          Waiver of Sovereign Immunity With Respect to
         Whistleblower Provisions of Environmental Statutes
The federal government’s sovereign immunity has been waived with respect to the whistleblower
  provisions of the Solid Waste Disposal Act and the Clean Air Act, but not with respect to the
  whistleblower provision of the Clean Water Act.

                                                                          September 23, 2005

                          LETTER OPINION FOR THE SOLICITOR
                               DEPARTMENT OF LABOR

   This letter will confirm the conclusions of our Office that the federal govern-
ment’s sovereign immunity has been waived with respect to the whistleblower
provisions of the Solid Waste Disposal Act (“SWDA”), 42 U.S.C. § 6971 (2000),
and the Clean Air Act (“CAA”), 42 U.S.C. § 7622 (2000), but not with respect to
the whistleblower provision of the Water Pollution Prevention and Control Act
(commonly known as the Clean Water Act (“CWA”)), 33 U.S.C. § 1367 (2000).
These questions arose in May 2004 in the context of an interagency dispute within
the Executive Branch concerning the application of these statutes. See Exec. Order
No. 12146, § 1-401, 3 C.F.R. 409, 411 (1979 Comp.), reprinted in 28 U.S.C. § 509
note (2000); 28 C.F.R. § 0.25(a) (2004).

                                              I.

    The SWDA and the CWA prohibit, inter alia, discrimination against an employee
who “has filed, instituted, or caused to be filed or instituted any proceeding under
this chapter.” SWDA, 42 U.S.C. § 6971(a); CWA, 33 U.S.C. § 1367(a). The CAA
similarly prohibits, inter alia, discrimination against an employee who has “com-
menced, caused to be commenced, or is about to commence or cause to be com-
menced a proceeding under this chapter” or who has “assisted or participated in or is
about to assist or participate in any manner in such a proceeding or in any other
action.” 42 U.S.C. § 7622(a). The Secretary of Labor is authorized to resolve these
whistleblower claims, with limited review available in federal court. See SWDA, 42
U.S.C. § 6971(b); CWA, 33 U.S.C. § 1367(b); CAA, 42 U.S.C. § 7622(c).
    The relevant provision in the SWDA provides:

       No person shall fire, or in any other way discriminate against, or
       cause to be fired or discriminated against, any employee or any au-
       thorized representative of employees by reason of the fact that such
       employee or representative has filed, instituted, or caused to be filed
       or instituted any proceeding under this chapter or under any applica-
       ble implementation plan, or has testified or is about to testify in any




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      proceeding resulting from the administration or enforcement of the
      provisions of this chapter or of any applicable implementation plan.

42 U.S.C. § 6971(a). An aggrieved employee may file a complaint against “any
person,” id. § 6971(b), which the SWDA defines as “an individual, trust, firm,
joint stock company, corporation (including a government corporation), partner-
ship, association, State, municipality, commission, political subdivision of a State,
or any interstate body and shall include each department, agency, and instrumen-
tality of the United States,” id. § 6903(15) (2000).
    The relevant provision in the CAA provides:

      No employer may discharge any employee or otherwise discriminate
      against any employee with respect to his compensation, terms, con-
      ditions, or privileges of employment because the employee (or any
      person acting pursuant to a request of the employee)—

          (1) commenced, caused to be commenced, or is about to com-
          mence or cause to be commenced a proceeding under this chapter
          or a proceeding for the administration or enforcement of any re-
          quirement imposed under this chapter or under any applicable
          implementation plan,

          (2) testified or is about to testify in any such proceeding, or

          (3) assisted or participated or is about to assist or participate in
          any manner in such a proceeding or in any other action to carry
          out the purposes of this chapter.

42 U.S.C. § 7622(a). The CAA does not define the term “employer” but permits
aggrieved employees to file a complaint against “any person,” id. § 7622(b)(1),
which the CAA defines as “an individual, corporation, partnership, association,
State, municipality, political subdivision of a State, and any agency, department,
or instrumentality of the United States and any officer, agent, or employee
thereof,” id. § 7602(e) (2000).
   The relevant provision in the CWA provides:

      No person shall fire, or in any other way discriminate against, or
      cause to be fired or discriminated against, any employee or any au-
      thorized representative of employees by reason of the fact that such
      employee or representative has filed, instituted, or caused to be filed
      or instituted any proceeding under this chapter, or has testified or is
      about to testify in any proceeding resulting from the administration
      or enforcement of the provisions of this chapter.




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        Waiver of Sovereign Immunity With Respect to Whistleblower Provisions


33 U.S.C. § 1367(a). An aggrieved employee may file a complaint against “any
person,” id. § 1367(b), which the CWA defines as “an individual, corporation,
partnership, association, State, municipality, commission, or political subdivision
of a State, or any interstate body,” id. § 1362(5) (2000).

                                         II.

   It is axiomatic that the government may not be sued without its consent. FDIC
v. Meyer, 510 U.S. 471, 475 (1994). Where Congress chooses to waive that
immunity, its intent “must be unequivocally expressed in statutory text.” Lane v.
Pena, 518 U.S. 187, 192 (1996). Waivers of immunity, furthermore, “must be
construed strictly in favor of the sovereign and not enlarged beyond what the
language requires.” Dep’t of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal
quotation marks, citations, and alterations omitted); see also Lane, 518 U.S. at 192
(noting that “a waiver of the Government’s sovereign immunity will be strictly
construed, in terms of its scope, in favor of the sovereign”). These principles
governing waivers of sovereign immunity apply not just in cases pending before
Article III courts, but also in adjudications before agencies and non-Article III
courts, because it is Congress, not the Executive Branch, that determines the scope
of such waivers. See, e.g., Ardestani v. INS, 502 U.S. 129, 137 (1991) (holding
that sovereign immunity barred fee award to prevailing party in INS proceeding);
United States v. Nordic Village, 503 U.S. 30, 34 (1992) (holding sovereign
immunity presumptions apply in bankruptcy court proceedings); Foreman v. Dep’t
of Army, 241 F.3d 1349, 1352 (Fed. Cir. 2001) (applying sovereign immunity
principles in holding that the Merit System Protection Board lacks authority to
impose monetary damages).

                                         A.

   The SWDA permits whistleblower claims against any “person,” 42 U.S.C.
§ 6971(b), which is elsewhere defined to include “each department, agency, and
instrumentality of the United States,” id. § 6903(15). This express language
satisfies the stringent test for waiver of immunity. In Department of Energy, for
example, the Supreme Court held that statutory language in the CWA (not at issue
here) authorizing citizen suits against “‘any person (including . . . the United
States)’” sufficed to waive the government’s immunity from such suits. 503 U.S.
at 615 (quoting 33 U.S.C. § 1365(a)). Although the definition of “person” here is
found not in the whistleblower provision itself, but rather in a separate provision
defining various terms used in the SWDA, this cross-reference does not dull the
clarity of the waiver of immunity. Cf. Kimel v. Florida, 528 U.S. 62, 76 (2000)
(noting, in the similar context of congressional abrogation of state sovereign
immunity, that Supreme Court “cases have never required that Congress make its




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clear statement in a single section or in statutory provisions enacted at the same
time”).

                                                   B.

    The CAA prohibits whistleblower retaliation by any “employer,” 42 U.S.C.
§ 7622(a), which is not defined, and permits aggrieved employees to file a
complaint against any “person,” id. § 7622(b)(1), which is elsewhere defined to
include “any agency, department, or instrumentality of the United States and any
officer, agent, or employee thereof,” id. § 7602(e). Although the term “employer”
is not defined, the relevant provision in section 7622 authorizes whistleblower
suits against any “person,” and the federal government is expressly included in the
definition of “person.” In reviewing an assertion of tribal sovereign immunity
from a claim brought under the whistleblower provision of the Safe Drinking
Water Act, 42 U.S.C. § 300j-9 (2000)—which, like the CAA, separately prohibits
retaliation by “employer[s]” and permits suits against “person[s]”—the Tenth
Circuit similarly focused its analysis on the term “person”: “where Congress
grants an agency jurisdiction over all ‘persons,’ defines ‘persons’ to include
‘municipality,’ and in turn defines ‘municipality,’ to include ‘Indian Tribe[s],’ . . .
it has unequivocally waived tribal immunity.” Osage Tribal Council ex rel. Osage
Tribe of Indians v. Dep’t of Labor, 187 F.3d 1174, 1182 (10th Cir. 1999). The
definitional connection here is more direct, and by expressly including the “United
States” in the definition of “person,” Congress has waived the government’s
immunity from suit under the CAA’s whistleblower provision.

                                                   C.

   The CWA permits whistleblower claims against any “person,” 33 U.S.C.
§ 1367(a), which is elsewhere defined to include “an individual, corporation,
partnership, association, State, municipality, commission, or political subdivision
of a State, or any interstate body,” id. § 1362(5). The definition thus does not
include the United States, see Dep’t of Energy, 503 U.S. at 617–18 (noting that the
CWA does not “define[] ‘person’ to include the United States” and stating that an
“omission has to be seen as a pointed one when so many other governmental
entities are specified”), 1 and we therefore believe that section 1367 does not
abrogate the federal government’s sovereign immunity.


    1
      We do not read the term “interstate body” to refer unequivocally to the United States. The CWA
elsewhere defines “interstate agency” to mean “an agency of two or more States established by or
pursuant to an agreement or compact approved by the Congress, or any other agency of two or more
States, having substantial powers or duties pertaining to the control of pollution[.]” 33 U.S.C.
§ 1362(2). We think it likely that “interstate body” has a similar meaning, but for present purposes it is
sufficient to state that the term does not unequivocally include the federal government, which is the test
for waiver of sovereign immunity.




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        Waiver of Sovereign Immunity With Respect to Whistleblower Provisions


   We note, however, that a limited waiver of sovereign immunity is found in a
separate provision of the CWA addressing the discharge or runoff of pollutants at
certain federal facilities. See 33 U.S.C. § 1323(a). That section provides:

      Each department, agency, or instrumentality of the executive, legisla-
      tive, and judicial branches of the Federal Government (1) having ju-
      risdiction over any property or facility, or (2) engaged in any activity
      resulting, or which may result, in the discharge or runoff of pollut-
      ants . . . shall be subject to, and comply with, all Federal, State, inter-
      state, and local requirements, administrative authority, and process
      and sanctions respecting the control and abatement of water pollu-
      tion in the same manner, and to the same extent as any nongovern-
      mental entity including the payment of reasonable service charges.
      The preceding sentence shall apply (A) to any requirement whether
      substantive or procedural (including any recordkeeping or reporting
      requirement, any requirement respecting permits and any other re-
      quirement, whatsoever), (B) to the exercise of any Federal, State, or
      local administrative authority, and (C) to any process and sanction,
      whether enforced in Federal, State, or local courts or in any other
      manner.

Id. It might be argued that the whistleblower provision in section 1367 is a means
to enforce pollution control and is, therefore, a “requirement[] . . . respecting the
control and abatement of water pollution” for which sovereign immunity is
waived. Even accepting arguendo that that is a possible construction of the CWA,
it is certainly not the only one, and we believe that section 1323 does not unequiv-
ocally indicate a waiver of sovereign immunity with respect to section 1367 as
required by Supreme Court precedents.
    The phrase “requirements . . . respecting the control and abatement of water
pollution” is not defined in the CWA. Interpreting an earlier version of section
1323, the Supreme Court indicated a narrow reading of “requirement” to refer
“simply and solely to substantive standards, to effluent limitations and standards
and schedules of compliance.” EPA v. California, 426 U.S. 200, 215 (1976)
(internal quotation marks and citations omitted). Applying the canon that waivers
of sovereign immunity are to be narrowly construed, the Court in EPA held that
“requirement” did not include state permits or other procedural mechanisms
designed to ensure compliance with substantive pollution control standards. Id. at
213–27. As previous Labor Department decisions have pointed out, however,
Congress overruled the holding in EPA in 1977 by amending section 1323 to
waive sovereign immunity from, inter alia, “any requirement whether substantive
or procedural.” See Jenkins v. EPA, No. 92-CAA-6, 1994 WL 897221, at *3 (May
18) (“Congress amended the Federal facilities provision of the CWA . . . to
overrule EPA . . . and to clarify that the Federal Government was required to




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comply with State permit, reporting and other procedural requirements.”); Conley
v. McClellan Air Force Base, No. 84-WPC-1, 1993 WL 831968, at *4 (Sept. 7)
(same). Although there was no congressional discussion of the CWA’s whistle-
blower provision during the enactment of these amendments, the Labor Depart-
ment has read the history of section 1323 to “suggest[] that [Congress] also
intended all requirements of the [CWA] to apply” to federal facilities. Jenkins,
1994 WL 897221, at *3; see also Conley, 1993 WL 831968, at *4 (same).
    Numerous courts, however, have concluded that the 1977 amendments “did not
change the extent to which section [1323] waived immunity from state or local
control; it merely made it clear that where federal agencies are subject to state or
local regulation they must comply with state or local procedural as well as substan-
tive requirements.” United States v. Tenn. Water Quality Control Bd., 717 F.2d 992,
997 (6th Cir. 1983); cf. Parola v. Weinberger, 848 F.2d 956, 961 (9th Cir. 1988)
(finding that legislative reaction to EPA indicates that “requirement” also includes
“the procedural means by which [substantive environmental] standards are imple-
mented: including permit requirements, reporting and monitoring duties, and
submission to state inspections”). That is, Congress intended to overrule the specific
holding in EPA by authorizing state procedural enforcement mechanisms, but it did
not necessarily intend to expand the phrase “requirements . . . respecting the control
and abatement of water pollution” beyond “substantive standards” or “effluent
limitations.” According to these courts, “the ‘requirements’ referred to in the
CWA . . . relate only to pollution standards that a State might impose as part and
parcel of its environmental programs.” N.Y. State Dep’t of Envtl. Conservation v.
Dep’t of Energy, 772 F. Supp. 91, 97 (N.D.N.Y. 1991); see also New York v. United
States, 620 F. Supp. 374, 382 (E.D.N.Y. 1985) (“[T]o the degree the Supreme
Court’s ruling in [EPA] construed the substantive ‘requirements’ of [section 1323] to
mean effluent limitations, such ruling was unaffected by the 1977 amendments
enacted by Congress.”); Kelley v. United States, 618 F. Supp. 1103, 1108 (W.D.
Mich. 1985) (noting that “‘requirements’ language has generally been held to mean
‘relatively precise standards capable of uniform application’” and that section 1323
only waives sovereign immunity with respect to “objective, quantifiable standards
subject to uniform application”) (citations omitted). Indeed, the language that the
Supreme Court interpreted in EPA—“‘requirements respecting control and abate-
ment of pollution,’” 426 U.S. at 209 (quoting 33 U.S.C. § 1323 (Supp. IV 1970))—is
virtually identical to the current language in section 1323.
    Under this interpretation, it is difficult to see how section 1367—which estab-
lishes remedies for employer whistleblower retaliation—is a “requirement,” let
alone a “requirement[] . . . respecting the control and abatement of water pollu-
tion.” The CWA whistleblower provision is not a quantifiable restriction on
pollutants and there is substantial doubt whether it could even be viewed as a
means for ensuring compliance with such requirements. This doubt is fatal to a
finding of a waiver of sovereign immunity, for the Supreme Court has held that
where there are two plausible interpretations of a provision, with only one waiving



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           Waiver of Sovereign Immunity With Respect to Whistleblower Provisions


sovereign immunity, such provision does not unequivocally indicate a waiver of
sovereign immunity. See Nordic Village, 503 U.S. at 36–37 (that there are
“plausible” alternative readings of a provision that would not waive sovereign
immunity “is enough to establish that a reading imposing monetary liability on the
Government is not ‘unambiguous’ and therefore should not be adopted”). 2
Considering that section 1367—the whistleblower provision itself—does not
identify the federal government as an entity subject to suit, and considering that
the term “requirement” has been narrowly construed by several courts notwith-
standing the 1977 amendments, we do not believe that section 1323’s reference to
“requirements . . . respecting the control and abatement of water pollution” waives
the federal government’s sovereign immunity from whistleblower claims under
section 1367.
    Nor do we believe that other undefined language in section 1323—subjecting
federal facilities to “administrative authority” and “process and sanctions”—
waives the government’s sovereign immunity from whistleblower claims under
section 1367. First, “administrative authority” would seem to refer to governmen-
tal entities charged with regulating water pollution, and perhaps to any fines or
penalties that they might be authorized to impose. Cf. United States v. Tenn. Air
Pollution Control Bd., 185 F.3d 529, 532 (6th Cir. 1999) (holding that civil
penalty assessed by a state administrative agency was an “administrative remedy
or sanction” within the meaning of the CAA’s citizen suit provision). Section
1367—which creates a cause of action, not a regulatory regime—does not
naturally, and certainly not unequivocally, fall within the meaning of “administra-
tive authority.” Second, the Supreme Court, in narrowly reading “sanction” to
mean only “coercive” fines, reasoned that Congress’s conjunction of the terms
“process” and “sanctions” was likely meant to refer to “the procedure and
mechanics of adjudication and the enforcement of decrees or orders that the
adjudicatory process finally provides” or “forward-looking orders . . . characteris-
tically given teeth by equity’s traditional coercive sanctions for contempt.” Dep’t
of Energy, 503 U.S. at 623. A whistleblower claim is not an order or remedy
designed to abate water pollution; it is a freestanding claim designed to provide
employment rights and remedies independent of the substantive requirements of
the CWA. But even if there were a broader gloss of “process and sanctions” than
that indicated by the Supreme Court, it cannot be maintained that the phrase
unequivocally includes whistleblower claims under section 1367. For these

    2
      In Department of Energy, for example, the Supreme Court narrowly read the term “sanction” in
section 1323 to include “coercive” but not “punitive” fines. 503 U.S. at 627. Although the Court
conceded that the “meaning of ‘sanction’ is spacious enough to cover not only what we have called
punitive fines, but coercive ones as well,” it determined that the use of the term in section 1323 “carries
no necessary implication that a reference to punitive fines is intended.” Id. at 621. Because Congress
did not make express any intent to subject federal facilities to punitive fines, the Supreme Court
determined that the “rule of narrow construction therefore takes the waiver no further than the coercive
variety.” Id. at 627.




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                Opinions of the Office of Legal Counsel in Volume 29


reasons, we do not read section 1323 to waive the government’s sovereign
immunity from suit under the CWA’s whistleblower provision.

                                        III.

   In sum, it is our conclusion that the government’s sovereign immunity has been
waived by the whistleblower provisions of the SWDA, 42 U.S.C. § 6971, and the
CAA, id. § 7622, but not with respect to the whistleblower provision of the CWA,
33 U.S.C. § 1367.

                                            STEVEN G. BRADBURY
                                         Acting Assistant Attorney General
                                              Office of Legal Counsel




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