Glean v. Fairfax County Government

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
JOSEPH GLEAN,
COMPLAINANT,
v.
FAIRFAX COUNTY GOVERNMENT,
RESPONDENT.
ARB CASE NO. 2025-0087
ALJ CASE NO. 2025-TAX-00014
ALJ ANGELA F. DONALDSON
DATE: April 30, 2026
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
Administrative Appeals Judge
DECISION AND ORDER
This case arises under the employee protection provisions of the Taxpayer
First Act (TFA) and its implementing regulations.1 On August 25, 2025,
Complainant Joseph Glean filed a Petition for Review with the Administrative
Review Board (ARB or Board), seeking review of a U.S. Department of Labor
Administrative Law Judge’s (ALJ) Order Granting Respondent Fairfax County’s
Motion to Dismiss, [and] Denying Complainant’s Motion to Amend Complaint
(Dismissal Order) issued on August 20, 2025. In the Dismissal Order, the ALJ
dismissed Complainant’s complaint against Fairfax County, finding that the
County, “which is a political subdivision of a State, is entitled to sovereign
immunity, and thus the complaint must be dismissed for lack of jurisdiction.”2
The ALJ also denied Complainant’s motion to amend the case caption to name two
county employees, each in their official capacity, as defendants on the basis that
state officials acting in their official capacity are protected from a suit by the same
sovereign immunity that protects nonconsenting states from suit.3 Complainant
timely appealed the Dismissal Order. For the following reasons, we affirm.
1 26 U.S.C. § 7623(d); 29 C.F.R. Part 1989 (2025).
2 Dismissal Order at 4-5.
3 Id. at 5 (quoting Ballinger v. Owens, 352 F.3d 842, 844-45 (4th Cir. 2003)).

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PROCEDURAL BACKGROUND
On February 18, 2025, Complainant, who was employed by Fairfax County,
filed a complaint with the Occupational Safety and Health Administration (OSHA)
alleging that Fairfax County did not select him for the position of Director of
Wastewater Treatment in retaliation for his complaints to management about the
alleged misuse of taxpayer funds. Complainant further alleged that he was owed
back pay and Fairfax County did “not want to investigate [his] back pay owed to
avoid meeting tax obligations.”4 OSHA conducted an investigation of Complainant’s
claims, and on April 3, 2025, found that (1) “Complainant and Respondent are not
covered under the TFA,” and (2) the TFA “does not waive or abrogate federal or
state sovereign immunity.” Based on these findings, OSHA dismissed the
complaint.5
Complainant filed objections to OSHA’s findings with the Office of
Administrative Law Judges, and the case was assigned to ALJ Angela F.
Donaldson. On June 16, 2025, Fairfax County filed a “Position Statement,” which
set forth a basis for dismissing the complaint for lack of jurisdiction, arguing the
TFA provides no jurisdiction over a subdivision of a State such as a county.6
After inquiring whether Respondent would like its Position Statement to be
construed as a Motion to Dismiss, the ALJ issued an Order establishing a deadline
for Complainant to respond to the County’s Position Statement, which the ALJ
would treat as a Motion to Dismiss. Complainant filed an Opposition to Fairfax
County’s Motion to Dismiss, along with a Motion to Amend Caption (Motion to
Amend), in which Complainant sought to name his supervisor and the County’s
Director of Human Resources as respondents, each in their official capacity.
On August 20, 2025, the ALJ issued the Dismissal Order, finding that the
complaint was barred by sovereign immunity and dismissing it. The ALJ also
denied Complainant’s Motion to Amend, finding that official-capacity suits are
similarly barred by sovereign immunity and that “amendment of the complaint
would not change the outcome[.]”7
4 Secretary’s Findings, Case #301049480, Occupational Safety and Health Admin.
(Apr. 3, 2025).
5 Id. at 2.
6 Position Statement at 2-3.
7 Dismissal Order at 5.

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JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the Board to hear appeals
from ALJ decisions and to issue agency decisions in cases arising under the TFA.8
The Board reviews an ALJ’s order of dismissal de novo.9
DISCUSSION
1. Eleventh Amendment Immunity
The Eleventh Amendment bars suits against non-consenting States. Eleventh
Amendment immunity applies to agency administrative proceedings, such as this
case.10 Despite this, it is well established that Eleventh Amendment immunity does
not extend to counties, municipal corporations, or other political subdivisions of a
State.11 As the Supreme Court has put it, the “bar of the Eleventh Amendment to
suit in federal courts extends to States and state officials in appropriate
circumstances . . . but does not extend to counties and similar municipal
8 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020).
9 See, e.g., Van v. JP Morgan Chase & Co., ARB No. 2023-0018, ALJ No. 2022-SOX-
00028, slip op. at 5 (ARB Nov. 5, 2024) (citing Bauche v. Masimo Corp., ARB No. 2022-0035,
ALJ No. 2022-SOX-00010, slip op. at 4 (ARB Sept. 27, 2022)).
10 See Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) (recognizing
that “[t]he affront to a State’s dignity does not lessen when an adjudication takes place in
an administrative tribunal as opposed to an Article III court.”).
11 See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).
As the Supreme Court has explained, the phrase “Eleventh Amendment immunity” is a
“convenient shorthand but something of a misnomer, for the sovereign immunity of the
States neither derives from, nor is limited by, the terms of the Eleventh Amendment.
Rather, as the Constitution’s structure, its history, and the authoritative interpretations by
this 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.” Alden v. Maine, 527 U.S. 706, 713 (1999). The Supreme Court has
recognized that one “consequence of this Court’s recognition of preratification sovereignty
as the source of immunity from suit is that only States and arms of the State possess
immunity from suits authorized by federal law. . . . Accordingly, this Court has repeatedly
refused to extend sovereign immunity to counties.” N. Ins. Co. of New York v. Chatham
Cnty., Ga., 547 U.S. 189, 193 (2006).

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corporations.”12 Here, Fairfax County concedes that it is not an arm of the State.13
Accordingly, the ALJ erred in concluding that the Eleventh Amendment or state
sovereign immunity barred Complainant’s action against Fairfax County.14
2. The Scope of the TFA’s Coverage
Having determined that the Eleventh Amendment and state sovereign
immunity is not a bar to this complaint, we must now consider whether Fairfax
County is nonetheless outside the scope of the TFA’s coverage. The TFA’s anti-
retaliation provisions provide that no employer “may discharge, demote, suspend,
threaten, harass, or in any other manner discriminate against an employee in the
terms and conditions of employment (including through an act in the ordinary
course of such employee’s duties) in reprisal for any certain protected activity.15
The TFA does not define “employer” or “employee,” both of which are central to
determining the scope of the TFA’s anti-retaliation provisions. “Employee” is,
however, defined in the TFA’s implementing regulations, which specify that
“[e]mployee means an individual presently or formerly working for, an individual
12 Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 280; see also, e.g., Alden, 527
U.S. at 756 (“The second important limit to the principle of sovereign immunity is that it
bars suits against States but not lesser entities. The immunity does not extend to suits
prosecuted against a municipal corporation or other governmental entity which is not an
arm of the State.”); Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 401
(1979) (“[T]he Court has consistently refused to construe the [Eleventh] Amendment to
afford protection to political subdivisions such as counties and municipalities, even though
such entities exercise a “slice of state power.”); Bd. of Trs. of Univ. of Alabama v. Garrett,
531 U.S. 356, 369 (2001) (“[T]he Eleventh Amendment does not extend its immunity to
units of local government.”); Jinks v. Richland Cnty., S.C., 538 U.S. 456, 466 (2003)
(recognizing that “municipalities, unlike States, do not enjoy a constitutionally protected
immunity from suit.”); Galette v. New Jersey Transit Corp., 146 S. Ct. 854, 866 (2026)
(recognizing that cities and counties are “legal persons separate from the sovereign and
thus not entitled to share in the State’s sovereign immunity.”).
13 Respondent’s Brief (Resp. Br.) at 7 (“To be clear, the County has never asserted in
this case that it is an arm of the state.”).
14 Fairfax County did not advance an Eleventh Amendment immunity argument when
this case was before the ALJ. Instead, Fairfax County relied on the Secretary’s first finding
regarding the scope of the TFA’s coverage to argue that the complaint should be dismissed.
See Position Statement at 2 (noting that the Secretary’s first finding is determinative and
therefore Fairfax County “takes no position on the Secretary’s second finding.”). On appeal,
Fairfax County acknowledges that “[c]ontrary to what the ALJ held, Eleventh Amendment
immunity is inapplicable to the County.” Resp. Br. at 5.
15 29 U.S.C. § 7623(d)(1).

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applying to work for, or an individual whose employment could be affected by,
another person.”16 The regulations further specify that “[p]erson means an
individual, partnership, company, corporation, association (incorporated or
unincorporated), trust, or estate” and that “[r]espondent means the person named
in the complaint who is alleged to have violated TFA.”17
Based on these definitions, Fairfax County argues that, as a political
subdivision of a State (rather than an individual, partnership, company,
corporation, association, trust, or estate), it is not a “person,” as that term is used in
the TFA and its implementing regulations. It logically follows that if Fairfax County
is not a person it cannot be a respondent, as that term only encompasses persons
who are named in the complaint and alleged to have violated the TFA. Similarly,
Complainant—at least in relation to Fairfax County—is not an employee within the
meaning of the TFA, as he is not presently or formerly working for, or applying to
work for, another person.
Fairfax County argues that the Board should apply the expressio unius canon
of interpretation, also known as the expression-exclusion rule, and conclude that
because the enumerated elements in the regulations’ definition of “person” do not
include counties, counties are not “persons” for purposes of the TFA and thus fall
outside the scope of the TFA’s anti-retaliation provisions.18 Complainant does not
directly challenge this proposition, but instead argues that Fairfax County is
raising this argument for the first time on appeal and the argument is therefore
forfeited.19 We cannot agree with Complainant. In Fairfax County’s Position
16 29 C.F.R. § 1989.101.
17 Id.
18 We are mindful that the expressio unius interpretive canon “is only a guide, whose
fallibility can be shown by contrary indications[.]” See United States v. Vonn, 535 U.S. 55,
65 (2002); see also Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 703 (1991) (recognizing
that the expressio unius canon is “a questionable one in light of the dubious reliability of
inferring specific intent from silence[.]”). In interpreting the meaning of the definitional
provisions in the TFA regulations we do not find it necessary to rely on this interpretive
canon.
19 Complainant’s Reply Brief (Comp. Reply Br.) at 5-6; see Anderson v. Metro
Wastewater Reclamation Dist., ARB No. 2001-0103, ALJ No. 1997-SDW-00007, slip op. at 9
(ARB May 29, 2003) (citations omitted) (recognizing that issues raised for the first time on
appeal are generally not considered, absent rare circumstances); see also Singleton v. Wulff,
428 U.S. 106, 120 (1976) (“It is the general rule, of course, that a federal appellate court
does not consider an issue not passed upon below.”).

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Statement, the County advanced the very same argument that it now makes before
the Board: that the TFA regulations define “Respondent” to mean the person named
in the complaint who is alleged to have violated the TFA, and the regulations define
“person” in a way such that counties and other political subdivisions of a State are
not persons.20 Contrary to Complainant’s assertion, Fairfax Country has not
engaged in a “post hoc recasting of its argument.”21
The definitional provision in the TFA regulations states that “person,”
as used in the TFA and its implementing regulations, “means an individual,
partnership, company, corporation, association (incorporated or unincorporated),
trust, or estate.”22 As an initial matter, we note that this enumerated list does not
include “counties” or any comparable term. This is strike one. Further, the use of
“means,” rather than alternative phrasing such as “includes,” “means and includes,”
or “includes but is not limited to” is dispositive.23 As the Supreme Court has
recognized, “[a] term whose statutory definition declares what it ‘includes’ is more
susceptible to extension of meaning . . . than where . . . the definition declares what
a term ‘means.’”24 Put differently, “[t]he natural distinction would be that where
‘means’ is employed, the term and its definition are to be interchangeable
equivalents, and that the verb ‘includes’ imports a general class, some of whose
particular instances are those specified in the definition.”25 This is strike two.
The third and final strike comes from looking at how “person” is defined in
other statutes that contain employee protection provisions. The Federal Water
20 Position Statement at 2.
21 Comp. Reply Br. at 3.
22 29 C.F.R. § 1989.101 (emphasis added).
23 The implementing regulations for other whistleblower protection provisions make
this even clearer. The implementing regulations for the Food Safety Modernization Act’s
employee protection provisions, for instance, state that “[p]erson includes an individual,
partnership, corporation, and association.” See 29 C.F.R. § 1987.101(k) (emphasis added).
Similarly, the implementing regulations for the Seaman’s Protection Act’s employee
protection provisions state that “person” “means one or more individuals or other entities,
including but not limited to corporations, companies, associations, firms, partnerships,
societies, and joint stock companies.” See 29 C.F.R. § 1986.101(j) (emphasis added).
24 Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162 (2012) (quoting Burgess
v. United States, 553 U.S. 124, 131 n.3 (2008) (alteration in original)); see also Groman v.
Comm’r, 302 U.S. 82, 86 (1937) (“[W]hen an exclusive definition is intended the word
‘means’ is employed[.]”).
25 Helvering v. Morgan’s, Inc., 293 U.S. 121, 126 n.1 (1934).

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Pollution Control Act, Clean Air Act, and Solid Waste Disposal Act each define
“person” to include political subdivisions of a State.26 These three statutes, along
with the Safe Drinking Water Act and the regulations implementing the Pipeline
Safety Improvement Act of 2002, also define “person” to include municipalities.27
Although we stop short of endorsing Fairfax County’s contention that there is an
“associated group of nouns from which to pick and choose in defining who and/or
what is a “person” under a particular whistleblower provision,” it is clear that when
promulgating regulations that defined “persons,” the Secretary could have defined
“persons” to include other types of entities such as cities or counties. The Secretary
did not do so and we cannot substitute the definition contained in the regulations
with a different, more expansive definition.
3. Complainant’s Motion to Amend the Caption
Complainant also objects to the ALJ’s denial of his Motion to Amend, in
which he sought to amend the complaint’s caption and have the ALJ recognize his
supervisor and the County’s Director of Human Resources, each in their official
capacity, as “proper statutory parties.”28 In the Dismissal Order, the ALJ explained
that she was denying Complainant’s Motion to Amend because “[f]or purposes of the
Eleventh Amendment, a state official acting in his official capacity is protected from
a damages action by the same immunity” and “Complainant cannot circumvent the
26 See 33 U.S.C. § 1362(5) (“The term “person” means an individual, corporation,
partnership, association, State, municipality, commission, or political subdivision of a State,
or any interstate body.”) (FWPCA); 42 U.S.C. § 7602(e) (“The term “person” includes an
individual, corporation, partnership, association, State, municipality, political subdivision
of a State, and any agency, department, or instrumentality of the United States and any
officer, agent, or employee thereof.”) (CAA); 42 U.S.C. § 6903(15) (“The term “person” means
an individual, trust, firm, joint stock company, corporation (including a government
corporation), partnership, association, State, municipality, commission, political subdivision
of a State, or any interstate body and shall include each department, agency, and
instrumentality of the United States.”) (SWDA).
27 See 42 U.S.C. § 300f (12) (“The term “person” means an individual, corporation,
company, association, partnership, State, municipality, or Federal agency (and includes
officers, employees, and agents of any corporation, company, association, State,
municipality, or Federal agency.”) (SDWA); 29 C.F.R. § 1981.101 (“Person means a
corporation, company, association, firm, partnership, joint stock company, an individual, a
State, a municipality, and a trustee, receiver, assignee, or personal representative of a
person.”) (PSIA).
28 Pet. for Review at 3; see also Comp. Reply Br. at 8 (“[T]he denial of the caption
amendment . . . . must also be reversed.”).

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Eleventh Amendment bar to his claims against the county by naming individual
county employees in their official capacities.”29 Although we differ from the ALJ on
reasoning, we affirm her denial of Complainant’s Motion to Amend.
It is well established that “[o]fficial-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an
agent.”30 When an official is sued in their official capacity, “the relief sought is only
nominally against the official and in fact is against the official’s office[.]”31 The scope
of the TFA’s coverage does not extend to Fairfax County. Complainant cannot
circumvent that essential fact by naming county officials in their official capacity as
respondents.32 We reject Complainant’s claim that “[o]nce immunity is removed
from the equation, no basis remains for denying [his] request” to amend the
caption.33
29 Dismissal Order at 5 (quoting Ballinger v. Owens, 352 F.3d 842, 844-45 (4th Cir.
2003)).
30 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978); see
also Gedrich v. Fairfax Cnty. Dep’t of Fam. Servs., 282 F. Supp. 2d 439, 458 (E.D. Va. 2003)
(“[T]he First Amended Complaint named several Fairfax County employees in their official
capacities, which has the same effect as naming Fairfax County itself.”).
31 Lewis v. Clarke, 581 U.S. 155, 162 (2017); see also Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office.”).
32 See, e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.”); Will, 491 U.S. at 71
(finding that where sovereign immunity barred a suit, allowing a petitioner to bring suit
against state officials in their official capacity “would allow petitioner to circumvent
congressional intent by a mere pleading device.”).
33 Comp. Reply Br. at 8.

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Accordingly, the Dismissal Order is AFFIRMED and the complaint is
DISMISSED.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
THOMAS H. BURRELL
Administrative Appeals Judge