                     United States Court of Appeals

                         FOR THE EIGHTH CIRCUIT



                                 No. 96-2594


Delbert D. Moad, On Behalf Of           *
Self and All Others Similarly           *
Situated; Joe M. Martz, On              *
Behalf Of Self and All Others           *
Similarly Situated; Dennis              *
Gifford, On Behalf of Self and          *
All Others Similarly Situated;          *
Carroll Seaton, On Behalf of            *
Self and All Others Similarly           *
Situated; and Jody S. Garner,           *
B. R. Skipper, James Myron              *
Hall, Jefery A. Ramsey,                 *
Donald H. Sims, R. W. Neel,             *
James H. Kelloms, Ronald L.             *
Welch, Galey Gates, Don Smith,          *
Charles A. Hefner, Don W.               *
Browning, Alex Sylvester,               *
Jerry H. Chancellor, Bobby              *
Carlton, Andrew Clay, Ralph J.          *
Lobbs, Robert Mark Batson,              *
Wendell W. Adams, Gene Hicks,           *
William T. Cochran, Jerry W.            *
White, Mitchell E. Carolan,             *
Darrell W. Lainhart, Glenn O.           *
Maxwell, Edward L. Davis,               *
Tommy L. Morrow, James T.               *
Linkous, David M. Fullen,               *
Gordon Ray Diffee, Vernon R.            *
Dollar, Scotty Dodd, Robert L.          *
Meek, Duvall W. Moore, Ron              *
Ball, R. L. Newton, Howard              *
Smith, Tate G. Floyd, III,              *
A. J. McElroy, Lyle R. Smith,           *
Joe Roberson, Martha Williams,          *
Jackie Hopkins, Lloyd Martz,            *
Mack Thompson, Dudley Lemon,            *
Kelly Watkins, Barry Spivey,            *
Larry Lassiter, Michael                 *
Springer, Andrew Wiley, Donald          *
Brown, Don Lafarlette, Paul             *
Halley, Tim Land, David                 *
Hathcoat, Charles Watson,               *
Dennis Morris, Kevin Richmond,                *
Olen Craig, Michael Linville,                 *
Joe F. Bradshaw, Roger Whitmore,              *
Doug Stark, Phillip Glasgow,                  *
Harvey George, Victor Coleman,                *
Hayes Hogue, Dennis Duran,                    *
Melvin Hensley, James M.                      *
Sullivan, Jerry D. Willis,                    *
Carey J. Lovaas, and Jerry L.                 *
Watts,                                        *
                                              *
      Appellants,                             *
                                              * Appeal from the United States
          v.        *                         District Court for the Eastern
                                              * District of Arkansas.
Arkansas State Police                         *
Department, Also Known as                     *
Arkansas State Police,                        *
                                              *
      Appellee. *




                        Submitted:    January 17, 1997

                             Filed: April 15, 1997


Before LOKEN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and GUNN,1
     District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     The       plaintiffs   are   Arkansas    state   troopers    who   are   seeking
compensation for unpaid overtime.        They sued, alleging that the state of
Arkansas violated the Fair Labor Standards Act (FLSA).           Relying on Seminole
Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996), the district court
dismissed the troopers' case for lack of




      1
       The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri, sitting by designation.

                                        -2-
subject matter jurisdiction.         The troopers appeal.       We affirm the judgment
                            2
of the district court.


                                             I.
     The      Eleventh Amendment to the Constitution provides that 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.          "Although the text of the
amendment speaks only of suits against a state by persons who are not
citizens of that state, the Supreme Court has interpreted the Eleventh
Amendment to extend to suits by all persons against a state in federal
court."    Mancuso v. New York State Thruway Auth., 86 F.3d 289, 292 (2d Cir.
1996), cert. denied, 117 S. Ct. 481 (1996).               According to Seminole Tribe,
116 S. Ct. at 1131-32, "[t]he Eleventh Amendment restricts the judicial
power under Article III, and Article I [relating to the legislative powers
of Congress, specifically, the power of Congress pursuant to the Interstate
Commerce    Clause]   cannot       be     used    to   circumvent   the   constitutional
limitations placed upon federal jurisdiction."


     Until    1996,   the       Supreme    Court   had   held   that   Congress   had   the
authority to abrogate a state's Eleventh Amendment immunity under two
constitutional provisions: the Fourteenth Amendment, see Fitzpatrick v.
Bitzer, 427 U.S. 445, 456 (1976), and the Interstate Commerce Clause, see
Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (plurality opinion).
In Seminole Tribe, 116 S. Ct. at 1133, however, the Court held that a
statute requiring a state to enter into mediation enacted under the Indian
Commerce Clause could not




     2
     The Honorable William R. Wilson, Jr., United States District
Judge for the Eastern District of Arkansas.

                                             -3-
validly authorize a lawsuit against a state by an individual.      The Court
also explicitly overruled Union Gas.   See id. at 1128.   In the case before
us, the state troopers are making precisely the same argument that was made
in Union Gas, namely, that Congress had the power to abrogate a state's
Eleventh Amendment immunity pursuant to the Interstate Commerce Clause.
By overruling Union Gas in Seminole Tribe, however, the Supreme Court has
now explicitly rejected that argument.


                                    II.
     The state troopers contend in the alternative that the FLSA could
have been enacted pursuant to Congress's power under the Fourteenth
Amendment because their exclusion from the ability to sue in federal court
for the protections afforded by the FLSA violates their right to equal
protection.   This issue was not raised in the district court and was raised
in our court only in the troopers' reply brief.   Under these circumstances,
we decline to consider the issue of whether the FLSA could have been
enacted under the Fourteenth Amendment.    See, e.g., Bendix Autolite Corp.
v. Midwesco Enterprises, Inc., 486 U.S. 888, 895 (1988).


     The state troopers also contend that prior to the Supreme Court's
decision in Seminole Tribe, the state of Arkansas allowed itself to be sued
pursuant to the FLSA and that this evidences a waiver by the state of its
Eleventh Amendment immunity.   We have examined the record carefully and we
find no evidence that this issue was ever raised in the district court with
respect to the Eleventh Amendment.        (We do not consider their Tenth
Amendment arguments sufficient to raise the Eleventh Amendment question.)
We therefore decline to consider the issue of waiver on appeal.   See, e.g.,
Singleton v. Wulff, 428 U.S. 106, 120 (1976).




                                    -4-
     The day before oral argument in this case, the state troopers moved
to supplement the record to include a state court ruling that the Arkansas
courts had no subject matter jurisdiction over FLSA cases.   In that motion,
the troopers argue for the first time that if the district court had no
jurisdiction to entertain their case, they would be left without a remedy
in any court, a violation, they assert, of their Fourteenth Amendment right
to due process.     (We note, however, that the state court ruling referred
the state employee FLSA plaintiffs to the Arkansas Claims Commission.    See
Ark. Code Ann. § 19-10-204.)      Because this argument comes so late, we
express no view on its merits and deny the troopers' motion to supplement
the record.    See, e.g., Bendix Autolite Corp., 486 U.S. at 895.
                                    III.
     For the reasons indicated, we hold that in enacting the FLSA,
Congress had no power to abrogate a state's Eleventh Amendment immunity
under the Interstate Commerce Clause.      The district court thus lacked
subject matter jurisdiction over the state troopers' case.          See also
Wilson-Jones v. Caviness, 99 F.3d 203, 211 (6th Cir. 1996), modified on
other grounds, 1997 WL 57109 (6th Cir. 1997) (per curiam).   Because of our
holding on the question of subject matter jurisdiction, we need not address
the troopers' additional argument with respect to the district court's oral
ruling in regard to meals and on-call status.     We note, however, that no
order was ever entered on those rulings.


                                     IV.
     We therefore affirm the judgment of the district court.


     A true copy.


              Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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