Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Date issued: July 26, 2002
In the Matter of the disqualification of
EDWARD A. SLAVIN, JR.,
Counsel for Complainant in
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
ORDER OF RECUSAL
This matter arises out of a complaint filed by former Administrative Law Judge Jean F. Greene, alleging that the United States Environmental Protection Agency (EPA) took discriminatory actions against her in violation of the whistleblower provisions of the Safe Drinking Water Act, 42 U.S.C. § 300j-9, the Solid Waste Disposal Act, 42 U.S.C. § 6971, the Toxic Substances Control Act, 15 U.S.C. § 2622, the Clean Air Act, 42 U.S.C. § 7622, and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9610.
Petitioner Slavin argues that the management of the Department of Labor Office of Administrative Law Judges decided that it would seize the opportunity of Judge Greene's request that her case be assigned to a judge who was appointed to DOL subsequent to the retirement of Chief Judge Litt to concoct a conspiracy between EPA, OPM, DOL and HUD to have Judge Cregar appointed to this case so that Judge Cregar could curry favor in support of a bid to become Chief ALJ at HUD by supporting EPA's alleged program to retaliate against Judge Greene for protected activity. In other words DOL OALJ's decision to use the OPM ALJ loan program to select a presiding ALJ was in reality an elaborate charade to mask the real purpose of assisting EPA in retaliating against Judge Greene. My recusal is mandated therefore, so goes the theory, because I was part of this conspiracy.
[Page 6]
The Federal judicial recusal standard, although not by its terms applicable to Federal ALJs, provides guidance on how an ALJ should consider a motion to recuse. See generally Chianelli v. Environmental Protection Agency, 8 Fed.Appx. 971, 979-980 (Fed. Cir. 2001), cert. denied, 122 S.Ct. 570, 151 L.Ed.2d 442 (2001). Under the Federal judicial recusal standard at 28 U.S.C. § 455, "a judge is not compelled automatically to accept as true the allegations made by the party seeking recusal." In re Martinez-Catala, 129 F.3d 213, 220 (1st Cir. 1997). The Federal judicial recusal standard stated at section 455(a) "requires recusal wherever the objective circumstances create an appearance of partiality. This does not mean that required recusal can be based on an 'unsupported, irrational, or highly tenuous speculation.' In re United States, 666 F.2d at 694." Id.
The same reasons that led the DOL OALJ to seek a judge outside the Department of Labor to hear the case on the merits should govern as well the instant issue involving disqualification of Judge Greene's counsel. Although I have no actual bias for or against Judge Greene in this matter, a disinterested observer might reasonably question whether I would be able to impartially decide the case because my personal and professional relationship with the former Chief Judge and Judge Greene herself. Accordingly, I must recuse myself on this ground.
Judge Litt's support of Mr. Slavin
Mr. Slavin and Judge Litt assert that I should recuse myself because I am angry at Judge Litt for his support of Mr. Slavin before the Tennessee Board of Professional Responsibility hearing in February 2002. Judge Litt testified at the hearing on Mr. Slavin's behalf. In his testimony, Judge Litt expressed strong criticism of the Department of Labor's processing of whistleblower cases. More specifically, he criticized prior Secretaries of Labor, the ARB, and specific judges at the DOL OALJ. My reaction to Judge Litt's testimony is not anger, but disappointment that he chose to denigrate his former colleagues and the agency that employed him for over 15 years. Moreover, although I certainly recognize his right to voice criticism, I believe that those criticisms are not meritorious and misrepresent the way in which whistleblower cases have been handled by all agencies within the Department of Labor.
Although I do not believe that my exasperation with Judge Litt for his position in the Tennessee Board proceedings would cause me to be unable to judge fairly in the instant appeal, it could be viewed by a disinterested person as an objective sign that I have lost the ability to judge impartially in a case involving Judge Litt or his wife, Judge Greene.
My decision to "recuse" all DOL ALJs was beyond my authority
My consent to Judge Burke's decision to use the OPM ALJ loan program to select a judge outside DOL to preside in this matter to avoid the appearance of impropriety could, possibly, be viewed by a reviewing court as beyond my authority. Potential legal error in this respect, however, would only establish that I was mistaken about the limits of my ability to manage case assignments at OALJ -- it in no way establishes that I had bias that compels recusal. Rather, it illustrates only that OALJ was attempting to go out of its way to avoid the perception of bias.
My reference to "sharp practices" by Mr. Slavin
Mr. Slavin requested a last minute extension of time to file a response to the Prehearing Order in this appeal. That request was based, in part, on his having a brief due before another ALJ on the same day that the response in the instant proceeding was due. The request did not mention that he was also requesting an extension of time from the other ALJ, which request was in fact orally granted by the other ALJ within a few hours of receipt. Mr. Slavin did not report to me that he had been granted an extension in the other case. As noted above, a judge may form a negative opinion of a litigant or attorney in the course of an adjudication. Mr. Slavin's lack of candor about the situation with the due date for briefing in the other case was a sharp practice, and my observation that it was is not a ground for recusal.12[Page 10]
1 Judge Litt was Chief Judge at the Department of Labor from 1979 to 1995. Litt Declaration at ¶ 1. See also n.11 of this Order of Recusal, infra, for a more detailed explanation of the circumstances creating the concern for an appearance of lack of impartiality if a DOL ALJ was assigned to hear this case.
2 In his response to the Prehearing Order, Mr. Slavin requests subpoenas "to secure documents" but does not explain what documents he is seeking. Slavin Response at 22. It must be clarified, however, that the Prehearing Order was not an invitation to now litigate what should have been presented to Judge Cregar but merely a direction to explain why Petitioners had requested an evidentiary hearing in Florida on the appeal. Moreover, the present appeal is about Mr. Slavin's conduct -- principally, did he or did he not in filings before Judge Cregar intentionally make false statements about Judge Cregar's appointment or make such statements with reckless disregard for the truth. The appropriateness of Mr. Slavin's conduct depends on the facts or lack thereof as known to Mr. Slavin at the time he made the charge. The hearing of his appeal is not an opportunity to fish for after-the-fact justifications -- he either had proof of misconduct when he made the charge or he did not. Thus, whether he could find evidence to support his theory now would not be relevant to in the instant proceeding.
On July 26, 2002, Petitioners filed a supplement to the prehearing response, seeking to add Judge Cregar to the witness list for the hearing they requested on the appeal, and indicating that he would testify about "apparent" misconduct by Judge Cregar. The motion to supplement the pre-hearing response is denied because it was filed ten days after the due date for the prehearing response and is therefore untimely, and because this appeal is about Mr. Slavin's conduct and not about Judge Cregar.
3 About one hour after the filing of the response to the Prehearing Order, this Office received an unexplained fax from Mr. Slavin containing what appears to be a replacement page for the final page of Judge Litt's affidavit, with Judge Litt's signature. The original fax did not have a signature affixed to this page.
4 Judge Greene's fax is evidently in clarification of page 26 of Mr. Slavin's original fax submission, which indicates that Judge Greene was verifying under penalty of perjury that the facts set forth in the filing were true, correct and accurate to the best of her knowledge, information and belief. Page 26 of the original filing does not have Judge Greene's signature affixed thereto, whereas the subsequent fax and later regular mail filing does.
5 In the Prehearing Order, I also directed: "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 response to the Prehearing Order, Mr. Slavin and Judge Litt made several references to a Tennessee Board of Professional Responsibility hearing, but did not submit verified copies of transcripts or make pinpoint citations to the record of that hearing.
6 Many paragraphs of Mr. Slavin's prehearing response are unclear as to their purpose, or were not related to the issues presently on appeal or recusal, or were such generalized statements of law or other platitudes that they provided no illumination on the instant proceeding.
Mr. Slavin also spends a fair amount of the response complaining about alleged Department of Labor "desuetude" enforcement of whistleblower laws. There is no explanation, however, of why such alleged desuetude would support my recusal, or have anything to do with whether he engaged in misconduct before Judge Cregar. See Slavin Response at ¶¶ 39-46, 54, 55. See also Williams v. United States Department of Labor, 879 F.2d 327 (8th Cir. 1989) (administrative delay is not presumptive evidence of ALJ bias mandating reassignment absent evidence that the delay was designed to harass the claimant in particular).
7 The reader should be aware that Mr. Slavin's definition of protected First Amendment rights includes, for example, contemptuous and insulting statements about presiding judges, opposing counsel and other litigants made in court filings; ex parte communications designed to intimidate judges; filing frivolous motions to recuse and peer review complaints; refusals to comply with lawful orders with which he disagrees; and spreading information presented as fact about judges with reckless disregard for the truth of the information. Although I directed in the Prehearing Order that Petitioners brief the distinction between in-court and out-of-court utterances under First Amendment authority relating to attorney professional responsibility, Mr. Slavin's response assiduously stays away from this issue (see Slavin Response at p. 19) -- and with good reason because the law clearly would not support his version of what constitutes protected speech when it is made inside a court proceeding. See, e.g., Greene v. U.S. Environmental Protection Agency, 2002-SWD-1, nn.13-16 and surrounding text (ALJ June 20, 2002); Ramsey v. Board of Prof'l Resp. of the Sup. Ct. of Tenn., 771 S.W.2d 116, 121-122 (Tenn. 1989), cert denied, 493 U.S. 917, 110 S.Ct. 278, 107 L.Ed.2d 258 (1989). Mr. Slavin's citation of Republican Party of Minnesota v. White, 122 S.Ct. 2528, 70 USLW 4720 (June 27, 2002), is not relevant, as it concerns speech by judicial candidates for public office, not speech by attorneys in court proceedings. See Slavin Response at ¶ 7.
9 Judge Litt's declaration includes an unfortunate passage in which he states that the reason Petitioners do not believe that the appointment was made without "steering" the case to the "right agency"is that during his tenure as Chief ALJ that what he always did. Litt Declaration at ¶ 6. Implicit in this statement is the notion that all Chief ALJs plot to select judges who will promote a hidden agenda of the Chief Judge.
To my knowledge, during Judge Litt's tenure there was never occasion to use the ALJ loan program for purposes of avoiding the appearance of impropriety. Rather, Judge Litt always used the program when there were an insufficient number of DOL ALJs to handle an existing caseload -- an entirely different context for invoking the OPM ALJ loan program. I sincerely doubt that Judge Litt would have been so corrupt as to rig a judge selection to promote a private agenda, and I attribute the suggestion in his declaration that he would have engaged in such misconduct -- and therefore I obviously would do the same -- as a momentary lapse in judgment caused by his zeal in trying to justify Mr. Slavin's conduct. If, by chance, Judge Litt actually meant what his declaration implies in this passage, all I can say is that such management views cannot reasonably be imputed to the present management of DOL OALJ based solely on a theory that all court managers are manipulators.
10 Mr. Slavin attempts to make an issue of the fact that a Hearing Committee of the Tennessee Board recommended dismissal of some of the complaints filed by the Tennessee Board Bar Counsel, including the one based on my referral. Slavin Response at ¶ 4. All this illustrates, however, is his lack of candor. Mr. Slavin omits that he was found guilty of other misconduct directly arising out of DOL OALJ and ARB whistleblower adjudications for which the Committee recommended a public censure. This conduct includes giving false statements regarding a client's illness to obtain a continuance, making false statements to opposing counsel during a deposition about the identity of a person attending that deposition, failing to communicate with clients and delaying the return of files, and ignoring the orders of a Federal District Court Judge who was presiding over an action to collect attorney fees that the ARB had ordered repaid by Mr. Slavin to a Respondent. In re Edward A. Slavin, Jr., No. 2000-1185-0-LC (Judgment of Hearing Committee, Disciplinary District of the Board of Professional Responsibility of the Supreme Court of Tennessee, Apr. 8, 2002). Moreover, the Tennessee Board has taken an appeal of that Hearing Committee's recommendation, including the findings made based on my referral. Therefore, the question of whether his past conduct before DOL OALJ specified in my referral constituted unprofessional behavior under the Tennessee rules is not yet resolved, and it is indisputable that although the Committee did not find that the instances of conduct referred by me had been established adequately by the Board, it did find misconduct based on the referrals of other persons and the federal District Court Judge. Moreover, even if the Tennessee Supreme Court ultimately finds that Mr. Slavin did not violate Tennessee rules of professional conduct in DOL OALJ proceedings, it is obvious that the Board of Professional Responsibility believed that the referred conduct was serious enough to merit pursuit of a complaint.
11 Although Judge Burke described in this, and a subsequent order what transpired as "recusal," use of the term recusal may have confused Petitioners. A court has general management authority to take actions to avoid the appearance of impropriety in the interests of justice that are not subject to the strict application of "recusal" rules -- that is, a court can choose to avoid assignment of particular cases to particular judges when the public interest would be better served by avoiding that assignment. See Chianelli v. Environmental Protection Agency, 8 Fed.Appx. 971, 980-981 (C.A. Fed. 2001), cert. denied, 122 S.Ct. 570, 151 L.Ed.2d 442 (2001) (Merit Systems Protection Board has the authority to reassign a case to another ALJ on remand based on an allegation of bias, even where recusal would not be required). Thus, Judge Litt's argument that the Chief ALJ does not have the authority to decide recusal for all individual judges is correct, but also off the mark, as it is not the basis for the actions taken here. I do not purport to be able to decide recusal motions for individual judges nor do I assert that every ALJ at DOL would have been required to recuse himself or herself in this case if a recusal had been filed with that judge individually. As manager of the court, however, I have the responsibility to make judgments about circumstances where avoidance of appearance of impropriety mandates that certain assignments be avoided.
Moreover, the present case is an extreme one. Judge Litt was Chief Judge for an extended period and was well-known as a forceful manager who made many friends, but also a few enemies. His departure from OALJ was under the cloud of a Merit Systems Protection Board action brought by the then Deputy Secretary of Labor to remove him from his position as Chief Judge, in part based on an allegation that Judge Litt abused his office by directing his law clerk to draft a decision for Judge Greene under the false pretext that there was a resource sharing agreement between EPA and DOL OALJ. Judge Litt has consistently denied misconduct, and the MSPB action was dismissed based on a settlement -- but the circumstances of his departure are well known in the office. Although about seven years have passed since Judge Litt's departure, the great majority of the permanent staff still employed by OALJ -- both ALJs and support staff -- knew Judge Litt and were appointed during his tenure. Moreover, both Judge Litt and Judge Greene had, and continue to have, a personal friendship with many judges and staff of DOL OALJ. At the time that the case was docketed before this office, Judge Litt's niece was employed by DOL OALJ as a well-liked legal intern. Thus, although DOL OALJ may have appointed several ALJs after Judge Litt's departure who did not know Judge Litt or Judge Greene personally, it would be almost impossible to adjudicate this particular case at OALJ without Judge Litt's legacy not being a factor. As Judge Burke aptly stated, the OPM ALJ loan program was used "to focus the proceedings on the merits of the Complainant's case" rather than on the presiding judge's potential for partiality.
The allegations made by Petitioners since December 2001 well illustrate one of the concerns I had at the time that DOL OALJ learned that Judge Greene would probably have a whistleblower case appealed for hearing by this office: the potential for an argument that I -- or one of the Associate Chief Judges who also have long histories with Judge Litt and Judge Greene -- would hand pick a judge with a view toward finding a judge likely to make the case come out a particular way (with the concern being equally that this office would potentially be perceived as having too favorable a view of Judge Litt and Judge Greene). Avoiding this kind of accusation is the very reason DOL OALJ choose to use OPM to select a non-DOL trial judge.
12 My perception of Mr. Slavin engaging in sharp practices in regard to his request for an extension of time has only been reinforced since that time. Obtaining extensions of time from both me and Judge Wood permitted Mr. Slavin to use the day the filings on both cases were originally due to write two Freedom of Information Act requests directed at this office and one directed at the Solicitor of Labor. Each of these FOIA requests have the transparent purpose of sending a message that Mr. Slavin intends to use allegations of misconduct by OALJ and other DOL agencies to immunize himself from sanctions for his behavior.
13 DOL OALJ no longer maintains a Deputy Chief Judge position.
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
Date issued:
In the Matter of the disqualification of
EDWARD A. SLAVIN, JR.,
Counsel for Complainant in
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
ORDER OF REFERRAL
The United States Department of Labor's Chief Administrative Law Judge has referred the above-captioned matter to me with a recommendation that the Petitioners' appeal of Edward A. Slavin, Jr.'s disqualification as attorney for the Complainant Jean F. Greene pursuant to 29 C.F.R. § 18.36(b) be referred to the Administrative Review Board by special mandate under 29 C.F.R. § 18.1(a). See Holub v. H. Nash Babcock & King, Inc., 1993-ERA-25 (Sec'y Feb. 6, 1995). The reason for the recommended referral is that, although the applicable regulation provides for such an appeal to be decided by the Chief Judge, the unique circumstances of this particular case require his recusal and prevent referral to an Associate Chief Judge because they both would also be required to recuse themselves. Petitioners requested in their motion to recuse that either the Secretary or the ARB decide the appeal.
Accordingly, pursuant to 29 C.F.R. § 18.1(a), and in the interests of justice, I refer the instant appeal of disqualification to the ARB for decision.
[Editor's note: Secretary Chao's signature does not appear on this suggested order ] ELAINE L. CHAO
Secretary of Labor