Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Jan. 28, 2002)

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Greene v. U.S. Environmental Protection Agency, 2002-SWD-1 (ALJ Jan. 28, 2002)

UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES

DOL OALJ Case No.: 2002-SWD-00001
HUDALJ Case No. 02-01-NA

Jean F. Greene,
Complainant,

U.S. EPA Chief Judge Susan Biro, U.S.
Environmental Protection Agency (EPA),
U.S. EPA Office of Inspector General
(OIG), and U.S. EPA Office of
Administrative Law Judges (OALJ),
Respondents.

ORDER

On January 8, 2002, Complainant filed a motion for my recusal ("Motion"). Respondent Environmental Protection Agency filed its response on January 15, 2002. For the reasons set forth herein, I deny the Motion.

Complainant seeks my recusal on the stated ground that "my impartiality might reasonably be questioned"and that my recusal "will help judicial independence and the national interest." In her Motion Complainant makes two claims. First, she correctly states that I signed a Memorandum of Understanding ("MOU") with the Department of Labor's Office of Administrative Law Judges ("DOL OALJ") providing that DOL's reimbursement of HUD (Department of Housing and Urban Development) would be limited to $10,000 for this case and that it was estimated that it would take 60 days to finish the work. Second, Complainant states that "the MOU was established in secrecy, with HUD and DOL picking HUD and one of its judges to decide this case before OPM [the Office of Personnel Management] was contacted." (emphasis added.) Complainant's Motion incorporates by reference 1) her prior filings with the Department of Labor requesting my removal from this case with substitution of a DOL administrative Law judge, and 2) two rulings by DOL's Associate Chief Judge, Thomas Burke, denying this request.¹ The Motion was signed by both Complainant and her counsel, Edward A. Slavin, Jr.

Complainant states:

Without any reflection on anyone's intentions, at the very least, the Court's judicial impartiality might reasonably be questioned due to your honor's signature on questionable MOU providing for procurement of your Honor's own services by DOL OALJ for $10,000 for this one case, despite DOL's prior estimate that it would take 60 days of work on this case. The MOU virtually requires a rush to judgment ex contractu.

Motion, p.1 (exhibit references omitted).

[Page 2]

Judge Burke interpreted this statement as contending that the $10,000 limitation was both unalterable and improper. Exhibit 1 attached to EPA's response to the Motion is a January 14, 2002, letter from Judge Burke clarifying the sequence of events. Judge Burke also explains the $10,000 limitation on reimbursement to HUD for expenses in connection with this case. He states:

The $10,000 limitation was inserted because all such agreements must be limited in amount. The amount of $10,000 is a figure suggested by an administrative officer at HUD in light of her prior experience with loans of judges to other agencies. It can and will be increased if necessary. There are no restrictions on the amount of hours that Judge Cregar can devote to the case, and the Memorandum does not restrict DOL's obligation to HUD to reimburse HUD for Judge Cregar's time.

Accordingly, to the extent that Complainant bases her first claim on a purported improper $10,000 limitation in the MOU, her argument fails.

II.

Complainant's statement in the Motion that I was selected by the Office of Administrative Law Judges of DOL before it contacted OPM is simply untrue.² Judge Burke's January 3, 2002, order and his letter of January 14, 2002, directly contradict this assertion. Judge Burke's letter together with the exhibits attached to EPA's response establish the following sequence of events: On July 3, 2001, Judge Burke informally requested Raymond Limon, Acting Deputy Assistant Director of OPM ALJ to seek the loan of an ALJ outside of DOL because one of the parties to a case that was likely to come before DOL OALJ was the spouse of the former DOL OALJ Chief Judge. This initial DOL contact with OPM predated my initial contact with OPM by approximately two weeks. See January 14, 2002, letter of Judge Burke, and Declaration of Raymond Limon, Acting Deputy Assistant Director of OPM ALJ. Exhibits 1, 2 of EPA's Response. Jonathon Perez, the OPM resources specialist who contacted me, states in his declaration that on July 17, 2001, Mr. Limon assigned him the responsibility of canvassing ALJs outside of DOL and that he solicited interest from seven or eight agencies. Two candidates had disqualified themselves, one after learning the identity of one of the parties, and the other because of friendship with the judges at EPA. On or about July 17, 2001, I told Mr. Perez that I was tentatively willing to take on this case, but wanted to know more about it. On or about July 17, 2001, Mr. Perez advised me to contact Judge Burke to learn the nature of the case. See Exhibit 1 and Declaration of Jonathon Perez, Exhibit 3 of EPA's Response. Having discussed the matter with Judge Burke on July 23, 2001, I agreed to take the case and so informed Mr. Perez. See Exhibits 1, 3, and 4 of EPA's Response. The generation of the MOU and the formal letters requesting and approving my selection occurred after my July 23, 2001, agreement to take this case. See Exhibits 1-3 of EPA's Response.

[Page 3]

Complainant relies upon a three-part test for the reassignment of a remanded case to a different judge set out in United States v. Robin, 553 F.2d 8 (2nd Cir. 1977). The test is:

1) Whether the original judge would reasonably be expected on remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, 2) whether reassignment is advisable to preserve the appearance of justice, and 3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Id. at 10.

This case is inapposite to the instant case because it involves a remand of a sentencing hearing in a criminal case. This case is not on remand, and it is not a criminal case. However, even assuming, arguendo, that the law of the cited case is germane to my recusal, I conclude that no part of it applies. First, I have no views, expressed or unexpressed, concerning this case that I would have any difficulty reversing if, in fact, I am shown to be wrong. Second, for the reasons discussed above there is nothing irregular or improper in my assignment to this case. Accordingly, reassignment of this case would not be advisable to preserve the appearance of justice. Third, I have already spent time familiarizing myself with this case. Thus, reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.

Finally, in the January 24, 2002, Motion to Strike, Complainant's Counsel accuses Judge Burke of not being more forthcoming, having a selective memory, and an "unseemly attempt to influence the outcome of a recusal motion." He also claims that EPA officials have special "pull" with OPM. On behalf of Complainant he requests that Judge Burke testify under oath concerning the writing of the January 14th letter and the circumstances surrounding my appointment. I take official notice that I was not contacted concerning my loan to DOL OALJ by Judge Burke, or any other official at DOL OALJ, prior to being contacted by Jonathan Perez of OPM. Furthermore, counsel's accusations against Judge Burke and others impugn their professional integrity. An attorney who knowingly makes unfounded assertions of professional corruption against government officials, including the administrative judiciary, is guilty of improper, unprofessional, and unethical conduct.

Having considered the Motion, EPA's response, and Complainant's January 24, 2002, Motion to Strike and having concluded that Complainant has failed to demonstrate that my recusal will "help judicial independence and the national interest,"

[Page 4]

it is ORDERED

that Complainant's January 24, 2002, Motion to Strike, to the extent it applies to the Motion for my recusal; and Complainant's January 8, 2002, Motion that I recuse myself are denied.

William C. Cregar
Administrative Law Judge

Dated January 28, 2002

[ENDNOTES]

¹ The Motion states: "See Judge Green's filings and DOL Associate Judge Thomas Burke's December 21, 2001, and January 5, 2002 rulings, incorporated by reference herein." I conclude that the reference to a January 5, 2002 ruling is a typographical error because the second ruling by Judge Burke is dated January 3, 2002, and I have not received copies of any other ruling by him dated January 5, 2002. Accordingly, I have treated Judge Burke's January 3, 2002, ruling as having been incorporated by reference into the Motion.

² At the time the Motion was filed on January 8th, both Complainant and her counsel had reason to know that their statement to this effect was false. Judge Burke's January 3, 2002, "Order Denying Motion to Reconsider Denial of Motion to Reconsider," (specifically incorporated by reference in the Motion) states:

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.

Unless 1) Judge Burke, a United States Administrative Law Judge and Associate Chief Administrative Law Judge of the United States Department of Labor, was communicating a falsehood and 2) Complainant and her counsel knew that he was communicating a falsehood, (a claim they have not made), the insertion of the false statement in the Motion claiming that DOL ALJ contacted HUD before contacting OPM was improper, indeed, unethical.