Civil Practice – Appeals – 11th Amendment Immunity – State OSHA Enforcement

Two of the plaintiff-employer’s employees died because of a fire at work, and North Carolina’s Occupational Safety and Health Hazard Association (NC OSHA) assessed several penalties against plaintiff. Plaintiff alleges that defendants – officials with authority over NC OSHA – are in violation of 29 U.S.C. § 657(h) because they evaluate their employees’ performance based on the number of penalties they have assessed and citations they have issued. Because plaintiff seeks prospective relief – a declaratory judgment and injunctions – plaintiff’s claims fall within an exception to defendants’ Eleventh Amendment immunity.

We affirm the district court’s denial of defendants’ motions to dismiss and for judgment on the pleadings. We decline to reach the issues defendants raised for the first time on appeal.

Despite the Eleventh Amendment’s prohibition against citizens suing states in federal courts, Ex Parte Young, 209 U.S. 123 (1908), allows private citizens to petition a federal court to enjoin state officials in their official capacities from engaging in future conduct that would violate the U.S. Constitution or a federal statute.

Plaintiff alleges that defendants’ violation of the federal Occupational Safety and Health Act (OSH Act) is “ongoing” or “continuing,” citing, among other things, defendant Dobson’s repeated admissions that NC OSHA’s compliance officers’ performance is based, in part, on the number of citations they issue.

The relief plaintiff seeks, including injunctive relief, is prospective in nature. Its injunctive claims ask to prohibit defendants “from engaging in enforcement activities against [plaintiff], including initiating or maintaining administrative proceedings” and “from engaging in enforcement activities against any employer that has been inspected or issued citations under the official policy or practice . . . including issuing citations, prosecuting existing citations, or initiating or maintaining administrative proceedings.”

Plaintiff’s complaint does not seek to expunge their past citations but to preclude defendants from continuing their alleged illegal policies or practices (which plaintiff likely could not have discovered until after the citations were issued) that they believe are in violation of the federal OSH Act. Even assuming plaintiff’s requested relief relies on defendants’ previous allegedly unlawful actions, the true essence of the relief is prospective.

Finally, defendants insist that the North Carolina Department of Labor, and therefore the State of North Carolina, is the true party in interest. Not so.

The complaint does not seek action by North Carolina, but rather, by the named defendants who are at the helm of the North Carolina State Plan’s operation. Thus, defendants Dobson and Beauregard were properly named as such in this suit.

For the first time on appeal, defendants have raised issues of standing and abstention. Because resolution of these issues is not inextricably intertwined with the Eleventh Amendment immunity question, we decline to exercise pendent appellate jurisdiction over these issues.

Affirmed.

Industrial Services Group Inc. v. Dobson (Lawyers Weekly No. 001-061-23, 20 pp) (Roger Gregory, C.J.) No. 22-1465. Appealed from USDC at Asheville, N.C. (Martin Reidinger, C.J.) Stacey Alayne Phipps, Joshua Stein and Victoria Voight for appellants; Travis Wayne Vance and David Klass for appellee. United States Court of Appeals for the Fourth Circuit