On June 10, 1999, Complainant, Walter Moore, filed a pair of motions with this
Board: (1) a Motion for Quo Warranto Hearing on Ex Parte Communications and Other Due
Process Problems, Counsel's Declaration, and (2) a Motion to Order DOL and DOE Employees to
Answer Questions. In particular, Complainant alleges that there would be an appearance of impropriety
should Cynthia L. Attwood, one of the three Administrative Review Board members, hear any cases in
which Complainant's counsel, Edward A. Slavin, Jr., is appearing.
Complainant's allegation of an appearance of impropriety is based on a
Memorandum from Richard Fairfax, the Occupational Safety and Health Administration's [OSHA]
Director of the Directorate of Compliance Programs, to John B. Miles, Jr., Regional Director, OSHA,
dated February 19, 1999. Fairfax's Memorandum apparently was written in response to correspondence
[Page 2]
from Complainant's counsel raising concerns about whistleblower investigations being performed by the
OSHA Region VI office. Fairfax, in his Memorandum, states that Complainant's counsel previously has
corresponded with the Secretary about these concerns, and that Complainant's counsel has raised similar
complaints about investigative work in other OSHA regional offices. Fairfax also states in his
Memorandum that Complainant's counsel "has also asked for the recusal of all Administrative Law
Judges who have presided over hearings for his clients, and made charges against Chief Administrative Law
Judge John Vittone and Administrative Review Board Member Cynthia Atwood [sic]."
Complainant contends that the Fairfax Memorandum's reference to ARB
Member Attwood "raises a clear question as to whether there was any an [sic] ex parte
communication between Mr. Fairfax and a member of the ARB or its staff on matters being litigated
before them."
Quo warranto is "the prerogative writ by which the government can call upon
any person to show by what warrant he holds a public office or exercises a public franchise."
Newman v. United States el rel. Frizzle, 238 U.S. 537, 545-546 (1915). It has been defined
as "'an information, criminal in form, presented to a court of competent jurisdiction, by the public
prosecutor, for the purpose of correcting the usurpation, mis-user, or non-user, of a public office or
corporate franchise . . . and while still retaining its criminal form, it has long since come to be regarded as
in substance, a civil proceeding, instituted by the public prosecutor, upon the relation of private citizens, for
the determination of purely civil rights.'" United States ex rel. State of Wisconsin v. First
Federal Savings and Loan Assoc., 248 F.2d 804, 807 (7th Cir. 1957)(citation omitted).
An administrative agency is a tribunal of limited jurisdiction which may exercise only
the powers granted to it by statute. Pentheny, Ltd. v. Virgin Islands, 360 F.2d 786, 790 (3d
Cir. 1966). Accord Federal Trade Commission v. National Lead Co., 352 U.S. 419, 428
(1957). The environmental statutes under which Complainant has sought relief do not confer quo warranto
jurisdiction upon the Administrative Review Board, nor has Complainant cited to any other source of such
jurisdiction. Cf. United States ex rel. State of Wisconsin v. FirstFederal Savings and
Loan Assoc., supra, 248 F. 2d at 808 (except as otherwise specifically provided by statute, there is
no original jurisdiction in the federal district court to entertain quo warranto actions). Accordingly,
Complainant's motion for a quo warranto hearing is DENIED. Furthermore, the denial of
Complainant's motion for a quo warranto hearing renders moot his motion to order DOL and DOE
employees to answer questions. The purpose of these questions is to adduce evidence to be presented in
the quo warranto proceeding. Consequently. the motion to order DOL and DOE employees to answer
questions is also DENIED.
[Page 3]
Finally, the Board, of course, must consider carefully the allegation that a Board
Member's participation in a case would raise an appearance of impropriety. However, we strongly
disagree with Complainant's assertion that Fairfax's Memorandum raises a "clear" question as
to the existence of any ex parte communication, whether direct or indirect, between Board
Member Attwood and Fairfax. Member Attwood does not know Richard D. Fairfax, and to her
knowledge has never had any direct or indirect communication with him. No Board Member has
communicated with Fairfax, and we are not aware that any member of the Administrative Review Board's
staff has communicated with Fairfax. We therefore conclude that Member Attwood's consideration of
Complainant's case would not create an appearance of impropriety because Complainant's allegation that
Member Attwood possibly engaged in ex parte communication with Richard Fairfax is baseless.
SO ORDERED.
PAUL GREENBERG Chair
E. COOPER BROWN Member
CYNTHIA L. ATTWOOD Member
[ENDNOTES]
1On June 10, 1999, the Administrative
Review Board received Complainant's Petition for Review. The caption identified the recommended
decision and order of which review is sought as ALJ case 1999-CAA- 15, issued by ALJ Larry W. Price
on June 4, 1999. The ALJ issued an order in 1999-CAA-15 on June 4, 1999, but he issued no
recommended decision and order in that case on that date. However, the ALJ did issue a recommended
decision and order in a second case involving complainant Moore, 1999-CAA- 14, on June 4, 1999. We
have spoken with Complainant's counsel by telephone and he has confirmed that his petition for review
was mis-captioned, and that he intended to petition for review of the recommended decision and order in
1999-CAA-14, rather than of the order in 1999-CAA-15.