Letter to the Editor
Contrary to the Sept. 26 article in the GovExec.com Daily Briefing, ("Whistleblower protections in limbo") the U.S. Department of Labor is by no means "arguing that (whistleblower protections) do not apply to federal employees because of the notion of sovereign immunity."
Sharyn Erickson, the EPA and EPA's inspector general each appealed a decision by a Labor Department Administrative Law Judge under six laws containing whistleblower protection provisions. The decision was in Ms. Erickson's favor. Each party appealed to the U. S. Department of Labor's (DOL) Administrative Review Board (ARB).
A recent ARB case--Powers v. Tennessee Department of the Environment--concluded that the long standing law of sovereign immunity applies to state governments sued by state employees under the whistleblower provisions of the federal Clean Air Act and other environmental acts. This decision potentially raises the issue of whether Congress intended that the legal principle of sovereign immunity apply to federal employees suing the federal government under the six environmental statutes applicable in the Erickson case.
ARB functions as a quasi judicial body. It is required to apply legal precedent established by the federal courts, and it is doing so in this case by giving each party the opportunity to provide supplemental legal arguments on this important issue. This action is the norm where a serious issue has not been thoroughly addressed in the briefs filed. It does not reflect a policy position in support of or against applying sovereign immunity to the environmental whistleblower acts. To assert otherwise is just wrong.
The opinion of the Occupational Safety and Health Administration was sought because OSHA administers whistleblower protections under 14 federal laws, including the statutes in question in the Erickson case. OSHA responded that in four of the six statutes in question Congress specifically waived federal sovereign immunity.
It is important for readers to note, as GovExec pointed out, that the federal Whistleblower Protection Act of 1989 and the 2002 "No Fear" Act protect federal whistleblowers. These acts specifically apply to federal workers. They are not at issue here.
Al Belsky
Public Affairs Specialist
U.S. Department of Labor
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