How dare you, Gene Scalia!


We have written before about the Department of Labor’s action against Oracle for alleged pay discrimination. In my view, the case against Oracle is without merit.

It was brought by the Obama administration, based on specious statistical analyses. The Trump administration should have promptly dismissed the action, but former Secretary of Labor Alex Acosta, not wanting to alienate the left or the mainstream media, allowed holdovers from the Obama administration to pursue the case, full steam ahead.

Gene Scalia is the current Labor Secretary. According to the DOL regional attorney assigned to the case, Scalia wanted to settle the matter, pre-trial, for less than $40 million. She says she voiced her objection to settling for such a “low” figure.

The regional attorney is Janet Herold. She is an Obama-era “career appointee” — in other words, an Obama holdover. In reporting on her claims, the New York Times tries to hide her political status by calling her a “career employee.”

Herold has filed a complaint alleging that Scalia broke with normal department practice in seeking a settlement of the Oracle case. She further alleges that, because she objected to this, Scalia seeks to reassign her to a job with the Occupational Safety and Health Administration that does not involve litigation, her specialty. According to Bloomberg, Herold was informed earlier this month that she will be reassigned, but the move has not been finalized.

The Oracle case did not settle. It went to trial. A decision has yet to be rendered.

The extent to which Scalia became involved in settlement negotiations with Oracle is unclear. It shouldn’t matter. The Secretary of Labor has every right to involve himself in litigation the Department has filed, including settlement posture.

If the Secretary concludes that a case filed under the watch of a predecessor lacks merit, he should have the case dismissed. If he thinks the Department’s demand for damages is out of line with the merits, he should try to settle the case for what he thinks it’s worth.

If he thinks the case lacks merit but wants to respect the work of attorneys on the case, settlement for relatively small amount may be considered as a way out. This, I suspect, is what was going on here.

Do you think that a Biden-Harris Department of Justice will continue to prosecute every action being pursued by William Barr’s team, and pursue all of them in the way Barr’s holdover attorneys (if any) wish? Of course it won’t.

Do you think the New York Times will write sympathetically about a holdover member of Barr’s team who objects to the involvement of Biden-Harris Justice Department officials in pending cases, or about the transfer of such an employee? Of course it won’t.

Janet Herold’s problem is that she doesn’t understand (or pretends not to) how our constitutional system of government is supposed to work. Under our system, the federal government is supposed to operate according to the direction of the executive — the President — and the officials he appoints.

Accordingly, officials appointed by the president are not required to turn discretion over to unelected, unaccountable bureaucrats, including bureaucrats appointed during an administration that no longer holds political power. Nor should presidential appointees cede all discretion to this lot.

To the extent Scalia’s conduct is subject to reasonable criticism, it’s because he hasn’t been willing to dismiss the case against Oracle. But it’s Scalia whom President Trump appointed to run the Labor Department, so the call is his, not mine — or that of the lawyers who work for him.



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