Langston Austin v. Glynn County, Georgia

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10162

____________________

LANGSTON AUSTIN,

On behalf of themselves and all others similarly situated,

ERNEST FULLER, III,

On behalf of themselves and all others similarly situated,

Plaintiffs-Appellants,

versus

GLYNN COUNTY, GEORGIA,

E. NEAL JUMP,

Individually,

Defendants-Appellees.

____________________

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2 Opinion of the Court 21-10162

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:20-cv-00073-LGW-BWC

____________________

Before WILLIAM PRYOR, Chief Judge, MARCUS, Circuit Judge, and

MIZELLE,∗ District Judge.

MIZELLE, District Judge:

This appeal turns on whether Sheriff E. Neal Jump of Glynn

County, Georgia, and other sheriffs like him, act as arms of the

State of Georgia when making compensation decisions for their

employees. Under our precedent, the answer is yes. Because Sheriff

Jump is entitled to Eleventh Amendment immunity when per-

forming that function, we affirm the district court’s denial of leave

to amend and subsequent dismissal of the amended complaint.

I. BACKGROUND

Langston Austin and Ernest Fuller III worked as detention

officers for Glynn County under Sheriff Jump’s supervision. Their

duties included maintaining order in Glynn County jails and pris-

ons, supervising inmate activities, inspecting facilities, searching in-

mates for contraband, reporting on inmate conduct, and escorting

and transporting inmates. Although it is unclear from the record

whether the Officers are formally deputy sheriffs, see Manders v. Lee,

∗ Honorable Kathryn Kimball Mizelle, United States District Judge for the Mid-

dle District of Florida, sitting by designation.

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21-10162 Opinion of the Court 3

338 F.3d 1304, 1311 n.14 (11th Cir. 2003) (en banc) (explaining that

Georgia “[s]heriffs also may appoint persons to serve as jailers who

are not deputy sheriffs”), it is undisputed that they are at minimum

direct employees of Sheriff Jump, in his official capacity, akin to

deputies.

The Officers brought a Fair Labor Standards Act (FLSA) col-

lective action alleging that the County “illegally calculated [their]

and other [d]etention [o]fficers’ overtime wages.” The County

moved to dismiss for failure to state a claim. In response, the Offic-

ers amended their complaint to include Sheriff Jump in his individ-

ual capacity. The County and Sheriff Jump then moved to dismiss

the amended complaint for lack of subject-matter jurisdiction and

for failure to state a claim, arguing that neither defendant was the

Officers’ employer under the FLSA.

With our precedent against them about who qualified as an

employer under the FLSA, the Officers moved for leave to file a

second amended complaint to add Sheriff Jump, in his official ca-

pacity, as a defendant. The district court denied the motion, rea-

soning that amendment would be futile because Sheriff Jump was

entitled to Eleventh Amendment immunity in his official capacity.

The district court then dismissed the amended complaint and en-

tered final judgment against the Officers because neither the

County nor the Sheriff, in his individual capacity, were “employ-

ers” under the FLSA. The Officers timely appealed.

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4 Opinion of the Court 21-10162

II. STANDARDS OF REVIEW

Each issue raised in this appeal receives de novo review. We

review dismissals for failure to state a claim de novo, accepting all

factual allegations as true and considering them in the light most

favorable to the plaintiff. Blevins v. Aksut, 849 F.3d 1016, 1018–19

(11th Cir. 2017). We also review rulings regarding Eleventh

Amendment immunity and statutory interpretation de novo. Ser-

geeva v. Tripleton Int’l Ltd., 834 F.3d 1194, 1199 (11th Cir. 2016);

Abusaid v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298,

1303 (11th Cir. 2005). And we review de novo a determination that

a particular amendment to a complaint would be futile. Cockrell v.

Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (per curiam).

III. DISCUSSION

The FLSA requires that employers engaged in interstate

commerce meet minimum labor standards and working condi-

tions, including paying covered employees a minimum wage and

overtime. 29 U.S.C. §§ 202, 206, 207; see Josendis v. Wall to Wall Res-

idence Repairs, Inc., 662 F.3d 1292, 1298 (11th Cir. 2011). If an em-

ployer fails to pay required wages, the FLSA provides employees a

private cause of action to collect those unpaid wages. See 29 U.S.C.

§ 216(b). But the FLSA allows suits against “employers” only as de-

fined by the Act. Id. § 203(d). Moreover, the Eleventh Amendment

bars FLSA actions against arms of the State absent consent. See

Alden v. Maine, 527 U.S. 706, 712 (1999); Manders, 338 F.3d at 1308–

09.

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The Officers advance three arguments—none are meritori-

ous. The Officers first urge us to overturn Eleventh Circuit prece-

dent holding that public officials, in their individual capacities, are

not their subordinates’ “employers” under the FLSA. Second, the

Officers argue that the district court was wrong to conclude that a

Georgia sheriff, in his official capacity, is entitled to Eleventh

Amendment immunity when making compensation decisions re-

garding his employees. Finally, the Officers argue that, even if Sher-

iff Jump was entitled to Eleventh Amendment immunity, Georgia

has waived that immunity in federal court. We explain in turn why

each argument fails.

A. Sheriff Jump, in his Individual Capacity, is Not an “Employer”

under the FLSA

The district court correctly dismissed the Officers’ com-

plaint against Sheriff Jump in his individual capacity because he is

not an “employer” under the FLSA. See Welch v. Laney, 57 F.3d 1004,

1011 (11th Cir. 1995) (holding that an Alabama sheriff was not an

employer in his individual capacity under the Equal Pay Act); Was-

cura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999) (“The Equal Pay Act

is simply an extension of the FLSA and incorporates the FLSA’s def-

inition of ‘employer.’”). Under the FLSA, an employer “includes

any person acting directly or indirectly in the interest of an em-

ployer in relation to an employee.” 29 U.S.C. § 203(d). Our prece-

dent holds that a sheriff acting in his individual capacity has “no

control over [the plaintiff’s] employment and does not qualify as

[the plaintiff’s] employer.” Welch, 57 F.3d at 1011; Wascura, 169 F.3d

at 686 (“Welch establishes . . . that a public official sued in his

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6 Opinion of the Court 21-10162

individual capacity is not an ‘employer’ subject to individual liabil-

ity under the FLSA.”).

The Officers argue that other circuits disagree. So be it. Our

precedent controls, and we remain impotent as a panel to deviate

from it. Wascura, 169 F.3d at 687 (“[W]e are bound by the Welch

decision regardless of whether we agree with it.”); Thompson v. Al-

abama, 65 F.4th 1288, 1301 (11th Cir. 2023) (“Later panels must

faithfully follow the first panel’s ruling even when convinced the

earlier panel is wrong.” (citations and quotations omitted)).

In sum, because Sheriff Jump, in his individual capacity, is

not the Officers’ “employer” under the FLSA, we affirm the district

court’s dismissal of the Officers’ amended complaint on that

ground.

Two peripheral points to note. First, although the Officers’

amended complaint named the County as a defendant, the Officers

have not argued on appeal that the district court erred in conclud-

ing that the County was not the Officers’ employer under the

FLSA. Thus, the Officers have forfeited that issue. See Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When

an appellant fails to challenge properly on appeal one of the

grounds on which the district court based its judgment, he is

deemed to have abandoned any challenge of that ground.”). Sec-

ond, Sheriff Jump and the County at times before the district court

framed the “employer” question in terms of subject-matter juris-

diction. That is likely on account of our holding in Wascura that

“where a defendant in an FMLA suit does not meet the statutory

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definition of ‘employer,’ there is no federal subject matter jurisdic-

tion over the claim against that defendant.” 169 F.3d at 685. But

although Wascura drew on Welch’s analysis of the FLSA to interpret

the FMLA, Wascura did not backfill its jurisdictional holding on the

FMLA into the FLSA.

B. Sheriff Jump is Entitled to Immunity under the Eleventh Amend-

ment when Making Compensation Decisions for Employees

The district court denied the motion to amend to include

Sheriff Jump in his official capacity, concluding that Sheriff Jump

would be entitled to Eleventh Amendment immunity when mak-

ing compensation decisions for his employees. We agree with the

district court.

“The bar of the Eleventh Amendment to suit in federal

courts extends to States and state officials” when they act as “an

arm of the State.” Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 280 (1977). Whether an official is an “arm of the State”

“depends, at least in part, upon the nature of the entity created by

state law.” Id.; see also Manders, 338 F.3d at 1308 (“To receive Elev-

enth Amendment immunity, a defendant . . . need only be acting

as an ‘arm of the State,’ which includes agents and instrumentalities

of the State.”); cf. Biden v. Nebraska, 143 S. Ct. 2355, 2366–68 (2023)

(explaining that, in the standing context, MOHELA was “[b]y law

and function . . . an instrumentality of Missouri”). For over twenty

years, our Court has applied a four-factor test to determine

whether public officials act as arms of the State for purposes of the

Eleventh Amendment: “(1) how state law defines the entity; (2)

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8 Opinion of the Court 21-10162

what degree of control the State maintains over the entity; (3)

where the entity derives its funds; and (4) who is responsible for

judgments against the entity.” Manders, 338 F.3d at 1309; Miccosukee

Tribe of Indians of Fla. v. Fla. State Athletic Comm’n, 226 F.3d 1226,

1231 (11th Cir. 2000).

We keep in mind, though, that entities and officials act as an

“arm of the State” by “carrying out a particular function.” Manders,

338 F.3d at 1309. Therefore, courts applying the Manders factors

must engage in a “function-by-function inquiry” while remaining

vigilant that the “key question” is not “what powers sheriffs have,

but for whom sheriffs exercise that power.” Pellitteri v. Prine, 776 F.3d

777, 781–82 (11th Cir. 2015) (alterations adopted and quotations

omitted). We have previously held that a Georgia sheriff acts as an

arm of the State when making personnel decisions, see id. at 783,

and when promulgating policies and procedures governing condi-

tions of confinement, Andrews v. Biggers, 996 F.3d 1235, 1236 (11th

Cir. 2021). This appeal requires us to decide whether compensation

decisions by Georgia sheriffs are likewise acts of the State. For the

following reasons, we hold that they are.

1. How State Law Defines the Entity

We first examine how Georgia law defines the entity and the

authority to engage in the particular function at issue. Manders, 338

F.3d at 1309, 1319–20. The district court concluded that compensa-

tion is an “employee-related decision[]” that constitutes a State

function under Pellitteri. This appeal differs from Pellitteri, which

addressed personnel decisions distinct from the compensation-

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setting functions present here. But we agree that the first Manders

factor weighs in favor of immunity, if for a slightly different reason

than the district court articulated.

In Manders, we distilled “the essential governmental nature”

of Georgia sheriff’s offices to be enforcement of the law on behalf

of the State and the performance of “specific statutory duties, di-

rectly assigned by the State, in law enforcement, in state courts,

and in corrections.” 338 F.3d at 1319. As such, “sheriffs in Georgia

derive their power and duties from the State, are controlled by the

State, and counties cannot, and do not, delegate any law enforce-

ment power or duties to sheriffs.” Pellitteri, 776 F.3d at 780 (quoting

Manders, 338 F.3d at 1313). To be sure, “[t]he sheriff’s office is not

a division or subunit of [the] [c]ounty or its county governing

body,” but is “a separate constitutional office independent from

[the] [c]ounty and its governing body.” Manders, 338 F.3d at 1310

(citing Ga. Const. art. IX, § II, ¶ I(c)(1)). Thus, sheriffs constitute

“county officers” only in the sense that they ordinarily possess lim-

ited geographic jurisdiction and are elected by county voters. Pellit-

teri, 776 F.3d at 780; see also Ga. Const. art. IX, § I, ¶ III(a) (labeling

sheriffs “county officers”).

As evidence of sheriff’s offices’ independence from counties,

the Georgia Constitution prohibits a county from taking any

“[a]ction affecting any elective county office, the salaries thereof,

or the personnel thereof, except the personnel subject to the juris-

diction of the county governing authority.” Ga. Const. art. IX, § II,

¶ I(c)(1). And the Georgia Supreme Court has held that, although

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the Georgia Constitution permits “[t]he governing authority of

each county” to “fix the salary, compensation, and expenses of

those employed by such governing authority,” id. ¶ I(f), setting sal-

aries for the sheriff or sheriff’s office personnel is “not subject to the

jurisdiction of the county governing authority,” Warren v. Walton,

202 S.E.2d 405, 409 (Ga. 1973).

How Georgia law defines Sheriff Jump’s office—in particu-

lar, his authority over the salaries of his employees—favors view-

ing Sheriff Jump as “an arm of the State” when making compensa-

tion determinations. Here, the Officers assist Sheriff Jump in carry-

ing out his statutorily assigned corrections duties on behalf of the

State and are personnel working under Sheriff Jump’s supervision.

Because compensation decisions for overtime pay constitute

“[a]ction affecting [an] elective county office, the salaries thereof,

or the personnel thereof,” the County lacks authority to directly

interfere in those decisions. Pellitteri, 776 F.3d at 780 (quotations

omitted). Thus, Georgia law indicates that Sheriff Jump acts on be-

half of the State—not the County—when making compensation

decisions for his employees. See Ga. Const. art. IX, § II, ¶ I(c)(1).

The first Manders factor weighs in favor of immunity.

2. Degree of Control the State Maintains

We next analyze the degree of control that Georgia “main-

tains over the entity.” Manders, 338 F.3d at 1309, 1320–22. The dis-

trict court concluded that the second Manders factor weighed in fa-

vor of immunity because Georgia exercises substantial control over

the hiring and firing of deputy sheriffs and because sheriffs exercise

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those personnel-related powers on behalf of the State. Again, we

agree with the district court’s conclusion but for a slightly different

reason.

We explained in Pellitteri that “the State of Georgia exercises

substantial control over a sheriff’s personnel decisions.” 776 F.3d at

781. The same is true for a sheriff’s compensation-related decisions

concerning his employees. Although the County approves Sheriff

Jump’s budget and pays his employees’ salaries, Georgia limits how

much a county can restrict a sheriff’s ability to pay his employees.

While a county “may remove some funds from a sheriff’s budget,”

it may not remove “all funds.” Chaffin v. Calhoun, 415 S.E.2d 906,

908 (Ga. 1992) (emphasis in original). Instead, county commission-

ers are “under a duty to adopt a budget making reasonable and ad-

equate provision for the personnel and equipment necessary to en-

able the sheriff to perform his duties of enforcing the law and pre-

serving the peace.” Id. at 907–08 (quoting Wolfe v. Huff, 210 S.E.2d

699, 700 (Ga. 1974)). Neither can the County fix Sheriff Jump’s, or

his employees’, salaries. See Warren, 202 S.E.2d at 409; Pellitteri, 776

F.3d at 782. Instead, that aspect of the power of the purse lies with

Sheriff Jump, who exercises his authority on behalf of the State.

Moreover, the Governor of Georgia and the General Assem-

bly have the power to discipline sheriffs. Manders, 338 F.3d at 1321

(“[T]he Governor has broad investigation and suspension powers

regarding any misconduct by a sheriff in the performance of any of

his duties.” (citation and footnote omitted)). Georgia law provides

specific procedures for the Governor to investigate and discipline

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12 Opinion of the Court 21-10162

sheriffs for any alleged misconduct. See Ga. Code § 15-16-26. Coun-

ties, by contrast, “do[] not, and cannot, direct the [s]heriff” on “how

to hire, train, supervise, or discipline his deputies, what policies to

adopt, or how to operate his office.” Grech v. Clayton Cnty., 335 F.3d

1326, 1347 (11th Cir. 2003). The County lacks the authority to dis-

cipline Sheriff Jump for the way that he manages his office because

Georgia maintains control over sheriff discipline. And we must re-

member that a Georgia sheriff pays (or allegedly underpays at

times) employees, including detention officers, to assist him in ex-

ecuting his statutory duties for the State, not for a county. Thus,

when a Georgia sheriff makes compensation decisions for his em-

ployees, he remains under the control of the State in doing so. The

second Manders factor weighs in favor of immunity.

3. Where the Entity Derives its Funds

We next consider where Sheriff Jump derives the funds used

to compensate his employees. Manders, 338 F.3d at 1309, 1323–24.

The district court concluded that the third Manders factor weighed

in favor of immunity because Georgia requires the County to set

Sheriff Jump’s budget according to the State’s specifications and the

County cannot dictate how Sheriff Jump uses that budget. We

agree for both reasons.

First, although the County pays the salaries of Sheriff Jump’s

employees, Georgia law mandates that the County do so. Georgia

requires that expenses for deputies “shall” come from funds sepa-

rate from the funds that a county must spend on a sheriff’s salary.

Ga. Code § 15-16-20(c). In addition, the County must provide the

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Sheriff’s Office with a “reasonable and adequate” budget to carry

out Sheriff Jump’s legal duties. Chaffin, 415 S.E.2d at 907–08; see also

Wolfe, 210 S.E.2d at 700.

Second, although the County has the authority to approve

or deny Sheriff Jump’s budget, it cannot dictate how Sheriff Jump

uses the funds provided for his office. See Bd. of Comm’rs of Randolph

Cnty. v. Wilson, 396 S.E.2d 903, 904–05 (Ga. 1990); Pellitteri, 776 F.3d

at 782. Thus, when Sheriff Jump designates portions of his budget

for compensating employees like the Officers, he is exercising his

authority for the State and operating with substantial independ-

ence from the County.

The Officers reply that, at the end of the day, the funds still

primarily originate with the County. But that argument merely re-

states the conclusion of our unpublished decision in Keene v. Prine,

477 F. App’x 575, 578–79 (11th Cir. 2012), one that we expressly

rejected in Pellitteri, 776 F.3d at 782 (“In Keene, we found that th[e

third] factor weighed against immunity because the County is

clearly the principal source of funding for the Sheriff’s Office, in-

cluding for personnel expenditures. Here again, we recognize that

our prior unpublished opinion is inconsistent with this Court’s pub-

lished precedent.” (alterations and quotations omitted)). Just as it

did in Manders and Pellitteri, the third factor weighs in favor of im-

munity. See id. at 783; Manders, 338 F.3d at 1324.

4. Liability and Payment of Adverse Judgments

Finally, we consider who pays any adverse judgment against

Sheriff Jump. Manders, 338 F.3d at 1309, 1324–28. The district court

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14 Opinion of the Court 21-10162

concluded that the fourth Manders factor weighs against immunity

because the County remains obligated to pay any liabilities in-

curred by Sheriff Jump. We agree “to the extent that the [S]tate

treasury will be spared here from paying any adverse judgment.”

Pellitteri, 776 F.3d at 783. But because this factor is “certainly not

necessary for a finding of immunity” and the first three factors

weigh in favor of immunity, we hold that a Georgia sheriff acts as

an arm of the State when making compensation decisions for his

employees, including detention officers like Austin and Fuller. Id.

& n.2; see also Manders, 338 F.3d at 1328 (“The State’s ‘integrity’ is

not limited to who foots the bill.”).

Thus, Sheriff Jump, in his official capacity, is entitled to sov-

ereign immunity under the Eleventh Amendment. Any amend-

ment naming him in his official capacity would have been futile.

C. Georgia Has Not Waived Sovereign Immunity with Respect to the

Officers’ FLSA Claims

The Officers argue that even if Sheriff Jump acts on behalf of

the State when making compensation decisions regarding his em-

ployees, Georgia has waived Eleventh Amendment immunity for

employment suits. The Officers arrive at this conclusion by con-

tending that all employment disputes sound in breach-of-contract

and that the State has waived immunity for breach-of-contract

claims. See Ga. Const. art. I, § II, ¶ IX(c). But the “State’s consent to

suit must be ‘unequivocally expressed’ in the text.” Sossamon v.

Texas, 563 U.S. 277, 284 (2011) (quoting Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 99 (1984)). No such unequivocal

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21-10162 Opinion of the Court 15

expression exists, and certainly not as to FLSA claims like the Of-

ficers’. Moreover, the Georgia Constitution waives the State’s im-

munity from suit for breach-of-contract claims in Georgia’s courts,

not in federal court.

As a threshold matter, Georgia has not expressly waived its

sovereign immunity for claims under the FLSA. The standard for

waiver of Eleventh Amendment immunity is an exacting one. A

waiver “must employ language that is either explicit or else admits

of no other reasonable interpretation.” Schopler v. Bliss, 903 F.2d

1373, 1379 (11th Cir. 1990). The Officers never attempted to bring

a breach-of-contract claim and alleged only federal question juris-

diction in their complaint. They cannot now transmute the claim

that they brought—an FLSA claim for unpaid wages—into a

breach-of-contract claim by arguing that the former is “close

enough” to trigger Georgia’s waiver provision. A state’s waiver of

sovereign immunity is neither horseshoes nor hand grenades—

“close enough” is “not enough.” We will not drastically expand

Georgia’s limited immunity waiver absent an explicit statement in

Georgia law.

Even if we were inclined to agree with the Officers as to the

general scope of Georgia’s sovereign immunity waiver, that waiver

would still not apply here because the State must “specify” that it

intends “to subject itself to suit in federal court.” Port Auth. Trans-

Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) (emphasis in origi-

nal) (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241

(1985), superseded by statute on other grounds as recognized by Lane v.

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16 Opinion of the Court 21-10162

Pena, 518 U.S. 187, 197–98 (1996)). In other words, “a [s]tate does

not consent to suit in federal court merely by consenting to suit in

the courts of its own creation.” Coll. Sav. Bank v. Fla. Prepaid Post-

secondary Educ. Expense Bd., 527 U.S. 666, 676 (1999).

Georgia has consented to breach-of-contract suits only in

courts of its own creation. Georgia law provides that “[v]enue with

respect to any [breach-of-contract] action shall be proper in the Su-

perior Court of Fulton County, Georgia.” Ga. Code § 50-21-1(b).

The Georgia Constitution further provides that “[n]o waiver of

sovereign immunity . . . shall be construed as a waiver of any im-

munity provided to the [S]tate or its departments, agencies, offic-

ers, or employees by the United States Constitution.” Ga. Const.

art. I, § II, ¶ IX(f). Thus, Georgia “retained its Eleventh Amend-

ment immunity” from suits in federal court for breach-of-contract

claims because no statute or constitutional provision “expressly

consents to suits in federal court.” Barnes v. Zaccari, 669 F.3d 1295,

1308 (11th Cir. 2012).

IV. CONCLUSION

Accordingly, both the district court’s denial of the Officers’ motion

for leave to amend and its ultimate dismissal of the amended com-

plaint are AFFIRMED.