In the Matter of Slavin, 2002-SWD-1 (ALJ July 26, 2002)

U.S. Department of Labor

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

Date issued: July 26, 2002

In the Matter of the disqualification of

EDWARD A. SLAVIN, JR.,
    Counsel for Complainant in

    In re Jean F. Greene v. EPA Chief Judge Susan Biro, U.S. Environmental Protection Agency (EPA), EPA Office of Inspector General, and EPA Office of Administrative Law Judges, DOL OALJ No. 2002-SWD-00001, HUDALJ No. 02-01-NAL

   This matter arises out of a complaint filed by former Administrative Law Judge Jean F. Greene, alleging that the United States Environmental Protection Agency (EPA) took discriminatory actions against her in violation of the whistleblower provisions of the Safe Drinking Water Act, 42 U.S.C. § 300j-9, the Solid Waste Disposal Act, 42 U.S.C. § 6971, the Toxic Substances Control Act, 15 U.S.C. § 2622, the Clean Air Act, 42 U.S.C. § 7622, and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9610.

   The matter underlying the instant proceeding first came to the attention of the Department of Labor, Office of Administrative Law Judges (DOL OALJ) when Judge Greene filed her complaint directly with this office. DOL OALJ declined to accept the complaint for filing as the Occupational Safety and Health Administration is the agency designated for acceptance of complaints under the regulations implementing the whistleblower provisions of the environmental whistleblower statutes cited by Judge Greene. DOL OALJ, however, at that time considered it likely that Judge Greene's case would ultimately be docketed for hearing in this office. This office was concerned about the potential for an appearance of lack of impartiality if a DOL ALJ was assigned to the case because of the fact that Judge Greene is the wife of former Department of Labor Chief Administrative Law Judge Nahum Litt, and the personal acquaintance of many judges and staff at DOL OALJ.¹ Thus, in order to ensure that the case would not be delayed for selection of a judge once the anticipated hearing request was made, DOL OALJ prepared for the likelihood of a hearing in the matter by arranging for the neutral selection of a judge from another Federal administrative agency through the Office of Personnel Management (OPM), Office of Administrative Law Judge loan program.

   On June 28, 2002, Petitioners, Judge Greene and Attorney Slavin, filed a request for review by the undersigned Chief Administrative Law Judge of the United States Department of Labor pursuant to 29 C.F.R. § 18.36(b). On July 2, 2002, the undersigned issued a "Notice of Receipt of Appeal and Prehearing Order." In that order, I ordered Petitioners to brief the following issues on appeal -- (1) did Judge Greene default on the disqualification issue when she did not response to Judge Cregar's order to show cause, (2) is there an issue of fact necessitating an oral, evidentiary hearing for purposes of this appeal,² (3) did Judge Cregar correctly apply the facts to the law in finding that Mr. Slavin had engaged in conduct requiring sanctions, and (4) was disqualification the appropriate sanction given what transpired before Judge Cregar and Mr. Slavin's history of misconduct before the Office of Administrative Law Judges.

   Petitioner Slavin filed a timely response to the Prehearing Order on July 16, 2002, which included an affidavit from Judge Litt.³ In Mr. Slavin's response, he renews the motion for recusal.

   Whether Petitioners have filed a sufficient affidavit to support recusal in this matter is problematic. The response includes a declaration under penalty of perjury from Judge Litt which, in part, consists of his statement of reasons he believes recusal is necessary in this case. Mr. Slavin filed a 26 page response to the Prehearing Order, scattered parts of which contain argument as to why I should recuse myself, but which is not in the form of an affidavit or sworn declaration. Judge Greene did not file an affidavit, and faxed in a statement that she had not reviewed the final copy of the filing by Mr. Slavin, and had not had an opportunity to read Judge Litt's affidavit. ⁴ As of the date of this order, Judge Greene has not filed any additional statement indicating whether she had read, and therefore impliedly authorized, the filings made by Mr. Slavin.

   Judge Cregar's Order of Disqualification of Mr. Slavin included a finding that Mr. Slavin knew about the requirement for filing an affidavit, and that his failure to file one in relation to an earlier motion to recuse Judge Cregar could only be construed as intentional. Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 at nn. 7 & 8 and surrounding text (ALJ June 20, 2002). Likewise, I conclude that Mr. Slavin's decision not to file a sworn affidavit or declaration under his own name was intentional and not merely an imperfect expression of an intent to make the prehearing response his affidavit.⁵ Rather, it is clear that Mr. Slavin left it to Judge Litt to provide the sworn declaration rather than providing one himself.

   Based on this background, I find that Judge Greene has not authorized Mr. Slavin's response to the pre-hearing order nor Judge Litt's supporting declaration, and I find that Judge Greene has not renewed the motion for recusal that was denied in the Prehearing Order. I find that Mr. Slavin's response to the prehearing order is not the equivalent of an affidavit, and that only Judge Litt's sworn declaration can be construed as the supporting affidavit for Petitioner Slavin's motion for my recusal. Thus, I find that procedurally only Mr. Slavin has a motion to recuse pending before me.

Alleged Grounds for Recusal

   Mr. Slavin's response to the Prehearing Order is a rambling discourse on a variety of subjects,⁶ often without enough context for the reader to understand what he is talking about. It does not provide the "exact, sworn recitation of facts, assembled in one place," Keating, supra, that the affidavit supporting a recusal is intended to provide. Thus, he has left it to this tribunal to endeavor to extract from his filing, and Judge Litt's affidavit, the essence of the

(1) That I was personally involved in an alleged conspiracy to rig selection of Judge Cregar in order to assist EPA in its alleged program to retaliate against Judge Greene for protected activity, and therefore cannot sit in judgment of my own office's alleged misconduct. Slavin Response at ¶¶ 1, 6, 28, 42.

(2) That I have a generalized animus and intolerance toward protected activity (i.e., nuclear and environmental whistleblowers), and Mr. Slavin's First Amendment rights in particular.⁷ Slavin Response at ¶¶ 30, 33; Litt Declaration at ¶ 4.

(3) That I had referred Mr. Slavin's conduct in proceedings before Department of Labor's Office of Administrative Law Judges to the Tennessee Board of Professional Responsibility.⁸ Slavin Response at ¶¶ 4, 7, 9, 10, 11, 22, 25, 36, 37, 40, 44; Litt Declaration at ¶¶ 9, 10.

(4) That my personal and professional relationship with Judge Litt and Judge Greene is itself disqualifying. Litt Declaration at ¶ 2.

(5) That I was angry about Judge Litt's participation in the Tennessee Board of Professional Responsibility case. Litt Declaration at ¶ 5.

(6) That the decision to "recuse" all DOL ALJs was beyond my authority, and therefore compels my recusal on this appeal. Litt Declaration at ¶¶ 7, 8.

(7) That my reference to "sharp practices" by Mr. Slavin in my order granting an extension of time to file this prehearing order illustrated animus toward Mr. Slavin. Litt Declaration at ¶ 11.

(8) That OALJ may have supplied law clerk support to Judge Cregar in writing the order of disqualification, which would make it improper for me to consider an appeal from the order. Litt Declaration at ¶ 19.

   There is simply no reason to recuse myself merely because Petitioners have spun this wild theory. It is absurd, bizarre and manifestly without factual basis. It is based wholly on the speculation that because Judge Cregar made some rulings that Complainant viewed as against her interests, the selection of Judge Cregar to preside over this matter was obviously rigged.⁹ Slavin Response at ¶ 2. Thus, to the extent that the recusal motion is based on a theory that I exhibited bias by agreeing to permit Judge Burke to invoke the OPM judge loan program to pre-select a "hanging judge," it is not a rational or well-grounded basis for recusal. Such an absurd conspiracy theory need not be given any weight.

Alleged Animus Against Protected Activity in General, and Mr. Slavin in Particular; Filing of Board of Professional Responsibility Complaint

   In Prehearing Order I considered, sua sponte, whether I should recuse myself in this matter pursuant to 29 C.F.R. § 18.31(a), in view of my past criticism of Mr. Slavin based on his conduct in proceedings before this office. I concluded that I had not formed such a high degree of favoritism or antagonism as to make fair judgment impossible. See Shelton v. Oak Ridge National Laboratory, 1995-CAA-19 (ALJ Apr. 21, 1998) (citing Liteky v. United States, 510 U.S. 540, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). See also Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. of California v. Yagman, 55 F.3d 1430 (9th Cir. 1995); Flor v. U.S. Dept. of Energy, 1993-TSC-1 (Sec'y Dec. 9, 1994); In re Drexel Burnham Lambert Inc., 869 F.2d 116, 119 (2d Cir. 1989), cert. denied, Milken v. S.E.C., 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). Nothing in Mr. Slavin's renewed filing or in Judge Litt's supporting affidavit changes my conclusion.

    I have, in my role as Chief Judge referred to the Board of Professional Responsibility of the Tennessee Supreme Court activities and court filings of Mr. Slavin occurring during litigation before this office for that Board's consideration of whether it constituted an ethical violation. The content of the referral was all based on information I obtained in my role as Chief Judge.¹⁰ In addition, on several earlier occasions I had written to Mr. Slavin requesting that he consider whether his conduct in DOL OALJ proceedings was consistent with his professional obligations, in an effort to get Mr. Slavin to moderate his conduct without resort to more formal disciplinary action. Recusal of a judge, however, is not warranted merely because that judge referred a matter to an appropriate authority for a determination of whether there has been any misconduct. In re Drexel Burnham Lambert Inc., 869 F.2d 116, 119 (2d Cir. 1989), cert. denied, Milken v. S.E.C., 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). As the United States

The circumstance that the spouse of the former Chief Administrative Law Judge of this office is now a Complainant in a case before this office is unique. A disinterested observer might reasonably question whether a particular administrative law judge in this office would be able to impartially decide the case because of that judge's relationship with the former Chief Judge. See generally 28 U.S.C.A. § 455(a) (a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned). In order to remove any doubt about the presiding ALJ's impartiality, and to focus the proceedings on the merits of the Complainant's case, it is assigned to the Honorable William C. Cregar, Acting Chief, United States Department of Housing and Urban Development, under the provisions of the United States Office of Personnel Management's program for loan of an administrative law judge to the U.S. Department of Labor, pursuant to 5 U.S.C. § 3344 and 5 C.F.R. § 930.213.¹¹

   Mr. Slavin requested a last minute extension of time to file a response to the Prehearing Order in this appeal. That request was based, in part, on his having a brief due before another ALJ on the same day that the response in the instant proceeding was due. The request did not mention that he was also requesting an extension of time from the other ALJ, which request was in fact orally granted by the other ALJ within a few hours of receipt. Mr. Slavin did not report to me that he had been granted an extension in the other case. As noted above, a judge may form a negative opinion of a litigant or attorney in the course of an adjudication. Mr. Slavin's lack of candor about the situation with the due date for briefing in the other case was a sharp practice, and my observation that it was is not a ground for recusal.¹²

   In a similar situation in Holub v. H. Nash Babcock & King, Inc., 1993-ERA-25, an ALJ had disqualified an attorney who was representing Judge Litt in a Merit Systems Protection Board proceeding, and an appeal was taken under 29 C.F.R. § 18.36(b). Judge Litt recused himself, and referred the matter to the undersigned. I was the Deputy Chief ALJ at the time.¹³ Because both the Associate Chief ALJ and myself had been exposed to details relating to the MSPB proceeding, we were also obliged to recuse ourselves. Thus, an Order to Show Cause was issued directing the parties to state why the matter should not be referred to the Office of Personnel Management for selection of an Chief ALJ of another agency to hear the appeal. Both parties objected to referral to OPM. Respondents in that case, however, argued that the Secretary of Labor could hear the appeal pursuant to the regulation at 29 C.F.R. § 18.1(b), which permits waiver or modification of the OALJ rules of practice when required to prevent prejudice to a party and to serve the ends of justice. Accordingly, the matter was referred to the Office of the Secretary. Holub v. H. Nash Babcock & King, Inc., 1993-ERA-25 (ALJ Dec. 20, 1994). Neither party objected before the Secretary, and he proceeded to decide the appeal in an Order in which the disqualification was reversed. Holub v. H. Nash Babcock & King, Inc., 1993-ERA-25 (Sec'y Feb. 6, 1995).

¹ Judge Litt was Chief Judge at the Department of Labor from 1979 to 1995. Litt Declaration at ¶ 1. See also n.11 of this Order of Recusal, infra, for a more detailed explanation of the circumstances creating the concern for an appearance of lack of impartiality if a DOL ALJ was assigned to hear this case.

² In his response to the Prehearing Order, Mr. Slavin requests subpoenas "to secure documents" but does not explain what documents he is seeking. Slavin Response at 22. It must be clarified, however, that the Prehearing Order was not an invitation to now litigate what should have been presented to Judge Cregar but merely a direction to explain why Petitioners had requested an evidentiary hearing in Florida on the appeal. Moreover, the present appeal is about Mr. Slavin's conduct -- principally, did he or did he not in filings before Judge Cregar intentionally make false statements about Judge Cregar's appointment or make such statements with reckless disregard for the truth. The appropriateness of Mr. Slavin's conduct depends on the facts or lack thereof as known to Mr. Slavin at the time he made the charge. The hearing of his appeal is not an opportunity to fish for after-the-fact justifications -- he either had proof of misconduct when he made the charge or he did not. Thus, whether he could find evidence to support his theory now would not be relevant to in the instant proceeding.

   On July 26, 2002, Petitioners filed a supplement to the prehearing response, seeking to add Judge Cregar to the witness list for the hearing they requested on the appeal, and indicating that he would testify about "apparent" misconduct by Judge Cregar. The motion to supplement the pre-hearing response is denied because it was filed ten days after the due date for the prehearing response and is therefore untimely, and because this appeal is about Mr. Slavin's conduct and not about Judge Cregar.

³ About one hour after the filing of the response to the Prehearing Order, this Office received an unexplained fax from Mr. Slavin containing what appears to be a replacement page for the final page of Judge Litt's affidavit, with Judge Litt's signature. The original fax did not have a signature affixed to this page.

⁴ Judge Greene's fax is evidently in clarification of page 26 of Mr. Slavin's original fax submission, which indicates that Judge Greene was verifying under penalty of perjury that the facts set forth in the filing were true, correct and accurate to the best of her knowledge, information and belief. Page 26 of the original filing does not have Judge Greene's signature affixed thereto, whereas the subsequent fax and later regular mail filing does.

⁵ In the Prehearing Order, I also directed: "If Petitioners intend to support the motion with the record in proceedings outside the proceeding before Judge Cregar, they shall submit verified copies of documents and/or transcripts, with pinpoint citations to those portions of the records purportedly supporting recusal." In the response to the Prehearing Order, Mr. Slavin and Judge Litt made several references to a Tennessee Board of Professional Responsibility hearing, but did not submit verified copies of transcripts or make pinpoint citations to the record of that hearing.

⁶ Many paragraphs of Mr. Slavin's prehearing response are unclear as to their purpose, or were not related to the issues presently on appeal or recusal, or were such generalized statements of law or other platitudes that they provided no illumination on the instant proceeding.

   Mr. Slavin also spends a fair amount of the response complaining about alleged Department of Labor "desuetude" enforcement of whistleblower laws. There is no explanation, however, of why such alleged desuetude would support my recusal, or have anything to do with whether he engaged in misconduct before Judge Cregar. See Slavin Response at ¶¶ 39-46, 54, 55. See also Williams v. United States Department of Labor, 879 F.2d 327 (8th Cir. 1989) (administrative delay is not presumptive evidence of ALJ bias mandating reassignment absent evidence that the delay was designed to harass the claimant in particular).

⁷ The reader should be aware that Mr. Slavin's definition of protected First Amendment rights includes, for example, contemptuous and insulting statements about presiding judges, opposing counsel and other litigants made in court filings; ex parte communications designed to intimidate judges; filing frivolous motions to recuse and peer review complaints; refusals to comply with lawful orders with which he disagrees; and spreading information presented as fact about judges with reckless disregard for the truth of the information. Although I directed in the Prehearing Order that Petitioners brief the distinction between in-court and out-of-court utterances under First Amendment authority relating to attorney professional responsibility, Mr. Slavin's response assiduously stays away from this issue (see Slavin Response at p. 19) -- and with good reason because the law clearly would not support his version of what constitutes protected speech when it is made inside a court proceeding. See, e.g., Greene v. U.S. Environmental Protection Agency, 2002-SWD-1, nn.13-16 and surrounding text (ALJ June 20, 2002); Ramsey v. Board of Prof'l Resp. of the Sup. Ct. of Tenn., 771 S.W.2d 116, 121-122 (Tenn. 1989), cert denied, 493 U.S. 917, 110 S.Ct. 278, 107 L.Ed.2d 258 (1989). Mr. Slavin's citation of Republican Party of Minnesota v. White, 122 S.Ct. 2528, 70 USLW 4720 (June 27, 2002), is not relevant, as it concerns speech by judicial candidates for public office, not speech by attorneys in court proceedings. See Slavin Response at ¶ 7.

⁸ Mr. Slavin is a member of the Tennessee Bar.

⁹ Judge Litt's declaration includes an unfortunate passage in which he states that the reason Petitioners do not believe that the appointment was made without "steering" the case to the "right agency"is that during his tenure as Chief ALJ that what he always did. Litt Declaration at ¶ 6. Implicit in this statement is the notion that all Chief ALJs plot to select judges who will promote a hidden agenda of the Chief Judge.

   To my knowledge, during Judge Litt's tenure there was never occasion to use the ALJ loan program for purposes of avoiding the appearance of impropriety. Rather, Judge Litt always used the program when there were an insufficient number of DOL ALJs to handle an existing caseload -- an entirely different context for invoking the OPM ALJ loan program. I sincerely doubt that Judge Litt would have been so corrupt as to rig a judge selection to promote a private agenda, and I attribute the suggestion in his declaration that he would have engaged in such misconduct -- and therefore I obviously would do the same -- as a momentary lapse in judgment caused by his zeal in trying to justify Mr. Slavin's conduct. If, by chance, Judge Litt actually meant what his declaration implies in this passage, all I can say is that such management views cannot reasonably be imputed to the present management of DOL OALJ based solely on a theory that all court managers are manipulators.

¹⁰ Mr. Slavin attempts to make an issue of the fact that a Hearing Committee of the Tennessee Board recommended dismissal of some of the complaints filed by the Tennessee Board Bar Counsel, including the one based on my referral. Slavin Response at ¶ 4. All this illustrates, however, is his lack of candor. Mr. Slavin omits that he was found guilty of other misconduct directly arising out of DOL OALJ and ARB whistleblower adjudications for which the Committee recommended a public censure. This conduct includes giving false statements regarding a client's illness to obtain a continuance, making false statements to opposing counsel during a deposition about the identity of a person attending that deposition, failing to communicate with clients and delaying the return of files, and ignoring the orders of a Federal District Court Judge who was presiding over an action to collect attorney fees that the ARB had ordered repaid by Mr. Slavin to a Respondent. In re Edward A. Slavin, Jr., No. 2000-1185-0-LC (Judgment of Hearing Committee, Disciplinary District of the Board of Professional Responsibility of the Supreme Court of Tennessee, Apr. 8, 2002). Moreover, the Tennessee Board has taken an appeal of that Hearing Committee's recommendation, including the findings made based on my referral. Therefore, the question of whether his past conduct before DOL OALJ specified in my referral constituted unprofessional behavior under the Tennessee rules is not yet resolved, and it is indisputable that although the Committee did not find that the instances of conduct referred by me had been established adequately by the Board, it did find misconduct based on the referrals of other persons and the federal District Court Judge. Moreover, even if the Tennessee Supreme Court ultimately finds that Mr. Slavin did not violate Tennessee rules of professional conduct in DOL OALJ proceedings, it is obvious that the Board of Professional Responsibility believed that the referred conduct was serious enough to merit pursuit of a complaint.

¹¹ Although Judge Burke described in this, and a subsequent order what transpired as "recusal," use of the term recusal may have confused Petitioners. A court has general management authority to take actions to avoid the appearance of impropriety in the interests of justice that are not subject to the strict application of "recusal" rules -- that is, a court can choose to avoid assignment of particular cases to particular judges when the public interest would be better served by avoiding that assignment. See Chianelli v. Environmental Protection Agency, 8 Fed.Appx. 971, 980-981 (C.A. Fed. 2001), cert. denied, 122 S.Ct. 570, 151 L.Ed.2d 442 (2001) (Merit Systems Protection Board has the authority to reassign a case to another ALJ on remand based on an allegation of bias, even where recusal would not be required). Thus, Judge Litt's argument that the Chief ALJ does not have the authority to decide recusal for all individual judges is correct, but also off the mark, as it is not the basis for the actions taken here. I do not purport to be able to decide recusal motions for individual judges nor do I assert that every ALJ at DOL would have been required to recuse himself or herself in this case if a recusal had been filed with that judge individually. As manager of the court, however, I have the responsibility to make judgments about circumstances where avoidance of appearance of impropriety mandates that certain assignments be avoided.

   Moreover, the present case is an extreme one. Judge Litt was Chief Judge for an extended period and was well-known as a forceful manager who made many friends, but also a few enemies. His departure from OALJ was under the cloud of a Merit Systems Protection Board action brought by the then Deputy Secretary of Labor to remove him from his position as Chief Judge, in part based on an allegation that Judge Litt abused his office by directing his law clerk to draft a decision for Judge Greene under the false pretext that there was a resource sharing agreement between EPA and DOL OALJ. Judge Litt has consistently denied misconduct, and the MSPB action was dismissed based on a settlement -- but the circumstances of his departure are well known in the office. Although about seven years have passed since Judge Litt's departure, the great majority of the permanent staff still employed by OALJ -- both ALJs and support staff -- knew Judge Litt and were appointed during his tenure. Moreover, both Judge Litt and Judge Greene had, and continue to have, a personal friendship with many judges and staff of DOL OALJ. At the time that the case was docketed before this office, Judge Litt's niece was employed by DOL OALJ as a well-liked legal intern. Thus, although DOL OALJ may have appointed several ALJs after Judge Litt's departure who did not know Judge Litt or Judge Greene personally, it would be almost impossible to adjudicate this particular case at OALJ without Judge Litt's legacy not being a factor. As Judge Burke aptly stated, the OPM ALJ loan program was used "to focus the proceedings on the merits of the Complainant's case" rather than on the presiding judge's potential for partiality.

   The allegations made by Petitioners since December 2001 well illustrate one of the concerns I had at the time that DOL OALJ learned that Judge Greene would probably have a whistleblower case appealed for hearing by this office: the potential for an argument that I -- or one of the Associate Chief Judges who also have long histories with Judge Litt and Judge Greene -- would hand pick a judge with a view toward finding a judge likely to make the case come out a particular way (with the concern being equally that this office would potentially be perceived as having too favorable a view of Judge Litt and Judge Greene). Avoiding this kind of accusation is the very reason DOL OALJ choose to use OPM to select a non-DOL trial judge.

¹² My perception of Mr. Slavin engaging in sharp practices in regard to his request for an extension of time has only been reinforced since that time. Obtaining extensions of time from both me and Judge Wood permitted Mr. Slavin to use the day the filings on both cases were originally due to write two Freedom of Information Act requests directed at this office and one directed at the Solicitor of Labor. Each of these FOIA requests have the transparent purpose of sending a message that Mr. Slavin intends to use allegations of misconduct by OALJ and other DOL agencies to immunize himself from sanctions for his behavior.

¹³ DOL OALJ no longer maintains a Deputy Chief Judge position.

Date issued:

In the Matter of the disqualification of

EDWARD A. SLAVIN, JR.,
    Counsel for Complainant in

    In re Jean F. Greene v. EPA Chief Judge Susan Biro, U.S. Environmental Protection Agency (EPA), EPA Office of Inspector General, and EPA Office of Administrative Law Judges, DOL OALJ No. 2002-SWD-00001, HUDALJ No. 02-01-NAL

The United States Department of Labor's Chief Administrative Law Judge has referred the above-captioned matter to me with a recommendation that the Petitioners' appeal of Edward A. Slavin, Jr.'s disqualification as attorney for the Complainant Jean F. Greene pursuant to 29 C.F.R. § 18.36(b) be referred to the Administrative Review Board by special mandate under 29 C.F.R. § 18.1(a). See Holub v. H. Nash Babcock & King, Inc., 1993-ERA-25 (Sec'y Feb. 6, 1995). The reason for the recommended referral is that, although the applicable regulation provides for such an appeal to be decided by the Chief Judge, the unique circumstances of this particular case require his recusal and prevent referral to an Associate Chief Judge because they both would also be required to recuse themselves. Petitioners requested in their motion to recuse that either the Secretary or the ARB decide the appeal.

   Accordingly, pursuant to 29 C.F.R. § 18.1(a), and in the interests of justice, I refer the instant appeal of disqualification to the ARB for decision.

      [Editor's note: Secretary Chao's signature does not appear on this suggested order ]
      ELAINE L. CHAO
      Secretary of Labor