Stramaski v. Texas A&M Engineering Experiment Station

UNITED STATES DISTRICT COURT March 03, 2025

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

EVA KRISTINE STRAMASKI, §

§

Plaintiff. §

§

V. § CIVIL ACTION NO. 4:20-cv-00156

§

MARK LAWLEY, §

§

Defendant. §

MEMORANDUM AND RECOMMENDATION

This case returns to this court to resolve one question: Is qualified immunity

available as a defense under the Fair Labor Standards Act (“FLSA”)?

BACKGROUND

Plaintiff Eva Kristine Stramaski alleges she was fired “in retaliation for

requesting to be paid timely.” Dkt. 14 at 5. She brings a single claim against Dr.

Mark Lawley, a department head within the Texas A&M Engineering Experiment

Station, in his individual capacity, for violating the anti-retaliation provision of the

FLSA. Lawley moved to dismiss Stramaski’s lawsuit, arguing that her FLSA

retaliation claim is barred by sovereign immunity and, in the alternative, that he is

entitled to qualified immunity. See Dkt. 18. I found that neither immunity applied,

see Dkt. 23, and the district judge adopted my recommendation. See Dkt. 25.

Lawley then appealed.

On appeal, the Fifth Circuit agreed that “Stramaski’s suit is not barred by

sovereign immunity, and she can bring her retaliation claim against Lawley in his

individual capacity.” Stramaski v. Lawley, 44 F.4th 318, 326 (5th Cir. 2022).

Turning to qualified immunity, the Fifth Circuit noted that this court—and the

parties—simply “assumed that the doctrine of qualified immunity applies to claims

brought under the FLSA.” Id.; see also id. at 329 (Costa, J., concurring) (“It says

something about how much qualified immunity dominates section 1983 litigation

that everyone in the district court—the experienced lawyers and judges alike—

assumed the immunity exists whenever a public official is sued.”). After expressing

its “conviction that substantial analysis is necessary before deciding if qualified

immunity ever applies to the FLSA,” the Fifth Circuit remanded the qualified

immunity issue so “the district court can make the initial resolution of whether the

defense applies to the FLSA.” Id. at 326, 327. In so doing, the Fifth Circuit

“identif[ied] some of the analysis that is necessary [to determine whether qualified

immunity applies to the FLSA] without reaching a conclusion.” Id. at 327. Because

the Fifth Circuit went on to opine that “Stramaski’s claim would be barred by

qualified immunity because she does not allege that Lawley violated a clearly

established law,” the future of this case hinges on the availability of qualified

immunity as a defense under the FLSA. Id. at 329.

On remand, I apply the test identified by the Fifth Circuit to determine

whether qualified immunity is an available defense under the FLSA. After

reviewing the parties’ supplemental briefing (Dkts. 48, 53–54) and the relevant

case law, I find that qualified immunity is unavailable under the FLSA.

Accordingly, I recommend Defendant’s Motion to Dismiss (Dkt. 18) be DENIED.

LEGAL STANDARD FOR APPLYING

THE QUALIFIED IMMUNITY DOCTRINE

In Stramaski, the Fifth Circuit “set out the principles for the availability of

qualified immunity under a statute.” Stramaski, 44 F.4th at 327. In a nutshell,

qualified immunity applies “to a congressional enactment when two conditions

exist: (1) ‘the tradition of immunity was so firmly rooted in the common law’ and

(2) is ‘supported by such strong policy reasons that Congress would have

specifically so provided had it wished to abolish the doctrine.’” Id. (quoting Wyatt

v. Cole, 504 U.S. 158, 163–64 (1992)).1 I will refer to this analytical framework as

“the Stramaski test.”

1 In Wyatt, the United States Supreme Court considered whether private defendants are

entitled to qualified immunity from suit under 42 U.S.C. § 1983. See 504 U.S. at 159. The

high court noted that although § 1983 “on its face admits of no immunities,” id. at 163

When considering the first condition—whether there was a tradition of

immunity at common law that Congress intended to incorporate in the FLSA—I

must “look to the most closely analogous torts” in the common law compared to

the conduct covered by the FLSA. Wyatt, 504 U.S. at 164; see also Stramaski, 44

F.4th at 327. Thus, “the proper inquiry is whether, when Congress enacted the Fair

Labor Standards Act’s antiretaliation provision, there was a tradition of immunity

for a claim alleging intentional retaliation in the workplace.” Stramaski, 44 F.4th

at 331 (Costa, J., concurring).

Even if the first condition is satisfied, a district court shall “not recognize an

immunity available at common law if [the FLSA’s] history or purpose counsel

against applying it in [FLSA] actions.” Wyatt, 504 U.S. at 164. In other words, the

“second condition ensures that availability of immunity at the time of enactment

is not dispositive.” Shumaker v. Vilsack, No. 7:22-cv-00084, 2023 WL 2499341,

at *2 (S.D. Tex. Jan. 26, 2023); see also Owen v. City of Independence, 445 U.S.

622, 638 (1980) (“Where the immunity claimed by the defendant was well

established at common law at the time [the relevant statutory provision] was

enacted, and where its rationale was compatible with the purposes of [the statute],

we have construed the statute to incorporate that immunity.”). Moreover, the

second condition acknowledges that “in a textualist world, recognizing an

immunity defense when the words of the statute do not provide one is an

extraordinary act of interpretation.” Stramaski, 44 F.4th at 329 (Costa, J.,

concurring).

quotation omitted), “we have accorded certain government officials either absolute or

qualified immunity from suit if the ‘tradition of immunity was so firmly rooted in the

common law and was supported by such strong policy reasons that Congress would have

specifically so provided had it wished to abolish the doctrine.’” Id. at 163–64 (quoting

Owen v. City of Independence, 445 U.S. 622, 637 (1980)).

THE HISTORICAL CONTEXT OF THE QUALIFIED

IMMUNITY DOCTRINE AND THE FLSA

A. QUALIFIED IMMUNITY

The history of the qualified immunity doctrine is complex and fraught with

controversy. Without diving too deep into the fray, I will discuss the aspects of

qualified immunity’s history relevant to this lawsuit.

The Supreme Court created the earliest version of what is now coined

“qualified immunity” in a 1967 suit involving police officers accused of false arrest

and imprisonment at common law and under § 1983. See Pierson v. Ray, 386 U.S.

547, 550 (1967). Although § 1983 offers no immunities on its face, the Supreme

Court concluded that officers defending § 1983 claims should be able to raise

defenses that were traditionally available to them at common law. The Supreme

Court reasoned that:

[Section] 1983 should be read against the background of tort liability

that makes a man responsible for the natural consequences of his

actions. . . . Part of the background of tort liability, in the case of police

officers making an arrest, is the defense of good faith and probable

cause.

We hold that the defense of good faith and probable cause,

which the Court of Appeals found available to the officers in the

common-law action for false arrest and imprisonment, is also

available to them in the action under [§] 1983.

Id. at 556–57 (quotation omitted).

This early form of qualified immunity—created in the context of § 1983 and

later extended to Bivens actions2—involved a subjective component: A public

official was not entitled to qualified immunity if the “official knew or reasonably

should have known that the action he took within his sphere of official

2 In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the United

States Supreme Court recognized an implied right of action for damages against federal

officials alleged to have violated a citizen’s Fourth Amendment rights. See 403 U.S. 388,

397 (1971). In Scheuer v. Rhodes, the Supreme Court held that “in varying scope, a

qualified immunity is available to officers of the executive branch of government” in such

suits. 416 U.S. 232, 247 (1974).

responsibility would violate the constitutional rights of the plaintiff.” Harlow v.

Fitzgerald, 457 U.S. 800, 815 (1982) (cleaned up). This “knew or reasonably

should have known” standard reflects the subjective nature of the good-faith

defense available at common law.

In Harlow, the Supreme Court abandoned the subjective component of

qualified immunity and replaced it with a solely objective inquiry: “[G]overnment

officials performing discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Id. at

818. The Supreme Court justified this departure from the common law standard

by noting that “substantial costs attend the litigation of the subjective good faith of

government officials,” including “distraction of officials from their governmental

duties, inhibition of discretionary action, and deterrence of able people from public

service.” Id. at 816. Later cases acknowledge that Harlow “completely

reformulated qualified immunity along principles not at all embodied in the

common law, replacing the inquiry into subjective malice so frequently required at

common law with an objective inquiry into the legal reasonableness of the official

action.” Anderson v. Creighton, 483 U.S. 635, 645 (1987).

B. THE FLSA

Finding that labor conditions in the United States adversely impacted

workers’ health and efficiency, Congress passed the FLSA in 1938 to “establish[] a

minimum wage and overtime compensation for each hour worked in excess of 40

hours in each workweek.” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 31

(2014); see also 29 U.S.C. § 202(a). The FLSA did not, however, provide coverage

to public employees. The FLSA also “did not define ‘work’ or ‘workweek,’ and [the

United States Supreme] Court interpreted those terms broadly.” Busk, 574 U.S. at

31 (discussing Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590,

598 (1944) and Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91

(1946)).

Congress amended the FLSA in 1947 to respond to the “emergency” created

by judicial interpretations of the FLSA. Busk, 574 U.S. at 32 (quoting 29 U.S.C.

§ 251(b)); see also 29 U.S.C. § 251(a) (“The Congress finds that the [FLSA] . . . has

been interpreted judicially in disregard of long-established customs, practices, and

contracts between employers and employees, thereby creating wholly unexpected

liabilities . . . upon employers.”). These amendments included two good-faith

defenses. See 29 U.S.C. §§ 259–260. Section 259 provides a complete defense to

liability if the employer “pleads and proves that the act or omission complained of

was in good faith in conformity with and in reliance on” administrative

pronouncements made by certain federal agencies. Id. § 259(a). Section 260

provides a court with discretion to preclude or limit liquidated damages awards “if

the employer shows to the satisfaction of the court that the act or omission giving

rise to such action was in good faith and that he had reasonable grounds for

believing that his act or omission was not a violation of the [FLSA].” Id. § 260.

In 1966, another set of amendments expanded the FLSA’s scope to cover

some public employees. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S.

528, 533 (1985). Legislative history indicates that the 1966 amendments’ purpose

was to provide coverage to a broader swath of Americans by “exten[ding] the Act’s

coverage in such a manner as to completely assume the Federal responsibility

insofar as is presently practicable.” H.R. REP. NO. 93-913 (1974), as reprinted in

1974 U.S.C.C.A.N. 2811, 2819. In 1974, Congress again expanded coverage to

include “all state and local employees, save elected officials and their staffs.”

Christensen v. Harris County, 529 U.S. 576, 579 (2000) (citing Fair Labor

Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (1974)).

Finally, in 1977, Congress added a private cause of action to enforce the

FLSA’s antiretaliation provision. See Pineda v. JTCH Apartments, L.L.C., 843 F.3d

1062, 1064 (5th Cir. 2016) (citing Fair Labor Standards Amendments of 1977, Pub.

L. No. 95-151, 91 Stat. 1252 (1977)). Before 1977, plaintiffs could sue under the

FLSA’s minimum wage and overtime provisions, but only the Secretary of Labor

could bring an enforcement action on the antiretaliation provision. See Pineda,

843 F.3d at 1064.

ANALYSIS

A. WHETHER A TRADITION OF IMMUNITY FOR CLAIMS OF RETALIATORY

DISCHARGE IS FIRMLY ROOTED IN THE COMMON LAW

Lawley paints much of his approach to the Stramaski test’s first condition

in broad strokes, arguing that a tradition of immunity is firmly rooted in the

common law because “public officials historically enjoyed immunity over their

discretionary acts.” Dkt. 48 at 15. I acknowledge the litany of case law illustrating

historical support for some form of immunity for government officials acting in

their discretion. But Lawley’s overly broad position fails to satisfy the “statute-

specific analysis” I must conduct. Stramaski, 44 F.4th at 331 (Costa, J.,

concurring) (“To find an atextual immunity defense, the court must conduct a

statute-specific analysis to determine if common-law immunity from suit was

firmly rooted as a protection against a closely analogous tort.” (quotation

omitted)). I cannot accept the implication of Lawley’s argument, which would have

me find that the tradition of immunity for government officials is always so firmly

rooted in the common law whenever public officials exercise discretion.3

Despite Lawley’s contention that he should not have to propose a closely

analogous tort, he nevertheless identifies wrongful discharge—under the broader

umbrella of “employment-related challenges”—as the tort available at common law

that is most closely analogous to a retaliation claim under the FLSA. Dkt. 48 at 39.

Meanwhile Stramaski, echoing Judge Costa’s concurrence, identifies the most

closely analogous tort as “intentional retaliation in the workplace.” Dkt. 53 at 3

3 Lawley ostensibly took this broad approach because he believes that, “outside of the

§ 1983 context,” “a public official should not be required to show a closely analogous tort

to obtain qualified immunity” in part because public officials’ immunity is “historically

function based, not tort based.” Dkt. 48 at 39–40. The Fifth Circuit has already expressed

its disagreement with this position. See Stramaski, 44 F.4th at 327 (“[W]e look to the

most closely analogous torts in the common law compared to the conduct covered by the

statute.” (quotation omitted)). Accordingly, I do not entertain this argument.

(quoting Stramaski, 44 F.4th at 331 (Costa, J., concurring)). I am inclined to agree

with Judge Costa and Stramaski.

Lawley’s proposed tort of wrongful discharge is outcome-focused, not

conduct-focused, and it is so broad that it would encompass arbitrary and

thoughtless actions in addition to retaliation. It bears reiterating that “‘we look to

the most closely analogous torts’ in the common law compared to the conduct

covered by the statute.” Stramaski, 44 F.4th at 327 (emphasis added) (quoting

Wyatt, 504 U.S. at 164). The conduct at issue in every retaliation statute, including

the FLSA’s anti-retaliation provision, is the intent to defy the statute’s purpose. See

29 U.S.C. § 215(a)(3) (“[I]t shall be unlawful for any person—to discharge or in any

other manner discriminate against any employee because such employee has

[undertaken a protected activity] related to [the FLSA].” (emphasis added)). Thus,

the most closely analogous tort in the common law is retaliatory discharge. See

Retaliatory Discharge, BLACK’S LAW DICTIONARY (9th ed. 2009) (“A discharge that

is made in retaliation for the employee’s conduct (such as reporting unlawful

activity by the employer to the government) and that clearly violates public

policy.”).

Having established that the most closely analogous tort is a retaliatory

employment action, I next ask “whether there was an immunity at common law

[for retaliatory employment actions] that Congress intended to incorporate

implicitly into the [FLSA].” Stramaski, 44 F.4th at 327 (quotation omitted). Lawley

cited a breathtaking number of cases in support of his argument as to the first

prong of the Stramaski test. Alas, most are irrelevant as they are more recent than

the relevant time periods in question4 or they involve conduct different than the

conduct the court is to consider: the conduct covered by the FLSA’s antiretaliation

provision, which is the intent to defy the purpose of a duly enacted law.

4 “There are two potential dates to focus on. The original FLSA, enacted in 1938, only

allowed the Secretary of Labor to bring retaliation claims. A 1977 Amendment to the law

created a private cause of action for such claims.” Stramaski, 44 F.4th at 331 n.2 (Costa,

J., concurring).

Stramaski highlights that even some of the cases that Lawley cites

demonstrate “that immunity failed to exist when public official’s ‘discretionary

actions’ were either malicious, corrupt, cruel, or made when acting outside the

scope of their authority.” Dkt. 53 at 7; see Kendall v. Stokes, 44 U.S. 87, 87 n.2

(1845) (Where a public officer “is actuated by malice, cruelty or wilful oppression,

the action does lie. . . . And proof may be introduced to show that fact.”); Wilkes v.

Dinsman, 48 U.S. 89, 130 (1849) (“But for acts beyond [a public officer’s]

jurisdiction, or attended by circumstances of excessive severity, arising from ill-

will, a depraved disposition, or vindictive feeling, he can claim no exemption, and

should be allowed none under color of his office.”); Otis v. Watkins, 13 U.S. 339,

344–45 (1815) (“It is not the injury done to an individual, or error of judgment, but

malice alone that is the gist of prosecutions against a public officer at common law

for malfeasance in office.”). Lawley contends that “this is immaterial,” arguing that

the “inquiry here turns on the existence of a common law immunity, not the scope

of that immunity.” Dkt. 48 at 19. I struggle to understand this argument because

scope defines existence. It seems to me that Lawley wants to be able to point to any

immunity available for a public official and then graft on the modern-day qualified

immunity, even though the common law of the relevant time period would not have

permitted a public official to escape answering for the conduct alleged here—

intentional retaliation. I refuse to accept that the Stramaski test works that way.

One of the most instructive cases I have found on point is Hayes v. Cape

Henlopen School District, 341 F. Supp. 823 (D. Del. 1972). As I discuss Hayes, keep

in mind that it was decided during a particularly relevant time period—just a few

years before Congress would enact the FLSA’s antiretaliation provision. In Hayes,

a school district’s secretary sued individual Board members in their official and

individual capacities, alleging that “the decision not to rehire Mrs. Hayes was

motivated by the Board’s desire to retaliate against them for Mr. Hayes’ activities.”

Id. at 835. The individual Board members argued that they were immune to suit

and entitled to dismissal. The court agreed, citing Pierson, that “[a]s public officials

exercising discretion while performing their duties, the individual defendants

possess a qualified privilege precluding liability for the performance of official

responsibilities if undertaken in good faith,” but observed that “the privilege is not

an absolute defense and may not bar recovery in the appropriate factual situation.”

Id. at 829 (emphasis added) (“To prevail the plaintiffs must establish the

individual defendant’s bad faith in the decision not to rehire Mrs. Hayes.”). The

Hayes court went on to remark that

the employment decisions of public employers are not immune from

judicial scrutiny nor permitted to be motivated by any reason

whatsoever. Had the defendants terminated Mr. Hayes for his

negotiating activities or Mrs. Hayes for the exercise of her freedom of

speech, their decision would have violated the plaintiffs’

constitutional rights and would be prohibited.

Id. at 836; see also Murphy v. City of Topeka-Shawnee Cnty. Dep’t of Labor

Servs., 630 P.2d 186, 191 (1981) (finding that individual government officials were

not immune where they were sued for retaliation, which would have been “in abuse

of their authority” and therefore outside the bounds of immunity).

I recognize that Hayes dealt with alleged constitutional violations as

opposed to alleged statutory violations, and that Hayes applied the earliest version

of qualified immunity under Pierson as opposed to common law immunity. But

the key takeaway from Hayes, as I see it, is that when the plaintiff alleged, in 1972,

that the adverse employment action against her was undertaken because of a

(constitutionally) protected activity, the court refused to allow the defendant-

public officers to escape answering that charge.5 In other words, there was no

tradition of immunity for retaliatory discharge. But even if I am wrong about that,

there is unquestionably zero public policy that supports immunity for retaliation.

5 I also find it instructive that when, in 1979—roughly two years after the passage of the

FLSA’s anti-retaliation provision—the Secretary of Labor sued an Arkansas school district

for retaliatory discharge under the FLSA, the question of immunity was not raised.

B. POLICY REASONS DO NOT SUPPORT A FINDING OF QUALIFIED IMMUNITY

FOR RETALIATION UNDER THE FLSA

Stramaski and Lawley analyze the Stramaski test’s second condition—

whether the tradition of immunity is supported by such strong policy reasons that

Congress would have specifically so provided had it wished to abolish the

doctrine—by first considering the policy reasons supporting qualified immunity.

The parties then take opposing stances on whether extending the doctrine to the

FLSA would advance the purposes of qualified immunity. See Dkt. 48 at 24–25;

Dkt. 53 at 10–11. This approach to the second condition, however, is misguided. It

is clear from Wyatt, the Supreme Court opinion the Fifth Circuit used to fashion

the Stramaski test, that I must consider whether the “tradition of

immunity . . . was supported by such strong policy reasons that Congress would

have specifically so provided had it wished to abolish the doctrine.” Wyatt, 504

U.S. at 164 (emphasis added) (quotation omitted). In other words, I must look back

in time to the tradition of immunity and the FLSA’s history instead of making an

ex post facto conclusion based solely on modern-day justifications for qualified

immunity. This approach is in line with the Supreme Court’s acknowledgment that

it “do[es] not have a license to establish immunities [in statutes] in the interests of

what we judge to be sound public policy.” Buckley v. Fitzsimmons, 509 U.S. 259,

268 (1993) (quotation omitted). Instead, a court’s “role is to interpret the intent of

Congress in enacting [the statute at issue], not to make a freewheeling policy

choice.” Id. (quotation omitted).

Considering these basic legal principles, I must determine whether

(1) “Congress ‘intend[ed]’ to incorporate concepts of qualified immunity when it

explicitly created a more limited defense of good faith in the FLSA,” Stramaski, 44

F.4th at 327, and (2) the FLSA’s history and purpose indicates support for qualified

immunity.

1. The FLSA’s Good-Faith Defenses

As explained above, Congress added two defenses to the FLSA in 1947 that

reprieved employers from liability for their actions made in good faith. See 29

U.S.C. §§ 259–260. In Stramaski, Judge Costa observed that “when Congress

creates specific statutory defenses—which it did not do when enacting section 1983

in the Civil Rights Act of 1871—it likely does not intend to incorporate general

common law defenses as well.” Stramaski, 44 F.4th at 330 (Costa, J., concurring).

I agree.

For example, the D.C. Circuit in Berry v. Funk held that qualified immunity

is unavailable under the Wiretap Act, agreeing with the appellant that “the

qualified immunity doctrine applied to constitutional torts and § 1983 actions has

no application to [the appellant’s] statutory claims.” 146 F.3d 1003, 1013 (D.C. Cir.

1998). The court further explained that this was so because the Wiretap Act

provides a complete defense for “a good faith reliance on a court

warrant or order, a grand jury subpoena, a legislative authorization,

or a statutory authorization.” 18 U.S.C. § 2520(d) (1994). . . . When

Congress itself provides for a defense to its own cause of action, it is

hardly open to the federal court to graft common law defenses on top

of those Congress creates.

Id. (cleaned up). Similarly, a district court in the Northern District of California

declined to allow a party to raise qualified immunity under the Stored

Communications Act, a statute with a “comprehensive, free-standing liability

scheme[], complete with statutory defenses.” Hepting v. AT&T Corp., 439 F. Supp.

2d 974, 1009 (N.D. Cal. 2006).

Two circuit courts have found the presence of statutory defenses

inconsequential to the availability of qualified immunity. The Sixth and Eleventh

Circuits starkly oppose the D.C. Circuit, holding that qualified immunity is

available under the Wiretap Act. Both courts relied on the policy reasons

supporting qualified immunity to justify the defense’s availability. See Tapley v.

Collins, 211 F.3d 1210, 1216 (11th Cir. 2000) (“‘We would not strip a judge or

prosecutor of absolute immunity because the claim related to a statutory violation

and the statute provided an affirmative defense. By the same token, police officers

and public officials performing governmental functions should not lose their

qualified immunity because of an affirmative defense which might or might not

protect them but would, in all events, require they be subject to extended litigation

and deprive them of the benefits of qualified immunity.’” (quoting Blake v. Wright,

179 F.3d 1003, 1012 (6th Cir. 1999))). I afford no weight to the Tapley and Blake

decisions, however, because they incorrectly focus their analysis on the policy

reasons supporting qualified immunity and “wrongly assume that immunity is the

default and exists unless Congress states otherwise.” Stramaski, 44 F.4th at 330

(Costa, J., concurring).

Lawley argues that the “FLSA’s good faith provisions couldn’t have been

intended to abolish public officials’ qualified immunity” because the good-faith

defenses were added to the FLSA before Congress expanded the statute’s coverage

to public employees. Dkt. 48 at 12. But with this argument, Lawley attempts to

impose a modern version of qualified immunity on a Congress that, after 1967 and

before 1982, understood qualified immunity to provide only a subjective, good-

faith defense to public officials. Lawley is correct that the good-faith defenses

under the FLSA initially applied only to private employees. Yet when Congress first

expanded the FLSA’s coverage to public employees in 1966, the Supreme Court

was still a year away from adopting the concept of qualified immunity in Pierson.

In 1974, when Congress expanded the FLSA to cover more public employees, the

good-faith defenses in the FLSA that were available to public employees were just

as broad as the qualified immunity created in Pierson, with each having a

subjective component. In other words, the FLSA’s good-faith defenses were akin

to a codification of the common law defense. It was not until 1982 in Harlow that

qualified immunity diverged from its common-law origins. At no point in the

relevant history of the FLSA amendments could Congress have indicated an intent

to abrogate the objective form of qualified immunity to which Lawley refers to

because that understanding of qualified immunity did not exist until 1982.

One might argue that if Congress intended the FLSA’s good-faith defenses

to operate as the traditional good-faith defense available to public officials at

common law, then it likely intended for qualified immunity to continue to apply to

public officials even as the judiciary expanded the definition of qualified immunity.

But, as explained above, qualified immunity has grown far beyond its common-law

origins. To reiterate, the Supreme Court has acknowledged that in Harlow, “the

Court completely reformulated qualified immunity along principles not at all

embodied in the common law, replacing the inquiry into subjective malice so

frequently required at common law with an objective inquiry into the legal

reasonableness of the official action.” Anderson, 483 U.S. at 645.6

Here, my task is to decide whether qualified immunity is available as a

defense in a situation completely divorced from § 1983 and Bivens actions: under

the FLSA, a statute enacted by Congress with enumerated defenses to liability.

Moreover, the Fifth Circuit has instructed me to consider whether policy reasons

support a finding that Congress, at the time of the FLSA’s enactment or at any

relevant time afterward, would have expressly abrogated qualified immunity.

Simply put, I must look at Congressional intent.

2. The FLSA’s History and Purpose Counsel Against Applying

Qualified Immunity to FLSA Actions

Assuming Lawley would have enjoyed immunity at common law, I “will not

recognize an immunity available at common law if [the FLSA]’s history or purpose

counsel against applying it in [FLSA] actions. Wyatt, 504 U.S. at 164.

6 Although the Supreme Court in Anderson indicated that “the precise contours of official

immunity” need not “be slavishly derived from the often arcane rules of the common law,”

483 U.S. at 645, the implications of this statement do not reach this case. Anderson

involved a Bivens action, a judicially created cause of action for constitutional violations

by federal officials. Moreover, the Supreme Court in Anderson was considering whether

it should create an exception to qualified immunity—not whether qualified immunity is

available to federal agents, as that issue had been previously resolved. See Scheuer, 416

U.S. at 247–48.

The Fifth Circuit has once before considered whether qualified immunity is

available under a statute other than § 1983 or Bivens actions. In Samuel v. Holmes,

the Fifth Circuit determined that qualified immunity is unavailable for retaliation

suits under the False Claims Act (“FCA”). See 138 F.3d 173, 178 (5th Cir. 1998).7 In

so doing, the Fifth Circuit stated that

qualified immunity seems particularly ill-suited in this context, given

the goals of the FCA . . . to discourage fraud against the government,

and the whistleblower provision [that] is intended to encourage those

with knowledge of fraud to come forward. Granting government

officials the protection of qualified immunity would hardly spur

reluctant employees to step forward.

Id. (quotation omitted).

The analysis in Samuel tracks the Supreme Court’s guidance that a statute’s

purpose is relevant in determining whether Congress intended qualified immunity

to be available. See Wyatt, 504 U.S. at 164 (proclaiming that a court shall “not

recognize an immunity available at common law if [the statute]’s history or

purpose counsel against applying it”); Buckley, 509 U.S. at 268 (“Our role is to

interpret the intent of Congress in enacting § 1983, not to make a freewheeling

policy choice.” (cleaned up)). “The principal congressional purpose in enacting the

[FLSA] was to protect all covered workers from substandard wages and oppressive

working hours.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739

(1981) (citing 29 U.S.C. § 202(a)). The purpose of the FLSA’s antiretaliation

provision is “to secure [the FLSA’s] substantive protections by preventing an

employer from interfering (through retaliation) with an employee’s efforts to

secure or advance enforcement of the [FLSA]’s basic guarantees.” Darveau v.

Detecon, Inc., 515 F.3d 334, 342 (4th Cir. 2008) (quotation omitted). Lawley does

not identify—and I cannot find—authority indicating that Congress intended for

7 The Fifth Circuit has applied qualified immunity in cases involving the Family and

Medical Leave Act (“FMLA”). See Bryant v. Tex. Dep’t of Aging & Disability Servs., 781

F.3d 764, 769–71 (5th Cir. 2015); Rutland v. Pepper, 404 F.3d 921, 924 (5th Cir. 2005).

In Bryant and Rutland, however, the Fifth Circuit assumed, with no analysis, that

qualified immunity was available under the FMLA.

public officials to be broadly immune from FLSA actions. To find such immunity

would surely frustrate the FLSA’s purpose in permitting a private right of action to

enforce the antiretaliation provision.

Considering the FLSA’s statutory defenses and the divergence of modern

qualified immunity from the common law good-faith defense, I find the tradition

of immunity is not supported by strong policy reasons. Therefore, the second

condition of the Stramaski test is not satisfied, and qualified immunity is

unavailable under the FLSA.

CONCLUSION

Because I find that qualified immunity is not an available defense under the

FLSA, I recommend that Defendant’s Motion to Dismiss (Dkt. 18) be denied.

The parties have 14 days from service of this Memorandum and

Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); FED. R.

CIV. P. 72(b)(2). Failure to file timely objections will preclude appellate review of

factual findings and legal conclusions, except for plain error.

SIGNED this day of March 2025.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE