The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiff brings this claim under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). She alleges that defendants, an executive agency of the Commonwealth of Puerto Rico and supervisory employees of that agency, violated FLSA by 1) failing to pay her for all hours that she worked for defendants; 2) failing to pay her overtime wages for work over 40 hours per week; and 3) retaliating against her by terminating her employment when she complained about defendants' failure to pay proper wages.
Defendants have moved to dismiss under Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6), arguing that the Puerto Rico Federal Affairs Administration is immune from this suit under principles of sovereign immunity and that retaliation protection is not available under FLSA for plaintiffs who have made internal complaints about alleged violations of FLSA. For the reasons set forth below, defendants' motion must be denied.
Defendants claim that this court is without jurisdiction to hear this complaint because the PRFAA, an agency of the Commonwealth of Puerto Rico, is immune from private suits for damages under the doctrine of sovereign immunity.*fn1
Defendants also assert that employees of the agency enjoy derivative immunity. (Obviously, if the PRFAA is not immune, which it is not, its employees also lack immunity.)
FLSA, as amended in 1974, permits private suits for monetary damages against "any employer (including a public agency) in any Federal or State court...." 29 U.S.C. § 216(b). "Public agency" is defined to mean: "the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Rate Commission), a State, or a political subdivision of a State; or any interstate governmental agency." 29 U.S.C. § 203(x). "State" is defined to mean: "any State of the United States or the District of Columbia or any Territory or possession of the United States." 29 U.S.C. § 203(c). It is not disputed that Puerto Rico is a territory. See generally Harris v. Rosario, 446 U.S. 651, 651-52 (1980) (finding Congress has power over Puerto Rico under the Territory Clause of the Constitution, U.S. Constit. art. IV, § 3, cl. 2); Americana of P.R., Inc. v. Kaplus, 368 F.2d 431, 433-36 (3rd Cir. 1966), cert. denied, 386 U.S. 943 (1967) (providing extensive analysis of Puerto Rico's position under the Territory Clause). The current FLSA language was written in 1974 specifically "to make clear the right of individuals employed by state and local governments and political subdivisions to bring private actions to enforce their rights and recover back wages under [FLSA]" in light of judicial limitations on this right. H.R. Rep. 93-913, at 41 (1974), reprinted in 1974 U.S.C.C.A.N. 2811, 2850.
In a series of recent sovereign immunity cases beginning with Seminole Tribe v. Florida, 517 U.S. 44 (1996), the scope and underpinnings of state sovereign immunity and the Eleventh Amendment have shifted dramatically, radically altering*fn2 prior understandings of the ability of private parties to sue states for monetary damages under federal law. As part of this shift, a number of Circuit courts have ruled that states are immune from wage and overtime suits in federal court under 29 U.S.C. § 216(b). See, e.g., Mills v. Maine, 118 F.3d 37, 41-50 (1st Cir. 1997); Raper v. Iowa, 115 F.3d 623 (8th Cir. 1997); Aaron v. Kansas, 115 F.3d 815 (10th Cir. 1997). It seems a reasonable prediction that the D.C. Circuit would follow this lead, especially in light of Alden v. Maine, 527 U.S. 706 (1999), holding Maine immune from an overtime suit in state court under 29 U.S.C. § 216(b).*fn3
The question, then, is whether Puerto Rico enjoys the same sovereign immunity from suits under federal law as the states. The most recent Supreme Court opinion to address the issue explicitly withheld decision. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 141 n.1 (1993) (noting that First Circuit law that Puerto Rico is a state for Eleventh Amendment purposes had not been challenged and thus declining to rule on the issue). Defendants point out, correctly, that virtually every court that has addressed the issue has found Puerto Rico immune from suit in parallel with the states. With the notable exceptions discussed below, however, the cases declaring this immunity have either simply assumed the existence of immunity or ruled without discussion, citing to a somewhat tangled web of other cases that also provide no discussion. And none of them addresses the specific concerns that arise here, where it is Congress, and not a state or local government, that has created a cause of action that may impose liability upon Puerto Rico or one of its agencies. See, e.g., Ortiz-Feliciano v. Toledo-Davila, 175 F.3d 37, 29 (1st Cir. 1999) (summary citation to Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth., 991 F.2d 935 (1st Cir. 1993)); Metcalf & Eddy, Inc., at 939 n.3 (citation with no discussion to four other cases that also offer no substantial discussion of the point); Ezratty v. Puerto Rico, 648 F.2d 770 n.7 (1st Cir. 1981) (Breyer, J.) (citation with no discussion to two other cases); Salkin v. Puerto Rico, 408 F.2d 682, 683 (1st Cir. 1969) (assumption that Puerto Rico is covered by "the well established federal deference to the right of a sovereign power to withhold all consent to suit"); Felix v. Haggerty, No. 80-1075, 1980 WL 326, at *1 (D.D.C. Oct. 21, 1980) (summary citation to two other cases).
At the bottom of this pile of authorities lies a 1913 Supreme Court case, People of Porto Rico v. Rosaly y Castillo, 227 U.S. 270. In People of Porto Rico, the Court noted that "aside from the existence of some exception, the government which [Congress in] the organic act established in Porto Rico is of such nature as to come within the general rule exempting a government sovereign in its attributes from being sued without its consent." Id. at 273. If Congress had allowed Puerto Rico to be sued, the Court went on to conclude, such suits would be permissible. Id. at 274-77.
What Congress giveth, Congress may take away, fully consistent with the Territory Clause of the Constitution: "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." U.S. Constit. art. IV, § 3, cl. 2. See also Harris, 446 U.S. 651, 651-52 (1980) (holding that under the Territory Clause, Congress "may treat Puerto Rico differently from States so long as there is a rational basis for its actions"). There have been many changes since 1913 in Puerto Rico's status and the doctrine of sovereign immunity. However, defendants do not dispute the proposition that Congress has the power to abrogate any sovereign immunity that Puerto Rico may possess with regard to a Congressionally-created cause of action such as FLSA, and that it exercised that power when it amended the FLSA in 1974.
This understanding of Puerto Rico's sovereign immunity as being different from that of the states, and subject to Congressional limitation, is fully consistent with the Supreme Court's recent discussions on the nature of state sovereign immunity in Alden v. Maine:
[A]s the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional amendments.
527 U.S. at 713. Given Puerto Rico's history as a territory, and not a state, Puerto Rico cannot be said to have constitutional sovereign immunity. Thus there is no reason to assume that whatever sovereign immunity it might possess is parallel to that of the states or that it ...