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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10162
____________________
LANGSTON AUSTIN,
On behalf of themselves and all others similarly situated,
ERNEST FULLER, III,
On behalf of themselves and all others similarly situated,
Plaintiffs-Appellants,
versus
GLYNN COUNTY, GEORGIA,
E. NEAL JUMP,
Individually,
Defendants-Appellees.
____________________
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2 Opinion of the Court 21-10162
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:20-cv-00073-LGW-BWC
____________________
Before WILLIAM PRYOR, Chief Judge, MARCUS, Circuit Judge, and
MIZELLE,∗ District Judge.
MIZELLE, District Judge:
This appeal turns on whether Sheriff E. Neal Jump of Glynn
County, Georgia, and other sheriffs like him, act as arms of the
State of Georgia when making compensation decisions for their
employees. Under our precedent, the answer is yes. Because Sheriff
Jump is entitled to Eleventh Amendment immunity when per-
forming that function, we affirm the district court’s denial of leave
to amend and subsequent dismissal of the amended complaint.
I. BACKGROUND
Langston Austin and Ernest Fuller III worked as detention
officers for Glynn County under Sheriff Jump’s supervision. Their
duties included maintaining order in Glynn County jails and pris-
ons, supervising inmate activities, inspecting facilities, searching in-
mates for contraband, reporting on inmate conduct, and escorting
and transporting inmates. Although it is unclear from the record
whether the Officers are formally deputy sheriffs, see Manders v. Lee,
∗ Honorable Kathryn Kimball Mizelle, United States District Judge for the Mid-
dle District of Florida, sitting by designation.
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21-10162 Opinion of the Court 3
338 F.3d 1304, 1311 n.14 (11th Cir. 2003) (en banc) (explaining that
Georgia “[s]heriffs also may appoint persons to serve as jailers who
are not deputy sheriffs”), it is undisputed that they are at minimum
direct employees of Sheriff Jump, in his official capacity, akin to
deputies.
The Officers brought a Fair Labor Standards Act (FLSA) col-
lective action alleging that the County “illegally calculated [their]
and other [d]etention [o]fficers’ overtime wages.” The County
moved to dismiss for failure to state a claim. In response, the Offic-
ers amended their complaint to include Sheriff Jump in his individ-
ual capacity. The County and Sheriff Jump then moved to dismiss
the amended complaint for lack of subject-matter jurisdiction and
for failure to state a claim, arguing that neither defendant was the
Officers’ employer under the FLSA.
With our precedent against them about who qualified as an
employer under the FLSA, the Officers moved for leave to file a
second amended complaint to add Sheriff Jump, in his official ca-
pacity, as a defendant. The district court denied the motion, rea-
soning that amendment would be futile because Sheriff Jump was
entitled to Eleventh Amendment immunity in his official capacity.
The district court then dismissed the amended complaint and en-
tered final judgment against the Officers because neither the
County nor the Sheriff, in his individual capacity, were “employ-
ers” under the FLSA. The Officers timely appealed.
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4 Opinion of the Court 21-10162
II. STANDARDS OF REVIEW
Each issue raised in this appeal receives de novo review. We
review dismissals for failure to state a claim de novo, accepting all
factual allegations as true and considering them in the light most
favorable to the plaintiff. Blevins v. Aksut, 849 F.3d 1016, 1018–19
(11th Cir. 2017). We also review rulings regarding Eleventh
Amendment immunity and statutory interpretation de novo. Ser-
geeva v. Tripleton Int’l Ltd., 834 F.3d 1194, 1199 (11th Cir. 2016);
Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298,
1303 (11th Cir. 2005). And we review de novo a determination that
a particular amendment to a complaint would be futile. Cockrell v.
Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam).
III. DISCUSSION
The FLSA requires that employers engaged in interstate
commerce meet minimum labor standards and working condi-
tions, including paying covered employees a minimum wage and
overtime. 29 U.S.C. §§ 202, 206, 207; see Josendis v. Wall to Wall Res-
idence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). If an em-
ployer fails to pay required wages, the FLSA provides employees a
private cause of action to collect those unpaid wages. See 29 U.S.C.
§ 216(b). But the FLSA allows suits against “employers” only as de-
fined by the Act. Id. § 203(d). Moreover, the Eleventh Amendment
bars FLSA actions against arms of the State absent consent. See
Alden v. Maine, 527 U.S. 706, 712 (1999); Manders, 338 F.3d at 1308–
09.
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The Officers advance three arguments—none are meritori-
ous. The Officers first urge us to overturn Eleventh Circuit prece-
dent holding that public officials, in their individual capacities, are
not their subordinates’ “employers” under the FLSA. Second, the
Officers argue that the district court was wrong to conclude that a
Georgia sheriff, in his official capacity, is entitled to Eleventh
Amendment immunity when making compensation decisions re-
garding his employees. Finally, the Officers argue that, even if Sher-
iff Jump was entitled to Eleventh Amendment immunity, Georgia
has waived that immunity in federal court. We explain in turn why
each argument fails.
A. Sheriff Jump, in his Individual Capacity, is Not an “Employer”
under the FLSA
The district court correctly dismissed the Officers’ com-
plaint against Sheriff Jump in his individual capacity because he is
not an “employer” under the FLSA. See Welch v. Laney, 57 F.3d 1004,
1011 (11th Cir. 1995) (holding that an Alabama sheriff was not an
employer in his individual capacity under the Equal Pay Act); Was-
cura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999) (“The Equal Pay Act
is simply an extension of the FLSA and incorporates the FLSA’s def-
inition of ‘employer.’”). Under the FLSA, an employer “includes
any person acting directly or indirectly in the interest of an em-
ployer in relation to an employee.” 29 U.S.C. § 203(d). Our prece-
dent holds that a sheriff acting in his individual capacity has “no
control over [the plaintiff’s] employment and does not qualify as
[the plaintiff’s] employer.” Welch, 57 F.3d at 1011; Wascura, 169 F.3d
at 686 (“Welch establishes . . . that a public official sued in his
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6 Opinion of the Court 21-10162
individual capacity is not an ‘employer’ subject to individual liabil-
ity under the FLSA.”).
The Officers argue that other circuits disagree. So be it. Our
precedent controls, and we remain impotent as a panel to deviate
from it. Wascura, 169 F.3d at 687 (“[W]e are bound by the Welch
decision regardless of whether we agree with it.”); Thompson v. Al-
abama, 65 F.4th 1288, 1301 (11th Cir. 2023) (“Later panels must
faithfully follow the first panel’s ruling even when convinced the
earlier panel is wrong.” (citations and quotations omitted)).
In sum, because Sheriff Jump, in his individual capacity, is
not the Officers’ “employer” under the FLSA, we affirm the district
court’s dismissal of the Officers’ amended complaint on that
ground.
Two peripheral points to note. First, although the Officers’
amended complaint named the County as a defendant, the Officers
have not argued on appeal that the district court erred in conclud-
ing that the County was not the Officers’ employer under the
FLSA. Thus, the Officers have forfeited that issue. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When
an appellant fails to challenge properly on appeal one of the
grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge of that ground.”). Sec-
ond, Sheriff Jump and the County at times before the district court
framed the “employer” question in terms of subject-matter juris-
diction. That is likely on account of our holding in Wascura that
“where a defendant in an FMLA suit does not meet the statutory
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21-10162 Opinion of the Court 7
definition of ‘employer,’ there is no federal subject matter jurisdic-
tion over the claim against that defendant.” 169 F.3d at 685. But
although Wascura drew on Welch’s analysis of the FLSA to interpret
the FMLA, Wascura did not backfill its jurisdictional holding on the
FMLA into the FLSA.
B. Sheriff Jump is Entitled to Immunity under the Eleventh Amend-
ment when Making Compensation Decisions for Employees
The district court denied the motion to amend to include
Sheriff Jump in his official capacity, concluding that Sheriff Jump
would be entitled to Eleventh Amendment immunity when mak-
ing compensation decisions for his employees. We agree with the
district court.
“The bar of the Eleventh Amendment to suit in federal
courts extends to States and state officials” when they act as “an
arm of the State.” Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 280 (1977). Whether an official is an “arm of the State”
“depends, at least in part, upon the nature of the entity created by
state law.” Id.; see also Manders, 338 F.3d at 1308 (“To receive Elev-
enth Amendment immunity, a defendant . . . need only be acting
as an ‘arm of the State,’ which includes agents and instrumentalities
of the State.”); cf. Biden v. Nebraska, 143 S. Ct. 2355, 2366–68 (2023)
(explaining that, in the standing context, MOHELA was “[b]y law
and function . . . an instrumentality of Missouri”). For over twenty
years, our Court has applied a four-factor test to determine
whether public officials act as arms of the State for purposes of the
Eleventh Amendment: “(1) how state law defines the entity; (2)
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8 Opinion of the Court 21-10162
what degree of control the State maintains over the entity; (3)
where the entity derives its funds; and (4) who is responsible for
judgments against the entity.” Manders, 338 F.3d at 1309; Miccosukee
Tribe of Indians of Fla. v. Fla. State Athletic Comm’n, 226 F.3d 1226,
1231 (11th Cir. 2000).
We keep in mind, though, that entities and officials act as an
“arm of the State” by “carrying out a particular function.” Manders,
338 F.3d at 1309. Therefore, courts applying the Manders factors
must engage in a “function-by-function inquiry” while remaining
vigilant that the “key question” is not “what powers sheriffs have,
but for whom sheriffs exercise that power.” Pellitteri v. Prine, 776 F.3d
777, 781–82 (11th Cir. 2015) (alterations adopted and quotations
omitted). We have previously held that a Georgia sheriff acts as an
arm of the State when making personnel decisions, see id. at 783,
and when promulgating policies and procedures governing condi-
tions of confinement, Andrews v. Biggers, 996 F.3d 1235, 1236 (11th
Cir. 2021). This appeal requires us to decide whether compensation
decisions by Georgia sheriffs are likewise acts of the State. For the
following reasons, we hold that they are.
1. How State Law Defines the Entity
We first examine how Georgia law defines the entity and the
authority to engage in the particular function at issue. Manders, 338
F.3d at 1309, 1319–20. The district court concluded that compensa-
tion is an “employee-related decision[]” that constitutes a State
function under Pellitteri. This appeal differs from Pellitteri, which
addressed personnel decisions distinct from the compensation-
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setting functions present here. But we agree that the first Manders
factor weighs in favor of immunity, if for a slightly different reason
than the district court articulated.
In Manders, we distilled “the essential governmental nature”
of Georgia sheriff’s offices to be enforcement of the law on behalf
of the State and the performance of “specific statutory duties, di-
rectly assigned by the State, in law enforcement, in state courts,
and in corrections.” 338 F.3d at 1319. As such, “sheriffs in Georgia
derive their power and duties from the State, are controlled by the
State, and counties cannot, and do not, delegate any law enforce-
ment power or duties to sheriffs.” Pellitteri, 776 F.3d at 780 (quoting
Manders, 338 F.3d at 1313). To be sure, “[t]he sheriff’s office is not
a division or subunit of [the] [c]ounty or its county governing
body,” but is “a separate constitutional office independent from
[the] [c]ounty and its governing body.” Manders, 338 F.3d at 1310
(citing Ga. Const. art. IX, § II, ¶ I(c)(1)). Thus, sheriffs constitute
“county officers” only in the sense that they ordinarily possess lim-
ited geographic jurisdiction and are elected by county voters. Pellit-
teri, 776 F.3d at 780; see also Ga. Const. art. IX, § I, ¶ III(a) (labeling
sheriffs “county officers”).
As evidence of sheriff’s offices’ independence from counties,
the Georgia Constitution prohibits a county from taking any
“[a]ction affecting any elective county office, the salaries thereof,
or the personnel thereof, except the personnel subject to the juris-
diction of the county governing authority.” Ga. Const. art. IX, § II,
¶ I(c)(1). And the Georgia Supreme Court has held that, although
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the Georgia Constitution permits “[t]he governing authority of
each county” to “fix the salary, compensation, and expenses of
those employed by such governing authority,” id. ¶ I(f), setting sal-
aries for the sheriff or sheriff’s office personnel is “not subject to the
jurisdiction of the county governing authority,” Warren v. Walton,
202 S.E.2d 405, 409 (Ga. 1973).
How Georgia law defines Sheriff Jump’s office—in particu-
lar, his authority over the salaries of his employees—favors view-
ing Sheriff Jump as “an arm of the State” when making compensa-
tion determinations. Here, the Officers assist Sheriff Jump in carry-
ing out his statutorily assigned corrections duties on behalf of the
State and are personnel working under Sheriff Jump’s supervision.
Because compensation decisions for overtime pay constitute
“[a]ction affecting [an] elective county office, the salaries thereof,
or the personnel thereof,” the County lacks authority to directly
interfere in those decisions. Pellitteri, 776 F.3d at 780 (quotations
omitted). Thus, Georgia law indicates that Sheriff Jump acts on be-
half of the State—not the County—when making compensation
decisions for his employees. See Ga. Const. art. IX, § II, ¶ I(c)(1).
The first Manders factor weighs in favor of immunity.
2. Degree of Control the State Maintains
We next analyze the degree of control that Georgia “main-
tains over the entity.” Manders, 338 F.3d at 1309, 1320–22. The dis-
trict court concluded that the second Manders factor weighed in fa-
vor of immunity because Georgia exercises substantial control over
the hiring and firing of deputy sheriffs and because sheriffs exercise
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those personnel-related powers on behalf of the State. Again, we
agree with the district court’s conclusion but for a slightly different
reason.
We explained in Pellitteri that “the State of Georgia exercises
substantial control over a sheriff’s personnel decisions.” 776 F.3d at
781. The same is true for a sheriff’s compensation-related decisions
concerning his employees. Although the County approves Sheriff
Jump’s budget and pays his employees’ salaries, Georgia limits how
much a county can restrict a sheriff’s ability to pay his employees.
While a county “may remove some funds from a sheriff’s budget,”
it may not remove “all funds.” Chaffin v. Calhoun, 415 S.E.2d 906,
908 (Ga. 1992) (emphasis in original). Instead, county commission-
ers are “under a duty to adopt a budget making reasonable and ad-
equate provision for the personnel and equipment necessary to en-
able the sheriff to perform his duties of enforcing the law and pre-
serving the peace.” Id. at 907–08 (quoting Wolfe v. Huff, 210 S.E.2d
699, 700 (Ga. 1974)). Neither can the County fix Sheriff Jump’s, or
his employees’, salaries. See Warren, 202 S.E.2d at 409; Pellitteri, 776
F.3d at 782. Instead, that aspect of the power of the purse lies with
Sheriff Jump, who exercises his authority on behalf of the State.
Moreover, the Governor of Georgia and the General Assem-
bly have the power to discipline sheriffs. Manders, 338 F.3d at 1321
(“[T]he Governor has broad investigation and suspension powers
regarding any misconduct by a sheriff in the performance of any of
his duties.” (citation and footnote omitted)). Georgia law provides
specific procedures for the Governor to investigate and discipline
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12 Opinion of the Court 21-10162
sheriffs for any alleged misconduct. See Ga. Code § 15-16-26. Coun-
ties, by contrast, “do[] not, and cannot, direct the [s]heriff” on “how
to hire, train, supervise, or discipline his deputies, what policies to
adopt, or how to operate his office.” Grech v. Clayton Cnty., 335 F.3d
1326, 1347 (11th Cir. 2003). The County lacks the authority to dis-
cipline Sheriff Jump for the way that he manages his office because
Georgia maintains control over sheriff discipline. And we must re-
member that a Georgia sheriff pays (or allegedly underpays at
times) employees, including detention officers, to assist him in ex-
ecuting his statutory duties for the State, not for a county. Thus,
when a Georgia sheriff makes compensation decisions for his em-
ployees, he remains under the control of the State in doing so. The
second Manders factor weighs in favor of immunity.
3. Where the Entity Derives its Funds
We next consider where Sheriff Jump derives the funds used
to compensate his employees. Manders, 338 F.3d at 1309, 1323–24.
The district court concluded that the third Manders factor weighed
in favor of immunity because Georgia requires the County to set
Sheriff Jump’s budget according to the State’s specifications and the
County cannot dictate how Sheriff Jump uses that budget. We
agree for both reasons.
First, although the County pays the salaries of Sheriff Jump’s
employees, Georgia law mandates that the County do so. Georgia
requires that expenses for deputies “shall” come from funds sepa-
rate from the funds that a county must spend on a sheriff’s salary.
Ga. Code § 15-16-20(c). In addition, the County must provide the
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Sheriff’s Office with a “reasonable and adequate” budget to carry
out Sheriff Jump’s legal duties. Chaffin, 415 S.E.2d at 907–08; see also
Wolfe, 210 S.E.2d at 700.
Second, although the County has the authority to approve
or deny Sheriff Jump’s budget, it cannot dictate how Sheriff Jump
uses the funds provided for his office. See Bd. of Comm’rs of Randolph
Cnty. v. Wilson, 396 S.E.2d 903, 904–05 (Ga. 1990); Pellitteri, 776 F.3d
at 782. Thus, when Sheriff Jump designates portions of his budget
for compensating employees like the Officers, he is exercising his
authority for the State and operating with substantial independ-
ence from the County.
The Officers reply that, at the end of the day, the funds still
primarily originate with the County. But that argument merely re-
states the conclusion of our unpublished decision in Keene v. Prine,
477 F. App’x 575, 578–79 (11th Cir. 2012), one that we expressly
rejected in Pellitteri, 776 F.3d at 782 (“In Keene, we found that th[e
third] factor weighed against immunity because the County is
clearly the principal source of funding for the Sheriff’s Office, in-
cluding for personnel expenditures. Here again, we recognize that
our prior unpublished opinion is inconsistent with this Court’s pub-
lished precedent.” (alterations and quotations omitted)). Just as it
did in Manders and Pellitteri, the third factor weighs in favor of im-
munity. See id. at 783; Manders, 338 F.3d at 1324.
4. Liability and Payment of Adverse Judgments
Finally, we consider who pays any adverse judgment against
Sheriff Jump. Manders, 338 F.3d at 1309, 1324–28. The district court
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14 Opinion of the Court 21-10162
concluded that the fourth Manders factor weighs against immunity
because the County remains obligated to pay any liabilities in-
curred by Sheriff Jump. We agree “to the extent that the [S]tate
treasury will be spared here from paying any adverse judgment.”
Pellitteri, 776 F.3d at 783. But because this factor is “certainly not
necessary for a finding of immunity” and the first three factors
weigh in favor of immunity, we hold that a Georgia sheriff acts as
an arm of the State when making compensation decisions for his
employees, including detention officers like Austin and Fuller. Id.
& n.2; see also Manders, 338 F.3d at 1328 (“The State’s ‘integrity’ is
not limited to who foots the bill.”).
Thus, Sheriff Jump, in his official capacity, is entitled to sov-
ereign immunity under the Eleventh Amendment. Any amend-
ment naming him in his official capacity would have been futile.
C. Georgia Has Not Waived Sovereign Immunity with Respect to the
Officers’ FLSA Claims
The Officers argue that even if Sheriff Jump acts on behalf of
the State when making compensation decisions regarding his em-
ployees, Georgia has waived Eleventh Amendment immunity for
employment suits. The Officers arrive at this conclusion by con-
tending that all employment disputes sound in breach-of-contract
and that the State has waived immunity for breach-of-contract
claims. See Ga. Const. art. I, § II, ¶ IX(c). But the “State’s consent to
suit must be ‘unequivocally expressed’ in the text.” Sossamon v.
Texas, 563 U.S. 277, 284 (2011) (quoting Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 99 (1984)). No such unequivocal
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21-10162 Opinion of the Court 15
expression exists, and certainly not as to FLSA claims like the Of-
ficers’. Moreover, the Georgia Constitution waives the State’s im-
munity from suit for breach-of-contract claims in Georgia’s courts,
not in federal court.
As a threshold matter, Georgia has not expressly waived its
sovereign immunity for claims under the FLSA. The standard for
waiver of Eleventh Amendment immunity is an exacting one. A
waiver “must employ language that is either explicit or else admits
of no other reasonable interpretation.” Schopler v. Bliss, 903 F.2d
1373, 1379 (11th Cir. 1990). The Officers never attempted to bring
a breach-of-contract claim and alleged only federal question juris-
diction in their complaint. They cannot now transmute the claim
that they brought—an FLSA claim for unpaid wages—into a
breach-of-contract claim by arguing that the former is “close
enough” to trigger Georgia’s waiver provision. A state’s waiver of
sovereign immunity is neither horseshoes nor hand grenades—
“close enough” is “not enough.” We will not drastically expand
Georgia’s limited immunity waiver absent an explicit statement in
Georgia law.
Even if we were inclined to agree with the Officers as to the
general scope of Georgia’s sovereign immunity waiver, that waiver
would still not apply here because the State must “specify” that it
intends “to subject itself to suit in federal court.” Port Auth. Trans-
Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) (emphasis in origi-
nal) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241
(1985), superseded by statute on other grounds as recognized by Lane v.
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Pena, 518 U.S. 187, 197–98 (1996)). In other words, “a [s]tate does
not consent to suit in federal court merely by consenting to suit in
the courts of its own creation.” Coll. Sav. Bank v. Fla. Prepaid Post-
secondary Educ. Expense Bd., 527 U.S. 666, 676 (1999).
Georgia has consented to breach-of-contract suits only in
courts of its own creation. Georgia law provides that “[v]enue with
respect to any [breach-of-contract] action shall be proper in the Su-
perior Court of Fulton County, Georgia.” Ga. Code § 50-21-1(b).
The Georgia Constitution further provides that “[n]o waiver of
sovereign immunity . . . shall be construed as a waiver of any im-
munity provided to the [S]tate or its departments, agencies, offic-
ers, or employees by the United States Constitution.” Ga. Const.
art. I, § II, ¶ IX(f). Thus, Georgia “retained its Eleventh Amend-
ment immunity” from suits in federal court for breach-of-contract
claims because no statute or constitutional provision “expressly
consents to suits in federal court.” Barnes v. Zaccari, 669 F.3d 1295,
1308 (11th Cir. 2012).
IV. CONCLUSION
Accordingly, both the district court’s denial of the Officers’ motion
for leave to amend and its ultimate dismissal of the amended com-
plaint are AFFIRMED.