CASE SUMMARIES.

 
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  1. ENVIRONMENTAL QUALITY

    1. 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. The court listed other factors to be considered in deciding if a hired party is an employee under the general common law of agency, including the degree of skill required to do the job, source of the tools, location of the work, and the hired party's discretion over when and how long to work.

        Coupar also argued that he was entitled to prevail because FPI failed to appear in the administrative proceedings. However, the Ninth Circuit held that a decision of the Secretary to grant a default judgment is discretionary, and that he did not abuse his discretion by rejecting the ALJ's recommended default judgment. Also, FPI was not without "good cause" to believe that it was not required to attend the ALI proceedings, considering the court's agreement with their interpretation of who is an employee under the Acts.

        Coupar also argued that because FPI did not raise in the administrative proceedings the issue of whether he was an employee under the Acts, FPI waived the issue for purposes of Ninth Circuit review. However, the court pointed out that the issue was considered by both the ALJ and Secretary; therefore, the issue was not presented for the first time at the appellate level, and-it was appropriate for the court to have addressed it.

      2. Disimone v. Browner, 121 F. 3d 1262 (9th Cir. 1997).

        For several years, Maricopa and Pima counties, which respectively include the cities of Phoenix and Tucson, Arizona, have had unacceptably high levels of carbon monoxide. The areas failed to attain air quality standards under the Clean Air Act(8) (CAA) by the statutory deadline of December 31, 1995, and EPA has reclassified the areas as "serious" nonattainment areas. In a 1990 case, Delaney v. EPA,(9) a citizen suit was brought against the Environmental Protection Agency (EPA) under the CAA, claiming that EPA failed to perform its duties in these two areas. The Ninth Circuit ordered EPA to promulgate a Federal Implementation Plan (FIP) and to disapprove the Arizona State Implementation Plan (SIP) with regard to the two counties. Later that year, Congress amended the CAA, leading EPA to request that the Ninth Circuit recall its earlier mandate set down in Delaney. The panel denied EPA's request. However, in 1996 EPA accepted a contingency provision in the revised Arizona SIP and rescinded the FIP completely. The FIP provision required that transportation projects be delayed and that certain measures be adopted if a nonattainment area experienced violations of carbon monoxide standards.

        In this case, two individuals, Barry Disimone and Donald Steuter, sued EPA for approving the SIP and withdrawing the FIP. The Ninth Circuit held that EPA's actions were contrary to a direct court mandate and therefore were illegal. In addition, EPA was collaterally estopped from claiming that its action was required by the 1990 Amendments to the CAA. The Ninth Circuit based its decision on the "law of the case doctrine"(10) because EPA's motion to recall mandate and amend judgment had already been denied by a panel of the court. Instead of following the mandate ordered, EPA proceeded to approve the SIP. The Ninth Circuit admitted that typically it confines the law of the case doctrine to decisions in the same case as the one in which it is applied, yet here the cases involved different petitioners. However, the court applied the doctrine because both suits were brought against the same agency, concerned the same issue, and were on behalf of the same citizen population.

        The Ninth Circuit also held that EPA was precluded from claiming that its action was required by the 1990 Amendments because the same issue was already litigated and decided. First, EPA's argument in both cases was that the pre-Amendment guidelines were inconsistent with the 1990 Amendments. Thus, the same issue was involved in both cases. Second, the court inferred that the panel must have decided against all of EPA's arguments because such a decision was necessary to deny the motion. Therefore, the court found that the panel had decided that the 1990 Amendments did not warrant recalling EPA's mandate. Furthermore, such a decision was critical and necessary to its order. Finally, there were no circumstances precluding application of the collateral estoppel doctrine. Therefore, the Ninth Circuit held that EPA was collaterally estopped from arguing that that the 1990 Amendments permitted it to approve a SIP in place of an FIP.

    2. Hazardous Waste

      1. Ashoff v. City of Ukiah, 130 F. 3d 409 (9th Cir. 1997).

        Ashoff and other citizens sued the City of Ukiah (city) for injunctive relief, alleging that its solid waste disposal site violated the Resource Conservation and Recovery Act (RCRA),(11) Clean Water Act (CWA),(12) and state law. The district court granted the city's motion to dismiss the RCRA claim for lack of subject matter jurisdiction, concluding that RCRA did not authorize citizen suits "in federal court to enforce state regulations authorized under Subtitle D."(13) Ashoff was therefore constricted to alleging violations of the federal minimum criteria in his complaint. Ashoff timely appealed the dismissal of the RCRA claims, and the Ninth Circuit held that RCRA authorized citizen suits for violations of federal minimum criteria for solid waste landfills, even after a state had adopted a permit program for landfills pursuant to federal criteria, but the statute did not authorize citizen suits based on state standards that were more stringent than federal minimum criteria.

        Because lack of subject matter jurisdiction is a question of law, the court reviewed the claims de novo. The Ninth Circuit first affirmed that RCRA authorized citizen suits in authorized states based on the plain language of RCRA's citizen suit provision which states, "any person may commence a civil action on his behalf ... against any person ... who is alleged to...

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