                IN THE COURT OF APPEALS OF TENNESSEE

                            AT KNOXVILLE
                                                           FILED
                                                          January 28, 2000

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
                                          E1999-02516-COA-R9-CV
JEFFREY L. LAWSON,            )   C/A NO. 03A01-9904-CH-00151
                              )
          Plaintiff-Appellee, )
                              )
                              )
                              )   INTERLOCUTORY APPEAL PURSUANT TO
v.                            )   RULE 9, T.R.A.P., FROM THE
                              )   KNOX COUNTY CHANCERY COURT
                              )
                              )
UNIVERSITY OF TENNESSEE,      )
                              )   HONORABLE SHARON BELL,
          Defendant-Appellant.)   CHANCELLOR


For Appellant                     For Appellee

BEAUCHAMP E. BROGAN               VICTORIA H. BOWLING
General Counsel                   Norris, Tennessee
University of Tennessee
Knoxville, Tennessee

RONALD C. LEADBETTER
Associate General Counsel
University of Tennessee
Knoxville, Tennessee




                            O P I N IO N




REVERSED AND REMANDED                                       Susano, J.



                                  1
              We granted this Rule 9, T.R.A.P., application to

determine whether the defendant University of Tennessee (“the
University”) can be sued for a violation of the federal Fair
Labor Standards Act.            We find that it cannot be sued for such

violations under the current state of the law.            Accordingly, we
reverse the trial court’s order denying the University’s motion
to dismiss.



                                         I.


              Jeffrey L. Lawson (“Lawson”) filed a complaint in the
trial court alleging that the University had violated the federal
Fair Labor Standards Act of 19381 (“the FLSA”) (1) by “failing to

pay [Lawson] overtime compensation” and (2) by retaliating
against him “by refusing to issue [his] rightful retirement.”

Lawson sought declaratory relief, injunctive relief, and monetary
damages as to these two alleged violations of the FLSA.            Lawson’s
complaint was met by the University’s motion to dismiss, in which

the University asserts that the trial court “lacks subject matter

jurisdiction over plaintiff’s claim because said claim is barred
by the doctrine of sovereign immunity....”            The University later

filed a supplemental motion, asserting, as an alternative basis

for dismissal, that the trial court lacks subject matter
jurisdiction because, if the claim is not barred by sovereign

immunity, exclusive jurisdiction to consider it lies with the

Tennessee Claims Commission (“Claims Commission”).            The trial

court denied both motions.            The University seeks relief in the

Court of Appeals pursuant to our order granting a Rule 9,
T.R.A.P., appeal.        The University raises the following issue for




  1
      29 U.S.C. § 201 et seq.

                                          2
our consideration:      Is Lawson’s action under the FLSA barred by

the doctrine of sovereign immunity?2         We hold that it is.


                                     II.



            The issue presented by the University is purely a
question of law.     Therefore, the record of the proceedings below

comes to us for a de novo review without a presumption of
correctness.    Presley v. Bennett, 860 S.W.2d 857, 859-60 (Tenn.

1993); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91

(Tenn. 1993).



                                    III.



            After the University filed its notice of appeal, but

before the parties filed their briefs, the United States Supreme
Court released its opinion in Alden v. Maine, __ U.S. __, 119

S.Ct. 2240, 144 L.Ed.2d 636 (1999), wherein it addressed the
constitutionality of 29 U.S.C. §§ 216(b)and 203(x), which code
sections purport to authorize actions under the FLSA against a

state in its own courts, even without that state’s consent. The
Supreme Court decreed that “the powers delegated to Congress
under Article I of the United States Constitution do not include

the power to subject nonconsenting States to private suits for
damages in state courts.”       Alden, 119 S.Ct. at 2246.       (Emphasis

added).   The Supreme Court, in a 5-4 decision, went on to find
that Maine had not consented to be sued under the FLSA, and

affirmed the judgment of the Supreme Court of Maine affirming the




  2
   Because we find that the University is entitled to a dismissal on its
primary defense, we do not find it necessary to address the University’s
contention that this matter must be pursued before the Claims Commission.

                                      3
decision of the lower state courts dismissing the plaintiffs’

action under that act.   Id. at 2269.



          In light of the Alden decision, we must determine

whether the State of Tennessee has consented to be sued under the

FLSA in state court.



          Article I, Section 17 of the Tennessee Constitution

provides as follows:



          That all courts shall be open; and every man,
          for an injury done him in his lands, goods,
          person or reputation, shall have remedy by
          due course of law, and right and justice
          administered without sale, denial, or delay.
          Suits may be brought against the State in
          such manner and in such courts as the
          Legislature may by law direct.



(Emphasis added).   This provision and the broader concept of

sovereign immunity were addressed by the Tennessee Supreme Court
in the case of Spencer v. Cardwell, 937 S.W.2d 422 (Tenn. 1996):



          The rule of sovereign immunity in this state
          is both constitutional and statutory.
          Article I, Section 17 of the Tennessee
          Constitution provides in part that “Suits may
          be brought against the State in such a manner
          and in such courts as the Legislature may by
          law direct.” This section has been
          interpreted as a grant of sovereign immunity
          to the state, and, accordingly, no suit
          against the State may be sustained absent
          express authorization from the Legislature.
          Coffman v. City of Pulaski, 220 Tenn. 642,
          422 S.W.2d 429 (1967).
          The Legislature codified this constitutional
          prohibition in T.C.A. § 20-13-102(a) (1994),
          which reads as follows:
               No court in the state shall have
               any power, jurisdiction, or
               authority to entertain any suit
               against the state, or against any
               officer of the state acting by

                                 4
                 authority of the state, with a view
                 to reach the state, its treasury,
                 funds, or property, and all such
                 suits shall be dismissed as to the
                 state or such officers, on motion,
                 plea, or demurrer of the law
                 officer of the state, or counsel
                 employed for the state.
           In the case of State ex rel. Allen v. Cook,
           171 Tenn. 605, 106 S.W.2d 858, 860-61 (1937),
           the supreme court stated:

                 Article 1, Section 17, of the
                 Constitution delegating to the
                 Legislature the power to authorize
                 suits against the state, being in
                 derogation of the state’s inherent
                 exemption from suit, must itself be
                 strictly construed; hence
                 legislation authorizing suits
                 against the state must strictly
                 pursue the constitutional
                 requirements, and be so plain,
                 clear, and unmistakable in its
                 provisions as to the manner and
                 form in which such suits may be
                 brought as to leave nothing to
                 surmise or conjecture.



Id. at 423-24.    T.C.A. § 20-13-102(a) “bars not only suits with a

view to reach state funds, but also suits ‘with a view to reach

the state’ itself,” such as declaratory judgment actions.    Id. at

424. (quoting Greenhill v. Carpenter, 718 S.W.2d 268, 272

(Tenn.Ct.App. 1986)).



           As it relates to the University, T.C.A. § 20-13-102,

partially quoted in Spencer, provides in subsection (b) as

follows:


           No statutory or other provision authorizing
           the University of Tennessee and its board of
           trustees to sue and be sued shall constitute
           a waiver of sovereign immunity.


T.C.A. § 20-13-102(b) (1994).    By enacting T.C.A. § 20-13-102(b),

the Legislature made “quite clear...that it intended for the

                                  5
University of Tennessee to be clothed with sovereign immunity.”

Stokes v. University of Tennessee at Martin, 737 S.W.2d 545, 546

(Tenn.Ct.App. 1987).



            Lawson argues that sovereign immunity does not bar his

claim because, according to him, the State waived its immunity as

to a suit against it under the FSLA when the Legislature enacted

T.C.A. § 9-8-307, dealing with the jurisdiction of the Tennessee

Claims Commission (“the Claims Commission”):



            (a)(1) The [claims] commission...has
            exclusive jurisdiction to determine all
            monetary claims against the state based on
            the acts or omissions of “state
            employees,”...falling within one (1) or more
            of the following categories:

                              *      *        *

            (N) Negligent deprivation of statutory rights
            created under Tennessee law, except for
            actions arising out of claims over which the
            civil service commission has jurisdiction.3


T.C.A. § 9-8-307(a)(1)(N) (1999)(Emphasis added).            Lawson argues
that the language of subsection (N) is an express waiver of

sovereign immunity and constitutes the State’s consent to be sued
under the FLSA.     We disagree.         In T.C.A. § 9-8-307(a)(1)(N), the
Legislature expressly limited the breadth of the Claims

Commission’s jurisdiction over claims of deprivation of statutory
rights to those claims involving rights “created under Tennessee
law.”   (Emphasis added).         T.C.A. § 9-8-307(a)(1)(N) does not

purport to give the Claims Commission jurisdiction over claims of
deprivation of statutory rights under federal law.            Therefore, we
conclude that T.C.A. § 9-8-307(a)(1)(N) cannot be construed as an


  3
   The civil service commission has “jurisdiction to hear civil service
appeals brought pursuant to statute and regulations promulgated pursuant
thereto.” T.C.A. § 8-30-108(2) (1993).

                                          6
expression of the Legislature’s intent to waive the State’s

immunity from suit under the FLSA.        In fact, there is nothing in
any part of the statutory scheme pertaining to the Claims
Commission reflecting that the State has waived its sovereign

immunity as to suits under the FLSA.


           Next, Lawson argues that the State has consented to be

sued under the FSLA and has thus waived its immunity to such
suits by enacting T.C.A. § 16-11-103 (1994).        That statute grants
chancery court original jurisdiction of all cases of an equitable

nature.    However, the language of that enactment cannot be
construed as an explicit waiver of immunity, for the simple
reason that it contains no language of the type contemplated by

Spencer.   See 937 S.W.2d at 423.       (“...no suit against the State

may be sustained absent express authorization from the

Legislature.” (Emphasis added)).


           Lawson also relies on the Tennessee Supreme Court’s
decision in Clover Bottom Hospital and School v. Townsend, 513

S.W.2d 505 (Tenn. 1974), in support of his contention that the
State has consented to be sued under the FLSA.        We find this

reliance on Clover Bottom to be erroneous for two reasons.

First, as we have already noted, sovereign immunity can be waived

only by express statutory authorization.        Tenn. Const. art. I, §
17; Spencer, 937 S.W.2d at 423.         Second, although the Tennessee

Supreme Court held in Clover Bottom that a state employee’s

action under the FLSA in state court is not barred by the

doctrine of sovereign immunity, that ruling was premised upon a

finding that the provisions of the FLSA authorizing suits by

state employees against the various states were valid.         See

Clover Bottom, 513 S.W.2d at 507-08.        The premise underlying


                                    7
Clover Bottom clearly has been invalidated by the United States

Supreme Court’s decision in the Alden case.



          For all of the above reasons, we hold that the State

has not consented to suits brought under the FLSA.    Therefore,

Lawson’s action against the University is barred by the doctrine

of sovereign immunity.



                              IV.



          The order of the trial court is reversed.    This case is

remanded to the trial court for the entry of a judgment

dismissing the appellee’s complaint at his costs.    Costs on

appeal are also taxed to the appellee.



                                    __________________________
                                    Charles D. Susano, Jr., J.




                                8
CONCUR:


______________________
Herschel P. Franks, J.



______________________
D. Michael Swiney, J.




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