Peck v. U.S. Dep't of Labor

• Decision Date: 30 April 2021
• Docket Number: No. 20-1154,20-1154
• Citation: 996 F.3d 224
• Parties: Michael S. PECK, Ph.D., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD; Marty Walsh, U.S. Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

996 F.3d 224

Michael S. PECK, Ph.D., Petitioner,

v.UNITED STATES DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD; Marty Walsh, U.S. Secretary of Labor, Respondents.

No. 20-1154

United States Court of Appeals, Fourth Circuit.

Submitted: March 12, 2021

Decided: April 30, 2021

Amended: June 21, 2021

John M. Clifford, Billie P. Garde, CLIFFORD & GARDE, LLP, Washington, D.C.; John A. Kolar, GOVERNMENT ACCOUNTABILITY PROJECT, Washington, D.C.; Ned Miltenberg, Managing Partner, NATIONAL LEGAL SCHOLARS LAW FIRM, P.C., Bethesda, Maryland, for Petitioner. Kate S. O'Scannlain, Solicitor of Labor, Elena S. Goldstein, Deputy Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Sarah K. Marcus, Deputy Associate Solicitor, Megan E. Guenther, Counsel for Whistleblower Programs, James M. Morlath, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent.

Before WILKINSON, AGEE, and FLOYD, Circuit Judges.

Petition denied by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Floyd joined.

WILKINSON, Circuit Judge:

Petitioner Dr. Michael Peck is a Nuclear Regulatory Commission (NRC) employee who made disclosures to Congress and the NRC's Inspector General regarding health and safety risks at a nuclear power plant. After the NRC rejected his applications for promotions, he brought a whistleblower-retaliation complaint under 42 U.S.C. § 5851. The Administrative Law Judge (ALJ) dismissed the case because the United States had not waived sovereign immunity for such whistleblower actions against the NRC. The Administrative Review Board (ARB) affirmed, and Peck petitioned for review before this court. Because we agree with the ARB that Congress has not waived sovereign immunity for complaints against the NRC, we deny the petition for review.

I.

Dr. Peck has worked for the NRC as a nuclear engineer since 2000. From 2007 to 2012, he served as the Senior Resident Inspector at the Diablo Canyon Nuclear Power Plant. After he left the plant, he took three protected actions regarding concerns he had with the safety conditions there. First, in 2013 and 2014, he filed a formal Differing Professional Opinion with the NRC. Second, in January 2015, Peck sent a letter to the Senate Committee on Environment and Public Works, which oversees the NRC. Third, in 2015 and 2016, he provided testimony to the NRC Inspector General.

Since leaving the Diablo Canyon plant, Peck has served as a Senior Reactor Technology Instructor at the NRC's Chattanooga, Tennessee, office. In 2016 and 2017, he applied for two promotions at the NRC. Peck submitted an application in October 2016 for a Senior Resident Inspector (SRI) position at the Callaway Nuclear Plant in Missouri. In March 2017, he applied for the same position at a plant in Arkansas. He was passed over in both cases.

In 2017, Peck filed a complaint with the Department of Labor pursuant to the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801 et seq. , as amended by Act of Nov. 6, 1978, Pub. L. No. 95-601, 92 Stat. 2947, and the Energy Policy Act of 2005 (EPA), Pub. L. No. 109-58, 119 Stat. 594. He alleged that his non-selection for promotion was in retaliation for his protected disclosures about insufficient safety conditions at Diablo Canyon. In support of this claim, Peck argued that the supervisors in charge of selection knew of his protected activity and retaliated against him by choosing engineers with inferior qualifications and less experience for the two SRI positions.

On July 13, 2017, the ALJ granted the NRC's motion to dismiss on the grounds that the 2005 amendments to the ERA did not waive the federal government's sovereign immunity for suits against the NRC. Peck appealed this decision to the ARB. Due to the significance of the issue, the ARB heard the case en banc and affirmed the ALJ over one dissent. See J.A. 329–52. Peck timely filed a petition for review of the ARB's order in this court pursuant to 42 U.S.C. § 5851(c).

II.

The parties have not questioned our power to decide the case. However, federal courts "have an independent obligation to verify the existence of" their own jurisdiction. Williamson v. Stirling , 912 F.3d 154, 168 (4th Cir. 2018) (quoting Porter v. Zook , 803 F.3d 694, 696 (4th Cir. 2015) ). As such, we identified our concerns sua sponte and requested the parties to submit supplemental briefing on whether this court has jurisdiction over this petition.

The statute authorizing Article III review of ARB decisions provides that aggrieved employees can seek review "in the United States court of appeals for the circuit in which the violation ... allegedly occurred." 42 U.S.C. § 5851(c). Based on the facts alleged by the petitioner, it is unclear that any of the allegedly illegal actions took place within the states of the Fourth Circuit.

We need not parse the location of the actions of Peck's supervisors because we conclude that § 5851(c) speaks not to jurisdiction but to venue. In Davlan Eng'g, Inc. v. NLRB , 718 F.2d 102 (4th Cir. 1983), this court considered a nearly identical statute that governs review of orders by the National Labor Relations Board. That statute provides that "any person aggrieved by a Board order may obtain review ‘in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business.’ " Id. at 103 (quoting 29 U.S.C. § 160(f) ). We treated that language as a "venue requirement[ ]." Id. The same is true for the statute providing review of immigration judges’ decisions. See Sorcia v. Holder , 643 F.3d 117, 121 (4th Cir. 2011) (stating "that a ‘petition for review [of an order of removal] shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings’ " (quoting 8 U.S.C. § 1252(b)(2) )). Since there are no meaningful distinctions between the language of those statutes and § 5851(c), the latter statute is also a venue provision and poses no jurisdictional problems for this court.

Assured that we are seized of jurisdiction over this petition, we briefly note that it is a long-held rule that venue is a "personal privilege" that a party may waive. Senitha v. Robertson , 45 F.2d 51, 53 (4th Cir. 1930). In its supplemental brief, the Department of Labor has done just that and both parties request that we resolve the question presented. See Resp't Suppl. Br. at 6; Pet'r Suppl. Br. at 5. This court has also placed another case raising an identical sovereign immunity issue in abeyance pending the outcome of this case. See Order, Criscione v. Nuclear Regulatory Comm'n , No. 20-2320 (4th Cir. Dec. 11, 2020). Because this case is already fully briefed, and the parties have requested that we resolve it, and another case in our circuit turns on its outcome, we find that judicial economy warrants our resolution of the petition.

III.

We review the ARB's decision pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2). See 42 U.S.C. § 5851(c)(1). Under that framework, "we may only disturb the ARB's decision if it was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Welch v. Chao , 536 F.3d 269, 275–76 (4th Cir. 2008). This case presents a pure question of law, which we review de novo . Id. at 276.

A.

It is axiomatic that "the United States [is] not suable of common right" but that "the party who institutes such a suit must bring his case within the authority of some act of [C]ongress." United States v. Clarke , 33 U.S. (8 Pet.) 436, 444, 8 L.Ed. 1001 (1834) (Marshall, C.J.). This is because "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." The Federalist No. 81, at 486 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis omitted). This was a principle so obvious to the Founding generation that it needed no mention—its presence was assumed. See Stephen E. Sachs, Constitutional Backdrops , 80 Geo. Wash. L. Rev. 1813, 1868–75 (2012).

It is also well-settled that "the terms of its consent to be sued" are jurisdictional. United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). And the Supreme Court has made crystal clear "that a waiver of sovereign immunity must be ‘unequivocally expressed’ in statutory text." FAA v. Cooper , 566 U.S. 284, 290, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012) (quoting Lane v. Peña , 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) ); see also United States v. Nordic Village, Inc. , 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). All ambiguities in the statutory text must be construed "in favor of immunity." United States v. Williams , 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995).

Here we deal with the sovereign's immunity from suits for money damages. This immunity is of paramount importance in a democratic republic. In any pluralistic society, the people have many interests competing for the expenditure of the government's limited funds. The Framers saw fit to assign the power to balance those interests to the most representative branch—the legislature. See U.S. Const. art. I, § 9, cl. 7 ("No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."). Allowing a private litigant to bring a claim against the U.S. Treasury without statutory authorization would violate this most important of principles. See Reeside v. Walker , 52 U.S. (11 How.) 272, 291, 13 L.Ed. 693 (1850) ("However much money may be in the Treasury at any one time, not a dollar of it can be used in the payment of any thing not thus previously sanctioned."). This "is to assure that public funds will be spent according to the letter of difficult judgments reached by Congress as to the common good and not according to ... the individual pleas of litigants." Office of Pers. Mgmt. v. Richmond , 496 U.S. 414, 428, 110 S.Ct. 2465, ...