In re Kevin M. Tracy and Susan M. Jeannette (agency decision, August 15, 2019)

Plain-English summary

The Chief Administrative Law Judge, acting as chair of the Board of Alien Labor Certification Appeals, barred Susan M. Jeannette from representing clients before BALCA and ordered her to stop using letterhead resembling the Office of Administrative Law Judges' letterhead. Jeannette asked the Administrative Review Board to review that ruling under an H-1C regulation. The Board held that the Secretary's delegation did not authorize it to review OALJ representative-debarment proceedings. It also explained that the cited H-1C provision concerns certain employer appeals involving nurses and does not cover a representative's alleged misconduct in permanent labor-certification proceedings. The Board denied the petition for lack of review authority.

Decision snapshot

• Cited authority: 20 C.F.R. § 655.1245
• Outcome: Petition for review denied because the Board lacked authority to review the BALCA ruling.
• Key point: The ARB's broad appellate portfolio does not include an OALJ representative-debarment proceeding without a specific delegation or statutory or regulatory review provision.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  IN THE MATTER OF:


  KEVIN M. TRACY, Esq.                                ARB CASE NO.      2019-0075
  Law Office of Kevin M. Tracy,
                                                      ALJ CASE NO.      2017-MIS-00001
      and
                                                      DATE: August 15, 2019
  SUSAN M. JEANNETTE,
  Representative
  North County Legalization Services, Inc.


                    ORDER DENYING PETITION FOR REVIEW

         This matter arises out of a Judicial Inquiry and Hearing regarding the
  qualifications of Mr. Kevin Tracy and Ms. Susan Jeannette (Petitioner) to continue
  representing clients before the Board of Alien Labor Certification Appeals (BALCA).
  On June 11, 2019, the Chief Administrative Law Judge (CALJ), U.S. Department of
  Labor, in his capacity as the Chair of BALCA, barred Ms. Jeanette from appearing
  before the BALCA and ordered her to cease using letterhead that is similar to that
  used by the Office of Administrative Law Judges (OALJ) when drafting documents.
  On July 9, 2019, Petitioner requested the Administrative Review Board review the
  decision of the CALJ “pursuant to 20 C.F.R. Section 655.1245.” 1 On July 25, 2019,
  Mr. Tracy objected to Petitioner’s filing as untimely and for using the letterhead
  prohibited in the order by the CALJ.




  1      Petition to Request Review of Decision by Chief Administrative Law Judge, at 1.



         The Secretary of Labor has delegated authority to this Board to conduct
  appellate review of dozens of types of ALJ decisions. 2 However, the Secretary did
  not provide for appellate review of OALJ debarment proceedings in the order
  creating the Board, and there is no other authority for such review in either the
  Code of Federal Regulations or United States Code. The single basis for review cited
  by Petitioner, i.e., 20 C.F.R. § 655.1245, applies only to certain types of employer
  appeals under the H-1C nonimmigrant visa program that provides qualified
  nursing professionals for narrowly defined health professional shortage areas; the
  cited section does not authorize appellate review of attorney debarment decisions by
  the CALJ based upon Petitioner’s apparent misconduct in proceedings involving a
  completely different program, i.e., the labor certification process for permanent
  employment of aliens in the United States under 29 C.F.R. Part 656.

        In the absence of any authority to review the decision by the CALJ, the Board
  hereby DENIES Ms. Jeanette’s petition for review.

         SO ORDERED FOR THE BOARD.


                                            William T. Barto
                                            Chief Administrative Appeals Judge


  Questions regarding any case pending before the Board should be directed to the
  Board’s Paralegal Specialists: Telephone: (202) 693-6200, Facsimile: (202) 693-6220




  2     Secretary’s Order No. 1-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (April 3, 2019).