The Frailties of Alden v. Maine: a Decision Contrary to the Constitution, Precedent, and Ancient Propositions of Law

JurisdictionUnited States,Federal
CitationVol. 33
Publication year2022


Creighton Law Review

Vol. 33

The Court has swung back and forth with regrettable disruption on the enforceability of the FLSA against the States, but if the present majority had a defensible position one could at least accept its decision with an expectation of stability ahead . . . The resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking I expect the Court's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.(fn1)


Congress enacted The Fair Labor Standards Act(fn2) ("FLSA") in 1938 to achieve "certain minimum labor standards."(fn3) Through a series of amendments, FLSA evolved to protect selected state employees.(fn4) Section 216(b) of FLSA provides those under its protection the right to bring a suit for damages against any employer who violates the provisions of FLSA.(fn5) Recently, the Supreme Court in Alden v. Maine(fn6) declared that the inherent, fundamental concept of sovereign immunity protected a state from suit in state court based on section 216(b).(fn7) In Alden, a group of probation officers sued their employer, the State of Maine, for its alleged refusal to pay overtime wages as required by FLSA section 207.(fn8) State sovereign immunity, Maine contended, prevented Congress from subjecting it to suit for damages in federal and state court.(fn9) The Alden Court agreed with Maine, reasoning that the doctrine of sovereign immunity is derived from the Constitution's structure and history and the Supreme Court's interpretations of state sovereign immunity.(fn10) In arriving at its decision, the Court explained that the Constitution's structure establishes a federal system wherein the states maintain primary jurisdiction in some areas while state and federal government exert concurrent authority in others.(fn11) History, according to the Court, particularly documents written at the time of the Constitution's ratification, provided support to the Court's reasoning.(fn12)) The Alden Court then examined Congress' power to abrogate sovereign immunity and found that Article I of the United States Constitution does not authorize Congress to do so.(fn13) Finally, the Alden majority declared that Maine had not waived its right to sovereign immunity.(fn14)

This Note will first review the facts and holding of Alden.(fn15) Next, this Note will review the origin and purpose of FLSA, the history of the doctrine of sovereign immunity, the contours of Congress' power to abrogate sovereign immunity, and the background of the ancient maxim that "for every right there is a remedy."(fn16) Following this survey, this Note will contend that the Alden Court improperly held that Congress, acting pursuant to its Article I powers, cannot subject non-consenting states to suits based on federal law for damages in state courts.(fn17) Three considerations expose the weakness of the Court's decision.(fn18) First, the structure of the Constitution does not support state sovereign immunity.(fn19) While the text of the Constitution expressly gives Congress the power to enforce federal law, it does not provide for state immunities from suit in state court.(fn20) Second, although Congress derives its authority to enforce federal law from the Constitution's text, the Alden majority improperly characterized these textual authorizations as junior to the uncodified and nonconstitutionalized doctrine of sovereign immunity.(fn21) Third, the Court's decision creates a situation in which an individual has a right pursuant to a federal statute, but no practical method to remedy violations of that right.(fn22)

In 1992, a group of Maine probation officers ("Probation Officers"), including individuals who served as parole officers and juvenile caseworkers, filed a class action suit under the aegis of the Fair Labor Standards Act(fn23) ("FLSA") against the State of Maine in the United States District Court for the District of Maine.(fn24) The Probation Officers sought compensation for overtime hours and liquidated damages.(fn25) These officers had worked in excess of forty hours per week without compensation at a rate one and one-half times their regular rate.(fn26) In particular, the Probation Officers alleged that Maine excluded them from FLSA coverage "without regard to the individuals' actual duties or qualifications."(fn27) Maine argued that the Probation Officers were professionals, therefore, exempt from FLSA coverage.(fn28) The district court found that the Probation Officers were not "professionals" and, therefore, were not exempt under the FLSA overtime provisions.(fn29) The court also found that the FLSA requirements for law enforcement public employees applied to probation officers.(fn30)

Subsequently, the district court awarded damages to the officers.(fn31) The Probation Officers requested that the court include a sixteen percent pay premium they received under their collective bargaining agreement in the court's base figure calculations.(fn32) Maine disagreed, arguing that the pay premium be removed from the base figure before overtime computations are made.(fn33) Additionally, Maine requested that the pay premium serve as an "offset to any overtime found due."(fn34) The district court concluded that the sixteen percent premium pay should be included in the base pay calculations and that Maine could not use the premium rate to offset any overtime due the Probation Officers.(fn35)

The Probation Officers' case was then submitted to a special master to calculate the overtime in accord with the district court's findings.(fn36) Before a final calculation was made, the United States Supreme Court handed down its ruling in Seminole Tribe of Florida v. Florida(fn37) that private individuals could not institute a federal cause of action against states in federal court.(fn38) Maine quickly filed a motion to dismiss for lack of subject matter jurisdiction.(fn39) On the strength of Seminole, the district court concluded that Seminole was a bar to the Probation Officers' suit and dismissed their suit citing the Eleventh Amendment.(fn40)

The Probation Officers appealed the district court's decision to the United States Court of Appeals for the First Circuit, arguing that Seminole did not dislodge Congress' ability to nullify state immunity from suit in federal court when enacting legislation pursuant to Section 5 of the Fourteenth Amendment.(fn41) The Probation Officers further contended that Congress had the power to enact the FLSA amendments under its Fourteenth Amendment power, thereby holding states accountable in federal court.(fn42) Maine argued that Congress invoked its Article I powers (under the Commerce Clause) when it passed FLSA.(fn43) Maine used the Seminole holding, which states that Congress cannot abrogate state sovereign immunity in federal court through legislation passed pursuant to its Article I powers, to support its argument.(fn44) The First Circuit subjected FLSA to a Fourteenth Amendment analysis to determine whether it was an appropriate use of Congress' enforcement clause powers.(fn45) The analysis the First Circuit employed, known as the Morgan test, finds legislation appropriate when: (1) it "may be regarded as an enactment to enforce the Equal Protection Clause;" (2) it "is 'plainly adapted to that end;'" and (3) it "is not prohibited by but is consistent with 'the letter and spirit of the [C]onstitution.'"(fn46) The court concluded that Congress did not intend to enforce FLSA under its Fourteenth Amendment powers because no evidence showed that the FLSA amendments, and the enforcement amendments in particular, were "rationally related" to the eradication of any arbitrary state action or its effects.(fn47) Therefore, the Court continued, Congress could not abrogate Maine's sovereign immunity in federal court.(fn48) Based upon these findings, the First Circuit affirmed the district court's decision.(fn49)

Subsequently, the Probation Officers refiled their claim in state court, specifically in the Superior Court of Cumberland County, Maine.(fn50) Maine moved for judgment on the pleadings, arguing that the doctrine of state sovereign immunity and the statute of limitations as grounds for dismissal.(fn51) While the court found that the Probation Officers' claim was not barred by the statute of limitations, the court declared sovereign immunity was reason enough to grant Maine's motion.(fn52)

The Probation Officers appealed the superior court's decision to the Supreme Judicial Court of Maine, arguing that Maine's nonconstitutional immunity doctrine did not shield the State from accountability; that Maine waived its immunity from FLSA claims by enacting statutes governing wages and other statutory waivers of immunity; and that the Supremacy Clause prohibited state courts from treating federal and state causes of action differently.(fn53) Maine again argued that sovereign immunity via the Eleventh Amendment protected it from suit.(fn54) The Supreme Judicial Court of Maine affirmed the superior court's decision, holding that the Eleventh Amendment protected states from suit based upon a federal cause of action brought by a private individual.(fn55) Justice David G...

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