 Elaine L. Chao, Secretary of Labor, United States Department of Labor v. Commonwealth of Virginia, No. 3:95cv1026. On March 27, 1996, while the VDOT…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ELAINE L. CHAO, SECRETARY OF
LABOR, UNITED STATES
DEPARTMENT OF LABOR,
Plaintiff-Appellee,
No. 01-1965 v.
VIRGINIA DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellant. 
 ELAINE L. CHAO, SECRETARY OF
LABOR, UNITED STATES
DEPARTMENT OF LABOR,
Plaintiff-Appellee,
No. 01-2195 v.
VIRGINIA DEPARTMENT OF
TRANSPORTATION,
Defendant-Appellant. 
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-00-457)
Argued: February 25, 2002
Decided: May 23, 2002
Before LUTTIG and GREGORY, Circuit Judges, and
Henry M. HERLONG, Jr., United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Gregory wrote the opinion, in which Judge Luttig and
Judge Herlong joined.
COUNSEL
ARGUED: Sydney E. Rab, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant.
Ford Friel Newman, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Appellee. ON BRIEF: Randolph A.
Beales, Attorney General of Virginia, Francis S. Ferguson, Chief
Deputy Attorney General, Judith W. Jagdmann, Deputy Attorney
General, Guy W. Horsley, Jr., Senior Assistant Attorney Gener-
al/Chief, Anthony P. Meredith, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lant. Eugene Scalia, Solicitor of Labor, Steven J. Mandel, Associate
Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Appellee.
OPINION
GREGORY, Circuit Judge:
Two questions are presented for review in this appeal. First, we
must determine whether Virginia’s sovereign immunity bars an action
brought by the Secretary of Labor under §§ 16(c) and 17 of the Fair
Labor Standards Act (FLSA or the Act), 29 U.S.C. § 201 et seq.,
against the Virginia Department of Transportation (VDOT). Second,
we must determine whether the Secretary of Labor is entitled to equi-
table tolling of the statute of limitations applicable to certain actions
brought by the Secretary under the Act. 29 U.S.C. § 255. For the fol-
lowing reasons, we hold that the VDOT is not immune from suit by
the Federal Government for violations of the Act, and that the Secre-
tary’s claims that are subject to the statute of limitations are time-
barred. Accordingly, we affirm in part and reverse in part.
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I.
The Secretary’s suit alleges that the VDOT has violated the over-
time wage and record-keeping provisions of the FLSA, 29 U.S.C.
§§ 207, 211(c), 215(a)(2), by not paying VDOT inspectors for time
traveling between work sites. The Secretary asserts that site-to-site
travel must be regarded as work and hence is compensable as over-
time under § 7 of the Act, 29 U.S.C. § 207. The VDOT asserts that
time spent traveling between sites should be regarded as commuting,
and therefore should not be counted in calculating the maximum
workweek, 29 U.S.C. § 254. See also Hours Worked, 29 C.F.R. pt.
785 (2001). The Secretary seeks permanent and restitutionary injunc-
tive relief in the form of back wages. 29 U.S.C. § 217. The VDOT
takes the position that it is immune from suit, and that certain of the
Secretary’s claims are, in any event, time-barred.
To understand the issues presented by this appeal, a brief review
of two prior lawsuits is necessary. In 1995, several VDOT inspectors
filed a private action against the VDOT in the Eastern District of Vir-
ginia seeking back wages, based on the same violations at issue here.
Three-hundred fifty-two inspectors eventually joined the suit. Taylor
v. Commonwealth of Virginia, No. 3:95cv1026. On March 27, 1996,
while the VDOT inspectors’ suit was pending in the district court, the
Supreme Court issued its decision in Seminole Tribe v. Florida, 517
U.S. 44 (1996), holding that Congress could not abrogate a State’s
Eleventh Amendment immunity1 from private suit by the citizens of
the State in federal court pursuant to Article I’s Commerce Clause,
U.S. Const. art. I, § 8. 517 U.S. at 76. After the decision in Seminole
Tribe, the VDOT inspectors asked the Secretary of Labor to intervene
in the federal suit. Citing limited resources, the Secretary declined to
intervene. The Secretary did, however, offer to file an amicus brief
addressing sovereign immunity if the VDOT inspectors refiled their
lawsuit in state court. Letter from Diane A. Heim, Counsel, Office of
the Solicitor, Dept. of Labor, to James B. Thorsen, Esq. (June 21,
1996); J.A. 110. The federal lawsuit was dismissed pursuant to Semi-
nole Tribe. Taylor v. Commonwealth of Virginia, 170 F.R.D. 10 (E.D.
Va. 1996).
1We use "Eleventh Amendment immunity" and "sovereign immunity"
interchangeably.
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The VDOT inspectors then filed a second lawsuit against the
VDOT in the Richmond Circuit Court alleging the same violations of
the FLSA. Griffin v. VDOT, LB-2505-1 (Va. Cir. Ct. Richmond Oct.
8, 1996). The VDOT moved for dismissal, again arguing the suit was
barred by Virginia’s sovereign immunity. The Secretary sought to file
an amicus brief arguing that Virginia was not immune from suit under
the FLSA by private individuals in state court. Despite refusing to
permit the participation of the Secretary as amicus curiae, the circuit
court judge concluded that the suit was not barred by Virginia’s sov-
ereign immunity. For procedural reasons not relevant here, the circuit
court judge then ordered that the case be split into groups of VDOT
inspectors. The claims of the first group of forty inspectors proceeded
to trial in November 1998, and the jury returned a verdict in favor of
the VDOT. The claims of the remaining plaintiffs remained in a pre-
trial posture. On June 23, 1999, the Supreme Court issued its decision
in Alden v. Maine, 527 U.S. 706 (1999), holding that the Eleventh
Amendment bars employees from bringing FLSA enforcement cases
against nonconsenting states in state court. Shortly thereafter, the
Supreme Court of Virginia held, in an unrelated case, that the Com-
monwealth had not consented to suit under the FLSA. Commonwealth
v. Luzik, 259 Va. 198, 208, 524 S.E.2d 871, 878 (2000). The Secre-
tary then sought to intervene in the VDOT inspectors’ state case, but
her motion was denied. The VDOT renewed its motion to dismiss
based on Alden, and the motion was granted on May 10, 2000. J.A.
61.
On July 18, 2000, the Secretary filed the instant lawsuit, alleging
violations of §§ 7 and 15(a)(2) of the Act, 29 U.S.C. §§ 207,
215(a)(2), and seeking a permanent injunction and back wages on
behalf of the inspectors whose claims were not heard in the prior liti-
gation, 29 U.S.C. § 217. The Secretary also alleged that the VDOT
violated § 11(c) of the Act, 29 U.S.C. § 211(c), by not keeping ade-
quate records of hours worked by inspectors. The VDOT filed a
motion to dismiss for lack of subject matter jurisdiction, again argu-
ing that Virginia was immune from suit under the Eleventh Amend-
ment. The VDOT also filed a motion for summary judgment, arguing
that the Secretary’s suit was time-barred. The district court denied
both motions, holding that the VDOT was not immune from suit by
the Federal Government and that the Secretary was entitled to equita-
ble tolling of her claims seeking back wages. The district court also
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held that the Secretary’s claims asserting record-keeping violations
were not subject to the statute of limitations.2
The VDOT took an immediate appeal of the order denying sover-
eign immunity, 29 U.S.C. § 1291; see Eckert Int’l Inc. v. Sovereign
Democratic Republic of Fiji, 32 F.3d 77, 78 (4th Cir. 1994) (holding
order denying sovereign immunity is an immediately appealable col-
lateral order); City of Virginia Beach v. Roanoke River Basin Assoc.,
776 F.2d 484, 486 n. 2 (4th Cir. 1985), and sought certification for
an interlocutory appeal of the order giving the government the benefit
of equitable tolling. The district court granted certification pursuant
to 28 U.S.C. § 1292(b), and this court granted permission to file the
appeal. The appeals were consolidated. The case is stayed in the dis-
trict court pending resolution of the appeal.
II.
The district court’s determination of subject matter jurisdiction is
reviewed de novo. New Horizon of NY, LLC v. Jacobs, 231 F.3d 143,
150 (4th Cir. 2000). We review the district court’s ruling on equitable
tolling for abuse of discretion. Alli-Balogun, 281 F.3d 362, 367-68
(2d Cir. 2002).
III.
The VDOT’s first contention is that the district court erred in ruling
that this suit was not barred by Virginia’s sovereign immunity. We
disagree, and hold that the VDOT is not entitled to sovereign immu-
nity.
Our federal system is premised on the principle that the States pos-
sess "a residuary and inviolable sovereignty" that the Constitution
preserved. The Federalist No. 39, at 258 (James Madison) (I. Kram-
2On appeal, the VDOT offers no substantive argument that the statute
of limitations does apply to the record-keeping violations. Instead, the
VDOT relies on 29 C.F.R. § 516.5, which requires employers to keep
certain records for a period of three years. This regulation clearly relates
to the VDOT’s obligations under the FLSA, not to the timing of the Sec-
retary’s suit.
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nick ed. 1987); see Alden, 527 U.S. at 714-15 (quoting The Federalist
No. 39); Seminole Tribe, 517 U.S. at 71 n. 15 ("The Constitution spe-
cifically recognizes the States as sovereign entities."); Blatchford v.
Native Village of Noatak, 501 U.S. 775, 779 (1991) ("[T]he States
entered the federal system with their sovereignty intact."). It is now
settled doctrine that one of the retained attributes of sovereignty is
immunity from suit, without consent, "save where there has been a
‘surrender of this immunity in the plan of convention.’ The Federalist,
No. 81." Principality of Monaco v. Mississippi, 292 U.S. 313, 322-23
(1934); Blatchford, 501 U.S. at 781; Seminole Tribe, 517 U.S. at 54;
Alden, 527 U.S. at 729.
It is also settled that, in ratifying the Constitution, the States surren-
dered their immunity from suit by the Federal Government. See, e.g.,
United States v. Texas, 143 U.S. 621, 644 (1892); Principality of
Monaco, 292 U.S. at 329 (collecting cases); United States v. Missis-
sippi, 380 U.S. 128, 140 (1965) (stating that "nothing in the [Eleventh
Amendment] or any other provision of the Constitution prevents or
has ever been seriously supposed to prevent a State’s being sued by
the United States."); Alden, 527 U.S. at 755-56; South Carolina State
Ports Authority v. Federal Maritime Comm’n, 243 F.3d 165, 176 (4th
Cir. 2001) (stating that sovereign immunity does not bar suit in "cases
brought against a state by the United States or other states"); Bell
Atlantic Maryland, Inc. v. MCI WorldCom, Inc., 240 F.3d 279, 289
n.1 (4th Cir. 2001) ("A State’s sovereign immunity does not preclude
suits brought in federal court by the federal government, or by a sister
State, because inherent in the plan of the Constitutional Convention
was the surrender by the States of immunity as to these suits." (cita-
tions omitted)).
The VDOT seeks to avoid the result demanded by established pre-
cedent by arguing that this suit for back wages is essentially a private
suit, which would be subject to the state’s sovereign immunity.
According to the VDOT, Virginia retains its sovereign immunity if
the Federal Government is not the "real party in interest." Appellant’s
Br. at 21. The VDOT asserts that the circumstances of the Secretary’s
suit demonstrate that the government is not asserting a "national inter-
est" in this case, but is merely asserting a "private interest" in back
wages on behalf of the inspectors. In addition to the nature of the
relief sought, the VDOT points to the fact that the Secretary had pre-
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viously decided that suit by the Federal Government was unwar-
ranted. This proves, the VDOT contends, that the United States is not
the real party in interest, but is merely acting on behalf of the VDOT
inspectors in order to avoid the prohibition of the Eleventh Amendment.3
For this proposition, the VDOT cites New Hampshire v. Louisiana,
108 U.S. 76 (1883).
In New Hampshire, the Court held that a state retained its sovereign
immunity when sued by another state that is only nominally a party-
plaintiff. 108 U.S. at 88-91. In New Hampshire, a number of New
Hampshire and New York citizens owned Louisiana bonds on which
Louisiana had defaulted. Because the individual citizens were barred
from suing Louisiana by the Eleventh Amendment, New York and
New Hampshire passed statutes authorizing citizens to assign their
claims to the state, provided the citizens paid all expenses of the liti-
gation. New York and New Hampshire then sought to sue Louisiana
as "representatives" of their citizens. The Supreme Court held that this
was an impermissible attempt to subvert the Eleventh Amendment.
Id.
The VDOT’s reliance on New Hampshire is misplaced. The Court
explained why New Hampshire’s and New York’s participation as
named plaintiffs could not defeat Louisiana’s sovereign immunity:
"[New York] as well as New Hampshire is nothing more nor less than
a mere collecting agent of the owners of the bonds and coupons, and
while the suits are in the names of the states, they are under the actual
control of individual citizens, and are prosecuted and carried on alto-
3As an initial matter, the VDOT fails to acknowledge that the Secre-
tary of Labor is also seeking a prospective injunction. Despite the fact
that the VDOT has largely brought itself into compliance with the FLSA,
there appear to be some areas of the VDOT’s legal obligations for the
future that are still in dispute. Chao v. VDOT, 157 F. Supp.2d at 690.
Surely the Federal Government’s interest in Virginia’s future compliance
with the FLSA is not a purely private interest, even as the VDOT defines
it. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
Consequently, even if we were to accept the VDOT’s articulation of the
limits of the Federal Government’s power to sue the States, we would
find that this suit is not barred (at least with respect to the request for a
prospective injunction) by Virginia’s sovereign immunity.
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gether by and for them." Id. at 89 (emphasis added). Here, the Secre-
tary’s suit has the political control found lacking in New Hampshire.
The case is being litigated by lawyers within, and is under the full
control of, the Executive Branch. See South Dakota v. North Caro-
lina, 192 U.S. 286 (1904) (holding that suit brought by, and con-
trolled by, South Dakota against Louisiana on bonds owned by South
Dakota not barred by the Eleventh Amendment); cf. Vermont Agency
of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765,
802 (2000) (Stevens, J., dissenting) (comparing New Hampshire and
South Dakota); see also United States ex rel. Milam v. University of
Texas M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992)
(holding qui tam suit under False Claims Act not barred by states’
sovereign immunity, relying in part on the extensive power of the
government to control the litigation).
The Supreme Court addressed the scope of the States’ consent to
suit by the Federal Government in Alden v. Maine:
In ratifying the Constitution, the States consented to suits
brought by other States or by the Federal Government. A
suit which is commenced and prosecuted against a State in
the name of the United States by those who are entrusted
with the constitutional duty to "take Care that the Laws be
faithfully executed," U.S. Const., Art. II, § 3, differs in kind
from the suit of an individual: While the Constitution con-
templates suits among the members of the federal system as
an alternative to extralegal measures, the fear of private suits
against nonconsenting States was the central reason given
by the Founders who chose to preserve the States’ sovereign
immunity. Suits brought by the United States itself require
the exercise of political responsibility for each suit prose-
cuted against a State, a control which is absent from a
broad delegation to private persons to sue nonconsenting
States.
Id. at 755-56 (emphasis added). There can be no doubt that the Secre-
tary, having invoked her authority under the FLSA, has taken "politi-
cal responsibility" for this suit; it is precisely the sort of suit that has
always been thought to fall within the Federal Government’s exemp-
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tion from state sovereign immunity. The Court expanded on this prin-
ciple in the concluding paragraph of the opinion in Alden:
Despite specific statutory authorization, see 29 U.S.C.
§ 216(c), the United States apparently found the [federal]
interests insufficient to justify sending even a single attorney
to Maine to prosecute this litigation. The difference between
a suit by the United States on behalf of the employees and
a suit by the employees implicates a rule that the National
Government must itself deem the case of sufficient impor-
tance to take action against the State; and history, precedent,
and the structure of the Constitution make clear that, under
the plan of the convention, the States have consented to suits
of the first kind but not of the second.
Id. at 759-60. The presence vel non of political responsibility also
explains the Supreme Court’s expression of doubt, in Blatchford v.
Native Village of Noatak, 501 U.S. 775, 785 (1991), that the Federal
Government’s exemption from state sovereign immunity can be dele-
gated to private individuals: "The consent, ‘inherent in the conven-
tion,’ to suit by the United States—at the instance and under the
control of responsible federal officers—is not consent to suit by any-
one whom the United States might select." Id. Because the Federal
Government has "deem[ed] the case of sufficient importance to take
action against the State," Alden, 527 U.S. at 760, Virginia’s sovereign
immunity is no bar to the Secretary’s suit.4
4The Secretary’s suit, of course, serves another interest not shared by
one State’s suit against another, such as in New Hampshire. Even in a
case like this, where the immediate beneficiaries of the Secretary’s suit
are specific private individuals, the Federal Government has an interest
in enforcing federal law, even as against the States. The Federalist No.
80, at 445; see Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528
(1985). A State’s interest in the conduct of another State is only that of
a co-equal sovereign. New Hampshire does not have the general power
to declare that Louisiana must pay its debts. The Framers understood that
the States’ consent to suit by other States was based on, and was limited
by, the need to preserve the peace among the States in the Union. The
Federalist No. 80, at 446; Principality of Monaco v. Mississippi, 292
U.S. 313, 328 (1934). Such consent was not an acknowledgment that the
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IV.
The VDOT’s second argument on appeal is that the district court
erred in equitably tolling the statute of limitations. We agree. Under
the FLSA, the Secretary of Labor may obtain an injunction which
restrains an employer from continuing to withhold unpaid overtime
compensation due an employee, "except sums which employees are
barred from recovering, at the time of commencement of the action
to restrain the violations, by virtue of the provisions of section 255 of
this title[.]" 29 U.S.C. § 217. Section 255 provides, upon the finding
of willful violations, a three year period of limitation to run from the
date of the cause of action accrued. 29 U.S.C. § 255. The parties agree
that, under these provisions, the three year period ran, at the latest, on
December 31, 1997. The Secretary filed suit on July 18, 2000, over
two and one-half years later. The district court held that the Secretary
was entitled to equitable tolling because she reasonably relied on the
state of the law prior to Seminole Tribe and Alden. Chao v. VDOT,
157 F. Supp.2d at 704-05.
"[A]ny invocation of equity to relieve the strict application of a
statute of limitations must be guarded and infrequent, lest circum-
stances of individualized hardship supplant the rules of clearly drafted
States were proper objects of other States’ sovereignty. The Federal Gov-
ernment’s interest, in contrast, is that of a higher sovereign, and source
of the supreme law of the land. U.S. Const. art. VI. And those who bring
suit in the name of the United States are "entrusted with the constitu-
tional duty to ‘take Care that the Laws be faithfully executed,’ U.S.
Const. Art. II, § 3[.]" Alden, 527 U.S. at 729. The Federal Government’s
superior position in the constitutional structure thus suggests that the lim-
its of the States’ consent to suit by other States do not coincide with the
limits of the States’ consent to suit by the United States. See Jonathon
R. Siegel, The Hidden Source of Congress’s Power to Abrogate State
Sovereign Immunity, 73 Tex. L. Rev. 539, 554 (1995); but see Evan H.
Caminker, State Immunity Waivers For Suits by the United States, 98
Mich. L. Rev. 92, 118-19 (1999) (suggesting limits to the Federal Gov-
ernment’s exemption from the States’ sovereign immunity in cases
where United States does not have a tangible injury). For this reason as
well, the VDOT’s reliance on New Hampshire or other cases describing
suits by entities other than the Federal Government is misplaced.
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statutes." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000);
Spencer v. Sutton, 239 F.3d 626, 629 (4th Cir. 2001). The circum-
stances under which equitable tolling has been permitted are therefore
quite narrow. Equitable tolling has been allowed "in situations where
the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where the complain-
ant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass." Irwin v. Dept. of Veterans, 498
U.S. 89, 96 (1990). We have also recognized that equitable tolling is
appropriate when "extraordinary circumstances beyond plaintiffs’
control made it impossible to file the claims on time." Harris, 209
F.3d at 330 (quoting Alvarez-Machain v. United States, 107 F.3d 696,
700 (9th Cir. 1996)). Equitable tolling is not appropriate, however,
"where the claimant failed to exercise due diligence in preserving his
legal rights." Irwin, 498 U.S. at 96.
The Secretary of Labor filed no pleading in this case, defective or
otherwise, during the limitations period. Nor did the VDOT contrib-
ute in any way to her delay in filing. Consequently, the Secretary is
entitled to equitable tolling only if she acted diligently to protect her
rights, but was prevented from filing a timely claim due to extraordi-
nary circumstances beyond her control.
The Secretary contends that she has met this standard because the
individual employees diligently pursued their private claims, and she
acted reasonably in declining to intervene until after Alden. She mis-
construes the nature of the inquiry. The diligence of the private plain-
tiffs is of no moment in considering the government’s conduct. The
question is whether the delinquent plaintiff has done everything she
can to preserve her rights. In this case, it is beyond peradventure that
she did not. Morever, "reasonableness" is not the touchstone of equi-
table tolling. We do not doubt that the Secretary’s decision not to ini-
tiate litigation was a reasonable exercise of her obligation to allocate
resources in the face of uncertain future events. But that kind of rea-
sonableness does not answer the question of whether she should be
excused from the natural consequences of the decision. The Secretary
specifically declined to join the litigation after Seminole Tribe, citing
limited resources, even though the plaintiffs had requested that she
intervene. J.A. 110. Her decision to wait was obviously based on an
evaluation of the costs and benefits of not bringing suit. The law of
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sovereign immunity was known to be in a state of flux prior to Alden.
In declining to intervene after Seminole Tribe, the Secretary offered
to file an amicus brief in the inspectors’ state court case arguing—the
Alden issue—that sovereign immunity did not apply except in suits in
federal court. J.A. 110. Aware of the risks, the Secretary decided not
to file suit. She now seeks to avoid the then-known potential conse-
quences of her actions. Unfortunately for the VDOT inspectors in this
case, who must ultimately bear the burden, equitable tolling cannot
relieve the Secretary of responsibility for hard choices.
"[I]n the long run, experience teaches that strict adherence to the
procedural requirements specified by the legislature is the best guar-
antee of evenhanded administration of the law." Baldwin County Wel-
come Ctr. v. Brown, 466 U.S. 147, 152 (1984). Accordingly, we find
that the Secretary is not entitled to equitable tolling of the statute of
limitations. The claims subject to the statute of limitations are there-
fore time-barred.
V.
The judgment of the district court is affirmed in part, and reversed
in part, and the case is remanded for further proceedings consistent
with this opinion.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
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