Michigan Corrections Organization v. Michigan Department of Corrections

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0294p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHIGAN CORRECTIONS ORGANIZATION, Service ┐
Employees International Union, Local 526M, et al., │
Plaintiffs-Appellants, │
│ No. 14-1028
│
v. >
│
│
MICHIGAN DEPARTMENT OF CORRECTIONS; DANIEL │
H. HEYNS, acting in his official capacity as Director │
of the Michigan Department of Corrections, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:13-cv-13262—John Corbett O’Meara, District Judge.
Argued: December 4, 2014
Decided and Filed: December 17, 2014
Before: SILER, SUTTON, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: John R. Runyan, Jr., SACHS WALDMAN, Detroit, Michigan, for Appellants.
Jeanmarie Miller, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellees. ON BRIEF: John R. Runyan, Jr., Marshall J. Widick, SACHS WALDMAN,
Detroit, Michigan, for Appellants. Jeanmarie Miller, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
1
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 2
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OPINION
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SUTTON, Circuit Judge. Constitutional challenges to the enforcement of wage-and-hour
laws are not new. By themselves, these cases could tell much of the story of the metes and
bounds of federal and state power. As today’s dispute shows, that history continues to unfold.
Several corrections officers sued the Michigan Department of Corrections and its
Director, claiming a right to overtime pay under the Fair Labor Standards Act and state law.
Two threshold defenses, the district court held, stood in the way of the federal claim: Sovereign
immunity barred the corrections officers from seeking damages from an agency of the State (the
Department of Corrections), and the FLSA precluded the corrections officers from seeking
injunctive or declaratory relief against the Director. In the absence of a cognizable federal claim,
the district court declined to exercise jurisdiction over the state law claims. We affirm.
I.
Michigan corrections officers must perform several pre-shift and post-shift activities,
including “punching a mechanical time clock,” “waiting in line” for security, and “walking to
assigned locations.” Appellants’ Br. at 2. These activities take place off the clock. Thinking
this uncompensated requirement unfair, several corrections officers (and their union) filed this
lawsuit under the Fair Labor Standards Act and state law to recover overtime payments for these
activities. 29 U.S.C. §§ 206, 207; Mich. Comp. Laws §§ 408.414, .414a.
The lawsuit did not get far. As an arm of the State, the Michigan Department of
Corrections moved to dismiss the case for lack of jurisdiction on sovereign immunity grounds.
The corrections officers responded by adding a claim for declaratory relief against the
Department’s director, Daniel Heyns. That did not help. The district court dismissed the
officers’ FLSA claims anyway and declined to exercise supplemental jurisdiction over the state
law claims. See 28 U.S.C. § 1367(c)(3).
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 3
II.
Does Michigan’s constitutional immunity from suit prevent the officers from bringing
this claim for overtime wages under the FLSA? The district court answered yes, and so do we.
Debates over governmental power to regulate the wages and working conditions of
employees have taken many turns. At the beginning of the last century, the Supreme Court held
that the freedom-of-contract guarantees of the United States Constitution prohibited the States
from regulating the terms of employment relationships. See Lochner v. New York, 198 U.S. 45,
64 (1905); Coppage v. Kansas, 236 U.S. 1, 26 (1915). The Supreme Court began to dismantle
the Lochner era in 1917, when it upheld a state law capping working hours at ten hours per day,
Bunting v. Oregon, 243 U.S. 426, 438, and formally brought the period to an end in 1937, when
it upheld a state minimum-wage law, W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400.
The end of one era launched another, this time over the lines between federal and state
power in the area. Congress enacted the Fair Labor Standards Act in 1938, and it applied the
legislation only to private-sector workers. Pub. L. No. 75-718, § 3(d), 52 Stat. 1060, 1060. The
Supreme Court held that Congress’s powers under the Commerce Clause permitted it to regulate
the wages of private-sector workers, even workers whose employment activities and handiworks
did not cross state lines. United States v. Darby, 312 U.S. 100, 122–26 (1941).
In 1966, Congress began the process of extending the FLSA’s protections to city and
state workers. Pub. L. No. 89-601, § 102(b), 80 Stat. 830, 831. That extension of the law led to
nineteen years of litigation over a different federalism question: Did Congress violate the
reserved powers of the States under the Tenth Amendment by regulating core state functions,
namely the hours and wages of governmental workers? The Court first answered yes, Nat’l
League of Cities v. Usery, 426 U.S. 833, 852 (1976), but reversed course and answered no nine
years later, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 531 (1985).
Another eleven years after that, the debate took another Hegelian turn. At issue was not
the FLSA but a federal law regulating Indian gaming. Seminole Tribe v. Florida, 517 U.S. 44
(1996), held that Congress could not use its Article I Commerce Clause power to abrogate a
State’s constitutional immunity from money-damages lawsuits. Id. at 66. Only through its
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 4
Section 5 enforcement power under the Fourteenth Amendment, Seminole Tribe reasoned, could
Congress overcome that immunity from suit. Id. at 65. It fell to still another FLSA case to
clarify that the States’ immunity from suit arises from the Eleventh Amendment and background
sovereignty principles embedded in the Constitution and thus applies to money-damages actions
filed in federal and state court. Alden v. Maine, 527 U.S. 706, 712–13 (1999).
What we are left with is this: Congress may abrogate the States’ sovereign immunity
through its Section 5 power to enforce the Fourteenth Amendment, not through its Article I
enforcement power. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 78–80 (2000). Section 5
authorizes two types of legislation: laws that target actual violations of the Fourteenth
Amendment, United States v. Georgia, 546 U.S. 151, 159 (2006), and laws that go beyond the
protections of the Fourteenth Amendment so long as there is “a congruence and proportionality”
between the statutory rights and Fourteenth Amendment violations by the State. City of Boerne
v. Flores, 521 U.S. 507, 520 (1997). Any time Congress tries to abrogate the States’ immunity
from suit, the Court has added, the legislature must “unequivocally express[] its intent” to do so.
Kimel, 528 U.S. at 78.
Seventy-six years after Congress enacted the FLSA, the Court thus has clarified these
lines of federal and state power:
 The Commerce Clause empowers Congress, not just the States, to enact
national wage-and-hour laws.
 The Tenth Amendment does not prevent Congress from extending those laws
to state and local workers.
 The Commerce Clause does not allow Congress to abrogate the States’
constitutional immunity from lawsuits by individuals.
 Section 5 of the Fourteenth Amendment permits Congress to abrogate the
States’ immunity from suit and in the process to subject them to money-
damages actions to remedy actual violations of the Fourteenth Amendment or
to impose extra-constitutional requirements on the States that are “congruent
and proportional” to prior Fourteenth Amendment violations.
 Section 5 legislation not only must invoke an appropriate power, but it also
must unmistakably impose liability on the States.
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 5
Enter the Michigan corrections workers. In 2013, they sued the Department of
Corrections, an entity of the State under Michigan law, Mich. Comp. Laws § 791.201, to obtain
overtime wages under the FLSA. The Tenth Amendment as shown does not bar the lawsuit, and
the language of the FLSA satisfies the unequivocal-expression requirement. The law says that a
suit to enforce the FLSA “may be maintained against any . . . public agency,” which includes
“the government of a State” and “any agency of . . . a State.” 29 U.S.C. §§ 203(x), 216(b).
Whether Congress invoked a permissible source of power to abrogate Michigan’s constitutional
immunity from suit is another matter.
The corrections workers concede that the Commerce Clause will not do the job in light of
Alden and Seminole Tribe. And our court closed off another potential route several years ago,
holding that the FLSA is not a proportionate and congruent use of the enforcement power under
the Equal Protection Clause. Wilson-Jones v. Caviness, 99 F.3d 203, 209–11 (6th Cir. 1996).
The plaintiffs try another tack. They argue that these federal statutory rights—minimum
wages and overtime pay—amount to fundamental rights of national citizenship protected by the
Privileges or Immunities Clause of the Fourteenth Amendment. As they see it, a State’s
violations of the FLSA always amount to violations of the Fourteenth Amendment and thus
always justify the FLSA’s abrogation of sovereign immunity.
This argument faces two swift headwinds. In the first place, the theory makes the Court’s
three-quarters-of-a-century effort to strike a balance between delegated federal power and
reserved state power look like a precedential waste of time. If FLSA violations invariably
infringe Fourteenth Amendment rights, the Tenth Amendment debate between National League
of Cities and Garcia was for naught. The same is true about the Alden debate. Why worry about
power under the Commerce Clause if FLSA violations always amount to privileges-or-
immunities violations?
In the second place, the Privileges or Immunities Clause has made more headway in the
legal academy than it has in the courts as an independent source of Fourteenth Amendment
rights. Ever since the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), the Clause has
remained “[l]argely dormant” and has been overtaken by substantive due process as a source of
new rights. Johnson v. Bredesen, 624 F.3d 742, 751–52 (6th Cir. 2010). In its current
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incarnation, the Clause protects only “fundamental” rights of national citizenship. Slaughter-
House, 83 U.S. at 76. “[P]rivileges and immunities which are fundamental . . . have at all times
been enjoyed by citizens of the several States which compose this Union.” Id. (emphasis added);
see McDonald v. City of Chicago, 561 U.S. 742, 754 (2010).
The FLSA does not meet that test. Federal wage-and-hour protections first became law in
1938 through congressional legislation. Neither the vintage of the law nor its subject bespeaks a
fundamental right in the constitutional sense. No court to our knowledge has deemed wage-and-
hour protections fundamental under the Constitution, and we see no reason to be the first. A
State does not violate the Privileges or Immunities Clause by denying the minimum-wage or
overtime-pay requirement established by Congress in the FLSA.
In the absence of a past (or imminent future) violation of the Fourteenth Amendment,
Congress has no remedial power under Section 5 to authorize private lawsuits against the States.
And in the absence of permissible Section 5 legislation abrogating the State’s immunity from
suit, we lack jurisdiction to entertain these FLSA claims against the Department of Corrections.
The district court correctly dismissed these claims for lack of jurisdiction.
III.
May the federal courts, in the context of a private enforcement action, grant a declaratory
judgment under Ex parte Young against the Department’s director, Daniel Heyns, to address an
alleged ongoing violation of the FLSA? The district court answered no, and so do we.
The corrections workers invoke the Declaratory Judgment Act and Ex parte Young as a
way to overcome, or at least sidestep, Michigan’s immunity from suit. The Act authorizes
federal courts to declare the rights of a party in a case without granting any other relief.
28 U.S.C. § 2201. The point of the statute is to create a remedy for a preexisting right
enforceable in federal court. It does not provide “an independent basis for federal subject matter
jurisdiction.” Toledo v. Jackson, 485 F.3d 836, 839 (6th Cir. 2007); see Skelly Oil Co. v. Phillips
Petroleum Co., 339 U.S. 667, 671–72 (1950). Such an independent source of rights exists when,
at the time of the lawsuit, one of the parties already could bring a “coercive” action that Congress
authorized the federal courts to hear. See Medtronic, Inc. v. Mirowski Family Ventures, LLC,
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 7
134 S. Ct. 843, 848 (2014) (quotation omitted); Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 19 n.19, 20 (1983). A party may bring a “coercive action” only when a private
right of action authorizes the party to seek “an immediately enforceable remedy like money
damages or an injunction.” Skelly Oil, 339 U.S. at 671.
Three potential causes of action come to mind here: a right of action in the FLSA itself; a
right of action under § 1983; or a right of action under Ex parte Young. Not one of these
potential sources of rights, however, supplies the requisite jurisdiction for this action.
The FLSA. The FLSA does not provide a basis for this declaratory judgment action. The
statute, to be sure, provides a private right of action for compensatory damages to remedy wage-
and-hour violations. See 29 U.S.C. § 216(b). But that action exceeds the plaintiffs’ reach. They
sued Director Heyns in his official capacity, and an official-capacity lawsuit for money damages
counts as a lawsuit against the State. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
As just noted, we lack jurisdiction over money-damages lawsuits against a State to enforce the
FLSA. When a court lacks jurisdiction over the underlying right of action, it lacks jurisdiction
over a related declaratory judgment action as well. Skelly Oil, 339 U.S. at 671–72.
What about injunctive relief? That does not work either. The FLSA nowhere creates a
private right of action to enjoin wage-and-hour violations and, to the contrary, grants all such
authority to the Department of Labor. “The Administrator [of the Department of Labor’s Wage
and Hour Division],” the FLSA says, “shall bring all actions . . . to restrain violations of” its
minimum-wage and overtime provisions. 29 U.S.C. § 211(a) (emphasis added). By explicitly
delegating this task to the Department, Congress implicitly precluded private-party injunction
actions. See, e.g., Luder v. Endicott, 253 F.3d 1020, 1021 (7th Cir. 2001); United Food &
Commercial Workers Union, Local 1564 v. Albertson’s Inc., 207 F.3d 1193, 1197–98 (10th Cir.
2000); Powell v. Florida, 132 F.3d 677, 678–79 (11th Cir. 1998) (collecting other cases); see
also Lorillard v. Pons, 434 U.S. 575, 581 (1978). Absent a cognizable private-party money-
damages action or injunction action in the FLSA, the correction workers may not obtain a
freestanding remedy under the Declaratory Judgment Act.
What of the possibility of implying a cause of action for declaratory relief in the FLSA?
See Allen v. State Bd. of Elections, 393 U.S. 544, 554–57 (1969). A separate problem looms
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 8
here. Implied causes of action had their heyday in J.I. Case Co. v. Borak, 377 U.S. 426, 433–34
(1964), but today the Court presumes that, when a statute contains an enforcement mechanism
but does not expressly provide a private remedy, Congress did not mean to permit private
enforcement of the statute. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 287 (2001); see also
Barnes v. Gorman, 536 U.S. 181, 185–88 (2002); Cent. Bank of Denver, N.A. v. First Interstate
Bank of Denver, N.A., 511 U.S. 164, 173–77 (1994).
The takeaway from these and other cases is that legal remedies to enforce federal statutes
must stem from the legislatively enacted statute, not from court-created equitable enforcement
doctrines. The choice to provide “private rights of action to enforce federal law,” just like the
choice to enact “substantive federal law itself,” rests in Congress’s hands. Sandoval, 532 U.S. at
286. If a statute fails to provide a private remedy, the federal courts may not create what
Congress did not. See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148,
164–65 (2008).
Just so here. The FLSA permits only the Department of Labor to seek injunctions under
the statute. “The express provision of one method of enforcing a substantive rule suggests that
Congress intended to preclude others.” Sandoval, 532 U.S. at 290. Declaratory judgments “in
every practical sense operate” like injunctive relief, Great Lakes Dredge & Dock Co. v. Huffman,
319 U.S. 293, 299 (1943); see Green v. Mansour, 474 U.S. 64, 72–73 (1985), meaning that the
implication of a private declaratory judgment action would not only be in tension with the
statutory scheme but also would essentially contradict it. Confirming the similarity of the two
actions, the Court has long held that the Tax Injunction Act precludes declaratory relief even
though the language of the Act forbids only injunctions. California v. Grace Brethren Church,
457 U.S. 393, 408–11 (1982). Having provided authority only for the Department of Labor to
bring injunction actions, Congress did not permit courts to imply a private right to bring
injunction actions or their direct relation: a declaratory judgment right of action.
Section 1983. Section 1983 does not supply the requisite cause of action either. Maine v.
Thiboutot, 448 U.S. 1, (1980), it is true, permits private parties to enforce federal statutes through
§ 1983 in some settings. Id. at 4–6. But that is not true here, as recent decisions of the Supreme
Court confirm. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121 (2005); Gonzaga
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 9
Univ. v. Doe, 536 U.S. 273, 290 (2002); Blessing v. Freestone, 520 U.S. 329, 346–48 (1997);
Suter v. Artist M., 503 U.S. 347, 363 (1992).
Rancho Palos Verdes observed that no case in which the Supreme Court permitted
plaintiffs to use § 1983 to enforce statutory rights involved a statute with an express private
remedy. See 544 U.S. at 121. “The provision of an express, private means of redress in the
statute itself,” the Court said, “is ordinarily an indication that Congress did not intend to leave
open a more expansive remedy under § 1983.” Id. The FLSA as noted not only contains its own
remedial scheme but also precludes a remedy that § 1983 would permit: private-party
injunctions. Those two facts suggest § 1983 cannot supplement the private money-damages
cause of action already present in the FLSA. Accord Kendall v. City of Chesapeake, 174 F.3d
437, 443 (4th Cir. 1999).
Ex parte Young. Nor does Ex parte Young, 209 U.S. 123 (1908), provide the necessary
coercive action to permit declaratory relief. That case and others since allow federal courts to
enjoin state officers in their official capacity from prospectively violating a federal statute or the
Constitution. See Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011).
Official-capacity lawsuits normally amount to lawsuits against the State, see Toledo, 485 F.3d at
838, but Ex parte Young carves out an exception to that rule in order to safeguard the supremacy
of federal law, see Green, 474 U.S. at 68. The exception rests on the theory that, at least for
purposes of prospective relief, a state official who violates federal law is “stripped of his official
or representative character.” Stewart, 131 S. Ct. at 1638 (quotation omitted). Adding force to
this position, the corrections workers add, is the reality that a judgment about prospective rights
(e.g., a declaratory judgment), like a judgment prospectively compelling someone to do
something (e.g., an injunction), is available in a proper Ex parte Young action. Verizon Md. Inc.
v. Pub. Serv. Comm’n, 535 U.S. 635, 646 (2002).
But Ex parte Young does not apply here, and Seminole Tribe provides an initial
explanation why. When an Indian Tribe tried to invoke Ex parte Young to compel the Governor
of Florida to permit certain gaming activities on tribal land under the Indian Gaming Regulatory
Act, the Court prohibited it. 517 U.S. at 73. The Gaming Act, the Supreme Court explained,
circumscribed the remedies available to Tribes aggrieved by state non-compliance with the
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 10
federal law. Id. at 50, 74. A court could order a non-compliant State to conclude a compact
within 60 days; if that did not work, the court could appoint a mediator; and if that did not work,
the Secretary of the Interior could promulgate gaming regulations binding on the State. Id. at 50.
What the Tribe wanted was a different remedy—an order forcing the State’s hand immediately—
but one that the text of the Gaming Act did not offer. Given the Act’s “carefully crafted and
intricate remedial scheme,” the Court inferred that Congress did not mean to expose state
officials to “the full remedial powers of a federal court” and thus “refused to supplement that
scheme” with Ex parte Young actions. Id. at 73–74, 75.
That is not normally how plaintiffs lose Ex parte Young claims. When courts dismiss
such actions, it usually is because the relief sought, though styled as prospective injunctive relief
against a state official, in reality runs against the State or in reality is retroactive and monetary in
nature. See, e.g., Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281–82 (1997). Seminole Tribe is
different. Not unlike the private-right-of-action and § 1983 cases, Seminole Tribe refused to
evade the statute’s private remedy with a remedy not mentioned in the statute. Anyone seeking
to enforce the Gaming Act in other words had to use the right of action in the statute. But that
right of action did not provide for injunctive relief, leaving the Tribe empty-handed. Seminole
Tribe confirms that, even in a case involving relief sought under Ex parte Young, courts must
determine whether Congress intended private parties to enforce the statute by private injunction
or for that matter by a declaratory judgment. Ex parte Young by itself does not create such a
cause of action. Put another way, Ex parte Young provides a path around sovereign immunity if
the plaintiff already has a cause of action from somewhere else. See Ind. Prot. & Advocacy
Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d 365, 392–93 (7th Cir. 2010) (en banc)
(Easterbrook, J., dissenting on other grounds).
Two recent implied-cause-of-action cases confirm this understanding of Seminole Tribe
and the broader principles that undergird it. In Sandoval and Brunner v. Ohio Republican Party,
555 U.S. 5 (2008), the plaintiffs asked the Court to enjoin a state official from violating a federal
statute. In both cases, the Court rejected the plaintiffs’ lawsuit because no private cause of action
supported it. See Sandoval, 532 U.S. at 287; Brunner, 555 U.S. at 6. Why wasn’t relief under
Ex parte Young available? The plaintiffs had sued a state officer in his official capacity after all,
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 11
and they sought only prospective injunctive relief. If those were the only two requirements
needed to trigger Ex parte Young, the Court’s dismissals in Sandoval and Brunner make no
sense. Seminole Tribe, however, makes sense of them both. As in Seminole Tribe, Sandoval and
Brunner each looked to the underlying statute to determine how Congress intended it to be
enforced. Finding no express private right of action, Sandoval and Brunner concluded that
Congress did not intend to permit private enforcement of the statute, whether through an implied
right of action, § 1983, or Ex parte Young.
This explains why the Court allows litigants to use Ex parte Young to sue a state official
to enforce a federal statute when the statute contains a private cause of action. See Stewart,
131 S. Ct. at 1636–37; Verizon Md., 535 U.S. at 641. Yet when the allegedly violated statute
contains no such private cause of action, only once to our knowledge has the Court permitted
relief under Ex parte Young. See Quern v. Jordan, 440 U.S. 332 (1979). And Quern supports
our reading of the Ex Parte Young cases. The plaintiffs in Quern did have a cause of action, one
permissibly created by a different statute: § 1983. See Edelman v. Jordan, 415 U.S. 651, 675
(1974). They might not have needed one anyway. The relief in Quern was the sending of a
notice to members of the plaintiff class, which is arguably procedural, not remedial, and thus
arguably authorized by the Rules Enabling Act. See 440 U.S. at 334 n.3; Shady Grove
Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408–11 (2010); Fed. R. Civ. P. 23.
None of this diminishes the role of Ex parte Young. It just establishes that the doctrine
does not supply a right of action by itself. The doctrine applies when the requisite right of action
exists and it remains a potent defense, particularly in preemption cases. Private parties who act
in compliance with federal law may use Ex parte Young as a shield against the enforcement of
contrary (and thus preempted) state laws. See Verizon Md., 535 U.S. at 645; Shaw v. Delta Air
Lines, Inc., 463 U.S. 85, 96 n.14 (1983). That makes sense, because an existing cause of action
for that relief exists: an equitable anti-suit injunction. As classically understood, anti-suit
injunctions permit potential defendants in legal actions to raise in equity a defense available at
law. John Harrison, Ex parte Young, 60 Stan. L. Rev. 989, 997–99 (2008). That’s what
happened in Ex parte Young: Several railroad companies asserted in equity the Fourteenth
Amendment’s Due Process Clause as a defense against future indictment for violating
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Minnesota’s mandatory railroad rates. See 209 U.S. at 130; Stewart, 131 S. Ct. at 1642
(Kennedy, J., concurring). But matters differ when litigants wield Ex parte Young as a cause-of-
action-creating sword. In that setting—today’s setting—the State is not threatening to sue
anyone, precluding an anti-suit injunction from doing the work. What is required is that
Congress created a cause of action for injunctive relief in the statute or otherwise made § 1983
available. This follows from the longstanding notion that courts of equity cannot “create a
remedy in violation of law, or even without the authority of law.” Rees v. City of Watertown, 86
U.S. (19 Wall.) 107, 122 (1874).
Nor does Ex parte Young’s grounding in the supremacy of federal law distinguish it from
the § 1983 or implied-right-of-action cases. The Supremacy Clause is “not a source of any
federal rights.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979); see Dennis
v. Higgins, 498 U.S. 439, 450 (1991). It is a conflict-of-laws provision that “declares a truth[]
which flows immediately and necessarily from the institution of a federal government.” The
Federalist, No. 33. “[S]aying that there is a private right of action under the Supremacy Clause
would substantively change the federal rule established by Congress” in the statute and would
make the § 1983 and implied-cause-of-action cases “serve no purpose.” Douglas v. Indep.
Living Ctr. of S. Cal., Inc., 132 S. Ct. 1204, 1212–13 (2012) (Roberts, C.J., dissenting).
All in all, neither the FLSA nor § 1983 nor Ex parte Young provides the private right of
action the officers need to obtain declaratory relief against Director Heyns. This stops their
declaratory judgment action in its tracks. No private right of action means no underlying
lawsuit. No underlying lawsuit means no jurisdiction. Skelly Oil, 339 U.S. at 671–72. And no
jurisdiction means no declaratory relief.
The officers offer two responses, neither of which is persuasive. They insist that the
relevant holding in Seminole Tribe was narrow: Only “detailed,” “carefully crafted,” and
“intricate remedial scheme[s]” show that Congress meant to remove Ex parte Young from the
arsenal of a future claimant. 517 U.S. at 73–74. That is not the FLSA, the plaintiffs add,
because “suits by private plaintiff[s]” against employers for wage-and-hour violations “are
themselves one of the main components of the remedial provisions of the FLSA.” Appellants’
Br. at 15 (emphasis removed). But this interpretation of Seminole Tribe makes too much of the
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 13
procedures at issue in the case and too little of what comes after the decision. The detailed
procedures in Seminole Tribe were not important in and of themselves. Rather, as the First
Circuit has put the point, “The Court read the remedial limitations imposed by the [Gaming Act]
merely as a clue from which to deduce congressional intent.” Rosie D. ex rel. John D. v. Swift,
310 F.3d 230, 235 (1st Cir. 2002); see Stewart, 131 S. Ct. at 1639 n.3; Verizon Md., 535 U.S. at
647. Seminole Tribe’s focus in 1996 on the meaning of that statute foreshadowed the Court’s
later § 1983 and implied-right-of-action cases that also focus on congressional intent in
discerning the enforcement options created by a statute. By leaving the permissible enforcement
mechanisms that Congress has provided in a statute where they are rather than by supplementing
them with other enforcement actions, the Court has respected the give-and-take of the legislative
process and has left the invariable compromises in such laws where the Court finds them. See,
e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93–94 (2002); Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 29 (1989); see also John F. Manning, Foreward: The Means of
Constitutional Power, 128 Harv. L. Rev. 1, 22–30 (2014). Just as Seminole Tribe held that
Congress precluded the federal courts from creating extra-statutory remedies in the Indian
Gaming Act, we hold the same with respect to the FLSA.
The plaintiffs separately assert that cases from our circuit and others support their
position. In Wilson-Jones v. Caviness, it is true, we suggested that a state employee could use Ex
parte Young to enjoin a state officer from violating the FLSA. 99 F.3d at 211. But that one
sentence of dictum says only that the Eleventh Amendment does not bar injunctive suits against
state officers to enforce the FLSA. It does not address whether the statute itself forecloses such
actions. When addressing the statutory question, other circuits have agreed with our approach.
See Mills v. Maine, 118 F.3d 37, 55 n.7 (1st Cir. 1997); Aaron v. Kansas, 115 F.3d 813, 818 n.4
(10th Cir. 1997). None to our knowledge has disagreed. The plaintiffs also point to Diaz v.
Michigan Department of Corrections, 703 F.3d 956 (6th Cir. 2013), where we applied Ex parte
Young to a state employee’s lawsuit seeking reinstatement under the Family Medical Leave Act.
Id. at 965–66. Yet that statute expressly provides for such private-party relief, see 29 U.S.C.
§ 2617(a)(1)(B), while this statute provides no permissible private right of action available here.
The final case invoked by the plaintiffs is Balgowan v. New Jersey, 115 F.3d 214 (3d Cir. 1997).
The Third Circuit permitted a state employee to seek a declaration of FLSA rights not unlike the
No. 14-1028 Mich. Corr. Org. v. Mich. Dep’t of Corr. Page 14
one the plaintiffs seek here. But the court’s two-paragraph discussion did not consider the
Sandoval requirement that Congress create a private right of action, the Seminole Tribe
application of the rule, or the complex jurisdictional issues surrounding declaratory judgments.
IV.
In addition to bringing claims under the FLSA, the plaintiffs brought claims under
Michigan law. See Mich. Comp. Laws §§ 408.414, .414a. The district court “decline[d] to
exercise supplemental jurisdiction” over those claims because it had dismissed all of the
plaintiffs’ federal claims. R. 38 at 4; see 28 U.S.C. § 1367(c)(3). We review that decision for an
abuse of discretion. Bright v. Gallia Cnty., 753 F.3d 639, 659 (6th Cir. 2014). Nothing of the
sort happened here when the district court dismissed the state law claims without prejudice and
permitted them to be refiled in state court. See Fed. R. Civ. P. 41(b); Bright, 753 F.3d at 659.
V.
For these reasons, we affirm.