Kagel v. U. S. Army Corps of Engineers, 1996-WPC-4 (ALJ Dec. 30, 1998)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

DATE: December 30, 1998

Case No. 1996-WPC-4

In the Matter of:

RAY L. KAGEL, JR.
   Complainant

   v.

U. S. ARMY CORPS OF ENGINEERS
   Respondent

   This is a "whistleblower"complaint brought under the employee protection provisions of the Federal Water Pollution Control Act, also known as the Clean Water Act ("CWA") 33 U.S.C. § 1367. Respondent, U.S. Army Corps of Engineers ("COE"), filed a Motion for Summary Decision on Dcember 18, 1996. On August 19, 1998, 1 issued an order denying the motion because Respondent failed to support its factual allegations and it thwarted Complainant's discovery efforts. Respondent filed a Petition for Reconsideration on October 1, 1998, alleging that the U. S. Department of Labor lacks jurisdiction as a matter of law. Previously, Respondent never directly raised the issue of whether the whistleblower provisions of the CWA apply to federal agencies such as the COE as a matter of law. However, Respondent, in its opposition to Complainant's Motion to Compel Discovery did appear to raise this issue. I note that Respondent's legal theories in its original motions were not a model of clarity. I also note that the issue of subject matter jurisdiction may be raised by the parties at any time or by the court sua sponte. (See Fed. R. Civ. P. 12(h)(3); Raih Packing Co., v. Becker, 530 F.2d 1295 (9th Cir. 1975), aff'd, 430 U.S. 519 (1977). Therefore, I consider Respondent's argument.

   Respondent argues that it is not subject to the employee protection provisions of the CWA. Specifically, the Secretary of the Army has not consented to jurisdiction and has not waived its sovereign immunity. Respondent argues that the United States is not a "person" for purposes of employee protection proceedings brought under 33 U.S.C. § 1367. In addition, the COE has not engaged in the discharge of effluents or other regulated activities which might subject it to the employee protection provisions of the CWA.

   Section 1367 of the CWA states that:

No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . by reason of the fact that such employee . . . has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter.

33 U.S.C. § 1367. The threshold issue here is whether the U.S. Army Corps of Engineers is a "person" within the meaning of this provision. Under the CWA general definitions section, the term "person" means "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C. § 1362(5). I agree with Respondent that it does not mean the "United States Government," and thus the U.S. Amy Corps of Engineers is not a "person" for purposes of Section 1367. See Conley v. McClellan Air Force Base, 84-WPC-1 (Sec'y Sept. 7, 1993) citing U. S. Dept. of Energy v. Ohio, 503 U.S. 607, 615-619, 112 S. Ct. 1627, 1633-1635, 118 L. Ed.2d 255, 267-268 (1992) (omission of the United Slates from the CWA definition of the term person "has to be seen as a pointed one when so many other governmental entities are specified").

   However, the "Federal Facilities" provision of the CWA does apply to the United States. The "Federal Facilities" provision states:

Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The proceeding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.

   Respondent also argues that since it is not engaged in the discharge of effluents or other regulated activity, it is not subject to the employee protection provisions of Sectition 1367. Respondent's reliance on Leber v. Pennsylvania Dept. of Environmental Resources, 780 F.2d 372 (3rd Cir. 1986), is misplaced. In Leber, the third circuit examined whether the Surface Mining Control and Reclamation Act's ("SMCRA") whistleblower protection provision applied to state agencies. There, the statutory definition of a "person" subject to SMCRA did not include state agencies. However, the federal regulations adopted by the Secretary of the Interior expanded the definition to include state agencies. The third circuit held that a state was not a "person" for purposes of the whistleblower protections of the SMCRA. Leber, at 376-378. Here, the Secretary of Labor has not expanded the definition of a "person" subject to whistleblower protection under the CWA. Instead, the Secretary has found that federal agencies are subject to the whistleblower protections of the CWA as a result of the "Federal Facilities" provision in the CWA. See Conley v. McClellan Air Force Base, supra. The definition of a "person" subject to Section 1367 is not relevant. The court in Leber only addressed the definition of a "person." It did not address whether a "Federal Facilities" provision subjected a federal agency to a whistleblower protection provision.

   The Secretary of Labor's decision in Jenkins v. U.S. Environmental Protection Agency, 92-CAA-6 (May 18,1994), is controlling. In Jenkins, an employee of the EPA brought a whistleblower complaint against the EPA under several environmental statutes including the CWA. The Secretary found that the "Federal Facilities" provision of the CWA subjected the EPA to the whistleblower protection provision of the CWA. The Secretary stated:

The Federal facilities provisions of the SDWA, CAA, CWA, and SWDA, while describing Federal agencies reasonably expected to be affected, can be construed to waive immunity generally, thereby providing Federal employees as well as non federal employees with statutory whistleblower protection. Even if this were not the case, the instant record establishes that EPA exercises jurisdiction over affected properties and facilities and engages in activities affecting regulated substances and processes, thus constituting an agency described in the provisions.

Jenkins at 5. Here, the U.S. Army Corps of Engineers exercises jurisdiction over affected properties (wetlands) and engages in activities (issuing permits) affecting regulated substances and processes. As such, I find that the COE is subject to the employee protection provisions of Section. 1367.

   It is ORDERED That:

   1. The Motion for Reconsideration of my order denying Respondent's Motion for Summary Decision is denied.

      DONALD B. JARVIS
      Administrative Law Judge