA includes in its definition of “employer” those public officials who act in
their individual capacity. 465 F.3d at 185-87 (noting FMLA and FLSA
definitions of “employer” are materially identical). It is therefore conceivable a
state official’s failure to comply with FLSA’s strictures might give rise to a FLSA
claim.   But, assuming Defendants failed as Plaintiffs’ “employers” to pay
overtime compensation, thus giving Plaintiffs a colorable FLSA claim, that

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“merely poses . . . not answer[s], the Eleventh Amendment question”. Luder, 253
F.3d at 1022.
        Because Modica is distinguishable on its facts, it does not have the weight
accorded it by Plaintiffs. Modica’s plaintiff sought a remedy for a retaliatory act
inflicted upon her directly by defendant in contravention of Title VII, FMLA, and
the First Amendment. Here, Plaintiffs are challenging the State’s compensation
policy and whether their caring for, and training, service canines resulted in an
accrual of overtime hours; they do not allege, for instance, that Defendants acted
contrary to the written MHP K-9 policy manual in order to misappropriate
wages for their own benefit. Cf. Ford Motor Co., 323 U.S. at 462 (Eleventh
Amendment no bar to suit against state official individually to recover money
that official “wrongfully collected under color of state law”).
        Moreover, Modica cited Luder and intimated that where, as here, plaintiffs
name state officials individually for the payment of wages, the State is the real
party in interest. Modica, 465 F.3d at 183. Relevant here is that Defendants
neither signed nor promulgated the challenged State compensation policy. Nor
do Plaintiffs allege in their operative complaint or Rule 7(a) reply that
Defendants enforced that policy inappropriately; rather, as noted supra, they
claimed the policy was “unconstitutional”. Plaintiffs therefore attempt an “end
run” around the Eleventh Amendment by suing Defendants in their individual
capacity in order to cause the State of Mississippi “to accede to their view of the
[State’s compensation policy] and pay them accordingly”. Luder, 253 F.3d at
1024.
        This action is factually analogous to Luder, because, as discussed infra,
the payment of any wages owed Plaintiffs must ultimately come from the State
treasury (indeed, Defendants may not have the ability to pay). Plaintiffs
contend this is a non sequitur, because a State’s voluntarily indemnifying its
officials does not extend to them Eleventh Amendment immunity. But, as Luder
recognizes, the State will have no choice but to indemnify Defendants; otherwise,

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the risk of personal liability for implementing a State policy would guarantee no
rational official would assume Defendants’ state-office positions. E.g., id. In
other words, a money judgment would “expend itself on the public treasury” and
“compel the [State]” to revise the MHP K-9 policy manual. Pennhurst, 465 U.S.
at 101 n.11.
      Putting further distance between Modica and this action is the former’s
addressing a FMLA claim, rather than the FLSA claim at issue here. Prior to
Modica, the Supreme Court held in Nevada Department of Human Resources v.
Hibbs, 538 U.S. 721 (2003), that Congress used its Fourteenth Amendment,
Section Five power (“Congress shall have power to enforce . . . provisions of [the
Fourteenth Amendment]”) to abrogate States’ sovereign immunity against
FMLA claims.      In so holding, it carefully examined the controlling statute,
which unambiguously authorized employees to seek damages “against any
employer (including a public agency) . . . to include [] the government of a State”.
Id. at 726 (quoting 29 U.S.C. §§ 203(x), 2617(a)(2)). By contrast, the Court has
not held, and Plaintiffs do not argue, that Congress has validly abrogated State
sovereign immunity under the FLSA. See, e.g., Seminole Tribe, 517 U.S. 44.
Although Plaintiffs assert that naming Defendants in their individual capacity
is sufficient under Modica to except their claims from the Eleventh Amendment,
the Court’s differing treatment of FMLA and FLSA informs the fact-specific,
real-party-in-interest inquiry.
      Given the fact-specific nature of real-party-in-interest inquiries, a
dismissal on Eleventh Amendment sovereign-immunity grounds would not
conflict with Modica. Cf. H&D Tire & Automotive-Hardware, Inc. v. Pitney
Bowes Inc., 227 F.3d 326, 330 (5th Cir. 2000) (“When panel opinions appear to
conflict, we are bound to follow the earlier opinion.”). Accordingly, Modica does
not require denying Defendants immunity. Although Modica states the general
rule that the Eleventh Amendment is no bar to actions against officials in their
individual capacity, application of that rule without context could elevate “empty

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formalism” over the principles undergirding sovereign immunity. Coeur d’Alene
Tribe, 521 U.S. at 270 (“The real interests served by the Eleventh Amendment
are not to be sacrificed to elementary mechanics of captions and pleading.”).
Accordingly, Defendants, in their individual capacity, are entitled to dismissal
on Eleventh Amendment sovereign-immunity grounds.
                                        B.
      Appellate jurisdiction exists “where an order is final, [or] [the order] falls
within a specific class of interlocutory orders made appealable by statute”.
Janvey v. Alguire, 647 F.3d 585, 603 (5th Cir. 2011). Absent a ruling, “there is
[] no basis for interlocutory [] review”. Id. (declining to review motion to compel
arbitration where district court did not rule on the motion).
      Although, as noted, sovereign-immunity denials are immediately
appealable on an interlocutory basis, P.R. Aqueduct & Sewer Auth., 506 U.S. at
143-44, and the district court denied immunity regarding the monetary-relief
claims, it did not rule on Plaintiffs’ request for declaratory relief. Accordingly,
we have no jurisdiction to review the declaratory-judgment issue. Janvey, 647
F.3d at 603; see also Masat v. United States, 745 F.2d 985, 988 (5th Cir. 1984)
(appellate “powers are limited to reviewing issues raised in, and decided by, the
[district] court” (emphasis added)).
                                       III.
      For the foregoing reasons, that part of the order denying Simpson and
Santa Cruz relief in their individual capacity pursuant to Eleventh Amendment
sovereign immunity is VACATED and Plaintiffs’ monetary claims against them
are DISMISSED; Plaintiffs’ declaratory-judgment claim is REMANDED to
district court for further proceedings consistent with this opinion.




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