                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0121n.06
                                                                                         FILED
                                          No. 10-3667
                                                                                    Feb 01, 2012
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


KAREN YAGLEY,                                           )
                                                        )        ON APPEAL FROM THE
       Petitioner-Appellant,                            )        UNITED      STATES
                                                        )        DEPARTMENT OF LABOR
v.                                                      )        ADMINISTRATIVE REVIEW
                                                        )        BOARD
OCCUPATIONAL SAFETY & HEALTH                            )
ADMINISTRATION, UNITED STATES                           )
DEPARTMENT OF LABOR,                                    )                          OPINION
                                                        )
       Respondent-Appellee.                             )




BEFORE:        SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.

       PER CURIAM.         Karen Yagley, a pro se Michigan resident, appeals a decision by the

United States Department of Labor’s Administrative Review Board (“the Board”). She alleges

retaliation in violation of the whistleblower provisions of the Toxic Substances Control Act

(“TSCA”), 15 U.S.C.§ 2622; Federal Water Pollution Control Act (“FWPCA”), 33 U.S.C. § 1367;

and the Clean Air Act (“CAA”), 42 U.S.C. § 7622. The Board denied her petition, finding that her

complaint named only a state agency as a respondent and thus state sovereign immunity barred suit.

Because Yagley has failed to raise the issue on which the Board’s decision rests—state sovereign

immunity—we find her claims forfeited and DENY the petition.

                                    I. BACKGROUND
No. 10-3667
Yagley v. OSHA

       Karen Yagley worked as a registered nurse at the Hawthorn Center of Northville, Michigan

(“Hawthorn”). Hawthorn is an agency of the Michigan Department of Community Health that

provides psychiatric services to children and adolescents. In 2001, Hawthorn began renovating the

wing of the facility where Yagley worked. The renovations created dust. On April 9, 2001, Yagley

filed a complaint with the Michigan Occupational Safety and Health Administration, alleging that

the dust and byproducts of the renovation were creating hazardous workplace conditions. In

November 2004, Yagley filed two more complaints regarding the workplace conditions at Hawthorn:

one with the Environmental Protection Agency, and the other with the Joint Commission on

Accreditation of Hospital Organizations.

       On April 12, 2002, Yagley filed a claim for long-term disability benefits. Under the policy,

Yagley was entitled to twenty-four months of benefits. She began receiving the benefits in July

2002. In June 2003, her disability benefits were discontinued due to an eligibility dispute. Yagley

challenged the ineligibility determination, and her benefits were reinstated effective November 12,

2003. Her benefits continued to be paid through March 1, 2005, for a total of twenty-five and

one-half months of coverage. Yagley was subsequently notified that the extra payments were due

to a miscalculation of the benefits period and that the plan administrator would not seek repayment.

       On March 25, 2005, Yagley filed a whistleblower complaint with the Occupational Safety

and Health Administration (“OSHA”), complaining that her disability benefits had been terminated

by Hawthorn in retaliation for her complaints regarding workplace conditions (“Yagley I”). Yagley

alleged that Hawthorn’s actions violated the whistleblower protection provisions of the CAA and

TSCA. OSHA investigated Yagley’s complaint and found “no reasonable cause to believe that

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Yagley v. OSHA

[Hawthorn] violated [her] rights under TSCA or CAA.” OSHA concluded that the termination was

in accordance with the benefits plan and not a result of any improper action by Hawthorn.

       Yagley objected to OSHA’s findings and requested a hearing before an administrative law

judge (“ALJ”). Before the hearing commenced, the ALJ granted Hawthorn’s motion for a summary

decision. The ALJ found that because Hawthorne Center is a facility owned and operated by the

Michigan Department of Health, it was protected by state sovereign immunity under the Eleventh

Amendment. Specifically, the ALJ found that Congress did not expressly abrogate state sovereign

immunity under 42 U.S.C. § 7622 of the CAA or 15 U.S.C. § 2622 of the TCSA and that the state

of Michigan had not waived its sovereign immunity. The ALJ recommended dismissal of the

complaint. Yagley v. Hawthorne Ctr., No. 2005-TSC-0003, ALJ’s Decision and Recommended

Order (Dep’t of Labor Dec. 30, 2005).

       Yagley appealed the ALJ’s decision to the Board.           The Board affirmed the ALJ’s

recommended dismissal on sovereign immunity grounds. Yagley v. Hawthorn Ctr., No. 06-042,

2008 WL 2265205 (Dep’t of Labor May 29, 2008). Yagley appealed the Board’s decision to this

court but voluntarily moved to dismiss her appeal after briefing. Her motion to dismiss was granted.

Yagley v. OSHA, No. 08-3922 (6th Cir. June 29, 2009).

       On July 25, 2008, Karen Yagley and her husband, Christopher Yagley, filed a new

whistleblower complaint with OSHA, alleging continued retaliation, discrimination, and harassment

in violation of the whistleblower provisions of the CAA, FWPCA, and TSCA. On November 6,

2008, OSHA dismissed the complaint on the grounds that it was a reiteration of the complaint that

Karen had filed in 2005.

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       The Yagleys appealed the dismissal of the OSHA complaint to an ALJ. On January 26, 2009,

the ALJ concluded that the Board’s decision in Yagley I was controlling and dismissed the

complaint. On January 30, 2009, the ALJ reopened the case to address a number of documents that

had been faxed by the Yagleys prior to the ALJ’s decision but after the briefing deadline had passed.

One of the documents was a motion to amend the complaint to include non-government respondents.

Despite the untimeliness of the filings, the ALJ reopened the case for the limited purpose of

reviewing whether the July 2008 complaint included charges of whistleblower retaliation against

non-governmental entities. The ALJ directed OSHA to file with the court a copy of that complaint.

Yagley v. Hawthorn Ctr., No. 2009-CAA-00002, Order Reopening Complaint (Dep’t of Labor

January 30, 2009).

       On February 5, 2009, the ALJ issued a new decision. Upon review of the July 2008

complaint, the ALJ found that it did not name a particular respondent but alleged a charge of

“continued retaliation, discrimination and/or harassment.” Thus, the ALJ concluded that the

complaint could only be construed as being filed against the only respondent in Yagley

I—Hawthorn—and reaffirmed its January 26 decision dismissing the complaint on the basis of

Yagley I. The ALJ noted that the Yagleys had adequate time to request amending their complaint

before the briefing deadline expired on January 16, 2009, and then denied as untimely the Yagleys’

motion to add more respondents. Yagley v. Hawthorn Ctr., No. 2009-CAA-00002, ALJ Decision

and Order (Dep’t of Labor February 5, 2009).

       The Yagleys appealed the ALJ’s decision to the Board. The Board directed that a list of the

respondents, with their addresses and proof of service, be filed with the Board no later than August

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Yagley v. OSHA

28, 2009. The Yagleys filed motions with the Board seeking to refer the matter to a settlement judge,

attempting to clarify the Board’s order requiring the identification of the respondents, and requesting

a two-month extension to comply with the order. Yagley v. Hawthorn Ctr., No. 09-061, Order

Requiring Petitioners to Identify Respondents (Dep’t of Labor August 7, 2009). The Board denied

the motions on September 11, 2009.

         On December 4, 2009, the Board issued a show-cause order as to why the claim should not

be dismissed for failure to file a brief. Yagley v. Hawthorn Ctr., No. 09-061, Order to Show Cause

(Dep’t of Labor Dec. 4, 2009). Karen Yagley responded that her illness had caused the delay and

sought further time to file her opening brief. On February 1, 2010, the Board denied the motion and

issued an amended briefing schedule allowing the Yagleys to file a reply brief should a response

brief be filed. The Yagleys submitted a response to the Board’s order on March 31, 2010, which

alleged further harassment from Hawthorn and made other allegations against the State of Michigan,

OSHA, and the ALJ. The brief did not address the issue of sovereign immunity. On April 30, 2010,

the Board issued its final decision, finding that the Yagleys’ July 2008 complaint could not

reasonably be construed as naming any respondent other than Hawthorn, the ALJ properly dismissed

their attempt to amend the complaint to name more respondents, and suit was barred by the Eleventh

Amendment. Yagley v. Hawthorn Ctr., No. 09-061, 2010 WL 1776981 (Dep’t of Labor April 30,

2010).

         In their timely appeal, the Yagleys argue that Karen Yagley has been denied whistleblower

protections and that her complaints of retaliation, harassment, and labor law violations have never

been investigated. They assert that unidentified rules and procedures of the Department of Labor

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Yagley v. OSHA

have been violated. The Yagleys have also filed two additional motions: (1) a motion for

clarification that recites grievances concerning the agency proceedings and (2) a motion to amend

their brief that requests Christopher Yagley be removed from the appeal and recites further

grievances concerning the handling of Karen Yagley’s whistleblower complaints.

                                        II. DISCUSSION

A. Standards of Review

       Judicial review of an agency’s final decision is governed by the standards set out in the

Administrative Procedure Act, 5 U.S.C. § 701 et seq. See 15 U.S.C. § 2622(c)(1); 42 U.S.C. §

7622(c)(1). The court must set aside the Board’s findings that are unsupported by substantial

evidence or are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A), (E). Though the court gives deference to an agency’s interpretation of

the statute it administers, see Am. Nuclear Res., Inc., 134 F.3d 1292, 1294 (6th Cir. 1998) (citing

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)), sovereign immunity

is a jurisdictional question that is reviewed de novo. See, e.g., Timmer v. Mich. Dep’t of Commerce,

104 F.3d 833, 836 (6th Cir. 1997) (state sovereign immunity is a question of law that is reviewed

de novo); Layton v. Merritt Sys. Prot. Bd., 392 F. App’x 875, 878 (Fed. Cir. 2010) (whether agency

had jurisdiction is reviewed de novo). “Factual findings underlying the Board’s jurisdictional

conclusions, however, are entitled to deference unless unsupported by substantial evidence.” Layton,

392 F. App’x at 878–79.

B. Analysis



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Yagley v. OSHA

       As an initial matter, we grant the request to remove Christopher Yagley from this appeal and

consider the petition only as it relates to Karen Yagley.

       It is well established in this court that any claims not raised on appeal are considered

abandoned and thus not reviewable. E.g., Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004);

Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991). The Board’s decision being appealed

here decided two issues: (1) that Hawthorn is the only respondent in this matter and (2) suit against

Hawthorn is barred by state sovereign immunity. Petitioner has failed to argue either issue in her

opening brief. She mentions in her reply brief that “a State does not have the rights to sovereign

immunity in all cases,” but this court has consistently held that it will not consider arguments made

for the first time in a reply brief. E.g., Am. Trim, LLC v. Oracle Corp., 383 F.3d 462, 477 (6th Cir.

2004). Further, “an issue is deemed forfeited on appeal if it is merely mentioned and not developed.”

Vance v. Wade, 546 F.3d 774, 781 (6th Cir. 2008).

       Of course, pro se litigants are to be afforded liberal construction of their pleadings and

filings. Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999). And, this court recognizes exceptions

to the general rule that issues cannot be raised for the first time in a reply brief: where doing so

would “result in a plain miscarriage of justice,” Am. Trim, 383 F.3d at 477; where “the issue raised

is purely one of law requiring no new or amplified factual determination,” Logan v. Denny’s Inc.,

259 F.3d 558, 570 n.6 (6th Cir. 2001) (internal quotations and alterations omitted); or where an

appellee raises an argument not addressed by the appellant in its opening brief, Holloway v. Brush,

220 F.3d 767, 773–74 (6th Cir. 2000) (en banc).



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       While Petitioner here meets the latter two exceptions, her claims are forfeited because she

has failed, during the entire course of this protracted litigation, to develop any argument on the key

issue of state sovereign immunity. See Vance, 546 F.3d at 781. Petitioner has been on notice since

December 30, 2005, when Yagley I was first dismissed, that sovereign immunity was the hurdle she

needed to clear in order to sue Hawthorn. Yet, since that initial decision, Petitioner has failed to

either timely cure her defective complaints (neglecting to name any respondent in the second

complaint) or develop an argument on sovereign immunity. Even considering her pro se status,

Petitioner has been given as much leeway as she is entitled. Further, we do not believe a miscarriage

of justice is a concern here, where OSHA investigated Petitioner’s retaliation claim and concluded

it was without merit.

                                       III. CONCLUSION

       For the reasons above, we DENY Petitioner’s claims as forfeited, DENY the motion for

clarification as moot, and DENY the motion to amend the brief beyond the limited request to remove

Christopher Yagley from the appeal.




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