Issue Presented
We address only the following issue in considering Yagley's appeal: Whether the ALJ properly granted Hawthorne's Motion for Summary Decision and found that the Eleventh Amendment bars Yagley's whistleblower complaint against Hawthorne.
Jurisdiction and Standard of Review
The ARB has jurisdiction to review the ALJ's recommended decisions pursuant to 29 C.F.R. § 24.8 and Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the Board the Secretary's authority to review cases under the statutes listed in 29 C.F.R. § 24.1(a), including, inter alia, the environmental whistleblower protection provisions).
Under the Administrative Procedure Act, the ARB, as the Secretary's designee, acts with all the powers the Secretary would possess in rendering a decision under the whistleblower statutes. See 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8.
The standard for granting summary decision in whistleblower cases is analogous to summary judgment under the Fed. R. Civ. P. 56(e). "[The ALJ] may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d). The ARB reviews an ALJ's recommended grant of summary decisions de novo. Farmer v. Alaska Dep't of Transp. & Pub. Facilities, ARB No. 04-002, ALJ No. 2003-ERA-011, slip op. at 4 (ARB Dec. 17, 2004); Ewald v. Commonwealth of Va., Dep't of Waste Mgmt., ARB No. 02-027, ALJ No. 1998-SDW-001, slip op. at 4 (ARB Dec. 19, 2003).
The Complainant, acting pro se, has filed a "Response Motion" with the Board. As we have stated previously, "[w]e construe complaints and papers filed by pro se
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complainants ‘liberally in deference to their lack of training in the law' and with a degree of adjudicative latitude." Trachman v. Orkin Exterminating Co. Inc., ARB No. 01-067, ALJ No. 2000-TSC-003, slip op. at 6 (ARB Apr. 25, 2003); see also Martin v. Akzo Nobel Chems., Inc., ARB No. 02-031, ALJ No. 2001-CAA-016, slip op. at 2 n.2 (ARB July 31, 2003) (liberally construing pro se litigant's only filing to the ARB, a copy of the same post-hearing brief submitted to the ALJ, as a brief "asserting that the ALJ's conclusions of law were erroneous").
Because Yagley's filing, together with the record and the ALJ's R. O., sufficiently present the issues involved in this matter, we have proceeded to decide this case as indicated in the Board's January 30, 2008 Order.
I. Hawthorne Has Eleventh Amendment Immunity
The Eleventh Amendment to the Constitution prohibits a citizen of one state from bringing suit against another state. See U.S. Const. amend. XI. The Supreme Court has held that the Eleventh Amendment also bars a citizen from suing her own State. See Hans v. Louisiana, 134 U.S. 1, 10 (1890). Additionally, the Eleventh Amendment also bars adjudication of private complaints against states by a federal administrative agency when such adjudication sufficiently resembles civil litigation in federal court. See Federal Mar. Comm'n v. South Carolina Ports Auth., 535 U.S. 743, 760 (2002). Following this guidance, our well-established precedent has held that under the doctrine of state sovereign immunity, there is no private right of action for damages against a state or state agency. See, e.g., Thompson v. University of Ga., ARB No. 05-031, 2005-CAA-001 (ARB Jan. 31, 2006); Powers v. Tennessee Dep't of Env't & Conservation, ARB Nos. 03-061, 03-125; ALJ Nos. 2003-CAA-008, 2003-CAA-016 (ARB June 30, 2005 (reissued Aug. 16, 2005)) (providing analysis and citing similar federal cases); Farmer, supra; Ewald, supra; Cannamela v. Georgia Dep't of Natural Res., ARB No. 02-106, ALJ No. 2002-SWD-002 (ARB Sept. 30, 2003).
Yagley is a private citizen, and she has not disputed Hawthorne's assertion that it is a state governmental entity. Therefore, Hawthorne has sovereign immunity and Yagely's action is barred unless immunity has been clearly abrogated by the United States Congress or waived by the State of Michigan.
We also note that because sovereign immunity is jurisdictional, rather than a defense, its existence can be raised at any time. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Therefore, despite Yagley's argument that "proceedings were well underway before the Sovereign Immunity Claim was ever made," we must resolve Hawthorne's claim of sovereign immunity. RM at 14.
II. No Abrogation or Waiver of Eleventh Amendment Immunity
The ALJ concluded that the Congress had not abrogated state sovereign immunity when it enacted the CAA or TSCA and that Michigan had not waived its Eleventh Amendment right to sovereign immunity under the CAA or TSCA. We agree. Yagley
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argues on appeal that Hawthorne's immunity has been either abrogated by Congress or waived by the State. RM at 10.
Our long-standing jurisprudence has held that the environmental whistleblower statutes do not abrogate a State's sovereign immunity. See Thompson, supra; Powers, supra (holding that the environmental whistleblower cases "do not provide for private rights of action for money damages against states and state agencies"); Cannamela, supra (concluding State of Georgia is immune from whistleblower suit under the environmental whistleblower statutes). Federal courts have also held that Congress did not abrogate states' immunity from whistleblower claims under the environmental statutes. See Connecticut Dep't of Envtl. Prot. v. OSHA, 138 F. Supp. 2d 285, 296-97 (D. Conn. 2001)(filing whistleblower claim with OSHA by private party against state agency violated that state's sovereign immunity); Florida v. United States, 133 F. Supp. 2d 1280, 1291 (N.D. Fla. 2001)(administrative hearing involving environmental statutes violated state's sovereign immunity); State of Ohio E.P.A. v. United States Dept. of Labor, 121 F. Supp. 2d 1155, 1162 (S.D. Ohio 2000)("finding no indication that Congress intended to abrogate the state's sovereign immunity in the promulgation and enactment of the whistleblower environmental statutes"). We can find no federal precedent establishing that Congress abrogated state sovereign immunity in the environmental whistleblower acts. Nor has Yagley provided any reason to question our earlier judgment. Therefore, while Hawthorne does have the obligation to protect employees under these statutes, under our federal system Yagley, a private citizen, is not permitted to bring an action against Hawthorne to enforce them.
Yagley also contends that "if the Secretary of Labor or one of their [sic] representatives became involved as a party or intervenes," Eleventh Amendment sovereign immunity does not apply. RM at 6. While it is true that if the Secretary chose to intervene, sovereign immunity would not apply; she has not chosen to do so in this case. See Rhode Island Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31 (1st Cir. 2002)(Secretary's intervention would effectively remove the sovereign immunity bar to DOL adjudication); Migliore v. Rhode Island Dep't of Envtl. Mgmt., ARB No. 04-156, ALJ No. 2000-SWD-001 (ARB Nov. 30, 2004)(same). Additionally, no federal governmental agencies have become parties to this case. Yagley cannot force the Federal Government to be a party by naming the Government as one when it is not the employer. The appeal concerns only a private citizen's suit against the state of Michigan.
As for waiver, a state may voluntarily waive sovereign immunity, but waiver occurs only "‘by the most express language or by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'" Ewald, slip op. at 8, quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974) at 673. Yagley offers no evidence that Michigan has unambiguously waived its sovereign immunity. She argues that Michigan defines itself as an employer, and to demonstrate this point provides an
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Executive Order issued by the Governor of the State of Michigan. See RM, add. C.2 However, the fact that Michigan defines itself as an employer for the purpose of this Executive Order does not establish its willingness to waive immunity under the TSCA or CAA. Any waiver of sovereign immunity must be unequivocal. Therefore, we conclude that there was no waiver in this case.
Conclusion and Order
Yagley failed to establish that Congress abrogated a state's Eleventh Amendment immunity from a whistleblower claim under TSCA and CAA or that Michigan waived that immunity. The ALJ properly concluded that there were no issues of material fact in dispute and that sovereign immunity barred Yagley's whistleblower complaint against Hawthorne. Consequently, we AFFIRM the ALJ's R. O. and DISMISS Yagley's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 On May 27, 2008, Yagley filed an "Amendment to Response Motion" with the Board. This motion, however, was outside the time limit for filing imposed by the January 30, 2008 Order and therefore we have not considered it.
2 Executive Order 1979-5, "Establishment of the Office of State Employer, the Department of Management and Budget" (creating a state agency overseeing employees of the State).
