NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0121n.06 No. 10-3667 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

KA REN YAG LEY, P etitioner -Appellant,

v. O C C U P A T I O N A L S A F E T Y & H E A L T H A D M I N I S T R A T I O N , U N I T E D S T A T E S DEP ARTMENT OF LABOR, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE U N I T E D S T A T E S DEP ARTMENT OF LABOR A D M I N I S T R

A T I V E R EV I EW BOARD

O P I N I O N

BEFORE: SUHRHEINRICH, GIBBONS, an d McK EAGU E, Circuit Judges. P ER CURIAM . Kar en Yag ley , a pro se Michig an resident, ap p ea l s a d ecision by the United States Depa

rtment of L abor’ s Administrative Review Boa rd (“the Boa

rd”)

. Sh e alleg es reta liation in violation of the whistleblower provisions of the Tox ic Substances Control Act (“TSCA”) , 15 U.S.C.§ 2622; Fe dera l Water Pollut ion Control Act (“F WP CA”), 33 U.S.C. § 1367; and the Clean Air Act (“CAA” ), 42 U.S.C. § 7622. The Boa rd denied her petition, finding that her complaint named only a state ag ency as a responde nt and thus state sovere ign immunit y barr ed suit. Be cause Yag ley has failed to raise the issue on wh i ch the Board’ s decision rests—state sovere ign immunit y —we f ind her c laims forfe ited and DENY the petition.

I. BACKG ROUNDNo. 10-3667

Y agley v . OSHA Kar en Yag ley worke d as a reg istered nurse at the Hawthor n Center of Northville, Michig an (“H awthorn” ). Hawth o rn i s an ag ency of the Michig an Depa rtment of Communi ty Hea lth that provides psy chiatric service s to children and adolesc ents. I n 2001, Hawthor n beg an renova ting the wing of the fac ility wher e Yag ley worke d. The renova tions cre ated dust. On April 9, 2001, Yag ley filed a c omplaint with the Michiga n Occ upational Safety and Hea lth Administration, alleg ing tha t the dust and by

products of the renova tion wer e cre ating hazardous workplac e condit i o n s. I n Novembe r 2 0 0 4 , Y a g le y f

il e d tw o more complaints reg arding the workplac e conditions at Hawthor n:

one with the Environmental Protection Ag ency , and the other with the J oint Commi ssion on Acc reditation of Hospital Or g anizations. On April 12, 2002, Yag ley filed a claim for long- term disability benef its. Under the policy , Yag ley was entitled to twenty -four months of benef its. S h e b egan rec eiving the benef its in J uly 2002. I n J une 2003, her disability benef its wer e discontinued due to an elig ibilit y dispute. Yag ley challeng ed the ineligibility deter mination, and her benef

its wer e reinstated eff

ective November 12, 2 003. Her benef

its continued to be paid throug h Marc h 1, 2005, for a total of twenty -five and one-ha lf months of cover ag e. Ya g ley was subsequently

notified that the extra pay ments were due

to a miscalculation of the benef its period and that the plan administrator would not seek repa y ment. On M arc h 25, 2005, Yag ley filed a whistleblower complaint with the Occupational S afe ty and Hea lth Administration (“O SHA”), complaining that her disability benef its had been terminated by Hawthor

n in reta liation for her complaints reg arding workplac e conditions (“ Y agley I ”). Yag ley alleg ed that Hawthor

n’s actions vio l at ed the whis tleblower protection provisi ons of t he C AA and TSCA. OSHA investiga ted Yag ley ’s complaint and foun d “n o reasonable cause to believe that - 2 -No. 10-3667

Y agley v . OSHA [Hawthorn] violated [her] rig hts under TSCA or CAA.” OSHA conclude d that the termination was in acc ordanc e with the bene fits plan and not a r esult of any improper a ction by

Hawthor n. Yag ley objected to OSHA’s finding s and re quested a hear ing be fore an administrative law judge (“A L J ”). Be fore the hear ing commence d, the AL J g rante d Hawthor n’s motion for a summary decision. The AL J found that beca use Ha wt h o rn e C enter is a fac ility owned and opera ted by the Michig an De partment of Health, it was protected by state sovereig n immunit y under the Eleventh Amendment. Specifica lly , the AL J found that Congr ess did not expressly abrog ate state sovere ign immunit y under 42 U.S.C. § 7622 of the CAA or 15 U.S.C. § 2622 of the TCSA and that the state

o f M i ch iga

n had not waived its sovere ign immunit y . The AL J rec ommended dismiss al of th e complaint. Y

a g l ey v. Hawthorne Ctr. , No. 2005-TSC-0003, AL J ’s Dec ision and Recommende d Orde r (De p’t of L abor D ec. 30, 2005)

. Yag ley appea led the AL J ’s decision to the Boa rd. The Boa

rd aff irmed the AL J ’s

rec ommended dismiss al on sovere ign immunit y g rounds. Y a g l ey v. Hawthorn Ctr. , No. 06-042, 2008 WL 2 2 6 5 2 05 (De p’t of L abor May 29, 2008). Yag ley appea led t he Board’ s decision t o this

court but voluntarily moved to dismiss her appea l afte r briefing

. Her motion to dismiss was g rante d. Y agley v . OSHA , No. 08-3922 (6th Cir. June 29, 2009). On J uly 25, 2008, Kar en Yag ley and h er h u s b and, Christopher Yag ley , filed a new whistleblower com

p la in t w it h O SH A , alleg ing continued reta liation, discrimination, and hara ssment in violation of t he whist lebl o we r p rovi sions of t he C AA, FWPCA, and TS CA. On November 6, 2008, OSHA dismiss ed the complaint on the g rounds that it was a reiter ation of the complaint that Kar en had f

iled in 2005. - 3 -No. 10-3667

Y agley v . OSHA The Yag ley s appea led the dismiss al of the OSHA complaint to an AL J

. On J anuar y 26, 2009,

t h e ALJ conclude d that the Boa rd’s decision in Y

agley I was controlling and dismiss ed t h e complaint. On J anuar

y 30, 2009, the AL J reope ned the case to addre ss a number of documents that had been faxed by the Yag ley s prior to the AL J ’s decision but afte r the briefing deadline had passed. One of the documents was a motion to amend the complaint to include non-g overnm e n t r e s p o n d ents. Despite the untimelin es s o f t h e filings, the AL J reope ned the case for the limit ed purpose of revie wi n g whether the J uly 2008 complaint included char g es of whistleblower reta liation ag ainst non-g overnme ntal entities. The AL J direc ted OSHA to file with the court a copy of that complaint. Y agley v. Hawthorn Ctr. , No. 2009-CAA-00002, Orde r Reopening Complaint (De p’t o f L ab o r J anuar y 30, 2009). On Fe bruar

y 5, 2009, t h e ALJ issued a new decision. Upon revie w of the J uly 2008 complaint, the AL J found that it did not n am e a p articular responde nt but alleg ed a char g e of “continued reta liation, discrimination and/or h ar as s m ent.” Thus, the AL J conclude d that the complaint could only be construed as being filed ag ains t t h e o n l y responde nt in Y agley I —Hawthor

n—and rea ffirme d its J anuar y 26 decision dismiss ing the complaint o n t he basis of Y agley I

. The AL J noted t hat t he Yag ley s had adequate time to re quest amending their complaint befor e the briefing deadline expired on J anuar y 16, 2009, and then denied as untimely the Yag ley s’ motion to add more responde nts. Y agley v . Hawthorn Ct r. , No. 2009-CAA- 00002, AL J Dec ision and Or der ( Dep’ t of L abor F ebrua ry 5, 2009). The Yag ley s appea led the AL J ’s decision to the Boa rd. The Boa

rd direc ted that a list of the responde nts, with their addre sses and proof of service , be filed with the Boa rd no later than Aug ust - 4 -No. 10-3667

Y agley v . OSHA 28, 2009. The Yag ley s filed motions with the Boa rd seeking to ref

er the matter to a settlement judge , attempting to clar ify the Boa rd’s order requiring the identification of the responde nts, and reque sting

a two-month extension to comply with the order

. Y agley v. Hawthorn Ctr. , No. 0 9 -0 6 1 , Orde r Requiring Petitioners to I dentify Respondents (De p’t of L abor Aug ust 7, 2009). The Boa rd denied the motions on S eptember 11, 2009. On Dec ember 4, 2009, the Boa rd issued a show-ca

use order as to why the claim should not be dismiss ed for failure to file a brief. Y agley v. Hawthorn Ctr. , No. 09-061, Orde r to Show Cause (De p’t of L abor Dec. 4, 2009). Kar en Yag ley responde d that her ill ness had cause d the delay and soug ht further time to file her opening brief. On Fe bruar y 1, 2010, the Boa

rd denied the motion and issued an am en d ed b ri ef

ing schedule allowing the Yag ley s to file a reply brief should a response b ri ef be filed. The Yag ley s submitt ed a response to the Boa rd’s order on Marc h 31, 2010, which alleg ed further hara ssment from Hawthor n and made other alleg ations ag ainst the State of Michig an, OSHA, and the AL J

. The brief did not addre ss the issue of sovere ign immunit y . On April 30, 2010, the Board issued its final decision, finding that the Yag ley s’ J uly 2008 complaint could not

rea sonably be construed as naming any responde nt other than Hawthor n, the AL J proper ly dismiss ed their attempt to amend the complaint to name more responde nts, and suit was barr ed by the Eleventh Amendment. Y

agley v . Hawthorn Ct r. , No. 09-061, 2010 WL 1776981 (De p’t of L abor A pril 30, 2010). I n their timely appea l, the Yag ley s arg ue that Kar en Yag ley has been denied whistleblower protec tions a

nd that her complaints of reta liation, ha rassment, and labor law violations ha ve never been investiga ted. They asser t that unidentif

i ed ru l es and procedure s of t he Department of L abor - 5 -No. 10-3667

Y agley v . OSHA have been violated. The Yag l ey s have also filed two additional motions: (1) a motion for clar ification that re cites g rieva nces c oncer

ning the ag ency

proce eding s and (2) a motion to amend their brief t hat reque sts Christopher Yag ley be remove d from the appea l and rec ites further g rieva nces c oncer

ning the handling of Ka

ren Y ag ley ’s whistleblower c omplaints. II. DISCUSS ION A. Standards of

Review J udicial revie w of an age n cy ’s final decision is g overne d by the standards set out in the Administrative Procedur e 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 Bo ar d’s finding s that are unsupported by substantial

ev idence or are “arbitrar

y , capr icious, an abuse of di scre tion, or ot herw ise not in acc ordanc e wi t h law.” 5 U.S.C. § 706(2)( A), (E). Thoug h the court g ives defe renc e to an ag ency ’s interpre tation 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)) , sovere ign immunit y is a jurisdictional question that is revie wed de novo. See, e.g. , Timmer v. Mich. Dep’ t of Commerce , 104 F.3d 833, 836 (6th Cir. 1997) (state sovere ign immuni ty is a question of l aw that i s re viewed de novo); Layton v. Merritt Sys. Prot. Bd. , 392 F. App’x 875, 878 (F ed. Cir. 2010) (whe ther ag ency had jurisdiction is revie wed de novo). “F actua l finding s underly ing the Boa

rd’s jurisd i ctional

c o n c lu s io n s , h o weve r, are entitled to defe renc e unless unsupported by substantial eviden c e . ” La y to n , 392 F. App’ x at 878–79. B. Analysi s

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Y agley v . OSHA As an initial matter, we g rant the reque st to remove Christopher Yag ley from this appea l and consider the petition only as it relate s to Kare n Yag ley

. I t i s well established in this court that any claims not raised on appea l are co n s i d er ed abandone d and thus not revie wable. E.g. , Dixon v. Ashcroft , 3 9 2 F. 3 d 212, 217 (6th Cir. 2004); Boyd v. Ford Motor Co. , 948 F.2d 283, 284 (6th Cir. 1991). The Boa rd’s decision being appea led here decide d two issues: (1) that Hawthor n is the only responde nt in this matter and (2) suit ag ainst Hawthor n is barr ed by state sovereig n immunit y . Petitioner has failed to argue ei ther iss ue in her opening brief. S h e m en t i o n s i n her reply brief that “a State does not have the rig hts to sovere ign immunit y in all case s,” but this court has consistently held that it will not consider arg uments 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). Fur

ther, “an issue is deeme d forf eited on appea l if it is mere ly mentioned and not develope d.” Vance v. W

ade , 546 F.3d 774, 781 ( 6th Cir. 2008). Of course , pro se litigants are to be aff orded liberal co n s t ru cti on of their pleading s and filings. Boswell v. Maye r , 169 F.3d 384, 387 (6th Cir. 1999). And, this court rec og nizes exceptions

to the g ener al rule that issues cannot be raised for the first time in a reply brief: wher e doing so would “re sult in a plain miscarr iag e of justice,” Am. Trim , 383 F.3d at 477; wher e “the issue raised is purely one of la w re quiring no new or amplified factual determination,” Logan v. Denny’s Inc. , 259 F.3d 558, 570 n.6 (6th Cir. 2001) (interna l quotations and altera tions o m i t t ed); or wher e an appellee raises an arg ument not addre ssed by the appellant in its opening brief, Holloway v. Brush , 220 F.3d 767, 773–74 ( 6th Cir. 2000) (en ba nc).

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Y agley v . OSHA Whil e Petitioner her e mee ts the latter two exceptions, her claims are forf eited because she has failed, during the entire course of this protrac ted litigation, to develop any arg ument on the key issue of state sovere ign immunit y . See Vance , 546 F.3d at 781. Petitioner has been on notice since Dec ember 30, 2005, when Y agley I was first dismiss ed, that sovere ign immunit y was the hurdle she neede d to clea

r in order to sue Hawthor n. Yet, si n ce that initial decision, Petitioner has failed to either timely cure her defe ctive complaints (neg lect i n g t o n ame any responde nt in the second complaint) or develop an arg ument on sovere ign immunit y . Even consideri n g h er p ro se status, Petitioner has been g iven as much leewa y as she is entitled. Fur

ther, we do not believe a miscarr iag e of justice is a conce rn here , wher e OSHA investiga ted Petitioner’s reta liation claim and conclude d it was without merit. III. CONCLUSION For the rea sons above, we DEN Y P et i t i o n er’ s claims as forf eited, DENY the motion for clar ification as moot, and DENY the motion to amend the brief bey ond the limit ed reque st to remove Christopher Yag ley

from the a

ppeal.

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