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It has taken almost five years, but a preliminary investigation of a whistleblower complaint filed in 1999 against the state Department of Environmental Protection by Anne Rapkin, its former chief counsel, has finally received a green light to get underway, thanks to the 2nd U.S. Circuit Court of Appeals. The circuit court’s ruling in State of Connecticut DEP v. OSHA, decided Jan. 22, lifted a District Court injunction that blocked the investigation on the basis of state sovereign immunity. The 2nd Circuit’s decision narrowed the reach of a “states’ rights” defense pursuant to the 11th Amendment of the U.S. Constitution, according to attorney Erin Boggs, interim legal director of the Connecticut Civil Liberties Union. Rapkin claims the DEP hierarchy stripped her of most of her duties and criticized her unfairly, when she was the agency’s top in-house lawyer, because she had spoken out on “matters of public health and environmental protection.” She filed a letter-complaint with the assistant secretary of the Occupational Safety and Health Administration, which is the federal agency given the responsibility to investigate whistleblower claims under federal environmental laws. The assistant secretary of OSHA is required by statute to determine whether a violation has occurred. A finding may be appealed to the administrative review board and then to the courts. From the outset, the DEP refused to turn over any documents or cooperate with OSHA’s preliminary investigation. Instead, the state agency asked OSHA to dismiss the complaint on the basis of state sovereign immunity. OSHA, however, maintained its right to enforce federal law, according to briefs filed by the government. Carla R. Walworth, of Paul, Hastings, Janofsky & Walker’s Stamford office, who represented the DEP on appeal, declined to comment on the ruling last week. Initially, a federal judge agreed with the DEP that the 11th Amendment, which protects states from suits by private citizens, applied to Rapkin’s complaint to OSHA. According to the court, the letter-complaint itself was a “suit” that triggered 11th Amendment state sovereign immunity. In 2001, U.S. District Judge Gerard L. Goettel enjoined OSHA from adjudicating or even conducting an informal investigation of Rapkin’s complaint. ‘WALKS, TALKS AND SQUAWKS’ TEST With the investigation stymied from its inception, OSHA appealed to the 2nd Circuit. The appeal was stayed pending the U.S. Supreme Court’s decision in South Carolina State Ports Authority v. Federal Maritime Commission, which the high court handed down in May 2002. That ruling held that state sovereign immunity barred a federal agency from adjudicating a private party’s complaint against a non-consenting state. The Supreme Court concluded that, if an administrative proceeding “walks, talks, and squawks” like a lawsuit, then sovereign immunity principles apply. Based on the Ports decision, OSHA dropped its objection to the injunction against its adjudication of Rapkin’s complaint. But OSHA argued to the 2nd Circuit that the injunction went too far in also enjoining any investigation of the state agency. Prior to the administrative law judge [ALJ] stage, OSHA asserted in its brief, the proceedings were merely investigative. The appeals court agreed, stating, in the opinion authored by Judge Robert D. Sack, that OSHA’s administrative investigation didn’t pass the “walks, talks and squawks” test. Rapkin’s complaint wasn’t a “suit” within the meaning of the 11th Amendment, it said. During an investigation, OSHA is permitted by statute to enter work sites, inspect records, question employees and require the production of evidence. Contrasting the adjudicatory proceeding described in Ports, Sack noted that the investigation doesn’t involve formal trial procedures before a neutral trier of fact. The federal agency, not the private complainant, directs the inquiry. The parties don’t present their cases or engage in discovery. The state agency doesn’t even have to participate, and has the right to void an unfavorable finding by the assistant secretary by requesting a trial de novo before an ALJ. Sack acknowledged in the decision the DEP’s assertion that the very process of an investigation by OSHA on behalf of Rapkin would be adversarial, and could ultimately lead to an order by the assistant secretary without the complaint ever reaching the adjudicatory stage before an ALJ. But the court labeled such consequences as “collateral” — insufficient to make the investigation into a trial-like proceeding that “walks, talks, and squawks” like civil litigation. “Principles of sovereign immunity … do not immunize a state from being held accountable to the federal government for violations of federal law,” Alisa B. Klein, the U.S. Department of Justice attorney representing OSHA, wrote in her brief to the 2nd Circuit. Echoing that view, Boggs, of the CCLU, which has been following Rapkin’s case for its 11th Amendment implications, applauded Sack’s decision to allow the OSHA investigation to proceed. “Recognizing OSHA’s right to investigate and intervene in whistleblower suits has preserved workers’ rights and civil rights,” said Boggs, speaking on the CCLU’s behalf.

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