[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