ARB CASE NO. 99-118
ALJ CASE NOS. 98-SWD-3
99-SWD-1
99-SWD-2
DATE: April 30, 2004
In the Matter of:
BEVERLY M. MIGLIORE,
COMPLAINANT,
v.
RHODE ISLAND DEPARTMENT OF
ENVIRONMENTAL MANAGEMENT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Daniel P. Meyer, General Counsel, Public Employees for Environmental Responsibility, Washington, D.C.
For the Respondent:
James R. Lee, Asst. Attorney General, State of Rhode Island; Alan M. Shoer, Chief Legal Counsel, Deborah A. George, Senior Legal Counsel, Rhode Island Department of Environmental Management, Providence, Rhode Island
For the Assistant Secretary, Occupational Safety and Health Administration:
Howard Radzley, Solicitor, Steven J. Mandel, Associate Solicitor, Ellen R. Edmond, Senior Attorney, Joan Brenner, Attorney, United States Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
The Administrative Review Board issues this dismissal order in light of the United States district court's granting of the Respondent Rhode Island Department of Environmental Management's motion to enforce a decision enjoining certain proceedings before the ARB in Rhode Island v. United States, 301 F. Supp. 2d 151 (D.R.I. 2004).
[Page 2]
BACKGROUND
The Complainant Beverly Migliore filed complaints under the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995) (SWDA), with the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) in May, September and October 1998 against the Respondent, Rhode Island Department of Environmental Management (Rhode Island). Recommended Decision and Order dated Aug. 13, 1999 (R. D. & O.) at 2. Following a preliminary investigation of the May 1998 complaint, OSHA found that Rhode Island had not violated the SWDA employee protection provision. R. D. & O. at 2. Migliore requested a hearing before an administrative law judge on that complaint, with which the two complaints she filed later in 1998 were consolidated. Id. The Administrative Law Judge (ALJ) issued a lengthy decision on August 13, 1999, finding against Rhode Island and awarding equitable relief as well as pecuniary damages to Migliore. In that decision the ALJ rejected Rhode Island's argument that the action was barred by the doctrine of sovereign immunity. On August 26, 1999, Rhode Island appealed the ALJ's decision to the ARB.
1 Before the Board in this appeal are Migliore's three consolidated complaints that the ALJ decided on August 13, 1999. In pursuing injunctive and declaratory relief in the Federal courts, the Respondent cited four complaints: the first is comprised of the three consolidated complaints Migliore filed in 1998, and which the ALJ addressed in his August 13, 1999 recommended decision; the second is an additional complaint that Migliore filed on August 31, 1999; the third and fourth complaints are those filed by two of Migliore's co-workers. Complaint of Rhode Island Dep't of Envtl. Mgmt. filed with U.S. Dist. Court Feb. 1, 2000 at 3-4. The Federal court decisions in this matter accordingly refer to the earlier complaints Migliore filed that are the subject of the ALJ's August 13, 1999 decision and the complaint Migliore filed on August 31, 1999, in addition to those filed by her two co-workers. Rhode Island Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 38-39 (1st Cir. 2002) (citing Rhode Island v. United States, 115 F. Supp. 2d 269, 270-71 (D.R.I. 2000)). The complaint Migliore filed in August 1999, and the complaints of her co-workers, although before the Federal courts, are not before us in this appeal.
2 In the footnote omitted from the excerpted passage, the First Circuit court noted its agreement with the district court that OSHA was "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)." Rhode Island, 304 F.3d at 54 n.13.
3 The court did, however, deny Rhode Island's motion that the Secretary be enjoined from intervening at or before the ALJ stage in any of the three other whistleblower proceedings that were also addressed by the court's order. Id.; see n.1, supra.