On January 24, 2003, we issued an Order directing the ALJ to provide the Board copies of documents from the record in the Greene whistleblower proceeding that were relevant to the grounds cited by the ALJ for his disqualification of Counsel. Ord. of Jan. 24, 2003, at 2. The Board Order also directed the ALJ to provide the Petitioners and the Environmental Protection Agency (EPA), as respondent in the Greene whistleblower case, lists of the copies of documents provided to the Board. Copies of the documents, rather than the original documents contained in the Greene whistleblower case record, were requested to ensure compliance with 29 C.F.R. § 18.36(b). That provision requires that the underlying proceeding not be suspended pending disposition of an appeal of a representative's exclusion under Section 18.36. Id.; see Board Order at 1-2. The parties in the case were already in receipt of the documents in the Greene case record, either by virtue of having been served the respective document or having been the source of the document submitted to the ALJ. Consequently, it was unnecessary for the ALJ to serve copies of the documents that he was providing the Board on the parties. Instead, lists of the documents being sent to the Board provided the necessary notice to the parties regarding the materials that are before the Board for review in connection with this appeal. The Board received the requested documents from the ALJ on February 11, 2003.

   On February 23, 2003, the Complainant filed a Motion to Order That [the ALJ] Forward Complete Record to Complainant Judge Greene and Counsel. The substance of that motion, which was filed on the Complainant's behalf by Counsel, suggests that the Petitioners failed to read the Board's January 24, 2003 Order, with which the ALJ has fully complied. The motion objects to the ALJ's sending copies of only a portion of the record to the ARB, the ALJ's delay in forwarding the case record in Greene to the ARB until requested to do so by the ARB, and the ALJ's service on the parties of only lists of the documents that the ALJ sent to the ARB instead of providing the parties copies of those documents. Motion at 1-2.

   Pursuant to Section 18.36, the ALJ properly retained the case record in order to resume – after an appropriate period was afforded the Complainant to obtain other counsel or to proceed pro se – adjudication of the Greene whistleblower complaint. See 29 C.F.R. § 18.36(b). Pursuant to our January 24 Order, the ALJ provided the Board with only the relevant documents from the Greene case record. Furthermore, the ALJ provided the parties with lists describing each of the documents, rather than copies of the documents, in compliance with the Board Order. We have explained why such lists provided adequate notice to the parties regarding the contents of the record that is before the Board in this appeal of the ALJ's disqualification order. The Petitioners' February 23 motion does not request any particular document from the Greene case record that is contained on the list provided by the ALJ. Moreover, we have reviewed the documents provided by the ALJ. Our review of those documents confirms that all the documents were either generated by the Complainant through her Counsel or were served by the ALJ or the EPA on the Complainant through her Counsel with, in many instances, additional service on the Complainant at her then-operative EPA office address. See generally 29 C.F.R. § 18.3(b) (Service and filing of documents). The Complainant's request that the ALJ provide her copies of all the documents that he submitted to the Board on February 11, 2003, is therefore DENIED.

   1. Whether the in futuro bar imposed against Counsel can be sustained pursuant to the procedural requirements and the substantive criteria of 29 C.F.R. § 18.34(g)(3).

   2. Whether the exclusion of Counsel from further participation in the Greene whistleblower case can be sustained pursuant to the procedural requirements and substantive criteria of 29 C.F.R. § 18.36.

The ALJ's Order to Show Cause and Order of Disqualification

   On January 28, 2002, the ALJ issued an order directing Counsel to show cause why he should not be disqualified from appearing before the ALJ pursuant to 29 C.F.R. §§ 18.29, 18.34(g)(3) and 18.36. Ord. to Show Cause (OSC) at 1, 4. The case had been assigned to the ALJ in October 2001, and was at the prehearing stage when the ALJ issued the OSC. Id. at 1-4. The OSC stated that the attorney had engaged in the following three types of misconduct:

1) Engaging in improper and unethical professional conduct by making a false statement in a pleading regarding the ALJ's selection to hear the Greene case;
2) Making insulting, abusive and unprofessional statements about the ALJ and other government officials; and
3) Violating the ALJ's written prehearing order by filing pleadings containing inappropriate and uncivil language and failing to refrain from improper and misleading use of string citations to case law.

Id. The ALJ cited specific statements made by Counsel and provided other factual support as grounds for issuance of the order. Id. The OSC afforded Counsel until February 11, 2002, to respond. Id. at 4.

   Neither of the Petitioners filed a response to the OSC with the ALJ. Rather, on February 11, 2002, the Complainant filed an appeal with this Board of another order that was also issued by the ALJ on January 28, 2002. Comp. Pet. for Interlocutory App., Greene v. EPA Chief Judge Susan Biro, ARB No. 02-050, ALJ No. 02-SWD-1; see n.4 supra. That second January 28 order denied the Complainant's January 8, 2002 motion for the ALJ's recusal from the case. ALJ Ord. issued Jan. 28, 2002. Also on February 11, the Complainant filed a motion with the ALJ, requesting that he stay the proceedings in the adjudication of the whistleblower complaint pending disposition of the interlocutory appeal. Complainant's Motion for Stay filed Feb. 11, 2002. The ALJ issued an Order denying Greene's stay request, on February 26, 2002. ALJ Ord. issued Feb. 26, 2002. On September 18, 2002, the Board dismissed the Complainant's petition for review in ARB Case No. 02-050 as an impermissible interlocutory appeal. Greene, Ord. Dismissing Interlocutory App.

   On June 20, 2002, the ALJ issued the Order of Disqualification, which contains a lengthy analysis of Counsel's conduct in comparison with relevant legal standards. The ALJ discussed not only Counsel's conduct in the Greene whistleblower proceeding but also in other cases, including adjudications before Department of Labor Judges, the ARB, and in State and Federal courts. Ord. of Disqualif. at 8-17. The ALJ noted that Counsel had not responded directly to his OSC. The ALJ also noted, however, that he had considered the letter filed by the Complainant in support of her February 11, 2002 interlocutory appeal to the ARB to determine whether it offered any argument in response to the January 28 OSC. Ord. of Disqualif. at 5. The ALJ concluded that the Complainant's appeal letter did not "respond directly to the issues raised in the Order to Show Cause or articulate reasons why" Counsel should not be disqualified. Id.

   Concerning Counsel's conduct before the ALJ in the Greene proceeding, the ALJ provided an expanded discussion of the three basic types of misconduct that he had described in the OSC, viz.: 1) making a false statement in a pleading regarding the ALJ's selection to hear the case pursuant to 5 C.F.R. § 930.213; 2) making insulting, abusive and unprofessional statements regarding the ALJ and officials at the Office of Personnel Management (OPM), the Department of Labor Office of Administrative Law Judges (DOL OALJ), and HUD; and 3) failing to comply with the ALJ's November 13, 2001 prehearing order by making "inappropriate and uncivil statements" in documents filed with the ALJ and by indiscriminately citing decisions as support for legal propositions without providing adequate explanation and/or accurate citation. Ord. of Disqualif. at 2-8. Regarding other cases, the ALJ stated that Counsel's misconduct had prompted censure in a minimum of eight other reported cases, and the ALJ described Counsel's conduct and the tribunal's action in each of those cases. Ord. of Disqualif. at 8-17.

   Before summarizing the relevant arguments, we note that all of Petitioners' arguments in support of Chief Judge Vittone's disqualification from hearing this appeal have been rendered moot by his subsequent recusal on July 26, 2002. The Prehearing Order directed the Petitioners to respond to specified questions concerning the effect of the Petitioners' failure to file a response with the ALJ to the OSC, including whether the Petitioners had thereby waived the right to a formal hearing before the Chief Judge. Prehearing Ord. at 3-4, 5. The Prehearing Order also directed the Petitioners to specify the witnesses they would call and to provide a summary of each witness' anticipated testimony, assuming such hearing were available. Id. at 5. The Prehearing Order additionally instructed the Petitioners to respond to questions concerning the appropriateness of the sanctions the ALJ imposed. Id. at 4-5. The Petitioners raise a number of issues in response to the Prehearing Order.

   As a threshold matter, we note that the Petitioners challenge the validity of the disqualification of counsel provision found at 29 C.F.R. § 18.34. Comp. July 16, 2002 Resp. to Prehearing Ord. at 17. The ARB is bound by the regulations duly promulgated by the Department of Labor, and is not authorized to rule on the validity of those regulations. Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272, 64,273 (Oct. 17, 2002). We will therefore not rule on the Petitioners' argument concerning the validity of Section 18.34.

   The Petitioners also raise objections to the procedure followed by the ALJ and urge that an evidentiary hearing should be scheduled as part of the Petitioners' appeal of the disqualification order. The Petitioners' further arguments challenge the grounds the ALJ relied on in determining that disqualification was proper.

   b. Arguments regarding the ALJ's procedure and in support of a formal hearing in this appeal

   The Prehearing Order noted the Petitioners' position that submission of copies of documents filed with other Department of Labor officials constituted adequate response to the ALJ's OSC and requested that the Petitioners provide a legal basis for the view. Prehearing Ord. at 3. The Petitioners' response confirms their position on this issue but fails to provide any legal authority to support that position. Instead, the Petitioners assert that the ALJ was divested of jurisdiction in the Greene whistleblower case by the filing of the Complainant's interlocutory appeal of the ALJ's order refusing to recuse himself. Comp. July 16, 2002 Resp. to Prehearing Ord. at 17. That appeal was filed on February 11, 2002, and the ARB dismissed it as an impermissible interlocutory appeal on September 18, 2002. The Petitioners urge that the ALJ was thus without jurisdiction to act on the OSC that he had issued on January 28, 2002, which ordered Counsel to show cause, on or before February 11, 2002, why he should not be disqualified from appearing before the ALJ, OSC at 4. The Petitioners also assert that the ALJ "never gave the parties notice that he intended to issue an order based upon a fabrication (an assumption of ‘default') in the face of a hotly contested interlocutory appeal . . . ." Comp. July 16, 2002 Resp. to Prehearing Ord. at 8. The Petitioners further contend that disqualification of counsel during the adjudication of the Greene whistleblower complaint before the ALJ was improper and that any sanction against the Complainant's Counsel should not have been imposed until completion of that adjudication. Id. at 22-23.

   In answer to a question in the Prehearing Order regarding whether the Petitioners had waived their right to a hearing on the disqualification order, the Petitioners assert only that "it was error for Judge Cregar to have been assigned to this case." Comp July 16, 2002 Resp. to Prehearing Ord. at 20. In reply to the question of what factual issues would be adjudicated should a hearing be held in this appeal, the Petitioners cite issues regarding the ALJ's "conduct and questioned assignment to this case, including but not limited to collusion between OPM, HUD and DOL regarding the assignment" of the ALJ. Id.

   c. Arguments regarding the ALJ's grounds for disqualifying Counsel

   The Petitioners challenge the ALJ's imposition of sanctions for statements made by Counsel as inconsistent with certain aspects of an attorney's role in the legal system. The Petitioners cite an attorney's legitimate interest in improving the legal system under Canon 8 of the Model Code of Professional Responsibility and an attorney's obligation to zealously represent his client's interests. Comp. July 16, 2002 Resp. to Prehearing Ord. at 6-7, 7-8, 9, 10, 11, 13, 16. The Petitioners also cite protections extended to criticism of government officials and judges as an exercise of free speech under the First Amendment to the Constitution. Id. at 6-7, 7-8, 9, 10, 11.

   Relevant to the ALJ's conclusion that Counsel had made a false statement regarding the circumstances surrounding the ALJ's selection under 5 C.F.R. § 930.213 to hear the Greene whistleblower case, the Petitioners do not deny that Counsel made allegations of impropriety in the Section 930.213 assignment process but instead reiterate those allegations. Comp. July 16, 2002 Resp. to Prehearing Ord. at 1, 7, 18; see Ord. of Disqualif. at 2-3, 19-23; see also OSC at 3. The Petitioners also argue that the evidence on which the ALJ relied is inadequate to establish that Counsel's allegations of impropriety are false, and they cite evidence in the record that they contend supports the allegations. Comp. July 16, 2002 Resp. to Prehearing Ord. at 1, 18, 21.

   Pertinent to the ALJ's further conclusion that the Complainant's Counsel had made insulting, abusive and unprofessional statements about the ALJ and other government officials, the Petitioners do not deny that the statements identified by the ALJ were made by Counsel. Instead, the Petitioners contend that such statements were properly made in the interest of Counsel's professional obligation to zealously represent his client and to seek improvement in the legal system. Comp. July 16, 2002 Resp. to Prehearing Ord. at 9, 10, 11, 13, 15-20.

   The Prehearing Order asked the Petitioners to address legal authority concerning an attorney's obligation "to be scrupulous in making truthful statements to a tribunal, whether of law or fact." Prehearing Ord. at 4. The Petitioners do not address such authority but instead assert that "EPA has been less than candid with the tribunal . . ." and they comment on certain aspects of the Complainant's whistleblower complaint against EPA. Comp. July 16, 2002 Resp. to Prehearing Ord. at 18-19.

   Relevant to the ALJ's finding that Counsel had failed to follow the ALJ's direction to refrain from improper and misleading use of string citations to legal authorities, the Petitioners raise two points. Specifically, they contend that the ALJ's directive regarding citations is ambiguous and also is inconsistent with common practice in the legal profession. Comp. July 16, 2002 Resp. to Prehearing Ord. at 19, 22-23.

The relevant Part 18 regulations

   Section 18.36 provides:

(a) All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner.

(b) The administrative law judge may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards or orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications. The administrative law judge shall state in the record the cause for suspending or barring an attorney or other representative from participation in a particular proceeding. Any attorney or other representative so suspended or barred may appeal to the Chief Judge but no proceeding shall be delayed or suspended pending disposition of the appeal; provided, however, that the administrative law judge shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney or representative.

   The ALJ in the instant case not only excluded Counsel from participation in the Greene whistleblower proceeding, he also barred him from appearing before the ALJ in any case in the future. The in futuro bar imposed by the ALJ, although limited to cases that come before that ALJ, goes beyond the sanction of exclusion from an on-going adjudication that is provided by Section 18.36, and must be viewed as action taken pursuant to Section 18.34(g)(3).

   The application of either Section 18.34(g)(3) or Section 18.36 by administrative law judges has rarely been the subject of review by the Secretary or the ARB. The most fully developed discussion of OALJ authority to discipline attorneys for misconduct is found in Rex v. Ebasco Servs., a case in which an administrative law judge recommended imposition of sanctions provided by Rule 11 of the Federal Rules of Civil Procedure against two attorneys. When Rex reached the Secretary for review, the Wage and Hour Administrator filed an amicus brief advocating rejection of the administrative law judge's recommendation. The Administrator urged that, since Part 18 regulations provide sanctions for attorney misconduct, it was inappropriate to resort to the Federal Rules of Civil Procedure pursuant to 29 C.F.R. § 18.1(a), and the Secretary agreed. Rex, 87-ERA-6, -40, slip op. at 3-7 (Sec'y Mar. 4, 1994). The Secretary discussed the sanctions provided by Sections 18.34(g)(3) and 18.36. Id. at 4-7. However, the Secretary dismissed the whistleblower complaint in Rex and, therefore, regardless of whether the attorneys had engaged in the conduct prohibited by Section 18.36, the issue of the attorneys' exclusion from a particular proceeding before an administrative law judge under Section 18.36 was rendered moot. See id. at 4, 5-6. Imposition of sanctions in the form of a denial of the attorneys' authority to appear in other cases pursuant to Section 18.34(g)(3) was an open question, however. The Secretary accordingly noted that administrative law judges presiding over cases in which those attorneys entered appearances in the future could take action pursuant to Section 18.34(g)(3). Id. at 7.

The formal hearing requirement of Section 18.34(g)(3)

   The procedure followed by the ALJ in imposing sanctions against the attorney in this case does not comply with the "notice and opportunity for hearing" requirement of Section 18.34(g). As the Secretary's remand order in Rex makes clear, Section 18.34(g)(3) requires that the attorney be provided an opportunity to respond in a formal hearing to a challenge to his or her fitness to represent a party, or parties. The process followed by the ALJ does not comply with the Section 18.34(g)(3) procedure. We accordingly cannot uphold his order barring Counsel from appearing as a representative or serving in an advisory capacity to a party in any matter to come before the ALJ in the future.

The procedural requirements of Section 18.36(b)

   a. Before the ALJ

   The procedural requirements of Section 18.36(b) differ considerably from those of Section 18.34(g)(3). The procedure followed by the ALJ in this case clearly fulfills the requirements of Section 18.36(b). Specifically, the ALJ ensured that the record properly reflected the grounds on which he based his disqualification order. Ord. of Disqualif. at 8-25; see 29 C.F.R. § 18.36(b) and excerpt supra. Indeed, the ALJ assiduously analyzed the misconduct that prompted him to take action under Section 18.36. Ord. of Disqualif. at 8-25. Furthermore, the ALJ gave the Petitioners ample notice that the Complainant's Counsel could be excluded from participation in the case if he continued to engage in certain unprofessional conduct. On November 13, 2001, more than two months before the ALJ issued the OSC, the ALJ issued a prehearing order in which he advised counsel to both parties that further uncivil language or conduct would subject the offending representative to sanctions, including exclusion from participation in the case. OSC at 3; Nov. 13, 2001 Summary of Prehearing Conference, Notice of Hearing and Order at 3-4.

   In the January 28 OSC, the ALJ clearly explained the grounds on which he would base the imposition of sanctions against the Complainant's Counsel unless good cause for not taking such action were shown, by February 11. OSC at 1-4. Although neither the Complainant nor the Complainant's Counsel filed a response to the ALJ's OSC, the ALJ took a further step before issuing the disqualification order on June 20, 2002. He examined the appeal letter that the Complainant filed with the ARB on February 11, 2002 – to pursue the ALJ's recusal – to determine whether that document contained argument responding to the points covered in the OSC. Ord. of Disqualif. at 5. Before issuing the Order of Disqualification on June 20, 2002, the ALJ had clearly met the procedural requirements of Section 18.36. The Petitioners' argument that the ALJ failed to provide adequate notice of his intention to issue the disqualification order pursuant to Section 18.36 is thus devoid of merit.

   The Petitioners' related contention that the Complainant's filing of an interlocutory appeal with the ARB divested the ALJ of jurisdiction to issue the Order of Disqualification similarly lacks merit. The Petitioners have not cited, and we have not found, any authority to support the view that a party's filing of an appeal from an interlocutory order automatically and immediately divests an administrative law judge of jurisdiction. Furthermore, the course of conduct followed by the Complainant and her Counsel after the ALJ issued the OSC left them wholly vulnerable to issuance of the ALJ's Order of Disqualification.

   The Petitioners' contention that the ALJ was divested of jurisdiction is tantamount to a suggestion that a party whose representative has provoked an ALJ to take action under Section 18.36 can easily thwart the ALJ's authority by filing an interlocutory appeal with the ARB. Such practice would undermine the ALJ's obligation to ensure the orderly conduct of the hearing and the timely resumption of proceedings following a Section 18.36 exclusion. Section 18.36(b) expressly provides that "no proceeding shall be delayed or suspended pending disposition of the appeal" from a judge's disqualification order except "for a reasonable time for the purpose of enabling the party to obtain another attorney or representative." 29 C.F.R. § 18.36(b); see excerpt supra. Section 18.36 thus provides no support for the Petitioners' contention that the ALJ acted improperly by issuing the Order of Disqualification in June 2002 while the Complainant's interlocutory appeal was pending before the ARB.

   We similarly reject the Petitioners' assertion that the ALJ should have waited to impose the disciplinary sanction of excluding Counsel from participation in the Greene case until he had completed adjudication of the whistleblower complaint. The purpose of Section 18.36 is to allow the ALJ to bring an immediate halt to disruptive behavior and to ensure that the offending participant poses no further obstacle to the orderly conduct of proceedings. To delay the imposition of sanctions against a party's representative until after the conclusion of adjudication would defeat that purpose. We therefore reject the Petitioners' contentions that the Order of Disqualification cannot be upheld under Section 18.36 because the ALJ failed to follow proper procedure in issuing the Order.

   b. Before the ARB

   Section 18.36(b) provides that an attorney or other representative who has been suspended from participation in a particular case by an administrative law judge "may appeal to the Chief Judge . . . ." 29 C.F.R. § 18.36(b), excerpt supra. The regulation does not provide any further guidance concerning the procedure to be followed in such an appeal. Id. The Petitioners urge that a formal hearing should be held to allow them to adduce testimony concerning the ALJ's "conduct and questioned assignment to this case, including but not limited to collusion between OPM, HUD and DOL regarding the assignment" of the ALJ. Comp. July 16, 2002 Resp. to Prehearing Ord. at 20. The Petitioners do not advance any legal argument in response to the Prehearing Order query as to whether they had waived the right to a hearing in this Section 18.36(b) appeal by their failure to respond to the ALJ's OSC. Instead, the Petitioners rely on the bald assertion that "it was error for Judge Cregar to have been assigned to this case." Id.

   The Petitioners' contentions regarding the ALJ's assignment to the Greene case are simply not relevant to the question of whether the Petitioners waived their right to a hearing concerning the misconduct cited in the Order of Disqualification. Furthermore, the Petitioners have not cited any extenuating circumstances to justify Counsel's failure to respond to the OSC before the ALJ. As demonstrated by our previous discussion of the Complainant's filing of the interlocutory appeal with the Board, that filing does not provide justification for Counsel's failure to respond to the ALJ's OSC.

   By failing to respond to the ALJ's OSC, the Petitioners failed to contest the facts cited in support of the OSC by the ALJ. The Petitioners also waived their right to contest those facts at a later stage of the proceeding. Cf. 29 C.F.R. § 18.5(b), (d)(1) (Responsive pleadings – answer and request for hearing, Default; Orders to Show Cause). We will, nonetheless, review their contentions that challenge the rationale on which the ALJ relied in his Order of Disqualification.

The grounds on which the ALJ relied under Section 18.36

   a. The ALJ's findings and conclusions

   The ALJ ultimately determined that the three types of misconduct that he had identified in this case – 1) making a false statement in a pleading regarding the ALJ's selection to hear the Greene case; 2) making insulting, abusive and unprofessional statements regarding the ALJ and other Federal officials; and 3) violating the ALJ's written prehearing order by filing pleadings containing inappropriate and uncivil language and failing to refrain from improper and misleading use of string citations – violated the standards established by Section 18.36. Ord. of Disqualif. at 24, 25; see id. at 18. As noted by the ALJ, Section 18.36 expressly requires that any person appearing in OALJ proceedings "act with integrity, and in an ethical manner" and specifies the "refusal to adhere to reasonable standards of orderly and ethical conduct" and the "refusal to comply with directions" among its prohibited actions. 29 C.F.R. § 18.36; see excerpt supra.

   The ALJ found that Counsel had knowingly, or with reckless disregard for the truth, made a false statement regarding the integrity of the ALJ and other Federal officials in the January 8, 2002 motion for the ALJ's recusal that was filed with the ALJ. Ord. of Disqualif. at 2-3, 19-20, 23. Specifically, the ALJ found that Counsel's assertion that the Memorandum of Understanding (MOU) between HUD and DOL regarding the ALJ's assignment to hear the Greene DOL case "was established in secrecy, with HUD and DOL OALJ picking HUD and one of its judges to decide the case before OPM was contacted" was made without adequate support and also with reason to know that the statement was false. Id. at 3, 19-20; see n.1 supra regarding OPM assignment of ALJ pursuant to 5 C.F.R. § 930.213 (2001).

   The ALJ further found that Counsel included several statements regarding the ALJ and other Federal officials in various pleadings filed in Greene, particularly in January 2002, that were insulting, abusive and unprofessional. Ord. of Disqualif. at 3-5, 23-24. The ALJ found similar statements contained in the petition for interlocutory review that Counsel filed with the ARB on behalf of the Complainant on January 28, 2002, and in a January 9, 2002 letter sent to the Secretary to complain about the terms of the MOU into which HUD and DOL entered regarding the ALJ's assignment to hear the Greene case. Ord. of Disqualif. at 3-5. Chief among the unprofessional statements cited by the ALJ are Counsel's statements implying that the ALJ, EPA, HUD, OPM and DOL OALJ officials had colluded to ensure that the ALJ protected what Counsel characterized as EPA's "prerogatives" to harass administrative law judges like the Complainant in the Greene case while furthering the ALJ's own professional goals. Id. In addition, the ALJ cited other statements Counsel made that can fairly be summarized as personal attacks upon the ALJ as opposed to assignments of error to his rulings. For example, Counsel makes general statements regarding the ALJ's conduct of the proceedings, e.g., that his rulings had been "nasty, brutish and short (and bordering dangerously on bullying)," rather than framing such challenges as arguments that specific rulings are erroneous under relevant legal standards. Id. at 3. The ALJ also cited Counsel's statements in the letter to the Secretary that assert that the ALJ intended to adjudicate the Greene case with the least possible investment of his time, in order to benefit HUD financially under the terms of the MOU between HUD and DOL. Id. at 4.

   The ALJ noted that disrespectful and offensive personal attacks on a judge violate an attorney's "‘professional obligation to demonstrate respect for the courts.'" Id. at 21 (quoting Williams v. Lockheed Martin Corp., ARB Nos. 99-054, 99-064, ALJ Nos. 98-ERA-40, -42 (ARB Sept. 29, 2000)). The ALJ also contrasted Counsel's offensive statements with properly articulated arguments that fulfill an attorney's ethical responsibility to provide zealous representation. Ord. of Disqualif. at 23-24. The ALJ quoted from one State court decision concerning the difference between well-reasoned argument, which more effectively advocates a client's cause, and indignation, belligerence, theatrics, and "overheated rhetoric." Id. at 23. In addition, the ALJ cited a State court decision regarding an attorney's obligation to uphold the dignity of the courts by refraining from statements in pleadings or in open court that promote disrespect for the law and for the judicial system. Id. at 23-24. The ALJ concluded that Counsel's statements attack "the credibility, integrity, and impartiality of two judges [the ALJ and Associate Chief Judge Thomas M. Burke], the administrative hearing system, and other government officials" involved in the ALJ's appointment to hear the Greene whistleblower complaint. Id. at 24.

   The ALJ also found that Counsel had failed to comply with two aspects of the prehearing order that the ALJ issued on November 13, 2001. First, the ALJ found that the aforementioned offensive statements made by Counsel violated the ALJ's directive that both counsel conduct themselves in a "civil and professional" way and refrain from such inappropriate conduct as "terminating a telephone conversation with opposing counsel by hanging up" and the use of "emotionally laden language" in pleadings. Ord. of Disqualif. at 5-6, 24. Secondly, the ALJ found that Counsel had failed to comply with guidelines for the use of citations to legal authority, which were set out in the ALJ's prehearing order as follows:

[R]efrain from using string cites in support of a particular point in motions or pleadings. It is usually unnecessary to cite any cases other than the most recent or, alternatively, the seminal case for a particular proposition. Only if multiple cases are necessary to articulate different aspects of the contention are multiple citations called for. Citations should be to specific pages of the case, and cited cases should be followed by brief synopsis, in parentheses, of the proposition for which the case stands.

Ord. of Disqualif. at 6 (quoting from Nov. 13, 2001 Summary of Prehearing Conference, Notice of Hearing and Order at 4).

   The ALJ observed that inaccurate and misleading citations to legal authorities wastes judicial resources, and he discussed three examples of citations to legal authority found in documents Counsel filed in January 2002. One example is a citation to a case that clearly does not support the proposition for which it is offered. Ord. of Disqualif. at 6-7 (quoting from Comp. Notice of Filing and Motion RE: J. Cregar's Status at 2). The ALJ identified another example, which contains citation to eighteen court decisions and one law review article in support of the proposition that, "Courts have repeatedly authorized individual liability for retaliators and harassers and managers who commit or tolerate it." Ord. of Disqualif. at 7 (quoting from Comp. Judge J. F. Greene's Resp. to EPA's Motion to Dismiss or in the Alternative for Summ. Decision and Her Motion to Lift Discovery Stay and Her Renewed Motion for Partial Summ. Judgment at 3). None of Counsel's nineteen citations in that example is accompanied by an explanatory parenthetical. Id. The ALJ found that Counsel failed to explain why the cited cases were relevant to the issue of whether a Federal agency employee can be considered an employer and thus a respondent in the Greene whistleblower case, which arises under the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995). Ord. of Disqualif. at 7-8. The ALJ also noted that Counsel failed to identify specific pages in the cited authorities to assist the reviewer in discerning what passages Counsel believed to be relevant. Id. The ALJ further determined that the cases cited were apparently irrelevant to the issues involved in the Greene case. Id.

   The third example of a problematic citation is contained in Counsel's January 2, 2002 letter to Judge Burke, which requested reconsideration of Burke's December 21, 2001 denial of reconsideration. The December 21 order Burke issued denied the Complainant's request that the Greene case be consolidated with a later whistleblower complaint the Complainant filed, for reassignment to a DOL administrative law judge rather than the ALJ. Dec. 21, 2001 Ord. Denying Motion to Reconsider the Use of the Ofc. of Pers. Mgmt. to Select a Presiding ALJ. The ALJ noted that Counsel "cited a number of cases in support of a proposition that is both obvious and not at issue." Ord. of Disqualif. at 8. Specifically, Counsel cited twenty-three cases, two in the body of the reconsideration request and twenty-one in a footnote, in support of the proposition that, "A ‘fair trial [and appeal] in a fair tribunal is a basic requirement of Due Process.'" Id. The ALJ noted that, although Counsel provided specific page citations for six of the twenty-three case citations, he did not provide a parenthetical synopsis for any of the cases. Id.

   The ALJ discussed the fundamental role that attorney compliance with judicial directives plays in maintaining the integrity of the legal system. Ord. of Disqualif. at 24-25. The ALJ then concluded that, by making pejorative statements about the ALJ, opposing counsel and other Federal officials, and by continuing to use inaccurate and misleading citations to legal authorities, Counsel had refused to comply with directions and to adhere to reasonable standards of orderly conduct. Id. at 25.

   Finally, the ALJ stated that Counsel's misconduct in the Greene case had begun at the outset of the adjudication before the ALJ and had continued despite the ALJ's November 13, 2001 written warning. Ord. of Disqualif. at 25. In addition to failing to heed the ALJ's written warning, the ALJ noted that Counsel had failed to avail himself of the opportunity to respond to the OSC with an explanation or apology. Id. Based on these factors, as well as the long history of misconduct in previous cases, the ALJ concluded that Counsel had demonstrated that he was "unable or unwilling to conform his behavior to professional standards." Id.

   b. Discussion

   In outlining the distinctions between Sections 18.34(g)(3) and 18.36, we explained that Section 18.36 ensures that the administrative law judge can readily halt disruptive behavior that would otherwise interfere with orderly proceedings. The conduct of proceedings in an orderly manner is critical to the fair, efficient administration of the law, and the foundation of order in such proceedings is the respect the parties and their representatives show for the presiding officer. See Atty. Gen. Manual on the Administrative Procedure Act, V §6(a), p. 66 (1947); In re Weirton Steel Co., 8 NLRB 581, 582-83 (1938), aff'd in relevant part sub nom., Nat'l Labor Relations Bd. v. Weirton Steel Co., 135 F.2d 494, 496-97 (3d Cir. 1943). The ALJ properly compared the Section 18.36 mandate that representatives comply with "reasonable standards of orderly and ethical conduct" with an attorney's professional obligation to show respect for judges and other government officers. Ord. of Disqualif. at 19 (citing MRPC Preamble); see Rockefeller v. Carlsbad Area Office, United States Dep't of Energy, ARB Nos. 99-002, -063, -067, -068, ALJ Nos. 98-CAA-10, -11; 99-CAA-1, -4, -6, slip op. at 17 n.10 (ARB Oct. 31, 2000)(Citing Preamble and Rules 3.5 and 8.2 of the MRPC regarding attorneys' obligation to demonstrate respect for the courts as relevant to Section 18.36). The record before us clearly supports the ALJ's conclusion that Counsel failed to fulfill his responsibility to address and respond to the ALJ in a respectful manner.

   As we discuss below, the ALJ properly determined that Counsel had overstepped the bounds of zealous representation and responsible criticism of judges and the legal system by making unfounded remarks that impugn the integrity of the ALJ and other Federal officials, and by making personally offensive statements regarding the ALJ, other Federal officials, and opposing counsel. In addition, the ALJ properly concluded that Counsel had violated Section 18.36 by failing to follow the ALJ's directives regarding the use of emotionally-laden and offensive language in pleadings and regarding the proper use of citations to legal authorities. The foregoing grounds, along with the history of unprofessional conduct engaged in by Counsel in previous cases and Counsel's failure to respond to the ALJ's OSC, provide more than adequate support for the ALJ's exclusion of Counsel from further participation in the Greene case.

   The Petitioners challenge the adequacy of the evidence to support the conclusion that Counsel knowingly made a false statement regarding the circumstances of the ALJ's assignment to the Greene case, contending that Counsel cannot be required to accept the statements of Judge Burke and OPM officials concerning the inter-agency communications involved in the ALJ's assignment. Comp. July 16, 2002 Resp. to Prehearing Ord. at 18, 21. In view of the ALJ's alternative conclusion that Counsel made the accusation of improper contacts and collusion with reckless disregard for the truth of those statements, however, it is unnecessary for us to determine whether or not Counsel knowingly made a false statement. The record that is before us establishes that Counsel acted with reckless disregard for the truth when he asserted that improper contacts between DOL OALJ and the ALJ occurred and facilitated a conspiracy to deny the Complainant a full and fair hearing in her whistleblower complaint.

   We also agree with the ALJ's conclusion that Counsel acted unprofessionally by making statements in pleadings that are personally offensive to the ALJ, other Federal officials and opposing counsel in the Greene case. As the ALJ discussed, such statements are readily distinguishable from assignments of error, which properly specify a ruling and frame arguments regarding that ruling in terms of relevant legal standards. See Ord. of Disqualif. at 23-24 and cases there cited.

   Accordingly, the ALJ's Order of Disqualification is affirmed in part and reversed in part. Specifically, the ALJ's Order excluding the Complainant's Counsel from further participation in any capacity before the ALJ in the adjudication of the Greene whistleblower case is AFFIRMED pursuant to 29 C.F.R. § 18.36, and the ALJ's Order affording the Complainant a period of 30 days in which to obtain another representative or to advise the ALJ of her intention to proceed pro se is also AFFIRMED. The ALJ's Order permanently barring the Complainant's Counsel from appearing as a representative or from acting in an advisory capacity to any party in any other matter to come before the ALJ is REVERSED, pursuant to Section 18.34(g)(3).

   SO ORDERED.

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

      OLIVER M. TRANSUE
      Administrative Appeals Judge

Wayne C. Beyer, Administrative Appeals Judge, concurring:

   The Complainant in the underlying case (the "Greene whistleblower case") is a former Administrative Law Judge, who alleged that Environmental Protection Agency (EPA) officials and others retaliated against her in violation of the whistleblower protection provision of the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 1995),and other federal laws. Her counsel in that action was Edward A. Slavin, Jr. ("counsel" or "Attorney Slavin"). Presently before the Administrative Review Board ("the Board") is an appeal from a June 20, 2002 order of the then-Acting Chief Administrative Law Judge at the Department of Housing and Urban Development (HUD), William C. Cregar ("the ALJ" or "ALJ Cregar"), who was specially assigned to hear the Greene whistleblower case. The order disqualified Attorney Slavin from representing the Complainant in that case and also disqualified him from representing any other party in any other case that might come before ALJ Cregar. Order of Disqualification. For reasons stated below, I would affirm ALJ Cregar's Order of Disqualification of Attorney Slavin in the Greene whistleblower case, but reverse the Order with regard to future cases.

   The details of the procedural history can be found in my colleagues' opinion. I summarize them here:

   In October 2001, the Greene whistleblower case was assigned to ALJ Cregar. Although ordinarily a Department of Labor (DOL) ALJ would have had jurisdiction to hear the case, to avoid potential conflicts of interest because the Complainant is the wife of a former Chief ALJ of DOL, it was specially assigned through the Office of Personnel Management (OPM) to a HUD ALJ.

   In a November 2, 2001 telephone conference and a November 13, 2001 prehearing order, ALJ Cregar admonished counsel that the conduct of the Greene whistleblower case must be civil and professional; that one counsel should not hang up on the other; and that pleadings containing inappropriate and uncivil language would be in violation of the order, would not be considered, and could subject the violator to removal from the case.

   On January 8, 2002, the Complainant (through Attorney Slavin as counsel) moved that ALJ Cregar recuse himself from the Greene whistleblower case.

   On January 28, 2002, while the Greene whistleblower case was in the pre-hearing stage, ALJ Cregar issued an order under 29 C.F.R., § 18.34(g)(3) and § 18.36 (and § 18.29) directing Attorney Slavin to show cause why he should not be disqualified from appearing before the ALJ. The order provided notice of three classes of alleged misconduct (the same three that later resulted in Attorney Slavin's disqualification) and allowed the parties until February 11, 2002 to respond. Neither the Complainant nor Attorney Slavin responded directly to the order to show cause.

   On January 28, 2002, ALJ Cregar also issued an order denying the Complainant's motion that he recuse himself from hearing the Greene whistleblower case.

   On February 11, 2002, the Complainant filed an interlocutory appeal with the Board of ALJ Cregar's order denying the motion for recusal.

   On February 11, 2002, the Complainant also filed a motion that ALJ Cregar stay the proceedings of the Greene whistleblower case while the Board considered the interlocutory appeal.

   On February 26, 2002, ALJ Cregar denied the request for a stay.

   On June 20, 2002, ALJ Cregar issued the Order of Disqualification at issue in this appeal, in which the ALJ denied Attorney Slavin the authority to appear before the ALJ in the Greene whistleblower case and in future cases.

   On June 28, 2002, pursuant to 29 C.F.R. § 18.36, the Complainant filed an appeal to the Chief ALJ for DOL, John M. Vittone ("the Chief ALJ for DOL"), from ALJ Cregar's Order of Disqualification.

   On July 2, 2002, the Chief ALJ for DOL, issued a pre-hearing order on the appeal, which among other things, directed the Complainant to explain the effect of not responding to the show cause order.

   On July 16, 2002, the Complainant filed a response to the pre-hearing order, but did not dispute the factual allegations underlying the Order of Disqualification.

   On July 26, 2002, the Complainant filed a further response to the pre-hearing order, but again did not dispute the factual allegations underlying the Order of Disqualification.

   On July 26, 2002, the Chief ALJ for DOL recused himself from considering Attorney Slavin's appeal from ALJ Cregar's ruling on disqualification.

   On August 19, 2002, because the Chief ALJ for DOL had recused himself, the Secretary of Labor substituted the Board to rule on the appeal.

   On September 18, 2002, the Board dismissed the Complainant's interlocutory appeal of ALJ Cregar's denial of the motion for recusal.

   On January 24, 2003, the Board requested ALJ Cregar to provide portions of the record that pertained to his Order of Disqualification, which he did by February 11, 2003.

   On February 23, 2003, the Complainant filed a motion to require that the ALJ also forward copies of the record to Complainant and her counsel. I concur with my colleagues' denial of that motion because, as a party and representative, they already had copies. Majority Opinion at 4.

   1. Disqualification of counsel under § 18.34(G)(3)

   ALJ Cregar disqualified Attorney Slavin from representing the Complainant in the Greene whistleblower case and from representing any other party in any other case that might come before him, citing as authority 29 C.F.R. § 18.34(g)(3). The part of the regulation of concern reads as follows:

(g) (3) Denial of authority to appear. The administrative law judge may deny the privilege of appearing to any person, within applicable statutory constraints, e.g., 5 U.S.C. 555 [pertaining among other things to the right to counsel in administrative proceedings], who he or she finds after notice of and opportunity for hearing in the matter does not possess the requisite qualifications to represent others; or is lacking in character or integrity; has engaged in unethical or improper professional conduct; or has engaged in an act involving moral turpitude. . . .

   Although Attorney Slavin's conduct may well have violated the substantive portions of § 18.34(g)(3), it is unnecessary to address that question. ALJ Cregar did not satisfy the regulation's procedural requirements. Under § 18.34(g)(3), an ALJ must afford "notice" and "opportunity for hearing" before the ALJ can deny a representative authority to appear. Although the show cause order was likely adequate notice of the charges, ALJ Cregar did not schedule the issue for a hearing or afford Attorney Slavin the opportunity to request one before denying him the authority to appear. Disqualification under 29 C.F.R. § 18.34(g)(3) is therefore procedurally defective and must be reversed.

   My colleagues appear to adopt an expansive view of 29 C.F.R. § 18.34(g)(3) that is not found in the text or the interpretive caselaw; and I write separately out of concern that their position will be misinterpreted. The text of § 18.34(g)(3) says "hearing" not "formal hearing," see Majority Opinion at 11-12,by which I take it my colleagues mean "evidentiary hearing." Rex v. Ebasco Services, 87-ERA-6, -40 (Sec'y Mar. 4, 1994) held only that an ALJ is limited to the remedies available under 29 C.F.R. § 18.34(g)(3) and § 18.36 and may not import Rule 11 from the Federal Rules of Civil Procedure to award attorney's fees as a sanction. Rex v. Ebasco Services, 87-ERA-6, -40 (Sec'y Oct. 3, 1994) ruled that the Chief ALJ could designate a single ALJ to rule on the fitness of two counsel to appear generally in DOL cases. Rex did not delimit the nature or scope of any such hearing.

   In my view, 29 C.F.R. § 18.34(g)(3) does not mandate that a different ALJ conduct the disqualification hearing than the one assigned to the merits of the case; that the hearing must be an evidentiary hearing (e.g., where the facts are not in dispute); that the use of the word "hearing" would authorize calling the ALJ seeking disqualification as a witness (as Attorney Slavin seems to suggest by noting ALJ Cregar on his witness list); or that a denial of authority to appear in one case under § 18.34(g)(3) necessarily applies to all other cases (e.g., where there is a conflict of interest in only one case). I conclude only that ALJ Cregar failed to afford Attorney Slavin an opportunity for a hearing as § 18.34(g)(3) requires and consequently that regulation cannot provide a basis for denying Attorney Slavin the authority to represent the Complainant in the Greene whistleblower case and from representing any other party in any other case that might come before ALJ Cregar. However, a remand to ALJ Cregar to conduct a hearing is not required, since I also hold that 29 C.F.R. § 18.36 afforded the ALJ a sufficient independent basis for disqualifying counsel in the Greene whistleblower case.

   2. Disqualification of counsel under § 18.36

   I concur with my colleagues that ALJ Cregar properly disqualified Attorney Slavin from further participation in the Greene whistleblower case pursuant to 29 C.F.R. § 18.36. However, I write separately because I feel it is necessary to examine ALJ Cregar's findings of fact about Attorney Slavin's conduct in the context of § 18.36, and then to make rulings about what conduct violated which provisions of the regulation. 29 C.F.R. § 18.36 reads as follows:

    (a) All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner.
    (b) The administrative law judge may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications. The administrative law judge shall state in the record the cause for suspending or barring an attorney or other representative from participation in a particular proceeding. Any attorney or other representative so suspended or barred may appeal to the Chief Judge [of the DOL] but no proceeding shall be delayed or suspended pending disposition of the appeal; provided, however, that the administrative law judge shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney or representative.

   By its terms, 29 C.F.R. § 18.36: 1) sets specific standards for disqualification; an ALJ has a right to exclude a party's representative, i.e., attorney, for "refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications"; 2) requires an ALJ to "state in the record the cause for suspending or barring an attorney" from participation in the case; 3) provides the suspended or barred attorney a right to appeal the disqualification to the Chief ALJ for DOL; and 4) allows the party whose counsel was removed time to obtain new counsel, but the underlying case is not stayed.

   In the instant matter, the procedural requirements of 3) and 4) above have been satisfied, because the Secretary of Labor has substituted the Board for the Chief ALJ of DOL given his recusal, and ALJ Cregar allowed the Complainant time to find substitute counsel before proceeding with the Greene whistleblower case on the merits. As I see it, the issue presented for my scrutiny is whether ALJ Cregar's findings of fact 2) support his conclusion that counsel engaged in the conduct described in 1), i.e., the standards for disqualification. If so, the disqualification should be sustained.

   Neither the Complainant nor Attorney Slavin responded to the order to show cause why he should not be disqualified from representing her in this case, although he was clearly on notice to do so. ALJ Cregar had the option to default Attorney Slavin on the issue of disqualification, see Order of Disqualification at 2; or to proceed, as he did, to make findings of fact that led to that result. Because neither the Complainant nor Attorney Slavin responded to the show cause order, I treat the ALJ's findings of fact as uncontested, and adopt them. However, I note that those findings of fact are also fully supported by the Board's review of the record. I have considered the ALJ's rulings de novo and affirm them, except as noted below.

      a. Counsel's false statements regarding the ALJ's appointment

   ALJ Cregar found that Attorney Slavin had made false or reckless statements regarding the ALJ's appointment to hear the Greene whistleblower case, including that "the MOU [Memorandum of Understanding between HUD and DOL regarding my appointment as trial judge] was established in secrecy, with HUD and DOL picking HUD and one of its judges to decide the case before OPM was contacted." The ALJ found that the statements were made after Attorney Slavin had been informed that DOL contacted the Office of Personnel Management (OPM) to arrange a special assignment before OPM asked the ALJ whether he would be available. Order of Disqualification at 2-3, 19-20. The ALJ noted that the ABA's Model Rules of Professional Conduct (MRPC), adopted by the state in which Attorney Slavin was licensed, among other things, made it a violation to make false or reckless statements to a tribunal, or to make false or reckless statements about the qualifications, integrity or appointment of a judge or judicial officer. ALJ Cregar concluded that Attorney Slavin violated the rules of professional conduct and the standards set forth in 29 C.F.R. § 18.34(g)(3) and § 18.36. Order of Disqualification at 20, 23.

   I affirm the ALJ's conclusion, specifically ruling that counsel's false or reckless statements about the ALJ amounted to "refusal to adhere to reasonable standards of orderly and ethical conduct, [and] failure to act in good faith" within the meaning of § 18.36(b).

      b. Counsel's insulting, abusive, and unprofessional statements

   ALJ Cregar cited phrases from Attorney Slavin's pleadings and correspondence in the Greene whistleblower case. To point out a few among many, in a January 8, 2002, pleading, he called ALJ Cregar "incurious and unscholarly," said his rulings indicated prejudgment of the issues, described his rulings (quoting Hobbes) as "nasty, brutish, and short," and suggested the ALJ was biased because he sought to be Chief ALJ at HUD and he had a "community of interests" with named federal agencies. A January 9, 2002 letter to the Secretary of Labor repeated some of those charges. A January 24, 2002 pleading accused the EPA, OPM, and DOL officials of corruption, suggesting that the EPA, as the defendant in the Greene whistleblower case, had "pull" with OPM and the Chief ALJ of DOL. A January 24, 2002 pleading accused another DOL ALJ of trying to adversely influence the outcome of Attorney Slavin's pending motion to recuse ALJ Cregar in the Greene whistleblower case. ALJ Cregar also found that Attorney Slavin's January 28, 2002 interlocutory appeal of the order denying the ALJ's recusal contained "inappropriate and unprofessional criticisms," "misstated more facts," and made "contemptuous" and "derogatory statements." Order of Disqualification at 3-5, 23-24. ALJ Cregar concluded that Slavin's insulting, abusive, and unprofessional statements violated the MRPC and 29 C.F.R. § 18.34(g)(3) and § 18.36. Order of Disqualification at 20, 23.

   I affirm the ALJ's conclusion, specifically ruling that counsel's insulting, abusive, and unprofessional statements about the ALJ, another judge, the administrative hearing system, and other government officials amounted to "continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, [and] failure to act in good faith," within the meaning of § 18.36(b).

      c. Counsel's failure to comply with prehearing order

   In a November 2, 2001 telephone conference and a November 13, 2001 prehearing order, ALJ Cregar admonished counsel that the conduct of the Greene whistleblower case must be civil and professional; that one counsel should not hang up on the other; and that pleadings containing inappropriate and uncivil language would be in violation of the order, not considered, and could subject the violator to removal under § 18.36(b). The communications also warned against the use of lengthy string cites as wasteful of judicial time (hence dilatory) and ordered that counsel use synopses of leading cases instead. Neverthleless, ALJ Cregar cited subsequent examples of inaccurate citations. Order of Disqualification at 5-8, 24-25. Notwithstanding ALJ Cregar's directives, Attorney Slavin included "literally hundreds of case citations in his filings, many apparently made at random or with little if any relevance to the issues raised by this case." Order of Disqualification at 24. ALJ Cregar concluded that Attorney Slavin's "pejorative" comments about the ALJ, another judge, opposing attorneys and government officials and his use of string citations without synopses violated his pretrial order and 29 C.F.R. § 18.34(g)(3) and § 18.36. Order of Disqualification at 25.

   I affirm the ALJ's conclusion, specifically ruling that counsel's "pejorative comments" and misuse of citations violated the ALJ's pretrial orders and amounted to "refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, [and] failure to act in good faith," within the meaning of § 18.36(b).

      d. Counsel's misconduct in other cases

   ALJ Cregar's Order of Disqualification summarized eight other reported cases before the ALJs and the Board of the DOL, the Special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee, and the United States District Court for the Eastern District of Tennessee in which Attorney Slavin "has been disqualified, sanctioned, or cited for improper professional conduct." These cases "demonstrate that Counsel has been notified repeatedly . . . that the type of conduct he has exhibited before me does not conform to professional standards." Order of Disqualification at 8-17. Later, the ALJ noted, "Counsel has a long history of professional misconduct. . . . Counsel is unable or unwilling to conform his behavior to professional standards. . . . Issuing additional warnings would be futile and a waste of time because counsel appears to be uneducable." Order of Disqualification at 25. It appears that ALJ Cregar relied upon Attorney Slavin's misconduct in other cases to conclude that he should be disqualified from appearing before him in future cases.

   I would use the cumulative effect of past misconduct as a factor in considering a permanent denial of authority to appear after notice and hearing under 29 C.F.R. § 18.34(g)(3). However, the fact that a lawyer has been disqualified, sanctioned, or cited for improper professional conduct in other cases has little probative value on the question of whether he has engaged in separate misconduct in the case in which an ALJ is considering his disqualification. Nevertheless, in determining whether there were grounds for disqualifying Attorney Slavin under § 18.36, the fact that he may have been disqualified, sanctioned, or cited for improper professional conduct in eight other cases could be considered on the issue of notice; he knew or should have known that his failure to conform to norms of ethics and civility and his failure to obey court rulings could lead to his being sanctioned or removed. Therefore, to the extent that the ALJ considered prior misconduct to prove present misconduct under § 18.36, I believe that was error. Regardless, counsel's conduct in the Greene whistleblower case provided sufficient grounds for his disqualification under § 18.36, without consideration of alleged misconduct in other cases.

   3. Counsel's arguments

   Rather than respond frontally to ALJ's Cregar's Order of Disqualification, Attorney Slavin has waged a collateral attack by seeking the removal of ALJ Cregar from the case. I join with my colleagues in rejecting Attorney Slavin's argument that the ALJ was divested of jurisdiction in the Greene whistleblower case by the Complainant's filing of an interlocutory appeal of the ALJ's order refusing to recuse himself. Majority Opinion at 7, 13. In addition, my colleagues correctly point out that the Board does not have jurisdiction to respond to Attorney Slavin's challenge to the validity of the regulations at issue, 29 C.F.R. § 18.34(g)(3) and § 18.36. Majority Opinion at 6. Further, I reject counsel's contentions that his personal attacks on the ALJ are protected speech or permissible as zealous representation. And I deny that at a hearing on counsel's disqualification, counsel would have a right to call ALJ Cregar to testify about the circumstances of his appointment and qualifications to sit on the Greene whistleblower case.

   For the reasons stated, I REVERSE the Order of (Permanent) Disqualification to appear before ALJ Cregar under 29 C.F.R. § 18.34(g)(3) and AFFIRM the Order of Disqualification to appear before ALJ Cregar in the Greene whistleblower case under 29 C.F.R. § 18.36.

      WAYNE C. BEYER
      Administrative Appeals Judge