(concurring).
I join the comprehensive opinion of Judge Biggs with respect to all the issues presented here except the question of the effect of the Eleventh Amendment upon the Secretary of Labor’s quest for a retrospective award of unpaid overtime compensation. Regarding that aspect of the case, a separate statement appears appropriate because my conception of the troublesome and important sovereign immunity issue diverges somewhat from the ideas expounded in the majority opinion.
The Eleventh Amendment1 was adopted, at least in part, in order to enhance the public weal by providing the states with constitutional protection against interference with the efficacious discharge of their governmental functions by the dissipation of the state treasury.2 Although some commentators have disputed the contemporary utility of retaining such a palisade around the state sovereign,3 the Eleventh Amendment remains an integral part of the Constitution. Notwithstanding the precise wording of the amendment, the Supreme Court has long held that, in the absence of consent, suits against a state by citizens of that state are barred as well as suits by citizens of other states.4
The immunity of the states is not all-encompassing, however. Neither the Eleventh Amendment nor notions of state sovereignty have been held to proscribe suits against a state by the United States5 or by an official acting on behalf of the federal government.6 Also, the Supreme Court has declared that Congress in the exercise of its interstate commerce power has the constitutional authority to subject the states to suits by their citizens.7
After Congress extended the Fair Labor Standards Act so as to cover state employees who work in schools, hospitals and mental institutions, the Supreme Court was presented in Employees v. Missouri Public Health Dept.8 with the question whether sovereign immunity forestalled such state employees from initiating suit in the federal courts to recover unpaid overtime compensation plus an equal amount in liquidated damages. In an opinion holding that the Court would not presume a congressional intent to enable an individual citizen to sue a state in federal court when such actions are not indispensable to the effective implementation of the legislative scheme, Justice Douglas averred, in a statement not indispensable to the conclusion reached in the case:
By holding that Congress did not lift the sovereign immunity of the States under the FLSA, we do not make the *520extension of coverage to state employees meaningless. . •. . Section 16(c) gives the Secretary of Labor authority to bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA. Section 17 gives the Secretary power to seek to enjoin violations of the Act and to obtain restitution in behalf of employees. Sections 16 and 17 suggest that since private enforcement of the Act was not a paramount objective, disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States. For suits by the United States against a State are not barred by the Constitution.9
As an indicium of legislative intent with respect to the imposition of liability upon the states, Justice Douglas looked to the need to award damages against the states in order to enforce the Act. In the present case the congressional intent embodied in the FLSA seems unclear, since there appears to be some doubt regarding the necessity of the award of retrospective overtime compensation in addition to injunctive relief in order to effectuate compliance by the states with the FLSA. Therefore, I continue to be concerned whether Congress, at the time of the 1966 amendments,10 intended to inflict financial burdens of this kind upon the states.
The Supreme Court, however, has declared, albeit only in dictum, that the sovereign character of the states does not foreclose the Secretary of Labor from obtaining for the benefit of state employees a money judgment for unpaid overtime compensation, thereby achieving indirectly what the state employees could not accomplish for themselves. It seems inappropriate for this Court, as distinguished from the Supreme Court, to enter a ruling which would be in derogation of the import of such language.
Accordingly, I concur in the judgment of the Court affirming the decision of the district court.
. U.S.Const. amend. XI:
The Judicial power of the United States shall not be construed to extend to any suit at law or in equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State.
. See J. Goebel, Jr., 1 Holmes’ Devise History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, 741 et seq. (1971); Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L. Rev. 1, 19 (1963).
. See, Note, The Eleventh Amendment and Retroactive Welfare Benefits, 36 U.Pitt.L.Rev. 78, 94, 104-107 (1974); cf. Reeves, Leviathan Bound-Sovereign Immunity in a Modern World, 43 U.Va.L.Rev. 529 (1957).
. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed.2d 842 (1890); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
. See United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965).
. Brennan v. Iowa, 494 F.2d 100, 103 (8th Cir. 1974), cert. denied, 421 U.S. 1015, 95 S.Ct. 2422, 44 L.Ed.2d 683 (1975); Walling v. Norfolk Southern Ry., 162 F.2d 95 (4th Cir. 1947).
. Parden v. Terminal Ry., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); Employees v. Missouri Public Health Department, 411 U.S. 279, 285-87, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Edelman v. Jordan, 415 U.S. 651, 671-74, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
. 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973).
. 411 U.S. at 285-86, 93 S.Ct. 1614.
. The 1974 amendments to the FLSA were not in effect during the period in which the events forming the basis of this litigation took place. Therefore, the legislative intent manifested in that enactment is not relevant to this appeal.