Date: OCT 8 1996
Case Nos.: 95 CAA-20, 21 and 22

In the Matters of:

VIRGINIA JOHNSON,
Complainant [95 CAA-20]

and

KENNETH W. WARDEN
Complainant [95 CAA-21]
and

DENNIS MCQUADE
Complainant [95 CAA-22]

V.

OAK RIDGE OPERATIONS OFFICE;
UNITED STATES DEPARTMENT OF ENERGY;
DOE INSPECTOR GENERAL;
PATRICIA HOWSE-SMITH
Respondents.

    Several motions by complainants are pending: (1) Emergency objection to delay; Request for Conference Call; Request to reconsider July 17, 1996 Order; Motion for Leave to File Motions; & Renewed motion for summary reversal and remand for investigation, filed on August 4, 1996; (2) Emergency motion to compel production of documents, filed on September 27, 1996; and (3) Motion to Postpone Filing of Response to DOE Motion to Dismiss and Filing of 29 C.F.R. § 18.40(d) Declaration; Request for Oral Argument on Pending Motions; and Notice Re: Availability of Department of Labor OALJ settlement judge process, filed on September 30, 1996. As discussed below, the motions are denied, with the exception of the motion to Postpone Filing of Response to DOE Motion to Dismiss.

   Complainants are again reminded that the case cannot move forward until the threshold issue

of the timeliness of their complainants is resolved, and that discovery is limited to that issue. In this regard, it may be helpful to review the history of this case.

    The individual complaints in this case were dismissed by the Wage-Hour Division of the Department of Labor in July 1995 on the grounds, inter alia, that the Department of Labor had no jurisdiction over certain of the causes of action and that the complaints were untimely. After the complaints appealed, the cases were consolidated and assigned to the undersigned. The respondents moved to dismiss or for summary judgment, and the complainants countered with a motion to remand to Wage-Hour for investigation. By Order of August 24, 1995, the undersigned denied complainants' motion pending disposition of the threshold issues of jurisdiction and timeliness, and stayed discovery on the merits. The only discovery permitted was as to the single issue of whether the complaints were timely filed.

    By Order of October II, 1995, the undersigned denied the complainants' motion to compel responses to their outstanding August 14, 1995 discovery because their discovery went far beyond the issue of the timely filing of their complaints. Complainants were, however, permitted to serve modified discovery focused on the issue of timeliness. After complainants served new discovery, much of which had no relevance to the timeliness issue, respondents moved for a protective order, which was granted in part by Order of November 20, 1995. However, in an effort to assist the complainants, the undersigned edited certain of their discovery requests to comply with the Order of August 24, 1995, and directed respondents to answer the edited discovery. The complainants were again reminded that their discovery was required to address the issue of whether their complaints were timely filed.

    Nevertheless, on November 16, 1995, complainants filed new discovery on the merits which had nothing to do with the timeliness of their complaints. Respondents once again moved for a protective order, which was granted by Order of December 5, 1995. Complainants were again reminded that discovery on the merits was premature. On November 24, 1995, complainants requested, inter alia, an order requiring DOE to protect against possible alterations to security clearance files. By Order of March 8, 1996, the undersigned denied the motion because of their failure to demonstrate the relevance of the security clearance files to the timeliness issue.

    On May 13, 1996, complainants filed a motion for an order requiring DOE ORO to vacate an "illegal gag order." This "gag order" consisted of a letter written to complainants' counsel by DOE ORO Chief Counsel Jennifer J. Fowler on September 21, 1995, advising him that all future communications with him would be in writing only, because of messages left on Mr. Boatner's personal answering machine and the Office's voice mail system which included unfounded, unprofessional, improper and insulting references, including personal attacks. These attacks included calling Ms. Fowler

and Mr. Boatner "Nazis," and referring to Mr. Boatner as "a redneck peckerwood." Complainants did not dispute the truth of these assertions, which DOE offered to document.

    On June 10, 1996, complainants filed a motion "to remedy incomplete searches and consider newly discovered evidence to support equitable tolling re: Hostile Working Environment and Blacklisting" which argued, notwithstanding the many prior orders emphasizing the limitation of discovery in this case to the threshold issue of timeliness, that all limitations on time periods for discovery should be removed and that discovery "should embrace all subjects."

    The Order of July 17, 1996, which complainants request be reconsidered, denied the motion to vacate the "gag order" because Chief Counsel Fowler's letter did not bar communications between complainants' counsel and her office, and the complainants had failed to show any adverse impact on their discovery in this case. The complainants have shown no reason to revisit this issue. The motion to remove limitations on discovery is simply a repetition of arguments that have been previously rejected and is therefore also denied. The establishment of a a final briefing schedule on DOE's dispositive motions, requiring DOE to submit a consolidated motion to dismiss and/or for summary judgment no later than August 31, 1996, complainants to submit a response by September 30, 1996, and DOE to file a reply no later than October 15, 1996 was an attempt to respond to complainants' June 14, 1996 pleading which, inter alia, called for proceedings to be expedited in this case. The extension of time requested by the complainants to file a response to DOE's opening brief on its dispositive motions will continue the delay in this matter, but will be granted to assure full presentation of their position before a ruling is made.

    Unfortunately, since the issuance of the July 17, 1996 Order, claimant's counsel has engaged in conduct which is disruptive and disrespectful, including leaving inappropriate voice mail messages, and on Thursday, Friday and Monday, September 26, 27 and 30, filing 8 separate submissions by fax,-five of which included cover memos demanding conference calls.

On September 13, 1996, Mr. Slavin left a message on Judge Barnett's personal voice mail at 7:34 a.m. as follows:

This is Ed Slavin (202) 638-3089 or (954) 725-0094, calling to check on the status of a motion we filed for remand in August of 1995 and a group of motions that we Filed in September or rather August 1996, in August 1995, August 1996. My clients are entitled to be treated with dignity, respect and consideration. There's only one motion pending that matters and that has to do with the remand for investigation to wage hour. We have not received a courtesy of a response or even a conference call. I would like to know why. I spent three (3) hours meeting with GAO about Department of Labor's misfeasance, nonfeasance and nonfeasance [sic] in whistle blower cases the other day and I mentioned the situation, and I'll be filing a written notice of that protected activity which specifically included discussion, some discussion as to this matter. I think my clients have been treated shabbily and this is unacceptable and that was all covered in the motion that we filed last month and we've not even received a scheduling of a conference call. As Robert Kennedy would say, this is unacceptable. Thank you.

    On, Thursday, September 26, 1996 by fax, at 11:58 a.m., Mr. Slavin filed a 2 page pleading entitled: "Department of Labor desuetude and court's unacceptable failure to answer the complainants' August 4, 1996 Filing; Notice of Protected Activity Regarding the Court's delays." The pleading states, in pertinent part:

On September 11, 1996, Sr. Special Agent Robert E. Tyndall (Retired), Mrs. Tyndall and Ms. Loria A. Tetreault, Esquire, and I met with three investigators from the General Accounting Office for three hours in Washington, D. C. During that meeting, I informed GAO of Department of Labor's strengths but its overall desuetude, misfeasance, malfeasance and nonfeasance in ERA and environmental whistleblower cases -- including putative Department of Labor "investigators" who refuse to investigate and Department of Labor "judges" who refuse to judge fairly, showing bias toward more powerful parties (with some Administrative Law Judges even refusing to hold hearings, and one refusing to hold conference calls or rule on motions.)

    I told the three GAO investigators of Your Honor's mishandling of this case, under advisement since August 1995 on a simple motion to remand for investigation ... You are hereby placed on notice of the complainants' protected activity in the GAO meeting and of your legal, moral and ethical duty not to retaliate against complainants or their counsel for these disclosures to GAO. This notice is in order because of the Court's prior harsh adverse reactions to protected activity by the Complainants and their counsel in this case, including the irregular step of requiring Complainants to get permission for further filings, which order you put down sua sponte after a mere inquiry about when you would decide this case. >

    Should you feel unable to decide this case objectively as a result of any of your personal feelings regarding any of Complainants' protected activity, please request that this case be reassigned to another ALJ who has no such impairment or conflicts.

   On September 30, 1996, at 12:27 p.m., Mr. Slavin left a message on the personal voice mail of Judge Barnett's law clerk, Ms. Julia Soininen, as follows:

Hi, this is Ed Slavin on (954) 725-0094, just calling to check about the possibility of a conference call and calling to advise you that we are about to file a motion to postpone, postpone filing of a response to DOE motion to dismiss and a declaration under 29 CFR 18.40d. We have a number of issues that the judge really needs to address with us in a conference call and we filed paper work with her on August 4, which is a long time ago. My clients have a hundred (100) years of federal experience, their concerns can and must be heard and we have a right to a hearing and not more paper work so I would ask you to kindly ask Judge Barnett to show us the courtesy of a conference call which she has not done in this case since she has had jurisdiction since 1995, August of 1995, without a conference call, without ever treating the complainants with dignity, respect and consideration. You know, this is not a black lung case and this judge is messing this case over to a faretheewell and we want to be heard. Thank you.

    While lawyers have an ethical duty to represent their clients zealously, they also have an ethical obligation not to engage in conduct that offends the dignity and decorum of proceedings. For example, D.C Bar Code of Professional Responsibility Disciplinary Rule 7-106(C)(6) states: "In appearing in his professional capacity before a tribunal, a lawyer shall not ... engage in undignified or discourteous conduct which is degrading to a tribunal." See, e.g. Ramsey v. Board of Professional Responsibility of the Supreme Court of Tennessee, supra, (Lawyer who fails to abide by court orders and to

respond to questions from court while appearing before court, and who slams courtroom doors during hearings, has degraded the court and acted in manner prejudicial to administration of justice thereby, warranting suspension from practice of law). Mr. Slavin's numerous daily faxes demanding conference calls, and his telephone messages and pleadings accusing the undersigned of "mishandling of this case," "treating his clients shabbily" and "messing this case over to a faretheewell," while somewhat gentler than his prior telephone attacks on Ms. Fowler and Mr. Boatner, are undignified and discourteous.

    Mr. Slavin's telephone call of September 13, 1996 and his fax of September 26, 1996 at 11:58 characterizing himself as a whistleblower involved in "protected activity" raise other ethical problems. Mr. Slavin must remember that the complainants, not himself, are his clients in this case. If Mr. Slavin has now become the client, he must terminate his representation of the complainants in this case if the exercise of his professional judgment on their behalf may reasonably be affected. See e.g. D.C. Bar Code of Professional Responsibility Disciplinary Rule 5-105, which requires a lawyer to withdraw from representation of multiple clients, where his independent professional judgment may be impaired by his representation of another client. Mr. Slavin's recent conduct in this case has been sufficiently unreasonable to raise the possibility that his professional judgment has become impaired, to the possible detriment of the complainants here.

    Mr. Slavin, like other lawyers, has a well-established First Amendment right to express his view publicly on the conduct of any judge before whom he appears, including this one. A false statement has no such protection, however, and will subject a lawyer to disciplinary sanctions.

Statements made by a lawyer designed to willfully, purposely and maliciously misrepresent the judges and courts ... , and to bring those persons and institutions into disrespect, will not be tolerated or condoned. There is no First Amendment protection for remarks critical of the judiciary when those statements are false. ... False statements with reference to judges and courts can be prejudicial to the administration of justice and subject to disciplinary action under Disciplinary Rule 1-102(A)(5).

Ramsey v. Board of Professional Responsibility of the Supreme Court of Tennessee, 771 S.W. 2d 116, 121 (Sup. Ct. Tenn. 1989). Mr. Slavin's summary of his allegations about the undersigned to GAO investigators indicate that he may have made false statements. In this connection, Mr. Slavin's admonitions to the undersigned not to retaliate against himself or his clients for "disclosures" made at his meeting with GAO are self-serving at best. Apparently Mr. Slavin hopes to immunize himself from further unfavorable rulings by claiming that such rulings are retaliation." He and his clients would be better served by concentration on the issues at hand, i.e. the determination of whether his clients' complaints are timely and should be heard on the merits.

    Mr. Slavin has been told over and over that, in the interests of

judicial economy, the case cannot move forward until the issue of the timeliness of his clients' complainants is resolved, and that discovery is limited to that issue. He has also been granted ample time and latitude to secure any necessary discovery in this regard. Any delay in this matter is due to Mr. Slavin's persistent disregard of the court's orders, as manifested by his unremitting and impermissible attempts since the Order of August 1995 to secure discovery on the merits.

   The motions are denied, except that complainants shall file their response to the respondents' motion to dismiss or for summary judgment within 30 days, and the respondents may file any reply within 15 days thereafter.

      EDITH BARNETT
      Administrative Law Judge

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