Slavin v. Office of Administrative Law Judges, 2003-CAA-12 (ALJ Mar. 10, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 10 March 2003

Case No. 2003-CAA-12

EDWARD A. SLAVIN, JR.,
    Complainant

    v.

OFFICE OF ADMINISTRATIVE LAW JUDGES,
    Respondent

   On August 5, 2002, Complainant, Edward A. Slavin, Jr., filed a complaint alleging that the Chief Administrative Law Judge and "the DOL OALJ Front Office, et al." violated a number of environmental whistleblower protection laws when the Chief Judge issued a July 26, 2002 Order of Recusal, which Slavin alleges was an abusive, extralegal judicial order.¹ See In the Matter of Slavin, 2002-SWD-1 (ALJ July 26, 2002). The complaint was received in this office on February 10, 2003 on appeal from its dismissal by the Occupational Safety and Health Administration, U. S. Department of Labor.

   This a frivolous complaint. It fails to establish subject matter jurisdiction,² is barred by virtue of absolute judicial immunity³ , and fails to allege essential elements of a prima facie case. First, there is no employment relationship between Slavin and the Department of Labor, Office of Administrative Law Judges.⁴ Second, the complaint contains no allegations of an adverse employment action by the Chief Judge's ruling.⁵ The Chief Judge's Order of Recusal was in response to a motion by Slavin requesting that he recuse himself from considering the appeal of an order of disqualification of Slavin by another Judge. The Chief Judge granted the motion, albeit he rejected most of the grounds for recusal cited by Slavin, and made it clear that the recusal was based on the Chief Judge's personal and professional relationship with Slavin's client and not based on Slavin's allegations that the Chief Judge was improperly biased against Slavin. Apparently, Slavin was displeased with or insulted by the ruling; however, a judicial ruling can't, as a matter of law, constitute an adverse employment action no matter how great the displeasure or disagreement therewith.

    Accordingly, it is recommended that this complaint be DISMISSED.⁶

   SO ORDERED.

      THOMAS M. BURKE
      Associate Chief Judge

NOTICE: This Recommended Order of Dismissal will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order of Dismissal, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. § 24.7(d) and 24.8.

¹ Although the complaint recites a litany of allegations, the only discrete act alleged in the complaint that could possibly support a timely environmental whistleblower complaint under 29 C.F.R. Part 24 is the Chief Judge's Order of Recusal.

² See Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000) (allegation that Respondents had wrongfully induced the presiding ALJ to recommend dismissal, and that there had been ex parte contacts between Respondents, OSHA and the ALJ); Varnadore v. Oak Ridge National Laboratory, 1992-CAA-2 and 5, 1993-CAA-1 and 1994-CAA-2 and 3 (ARB June 14, 1996) (allegation that the former head of the Office of Administrative Appeals acted in an unethical manner by advising one of the Respondents on an environmental whistleblower case that was pending in the Department of Labor at the time she was director of the OAA).

   See also Varnadore v. Oak Ridge National Laboratory, 1992-CAA-2 and 5, 1993-CAA-1 and 1994-CAA-2 and 3 (ARB June 14, 1996) (allegation that Complainant was retaliated against when (1) he was introduced as a panelist at a stakeholder's meeting in a stigmatizing fashion ("we all know him"); (2) "murmurs and groans" were generated by this introduction; and (3) the Secretary of Energy had a cold reaction to the Complainant at a meeting, failed to allege sufficient facts to support a whistleblower complaint).

³ Butz v. Economou, 438 U.S. 478 (1978); Olsen v. Herman, No. 00-3165 (N.D.Ca. Oct. 31, 2001) (citing Tanner v. Heise, 879 F.2d. 572, 576 (9th Cir. 1989), for the proposition that ALJs enjoy absolute immunity even when their actions are "erroneous, malicious, or in excess of judicial authority," unless they act in the clear absence of all jurisdiction); Tyler v. USDOL, No. 00-2163(GK) (D.D.C. Feb. 1, 2001).

⁴ A former employee may bring an employee protection suit as long as the alleged discrimination is related to or arises out of the employment relationship. Delcore v. W.J. Barney Corp., 1989-ERA-38 (Sec'y Apr. 19, 1995). Although Slavin was a law clerk with this office during the 1980s, he has had no employment relationship with OALJ or the Department of Labor since that time. The complained of Order to Recuse arose out of the fact that Slavin filed a motion to recuse after being disqualified as an attorney because of his misconduct in the Greene v. EPA, 2002-SWD-1 case, rather than out of an employment relationship with OALJ, the Department of Labor, or the Chief Judge personally.

    An authorized representative of an employee may have standing under some of the whistleblower statutes; however, Slavin does not assert that he is acting as an authorized representative of anyone. An "authorized representative of employees" is protected from discrimination under the Federal Water Pollution Control Act, 33 U.S.C. § 1367, the Solid Waste Disposal Act, 42 U.S.C. § 6971, and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610(a). In Edward A. Slavin, Jr., v. Pacific Northwest National Laboratory, 2000-ERA-26 (ARB Feb. 27, 2003), the Administrative Review Board held that Slavin did not have standing under these whistle blower statutes because he was not acting as a representative of an employee or employees in relation to the alleged protected activity, but only in his individual capacity.

⁵ [Editor's note: The slip opinion in this case does not contain any text at footnote 5]

⁶Complainant's argument that no one who has "sought to punish [his] First Amendment rights to criticize the Department of Labor's desuetude of whistleblower law enforcement" should be allowed to render a decision in this matter is not accepted as a ground for my recusal. I have recently referred Complainant to the Tennessee Supreme Court's Board of Professional Responsibility because he had participated in his client's attempt to intimidate witnesses. See Somerson v. Mail Contractors of America, 2003-STA-11 (ALJ Jan. 10, 2003) . Such a referral cannot be equated with retaliation for criticism of the Department of Labor's administration of whistleblower laws.

   It is also noted that Complainant did not submit an affidavit supporting the recusal as required by the Administrative Procedure Act, 5 U.S.C. § 556(b), and the Rules of Practice And Procedure For Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. § 18.31(b). Complainant has been informed of this requirement in prior cases, including the one underlying the instant complaint. In the Matter of Slavin, 2002-SWD-1 (ALJ July 26, 2002); Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 at nn. 7 & 8 and surrounding text (ALJ June 20, 2002); Johnson v. Oak Ridge Operations Office, 1995-CAA-20, 21 and 22 (ALJ Jan. 6, 1997).