Rhode Island v. U.S.
| Decision Date | 29 September 2000 |
| Docket Number | No. C.A. 00-44-T.,C.A. 00-44-T. |
| Citation | 115 F.Supp.2d 269 |
| Parties | State of RHODE ISLAND, Rhode Island Department of Environmental Management, Plaintiff, v. UNITED STATES of America, United States Department of Labor, Alexis Herman, 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, Osha, Beverly Migliore, Barbara Raddatz, Joan Taylor, and Does 1 through 10, Defendants. |
| Court | U.S. District Court — District of Rhode Island |
James R. Lee, Attorney's General's Office, Providence, RI, Alan M. Shoer, Deborah Ann George, Dept. of Environmental Management, Providence, RI, for Rhode Island Dept. of Environmental Management, State of Rhode Island.
Anthony C. DiGioia, U.S. Attorney's Office, Providence, RI, Sandra M. Schraibman, Mark T. Quinlivan, U.S. Dept. of Justice, Washington, DC, for U.S., U.S. Dept. of Labor, Alexis M. Herman, OSHA, Charles N. Jeffress and Ruth E. McCully.
Joel D. Landry, Providence, RI, Ruth Ann Weidel, Washington, DC, for Beverly Migliore, Barbara Raddatz and Joan Taylor.
The State of Rhode Island and the Rhode Island Department of Environmental Management (DEM) (collectively, the "State") brought this action to enjoin proceedings before the United States Department of Labor (DOL) in which several state employees seek damages and other relief against the State for alleged violations of the "whistleblower" protection provision of the Solid Waste Disposal Act, 42 U.S.C. § 6971 (the "whistleblower provision").
The case, presently, is before the Court for consideration of the State's motion for a preliminary injunction prohibiting any further "investigation" or "prosecution" of the aforesaid claims. The issue presented is whether the proceedings before the DOL are barred by the Eleventh Amendment to the United States Constitution, and/or the doctrine of sovereign immunity. Because I conclude that they are, the motion for a preliminary injunction is granted.
Beverly Migliore, Barbara Raddatz, and Joan Taylor (collectively, the "individual defendants" or the "claimants") are DEM employees. Each of them filed a complaint with DOL alleging that DEM violated the whistleblower provision by retaliating against them for reporting what they believed to be DEM's failure to properly implement the Solid Waste Disposal Act. Migliore filed a second complaint (Migliore II) alleging further retaliation for having filed her first complaint (Migliore I). The relief sought by the claimants includes ordering changes in the terms and conditions of employment that they regard as necessary to undo the effects of the alleged retaliation and to protect them from future retaliation; compensatory damages for mental anguish and an award of attorneys' fees.
The "whistleblower provision" is part of the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992k (the "Act"). It provides, in relevant part as follows:
(a) General
No person shall fire, or in any other way discriminate against ... any employee ... by reason of the fact that such employee ... has filed, instituted, or caused to be filed or instituted any proceeding under [The Solid Waste Disposal Act] or under any applicable implementation plan, ...
(b) Remedy
Any employee ... who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this section may, ... apply to the Secretary of Labor for a review of such firing or alleged discrimination. ... If [the Secretary] finds that such violation did occur, he shall issue ... an order ... requiring the party committing such violation to take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee ... to his former position with compensation. ... Such order ... shall be subject to judicial review in the same manner as orders and decisions of the Administrator or [sic] subject to judicial review under this chapter.
The DOL has promulgated regulations setting forth the procedure to be followed by an employee seeking a remedy pursuant to subsection (b).1 See 29 C.F.R. § 24. The regulations permit the employee to file a complaint with the Occupational Safety and Health Administration (OSHA), an agency within DOL. The Assistant Secretary who heads OSHA (the "Assistant Secretary") then becomes responsible for investigating and determining whether a violation has occurred.
After providing notice to both the party against which the complaint was filed and the federal agency charged with administering the program that is the subject of the complaint,2 the Assistant Secretary determines whether a violation occurred. If the Assistant Secretary determines that there has been no violation, notice of that determination is filed with the Chief Administrative Law Judge (ALJ) in the DOL and copies are sent to the complainant and the respondent. On the other hand, if the Assistant Secretary finds that a violation occurred, an order is issued to abate the violation. In either event, the losing party may request a review of the Assistant Secretary's determination by an ALJ.
If no review is requested, the determination becomes the final order of the Secretary. If a review is requested, the ALJ conducts a de novo hearing at which the parties may present evidence and a record is kept. The Assistant Secretary may or may not choose to participate as a party or as amicus curie.
Following that hearing, the ALJ may find no violation and dismiss the case; or, alternatively, may find a violation and issue an order requiring the respondent to abate the violation.
As already noted, the Act provides that abatement may include but is "not limited to, the rehiring or reinstatement of the employee ... to his former position with compensation." However, in addition to employment related compensation, the Regulations purport to authorize an award of "compensatory damages." 29 C.F.R. § 24.7(c)(1). Neither the regulations nor the statute provide for the payment of penalties or fines to the United States.
The ALJ's decision becomes the final order of the Secretary unless a petition for review is filed with the DOL's Administrative Review Board (ARB) which may adopt or reject the decision. The ARB's decision, then, becomes the final order of the Secretary and the administrative phase of the process, mercifully, ends there.
However, the Secretary's order is subject to review by the District Court if the Secretary brings an enforcement action; or, if an aggrieved party appeals. See 42 U.S.C. § 6971(b).
Each of the four proceedings at issue was initiated by a complaint filed by the complainant's attorney. The complaint in Migliore I, the only complaint that has been presented to this Court, appears to be typical and is similar in form to a complaint that would be filed in a lawsuit. It identifies DEM as the "respondent," contains numbered factual allegations, citations to the statutes allegedly violated and a prayer for relief that includes demands for corrective action regarding the terms and conditions of Migliore's employment; "compensatory damages for mental anguish, pain, and suffering;" attorney fees and "all other relief to which Ms. Migliore may be entitled."
The Assistant Secretary determined that no violation had occurred and Migliore sought review by an ALJ. The ALJ presided over an evidentiary hearing that lasted for twenty-three days. Migliore and DEM were the only parties to that proceeding and they presented all of the evidence. After the hearing, the ALJ issued a lengthy decision awarding Migliore approximately $843,000 that, in addition to front pay, back pay, attorneys' fees and costs, included $400,000 in compensatory damages for emotional distress and damage to professional reputation.3
The other cases have not progressed as far through the administrative process. In Migliore II, the Assistant Secretary awarded $10,000 in damages, attorneys' fees and costs; and, in Raddatz's case, the Assistant Secretary investigated but found no violation. Appeals in both cases are pending before an ALJ. Taylor's case is still under investigation by the Assistant Secretary.
The State seeks to enjoin any further proceedings in these four cases on the ground that they are barred by the Eleventh Amendment and the doctrine of sovereign immunity.
In deciding whether a preliminary injunction is warranted, a district court must weigh four factors: (1) the likelihood that the movant, ultimately, will succeed on the merits; (2) the potential that the movant will be irreparably harmed if the injunction is not issued; (3) the hardship that would be imposed on the non-movant if the injunction does issue; and (4) the effect on the public interest of a grant or denial of the injunction. Denovellis v. Shalala, 135 F.3d 58, 62 (1st Cir.1998); Gately v. Massachusetts, 2 F.3d 1221, 1224 (1st Cir.1993). In assessing the second and third factors, the Court's task is to "balance the equities" by determining whether the potential for irreparable harm to the movant outweighs the potential hardship that would be imposed on the non-movant.
The doctrine of sovereign immunity, when applicable, protects a state from being sued without its consent. Generally, it bars suits by private individuals against a state unless the state expressly waives its immunity; or, unless the immunity is validly abrogated by Congress.4 Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2258, 144 L.Ed.2d 636 (1999); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996).
However, under our federal system, sovereign...
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State v. United States
... 115 F. Supp. 2d 269 ... STATE OF RHODE ISLAND, RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Plaintiff ... UNITED STATES OF ... ...