Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105
(415) 744-6577 (415) 744-6569 (FAX)
Issue Date: 19 September 2003
CASE NO.: 2003-ERA-00011
In the Matter of:
ROBERT FARMER,
Complainant,
vs.
ALASKA DEPARTMENT OF TRANSPORTATION
AND PUBLIC FACILITIES,
Respondent.
Appearances:
Robert Farmer,
Pro se
Gary W. Gantz, Esq.,
For the Respondent
Before:
Jennifer Gee
Administrative Law Judge
ORDER DENYING REQUEST TO WITHDRAW FROM CASE WITHOUT PREJUDICE AND RECOMMENDED DECISION AND ORDER DISMISSING COMPLAINT
INTRODUCTION
This proceeding began on or about September 19, 2002, when the Complainant, Robert Farmer, filed a complaint with the Occupational Safety & Health Administration ("OSHA") against the Respondent, the Alaska Department of Transportation and Public Facilities, under the employee whistleblower protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 ("ERA").
For the reasons set forth below, it is recommended that this complaint be DISMISSED WITH PREJUDICE.
DISCUSSION AND ANALYSIS
Background
The Complainant is employed as a Radiation Safety Officer for the State of Alaska's Department of Transportation and Public Facilities. He filed a complaint with OSHA on September 19, 2002, alleging that the Respondent had retaliated against him for engaging in activity protected by the ERA. He alleged in his complaint to OSHA that the Respondent retaliated against him after he made a request to relocate some nuclear devices that he felt were too close to members of the public, reported radiation exposure of one individual, and attempted to forward a document to the Nuclear Regulatory Commission. He also alleged that after engaging in this protected activity, his probation was extended, he was demoted, he was given unacceptable performance evaluations, and he was given verbal and written reprimands.
On March 26, 2003, OSHA issued a decision finding that the Complainant had engaged in protected activity but that there was no relationship between his protected activity and the unfavorable personnel actions taken against him. OSHA advised the Complainant of his right to request a formal hearing before the Office of Administrative Law Judges by filing a request within 5 days after he received the determination letter. On May 13, 2003, the Complainant submitted a request for a formal hearing, stating that his request was timely because he did not receive the Determination letter until May 6, 2003.
[Page 2]
On May 23, 2003, after this matter was referred to the San Francisco OALJ office, I issued a Notice of Trial setting this matter for trial in Anchorage, Alaska, on August 5, 2003. After a conference call on June 20, 2003, with the Complainant and representatives for the Respondent, I continued the trial to September 23-26, 2003.
On June 30, 2003, I issued an Order to Show Cause noting that there is a jurisdictional issue in this case involving the doctrine of sovereign immunity and ordered the parties to address the issue. I ordered the Complainant to show cause why this matter should not be dismissed for lack of jurisdiction and ordered the Respondent to reply to the Complainant's response to the Order. The Complainant responded to the Order to Show Cause on August 14, 2003, and the Respondent replied on September 5, 2003.
The Complainant's Request to Withdraw Without Prejudice
On September 12, 2003, the Respondent's counsel called me using a speaker phone to advise me that he was in the middle of the second day of a deposition of the Complainant and that the Complainant did not want to proceed with the deposition. The Complainant participated in the telephone call by speaker phone. The Respondent's counsel informed me that the Complainant had mentioned before the telephone call that he was thinking about withdrawing his request for a hearing before the OALJ but was reluctant to do so because he did not have counsel to advise him. The parties asked that I give them some guidance.
I informed them that I had already concluded that the doctrine of sovereign immunity applies to this case and that I had just finished a decision dismissing this case with prejudice for lack of jurisdiction, so there was no need to complete the Complainant's deposition. The Complainant then informed me that he wanted to withdraw his request for a hearing. I informed him that he had to do so in writing and that I would not accept such a request without written confirmation.
Later that day, I received from the Complainant by fax a written request asking to withdraw from this case without prejudice. Since, as discussed below, the Office of Administrative Law Judges does not have jurisdiction over this matter, this matter should be dismissed with prejudice. Accordingly, the Complainant's request to withdraw from this matter without prejudice is DENIED.
The Doctrine of Sovereign Immunity Applies to This Action
The Eleventh Amendment of 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 v. Florida, 517 U.S. 44, 54 (1996), citing Hans v. Louisiana, 134 U.S. 1 (1890). The doctrine of sovereign immunity was 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 ("FMC") 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).
[Page 3]
The Complainant Has Failed to Show that the Respondent Waived Its Sovereign Immunity
The Complainant offers three arguments in support of his position that sovereign immunity does not apply in this instance. First, he argues that he is not acting as a private citizen. This argument has no merit. While the Complainant was not acting as a private citizen at the time he engaged in his protected activity, his claim of reprisal seeks a remedy which is personal to him. He was acting as a private citizen when he filed his complaint with OSHA alleging that the Respondent had retaliated against him.
The Complainant also argues that the State of Alaska has implicitly agreed to federal jurisdiction by accepting U.S. Department of Transportation, Federal Highway Administration funding. He argues sovereign immunity was implicitly waived because a Radiation Safety Officer is a federal requirement for possession, use, and transfer of radioactive materials, and his activities as a Radiation Safety Officer are funded by the federal government. Alaska's employment of a Radiation Safety Officer may have been part, or a requirement, of an agreement with the federal government to handle radioactive materials, but the agreement is not an unequivocal waiver of sovereign immunity by the State of Alaska. Acceptance of federal funds or participation in a federal program, in and of itself, does not establish that a State has consented to being sued. The U.S. Supreme Court rejected a conclusion to the contrary in Atascadero State Hospital v. Scanlan, 743 U.S. 234 (1985). In that case, the Ninth Circuit found that the State of California had waived its sovereign immunity against being sued under the Rehabilitation Act of 1973 by participating in federal programs funded under the Rehabilitation Act. The Supreme Court rejected this finding noting that mere receipt of federal funds cannot establish that a state has consented to being sued. Atascadero State Hospital v. Scanlan, 743 U.S. at 246.
There are only two exceptions to the doctrine of sovereign immunity under the Eleventh Amendment. The first exception arises when Congress expressly authorizes such a suit through enforcement of Section Five of the Fourteenth Amendment, and the second arises 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 in the ERA or that the State of Alaska 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. Florida Board of Regents, 528 U.S. 62, 73 (2000); Atascadero State Hospital v. Scanlan, 743 U.S. at 243. The Complainant has not identified any language in the ERA that unequivocally establishes a waiver of sovereign immunity for federal whistleblowing claims. No such language exists in the ERA.
The Complainant also argues that sovereign immunity has been waived because the State of Alaska grants immunity to individuals and indemnification for official actions in a collective bargaining agreement between the State of Alaska and the Alaska State Employees Association. The Complainant did not submit copies of the provision of the collective bargaining agreement. However, even if such a provision existed, it has no bearing on a possible waiver of sovereign immunity. There must be an explicit waiver of sovereign immunity and a specific intent to subject itself to suit in federal court by a state before a court can find that a state has waived its sovereign immunity from a suit in federal court. Even a state constitutional provision permitting suits against the state in state court is not sufficient. Atascadero State Hospital v. Scanlan, 743 U.S. at 241. An immunity and indemnification agreement is not an explicit waiver of sovereign immunity.
CONCLUSION
The Respondent has not waived its sovereign immunity against suit in Federal court. Since sovereign immunity applies to proceedings before federal administrative law judges, the Office of Administrative Law Judges has no jurisdiction to hear this matter.
Accordingly, it is ORDERED that this matter be DISMISSED WITH PREJUDICE for lack of jurisdiction.
JENNIFER GEE
Administrative Law Judge
NOTICE OF REVIEW:
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.
