304 F.3d 31 (1st Cir. 2002), 00-2326, Rhode Island Dept. of Environmental Management v. U.S.

Docket Nº:00-2326
Citation:304 F.3d 31
Party Name:Rhode Island Dept. of Environmental Management v. U.S.
Case Date:August 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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304 F.3d 31 (1st Cir. 2002)



UNITED STATES of America; United States Department of Labor; Elaine Chao, Secretary of Labor; Occupational Safety and Health Administration; Charles N. Jeffress, Assistant Secretary of Labor for Occupational Safety and Health; Ruth E. McCully, Regional Administrator Region 1, Occupational Safety and Health Administration, Defendants, Appellants,

Beverly Migliore; Barbara Raddatz; Joan Taylor, Defendants, Appellants.

Nos. 00-2326, 01-1543.

United States Court of Appeals, First Circuit

August 30, 2002

Heard Jan. 8, 2002.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 8, 2002.

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Mark B. Stern, with whom Stuart E. Schiffer, Acting Assistant Attorney General, Margaret E. Curran, United States Attorney, and Alisa B. Klein, were on brief for the United States appellants.

Daniel P. Meyer, with whom Joel D. Landry, Sr.,Hd‡e on brief for appellants Migliore, Raddatz and Taylor.

Jonathan M. Gutoff, was on brief as amicus curiae, American Civil Liberties Union, Rhode Island Affiliate.

James R. Lee, Assistant Attorney General, with whom Sheldon Whitehouse, Attorney General, and Deborah A. George, Senior Legal Counsel, were on brief for appellees.

Before BOUDIN, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

The State of Rhode Island brought suit in the district court seeking to enjoin certain federal administrative proceedings on the ground that the proceedings infringed upon the state's constitutionally protected sovereign interests. Finding the state's arguments convincing, the district court enjoined the United States Department of Labor and three employees of a Rhode Island state agency from proceeding in an administrative adjudication of the employees' claims that the state had retaliated against them in violation of federal law. The United States and individual employees

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now appeal the order entering the injunction.

After fully considering the parties' contentions, which were ably briefed and very well argued, we affirm the judgment of the district court, with only slight modification to its order.


A. Statutory Background

The Solid Waste Disposal Act ("SWDA" or "Act"), 23 U.S.C. §§ 6901-6992k, is a comprehensive environmental enactment designed to promote the reduction of hazardous waste and the treatment, storage, or disposal of such waste so as to minimize threats to human health and the environment. Id. § 6902(b).

The Act contains a whistleblower provision that prohibits an employer from firing or otherwise discriminating against an employee who initiates or testifies in a proceeding brought pursuant to the Act. Id. § 6971(a). The Act establishes an administrative scheme by which an employee who believes that he was the victim of a retaliatory adverse employment action may seek review of the employer's decision by the Secretary of Labor. 1 See 29 C.F.R. pt. 24.

1. Initial investigation

Under this administrative scheme, an employee may, within thirty days of the alleged retaliation, apply to the Secretary of Labor for a review of the firing or alleged discrimination. 42 U.S.C. § 6971(b). The Act directs the Secretary of Labor ("Secretary"), upon receiving such an application, to cause an investigation to be made as the Secretary deems appropriate. Id. By regulation, an initial investigation is conducted by the Office of the Assistant Secretary of the Occupational Safety and Health Administration ("OSHA"). 29 C.F.R. § 24.4(b). The regulations authorize OSHA, in the course of this investigation, to enter and inspect places and records, question persons who are being proceeded against and other employees of the charged employer, and require the production of any documentary or other evidence deemed necessary to determine whether a violation of the law has been committed. Id. Within thirty days of receipt of the employee's application, OSHA must complete the investigation and determine whether a violation has occurred. Id. § 24.4(d)(1).

2. Opportunity for an administrative hearing

The statute requires the Secretary to provide, on request of either party, an opportunity for a hearing to enable the parties to present information relating to the alleged violation. 42 U.S.C. § 6971(b). Upon such a request, OSHA's initial determination becomes inoperative, 29 C.F.R.§ 24.4(d)(2), and the matter is assigned to an administrative law judge ("ALJ") within the Department of Labor, id. § 24.6(a). A hearing before the ALJ is conducted in accordance with the formal hearing provisions of the Administrative Procedure Act ("APA"), set forth at 5 U.S.C. § 554. 42 U.S.C. § 6971(b). The employer and employee are entitled to be represented by counsel at the hearing, present evidence on their behalf, and, upon request, present

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oral argument and file a prehearing brief or other written statement of fact or law. 29 C.F.R. §§ 24.6(d), (e)(1)-(3). At her discretion, the Secretary may intervene in the matter as a party or amicus curiae at any time during the proceedings. Id. § 24.6(f)(1).

At the end of the hearing, the ALJ issues a recommended decision. Id. § 24.7(a). If the ALJ finds in favor of the complainant, a recommended order that includes a recommendation as to appropriate relief is issued. Id. § 24.7(c)(1).

The ALJ's recommended decision becomes final unless a petition for review is filed with the Administrative Review Board ("ARB"), id. § 24.7(d), a body to which the Secretary has delegated the authority to issue final decisions, id. § 24.8(a). The ARB is composed of three members, each of whom is appointed by the Secretary for a term not to exceed two years. See Authority and Responsibilities of the Administrative Review Board, 61 Fed.Reg. 19,978, 19,789 (May 3, 1996).

The ARB reviews the decision of the ALJ to determine whether a violation of the law occurred. 29 C.F.R. § 24.8(d)(1). If the ARB determines that a violation did occur, it shall order the party charged to take "appropriate affirmative action to abate the violation," including reinstating the complainant and compensating the complainant for back pay and other compensatory damages. Id. The ARB, at the request of the complainant, shall also award attorney fees and costs. Id. § 24.8(d)(2); 42 U.S.C. § 6971(c). If the ARB concludes that no violation occurred, it must issue an order denying the complaint. 29 C.F.R. § 24.8(e).

3. Enforcement of the Secretary's orders

Unlike a court, the Secretary does not have inherent authority to issue enforceable orders, and the SWDA does not give the Secretary the power of contempt, mandamus, or the like. Thus, any enforcement of the Secretary's orders must occur in court. Specifically, the Act directs that the Secretary's final determinations under the whistleblower provisions are subject to review in the court of appeals in accordance with judicial review provisions of the APA, 5 U.S.C. §§ 701-706. See 42 U.S.C. §§ 6971(b), 6976(b); see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th Cir. 1998); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 n. 2 (8th Cir. 1995).

B. Factual Background and Proceedings Below

1. Administrative proceedings

The State of Rhode Island and the Rhode Island Department of Environmental Management ("DEM") brought this action to enjoin four separate administrative proceedings brought pursuant to the whistleblower provision of the SWDA. 2 The complainants in these proceedings were DEM employees Beverly Migliore, Barbara Raddatz, and Joan Taylor (the "individual appellants"). They each allege that the state agency retaliated against them for reporting what the employees believed to be an improper implementation of the SWDA. See Rhode Island v. United States, 115 F.Supp.2d 269, 270-71 (D.R.I.2000). Migliore also filed a second charge based on her allegation that DEM had retaliated against her for initiating the first proceeding. Id. at 271. The relief

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that each complainant sought included monetary and injunctive relief. Id.

The four proceedings were at different stages when the district court enjoined further action. In Migliore's first proceeding, an ALJ had issued a recommended decision awarding her $843,000 in monetary relief, and the DEM filed a petition with the ARB for review of the ALJ's decision. Id. at 272. In the second proceeding initiated by Migliore, OSHA had issued an order awarding Migliore $10,000 in monetary relief, and the DEM requested a hearing before an ALJ. Id. In the proceeding initiated by Barbara Raddatz, OSHA found no violation, and Raddatz requested a hearing before an ALJ. Id. Joan Taylor's allegations were still under investigation when the district court's injunction issued. 3 Id.

2. Proceedings in the district court

In ruling on Rhode Island's motion for a preliminary injunction, the district court held that the administrative proceedings were barred by sovereign immunity principles. The court observed that in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the Supreme Court had contrasted a suit brought by the United States with a suit brought by a private party and explained that " '[s]uits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States.' " Rhode Island, 115 F.Supp.2d at 273 (quoting Alden, 527 U.S. at...

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