Dated: November 16, 1998

Case No.: 1991-DBA-94
ARB Case No.: 1998-028

In the Matter of:

   Proposed debarment for
labor standards violations and
disputes concerning the payment
of prevailing wage rates and overtime
pay by:

L.T.G. Construction Co.
    Prime Contractor
Lloyd T. Griffin, Jr.
    President
Phoenix-Griffin Group II, Ltd.
Gatsby Housing Associates, Inc.
    Respondents

   This matter is presently scheduled for a hearing on remand beginning Monday, November 23, 1998, at 9:30 a.m. in Boston, Massachusetts. This hearing on remand was scheduled by a notice issued on June 11, 1998, and Respondents have just recently filed a motion for recusal of this Administrative Law Judge. By document filed November 12, 1998, Respondents have filed a Motion for Recusal, together with a memorandum of law in support of said Motion. On November 13, 1998, the Secretary of Labor filed a memorandum in opposition. By document filed November 16, 1998, the Intervening Party has also filed a Motion in Opposition.

   The Respondents' reasoning for the motion, while alleging the appearance of impropriety, does not in my judgment establish such. Respondent generally cites to the conclusions reached in the Judge's July 1, 1993 Decision and Order as evidence of the appearance of bias. Further, Respondents argue that the fact that a United States District Judge has reversed my original findings, renders me inherently biased in the eyes of a reasonable person, and thus unable to properly preside over this remand proceeding. Finally, Respondents discuss an evidentiary issue over testimony involving the Government's possible motivation for debarment, to show an alleged bias toward the Solicitor. I find, however, that the arguments presented fail to comply with the proper procedural regulations and fail to meet the substantive standard for recusal.

   Respondents rely upon federal statute 28 U.S.C. § 455(a) as governing recusal in this matter, and also cite a United States District Court for the District of Rhode Island Local Rule as instructive on this issue. Respondents, however, are mistaken. First, 28 U.S.C. § 455 does not apply to Administrative Law Judges. See Greenberg v. Board of Governors of the Federal Res. Syst., 968 F.2d 164, 167 (2d Cir. 1992). Rather, the applicable rules for disqualification are found at 29 C.F.R. Part 18 and Section 556(b) of the Administrative Procedures Act (APA). Further, I do not find the Rhode Island local rules instructive, especially where the Office of Administrative Law Judges (OALJ) already has well-established procedures in place to handle such remand situations.

   Section 18.31(b) of the Rules of Practice and Procedure for Administrative Hearing before the Office of Administrative Law Judges, provides:

Whenever any party shall deem the administrative law judge for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, that party shall file with the administrative law judge a motion to recuse. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The administrative law judge shall rule upon the motion.

29 C.F.R. § 18.31(b). Further, Section 556(b) of the APA provides, in pertinent part:

The functions of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participant employee, the agency shall determine the matter as a part of the record and decision in the case.

5 U.S.C. §556(b). Accordingly, a motion for disqualification must be accompanied by an affidavit and must be filed in a timely fashion. A general rule has developed for disqualifying

both federal judges and agency employees requiring that such a request be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exists. Marcus v. Director, OWCP, 548 F.2d 1044 (D.C. Cir. 1976).

   I hereby reject Respondents' motion and arguments for several reasons. First, the motion for recusal failed to comply with the procedural guidelines found at Section 18.31 of the OALJ's Rules of Practice and Section 556 of the APA. The present motion was not filed with any sworn affidavits setting forth grounds for "personal bias or other disqualification."

   Second, I find and conclude the motion is untimely. The alleged facts justifying recusal were known to Respondents as of the February 24, 1997 decision of the United States District Court for the District of Rhode Island. Thus, the alleged reasons for disqualification were known by the Respondents when this remand proceeding was assigned to this Judge for a hearing, which occurred on June 11, 1998. In actuality, the parties were aware of this Judge's assignment to the case as early as May 5, 1998, when I issued an Order providing a period of time for the parties to settle this matter before setting the remand hearing. Nevertheless, it was not until November 12, 1998, that the motion for recusal was filed, approximately five months following the date that parties learned that this Administrative Law Judge would be presiding over the remand hearing. In fact, Respondents waited until their Motion for Continuance was denied, and then filed the Motion for Recusal less than two weeks prior to the hearing date. Therefore, I find that the alleged grounds for disqualification were known by the parties in May and June of 1998, yet Respondents waited until mid-November to file this motion. Therefore, I conclude that this request is untimely and is hereby denied.

   Further, I reject Respondents' arguments on substantive grounds, since they have failed to establish credible evidence warranting disqualification. An administrative law judge should disqualify himself or herself from a proceeding if a reasonable person would question his or her impartiality. The basis for such disqualification is not actual bias, but rather the perception of bias in the eyes of a reasonable person. The Supreme Court has held that disqualifying bias must stem from an extrajudicial source, and the judge's conclusions must be based upon factors not learned during the proceedings. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). In the present case, Respondents have failed to cite any extrajudicial evidence that could lead a reasonable person to believe that this Judge is biased and could not follow the remand instruction of the United States District Judge Lagueux, fairly and judiciously.

   Respondents arguments for recusal are that I previously have made findings of fact and conclusions of law in regards to the specific issues on remand, and was reversed. Further, Respondents argue that there is an appearance of bias as evidence of my adopting the findings and conclusions proposed by the Secretary and through evidentiary rulings in the original hearing. I find Respondents' proof insufficient for recusal, and conclude that this record and my actions, when viewed objectively, would not lead a reasonable person to conclude that I am biased towards or against any party. As such, I find that my presence in presiding over this remand hearing would in no way undermine or impugn the integrity of this administrative process.

   First, Respondents have neither shown evidence of bias due to extrajudicial factors, nor alleged that I have taken action which could lead a reasonable person to question my impartiality. See United States v. Chantal, 902 F.2d 1018, 1021-24 (1st Cir. 1990). The Respondents have offered no proof concerning how I would be unable to follow the instructions of Judge Lagueux. Rather, Respondents rely on the mere fact that I rendered a decision against their favor, as grounds for bias. Under such reasoning, every Judge would be biased in ever case on remand. Respondents also argue that I "adopted wholesale from the government" my finding of facts and legal conclusions in the original hearing. I note, however, as the Secretary has properly cited, that a judge's adoption of government's proposed findings and positions is not evidence of bias. Anderson v. City of Bessemer, 470 U.S. 564 (1985). A judge may adopt proposed findings, so long as his or her conclusions and analysis are explained. Additionally, I find the issue raised in regards to testimony made by a representative of the Department of Labor inconsequential to this matter. The evidentiary issues were not made with any bias toward any party, and have not rendered my ability to decide this issue on remand. Further, those evidentiary issues would not lead a reasonable person to believe I was biased against Respondents or that I was influenced in my decision by extrajudicial factors. Respondents have made no allegations that I have gone beyond these proceedings to be influenced by outside factors in forming my prior decision, further there has not been any evidence of strong bias that would render a fair remand hearing impossible. In conclusion, the Respondents essentially argue that I made prior findings contrary to their interest and was reversed, and therefore questions concerning impartiality will cloud this remand proceeding. I conclude, however, that Respondents have not met their burden as to the proper grounds for recusal.

   Finally, I note that it is customary procedure within the OALJ for an available administrative law judge to preside over a remand proceeding for a matter they previously heard. In the present case, the United States District Court has not ordered a new trial, but rather only further fact finding and determinations concerning a few well-delineated and expressed issues. I find the OALJ's procedures reasonable and expeditious, and therefore, I do not find the cited United States District Court Local Rules for Rhode Island instructive in this matter.

   Accordingly, for the above-cited reasons, I hereby DENY the Motion for Recusal in the matter.

   Nevertheless, out of an overabundance of caution, and to remove this motion as an issue in this proceeding on remand, I, in my capacity as District Chief Judge, hereby REASSIGN and TRANSFER this pending matter to Administrative Law Judge Daniel Sutton, of the OALJ's Camden District Office. The hearing will proceed as scheduled at 9:30 a.m. on Monday, November 23, 1998, in Boston, Massachusetts, and no further Orders will be issued by this Administrative Law Judge. The administrative file, however, shall remain in the Boston office until the November 23, 1998 hearing. Therefore, the parties should continue to direct all correspondences to the Boston Office, but clearly mark such to the attention of Judge Sutton, until further notice.

   Finally, I note that the filings and Orders issued over the last several months have used the case caption from the Administrative Review Board's March 10, 1998 Remand Order. A corrected caption is provided above.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:pte