Felix Lobo v. Miccosukee Tribe of Indians , 279 F. App'x 926 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15073 May 30, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-21595-CV-WMH
FELIX LOBO,
LIZA SUAREZ,
Plaintiffs-Appellants,
versus
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
BILLY CYPRESS,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 30, 2008)
Before ANDERSON, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellants Felix Lobo and Liza Suarez appeal the dismissal of their Fair
Labor Standards Act, 29 U.S.C. § 201 (“FLSA”), complaint. The district court
dismissed the complaint because the Appellees, the Miccosukee Tribe and its
chairman Billy Cypress, enjoy sovereign immunity. On appeal, the Appellants
argue that the district court erred because the FLSA is a statute of general
application that applies to Indian tribes.
In Florida Paraplegic, Association, Inc. v. Miccosukee Tribe of Indians of
Florida, 166 F.3d 1126 (11th Cir. 1999), we addressed precisely that issue.1 We
noted that although the district court was correct that the Act – in that case the
Americans with Disabilities Act – applied to Indian tribes, there was no indication
that Congress intended to waive Indian sovereign immunity to suit on that act. We
also noted that whether or not a tribe may be subject to a statute and whether or
not a tribe may be sued for violating a statute are “two entirely different
questions.” Id. at 1130. A tribe is not subject to suit unless the tribe waives its
immunity or Congress expressly abrogates it. Id. at 1131. We observed that in
order for Congress to have expressly abrogated immunity, it must have made its
intention “‘unmistakably clear in the language of the statute.’” Id. (quoting
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147
1
Although Florida Paraplegic involved a different statute, the case is analogous to the
instant case in that it also involved a statute of general applicability (i.e. the ADA) and it
involved the application of that statute to a similar commercial business of the tribe.
2
(1985)).
Turning to the text of the FLSA, it is clear that there is no such indication
that Congress intended to abrogate the tribe’s immunity to suit. Indeed there is no
mention of tribes in the text of the statute. Therefore, the district court did not err
when it dismissed the complaint with regard to the Appellant tribe.
Turning to its chairman, Appellant Billy Cypress, it is equally clear that he
is immune from suit based on the FLSA. In Tamiami Partners v. Miccosukee
Tribe of Indians of Florida, 177 F.3d 1212 (11th Cir. 1999), we noted that “tribal
officers are protected by tribal sovereign immunity when they act in their official
capacity.” Id. at 1225. There is no allegations that Cypress was not acting in his
official capacity and therefore he is immune from suit.
AFFIRMED.2
2
Appellants’ request for oral argument is denied.
3