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 nas 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 Respondents, which are State Agencies
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
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 (S.D. Ohio 2000).
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. The Claimant's arguments to the contrary, there is no evidence either that Congress abrogated any state's sovereign immunity for federal whistleblower claims, or that the State of Tennessee 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). As noted earlier, the Complainant has not indicated precisely which federal statutes she relies upon. Nor has she identified any language in any of the environmental protection acts that might conceivably apply to her claim, which unequivocally establishes a waiver of sovereign immunity for federal whistleblower claims.
The Complainant also argues that the State of Tennessee has waived its sovereign immunity by accepting federal funding. However, the Supreme Court has made it clear that such a waiver may be found only where it is stated by the most express language, or by such overwhelming implications from the text as leave no room for any other construction. Edelman v. Jordan et. al., 415 U.S. 651, 673 (1974). The Complainant has not offered any evidence that the State of Tennessee has waived its immunity from suit under the federal environmental whistleblower laws. Moreover, the Supreme Court has expressly held that the fact that a state participates in a program wherein the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent by the State to be sued in Federal courts. Id.
Once again, the Complainant seeks to avoid the bar of sovereign immunity by attempting to cloak her claim in the Fourteenth Amendment, claiming that the "DOL whistleblower laws are valid Congressional enactments under the Fourteenth Amendment, Section 5." However, despite the Complainant's arguments to the contrary, the environmental acts on which the Claimant relies were not enacted under the Fourteenth Amendment. The Supreme Court, in Seminole Tribe of Florida v. Florida , 517 U.S. 44 (1996), held that the Eleventh Amendment bars an action by a private party against a state in federal court if the action is based upon a federal statute enacted pursuant to Article I of the Constitution. The Supreme Court further held that an act of Congress passed pursuant to its Interstate Commerce powers does not operate to waive the sovereign immunity enjoyed by the states. The Eleventh Amendment, passed after the original Constitution, limits the power of Congress to legislate and otherwise create claims which may be brought by private parties in federal court against a state. The Fourteenth Amendment vests in Congress the right to enforce various constitutional guarantees against the States, and to this extent, the Eleventh Amendment is limited by the subsequently ratified provisions of the Fourteenth Amendment. State of Ohio Environmental Protection Agency v. USDOL , No. C2-00-1157 (N.D.Ohio, November 14, 2000). As that Court stated:
The Supreme Court has recognized that Congress may enforce its authority under Section 5 of the Fourteenth Amendment by authorizing suit in federal court against the state by a private party. Fitzpatrick v. Bitzer , 427 U.S. 445 (1976); College Savings Bank v. Florida Prepaid Post Secondary Education Expense Board , 527 U.S. 666 (1999). Jayco asserts that the environmental whistleblower statutes are valid Congressional enactments authorizing private action against the state insofar as such statutes protect an employee's constitutional rights under the First Amendment as incorporated through the due process clause of the Fourteenth Amendment. Pennekamp v. Florida , 328 U.S. 331 (1946). If Congress has validly enacted legislation creating a private cause of action against the state, such legislation must be based upon the Fourteenth Amendment, rather than the interstate commerce clause, in order to pass constitutional muster.
Id. at p. 9.
As the Court noted in State of Ohio, supra, before a valid exercise of Congress' Section 5 authority may be found, it must first be determined that Congress unequivocally intended to abrogate the states' sovereign immunity under the Eleventh Amendment. Slip op. At 11; Florida Prepaid Secondary Education Expense Fund v. College Savings Bank , 527 U.S. 627, 635 (1999). However, there is no indication that Congress intended to abrogate the states' sovereign immunity by the promulgation and enactment of any environmental whistleblower statutes that might be invoked by the Complainant. There is no expression of Congressional intent that these statutes were enactments under the Fourteenth Amendment, designed to abrogate Eleventh Amendment immunity. As noted by the Court in State of Ohio, supra, in all other statutes where Congress expressly acted to abrogate the immunity of states from private suits, the available remedies include recourse to a full trial in federal court. However, under the federal environmental whistleblower statutes, a claimant has no right to a trial de novo in a federal court. Rather, enforcement of these statutes requires recourse to an administrative proceeding, in which an administrative agency, the U.S. Department of Labor, plays a critical role in conducting the investigation of disputed facts and creating the only factual record in the proceedings. Finally, an administrative law judge does not have the legal authority to consider constitutional issues, and indeed, there is serious doubt as to whether Congress may authorize a non-Article III judicial officer to adjudicate constitutional claims.
The Complainant cites to the recent decision by the Supreme Court in Nevada v. Hibbs, No. 01-1368 (May 27, 2003), for the proposition that the federal whistleblower laws are valid Congressional enactments under Section 5 of the Fourteenth Amendment. In that case, the Court determined that State employees could recover money damages in federal court for the State's failure to comply with the family care provisions of the Family and Medical Leave Act. The Court noted that for over a century, it has made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. However, Congress may abrogate such immunity in federal court "if it makes its intention to abrogate unmistakably clear in the language of the statute and acts pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment." Id. at p. 4 (citations omitted). The Court stated that the clarity of Congress' intent was not fairly debatable, as the FMLA enables employees to seek damages against any employer, including a public agency, which Congress has defined to include the government of a state or any agency or political subdivision of a State.
The Court, citing to its decision in Seminole Tribe of Fla. V. Florida , 517 U.S. 44 (1996), again stated that "Congress may not abrogate the States' sovereign immunity pursuant to its Article I power over commerce." However, Congress may abrogate the States' sovereign immunity through a valid exercise of its Section 5 power. The Court found that the persistence of unconstitutional discrimination on the basis of gender by the States justified Congress' passage of prophylactic legislation in the form of the FMLA, to prevent and deter unconstitutional conduct.
However, as discussed above, there is no expression of Congressional intent that the environmental whistleblower statutes were enactments under the Fourteenth Amendment, designed to abrogate Eleventh Amendment immunity. Nor is there any suggestion that these statutes implicate constitutional rights.
I find that the environmental whistleblower statutes relied on by the Complainant were enacted by Congress pursuant to its authority under the Interstate Commerce clause. The Complainant has offered no evidence that Congress intended to abrogate the States' sovereign immunity with the enactment of any federal whistleblower provisions that could conceivably be relied on by the Complainant. Nor is there any evidence that the State of Tennessee has waived its sovereign immunity from suit under these provisions, 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 federal environmental whistleblower statutes is precluded by the doctrine of state sovereign immunity. As a matter of law, the Respondents are entitled to summary judgment on this issue.
The Complainant has not established that Kim Kirk or Milton Hamilton are properly named as Respondents
The Complainant filed her original complaint with OSHA against TDEC, TMD, "TDEC Commissioner Milton Hamilton (also a member of the Tennessee Homeland Security Council), and TDEC Assistant General Counsel Kim Kirk." In its investigative report, as well as its referral letter to the Office of Administrative Law Judges, OSHA identified only TDEC and TMD as Respondents. The Complainant alleges that Ms. Kirk and Mr. Hamilton are proper parties because they participated in blacklisting. It is not at all clear why the Complainant believes that the Tennessee Homeland Security Council was also involved in blacklisting, other than her claim that Mr. Hamilton is an "ex officio" member of the council.
The Complainant consistently refers to Ms. Kirk and Commissioner Hamilton by their official titles, indicating that they acted in their official capacities. Under Tennessee law, state officers and employees are absolutely immune from liability for actions or omissions within the scope of their office or employment, except for willful, malicious, or criminal acts or omissions, or acts or omissions done for personal gain. See, TNS Section 9-8-307(h). The Complainant has not alleged any facts that would suggest that Ms. Kirk or Mr. Hamilton acted other than within the scope of their office or employment, or that they acted in such a manner as to subject them to personal liability. I find that they are not properly named as respondents.
To the extent that the Complainant seeks to bring action against the Tennessee Homeland Security Council for violation of the "DOL environmental whistleblower laws," her claim must be dismissed on the grounds of sovereign immunity.
The Complainant's Request for a Remand is Moot
Although the Complainant requests a prompt de novo hearing and decision, she also claims that a remand to OSHA is "urgently required" for further investigation by OSHA. As I am dismissing her claim on Eleventh Amendment grounds, her request for a remand is also denied as moot.
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
[ENDNOTES]
1
2
3
