USCA11 Case: 22-11770 Document: 31-1 Date Filed: 03/31/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11770
Non-Argument Calendar
____________________
JAMES W. TINDALL,
Petitioner,
versus
U.S. DEPARTMENT OF LABOR
ADMINSTRATIVE REVIEW BOARD,
Respondent.
____________________
Petition for Review of a Decision of the
Department of Labor
Agency No. ARB-2022-0030
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2 Opinion of the Court 22-11770
____________________
Before NEWSOM, GRANT and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner James W. Tindall, proceeding pro se, seeks review
of the Administrative Review Board’s (“ARB”) order affirming and
adopting the Administrative Law Judge’s (“ALJ”) dismissal of an
administrative complaint he brought pursuant to the anti-retalia-
tion provision of the federal Taxpayer First Act (“TFA”),
26 U.S.C.
§ 7623(d).
Tindall argues to this court that the ARB acted arbitrarily
and capriciously when it adopted the ALJ’s factual summary as it
contained incorrect definitions from the dismissal of his claims by
the Occupational Safety and Health Administration (“OSHA”) and
as it incorrectly limited his complaint to between himself and the
United States Department of the Treasury (“Treasury”). Tindall
further argues that the ARB erred by recognizing the existence of
federal sovereign immunity and, alternatively, by finding that it
was not waived by the TFA; the “ultra vires” exception; the Ad-
ministrative Procedures Act (“APA”),
5 U.S.C. § 702; or the Consti-
tution.
For ease of reference, we will address each point in turn.
I.
The anti-retaliation provision of the TFA protects employ-
ees who have provided information or taken certain other actions
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22-11770 Opinion of the Court 3
relating to an alleged underpayment of tax, tax fraud, or any viola-
tion of the internal revenue laws.
26 U.S.C. § 7623(d). Under the
law, an employer cannot retaliate against such an “employee” for
engaging in lawful activity protected by the TFA.
26 U.S.C.
§ 7623(d)(1). The TFA also allows an employee who alleges dis-
charge or other reprisal in violation of the foregoing to file an ad-
ministrative complaint with the Secretary of Labor. 26 U.S.C.
7623(d)(1), (2).
OSHA is responsible for receiving and investigating anti-re-
taliation complaints under the TFA. See Sec’y’s Order No. 8-2020
(May 15, 2020),
85 Fed. Reg. 58,393 (Sept. 18, 2020); see also Interim
Final Rule, Procedures for the Handling of Retaliation Complaints
Under the Taxpayer First Act (TFA),
87 Fed. Reg. 12575 (March 7,
2022), codified at 29 C.F.R. Part 1989 (effective March 7, 2022). The
ARB, in turn, is responsible for issuing final agency decisions in
cases arising under the anti-retaliation provisions of TFA. See
Sec’y’s Order No. 1-2020 (Feb. 21, 2020),
85 Fed. Reg. 13,186 (Mar.
6, 2020); see also 29 C.F.R. 1989.110(a).
Following an OSHA determination, an aggrieved complain-
ant may request a hearing before an ALJ. 29 C.F.R. 1989.106. The
ALJ may hear the case or decide the case on a dispositive motion if
appropriate. See 29 C.F.R. 1989.107 (incorporating the DOL ALJ
rules of procedure at 29 C.F.R. Part 18). Any party who desires
review of an ALJ decision, including judicial review, must appeal
the ALJ’s decision administratively to the ARB, and once the ARB’s
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4 Opinion of the Court 22-11770
decision becomes final, it may file a petition for review to a United
States appellate court. See 29 C.F.R. 1989.109, 1989.110, 1989.112.
We review the DOL’s actions in accordance with APA
standards, meaning that we conduct a de novo review of the DOL’s
legal conclusions and review factual findings for substantial evi-
dence in the agency record. Stone & Webster Const., Inc. v. U.S.
Dep’t of Lab.,
684 F.3d 1127, 1132 (11th Cir. 2012). We will only
overturn the ARB’s findings if they are “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” or if
the findings were made “without observance of procedure re-
quired by law.”
Id. (quoting
5 U.S.C. § 706(2)(A), (D)).
“[W]e may affirm on any ground that finds support in the
record.” Long v. Comm’r of Internal Revenue Serv.,
772 F.3d 670,
675 (11th Cir. 2014).
II.
Here, we conclude from the record that Tindall’s alleged fac-
tual errors are without merit. First, even if OSHA applied an incor-
rect definition of “employer” and “person” in its original findings,
this error was corrected by the ALJ. Second, the ALJ correctly
found that Tindall had brought his administrative complaint
against the Treasury. While Tindall identified, in his administra-
tive complaint, two employees of the Treasury, he did so in the
context of explicitly stating that he sought assistance in investigat-
ing the “threats of retaliation by the US Department of the Treas-
ury and the National Advocate’s Office for the ongoing willful
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22-11770 Opinion of the Court 5
refusal by the IRS Whistleblower Office to comply with their obli-
gations under §7623(a).” Thus, we conclude that the ALJ acted rea-
sonably by determining that Tindall’s suit was brought against the
Treasury alone, and the ARB did not act arbitrarily or capriciously
in accepting the facts laid out within the ALJ’s opinion. As such,
we deny Tindall’s petition in this respect.
III.
Sovereign immunity shields the federal government and its
agencies from suit, absent a waiver of that immunity. F.D.I.C. v.
Meyer,
510 U.S. 471, 475,
114 S. Ct. 996, 1000 (1994). “Sovereign
immunity is jurisdictional,” and absent a waiver of the immunity,
the court lacks “jurisdiction to entertain the suit.”
Id. A waiver of
sovereign immunity must be “unequivocally expressed,” and an ex-
pressed waiver will be strictly construed. United States v. Nordic
Vill., Inc.,
503 U.S. 30, 33-34,
112 S. Ct. 1011, 1014-15 (1992) (quo-
tation marks omitted). “Any ambiguities in the statutory language
are to be construed in favor of immunity, so that the Government’s
consent to be sued is never enlarged beyond what a fair reading of
the text requires. . . . Ambiguity exists if there is a plausible inter-
pretation of the statute that would not authorize money damages
against the Government.” Davila v. Gladden,
777 F.3d 1198, 1209
(11th Cir. 2015) (quoting F.A.A. v. Cooper,
566 U.S. 284, 290,
132
S. Ct. 1441, 1448 (2012)).
Under the TFA, “no employer…may…threaten, harass, or
in any other manner discriminate against an employee in the terms
and conditions of employment…in reprisal for” engaging in a
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6 Opinion of the Court 22-11770
protected whistleblower activity.
26 U.S.C. § 7623(d)(1). Under
the TFA’s enforcement provision, “a person who alleges discharge
or other reprisal by any person in violation of paragraph (1) may
seek relief under paragraph (3) by…filing a complaint with the Sec-
retary of Labor.”
26 U.S.C. § 7623(d)(2).
The TFA does not define the terms “employer” or “person.”
However,
26 U.S.C. § 7701(a)(1) states that, “where not otherwise
distinctly expressed or manifestly incompatible with the intent
thereof,” a “person” is defined for the purpose of Title 26 as “an
individual, a trust, estate, partnership, association, company, or
corporation.”
26 U.S.C. § 7701(a)(1). Additionally, there is a well-
established presumption that the term “person” does not include
the sovereign unless there is an “affirmative showing of statutory
intent to the contrary.” Vt. Agency of Nat. Res. v. United States ex
rel. Stevens,
529 U.S. 765, 780-81,
120 S. Ct. 1858, 1866-67 (2000).
As an initial matter, we conclude that Tindall’s argument
that the doctrine of sovereign immunity is inapplicable to the fed-
eral government and its agencies is meritless. It is well established
that sovereign immunity shields the federal government and its
agencies from suit unless unequivocally waived by an act of Con-
gress. Meyer,
510 U.S. at 475,
114 S. Ct. at 1000; Nordic Vill., Inc.,
503 U.S. at 33-34,
112 S. Ct. at 1014-15.
Here, the ARB correctly found that Congress did not une-
quivocally waive sovereign immunity through the passage of the
TFA. First, the TFA does not define the term “employer,” making
it unclear whether Congress intended for the substantive provision
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22-11770 Opinion of the Court 7
of the TFA to apply to federal agencies such as the Treasury. How-
ever, assuming arguendo, as the ALJ did below, that the Treasury
was an “employer” under the TFA, the statute still does not une-
quivocally waive sovereign immunity as the enforcement provi-
sion allows complaints only against a “person.” It is well-estab-
lished that the term “person” does not include the sovereign unless
there is an “affirmative showing of statutory intent.” Vt. Agency
of Nat. Res.,
529 U.S. at 781,
120 S. Ct. at 1866-67. In this case, as
Congress did not choose to define the term for the purposes of the
TFA, the general definition of “person” for Title 26 applies, which
does not include the federal government or its agencies.
26 U.S.C.
§ 7701(a)(1). As such, we conclude that Congress did not unequiv-
ocally waive sovereign immunity through the TFA. Therefore, we
deny Tindall’s petition in this respect as well.
IV.
Issues not raised in an appellant’s initial brief are deemed
abandoned, and we will not address the issues absent extraordinary
circumstances. United States v. Campbell,
26 F.4th 860, 873 (11th
Cir. 2022) (en banc), cert. denied,
143 S. Ct. 95 (2022).
Under the “ultra vires” exception, a suit for specific relief
may be brought against an officer of the United States acting out-
side of the scope of his authority or in ways forbidden by the sov-
ereign. Larson v. Domestic & Foreign Com. Corp.,
337 U.S. 682,
689,
69 S. Ct. 1457, 1461 (1949). However, an alleged mistake in
the exercise of a delegated power is insufficient; rather, relief is
proper only where the officer lacked delegated power.
Id. at 690,
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8 Opinion of the Court 22-11770
69 S. Ct. at 1461. As such, an aggrieved individual must set out in
his complaint the statutory limitation on which he relies.
Id. Addi-
tionally, the “ultra vires” exception does not apply where a suit
would “expend itself on the public treasury” or compel the govern-
ment to act. Dugan v. Rank,
372 U.S. 609, 620,
83 S. Ct. 999, 1006
(1963).
Here, we conclude that the ARB correctly found that the
“ultra vires” exception was inapplicable to Tindall’s administrative
complaint. First, as discussed above, Tindall brought his complaint
against the Treasury, not an individual Treasury employee, mak-
ing the exception inapplicable. Additionally, while asserting nu-
merous abuses by offices of the Treasury and the DOL, Tindall
does not argue in his initial brief that the “ultra vires” exception
applied to his administrative complaint because it was brought
against individual officers of the Treasury. As such, the issue is
abandoned. Campbell, 26 F.4th at 873. Finally, even if Tindall’s
administrative complaint and initial brief had named an individual
employee of the Treasury, he sought declaratory relief that would
compel the government to act, which falls outside the scope of the
“ultra vires” exception. Dugan,
372 U.S. at 620,
83 S. Ct. at 1006.
Accordingly, we deny Tindall’s petition in this respect as well.
V.
Section 702 of the APA provides a limited waiver of sover-
eign immunity allowing for “judicial review” of administrative ac-
tions in “a court of the United States” where the relief sought is
non-monetary.
5 U.S.C. § 702. Because neither the ALJ nor the
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22-11770 Opinion of the Court 9
ARB is a “court of the United States,” the ARB correctly found that
the APA’s waiver of sovereign immunity did not apply to Tindall’s
administrative proceedings. Thus, under the plain language of the
statute, the waiver of sovereign immunity for judicial review is in-
applicable. Therefore, we deny Tindall’s petition in this respect as
well.
VI.
Absent a valid waiver of sovereign immunity, federal agen-
cies are immune from lawsuits for First or Fifth Amendment viola-
tions. See, e.g., Meyer,
510 U.S. at 475,
114 S. Ct. at 1000 (absent a
valid waiver of sovereign immunity, federal agencies are immune
from lawsuits for due process violations under the Fifth Amend-
ment); McCollum v. Bolger,
794 F.2d 602, 607-08 (11th Cir. 1986)
(holding that federal employees may not sue their employers for
violations of their First or Fifth Amendment rights, and dismissing
claims for lack of subject-matter jurisdiction and on sovereign im-
munity grounds); United States v. Timmons,
672 F.2d 1373, 1380
(11th Cir. 1982) (upholding dismissal of Fifth Amendment claims
on the basis of sovereign immunity). Further, the Constitution
provides no waiver of sovereign immunity for Tindall’s claims. Ac-
cordingly, we deny Tindall’s petition in this respect as well.
Based on the aforementioned reasons, we conclude that Tin-
dall’s arguments are meritless, and we deny his petition for review.
PETITION FOR REVIEW DENIED.
