In re 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
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant and for Counsel:
Edward A. Slavin, Jr., Esq., St. Augustine, Florida
1 Judge Cregar was temporarily and intermittently detailed by the Office of Personnel Management from HUD to assist the Department of Labor Office of Administrative Law Judges by hearing the above-noted whistleblower complaint, pursuant to 5 U.S.C.A. § 3344 (West 1996), implemented at 5 C.F.R. § 930.213 (2001). At that time, Judge Cregar was the Acting Chief Administrative Law Judge for HUD. See Ord. of Disqualif. at 1.
2 This aspect of the ALJ's order is consistent with the reporting by Federal courts and agencies of attorney misconduct and disciplinary sanctions against attorneys to licensing jurisdictions, as an aid to state bar authorities in the exercise of their oversight responsibilities. See generally ABA Model Code of Judicial Conduct, Canon 3D, Disciplinary Responsibilities; 61 Fed. Reg. 65323, 65330-31 (Dec. 12, 1996) (Final rule, 29 C.F.R. Part 102, National Labor Relations Board, discussing NLRB policy of notifying state bar authorities of disciplinary sanctions the agency has imposed on attorneys).
3 As noted by the Secretary's Order of Referral, the same circumstances that support recusal of Chief Administrative Law Judge Vittone also prevent referral of this matter to the Associate Chief Administrative Law Judge, and warrant substitution of this Board pursuant to 29 C.F.R. § 18.1(b). See Order of Recusal at 10-11, 13.
4 On June 28, 2002, and thus before Judge Vittone's July 26, 2002 Order of Recusal and the Secretary's August 19, 2002 Order of Referral, the Complainant filed a Petition for Review of Illegal Disqualification Order and Motion to Consolidate Appeals with the ARB. At that time, Complainant's petition for review of the ALJ's interlocutory order refusing to recuse himself in the Greene case was pending before the ARB. See Greene v. EPA Chief Susan Biro, United States Envtl. Prot. Agency, ARB No. 02-050, ALJ No. 02-SWD-1 (ARB Ord. Dismissing Interlocutory Appeal, Sept. 18, 2002). Our decision in this matter addresses the sanctions recommended by the ALJ under both 29 C.F.R. § 18.34(g)(3) and § 18.36. This decision thus disposes of the challenge to the ALJ's disqualification order in totowhich was advanced by the Petition for Review of Illegal Disqualification Order that was filed on June 28, in addition to the Section 18.36 issue, which was specifically referenced in the Secretary's Order of Referral.
5 The ALJ noted that the Tennessee Bar Association had proposed that the Tennessee Supreme Court adopt new rules of professional conduct that are basically identical to the MRPC. Ord. of Disqualif. at 18 n.10. Those rules have now been adopted by the Tennessee Supreme Court, effective March 1, 2003. In re Tennessee Rules of Professional Conduct, ___ S.W.3d ___, No. M2000-02416-SC-RL-RL (Tenn. Sept. 17, 2002).The ALJ also noted that the substantive differences between the former Tennessee Code of Professional Responsibility, which was based on the ABA Model Code of Professional Responsibility, and the more recent MRPC is not significant for purposes of the ALJ's disqualification analysis. Compare Tenn. Sup. Ct. Rules, Rule 8 (2002) (incorporating with minor modifications the MRPC) with Model Rules of Prof'l Responsibility (1983).
6 In the July 26, 2002 supplemental response to Chief Judge Vittone's Prehearing Order, the Petitioners do not advance any further argument regarding the merits of the Order of Disqualification, but do add Judge Cregar to the list of witnesses that the Petitioners would call to testify if a hearing were held in this Section 18.36(b) appeal, along with the subjects about which he would be expected to testify. Comp. July 26, 2002 Supp. Resp. to Prehearing Ord.
7 Section 18.29 does provide authority for an ALJ, "where authorized by statute or law," to seek enforcement of remedial action if "any person in proceedings before an adjudication officer disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same . . . ." through Federal District Court action. 29 C.F.R. § 18.29(b). Such enforcement action is not involved in this case, however, and the ALJ obviously invoked only the "General powers" provision of Section 18.29(a).
8 Chief Judge Vittone's predecessor, Nahum Litt, was the Chief Administrative Law Judge at that time.
9 The substantive issue in Holub was whether an attorney should be excluded from representing a party in a whistleblower case based on the attorney's contemporaneous representation of the then-Chief Administrative Law Judge in another forum. The Secretary reversed the administrative law judge's disqualification order based on the determination that no impermissible ex partecommunications had occurred, that there was no actual ethical conflict in the attorney's concurrent representation of the party in the whistleblower case and the Chief Administrative Law Judge in another forum, and that the "threat of taint" to the whistleblower proceeding was remote. Holub, slip op. at 4-8.
10 In Stack, the Secretary also noted that the Section 18.34(g)(3) denial of authority to appear provision is expressly inapplicable to a party acting pro se. Stack, slip op. at 8 n.12.
11 Section 18.34(g)(1) describes the professional licensing requirements imposed on attorneys who practice before the Department of Labor Office of Administrative Law Judges. 29 C.F.R. § 18.34(g)(1).
12 Section 1292(b) of Title 28 of the United States Code provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order.
The OALJ regulation that outlines the procedure for seeking disqualification of an administrative law judge provides no indication that the Plumley principle would not be equally applicable to an interlocutory appeal taken from a judge's denial of a motion for his disqualification. 29 C.F.R. § 18.31.
13 Three of the cases involved whistleblower complaints that were appealed to the ARB following adjudication by a DOL administrative law judge and in which both the administrative law judge and the ARB addressed Counsel's misconduct. Ord. of Disqualif. at 8-12.
14 Our examination of the documents cited by the ALJ confirms the accuracy of his recitation of Counsel's statements. See Comp. Notice of Filing in Support of Motion for Recon. and Supp. Citations RE: Ex Parte HUD-OPM-DOL MOU dated Jan. 2, 2002 at 2-5; Comp. Request for Leave to Respond to Respondents' Jan. 2 & 3, 2002 Filings in form of ltr. to J. Burke dated Jan. 3, 2002; Comp. Notice of Filing and Motion to Strike Improper Filings dated Jan. 24, 2002 at 1-2; Comp. ltr. dated Jan. 9, 2002 to Secretary of Labor Elaine L. Chao at 2-4.
15 Complainant's Notice of Filing and Motion RE: Judge Cregar's Status, which was filed with the ALJ on January 8, 2002, listed five factors as support for the assertion that, "[T]he MOU was established in secrecy, with HUD and DOL picking HUD and one of its judges to decide this case before OPM was contacted." The motion states that DOL OALJ:
(1) commenced private communications between HUD and DOL on judicial selection of Judge Cregar in this case while this case was still pending before OSHA, commencing July 23, 2001 (CX-9 at 34-37). DOL and HUD talked before DOL ever sought or received approval from OPM to hire a judge from another agency. (2) obtained a "draft letter" from OPM on July 26, 2001 (CX-9A at 2, enclosed);
(3) requested OPM approval on July 31 (CX-9 at 30-31);
(4) got OPM approval two days later, on August 2, 2001 (CX-9 at 29): even though it
(5) did not disclose to OPM the name of the case or parties and other information that OPM's form letter requires. Compare CX-9Aat 2 to CX-9 at 30-31.
Complainant's Notice of Filing and Motion RE: Judge Cregar's Status at unnumbered p. 1 (emphasis in original).
16 The two January 11, 2002 statements in the record from OPM officials Jonathan Perez and Raymond Limon indicate that it is standard practice for OPM to initiate a canvassing of candidates under Section 930.213 after OPM has received oral or informal notice of an agency's intention to request a detailee under Section 930.213 but before OPM has received a formal written request from the agency. U.S. Environmental Prot. Agency's Resp. to Comp. Motion RE: J. Cregar's Status at Exhs. 2, 3. The Limon and Perez statements are consistent with Judge Burke's letter to counsel of January 14, 2002, which provides a more detailed account of communications surrounding the assignment of the ALJ to hear the Greene case than do the two orders issued by Judge Burke regarding the issue on December 21, 2001 and January 3, 2002. Id. atExh. 1. The Perez and Limon statements indicate that OPM frequently must contact a number of administrative law judges to find an available detailee and that finding a judge to hear the Greene case was complicated by the fact that the Complainant was at that time a sitting administrative law judge and her spouse was formerly chief administrative law judge at DOL. Id. at Exhs. 2,3. Consequently, OPM encountered difficulty in finding administrative law judges who were available for loan under Section 930.213 who did not have the same familiarity with the Complainant and/or her spouse that had precluded assignment of the Greene case to any of the DOL administrative law judges. See id.
17 If the Petitioners intend to assign error on any of the bases cited in the above-quoted statement from the Complainant's July 16, 2002 Response to Prehearing Order at 19, they should do so with particularity and in connection with pursuit of the Greene whistleblower complaint itself. Our review of the orders issued by the ALJ after the November 2, 2001 telephonic prehearing conference yields no "eight-page order," as is referred to by the Petitioners in the prehearing response. The ALJ's order that summarizes the prehearing conference, which was issued on November 13, 2001, is five pages in length and the ALJ's OSC, issued January 28, 2002, is four pages.