North Dakota v. DOL: District Court Allows OSHA Whistleblower Case to Proceed

Josh Seerup, an employee of the North Dakota Department of Environmental Quality (NDDEQ), raised concerns during an Environmental Protection Agency audit about the state’s enforcement of the Safe Drinking Water Act. Between January and March 2022, Seerup emailed an EPA regional coordinator with questions about enforcement practices. The coordinator forwarded the messages to Seerup’s supervisor and commented that the questions were not appropriate for his position. In July 2022, NDDEQ issued Seerup a written warning related to the emails and also criticized his failure to attend a conference the previous year. Shortly after receiving the warning, Seerup filed a whistleblower retaliation complaint with the U.S. Department of Labor.

Federal environmental statutes contain whistleblower provisions allowing employees to report retaliation for raising compliance concerns. Complaints under these provisions are filed with the Secretary of Labor and investigated by the Occupational Safety and Health Administration (OSHA). OSHA conducts an investigation and then issues a determination either dismissing the complaint or ordering relief if retaliation occurred. 

OSHA Determination and Administrative Proceedings

After investigating Seerup’s complaint, OSHA issued a determination in August 2023 concluding that retaliation had occurred. NDDEQ objected to the determination and requested a hearing before a Department of Labor Administrative Law Judge. The case was docketed in September 2023, and the administrative process moved forward under the Department of Labor’s whistleblower procedures.

Under those procedures, either party may request a hearing after OSHA issues its determination. The case is then reviewed by an administrative law judge, with the possibility of further review by the Department of Labor’s Administrative Review Board and ultimately by a federal court of appeals.

North Dakota Files Federal Lawsuit

Before the administrative hearing occurred, the State of North Dakota filed a lawsuit in federal district court against the United States Department of Labor and Josh Seerup. The state sought declaratory and injunctive relief to stop the administrative proceedings.

North Dakota argued that the whistleblower case violated the state’s sovereign immunity. The complaint asked the court to prevent further investigation by OSHA, stop the administrative law judge proceedings, and prohibit Seerup from filing additional whistleblower complaints against the agency.

The Department of Labor filed motions to dismiss the lawsuit. The agency argued that the court lacked jurisdiction over the claims related to OSHA’s investigation and that the remaining claims failed to state a legal basis for relief.

Challenge to OSHA Investigation

The court first addressed North Dakota’s challenge to OSHA’s investigation. By the time the lawsuit was filed, OSHA had already completed the investigation and issued its determination.

North Dakota acknowledged that the investigation itself had concluded and stated that it was not seeking relief from the investigation. Because the investigation was finished, the court determined that the claim was moot.

The court also noted that federal agencies have authority to investigate potential violations of federal law involving state entities. Investigations may begin either on the agency’s own initiative or based on information provided by private individuals. 

For those reasons, the court dismissed the claims seeking relief from the OSHA investigation.

Sovereign Immunity Argument

North Dakota’s primary argument focused on sovereign immunity. The state maintained that the administrative whistleblower case was effectively a private lawsuit brought by Seerup against a state agency.

The Department of Labor responded that the proceedings were permissible because OSHA had joined the administrative case as a party. When the federal government participates in the case and seeks the same relief as the private complainant, the proceeding is treated as an enforcement action by the United States rather than a private lawsuit against a state.

The court reviewed earlier cases addressing sovereign immunity in administrative proceedings. Some courts had previously concluded that purely private whistleblower actions against states were barred. At the same time, federal courts recognized that states consented to certain enforcement actions brought by the federal government.

In this matter, OSHA elected to join the administrative proceedings shortly after the case was docketed before the administrative law judge. Because the federal agency became a party and sought the same relief as Seerup, the court concluded that the case was effectively being pursued by the federal government.

The court therefore determined that the proceedings did not violate North Dakota’s sovereign immunity.

Request to Block Future Complaints

North Dakota also asked the court to prevent Seerup from filing additional whistleblower complaints with OSHA in the future.

The court rejected that request. Federal whistleblower laws rely on reports from employees to identify potential violations. Federal agencies are permitted to investigate alleged violations based on information provided by private individuals. 

The court found no evidence that Seerup had abused the reporting process. Because federal law permits individuals to provide information to enforcement agencies, the court declined to restrict Seerup from filing future complaints.

Challenge to OSHA’s Requested Relief

North Dakota also argued that the remedies requested by OSHA exceeded the agency’s authority. The state asked the federal court to review those issues under a narrow doctrine allowing judicial review when an agency acts entirely outside its statutory authority.

The court explained that this type of review is limited and generally unavailable when a statutory process already provides a path for judicial review.

Under the whistleblower framework, final agency decisions may be appealed to the United States Court of Appeals. Because that review process remained available, the district court declined to examine the merits of the relief requested by OSHA.

Court Grants Motions to Dismiss

After reviewing each claim, the federal district court concluded that North Dakota’s arguments failed as a matter of law. The court granted the motions to dismiss filed by the Department of Labor and Josh Seerup and dismissed the complaint with prejudice.

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