Summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue of material fact exists when the "record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party moving for summary judgment has the burden of establishing the "absence of evidence to support the nonmoving party's case." Celotex Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing a request for summary judgment, I must view all of the evidence in the light most favorable to the nonmoving party. Darrah v. City of Oak Park, 255 F.3d 301, 305 (6th Cir. 2001).
The Doctrine of Sovereign Immunity Precludes the Complainant from pursuing a Federal Whistleblower Complaint against the Respondent, which is a State Agency
The Eleventh Amendment to the United States Constitution provides:
[t]he Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced, or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Supreme Court has held for over a century that federal jurisdiction over suits against unconsenting states "was not contemplated by the Constitution when establishing the judicial power of the United States." Seminole Tribe of Florida et. al., 517 U.S. 44, 54 (1996), citing Hans v. Louisiana , 134 U.S. 1(1890). The doctrine of sovereign immunity has also been addressed by the Supreme Court more recently in Federal Maritime Commission v. South Carolina State Ports Authority Maritime Commission, et. al., 122 S.Ct. 1864 (2002), where the Supreme Court found that a private citizen cannot file a complaint against a State with a federal agency, and that State sovereign immunity extends to proceedings before a federal Administrative Law Judge. In that case, South Carolina Maritime Services filed a complaint with the Federal Maritime Commission claiming that the South Carolina State Ports Authority violated the Shipping Act of 1984 by denying it permission to berth a cruise ship at the Authority's port facilities. In upholding the dismissal by an Administrative Law Judge, the Supreme Court held that the doctrine of state sovereign immunity barred the FMC from adjudicating complaints filed by a private party against a non-consenting state. The Supreme Court noted that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.
The First Circuit Court of Appeals relied on this decision in holding that the doctrine of sovereign immunity prevented state agency employees from seeking monetary and injunctive relief for alleged violations of the whistleblower provisions of the Solid Waste Disposal Act. Rhode Island Department of Environmental Management v. United States , 304 F.3d 31 (1st Cir . 2002). Other federal circuit courts have upheld the immunity of state agencies from suit by individuals under federal whistleblower statutes, including the District Court of Connecticut, which granted a preliminary injunction enjoining OSHA from investigating, hearing, or adjudicating a whistleblower complaint filed by a state employee against a state agency for allegedly discriminating against her in violation of the employee protection provisions of the Clean Air Act. State of Connecticut Department of Environmental Protection v. OSHA , 138 F.Supp.2d 285 (D.Conn. 2001). See also, State of Ohio EPA v. U.S. Department of Labor , 121 F.Supp. 2d 1155 (S.D. Ohio 2000).
The Complainant argues that the Respondent has waived its sovereign immunity in three ways. First, the Respondent applied for and obtained a license to operate a nuclear reactor, and in so doing, agreed to the regulatory scheme imposed by the United States, which includes Section 211. Second, the Complainant argues that the Respondent waived its sovereign immunity by appealing the earlier findings in the Complainant's favor, which constitutes a consent to this Court's jurisdiction. Finally, the Complainant argues that the Respondent has published many documents informing its employees of their right to seek relief through the Department of Labor for retaliation arising from protected activity, thereby waiving its sovereign immunity.
The Respondent is an Arm of the State for Eleventh Amendment Purposes
The Complainant does not agree that the Respondent has sovereign immunity for its activities associated with MURR, but argues that evidence of waiver is "so clear" that the question of whether the Respondent has immunity in the first instance is "academic." The Claimant does not otherwise address the question of whether the Respondent is an arm of the State for purposes of determining if it is entitled to the protection of the Eleventh Amendment.
A state's Eleventh Amendment immunity extends to any state agency or entity deemed to be an "alter ego," or "arm" of the state, and the state need not be a named party. Perez v. Region 20 Educ. Service Center , 307 F.3d 318; Vogt v. Board of Commissioners, 294 F.3d 684 (5th Cir. 2002). The inquiry is whether the suit is one which is effectively against the sovereign state. In particular, state universities and colleges almost always enjoy Eleventh Amendment immunity. Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533 (2002).
The University has been found to be an instrumentality of the State of Missouri in the federal courts. In Sherman v. The Curators of the University of Missouri, 871 F.Supp.344 (W.D. Mo. 1994), the Court noted that the University of Missouri was established by the Missouri General Assembly in 1889, and the State constitution, at Article IX, Section 9(b), charges the Missouri General Assembly with the responsibility of adequately maintaining the University. The government of the University, under Article IX, Section 9(a), is vested in a board of curators appointed by the governor with the advice and consent of the senate. This board has the power to appoint and remove the president, deans, professors, and other employees of the University. The board is also required to make a detailed report to the governor at the close of each University year, and to furnish the General Assembly with a report on receipts and disbursements. Under Missouri law, the University cannot charge state residents tuition.
Funds for the operation of the University are derived from numerous sources, including funds requested from and appropriated by the general assembly, which constitute a large percentage of the University's operating budget. All funds are commingled in a single set of bank accounts. The Court in Sherman, supra, stated that
In view of the state's continuous oversight of the University's status and affairs, the University's dependence upon state funding, and the fact that the University's governing body is chosen by the Governor, it is apparent that the University does not enjoy a significant level of autonomy from the state.
Id. at 347.
The Court also noted:
Missouri law requires the University to report its financial status and needs to the Governor each year, who in turn furnishes the report to the state legislature. The University is also required to provide the legislature with detailed financial statements before each of its regular sessions. The state Constitution requires the legislature to "adequately maintain" the University and the state does in fact provide a large percentage of the University's operating budget. Considering this relationship between the University and the state, it is quite clear that any judgment against the University would ultimately come from the state's treasury.
Id. at 347-348. The Court found that any judgment rendered against the University would ultimately be derived from the state treasury, and thus that the University was entitled to Eleventh Amendment immunity. See also, Scherer v. Curators of the University of Missouri, 2002 WL 31426458 (8th Cir. Oct. 31, 2002).
Based on the above, I find that the Respondent is an instrumentality or arm of the State of Missouri, and, absent an exception to the doctrine of sovereign immunity, is immune from suit by private parties under the federal whistleblower laws.
The Complainant Has Not Established that the Respondent Waived Its Sovereign Immunity
It is well settled that there are only two exceptions to the doctrine of sovereign immunity under the Eleventh Amendment. The first applies when Congress expressly authorizes such a suit through enforcement of Section Five of the Fourteenth Amendment, and the second applies when a state unequivocally consents to being sued. There is no evidence either that Congress abrogated any state's sovereign immunity for federal whistleblower claims, or that the State of Missouri unequivocally waived its sovereign immunity.
Congress may abrogate a State's constitutionally secured immunity from federal suit only if it makes its intention unmistakably clear in the language of the statute . Kimel v. Fla. Bd. Of Regents , 528 U.S. 62, 73 (2000). The Complainant has not identified any language in the ERA that unequivocally establishes a waiver of sovereign immunity for federal whistleblower claims. Nor do I find language in the ERA that even arguably purports to abrogate the States' immunity.
Nor has the Respondent waived its sovereign immunity by applying for and obtaining a license to operate a nuclear reactor. The Complainant argues that by doing so, the Respondent agreed to the regulatory scheme imposed by the government of the United States, including Section 211 and its enforcement provisions. Indeed, the Complainant alleges that the NRC's bulletins provide that worker protections include a process for handling a worker's allegations of discrimination that may result from reprisals by licensees, and "presumably," the University's license provides that it must adhere to the statutes and regulations governing nuclear reactor licensing and operation. In State of Rhode Island Department of Environmental Management v. United States of America, 115 F.Supp.2d 269 (D.R.I. 2000), the state agreed to abide by federal laws prohibiting various forms of discrimination as a condition of receiving federal funds and participating in various programs. In response to the argument that the state waived its immunity from private whistleblower suits under the SWD by agreeing to those conditions, the Court noted that the provision "falls far short of the express and unequivocal language required to establish a waiver. On its face, it is simply an agreement to abide by the laws prohibiting discrimination. It does not even mention, let alone, waive, the State's immunity from suit by private parties." Id . at 277.
The test for determining whether a State has waived its sovereign immunity is a stringent one. See, Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985). Even assuming, as the Complainant does, that the University's license provides that it must adhere to the statutes and regulations governing nuclear reactor licensing and operation, that would still fall far short of the express and unequivocal language required to establish a waiver. Nor has the Complainant cited to anything in the University's license that expressly waives, or even mentions, the State's immunity from suit by private parties.
As the Respondent correctly points out, there is a distinction between federal regulation of the Respondent by the NRC, and the Complainant's complaint under Section 211. Contrary to the Complainant's argument, the Respondent does not take the position that federal administrative agencies lack enforcement authority over a state licensee. The Complainant's suit does not implicate the enforcement authority of the NRC over the Respondent, but seeks a remedy from the Respondent for private damages.2
The Complainant states: "Suffice it to say that when the state accepts a license and thereby enters voluntarily into a federally regulated field such as operating a nuclear reactor, the state accepts the same obligations and enforcement scheme as any other licensee." Even overlooking the dichotomy between enforcement action and a private suit for damages, this is a statement without meaning - "any other licensee" that happens to be a state agency is also entitled to the protections of the Eleventh Amendment.
A state's waiver of Eleventh Amendment immunity must be unequivocally expressed. The fact that the Respondent is subject to regulation by the NRC under its license to operate a research reactor does not amount to such an unequivocal expression that it waives immunity from suit by a private individual under the federal environmental whistleblower laws. Nor has the Complainant pointed to any express language establishing otherwise.
The Complainant also argues that by appealing the earlier decision favoring the Complainant, the Respondent invoked the Department of Labor's jurisdiction, and affirmatively waived the right to challenge that jurisdiction. As the Respondent correctly points out, the Complainant initiated these proceedings before the Department of Labor. Again, the fact that the Respondent has followed the administrative scheme for processing of a whistleblower complaint does not translate into a waiver of its Eleventh Amendment immunity. Indeed, had the Respondent not appealed the findings by OSHA, those findings would have become the final order of the Secretary on the merits. As the Court noted in State of Ohio Environmental Protection Agency v. U.S. Department of Labor, 121 F.Supp.2d 1155 (S.D. Ohio 2000) when faced with a similar argument,
Any attempt to review the order would have been fruitless, given the fact that the State would have voluntarily foregone the creation of a record upon which a review could be based. Under such circumstances, the filing of a request for a hearing cannot be said to constitute a voluntary waiver.
Id. at 1165-66. A state may raise the issue of immunity from suit at any time, including on appeal: a state's immunity is a personal privilege which it may waive at any time. Clark v. Barnard, 108 U.S. 436 (1883).
Lastly, the Complainant argues that the Respondent's own procedural bulletins identify the Department of Labor as the agency with the jurisdiction to review his case. The Complainant points to bulletins issued by the Respondent, as well as provisions of the Policy and Procedure Manual, stating the Respondent's policy prohibiting discrimination for raising safety concerns, and indicating that employees have the right to contact the NRC, Department of Energy, Department of Labor, or any other governmental bodies to report safety concerns. The documents cited by the Complainant refer to Title 10 C.F.R. Section 50.7 as providing recourse and remedies for employees, and to Section 211 of the ERA.
However, the fact that the Respondent has adopted a policy prohibiting discrimination against employees who raise safety concerns does not mean that the Respondent has agreed that it may be sued by private parties for such discrimination. Nor does the recitation by the Respondent of the provisions of Section 211 constitute a waiver of the Respondent's sovereign immunity. The Respondent has cited to the decision in Rhode Island , 115 F.Supp., wherein the court held that the fact that the state signed an agreement stating that it would comply with all federal statutes related to nondiscrimination feel far short of the express and unequivocal language required to establish a waiver, and did not waive or even mention the state's immunity from suit by private parties.
It is well-settled that a state's waiver of its Eleventh Amendment immunity must be unequivocally expressed. Edelman v. Jordan, 415 U.S. 651 (1974). Here, the Complainant has not pointed to any unequivocal expression by the Respondent waiving its Eleventh Amendment immunity from suits by private parties, nor is there any evidence that the State of Missouri has waived its sovereign immunity from suit under the provisions of the federal environmental whistleblower laws, either expressly or constructively.
Relying on the Supreme Court's decision in Federal Maritime Commission, supra, I find that the Complainant's complaint for relief under the above-named federal environmental whistleblower statutes is precluded by the doctrine of state sovereign immunity. As a matter of law, the Respondent is entitled to summary judgment on this issue.
ORDER
Accordingly, IT IS HEREBY ORDERED that the Respondent's Motion to Dismiss is GRANTED and this matter is DISMISSED with prejudice.
LINDA S. CHAPMAN
NOTICE : This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §§ 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§§§ 24.7(d) and 24.8.
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