Who is running the Trump Department of Labor? Ostensibly, it’s Secretary of Labor Gene Scalia. And, ostensibly, Kate O’Scannlain is running the DOL Solicitor’s office. After all, she is the Solicitor.
However, the DOL’s unwillingness to let go of its baseless discrimination case against Oracle suggests that leftist career employees are in control of that litigation, and who knows what else.
It has been obvious all along that, under any proper statistical analysis, Oracle has not discriminated against minority group members and females with regard to pay. This conclusion was confirmed in a thorough opinion by an administrative law judge. I posted a key excerpt from that decision here.
The DOL has the right to appeal this case to its administrative review board. Under the rules it has 14 days to decide whether to do so.
The decision shouldn’t require more than 14 hours. The DOL’s case is a bad joke. The political appointees from Scalia on down surely recognize this.
Yet, incredibly, the Solicitor’s office has asked for a 75-day extension. That would push the deadline past the November election.
The excuse for the request is that the ALJ’s opinion is long (300 pages) and the record is voluminous. True. But Solicitor O’Scannlain already knows the record; it’s her job to know it in a major case like this. And Secretary Scalia, having attempted to settle the case, knows the facts.
When I was a government appellate lawyer, the office I worked in made recommendations on whether to recommend the appeal of cases lost by the agency at trial, often on voluminous records with which we had no prior familiarity. Most of the time we had never heard of the case until after the trial. It never required 14 days to make the call.
The notion that 75 days are needed in the DOL’s case against Oracle is absurd. Either the ALJ was right about the defects in the DOL expert’s statistical methodologies or he erred in rejecting her analyses. (The DOL’s expert was Dr. Janice Madden, a notoriously out-there, pro-plaintiff witness.) That’s what the decision to appeal hinges on. This assessment can be made in a matter of days, if not hours.
It was a disgrace that the Trump DOL forced Oracle to defend this action, filed by the radical Obama DOL on its way out the door. The decision to pursue the matter after Trump took office is best understood in terms of the desire of then-Secretary Alex Acosta to stay on the good side of liberals — a trademark of his career.
The case should have been dropped as soon as Acosta departed, and certainly as soon as Gene Scalia became the Senate-confirmed replacement more than a year ago. Reportedly, Scalia did try to settle the case. For this, the New York Times, relying on complaints by leftist DOL employees, called him out.
The Scalia DOL’s pursuit of the case is best understood as kowtowing by Scalia and O’Scannlain to leftists in the Solicitor’s office and, perhaps, to a desire not to be hammered again by important mainstream media outlets.
No rational person likes to become the enemy of subordinate employees or to receive negative press. That’s why left-wing bureaucrats and their media allies have succeeded in intimidating, and getting their way with, Republican political appointees for decades.
The Trump administration was supposed to be different. The promise to “drain the swamp” was always unrealistic. But it wasn’t too much to expect that Trump’s appointees would at least refuse to bow to the swamp’s denizens.
Bill Barr at the Justice Department is willing to take on the entrenched left-wing bureaucracy. I’m pretty sure that, had Andy Puzder become Labor Secretary, he would have done so, as well. Acosta and Scalia have been a different story.
Fortunately, it takes no backbone to pull the plug on the Oracle case, now that the ALJ has done the hard work. I hope Scalia and O’Scannlain have what little it does take to end the matter.
Maybe they do. It’s discouraging, though, that they are trying to prolong the agony by seeking a 75-day extension.