Connecticut D.E.P. V. Occupational Safety & Health

• Decision Date: 23 April 2001
• Docket Number: No. 3:99CV2291 GLG.,3:99CV2291 GLG.
• Citation: 138 F.Supp.2d 285
• Court: U.S. District Court — District of Connecticut
• Parties: STATE OF CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Charles N. Jeffress, Assistant Secretary of Labor for Occupational Safety and Health, Ruth E. McCully, Regional Administrator, Region 1, OSHA, and John J. Stanton, Jr., OSHA Area Director, and Anne Rapkin, Defendants.

138 F.Supp.2d 285

STATE OF CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, Charles N. Jeffress, Assistant Secretary of Labor for Occupational Safety and Health, Ruth E. McCully, Regional Administrator, Region 1, OSHA, and John J. Stanton, Jr., OSHA Area Director, and Anne Rapkin, Defendants.

No. 3:99CV2291 GLG.

United States District Court, D. Connecticut.

April 23, 2001.

OPINION

GOETTEL, District Judge.

The State of Connecticut Department of Environmental Protection ("State" or "State DEP") has brought this action seeking a preliminary injunction under Rule 65, Fed.R.Civ.P., to prevent the United States Department of Labor's Occupational Safety and Health Administration ("DOL" or "OSHA") and its officials from investigating, hearing, and adjudicating an adversary complaint filed by State DEP employee, Anne Rapkin ("Rapkin"). The State claims that this federal administrative investigation and the adjudicatory proceedings violate its sovereign immunity.

Finding that the requirements for the issuance of a preliminary injunction have been met, this Court grants Plaintiff's Motion for a Preliminary Injunction [Doc. # 6], enjoining OSHA and the named OSHA officials from proceeding with the investigation, adjudication, and prosecution of the Rapkin complaint.

PROCEDURAL BACKGROUND

On September 22, 1999, Rapkin, an attorney with the State DEP, filed a complaint with OSHA against the State DEP (docketed as Rapkin/1-0280-99-037), alleging that the State DEP had discriminated against her for participating in protected activities¹ in violation of the employee protection provisions of the Clean Air Act, 42 U.S.C. § 7622, the Clean Water Act, 33 U.S.C. § 1367, and the Solid Waste Disposal Act, 42 U.S.C. § 6971.² A second complaint was filed by Rapkin against the State DEP on November 5, 1999 (Rapkin/1-0280-00-005), alleging retaliation.³ Rapkin's OSHA complaints sought (1) compensatory damages for mental anguish, pain and suffering inflicted on Rapkin and her family by the allegedly unlawful conduct of the State DEP, (2) attorney's fees, and (3) an injunction, enjoining the State DEP from further harassment, intimidation, and retaliation. Rapkin also sought to require the State to "reconstitute" the Office of Legal Counsel within the State DEP and to restore her former job duties. OSHA notified the State DEP of both filings and of OSHA's mandatory investigation. The State was asked to direct all documents in support of its position to the investigator assigned to the case.

The State responded to the initial complaint by letter, asking OSHA to dismiss the complaint based upon the State's sovereign immunity. The State asserted that its immunity "provides not only a complete bar to any action by Rapkin but also prevents OSHA from any further proceeding against the [State] DEP." (Letter dated Oct. 22, 1999 at 1, Ex. D to Rocque Aff.) When OSHA refused to dismiss the complaint, the State filed the instant suit in this Court, seeking a declaration that Rapkin's OSHA complaint violates the State's sovereign immunity and seeking a temporary restraining order and a permanent injunction enjoining OSHA from proceeding with the investigation or prosecution of Rapkin's OSHA case and further enjoining Rapkin from filing any further complaints against the State DEP or its officials [Doc. # 6].⁴

The State's application for a temporary restraining order became moot when the OSHA defendants agreed not to proceed with their investigation of the Rapkin complaint until the motion for preliminary injunction was decided. This Court then heard oral argument on the motion for preliminary injunction, followed by the submission of supplemental briefs.⁵

INTERVENING FEDERAL DECISIONS

Since oral argument, three federal district courts have handed down decisions in similar cases, in which a State or State agency sought on sovereign immunity grounds to enjoin OSHA proceedings involving private whistleblower complaints. See State of Rhode Island Department of Environmental Management v. United States, 115 F.Supp.2d 269 (D.R.I. 2000); State of Ohio Environmental Protection Agency v. United States Department of Labor, 121 F.Supp.2d 1155 (S.D.Ohio 2000); State of Florida v. United States, 133 F.Supp.2d 1280 (N.D.Fla. 2001).⁶

All three federal district court cases involved whistleblower complaints filed by private individuals with OSHA, each alleging violations of the employee protection provisions of the federal environmental statutes by a State agency. All three decisions held that State sovereign immunity was applicable to federal agency proceedings, although they reached different conclusions as to the point at which the State's sovereign immunity barred further actions by the agency.

In the State of Rhode Island case, the District Court enjoined all further agency proceedings, holding that the State's sovereign immunity protected it from prosecution of the individuals' complaints before OSHA. State of Rhode Island, 115 F.Supp.2d at 279. The Court concluded that,

unless waived or validly abrogated, sovereign immunity bars the assertion or adjudication of claims made against a state by a private party and it protects a state from being required to appear and defend itself against such claims regardless of the forum in which those claims are made.

Id. at 274. The Court noted, however, that it was not enjoining OSHA from investigating the alleged violations on which the complaints were based or seeking to enforce the State's compliance with federal law.⁷ Id. at 279.

Likewise, in the State of Florida case, the District Court held that the State's sovereign immunity barred both the commencement and prosecution of a federal administrative proceeding by a private individual against the State "to the same extent it would protect the State from a private individual's lawsuit in state or federal court." State of Florida, 133 F.Supp.2d at 1288. The Court held that the "the constitutional dignity of the states demands that they not be `summoned as defendants to answer the complaints of private persons,'" regardless of the forum. Id. (quoting Alden v. Maine, 527 U.S. 706, 748, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999)). The Court reasoned that

[i]f state sovereignty prohibits either the Congress under Article I of the Constitution or the federal courts under Article III from subjecting the state to claims of private individuals, then surely the result should be no different for an agency created not by the Constitution itself but only by Congress under its Article I powers.

Id.

The District Court in State of Ohio held that the State's sovereign immunity applied to federal agency adjudicatory proceedings but disagreed with the State of Rhode Island holding to the extent that it enjoined all proceedings by the DOL. Instead, the Ohio Court allowed the agency to continue its investigation to allow it to decide whether to participate as a party in the proceedings. The Court rejected the DOL's argument that the proceedings before the Administrative Law Judge ("ALJ") and the Arbitration Review Board did not constitute the exercise of "judicial power of the United States." State of Ohio, 121 F.Supp.2d at 1163. The Court cited the implementing regulations, 29 C.F.R. Part 24, which direct the ALJ to conduct a full evidentiary hearing, administer oaths, issue subpoenas, rule on evidence, dispose of procedural requests, and make a formal recommended decision and order. Id. at 1164. "More fundamentally," the Court noted, "the record compiled by the agency, particularly the hearing conducted by the [ALJ], becomes the basis for any review by an Article III Court." Id. Nevertheless, drawing a distinction between the adjudicatory proceedings before an ALJ and the agency's investigation of the complaint, which it characterized as merely "investigatory," the Court held that the DOL should not be enjoined from making a full investigation of the individual's complaint in order to determine whether to intervene as a party. Id. at 1167. If the DOL determined that it would participate as a party in the action, the matter would proceed through the full administrative process; if the DOL declined to participate, the action must terminate consistent with the Eleventh Amendment. Id. at 1168.

Most recently, the Fourth Circuit Court of Appeals decided the case of South Carolina State Ports Authority v. Federal Maritime Commission, 243 F.3d 165 (4th Cir. 2001), which presented the same issue, although in the context of proceedings initiated by a private party before a different federal agency. In that case, the South Carolina State Ports Authority claimed that the State's sovereign immunity prohibited a private cruise ship company from suing it before the Federal Maritime Commission. In a compelling decision written by Chief Judge Wilkinson, the Fourth Circuit held that "[s]overeign immunity applies to proceedings brought in any forum by a private party against a non-consenting state." 243 F.3d at 178. The Court cited the Supreme Court's holding in Alden for the proposition that "state sovereign immunity transcends the forum in which the state is sued." Id. at 169.

Private suits against nonconsenting States ... present the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties, regardless of the forum. ... Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public's behalf.

Id. (quoting Alden, 527 U.S. at 749, 119 S.Ct. 2240 (internal citations and quotations omitted)).

The Fourth Circuit critically analyzed "[t]he history, the text, and the structure of the Constitution," which confirmed ...