In the petition for review, Petitioners state that they do not believe that the undersigned or "anyone in the DOL Front Office should hear this appeal" because "to do so would create an appearance of impropriety." Counsel writes:

An "appeal" of the disqualification order to you personally would constitute a nullity, since (1) your office was responsible for appointing Judge Cregar in the first place; and (2) you refused to reconsider your questionable action in "recusing" some forty (40) DOL judges contrary to the requirements of the applicable regulations, laws and Constitution. Your testimony on February 12, 2002 was redolent with your animus toward protected activity and suggests a willingness to violate Tennessee Supreme Court confidentiality rules in order to persecute protected activity. You did not rebut former DOL Chief Judge Nahum Litt's testimony, e.g., regarding the scope of First Amendment protections of counsel. See April 5, 2002 BPR panel decision.

The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, provide at section 18.31(b):

(b) Whenever any party shall deem the administrative law judge for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, that party shall file with the administrative law judge a motion to recuse. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The administrative law judge shall rule upon the motion.

   If the Petitioners wish to renew their motion for recusal, they shall file a properly formed motion, including citation of legal authority supporting the motion, and an affidavit setting forth the alleged grounds for disqualification of each judge they believe should recuse himself or herself. 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 petition for review, Petitioners request a stay of the underlying matter in 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 regulation at 29 C.F.R. § 18.36(b) provides:

(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. The administrative law judge shall state in the record the cause for suspending or barring an attorney or other representative from participation in a particular proceeding. Any attorney or other representative so suspended or barred may appeal to the Chief Judge but no proceeding shall be delayed or suspended pending disposition of the appeal; provided, however, that the administrative law judge shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney or representative.

(emphasis added). Judge Cregar's order included a 30-day stay in order to permit Judge Greene to obtain another attorney or representative. The regulation does not permit any other type of stay of the proceeding. Accordingly, the motion for a stay is denied.

   I note that Judge Cregar's order is not limited to disqualification of Mr. Slavin from appearing before Judge Cregar, but also bars Mr. Slavin from even "acting in an advisory capacity to any party to a proceeding before me in this or any other matter." Petitioners appear to challenge this aspect of Judge Cregar's order as a violation of Judge Greene's client's First Amendment right to consult with any person of her choice. Petitioners, however, have not briefed this issue, and therefore to the extent that the motion for stay is grounded on this issue, it is denied.

   Procedurally, the review of Judge Cregar's Order of Disqualification of Mr. Slavin will be conducted based upon regulations provided at 29 C.F.R. Part 18. Both petitioners shall have the right to be represented by counsel. This matter shall be expedited in view of the fact that Judge Greene only has until July 22, 2002 to obtain new counsel or to inform Judge Cregar that she needs additional time to find new counsel or to state that she will proceed pro se.

   Accordingly, no later than ten days from the date of this order, Petitioners shall:

(1) File a statement addressing why Petitioners did not default on Judge Cregar's Order to Show Cause why Mr. Slavin should not be disqualified. It appears that Petitioners' position is that copying Judge Cregar with filings made on other entities should have sufficed as a response to the Order to Show Cause. The legal basis for this position should be briefed with appropriate citations to legal authority.

(2) File a statement addressing the grounds for disqualification stated in Judge Cregar's order. Specifically, the statement shall address:

(a) Whether Mr. Slavin was properly disqualified for intentionally making false statements or for making such statements with reckless disregard for their truth. The statement shall address:

(1) On what grounds Mr. Slavin made the allegation in filings with Judge Cregar and other components of the Department of Labor, that Associate Chief Administrative Law Judge Thomas M. Burke rigged the selection process to predetermine that Judge Cregar would be assigned Judge Greene's case (on the theory that Judge Cregar would be predisposed to rule against Judge Greene), and specifically, on what ground he made the assertion that Judge Cregar was contacted prior to selection by the Office of Personnel Management as a candidate. Petitioners shall provide copies of any evidence they have to support these assertions.

(2) On what grounds Mr. Slavin continued to make these allegations in filings with Judge Cregar and other components of the Department of Labor, even after being explicitly informed by Judge Burke that the factual underpinning of his allegations were incorrect, and after being copied with documents filed by EPA indicating that his allegations were without factual basis.

(3) The legal authority regarding the ethical obligation of an attorney to be scrupulous in making truthful statements to a tribunal, whether of law or fact.

(b) Whether there is a factual issue as to whether Mr. Slavin made inappropriate, abusive and uncivil statements about Judge Cregar and Judge Burke impugning their integrity in this matter, and Judge Cregar's scholarship and demeanor, in filings made with the administrative-tribunal directly related to Judge Greene's pending whistleblower complaint. Assuming that there is no factual dispute that such statements were made, the instant statement of position shall include a legal brief on an attorney's professional responsibility to demonstrate respect for government adjudicative tribunals. If the position is taken that such speech is protected under the First Amendment, the legal briefing shall include a discussion of the distinction between in-court and out-of-court utterances under First Amendment authority relating to attorney professional responsibility.

(c) Whether there is a factual issue as to whether Mr. Slavin ignored Judge Cregar's orders to all counsel in the matter to refrain from making pejorative statements and prohibiting the use of string citations without synopses.

(3) The Petitioners have requested a hearing in Volusia County, Florida. The Petitioners' statement of position shall:

(a) Address why Petitioners did not abandon their right to a hearing when they did not respond to Judge Cregar's order to show cause. As noted above, it appears that Petitioners' position is that copying Judge Cregar with filings made on other entities should have sufficed as a response to the Order to Show Cause. The legal basis for this position should be briefed with appropriate citations to legal authority.

(b) Assuming Petitioners did not abandon their right to a hearing, the Petitioners shall detail what factual issues necessitate an oral, evidentiary hearing in Florida. If a Petitioner maintains that a factual issue exists, that party shall provide

(c) The full name and address of each witness the party proposes to call with a short summary of the witness' expected testimony.

(d) A copy of all documents which the party expects to introduce as evidence. Each document must be properly marked for identification at the bottom of each Exhibit as Petitioner (Slavin or Greene, as appropriate) Exhibit 1, 2, 3, etc., and paginated.

(4) Whether the Order of Disqualification was an appropriate sanction given what transpired in the proceeding before Judge Cregar, and the history of prior sanctioning of Mr. Slavin as recited in Judge Cregar's order.

   Failure to timely comply with this prehearing order without good cause may result in the dismissal of the proceeding or the imposition of other appropriate sanctions against the noncomplying party.

   SO ORDERED.

      JOHN M. VITTONE
      Chief Administrative Law Judge