Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Jan. 3, 2002)

U.S. Department of Labor

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

Issue date: 03Jan2002

CASE NO. 2002-SWD-1

In the Matter of:

JEAN F. GREENE,
    Complainant

    v.

ENVIRONMENTAL PROTECTION AGENCY,
SUSAN BIRO, CHIEF JUDGE (EPA),
OFFICE OF ADMINISTRATIVE LAW JUDGES (EPA), and
OFFICE OF INSPECTOR GENERAL, ENVIRONMENTAL PROTECTION AGENCY,
    Respondents

   On December 21, 2001, the undersigned issued an order "Order Denying [Complainant's] Motion to Reconsider The Use of the Office of Personnel Management To Select a Presiding Administrative Law Judge." Later that same day, Judge Greene faxed and e-mailed a motion to reconsider the denial of the motion to reconsider. On January 2, 2002, Judge Greene faxed a supplemental filing in support of the motion to reconsider the denial of the motion to reconsider. The supplemental filing is accompanied by several documents counsel for Judge Greene received in response to a FOIA request filed with this office, which Judge Greene alleges shows improprieties in the use of OPM to select a presiding ALJ in this matter.

   The argument and documentation presented by Judge Greene, however, do not shed any new light on this matter. In fact, the factual predicate of Judge Greene's motion, that the DOL OALJ impermissibly contacted HUD directly instead of going through OPM for an ALJ to hear this case is incorrect. DOL OALJ contacted OPM who in turn contacted HUD as well as other agencies requesting the availability of an ALJ to be detailed on this case.

   OPM was used to select a presiding ALJ outside DOL for the reasons previously stated to avoid even the appearance of a partisan tribunal. Judge Greene suggests that commencing the use of OPM to select an ALJ prior to formal docketing of the case has somehow polluted the proceeding before Acting Chief Judge Cregar. Contacts were made with OPM and HUD about this matter prior to the docketing of this matter before DOL OALJ, however, because Judge Greene had put this office on notice of her complaint much earlier when she first attempted to file the complaint with DOL OALJ. Judge Greene also suggests that DOL OALJ's contacts with OPM and HUD in arranging for the selection of an ALJ constituted an improper ex parte communication. An improper ex parte communication, however, involves communication by a decision maker with an interested party on a matter relevant to the merits of the proceeding. See 5 U.S.C. § 557(d). OALJ communicated with OPM to assist in finding an ALJ outside DOL to hear this matter precisely because OPM is a disinterested party.

   Accordingly, Judge Greene's motion to reconsider the denial of her motion to reconsider the use of OPM to select a presiding ALJ is DENIED. No further motions for reconsideration on this issue will be entertained.¹ The issue has been adequately raised for purposes of appeal, if deemed necessary.

   SO ORDERED.

      THOMAS M. BURKE
      Associate Chief Judge

¹Counsel for Judge Greene has e-mailed to this office a request for conference call and request for leave to respond to a filing by EPA. E-mail filings are not authorized by this Office's Rules of Practice and Procedure.