Summary
holding State did not waive Eleventh Amendment immunity by bringing suit in federal district court "for the sole and exclusive purpose of obtaining an immunity determination for the underlying whistleblower claims that remained pending before the administrative agency"
Summary of this case from Farmer v. Camden City Board of EducationOpinion
Nos. 00-2326, 01-1543.
Heard January 8, 2002.
Decided April 8, 2002.
Appeal from the United States District Court for the District of Rhode Island, Ernest C. Torres, Chief District Judge.
Mark B. Stern, with whom Stuart E. Schiffer, Acting Assistant Attorney General, Margaret E. Curran, United States Attorney, and Alisa B. Klein, were on brief for the United States appellants.
Daniel P. Meyer, with whom Joel D. Landry, Sr., were on brief for appellants Migliore, Raddatz and Taylor.
Jonathan M. Gutoff, was on brief as amicus curiae.
James R. Lee, Assistant Attorney General, with whom Sheldon Whitehouse, Attorney General, and Deborah A. George, Senior Legal Counsel, were on brief for appellees.
Before BOUDIN, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
The State of Rhode Island brought suit in the district court seeking to enjoin certain federal administrative proceedings on the grounds that the proceedings infringed upon the state's constitutionally protected sovereign interests. The district court enjoined the United States Department of Labor and three employees of a Rhode Island state agency from proceeding in an administrative adjudication of the employees' claims that the state had retaliated against them in violation of federal law. The United States and individual employees now appeal the order entering the injunction.
After fully considering the parties' contentions, which were ably briefed and very well argued, we affirm the judgment of the district court, with only slight modification to its order.
I.
A. Statutory Background
The Solid Waste Disposal Act ("SWDA" or "Act"), 42 U.S.C. §§ 6901- 6992k, is a comprehensive environmental enactment designed to promote the reduction of hazardous waste and the treatment, storage, or disposal of such waste so as to minimize threats to human health and the environment. Id. § 6902(b).
The Act contains a whistleblower provision that prohibits an employer from firing or otherwise discriminating against an employee who initiates or testifies in a proceeding brought pursuant to the Act. Id. § 6971(a). The Act establishes an administrative scheme by which an employee who believes that he was the victim of a retaliatory adverse employment action may seek review of the employer's decision by the Secretary of Labor. See 29 C.F.R. pt. 24.
The same administrative enforcement mechanism applies to the whistleblower provisions in several other environmental statutes. See 29 C.F.R. § 24.1; see also 15 U.S.C. § 2622 (Toxic Substances Control Act); 33 U.S.C. § 1367 (Water Pollution Control Act); 42 U.S.C. § 300j-9 (Safe Drinking Water Act); 42 U.S.C. § 5851 (Energy Reorganization Act); 42 U.S.C. § 7622 (Clean Air Act); 42 U.S.C. § 9610 (Comprehensive Environmental Response, Compensation, and Liability Act).
1. Initial investigation
Under this administrative scheme, an employee may, within thirty days of the alleged retaliation, apply to the Secretary of Labor for a review of the firing or alleged discrimination. 42 U.S.C. § 6971(b). The Act directs the Secretary of Labor ("Secretary"), upon receiving such an application, to cause an investigation to be made as the Secretary deems appropriate. Id. By regulation, an initial investigation is conducted by the Office of the Assistant Secretary of the Occupational Safety and Health Administration ("OSHA"). 29 C.F.R. § 24.4(b). The regulations authorize OSHA, in the course of this investigation, to enter and inspect places and records, question persons who are being proceeded against and other employees of the charged employer, and require the production of any documentary or other evidence deemed necessary to determine whether a violation of the law has been committed. Id. Within thirty days of receipt of the employee's application, OSHA must complete the investigation and determine whether a violation has occurred. Id. § 24.4(d)(1).
2. Opportunity for an administrative hearing
The statute requires the Secretary to provide, on request of either party, an opportunity for a hearing to enable the parties to present information relating to the alleged violation. 42 U.S.C. § 6971(b). Upon such a request, OSHA's initial determination becomes inoperative, 29 C.F.R. § 24.4(d)(2), and the matter is assigned to an administrative law judge ("ALJ") within the Department of Labor, id. § 24.6(a). A hearing before the ALJ is conducted in accordance with the formal hearing provisions of the Administrative Procedure Act ("APA"), set forth at 5 U.S.C. § 554. 42 U.S.C. § 6971(b). The employer and employee are entitled to be represented by counsel at the hearing, present evidence on their behalf, and, upon request, present oral argument and file a prehearing brief or other written statement of fact or law. 29 C.F.R. §§ 24.6(d), (e)(1)-(3). At her discretion, the Secretary may intervene in the matter as a party or amicus curiae at any time during the proceedings. Id. § 24.6(f)(1).
At the end of the hearing, the ALJ issues a recommended decision. Id. § 24.7(a). If the ALJ finds in favor of the complainant, a recommended order that includes a recommendation as to appropriate relief is issued. Id. § 24.7(c)(1).
The ALJ's recommended decision becomes final unless a petition for review is filed with the Administrative Review Board ("ARB"), id. § 24.7(d), a body to which the Secretary has delegated the authority to issue final decisions, id. § 24.8(a). The ARB is composed of three members, each of whom is appointed by the Secretary for a term not to exceed two years. See Authority and Responsibilities of the Administrative Review Board, 61 Fed.Reg. 19,978, 19,789 (May 3, 1996).
The ARB reviews the decision of the ALJ to determine whether a violation of the law occurred. 29 C.F.R. § 24.8(d)(1). If the ARB determines that a violation did occur, it shall order the party charged to take "appropriate affirmative action to abate the violation," including reinstating the complainant and compensating the complainant for back pay and other compensatory damages. Id. The ARB, at the request of the complainant, shall also award attorney fees and costs. Id. § 24.8(d)(2); 42 U.S.C. § 6971(c). If the ARB concludes that no violation occurred, it must issue an order denying the complaint. 29 C.F.R. § 24.8(e).
3. Enforcement of the Secretary's orders
Unlike a court, the Secretary does not have inherent authority to issue enforceable orders, and the SWDA does not give the Secretary the power of contempt, mandamus, or other coercive power. Thus, any enforcement of the Secretary's orders must occur in court. 42 U.S.C. §§ 6971(b), 6972(a).
B. Factual Background and Proceedings Below
1. Administrative proceedings
The State of Rhode Island and the Rhode Island Department of Environmental Management ("DEM") brought this action to enjoin four separate administrative proceedings brought pursuant to the whistleblower provision of the SWDA. The complainants in these proceedings were DEM employees Beverly Migliore, Barbara Raddatz, and Joan Taylor (the "individual appellants"). They each allege that the state agency retaliated against them for reporting what the employees believed to be an improper implementation of the SWDA. See Rhode Island v. United States, 115 F.Supp.2d 269, 270-71 (D.R.I. 2000). Migliore also filed a second charge based on her allegation that DEM had retaliated against her for initiating the first proceeding. Id. at 271. The relief that each complainant sought included monetary and injunctive relief. Id.
The four proceedings were at different stages when the district court enjoined further action. In Migliore's first proceeding, an ALJ had issued a recommended decision awarding her $843,000 in monetary relief, and the DEM filed a petition with the ARB for review of the ALJ's decision. Id. at 272. In the second proceeding initiated by Migliore, OSHA had issued an order awarding Migliore $10,000 in monetary relief, and the DEM requested a hearing before an ALJ. Id. In the proceeding initiated by Barbara Raddatz, OSHA found no violation, and Raddatz requested a hearing before an ALJ. Id. Joan Taylor's allegations were still under investigation when the district court's injunction issued. Id. 2. Proceedings in the district court
OSHA subsequently found that Taylor's allegations had merit, and the DEM requested a hearing which, due to the injunction, has not taken place.
In ruling on Rhode Island's motion for a preliminary injunction, the district court held that the administrative proceedings were barred by sovereign immunity principles. The court observed that in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the Supreme Court had contrasted a suit brought by the United States with a suit brought by a private party and explained that "'[s]uits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States.'" Rhode Island, 115 F.Supp.2d at 273 (quoting Alden, 527 U.S. at 756, 119 S.Ct. 2240). The district court concluded that the same reasoning applied to administrative proceedings. In the court's view, the Secretary could investigate alleged violations of federal law and determine appropriate relief, but the Secretary could not rely on privately initiated adversary proceedings in making that determination. Id. at 274.
The court entered a preliminary injunction barring any further prosecution before the Department of Labor of the employees' claims against the state agency. Id. at 279. Although the court did not enjoin OSHA from investigating the alleged violations on which those claims were based or from otherwise seeking to ensure the state's compliance with federal law, id., its ruling does not seem to allow the administrative proceedings to continue if the Secretary decides to intervene to prosecute the complaints on the individuals' behalf.
Because the district court had effectively decided the case on the merits, the parties filed a stipulation to convert the preliminary injunction into a permanent injunction and enter final judgment. The court entered final judgment pursuant to that stipulation.
The United States and individual appellants filed separate notices of appeal. However, the individual appellants filed their notices of appeal in response to the district court's granting of the preliminary injunction. The individuals' notices were then rendered moot by the entry of judgment and a permanent injunction. See Chaparro-Febus v. Int'l Longshoremen Ass'n, 983 F.2d 325, 331 n. 5 (1st Cir. 1993) (finding plaintiffs' complaints on appeal concerning denial of preliminary injunction to be moot given final judgment dismissing case). Accordingly, this Court dismissed the individuals' appeals. The individual appellants then moved for rehearing and for consolidation with the United States's appeal. We concluded that the consolidation motion served as the functional equivalent of a notice of appeal, was timely filed, and thus conferred jurisdiction. We therefore reinstated the individuals' appeal.
II.
A. Jurisdictional Issues
Writing as amicus curiae, the American Civil Liberties Union of Rhode Island ("ACLU-RI") raises a challenge to the jurisdiction of the district court — and, by extension, this court — over the state's claim of sovereign immunity. As a general matter, we do not consider arguments advanced only by an amicus, United States v. Sturm, Ruger Co., 84 F.3d 1, 6 (1st Cir. 1996), nor do we entertain challenges raised for the first time on appeal, Campos-Orrego v. Rivera, 175 F.3d 89, 95 (1st Cir. 1999). Given the jurisdictional dimensions of ACLU-RI's arguments, however, we shall address them fully. See In re Healthco Int'l, Inc., 136 F.3d 45, 50 n. 4 (1st Cir. 1998) ("As in any other case, we must consider, sua sponte if need be, whether we possess subject matter jurisdiction over an appeal.").
The APA explicitly requires that an agency's action be "final" before a claim is ripe for review. 5 U.S.C. § 704. This requirement of finality, which serves several important functions, is generally regarded as jurisdictional in nature. DRG Funding Corp. v. Sec'y of Hous. Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996). The finality requirement allows the agency an opportunity to apply its expertise and correct its mistakes, it avoids disrupting the agency's processes, and it relieves the courts from having to engage in "piecemeal review which at the least is inefficient and upon completion of the agency process might prove to have been unnecessary." FTC v. Standard Oil Co., 449 U.S. 232, 242, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980).
In the case at hand, the amicus argues that Rhode Island has impermissibly sought review of agency action that is not "final" within the meaning of the APA. Rhode Island does not dispute that the administrative proceedings were not yet final when it brought its claim for injunctive relief in the court below. Instead, the state argues that its constitutional claim of immunity finds jurisdictional footing, not in the APA, but in the more general grant of federal-question jurisdiction provided by 28 U.S.C. § 1331.
We agree with the amicus that there is no "final agency action" that we may review pursuant to APA § 704. In the context of adjudicatory administrative proceedings, a final decision that may be reviewed or enforced in federal court is one that resolves not only the underlying claim, but also the relief to be afforded if liability is found. Rivera-Rosario v. U.S. Dep't of Agric., 151 F.3d 34, 37 (1st Cir. 1998). However, Rhode Island is not pretending to bring its claim pursuant to the APA; nor is it claiming to be aggrieved by an agency's decision on the merits of a claim. Thus, we think the issue is not properly framed as one involving the ripeness of final agency action under the APA and our jurisdiction to review such action. Rather, the issue is whether we should recognize an implied cause of action that allows the state to seek direct enforcement of its constitutional rights under the doctrine of sovereign immunity, notwithstanding the formal hearing and review provision of the APA. We conclude that such a cause of action exists.
Despite the absence of a statute expressly creating a cause of action against federal officers for constitutional violations, the federal courts have long recognized that federal officers may be sued in their official capacity for prospective injunctive relief to prevent future infringements of federal rights. See Schneider v. Smith, 390 U.S. 17, 88 S.Ct. 682, 19 L.Ed.2d 799 (1968); Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912); see generally Erwin Chemerinsky, Federal Jurisdiction § 9.1 (3d ed. 1999). Given this undisturbed line of cases recognizing an implied cause of action for the vindication of other federal rights, we see no reason why a state's constitutionally protected sovereign immunity should receive any less solicitude. As the Supreme Court has acknowledged, a state's claim of sovereign immunity involves "a claim to a fundamental constitutional protection." P.R. Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 145, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993).
Our ability to authorize an implied cause of action for the vindication of federal rights is not without limitations, however. In particular, where Congress has created a remedial scheme for the enforcement of a particular federal right, we cannot supplement that scheme with a cause of action created by the judiciary. Seminole Tribe v. Florida, 517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988). The amicus argues that the administrative adjudication scheme provided by the APA is the route Congress has chosen for the resolution of the State's sovereign immunity claims and that, as a consequence, we should rebuff Rhode Island's attempt to assert its immunity outside of that mechanism.
The state's claim, at its core, is that constitutional sovereign immunity principles protect it from having to defend against an adversarial administrative proceeding initiated and prosecuted by a private party. Viewed from that perspective, the state's claim cannot be construed as asserting a right for which the formal hearing provisions of the APA provide a detailed enforcement scheme. In fact, the very injury claimed by the State is the indignity of being compelled to submit to such proceedings. Thus, an implied cause of action is not only a proper avenue for pursuing the State's constitutional claim of sovereign immunity, it is the only avenue for relief that would address the harm of which the state complains. See Davis v. Passman, 442 U.S. 228, 242, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ("[T]he class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights."). We therefore conclude that this action is properly before us.
The state raises its own threshold challenge to our jurisdiction, which we address only briefly. Rhode Island contends that this appeal was mooted by our dismissal of the individual appellants' earlier appeal from the order granting the preliminary injunction. However, following our dismissal, the individual appellants moved for rehearing and for consolidation with the United States's appeal. We treated this as the functional equivalent of a notice of appeal and reinstated the individuals' appeal. Although Rhode Island now objects strenuously to our decision, it offers no developed argument challenging our authority to reinstate the appeal. The reinstatement of the individuals' appeal therefore stands.
B. Preliminary injunction
Under this circuit's formulation, trial courts follow a four-part framework in determining whether preliminary injunctive relief is appropriate. The district court considers: first, the likelihood that the party requesting the injunction will succeed on the merits; second, the potential for irreparable harm if the injunction is denied; third, the balance of hardships to the parties if injunctive relief is either granted or denied; and fourth, the effect of the court's ruling on the public interest. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996).
We generally review the district court's grant or denial of a preliminary injunction for an abuse of discretion. Id. This deferential standard, however, applies only to "issues of judgment and balancing of conflicting factors," and we still review rulings on abstract legal issues de novo and findings of fact for clear error. Cablevision of Boston, Inc. v. Pub. Improvement Comm'n, 184 F.3d 88, 96 (1st Cir. 1999) (quoting Ocean Spray Cranberries, Inc. v. Pepsico, Inc., 160 F.3d 58, 61 n. 1 (1st Cir. 1998)).
1. Likelihood of success on the merits
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The states' immunity described by the Eleventh Amendment, however, "neither derives from, nor is limited by," the amendment's literal terms. Alden, 527 U.S. at 713, 119 S.Ct. 2240. Instead, as the Constitution's structure, and its history, and the authoritative interpretations by [the Supreme] Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.
Id.
The presupposition of the states' sovereignty confirmed by the Eleventh Amendment has two parts: "first, that each State is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." Seminole Tribe, 517 U.S. at 54, 116 S.Ct. 1114 (citations and quotation marks omitted). In this appeal we confront the application of these principles to the use of federal administrative adjudications to enforce the federal statutory rights of certain employees, including some employed by state entities, to be free of retaliation by their employers.
Relying primarily on Alden, Rhode Island contends that the principles of sovereign immunity bar private individuals from hailing the DEM into the administrative whistleblower proceedings. This basic thesis was accepted by the district court and is set forth in detail in its opinion. Several other district courts have also reached the conclusion that administrative whistleblower proceedings under 29 C.F.R. part 24 cannot be initiated against a non-consenting state by a private party. See Conn. Dep't of Envtl. Prot. v. OSHA, 138 F.Supp.2d 285 (D.Conn. 2001); Florida v. United States, 133 F.Supp.2d 1280 (N.D.Fla. 2001); Ohio Envtl. Prot. Agency v. U.S. Dep't of Labor, 121 F.Supp.2d 1155 (S.D.Ohio 2000). In addition, one of our sister circuits has recently concluded that sovereign immunity bars the private prosecution of similar administrative proceedings under the Shipping Act, 46 U.S.C.App. § 1701 et seq., against a non-consenting state. See S.C. Ports Auth. v. Fed. Mar. Comm'n, 243 F.3d 165 (4th Cir. 2001), cert. granted, ___ U.S. ___, 122 S.Ct. 392, 151 L.Ed.2d 297 (Oct. 15, 2001) (No. 01-46).
Appellants do not dispute that DEM is an arm of the State of Rhode Island entitled to the same immunity as Rhode Island itself. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (holding that an "arm of the State" partakes of the state's sovereign immunity, but that such immunity does not extend to municipal corporations or other political subdivisions).
The Supreme Court has heard arguments on the Fourth Circuit case, but has yet to issue a decision.
Appellants raise several challenges to the district court's ruling. They argue that, due to the non-judicial nature of the proceedings, the principles of sovereign immunity are inapplicable a priori. They also contend that, irrespective of whether sovereign immunity applies to administrative proceedings in the ordinary case, exceptions to the immunity doctrine should allow the particular whistleblower claims in this case to proceed. We begin with the question of whether sovereign immunity principles apply to adjudications in an administrative forum.
Appellants first argue that the district court erred in applying Eleventh Amendment principles to the case at hand because the plain language of the Eleventh Amendment limits only the "Judicial power of the United States" and does not extend to administrative proceedings. They also point to a handful of cases from our sister circuits holding that the Eleventh Amendment, by its literal terms, does not apply to non-Article III tribunals. See, e.g., Premo v. Martin, 119 F.3d 764, 769 (9th Cir. 1997); Tenn. Dep't of Human Servs. v. U.S. Dep't of Educ., 979 F.2d 1162, 1167 (6th Cir. 1992). But see In re Murphy, 271 F.3d 629, 632 (5th Cir. 2001) (holding that the Eleventh Amendment bars suits by private parties against non-consenting states in Article I bankruptcy courts); In re Mitchell, 209 F.3d 1111, 1116 (9th Cir. 2000) (same); In re NVR, LP, 189 F.3d 442, 453 (4th Cir. 1999) (same); In re Sacred Heart Hosp., 133 F.3d 237, 243 (3d Cir. 1998) (same).
As noted earlier, the Supreme Court has made clear that the plain text of the Eleventh Amendment does not prescribe the outer limits of the states' right to be free from privately prosecuted lawsuits. In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Court first held that, notwithstanding its plain language, the Eleventh Amendment precludes federal jurisdiction over suits initiated against non-consenting states by their own citizens. Id. at 15, 10 S.Ct. 504. More recently, in Alden, the Court stated that "the sovereign immunity of States derives neither from, nor is limited by, the terms of the Eleventh Amendment." 527 U.S. at 713, 119 S.Ct. 2240. The Alden Court also confirmed the breadth of the immunity doctrine by concluding that its principles are not limited to proceedings in Article III courts, but, instead, extend to privately prosecuted suits against a state in the state's own courts, even where the relief sought is based on an alleged violation of federal law. Id. at 717, 119 S.Ct. 2240. Under this same rationale, the Eleventh Amendment poses no barrier to applying sovereign immunity principles to administrative adjudications.
Faced with Alden's expansive holding, appellants argue that, even if the immunity principles announced in Alden could apply to some administrative proceedings, they are inapplicable to the scheme established under the SWDA because those proceedings are not "judicial" in nature and, instead, are merely an extension of the Secretary's investigatory function. In support of their argument, the appellants attempt to draw an analogy to the "public rights" doctrine, see generally N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), and contend that because the ALJ lacks certain judicial powers (such as the contempt authority or the power to enforce his or her awards), the proceedings cannot rightly be understood as judicial in nature.
We are skeptical about mining the public rights doctrine for an answer to the question of whether the administrative proceedings at issue here are sufficiently judicial to trigger the protections of sovereign immunity. The public rights doctrine was crafted for an entirely different purpose, namely, to determine the constraints Article III places on Congress's ability to delegate adjudicative functions to non-Article III bodies. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 847-48, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). As such, the doctrine is mostly concerned with "protect[ing] the role of the independent judiciary within the constitutional scheme of tripartite government, and . . . safeguard[ing] litigants' right to have claims decided before judges who are free from potential domination by other branches of government." Id. at 848, 106 S.Ct. 3245 (citations and quotation marks omitted). Its application bears only the most tenuous relation to the question of whether forcing a state to defend a certain type of action entails a constitutionally intolerable invasion of sovereign dignity. See id. at 857-58, 106 S.Ct. 3245 (noting that the Court has not intimated that "principles of federalism" are relevant to determinations under the public rights doctrine).
Therefore, notwithstanding the public rights doctrine, we agree with the district court that proceedings in the ALJ phase are not mere investigatory actions. Instead, they partake sufficiently of a judicial proceeding initiated and prosecuted by a private party to trigger the state's sovereign immunity.
As with a private suit in federal court, the federal government has no role in determining whether a private party may initiate proceedings before the ALJ. Rather, the proceedings are initiated by detailed private complaints that frame the factual and legal issues to be determined. Once the proceedings begin, they are conducted in the same basic manner as a claim is prosecuted in court: the complaining party bears the burden of proving a violation of its rights by the responding party, and a neutral party determines disputed issues of law and fact.
The agency adjudication also provides many of the procedural safeguards that are characteristic of proceedings in court. The agency proceedings are conducted before a trier of fact insulated from political influence. The parties are entitled to present their cases by oral or documentary evidence, and the transcript of testimony and exhibits, together with the pleadings, constitute the exclusive record for the decision. The parties are also entitled to know the findings and conclusions on all of the issues of fact, law, or discretion on the record. In sum, "[t]he process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from the pressures by the parties or other officials within the agency." Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).
Finally, the nature of the relief sought is analogous to the relief that would be available in a traditional court proceeding. In the case at hand, the individual appellants sought not only equitable relief, in the nature of reinstatement, but also monetary relief, including back pay and other compensatory damages. Such relief against a state would ordinarily be barred by sovereign immunity principles. See Ford Motor Co. v. Dep't of the Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945) ("And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity.").
As the Supreme Court stated in Alden, the courts recognize a "'presumption that no anomalous and unheard of proceedings were intended to be raised up by the Constitution.'" 527 U.S. at 727, 119 S.Ct. 2240 (quoting Hans, 134 U.S. at 18, 10 S.Ct. 504). Yet, in this case, the appellants are seeking to invoke the very sort of anomalous proceeding that sovereign immunity forbids. The federal government cannot effectively negate sovereign immunity simply by shifting the adjudication of private claims against non-consenting states to administrative fora. Thus, without more, we must conclude that a state's traditional immunity from suit applies to the administrative whistleblower proceedings enjoined by the district court.
This, however, does not end our inquiry. The doctrine of sovereign immunity is subject to numerous exceptions. See id. at 755-57, 119 S.Ct. 2240 (summarizing the limitations and exceptions to sovereign immunity). Both the United States and individual appellants contend that one or more of these exceptions deprive Rhode Island of its claimed immunity. We address these claims in turn.
a. Waiver of immunity
It has long been recognized that a state's sovereign immunity is "a personal privilege which [the state] may waive at pleasure." Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883); see generally Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 24-25 (1st Cir. 2001) (discussing waiver principles). However, we do not make a finding of waiver lightly, so the "test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).
In a variation on the recognized doctrine of waiver, the individual appellants make the novel contention that Rhode Island is a "partial sovereign," unable to invoke the full extent of sovereign immunity available to other states. The appellants' argument begins with the premise that, at the time the United States Constitution was ratified, Rhode Island maintained a provision in its colonial charter allowing it to sue or be sued in the courts. Appellants read the existence of this provision, along with Rhode Island's failure to explicitly reserve the right to claim sovereign status in subsequent manifestations of its state constitution, as conclusive proof that Rhode Island has no authority to now claim any degree of sovereign immunity.
Although OSHA found in favor of appellants Migliore and Taylor at the initial investigation phase, prompting the DEM to request a hearing before the ALJ, neither appellant has argued that the state waived its immunity by choosing to invoke the adjudicative forum. See College Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675-76, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (stating that a federal court "will find a waiver [of immunity] . . . if the State voluntarily invokes [its] jurisdiction"); see also Arecibo Cmty. Health Care, Inc., 270 F.3d at 27 (holding that the Commonwealth of Puerto Rico waived its sovereign immunity for certain claims by filing a proof of claim with the bankruptcy court). Because such a waiver argument was not pursued on appeal or before the district court, we express no view as to its merits.
A similar line of reasoning has already been considered and rejected by the Supreme Court. In the dissenting opinion in Alden, Justice Souter seized upon the historical experience of Rhode Island as proof that the concept of sovereign immunity remained unsettled at the time of the Constitution's ratification. See Alden, 527 U.S. at 769-70, 119 S.Ct. 2240 (Souter, J., dissenting). However, Alden's majority opinion drew a wholly different conclusion from the existence of sue-or-be-sued provisions in the charters of some colonies. As the Court stated,
The handful of state statutory and constitutional provisions authorizing suits or petitions of right against States only confirms the prevalence of the traditional understanding that a State could not be sued in the absence of an express waiver, for if the understanding were otherwise, the provisions would have been unnecessary.
Id. at 724, 119 S.Ct. 2240. The majority opinion also noted that any argument that Rhode Island did not recognize its own sovereign status is further belied by Rhode Island's proclamation in its ratification convention that "'[i]t is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.'" Alden, 527 U.S. at 718, 119 S.Ct. 2240 (quoting 1 Jonathan Elliot, Debates on the Federal Constitution 336 (2d ed. 1854)).
If the analysis of the Alden majority were not potent enough, two additional factors counsel in favor of rejecting the individual appellants' waiver argument. First, the argument depends almost entirely on the existence of a provision merely allowing Rhode Island to sue or be sued in its own courts. The Supreme Court has repeatedly held that such provisions are insufficient to waive the state's immunity from suit in a federal forum. See, e.g., College Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. 3142; Fla. Dep't of Health Rehab. Servs. v. Fla. Nursing Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam). Second, although the individual appellants contend that under the state's organic law Rhode Island has never been entitled to any degree of sovereign immunity, the highest court of the state has long recognized that, absent statutory abrogation, Rhode Island adheres strictly to the doctrine of sovereign immunity. Laird v. Chrysler Corp., 460 A.2d 425, 428 (R.I. 1983); see also Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896, 901-02 (R.I. 1970) (abolishing the doctrine of municipal immunity but emphasizing that "it is to be understood that this decision does not in any manner abolish or limit the sovereign immunity that inheres in the state itself"). For these reasons, we decline to adopt the individual appellants' proposal that we recognize a "Rhode Island exception" to the general principles of sovereign immunity embedded in the structure of the Constitution.
We have previously held that Rhode Island General Laws § 9-31-1 effects a broad waiver of Rhode Island's sovereign immunity for certain claims in federal court. Della Grotta v. Rhode Island, 781 F.2d 343, 347 (1st Cir. 1986); see also Laird, 460 A.2d at 429-30 (holding that § 9-31-1 waives the state's Eleventh Amendment immunity with regard to "actions in tort"). The individual appellants argued before the district court that § 9-31-1 also waived any immunity the state might have in the administrative proceedings. However, the district court rejected this statutory waiver argument, reasoning that the whistleblower proceedings before the ALJ did not qualify as an "action in tort" within the meaning of the waiver statute. Rhode Island, 115 F.Supp.2d at 276-78. Although this statutory waiver argument strikes us as a great deal more promising than the other waiver arguments presented on appeal, the individual appellants' only attempt to preserve the issue consists of a single footnote in their appellate brief purporting to "incorporate their statutory waiver argument by reference" to a brief filed before the court below. We therefore deem the argument to have been abandoned. Gilday v. Callahan, 59 F.3d 257, 273 n. 23 (1st Cir. 1995). Filing a brief that merely adopts by reference a memorandum that has been previously filed in the district court does not comply with the Federal Rules of Appellate Procedure. See Fed.R.App.P. 28(a)(6) (providing that argument must contain appellant's contentions and reasons therefor, with citations to authorities). Moreover, it is a practice "that has been consistently and roundly condemned by the Courts of Appeals," Cray Communications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n. 6 (4th Cir. 1994), and litigants in this circuit would be well advised to avoid it in the future.
b. Congressional abrogation
A state's sovereign immunity may be abrogated by congressional enactment, Alden, 527 U.S. at 756, 119 S.Ct. 2240, provided that Congress expresses its unequivocal intention to do so and acts pursuant to a valid grant of constitutional authority. Laro v. New Hampshire, 259 F.3d 1, 5 (1st Cir. 2001); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). While Congress may not base its abrogation of immunity upon the powers enumerated in Article I, it may subject non-consenting states to suit when legislating pursuant to a valid exercise of power under Section 5 of the Fourteenth Amendment. Laro, 259 F.3d at 5; Garrett, 531 U.S. at 363-64, 121 S.Ct. 955.
Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in Section 1 of the Fourteenth Amendment by enacting "appropriate legislation." Section 1 of the Fourteenth Amendment provides, in relevant part:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
The individual appellants argue that Rhode Island's immunity from suit has been abrogated because the whistleblower provisions of the SWDA were enacted pursuant to Section 5. However, such an abrogation analysis is incomplete. To be sure, the individual appellants have a colorable argument that the SWDA's whistleblower provisions were enacted to safeguard First Amendment rights that have long been made applicable to states through the Fourteenth Amendment. See Pickering v. Bd. of Educ., 391 U.S. 563, 574-75, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (holding that the First and Fourteenth Amendments protect the right of public employees to speak on matters of public concern). Yet, to determine whether a federal statute properly exposes states to suits by individuals, we must also apply a "simple but stringent test: Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000) (citations and quotation marks omitted).
The individual appellants point to nothing in the Act indicating that Congress clearly expressed an intention to abrogate the states' immunity. Nor, in reviewing the language of the SWDA ourselves, do we find any provision of the Act that remotely purports to abrogate the states' immunity. The only provision of the Act addressing the question of sovereign immunity mandates that citizen civil suits under 42 U.S.C. § 6972 may enforce the Act's substantive provisions only "to the extent permitted by the eleventh amendment to the Constitution." Id. § 6972(a)(1)(A). If anything, this section indicates that Congress had no intention to disturb the states' traditional immunity from suit. We therefore find no abrogation.
Because we conclude that Congress did not unequivocally express an intention to subject the states to suits by private individuals, we need not address a remaining inquiry under Section 5 of the Fourteenth Amendment, namely, whether the SWDA's whistleblower provision creates the necessary "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
c. Role of the federal government
"In ratifying the Constitution, the States consented to suits brought by . . . the Federal Government." Alden, 527 U.S. at 755, 119 S.Ct. 2240 (citing Principality of Monaco v. Mississippi, 292 U.S. 313, 328-29, 54 S.Ct. 745, 78 L.Ed. 1282 (1934)). Thus, sovereign immunity is no barrier to a suit initiated by the United States, even where the relief sought is monetary in nature. Seminole Tribe, 517 U.S. at 71 n. 14, 116 S.Ct. 1114; see also United States v. Texas, 143 U.S. 621, 644-45, 12 S.Ct. 488, 36 L.Ed. 285 (1892) (finding the power of the federal government to bring suit against states necessary to "the permanence of the Union"). The United States and individual appellants argue that Rhode Island's sovereign immunity is inapplicable because certain aspects of the whistleblower claim proceedings require the "exercise of political responsibility [by the federal government] for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States." Alden, 527 U.S. at 756, 119 S.Ct. 2240.
The individual appellants argue first that the ARB, the body that directly reviews the decision of the ALJ, exercises sufficient political responsibility to negate Rhode Island's immunity. In support of this contention, they point to the fact that the ARB's constituent members are each appointed by the Secretary of Labor, an executive branch official. However, we find the mere nature of the ARB members' appointment insufficient to defeat sovereign immunity. The governing regulations clearly establish that the ARB reviews the decision of the ALJ only for the limited purpose of determining whether a violation of the law occurred. 29 C.F.R. § 24.8(d)(1). Once the ARB makes this determination, its course of action is limited: if the violation occurred, the ARB must order appropriate relief, id. § 24.8(d)(1) (2); if no violation occurred, it must issue an order denying the complaint, id. § 24.8(e). There is nothing in the role defined for the ARB to suggest that its members may weigh the greater policy implications of affirming the ALJ's decision or denying the complaint. Thus, the presence of the ARB does not affect the sovereign immunity calculus.
The United States argues that Rhode Island's immunity is inapplicable because an order issuing from the administrative proceedings may ultimately be enforced by a suit initiated by the Secretary. We do not question that the Secretary enjoys a kind of broad prosecutorial discretion in determining whether to bring suit to enforce the ARB's order. This, however, does not obviate the entire immunity issue. The SWDA's citizen suit provision also allows an individual complainant to enforce the administrative order by initiating a suit in federal court. 42 U.S.C. § 6972(a)(1)(A). While it is not clear to what extent issues of validity can be adjudicated at that point, the ability of individuals to initiate an enforcement proceeding severely undercuts the United States's argument that states are safeguarded by the political discretion exercised by the Secretary.
The individual appellants offer a variation of this argument: they claim that the United States, in addition to being the plaintiff in any subsequent enforcement action, is the "true" plaintiff in the administrative proceedings. Notably, the United States does not join this argument. It is obvious from the regulatory scheme and governing APA provisions that the administrative adjudication is not directed or prosecuted by the Secretary. Instead, the individual complainant tries a case against the employer, and the Secretary (through the ALJ) acts as the neutral arbiter of law and fact. See Butz, 438 U.S. at 513, 98 S.Ct. 2894 ("[T]he [ALJ] exercises his independent judgment on the evidence before him, free from pressures by . . . other officials within the agency.").
Further, the doctrine of sovereign immunity is concerned not only with the states' ultimate liability for damages, but also with their privilege not to be sued in the first place. P.R. Aqueduct Sewer Auth., 506 U.S. at 146 n. 5, 113 S.Ct. 684. Yet, long before the Secretary has the opportunity to exercise political judgment at the enforcement stage, the state is presented with the decision whether to submit to the adjudicatory proceedings before the ALJ. Having to appear in such proceedings has long been understood as one of the primary indignities the doctrine of sovereign immunity serves to prevent. See In re Ayers, 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887) ("The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties.").
Although the ALJ has none of the coercive powers with which it could literally compel the state to participate in the administrative proceedings, it is clear that the state's actual choice in participating is — as a practical matter — largely illusory. If the state refuses to answer the administrative complaint or participate in the proceedings, resulting in a default order against the state, the reviewing court could only disturb the unfavorable finding based on the narrow grounds set forth in § 706 of the APA, 5 U.S.C. § 706. That is, the agency's order would only be reviewed on the basis of the record before the agency, id., and would be enforced unless the agency's decision were arbitrary and capricious or its ultimate factual findings were not supported by substantial evidence. Id. § 706(2)(A) (E). Thus, any decision not to participate in the adjudicative proceedings before the agency easily could be transmuted into a practically unreviewable federal court judgment for injunctive relief and money damages.
In an attempt to diminish the significance of the administrative proceedings' preclusive effect, the United States posits that, despite the mandate of the APA, a court asked to enforce the Secretary's order would exercise plenary review of the order so as to avoid conflict with the principles of sovereign immunity. In effect, the United States envisions a reviewing court conducting a trial de novo and according no deference to either the factual findings or legal conclusions of the ALJ. This is a creative proposition, but actual support for it is slim. The whistleblower provision of the SWDA squarely states that all hearings conducted under that section shall be subject to § 554 of the APA. 42 U.S.C. § 6971(b). The conduct of proceedings under APA § 554 is governed by § 556, see 5 U.S.C. § 556(a), and agency decisions subject to § 556 are, in turn, reviewed under the deferential "substantial evidence" standard, see id. § 706(2)(E). Thus, the result urged by the United States is an overwhelmingly disfavored one because it directly contradicts the express language of the relevant statutory provisions. Moreover, the United States's argument leads to an absurd result, and one that we decline to reach. As the Fourth Circuit noted, "it is difficult to believe that the agency adjudication is so meaningless as to permit a private party to subject an unconsenting state to agency proceedings because of the adjudication's very emptiness." S.C. Ports Auth., 243 F.3d at 175.
For instance, the United States asserts that the whistleblower provision at issue has built-in Eleventh Amendment protections that would engender de novo review of the Secretary's order in any enforcement action. The statute to which it refers, 42 U.S.C. § 6972, is a "citizen suit" provision that allows for private civil actions for the enforcement of "any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to" the SWDA. Id. § 6972(a)(1)(A). The provision also limits civil actions against government entities "to the extent permitted by the eleventh amendment to the Constitution." Id. Whatever this language may mean in the context of a privately initiated enforcement action, it has dubious relevance to an enforcement suit initiated by the United States.
We therefore conclude that the ordinary role of the federal government as an enforcer of the Secretary's orders does not alter the state's entitlement to immunity. The Secretary exercises no discretion in the initiation of the administrative proceedings. Yet, to the detriment of the state's sovereign interest, the state is for all practical purposes obliged to participate in those proceedings. In short, the Secretary's "discretion at the back end of the process simply does not help the unconsenting state up front." Id.
We hasten to emphasize, however, that our holding does not preclude the Secretary from intervening in the enjoined proceedings, see 29 C.F.R. § 24.6(f)(1), and removing the sovereign immunity bar. See Ohio Envtl. Prot. Agency, 121 F.Supp.2d at 1167. If the United States joins a suit after it has been initiated by otherwise-barred private parties and seeks the same relief as the private parties, this generally cures any Eleventh Amendment or sovereign immunity defect, and the private parties may continue to participate in the suit. See Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 913 (8th Cir. 1997), aff'd, 528 U.S. 1073, 120 S.Ct. 785, 145 L.Ed.2d 662 (2000); Seneca Nation of Indians v. New York, 178 F.3d 95, 97 (2d Cir. 1999) (per curiam). To the extent the district court's injunction precludes the Secretary from joining in the proceedings as a party, we modify the injunction accordingly.
We also note, in agreement with the district court, that OSHA is not enjoined from receiving complaints, conducting its own investigations on such complaints, and making determinations as to liability under 29 C.F.R. § 24.4(d)(1).
d. Ex parte Young exception
Lastly, the appellants argue that under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), there is no impediment to the administrative adjudication insofar as the complainants are seeking prospective equitable relief, such as reinstatement. Under our precedent, "[i]t is quite true that Ex Parte Young avoids the [sovereign immunity] defense where prospective injunctive relief, not involving damages or property transfer, is sought against named state officials for a violation of federal law." Neo Gen Screening, Inc. v. New England Newborn Screening Program, 187 F.3d 24, 28 (1st Cir. 1999) (citing Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 276-77, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)).
In this case, the individual appellants contend that they did name their managers at DEM in their administrative complaints. If their managers were named in their official capacity and sued only for prospective equitable relief, the complaint might not be barred by sovereign immunity. Cf. Florida, 133 F.Supp.2d at 1291-92 (allowing administrative whistleblower claims for injunctive relief to proceed against individuals named in their official capacity). But we cannot properly assess whether these conditions were met here because the individual appellants' brief contains no sustained argument in support of their claim. Mass. Sch. of Law v. Am. Bar. Ass'n, 142 F.3d 26, 43 (1st Cir. 1998).
We express no view as to whether an employee filing a complaint under 42 U.S.C. § 6971 may also seek monetary relief against a state official named in his individual capacity. Cf. Hafer v. Melo, 502 U.S. 21, 30-31, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (holding that a state officer sued in his individual capacity may be held personally liable for damages under 42 U.S.C. § 1983 based upon actions taken in his official capacity).
We note, however, that Rhode Island asserts that the complaints did not name any individuals in their official capacity. Nor does the United States challenge Rhode Island's assertion. Moreover, there is no dispute that the individual appellants sought monetary relief in addition to their prayers for reinstatement. See Rhode Island, 115 F.Supp.2d at 271.
We conclude that the district court was correct to hold that Rhode Island has demonstrated a likelihood of success on the merits. The states' immunity from suit embedded in the structure of the Constitution extends to adversary administrative proceedings that are prosecuted against a state by a private party. And in this case, the parties have advanced no arguments that persuade us that a recognized exception to the immunity doctrine is applicable.
2. Other preliminary injunction factors
The individual appellants challenge the district court's rulings on each of the remaining preliminary injunction factors. Because we conclude that the district court did not abuse its discretion in evaluating any of the factors, we address these arguments only briefly.
The appellants first argue that the state failed to demonstrate that it would suffer irreparable harm in the absence of an injunction. Such an argument downplays a fundamental aspect of the state's sovereign immunity. The state's immunity is not merely a defense from liability; it is a safeguard against being subjected to "the coercive process of judicial tribunals at the instance of private parties." In re Ayers, 123 U.S. at 505, 8 S.Ct. 164. If a state cannot assert its immunity in the earliest stages of the adjudication, the benefit conferred by the immunity is irretrievably lost. P.R. Aqueduct Sewer Auth., 506 U.S. at 145, 113 S.Ct. 684.
As for the balance of hardships, the individual appellants contend that their interests in gaining relief on their whistleblower claims outweigh the state's sovereign interests. Although we sympathize with the appellants' frustrated efforts to vindicate their rights, the Supreme Court has demonstrated on several occasions that employees' federal statutory rights may, in some circumstances, be subordinated to the sovereign interests of the states. See Garrett, 531 U.S. at 360, 121 S.Ct. 955 (holding that sovereign immunity bars state employees' claims under Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12111- 17); Kimel, 528 U.S. at 67, 120 S.Ct. 631 (same with regard to claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34); Alden, 527 U.S. at 712, 119 S.Ct. 2240 (same with regard to claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201-19).
Lastly, the individual appellants argue that the issuance of an injunction runs counter to the public interest in protecting whistleblowers and promoting clean government. The district court took these important interests into account, balanced them against the competing interests of federalism, and concluded that the issuance of the injunction did not offend the overall public interest. We discern no abuse of discretion in the court's conclusion.
III.
The order of the district court enjoining the administrative proceedings before the Department of Labor is modified to allow the Secretary of Labor, if she so chooses, to intervene in the proceedings before the ALJ, thereby curing any sovereign immunity bar. In all other respects, the district court's order is affirmed.