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Labor Chief Nominee Scalia Faces Recusal on Worker Safety Issues

July 26, 2019, 9:26 AM

Labor Department secretary nominee Eugene Scalia likely would have to recuse himself from involvement in ongoing OSHA lawsuits in which he—or members of his law firm—represented clients if he is confirmed, ethics and labor law attorneys said.

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.

President Donald Trump announced July 18 he intended to nominate Scalia to the open post. Alexander Acosta resigned as DOL secretary on July 12 in the wake of growing criticism of how he handled the 2008 human trafficking case of Jeffrey Epstein while he was the U.S. attorney for southern Florida.

Executive Order

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 Elena Kagan became a Supreme Court justice in 2010, she couldn’t rule on cases she had handled while solicitor general for the Justice Department during the Obama administration.

Kathleen Clark, an ethics law professor at Washington University in St. Louis, said the executive order, generally, isn’t interpreted as covering policy decisions, meaning Scalia likely could participate in such decisions even if he represented clients on them.

Mark Gaston Pearce, an attorney who served 10 years on the National Labor Relations Board through 2018—including five years as chairman—said that when he joined the board, he recused himself from participating in cases he had handled in private practice.

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 Century Aluminum Co. of Chicago in a lawsuit seeking to have the Occupational Safety and Health Administration revise its requirements for protecting manufacturing workers from toxic breathable beryllium metal dust.

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.

To contact the reporter on this story: Bruce Rolfsen in Washington at

To contact the editors responsible for this story: Phil Kushin at; Terence Hyland at