Department of Labor: 05 003

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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 the Qualifications of EDWARD A. SLAVIN, JR., PETITIONER. ARB CASE NO. 05-003 ALJ CASE NO. 2004-MIS-5 DATE: November 30, 2005 BEFORE: Appearance: THE ADMINISTRATIVE REVIEW BOARD For the Petitioner Edward A. Slavin, Jr., pro se, St. Augustine, Florida FINAL DECISION AND ORDER BACKGROUND On February 11, 2004, the Supreme Court of Tennessee issued an order suspending Mr.
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, N.W.Washington, D.C. 20210 USDOL/OALJR EPORTER P AGE 1  In the Matter of the Qualifications of  EDWARD A. SLAVIN, JR.,ARB CASE NO. 05-003PETITIONER.ALJ CASE NO. 2004-MIS-5DATE: November 30, 2005BEFORE:THE ADMINISTRATIVE REVIEW BOARD Appearance:  For the Petitioner Edward A. Slavin, Jr., pro se, St. Augustine, Florida FINAL DECISION AND ORDERB ACKGROUND On February 11, 2004, the Supreme Court of Tennessee issuedanordersuspending Mr. Slavin from the privilege of practicing law for two years. 1 Consequently,on August 31, 2004, the United States Department of Labor Chief Administrative LawJudge (CALJ) issued an order directing Mr. Slavin to show cause why the Office of Administrative Law Judges should not give reciprocal effect to the Tennessee SupremeCourt ’ s suspension order.On September 28, 2004, the CALJ,citing the Supreme Court ’ s 1  Board of Prof. Resp. of the Sup. Ct. of Tenn. v. Slavin , 145 S.W.3d 538 (Tenn. 2004).The Court srcinally provided that Mr. Slavin could petition for reinstatement at theexpiration of one year from the date of its opinion. But on November 3, 2005, the Board of Professional Responsibility of the Supreme Court of Tennessee ordered that Mr. Slavin bedisbarred.  In re: Edward A. Slavin, Jr., BPR #012341, Docket No., 2002-1320-0-LC. Mr.Slavin has sixty days from the date the Board issued the decision to appeal it. Tenn. Sup. Ct.Rule 9 § 8.3 (West 2005).  USDOL/OALJR EPORTER P AGE 2 decision in Selling v.Radford  2 issued aDecision and Order Suspending Attorney (D. &O.) according the Supreme Court ’ s suspension order reciprocal effect. 3 On October 3,2004, Mr. Slavin filed a petition requesting the Administrative Review Board to reviewthe CALJ ’ s decision. 4 On October 20, 2004, we issued a Final Order Suspending Attorney from PracticeBefore the Administrative Review Board in which, after evaluating the case under the Selling criteria, we gave reciprocal effect to the Tennessee Supreme Court ’ s decision andaccordingly, suspended Mr. Slavin ’ s privilege to practice before the Board for theremainder of the time that he is suspended from the practice of law by the TennesseeSupreme Court. 5 Mr. Slavin did not appeal the Board ’ s Final Order. 2 243 U.S. 46 (1917). In Selling , the Court held that it would give reciprocal effect to astate court disbarment unless the disbarred attorney establishes thatfrom an intrinsic consideration of the state record, one or allof the following conditions should appear: 1. that the stateprocedure, from want of notice or opportunity to be heard,was wanting in due process; 2, that there was such aninfirmity of proof as to facts found to have established thewant of fair private and professional character as to give riseto a clear conviction on our part that we could not,consistently with our duty, accept as final the conclusion onthat subject; or 3, that some other grave reason existed whichshould convince us that to allow the natural consequences of the judgment to have their effect would conflict with the dutywhich rests upon us not to disbar except upon the convictionthat, under the principles of right and justice, we wereconstrained so to do.  Id. at 50-51. 3  In the Matter of the Qualifications of Edward A. Slavin, Jr. , No. 2004-MIS-5. 4 Mr. Slavin also asked the Board to take “  judicial notice ” of  “ former DOL chief JudgeNahum Litt telling ABA that I am being ‘ persecuted ’ and he “ renew[ed] my pending motionsfor recusal and to disclose ex parte contacts ” and to “ stay any action of  ‘ reciprocal discipline ’  until such time as a hearing is finally held before an independent 5 U.S.C. § 3105 adjudicatorand the matter of the Tennessee Supreme Court decision and stay request is resolved by theU.S. Supreme Court. ” Petition for Review of Judge Vittone ’ s Illegal Order, Motion forJudicial Notice, Notice of Filing, Renewed Motion to Disclose  Ex Parte Contacts, RenewedMotion for Recusal and Motion for Stay. 5  In the Matter of the Qualifications of Edward A. Slavin, Jr., ARB No. 04-172, slipop. at 13.  USDOL/OALJR EPORTER P AGE 3 The Board must now decide whether Mr. Slavin has provided the Board with acompelling reason to depart from our previous decision that the Tennessee SupremeCourt ’ s suspension is entitled to reciprocal effect. Concluding that he has not, we affirmthe CALJ ’ s decision to accord reciprocal effect to the Tennessee Supreme Court ’ ssuspension of Mr. Slavin ’ s privilege to practice law. J URISDICTION AND S TANDARD OF R EVIEW The Board ’ s jurisdiction to review the CALJ ’ s D. & O.suspending Mr. Slavinfrom practicing before the Office of Administrative Law Judges derives from theSecretary ’ s delegation of authority to the ARB to review recommended decisions of administrative law judges in whistleblower cases. 6 With the exception of four whistleblower statutes, the Board reviews de novoboth the factual findings and the legal conclusions on which an administrative law judge ’ s recommended whistleblower decision is based. 7 The regulations implementingthe four exceptions limit the Board ’ s review of an administrative law judge ’ s factualfindings. 8 Specifically, those regulations require the Board to adopt the administrativelaw judge ’ s factual findings if they are supported by substantial evidence considered onthe record as a whole. 9 Because the various whistleblower programs within the ARB ’ s jurisdiction require differing standards of review, we have determined thatde novoreview of the CALJ ’ s factual findings and legal conclusions is appropriate. 10 We willthus provide Mr. Slavin with the fullest possible benefit of the Board ’ s review regarding 6 Secretary ’ s Ord. 1-2002, ¶ 4.c., 67 Fed. Reg. 64272, 64273 (Oct. 17, 2002); see 29C.F.R. § 24.8; 29 C.F.R. §§ 1978.109(c), 1979.110, 1980.110, 1981.110; see generallyIn the Matter of the Qualifications of Edward A. Slavin, Jr., ARB No. 04-172, slip op. at 7-8(Secretary ’ s delegation of authority encompasses responsibility for Board to ensure theintegrity of proceedings before it). 7 Compare 29 C.F.R. § 24.8 with 29 C.F.R. §§ 1978.109(b)(3), 1979.110(b),1981.110(b) (2004); Notice of Final Rule, 29 C.F.R. Part 1980, 69 Fed. Reg. 52104, 52116(Aug. 24, 2004) (text of § 1980.110(b)). 8 The four exceptions are as follows: the Surface Transportation Assistance Act, 49U.S.C.A. § 31105 (West 1997); the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century, 49 U.S.C.A. § 42121(West Supp. 2005); the Sarbanes-Oxley Act of 2002,18 U.S.C.A. § 1514A (West 2003); and the Pipeline Safety Improvement Act of 2002, 49U.S.C.A. § 60129(a) (West Supp. 2005). 9 29 C.F.R. §§ 1978.109(b)(3), 1979.110(b), 1981.110(b) (2004); Notice of Final Rule,29 C.F.R. Part 1980, 69 Fed. Reg. 52104, 52116 (Aug. 24, 2004) (text of § 1980.110(b)). 10  Accord In the Matter of the Qualifications of Edward A. Slavin, Jr., ARB No. 04-088,slip op. at 3 (Apr. 29, 2005).  USDOL/OALJR EPORTER P AGE 4 those aspects of the D. & O. D ISCUSSION 1. Petitioner ’ s Motions As an initial matter we will consider the Motions that Mr. Slavin filed with hispetition for review. Mr. Slavin hasasked the Board to take “  judicial notice ” of  “ formerDOL Chief Judge Nahum Litt telling ABA that I am being “ persecuted. ” While we couldtake judicial notice of the fact that the ABA Journal eReportstatedthat Litt had made thereported declaration, judicial notice may not be used to circumvent the rules of hearsay andthus judicial notice could not be used to establish the truth of Litt ’ s statement. Therefore wedeny Mr. Slavin ’ s motion that we take judicial notice of Litt ’ s statement.As to Mr. Slavin ’ s intention to “ renew my pending motions for recusal and todisclose ex parte contacts, ” no such motions are currently pending before the Board, sothere are no such motions to renew. In any event, we have twice denied such motions inprior cases involving Mr. Slavin ’ s suspension from practice 11 and it is thus unnecessaryfor us to further address these motions.Finally we deny Mr. Slavin ’ s request that we “ stay any action of  ‘ reciprocaldiscipline ’ until such time as a hearing is finally held before an independent 5 U.S.C. § 3105adjudicator and the matter of the Tennessee Supreme Court decision and stay request isresolved by the U.S. Supreme Court. ”   Mr. Slavin has averred neither facts nor legalauthority that supports his contention that the CALJ is not independent, and we have foundno factual or legal basis to grant Mr. Slavin ’ s motion. Furthermore, we take judicial noticeof the United States Supreme Court docket that indicates that Justice Stevens denied Mr.Slavin ’ s application for a stay on October 4, 2004, and that although Justice Stevens grantedan application for an extension of time to file a petition for a writ of certiorari until February19, 2005, Mr. Slavin failed to file a petition. 2. Reciprocal effect of the Tennessee Supreme Court ’ s suspension The CALJ in giving reciprocal effect to the Tennessee Supreme Court ’ ssuspension of Mr. Slavin pursuant to the Selling factors 12 concluded that, “ Mr. Slavin ’ sresponse to the Order to Show Cause does not establish that the Tennessee proceedings 11  In the Matter of the Qualifications of Edward A. Slavin, Jr  ., ARB No. 04-088, slipop. at5 ; In the Matter of the Qualifications of Edward A. Slavin, Jr., ARB No. 04-172, slipop. at 2, 4-6. 12 See n.2, supra .
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