Department of Labor: 04 089

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U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 In the Matter of: VINA COLLEY, COMPLAINANT, ARB CASE NOS. 04-089 05-071 1 ALJ CASE NOS. 2004-ERA-18 2004-ERA-19 v. DATE: November 15, 2005 U. S. DEPARTMENT OF ENERGY, AND SCIENCE AND ENGINEERING ASSOCIATES, INC., A wholly owned Subsidiary of Apogen Technologies, RESPONDENTS. BEFORE: Appearance: THE ADMINISTRATIVE REVIEW BOARD For the Complainant: Vina Colley, pro se, McDermott, Ohio
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, N.W.Washington, D.C. 20210 In the Matter of:VINA COLLEY, ARB CASE NOS. 04-08905-071 1 COMPLAINANT,ALJ CASE NOS. 2004-ERA-182004-ERA-19v.DATE: November 15, 2005U. S. DEPARTMENT OF ENERGY,AND SCIENCE AND ENGINEERINGASSOCIATES, INC., A wholly ownedSubsidiary of Apogen Technologies,RESPONDENTS.BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearance:  For the Complainant: Vina Colley,  pro se, McDermott, Ohio FINAL DECISION AND ORDER DISMISSING APPEALS On April 26, 2004, the Complainant, Vina Colley, filed an interlocutory appeal of the Chief Administrative Law Judge John M. Vittone’s Order refusing to accept EdwardA Slavin, Jr.’s entry of appearance in this case arising under the Energy ReorganizationAct (ERA). 2   The Administrative Review Board docketed this appeal as ARB Case No.04-089 ( Colley I  ). In response to Colley’s petition, the Board issued an Order to Show 1   The Administrative Review Board has consolidated these two appeals for purposes of disposition. 2   42 U.S.C.A. § 5851 (West 1995). USDOL/OALJ   R EPORTER P AGE 1   USDOL/OALJ   R EPORTER P AGE 2 Cause requiring Colley to explain why her appeal was not moot since the Board hadupheld Associate Chief Administrative Law Judge Thomas M. Burke’s decision suspendingSlavin’s authority to appear in a representative capacity before the Office of AdministrativeLaw Judges for at least five years from the date of the Associate Chief’s decision. 3   Thus theissue before us in Colley I  is whether Colley’s interlocutory appeal is now moot because wehave already determined that Associate Chief Burke properly refused to permit Slavin toappear before Department of Labor Administrative Law Judges. After considering Colley’sresponse to our Show Cause Order and our established precedent, 4   we find that the Colley I  appeal is moot.On March 6, 2005, Colley filed a petition asking the Board to review theRecommended Decision and Order Dismissing Complaints that an Administrative Law Judge(ALJ) issued in the same case giving rise to Colley I  . The Board docketed this case as ARBNo. 05-071 ( Colley II  ). Because Colley failed to timely file an opening brief in compliancewith the Board’s Notice of Appeal and Briefing Order, the Board ordered Colley to showcause why the Board should not dismiss her appeal. Accordingly, the issue before the Boardis whether Colley has demonstrated good cause for her failure to timely file her openingbrief. Upon consideration of Colley’s response, we find that she has failed to address thisissue and thus has failed to show good cause. B ACKGROUND   Colley I  On April 15, 2004, the Chief Administrative Law Judge issued an Order rejecting anotice of appearance filed on Colley’s behalf by Edward A. Slavin, Jr. 5   In support of thisOrder, the Chief Judge wrote:On March 31, 2004, Associate Chief Administrative LawJudge Thomas M. Burke issued an “Order Denying Authorityto Appear” in which Mr. Slavin was disqualified fromappearing in a representative capacity before OALJ, effectiveimmediately. . . . . Mr. Slavin was disqualified for conductsuch as disobeying lawful orders and neglecting deadlinesresulting in dismissal of his clients’ cases on proceduralgrounds, incompetent representation, making false statementsand misrepresentations to tribunals, vexatious and frivolouspursuit of non-meritorious claims or defenses, and improperand ex parte communications with judges. Thus, Mr. Slavin 3    In re: Edward A. Slavin, ARB No. 04-088, ALJ No. 2004-MIS-2. The Board hasalso suspended Slavin from practicing before it.  In re: Edward A. Slavin, ARB No. 04-172(Oct. 20, 2004). 4    Id. 5   Chief Administrative Law Judge’s Order at 1.   USDOL/OALJ   R EPORTER P AGE 3 will not be permitted to appear on behalf of Ms. Colley beforethis office.[ 6 ]Colley filed a petition requesting the Board to review the Chief Judge’s order. TheSecretary of Labor has delegated her authority to issue final administrative decisions incases arising under the ERA to the Board. 7 Because the ALJ has not issued his finalrecommended decision and order in this matter, Colley’s request that the Board reviewthe Chief Judge’s Order is an interlocutory appeal. The Secretary’s delegated authority tothe Board includes, “discretionary authority to review interlocutory rulings in exceptionalcircumstances, provided such review is not prohibited by statute.” 8   On June 15, 2005, the Board issued an Order to Show Cause. The Board notedthat o n April 29, 2005, it had issued a Final Decision and Order upholding the decision of Associate Chief Administrative Law Judge Burke suspending Slavin’s authority to appear ina representative capacity before the Office of Administrative Law Judges for at least fiveyears.   Thus, we ordered Colley to show cause why her appeal was not moot since, even if we accepted the appeal, recent Board precedent established that the ALJ properly refused toaccept Slavin’s entry of appearance. On June 29, 2005, the Board issued an Order Granting Extension of Time inresponse to Colley’s motion requesting an additional thirty days to respond to the Board’sOrder to Show Cause. On August 2, 2005, the Board issued another Order GrantingExtension of Time in response to Colley’s second request for an additional thirty days tofile her response to the Board’s Show Cause Order.On September 1, 2005, Colley filed a third request for an additional thirty days torespond to the Board’s Order to Show Cause. We granted Colley’s request for anadditional thirty days, but we cautioned her that barring exceptional circumstances wewould grant no further enlargements of time to respond to the Board’s Show CauseOrder. We further noted that while the Board is sympathetic to Colley’s attempts to findcounsel, we would not consider her inability to do so to be an exceptional circumstance justifying further enlargements of time. We also observed that while Colley states thatthis is a “complex case,” the only issue currently before the Board in Colley I  is whetherher interlocutory appeal of the ALJ’s refusal to allow Slavin to represent her is mootgiven that we have affirmed Judge Burke’s decision suspending Slavin from practicebefore the Office of Administrative Law Judges for five years. Finally we cautioned 6    Id. 7 Secretary’s Order 1-2002 (Delegation of Authority and Responsibility to theAdministrative Review Board), 67 Fed. Reg. 64272 (Oct. 17, 2002). See also 29 C.F.R. §24.8. 8    Id  . at 64273.   USDOL/OALJ   R EPORTER P AGE 4 Colley that if she failed to timely file a response to the Board’s Show Cause Order , theBoard might dismiss her appeal without further order. Colley filed a consolidatedresponse to the Board’s Orders to Show Cause in Colley I  and Colley II  on September 30,2005. Colley II  On March 3, 2005, an ALJ issued a Recommended Decision and OrderDismissing Complaints (R. D. & O.) in this case. The ALJ recommended that thecomplaints be dismissed because he found that Colley had failed to cooperate with hisefforts to schedule a hearing. Colley refused to agree to a trial date until such time asSlavin was permitted to represent her, and she requested a stay until such time as Slavin’svarious appeals are resolved. Colley filed a petition requesting the Board to review theALJ’s R. D. & O.In response to the petition, the Board issued a Notice of Appeal and OrderEstablishing Briefing Schedule on March 17, 2005. Accordingly to the Board’s Order,Colley was required to file an opening brief on or before April 18, 2005. Colley failed tofile a brief in accordance with the Board’s Order.On June 15, 2005, the Board ordered Colley to show cause why the Board shouldnot dismiss her appeal for failure to file an opening brief. On June 29, 2005, the Boardissued an Order Granting Extension of Time in response to Colley’s motion requesting anadditional thirty days to respond to the Board’s Order to Show Cause. On August 2,2005, the Board issued another Order Granting Extension of Time in response to Colley’ssecond request for an additional thirty days to file her response to the Board’s ShowCause Order.On September 1, 2005, Colley filed a third request for an additional thirty days torespond to the Board’s Order to Show Cause. We granted Colley’s request for anadditional thirty days, but we cautioned her that barring exceptional circumstances wewould grant no further enlargements of time to respond to the Board’s Show CauseOrder. We noted that while we are sympathetic to Colley’s attempts to find counsel, wewould not consider her inability to do so to be an exceptional circumstance justifyingfurther enlargements of time. We also stated that while Colley contends that this is a“complex case,” the only issue currently before the Board is whether the Board shouldexcuse her failure to timely file her brief. We informed Colley that we would considerthe merits of her case only if she files a timely response to the Show Cause Order and if the Board decides that she has justified her failure to timely file her brief. We cautionedColley that if she failed to file a timely response to the Board’s Show Cause Order , theBoard might dismiss her appeal without further order. As indicated above, Colley filed a joint response to the Colley I  and Colley II  Show Cause Orders on September 30, 2005.
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