Labor Department secretary nominee
Such recusals wouldn’t likely have a major impact on the direction of Occupational Safety and Health Administration policy, however. That’s because Scalia likely wouldn’t be restricted from participating in general policy discussions or decisions on issues involved in cases in which he or other members of the law firm, Gibson Dunn & Crutcher LLP, have or presently are representing clients, the attorneys said.
So while he wouldn’t be able to be directly involved in cases against OSHA on beryllium metal dust exposure and an agency rule prohibiting some workplace safety incentive programs and drug-testing practices, he would be able to participate in policy decisions on those issues.
The main directive affecting Scalia’s recusal would be a Trump administration executive order (E.O. No. 13,770), said Robert Walker, of counsel with Wiley Rein LLP in Washington and former chief counsel of the Senate and House ethics committees.
“This is going to be the big one,” Walker said of the order.
The order says that for two years after appointees resign from a law firm or a consulting firm, they must recuse themselves from participating in any matters in which their former law firm represents a party.
“It’s not unusual for this to happen,” said Michael Kirkpatrick, an attorney with Public Citizen Litigation Group in Washington. As an example from a past administration, Kirkpatrick recalled that after
He said his advice to newly nominated or hired people at the board was simple: “Err on the side of recusal.”
The details of Scalia’s recusal agreement will be written in consultation with the Office of Government Ethics and the Department of Labor’s Office of Legal Counsel, Walker said.
The agreement will be released as part of the Senate’s confirmation process. The Senate is expected to be in recess during August and no confirmation hearing date has been set.
Toxic Dust to Drug Testing
Scalia recently has represented metal producer
OSHA and Century are negotiating to settle the lawsuit. According to a July 3 status report to the court, Century and OSHA believe that they are close to finalizing an agreement.
In a separate lawsuit, Scalia filed a June 12 friend-of-the-court brief on behalf of the National Association of Manufacturers and others, asking a judge to overturn provisions of a 2016 OSHA rule prohibiting employers from having safety incentive programs and drug-testing practices that could pressure workers not to report injuries to supervisors.
In that case, attorneys for the government and industry groups challenging the rule have filed motions for the judge to decide in their favor. There has been no indication from the judge on when he’ll rule on the requests.
Public Citizen attorney Kirkpatrick said he would expect Scalia to recuse himself from discussions about the case. “He has clearly taken a position on it,” Kirkpatrick said.
Kirkpatrick said the recusal should extend to several other lawsuits involving other aspects of the rule. The other lawsuits include disputes over whether OSHA must make public annual injury and illness reports employers are required to provide OSHA. “Clearly, he has discussed all aspects of the rule with clients,” he said.