Case Summaries

Article excerpt

I. ENVIRONMENTAL QUALITY

A. Clean Air Act

1. Coupar v. United States Department of Labor, 105 F. 3d 1263 (9th Cir. 1997).

Coupar, a federal inmate who had previously worked for Federal Prison Industries, Inc. (FPI), filed whistleblowing complaints against FPI under the Clean Air Act of 1970 (CAA)(1) and Toxic Substances Control Act (TSCA).(2) He claimed that he was transferred to another facility in retaliation for his environmental complaints about FPI operations, and that FPI also retaliated by refusing to place him on a waiting list for a job at the new facility. The United States Department of Labor denied Coupar's retaliation complaint, and Coupar subsequently requested a hearing before a Department of Labor Administrative Law Judge (ALJ). The ALJ scheduled the hearing, but the Bureau of Prisons (Bureau), representing FPI, refused to acknowledge jurisdiction of the ALJ over Coupar's claim and did not participate in the proceeding. The ALJ concluded that he did have jurisdiction over the claim because Coupar was an employee within the meaning of the CAA and TSCA (Acts) and recommended a default judgment because of the Bureau's failure to appear at the proceeding. However, the Secretary of Labor rejected the ALJ's recommended decision and order because he disagreed with the conclusion that Coupar qualified as an employee under the whistleblowing provisions at issue. In this case of first impression, the Ninth Circuit held that an inmate was not an employee within the meaning of the Acts.

The Secretary is charged with administration of the whistleblower protection provisions of the Acts, which stipulate that "[n]o employer may discharge any employee or otherwise discriminate against [him] with respect to ... compensation, terms, conditions, or privileges of employment"(3) because the employee engaged in protected activities--i.e., whistleblowing--related to enforcement of the Acts. However, Congress did not define "employee" in either statute.

The Ninth Circuit held that the Secretary was entitled to Chevron(4) deference in interpreting the term "employee" not to encompass Coupar and that his interpretation was reasonable. The court found an analogy between Coupar's case and Hale v. Arizona.(5) In Hale, the court held that inmates were not "employees" for purposes of the minimum wage provision of the Fair Labor Standards Act (FLSA).(6) In reaching that conclusion, the court employed the "economic reality" test. The economic reality test focuses on the relationship between prison and prisoner, which the court found to be penological rather than pecuniary. In the present case, the Ninth Circuit also found the relationship between Coupar and FPI to be penological, as he was obligated to work pursuant to a prison work program.

Coupar argued that the economic reality test was not appropriate based on differences between the purpose of the FLSA, which is to regulate the economic relationship between employer and employee, and the purposes of the CAA and TSCA, which are to protect the environment. The court rejected this argument, stating that the goal of the whistleblowing provisions is "most certainly aimed at regulating and restricting the relationship between employer and employee."(7) Congress could have extended the protection to prevent retaliation by any violator against any whistleblower, but chose to draw the line at protecting employees from retaliation by their employer. The court reasoned that Congress intended to protect and regulate the usual employer-employee relationship, not relationships based on forced labor. One policy concern the court expressed was the potential for excessive interference with the penological system if the term "employee" was defined to include prison inmates.

The ALJ had applied the "Reid-Darden" test, which focuses on the hiring party's right to control the manner and means by which the product is accomplished. The Ninth Circuit felt that the more appropriate focus was whether Coupar and FPI could be said to be in a "conventional master-servant relationship," which would not be the case according to Hale. …