In case we're going to hear is Martin versus Wood and Mr. Rob whenever you're ready we'll hear from you. May please the Court. I'm Sydney Rob. I'm a senior assistant for Attorney General Mark Early for the Commonwealth of Virginia and today. I'm appearing for Jack Wood, the former hospital director at Eastern State Hospital and Malagwa's Jones, a supervisor of nurses at Eastern State Hospital. This appeal taken from a decision of the District Court in Newport News is important to the Commonwealth because it addresses for the first time the question of whether or not the umbrella, if you will, of sovereign immunity should be extended to supervisors, to persons making workplace decisions as part of their official responsibilities, where there has been allegations by the plaintiff of violations of the Fair Labor Standards Act. In this case, the supervisor in question, Malagwa's Jones, had refused nurse, registered nurse, Martin's request for overtime. Martin had said that she's been working nice and she's been working evenings and weekends. And Jones did not think that she was eligible and would not grant overtime. And the allegations are that Jones went to others. I'm sorry, Martin went to others, requested it. The allegations are that she continued to work overtime. The allegations are that director Wood, who was hospital director, also condoned or affirmed the denial of overtime benefits. We believe that the court's decision in Lizzie versus Alexander, the 2001 decision, should be controlling here. The Lizzie decision was, of course, under the Family Medical Leave Act. And the Lizzie decision, though, is in two distinct parts. The first part of the Lizzie decision had to do with whether or not the Washington metropolitan area transit authority would enjoy the same state immunity from an FMLA claim as would be enjoyed by states such as Virginia and Maryland. And the court analyzed that a creation by compact of the states would be entitled to that sovereign immunity. Excuse me
. I did have a factual question. Is there, and I apologize if I just missed it, is there evidence of any official policy on overtime compensation in the record? And I'm particularly interested in something showing whether or not individual supervisors have discretion. What discretion they have in terms of implementing and overtime. No, because this came on the complaint, and it was a motion to dismiss it. Under 12B1, the record is not. Okay. Does Dr. Tanya. Thank you. In the Alexander case, the second part, Lizzie versus Alexander, was a discussion of the allowance of the individual shelter from liability, the 11th Amendment shelter for Alexander and the other supervisors. Lizzie was a mechanic working on wheelchair lifts. And he made a claim for his absence due to sickness that his supervisor, Alexander and the other supervisors, were skeptical of. And they actually launched the investigation against Lizzie. And they terminated him on the grounds of his misrepresentation with respect to his sickness. And then Lizzie brought the cause of action not only against Womata, the employer, the committee claimed that they were liable as well for violations of the family medical leave act. The four circuits said in the second part of Lizzie that we have allegations here unclear as to whether or not Lizzie is claiming that he's suing in a personal or official capacity, but it really doesn't matter. Because essentially the allegations of what Alexander did in terms of his consideration of Lizzie's matter were inextricably tied to the workplace. They were workplace decisions. There was no indication of any personal motive
. There was no indication of anything outside of the workplace. There was no indication of ultra-virus action getting back to our case. Our case simply involves analogous facts, but the district court in consideration of this request for disfessal essentially minimizes the impact of Lizzie. Court didn't imply that it distinguished its aim for one. It was an FMLA case. And number two, there were district court decisions that had it undermined it. The district court decisions all involved entities that were not entitled to 11th Amendment Immunity, particularly cited the Loudoun County. We don't have to go that far because it's hard for a district court decision to undermine the four circuit decision which controls the district court. I agree. When she discussed Lizzie, she did quote, how did she distinguish between the FMLA and the FMLA? I don't think that she did. I think that she recognized that the statutory language employer, including an agent of the employer, is the same. The FMLA was modeled after the older FLSA. So she didn't distinguish between the two. She just said that the Lizzie was an FMLA decision, not an FLSA. But that's not an important distinction because the thrust should be when 11th Amendment Immunity should be afforded to protect a supervisor working for the state, rather than what the statutory obligation might be. We wouldn't be here in this appeal if it had not involved the constitutional issue. That's how of sovereign immunity. That's how we get the right under Puerto Rico Aguaduct to appeal. She did quote Judge Legs' language in Coleman versus Maron Court of Appeals
. And of course, that's a decision that went to this court, considering the FMLA. And then went to the Supreme Court, ultimately holding where the individual is caring for himself, that the 11th Amendment Immunity applies, rather than under the Hibbs case and the other cases, that FMLA trumps 11th Amendment Immunity where there's care for others. But she quotes the clearly Coleman case for the proposition that individual state defendants in official capacity claims absent clear facts to the contrary that would expose them to personal liability. She said that the register court said that she had clear facts because the plaintiff had alleged that this was personal. And I would submit that she overlooked the district court, the Lizzie requirement, that the actions must be inextricably intertwined. If they are inextricably intertwined with workplace actions, then you do not place the supervisor outside of the umbrella. What's your counter argument to the district court's conclusion that the complaint alleges significant intentional misconduct committed by the appellants? It's still workplace misconduct. Lizzie says that the defendants... But surely that sweeps too broadly with any activity that a supervisor engages in is not going to be within the scope of employment, just because it's the supervisor and it takes place in the work of... No, if the supervisor and the supervisor had met on the soccer field and had a brawl concerning their daughter's game, if the supervisor had an early onimus or prejudice against the employee because of the domestic relations dispute that they had, if the supervisor had acted ultravirus, if the supervisor had acted out of a response that was not linked to the workplace, what we're trying to do with the 11th Amendment immunity is allow people to take these positions of responsibility without fear of a very broad liability for violations of these statutes. That's the purpose of extending immunity to them. But it's this juncture in the procedural posture that we're in, we don't know if the supervisor was acting within the scope of its authority, because we don't have a... But the facts are exactly as they were in Lizzie, Alex, I have
... Well, not exactly. I mean, the defendants here are sued in their individual capacities. But the four-circuit said in Lizzie that the form of the suit is not what counts. What counts is whether or not... What's the plaintiffs' substance, or the real... ...the substance rather than the form, yes. It says I acted directly and indirectly in the interest of Eastern State Hospital in relation to hours of work and payment of wages. Eastern State Hospital employees, including Martin, and was the employer of Martin, the meaning of that, I suppose. In effect, the plaintiff conceded.
.. Well, he's alleging that it's... He's alleging that they're acting within the scope of their duties, not outside the scope of their duties. And then when they charge these people, they say, unlawfully, willfully, deliberately failed and refused to include that work time in the computation of weekly wages. Again, bringing it to the decision that Malogra Strones had to make as to whether or not this registered nurse who was claiming her to hours would be entitled to it. So actually, in Lizzie Alexander, Mr. Alexander took much more hostile steps toward Mr. Lizzie. He investigated his claim of sickness, and he fired him because he didn't believe his claim of sickness. So... And I also cited in the reply brief several other cases, both from the district courts and the Montgomery Marlin case from this court, which followed later in the same year. And none of those cases saw any activity by the supervisor that took the supervisor outside the workplace that indicated something which factually would sustain personal liability. Since, probably, we certainly cannot have district judges taking occlusory remarks such as capacity, individual capacity. We have to have facts plaid which would take it outside of this inextricably tied to the work criteria. And the brown case, I cite, the Williams versus Dwarfster counties case that I cite
. These are all additional decisions under the FMLA in which it was simply a workplace decision. And that's what I think we have here, a workplace decision. And in the district court's efforts to place the burden, if you will. And in her discussion of whether this should be 12, 1 or 12, 12, 12 B, 1 or 12 B6, the district seemed to overlook the substantive criteria set forth in Lizzie that only where she could find work place... She could find activity not inextricably tied to workplace decision making. That's all that she has here. So the matter at least should be vacated and perhaps should be remanded to the district court who might make a decision whether or not leave to amend would be viable or futile. But... Why would you concede that? Why would I concede that? No, it's... Because it hasn't reached the maris. It hasn't reached the maris. The discussions of her complaint basically says, I came to work a little early, I worked through breaks sometimes, and I worked a little bit afterwards. And I wanted over time and they refused to give it to me
. And they basically said that it was a reflection of her inefficiencies. And they said this is a direct and indirect... The interest of the hospital in relation to hours of payment of wages under the FLSA. In that respect they had no other allegations substantively in the complaint. That's the complaint. It's a... It's a... Fair Labor Standards Act violation of refusing to pay over 40 hours. Time and a half. I don't understand why you say we ought to concede and find more facts. Well, I don't concede that we should. I do.
.. You said you would concede that this is not a maris decision. Yeah, you said you would concede that this is not a maris decision. And I... I just leave that to the list of the court. It was not a confession. You were just saying, if we should go totally off the reservation and remand it, then we should... Nicely. I'm pretty incorrect. If there's anything further, I'll reserve the rest of my time. Thank you. All right, Mr. Rob. Excuse me, Mr. Hogue
. Yes, Your Honor. Hogue. Hogue. Thank you. There's never been anybody who's ever pronounced my name correctly on the first attempt. Well, you could drop a few of the letters and get it. My answer... Well, my ancestors indeed should have done that. Maybe I should take care of that business. No, not necessarily. May I please the court? I'm Ray Hogue, and I'm representing Laura Martin here today in this Fair Labor Standards Act matter. This case involves several core questions, most or all of which are actually easier than they are portrayed by the Commonwealth. The first question is, is an FMLA case controlling in a Fair Labor Standards Act case? You're going to tell us why it shouldn't be. You're just outlining. I'm outlining, but yes, Your Honor. But my answer is it may give guidance, but the Family and Medical Leav Act was in some ways modeled after the Fair Labor Standards Act, but in other ways, it's not identical. So your argument is basically
... You're making an argument that Lizzy is not awful because they act so different. I'm arguing that Lizzy is not controlling because the Commonwealth has argued that Lizzy is controlling. It's not. It does, in our view, provide some guidance, but it's not controlling because it's not a Fair Labor Standards Act case. But I will address Lizzy because it does bear upon the court's view indirectly because the FLSA and the FMLA bear some similarities. So the first question is, in our view, is whether... Lizzy basically, it doesn't depend on the statute, it depends on... It was an employer employee relationship case, last is this one, but it said, who is the real party in interest to apply that test, isn't it? Lizzy applied that test in the Family and Medical Leav Act. I understand. And the question is, if we were to apply that test here, you'd get the same result as Lizzy, God, wouldn't you? If this is actually clearer than Lizzy. If you apply that... if the test is applied properly here, applying the same analysis as Lizzy, then the court properly denied the motion to dismiss for reasons which I'll try to explain. All right. The second question I think that's important to focus on is the simple question of can supervisors be individually liable under the Fair Labor Standards Act generally? And everybody, I think, agrees, yes. That's Horn Book Law that supervisors can be liable. Now, the next question is, do supervisors get 11th Amendment immunity if they are really sued in their solely in their individual capacity? And we respectfully submit that the law is clear that if it's really an individual sued against an individual, they do not get 11th Amendment immunity. So how is this really an individual sued against an individual other than the fact that the complaint says individual capacity? Because as Lizzy pointed out to some extent in several other cases, I'll describe briefly explain, you look at the complaint to see the substance of what the complaint is saying. If the complaint, maybe the best thing I can do is by way of an example. In the... Well, we look at this complaint. This complaint basically says that these people worked more than 40 hours by coming to work a little early, 20 minutes early, maybe working through breaks, and by working after work, staying after work for the transition to the next group. And that the supervisors, several of them, they went to them and said they want overtime, and they were denied overtime, and that they were deliberately denied overtime. And that's it. In violation of the 40-hour work week under the FSLA. Now, that's the role that these individuals played on behalf of, and it states this to, the interest of Eastern State Hospital in relation to ours and work in payment of wages. That is what they did, but the factual context is that those individuals were..
. if the test is applied properly here, applying the same analysis as Lizzy, then the court properly denied the motion to dismiss for reasons which I'll try to explain. All right. The second question I think that's important to focus on is the simple question of can supervisors be individually liable under the Fair Labor Standards Act generally? And everybody, I think, agrees, yes. That's Horn Book Law that supervisors can be liable. Now, the next question is, do supervisors get 11th Amendment immunity if they are really sued in their solely in their individual capacity? And we respectfully submit that the law is clear that if it's really an individual sued against an individual, they do not get 11th Amendment immunity. So how is this really an individual sued against an individual other than the fact that the complaint says individual capacity? Because as Lizzy pointed out to some extent in several other cases, I'll describe briefly explain, you look at the complaint to see the substance of what the complaint is saying. If the complaint, maybe the best thing I can do is by way of an example. In the... Well, we look at this complaint. This complaint basically says that these people worked more than 40 hours by coming to work a little early, 20 minutes early, maybe working through breaks, and by working after work, staying after work for the transition to the next group. And that the supervisors, several of them, they went to them and said they want overtime, and they were denied overtime, and that they were deliberately denied overtime. And that's it. In violation of the 40-hour work week under the FSLA. Now, that's the role that these individuals played on behalf of, and it states this to, the interest of Eastern State Hospital in relation to ours and work in payment of wages. That is what they did, but the factual context is that those individuals were... They were making their own decisions, and the fact that it happens in the workplace, we respectfully submit, is not the end of the question as the Commonwealth states. Oh, it's a payment of wages, though. They made decisions about what the hospital, the state institution was going to pay these people in wages. And they were in a supervisory role, and they made those decisions, and they made them deliberately intentionally, because that's what they intended, and they basically concluded, according to the complaint, that these people worked through their breaks and things because they were inefficient, and should be able to do it in 40 hours. Now, they may be wrong, and you may be entitled to 40 hours, but there can be no question that these individuals were acting, other than as agents of the hospital on behalf of the hospital's financial condition and payment of wages. That's where I think we respectfully disagree, Your Honor. I've got the complaint right here. You can point it to me. Well, the factual context is that the Commonwealth of Virginia certainly has a policy of saying, pay overtime when it's due. And these people... Where's it say that? Well, perhaps I should have pled that, but I think... Well, even if you've pled that, they're going to say, when it's due, the supervisor said they're not due because they're inefficient, and he may be wrong. And I don't even..
. They were making their own decisions, and the fact that it happens in the workplace, we respectfully submit, is not the end of the question as the Commonwealth states. Oh, it's a payment of wages, though. They made decisions about what the hospital, the state institution was going to pay these people in wages. And they were in a supervisory role, and they made those decisions, and they made them deliberately intentionally, because that's what they intended, and they basically concluded, according to the complaint, that these people worked through their breaks and things because they were inefficient, and should be able to do it in 40 hours. Now, they may be wrong, and you may be entitled to 40 hours, but there can be no question that these individuals were acting, other than as agents of the hospital on behalf of the hospital's financial condition and payment of wages. That's where I think we respectfully disagree, Your Honor. I've got the complaint right here. You can point it to me. Well, the factual context is that the Commonwealth of Virginia certainly has a policy of saying, pay overtime when it's due. And these people... Where's it say that? Well, perhaps I should have pled that, but I think... Well, even if you've pled that, they're going to say, when it's due, the supervisor said they're not due because they're inefficient, and he may be wrong. And I don't even... I'm still acting on behalf of the hospital in the payment of wages, and your claim is under the FMLA, which is the payment of wages beyond 40 hours. This is a straight on FMLA case, and the employees were acting in discharge, their duties under that, may be wrongfully. But the question then is, why isn't that just making a Lizzy claim? Because, and I apologize, I do not have the full complaint in front of me, but I think if you look at the complaint... There are a few pages. It's right here. Well, I believe the complaint alleges, Your Honor, that the defendants knew that they were violating the Fair Labor Standards Act and did it anyway. No, it says they deliberately failed to pay the wages to include the work time in the computation of wages. That was a deliberate act. It wasn't accidental. They intended to deny them that, and they took the position that they would not authorize, because it was treated as a reflection of inefficiency or incompetence. In paragraph 45 says that Wood did it as a part of his job duties and responsibilities at the hospital. And he did, but that's not the test. If you look at Lizzy and you look at the other cases, the question is whether, is not whether the person in question did this as part of their job duties, because if that were the test, then there wouldn't even be a question, because every time you have one of these cases, somebody's doing this as part of their job. The question is whether, who's the real party in interest under Lizzy, and the real party in interest is based on whose fisc is being involved, who's going to pay it, what are the terms and conditions of employment going to be changed, and all of those questions are directly on here. If the Commonwealth had to pay the Judgment for the Fair Labor Standards Act, then the Commonwealth would be the real party in interest. One of the things that is articulated is the distinction is that the relief sought here, is declaratory relief and damages. Is that correct? Right
. I'm still acting on behalf of the hospital in the payment of wages, and your claim is under the FMLA, which is the payment of wages beyond 40 hours. This is a straight on FMLA case, and the employees were acting in discharge, their duties under that, may be wrongfully. But the question then is, why isn't that just making a Lizzy claim? Because, and I apologize, I do not have the full complaint in front of me, but I think if you look at the complaint... There are a few pages. It's right here. Well, I believe the complaint alleges, Your Honor, that the defendants knew that they were violating the Fair Labor Standards Act and did it anyway. No, it says they deliberately failed to pay the wages to include the work time in the computation of wages. That was a deliberate act. It wasn't accidental. They intended to deny them that, and they took the position that they would not authorize, because it was treated as a reflection of inefficiency or incompetence. In paragraph 45 says that Wood did it as a part of his job duties and responsibilities at the hospital. And he did, but that's not the test. If you look at Lizzy and you look at the other cases, the question is whether, is not whether the person in question did this as part of their job duties, because if that were the test, then there wouldn't even be a question, because every time you have one of these cases, somebody's doing this as part of their job. The question is whether, who's the real party in interest under Lizzy, and the real party in interest is based on whose fisc is being involved, who's going to pay it, what are the terms and conditions of employment going to be changed, and all of those questions are directly on here. If the Commonwealth had to pay the Judgment for the Fair Labor Standards Act, then the Commonwealth would be the real party in interest. One of the things that is articulated is the distinction is that the relief sought here, is declaratory relief and damages. Is that correct? Right. What would you anticipate declaratory relief against Wood, wood and system? Simply that wood and malagros, each of them violated the Fair Labor Standards Act and are the damages. If the declaratory relief made to some extent be so clear for us. But back to your honor's point, if the question is, who is the real party in interest? That's the question. And if Jones, if the defendants were applying a compensation policy, for example, which violated the Fair Labor Standards Act, then the state would obviously be the real party in interest. That's Henley vs. Simpson, decided in the brief. We don't need to speculate on what it is because the complaint says it. They acted directly and indirectly in the interest of Eastern State Hospital in relation to the hours of work and payment of wages to Eastern State Hospital employees, including Mark and was an employer of Mark within the meaning of the Fair Labor Standards Act. They're acting in the interest of the hospital in connection with his payment of wages. But that doesn't make the Commonwealth the real party. The real party in interest because the Commonwealth has no dog in the hospital, the real party in interest. No. The hospital has no dog in this fight. There is no way that there is nothing that the hospital stands to lose or the Commonwealth stands to lose by a judgment against these two individuals. That's why the Commonwealth and the hospital are not the real party in the United States. You don't think that after a verdict in your favor in this case, they're going to start paying the overtime of all the nurses that come in there. Whether they do, that will be up to them. Hold it. You think we enter a judgment here and says they're going to have to pay them for the 20 minutes before, pay them for the work during breaks and pay them for the 30 to 90 minutes after that the hospital can stand around the afterwards
. What would you anticipate declaratory relief against Wood, wood and system? Simply that wood and malagros, each of them violated the Fair Labor Standards Act and are the damages. If the declaratory relief made to some extent be so clear for us. But back to your honor's point, if the question is, who is the real party in interest? That's the question. And if Jones, if the defendants were applying a compensation policy, for example, which violated the Fair Labor Standards Act, then the state would obviously be the real party in interest. That's Henley vs. Simpson, decided in the brief. We don't need to speculate on what it is because the complaint says it. They acted directly and indirectly in the interest of Eastern State Hospital in relation to the hours of work and payment of wages to Eastern State Hospital employees, including Mark and was an employer of Mark within the meaning of the Fair Labor Standards Act. They're acting in the interest of the hospital in connection with his payment of wages. But that doesn't make the Commonwealth the real party. The real party in interest because the Commonwealth has no dog in the hospital, the real party in interest. No. The hospital has no dog in this fight. There is no way that there is nothing that the hospital stands to lose or the Commonwealth stands to lose by a judgment against these two individuals. That's why the Commonwealth and the hospital are not the real party in the United States. You don't think that after a verdict in your favor in this case, they're going to start paying the overtime of all the nurses that come in there. Whether they do, that will be up to them. Hold it. You think we enter a judgment here and says they're going to have to pay them for the 20 minutes before, pay them for the work during breaks and pay them for the 30 to 90 minutes after that the hospital can stand around the afterwards. We don't allege that this was a systematic action. You said they went to one supervisor and they went to the next. Yes, they did. This particular individual did that. Nothing in our complaint alleges that this is some kind of systemic thing at the hospital that would impact other nurses. This is one nurse. And in fact, you did say it was there was some personal, you didn't raise it quite this way, but it was motivated by personal animus. There was. Now that really goes more to the defamation claim. I don't want to overstate that in terms of the real party in interest analysis. The real party in interest analysis looks at whether whether the hospital is on the hook for this judgment. And there's been no explanation for how the hospital has been on the hook for the judgment. No evidence of how the hospital is on the hook for the judgment. Any suggestion that the hospital is going to be affected in any way by this judgment requires speculation. Now, in the Henley versus Simpson case, which is a fifth circuit case, that is more to what you refer to in terms of a system-wide situation. Because there there was a compensation policy that was wrong. And there were individuals sued for implementing that compensation policy. But clearly, those individuals, they were doing something that had to do with the whole policy. It was a systemic issue, so a judgment would in fact have a systemic effect
. We don't allege that this was a systematic action. You said they went to one supervisor and they went to the next. Yes, they did. This particular individual did that. Nothing in our complaint alleges that this is some kind of systemic thing at the hospital that would impact other nurses. This is one nurse. And in fact, you did say it was there was some personal, you didn't raise it quite this way, but it was motivated by personal animus. There was. Now that really goes more to the defamation claim. I don't want to overstate that in terms of the real party in interest analysis. The real party in interest analysis looks at whether whether the hospital is on the hook for this judgment. And there's been no explanation for how the hospital has been on the hook for the judgment. No evidence of how the hospital is on the hook for the judgment. Any suggestion that the hospital is going to be affected in any way by this judgment requires speculation. Now, in the Henley versus Simpson case, which is a fifth circuit case, that is more to what you refer to in terms of a system-wide situation. Because there there was a compensation policy that was wrong. And there were individuals sued for implementing that compensation policy. But clearly, those individuals, they were doing something that had to do with the whole policy. It was a systemic issue, so a judgment would in fact have a systemic effect. Here is an entirely different case. Here, we have one nurse affected by two supervisors. And the fact that it happened that work doesn't make the state the real party in interest because, again, the state has, or the hospital, has no dog in this fight. There's nothing in the pleadings that alleges the hospital will be affected. And it would just require speculation that- Help me understand how a decision in your favor could be cabined. So as not to incent employees to attempt in runs around sovereign immunity defenses by pleading that the individual supervisor just didn't like me because I was red-headed and that's all from Vyreys, you see where I'm going with this. It is a troubling prospect that would need to be subject to some strict parameters. And I agree with that. Every decision this court makes can be abused in some way. And if the court were to rule in our favor and hold that under this complaint, and that's all that's before the court, in this- In Lizzy, there was a complaint before the court that didn't say whether those people had individual liability or what any- It was devoid of hardly any facts that told them one way or the other. Lizzy stands for that complaint. This case stands for this complaint. And it's just part of the judicial process that the district courts are going to have to look at these complaints one by one, judging each by what it pleads. And if- I think as attorneys, we're under an obligation to not do end runs. I think the attorney obligation of candor to the tribunal requires us to only assert a plausible individual case when there really is one and not do an end run. Now how do you keep it from being abused? I think the district courts will examine each complaint as it comes up, inquire into, is this really an individual case that has to do with just two students? Is this a case that's systemic involving a compensation policy or involving everybody throughout the hospital doing the same thing at the direction of the guy at the top? That's not this case. This case is two supervisors doing illegal things to one nurse. So I think to answer your question more succinctly than I have, the district courts will have to scrutinize the complaints. I'm sure we can rely upon the commonwealth to assert this whenever it may be applicable
. Here is an entirely different case. Here, we have one nurse affected by two supervisors. And the fact that it happened that work doesn't make the state the real party in interest because, again, the state has, or the hospital, has no dog in this fight. There's nothing in the pleadings that alleges the hospital will be affected. And it would just require speculation that- Help me understand how a decision in your favor could be cabined. So as not to incent employees to attempt in runs around sovereign immunity defenses by pleading that the individual supervisor just didn't like me because I was red-headed and that's all from Vyreys, you see where I'm going with this. It is a troubling prospect that would need to be subject to some strict parameters. And I agree with that. Every decision this court makes can be abused in some way. And if the court were to rule in our favor and hold that under this complaint, and that's all that's before the court, in this- In Lizzy, there was a complaint before the court that didn't say whether those people had individual liability or what any- It was devoid of hardly any facts that told them one way or the other. Lizzy stands for that complaint. This case stands for this complaint. And it's just part of the judicial process that the district courts are going to have to look at these complaints one by one, judging each by what it pleads. And if- I think as attorneys, we're under an obligation to not do end runs. I think the attorney obligation of candor to the tribunal requires us to only assert a plausible individual case when there really is one and not do an end run. Now how do you keep it from being abused? I think the district courts will examine each complaint as it comes up, inquire into, is this really an individual case that has to do with just two students? Is this a case that's systemic involving a compensation policy or involving everybody throughout the hospital doing the same thing at the direction of the guy at the top? That's not this case. This case is two supervisors doing illegal things to one nurse. So I think to answer your question more succinctly than I have, the district courts will have to scrutinize the complaints. I'm sure we can rely upon the commonwealth to assert this whenever it may be applicable. The district courts then will have to make a judgment on whether it is an individual case or whether it's not an individual case and make a decision on whether the state is the real party in interest. But I think one of the consistent threads running through all the decisions that we apply to this issue and that are cited in the record are that this is an individualized examination. This is not a carte launch rule that can be applied. And I think even Lizzie recognizes that. If you look at Lizzie, Lizzie examines what does this complaint say? What does this complaint not say? So applying Lizzie, there's nothing inconsistent with what I'm saying with what Lizzie says. In fact, I'm saying the same thing. The court needs to look at the individual complaint, the fax alleged in the individual complaint and decide for itself, is this an end run? Because if it's an end run, then the commonwealth should get immunity. But not everything's an end run. Sometimes the state doesn't have a dog in the fight. The state's not extolibility and anything that any effect that something might have on the state is really just speculation. If that's the case, then there's no rational reason for extending immunity to an individual. And in fact, it would defeat the whole purpose of the Fair Labor Standards Act providing individual liability to keep the supervisors honest. So to speak. So I see that my time is about up. I would ask if there are any other questions from the bench. All right. Thank you, Mr. President. Thank you, Mr
. The district courts then will have to make a judgment on whether it is an individual case or whether it's not an individual case and make a decision on whether the state is the real party in interest. But I think one of the consistent threads running through all the decisions that we apply to this issue and that are cited in the record are that this is an individualized examination. This is not a carte launch rule that can be applied. And I think even Lizzie recognizes that. If you look at Lizzie, Lizzie examines what does this complaint say? What does this complaint not say? So applying Lizzie, there's nothing inconsistent with what I'm saying with what Lizzie says. In fact, I'm saying the same thing. The court needs to look at the individual complaint, the fax alleged in the individual complaint and decide for itself, is this an end run? Because if it's an end run, then the commonwealth should get immunity. But not everything's an end run. Sometimes the state doesn't have a dog in the fight. The state's not extolibility and anything that any effect that something might have on the state is really just speculation. If that's the case, then there's no rational reason for extending immunity to an individual. And in fact, it would defeat the whole purpose of the Fair Labor Standards Act providing individual liability to keep the supervisors honest. So to speak. So I see that my time is about up. I would ask if there are any other questions from the bench. All right. Thank you, Mr. President. Thank you, Mr. President. Mr. Rab. Mr. Rab. I'll limit myself to small points. First, it isn't the fifth circuit's decision, and hencefully that we're seeking to have it applied as precedent. The Lizzy case was an individual. It was an individual supervisor. It was six other supervisors. But there's no language in the Lizzy decision that says in order to extend the umbrella of 11th Amendment immunity, we have to have a broad place class action that immediately impacts the state entity by virtue of a large number of claims. However, I think Judge Nehemiar's remark earlier about what do we do about the next person that has an overtime issue? What do we do about the overtime policies of the Eastern State Hospital? What do we do about hiring the next director or the next supervisor who might hear personal liability? In that respect, Lizzy does stand for the proposition that there are long-term real interests in the commonable sense of the Eastern State Hospital. In not having the umbrella collapsed without including the supervisor director. And the second small point is that Judge Duncan had asked about the animus, the personal animus, and I've been looking through the complaint, the strongest allegations with respect to director Wood and Miss Martin. I think appear in 27 and 28 those paragraphs and they are peculiarly about the incident report that he made which has to do with Martin's performance in which a patient suffers. It peculiarly has to do with what Martin is construing to be defamation by the report. Although lawyers recite, we incorporate all previous allegations, I think the words in 27 and 28 are clearly defined to point to Wood's animus with respect to that report and not to the animus of either Malagos Jones or director Wood with respect to the Fair Labor Standards Act. And was the defamation claim remanded to the.
. President. Mr. Rab. Mr. Rab. I'll limit myself to small points. First, it isn't the fifth circuit's decision, and hencefully that we're seeking to have it applied as precedent. The Lizzy case was an individual. It was an individual supervisor. It was six other supervisors. But there's no language in the Lizzy decision that says in order to extend the umbrella of 11th Amendment immunity, we have to have a broad place class action that immediately impacts the state entity by virtue of a large number of claims. However, I think Judge Nehemiar's remark earlier about what do we do about the next person that has an overtime issue? What do we do about the overtime policies of the Eastern State Hospital? What do we do about hiring the next director or the next supervisor who might hear personal liability? In that respect, Lizzy does stand for the proposition that there are long-term real interests in the commonable sense of the Eastern State Hospital. In not having the umbrella collapsed without including the supervisor director. And the second small point is that Judge Duncan had asked about the animus, the personal animus, and I've been looking through the complaint, the strongest allegations with respect to director Wood and Miss Martin. I think appear in 27 and 28 those paragraphs and they are peculiarly about the incident report that he made which has to do with Martin's performance in which a patient suffers. It peculiarly has to do with what Martin is construing to be defamation by the report. Although lawyers recite, we incorporate all previous allegations, I think the words in 27 and 28 are clearly defined to point to Wood's animus with respect to that report and not to the animus of either Malagos Jones or director Wood with respect to the Fair Labor Standards Act. And was the defamation claim remanded to the... It was remanded to the Circuit Court for James City County, yes. At the same time that the FLSA action was kept under the most recent federal statute which gives the Court discretion to do that. And then the District Court went on to decide the merits of the motions that Smith Smith would and Jones the Court. Yes, you're on. Anything further? Okay. Thank you. We'll come down and greet Council and take a short recess.
In case we're going to hear is Martin versus Wood and Mr. Rob whenever you're ready we'll hear from you. May please the Court. I'm Sydney Rob. I'm a senior assistant for Attorney General Mark Early for the Commonwealth of Virginia and today. I'm appearing for Jack Wood, the former hospital director at Eastern State Hospital and Malagwa's Jones, a supervisor of nurses at Eastern State Hospital. This appeal taken from a decision of the District Court in Newport News is important to the Commonwealth because it addresses for the first time the question of whether or not the umbrella, if you will, of sovereign immunity should be extended to supervisors, to persons making workplace decisions as part of their official responsibilities, where there has been allegations by the plaintiff of violations of the Fair Labor Standards Act. In this case, the supervisor in question, Malagwa's Jones, had refused nurse, registered nurse, Martin's request for overtime. Martin had said that she's been working nice and she's been working evenings and weekends. And Jones did not think that she was eligible and would not grant overtime. And the allegations are that Jones went to others. I'm sorry, Martin went to others, requested it. The allegations are that she continued to work overtime. The allegations are that director Wood, who was hospital director, also condoned or affirmed the denial of overtime benefits. We believe that the court's decision in Lizzie versus Alexander, the 2001 decision, should be controlling here. The Lizzie decision was, of course, under the Family Medical Leave Act. And the Lizzie decision, though, is in two distinct parts. The first part of the Lizzie decision had to do with whether or not the Washington metropolitan area transit authority would enjoy the same state immunity from an FMLA claim as would be enjoyed by states such as Virginia and Maryland. And the court analyzed that a creation by compact of the states would be entitled to that sovereign immunity. Excuse me. I did have a factual question. Is there, and I apologize if I just missed it, is there evidence of any official policy on overtime compensation in the record? And I'm particularly interested in something showing whether or not individual supervisors have discretion. What discretion they have in terms of implementing and overtime. No, because this came on the complaint, and it was a motion to dismiss it. Under 12B1, the record is not. Okay. Does Dr. Tanya. Thank you. In the Alexander case, the second part, Lizzie versus Alexander, was a discussion of the allowance of the individual shelter from liability, the 11th Amendment shelter for Alexander and the other supervisors. Lizzie was a mechanic working on wheelchair lifts. And he made a claim for his absence due to sickness that his supervisor, Alexander and the other supervisors, were skeptical of. And they actually launched the investigation against Lizzie. And they terminated him on the grounds of his misrepresentation with respect to his sickness. And then Lizzie brought the cause of action not only against Womata, the employer, the committee claimed that they were liable as well for violations of the family medical leave act. The four circuits said in the second part of Lizzie that we have allegations here unclear as to whether or not Lizzie is claiming that he's suing in a personal or official capacity, but it really doesn't matter. Because essentially the allegations of what Alexander did in terms of his consideration of Lizzie's matter were inextricably tied to the workplace. They were workplace decisions. There was no indication of any personal motive. There was no indication of anything outside of the workplace. There was no indication of ultra-virus action getting back to our case. Our case simply involves analogous facts, but the district court in consideration of this request for disfessal essentially minimizes the impact of Lizzie. Court didn't imply that it distinguished its aim for one. It was an FMLA case. And number two, there were district court decisions that had it undermined it. The district court decisions all involved entities that were not entitled to 11th Amendment Immunity, particularly cited the Loudoun County. We don't have to go that far because it's hard for a district court decision to undermine the four circuit decision which controls the district court. I agree. When she discussed Lizzie, she did quote, how did she distinguish between the FMLA and the FMLA? I don't think that she did. I think that she recognized that the statutory language employer, including an agent of the employer, is the same. The FMLA was modeled after the older FLSA. So she didn't distinguish between the two. She just said that the Lizzie was an FMLA decision, not an FLSA. But that's not an important distinction because the thrust should be when 11th Amendment Immunity should be afforded to protect a supervisor working for the state, rather than what the statutory obligation might be. We wouldn't be here in this appeal if it had not involved the constitutional issue. That's how of sovereign immunity. That's how we get the right under Puerto Rico Aguaduct to appeal. She did quote Judge Legs' language in Coleman versus Maron Court of Appeals. And of course, that's a decision that went to this court, considering the FMLA. And then went to the Supreme Court, ultimately holding where the individual is caring for himself, that the 11th Amendment Immunity applies, rather than under the Hibbs case and the other cases, that FMLA trumps 11th Amendment Immunity where there's care for others. But she quotes the clearly Coleman case for the proposition that individual state defendants in official capacity claims absent clear facts to the contrary that would expose them to personal liability. She said that the register court said that she had clear facts because the plaintiff had alleged that this was personal. And I would submit that she overlooked the district court, the Lizzie requirement, that the actions must be inextricably intertwined. If they are inextricably intertwined with workplace actions, then you do not place the supervisor outside of the umbrella. What's your counter argument to the district court's conclusion that the complaint alleges significant intentional misconduct committed by the appellants? It's still workplace misconduct. Lizzie says that the defendants... But surely that sweeps too broadly with any activity that a supervisor engages in is not going to be within the scope of employment, just because it's the supervisor and it takes place in the work of... No, if the supervisor and the supervisor had met on the soccer field and had a brawl concerning their daughter's game, if the supervisor had an early onimus or prejudice against the employee because of the domestic relations dispute that they had, if the supervisor had acted ultravirus, if the supervisor had acted out of a response that was not linked to the workplace, what we're trying to do with the 11th Amendment immunity is allow people to take these positions of responsibility without fear of a very broad liability for violations of these statutes. That's the purpose of extending immunity to them. But it's this juncture in the procedural posture that we're in, we don't know if the supervisor was acting within the scope of its authority, because we don't have a... But the facts are exactly as they were in Lizzie, Alex, I have... Well, not exactly. I mean, the defendants here are sued in their individual capacities. But the four-circuit said in Lizzie that the form of the suit is not what counts. What counts is whether or not... What's the plaintiffs' substance, or the real... ...the substance rather than the form, yes. It says I acted directly and indirectly in the interest of Eastern State Hospital in relation to hours of work and payment of wages. Eastern State Hospital employees, including Martin, and was the employer of Martin, the meaning of that, I suppose. In effect, the plaintiff conceded... Well, he's alleging that it's... He's alleging that they're acting within the scope of their duties, not outside the scope of their duties. And then when they charge these people, they say, unlawfully, willfully, deliberately failed and refused to include that work time in the computation of weekly wages. Again, bringing it to the decision that Malogra Strones had to make as to whether or not this registered nurse who was claiming her to hours would be entitled to it. So actually, in Lizzie Alexander, Mr. Alexander took much more hostile steps toward Mr. Lizzie. He investigated his claim of sickness, and he fired him because he didn't believe his claim of sickness. So... And I also cited in the reply brief several other cases, both from the district courts and the Montgomery Marlin case from this court, which followed later in the same year. And none of those cases saw any activity by the supervisor that took the supervisor outside the workplace that indicated something which factually would sustain personal liability. Since, probably, we certainly cannot have district judges taking occlusory remarks such as capacity, individual capacity. We have to have facts plaid which would take it outside of this inextricably tied to the work criteria. And the brown case, I cite, the Williams versus Dwarfster counties case that I cite. These are all additional decisions under the FMLA in which it was simply a workplace decision. And that's what I think we have here, a workplace decision. And in the district court's efforts to place the burden, if you will. And in her discussion of whether this should be 12, 1 or 12, 12, 12 B, 1 or 12 B6, the district seemed to overlook the substantive criteria set forth in Lizzie that only where she could find work place... She could find activity not inextricably tied to workplace decision making. That's all that she has here. So the matter at least should be vacated and perhaps should be remanded to the district court who might make a decision whether or not leave to amend would be viable or futile. But... Why would you concede that? Why would I concede that? No, it's... Because it hasn't reached the maris. It hasn't reached the maris. The discussions of her complaint basically says, I came to work a little early, I worked through breaks sometimes, and I worked a little bit afterwards. And I wanted over time and they refused to give it to me. And they basically said that it was a reflection of her inefficiencies. And they said this is a direct and indirect... The interest of the hospital in relation to hours of payment of wages under the FLSA. In that respect they had no other allegations substantively in the complaint. That's the complaint. It's a... It's a... Fair Labor Standards Act violation of refusing to pay over 40 hours. Time and a half. I don't understand why you say we ought to concede and find more facts. Well, I don't concede that we should. I do... You said you would concede that this is not a maris decision. Yeah, you said you would concede that this is not a maris decision. And I... I just leave that to the list of the court. It was not a confession. You were just saying, if we should go totally off the reservation and remand it, then we should... Nicely. I'm pretty incorrect. If there's anything further, I'll reserve the rest of my time. Thank you. All right, Mr. Rob. Excuse me, Mr. Hogue. Yes, Your Honor. Hogue. Hogue. Thank you. There's never been anybody who's ever pronounced my name correctly on the first attempt. Well, you could drop a few of the letters and get it. My answer... Well, my ancestors indeed should have done that. Maybe I should take care of that business. No, not necessarily. May I please the court? I'm Ray Hogue, and I'm representing Laura Martin here today in this Fair Labor Standards Act matter. This case involves several core questions, most or all of which are actually easier than they are portrayed by the Commonwealth. The first question is, is an FMLA case controlling in a Fair Labor Standards Act case? You're going to tell us why it shouldn't be. You're just outlining. I'm outlining, but yes, Your Honor. But my answer is it may give guidance, but the Family and Medical Leav Act was in some ways modeled after the Fair Labor Standards Act, but in other ways, it's not identical. So your argument is basically... You're making an argument that Lizzy is not awful because they act so different. I'm arguing that Lizzy is not controlling because the Commonwealth has argued that Lizzy is controlling. It's not. It does, in our view, provide some guidance, but it's not controlling because it's not a Fair Labor Standards Act case. But I will address Lizzy because it does bear upon the court's view indirectly because the FLSA and the FMLA bear some similarities. So the first question is, in our view, is whether... Lizzy basically, it doesn't depend on the statute, it depends on... It was an employer employee relationship case, last is this one, but it said, who is the real party in interest to apply that test, isn't it? Lizzy applied that test in the Family and Medical Leav Act. I understand. And the question is, if we were to apply that test here, you'd get the same result as Lizzy, God, wouldn't you? If this is actually clearer than Lizzy. If you apply that... if the test is applied properly here, applying the same analysis as Lizzy, then the court properly denied the motion to dismiss for reasons which I'll try to explain. All right. The second question I think that's important to focus on is the simple question of can supervisors be individually liable under the Fair Labor Standards Act generally? And everybody, I think, agrees, yes. That's Horn Book Law that supervisors can be liable. Now, the next question is, do supervisors get 11th Amendment immunity if they are really sued in their solely in their individual capacity? And we respectfully submit that the law is clear that if it's really an individual sued against an individual, they do not get 11th Amendment immunity. So how is this really an individual sued against an individual other than the fact that the complaint says individual capacity? Because as Lizzy pointed out to some extent in several other cases, I'll describe briefly explain, you look at the complaint to see the substance of what the complaint is saying. If the complaint, maybe the best thing I can do is by way of an example. In the... Well, we look at this complaint. This complaint basically says that these people worked more than 40 hours by coming to work a little early, 20 minutes early, maybe working through breaks, and by working after work, staying after work for the transition to the next group. And that the supervisors, several of them, they went to them and said they want overtime, and they were denied overtime, and that they were deliberately denied overtime. And that's it. In violation of the 40-hour work week under the FSLA. Now, that's the role that these individuals played on behalf of, and it states this to, the interest of Eastern State Hospital in relation to ours and work in payment of wages. That is what they did, but the factual context is that those individuals were... They were making their own decisions, and the fact that it happens in the workplace, we respectfully submit, is not the end of the question as the Commonwealth states. Oh, it's a payment of wages, though. They made decisions about what the hospital, the state institution was going to pay these people in wages. And they were in a supervisory role, and they made those decisions, and they made them deliberately intentionally, because that's what they intended, and they basically concluded, according to the complaint, that these people worked through their breaks and things because they were inefficient, and should be able to do it in 40 hours. Now, they may be wrong, and you may be entitled to 40 hours, but there can be no question that these individuals were acting, other than as agents of the hospital on behalf of the hospital's financial condition and payment of wages. That's where I think we respectfully disagree, Your Honor. I've got the complaint right here. You can point it to me. Well, the factual context is that the Commonwealth of Virginia certainly has a policy of saying, pay overtime when it's due. And these people... Where's it say that? Well, perhaps I should have pled that, but I think... Well, even if you've pled that, they're going to say, when it's due, the supervisor said they're not due because they're inefficient, and he may be wrong. And I don't even... I'm still acting on behalf of the hospital in the payment of wages, and your claim is under the FMLA, which is the payment of wages beyond 40 hours. This is a straight on FMLA case, and the employees were acting in discharge, their duties under that, may be wrongfully. But the question then is, why isn't that just making a Lizzy claim? Because, and I apologize, I do not have the full complaint in front of me, but I think if you look at the complaint... There are a few pages. It's right here. Well, I believe the complaint alleges, Your Honor, that the defendants knew that they were violating the Fair Labor Standards Act and did it anyway. No, it says they deliberately failed to pay the wages to include the work time in the computation of wages. That was a deliberate act. It wasn't accidental. They intended to deny them that, and they took the position that they would not authorize, because it was treated as a reflection of inefficiency or incompetence. In paragraph 45 says that Wood did it as a part of his job duties and responsibilities at the hospital. And he did, but that's not the test. If you look at Lizzy and you look at the other cases, the question is whether, is not whether the person in question did this as part of their job duties, because if that were the test, then there wouldn't even be a question, because every time you have one of these cases, somebody's doing this as part of their job. The question is whether, who's the real party in interest under Lizzy, and the real party in interest is based on whose fisc is being involved, who's going to pay it, what are the terms and conditions of employment going to be changed, and all of those questions are directly on here. If the Commonwealth had to pay the Judgment for the Fair Labor Standards Act, then the Commonwealth would be the real party in interest. One of the things that is articulated is the distinction is that the relief sought here, is declaratory relief and damages. Is that correct? Right. What would you anticipate declaratory relief against Wood, wood and system? Simply that wood and malagros, each of them violated the Fair Labor Standards Act and are the damages. If the declaratory relief made to some extent be so clear for us. But back to your honor's point, if the question is, who is the real party in interest? That's the question. And if Jones, if the defendants were applying a compensation policy, for example, which violated the Fair Labor Standards Act, then the state would obviously be the real party in interest. That's Henley vs. Simpson, decided in the brief. We don't need to speculate on what it is because the complaint says it. They acted directly and indirectly in the interest of Eastern State Hospital in relation to the hours of work and payment of wages to Eastern State Hospital employees, including Mark and was an employer of Mark within the meaning of the Fair Labor Standards Act. They're acting in the interest of the hospital in connection with his payment of wages. But that doesn't make the Commonwealth the real party. The real party in interest because the Commonwealth has no dog in the hospital, the real party in interest. No. The hospital has no dog in this fight. There is no way that there is nothing that the hospital stands to lose or the Commonwealth stands to lose by a judgment against these two individuals. That's why the Commonwealth and the hospital are not the real party in the United States. You don't think that after a verdict in your favor in this case, they're going to start paying the overtime of all the nurses that come in there. Whether they do, that will be up to them. Hold it. You think we enter a judgment here and says they're going to have to pay them for the 20 minutes before, pay them for the work during breaks and pay them for the 30 to 90 minutes after that the hospital can stand around the afterwards. We don't allege that this was a systematic action. You said they went to one supervisor and they went to the next. Yes, they did. This particular individual did that. Nothing in our complaint alleges that this is some kind of systemic thing at the hospital that would impact other nurses. This is one nurse. And in fact, you did say it was there was some personal, you didn't raise it quite this way, but it was motivated by personal animus. There was. Now that really goes more to the defamation claim. I don't want to overstate that in terms of the real party in interest analysis. The real party in interest analysis looks at whether whether the hospital is on the hook for this judgment. And there's been no explanation for how the hospital has been on the hook for the judgment. No evidence of how the hospital is on the hook for the judgment. Any suggestion that the hospital is going to be affected in any way by this judgment requires speculation. Now, in the Henley versus Simpson case, which is a fifth circuit case, that is more to what you refer to in terms of a system-wide situation. Because there there was a compensation policy that was wrong. And there were individuals sued for implementing that compensation policy. But clearly, those individuals, they were doing something that had to do with the whole policy. It was a systemic issue, so a judgment would in fact have a systemic effect. Here is an entirely different case. Here, we have one nurse affected by two supervisors. And the fact that it happened that work doesn't make the state the real party in interest because, again, the state has, or the hospital, has no dog in this fight. There's nothing in the pleadings that alleges the hospital will be affected. And it would just require speculation that- Help me understand how a decision in your favor could be cabined. So as not to incent employees to attempt in runs around sovereign immunity defenses by pleading that the individual supervisor just didn't like me because I was red-headed and that's all from Vyreys, you see where I'm going with this. It is a troubling prospect that would need to be subject to some strict parameters. And I agree with that. Every decision this court makes can be abused in some way. And if the court were to rule in our favor and hold that under this complaint, and that's all that's before the court, in this- In Lizzy, there was a complaint before the court that didn't say whether those people had individual liability or what any- It was devoid of hardly any facts that told them one way or the other. Lizzy stands for that complaint. This case stands for this complaint. And it's just part of the judicial process that the district courts are going to have to look at these complaints one by one, judging each by what it pleads. And if- I think as attorneys, we're under an obligation to not do end runs. I think the attorney obligation of candor to the tribunal requires us to only assert a plausible individual case when there really is one and not do an end run. Now how do you keep it from being abused? I think the district courts will examine each complaint as it comes up, inquire into, is this really an individual case that has to do with just two students? Is this a case that's systemic involving a compensation policy or involving everybody throughout the hospital doing the same thing at the direction of the guy at the top? That's not this case. This case is two supervisors doing illegal things to one nurse. So I think to answer your question more succinctly than I have, the district courts will have to scrutinize the complaints. I'm sure we can rely upon the commonwealth to assert this whenever it may be applicable. The district courts then will have to make a judgment on whether it is an individual case or whether it's not an individual case and make a decision on whether the state is the real party in interest. But I think one of the consistent threads running through all the decisions that we apply to this issue and that are cited in the record are that this is an individualized examination. This is not a carte launch rule that can be applied. And I think even Lizzie recognizes that. If you look at Lizzie, Lizzie examines what does this complaint say? What does this complaint not say? So applying Lizzie, there's nothing inconsistent with what I'm saying with what Lizzie says. In fact, I'm saying the same thing. The court needs to look at the individual complaint, the fax alleged in the individual complaint and decide for itself, is this an end run? Because if it's an end run, then the commonwealth should get immunity. But not everything's an end run. Sometimes the state doesn't have a dog in the fight. The state's not extolibility and anything that any effect that something might have on the state is really just speculation. If that's the case, then there's no rational reason for extending immunity to an individual. And in fact, it would defeat the whole purpose of the Fair Labor Standards Act providing individual liability to keep the supervisors honest. So to speak. So I see that my time is about up. I would ask if there are any other questions from the bench. All right. Thank you, Mr. President. Thank you, Mr. President. Mr. Rab. Mr. Rab. I'll limit myself to small points. First, it isn't the fifth circuit's decision, and hencefully that we're seeking to have it applied as precedent. The Lizzy case was an individual. It was an individual supervisor. It was six other supervisors. But there's no language in the Lizzy decision that says in order to extend the umbrella of 11th Amendment immunity, we have to have a broad place class action that immediately impacts the state entity by virtue of a large number of claims. However, I think Judge Nehemiar's remark earlier about what do we do about the next person that has an overtime issue? What do we do about the overtime policies of the Eastern State Hospital? What do we do about hiring the next director or the next supervisor who might hear personal liability? In that respect, Lizzy does stand for the proposition that there are long-term real interests in the commonable sense of the Eastern State Hospital. In not having the umbrella collapsed without including the supervisor director. And the second small point is that Judge Duncan had asked about the animus, the personal animus, and I've been looking through the complaint, the strongest allegations with respect to director Wood and Miss Martin. I think appear in 27 and 28 those paragraphs and they are peculiarly about the incident report that he made which has to do with Martin's performance in which a patient suffers. It peculiarly has to do with what Martin is construing to be defamation by the report. Although lawyers recite, we incorporate all previous allegations, I think the words in 27 and 28 are clearly defined to point to Wood's animus with respect to that report and not to the animus of either Malagos Jones or director Wood with respect to the Fair Labor Standards Act. And was the defamation claim remanded to the... It was remanded to the Circuit Court for James City County, yes. At the same time that the FLSA action was kept under the most recent federal statute which gives the Court discretion to do that. And then the District Court went on to decide the merits of the motions that Smith Smith would and Jones the Court. Yes, you're on. Anything further? Okay. Thank you. We'll come down and greet Council and take a short recess