United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 22, 2005 Decided February 3, 2006
Reissued March 20, 2006
No. 05-7029
EMMA RODRIGUEZ, INDIVIDUALLY AND ON BEHALF OF OTHERS
SIMILARLY SITUATED,
APPELLEE
v.
PUERTO RICO FEDERAL AFFAIRS ADMINISTRATION, AND
INDIVIDUAL DEFENDANTS, ET AL.,
APPELLANTS
UNITED STATES OF AMERICA,
INTERVENOR
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02246)
Richard H. Pildes argued the cause for appellants. On the
briefs were Lawrence I. Kiern and Gene C. Schaerr. Eric P.
Gotting entered an appearance.
Dan Getman argued the cause and filed the brief for
appellee.
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Scott R. McIntosh, Attorney, U.S. Department of Justice,
argued the cause for intervenor. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Gregory G.
Katsas, Deputy Assistant Attorney General, Mark B. Stern,
Appellate Litigation Counsel, Allen H. Feldman, Associate
Deputy Solicitor, U.S. Department of Labor, Nathaniel I.
Spiller, Senior Counselor, and Edward D. Sieger, Senior
Attorney. Kenneth L. Wainstein, U.S. Attorney, entered an
appearance.
Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: The issue presented arises from the
intersection of the Puerto Rican Federal Relations Act (FRA),
the Fair Labor Standards Act (FLSA), and principles of state
sovereign immunity as set forth in two Supreme Court
decisions: Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996), and Alden v. Maine, 527 U.S. 706 (1999). Holding that
Article I of the United States Constitution gives Congress no
authority to abrogate State sovereign immunity, Seminole Tribe
and Alden effectively invalidated the FLSA’s private right of
action as applied against state agencies. In this case, we must
decide whether, despite those two decisions, the FLSA’s private
right of action still applies against an agency of the Puerto Rican
government. Because FRA section 734 provides that “[t]he
statutory laws of the United States . . . shall have the same force
and effect in Puerto Rico as in the United States,” and because
Seminole Tribe and Alden have left the FLSA’s private right of
action without “force and effect” against state agencies “in the
United States,” we hold that it does not.
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I.
Ending the Spanish American War, the 1899 Treaty of Paris
ceded Puerto Rico to the United States as a territory entirely
subject to Congress’s regulatory will. Treaty of Paris, 30 Stat.
1754 (1899). According to the Treaty, “[t]he civil rights and
political status of [Puerto Rico’s] native inhabitants . . . shall be
determined by the Congress.” Id. at 1759. Moreover, Article IV
of the Constitution authorizes Congress to “make all needful
Rules and Regulations respecting the Territory . . . belonging to
the United States.” See U.S. Const. art. IV, § 3, cl. 2.
In a series of statutes beginning with the Foraker Act of
1900 and culminating with the enactment of Public Law 600 in
1950, Congress granted Puerto Rico ever increasing self-
governing authority. See Foraker Act, ch. 191, 31 Stat. 77
(1900) (establishing Puerto Rico’s first civilian government and
vesting it with executive, legislative, and judicial powers); Jones
Act of 1917, ch. 145, 39 Stat. 951 (1917) (providing Puerto Rico
with a wider degree of local self-government, establishing a
territorial bill of rights, and conferring American citizenship on
Puerto Rican citizens); Elective Governor Act, Pub. L. No. 80-
362, 61 Stat. 770 (1947) (investing the People of Puerto Rico
with full control over the executive branch); Act of July 3, Pub.
L. No. 81-600, 64 Stat. 319 (1950). “[A]dopted in the nature of
a compact,” Public Law 600 authorized the People of Puerto
Rico to “organize a government pursuant to a constitution of
their own adoption.” Act of July 3, Pub. L. No. 81-600, 64 Stat.
319 (1950). Through popular referendum, the People of Puerto
Rico approved Public Law 600’s proposed allocation of
power—supreme national power to the U.S. Congress and full
local control to the Puerto Rican government—and then adopted
a draft constitution. Congress approved the constitution, subject
to three amendments: two unrelated to the claim before us and
one requiring any future amendments to be “consistent with the
resolution enacted by the Congress of the United States
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approving this constitution, with the applicable provisions of the
Constitution of the United States, with the Puerto Rican Federal
Relations Act, and with Public Law 600, Eighty-first Congress,
adopted in the nature of a compact.” H.R.J. Res. 430, 82nd
Cong. (1952). The Constitutional Convention of Puerto Rico
accepted the amendments and then ratified the constitution “in
the name of the people.” See id. (outlining procedure for
ratification); Examining Bd. of Eng’rs, Architects & Surveyors
v. Flores de Otero, 426 U.S. 572, 594-95 (1976) (noting Puerto
Rico’s acceptance of amendments and ratification of the
constitution).
Public Law 600 included the Puerto Rican Federal Relations
Act, Act of July 3, Pub. L. No. 81-600, § 4, 64 Stat. 319 (1950),
which codified all earlier statutory provisions regarding Puerto
Rico that survived the Compact, including the following
language first drafted for the Foraker Act: “[t]he statutory laws
of the United States . . . shall have the same force and effect in
Puerto Rico as in the United States.” 48 U.S.C. § 734; see Jones
Act of 1917, ch. 145, § 9, 39 Stat. 954 (1917) (containing
section 734’s language); Foraker Act, ch. 191 § 14, 31 Stat. 77
(1900) (containing language similar to section 734). Now found
in FRA section 734 and central to the issue before us, that
language has defined the application of federal law to Puerto
Rico since 1900. See, e.g., P.R. Dep’t of Consumer Affairs v.
Isla Petroleum Corp., 485 U.S. 495, 499 (1988) (relying on
section 734 to delineate the test for federal preemption of Puerto
Rican law).
The Fair Labor Standards Act protects employees from
“labor conditions [that are] detrimental to the maintenance of the
minimum standard of living,” 29 U.S.C. § 202(a). The Act
prescribes minimum wage and overtime rates for employees
either engaged in interstate commerce or working for employers
engaged in interstate commerce. Id. §§ 206, 207. In order “[t]o
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encourage employees to enforce their FLSA rights in court, and
thus to further the public policies underlying the FLSA,”
Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728,
740 n.16 (1981), FLSA section 16(b) provides that “[a]n action
to recover” for violations of the Act’s minimum wage, overtime,
and non-retaliation provisions “may be maintained against any
employer (including a public agency) in any Federal or State
court of competent jurisdiction by any one or more employees.”
29 U.S.C. § 216(b). Congress added the parenthetical reference
to public agencies—defined to include both states and
territories—to “overcome . . . the Supreme Court [decision] in
Employees of the Department of Public Health v. Missouri (93
S. Ct. 1614, April 18, 1973) which stated that Congress had not
explicitly provided . . . [that] State and local employees could
bring an action against their employer in a Federal court under
section 16.” H.R. Rep. No. 93-913, at 45 (1974); see also 29
U.S.C. § 203(x) (defining “[p]ublic agency” to include “the
government of a State or political subdivision thereof” and “any
agency of . . . a State, or a political subdivision of a State”); id.
§ 203(c) (defining “State” to mean “any State of the United
States or the District of Columbia or any Territory or possession
of the United States”).
In Seminole Tribe, however, the Supreme Court held that
Article I gives Congress no authority to divest States of
sovereign immunity from suit in federal court. Seminole Tribe,
517 U.S. at 72-73. And three years later in Alden, which
involved FLSA section 16(b), the Court extended Seminole
Tribe to suits brought in state court. Alden, 527 U.S. at 754.
Taken together, Seminole Tribe and Alden mean that state
employees no longer have any “court of competent jurisdiction,”
29 U.S.C. § 216(b), in which to sue their employers for FLSA
violations.
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Appellee, Emma Rodriguez, filed suit in the United States
District Court for the District of Columbia under FLSA section
16(b), alleging that the Puerto Rico Federal Affairs
Administration (PRFAA), an executive agency of the
Commonwealth of Puerto Rico, violated the FLSA by
underpaying her and then retaliating against her after she
complained. PRFAA moved to dismiss, arguing that Seminole
Tribe and Alden entitled it to sovereign immunity from FLSA
suits. The district court denied the motion, explaining that “[i]t
is for Congress, and not this court, to decide, in light of
Seminole Tribe and its progeny,” whether Puerto Rico should be
subject to suit under section 16(b) when States are not.
Rodriguez v. P.R. Fed. Affairs Admin., 338 F. Supp. 2d 125, 130
(D.D.C. 2004). PRFAA then moved under section 1292(b) to
certify the sovereign immunity question for interlocutory appeal.
See 28 U.S.C. § 1292(b) (allowing district courts to certify for
interlocutory appeal any “controlling question of law as to
which there is substantial ground for difference of opinion and
[if] an immediate appeal . . . may materially advance the
ultimate termination of the litigation”). The district court
granted the motion, Rodriguez v. P.R. Fed. Affairs Admin., No.
03-2246 (D.D.C. Dec. 13, 2004), and PRFAA timely filed a
petition for permission to appeal. Fed. R. App. P. 5(a)
(requiring that parties petition for permission to bring
discretionary appeals “within the time specified by the statute or
rule authorizing the appeal”). Because the district court properly
certified the issue, and because both parties encourage us to hear
this appeal, we grant PRFAA’s petition. The federal
government has intervened to defend the constitutionality of
section 16(b) as applied to Puerto Rico.
II.
PRFAA argues that section 734 enunciates a “default rule”
under which courts must construe federal statutes to apply
equally to Puerto Rico and the fifty States unless Congress
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expressly provides otherwise. For additional support, PRFAA
relies on the Compact, arguing that “no court should lightly infer
that Congress has broken faith with its solemn undertaking in
the Compact [to reaffirm and bolster Puerto Rico’s sovereign
immunity] in the absence of a clear statement of intent by the
Congress.” Appellants’ Br. 7. Because Seminole Tribe and
Alden bar section 16(b) suits against States, and because nothing
in the FLSA reveals any congressional intent to treat Puerto
Rico differently with respect to private section 16(b) suits,
PRFAA argues that the district court should have dismissed
Rodriguez’s complaint. We agree.
FRA section 734 provides that “[t]he statutory laws of the
United States . . . shall have the same force and effect in Puerto
Rico as in the United States.” 48 U.S.C. § 734. Here, we
consider how to apply this mandate to FLSA section 16(b),
which allows employees to maintain private actions against any
employer, “including a public agency.” 29 U.S.C. § 216(b).
Section 3(x) defines “public agency” to include the government
of a “State,” 29 U.S.C. § 203(x), and section 3(c) defines a
“State” to include “any State” or “any Territory,” 29 U.S.C. §
203(c). If, as Rodriguez argues, section 16(b) continues to
authorize such actions against Puerto Rico, then the provision
would have a different “force and effect in Puerto Rico [than it
does] in the United States”: in Puerto Rico a “State”—as defined
by the statute—can be sued, while in the United States, after
Seminole Tribe and Alden, a “State” cannot. The only way to
give section 16(b) “the same force and effect in Puerto Rico as
in the United States” is to hold, as PRFAA urges, that Puerto
Rico likewise enjoys immunity from private FLSA enforcement
suits.
The district court is certainly correct that “[i]t is for
Congress, and not this court,” to decide what to do with section
16(b) given Seminole Tribe and Alden. Rodriguez, 338 F. Supp.
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2d at 130. Indeed, as Rodriguez points out, Seminole Tribe itself
says that courts are not “free to rewrite the statutory scheme in
order to approximate what we think Congress might have
wanted had it known that [the provision] was beyond its
authority.” Seminole Tribe, 517 U.S. at 76. Here, however, we
need not “rewrite the statutory scheme” to reflect what “we
think Congress might have wanted had it known” that section
16(b)’s private right of action could no longer be applied to
States. FRA section 734, though originally enacted almost a
century before Seminole Tribe and Alden, tells us exactly how
to apply section 16(b) to Puerto Rico now that, by virtue of
those two decisions, its private right of action has become
inapplicable to States. Specifically, section 16(b)’s private right
of action must have the same “force and effect” against “State”
agencies in Puerto Rico, namely no force or effect at all. See 29
U.S.C. § 203(c) (defining “State” to include territories for FLSA
purposes).
The First Circuit, the court most expert on Puerto Rico’s
status, agrees. In Jusino Mercado, also a section 16(b) suit
against Puerto Rico, the First Circuit concluded:
[G]iven the language of the FLSA, the context in which
Congress amended it to reach public agencies, and the
guidance provided by the Federal Relations Act, reading
the law to intrude more profoundly on Puerto Rico’s
sovereignty than on that of the states would contradict what
we discern to be Congress’s manifest intent. To harmonize
our reading of the statute with this intent and to maintain
the parallelism that Congress sought to achieve, we
construe the FLSA as failing to overcome Puerto Rico’s
immunity.
Jusino Mercado v. Puerto Rico, 214 F.3d 34, 44 (1st Cir. 2000).
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Rodriguez’s arguments to the contrary are unpersuasive.
First, twisting section 16(b)’s plain language, she argues that
“[a]t most, the [FRA] holds that the FLSA has applicability in
Puerto Rico [because the] statute [is] applicable in the states.”
Appellee’s Br. 21. But, she continues, section 734 does not
accord to Puerto Rico the same defense to individual claims in
federal court that the U.S. Constitution provides States.
Although it is true that the FLSA applies both in the United
States and in Puerto Rico, Congress commanded that section
16(b) apply to Puerto Rico according to its force and effect in the
United States. After Seminole Tribe and Alden, section 16(b) no
longer has the force and effect Congress purported to give it:
States now enjoy immunity from private rights of action.
Section 734’s “same force and effect” command thus requires
that we accord the same immunity to Puerto Rico.
Pointing out that Congress intended the FLSA to apply
broadly to “all employees within the scope of the Act,” United
States v. Rosenwasser, 323 U.S. 360, 363 (1945), Rodriguez
next argues that “under the FLSA’s rules of interpretation[],
there can be no implied exemptions to the FLSA,” Appellee’s
Br. 22. But Rodriguez provides no citation to any FLSA “rules
of interpretation,” and we are unaware of any such rules. More
important, our ruling today creates no “implied exemption” to
the FLSA, but merely follows Congress’s express direction to
give “[t]he laws of the United States . . . the same force and
effect in Puerto Rico as in the United States.” 48 U.S.C. § 734.
Next, Rodriguez urges us to ignore section 734 altogether
since “an implicit ‘default rule’ cannot be said to override
explicit language in a statute that clearly expresses a contrary
position. Because Congress made Puerto Rico liable under the
FLSA specifically, the default rule cannot trump Congress’s
specific instructions.” Appellee’s Br. 22. But neither section
16(b) nor the definitional terms it incorporates “specifically”
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refer to Puerto Rico. FLSA section 3(c) broadly defines the
term “State”—a category of “covered employers”—to include
“any State of the United States or the District of Columbia or
any Territory.” 29 U.S.C. § 203(c) (emphasis added). By
comparison, section 734 applies expressly to Puerto Rico.
Accordingly, because the canons of statutory construction
require that the specific govern the general, instead of ignoring
section 734, we must apply section 16(b) (the more general of
the two provisions) as directed by section 734, giving it the same
“force and effect in Puerto Rico as in the United States.”
Last, assuming for argument’s sake that the “default rule”
applies, Rodriguez argues that it does “not bar this suit, because
there is a rational basis for treating Puerto Rico differently from
the states—namely that the states have constitutional sovereign
immunity . . . and Puerto Rico does not.” Appellee’s Br. 22.
The fact that Congress may have had a rational basis for treating
Puerto Rico differently from States, however, is irrelevant given
that it expressly chose not to do so for purposes of section 16(b)
private enforcement actions. 29 U.S.C. § 216(b) (providing
“[a]n action to recover” for FLSA violations “may be
maintained against any employer (including a public agency)”;
id. § 203(x) (defining “[p]ublic agency” to include “any agency
of . . . a State”); id. § 203(c) (defining “State” to include “any
State” and “any Territory”). Because of this, and because of
section 734's “same force and effect” command, we have no
basis for treating Puerto Rico differently from the fifty States.
We reverse the district court’s decision and remand with
instructions to dismiss the complaint.
So ordered.