Coupar v. Federal Prison Industries (Unicor), 92-TSC-6 (ALJ May 8, 1992)

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USDOL/OALJ Reporter
Coupar v. Federal Prison Industries (Unicor), 92-TSC-6 and 8 (ALJ May 8, 1992)

U.S. Department of Labor
Office of Administrative Law Judges
2401 E. Katella Ave., Suite 306
Anaheim California 92806
(714) 634-4956
(714) 836-2835
FAX (714) 836-2842

DATE: MAY 08 1992

CASE NO: 92-TSC-00006, 92-TSC-00008

In-the Matter of

DOUGLAS COUPAR,
Complainant,

FEDERAL PRISON INDUSTRIES/UNICOR,
Respondent.

ORDER GRANTING REQUEST FOR SUBPOENAS

These proceedings arise under the employee protection ("whistleblower") provisions in the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq. (the "TSCA"), and the Clean Air Act, 42 U.S.C. § 7601 et seq. (the "CAA") (collectively, the "Acts"). Complainant, Douglas Coupar, is a Federal prisoner who formerly worked for Federal Prison Industries, Inc. ("FPI"). He alleges that FPI discriminated against him in retaliation for engaging in protected activity under the Acts. A hearing has been scheduled before the undersigned administrative law judge ("ALJ") for May 27, 1992.

Background

By letter dated April 9, 1992, Complainant requested that the undersigned, under 29 C.F.R. § 18.24, issue subpoenas

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for the attendance of five witnesses and the production of certain specified documents set out in four (4) separate motions. On April 16, 1992, the undersigned issued an Order to Show Cause, requesting that within ten (10) days from receipt of such Order, 1) the Federal Bureau of Prisons (the "Bureau"); 2) FPI/UNICOR; 3) Monica Gallagher, Associate Solicitor, United States Department of Labor ("USDOL"), Division of Fair Labor Standards; and 4) Edwin Tyler, Counsel for Trial Litigation, USDOL, Division of Fair Labor Standards, show cause why the undersigned should not issue the subpoenas requested by Complainant. Two responses have been received, one from the Bureau and the other from the office of Ms. Gallagher and Mr. Tyler (the "Solicitor").

The Bureau's Response

The Bureau argues that Federal prisoners working for Federal Prison Industries, Inc., are not "employees" within the meaning of the Acts. Thus, the Bureau reasons, the undersigned does not have subject matter jurisdiction here. The Bureau accordingly requests that the undersigned not issue the subpoenas that Claimant requests.

Subject matter jurisdiction is 'the power to adjudge concerning a general question involved and is not dependent upon the state of facts which may appear in a particular case. . . . It is the power to hear and determine causes of the class in which the particular controversy belongs. . . ."' Edwards v. Director. OWCP, 932 F.2d 1325, 1328-29, 24 BRBS¹ 146, 151 (CRT) (9th Cir. 1991) (quoting Ramos v. Universal Dredging Corp., 653 F.2d 1353, 1357, 13 BRBS 689, 690 (1981), rev'g 10 BRBS 368 (1979)). In Ramos v. Universal Dredging Corp., the USDOL Benefits Review Board (the "BRB") had held that it lacked subject matter jurisdiction to review a claim under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., because it found the claimant was not a maritime employee. Id. at 1355, 13 BRBS at 690. The Ninth Circuit Court of Appeals reversed, stating that the BRB had "confused subject matter jurisdiction with personal coverage" under the Longshore Act. Id. The claimant's injury occurred aboard a dredge in navigable waters, thus bringing the matter within the Board's admiralty jurisdiction. Id. at 1359, 13 BRBS at 693. Under the Longshore Act, "an injury may have a sufficient connection with traditional maritime activity . . . to be well within the reach of admiralty jurisdiction, but yet not be covered. Id. Thus, whether the claimant was a maritime employee and thus entitled to the Longshore Act's coverage was not jurisdictional, but rather a separate "question of fact to be determined by the administrative law judge." Id. at 1357, 13 BRBS at 692.²

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The Secretary of Labor (the "Secretary") recently determined that there was no jurisdiction to hear a whistleblower case where the respondent employer was not subject to the statutory provision under which it was sued. In Wensil v. Adams, Case Nos. 86-ERA-15, 87-ERA-12, 87-ERA-45, 87-ERA-46, and 88-ERA-34 (March 29, 1990), 4 Dec. OALJ & OAA ³ 2 at 85, the Secretary found that Congress enacted the whistleblower provision of the Energy Reorganization Act (the "ERA") with only the Nuclear Regulatory Commission (the "NRC") in mind.⁴ Id. at 88. Accordingly, only employees of NRC licensees, license applicants, and their contractors and subcontractors were protected by the ERA's whistleblower provisions. Id. at 89. The Secretary accordingly dismissed for lack of jurisdiction several complaints filed by workers who were not employed by such entities. Id.

In contrast, the Secretary found she had jurisdiction in a case arising under the whistleblower provision of the Solid Waste Disposal Act, 42 U.S.C. § 6971, where "the complaint involve[d] a release or suspected release of petroleum from an underground storage tank." Monteer v. Casev's General Stores, Case No. 88-SWD1 (February 27, 1991), 5 Dec. OALJ & OAA 1 at 158. This parallels the Ninth Circuit's holding in Edwards and Ramos that subject matter jurisdiction is "'the power to adjudge concerning a general question involved . . . . the power to hear and determine causes of the class in which the particular controversy belongs. . . .'" Edwards v. Director. OWCP, 932 F.2d at 1328-29, 24 BRBS at 151 (CRT).

The case at bar arises within the jurisdiction of the Ninth Circuit Court of Appeals. Consequently, that Circuit's decisions, as well as those of the Secretary, are binding precedent here. The undersigned concludes that under the Ninth Circuit's jurisdictional approach enunciated in Edwards and Ramos, and the Secretary's position as set forth in Wensil and Monteer, an ALJ has jurisdiction to hear a whistleblower case if the case is of a class that the judge has been given the power to hear, and the respondent employer is of a type that is covered by the statute or statutes in question.⁵

Under 29 C.F.R. Part 24, whistleblower cases arising under the Acts are referred to the USDOL Office of Administrative Law Judges for hearing. Consequently, as did the Secretary in Monteer, the undersigned ALJ has subject matter jurisdiction in this general area.

As for jurisdiction over FPI specifically, the Acts apply by their terms to all Federal entities unless otherwise

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excepted.⁶ The Bureau has not shown that FPI is so excepted. Accordingly, the undersigned has subject matter jurisdiction to hear whistleblower complaints under the Acts filed against FPI. If Complainant were a "normal," non-inmate employee of FPI, there would be no question but that the undersigned would have jurisdiction to hear his claim.

As in Ramos, the threshold question here is the employment status of the person bringing the action, which is claimed to be jurisdictional. In Ramos, the question was whether the claimant was engaged in "maritime employment"; here, it is whether Complainant was FPI's "employee" at all. The Ninth Circuit held in Ramos that this question was not jurisdictional because the ALJ and the BRB had jurisdiction over the "general question involved": Longshore Act claims arising out of injuries sustained on navigable waters. Similarly, Complainant's status as an "employee" is not jurisdictional here because the undersigned has jurisdiction over the "general question involved": whistleblower claims arising under the Acts.

Accordingly, here as in Ramos, the issue of employment status is a question of fact to be decided by a judge with "'the power to hear and determine causes of the class in which the particular controversy belongs. . . ."': that is, a judge with subject matter jurisdiction. Edwards v. Director OWCP at 1329, 24 BRBS at 151 (CRT) (quoting Ramos at 1357, l] BRBS at 6sO). As a USDOL All, the undersigned has been granted the "power to hear and determine" this case, i.e., subject matter jurisdiction, by the implementing regulations at 29 C.F.R. Part 24. Consequently, whether Complainant is indeed FPI's "employee" is not jurisdictional, but rather a question of fact to be determined by the undersigned ALJ.

In contrast to the close analogy with the situation in Ramos, Complainant is not comparable to the complainants in Wensil. There, the employees' status vis-a-vis their employer was not in question. The jurisdictional problem arose because the employer was not subject to the whistleblower provision in question. Here, Complainant did work for an employer subject to the Acts. The controversy is thus properly before this office.

The undersigned also notes that to decline jurisdiction on the ground that Complainant was not FPI's "employee" would still require a finding of fact to that effect. Such a finding would be premature at present because the parties have not had a full opportunity to argue and present evidence on the issue.

In conclusion, the Bureau's argument that the

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subpoenas should not be issued is based solely on the claim that the undersigned lacks jurisdiction to hear this matter. Since the undersigned has found that there is subject matter jurisdiction, and that at any rate, it would be inappropriate at present to make a finding regarding Complainant's status as an "employee," this argument must be rejected.

The Solicitor's Position

The Solicitor maintains that the undersigned has no subpoena authority at all in this proceeding. However, "as an accommodation" to Complainant, the Solicitor is providing Claimant with all documents within the Solicitor's control.

The Solicitor cites several cases for the proposition that absent Specific authority in the statute . . . there is no subpoena authority in the administrative proceeding": Pacific Gas and Electric Co. v. F.E.R.C., 746 F.2d 1383 (9th Cir. 1984); Federal Maritime Commission v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964); United States v. Allis-Chalmers Corp., 498 F. Supp. 1027 (E.D. Wis. 1980); Serr v. Sullivan, 270 F. Supp. 544 (E.D. Pa. 1967), aff'd, 390 F.2d 619 (3d Cir. 1968); O'Sullivan v. Northeast Nuclear Energy Co., Case No. 88-ERA-37/38 (October 5, 1988).

Pacific Gas, Serr, and O'Sullivan are distinguishable from the present situation. In Pacific Gas, the court held that the Federal Energy Regulatory Commission "properly refused to grant discovery because there were no material issues of fact in dispute for which discovery would be necessary." Pacific Gas, 746 F.2d at 1388. Here, there are material issues of fact in dispute. Moreover, Pacific Gas does not specifically deal with the power to issue subpoenas. Indeed, the court noted that "[t]he extent of discovery to which a party to an administrative proceeding is entitled is primarily determined by the particular agency." Id. at 1387.

In Serr, the District Court and Court of Appeals held that the Director of the Internal Revenue Service's Alcohol and Tobacco Tax Division could not issue a subpoena in a special investigation of a permittee because the Director had no power to undertake the investigation in the first place. Serr, 270 F. Supp. at 546; 390 F.2d at 620. Here, there is no question as to the propriety of this administrative proceeding. It is noted that the Court of Appeals stated that the relevant statute did not "expressly or impliedly" authorize an investigation with issuance of subpoenas. Serr, 390 F.2d at 620 (emphasis added). The Third Circuit's statement that the power to investigate and issue subpoenas can be implied contradicts the Solicitor's position that such power must be specifically

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authorized by statute.

O'Sullivan is an evidentiary ruling (an Order Denying Motion to Compel) issued by a USDOL ALJ in an ERA whistleblower case. The ALJ denied a motion to compel attendance of employees and to produce documents. He noted that the ERA does not authorize issuance of subpoenas; that no authority had been cited supporting the request; and that no written request had even been made for subpoenas. The undersigned initially notes that the decision of one ALJ is not binding on another ALJ in an unrelated proceeding.⁷ Even taking O'Sullivan for what it is worth, it is clearly distinguishable from the case at bar. Unlike the party in O'Sullivan, Complainant has made a written request for subpoenas. Moreover, as noted below, the undersigned has found authority supporting the issuance of subpoenas here.

In contrast, Federal Maritime Commission and Allis-Chalmers do stand for the proposition that an administrative agency "does not have subpoena power unless so authorized by statute." Allis-Chalmerss, 498 F. Supp. at 1028. The Ninth Circuit stated in Federal Maritime Commission that an agency could not "predicate a discovery rule" on a general rule-making provision. Federal Maritime Commission, 335 F.2d at 259. Additionally, as the Solicitor notes, the Administrative Procedures Act and the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges require the issuance of subpoenas be authorized by law. 5 U.S.C. § 555(c); 29 C.F.R. § 18.24(a).

However, as the court noted in Atlantic Richfield Co. v. U.S. Dep't of Energy, 769 F.2d 771 (D.C. Cir. 1984), the scope of Federal Maritime Commission's holding was subsequently limited to apply to only inter-private party discovery in Takamoto v. Federal Maritime Commission, 633 F.2d 1276 (9th Cir. 1980). Atlantic Richfield, 769 F.2d at 795-96 n.l78. "More importantly," Federal Maritime Commission v. Anglo-Canadian Shipping Co. "has been considerably undermined in recent years" by a line of cases expressing a more liberal attitude towards discovery procedures promulgated by administrative agencies. Id. In this regard, it is noted that the District Court and Court of Appeals cases cited by the Solicitor are not of recent vintage. The only case decided since 1980 is Pacific Gas, with its broad statement that "[t]he extent of discovery to which a party to an administrative proceeding is entitled is primarily determined by the particular agency." Pacific Gas, 746 F.2d at 1387.

As noted in Atlantic Richfield, administrative agencies have increasingly been entrusted with decisionmaking powers, and "[t]he courts have taken a liberal

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attitude toward administrative discovery procedures." Atlantic Richfield at 795 & n.174. It is incongruous to grant an agency authority to adjudicate--which involves vitally the power to find the material facts--and yet deny authority to assure the soundness of the fact-finding process." Id. at 795. "[T]he broad congressional power to authorize agencies to adjudicate . . . necessarily carries with it power to authorize an agency to take such procedural actions as may be necessary to maintain the integrity of the agency's adjudicatory proceedings." Id. at 794. Here, it was thus both appropriate and necessary for the Secretary to implement regulations allowing for the production of evidence during the hearing process.

Accordingly, to state that the subpoena power must lie within the authority of the agency is not the same as stating, as the Solicitor seems to suggest, that the applicable statutes must explicitly mention subpoenas. The Acts provide that "[u]pon receipt of a complaint . . . the Secretary [of Labor] shall conduct an investigation . . . ." 15 U.S.C. § 2622(b)(2)(A) (in the TSCA); 42 U.S.C. § 7622(b)(2)(A) (in the CAA). The undersigned concludes that Congress could not require the Secretary to conduct an investigation without also intending that requirement to carry with it a grant of investigatory power, which is the "[a]uthority conferred on governmental agencies to inspect and compel disclosure of facts germane to the investigation." Black's Law Dictionary 740 (5th ed. 1979). Otherwise, the whistleblower provisions could not be enforced absent an employer's voluntary production of self incriminating evidence. Such a scenario is highly unlikely, given that whistleblower statutes target employers who refuse to comply with the law.

The applicable regulations implement the Acts' mandate to "conduct an investigation" by providing for inspections by the Administrator of the Wage and Hour Division of the USDOL's Employment Standards Administration. The Administrator is given the power to "require the production of any documentary or other evidence deemed necessary to determine whether a violation of the law involved has been committed." 29 C.F.R. § 24.4(b). In a hearing before an ALJ,

Formal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidence available shall be applied. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious.

29 C.F.R. § 24.5(e)(1). Black's Law Dictionary defines "evidence" as

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Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc. . . .

Black's Law Dictionary 498 (5th ed. 1979).

The clear import of the regulation is that the ALJ "shall" ensure that "the most probative evidence," which by definition includes "witnesses, records, documents," and other material, is produced. To ensure such evidence is produced, it is necessary to issue subpoenas. It is not for the undersigned to say that the regulations at 29 C.F.R. Part 24 are contrary to the Acts. Rather, it is his duty to read the statute and regulations harmoniously to the extent possible. It is determined that the regulation at 29 C.F.R. § 24.5(e)(1) authorizes the issuance of subpoenas and does not exceed the investigatory authority granted by the Acts. Until such time as a court of competent jurisdiction may declare the regulation invalid, it is the undersigned's duty to apply it.

Here, neither the Bureau nor the Solicitor has shown that the witnesses and material requested here are not probative. In order to ensure that the most probative evidence is produced at the hearing, it is determined that Claimant is entitled to production of the witnesses and documents named in his subpoenas to the extent such discovery is otherwise proper.

Scope of Discovery to be Allowed

An administrative subpoena is valid if "[t]he inquiry . . . [is] within the authority of the agency, the demand . . . [is] not too indefinite, and the information . . . [is] reasonably relevant to the inquiry." Allis-Chalmers, 498 F. Supp. at 1029 (citing United States v. Morton Salt Company, 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950)).

EMPLOYEES OF THE FEDERAL CORRECTIONAL INSTITUTION AT TERMINAL ISLAND AND FEDERAL PRISON INDUSTRIES

Complainant requests subpoenas compelling the attendance of three employees of the Federal Correctional Institution at Terminal Island, San Pedro, California, where he is incarcerated: Joan Seifert, Frank Silva, and George Simpson. Additionally, Complainant requests a subpoena compelling the attendance of Robert Diaz, a Federal Prison Industries foreman at the San Pedro facility. The testimony of these witnesses would appear to be relevant. Accordingly, Complainant's requests are granted.

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INMATE WITNESS

Complainant requests a subpoena compelling the attendance of Larry Jewel Glaze, a prisoner at the Federal Correctional Institution at Terminal Island, stating that Mr. Glaze will provide testimony relevant to the issues in this case. This request is granted.

DOCUMENTS WITHIN THE CONTROL OF THE FEDERAL CORRECTIONAL INSTITUTION

Complainant requests a subpoena compelling the production of five documents within the control of the Federal Correctional Institution at Terminal Island, San Pedro, California. However, he has not demonstrated that these documents are relevant to this proceeding, and such relevance is not evident from his request. Accordingly, Complainant shall have five (5) days from the receipt of this Order to demonstrate why these documents should be produced.

DOCUMENTS WITHIN THE CONTROL OF FEDERAL PRISON INDUSTRIES

Complainant requests a subpoena compelling the production of two documents within the control of Federal Prison Industries at San Pedro, California: 1) the Federal Prison Industries file on Complainant, and 2) all correspondence and notes of phone conversations regarding Complainant between the national and Terminal Island offices of Federal Prison Industries. These materials are found to be relevant, and Complainant's request is granted.

DOCUMENTS RELATING TO PLUMLEY V. FEDERAL BUREAU OF PRISONS

Complainant requests a subpoena compelling the production by the Federal Bureau of Prisons and Federal Prison Industries of several documents relating to Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6.⁸ The documents requested include 1) the case file; 2) a copy of the settlement agreement; and 3) copies of all checks or drafts made to the complainant in settlement of his complaint. The case file and settlement agreement are found to be relevant, and a subpoena for their production shall be issued. However, copies of checks or drafts made out to Plumley would not add anything of relevance to the other materials. Accordingly, Complainant's request for a subpoena as to this item is denied.

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DOCUMENTS WITHIN THE CONTROL OF THE DEPARTMENT OF LABOR

Complainant requests a subpoena compelling the production of various documents said to be within the control of the Office of the Solicitor, Division of Fair Labor Standards, USDOL; Edwin W. Tyler, Counsel for Trial Litigation, USDOL; and the USDOL generally. However, this request has been rendered moot by the Solicitor's promise to provide Complainant with all such material in its possession. The only item not said to be in the control of the Solicitor's Office or Mr. Tyler, i.e., a letter to William E. Brock, is being provided by the Solicitor. Consequently, there is no need to issue a subpoena for this material.

ORDER

1. Complainant's request for subpoenas compelling the attendance of Joan Seifert, Frank Silva, George Simpson, and Robert Diaz is granted.

2. Complainant's request for a subpoena compelling the attendance of Larry Jewel Glaze is granted.

3. Complainant's request for a subpoena compelling the production by Federal Prison Industries of its file on Complainant, and all correspondence and notes of phone conversations regarding Complainant between the national and Terminal Island offices of Federal Prison Industries, is granted.

4. Complainant's request for a subpoena compelling the production by the Federal Bureau of Prisons and Federal Prison Industries of the case file and settlement agreement in Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6, is granted.

5. Complainant's request for a subpoena compelling the production by the Federal Bureau of Prisons and Federal Prison Industries of copies of checks or drafts made out to the complainant in Plumley is denied.

6. Complainant's request for a subpoena compelling the production of documents in the control of the United States Department of Labor will not be granted because the Department is providing Complainant with all material in its possession.

7. Complainant shall have five (5) days from the receipt of this Order to show cause why a subpoena compelling the production of documents within the control of the Federal Correctional Institution should be granted.

Entered on this 8th day of May 1992, at

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Anaheim, California.

SAMUEL J. SMITH
Administrative Law Judge

[ENDNOTES]

¹BRBS = Benefits Review Board Service (Matthew Bender).

²See Perkins v. Marine Terminals Corp., 673 F.2d 1097, 14 BRBS 771 (9th Cir. 1982), rev'g 12 BRBS 219 (1980), in which the Ninth Circuit reiterated its holding in Ramos.

³Dec. OALJ & OAA = Decisions of the Office of Administrative Law Judges and Office of Administrative Appeals.

⁴Case law developed under the ERA has "great precedential value" in cases arising under similar whistleblower statutes like the CAA. Poulos v. Ambassador Fuel Co., Case No. 86-CAA-1 (April 27, 1987), 1 Dec. OAW & OAA 2 at 414, 415 n.2.

⁵See Billings v. Office of Workers' Compensation Programs, Case No. 91-ERA-0035 (September 24, 1991), 5 Dec. OALJ & OAA 5 at 134: "Because it is clear that Respondent is not an employer subject to the [ERA], the complaint lacks subject matter jurisdiction."

⁶Fifteen U.S.C. § 2619 provides that the TSCA applies to the United States "and any other governmental instrumentality to the extent permitted by the eleventh amendment to the Constitution." Fifteen U.S.C. § 2621 provides that compliance with the TSCA may be waived if the President determines that such a waiver is "necessary in the interest of national defense." Forty-two U.S.C. § 7418(a) provides that "[e]ach department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government" are subject to the CAA. Section 7418(b) following provides that the President may exempt executive branch entities from most requirements of the CAA "if he determines it to be in the paramount interest of the United States to do so."

⁷Moreover, the ALJ in O'Sullivan had no authority to issue a final decision and order disposing of the case; in whistleblower cases arising under 29 C.F.R. Part 24, that power belongs to the Secretary. 29 C.F.R. § 24.6(b). The Order in question here, of course, is not a recommended decision and order, but rather an evidentiary ruling. As of this date, the Secretary has not issued a final order in O'Sullivan.

⁸Complainant gives a case number of 86-CAA-1, but that number belongs to another case. See Poulos v. Ambassador Fuel Oil Co.. Inc., Case No. 86-CAA-1 (April 27, 1987), 1 Dec. OALJ & OAA 2 at 414. Plumley is Case No. 86-CAA-6. See Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6 (April 29, 1987), 1 Dec. OALJ & OAA 2 at 411 (Order Denying Interlocutory Appeal); Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6 (May 29, 1987), 1 Dec. OALJ & OAA 3 at 381 (Order Denying Complainant's Motion for Default Judgment); Plumley v. Federal Bureau of Prisons, Case No. 86-CAA-6 (July 20, 1987), 1 Dec. OALJ & OAA 4 at 260 ([Order] of Dismissal).