Perez v. Idaho Falls School District No. 91

Filing 54

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: Plaintiff R. Alexander Acosta shall be substituted for his predecessor, Thomas E. Perez, as Secretary of Labor. Defendant's Motion 53 is GRANTED. Defendant's Motion 44 is DENIED. Counsel for the Plaintiff shall contact courtroom deputy Jamie Bracke within one week following the entry of this Order to make arrangements for a telephonic trial setting conference with the Court to set pre-trial and trial deadlines. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

R. ALEXANDER ACOSTA,
SECRETARY OF LABOR, U.S.
DEPARTMENT OF LABOR, ∗

Case No. 4:15-cv-00019-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
IDAHO FALLS SCHOOL DISTRICT
NO. 91,
Defendant.

INTRODUCTION
Pending before the court is a Motion for Summary Judgment (Dkt. 44) filed by
Defendant Idaho Falls School District (the “District”). Plaintiff R. Alexander Acosta,
Secretary of Labor (the “Secretary”), opposes the Motion. The Court heard oral argument
on August 10, 2017 and ordered supplemental briefing, which was completed on August
16, 2017. For the reasons set forth below, the Court will deny the motion.
BACKGROUND
On May 31, 2011, Penny Weymiller filed a whistleblower complaint with the U.S.
Secretary of Labor, alleging that the District retaliated against her for raising concerns
with asbestos removal plans, in violation of the whistleblower provisions of the Asbestos

∗

R. Alexander Acosta has been substituted for his predecessor, Thomas E. Perez, as Secretary of
Labor under Fed. R. Civ. P. 25(d).

MEMORANDUM DECISION AND ORDER - 1

Hazard Emergency Response Act of 1986 (“AHERA”). The Occupational Safety and
Health Administration (“OSHA”) investigated Ms. Weymiller’s claims and announced its
determination on January 15, 2015. OSHA found that Ms. Weymiller had been subject to
whistleblower retaliation in violation of both the Clean Air Act (“CAA”) and AHERA.
Under AHERA’s whistleblower retaliation provisions, there is no private right of
action beyond the filing of a complaint with the Secretary. However, if the Secretary
determines that a violation has occurred, the statute requires that he file a complaint in the
appropriate United Stated District court. 15 U.S.C. § 2651(b); 29 U.S.C. 660(c)(2). As
such, after OSHA’s determination that the District’s actions violated AHERA’
whistleblower provisions, the Secretary filed an action in this Court seeking both
individual relief for Ms. Weymiller, and an injunction ordering the District to take certain
steps to prevent future violations. Dkt. 1.
At the same time, the Secretary ordered individual relief for Ms. Weymiller
pursuant to OSHA’s determination that the District violated CAA’s whistleblower
retaliation provision. 1 Exercising its rights under the CAA, the District requested a de
novo hearing on Ms. Weymiller’s CAA claim before an Administrative Law Judge
(“ALJ”). On May 2, 2017, ALJ Richard M. Clark issued his Decision and Order denying
Ms. Weymiller’s whistleblower complaint. Dkt. 44-7.

1

In its order, the Secretary also required that the District take action similar to the injunctive
relief it sought in the AHERA action. Given that the Secretary’s order on the CAA claim is moot after the
ALJ found for the District in that proceeding, whether such injunctive relief is appropriate under the CAA
has no bearing on this matter.

MEMORANDUM DECISION AND ORDER - 2

Subsequently, the District sought a writ of mandamus in this Court ordering the
ALJ to dismiss its review of the Secretary’s determination that Ms. Weymiller had been
subject to retaliation under the CAA. This Court declined to intervene, citing lack of
jurisdiction. See Mem. Decision and Order at 8, Dkt. 28 (finding that the Department of
Labor and the courts of appeals have exclusive jurisdiction over CAA claims). After the
ALJ ruled in favor of the District on Ms. Weymiller’s CAA retaliation claim, neither Ms.
Weymiller or the Secretary sought an appeal, though both had that right. The District then
filed this motion on the grounds that the Secretary is precluded from pursuing the
AHERA claim based on the doctrine of collateral estoppel.
LEGAL STANDARD
Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Here, the parties do not raise any
genuine disputes of material fact. Rather, the District argues that it is entitled to judgment
as a matter of law, because the Secretary’s claim is barred by the doctrine of collateral
estoppel.
The doctrine of collateral estoppel provides that “[w]hen an issue of fact or law is
actually litigated and determined by a valid and final judgment, and the determination is
essential to the judgment, the determination is conclusive in a subsequent action between
the parties, whether on the same or a different claim.” Restatement (Second) of
Judgments § 27 (1982). Collateral estoppel applies to preclude an issue adjudicated in an
earlier proceeding if: (1) the issue was necessarily decided at the previous proceeding and
MEMORANDUM DECISION AND ORDER - 3

is identical to the one which is sought to be relitigated; (2) the first proceeding ended with
a final judgment on the merits; and (3) the party against whom collateral estoppel is
asserted was a party or in privity with a party at the first proceeding. Reyn’s Pasta Bella,
LLC v. Visa USA, Inc., 442 F.3d 741 (9th Cir. 2006).
It is well settled that principles of collateral estoppel may be applied to
administrative adjudications. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.
104, 107 (1991); Allen v. McCurry, 449 U.S. 90, 95 (1980). Thus, “[w]here an
administrative agency has made relevant factual findings in the course of refusing relief
which [it is authorized] to give, the finality of these findings, if sufficiently supported,
cannot be avoided in a court action” for the same or similar relief. United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 420 (1966). Congress may limit the preclusive
effect of agency adjudications, however, by providing for de novo review of a particular
claim in federal court. See Chandler v. Roudebush, 425 U.S. 840 (1976) (finding that a
statutory right to district court civil action entitles a plaintiff to de novo review of
administrative determinations).
ANALYSIS
The District argues that the issues of fact and law underlying the Secretary’s
AHERA claim were actually litigated and determined by final judgment on the merits in
the ALJ proceeding on Ms. Weymiller’s CAA claim, and that the Secretary was in privity
with Ms. Weymiller in the CAA proceeding, such that he should be estopped from
pursuing the AHERA claim. Neither party contests that relevant the issues of fact and law

MEMORANDUM DECISION AND ORDER - 4

were actually litigated and determined by final judgment during the ALJ proceeding. 2
Instead, the parties contest whether Ms. Weymiller and the Secretary were in privity.
Before addressing this question, however, the Court must determine as a threshold matter
whether claims under AHERA are subject to the preclusive effect of previous agency
determinations.
1.

Application of Claim Preclusion to AHERA

At issue is whether Congress has limited the preclusive effect of previous
administrative determinations on claims for relief under AHERA. In Chandler, the
Supreme Court held that Congress may establish such limits by providing for de novo
review of a particular claim in federal court. 425 U.S. 840. See also Univ. of Tenn. v.
Elliott, 478 U.S. 788 (1986). In Elliott, the Supreme Court applied Chandler and held that
where Congress explicitly provided for de novo district court review of Title VII claims,
such claims were not precluded by previous administrative determinations. Elliott, 478
U.S. at 796. As such, those claims could proceed, even where the Court separately held
that the plaintiff in Elliott was precluded from bringing a claim on the same facts under §
1983, which does not provide for de novo review by a district court.

2

The parties do contest whether the Secretary had the “full and fair opportunity” to litigate the
matter in front of the ALJ. See Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (“[C]ollateral estoppel
may be used when: (1) there was a full and fair opportunity to litigate the issue in the previous action . . .
.”). Neither party contests that either Ms. Weymiller or the District lacked a full or fair opportunity to
litigate during the CAA proceeding. Further, the Secretary had the legal right to participate in the ALJ
proceeding at any stage, including the right to pursue an appeal of the ALJ’s determination. See 29 C.F.R.
§ 24.108 (“Role of Federal agencies”). That he did not exercise that right, other than to participate as an
amicus, does not mean that he had no opportunity to do so.

MEMORANDUM DECISION AND ORDER - 5

Here, Congress has invested the federal district courts with jurisdiction to decide
and provide relief for claims under AHERA. See 15 U.S.C § 2651(b) (providing that the
Secretary shall review whistleblower retaliation complaints under AHERA pursuant to 29
U.S.C. § 660(c)); 29 U.S.C. § 660(c)(2) (providing that upon determination that a
violation has occurred, the Secretary shall bring an action in the appropriate United States
district court, and that such courts have jurisdiction to restrain violations “for cause
shown.”); Chandler, 425 U.S. at 844-45 (finding that a statutory right to district court
civil action entitles a plaintiff to de novo review of administrative determinations).
District court proceedings under 29 U.S.C. § 660(c) indeed involve de novo review of the
initial determination of the Secretary. See e.g., Perez v. Clearwater Paper Corporation,
184 F.Supp. 3d 831, 841 (evaluating whether the Secretary had carried his burden under
§ 600(c) to prove his case by a preponderance of the evidence). Because Congress has
explicitly provided for de novo review of claims under AHERA, it has thus limited the
preclusive effect of previous agency determinations on such claims. Chandler, 425 U.S.
at 861-62. Thus, the determinations made by the ALJ in resolving Ms. Weymiller’s claim
under the CAA have no preclusive effect on the determination of the Secretary’s AHERA
claim. See Elliott, 478 U.S. at 796. 3

3

Like in Elliott and Chandler, the issue here is whether an unreviewed agency determination has
preclusive effect on a claim where the Plaintiff has a statutory right to de novo review in a federal district
court. Chandler, 425 U.S. 480; Elliott, 478 U.S. at 796. The Court does not address whether a final
determination of Ms. Weymiller’s CAA claim in federal court could have a preclusive effect on a
subsequent AHERA claim. See Czarniecki v. City of Chicago, 633 F.3d 545, 551 (7th Cir. 2011)
(declining to extend Chandler where plaintiff had brought a federal action under § 1983, lost, and then
filed a second claim under Title VII on the same facts).

MEMORANDUM DECISION AND ORDER - 6

2.

Privity

Even if collateral estoppel did apply to AHERA claims in the manner proposed by
the District, the Secretary would not be precluded from pursing his claim under AHERA
unless he was in privity with Ms. Weymiller during the administrative adjudication of her
CAA claim. A court may find privity for purposes of collateral estoppel if any of the
following six conditions is met: (1) the nonparty agreed to be bound by the litigation of
others; (2) a “substantive legal relationship” existed between the person to be bound and
a party to first suit; (3) the nonparty was adequately represented by someone with the
same interests who was a party to the first suit; (4) the nonparty assumed control over the
prior litigation; (5) a party attempted to relitigate issues through a proxy; or (6) a
statutory scheme foreclosed successive litigation by nonparties. Griswold v. County of
Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010), citing Taylor v. Sturgell, 553 U.S.
880, 893–95 (2008).
The Secretary’s privity is best established here under (3), a theory of adequate
representation and aligned interests. 4 However, “to assume that private individuals can
4

As for (1), the Secretary’s decision not to appeal the ALJ’s Order is not equivalent to an
agreement to be bound by that decision in collateral matters. The Secretary and Ms. Weymiller do not
have the type of substantive legal relationship contemplated in Taylor, so as to satisfy (2). 553 U.S. at
893. The Secretary did not, moreover, exert control over Ms. Weymiller’s CAA litigation, so as to satisfy
(4). Although he had the opportunity to participate as a litigant, the Secretary participated only as amicus
curiae in the administrative proceeding, not as a party. At no point did he have the authority to “direct the
course of litigation or control the theories of the case.” Granite Rock Co. v. Int’l Brotherhood of
Teamsters, Local 287, 649 F.3d 1067 (9th Cir. 2011). As for (5), administrative agencies are not generally
deemed “proxies” for aggrieved individuals in enforcement proceedings, insofar as agencies represent
both public and private interests. See, e.g., Gen. Tel. Co. of the Nw. v. E.E.O.C., 446 U.S. 318, 326 (1980)
(“the EEOC is not merely a proxy for the victims of discrimination . . . When the EEOC acts, albeit at the

(Continued)
MEMORANDUM DECISION AND ORDER - 7

properly be viewed as representative of a particular government is a . . . daring analytical
leap.” United States v. E. Baton Rouge Par. Sch. Bd., 594 F.2d 56, 59 (5th Cir. 1979). In
pursuing public enforcement actions, administrative agencies generally act both as a
representative of a specific aggrieved individual and to vindicate a broader public
interest. Aggrieved individuals therefore lack the required “identity of interests” with
government agencies. Accordingly, few courts have found this kind of “adequate
representation” privity between a governmental agency and private plaintiff. See, e.g.,
Secretary of Labor v. Fitzsimmons, 805 F.3d 682, 684 (7th Cir. 1986) (en banc) (“The
Government is not barred by the doctrine of res judicata from maintaining independent
actions asking courts to enforce federal statutes implicating both public and private
interests merely because independent private litigation has also been commenced or
concluded.”); E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1288 (11th Cir. 2004)
(“[I]f we were to hold that there was privity between the [] plaintiffs and the EEOC due
to virtual representation or control, it would be the first time this Court has ever found
this kind of privity between a governmental agency and the private plaintiffs in a prior
action.”).
Rather, a finding that private plaintiffs’ interests are identical to those of the
United States runs counter to “the general principle of law that the United States will not

behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in
preventing employment discrimination.”). Finally, as for (6), neither AHERA nor the CAA foreclose
successive litigation by a private party and the Secretary.

MEMORANDUM DECISION AND ORDER - 8

be barred from independent litigation by the failure of a private plaintiff.” United States
v. E. Baton Rouge Parish Sch, Bd., 594 F.2d 56, 58 (5th Cir. 1979) (“This principle is
based primarily upon the recognition that the United States has an interest in enforcing
federal law that is independent of any claims of private citizens.”). For that reason,
privity has been found only where the later government action seeks to represent
essentially private interests—i.e., where the government and private interests align.
In determining whether the government’s interests are essentially private, courts
place significant emphasis on the type of relief sought. A claim for monetary relief, e.g.,
back pay, is highly individual in nature and suggests the agency acts as a mere
representative for the individual claimant. However, a claim for injunctive relief, e.g.,
requiring employer training, suggests the agency is acting as a separate entity seeking to
vindicate public rights. See, e.g., EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1291 (7th
Cir. 1993) (finding no privity between a plaintiff and the EEOC acting solely on his
behalf insofar as the relief the EEOC sought was not individual damages but rather an
injunction against further violation); EEOC v. Goodyear Aerospace Corp., 813 F.2d
1539, 1542–43 (9th Cir. 1987) (same); EEOC v. Kidder, Peabody and Company, Inc.,
156 F.3d 298, 302 (2d Cir. 1998) (holding that an arbitration agreement precluded the
EEOC from seeking purely monetary relief for an employee but did not preclude it from
seeking injunctive relief.); Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417,
1420 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985) (finding privity where the
Secretary’s ultimate goal “was not so much to benefit Mr. Dugan personally as to create
an atmosphere in which employees in general feel safe in making complaints” because
MEMORANDUM DECISION AND ORDER - 9

the Secretary sought to further this goal “through the means of benefiting Mr. Dugan
personally.”); but see E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 (2002) (EEOC may
obtain victim-specific remedies on behalf of an employee who signed a valid arbitration
agreement).
Here, the Secretary includes both a claim for individual damages (lost wages and
reinstatement for Ms. Weymiller) and for injunctive relief, including:
an Order permanently enjoining Defendant, their officers, agents, servants,
employees and all persons acting or claiming to act in their behalf and interest
from violating the provisions of Section 211(a) of AHERA, 15 U.S.C. §
2651(a)[;] . . .
an Order directing Defendant District and its officers, supervisors, and lead
employees to be trained in the whistleblower provisions of the AHERA and the
OSH Act; and
an Order requiring posting, in a prominent place at Defendant District for 90
(ninety) days, a Notice stating Defendant will not in any manner discriminate
against employees because of engagement, whether real, perceived, or suspected,
in activities protected by the whistleblower provisions of the AHERA and the
OSH Act[.]
Compl. at 4:21–5:21, Dkt.1. The broad injunctive relief sought indicates that the
Secretary’s efforts involve a matter of greater public interest than Ms. Weymiller’s
individual suit. Accord EEOC v. Waffle House, Inc., 193 F.3d 805, 812 (4th Cir.1999)
(“[a]lthough the [administrative agency] acts in the public interest, even when enforcing
only the charging party's claim, . . . the public interest aspect of such a claim is less
significant than an [administrative agency] suit seeking large-scale injunctive relief to
attack discrimination more generally”).

MEMORANDUM DECISION AND ORDER - 10

This conclusion is complicated by the Secretary’s statements suggesting that its
interests are adequately protected by individual claimants in most whistleblower cases:
Under the ERA and the Environmental Whistleblower statutes, OSHA does not
ordinarily appear in the proceeding. The Secretary has found that in most
whistleblower cases, parties have been ably represented and the public interest has
not required the Department's participation. Nevertheless, the Assistant Secretary,
at his or her discretion, may participate as a party or as amicus curiae at any time
in the administrative proceedings . . . [and may] petition for review of a decision
of an ALJ.
Procedures for the Handling of Retaliation Complaints Under the Employee Protection
Provisions of Six Environmental Statutes and Section 211 of the Energy Reorganization
Act of 1974, as Amended, 76 Fed. Reg. 2815-16 (Jan. 12, 2011) (to be codified at 29
C.F.R. Part 24). These statements, however, do not preclude the Secretary from taking
action independent of private litigants where such action is warranted. Here, the
Secretary’s pursuit of broader injunctive relief demonstrates a determination that the
public interest would not be adequately served by vindication of Ms. Weymiller’s
individual rights alone. Because there was no identity of interests, the Court finds that the
Secretary was not in privity with Ms. Weymiller when she litigated her claim under the
CAA, and is not estopped from pursing his claim under AHERA.
3.

Failure to Appeal

The District argues that by failing to timely appeal the determination by the ALJ
that no retaliation occurred, the Secretary adopted its findings as his own and thus is
precluded from challenging them. See 29 C.F.R. § 24.110(b) (“if no timely petition for
review [of the ALJ decision] is filed . . . the decision will become the final order of the
Secretary [and] is not subject to judicial review.”). The ALJ’s decision, and the
MEMORANDUM DECISION AND ORDER - 11

Secretary’s adoption of that decision do no more than reflect the agency’s determination
of Ms. Weymiller’s claim against the District under the CAA. The Court has already
found that previous agency determinations have no preclusive effect on the Secretary’s
ability to bring claims under AHERA, because Congress has expressly provided for the
determination of such claims by a district court.
CONCLUSION
The Court finds that the requirements for applying the collateral estoppel doctrine
have not been satisfied by the particular circumstances of this case. Congress has limited
the preclusive effect of prior agency determinations on claims under AHERA. Further,
the Secretary does not represent the same legal interests as Ms. Weymiller, so as to
establish privity between the two parties. Accordingly, the Court will deny the District’s
Motion for Summary Judgment.
ORDER
IT IS ORDERED:
1.

Pursuant to Fed. R. Civ. P. 25(d), Plaintiff R. Alexander Acosta shall be
substituted for his predecessor, Thomas E. Perez, as Secretary of Labor.

2.

Defendant’s Motion to Supplement (Dkt. 53) is GRANTED.

3.

Defendant’s Motion for Summary Judgment (Dkt. 44) is DENIED.

4.

Counsel for the Plaintiff shall contact courtroom deputy Jamie Bracke
within one week following the entry of this Order to make arrangements for
a telephonic trial setting conference with the Court to set pre-trial and trial
deadlines.

MEMORANDUM DECISION AND ORDER - 12

DATED: December 6, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 13