DATE:  May 13, 1994
CASE NO.  92-TSC-12

IN THE MATTER OF 

DOUGLAS COUPAR
               Complainant

      v.

FEDERAL BUREAU OF PRISONS
               Respondent


                   RECOMMENDED DECISION AND ORDER

     This proceeding arises under the Clean Air Act Amendments of
197 (42 U.S.C. § 7622 et. seq.) hereinafter
"CAA" and the Toxic Substances Control Act (15 U.S.C. § 2622
et seq..) hereinafter "TSCA".  These statutes
prohibit an employer from discharging or otherwise discriminating
against an employee who has engaged in activity protected by the
CAA or TSCA.  These statutes are implemented by regulations
designed to protect "whistleblower" employees from retaliatory or
discriminatory action by their employers.  (29 C.F.R. § 24
1993).  An employee who alleges a violation of these statutes may
file a complaint within thirty days after the alleged violation.  

     The issues in this matter concern whether the Complainant is
an employee of the Federal Bureau of Prisons and Federal Prison
Industries (FPI) within the meaning of the CAA and TSCA.

                 BACKGROUND AND PROCEDURAL HISTORY

     This case presents Complainant's fifth complaint alleging that

[PAGE 2]
he was the victim of a retaliatory action (transfer to Federal
Correctional Institution at Oakdale, Louisiana) as a result of his
prior whistleblowing activities.  Prior to this complaint,
Complainant filed two claims in 1990 and 1991, which were
consolidated as 90-TSC-00001 and 91-TSC-00003, Douglas A. Coupar
v. Federal Correctional Institution, El Reno, OK,
alleging retaliatory action by FPI.  On December 13, 1991,
Administrative Law Judge G. Marvin Bober, U.S. Department of Labor,
issued a Recommended Decision and Order in which he dismissed
Complainant's consolidated complaints.  Judge Bober determined that
a federal prisoner working for FPI is not an employee within the
meaning of either the CAA or TSCA, and is therefore not entitled to
their whistleblower protection provisions.

     Complainant filed two more claims in 1992, 92-TSC-00006 and
92-TSC-00008, which were consolidated as Douglas Coupar v.
Federal Prison Industries/UNICOR.  In those complaints,
Complainant alleged retaliatory action by FPI and harassment by the
associate warden of the Federal Correctional Institution at
Terminal Island, California for filing previous complaints.  In a
Recommended Decision and Order dated June 11, 1992, Administrative
Law Judge Samuel J. Smith, U.S. Department of Labor, dismissed
complaint number 00008 but held that an employment relationship
existed between Complainant and FPI so as to afford Complainant the
whistleblower protection of the CAA and the TSCA.

     The Secretary of Labor did not issue a final order after
either decision of Judge Bober or Judge Smith.

     In connection with the present claim, Complainant filed a
Motion to Stay proceedings before the Office of Administrative Law
Judges pending a ruling from the Secretary of Labor that the
Department of Labor has subject matter jurisdiction over
environmental whistleblower complaints filed by inmates
incarcerated by the Federal Bureau of Prisons.  However, that
motion was denied by the undersigned and the hearing set in the
matter was cancelled.

     On March 22, 1993, the undersigned issued an Order to Show
Cause by April 9, 1993, why the proceeding should not be dismissed
for the failure of Complainant to show his entitlement to
protection under the employee protection provisions of the TSCA. 
Complainant filed a motion for an extension of time in which to
respond to the Show Cause Order, which was granted on May 27, 1993,
giving Complainant until July 15, 1993, to respond.

     On March 29, 1993, Respondent filed a Motion to Dismiss 
[PAGE 3]
asserting that the Office of Administrative Law Judges lacks
jurisdiction to issue or enforce further proceedings in this
matter.  In support of its motion, Respondent argued that a prior
opinion of the U.S. Department of Justice's Office of Legal Counsel
holding that prison inmates are not afforded whistleblower
protection status under the CAA or TSCA, and Judge Bober's decision
in Douglas A. Coupar v. Federal Correctional Institution, El
Reno, OK, 90-TSC-00001 and 91-TSC-00003, should be given
preclusive effect.  

     On July 19, 1993, Complainant filed a response to Respondent's
Motion to Dismiss, alleging that he was an employee of FPI and was
therefore entitled to the protection of the whistleblower statutes,
and incorporating by reference the arguments and rationale of Judge
Smith's decision in Coupar v. Federal Prison
Industries/UNICOR, 92-TSC-00006/00008.



        RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

     As the Secretary did not issue a final order after the
recommended decision and order of either Administrative Law Judge
Bober or Smith, neither decision can be considered a final order
under the provisions of 15 U.S.C. section 2622(b)(2)(A); 42 U.S.C.
section 7622(b)(2)(A); and 29 C.F.R. sections 24.4-24.7(a). 
Accordingly, the undersigned finds that the doctrines of res
judicata and collateral estoppel do not apply to either
decision of Administrative Law Judges Bober or Smith.[1] 

     At the outset it should be noted that Complainant has never
maintained that an employment relationship exists between him and
Respondent.  Rather, Complainant argues that Respondent has engaged
in a form of blacklisting (retaliatory transfer) that has caused
him to lose his work status with FPI, a government corporation of
which he is an "employee".  The Secretary has noted that continual
blacklisting is a form of insidious and invidious discrimination
prohibited by the Energy Reorganization Act (ERA).  See
Egenrieder v. Metropolitan Edison Co./G.P.U., 85-ERA-23, 1
OAA 2, 425, 427 (April 20, 1987); Deford v. Secretary of
Labor, 700 F.2d 281, 287 (6th Cir. 1983)(affirming Secretary's
finding that a work transfer and demotion constituted a retaliatory
discriminatory action in violation of the ERA).  See
also Sherman v. Burke Contracting, Inc., 891 F.2d
1527 (11th Cir. 1990)(conduct which causes a former employee to
lose a new job is a form of blacklisting prohibited by Title VII). 
The Secretary has determined that an employer/employee relationship
need not exist between a complainant and a respondent 
[PAGE 4]
in cases arising under the ERA, the National Labor Relations Act
(NLRA), and Title VII of the Civil Rights Act of 1964.  See
Hill V. Tennessee Valley Authority, 87-ERA-23 (Sec. of Labor
5/24/89); Ottney v. Tennessee Valley Authority, 87-ERA-24
(Sec. of Labor 5/24/89); 29 U.S.C. § 152 (1982); Armbruster
v. Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983). 

     There have been no decisions from the Secretary regarding
whether a prisoner can have employee status under the CAA or the
TSCA, and the statutes themselves do not define the terms
"employee" and "employer."  However, federal or state prison
inmates have been held not to be "employees" entitled to bring
discrimination claims under either the Fair Labor Standards Act,
Title VII, the Equal Pay Act, or the Rehabilitation Act. 
See Hale v. Arizona, 993 F.2d 1387, 1394 (9th Cir.
1993); Williams v. Meese, 926 F.2d 994 (10th Cir. 1991)[2]
; Young v. Cutter Biological, 694 F. Supp. 651 (D. Ariz.
1988).  See also, Sprouse v. Federal Prison
Industries, Inc., 480 F.2d 1 (5th Cir. 1973)(disallowing suit
brought by federal prison inmate under the FLSA against a U.S.
government corporation on the grounds of sovereign immunity).

     Moreover, to establish that Respondent has blacklisted
Complainant from an employment opportunity with FPI, Claimant would
necessarily have to first establish that he was, is, or has an
opportunity to be, an employee of FPI.  The published decisions
from the Office of Administrative Law Judges recommend that
Claimant is not an "employee" of FPI within the meaning of the
whistleblower provisions of the CAA or TSCA.  See Bryant
v. UNICOR/Federal Prison Industries, 92-CAA-4, October 23,
1991, 6 OALJ 5, 1; Teves v. Federal Prison Industries
(UNICOR), 91-CAA-1, April 25, 1991, 5 OALJ 2, 6; Nottingham
v. Federal Prison Industries (UNICOR), 91-CAA-2, April
23, 1991, 5 OALJ 2, 1.  In the absence of a final order from the
Secretary, the undersigned adopts the reasoning of the
Bryant decision and concludes that Claimant is not an
"employee" of FPI under the CAA or the TSCA.  As noted by Judges
Burke, Complainant's relationship with FPI arises out of his
incarceration, and it is not a voluntary employment relationship as
contemplated at common law.  Bryant, 6 OALJ 5 at 3. 
See also Judge Roketenetz's analysis in
Nottingham, 5 OALJ 2 at 3, and Teves, 5 OALJ 2 at 8. 
In Bryant, Judge Burke reasoned that:

     Complainant is  . . . under a legislative mandate to
     perform such work as FPI assigns him . . . .  He did not
     voluntarily enter a contract to work nor [is] he entitled
     to compensation [under the statutory provisions of 18
     U.S.C. 4126] . . . . The economic reality is that
     [Complainant] has not contracted with FPI nor is he in a 
[PAGE 5]
      position to negotiate or bargain with FPI . . . . When Complainant
      is released from prison he will no longer perform work for FPI.

Bryant, 6 OALJ 5 at 3.  

     Complainant in this case is similarly situated to the
Complainants in Bryant, Nottingham, and Teves. 
His work opportunities with FPI will end necessarily when he is
released from prison.  Accordingly, the undersigned finds that
Complainant is likewise not an "employee" of FPI and is therefore
not entitled to the whistleblower protection provisions of the CAA
or the TSCA.  Respondent's motion to dismiss for lack of
jurisdiction is granted.

                         RECOMMENDED ORDER

     It is hereby recommended that:

     1.  Respondent's motion to dismiss for lack of jurisdiction
         be granted.

     2.  The Complaint of Douglas Coupar be dismissed.
          

                                _________________________________
                                QUENTIN P. MCCOLGIN
                                Administrative Law Judge         


QPMC:mef


[ENDNOTES]

[1]  Neither party has asserted that the "law of the case"
doctrine applies in this administrative law forum and it does not
appear that it does.

[2]  The Meese court, however, did acknowledge that
Claimant could maintain a Bivens claim for deprivation of
right to equal protection under the Fifth Amendment against
prison officials who discriminated against him on the basis of
race, age, or handicap in choosing whether to assign him to a
particular job, and could also bring a discrimination claim
against prison officials who denied Claimant job assignments and
transferred him from one job in retaliation for exercising his
First Amendment rights.  Meese, 926 F.2d at 998.