Date: JAN 6 1997

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.

    Complainants' counsel, Edward G. Slavin Jr. will be required to show cause within fifteen days why he shall not immediately be denied the privilege of appearing before the undersigned in this or any other matter pursuant to 29 C.F.R. § 18.29, 34 and .38, because of a continuing pattern of willful misconduct, including the making of prohibited ex parte communications, engaging in disruptive actions, violating this tribunal's orders, and failing to abide by

this tribunal's rules of practice.

    The undersigned has authority to deny a representative the privilege to appear by virtue of the following regulations, which are reproduced below in pertinent part:

    29 C.F.R. § 18.29 Authority of Administrative Law Judge

(a) General Powers. In any proceeding under this part, the Administrative Law Judge shall have all powers necessary to the conduct of fair and impartial hearings, including, but not limited to, the following: ...

(5) Issue decisions and orders;

(6) Take any action authorized by the Administrative Procedure Act;

(7) Exercise, for the purpose of the hearing and in regulating the conduct of the proceeding, such powers vested in the Secretary of Labor as are necessary and appropriate therefor:

(8) Where applicable, take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts ... ;

(9) Do all things necessary to enable him or her to discharge the duties of the office.

    29 C.F.R. § 18.34 Representation

(g) Qualifications ...

(3) Denial of authority to appear. The administrative law judge may deny the privilege of appearing to any person, within applicable statutory constraints, e.g. 5 U.S.C. 555, who he or she finds after notice of and opportunity for hearing in the matter does not possess the requisite qualifications to represent others; or is lacking in character or integrity; has engaged in unethical or improper professional conduct; or has engaged in an act involving moral turpitude. ...

    29 C.F.R. § 18.36 Standards of Conduct

(a) All persons appearing in proceedings before an administrative law judge are expected to act with integrity and in an ethical manner.

(b) The administrative law judge may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications.

1. Ex parte communications

29 C.F.R. § 18.38(a) provides, in pertinent part:

§ 18.38 Ex parte communications.

(a) The administrative law judge shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate. Communications by the Office of Administrative Law Judges, the assigned judge, or any party for the sole purpose of scheduling hearings or requesting extensions of time are not considered ex parte communications, except that all other parties shall be notified of such request by the requesting party and be given an opportunity to respond thereto.

(b) Sanctions. A party or participant who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to any appropriate sanction or sanctions, including, but not limited to, exclusion from the proceedings and adverse ruling on the issue which is the subject of the prohibited communication.

    The Administrative Procedure Act ("APA") also requires that administrative law judges "may not ... consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate ... ." 5 U.S.C. §554 (d)(1). The APA expressly prohibits ex parte communications "relevant to the merits of the proceeding." 5 U.S.C. §557(d)(1)(A) and (B). An ex parte communication is defined as "an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter." 5 U.S.C. §551 (14). As indicated above, this language is repeated at 29 C.F.R. §18.38(a), which further excludes from the definition of ex parte contacts "communications by [the Department of Labor's] Office of Administrative Law Judges, the assigned judge, or any party for the sole purpose of scheduling hearings or requesting extensions of time ... ."

    As set forth in the Order of October 8, 1996 (attachment 1 hereto), on September 13 and 30, 1996, complainants' counsel left voice mail messages with the undersigned, which were not left with the respondents, regarding the undersigned's handling of the case on the merits. On December 23, 1996, complainants' counsel served on the undersigned a 6-page communication to Vice President of the United States Albert Gore also regarding the undersigned's handling of the case on the merits. (Attachment 2). This letter was intentionally not served on the respondents. No certificate of service is attached, and neither the respondents

nor the undersigned are included on the list of persons receiving copies of the communication. Because the complainants failed to place these submissions about the merits of this case on the public record or to give notice of them to the respondents, they are unlawful ex parte communications.

    The September 13 and December 23, 1996 submissions are also improper on other grounds. The transmission of complaints about the undersigned's handling of this matter to unnamed General Accounting Office officials and to Vice President Gore, the second highest executive branch official in the United States, was plainly intended to intimidate the undersigned and to immunize the complainants from unfavorable rulings. Such action is a willful interference with the undersigned's obligation to conduct fair and impartial hearings.

2. Disruptive Actions

    While a lawyer has an ethical duty to represent clients zealously, he or she also has 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).

    As set forth in Attachment 1, claimant's counsel left voice mail messages on September 13, 26 and 30, 1996, and faxed eight separate submissions during a three-day period which demanded conference calls and accused the undersigned, inter alia, of "mishandling of this case," "treating his clients shabbily" and "messing this case over to a faretheewell." This conduct was disruptive and disrespectful, failed to adhere to reasonable standards of orderly conduct, degraded the tribunal, and was therefore prejudicial to the administration of justice. ¹

3. Violation of the tribunal's orders.

    On October 20, 1995 and November 16, 1995, Mr. Slavin served discovery which went far afield of the timeliness issue, or any issue even conceivably related to the merits, in violation of 29 C.F.R. §18.14.² The complainants were cautioned that similar further disregard of discovery orders might lead to sanctions. Nevertheless, on November 24, 1995, Mr. Slavin requested an order regarding DOE security clearance files without any attempt to show relevance to timeliness. On June 10, 1996, Mr. Slavin filed a motion urging that discovery "should embrace all subjects." As set forth below, since July 17, 1996, Mr. Slavin has filed seventeen submissions which have nothing to do with the timeliness of the complaints in this matter. In sum, Mr. Slavin has willfully and persistently violated the Order of August 24, 1995.

(b) Order of July 17, 1996, barring the filing of submissions unrelated to respondents' dispositive motions on timeliness and jurisdiction without express permission.

    On July 17, 1996, the undersigned issued an Order which barred the filing of further pleadings unrelated to respondents' dispositive motions on timeliness and jurisdiction without express permission. The intent was to stop Mr. Slavin's flood of unnecessary and/or irrelevant submissions.³

    Since July 17, 1996, complainants have made the following unrelated submissions. 

    Mr. Slavin has continually made requests for orders or other actions by the tribunal which are not in writing and/or do not state the particular grounds for the request. Many of his requests for conference calls, like his requests for recusal, have stated no grounds. On December 16, 1996, he requested the filing of a new complaint in this case, without reciting any authority for doing so (and notwithstanding that a similar prior request was denied on July 17, 1996).⁴

5. Qualifications of Counsel

    The only persons permitted to represent complainants before the Office of Administrative Law Judges are attorneys in good standing before the federal courts or before the highest court of any state, the District of Columbia, or any territory or commonwealth of the United States, or non-attorneys who have received permission to appear from the Chief Administrative Law Judge or the presiding Administrative Law Judge. The Administrative Law Judge has the authority to verify a representative's qualifications at any time. 29 C.F.R. § 18.34 (g). Based on his conduct in this case, I conclude that Mr. Slavin is either unable or unwilling to conduct himself in a competent professional manner before this tribunal.

    In order to ensure that Mr. Slavin has the threshold qualifications necessary to practice before this tribunal as an attorney, he will be

¹Mr. Slavin's disruptive actions indicate that his professional judgment has become impaired, because he apparently now believes that he is representing his own interests in this matter, based on his characterization of himself as a whistleblower involved in "protected activity"in this case in his telephone call of September 13, 1996 and his 11:58 a.m. fax on September 26, 1996. He has been reminded that he is representing three complainants in addition to himself, and that a lawyer must withdraw from representation of multiple clients 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.

²For example, Interrogatory 46 asked: "For how long have drug, prostitution and gambling allegations persisted at Oak Ridge facilities? Please be specific." Request for Admission 32 stated: "No DOE policy permits Ms. Smith to purport to say who may visit her' offices or pick the friends of her' employees." Request for Admis- sion 34 stated: "No DOE policy condones or permits Mr. Boatner to publicly embarrass the District Attorney at a society wedding in hopes of curtailing his protected testimony in DOL actions."

³As Administrative Law Judge David A. Clarke, Jr. aptly noted in a recommended order of June 23, 1995, reducing complainants' counsel's attorney fee request by 25% in the case of Varnadore v. Martin Marietta Energy Systems, Inc., et al., Case Nos. 94-CAA-2, 3, Mr. Slavin "is a tenacious combatant and a prolific draftsman who, for want of a more descriptive term, "papered" this office, the record, and opposing counsel with pleadings, letters, and even newspaper articles, many of which were unnecessary and/or irrelevant."

⁴Although it seems unnecessary to point out, the purpose of this rule is to provide a sound reason for the action requested. Mr. Slavin must be aware that the undersigned, like other Administrative Law Judges, has responsibility for many cases, and cannot afford to spend time on conference calls or other requests in a specific case without any obvious reason for doing so.