IN THE MAITER OF 

Ivy Ong and Carlo World Wide 

Operations LLC, 

Respondents. 

Notice of Violation: NOV-07-02 

OHA Docket No. NIGC 2007-1 (Pfister) 

Civil Fine Assessment: CFA-07-02 

OHA Docket No. NIGC 2007-2 (Pfister) 

Final Decision and Order 

January 18,2008 

On appeal to the National Indian Gaming Commission ("Commission") from a 

notice of violation and proposed civil fine assessment issued by the Chairman of the 

Commission to Ivy Ong and Carlo World Wide Operations LIAC ("Respondents") for 

managing without an approved contract in violation of 25 U.S.C $ 27 11 and 25 C.F.R. 

$9 533.1 - 533.3 and for improperly holding a proprietary interest in Indian gaming 

activity in violation of 25 U.S.C. $2710 (b)(2)(A); 25 C.F.R. $ 522.4@)(1); and the gaming 

orhnance of the Seminole Tribe of Oklahoma, Seminole Nation Public Gaming Act, 

Title 15, Section 1 1. 

Appearances 

Ivy Ong and Carlo World Wide LLC, pro se. 

Maria Getoff, Esq., and Rebecca Chapman, Esq., for the Chairman, National 

Indian Gaming Commission. 

Presidrg Official 

Thomas K. Pfister, Office of Hearings and Appeals, U.S. Department of the 

Interior. 

NATIONAL HEADQUARTERS 1441 L St. NW, Suite 9100. Washlngton. DC 20005 Tel: 202.632.7003 Fax: 202.632.7066 www.NlcC.GOV 

REGIONAL OFFICES Portland, OR; Sacramento. CA; Phoenix. AZ; St. Paul, MN; Tulsa. OK 
FINAL DECISION AND ORDER 

After careful and complete review of the agency record and the Presiding 

Official's recommended decision, the Commission finds and orders that: 

1. The Chairman issued a notice of violation, NOV-07-02, to Respondents on May 

16,2007, for managing without an approved contract and improperly holding a 

proprietary interest in Indian gaming activity. 

2. Respondents filed a pleading styled as a "request for dismissal" of NOV-07-02 on 

June 13,2007, and a proper notice of appeal from NOV-07-02 on June 15,2007. 

3. The Chairman issued a proposed civil fine assessment of $5,150,000, CFA-07-02, 

to Respondents on June 15,2007. 

4. Respondents filed a notice of appeal from CFA-07-02 on July 13, 2007. 

5. Respondents did not file the supplemental statements required by 25 C.F.R 

577.3(c) for either appeal. Respondents thus failed to prosecute the appeals and 

have waived the right to bring them. 

6. Respondents failed to respond to a series of communications and orders from the 

Presiding Official designated for these appeals and thus clearly and unequivocally 

abandoned the appeals. 

7. The appeals of NOV-07-02 and CFA-07-02 are hereby dismissed with prejudice. 

8. Notice of violation NOV-07-02 is upheld. 

9. Civil fine assessment CFA-07-02 is upheld and made final. 

DISCUSSION 

We adopt the thorough and well-reasoned recommended decision of the 

Presiding Official, attached, and add only the following few comments. First; the 

Presiding Official correctly finds that the failure to file the supplemental statement 

required by 25 C.F.R. fj 577.3(c) is, by itself, a sufficient reason to dismiss. A notice of 

appeal filed under 25 C.F.R. fj 577.3@) simply puts the Chairma.n and the Commission 

on notice of an appeal from a particular notice or order. It is the supplemental statement 

NOV 07-02 and CFA-07-02, decision and order 

Pg. 2 
that, despite its name, provides the substance of the appeal. The statement must state 

"with particularity the relief desired and the grounds therefore" and must include 

supporting evidence, if available. 25 C.F.R. $ 577.3(c). The failure to file a supplemental 

statement is akin to a failure to file an appellate brief before a United States Court of 

Appeals. Such a failure to prosecute an appeal is a waiver of the opportunity for appeal 

presented by 25 C.F.R. Part 577. See, e-g, Ahlberg v. HHS, 804 F.2d 1238, 1243 (Fed. 

Cir. 1986); ViRids Laboratories v. USPS, 464 F. Supp. 976, 981-982 (S.D.N.Y. 1979). 

Second, Respondents' dismissal of their attorney and their subsequent utter 

failure to respond to a long series of correspondence and orders from the Presiding 

Official, not to mention the Chairman's motion to dismiss, is an equally sufficient ground 

for dismissal. The record clearly and unequivocally shows, and the Presiding Official 

correctly found, that Respondents abandoned these appeals. 

Third and finally, the Presiding Official correctly concluded that the 

Commission, and not a presiding official, has the authority to dismiss an appeal as a final 

agency action. Such authority is not given to a presidng official by 25 C.F.R. Part 577. 

Further, The Administrative Procedure Act ("APA") 5 U.S.C. $5 70 1 et seq., makes the 

recommended decision of a presiding official contingent, and it becomes the decision of 

the agency only in the absence of further agency action. Similarly, the Indian Gaming 

Regulatory Act, 25 U.S.C. $5 2701-272 1 (ccIGRA") makes only the appellate decisions of 

the Commission, not those of presiding officials, final agency actions. 25 U.S.C. 

$$27 13(a)(2), 27 14. 

NOV 07-02 and CFA-07-02, decision and order 

Pg. 3 
CONCLUSION 

Respondents appeals of NOV-07-02 and CFA 07-02 are dismissed. NOV-07-02 

is upheld. CFA-07-02 is upheld and made final. 

It is so ordered by the NATIONAL INDIAN GAMING COMMISSION on this & 

day of January, 2008. 

/* 

,./ - , 

; 

NOV 07-02 and CFA-07-02, decision and order 

Pg. 4 
2 

United States Department of the Interior 

OFFICE OF HEARINGS AND APPEALS ==PT 

WELSA Hearings Division TAKE PRIDE 

INAMERICA 

Bishop Henry Whipple Federal Building 

1 Federal Drive. Suite 3600A 

St. Paul, MN 55 1 1 1-4040 

DEC 1 9 2007 

National Indian Gaming Commission 

1441 L St. NW 

Ninth Floor 

Washington, DC 20005 

Re: In the Matter of Ivy Ong and Carlo World Wide Operations, LLC - - . - - - - - W-TrnV? 703; r1(7c-233jJ 7-2,-c';;1-:(77:D-- -- 

Dear Madame or Sir: 

In regard to the above-referenced appeals, please find enclosed a Recommended 

Decision that NIGC Chairman's Motion to Dismiss Appeals be Granted. Please advise as to 

whom I should send the Administrative Record. 

Sincerely, 

gk. e 

Thomas K. Pfister 

Administrative Judge 

cc: 

Ivy Ong, Individually 

Ivy Ong, Manager, Carlo World Wide Operations, LLC 

(via facsimile transmission: (760) 806-4839) 

Maria Getoff, Esq. 

Rebecca Chapman, Esq. 

National Indian Gaming Commission 

National Headquarters 

1441 L Street, NW, Suite 9100 

Washington, DC 20005 
UNITED STATES DEPARTMENT OF THE INTERIOR 

OFFICE OF HEARINGS AND APPEALS 

DEC 1 9 2007 

IN THE MATTER OF ) Docket No. NIGC 2007- 1 

) Notice of Violation: NOV-07-02 

IVY ONG AND CARLO ) 

WORLD WIDE OPERATIONS, LLC ) Docket No. NIGC 2007-2 

) Civil Fine Assessment CFA-07-02 

Respondents. ) 

) Indian Gaming Regulatory Act, 

) 25 U.S.C. $8 2701-2721 

RECOMMENDED DECISION THAT NIGC CHAIRMAN'S 

MOTION TO DISMISS APPEALS BE GRANTED 

The National Indian Gaming Commission (NIGC) Chairman has filed a Motion to 

Dismiss Appeals. The NIGC Chairman moves to dismiss the above-referenced appeals due 

to Respondents' failure to perfect and pursue their appeals. Respondents have not filed any 

response or opposition to the motion. The motion is well-taken. The Presiding Official 

recommends that the NIGC Commission grant the motion and dismiss Respondents' appeals 

with prejudice. 

BACKGROUND 

The above-referenced matters arise from Respondents' appeal of the NIGC 

Chairman's Notice of Violation (NOV), NOV-07-02, and from their appeal of the NIGC 

Chairman's Proposed Civil Fine Assessment (CFA), CFA-07-02.' 

The NIGC Chairman issued NOV-07-02 on May 16,2007. On June 14,2007, 

Respondents' counsel filed an Entry of Appearance and a Request for Dismissal. 

Respondents filed their appeal of NOV-07-02 on June 15,2007. Respondents did not file the 

supplemental statement required to be filed within ten days of their appeal of NOV-07-02 

pursuant to 25 C.F.R. 9 577.3(c). 

I While these appeals have not been consolidated generally, the appeals are based on 

common facts and legal issues and, therefore, are consolidated here for the purpose of this 

recommended decision. 
On June 15,2007, the NIGC Chairman issued CFA-07-02. Respondents filed their 

appeal of CFA-07-02 on July 1-3,2007. Respondents did not file the supplemental statement 

required to be filed within ten days of their appeal of CFA-07-02 pursuant to 25 C.F.R. 

5 577.3(~).~ 

An Order Granting Withdrawal, issued November 9, 2007, allowed Kevin Combs, 

Esq. to withdraw as Respondents' co~nsel.~ Respondents were ordered to file, within ten 

days of the Order, a statement containing the following information: 

(1) indicating whether the Respondents intend to pursue their appeals 

of these matters and, if so, whether the Respondents intend to proceed 

individually or through counsel; and, 

(2) providing a service address and facsimile telephone number for 

each Respondent. 

Respondents did not file the required ~taternent.~ 

- .-- -- An T5rtEer Granting tKe Parties' Jooint Motion to ~xtendBeadIines, issued 

2007, set various pre-hearing deadlines. This Order set December 4,2007, as the deadline 

for the following pre-hearing matters: 

1. Date by which each party shall file a list containing 

the names of those persons it expects to call as witnesses 

at the hearing in this matter (including expert witnesses), 

. . 

Respondents' appeal of CFA-07-02 also contained a waiver of their right to a hearing 

within 30 days. On July 2, 2007, Respondents waived their right to a hearing within 30 

days regarding their appeal of NOV-07-02. These waivers of the 30-day hearing 

requirement pursuant to 25 C.F.R. tj 577.4(a), however, did not affect Respondents' 

obligation to file supplemental statements pursuant to 25 C.F.R. 4 577.3(c). 

The Order Granting Withdrawal directed Kevin Combs, Esq. to forward a copy of the 

Order to Respondents upon his receipt of the Order. A Certification filed by Kevin Combs 

Esq. on November 29, 2007, indicates that he successfully faxed the Order to Respondents 

on November 12,2007. 

In response to an Order to File Certification, issued November 28,2007, Respondents' 

former counsel provided a facsimile number for Respondents, as a service address. 

Subsequent service upon Respondents by the Presiding Official has been to the facsimile 

telephone number provided by their former counsel. Even though the facsimile number 

provided by their former counsel appears to be forwarding to another telephone number, 

confirmation of successful receipt has been received. Service by facsimile is effective in 

these appeals. 25 C.F.R. 577.6(b). 
including the identification of the subject matter upon which 

such persons are expected to testify ("witness list"): 

2. Date by which each party shall file a list identifying 

the exhibits it expects to offer into evidence at the hearing 

in this matter ("exhibit list"): 

3. Date by which each party shall file reports of expert witnesses 

it expects to call as witnesses at the hearing in this matter 

(other than rebuttal witnesses): 

Respondents did not comply with this deadline. 

On December 6,2007, the undersigned Presiding Official issued an Order to Show 

Cause. The Show Cause Order provided that Respondents' conduct, as referenced above, 

appears to constitute a waiver of their right to an oral hearing pursuant to 25 C.F.R. 

3 577.3(c). Therefore, Respondents were afforded five days to show cause as to why they - - -- - - --hme~f&wa+vedtkeirYi~ft omt-m-rrgxrrdta ~&OW cause-aSfnWry Their appeals 

should not be foharded to the NIGC Commission for a decision solely on the basis of 

written submissions. 

The Show Cause Order also allowed Respondents five days to show cause as to why 

their Request for Dismissal should not be denied for failure to file a supporting brief. The 

Show Cause Order also suspended all remaining deadlines set forth in the Order Granting the 

Parties' Joint Motion to Extend Deadlines, issued August 23,2007, until the issues in the 

Show Cause Order are resolved. Respondents did not file any response to, nor have they 

otherwise complied with, the Show Cause Order.6 

Following the filing of the NIGC Chairman's Motion to Dismiss Appeals, the 

undersigned Presiding Official issued, on December 10, 2007, an Order Setting Briefing 

Schedule. This Order allowed Respondents five days to file a response to the NIGC 

Chairman's motion. The Respondents have not filed any response to the motion and, thus, 

have conceded the motion. 

The Order Granting the Parties' ~oint Motion to Extend Deadlines, issued August 23, 

2007, set a deadline of November 12,2007, within which Respondents could file an opening 

brief in support of their Request for Dismissal. Respondents have not filed an opening brief. 

Given the recommendation that these appeals be dismissed, a ruling on the procedural 

and hearing related issues set forth in the December 6,2007 Order to Show Cause is 

unnecessary and is reserved for a future ruling should the Presiding Official's dismissal 

recommendation be rejected and these appeals be remanded to the Presiding Official. 
ANALYSIS 

In his Motion to Dismiss Appeals, the NIGC Chairman asserts that Respondents' 

appeals should be dismissed with prejudice. The NIGC Chairman argues that Respondents 

have failed to perfect their appeals by not filing supplemental statements. The NIGC 

Chairman further asserts that Respondents have abandoned not only their right to a hearing, 

but their appeals generally, by their repeated failure to comply with orders. I agree. 

Respondents' failure to comply with the Presiding Official's case management orders 

have interfered with the administration of these appeals. The NIGC Chairman has been 

prejudiced by Respondents' failure to file a statement regarding their intent to proceed with 

their appeals, which they were ordered to submit in the Order Granting Withdrawal. 

Respondents' failure to advise whether they intend to proceed with their appeals has wasted 

time and resources of the NIGC Chairman and the Presiding Official. The NIGC Chairman 

has been prejudiced by Respondents' failure to file their Witness List, Exhibit List, or Expert 

Report pursuant to the August 23,2007, Order Granting the Parties' Joint Motion to Extend 

Deadlines. Respondents' failure in this regard has hampered the NIGC Chairman's ability to 

- - - - 

The record substantially supports a finding that, in addition to waiving their right to 

an oral hearing, Respondents have, through their conduct, abandoned their appeals 

altogether. I also conclude that Respondents have failed to perfect their appeals of NOV-07- 

02 and CFA-07-02 by their failure to file the required supplemental statements. Therefore, 

the NIGC Chairman's motion should be granted and Respondents' appeals should be 

dismissed. This conclusion, however, raises a procedural issue regarding the proper 

mechanism for dismissal. 

The regulations under which these appeals are adjudicated, 25 C.F.R. Part 577 -- 

APPEALS BEFORE THE COMMISSION ("Part 5777, are silent regarding the specific 

mechanism for dismissal of appeals in the present circumstances. Even so, certain provisions 

of Part 577 evidence a structure by which appeals, such as the instant ones, are to be 

adjudicated. For instance, a notice of appeal is to be filed with the NIGC Commission, rather 

than the Presiding Official. 25 C.F.R. tj 577.3(a). The NIGC Commission then designates a 

Presiding Official to conduct a hearing. Id, 5 577.4(a). Section 577.7(b), setting forth the 

authorities of a Presiding Official when conducting a hearing, confers on the Presiding 

Official the authority to dispose of procedural requests; to recommend decisions in 

accordance with tj 577.14 of Part 577; and to take other actions authorized by the 

Commission consistent with Part 577; among other authorities, but does not provide any 

authority to grant dispositive motions. Id. § 577.7(b)(8), (b)(9), and (b)(10). 

The only provision in Part 577 allowing an action of a Presiding Official to constitute 

final agency action is 25 C.F.R. § 577.9(d), pertaining to settlement agreements. This section 

provides that the Presiding Official's certification of consent findings in a settlement 

agreement shall constitute dismissal of the appeal and final agency action. Thus, the overall 
structure of Part 577 leads me to conclude that the NIGC Commission, not the Presiding 

Official, has sole authority to grant a motion to dismiss and dismiss an appeal as final agency 

action. Part 577 confers on the Presiding Official only the authority to make 

recommendations to the NIGC Commission regarding the granting of a dispositive motion, 

such as the NIGC Chairman's Motion to Dismiss appeal^.^ 

RECOMMENDATION 

Therefore, the Presiding Official recommends that the NIGC Commission grant the 

NIGC Chairman's Motion to Dismiss Appeals and dismiss Respondents' appeal of NOV-07- 

02 with prejudice and dismiss Respondents' appeal of CFA-07-02 with prejudice. 

Done at Saint Paul, Minnesota 

KE. e - - - -- . - -- - - - -.-- 

THOMAS K. PFISTER - A&mj*i-Sft-aeVe j-uagge - - - - - 

Presiding Official 

NOTICE 

25 C.F.R. § 577.14(b) provides as follows: 

(b) Filing of objections. Within ten (10) days after the date of service of the 

presiding official's recommended decision, the parties may file with the 

Commission objections to any aspect of the decision, and the reasons therefor. 

As opposed to the denial of a motion to dismiss, which a Presiding Official could issue 

because the denial of such a motion does not constitute final agency action. 
CERTIFICATE OF SERVICE 

I hereby certify that on DEC 1 9 2007 , a copy of the foregoing was sent, via facsimile 

transmission, to the following: 

Ivy Ong, Individually 

Ivy Ong, Manager, Carlo World Wide Operations, LLC 

(760) 806-4839 

and a copy was sent, via facsimile transmission and first class mail, to the following: 

Maria Getoff, Esq. 

Rebecca Chapman, Esq. 

National Indian Gaming Commission 

National Headquarters 

1441 L Street, NW, Suite 9100 

Washington, DC 20005 -- - - -- --- -- - - - - - ---- - - --- - - - - - - - - 

and a copy was sent, via first class mail, to the following 

National Indian Gaming Commission 

1441 L St. NW 

Ninth Floor 

Washington, DC 20005 

Employee 

U.S. Department of the Interior 
CERTIFICATE OF SERVICE 

I, GR.A N l&l F)'?A GU /3 , certify that the foregoing Final Decision and Order 

and Recommended Decision to Respondent's appeal of NOV-07-02 and CFA 07-02, In the 

Matter of Iv Ong and Carlo World Wide Operations LLC, was sent by facsimile transmission 

and U.S. Postal Service First Class mail this &day of January, 2008, to the following: 

Ivy Ong, Individually 

Ivy Ong, Manager, Carlo World Wide Operations, LLC 

C/O Brian Ong 

1442 Irvine Avenue 

Newport Beach, California 92660 

Fax #: (760) 806-4839 

Thomas K. Pfister, Administrative Judge 

Presiding Official 

United States Department of the Interior 

Office of Hearings and Appeals 

WELSA Hearings Division 

Bishop Henry Whipple Federal Building 

1 Federal Drive, Suite 3600A 

St. Paul, MN 55111-4040 

Fax #: 612-725-1856 

and a copy Hand-Delivered to: 

Maria Getoff, Esquire 

Rebecca Chapman, Esquire 

National Indian Gaming Commission 

Office of the General Counsel 

1441 L Street, NW, Suite 9100 

Washington, DC 20005 

~atioLa11ndian Gaming Commission 

Office of the General counsel 

1441 L Street, NW, Suite 9100 

Washington, D.C. 20005 

(202) 632-7003