USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION XX -- RELATIONSHIP BETWEEN 29 C.F.R. PART 24 AND OTHER REMEDIES

In Saporito v. Florida Power & Light Co., 94-ERA-35 (ALJ Apr. 5, 1995), the Complainant had submitted a complaint to the NRC. The NRC sent a copy of the complaint to the Respondent power company, seeking its views on the issues raised by the Complainant. The Respondent power company filed a lengthy response that included a cover letter signed by the Respondent's President, Nuclear Division. In the cover letter, the President made negative comments about the Complainant and urged the NRC to consider cautioning the Complainant about redundant and baseless filings. The Complainant and the Respondent had been involved in several prior and ongoing proceedings before the Department of Labor and the NRC.

The Complainant charged in his current complaint that the cover letter was "inherently discriminatory conduct and is therefore self-proving discrimination and deemed to be illegal conduct under the ERA." ALJ slip op. at 12, quoting Complaint at 11-12. The ALJ concluded that the Respondent's outpouring in response to the NRC's request for comments was privileged under the First Amendment -- a right to petition the Government for redress of grievances. Any adverse effect the Respondent's statement may have had on the Complainant's business activities could not, in the ALJ's view, supersede the protection afforded to the Respondents (the complainant was directed at both the power company and its law firm) by the First Amendment.

[Nuclear & Environmental Digest XX A]
WHISTLEBLOWER PROVISIONS DO NOT PRECLUDE FIRST AMENDMENT SUIT

The court in Charvat v. Eastern Ohio Regional Wastewater Authority , 246 F.3d 607, 2001 WL 336462 (6th Cir. Apr. 9, 2001) (relates to 1996-ERA-37), held that the whistleblower provisions of the Clean Water Act, 33 USC § 1367(a) and the Safe Drinking Water Act, 42 USC § 300j-9(i), do not preclude a complainant from bringing a suit under 42 USC § 1983 for alleged retaliation in violation of protected First Amendment rights.

XX. A. Relationship between 29 C.F. R. Part 24 and the United States Constitution

In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994), the Secretary noted that administrative agencies have no authority to rule on the constitutionality of statutes. Citing Oestereich v. Selective Serv. System Local Bd., 393 U.S. 233, 242 (1968) (Harlan, J., concurring); Public Util. v. United States, 355 U.S. 534, 539 (1958).

XX A Relationship of Part 24 remedy to U.S. Constitutional claims

In Marchese v. Goldsmith, 1994 U.S. Dist. LEXIS 7940 (E.D. Pa. 1994), aff'd without op., 1995 U.S. App. LEXIS 2694 (3d Cir. 1995) (order denying motion for new trial in First Amendment case; related Part 24 action 92-WPC-5), the plaintiff was awarded a jury verdict of $163,000 in lost wages based upon his assertion that the defendants violated his First Amendment rights by firing him in retaliation for reporting the sample tampering, and based upon a state whistleblower law claim.

[ Editor's note: This decision does not contain a discussion of the relationship between the First Amendment claim and the Complainant's FWPCA complaint pending before the Dept. of Labor. It is case noted for this Digest for background.]

XX A Private cause of action under U.S. Constitution

A federal employee does not have a private cause of action under the United States constitution based on alleged harassment and intimidation resulting from safety concerned voiced by that employee because he or she has alternative remedies under the Civil Service Reform Act, 23 USC § 2301 and the ERA. Jones v. Tennessee Valley Authority, 1991 US App LEXIS 25777 (6th Cir. 1991).

XX. A. Relationship between 29 C.F. R. Part 24 and the United States Constitution

As to Eleventh Amendment/state sovereign immunity , see the casenotes at XX.E. below.

[Nuclear and Environmental Whistleblower Digest XX B 1]
JURISDICTION; SEAMAN COVERED BY U.S. COAST GUARD RULES ON SAFETY AND HEALTH; FACT THAT OSH ACT ANTI-RETALIATION PROVISION IS PREEMPTED DOES NOT PRECLUDE INVESTIGATION OF ENVIRONMENTAL WHISTLEBLOWER COMPLAINTS; NEED TO EXAMINE PURPOSES OF ACTS TO DETERMINE JURISDICTION

Although the OSH Act's prohibition against employer retaliation, 29 U.S.C.A. § 660(c)(1), is pre-empted for blue-water seamen, such preemption does not necessarily preclude OSHA from investigating employee whistleblower complaints filed under the environmental statutes. In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the ARB therefore had to examine the purposes of each of the six whistleblower acts cited by the Complainant -- a merchant seaman -- and then determine whether any of several alleged environmental violations were related to the concerns covered by the acts in order to determine whether the Complainant had established subject matter jurisdiction. In Culligan , the Board concluded that none of the environmental statutes conferred subject matter jurisdiction over the Complainant's complaints, but declined to dismiss on this ground because there was some ambiguity about exactly where the protected activities that could have potentially affected the environment took place. The Board found a remote possibility that some of the incidents could be covered by CERCLA or the FWPCA, and therefore proceeded to an alternative finding on the merits of the complaints.

XX B 1 When Section 210 of the ERA Controls the Issue Whether Relief Should Flow from an Employee's Dismissal from Employment, Such Provision Serves as the Employee's Exclusive Remedy under Federal Law.

The complainant alleged that he was terminated for refusing to cooperate in his employer's willful violations of federal law during the construction of a nuclear power plant. The employee brought a civil action which included a count for civil RICO. The court dismissed the RICO claim. In ruling that §210 of the ERA served as the employee's exclusive remedy against his employer, the court relied on a line of circuit court cases, including the tenth circuit in which the case arose, holding that an aggrieved employee lacks standing to bring a RICO claim in the instance of a wrongful discharge. The court reasoned: "Adverse employment actions were not caused by the predicate acts but were the result of an employer's decision to retaliate against the employee's whistleblowing of or lack of cooperation in the illegal or fraudulent predicate acts".

Crediting the legislative history, the detailed and remedial scheme, and the comprehensive judicial and administrative remedies available, the court found that §210, when invocable, serves as the exclusive remedy to a discharged employee. Masters v. Daniel International Corporation, 1991 U.S. Dist. LEXIS 7595; 6 BNA IER Cases 948 (May 3, 1991).

[Nuclear & Environmental Digest XX B 1]
DOE ISSUES INTERIM FINAL RULE FOR DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM

On March 15, 1999, the Department of Energy issued an interim final rule on DOE's contractor employee protection program at 10 C.F.R. Part 708. 64 Fed. Reg. 12862-01 (Mar. 15, 1999). The rule covers more than just section ERA § 211(a), 42 U.S.C. § 5851(a), types of activities, and includes, for example, matters such as those that would be covered by section 11(c) of the OSH Act and OSHA workplace safety regulations. Compare 10 C.F.R. §§ 708.5 through 708.7 with 29 C.F.R. § 1977.12(b)(2).

DOE's interim final rule excludes from coverage employee complaints that are submitted for review under DOL regulations found at 29 C.F.R. Part 24, to avoid a situation where an employee could simultaneously pursue the same whistleblower complaint in more than one forum. See 10 C.F.R. §§ 708.4(c), 708.15(a), 708.15(d), 708.17(c)(3). The rule, however, recognizes an exception when the prior complaint under 29 C.F.R. Part 24 is dismissed for lack of jurisdiction by the DOL. See 10 C.F.R. § 708.15(a).

XX.B.1. Exclusiveness of Remedy

Employee filed a section 210 claim under the ERA which was dismissed as untimely by the Secretary. Employee filed new actions under the Civil Rights Statutes, 42 U.S.C. §§ 1983 and 1985, and later under RICO. The court agreed with the Fifth and Tenth Circuits that the administrative remedy provided in section 210 is exclusive. Norman v. Niagara Power Corp., 873 F.2d 634, 637 (2nd Cir. 1989).

XX B 1 Inapplicability of FECA

Employee filed claim with Department of Labor, alleging that his job transfer was the result of deliberate discrimination by employer (TVA) against him due to his participation in the NRC inspection process. The Secretary awarded relief to employee wholly under section 5851 of the ERA. The court held that the Secretary's order was correct and FECA did not provide relief in this case. FECA provides generally for compensation upon disability or death of employees due to "personal injury," 5 U.S.C. § 8102, and an "injury" "does not appear to include such claims as ... for discrimination, mental distress, or loss of employment."
DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983) ( quoting Sullivan v. United States, 428 F.Supp. 79, 81 (E.D. Wis. 1977)).

XX.B.2. Res Judicata

Employee filed a section 210 claim under the ERA which was dismissed as untimely by the Secretary. Employee filed new actions under the Civil Rights Statutes, 42 U.S.C. §§ 1983 and 1985, and later under RICO. Court held that even though no RICO claim was alleged in the earlier action, "[n]ew legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata." Teltronics, 762 F.2d at 193 (quoted in district court's opinion). Norman v. Niagara Power Corp., 873 F.2d 634, 638 (2nd Cir. 1989).

XX B 2 Res judicata

The findings of an administrative law judge that an employer had not harassed or retaliated against an employee for whistleblowing activity are res judicata on that issue in a subsequent RICO, 18 U.S.C. § 1964(c), action against the employer. Norman v. Niagara Mohawk Power Corp., 873 F2d 634 (2d Cir. 1989).

[Nuclear & Environmental Digest XX B 3]
CONFLICT BETWEEN PSIA REGULATIONS AND ENVIRONMENTAL STATUTE REGULATIONS ON APPLICATION OF FORMAL RULES OF EVIDENCE; WHERE COMPLAINT ALLEGED VIOLATIONS OF BOTH PSIA AND ENVIRONMENTAL STATUTES FOR THE SAME CONDUCT; ALJ DETERMINED THAT IT WOULD BE NECESSARY TO APPLY A SINGLE EVIDENTIARY STANDARD AND THAT THE LESS FORMAL STANDARD OF THE PSIA REGULATIONS SHOULD APPLY

In Pedersen v. ASRC Energy Services, Inc. , 2013-CER-1 (ALJ May 6, 2014), the Complainant filed a complaint with OSHA under the whistleblower provisions of the Pipeline Safety Improvement Act (PSIA) and five environmental statutes (SWDA, SWDA, FWPCA, TSCA, and CERCLA). In an earlier order concerning a motion for summary decision, the ALJ ordered that the less formal rules of evidence applied in PSI cases would apply at the hearing. Later, during a pre-trial conference, the ALJ modified this order to apply the formal rules of evidence to evidence regarding exemplary damages under the SDWA and the TSCA. The Respondent moved for reconsideration.

The ALJ noted that the PSIA regulations expressly reject application of formal rules of evidence. See 29 C.F.R. § 1981.107(d); 70 Fed. Reg. 17889, 17892. The regulations applying to the five environmental statutes require application of formal rules of evidence. See 29 C.F.R. § 24.107(a). In the instant case, the complaint alleged that the same conduct violated both the PSIA and the other five statutes, thereby setting up the need to select a framework for questions of admissibility of evidence. The ALJ concluded that simultaneous application of two sets of rules would be unwieldy and unworkable, and that he would apply the regulations that permit an ALJ to waive any rule or to issue any order that justice or administration of the statutes requires. See 29 C.F.R. §§ 24.115, 1981.114. The ALJ rejected the Respondent's contention that such a waiver or order is only permitted upon application of a party, finding that the Respondent had an opportunity to present arguments and to be heard before the wavier is put into place at the hearing.

The ALJ found the less formal evidentiary framework of the PSIA to be more appropriate to apply because they conform to the APA, because the PSIA's burden of proof is more favorable to the Complainant than under the five environmental statutes; with the exception of exemplary damages, the remedies under all the statutes are the same; and "[i]t would arguably infringe on Complainant's due process rights to apply more rigorous evidentiary standards to the [PSIA] because it would reduce his likelihood of success where Congress intended that it be at its highest"; the Respondent would not be unduly burdened as the Complainant only need to prevail on the PSI complaint; the Secretary has favored less formal evidentiary rules in more recently adopted whistleblower regulations; and the ALJ had already ordered the use of more formal rules of evidence in the one area where it could actually disadvantage the Respondent (the exemplary damages issue). The ALJ was not persuaded by the Respondent's argument that it would make more sense to apply the rule for the five environmental statutes, the ALJ finding that due process and general policy considerations outweighed a "majority vote."

The ALJ was not persuaded by the Respondent's argument that the Complainant's pro per status suggests that the court should prefer formal rules. The ALJ found that applying two sets of rules would likely increase the duration and complexity of the hearing. The ALJ stated that he had not based his conclusions in the order based on the Complainant's pro per status, but that if he were to take that into consideration, he would conclude that the hearing would proceed more expeditiously and effectively without formal rules of evidence.

XX B 3 OSHA jurisdiction

After reviewing the factual and procedural background of the case, the Secretary pointed out the confusion as to the nature of the complaint and the scope of the ALJ's jurisdiction. The Secretary held that the ALJ did not have jurisdiction over the OSHA complaint and then addressed the timeliness of the complaints filed.

The regulation governing time for filing complaints provides that "[f]or the purpose of determining timeliness of filing, a complaint shall be deemed filed as of the date of mailing." 29 C.F.R. § 24.3(b). Thus, it appeared that the two complaints filed with the Wage and Hour Division were timely; however, the record contained insufficient evidence to conclusively find that the complaints were timely filed. The Secretary further noted that the complaint filed with OSHA may satisfy a finding of equitable tolling. The case was remanded for clarification of the record and for further consideration of the timeliness and equitable tolling issues.

Melendez v. Exxon Chemicals Americas, 93-ERA-6 (Sec'y Mar. 21, 1994).

XX B 3 Relationship to OSHA whistleblower provisions

In Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (remand order), the Complainant alleged that he had been retaliated against because of his complaints about the use and presence of asbestos in the work place. The ALJ recommended dismissal because the Clean Air Act does not govern air inside the workplace.

The Secretary noted that EPA has regulated the manner in which asbestos is handled within work places during, among other things, renovation, to prevent emissions of asbestos to the outside air. See 40 C.F.R. Chapter 61, Subpart M, §§ 61.146 and 61.147. Hence, the Secretary held that if the Complainant had complained that one or more of these provisions had been violated by the Respondent, such complaints would be protected under 42 U.S.C. § 7622(a) (CAA whistleblower provision). But if the complaints were limited to airborne asbestos as an occupational hazard, section 7622(a) would not be triggered.

The Secretary noted that OSHA's whistleblower provisions protected complainants where the complaints "relate to conditions at the workplace, as distinguished from complaints touching only upon general public safety and health." 29 C.F.R. § 1977.9(b) (1986). The Secretary then held that a complementary approach is applicable to the scope of section 7622(a):

any complaints regarding effects on public safety or health, or concerning compliance with EPA regulations, under the CAA, are protected under the CAA, but those related only to occupational safety and health are not.

The CAA, however, does not in fact need to be applicable for an employee's complaint about possible violations of it to be protected. [citations omitted]

In the instant case, the Secretary remanded because the original complaint did not reveal the exact nature of the safety complaints.

XX B 4 Relationship to the Civil Service Reform Act

In Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), the Air Force contended that the employee protection provision of the Federal Water Pollution Control Act or Clean Water Act (CWA), 33 U.S.C. § 1367 (1988), does not apply to the Federal Government, and that Complainant's exclusive remedy arises under the Civil Service Reform Act (CSRA), 5 U.S.C. § 2302(b)(8) (Supp. IV 1992).

Coverage of Federal Government

The United States Government is not a "person" for purposes of section 1367 of the CWA. See 33 U.S.C. § 1362(5); United States Dept. of Energy v. Ohio, 503 U.S. ___, 112 S. Ct. 1627, 1633-1635, 118 L. E.d 2d 255, 267-268 (1992). In some instances, however, the CWA can apply to the Federal Government just as it applies to any nongovernmental entity, such as the CWA "federal facilities" provision, 33 U.S.C. § 1323(a). The Secretary, employing statutory construction and a look to the legislative history, reasoned that the employee protection provision of the CWA "would appear to be a Federal requirement respecting control and abatement of water pollution" and therefore fits within the "federal facilities" provision.

Relationship to the Civil Service Reform Act

The Secretary viewed the Air Force's contention in regard to the CSRA as one of implied repeal of the CWA, and found that there was no evidence that the CSRA repealed a broad range of earlier enacted laws that explicitly provide substantive protections to whistleblowers, and instead found case law indicating that the CSRA was to provide additional protection for federal whistleblowers. See Borrell v. United States Intern. Communications Agency, 682 F.2d 981, 990 (D.C. Cir. 1982), and that CSRA does not foreclose other avenues of relief for federal employees where Congress otherwise has provided. See Veit v. Heckler, 746 F.2d 508, 511 (9th Cir. 1984). The Secretary distinguished cases in which Federal employees were foreclosed other statutory avenues on the ground that the CSRA provides a comprehensive scheme for administrative and judicial review of Federal personnel actions and practices. The distinction is that, for the most part, those cases dealt with situations in which the employee was trying to bypass the CSRA and go directly to the courts, and thus involves the employee's personal interest vis-a-vis the Federal governments's interest in the sound and efficient administration of its operations. The Secretary also noted that when the Whistleblower Protection Act of 1989 was enacted (which amended section 2303(b)(8) of the CSRA), Congress indicated that it was not to be the exclusive remedy for whistleblowers. See 5 U.S.C. § 1222; Joint Explanatory Statement, 135 Cong. Rec. 4,514, 5,035 (1989).

[Editor's note: This is a very brief summary, and perhaps an oversimplification, of the Secretary's rulings.]

FAILURE TO STATE A CLAIM; BROAD CONSTRUCTION OF PROTECTED ACTIVITY; INSPECTOR GENERAL EMPLOYEE'S DISPUTE WITH SUPERVISORS; EXISTENCE OF OTHER POTENTIAL REMEDIES DOES NOT DEFEAT CAA CLAIM
[N/E Digest VII C 3, XII D 13 and XX B 4]

In Tyndall v. U.S. Environmental Protection Agency , 93-CAA-6 and 95-CAA-5 (ARB June 14, 1996), the Complainant was assigned to investigate an EPA employee regarding alleged improprieties in the awarding and administration of a computer modeling contract to study the effects of acid rain. The Complainant alleged in his CAA complaint that his supervisors gave him directions that constituted interference in the investigation, and that the EPA Inspector General had disregarded the Complainant's recusal from the investigation and forced him to lead the investigation. The ALJ concluded that the CAA whistleblower complaint did not state allegations related to the environmental safety or violations of the CAA, and recommended dismissal of the complaint. The Board observed that this was analogous to a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.

The Board, citing Jenkins v. U.S. Environmental Protection Agency , 92-CAA-6 (Sec'y May 18, 1994), noted that the CAA's employee protection provision is construed broadly, and that the Complainant's allegations of protected activity met that broad construction and may constitute protected activity. For instance, the Complainant could establish that the alleged interference with the investigation would lead the EPA to rely on acid rain studies that understate the harmful effects of acid rain, leading to less than appropriate regulation. The Board also found that the Complainant stated the other elements of a prima facie case, and therefore remanded for a hearing.

The Board noted that the Complainant also complained that interference by his EPA managers may have violated the civil service laws or the Inspector General Act. The Board stated that "[t]he allegation of a violation of other statutes does not defeat the claim under the employee protection provision [of the CAA]." Slip op. at 9.

XX B 4 Effect of Civil Service Reform Act (CSRA) on Complainant's rights under Whistleblower provisions

In Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), Respondent argued that the Complainant's exclusive remedy, as a federal employee, arises under the CSRA which also provides protection for whistleblowers and, therefore, impliedly repealed the protections provided under the FWPCA. The Secretary rejected this argument and determined that the CSRA does not foreclose an action under section 1367.

XX B 4 Preemption of SWDA by Civil Service Reform Act

In Jenkins v. Office of Solid Waste, United States Environmental Protection Agency, 88-SWD-2 (ALJ Aug. 11, 1989), the ALJ held that the Complainant's whistleblower complaint under the Solid Waste Disposal Act, 42 U.S.C. § 697(a), was preempted by the Civil Service Reform Act of 1978, Pub. L. 95-454 (Oct. 13, 1978).

XX B 4 Civil Service Reform Act

Marcus v. Environmental Protection Agency ,
92-TSC-5 (Sec'y Feb. 7, 1994)

The employee protection provisions of the CERCLA, SDWA, CWA, and the CAA covers employees of the Federal government "to the same extent, both procedurally and substantively, as [employees of] any nongovernmental entity ..." 42 U.S.C. § 9620(a)(1). The CERCLA provisions expressly include the United States Government in its definition of "person." Similarly, federal facilities are expressly subject to the SDWA, CWA, and the CAA. Thus, the EPA cannot claim governmental immunity from the statutes.

The Secretary also rejected the EPA's argument that the CSRA impliedly repeals the environmental whistleblower statutes as applied to federal employees. See Pogue v. U.S. Department of the Navy Mare Island Shipyard, 87-ERA-21, (Sec'y May 10, 1990), rev'd on other grounds, 940 F.2d 1287 (9th Cir. 1990); Conley v. McClellan Air Force Base, 84-WPC-1, (Sec'y Sept. 7, 1993).

Finally, the Secretary found that the Complainant engaged in a protected activity and sufficiently established that the protected activity motivated not only the Complainant's discharge out also the Inspector General's report which was used as a pretext to discharge him.

The Secretary ordered the EPA to reinstate Complainant to his former or comparable position together with the compensation, terms, conditions, and privileges of his former employment.

Consequently, the Complainant's motion for a temporary restraining order and an injunction preventing termination of his employee health insurance plan was moot and the motion was denied.

XX B 4 Civil Service Reform Act

EPA filed a motion for summary decision in Emory v. United States Environmental Protection Agency , 93-SDW-4 (ALJ Dec. 3, 1993), contending that the Civil Service Reform Act is the exclusive remedy for federal employee whistleblower, that the United States and federal agencies are not covered employers, and that federal employees are not covered employees.

In denying the motion, the ALJ found that

the Secretary rejected the argument that the Civil Service Reform Act of 1978 provide a preemptive and exclusive remedy for federal employee whistleblowers in Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993), slip op. at 9-17, and Pogue v. United States Dept. of Navy, 87-ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987);
Complainant was an employee, and nothing in the statutes or the legislative history of the statutes adjudicated under Part 24 suggests exclusion of government employees;
EPA was a "person" subject to the employee protection provisions of all the statutes invoked except the Clean Water Act (the United States is expressly included as a person under the ERA, CAA, CERCLA, SDWA and SWDA, and by reference to the citizen's suit sections of the TSC);
CAA, CERCLA, CWA, SDWA, SDWA all have virtually identical federal facilities provisions. The federal facilities provision of the CWA was found by the Secretary in Conley to subject the federal government to all requirements of the CWA; CERCLA's federal facilities provision was interpreted much the same way in Pogue .

20 b 4
XX B 4 Federal employee's right to seek relief under CERCLA

In Pogue v. United States Dept. of the Navy, 87- ERA-21 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987), the Navy asserted that the Secretary of Labor lacked jurisdiction to entertain Complainant's employee protection complaint under CERCLA because (1) there is no express language in CERCLA, nor any express statement in its legislative history, indicating coverage of Federal employees; (2) that there has been no waiver of sovereign immunity of the Federal government; and (3) that CERCLA does not cover Federal employees because the CSRA established for Federal employees a comprehensive scheme to address all claims concerning adverse personnel actions.

The Secretary held

Statutory language . The CERCLA whistleblower provision provides th0at no "person" shall discriminate against "any employee." 42 U.S.C. § 9610(a). The definition of "person" for purposes of this subchapter specifically includes "United States Government." 42 U.S.C. § 9601(21). There is no ambiguity in this language that would support exclusion of Federal employees as complainants. This is confirmed by the Federal facilities section, which requires Federal agencies to comply with the CERCLA requirements to the same extent as nongovernment persons. 42 U.S.C. § 9620(a). Moreover, a Federal employee may file a citizen's suit against an agency for violation of environmental standards, 42 U.S.C. § 9659, and a narrow reading of "any employee" to exclude Federal employees would frustrate the statute's goals, see Dedham Water Co. v. Cumberland Farms Dairy Inc., 805 F.2d 1074, 1081 (1st Cir. 1986) (CERCLA a remedial statute that should be construed liberally), by diminishing the sources through which information could be obtained regarding compliance with the environmental requirements of the statute.
Sovereign Immunity. Congress waived sovereign immunity by including the Federal government in the definition of "person", by the Federal facilities provision (which although revised in 1986 was included int he original act), and by including federal employees in the citizen's suit provision.

_________ [Footnote]
The Secretary also rejected an argument that the Secretary lacks authority to issue an order directed at another Federal agency because only the President has such power. The Secretary found no discretion not to require abatement of the violation and order appropriate relief where a violation is found.
The Secretary likewise rejected an argument that CERCLA did not apply because the Navy was not allocated funds for relief for environmental whistleblowers. Failure to allocate funds does not defeat a Government obligation created by statute. See New York Airways, Inc. v. United States, 369 F.2d 743, 748 (Ct. Cl. 1966).

>
Preemptive effect of the Civil Service Reform Act of 1978. CERCLA was enacted more than two years after the CSRA, and yet made clear through CERCLA's definition of "person" and inclusion of the Federal facilities provision that CERCLA whistleblower provisions apply to the Federal government. Moreover, in the Joint Explanatory Statement to the Whistleblower Protection Act of 1989, which amended section 2302(b)(8) of the CSRA to strengthen the protection afforded whistleblowers, Congress made it clear that the WPA was not meant to limit any right or remedy that might be available under "a large number of environmental ... statutes which provide specific protection to employees who cooperate with federal agencies." Although the WPA was enacted after the activity of Complainant in the instant proceeding, the Secretary found the legislative history to be entitled to consideration.

XX B 4 Preemption by Civil Service Reform Act

In Jenkins v. Office of Solid Waste, United States Environmental Protection Agency, 88-SWD-2 (ALJ Aug. 11, 1989), the ALJ held that the Complainant's Solid Waste Disposal Act whistleblower cause was preempted by the Civil Service Reform Act of 1978, §§ 2301, 2302.

[Editor's note: The OALJ library does not contain a Secretarial decision in this matter. Should check with OAA.]

XX B 5 Preemption of SWDA by Whistleblower Protection Act

See Jenkins v. Office of Solid Waste, United States Environmental Protection Agency, 88-SWD-2 (ALJ Aug. 11, 1989), in which the ALJ held that the Complainant's whistleblower complaint under the Solid Waste Disposal Act, 42 U.S.C. § 697(a), was preempted by the Civil Service Reform Act of 1978, Pub. L. 95-454 (Oct. 13, 1978). EPA also raised the preemptive effect of the Whistleblower Protection Act, but ALJ found that Act was not applicable because the case was pending on the effective date of that statute, and therefore was covered by its savings provision.

XX B 6 FECA

FECA; RELATIONSHIP TO WHISTLEBLOWER PROVISION OF THE ERA
[N/E Digest XX B 6]

In Karnes v. Runyon , 1995 U.S. Dist. LEXIS 19863 (S.D.Ohio 1995), a case involving Title VII and Rehabilitation Act of 1973 claims, the court followed the decision of the Sixth Circuit in DeFord v. Secretary of Labor , 700 F.2d 281 (6th Cir. 1983) that FECA does not preclude recovery of compensatory damages under 42 U.S.C. § 5851. The court found that FECA does not preclude recovery for injuries caused by illegal discrimination under Title VII or the Rehabilitation Act.

[Nuclear & Environmental Digest XX B 7]
ALLEGED FAILURE TO FOLLOW NRC REGULATIONS FOR DENIAL OF SECURITY CLEARANCE

In Miller v. Tennessee Valley Authority , 1997-ERA-2 (ARB Sept. 29, 1998), Complainant contended that Respondent violated an NRC regulation, 10 C.F.R. §73.56(b)(3), by not considering all information about her in revoking her security clearance. The ARB, however, found that Respondent's compliance with this NRC regulation for denial of her security clearance is beyond the scope of the ARB's subject matter jurisdiction. The ARB held that its jurisdiction is limited to determining whether Complainant's discharge was based on her protected activities, not whether her discharge was unreasonable or erroneous for other reasons.

[Nuclear & Environmental Digest XX B 7]
NRC ISSUES PROPOSED RULE TO SET CRITERIA FOR DISPOSAL OF HIGH LEVEL RADIOACTIVE WASTES AT YUCCA MOUNTAIN, NEVADA

On February 22, 1999, the Nuclear Regulatory Commission issued a proposed rule to set licensing criteria for the disposal of spent nuclear fuel and high-level radioactive wastes at the proposed geologic repository at Yucca Mountain, Nevada. 64 Fed. Reg. 8640-01 (Feb. 22, 1999). Included in the proposed rule is a ERA § 211(a), 42 U.S.C. § 5851(a), type employee protection provision. Such discrimination complaints would be administratively processed by the Department of Labor. See proposed 10 C.F.R. § 63.9.

[Nuclear and Environmental Whistleblower Digest XX B 8]
BANKRUPTCY; NEW CLAIM UNDER DIFFERENT WHISTLEBLOWER LAW ENJOINED BY BANKRUPTCY ORDER WHERE IT AROSE FROM THE SAME SET OF FACTS AS THE EARLIER CLAIM; GOVERNMENT UNIT EXCEPTION NOT APPLICABLE

In Hafer v. United Air Lines, Inc. , ARB No. 06-132, ALJ No. 2006-CAA-6 (ARB Aug. 29, 2008), the Complainant's earlier AIR21 complaint had been found to be discharged in bankruptcy. The Complainant later filed a new CAA whistleblower complaint alleging that in a pleading in his AIR 21 case the Respondent had admitted that "it had indeed fired [him] for revealing its violations of the Federal Clean Air Act."

The ARB found that the Complainant's CAA claim arose from the same set of facts that gave rise to his AIR 21 claim, that the bankruptcy court's Confirmation Order discharged the Respondent from the Complainant's AIR 21 claim, and that the Confirmation Order enjoined the Complainant from pursuing the instant CAA complaint.

The Complainant also argued that the bankruptcy automatic stay provision has an "governmental unit exception" that the ARB should apply to participate as the prosecuting party in the matter. The ARB rejected this contention holding that the "government unit exception does not apply where a complainant has brought a case as an individual. . . . [W]hen an administrative agency is acting in a quasi-judicial capacity, seeking to adjudicate private rights rather than effectuate public policy, the governmental unit exception is inapplicable." USDOL/OALJ Reporter at 6 (footnote omitted).

[Nuclear and Environmental Digest XX B 9]
CHEMICAL PERSONNEL RELIABILITY PROGRAM (CPRP) CERTIFICATION DETERMINATION IS NOT THE EQUIVALENT OF A SECURITY CLEARANCE DETERMINATION, AND IS REVIEWABLE BY A DOL ALJ UNDER THE WHISTLEBLOWER PROVISIONS OF THE CAA, SDWA AND THE SWDA

In Van Winkle v. Blue Grass Chemical Activity , ARB No. 09-035, ALJ No. 2006-ERA-24 (ARB Feb. 17, 2011), the ALJ dismissed the Complainant's CAA, SDWA and SWDA whistleblower complaint on the ground that he did not have the authority to review the merits of any alleged retaliation reasons for revoking a Department of the Army Chemical Personnel Reliability Program (CPRP) certification because such a revocation is a matter of national security barred by consideration by a "nonexpert body" under Department of the Navy v. Egan , 484 U.S. 518, 527-529 (1988). Instead, the ALJ ruled that he could only review whether an agency complied with its procedures for revoking a security clearance. The ARB found persuasive decisions of the MSPB that Egan 's restriction on court review authority was limited in scope to security clearances and does not extend to CPRP certification determinations. The ARB also held that the ALJ erred in determining whether the Respondent revoked the Complainant's CPRP certification in accord with its own procedures because such a review is beyond the DOL's subject matter jurisdiction.

XX C 1 Damages; Preemption of state cause of action

An employee's state law claim for intentional infliction of emotional distress where she was allegedly discharged for reporting nuclear safety violations is not preempted by section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851, on the ground that Congress preempted the field of nuclear safety regulation. For a state law to fall within the preempted zone, it must have some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels. Here the claim may have some such effect, but it is neither direct nor substantial enough to place the claim in the preempted field. English v. General Electric Co., __ U.S. __, 110 L.Ed.2d 65, 110 S.Ct. 2270, 2278 (1990).

Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851(g), does not reflect a Congressional interest to preempt all state actions that permit the recovery of exemplary damages. English, 110 S Ct at 2280.

XX C 1 Preemption of state claim

Discharged employee brought action for breach of employment contract, wrongful interference with contractual relations and retaliatory discharge. The court held that the whistleblower provision of the ERA did not preempt state law claims ( English agreed and explained this case). Norris v. Lumbermen's Mut. Casualty Co., 881 F.2d 1144 (1st Cir. 1989).

XX C 1 Program delegated to State

In Du Jardin v. Morrison Knudsen Corp., 93-TSC-3 (ALJ Nov. 29, 1993) (order denying respondent's motion for summary decision), Respondent asserted in a motion for summary decision that any action initiated to enforce hazardous waste regulatory standards must be brought under the Arkansas Hazardous Waste Management Act, not the Resource Conservation and Recovery Act, because all Federal authority had been delegated to the Arkansas Department of Pollution Control & Ecology.

The ALJ found that there was no support for the proposition that Federal whistleblower protection had been preempted by or delegated to the State of Arkansas. He noted:

For instance, while 42 U.S.C. § 6926 provides that once a state has obtained authorization from the U.S. Environmental Protection Agency (hereinafter "E.P.A."), its hazardous waste program operates in lieu of the Resource Conservation and Recovery Act's subchapter on Hazardous Waste Management, Dague v. City of Burlington , 732 F. Supp. 458, at 465 (D. Vt. 1989) (citing 40 C.F.R. § 271.3(b)), the Hazardous Waste Management subchapter is contained in 42 U.S.C. §§ 6921-6934, and this case was brought under the employee protection provisions found in section 6971.

The ALJ found the OALJ has jurisdiction to hear Complainant's claim under the Solid Waste Disposal Act.

XX C 2 Res judicata effect of state court judgment

In Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ July 24, 1991), the respondent contended that a state court judgment in favor of the defendants (not the respondent) in a suit brought by the complainant's former employer (the complainants were employees of nuclear safety consulting company that had a contract with the respondent) had res judicata effect in regard to any matter relating to the nature or ending of the former employer's contract with the respondent. The ALJ held that there was not res judicata effect of the state court judgment because of the lack of privity. The complainants were asserting rights derived from the ERA, not the contract between the respondent and the former employer. The former employer had no standing to assert in its lawsuit rights that belong to the complainants.

XX C 3 Full faith and credit

The full faith and credit statute, 28 U.S.C. § 1738, requires Federal courts to give the same preclusive effect to State court judgments that those judgments would be given in the courts of the State that rendered them, Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982); and the statute applies by implication to agency decisions reviewable in the Federal courts. Graybill v. United States Postal Serv., 782 F.2d 1567 (Fed. Cir. 1986), cert. denied, 479 U.S. 963 (1986).

Kosciuk v. Consumers Power Co., 90-ERA-56 (Sec'y ar. 31, 1994).

[Nuclear & Environmental Whistleblower Digest XX C 3]
FULL FAITH AND CREDIT; COLLATERAL ESTOPPEL

In Willy v. The Coastal Corp. , ARB No. 97 107, ALJ No. 1985 CAA 1 (ARB Feb. 27, 2004), the Complainant had pursued a state court action for retaliatory discharge, which was dismissed on the ground that Texas law prevented the Complainant, who was an attorney, from revealing confidential communications of a client (the Respondent). The ARB, applying collateral estoppel analysis to determine whether full faith and credit must be given to the Texas decision, concluded that because the issue of an attorney's authority to disclose client confidences and secrets would be determined by federal common law before the ARB, the issues before the Texas court and the ARB were not identical, the ARB was not barred by collateral estoppel from reaching an independent conclusion on the use of privileged materials in the Complainant's federal whistleblower case.

XX D Arbitration

An arbitrator's decision pursuant to the collective bargaining agreement of the complainant's union is not reviewable in a whistleblower proceeding under the ERA. Hettinger v. GPU Nuclear Corp., 87-ERA-7 (Sec'y Mar. 15, 1991) (the complainant had agreed to withdrawal of the ERA cases based on agreement that the matter would be resolved through arbitration).

[Nuclear & Environmental Whistleblower Digest XX D]
COLLECTIVE BARGAINING AGREEMENT; FEDERAL EMPLOYEE; EXCLUSIVENESS OF REMEDY

In Kaufman v. U.S. Environmental Protection Agency , 2002 CAA 22 (ALJ Sept. 30, 2002) (order granting partial summary decision), the ALJ held that a collective bargaining agreement covering Complainant as a member of the American Federation of Government Employees did not deprive the DOL of jurisdiction in the resolution of Complainant's whistleblowing retaliation grievances. The ALJ reviewed the legislative history of the Civil Service Reform Act of 1978, and concluded that it revealed that the the CSRA's procedures were not meant to be the exclusive remedy for employees asserting claims under the whistleblower protection statutes. The ALJ distinguished several federal court opinions indicating that the grievance procedures of a CBA are the exclusive procedures for resolving claims under federal statutes, on the ground those cases did not present "the exceptional governmental interests and/or public safety concerns" presented by DOL whistleblower adjudications. The ALJ acknowledged that there is strong federal policy favoring arbitration, but cited the equally strong policy in DOL whistleblower adjudications of protecting the public interest. The ALJ cited caselaw that holds that DOL is a party to the settlement of ERA cases.

[N/E Digest XX D]
EXHAUSTION OF TRIBAL REMEDIES

In White v. The Osage Tribal Council , 95-SDW-1 (ARB Aug. 8, 1997), the ARB held that a whistleblower is not required to exhaust his tribal remedies before filing an SDWA whistleblower complaint with the Department of Labor.

[Nuclear and Environmental Digest XX E]
SOVEREIGN IMMUNITY; TVA ACT'S "SUE OR BE SUED" LANGUAGE WAIVES IMMUNITY WITH RESPECT TO ERA WHISTLEBLOWER COMPLAINT

In Elliot v. Tennessee Valley Authority , ARB No. 14-020, ALJ No. 2013-ERA-6 (ARB Sept. 17, 2014), the issue of the sovereign immunity of the Tennessee Valley Authority in an ERA whistleblower proceeding was certified by the ALJ for interlocutory review, and the ARB granted the TVA's petition. The ARB held that the TVA is an employer, and the Complainant is an employee subject to the ERA's employee protection provisions. The ARB distinguished the Supreme Court decision in United States v. Bormes , __ U.S. __, 133 S. Ct. 12, 17 (Nov. 13, 2012), on the ground that Congress's authorization for TVA to "sue and be sued" constitutes a waiver of sovereign immunity. The ARB also found that its holding that the TVA Act's "sue and be sued" language waives immunity with respect to the Complainant's ERA administrative whistleblower complaint, does not conflict with the Board's precedent in Mull v. Salisbury Veterans Admin. Med. Clinic , ARB No. 09-107, ALJ No. 2008-ERA-8 (ARB Aug. 31, 2011), because the TVA Act contains an express waiver of immunity, and because employees of TVA are employees of a hybrid agency that operates in many respects like a private corporation.

[Nuclear and Environmental Digest XX E]
SOVERIGN IMMUNITY

In Yagley v. Occupational Safety & Health Admin., U.S. Dept. of Labor , No. 10�3667, 461 Fed.Appx. 411 (6th Cir. 2012) (per curiam) (case below ARB No. 09-061, ALJ No. 2009-CAA-2), the plaintiff, a registered nurse at psychiatric services center, filed a complaint with the Michigan Occupational Safety and Health Administration (MOSHA) alleging that the airborne dust created by the on-going renovation project at her employer was creating hazardous working conditions, and several months later, she filed similar complaints with the Environmental Protection Agency (EPA) and the Joint Commission on Accreditation of Hospital Organizations (JCAHO).

After her employer terminated her disability benefits, the plaintiff filed a retaliation complaint with OSHA, alleging that she had suffered retaliation for complaining about unsafe working conditions in violation of the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622, and the Clean Air Act (CAA), 42 U.S.C. § 7622. After investigating her claim, OSHA found that her benefits were terminated in accordance with her benefits plan, not because she had complained about dust in the workplace, and therefore dismissed the complaint. On appeal to the OALJ, the DOJ recommended dismissal of the plaintiff's complaint because her employer was owned and operated by the Michigan Department of Health, and was therefore entitled to state sovereign immunity under the Eleventh Amendment. The ARB affirmed dismissal on sovereign immunity grounds.

A few years later, the plaintiff, along with her husband, co-filed a second OSHA complaint, in which they alleged continued retaliation and harassment in violation on TSCA, CAA, and the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367. OSHA dismissed this complaint on the grounds that it simply re-alleged the allegations in her previous complaint, and on appeal to the OALJ, the ALJ agreed that its decision on Ms. Yagley's first complaint was controlling. However, in response to the plaintiffs' motion to amend the complaint to include non-government respondents, the OALJ reopened the case to determine if the new complaint included charges of retaliation against non-governmental entities. Because the plaintiffs' new complaint did not name a specific respondent, but alleged "continued retaliation," the ALJ concluded that no non-governmental respondents were named, and dismissed the complaint. The plaintiffs petitioned the ARB, and despite the ARB's prompting, the plaintiffs failed to address the issue of sovereign immunity in their reply briefs, and the Board therefore affirmed dismissal of their complaint. Ms. Yagley then appealed the ARB's decision to the Sixth Circuit.

Although the Sixth Circuit acknowledged that it affords liberal construction to the pleadings and filings of pro se litigants, the Court of Appeals rejected the appeal because Ms. Yagley "failed, during the entire course of this protracted litigation, to develop any argument on the key issue of state sovereign immunity."

[Nuclear and Environmental Whistleblower Digest XX E]
FEDERAL SOVEREIGN IMMUNITY WHERE ERA COMPLAINT ONLY SEEKS EQUITABLE RELIEF; ARB FINDS THAT IMMUNITY HAS NOT BEEN UNEQUIVOCALLY WAIVED

In Mull v. Salisbury Veterans Administration Medical Center , ARB No. 09-107, ALJ No. 2008-ERA-8 (ARB Aug. 31, 2011), the Complainant filed an ERA whistleblower complaint against a Department of Veterans Affairs medical facility, arguing that such an administrative suit was not barred by sovereign immunity because the Complainant was only seeking equitable relief and not monetary damages. The ALJ, relying on the APA at 5 U.S.C. § 702, concluded that where an employee has been injured by agency action within the ERA's coverage, the employee may seek equitable relief (non-monetary damages) from the agency. The ALJ certified the issue of sovereign immunity for interlocutory review, and the ARB granted such review. The ARB found that 5 U.S.C. § 702 applies to the judiciary and not to agency appellate review, and therefore is not a waiver of sovereign immunity before the Department of Labor. The ARB also found that the ERA does not contain an unequivocal expression of intent to waive sovereign immunity, and therefore revered the ALJ's finding that sovereign immunity was waived. The ARB noted that the Assistant Secretary had made a rational argument in favor of finding that the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE) as well as federal licensees of the NRC have waived their sovereign immunity under the ERA because the ERA incorporates the Atomic Energy Act's definition of "person," 42 U.S.C. § 2014(s), which includes federal government agencies other than the Atomic Energy Commission. The ARB, however, found that the Assistant Secretary's argument only created a debatable point rather than an unequivocal waiver, as required for a waiver of federal sovereign immunity. One member of the Board dissented, arguing that the APA does not create a waiver of sovereign immunity on the ground that the relief sought is equitable in nature, but concluding that the ERA, when read in conjunction with the AEA, does provide a waiver.

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY ABROGATED UNDER THE WHISTLEBLOWER PROVISION OF THE CAA

In Minthorne v. Commonwealth of Virginia , ARB No. 09-098, ALJ Nos. 2009-CAA-4 and 6 (ARB July 19, 2011), the ALJ dismissed the Complainant's CAA whistleblower complaints on sovereign immunity grounds pursuant to the ARB decisions in Thompson v. Univ. of Georgia , ARB No. 05-031, ALJ No. 2005-CAA-1 (ARB Jan. 31, 2006) and Powers v. Tennessee Dep't of Env't & Conservation , ARB Nos. 03-061, -125; ALJ Nos. 2003-CAA-8, -16 (ARB June 30, 2005) (reissued Aug. 16, 2005). On appeal, the ARB reversed. The ARB noted that Congress may abrogate a State's sovereign immunity if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its constitutional authority.

The ARB stated that in May 2006, it had issued a decision in Erickson v. U.S. EPA , ARB Nos.03-002, -003, 04-64; ALJ Nos. 1999-CAA-2, 2001-CAA-8, -13, 2002-CAA-3, -18 (ARB May 31, 2006), taking note of a USDOJ Office of Legal Counsel Opinion, rendered in September 2005, addressing the issue of sovereign immunity waiver under the CAA and other environmental whistleblower acts. In Erickson , the ARB acknowledged that OLC opinions are binding on executive branch agencies. The OLC's opinion letter had explained that the proper focus for assessing whether Congress intended to abrogate sovereign immunity is on the enforcement and remedial provisions of the statute, which under the CAA are found in section 7622(b). The ARB found that under that analysis, Congress unequivocally expressed its intent to abrogate the States' sovereign immunity under the CAA. The ARB found that as an administrative agency of the Federal government, it was obliged not to pass on the constitutionality of the CAA, and must presume a valid exercise of Congressional authority to abrogate.

[Nuclear and Environmental Digest XX E]
STATE SOVEREIGN IMMUNITY

[Nuclear and Environmental Digest II B 1 b]
AMENDMENT OF COMPLAINT; TIMELINESS OF ATTEMPT TO ADD RESPONDENTS TO AVOID DISMISSAL ON STATE SOVEREIGN IMMUNITY GROUNDS

In Yagley v. Hawthorn Center of Northville Twp. , ARB No. 09-061, ALJ No. 2009-CAA-2 (ARB Apr. 30, 2010), the Complainants filed a retaliation complaint under the employee protection provisions of the CAA, the FWPCA, and the TSCA, alleging retaliation for the filing of a previous complaint in 2005. The previous complaint had been dismissed as barred by 11th Amendment state sovereign immunity. OSHA found that the Complainants' new complaint alleged non-specific threats and warnings, and was also barred by sovereign immunity. The ALJ also dismissed based on sovereign immunity, but upon receiving a copy of a letter addressed to the Secretary of Labor dated several days before his decision, in which a claim was made that non-governmental entities retaliated against one the Complainants, the ALJ reopened the matter for the limited purpose of giving the Complainants' the opportunity to establish that their complaint had included charges against non-governmental entities. The ALJ also requested that OSHA provide a copy of the original complaint. The ALJ found that the complaint did not name any non-governmental entities as respondents, and therefore again found that the complaint was barred by sovereign immunity. On appeal, the ARB directed the Complainants to identify the respondents in the matter, list their addresses, and provide proof of service on those respondents with each document filed with the Board. The ARB found that the Complainants failed to comply with the order, and therefore the only respondent was Hawthorn Center, which was a state agency. In additional briefing, the ARB found that the Complainants never made an argument regarding the issue of sovereign immunity. Accordingly, the ARB agreed with ALJ that the claim was barred. The ARB also agreed with the ALJ that the complaint filed with OSHA could not be reasonably construed as naming any respondents that were not entitled to sovereign immunity, and that the Complainants' attempt to amend the complaint was untimely in response to the ALJ's briefing order.

[Nuclear and Environmental Digest XX E]
SOVEREIGN IMMUNITY; INTERLOCUTORY APPEAL ON ISSUE OF WHETHER WHISTLEBLOWER SUIT SEEKING ONLY EQUITABLE RELIEF IS BARRED AS AGAINST A FEDERAL AGENCY

In Mull v. Salisbury Veterans Administration Medical Center , ARB No. 09-107, ALJ No. 2008-ERA-8 (ARB Oct. 7, 2009), the ARB granted interlocutory review of the issue of whether sovereign immunity bars an ERA whistleblower complaint where the Complainant only seeks equitable relief (non-monetary damages) from the Respondent, a federal agency. The ALJ concluded that the ARB's decision in Pastor v. Dept. of Veterans Affairs , ARB No. 99-071, ALJ No. 1999-ERA-11 (ARB May 30, 2003), was distinguishable because in Pastor the complainant had only requested monetary damages.

[Nuclear and Environmental Digest XX.E.]
STATE SOVEREIGN IMMUNITY; JURISDICTIONAL MATTER THAT MAY BE RAISED AT ANY TIME; COMPLAINANT CANNOT DEFEAT IMMUNITY MERELY BY NAMING A FEDERAL AGENCY WHEN THE FEDERAL AGENCY WAS NOT THE EMPLOYER

In Yagley v. Hawthorne Center of Northville , ARB No. 06-042, ALJ No. 2005-TSC-3 (ARB May 29, 2008), the Complainant alleged that an agency within the Michigan Department of Community Health had abruptly ended her long term disability benefits in retaliation for complaints she had made to the state EPA about exposure to lead paint during renovations. The ALJ found that the agency was immune under the 11th amendment and did not address the merits of the case. On appeal, the ARB agreed that the agency was immune under the 11th amendment. Although the agency had not raised the immunity defense before OSHA, the ARB held that sovereign immunity is jurisdictional and may be raised at any time. The ARB found no abrogation of immunity by Congress when it enacted the CAA or TSCA, and that Michigan had not waived 11th amendment immunity under those laws. The ARB agreed with the Complainant's contention that if the Secretary of Labor or a representative of the Secretary had intervened, sovereign immunity would not apply, but found that no federal agency had become a party and that the Complainant could not force the Federal government to be a party by naming it as one when it was not the employer.

[Nuclear and Environmental Digest XX E]
SOVEREIGN IMMUNITY; TENNESSEE VALLEY AUTHORITY NOT IMMUNE FROM AN ERA WHISTLEBLOWER SUIT

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ALJ had held that the Tennessee Valley Authority was not immune from the Complainant's ERA whistleblower suit because Congress had waived TVA's immunity when it included a "sue and be sued" clause in TVA's enabling legislation. See 16 U.S.C.A. § 831c(b). On appeal the ARB agreed. The ARB held that Congress did not expressly restrict TVA's ability to sue and be sued, and because TVA had not shown any implied exception to the waiver of sovereign immunity, it was not immune.

[Nuclear and Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY; OPINION LETTER OF THE OFFICE OF LEGAL COUNSEL IS BINDING IN DOL WHISTLEBLOWER ADJUDICATIONS; SOVEREIGN IMMUNITY WAIVED UNDER THE SWDA AND THE CAA BUT NOT THE FWPCA

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Environmental Protection Agency was found to be liable to suit under the whistleblower provisions of the SWDA and the CAA, but not the FWPCA. In so holding, the ARB found that it was bound by an unpublished opinion letter of the Office of Legal Counsel (OLC) in which it was concluded that Congress had waived sovereign immunity with respect to the whistleblower provisions of SWDA and the CAA, but not the FWPCA. OLC opinions are binding on executive branch agencies.

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; INDIVIDUAL LIABILITY OF MANAGER

In Slavin v. Aigner , 2005-CAA-11 (ALJ Jan. 19, 2006), the Complainant applied for a management faculty position with the University of California at Santa Barbara Bren School of Environmental Science and Management, and alleged that he was not selected for the position because of protected activity. The University had earlier been dismissed as a Respondent based on state sovereign immunity, and the instant decision related to the liability of individual who was the Dean of the School at the time that the Complainant applied for the job. Reviewing the applicable legal authority under the environmental whistleblower statutes, the ALJ concluded that "a complainant must seek relief from an employer." Although the Dean may have been the senior leader and manager for the school and ultimately responsible for the decision not to hire the Complainant, the employer in this case would have been the University and not the Dean. Accordingly, the ALJ dismissed the complaint.

To the same effect Slavin v. Donald Bren School of Environmental Science and Management at the University of California, Santa Barbara , 2006-CAA-2 (ALJ Jan. 23, 2006) (similar complaint involving a different faculty position and a subsequent Dean).

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY

In Thompson v. University of Georgia , ARB No. 05-031, ALJ No. 2005-CAA-1 (ARB Jan. 31, 2006), the Complainant alleged that the University of Georgia retaliated against him for complaining about the University's Poultry Science Research Center's improper practice of dipping poultry in pesticide to remove mites. The ARB found, however, that the Board of Regents of the University System of Georgia enjoys sovereign immunity under the 11th Amendment from a CAA, CERCLA, FWPCA, SDWA, SWDA and TSCA whistleblower suit. The ARB declined to retreat from its earlier decisions finding that the CERCLA, TSCA, FWPCA, SDWA, SWDA and CAA do not contain the unmistakably clear language necessary for abrogation. Moreover, it declined to find that the State of Georgia had waived sovereign immunity by receiving federal funds because the Complainant had provided no evidence there was clear waiver language in the particular programs under which the University receives federal funds. [Nuclear and Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY IN ERA WHISTLEBLOWER CASES; RETROACTIVE APPLICATION OF PASTOR RULING

In De Melo v. U.S. Dept. of Veterans Affairs , ARB No. 03-027, ALJ No. 2002-ERA-17 (ARB June 22, 2004), the ARB dismissed the appeal, finding that it lacked jurisdiction over § 5851(b) complaints against Federal agencies such as the Department of Veterans Affairs because Congress did not waive sovereign immunity from such claims. Pastor v. Department of Veterans Affairs, ARB No. 99-071, ALJ No. 1999-ERA-11 (ARB May 30, 2003). The Board observed that the ruling in Pastor applied even though the ALJ issued his Recommended Decision and Order prior to that decision.

[Nuclear and Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY; ARB INVITES BRIEFING ON WHETHER EPA HAS IMMUNITY FROM SUIT UNDER THE ENVIRONMENTAL WHISTLEBLOWER LAWS

In Erickson v. U.S. Environmental Protection Agency, Region 4 , ARB Nos. 03-002 to 004, ALJ Nos. 1999-CAA-2, 2001-CAA-8 and 13, 2002-CAA-3 and 18 (ARB Aug. 17, 2005), the ARB invited supplemental briefing on whether, in light of the Board's ruling in Powers v. Tennessee Dept. of Environment & Conservation , ARB Nos. 03-061 and 03-125, ALJ Nos. 2003-CAA-8 and 16 (ARB June 30, 2005) (errata Aug. 16, 2005), "sovereign immunity bars any or all of Erickson's environmental whistleblower complaints against EPA and the EPA Inspector General." In Powers , the ARB had ruled that Congress did not abrogate state sovereign immunity in the environmental whistleblower protection provisions.

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; IMPACT OF HIBBS ; LEGISLATIVE HISTORY; ACCEPTANCE OF FEDERAL FUNDING; DETRIMENTAL RELIANCE

In Powers v. Tennessee Dept. of Environmental & Conservation , ARB Nos. 03-061 and 03-125, ALJ Nos. 2003-CAA-8 and 16 (ARB June 30, 2005), the Complainant argued that the Supreme Court's decision in Nevada Dept. of Human Res. v. Hibbs , 538 U.S. 721 (2003), holding that state employees may recover money damages in federal court for violations of the Family and Medical Leave Act compels a reversal of ARB precedents holding that state sovereign immunity precludes adjudication of environmental whistleblower complaints before DOL. The Board, however, found that Hibbs fully supported its prior holdings: "[w]hile CERCLA, SWDA, TSCA, FWPCA, SDWA, and CAA may require states to comply with the regulatory provisions of those acts, they do not provide for private rights of action for money damages against states and state agencies." Powers , slip op. at 7.

The Board also rejected the Complainant's argument that a waiver of sovereign immunity in CERCLA cases is supported by the legislative history of that act. The Board wrote: "[T]he Supreme Court has made it clear that the legislative history cannot supply an abrogation that does not appear clearly in the statute itself. Kimel v. Florida Bd. of Regents , 528 U.S. 62, 73 (2000)."

The Board likewise rejected the Complainant's argument that Tennessee had waived sovereign immunity when it accepted millions of dollars of federal funds for environmental programs, the Complainant having failed to identify any statutory language that could be construed as conditioning federal funding on waiver.

Finally, the Board rejected the Complainant's argument that equitable estoppel should prevent the State Respondents from asserting sovereign immunity, the Board noting precedent from a Service Contract Act decision of the Secretary to the effect that estoppel would require demonstration that the government official made false representations with the intent that the complainant would rely on them, coupled with affirmative misconduct. The Board found that such circumstances were not present in the instant case (especially since the Complainant was arguing that she relied on the opinion of an EPA official rather than any State Respondent employee).

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; POTENTIAL LIABILITY OF OFFICIAL IN INDIVIDUAL CAPACITY; CANNOT AMEND COMPLAINT TO ADD CURRENT HOLDER OF OFFICE MERELY FOR PURPOSE OF DEFEATING IMMUNITY

In Slavin v. UCSB Donald Bren School , 2005-CAA-11 (ALJ July 14, 2005), the ALJ granted summary decision to the University of California on the ground that it was immune from suit under the state sovereign immunity provided by the Eleventh Amendment to the U.S. Constitution. The ALJ, however, did not dismiss the person who was Dean of the school at the relevant time. The ALJ found that it was unclear whether the attorney for the Respondent was also representing the Dean or the University of California alone, and therefore ordered that the attorney provide notice of the scope of his representation. The ALJ observed that the Dean named as a Respondent was no longer employed by the University, and therefore equitable releif was not available to the Complainant, and the only remaining relief would be monetary.

The Complainant subsequently moved to amend his complaint to add the current Dean as an indispensable party. The ALJ denied the motion because the Complainant made no showing that the current Dean had any role in the alleged discrimination which would make him liable in his individual capacity. Slavin v. UCSB Donald Bren School , 2005-CAA-11 (ALJ Aug. 2, 2005). The ALJ therefore concluded that the only basis for adding the current Dean as a party would be in his capacity as a state official. The ALJ wrote: "To allow a private party to circumvent state sovereign immunity by simply adding as a party whatever state official happens to be in a position of authority at the time of the litigation (vs the time of the alleged wrongdoing) would frustrate that Constitutional principle." Slip op. at 3 (footnote omitted).

[Nuclear and Environmental Whistleblower Digest XX E]
AMENDMENT OF COMPLAINT TO ADD PARTIES TO AVOID EFFECTS OF STATE SOVEREIGN IMMUNITY

See Powers v. Tennessee Dept. of Environmental & Conservation , ARB Nos. 03-061 and 03-125, ALJ Nos. 2003-CAA-8 and 16 (ARB June 30, 2005), supra at Digest XIV B B 2.

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY

In Farmer v. Alaska Dept. of Transportation & Public Facilities , ARB No. 04-002, ALJ No. 2003-ERA-11 (ARB Dec. 17, 2004), the ARB affirmed the ALJ's dismissal of the complaint on state sovereign immunity grounds. The Complainant argued that sovereign immunity should not apply because he was not acting as a private citizen, but in furtherance of his official duties as the Department's radiation safety officer. The Board rejected this argument, agreeing with the ALJ's observation that the remedy sought was money damages for the Complainant himself against the state agency Respondent.

The Complainant next argued that his position was federally mandated and that his investigations and activities were funded by the U. S. Department of Transportation, Federal Highway Administration, and therefore -- by accepting federal funding -- the State of Alaska "implicitly" agreed to federal jurisdiction, i.e., waived state sovereign immunity. The ARB rejected this argument noting that they had previously ruled that "acceptance of federal funds unaccompanied by an express, unambiguous waiver of immunity is insufficient to confer a private right of action for discrimination."

The Complainant's third argument was that the State of Alaska grants immunity to individuals and indemnification for official actions pursuant to a collective bargaining agreement, and therefore has agreed to act on behalf of individuals and is a real party in interest The ARB agreed with the ALJ, however, that "[a]n immunity and indemnification agreement is not an explicit waiver of sovereign immunity." The Board added "[t]he state's election to indemnify employees for official acts does not change the character of Farmer's complaint from one brought by a private party to one brought by the government."

Finally, on appeal the Complainant raised a new argument that because it is a licensee, the state Department has agreed to comply with NRC rules and regulations against discrimination. The Board declined to consider a new issue on appeal, but nonetheless observed that in a prior case it had held that the prohibition on discrimination as a condition of an NRC license was not enough to show that the government agency consented to a discrimination suit that included an award of money damages.

[Nuclear and Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY AND APA SECTION 702 WAIVER FOR NON-MONETARY RELIEF; SOVEREIGN IMMUNITY APPLIES TO COMPENSATORY DAMAGES BUT NOT TO REINSTATEMENT WITH BACK PAY

In Salsbury v. Edward Hines, Jr. Veterans Hospital , 2004-ERA-7 (ALJ Oct. 18, 2004), the ALJ addressed whether the waiver of federal sovereign immunity for non-monetary relief found in the Administrative Procedure Act at 5 U.S.C.A. § 702 applies to ERA whistleblower adjudications. The ALJ reviewed relevant federal court authority to the effect that section 702 provides a waiver of sovereign immunity for suits against the United States in regard to specific relief, as opposed to money damages. The ALJ observed that the ARB's decision in Pastor v. Dept. of Veterans Affairs , ARB No. 99-071, ALJ No. 1999-ERA-11 (ARB May 30, 2003), finding that sovereign immunity was not waived under section 5851 of the ERA, was carefully drafted to limit its ruling to compensatory damages. The ALJ found that section 702 applies to ERA whistleblower adjudications. He also found that the Pastor "person" analysis also must be read to permit injunctive relief ordered against a federal officer of an agency (as opposed to the agency itself).

The ALJ next considered whether a claim for reinstatement with back pay under the ERA whistleblower provision is a claim for "money damages" or is equitable relief. Noting that federal case law was not dispositive on this issue, the ALJ looked to the language of the ERA and implementing regulations and concluded that they indicated that "back pay is considered separate from, and not a subset of, compensatory damages." Slip op. at 10. Based on statutory construction and settled principles offered by the U.S. Supreme Court regarding sovereign immunity, the ALJ concluded that "Congress intended reinstatement with back pay to be equitable relief and not money damages under the APA and the ERA. Therefore the Administrative Procedure Act applies to waive sovereign immunity as to this aspect of Claimant's action." Slip op. at 10. The ALJ, however, found that sovereign immunity applied to bar the Complainant's request for compensatory damages.

The Respondent had also argued that the Complainant was not entitled to appointment to a position to which he had applied, as the ERA refers to "employees" and not "applicants." The Complainant had evidently left his employment with the VA, and was re-applying. The Respondent contended that to hire to a position never held would be a reparation rather than equitable relief. The ALJ agreed.

The Respondent observed that the APA conditions the waiver of sovereign immunity on an alternative judicial remedy not being available, 5 U.S.C. § 704, and argued that the Whistleblower Protection Act and the Back Pay Act were such alternative remedies. The ALJ, however, found that the WPA did not provide the equitable relief available under the ERA, that the BPA was not applicable to the facts of the case, and that the BPA did not provide equitable relief from future harassment as is available under the ERA. The ALJ, therefore, found that neither the WPA nor the BPA negated the APA's waiver of sovereign immunity.

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN; REQUEST BY STATE FOR HEARING DOES NOT CONSTITUTE A WAIVER OF IMMUNITY

In Migliore v. Rhode Island Dept. of Environmental Management , ARB No. 04-156, ALJ No. 2000-SWD-1 (ARB Nov. 30, 2004), the ARB rejected the Complainant's argument that Rhode Island waived its immunity from her complaint when it requested a hearing before the ALJ. The ARB observed that "[w]hen the Secretary has not yet intervened and the OSHA investigation yields a finding in favor of the complainant, the State's only option for forcing resolution of the intervention issue is to request an ALJ hearing. "[T]he State's request for an ALJ hearing must be permitted without requiring the State to yield the very immunity that it is seeking to assert." USDOL/OALJ Reporter at 6 [PDF]. The ARB stated that it was expressing no opinion as to how it might dispose of the sovereign immunity issues presented by the case if they arose in other circumstances or outside the First Circuit.

[Nuclear and Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; REQUEST FOR ALJ HEARING IS NOT A WAIVER OF IMMUNITY; MOTION TO DISMISS BEFORE ALJ BASED ON IMMUNITY IS NOT A WITHDRAWAL OF THE HEARING REQUEST

In Taylor v. Rhode Island Dept. of Environmental Management , ARB No. 04-166, ALJ No. 2001-SWD-1 (ARB Nov. 29, 2004), the federal decisions in Rhode Island Dep't of Envtl. Mgmt. v. United States , 304 F.3d 31 (1st Cir. 2002), and Rhode Island v. United States , 301 F. Supp. 2d 151 (D. R.I. 2004), had enjoined, based on state sovereign immunity, the Department of Labor's adjudication of the complaint, as well as three others initiated and pursued by the Rhode Island Department of Environmental Management employees. The ALJ had dismissed the complaint on sovereign immunity grounds, and the Complainant petitioned for ARB review arguing that the Respondent's request for an ALJ hearing was a waiver of sovereign immunity, citing in support Lapides v. Board of Regents of the Univ. Sys. of Ga ., 535 U.S. 613 (2002). The Complainant alternatively argued that the Respondent's raising of the sovereign immunity defense before the ALJ should be treated as a withdrawal of the Respondent's request for hearing resulting in the reinstatement of OSHA's determination of the final determination of the Secretary.

The Board found that the Respondent's request for an ALJ hearing was not a waiver of immunity. The Board observed that the federal court decisions did not bar investigation at the OSHA level and that Secretarial intervention at the ALJ level would defeat the immunity bar. Thus, "[r]egardless of who requests the hearing, elevation of the complaint from the investigatory level to the level where an administrative law judge will decide the case forces resolution of the sovereign immunity question, because the Secretarial intervention that can cure the sovereign immunity defect must occur 'at or before the ALJ stage.'" The ARB ruled that a "hearing before an administrative law judge must be permitted without requiring the State to yield the very immunity that it is seeking to assert."

In regard to the "withdrawal" argument, the Board held that the State did not withdraw before the ALJ, but rather prevailed, albeit on procedural grounds. The Board also rejected an argument that the federal courts' rulings supported reinstatement of the OSHA determination in her favor. The ARB stated that it was expressing no opinion as to how it might dispose of the sovereign immunity issues presented b the case if they arose in other circumstances or outside the First Circuit.

To the same effect Migliore v. Rhode Island Dept. of Environmental Management , ARB No. 04-156, ALJ No. 2000-SWD-1 (ARB Nov. 30, 2004). See also Migliore v. Rhode Island Dept. of Environmental Management , 2000-SWD-1 (ALJ Sept. 8, 2004) (ALJ rejected argument that the state had withdrawn its request for an ALJ hearing, and therefore OSHA's $10,000 award remained in effect).

[Nuclear and Environmental Whistleblower Digest XX E]
INJUNCTION PREVENTING DOL FROM ADJUDICATING WHISTLEBLOWER CLAIM WITHOUT THE INTERVENTION OF THE SECRETARY BASED ON STATE SOVEREIGN IMMUNITY DEFENSE DOES NOT DEPRIVE ARB OF AUTHORITY TO CONSIDER ISSUES NOT DECIDED IN FEDERAL COURT DECISIONS

In Taylor v. Rhode Island Dept. of Environmental Management , ARB No. 04-166, ALJ No. 2001-SWD-1 (ARB Nov. 29, 2004), the federal decisions in Rhode Island Dep't of Envtl. Mgmt. v. United States , 304 F.3d 31 (1st Cir. 2002), and Rhode Island v. United States, 301 F. Supp. 2d 151 (D. R.I. 2004), had enjoined, based on state sovereign immunity, the Department of Labor's adjudication of the complaint, as well as three others initiated and pursued by the Rhode Island Department of Environmental Management employees. The ALJ had dismissed the complaint on sovereign immunity grounds, and the Complainant petitioned for ARB review. Rhode Island argued that the Board had no authority to do anything but reject the Complainant's petition for review. The Board rejected this argument, finding that it had authority to consider arguments made by the Complainant that were based on developments in the processing of her complaint that the federal courts had not examined.

XX.E. Sovereign immunity

In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ June 27, 1994), the ALJ concluded that in the absence of a ruling by the Secretary upholding DOL jurisdiction under TSCA when that jurisdiction has been challenged on the basis of sovereign immunity, a proceeding under 15 U.S.C. § 2622 cannot be maintained. The ALJ concluded that NASA, as an agency of the United States government has not waived its sovereign immunity from suit under that TSCA. He therefore recommended that complainant's complaint against NASA under 15 U.S.C. § 2622 be dismissed. The ALJ did not make a similar recommendation in regard to the CAA complaint, in which a "person" is expressly defined to include the United States thereby waiving sovereign immunity in clear terms. In contrast, no such expressed waiver is contained in 15 U.S.C. § 2622.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; TOO LATE FOR OSHA TO INTERVENE ONCE THE CASE IS BEFORE THE ARB

In Migliore v. Rhode Island Dept. of Environmental Management , ARB No. 99-118, ALJ No. 1998-SWD-3 (ARB Apr. 30, 2004), the ARB had issued an order permitting the Assistant Secretary to file a motion to intervene to avoid the bar of state sovereign immunity, and in response the Respondent filed a motion in Federal district court to enforce an earlier injunction. In State of Rhode Island v. United States , 301 F.Supp.2d 151 (D.R.I. 2004) (case below 1998-SWD-3), the court held that the intervention of the Secretary to Labor [i.e., OSHA] removes the state sovereign immunity bar of agency adjudication of a case brought by a private citizen against a nonconsenting state "only if it occurs at or before the ALJ stage. Intervention at the ARB stage is too little and too late." Thus, the ARB dismissed the proceedings before it and vacated the ALJ's recommended decision and order in favor of the Complainant.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY ENJOINS AN ENVIRONMENTAL WHISTLEBLOWER ADJUDICATION WHERE OSHA DOES NOT PARTICIPATE AS A PARTY, BUT DOES NOT ENJOIN AN OSHA INVESTIGATION OR AN ADJUDICATION WHERE OSHA DOES PARTICIPATE AS A PARTY

In Connecticut Dept. of Environmental Protection v. OSHA , 356 F.3d 226 (2d Cir. 2004), the Court of Appeals affirmed in part and reversed in part a district court's injunction enjoining OSHA on state sovereign immunity grounds from investigating, hearing, or adjudicating a whistleblower complaint filed by a state employee against a state agency under several environmental whistleblower laws. The court affirmed the injunction insofar as it enjoined an adjudication before an ALJ where OSHA does not participate as a party, but held that the injunction swept too broadly in enjoining OSHA from conducting an investigation and from conducting an administrative adjudication in which it participates as a party. The court wrote that "Connecticut's sovereign immunity does not bar OSHA from intervening as a party in a case originally brought by a private citizen against a nonconsenting state agency."

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; TOO LATE FOR OSHA TO INTERVENE ONCE THE CASE IS BEFORE THE ARB

In State of Rhode Island v. United States , 301 F.Supp.2d 151 (D.R.I. 2004) (case below 1998 SWD 3), the court held that the intervention of the Secretary to Labor [i.e., OSHA] removes the state sovereign immunity bar of agency adjudication of a case brought by a private citizen against a nonconsenting state "only if it occurs at or before the ALJ stage. Intervention at the ARB stage is too little and too late." The court therefore granted the State's motion to enforce the court's earlier injunction in regard to any further proceedings before the ARB in the Complainant's case. However, the court denied the motion to enforce to the extent that it sought to enjoin the Secretary from intervening at or before the ALJ stage.

[Nuclear & Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY; TVA FOUND TO HAVE EXPRESSLY WAIVED

In Overall v. Tennessee Valley Authority , 1999 ERA 25 (ALJ Mar. 16, 2004), TVA filed a motion to dismiss based on the argument that sovereign immunity had not been waived under ERA, 42 U.S.C. § 5851(b). The ALJ analyzed the applicable law, and found that "TVA expressly waived its sovereign immunity through the 'sue and be sued' clause contained in its enabling statute and that TVA has expressly consented to be sued for monetary damages pursuant to § 5851."

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; SUMMARY DECISION APPROPRIATE WHERE COMPLAINANT FAILS TO RAISE GENUINE ISSUE OF MATERIAL FACT FOR TRIAL; ARB REJECTS ARGUMENT THAT ALJ HEARING IS INVESTIGATORY RATHER THAN ADJUDICATORY IN NATURE

The ALJ properly granted summary judgment where the Respondent was a political subdivision of the State of Georgia immune from prosecution by Complainant, a private citizen, under U.S. Const. Amend. XI. Complainant argued that the proceeding before the ALJ was not an adjudication but an investigation because under the CERCLA and SWDA whistleblower scheme only the Secretary of Labor makes the final decision of whether a violation has occurred and whether relief should be granted. The ARB found that the relevant case law made it clear that ALJ whistleblower hearings are adjudicatory. The ARB noted that the ALJ had assumed without evidence in the record that Respondent had not previously voluntarily waived its sovereign immunity, but that because it was Complainant's burden to establish through affidavits or otherwise a genuine issue of material fact, entry of judgment in favor of Respondent was proper. Cannamela v. State of Georgia Dept. of Natural Resources , ARB No. 02-106, ALJ No. 2002-SWD-2 (ARB Sept. 30, 2003).

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; NO EVIDENCE OF ABROGATION BY CONGRESS; MERE RECEIPT OF FEDERAL FUNDS AND ASSURANCES NOT TO DISCRIMINATE DO NOT ESTABLISH WAIVER; RAISING OF DEFENSE AFTER DEFENSE ON MERITS IS NOT UNTIMELY; RAISING DEFENSES ON THE MERITS IS NOT A CONSENT TO DOL JURISDICTION; LATE AMENDMENT OF COMPLAINT TO NAME AS PARTIES PERSONS IN THEIR INDIVIDUAL CAPACITIES

Where a state does not consent to be sued in a DOL whistleblower proceeding under CERCLA, RCRA ("SWDA"), CWA ("FWPCA") and SWDA, state sovereign immunity bars such a suit unless the complainant demonstrates that Congress authorized the suit or that the state waived its immunity. Ewald v. Commonwealth of Virginia, Dept. of Waste Management , ARB No. 02 027, ALJ No. 1989 SDW 1 (ARB Dec. 19, 2003). In Ewald , the ARB found that Complainant presented no evidence to show to that Congress abrogated state immunity from CERCLA, RCRA, CWA and SDWA whistleblower complaints. Moreover, the ARB found that Virginia's participation in the Superfund program did not constitute waiver of its sovereign immunity under CERCLA. Mere receipt of federal funds does not establish a waiver; nor does a signed assurance by a state agreeing to abide by federal laws prohibiting various forms of discrimination as a condition to receiving federal program funds provide the express and equivocal language required to establish a waiver.

In Ewald , Virginia did not raise the state sovereign immunity defense until about 10 years into the proceedings before DOL. Complainant argued, in essence, that the raising of the defense was untimely and that Virginia had voluntarily submitted to DOL jurisdiction by defending against the merits of her discrimination complaint. The ARB found that state sovereign immunity could be raised at any time during the proceedings, including on appeal. Moreover, the ARB found that a state's defense of a discrimination complaint by a private party in an administrative proceeding does not constitute a waiver of immunity.

The ARB declined Complainant's request for an ARB ruling that the Assistant Secretary of OSHA could intervene on her behalf.

Finally, Complainant sought to amend her complaint to add as parties in their individual capacities her former supervisor and the former and current departmental directors. Complainant also sought to add the federal EPA. The ARB, applying an abuse of discretion standard, held that the ALJ properly applied 29 C.F.R. § 18.5(e) and reasonably balanced the due process concerns expressed in Wilson v. Bolin Associates, Inc ., 1991 STA 4 (Sec'y Dec. 20, 1991), in denying the amendments to the complaint, The ALJ denied addition of the parties because neither of the named persons nor the federal EPA had participated in the proceedings in a very long time. Moreover, the ARB expressly affirmed the ALJ's ruling that the current departmental director would not be able to effect a remedy to Complainant in his or her individual capacity and should not be susceptible to individual liability merely because of succession to the office.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY INTERVENTION BY ASSISTANT SECRETARY FOR OSHA

In Migliore v. Rhode Island Dept. of Environmental Management , ARB No. 99 118, ALJ Nos. 1998 SWD 3, 1999 SWD 1 and 2 (ARB July 11, 2003), the Assistant Secretary for OSHA requested that the ARB, following briefing by the parties, decide whether the Assistant Secretary has the authority to intervene to cure a state sovereign immunity bar to a DOL whistleblower suit prior to OSHA making a decision whether to move to intervene for that purpose. The ARB declined, holding that until the Assistant Secretary moves to intervene it does not have a justicable dispute before it. The Board wrote:

The Board is not bound by the "case or controversy" limitation that applies to the Federal courts, but the policy concerns that militate against the rendering of advisory opinions in Article III courts are also relevant to the question of whether the Board should issue the ruling that the Assistant Secretary requests.

(citations omitted). The ARB, however, granted the Assistant Secretary time to file a motion to intervene.

[Editor's note: This proceeding on intervention by OSHA is related to Rhode Island v. United States , 115 F.Supp.2d 269 (D.R.I. 2000) (enjoining adjudication of SWDA whistleblower complainants by DOL under state sovereign immunity) and Rhode Island Dept. of Envtl. Mgmt v. United States , 304 F.3d 31 (1st Cir. 2002) (affirming injunction but indicating that the Secretary of Labor could intervene to remove the sovereign immunity bar). The Assistant Secretary subsequently filed a motion to intervene before the ARB. The U.S. District Court for the District of Rhode Island has issued a stay on the briefing schedule before the ARB in order to consider whether to grant the state's motion to enforce the injunction. Rhode Island Dept. of Envtl. Mgmt v. United States, No. 00 CV 44 (D.R.I. Oct. 23, 2003).]

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; NEVADA V. HIBBS

In Blodgett v. Tennessee Dept. of Environment and Conservation , 2003 CAA 15 (ALJ Aug. 8, 2003) the ALJ rejected Complainant's assertion that the legislative history of the CAA establishes that Congress intended to abrogate State sovereign immunity to claims filed under the employee protection provision of the CAA under the analysis contained in Nevada v. Hibbs , 123 S.Ct. 1972 (2003). The ALJ concluded that Complainant had failed to demonstrate an unequivocal expression of Congressional intent to abrogate state sovereign immunity or that the environmental whistleblower statutes were an exercise of Congressional power under Section 5 of the 14th Amendment.

To the same effect Powers v. Tennessee Dept. of Environment and Conservation , 2003 CAA 16 (ALJ July 14, 2003).

[Nuclear & Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY; LEGISLATIVE HISTORY CANNOT SUPPORT INFERENCE OF WAIVER

See Bath v. U.S. Nuclear Regulatory Commission , ARB No. 02 041, ALJ No. 2001 ERA 41 (ARB Sept. 29, 2003), casenoted at XIV B 2.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY

The United States Supreme Court has denied a motion to direct the Clerk to file a petition for writ of certiorari out of time in Migliore v. Rhode Island Dept. of Environmental Management , 2003 WL 1447821, 71 USLW 3609 (Mar. 24, 2003). Case below Rhode Island Department of Environmental Management v. U.S. Dept. of Labor , 304 F.3d 32 (1st Cir. Aug. 30, 2002), administrative Case Nos. ARB No. 99 118, ALJ No. 1998 SWD 3.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; NO ABROGATION BY CONGRESS; NO WAIVER BY STATE MERELY BECAUSE IT ACCEPTED FEDERAL FUNDING

In Blodgett v. Tennessee Dept. of Environment and Conservation , 2003 CAA 7 (ALJ Jan. 28, 2003), the ALJ found that sovereign immunity granted to the Respondent under the 11th Amendment of the U.S. Constitution precluded the complainant from filing a federal whistleblower claim against the Respondent, a state agency. The ALJ rejected Complainant's argument that Congress had abrogated state sovereign immunity under whistleblower provision of the CAA. Complainant cited a Committee Proposal stating that the section was applicable to state employees, but the ALJ concluded that without a clear abrogation of state immunity in the Clean Air Act itself, there was insufficient evidence of Congressional abrogation of state sovereign immunity. Complainant also alleged that section 7418 of the CAA was a waiver clause; however, the ALJ concluded that this was a waiver of Federal, not State, sovereign immunity, and then only for the purposes of that section, and not the whistleblower section.

The ALJ also rejected Complainant's argument that Tennessee had waived immunity by accepting millions of dollars in federal funding for environmental programs. The ALJ wrote that "[t]he Supreme Court has held that in deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction. Edelman v. Jordan et. al. , 415 U. S. 651,673, 94 S.Ct. 1347, 1361 (1974)" and found no evidence that the State of Tennessee had waived its immunity from federal environmental whistleblower claims.

[Nuclear & Environmental Whistleblower Digest XX E]
SOVEREIGN IMMUNITY; NO JURISDICTION OVER FEDERAL RESPONDENT UNDER ERA ON CLAIM FOR MONETARY DAMAGES

In Pastor v. Dept. of Veterans Affairs , ARB No. 99 071, ALJ No. 1999 ERA 11 (ARB May 30, 2003), the ARB considered the question whether Congress has waived the Federal Government's sovereign immunity against a claim for monetary damages under the whistleblower protection provision of the ERA, 42 U.S.C. § 5851(b). The ARB found that it lacked jurisdiction over the matter because Complainant's complaint for monetary damages is barred by sovereign immunity. In this case, Complainant was not seeking reinstatement and the only relief she was seeking was for monetary damages.

The ARB carefully examined the text of the ERA whisteblower provision and concluded that "under § 5851, ' employers ' are prohibited from discriminating against whistleblowers (and may be relieved of that requirement under certain circumstances), but only ' persons ' who (allegedly) discriminate are subject to the process and remedies for discrimination." (emphasis added). In other words, the ERA refers to "employers" under the substantive prohibition of subsection 5851(a), but to "persons" under the process and remedies description under subsection 5851(b); Federal entities are included in the definition of "employers" but not "persons," and since sovereign immunity must be unequivocably waived, the Federal Government cannot be found to have waived immunity with respect to monetary damages under section 5851. Thus, the ARB found that the Secretary of Labor did not have jurisdiction to adjudicate the complaint.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY

See Federal Maritime Commission v. South Carolina State Ports Authority , _ US _, 122 S Ct 1864, 152 L Ed 2d 962 (2002).

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; DISCRETION OF SECRETARY TO INTERVENE

In Rhode Island Department of Environmental anagement v. U.S. Dept. of Labor , Nos. 00 2326, 01 1543 (1st Cir. Aug. 30, 2002) (case below ARB No. 99 118, ALJ Nos. 1998 SWD 3, 1999 SWD 1 and 2), the State of Rhode Island brought suit in the district court seeking to enjoin four separate administrative actions brought under the whistleblower provisions of the SWDA by state employees on the ground that the proceedings infringed upon the state's constitutionally protected sovereign interests. The district court found the state's arguments convincing, and enjoined the United States Department of Labor and three state agency employees from proceeding in a federal administrative adjudication of the employees' claims.

On appeal, the First Circuit affirmed the lower court's ruling, holding that the recent Supreme Court decision in Federal Maritime Commission v. South Carolina State Ports Authority , 122 S. Ct. 1864 (2002) "fairly disposes of any argument by the appellants that, as a general proposition, a state's traditional immunity from suit does not extend to administrative proceedings initiated and prosecuted by private citizens." The court, however, made one clarification to the District Court's decision:

The governing regulations provide that the Secretary may, at any time, intervene in the proceedings before the ALJ as a party or amicus. 29 C.F.R. § 24.6(f)(1). Generally speaking, if the United States joins a suit after it has been initiated by otherwise barred private parties and seeks the same relief as the private parties, this generally cures any Eleventh Amendment or sovereign immunity defect, and the private parties may continue to participate in the suit. See Mille Lacs Band of Chippewa Indians v. Minnesota , 124 F.3d 904, 913 (8th Cir. 1997), aff'd, 526 U.S. 172 (1999); Seneca Nation of Indians v. New York , 178 F.3d 95, 97 (2d Cir. 1999) (per curiam). Thus, our holding does not preclude the Secretary from intervening in the enjoined proceedings and removing the sovereign immunity bar. See Ohio Envtl. Prot. Agency , 121 F. Supp. 2d at 1167. To the extent the district court's injunction does not permit the Secretary to take such action, we modify the injunction accordingly.[13]

* * *
______

[13] We also note, in agreement with the district court, that OSHA is not enjoined from receiving complaints, conducting its own investigations on such complaints, and making determinations as to liability under 29 C.F.R. § 24.4(d)(1).

In Migliore v. Rhode Island Dept. of Environmental anagement , ARB No. 99 118, ALJ Nos. 1998 SWD 3, 1999 SWD 1 and 2 (ARB Sept. 12, 2002), the ARB, noting that the 1st Circuit had modified the injunction "allow the Secretary of Labor, if she so chooses, to intervene in the proceedings before the ALJ, thereby curing any sovereign immunity bar," (quote from the 1st Cir. decision) ordered the parties to inform the ARB no later than October 10, 2002, how they wished to proceed in the case.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; DISMISSAL WHERE DOL DOES NOT INTERVENE

The State of Georgia raised the Eleventh Amendment in Cannamel v. State of Georgia , 2002 SWD 2 (ALJ July 26, 2002). Following issuance of the Supreme Court's decision in Federal Maritime Commission v. South Carolina State Ports Authority , 122 S. Ct. 1864 (2002), Georgia filed a motion to dismiss, and the ALJ issued an Order to Show Cause. The Complainant answered that FMC did not apply because the ALJ was "simply performing an investigative function which results in a report to the Secretary of Labor." The ALJ found that this argument had no merit, and noting that DOL had not intervened, granted the motion to dismiss.

[Nuclear & Environmental Whistleblower Digest XX E]
STATE SOVEREIGN IMMUNITY; ELEVENTH AMENDMENT BARS FEDERAL AGENCY FROM ADJUDICATING PRIVATE PARTY'S COMPLAINT AGAINST A NON CONSENTING STATE

In Federal Maritime Commission v. South Carolina State Ports Authority , _ US _, 122 S Ct 1864, 152 L Ed 2d 962 (2002), a case arising under the Shipping Act of 1984, the United States Supreme Court held that State sovereign immunity bars the FMC from adjudicating a private party's complaint against a non consenting State. Earlier, in Ewald v. Commonwealth of Virginia Dept. of Waste anagement , ARB No. 02 027, ALJ No. 1989 SDW 1 (ARB Jan. 31, 2002), the ARB had granted a stay on briefing on the ground that the anticipated South Carolina State Ports Authority v. Federal Maritime Comm'n decision would likely affect the disposition of the Ewald appeal. See also Rhode Island Dept. of Environmental Management v. U.S. Dept. of Labor , Nos. 00 2326 and 01 1543 (1st Cir. Apr. 8, 2002) (First Circuit holding that state sovereign immunity principles bar the private prosecution of whistleblower complaints against state agencies before the OALJ and the ARB, unless DOL prosecutes such cases as a party).

[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY; DEPARTMENT OF ENERGY

In High v. Lockheed Martin Energy Systems, Inc. , ARB No. 98-075, ALJ No. 1996-CAA-8 (ARB Mar. 13, 2001), a complaint under the ERA whistleblower provision was dismissed on sovereign immunity grounds as to the United States Department of Energy and its Oak Ridge Operations Office.

[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY; ARB RAISES ISSUE SUA SPONTE

In Pastor v. Veterans Affairs Medical Center , ARB No. 99-071, 1999-ERA-11 (ARB Mar. 1, 2001), the case was before the ARB based on the ALJ's recommendation of dismissal based on Complainant's failure to file a timely complaint. In an Order Directing Additional Briefing, the ARB noted that Respondent is an agency of the federal government, and that sovereign immunity has not been waived under the ERA whistleblower provision. Even though Respondent had not raised the issue, the ARB found that sovereign immunity is jurisdictional in nature, and therefore appropriate for the ARB to raise sua sponte . Thus, the ARB ordered the parties to brief the issue.

[Nuclear & Environmental Digest XX E]
STATE SOVEREIGN IMMUNITY; ELEVENTH AMENDMENT

In State of Connecticut Dept. of Environmental Protection v. OSHA , __ F.Supp. __, 2001 WL 456234, No. 3-99CV2291 GLG (D.Conn. Apr. 23, 2001), the court found that state sovereign immunity barred federal administrative investigation and adjudicatory proceedings under the whistleblower provisions of the CAA, SDWA and SWDA. The court therefore enjoined OSHA from proceeding with the investigation, adjudication and prosecution of the complaint.

In State of Florida v. United States , 133 F.Supp.3d 1280 (N.D. Fla. Mar. 2, 2001) (case below 2000-CAA-19), the court held that "state constitutional sovereign immunity bars the commencement and prosecution of a federal administrative proceeding by a private individual against a state, to the same extent as would be true with respect to a private individual's lawsuit in federal or state court." The court concluded that Complainant's whistleblower complaint against the State of Florida was the functional equivalent of an action commenced and prosecuted by Complainant individually, rather than by the Department of Labor, and therefore barred. The court found no clear intention by Congress to abrogate state sovereign immunity in regard to the type of whistleblower complaint brought by Complainant (where he commenced and prosecuted the administrative complaint after DOL had found the complaint unfounded). Finally, the court observed that the 11th Amendment and state sovereign immunity would not bar an administrative proceeding from going forward to the extent that it seeks prospective relief as against individual state officials in their official capacities, or to the extent that it seeks relief against those persons in their individual capacities (the court, however, did not rule on whether such suits were cognizable against individuals under the CAA, WPCA, TSCA, SDWA, SWDA and CERCLA). The court concluded, however, Complainant's suit against individual state officials would be barred to the extent that he seeks damages or other retrospective relief, but not to the extent that they seek prospective relief.

See also South Carolina State Ports Authority v. Federal Maritime Commission , No. 00-1481 (4th Cir. Mar. 12, 2001) (state sovereign immunity protects state from being brought before the Federal Maritime Commission by a private party).

[Nuclear & Environmental Digest XX E] STAY OF ARB REVIEW; ELEVENTH AMENDMENT CHALLENGE

In State of Rhode Island, Rhode Island Dept. of Environmental Management v. USDOL , C.A. No. 00-44T (D.C. R.I. Mar. 14, 2000), the United States District Court for the District of Rhode Island granted a temporary restraining order, enjoining the U.S. Department of Labor "from proceeding with any further prosecution of filing of Migliore v. RIDEM, ARB Case NO. 99-118, Migilore v. RIDEM, DOL Case No. 2000 SWD 1, Raddatz v. RIDEM, OSHA Case No. 01-0190-00-001 or similar cases against Plaintiff that have reached the level of Administrative Law Judge. The request for a Temporary Restraining Order is denied to the extent it seeks to restrain and/or enjoin OSHA from proceeding with the initial investigatory stage of any complaint." Rhode Island's motion was based on the contention that the filing, investigation and prosecution of these whistleblower cases violates its sovereign immunity and the Eleventh Amendment.

[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT; STATE SOVEREIGN IMMUNITY

In State of Florida v. United States of America , No. 4:00cv445-RH (D.C. N.D. Fla Dec. 13, 2000) (case below 2000-CAA-19), the United States District Court for the Northern District of Florida granted a preliminary injunction barring further proceedings in Shafey v. Florida Department of Health , 2000-CAA-19, for a limited period to permit briefing and full and fair consideration of the State of Florida's suit to block the administrative proceedings on grounds of sovereign immunity and Eleventh Amendment immunity. Complainant Shafey is a former State of Florida employee seeking redress before the Department of Labor for allegedly having been fired by the State in violation of federal law.

[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT; STATE SOVEREIGN IMMUNITY; INTERVENTION BY OSHA

In State of Ohio Environmental Protection Agency v. USDOL , No. C2-00-1157, 2000 WL 1721083 (N.D. Ohio Nov. 14, 2000) (case below " Jayko ", ARB No. 01-009, ALJ No. 1999-CAA-5), the court issued a declaratory judgment that the regulations set forth in 29 C.F.R. Part 24 relating to claims made by individual complainants against the various States may only be applied consistent with the Eleventh Amendment where the Respondent is a State, if the United States Department of Labor elects to intervene as a party once the case proceeds to a hearing before an ALJ. The court gave the Department of Labor a period of time to decide whether it would intervene in the Jayko administrative proceedings. On January 10, 2001, the Assistant Secretary for OSHA filed with the ARB a Notice of Intervention, based on the Assistant Secretary's review of the ALJ's recommended decision and the record in the case. The Assistant Secretary, however, stated that "[t]his election to participate as a party is not intended, nor should it be construed, as a departure from the position of the United States that the Eleventh Amendment does not bar a private individual from participating as the sole complaining party in administrative proceedings under the employee protection statutes." Ass't Sec'y Notice of Intervention at 4-5. The Assistant Secretary also filed with the ARB a motion seeking a stay of ARB review of the case pending the Assistant's Secretary's decision whether to seek judicial review the district court's judgment.

[Nuclear and Environmental Digest XX.E.]
ELEVENTH AMENDMENT; BARS ADMINISTRATIVE ADJUDICATION UNDER PART 24 (AS OPPOSED TO INVESTIGATION) UNLESS DOL CHOOSES TO INTERVENE AS A PARTY

In State of Ohio Environmental Protection Agency v. USDOL , No. C2-00-1157, 2000 WL 1721083 (N.D. Ohio Nov. 14, 2000) (case below "Jayko", ARB No. 01-009, ALJ No. 1999-CAA-5), U.S. District Court judge Edmund A. Sargus issued a declaratory judgment that the regulations set forth in 29 C.F.R. Part 24 relating to claims made by individual complainants against the various States may only be applied consistent with the Eleventh Amendment where the Respondent is a State, if the United States of America Department of Labor elects to intervene as a party once the case proceeds to a hearing before an ALJ. Judge Sargus disagreed with the decision in the similar case of State of Rhode Island v. USDOL , No. C.A. 00- 44-T, 2000 WL 1448804 (D.R.I. Sept. 29, 2000), insofar as that court enjoined any further administrative proceedings, not allowing DOL to decide whether to intervene as a party to the proceedings. Judge Sargus provided DOL 30 days to decide whether it would elect to intervene as a party. Because the record complied by the ALJ appeared to be thorough and complete, Judge Sargus indicated that he would not rule that DOL could not now rely on the concluded administrative hearing (thus, implying that if DOL chooses to intervene, the case would continue on review by the ARB).

[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY UNDER THE TSCA

In Egbert v. U.S. Air Force , ARB No. 99-096, ALJ No. 1999-TSC-1 (ARB Sept. 15, 2000), the ARB dismissed the U.S. Air Force for lack of subject matter jurisdiction because Respondent, an entity of the United States government, could not be held liable because the United States has not waived its sovereign immunity under TSCA's employee protection provision, except for certain whistleblower complaints involving lead-based paint.

[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT SOVEREIGN IMMUNITY

In State of Rhode Island, Rhode Island Dept. of Environmental Management v. United States , C.A. No. 00-044-T, 2000 WL 1448804 (D.R.I. Sept. 29, 2000), the United States District Court for the District of Rhode Island granted the State of Rhode Island's motion for a preliminary injunction barring any further "prosecution" before the Department of Labor of individual's environmental whistleblower claims involving the State of Rhode Island. The injunction was based on the Eleventh Amendment to the United States Constitution, but primarily on the doctrine of state sovereign immunity. Although the court's order bars any further proceedings before the Office of Administrative Law Judges, it did not enjoin OSHA from investigating alleged violations or seeking to enforce the State's compliance with federal law.

The court wrote that "in determining whether a proceeding is one in which a private party seeks to litigate its claim against a state or whether it is an action by the United States to enforce federal law, substance is more important than form. The determination turns on the nature of the proceeding, the relief sought and the role played by the government agency rather than on the forum in which the proceeding takes place or how the proceeding is characterized." 2000 WL 1448804 * 5. The court found persuasive, inter alia , that, at least at the ALJ stage, the cases are not investigations but adjudications; the proceedings were not initiated by investigations but by complaints filed by individuals; in the cases currently before OALJ, the Assistant Secretary investigated and found no violation; the relief sought and/or granted was almost entirely of the type awarded in a private tort action rather than an administrative enforcement proceeding; DOL was not a party or participant in the ALJ hearings -- the complainants are the prosecuting parties; DOL, through OALJ, is functioning solely as the forum; ALJ's are supposed to be impartial arbiters free from agency influence -- they do not have an investigative or prosecutorial function. The court distinguished Ellis Fischer State Cancer Hospital v. Marshall , 629 F.2d 563 (8th Cir. 1980), on the ground that the Secretary of Labor initiated the administrative proceedings in that case, whereas the complaints in the matter sub judice where brought by the individual complainants. The district court found that the court in Ellis Fischer based its 11th amendment ruling on the premise that such immunity extends only to judicial action. Moreover, the district court observed that Ellis Fisher dealt only with 11th Amendment immunity and was decided long before Supreme Court authority making it clear that sovereign immunity extends well beyond the literal language of the 11th Amendment and does not depend on the forum in which a claim is brought.

The court rejected the argument that by accepting federal funds on the condition that it abide by federal laws prohibiting discrimination, the State of Rhode Island waived immunity with respect to a private whistleblower suit. Likewise, the court rejected the argument that the State of Rhode Island's general waiver of tort immunity extended to a tort relief sought in an administrative tribunal.

[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT SOVEREIGN IMMUNITY

In Jayco v. Ohio Environmental Protection Agency , 1999-CAA-5 (ALJ Oct. 2, 2000), the ALJ found that the Ohio Environmental Protection Agency was not immune based on the Eleventh Amendment from liability under the "whistleblower" provisions covered by 29 C.F.R. Part 24, based on Ellis Fischel State Cancer Hospital v. arshall , 629 F.2d 563 (8th Cir. 1980, cert. denied , 450 U.S. 1040 (1981) and Tennessee Dept. of Human Services v. U.S. Dept. of Education , 979 F.2d 1162 (6th Cir. 1992). The ALJ alternatively held that an administrative court is not the proper forum to raise such constitutional concerns.

[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY

In Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ No. 1997-CAA-2 and 9 (ARB Feb. 29, 2000), the ARB considered whether the United States had waived sovereign immunity under several environmental whistleblower protection provisions. It found that sovereign immunity had been waived under CERCLA, the FWPCA, the CAA, and the SWDA. The ARB, however, found the waiver of sovereign immunity to be more limited under the TSCA, an act for which the United States had waived sovereign immunity only in regard to certain whistleblower complaints involving lead-based paint. In the instant case, since Complainant's protected activity related to lead, but not lead-based paint, the ARB found no waiver. The ARB also found that the case did not involve Federal requirements for certification of lead abatement workers, and therefore there was not waiver under TSCA for that reason.

[Nuclear & Environmental Digest XX E]
TRIBAL SOVEREIGN IMMUNITY

In Kanj v. Viejas Band of Kumeyaay Indians , ARB No. 06-074, ALJ No. 2006-WPC-1 (ARB Apr. 27, 2007), the ARB accepted interlocutory review "on the question whether Congress abrogated the Band's sovereign immunity from suit by a private citizen pursuant to [the Federal Water Pollution Control Act a/k/a the Clean Water Act] 33 U.S.C.A. § 1367 (West 2001)." The ARB affirmed the ALJ's findings that Congress abrogated tribal sovereign immunity under the FWPCA, and that tribal immunity from suit based on self-government in purely intramural matters did not arise.

[Nuclear & Environmental Digest XX E]
ELEVENTH AMENDMENT AS BAR TO ACTIONS AGAINST STATE AGENCIES

In his recommended decision in Migliore v. Rhode Island Dept. of Environmental Management , 1998-SWD-3, 1999-SWD-1 and 2 (ALJ Aug. 13, 1999), the ALJ addressed Respondent's argument that Complainant's SWDA whistleblower complaint should be dismissed because the Eleventh Amendment bars an ALJ from entering an award against Respondent, a state agency. The ALJ reviewed the statutory language and caselaw, and quoting the 8th Circuit, concluded that "'Courts have found no Eleventh Amendment bar to actions brought by federal administrative agencies pursuant to complaints of private individuals.' [ Ellis Fischel State Cancer Hospital v. Marshall , 629 F.2d 563, 567 (8th Cir. 1980)]; see also Tennessee Dep't of Human Serv. v. United States Dept. of Education , 979 F.2d 1162 (6th Cir. 1992)." The ALJ, in a footnote, however, observed that "while the Eleventh Amendment does not bar this administrative proceeding, it could apply in the event that a private party petitions a judicial court for enforcement of an administrative award. See Georgia Dept. of Human Resources v. Nash , 915 F.2d 1482, 1486 n.14 (11th Cir. 1990)."

Compare Thakur v. State of New Mexico Environmental Dept. Construction Programs Bureau , 1998-WPC-5, slip op. at n.3 (ALJ Oct. 21, 1999) (ALJ declined to address issue of state agency's immunity from suit, finding that the proceeding before the ALJ was not the proper forum to raise such a Constitutional issue).

See also The Osage Tribal Council v. USDOL , No. 97-9564 (10th Cir. Aug. 4, 1999)(case below ARB No. 96-137, ALJ No. 1995-SDW-1) (court considered issue of whether tribal immunity can be abrogated through a definitional section, and analogized to Eleventh Amendment state sovereign immunity cases holding that definitional inclusions are sufficiently explicit waivers of immunity; Nowak v. Environmental Dept. of the State of New Mexico , 1996-CAA-9 (ALJ Mar. 4, 1997) (ALJ recommended approval of a settlement agreement that included provision that agreement could be enforced through binding arbitration; ALJ wrote that "[s]uch a provision is appropriate in this case because the Eleventh Amendment may preclude the Complainant from seeking to enforce the agreement in a Federal District Court under the provisions of 42 U.S.C. §§ 7622(e)." (citations omitted)).

[Nuclear & Environmental Digest XX A]
STAY OF ARB REVIEW; ELEVENTH AMENDMENT CHALLENGE

In Migliore v. Rhode Island Dept. of Environmental Management , ARB No. 99-118, ALJ Nos. 1998-SWD-3, 1999-SWD-1 and 2 (ARB Feb. 8, 2000), the ARB granted Respondent's motion to stay ARB review of the cases pending the resolution of an action in United States District Court for the District of Rhode Island, seeking a declaratory judgment pursuant to FRCP 57 holding that the filing, investigation and prosecution of this case violates Respondent's sovereign immunity and the Eleventh Amendment. The Respondent also was seeking a TRO, and preliminary and permanent injunctions pursuant to FRCP 65 ordering the USDOL to immediately cease and desist any further investigation, prosecution or filing of this or similar cases and to dismiss each of the instant cases with prejudice.

[ Editor's note : At the time this casenote was written, the District Court had issued an oral order granting a TRO in this matter, but has not yet issued a written order]

[Nuclear & Environmental Digest XX E]
TRIBAL IMMUNITY

In The Osage Tribal Council v. USDOL , No. 97-9564 (10th Cir. Aug. 4, 1999)(case below ARB No. 96-137, ALJ No. 1995-SDW-1), the 10th Circuit affirmed the ARB's determination that the SDWA abrogates tribal immunity, rejecting the Petitioner's argument that, because the basis for finding waiver was grounded in a definition, it could not constitute the kind of explicit waiver of immunity required.

[Nuclear & Environmental Digest XX E]
SOVEREIGN IMMUNITY NOT WAIVED UNDER ERA OR TSCA

In Johnson v. Oak Ridge Operations Office , ARB No. 97-057, ALJ Nos. 1995-CAA-20, 21 and 22 (ARB Sept. 30, 1999), the ARB reaffirmed its holdings in Teles v. DOE , 1994-ERA-22 (Sec'y Aug. 7, 1995), and Stephenson v. NASA , 1994-TSC-5 (Sec'y July 3, 1995), that sovereign immunity had not been waived under the whistleblower provisions of the ERA and the TSCA..

SOVEREIGN IMMUNITY UNDER THE SDWA; INDIAN NATION
[N/E Digest XX E]

In White v. The Osage Tribal Council , 95-SDW-1 (ALJ May 31, 1996), the ALJ recommended a finding that the Osage Nation was not immune from suit pursuant to the Safe Drinking Water Act's whistleblower provision based on sovereign immunity. The ALJ based this finding on Phillips Petroleum Co. v. U.S. Environmental Protection Agency , 803 F.2d 545, 555-556 (10th Cir. 1986), and the 1986 amendments which added section 1451 to Part E of the Safe Drinking Water Act. Safe Drinking Water Amendments of 1986, Pub. L. No. 99-339, §302, 100 Stat. 642, 665-66 (1986). The ALJ also found that the Tribal Council had expressly consented to suit when the Osage Tribe began contracting with the United States in 1979, at which time the Tribal Council adopted the Osage National Federal Programs Policies and Procedures Manual which requires compliance with state and federal employment laws.

SOVEREIGN IMMUNITY; DEPARTMENT OF ENERGY; ENERGY REORGANIZATION ACT
[N/E Digest XIV B 4 b and XX E]

The Department of Energy is not a proper party defendant in an ERA whistleblower case because the United States has not waived sovereign immunity under the ERA. Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), citing Teles v. U.S. Dept. of Energy , 94-ERA-2 (Sec'y Aug. 7, 1995).

SOVEREIGN IMMUNITY NOT WAIVED UNDER ERA
[N/E Digest XX E]

In Jackson v. Science Applications International Corporation Division 012, Savannah River , 95-ERA-24 (Sec'y Jan. 17, 1996), the Secretary followed Teles v. U.S. Dept. of Energy , 94-ERA-22 (Sec'y Aug. 7, 1995), in dismissing the co-Respondent Department of Energy because it is not subject to suit under ERA section 211, sovereign immunity not having been waived under that provision.

XX E SOVEREIGN IMMUNITY UNDER THE ERA; DEPARTMENT OF ENERGY

In Jackson v. Science Applications International Corp., 95-ERA-24 (ALJ Sept. 5, 1995), one the Respondents was the Department of Energy (DOE). The ALJ recommended dismissal of DOE on the ground that Congress had not unequivocally waived the Government's sovereign immunity, such that 42 U.S.C. § 5851 could be interpreted as including DOE as an employer subject to that provision. The ALJ did not reach the question of whether other United States Government agencies are subject to the whistleblower provision of the ERA.

To the same effect: Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995) (DOE was one of multiple Respondents).

XX E Sovereign immunity not waived under ERA

In Teles v. U.S. Dept. of Energy, 94-ERA-22 (Sec'y Aug. 7, 1995), adopting (ALJ Feb. 28, 1995), the Secretary examined the legislative history of the 1992 amendments to the ERA, and held that sovereign immunity has not been waived under ERA section 211, 42 U.S.C. § 5851.

XX E Sovereign immunity under ERA and TSCA

In Williams v. Y-12 Nuclear Weapons Plant, 95-CAA- 10 (ALJ Aug. 2, 1995), the ALJ recommended dismissal of Respondent, Department of Energy. In regard to an ERA complaint, the ALJ found no waiver of sovereign immunity. In regard to a TSCA complaint, the ALJ found no waiver of sovereign immunity except for complaints involving lead-based paint. In regard to the CAA, SWDA, RRCA, and CERCLA, the ALJ found that the Complainant was not an employee within the meaning of those Acts and the employer-employee test stated in Reid v. Methodist edical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 13, 1995).

[N/E Digest XX E]
TRIBAL IMMUNITY

In White v. The Osage Tribal Council , 95-SDW-1 (ARB Aug. 8, 1997), the ARB adopted the ALJ's finding that Respondent discharged Complainant in contravention of the employee protection provision of the SDWA. Respondent, the duly elected government of the Osage Nation asserted sovereign immunity. The Board citing Phillips Petroleum Co. v. U.S. Environmental Protection Agency , 803 F.2d 545, 553 (10th Cir. 1986), found that the SDWA covers Indian lands. In addition, the Board held that SDWA authorizes private whistleblower suits against Indian tribes, finding that the SDWA clearly and expressly provides that "any employee" may bring a claim against "any person" for a violation of its whistleblower protection provisions.

[N/E Digest XX E]
TRIBAL TRUST FUNDS

In White v. The Osage Tribal Council , 95-SDW-1 (ARB Aug. 8, 1997), Respondent was the tribal council for the Osage Nation. The ARB rejected Respondent's assertion that the ALJ's recommended decision and order finding that Respondent discharged Complainant in contravention of the employee protection provision of the SDWA "seeks impermissibly to assess a monetary judgment against funds held in trust for individual Osage tribal members by the United States." The Board held that it expected Respondent "to comply with our order using funds that are lawfully available for satisfaction of [Complainant's] legal claim."

[Nuclear & Environmental Whistleblower Digest XX F]
IMMUNITY; NON REVIEWABILITY OF ACTIONS BASED ON PROSECUTORIAL DISCRETION; IMMUNITY LIMITED TO PROSECUTORIAL FUNCTIONS AND DOES NOT INCLUDE ADMINISTRATIVE FUNCTIONS

In Sasse v. Office of the U.S. Attorney, USDOJ , ARB No. 02-077, ALJ No. 1998-CAA-7 (ARB Jan. 30, 2004), Complainant, an Assistant United States Attorney (AUSA), filed a complaint against his supervisors, the United States Attorney and the Executive Office for United States Attorneys (EOUSA) alleging that they took adverse employment actions against him and created a hostile work environment because of the Complainant's prosecution of environmental crimes. As evidence of hostility toward prosecution of environmental crimes, the Complainant cited two instances in which a supervisor opposed appeals from district court decisions, and an instant in which the supervisor declined to prosecute.

The ARB noted that a prosecutor is absolutely immune from suit for the exercise of prosecutorial discretion, subject to Constitutional constraints. In regard to DOL administered whistleblower laws, the Board wrote:

We need not decide whether it is the Constitution or the doctrine itself that forbids an interpretation of the whistleblower provisions permitting review of prosecutors' decisions to appeal or to seek indictment. We conclude instead that prosecutorial discretion occupies such a prominent place in American jurisprudence that Congress would have been explicit had it intended to abrogate prosecutorial discretion in the whistleblower provisions. See Forrester v. White , 484 U.S. 219, 225 (1988) (the Court "has not been quick to find that federal legislation was meant to diminish the traditional common law protections extended to the judicial process"); Nixon v. Fitzgerald , 457 U.S. 731, 746 (1982) (Abrogation of executive, legislative and juridical immunities must be express, because the public interest is best served by such vital decision makers if they can exercise their functions with independence and without fear of personal consequences).

The Board then turned to the scope of prosecutorial immunity. Reviewing the applicable law, the Board determined that "a distinction can and should be drawn between the prosecutor's function as advocate in the judicial process and the prosecutor's function as an employer and administrator B despite the fact that the latter significantly affects the former." The Board rejected an argument proffered by OSHA that prosecutorial discretion bars the Complainant's complaint in its entirety, and agreed with DOJ's positions "that the deliberative process involving questions whether to appeal or to indict are unreviewable exercises of prosecutorial discretion." The Board found, however, that DOJ's actions in applying performance standards, assigning support staff to AUSAs, and affording opportunities for training and teaching were not so "intimately associated with the judicial phase of the criminal process" as to be unreviewable.

[Nuclear & Environmental Whistleblower Digest XX G]
WAIVER OF ATTORNEY CLIENT PRIVILEGE

[Editor's note: This ARB decision was reversed in Willy v. Admin. Rev. Bd. , 423 F.3d 483 (5th Cir. 2005).]

In Willy v. The Coastal Corp. , ARB No. 97 107, ALJ No. 1985 CAA 1 (ARB Feb. 27, 2004), the Complainant's case was grounded in evidence relating to a memorandum he had produced for a client concerning an internal environmental audit of the client's facilities. In the memorandum the Complainant had concluded that the client was liable for violations of federal environmental statutes. The Complainant's conclusions were severely criticized, and the Complainant alleged that his later discharge was based on the reaction to this memorandum. The case had a long, involved procedural history in which both the presiding ALJ and the Secretary of Labor had ruled the memorandum admissible as evidence. Throughout the proceedings, however, the Respondent assiduously protected its attorney client privilege relating to the memo. On appeal before the ARB, the Complainant argued that the Respondent waived the privilege when it made the quality of his advice an issue in the firing. Noting that "[u]nder the 'at issue' or implied waiver principle, a party may waive the privilege by asserting claims or defenses that put his attorney's advice in issue in the litigation," (citations omitted) the Board nonetheless found that the Respondent had not raised the issue of the Complainant's competence as an attorney in drafting the memo as an affirmative defense in the proceeding. The Board found that rather than the Complainant's work as an attorney, the Respondent's defense was predicated on its perception of the Complainant as an employee "in particular his lying about having a conversation with [a state agency]." The Board found that the Complainant's allegation that the Respondent waived the privilege by supplying a copy of the memo to the Florida Department of Environment Regulation not to be supported by the evidence of record, and that even if it had, the transmission was of a later version of the memo not the one proposed by the Complainant on which attorney client privilege was not waived.

[Nuclear & Environmental Whistleblower Digest XX G]
ATTORNEY CLIENT PRIVILEGE; CRIME FRAUD AND SELF DEFENSE EXCEPTIONS; SELF DEFENSE EXCEPTION IS ONLY AVAILABE AS A SHIELD AND NOT AS A SWORD

[Editor's note: This ARB decision was reversed in Willy v. Admin. Rev. Bd. , 423 F.3d 483 (5th Cir. 2005).]

In Willy v. The Coastal Corp. , ARB No. 97 107, ALJ No. 1985 CAA 1 (ARB Feb. 27, 2004), the ARB reconsidered an earlier ruling by a former Secretary of Labor on the admissibility of a document over which the Respondent claimed attorney client privilege and on which the Complainant, an attorney, relied to support his environmental whistleblower case. Under Federal Rule of Evidence 503, as interpreted by the Supreme Court Standard 503(b), communications between attorney and client are protected by the attorney client privilege when engaged in for the purpose of soliciting and/or providing legal opinions and advice. An exception to this privilege is that privileged communications are not protected from disclosure if they are meant to further future or ongoing criminal, fraudulent or other unlawful conduct. A second exception to this privilege is the attorney is permitted to disclose otherwise privileged communications to the extent reasonably necessary to defend against a charge of wrongful conduct. The Board noted that "The 'self defense' exception therefore is unique to and 'aris[es] out of the lawyer client relationship,' rather than some other or additional relationship in which the lawyer may be involved, such as employee employer. The 'self defense' exception cannot be used offensively rather, the exception is "a shield, not a sword." Citing WEINSTEIN'S FEDERAL EVIDENCE § 503.33 (Matthew Bender 2d ed.).

Applying these principles to the circumstances of the Willy case, the ARB found that the "crime fraud" exception was not applicable as the Complainant had not shown that the Respondent was engaged in ongoing crime, fraud or misconduct relating to federal environmental laws, or that his advice was sought to further such violations.

The ARB found that the "self defense" exception was not applicable because the Complainant was seeking to use it offensively rather than defensively.

The ARB, however, carefully noted that its ruling was "confined to 'client confidences' (information protected under the attorney client privilege) and does not necessarily exclude 'client secrets' (other information gained in the professional relationship)." The Board took note of several decisions permitting former in house counsel to advance affirmative federal claims against their employers in their individual capacity so long as the attorney client privilege was not violated.

In the instant case, the Complainant's case was dependent on privileged evidence, and without it the record was left only with the Respondent's evidence that the Complainant was terminated for a legitimate, non discriminatory reason. Thus, the ARB dismissed the complaint.