Florida v. U.S.

• Decision Date: 02 March 2001
• Docket Number: No. 4:00CV445-RH.,4:00CV445-RH.
• Citation: 133 F.Supp.2d 1280
• Parties: State of FLORIDA, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

133 F.Supp.2d 1280

State of FLORIDA, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

No. 4:00CV445-RH.

United States District Court, N.D. Florida, Tallahassee Division.

March 2, 2001.

COPYRIGHT MATERIAL OMITTED

Kevin E. Hyde, Foley & Lardner, Jacksonville, FL, George Lee Waas, Atty. General's Office, Dept. of Legal Affairs, Tallahassee, FL, Michael Eugene Kinney, Foley & Lardner, Tallahassee, FL, for plaintiffs.

Mark Quinlivan, Senior Counsel, Civ. Div., U.S. Dept. of Justice, Steve Mandel, U.S. Dept. of Labor, Div. of Fair labor Standards, Washington, DC, William Joseph Moore, III, Henrichsen Siegel Moore, Jacksonville, FL, for defendants.

OPINION ON MERITS

HINKLE, District Judge.

Certain federal environmental statutes include "whistleblower" provisions that prohibit an employer from firing or otherwise discriminating against an employee who reports environmental violations. Under the implementing regulations of the Secretary of Labor, an employee may commence and prosecute a federal administrative proceeding against his or her employer for violation of the whistleblower provisions. The statutes and regulations by their terms apply not only to private employers but also to public employers, including states. The State of Florida, which has been named as a respondent in a federal administrative proceeding commenced by an individual former state employee, asserts the proceeding is barred by the Eleventh Amendment and the concept of state sovereign immunity incorporated in the United States Constitution. I agree and thus enjoin further proceedings against the state by the former employee.

I. THE STATUTES AND IMPLEMENTING REGULATIONS

Congress has included "whistleblower" provisions in the six environmental statutes at issue in this case: the Clean Air Act,¹ the Water Pollution Control Act,² the Toxic Substances Control Act,³ the Safe Drinking Water Act,⁴ the Solid Waste Disposal Act,⁵ and the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA").⁶ Each of the whistleblower provisions prohibits an employer from firing or otherwise discriminating against an employee who takes certain actions, including filing or testifying in any proceeding resulting from the administration or enforcement of the underlying environmental statute. Each of the whistleblower provisions also authorizes an employee who believes he has been fired or discriminated against in violation of these provisions to file a complaint with the Secretary of Labor.⁷ Each statute requires the Secretary to investigate any such complaint including by affording the parties an opportunity, upon request, to present evidence at a public hearing. If the Secretary finds a violation, the Secretary may order appropriate relief, including reinstatement of a wrongfully fired employee, with compensation. Any such decision of the Secretary is subject to judicial review⁸ and, if upheld, may be enforced through an action brought by the Secretary in the appropriate United States District Court.⁹

By regulation, the Secretary of Labor has expanded the applicable procedures. See 29 C.F.R.pt. 24 (1999). Upon the filing of a complaint under any or all of the whistleblower provisions, the Assistant Secretary conducts an investigation, determines whether a violation has occurred, and notifies the parties of the decision. 29 C.F.R. § 24.4. Any party then may file a request for an administrative hearing. 29 C.F.R. § 24.4(d)(2). If a hearing is requested, the Assistant Secretary's determination becomes "inoperative," id., and a formal administrative hearing is conducted before an Administrative Law Judge, with presentation of evidence by the parties on the record. 29 C.F.R. § 24.6. At his or her discretion, the Assistant Secretary may participate as a party or as amicus curiae or not at all. 29 C.F.R. § 24.6(f)(1). The Administrative Law Judge issues a recommended decision, which becomes the final order of the Secretary unless a petition for review is filed with the Administrative Review Board. 29 C.F.R. § 24.7(d). If a petition for review is filed, the Administrative Review Board issues the final decision of the Secretary, which in turn is subject to judicial review. 29 C.F.R. § 24.8.

II. PROCEDURAL BACKGROUND

Dr. Omar Shafey asserts that he was discriminated against and ultimately fired from his job with the State of Florida Department of Health in retaliation for allegedly protected communications he made regarding the alleged risks of occupational pesticide exposure and aerial application of malathion. Dr. Shafey filed a complaint with the Secretary of Labor under the statutes cited above,¹⁰ initially naming as respondents the State of Florida and the Florida Department of Health (hereafter collectively referred to as "the State of Florida" or "the state"¹¹), and later amending to name as additional respondents two state employees, Sharon Heber and David Johnson, in their individual and official capacities. Dr. Shafey sought, among other things, reinstatement, back pay, and compensatory and exemplary damages.

The Assistant Secretary investigated and determined no violation had occurred. Dr. Shafey requested an administrative hearing, and the matter was assigned to an Administrative Law Judge, in accordance with the applicable regulations. The respondents moved to dismiss, based on Eleventh Amendment and sovereign immunity, but the Administrative Law Judge denied the motion on the grounds he had no authority to determine those issues.

The respondents then filed this action seeking to enjoin the administrative proceeding. Named as defendants are the Department of Labor, various Department of Labor officials, and Dr. Shafey. I entered a preliminary injunction blocking further administrative proceedings pending disposition of this action. With the consent of all parties, the matter now is before the court for final ruling on the merits based on the parties' briefs, oral arguments, and an agreed record.

III. MERITS

The issue is whether the Eleventh Amendment and constitutional doctrine of state sovereign immunity bar a federal administrative proceeding of the type Dr. Shafey initiated and the Department of Labor proposes to conduct. I begin the analysis of this issue with a review of settled Eleventh Amendment and sovereign immunity principles as applicable in an ordinary lawsuit, concluding that Dr. Shafey's claims against the state would be barred if asserted in court, that his claims against the individual respondents in their official capacities would be barred to the extent they seek damages or other retrospective relief but not to the extent they seek prospective relief, and that his claims against the individual respondents in their individual capacities would not be barred. I then analyze the applicability of these same principles in an administrative forum, concluding that the change in forum does not change the applicability of these principles. I next address, and reject, the contention that whistleblower proceedings of this type are prosecuted by the Department of Labor (that is, by the United States), not by the complainant, and thus are not barred. I then address, and reject, the contention that whistleblower proceedings of this type have been validly authorized by Congress under § 5 of the Fourteenth Amendment and thus are not barred. Finally, I note, but do not resolve, the issue of whether Dr. Shafey may proceed with his administrative action as against the individual respondents.

A. Eleventh Amendment and Sovereign Immunity Principles Applicable in Litigation

As background for applying Eleventh Amendment and sovereign immunity principles in the administrative setting at issue, it is useful to begin with a review of the principles that apply in the more traditional setting of an ordinary lawsuit.

First, states have Eleventh Amendment immunity from lawsuits brought by a private party in federal court. See, e.g., Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

Second, in addition to Eleventh Amendment immunity, states also have sovereign immunity that is implicit in the structure of the Constitution, separate and apart from the Eleventh Amendment. See, e.g., Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). This constitutional state sovereign immunity applies not only in federal litigation but also in actions brought in state court. Id.

Third, these immunities do not bar an action brought by the federal government. See Principality of Monaco v. Mississippi, 292 U.S. 313, 328-29, 54 S.Ct. 745, 78 L.Ed. 1282 (1934) (collecting cases). Just as the states' immunity from suits brought by private individuals is implicit in the constitutional structure, so also is their lack of immunity from suits brought by the federal government. See Alden, 527 U.S. at 755-56, 119 S.Ct. 2240.

Fourth, these immunities do not foreclose an action against a state official, in his or her official capacity, seeking solely prospective relief. See, e.g., Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Federal courts thus may require state officials to comply with the federal Constitution and laws going forward, without awarding damages or other retrospective relief recoverable from the state treasury. See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Fifth, these immunities do not foreclose an action against an individual state official, in his or her individual capacity, seeking damages payable solely by the individual state official, not from the state treasury. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Such officials do, however, have qualified immunity from such claims. Id.; see also Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

Sixth, Congress may abrogate Eleventh Amendment immunity and constitutional sovereign immunity through legislation validly enacted under...