United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided March 24, 2006
No. 05-7124
ESTHER FERNANDEZ,
APPELLANT
v.
CENTERPLATE/NBSE, FORMERLY KNOWN AS VOLUME
SERVICES AMERICA,
APPELLEE
On Motion for Summary Affirmance
______
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00809)
Maurice Baskin filed the motion for summary affirmance
for appellant. With him on the briefs was Brian Hudson.
Barbara B. Hutchinson filed the opposition for appellee.
Before: SENTELLE, HENDERSON, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
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PER CURIAM: We grant the motion for summary affirmance
by appellee Centerplate/NSBE, Inc. (“Centerplate”), although
we do so, in part, for different reasons than the District Court
stated in dismissing the claims of appellant Esther Fernandez.
Fernandez filed a complaint seeking overtime compensation for
hours she worked in excess of eight per day and forty per week
for Centerplate, invoking federal subject matter jurisdiction
under the Fair Labor Standards Act, 29 U.S.C. § 207 (the
“FLSA” or “Act”). Centerplate introduced evidence
demonstrating that it paid Fernandez overtime compensation for
hours worked in excess of forty per week. Fernandez did not
contest that evidence, which only left in dispute her claim that
Centerplate failed to pay overtime for hours worked in excess of
eight per day. Because the FLSA requires employers to pay
overtime compensation for time worked in excess of forty hours
per week, but not for time worked in excess of eight hours per
day, the District Court concluded, and we agree, that Fernandez
does not have a claim under the FLSA. Although the District
Court dismissed this claim for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), we convert that
dismissal to a grant of summary judgment in favor of
Centerplate because it was predicated upon Centerplate’s
undisputed evidence demonstrating that Fernandez was paid
overtime for all hours worked in excess of forty per week.
Fernandez argues nevertheless that the FLSA provides
federal jurisdiction to hear her additional claim that
Centerplate’s alleged failure to pay overtime for hours worked
in excess of eight per day violated an applicable collective
bargaining agreement. A breach of a collective bargaining
agreement may make out a contract claim, but it does not by
itself raise a federal question under the FLSA. We affirm the
District Court’s dismissal of this claim under Federal Rule of
Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
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I.
Fernandez’s complaint alleges that Centerplate violated
Section 7 of the FLSA, 29 U.S.C. § 207, by failing to pay her
time-and-a-half compensation for hours worked in excess of
eight per day and forty per week. Centerplate moved to dismiss
the complaint for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1), for failure to state a
claim pursuant to Rule 12(b)(6), or, alternatively, for summary
judgment pursuant to Rule 56. Centerplate argued that
Fernandez had, in fact, been paid overtime for all hours worked
in excess of forty per week and that the FLSA did not require it
to pay Fernandez overtime for hours worked in excess of eight
per day. Centerplate proffered a declaration by its Director of
Human Resources, who attested that Fernandez received
overtime compensation for all hours worked in excess of forty
per week. In response, Fernandez conceded that she was paid
overtime compensation for all hours worked in excess of forty
per week. Fernandez nonetheless maintained that Centerplate
violated an agreement with her union and thereby violated the
FLSA by failing to pay overtime compensation for hours she
worked in excess of eight per day.
The District Court dismissed the complaint pursuant to Rule
12(b)(1) for lack of federal subject matter jurisdiction. Relying
upon Centerplate’s undisputed declaration and Fernandez’s
concession that she had, in fact, been paid overtime for time
worked in excess of forty hours per week, the District Court
ruled that Centerplate had not violated the FLSA and therefore
Fernandez failed to establish federal question jurisdiction. In
response to Fernandez’s argument that Centerplate’s alleged
failure to pay overtime for work in excess of eight hours per day
violated an agreement with her union and provided a ground for
jurisdiction under the FLSA, the District Court concluded that,
although Fernandez “frames her allegations [in her complaint]
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as a claim under the FLSA,” the entire dispute “amounts to
nothing more than a claim under the collective bargaining
agreement between the Hotel & Restaurant Employees Local 25
Union and Centerplate.” Fernandez v. Centerplate/NBSE, Inc.,
No. 04-0809, Slip Op. at 10, 2005 WL 3273370, at *5 (D.D.C.
Aug. 1, 2005). The District Court agreed with a series of cases
holding that breach of an employment contract alone does not
raise a federal question under the FLSA. See Dufrene v.
Browning-Ferris, Inc., 207 F.3d 264, 269 (5th Cir. 2000);
Sheppard v. Cornelius, 302 F.2d 89, 90-91 (4th Cir. 1962);
Timony v. Todd Shipyards Corp., 59 F. Supp. 779, 780
(S.D.N.Y. 1945). “[A]bsent a claim under the FLSA,” the
District Court noted, “no federal question exists, and . . . this
Court does not have subject matter jurisdiction over the dispute
in this case.” Id. at 10 & n.5, 2005 WL 3273370, at *6 & n.5.
Fernandez filed a timely notice of appeal, invoking our
jurisdiction under 28 U.S.C. § 1291. Centerplate now moves for
summary affirmance.
II.
With exceptions not relevant here, Section 7 of the FLSA
requires employers to pay overtime compensation for time
worked in excess of forty hours per week. See 29 U.S.C.
§ 207(a)(1). The Act does not provide, however, for payment of
overtime compensation for work exceeding eight hours per day.
Centerplate’s affidavit establishes that it paid Fernandez for all
hours worked in excess of forty per week, and Fernandez
conceded the affidavit is accurate in that respect. Thus, there is
no material dispute of fact regarding whether Centerplate
violated Section 7 of the FLSA.1
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Fernandez argues that a Department of Labor regulation, 29
C.F.R. § 778.102, “brought unpaid overtime compensation for hours
worked in excess of a daily rate . . . under the coverage of the FLSA.”
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The District Court focused on Fernandez’s related claim
that Centerplate violated an agreement with her union. After
concluding that, contrary to Fernandez’s suggestion, the FLSA
did not provide jurisdiction to adjudicate that claim, the District
Court dismissed this entire case pursuant to Federal Rule of
Civil Procedure 12(b)(1) for lack of federal subject matter
jurisdiction. Relying upon Equal Employment Opportunity
Commission v. St. Francis Xavier Parochial School, 117 F.3d
621 (D.C. Cir. 1997), Fernandez argues that the District Court
erred in dismissing her complaint under Rule 12(b)(1) because,
under St. Francis Xavier, her “claim arises under the laws of the
United States and is neither ‘immaterial and made solely for the
purpose of obtaining jurisdiction’ nor ‘wholly insubstantial and
frivolous.’” Id. at 623 (quoting Bell v. Hood, 327 U.S. 678,
682-83 (1946)). We agree.
As the Supreme Court determined in Bell v. Hood:
Jurisdiction . . . is not defeated . . . by the possibility
that the averments might fail to state a cause of action
on which petitioners could actually recover. For it is
well settled that the failure to state a proper cause of
action calls for a judgment on the merits and not for a
dismissal for want of jurisdiction. Whether the
complaint states a cause of action on which relief could
be granted is a question of law and just as issues of fact
it must be decided after and not before the court has
Contrary to Fernandez’s suggestion, § 778.102 does no such thing.
The portion of § 778.102 relevant here simply provides that “[n]othing
in the [FLSA] . . . will relieve an employer of any obligation he may
have assumed by contract.” A regulation stating that a federal law
does not relieve an employer of burdens imposed by a contract has no
relevance to whether the federal law provides a basis for enforcing the
contract.
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assumed jurisdiction over the controversy. If the court
does later exercise its jurisdiction to determine that the
allegations in the complaint do not state a ground for
relief, then dismissal of the case would be on the
merits, not for want of jurisdiction.
327 U.S. at 682. Applying Bell, the Supreme Court recently
concluded that “when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.” Arbaugh v. Y & H
Corp., 126 S. Ct. 1235, 1245, __ U.S. __, __ (2006). Unless
“the Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional,” such a limitation
“is an element of a plaintiff’s claim for relief, not a jurisdictional
issue.” Id. In Arbaugh, the Court concluded that a provision of
Title VII addressing which employers are covered by the statute
is “not a jurisdictional issue” but merely “an element of a
plaintiff’s claim for relief” because the provision “‘does not
speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts.’” Id. (quoting Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394 (1982)). Arbaugh
applied the same analysis as St. Francis Xavier and this Court’s
prior precedent. See St. Francis Xavier, 117 F.3d at 624
(“Nothing in Title VII (or the ADA) expressly limits the district
court’s subject matter jurisdiction.”); see also Haddon v.
Walters, 43 F.3d 1488, 1490-91 (D.C. Cir. 1995).
While the merits of Fernandez’s FLSA claim turn on
whether she was paid for hours worked in excess of forty per
week, nothing in the FLSA suggests that a failure to prove this
particular element of her cause of action requires a dismissal for
lack of jurisdiction. Fernandez’s claim that she was not paid
overtime for work in excess of forty hours per week arose under
the laws of the United States and “stated a nonfrivolous federal
claim.” Herero People’s Reparations Corp. v. Deutsche Bank,
7
A.G., 370 F.3d 1192, 1195 (D.C. Cir. 2004); see Arbaugh, 126
S. Ct. at 1244 n.10, __ U.S. at __ n.10; Bell, 327 U.S. at 682-83.
It is true that Centerplate’s undisputed affidavit and Fernandez’s
subsequent concession established that she was paid the
overtime required by the FLSA and that Centerplate did not
violate the Act. But that makes resolution of this claim no more
than a matter for summary judgment. The District Court should
have granted Centerplate summary judgment. Where “the
defendant’s motion to dismiss requested summary judgment in
the alternative to dismissal . . . , and if summary judgment is the
correct disposition, we may convert and affirm on those
grounds.” Kingman Park Civic Ass’n v. Williams, 348 F.3d
1033, 1041 (D.C. Cir. 2003) (parenthetically quoting Taylor v.
FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997)); see also Fraternal
Order of Police Dep’t of Corr. Labor Comm. v. Williams, 375
F.3d 1141, 1144 (D.C. Cir. 2004); Haddon, 43 F.3d at 1491.
We do so here and convert the District Court’s dismissal of
Fernandez’s FLSA claim to a grant of summary judgment in
favor of Centerplate under Federal Rule of Civil Procedure 56.
We still must address Fernandez’s argument that the FLSA
provides federal question jurisdiction to review Centerplate’s
alleged breach of a collective bargaining agreement. No
violation of the FLSA has been committed and the FLSA does
not, as several courts have noted, contain a provision authorizing
enforcement of a collective bargaining agreement. See Dufrene,
207 F.3d at 269; Sheppard, 302 F.2d at 90; Timony, 59 F. Supp.
at 780. As Fernandez only alleges the FLSA as the source for
federal subject matter jurisdiction over her dispute regarding the
collective bargaining agreement, we agree with the District
Court that this claim must be dismissed for lack of subject
matter jurisdiction.
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III.
For the foregoing reasons, we grant Centerplate’s motion
for summary affirmance. We convert the District Court’s
dismissal of Fernandez’s claim under Section 7 of the FLSA, 29
U.S.C. § 207, to a grant of summary judgment in favor of
Centerplate and affirm. We affirm the dismissal for lack of
subject matter jurisdiction of Fernandez’s collective bargaining
agreement claim.
So ordered.