United States Court of Appeals

For the First Circuit

No. 05-1153

JOAN TAYLOR,

Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

STATE OF RHODE ISLAND;

RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT,

Intervenors.

No. 05-1154

BEVERLY M. MIGLIORE,

Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

STATE OF RHODE ISLAND;

RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT,

Intervenors.

ON PETITION FOR REVIEW OF AN ORDER OF THE ADMINISTRATIVE

REVIEW BOARD OF THE UNITED STATES DEPARTMENT OF LABOR

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Howard, Circuit Judge.

Richard E. Condit, General Counsel, Public Employees for

Environmental Responsibility, was on brief, for petitioners.

Joan Brenner, Attorney, United States Department of Labor,
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Office of the Solicitor, with whom Howard M. Radzely, Solicitor of

Labor, Steven J. Mandel, Associate Solicitor, and Ellen r.

Edmond, Senior Attorney, were on brief, for respondents.

Deborah A. George, Senior Legal Counsel, with whom James R.

Lee, Assistant Attorney General, were on brief, for intervenors.

December 12, 2005
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TORRUELLA, Circuit Judge. This petition for review is

the latest chapter in a long-running dispute between Joan Taylor

("Taylor") and Beverly M. Migliore ("Migliore") (collectively

"appellants") on the one hand, and the State of Rhode Island

("State") and the Rhode Island Department of Environmental

Management ("RIDEM") on the other. We last encountered this case

in 2002, when appellants sought review of a district court order

that prevented the United States Department of Labor ("Department

of Labor") from adjudicating their complaints that they had been

fired in retaliation for reporting potential violations of the

Solid Waste Disposal Act ("SWDA"), 42 U.S.C. §§ 6901-6992k. See

Rhode Island Dep't of Envtl. Mgmt. v. United States (RIDEM v.

United States), 304 F.3d 31 (1st Cir. 2002).

In that case, we upheld the district court's order but

modified it in that we allowed the Department of Labor to act where

the Assistant Secretary for Occupational Safety and Health

("Assistant Secretary") intervened in the proceedings to remove any

sovereign immunity bar. Following our decision, the Assistant

Secretary attempted to intervene in one suit brought by Migliore

but declined to intervene in other suits by the appellants against

the State and RIDEM. In this petition, appellants contest this

decision not to intervene and argue that regardless of the

Assistant Secretary's inaction, they should be allowed to pursue

their suits because the State has waived its sovereign immunity
 For a full discussion of the administrative scheme established 1

by the SWDA, see RIDEM, 304 F.3d at 37-38.

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through other means. We disagree, and after careful consideration,

we deny the petition for review and affirm the decision of the

Administrative Review Board ("ARB") of the Department of Labor.

I. Background

This case has a complicated history. In 1988, Migliore,

an employee of RIDEM, filed with the Assistant Secretary three

complaints against RIDEM, alleging that the state agency had

violated the whistleblower provisions of the SWDA. In particular,

Migliore claimed that RIDEM violated the SWDA by retaliating

against her for reporting what she believed to be RIDEM's failure

to implement properly the SWDA. After an investigation, however,

the Assistant Secretary determined that the state agency had not

violated the SWDA. Migliore objected to the Assistant Secretary's

findings and, as was her right, requested a hearing before an

administrative law judge ("ALJ") at the Department of Labor. On 1

August 13, 1999, following a lengthy hearing, the ALJ to whom the

case had been assigned issued a recommended decision awarding

Migliore both equitable relief and damages (Migliore I). RIDEM

then appealed the ALJ's decision to the ARB.

On August 31, 1999, Migliore filed another complaint with

the Assistant Secretary (Migliore II) alleging that RIDEM had

retaliated against her for pursuing her initial complaint. After
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investigating, the Assistant Secretary found that RIDEM had indeed

violated the whistleblower provisions of the SWDA by, among other

things, issuing a statement to the media that attacked Migliore's

credibility personally and went "beyond mere disagreement" with the

ALJ's findings in Migliore I. The order accompanying the Assistant

Secretary's determination awarded Migliore $10,000 in damages.

RIDEM objected to the Assistant Secretary's findings and order in

Migliore II and requested an ALJ hearing to appeal these matters.

In its hearing request letter, RIDEM did not invoke a defense of

sovereign immunity.

Also following the ALJ's decision in Migliore I, two of

Migliore's co-workers, Taylor and Barbara Raddatz ("Raddatz"),

filed whistleblower complaints with the Assistant Secretary

alleging retaliation by RIDEM for their participation in Migliore

I. After the Assistant Secretary quickly issued his determination

that Raddatz's complaint lacked merit, Raddatz requested an ALJ

hearing. During this period, the Assistant Secretary continued to

investigate Taylor's complaint.

On February 21, 2000, while Migliore I was pending before

the ARB and the Migliore II and Raddatz cases were pending before

an ALJ, and while Taylor's complaint was being investigated by the

Assistant Secretary, the State and RIDEM sought injunctive relief

in federal district court. Alleging a violation of its sovereign

immunity, the State sought to enjoin the Department of Labor from
 This Court's reference to "the Secretary of Labor" includes not 2

only the Secretary of Labor herself, but also those working under

her, such as the Assistant Secretary.

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further investigation and adjudication of the complaints of

Migliore, Raddatz, and Taylor. On September 29, 2000, the district

court enjoined the Department of Labor's adjudication of the

complaints but declined to enjoin the Assistant Secretary's

investigation of Taylor's complaint. See Rhode Island v. United

States, 115 F. Supp. 2d 269, 279 (D.R.I. 2000). Shortly after this

decision was handed down, the Assistant Secretary, in November

2000, issued a determination in Taylor's favor finding that her

allegations had merit. He also ordered RIDEM to pay to Taylor

$7,170 to reimburse her for her legal fees. RIDEM objected to the

Assistant Secretary's findings and order and requested a hearing

before an ALJ.

The appellants, along with Raddatz, then appealed the

order of the district court. In 2002, this Court upheld the

district court's order but modified it in one important respect.

See RIDEM, 304 F.3d at 53-54. We held that the Secretary of Labor

was not prohibited "from intervening in the enjoined proceedings

and removing the sovereign immunity bar." Id. Distinguishing 2

cases that are barred by sovereign immunity, i.e., those pursued by

private parties in federal courts or administrative tribunals

against states, from cases that are not barred, i.e., those brought

against states by federal administrative agencies to enforce
 Recall that this case was already before the ARB at this point. 3

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federal laws, we concluded that intervention by the Secretary in

the enjoined cases would remove the sovereign immunity bar. See

id. at 39, 53-54 (quoting from the district court's discussion of

Alden v. Maine, 527 U.S. 706 (1999)).

On August 8, 2003, the Assistant Secretary filed a motion

to intervene in Migliore I. Rhode Island objected, contending 3

that intervention would violate the district court's 2000

injunction, as modified by this Court's 2002 decision in RIDEM.

Rhode Island therefore returned to district court seeking to enjoin

the Assistant Secretary from intervening. On January 29, 2004, the

district court granted Rhode Island's motion, ruling that the

Assistant Secretary could not intervene in Migliore I, because

Rhode Island's sovereign immunity is violated if intervention

occurs at the time the case is before the ARB. Any intervention,

stated the district court, had to occur "at or before the ALJ

stage." See Rhode Island v. United States, 301 F. Supp. 2d 151,

156 (D.R.I. 2004). Since the Assistant Secretary could not

intervene, the sovereign immunity bar was upheld, and the ARB was

compelled to dismiss the case on April 30, 2004.

On May 13, 2004, the Secretary of Labor advised the

appellants that she would not intervene in their suits against the

State and RIDEM (Taylor and Migliore II). As a result, the ALJ

dismissed, on sovereign immunity grounds, Migliore's complaint on
 The Secretary of Labor also advised Raddatz at this time that 4

she would not intervene in her suit against the State and RIDEM.

As a result, the ALJ subsequently dismissed her complaint. Raddatz

then appealed the ALJ's dismissal to the ARB. After the ARB

affirmed the ALJ's dismissal, Raddatz, unlike the appellants here,

declined to contest the ARB's decision before this Court.

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July 14, 2004, and Taylor's complaint on August 12, 2004. Because 4

the Secretary had decided not to intervene, the sovereign immunity

bar remained.

The appellants then appealed the ALJ's dismissal of their

complaints to the ARB. In two separate proceedings, the ARB

affirmed the ALJ's actions. Although the ARB provided a number of

reasons for its decisions to affirm, there are two grounds in

particular that appellants challenge here. First, appellants had

argued, using the reasoning of Lapides v. Bd. of Regents of the

Univ. Sys. of Georgia, 535 U.S. 613 (2002), that the State had

waived its sovereign immunity merely by requesting a hearing before

the ALJ to contest the Assistant Secretary's initial findings. The

ARB, however, dismissed this argument for two reasons. It held

that our analysis of Lapides in RIDEM -- where we concluded that

the State's pursuit of injunctive relief in the federal district

court did not constitute a waiver of its sovereign immunity -- was

equally applicable to the State's requests for ALJ hearings in the

Taylor and Migliore II cases. It also recognized that there is a

distinction between the stage during which the Assistant Secretary

investigates complaints and the stage in which the ALJ adjudicates
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those complaints. The ARB held that sovereign immunity can be

raised as a defense only once the case moves from the investigatory

to the adjudicatory stage. The only mechanism for moving the

complaint to the adjudicatory stage where the sovereign immunity

defense can be raised in the first instance is for one of the

parties to request a hearing. In making this request for a

hearing, the party is merely clarifying its entitlement to

sovereign immunity, not waiving it.

Second, in affirming the ALJ's dismissal of the Taylor

case, the ARB, noting that the Secretary had decided not to

intervene, agreed with the ALJ that "neither the federal court

decisions granting injunctive relief to Rhode Island nor other

legal authorities" compelled the Secretary to intervene to

prosecute Taylor's complaint. In re Joan Taylor, ARB Case No. 04-

166 (Nov. 29, 2004). The ARB also cited this Court's statement in

RIDEM that the Secretary may intervene "if she so chooses," 304

F.3d at 55, as well as the regulation at 29 C.F.R. § 24.6(f)(1),

which states that the Secretary's designee may participate in the

proceedings "at [his] discretion." Id.

It is the ARB's dismissals on these two grounds that the

appellants challenge here.
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II. Discussion

A. Standard of review

In RIDEM, we held that "the Secretary's final

determinations under the whistleblower provisions [of the SWDA] are

subject to review in the court of appeals in accordance with

judicial review provisions of the APA [Administrative Procedure

Act]." RIDEM, 304 F.3d at 38. Accordingly, the Secretary's

decisions will be upheld unless they 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). See also Sasse v. Dep't of Labor, 409 F.3d 773, 778

(6th Cir. 2005); Simon v. Simmons Foods, 49 F.3d 386, 389-90 (8th

Cir. 1995).

B. Sovereign immunity

Appellants' first claim is that despite the Secretary's

refusal to intervene in their cases, the State has waived its

sovereign immunity through other means. A state's sovereign

immunity is "a personal privilege which it may waive at pleasure."

Clark v. Barnard, 108 U.S. 436, 447 (1883). We have previously

stated that "[a] state can waive its Eleventh Amendment immunity to

suit in three ways: (1) by a clear declaration that it intends to

submit itself to the jurisdiction of a federal court or

administrative proceeding; (2) by consent to or participation in a

federal program for which waiver of immunity is an express
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condition; or (3) by affirmative conduct in litigation." New

Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004) (citations

omitted).

1.

Appellants here invoke two separate kinds of waiver.

First, they claim that the State has waived its sovereign immunity

through its litigation conduct -- namely, by requesting hearings

before an ALJ following the initial investigative findings by the

Assistant Secretary. We note initially that we have confronted a

similar argument in two of our recent cases. In both RIDEM and

Ramsey, it was claimed that a state waived its sovereign immunity

solely by seeking judicial review of an adverse administrative

decision. In both cases, however, we rejected this argument,

noting that the mere "seeking of judicial review of an agency

decision . . . by a state that was a defendant before the agency"

was insufficient alone to infer a waiver of immunity. Ramsey, 366

F.3d at 20; see also RIDEM, 304 F.3d at 49-50. The argument made

here is slightly different, as it relates to the review of an

administrative decision not before a federal Article III court, but

rather before an federal administrative law judge. Nevertheless,

we believe that the reasoning of our earlier opinions applies in

this instance as well. See also Federal Maritime Comm'n v. South

Carolina State Ports Auth., 535 U.S. 743, 760 (2002) (finding that

the sovereign immunity enjoyed by states in federal courts also
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applies in adjudications conducted by a federal administrative

agency); Butz v. Economou, 438 U.S. 478, 513-14 (1978) (noting the

similarities between adjudication by an administrative law judge in

a federal administrative agency and adjudication by judges in a

court).

We also find unconvincing an offshoot of this argument --

namely, appellants' claim that the State has waived its immunity

through its litigation conduct because it has selectively invoked

its immunity to gain a litigation advantage. Appellants draw this

idea from two cases in particular: Lapides and Ramsey. In Lapides,

the Supreme Court confronted a case in which the plaintiff had

brought suit against the state in state court on a claim in which

the state had statutorily waived its immunity. The state, in

response, removed the case to federal court and moved to dismiss,

asserting that it was immune from suit in federal court under the

Eleventh Amendment. The Court held that in removing the case, the

state had "voluntarily invoked the jurisdiction of the federal

court" and therefore had waived its immunity by its litigation

conduct. Lapides, 535 U.S. at 622. This decision was based in

part on the inequity of allowing the state to reverse its statutory

waiver by a change in forum.

In Ramsey (in a part of the opinion different from that

discussed above), we were similarly distressed by a state's

exploitation of its sovereign immunity to obtain unfair litigation
-13-

advantages. In that case, the State of New Hampshire made a

"voluntary and calculated" choice to attempt to obtain the

dismissal of a federal court action, wanting instead to litigate

certain claims through a state administrative grievance procedure.

Once the dismissal was granted, the state participated in the

administrative grievance procedure, knowing that the procedure

ultimately provided for federal judicial review. When the case did

actually reach a federal court, the state tried to assert its

sovereign immunity. We held, however, that because New Hampshire

participated to its advantage in the grievance procedure to the

detriment of its opponents, the state had waived its immunity by

its litigation conduct. We said, in other words, that "the state,

having gained the advantage that it sought, is bound by the choice

that it made." Ramsey, 366 F.3d at 18.

Appellants argue that this case is similar to Lapides and

Ramsey and that the State here has waived its immunity because it

too used its immunity to gain a litigation advantage. In

particular, the appellants point to how the State requested

hearings before the ALJ when it was not compelled to do so. It had

other means of preserving its rights -- namely, it could have

simply waited for the determinations of the Assistant Secretary to

become final and then defended in enforcement proceedings by
 Here, appellants are relying on a provision in 29 C.F.R. § 24.4 5

(d)(2), which states: "If a request for [an ALJ] hearing is not

timely filed, the notice of determination shall become the final

order of the Secretary." Although we did not squarely address it,

the appellees in Ramsey made an identical argument. See Ramsey,

366 F.3d at 20.

 If Taylor and/or Migliore had brought suit personally against 6

the State in federal court to enforce the determinations of the

Assistant Secretary, the State would have been able to invoke

sovereign immunity. See 42 U.S.C. § 6972(a)(1)(A) (noting that

citizen civil suits under 42 U.S.C. § 6972 may enforce the SWDA's

substantive provisions only to the extent permitted by the Eleventh

Amendment to the Constitution). If, however, the Secretary was the

one to bring the enforcement action, the State would potentially

face liability, as the Secretary is allowed to bring an action

against a state to enforce a federal law without worrying about the

sovereign immunity bar. See United States v. Texas, 143 U.S. 621,

644-45 (1892).

There are two problems with this argument. First, appellants 7

argue that the State could invoke its sovereign immunity "at its

pleasure" before an ALJ because "the posture of the cases would

become individuals versus the State." Appellants Reply Br. 5. We

are not certain that this proposition is true. At the time that

the State was deciding whether to request ALJ hearings in this

case, in 1999 and 2000, the question of whether a state could claim

sovereign immunity in an administrative proceeding remained an open

one. This question was only resolved in 2002 with the Supreme

Court's decision in Federal Maritime Comm'n, which held that the

sovereign immunity enjoyed by states in federal courts also applies

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asserting sovereign immunity at that point. Such a course of 5

action would have come with a price. The State would have faced

the daunting prospect of Secretarial involvement, and such

involvement would have precluded the State from asserting its

sovereign immunity. ALJ hearings, by contrast, posed no such 6

risk, according to the appellants, because in such a setting the

State would be permitted to invoke sovereign immunity "at its

pleasure." In light of the litigation advantages that came with 7
in adjudications conducted by a federal administrative agency. 535

U.S. at 760. Nevertheless, for the sake of argument, we assume

here that the appellants are correct and that the State could

invoke its sovereign immunity "at its pleasure" in an ALJ hearing.

Second, appellants are simply assuming that the Secretary would not

intervene in an ALJ hearing. However, according to the regulations

in effect in 1999 and 2000, the Assistant Secretary had the right

to intervene. See 29 C.F.R. § 24.6(f)(1) (1999) and 29 C.F.R.

§ 24.6(f)(1) (2000). Since at that time the parties did not have

the benefit of our 2002 decision in RIDEM saying that such

intervention by the Assistant Secretary would remove the sovereign

immunity bar, the effect of Secretarial intervention was perhaps

not clear. Therefore, we decline to base our holding on such an

argument and simply assume that the appellants are correct.

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the State's conscious decision to preserve its rights through ALJ

hearings, appellants argue that we should hold that the State

waived its immunity through its litigation conduct.

Such a choice, however, is different from the situation

presented in Lapides or Ramsey. The State here never made a prior

decision that affected its ability to invoke its immunity, as was

the case in Lapides or Ramsey. To be sure, the choice faced by the

State in this case related to immunity. But the State's decision

to preserve its rights through an ALJ hearing (rather than through

waiting for an enforcement action) was the first time it made any

decision relating to that immunity. Indeed, it had to be. As the

ARB correctly recognized, there is a clear distinction between the

stage in which the Assistant Secretary investigates complaints and

the stage in which the ALJ adjudicates those complaints. Sovereign

immunity can be raised as a defense only once the case moves from

the investigatory to the adjudicatory stage. The only mechanism
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for moving the complaint to the adjudicatory stage where the

sovereign immunity defense can be raised in the first instance is

for one of the parties to request a hearing, as the State did here.

Thus, this is not a situation, such as in Lapides, where the state

has attempted "to regain, by a change in forum, [a] litigation

advantage that [it] . . . already renounced by a general statute."

Ramsey, 366 F.3d at 20 (discussing Lapides), or one such as in

Ramsey, where New Hampshire tried to reverse the effects of a

choice it had earlier made. In requesting ALJ hearings, the State

here took advantage of its first opportunity to assert a sovereign

immunity defense, a defense that was not available at the

investigatory stage of the administrative proceedings.

The State here may have obtained a litigation advantage

from its decision to pursue ALJ hearings. The Lapides-Ramsey line

of cases, however, does not prevent a litigant from obtaining any

sort of advantage relating to immunity in pursuing his case. They

only condemn those litigation advantages that are "inconsistent" or

"unfair." See Lapides, 535 U.S. at 622 (noting that the rules

governing waiver by litigation conduct are motivated by "problems

of inconsistency and unfairness"). Where the state tries to

backtrack on immunity decisions it has already made, as was the

case in both Lapides and Ramsey, such inconsistency and unfairness

are evident. Nothing the State did in this case, however, can be

deemed "unfair" or "inconsistent." See RIDEM, 304 F.3d at 49
 See also Ramsey, 366 F.3d at 21 (noting, in its discussion of 8

waiver of immunity from damages [as opposed to its discussion of

waiver of immunity from prospective equitable relief], that New

Hampshire gained no unfair litigation advantage as to damages by

seeking judicial review of the grievance procedure because it

"consistently asserted its immunity from damages when at issue.").

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(noting that the state has "consistently asserted its sovereign

immunity . . . in the administrative proceeding"). Therefore, we 8

decline to find that the State waived its sovereign immunity as a

result of its litigation conduct.

2.

Appellants also argue that the State has waived its

sovereign immunity under R.I. Gen. Laws § 9-31-1, which waives the

State's immunity "in all actions of tort in the same manner as a

private individual or corporation." Appellants argue that their

employment discrimination claims here are tort actions in order to

show that the State has waived its sovereign immunity in this case.

They also state that their claims closely resemble discrimination

actions brought pursuant to 42 U.S.C. § 1983, which have been

recognized as one type of claim that is covered by R.I. Gen. Laws

§ 9-31-1. See Marrapese v. Rhode Island, 500 F. Supp. 1207 (D.R.I.

1980).

Whatever the merits of these arguments, appellants'

reliance on R.I. Gen. Laws § 9-31-1 is misplaced. Following this

Court's decision in RIDEM, Taylor and Migliore never raised before

either the ALJ or the ARB the applicability of the Rhode Island
-18-

statute to their administrative cases. Nor is the argument

referenced anywhere in the administrative record. Accordingly,

appellants have forfeited the argument by failing to raise it

during the administrative proceedings. See Disabled Americans for

Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 65

(1st Cir. 2005) (noting that legal theories raised for the first

time on appeal are waived); Okmyansky v. Herbalife Int'l of Am.,

Inc., 415 F.3d 154, 162 (1st Cir. 2005) (same); RIDEM, 304 F.3d at

50 (noting that "[c]laims of waiver of immunity are like any other

legal argument and may themselves be waived or forfeited if not

seasonably asserted.").

In their reply brief, appellants claim that these

arguments relating to forfeiture invoke the doctrine of exhaustion

-- i.e., that a party must exhaust his administrative remedies

before proceeding before a court. In their attempt to show the

inapplicability of such a doctrine here, appellants point out that

the exhaustion doctrine is subject to certain exceptions. For

example, they note that a party is not required to exhaust his

administrative remedies where it would be futile for it to do so.

See, e.g., Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821,

826 (1st Cir. 1988) (discussing exhaustion in the context of

ERISA). Appellants argue that it would have been futile in this

case for them to raise R.I. Gen. Laws § 9-31-1 before the Secretary

or her designees because these individuals had "no expertise in the
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interpretation of Rhode Island law." They also note,

alternatively, that exhaustion is not mandated and that it is

within the discretion of the court as to whether to apply the

doctrine (citing Acción Social de Puerto Rico, Inc. v. Viera Pérez,

831 F.2d 365, 369 (1st Cir. 1987)).

Appellants, however, are incorrect. Our discussion of

forfeiture has nothing to do with exhaustion. There is no question

that the appellants here did exhaust their administrative remedies.

They first brought their cases before the Assistant Secretary, then

faced an appeal before an ALJ, and finally appealed the dismissal

of their actions before the ARB. There is nothing more they can be

expected to do in the administrative setting. Our concern is that

the appellants are raising this issue for the first time in this

Court. If this petition is properly to be considered a review of

the ARB's action, the appellants are required to have raised their

arguments about R.I. Gen. Laws § 9-31-1 before the ARB, the ALJ, or

the Assistant Secretary. See Massachusetts ex rel. Div. of Marine

Fisheries v. Daley, 170 F.3d 23, 28 n.4 (1st Cir. 1999) ("Where

agency action is taken upon an administrative record, it must . . .

be reviewed based on that record.") (citation omitted). Because

appellants did not raise the issue earlier, their argument about a

waiver of sovereign immunity under R.I. Gen. Laws § 9-31-1 fails.
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C. Intervention by the Secretary

Finally, Taylor and Migliore claim that the Secretary's

decision not to intervene in their cases violated the SWDA, because

under that statute the Secretary has no discretion whether to

enforce if a violation is found. Appellees, however, state that

this is a non-issue, arguing that the Secretary's decision on

whether to intervene is unreviewable by this Court under the

Supreme Court's decision in Heckler v. Chaney, 470 U.S. 821, 832

(1985). In that case, the Supreme Court held that an agency's

decision not to take requested action where the action is

"committed to agency discretion by law" is presumptively

unreviewable (quoting the Administrative Procedure Act, 5 U.S.C.

§ 701(a)(2)). The Court stated that review is not to be had in

such instances because "a court would have no meaningful standard

against which to judge the agency's exercise of discretion."

Heckler, 470 U.S. at 830.

The appellants, in response, argue that the Court in

Heckler also stated that the presumption of unreviewability may be

rebutted "where the substantive statute has provided guidelines for

the agency to follow in exercising its enforcement powers." Id. at

832-33. In other words, where there is a sufficient or meaningful

standard provided in the governing statute, courts have something

"against which to judge the agency's exercise of discretion," and

judicial review is allowed. Massachusetts Pub. Interest Research
-21-

Group, Inc. v. United States Nuclear Regulatory Comm'n, 852 F.2d 9,

14 (1st Cir. 1988) (citing Heckler, 470 U.S. at 830). The

appellants point to 42 U.S.C. § 6971(b) as providing a standard

sufficient to guide judicial review in this case.

The key question, then, is whether a "meaningful

standard" exists here against which we can judge the Secretary's

decision not to intervene in the appellants' cases. Id. We need

not resolve such a question, however, for even assuming that the

appellants are correct and that 42 U.S.C. § 6971(b) provides such

a standard, we find, after undertaking the requisite judicial

review, that the Secretary's refusal to intervene in this instance

was proper.

As we have already mentioned, appellants argue that where

violations of the SWDA's employee protection provision have been

found, the Secretary is required to act. In support of their

argument, they cite to the text of 42 U.S.C. § 6971(b):

[Upon receipt of a complaint, the Secretary of

Labor shall cause such investigation to be

made as he deems appropriate.] . . . Upon

receiving the report of such investigation,

the Secretary of Labor shall make findings of

fact. If he finds that such violation did

occur, he shall issue a decision,

incorporating an order therein and his

findings, requiring the party committing such

violation to take such affirmative action to

abate the violation as the Secretary of Labor

deems appropriate . . . .

42 U.S.C. § 6971(b). Appellants are arguing, in other words, that

once a violation is found, the Secretary has no discretion -- he
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has mandatory duties that he must perform. To emphasize the

mandatory nature of the Secretary's duties, appellants point to how

in the section cited, Congress used the word "shall" to describe

the Secretary's obligations no less than seven times (with the

appellants citing instances not quoted in the above paragraph).

They also note that "the word 'shall' is ordinarily the 'language

of command'" (quoting Alabama v. Bozeman, 533 U.S. 146, 153

(2001)).

Appellants are correct that there is a procedure that the

Secretary is required to follow in dealing with whistleblower

complaints. Title 29 of the Code of Federal Regulations, pt. 24

implements the employee protection provision provided for in the

SWDA, 42 U.S.C. § 6971, and provides procedures for Labor

Department officials to follow when they receive a whistleblower

complaint. The regulations appoint the Assistant Secretary to act

for the Secretary and to undertake and complete an investigation

within thirty days of the receipt of a complaint. 29 C.F.R.

24.4(d)(1). If the Assistant Secretary finds a violation, he is to

issue a "notice of determination" that includes, among other

things, an order requiring the party at fault to abate the

violation. Any order, however, is only preliminary at the time the

notice of determination is released. According to the regulations,

any party desiring review of the determination or any part thereof

is required to file a request for a hearing with the Chief
-23-

Administrative Law Judge within five business days. "If a request

for a hearing is timely filed, the notice of determination of the

Assistant Secretary shall be inoperative, and shall become

operative only if the case is later dismissed." See 29 C.F.R.

§ 24.4(d)(1) & (2). When the notice of determination becomes

inoperative, so does any order contained within it.

In the instant case, the Assistant Secretary, as per the

regulations, made his determinations that there had been violations

of the SWDA with regard to Taylor and Migliore and included orders

requiring RIDEM to abate those violations. RIDEM, however,

disagreed with the Assistant Secretary and therefore decided to

appeal the determinations before an ALJ. When RIDEM filed these

appeals, the determinations of the Assistant Secretary (including

the orders accompanying them) automatically became inoperative.

See 29 C.F.R. § 24.4(d)(1) & (2). Thus, the appellants are correct

-- that if the Assistant Secretary finds that a violation [of the

SWDA] did occur, he shall issue a decision "incorporating [his]

findings and either order relief or dismiss the complaint."

Appellant Br. 14 (citing to 42 U.S.C. § 6971(b)). We find that the

Assistant Secretary performed his mandatory duty here.

However, the Assistant Secretary [or his boss, the

Secretary] was not required to do more than this. As we have

stated, once the Assistant Secretary issues his determinations and

any orders, his mandatory duties are at an end. It then becomes
Appellants also argue that an explanation was required in light 9

of the fact that the Secretary's failure to intervene was contrary

to "immediate past precedent" -- namely, the Secretary's decision

to intervene in Migliore I. That case, however, was already before

the ARB when the Secretary made her decision to intervene. Here,

the Secretary faced a decision as to whether intervene before the

ALJ. Considerations that may have been relevant to an appeal

before the ARB may not have been relevant before the ALJ, and vice

versa. For example, the Secretary may have had a sense that

Migliore had a better chance of success before the ARB than before

the ALJ. Therefore, because the circumstances of the two cases are

not the same, Migliore I is not properly to be considered

"immediate past precedent," as appellants suggest.

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the responsibility of the parties, if they disagree with either

those determinations or the accompanying orders, to appeal to the

Chief Administrative Law Judge for a hearing. If such a hearing

takes place, the Assistant Secretary is permitted to intervene "at

[his] discretion," but nothing requires him to do so. See 29

C.F.R. 24.6(f)(1). We find, therefore, that the Assistant

Secretary was not required to intervene in the ALJ proceedings in

this case.

In the alternative, appellants concede that the Secretary

[or through her, the Assistant Secretary] had broad discretion to

determine whether or not to intervene. They contend, however, that

when the Secretary exercised that discretion, she was required to

provide an explanation for her decision. Here, appellants claim,

such an explanation was absent. We find, however, nothing in

either the controlling statute or the regulations that requires the

Secretary or the Assistant Secretary to explain his or her reasons,

and we decline to read such a requirement into these authorities.9
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Although the Assistant Secretary must provide a "statement of

reasons" when he issues his initial determination, he is not

required to issue such a statement when he refuses to intervene

before an ALJ.

III. Conclusion

For the reasons set forth above, we deny the petition for

review and affirm the decision of the Administrative Review Board

of the Department of Labor.

Affirmed.