U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
DATE: FEB 14 1991
CASE NO.: 90-TSC-00001
In the Matter of
DOUGLAS A. COUPAR,
Complainant
v.
FEDERAL CORRECTIONAL INSTITUTION
EL RENO, OK
Respondent
ORDER
On November 27, 1990, Federal Correctional Institution, El
Reno, Oklahoma, Respondent, filed a motion to stay this
proceeding "until such time as a final determination is rendered
by the Office of the Solicitor of the Department of Labor with
respect to the threshold issue of whether inmates committed to
the custody of the Attorney General of the United States are
"employees" who may be properly afforded "whistleblower"
protection under the Clean Air Act amendments of 1977, 42 U.S.C.
7622, and the Toxic Substance Control Act, 15 U.S.C. 2622."
In support of its position, Respondent, submitted the
September 19, 1988 opinion of the U.S. Department of Justice,
Office of Legal Counsel. The opinion "determined" that federal
inmates are not subject to "whistleblower" protections afforded
employees under the above-titled statutes.
Judge Daniel J. Roketenetz addresses a similar motion in
Raymond B. Nottingham, Jr. v. Federal Prison Industries (UNICOR)
Case No. 91-CAA-2, Order dated December 4, 1990. As Judge
Roketenetz Order is clear, concise, and succinct to the issue, I
will quote from it:
The Respondent seeks a stay until such time as
a final determination is rendered by the Office of
[Page 2]
the Solicitor of the Department of Labor with
respect to the threshold issue of whether inmates
committed to the custody of the Attorney General
of the United States are "employees" who may be
afforded the protection of the employment
discrimination prohibitions of the statutes under
which this case arises. Appended to the motion
is an internal memorandum of the U.S. Department
of Justice dated September 19, 1988, dealing
with the status of federal inmates as "employees"
under certain employee protection statutes
including those at issue here. The Respondent
asserts that this memorandum, which was served
on the Solicitor of Labor, serves to control the
administrative consideration and resolution of
the above-captioned matter. In support of this
contention, the Respondent cites Executive Order
12146, Section 1-402, which provides in part that
"whenever two or more Executive Agencies whose
heads serve at the pleasure of the President are
unable to resolve . . . a legal dispute, the
agencies shall submit the dispute to the Attorney
General prior to proceeding in any court. . . . "
I first note that the internal memorandum
relied upon by the Respondent does not constitute
an opinion of the Attorney General. Moreover,
there is nothing before me that indicates that
the Attorney General has adopted the memorandum.
It also appears that the so-called dispute between
the agencies, i.e., the U.S. Department of Labor
and Federal Prison Industries has not been
submitted to the Attorney General for resolution
pursuant to Executive Order 12146. Accordingly,
the Respondent's contention that the internal
memorandum of the Justice Department is controlling
is rejected.
Furthermore, the fact that this memorandum
has been submitted to the Solicitor of Labor is
meaningless with regard to issues arising under
the statutes involved herein. The Office of the
Solicitor has no authority over the Office of
Administrative Law Judges, advisory or otherwise.
[Page 3]
moreover, the office of the Solicitor is not a
party to proceedings under the employee protection
statutes involved herein. Thus, the Respondent's
motion to defer to the Solicitor is totally without
merit and is likewise rejected.
In the instant case, the same issue is before us. The
Respondent is seeking a stay pending final determination by the
Office of the Solicitor of the Department of Labor. And, for the
same rationale as set forth above, I find that this motion is
totally without merit. Accordingly, it is ORDERED that the
motion to stay this proceeding is DENIED.
It is FURTHER ORDERED that this proceeding will be set for
an administrative trial at the Federal Correctional Institution,
El Reno, Oklahoma at a date and time to be determined.
