Migliore v. Rhode Island Dept. of Environmental Management, ARB No. 99-118, ALJ No. 1998-SWD-3 (ARB Apr. 30, 2004)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

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.

    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).

   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.

   On February 1, 2000, Rhode Island filed with the United States District Court for the District of Rhode Island a request for injunctive relief from OSHA's investigation and the Department of Labor's adjudication of four whistleblower actions, including two complaints filed by Migliore.¹ Rhode Island based its request on the State's sovereign immunity. Letter from Deborah A. George, Rhode Island Dep't of Envtl. Mgmt., to Clerk of U.S. Dist. Ct. dated Feb. 1, 2000, and appended documents. On March 30 and April 10, 2000, the district court issued orders temporarily enjoining adjudication of the four complaints. Those orders were effectively finalized by a decision issued on September 29, 2000, Rhode Island v. United States, 115 F. Supp. 2d 269 (D.R.I. 2000), enjoining the Department of Labor's adjudication of the complaints. The district court did not grant Rhode Island's request for an injunction prohibiting OSHA from investigating complaints filed against Rhode Island under the SWDA. Id. at 279.

   The U.S. Attorney General, Migliore and the other complainants named in the district court decision appealed that ruling to the United States Court of Appeals for the First Circuit. See Rhode Island Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 45 n.5 (1st Cir. 2002). In its final decision issued August 30, 2002, the court of appeals determined that the sovereign immunity question was properly brought before it and the district court under an exception to the exhaustion of administrative remedies requirement and pursuant to the courts' "nonstatutory review" authority. 304 F.3d at 40-45. The court of appeals also agreed with the district court that the doctrine of sovereign immunity precluded Migliore and the other named complainants, as private parties, from pursuing their complaints filed with DOL. However, the court of appeals modified the lower court's ruling, stating:

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, 119 S.Ct. 1187, 143 L.Ed.2d 270 (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 [v. U.S. Dep't of Labor], 121 F.Supp.2d [1155] at 1167 [(S.D. Ohio 2000)]. To the extent the district court's injunction does not permit the Secretary to take such action, we modify the injunction accordingly.[ ]

304 F.3d at 53-54 (footnote omitted).²

   On January 29, 2004, the district court issued an order granting Rhode Island's motion to enforce the injunction against further proceedings before the ARB in the instant case. The court agreed with Rhode Island that the First Circuit's August 2002 decision permitted the Secretary to cure the sovereign immunity defect only by intervening "at or before the ALJ stage." Rhode Island v. United States, 301 F. Supp. 2d 151, 156 (D.R.I. 2004).³

   We accordingly dismiss the proceedings before us and vacate the ALJ's R. D. & O. as void for lack of jurisdiction.

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.