First, Mr. Slavin has been disqualified as counsel by Judge Cregar in the Greene matter, Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ June 20, 2002). Thus, any motion purportedly filed on behalf of Judge Greene by Mr. Slavin is unauthorized. Although an appeal of the disqualification order is pending, under the regulation at 29 C.F.R. § 18.36, the disqualification is not stayed pending the appeal. See In the Matter of Slavin, 2002-SWD-1 (ALJ July 2, 2002) (Chief ALJ's order denying motion for stay of attorney disqualification). Thus, even though the issue of Mr. Slavin's disqualification is currently pending before the ARB, unless and until the disqualification is reversed by the ARB, Mr. Slavin is not permitted to continue representation of Judge Greene before OALJ, and the underlying proceeding is not permitted under the regulations to be delayed or stayed pending an appeal of an attorney disqualification.

   Second, even if the motion was properly filed, it is clearly a renewed attempt by Judge Greene to have Judge Cregar removed as the presiding judge in her case. In Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Jan. 3, 2002), I informed Complainant that the undersigned would not entertain any further motions attacking the appointment of Judge Cregar, as she had already perfected a record for appeal on whether that appointment was improper. The instant motion, although couched weakly in terms purportedly promoting judicial efficiency, is merely a different tactic for attempting to have Judge Cregar removed as the presiding judge in the Greene matter.

   Third, in addition to acting contrary to Judge Cregar's order of disqualification and my order denying any further motions seeking Judge Cregar's removal, there are other troubling aspects to this motion. Specifically, it is not obvious what possible benefit Ms. Erickson could achieve by consolidation of her case with Judge Greene's case, while the potential disadvantages are obvious and significant. Assuming arguendo that the motion to consolidate was granted, Ms. Erickson would be in the position of possibly having the recommended decision in her favor vacated, giving EPA the chance to present additional evidence and argument before the ALJ, and possibly leading to a different, less favorable result. Moreover, Ms. Erickson's case, including her right to immediate reinstatement, would be delayed for however long it takes to adjudicate the consolidated case. Thus, the potential consequences of consolidation to Ms. Erickson are immediate, material and significant.

   Also, Judge Greene and her counsel, have, with reckless disregard for the truth, attacked the integrity of almost every government official involved in the adjudication of her case. It seems inconceivable that if Ms. Erickson had been informed of the procedural posture of, and tactics employed in the Greene matter, that she would now choose to abandon her favorable position and join with a party whose case has, thus far, been mired in attacks on the institutions that will rule on her case.

   Finally, the renewal of the motion to consolidate was filed only a few days after Judge Kennington issued his recommended decision in favor of Ms. Erickson. The timing of the motion could be interpreted as blatant judge shopping by Judge Greene. It is likely, however, that attorney Slavin and Judge Greene knew before even filing this renewed motion that it would not succeed given the fact that OALJ had already unambiguously decided that Judge Greene's case could not be heard by a DOL ALJ. See Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Oct. 19, 2001); Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Dec. 21, 2001); Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Jan. 3, 2002); In the Matter of Slavin, 2002-SWD-1 (ALJ July 26, 2002) (especially n. 11, and surrounding text). Thus, it appears that the filing of the motion at this time was merely a vehicle to voice continued dissent about the appointment of Judge Cregar to hear Judge Greene's case. Even if Mr. Slavin and Judge Greene knew that the motion was frivolous, would stand no chance of being granted, and therefore there was no real risk to Ms. Erickson's case, it is a form of gamesmanship with the rights of a third party that is totally unacceptable.

   Based on the foregoing, it is ORDERED that the motion to consolidate is DENIED.

       THOMAS M. BURKE
       Associate Chief Administrative Law Judge