    [Senate Hearing 117-265]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-265

                        NOMINATIONS OF CATHY A. HARRIS,
                   TRISTIAN L. LEAVITT, AND RAYMOND A. LIMON

    =======================================================================

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                   HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

            NOMINATION OF CATHY A. HARRIS TO BE A MEMBER AND CHAIR,
            MERIT SYSTEMS PROTECTION BOARD, TRISTIAN L. LEAVITT AND
         RAYMOND A LIMON TO BE MEMBERS, MERIT SYSTEMS PROTECTION BOARD
                                   __________

                               SEPTEMBER 22, 2021

            Available via the World Wide Web: http://www.govinfo.gov

                           Printed for the use of the
            Committee on Homeland Security and Governmental Affairs

                      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                        U.S. GOVERNMENT PUBLISHING OFFICE

    47-627 PDF                WASHINGTON : 2022

            COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                       GARY C. PETERS, Michigan, Chairman
    THOMAS R. CARPER, Delaware           ROB PORTMAN, Ohio
    MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
    KYRSTEN SINEMA, Arizona              RAND PAUL, Kentucky
    JACKY ROSEN, Nevada                  JAMES LANKFORD, Oklahoma
    ALEX PADILLA, California             MITT ROMNEY, Utah
    JON OSSOFF, Georgia                  RICK SCOTT, Florida
                                         JOSH HAWLEY, Missouri

                       David M. Weinberg, Staff Director
                        Zachary I. Schram, Chief Counsel
                          Claudine J. Brenner, Counsel
                        Nikta Khani, Research Assistant
                    Pamela Thiessen, Minority Staff Director
        Andrew Dockham, Minority Chief Counsel and Deputy Staff Director
           Amanda H. Neely, Minority Director of Governmental Affairs
              Samantha Onofry, Minority Professional Staff Member
                         Laura W. Kilbride, Chief Clerk
                         Thomas J. Spino, Hearing Clerk

                                C O N T E N T S

                                     ------
    Opening statements:
                                                                       Page
        Senator Portman..............................................     1
        Senator Grassley.............................................     2
        Senator Peters...............................................     3
        Senator Lankford.............................................    16
        Senator Hawley...............................................    19
        Senator Carper...............................................    22
    Prepared statements:
        Senator Peters...............................................    25
        Senator Portman..............................................    26
        Senator Van Hollen...........................................    28

                                   WITNESSES
                         Wednesday, September 22, 2021

    Cathy A. Harris to be a Member and Chair, Merit Systems
      Protection Board
        Testimony....................................................     4
        Prepared statement...........................................    29
        Biographical and professional information....................    31
        Letter from U.S. Office of Government Ethics.................    51
        Responses to pre-hearing questions...........................    55
        Responses to post-hearing questions..........................    83
    Tristian L. Leavitt to be a Member, Merit Systems Protection
      Board
        Testimony....................................................     6
        Prepared statement...........................................    90
        Biographical and professional information....................    92
        Letter from U.S. Office of Government Ethics.................   106
        Responses to pre-hearing questions...........................   109
        Responses to post-hearing questions..........................   138
    Raymond A. Limon to be a Member, Merit Systems Protection Board
        Testimony....................................................     8
        Prepared statement...........................................   144
        Biographical and professional information....................   146
        Letter from U.S. Office of Government Ethics.................   164
        Responses to pre-hearing questions...........................   167
        Responses to post-hearing questions..........................   187
    Letter of support from Professional Managers Association.........   195

                                 NOMINATIONS OF
                   CATHY A. HARRIS, TRISTIAN L. LEAVITT,
                             AND RAYMOND A. LIMON

                                  ----------

                         WEDNESDAY, SEPTEMBER 22, 2021

                                         U.S. Senate,
                               Committee on Homeland Security
                                      and Governmental Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:32 a.m., via
    Webex and in room 342, Dirksen Senate Office Building, Hon.
    Gary C. Peters, Chairman of the Committee, presiding.
        Present: Senators Peters, Carper, Hassan, Sinema, Ossoff,
    Portman, Johnson, Lankford, Scott, and Hawley.
        Chairman Peters. Good morning. The Committee will come to
    order. Today, we are considering three nominations to the Merit
    Systems Protection Board (MSPB): Cathy Harris, to be a member
    and Board Chair; Raymond Limon, to be a member and Vice Chair;
    and Tristan Leavitt, to be a member.
        To respect my colleagues' very busy schedules, I am going
    to defer my opening remarks and turn it over to Ranking Member
    Portman followed by an introduction from Senator Grassley.

                OPENING STATEMENT OF SENATOR PORTMAN\1\

        Senator Portman. Thank you, Chairman Peters. I have to go
    give another opening in another hearing, and then I am going to
    come back for additional questions.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Portman appears in the
    Appendix on page 26.
    ---------------------------------------------------------------------------
        I see Senator Grassley is here, the distinguished President
    Pro Tem Emeritus of the U.S. Senate, so I am going to be even
    more brief. First of all, to Ms. Harris, Mr. Leavitt, and Mr.
    Limon, congratulations on your nomination. I appreciate your
    being here today.
        This Merit Systems Protection Board is really important,
    and I talked to all three of you already by telephone, and we
    talked about the role it plays in safeguarding the integrity of
    efficiency of the Federal Government. It is a quasi-judicial
    agency that is charged with protecting the Federal Merit System
    against partisan, political, or other prohibited personnel
    practices.
        One of the things that concerns us here in this Committee
    is the fact that there has not been a quorum forever. In fact,
    it is the longest the Agency has been without a quorum in its
    history. There is now a backlog of 3,000 cases. I have talked
    to all three of the nominees about how they would deal with
    that. We thank all the employees and administrative judges who
    have tried over the last 3 years to keep the Agency's mission
    alive, but it is tough to do it without a quorum on the Board
    to make decisions.
        So along with its adjudication function, MSPB has the power
    and responsibility to study and report on critical Federal
    workforce issues, also an important issue. This oversight is
    crucial at a time when the Federal workforce faces
    unprecedented challenges due to Coronavirus Disease 2019
    (COVID-19). A lot of folks have stayed home, work from home,
    creating a new and challenging dynamic between the agency
    management and their employees. Many agencies continue to do
    that. Many have dramatically changed their work from home
    policies. The effects of mass telework in the Federal
    Government on employees, the public, and overall satisfaction
    and productivity are still largely unknown, and that is
    something MSPB ought to be playing a big role in.
        They also play a role in whistleblower protection, and that
    is one reason Senator Grassley is here probably. Because he
    feels strongly about that. Not only does the Board adjudicate
    retaliation claims under the Whistleblower Protection Act
    (WPA), but the Board also has the power to study and report to
    Congress on existing whistleblower protection issues and ways
    to improve those protections through law.
        I look forward to hearing the perspective that each of you
    would bring to the Board, how you would promptly address MSPB's
    case backlog, and your views on the critical Federal workforce
    issues facing our government.
        Thank you, Mr. Chairman.
        Chairman Peters. Thank you, Ranking Member Portman.
        Next, I would like to welcome our colleague, Senator
    Grassley, who is joining us today to introduce Tristan Leavitt.
        Senator Grassley, thank you for being here, and you are
    recognized for your introduction.

     OPENING STATEMENT OF THE HONORABLE CHARLES GRASSLEY, A UNITED
                 STATES SENATOR FROM THE STATE OF IOWA

        Senator Grassley. Thank you, Chairman Peters and Ranking
    Member Portman, and thank you for this opportunity to introduce
    to the Committee, Tristan Leavitt, an individual I think and
    believe is a perfect choice and a perfect fit to serve on the
    Merit Systems Protection Board. I am here to introduce him, his
    wife, Brittany, and their two eldest children. Tristan, I know,
    wishes his whole family could be here today and that they are
    proud of what Tristan has done through his life and the
    culmination that comes to this appointment.
        The Merit Systems Protection Board is a guardian of the
    Merit System, a set of principles designed to ensure that we
    have a qualified, effective, civil service that truly serves
    ``We, the People.'' The Board adjudicates appeals of Federal
    employees' claims of prohibited personnel practices and
    whistleblower retaliation.
        I have known Tristan since 2011, when he began working for
    me on my oversight team. All of my staff know my views on the
    key role that whistleblowers play in upholding our government's
    accountability to the taxpayers, and there are few who have
    worked harder to protect whistleblowers than Tristan Leavitt.
    When he worked for me, Tristan helped me put together the first
    ever congressional resolution recognizing National
    Whistleblower Appreciation Day.
        I think ever since then, in late July, to honor the first
    whistleblowers that go back to 1778, I believe, under some act
    of the Continental Congress, I give a speech that we call
    National Whistleblower Protection Day honoring those first
    people and the first act of the Continental Congress, that
    people have a responsibility. When something is wrong in
    government, you have a responsibility to promote it, or to tell
    people about it I guess is the best way to say it.
        Now Tristan worked for me to propose the creation of the
    Senate Whistleblower Protection Caucus, and some of you, I am
    happy to say, are now members. The ``Department of Homeland
    Security (DHS) v. MacLean,'' the first ever case before the
    Supreme Court to consider the Whistleblower Protection Act,
    Tristan helped me put together a bicameral, bipartisan amicus
    brief that helped secure the rights of whistleblowers to
    provide information to the Congress.
        When I last served as Ranking Member on the Judiciary
    Committee in the 112th Congress, Tristan was instrumental in my
    efforts to oversee Federal law enforcement and improve
    protection for the Federal Bureau of Investigation (FBI)
    employees. Indeed, Tristan's efforts contributed greatly to the
    further strengthening of whistleblower protection laws for
    employees across the Federal Government.
        You will be hard pressed to find someone with more
    experience working for good government and accountability.
    Perhaps most important, Tristan has spent thousands of hours
    working with hundreds of whistleblowers who risked their
    livelihoods to try to make the government work the way it is
    supposed to. Most whistleblowers are nothing but patriotic
    Americans. He listened to their stories. He has worked hard to
    make sure that their claims were investigated fairly.
        Through it all, Tristan has shown tremendous patience,
    compassion, and wisdom. I have no doubt that, if confirmed,
    Tristan will serve on this Board with skill and, most
    importantly, with integrity. I wholeheartedly recommend him to
    the Committee for this position.
        Thank you, Mr. Chairman.

                OPENING STATEMENT OF CHAIRMAN PETERS\1\

        Chairman Peters. Thank you, Senator Grassley, for your
    comments. Thank you for being here.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Peters appears in the
    Appendix on page 25.
    ---------------------------------------------------------------------------
        I now will invite the nominees who are with us to be seated
    at the witness table, and I would like to welcome each of the
    nominees and to your family members who are joining us today.
    Thank you for all of your previous public service and your
    willingness to serve in these new and very important roles.
        The Merit System Protection Board is an independent agency
    that is critical to ensuring an effective and accountable
    Federal Government. The MSPB protects the Merit System
    principles and promotes a highly qualified, diverse Federal
    workforce that is fairly and effectively managed and that
    provides excellent service to the American people. The
    bipartisan three-member board adjudicates cases involving
    whistleblower retaliation and violations of civil service laws.
    The Board also promotes an effective Federal workforce through
    oversight of the Office of Personnel Management (OPM) and the
    civil service.
        Prolonged vacancies on the board slow the administration of
    justice, and for years, vacancies on the MSPB have prevented
    Federal employees from obtaining relief from prohibited
    personnel practices. If the three nominees before us today are
    confirmed, the MSPB will have a quorum for the first time in
    nearly 5 years, a crucial step toward preserving the rights of
    Federal employees and protecting whistleblowers from
    retaliation. I am very pleased that we are moving one step
    closer to a fully functioning Merit Systems Protection Board,
    and I look forward to hearing from each of the nominees here
    today.
        It is the practice of this Committee to swear in witnesses,
    so if you would all please rise, stand and raise your right
    hand. Do you swear that the testimony you will give before this
    Committee will be the truth, the whole truth, and nothing but
    the truth, so help you, God?
        Ms. Harris. I do.
        Mr. Leavitt. I do.
        Mr. Limon. I do.
        Chairman Peters. You may be seated.
        Our first nominee is Cathy Harris. Ms. Harris is currently
    a co-manager in the firm of Kator, Parks, Weiser and Harris,
    P.L.L.C., in Washington, D.C., where she serves as the chair of
    the firm's sexual harassment and lesbian, gay, bisexual, and
    transgender (LGBT) practice sections. She has over two decades
    of experience in employment law and has extensive experience in
    the litigation and settlement of Federal sector employment
    class actions.
        Senator Van Hollen has also provided a written statement in
    support of Ms. Harris's nomination, which I will enter into the
    record,\1\ without objection.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Senator Van Hollen appears in the
    Appendix on page 28.
    ---------------------------------------------------------------------------
        Welcome, Ms. Harris. You may now proceed with your opening
    remarks.

     TESTIMONY OF CATHY A. HARRIS,\2\ NOMINATED TO BE A MEMBER AND
                 CHAIR, MERIT SYSTEMS PROTECTION BOARD

        Ms. Harris. Thank you. Good morning, Chairman Peters,
    Ranking Member Portman, and Members of the Committee. I am very
    thankful for this opportunity to appear before you today as you
    consider my nomination as Chair of the U.S. Merit Systems
    Protection Board. I am deeply honored by President Biden's
    nomination of me to this position as it is one that I consider
    essential to maintaining a fair, equitable, and merit-based
    Federal workforce. I am a firm supporter of the Board's
    statutory missions to protect the Merit System principles and
    promote an effective civil service free of prohibited personnel
    practices.
    ---------------------------------------------------------------------------
        \2\ The prepared statement of Ms. Harris appears in the Appendix on
    page 29.
    ---------------------------------------------------------------------------
        I want to introduce my family who are here with me today:
    my wife, Cheryl; my daughter, Rosie; and my father, Jack. My
    family who are not here with me today I want to give my
    appreciation for their support, particularly to my mother who
    passed away some time ago and my grandmother who is 97 and
    living in Florida. I am very grateful for their support
    throughout this process.
        I also want to thank the MSPB staff who helped prepare us
    for this hearing and my co-nominees, Raymond Limon and Tristan
    Leavitt, who have really been a pleasure to work with and with
    whom I look forward to working closely, if confirmed. I am
    particularly appreciative that we each bring different
    experiences to the table, and I am confident we would be a
    great team together.
        For more than 20 years, I have litigated on behalf of both
    Federal employees and Federal agencies before the MSPB, the
    Equal Employment Opportunity Commission (EEOC), and in the
    Federal courts. My cases have covered nearly all of the
    substantive issues considered by the Board. I have extensive
    experience also in litigating complex class actions before the
    EEOC on behalf of Federal employees and large consolidated
    cases before the MSPB, one of which culminated in one of the
    lengthiest hearings in the Board's history, with over 100
    appellants.
        Through this experience, I have gained a deep understanding
    of Federal sector employment law and the great importance of
    our Merit System in enhancing and improving the Federal
    workforce. Having an experience of representing a wide range of
    employees and management, from both small and large agencies, I
    have developed a balanced view of the issues facing the civil
    service. Employees and agencies rely upon the MSPB for prompt,
    fair adjudications. The MSPB is one of the pillars of good
    government, helping us keep the civil service free from
    discrimination, political coercion, and corruption. I look
    forward to being able to apply my knowledge in impartially
    adjudicating matters before the Board.
        After many years in private practice, I am also looking
    forward to returning to public service. I started my legal
    career as an assistant district attorney in the New York County
    Manhattan District Attorney's Office, where I gained invaluable
    courtroom experience and a deep appreciation for public
    service.
        As you have mentioned, because the Board has lacked a
    quorum for the past several years, it has been unable to
    fulfill its statutory duties. Despite this challenge, I
    understand the staff at the MSPB has been working tirelessly to
    prepare for a new Board, and I am so thankful for their
    dedicated service. A large backlog of cases has amassed--over,
    I believe, 3,400 now because decisions could not be issued
    without board members. If confirmed, I will make it my utmost
    priority to reduce the backlog so the employees and agencies
    may finally receive decisions.
        The stakes involved in the cases are quite serious for the
    litigants. From the employees' side, it may be due to a
    termination that has caused a loss of income for the employee
    for several years, the denial of disability retirement benefits
    to a worker, or the non-selection of a veteran who claimed
    violations of veterans' preference laws. Whistleblowers have
    been without recourse in some instances as they await
    adjudication of their matters at the Board level. From the
    agencies' perspective, agencies await determination for years
    now that will affect their staffing, retention, and
    disciplinary matters. Both employees and agencies deserve
    finality, and thus, I commit to work with my fellow board
    members to develop an effective triage plan to adjudicate the
    cases swiftly and fairly.
        The Board also has a statutory duty to conduct and report
    objective studies regarding the Merit System. During the lack
    of quorum, studies have been conducted but have not been able
    to be approved. As these studies are important to Congress,
    other Federal agencies, and the public, in understanding and
    improving the Merit System, I will work to review and release
    the studies to Congress as soon as possible, if confirmed.
        Thank you again for considering my nomination. I look
    forward to answering any questions the Committee may have.
        Chairman Peters. Thank you, Ms. Harris, for your comments.
        Our next nominee is Tristan Leavitt, who was introduced
    earlier by Senator Grassley. Mr. Leavitt is currently the
    General Counsel of the U.S. Merit Systems Protection Board and
    has served as the Acting Chief Executive Administrative Officer
    since March 2019.
        Mr. Leavitt, welcome. You may proceed with your opening
    comments.

     TESTIMONY OF TRISTAN L. LEAVITT,\1\ NOMINATED TO BE A MEMBER,
                     MERIT SYSTEMS PROTECTION BOARD

        Mr. Leavitt. Thank you so much, Chairman Peters, and thank
    you for the opportunity to appear before the Committee today.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Leavitt appears in the Appendix
    on page 90.
    ---------------------------------------------------------------------------
        I am joined, as Senator Grassley said, by my wife,
    Brittany, today as well as my son, Benson, and my daughter,
    Regan [phonetic], the two oldest of our five children.
        I am thankful to the President for the honor and privilege
    of this nomination and to Leader Mitch McConnell for his
    recommendation to the President. I also want to express my
    gratitude and great respect for the dedicated career
    professionals at the Merit Systems Protection Board and the
    Office of Special Counsel (OSC), who I have had the privilege
    of serving alongside the past 4 years.
        I would not have had these opportunities were it not for
    bosses who gave me a chance, including Senator Chuck Grassley,
    who has been incredibly gracious with his time and kind words
    today, Chairman Jason Chaffetz, Special Counsel Henry Kerner,
    and former MSPB Vice Chair Mark Robbins. Their support for me
    being nominated, as well as the support of many former Capitol
    Hill colleagues on both sides of the aisle and of the advocates
    I have worked with in the Title V community, has been
    incredibly humbling. I am very grateful for each of these
    relationships from my career.
        Finally, I want to express my eternal gratitude to my wife,
    Brittany, without whose support for me and selfless sacrifice
    for our five children, none of these opportunities would have
    been possible. She could just as easily have gone to law school
    but instead raised our two children while I went to law school.
    She then delivered our third child 1 month after I graduated,
    when I was already working full-time on the Hill and preparing
    to take the bar exam in one more month. Given all of that, my
    J.D. by all rights ought to be a joint degree with her. She has
    the hardest work ethic of anyone I know, and her organization
    and tireless dedication provide the clear center of gravity in
    our home.
        With an estimated nine million service members, civil
    servants, contractors, postal workers, and more, the Federal
    Government is the largest employer in the United States.
    Furthermore, its approximately 2.1 million workforce of career
    civilian employees is tasked with enormous responsibility. As
    we have seen during this global pandemic, the stakes are high.
    We owe it to ourselves as a country to draw on the most
    qualified employees who will serve the taxpayers most
    effectively. That is why the Merit System first embraced by our
    government over 140 years ago remains so imperative today.
        Having grown up as the oldest of seven children in a family
    on a tight budget and spent my teenage summers doing drywall
    with my father, I believe firmly in the principles of
    responsibility, hard work, and accountability. I recognize that
    our government is funded by tax dollars earned by hardworking
    Americans, including single parents, small business owners like
    my dad, and more. I take extremely seriously the responsibility
    we all have to exercise careful stewardship over those
    resources.
        To me, the Merit System is a critical component of that
    kind of careful stewardship. It ensures the American public
    gets the best bang for their buck, if you will. A good portion
    of my career was spent investigating misconduct in the Federal
    Government, including by line-level employees, by managers, and
    even by senior leaders. Holding such employees accountable is
    key to upholding the morale of the rest of the Federal
    workforce.
        Anyone who knows me probably knows me best for being
    passionate about the importance of protecting whistleblowers.
    Since first working with Special Agent John Dodson, who felt
    compelled by the death of Border Patrol Agent Brian Terry to
    blow the whistle on gunwalking by the Bureau of Alcohol,
    Tobacco, Firearms, and Explosives (ATF), I have worked with
    hundreds of patriotic women and men who saw problems in the
    Federal Government and spoke up about them. Their concerns have
    run the gamut, from cost overruns in Federal agencies to
    widespread employee misconduct to security vulnerabilities at
    the White House.
        To me, protecting whistleblowers is, without question, the
    best way to root out waste, fraud, and abuse in the Federal
    Government and to identify other problems that pose a risk to
    the health and safety of the American public. Given the
    prospective risks faced by anyone considering speaking out, I
    consider whistleblowing an act of conscience. I have the utmost
    respect for those whose personal convictions impel them to
    courageously stand up for the truth. I believe we owe it to
    them to do all we can to ensure that they receive the benefit
    of the laws that are intended to protect them.
        Even if the Federal Government was not the largest employer
    in the country, it is one that we all have a stake in. Our
    country was founded on national ideals, principles that our
    nation aspires to abide by. In light of those ideals, I believe
    the Federal Government should also strive to be a model
    employer, doing our best to treat Federal employees fairly and
    holding managers to a high standard. The vast majority of
    Federal workers demonstrate great commitment and dedication,
    and I am grateful for the public service they render.
        If confirmed to the Merit Systems Protection Board, I
    commit that I will do everything within my power to work hard
    and to exercise fairness in applying the law to Federal
    employee appeals, recognizing, in turn, that all of us are
    serving the American taxpayer.
        Thank you again so much for the opportunity to appear
    before you today and to answer questions you may have.
        Chairman Peters. Thank you, Mr. Leavitt.
        Our final nominee is Raymond Limon. Mr. Limon currently
    serves as the Deputy Assistant Secretary for Human Capital and
    Diversity and Chief Human Capital Officer (CHCO) at the
    Department of Interior (DOI). He is responsible for providing
    strategic human capital and safety, health, and training
    policies for 70,000 employees. Prior to joining the Interior
    Department, he led the State Department's Civil Service H.R.
    (human resources) Management Office and chaired the Small
    Agency Human Resources Council, representing nearly 100 Federal
    agencies and organizations. He was also an attorney at the U.S.
    Office of Personnel Management Office of General Counsel, where
    he specialized in employment litigation and policy review.
        Mr. Limon, welcome. You are recognized for your opening
    comments.

    TESTIMONY OF RAYMOND A. LIMON,\1\ NOMINATED TO BE A MEMBER AND
               VICE CHAIR, MERIT SYSTEMS PROTECTION BOARD

        Mr. Limon. Thank you. Chairman Peters, Ranking Member
    Portman, and Members of the Committee, thank you for the
    opportunity and the honor to be here today.
    ---------------------------------------------------------------------------
        \1\ The prepared statement of Mr. Limon appears in the Appendix on
    page 144.
    ---------------------------------------------------------------------------
        I want to thank President Biden for my nomination to the
    position of Vice Chair of the Merit Systems Protection Board.
        My personal journey and how I arrived here today begins
    with my parents. They inspired my passion for service,
    education, and hard work. They raised 10 children, with 2 sets
    of twins, and I am the oldest of those 10 children. My
    immigrant grandparents' work ethic and dedication to their
    children inspired the next generations and infused us with
    passion to be lifelong learners and to be active members in our
    communities. As a first-generation college graduate, I honor my
    family's sacrifices that have made it possible for me to be
    here today.
        From a young age, I knew I wanted to study the law and
    become a lawyer. Though we did not have lawyers in my family or
    in the neighborhood where I grew up, my parents always
    supported my dream. At the age of 17, I moved away from home
    and worked my way through college. It was at the University of
    Nevada-Reno where I obtained my degree in political science and
    pre-law.
        However, with limited means, I tempered my law school
    dreams and sought a new dream, to represent my country as a
    Peace Corps volunteer. I proudly served for 2 years in
    Honduras. It was there that I met my wife, Susana, another
    Peace Corps volunteer, who joins me today.
        After the Peace Corps, we both attended Indiana University
    in Bloomington, where I received my law degree. We were active
    students at Indiana, where we both worked at internships at
    Bloomington City Hall. We volunteered on the local Habitat for
    Humanity chapter Board of Directors and organized various home
    builds.
        I led fundraisers for the local Boys and Girls Club by
    organizing the annual law students versus faculty basketball
    games. Those games were far more intimidating than moot court.
    My love for basketball blossomed in Indiana, where I became a
    certified high school basketball referee. Today, I organize
    weekly basketball pickup games in Hyattsville, Maryland.
        These are just a few examples that show why service is so
    important to me. Serving in my community, whether it is Central
    America or in America's heartland, has opened opportunities for
    me in ways that otherwise would not have happened.
        Shortly after law school, I joined the Federal workforce as
    a civil servant. I worked at the Office of Personnel
    Management, the Corporation for National Community Service
    (AmeriCorps), the State Department, and now the Department of
    the Interior. My experiences working internationally and
    nationally are what grounds me and what informs my deep
    commitment to protecting our country and our workforce.
        This commitment to the love of service and learning, which
    I was born into and which I have been surrounded throughout my
    entire career, continues to evolve. This commitment is to what
    my wife and I have hopefully shared with the joys of our life,
    my two sons, Drew and Sean. As you can see, family is extremely
    important to me. It is for this reason that I feel called to
    this position, to do my part and to apply my expertise to serve
    the Federal family.
        The common thread running through my career has been my
    wholehearted commitment to public service. Although each of us
    has a different story, who brought us here today, these stories
    all contribute to making government better. If confirmed, it
    will be a privilege for me to serve as the MSPB's Vice Chair.
        Finally, I want to thank all the public servants and
    volunteers who have helped me along the way, from members of
    the Armed Services, my colleagues in the civil and foreign
    services, Peace Corps, VISTA, AmeriCorps volunteers, to the
    State and local government officials and the various good
    government groups that have supported and mentored me over the
    years.
        In looking back on my career, I want to keep the call to
    public service stronger than ever. Thus, this is why I am
    committed to promoting and protecting the Merit System
    principles. To that end, I would also like to acknowledge my
    niece, Kalie, who recently became the Washoe County Recorder in
    Reno, Nevada, and my nephew, Ian, who started his career with
    the U.S. Coast Guard (USCG). I am excited about the new
    generation of Americans who are ready to serve, and I am
    prepared to do my part to make that happen.
        Thank you so much for the opportunity to be here today and
    answer any questions that you may have. Thank you.
        Chairman Peters. Thank you, Mr. Limon.
        There are three questions that the Committee asks of every
    nominee, and I am going to ask each of you to respond briefly
    with just a ``yes'' or ``no.'' We will start with Ms. Harris
    and then work down the table.
        First, is there anything you are aware of in your
    background that might present a conflict of interest with the
    duties of the office to which you have been nominated?
        Ms. Harris. No.
        Mr. Leavitt. No.
        Mr. Limon. No.
        Chairman Peters. Second, do you know of anything personal
    or otherwise that would in any way prevent you from fully and
    honorably discharging the responsibilities of the office to
    which you have been nominated?
        Ms. Harris. No.
        Mr. Leavitt. No.
        Mr. Limon. No.
        Chairman Peters. Last, do you agree without reservation to
    comply with any request or summons to appear and testify before
    any duly constituted committee of Congress if you are
    confirmed?
        Ms. Harris. Yes.
        Mr. Leavitt. Absolutely.
        Mr. Limon. Yes.
        Chairman Peters. Thank you for those answers.
        Now the first question is going to go to all three of you.
    I will start with you again, Ms. Harris, but if confirmed, all
    three of you are going to face an unprecedented backlog of
    3,300 cases that are pending, and in many instances, Federal
    employees have been waiting literally for years for decisions
    that impact their livelihood and access to retirement and
    healthcare benefits. Ms. Harris, if you are confirmed as Chair,
    you are going to lead the Board in tackling this immense
    backlog. What will be your strategy for effectively working
    through these cases without sacrificing the quality of these
    decisions?
        Ms. Harris. Thank you, Senator. I have thought about this
    quite a bit. I would first meet with the staff, who I know have
    come up with several ideas and plans for adjudicating the
    backlog. After I hear their ideas, my plan is to get a triage
    system in place. There are different factors that we can look
    at as to how to most effectively adjudicate the backlog. The
    most obvious one is age of the case; let us do the oldest ones
    first.
        But there are also other factors that I think are
    important, for example, relative importance of the case to the
    appellant and the agency. For example, terminations may be on
    the higher end of the triage system than suspensions, right,
    because those are more important in adjudicating. Also,
    whistleblower retaliation cases that have been pending, stay
    requests that the Office of Special Counsel has not been able
    to bring to the Board on personnel matters, those are obviously
    important.
        After we figure out a triage system that my fellow board
    members agree with, I would also recommend bringing back what,
    in my practice, we knew as the board short form decision. The
    short form decision is similar to when a Federal appeals court
    affirms or denies or remands the underlying decision without a
    lengthy explanation of the reasons for the decision. There are
    many cases for which that would be perfectly appropriate, for
    example, if they are clearly untimely or there is a lack of
    jurisdiction, or the administrative judge's opinion is well
    reasoned and well stated and there is nothing more to add. I
    think for those cases it will really expedite the process.
        The good news, I should say, is that we are not starting
    from scratch. The Office of Appeals Counsel has already worked
    up draft decisions and memos regarding the decisions. So it is
    really the work of the board members--we are going to have to
    do the work to review it. But they have not been sitting around
    doing nothing. They have been really working very hard to
    prepare for the Board.
        The last thing I would recommend, and this is just
    something that I am a real fan of in my practice, is to
    increase efforts regarding alternative dispute resolution
    (ADR). These parties have been waiting around for four,
    sometimes five, years to get decisions, and circumstances have
    changed. Maybe appellants have moved on to other jobs or they
    have left the agency; the management has changed. We always
    think of that as a good opportunity to discuss settlement
    again. The Board has an excellent settlement program with, I
    believe I have read, over 50 percent success rate in resolving
    cases. If we can put attention and time into ADR for these
    cases, perhaps we can reduce the backlog by as much as 50
    percent.
        I am really looking forward to it. I think the other thing
    is we have to roll up our sleeves and get to work, and I am
    good at doing that. Thank you.
        Chairman Peters. Thank you.
        Mr. Leavitt.
        Mr. Leavitt. Thank you. I really agree with what Ms. Harris
    said. Fundamentally, in the past, the Board has decided about
    1,000 cases a year, but that is all there were to decide. It is
    really not entirely clear what a sustainable pace will be, but
    you know, no matter what it is, I think putting in the work and
    working our hardest, putting in the time really will make a
    difference.
        I completely agree on the short order. Those short form
    orders have not been used for about the last 10 years or so,
    but they were for the 30 years of MSPB's history before that,
    and I think that will be very helpful.
        On top of that, the only other thing that I would add is
    that MSPB has not historically had a really robust practice of
    the board members actually meeting together to talk through
    cases, and I really think there is an opportunity there to make
    a lot of headway and save a lot of time in deciding cases that
    way.
        Chairman Peters. OK. Thank you.
        Mr. Limon.
        Mr. Limon. Chairman Peters, thank you for that question. I
    am in agreement with my colleagues on how to address this
    backlog, and it is our mission first, but it is also people
    always. There are tremendous professionals working at the MSPB
    today, like Tristan, and they will have a lot of wonderful
    ideas as well to share with us when in fact we are able to be
    confirmed, if we are confirmed.
        The one thing that I have a lot of experience in working
    with multiple administrations over the years is working with my
    civil service colleagues in preparing new leadership. We do
    this through briefing books. We do this through a whole range
    of issues that are coming down for a new leadership team. I am
    very confident that the current team within the MSPB is
    preparing for this eventuality.
        But in addition to that, there are going to be other
    stakeholders who are just committed to understanding how we get
    through this backlog. Whether it is with good government
    groups, some of our sister agencies, and the litigants, as Ms.
    Harris noted earlier. To that end, I think when we do get
    together and we come back and work as a team to identify the
    planning efforts related on how we plan and identify resources
    to deal with this backlog, there should be heightened
    transparency so everybody understands their role and their
    responsibility, both internally to the MSPB and to our critical
    stakeholders.
        To that end, I do think that there is a great opportunity
    for us to come together and address this backlog and also
    identify some of the things that Ms. Harris and Mr. Leavitt
    have also identified as far as the short form order and some of
    the other triage issues that we have identified to help whittle
    down that backlog. Thank you.
        Chairman Peters. Thank you. Certainly, thanks again for
    your willingness to serve in this capacity. It is clear you are
    going to have a big job ahead of you, if confirmed. So thank
    you for your willingness to tackle this challenge.
        Ranking Member Portman, you are recognized for your
    questions.
        Senator Portman. Great. Thank you, Mr. Chairman.
        Again to the nominees, congratulations. We obviously need a
    quorum, and we need to move forward with these cases that have
    been languishing for years. We have a lot of experience between
    Mr. Leavitt having been General Counsel and both of you having
    had experience dealing with the issues that would come before
    the Board.
        My first question was going to be on the backlog because I
    wanted you to say what you told me in our phone call, and you
    pretty much said it now. I do support the notion of the short
    form orders and the alternative dispute resolutions, and I
    would hope that that would help to resolve some of these 3,000
    plus pending cases quickly. I would say that I would support
    what you are saying today and what you told me on the phone.
        On whistleblower protections, we have a strong interest, as
    you know, in making sure people feel comfortable coming forward
    and ensuring that there are adequate protections for them. The
    MSPB has a role to play in this. The last time there was a
    study on the barriers to Federal employees making disclosures
    and being whistleblowers was 2011. My question for you would
    be: Do you think it is time to reexamine the barriers to
    Federal employees making disclosures? What recommendations do
    you have?
        I am going to start with Mr. Leavitt because you have a lot
    of experience with whistleblower protection laws and in your
    testimony you talked about this quite a bit and your passion
    for it. What is the most common reason people do not step up,
    and you know, is it time to do another study on the barriers?
    In general, what is the role that you see as a member of the
    Board in dealing with whistleblowers?
        Mr. Leavitt. Thank you, Ranking Member Portman. I want to
    make sure I get kind of all three parts of the question, but I
    think first off I absolutely think that it would be a great
    time for another study. MSPB has actually just been in the
    process of developing a new research agenda for its research
    arm, and so that is one of the things that will be presented to
    an incoming Board is just a list of all those ideas, and so
    that is absolutely one that, to me, is always relevant.
        In terms of barriers generally, this is an area of the law
    where there have been a number of legal updates. A really big
    one was in 2012 with the Whistleblower Protection Enhancement
    Act, but there have been pretty regular updates since then.
        From my perspective, one of the biggest barriers is not
    necessarily the law, but it is just the culture that exists in
    many agencies. If agencies do not take even little disclosures
    seriously, I think it makes it really hard to tell someone else
    if they see their co-worker railroaded to say, yes, there is
    really something important that you need to bring to the
    public's attention, but you know, you are going to be safe
    doing it. It is just that is not credible in some places. I
    think really, again, promoting that culture that is one of the
    things that was one of the purposes in the Senate Whistleblower
    Protection Caucus being created.
        But I think anybody that cares about these things, just
    really actively, regularly touting the importance of
    whistleblowers is really key to helping Federal employees and
    Federal managers know, OK, people are serious about this. They
    really care about respecting these things and creating these
    kinds of open environments.
        In terms of the role for the members on the Board, there
    certainly is, I think, an important one and just as cases come
    through, making sure that the law is applied evenly and fairly.
    Again, there is pretty robust law in this area, but Congress
    has had as one of its main purposes in passing so many updates
    to the law over the years, clarifying, because there was some
    sense that maybe administrative judges or even in the Federal
    courts were not fully understanding the intent behind the laws
    or what they fully were trying to accomplish. Certainly as a
    member and for any member of the Board that, taking those laws,
    applying them fairly, and just making sure that the tools that
    are there to protect whistleblowers are used fairly I think is
    really an important role that the Board can fulfill to help
    send that message across government and help create that
    culture.
        Senator Portman. Thank you. You answered all three
    questions thoroughly.
        Any other comments on whistleblowers, Ms. Harris or Mr.
    Limon?
        Ms. Harris. Yes, if I may, Senator Portman. Thank you. I
    think I agree with everything that Tristan has said. He is
    exactly right. One of the studies I read said that the biggest
    barrier for whistleblowers coming forward is that they think
    that nothing will happen, nothing will change. I think
    promoting a culture and training managers and senior staff to
    understand what they need to do when complaints come in is
    really important.
        The only thing I would add to what Tristan said is that I
    think getting the Board back in business, getting a quorum back
    is going to be a really important tool in protecting
    whistleblowers. We will be able to adjudicate the cases. We
    will be able to get requests for disciplinary and corrective
    action from the Office of Special Counsel in whistleblower
    matters. We will be able to grant stays of personnel actions
    when the Office of Special Counsel seeks them when
    whistleblowers are under attack for eminent personnel adverse
    actions against them. Thank you.
        Senator Portman. OK. Thank you.
        Mr. Limon. Ranking Member Portman, nothing too much to add
    to that, but I do acknowledge the shifting landscape around
    whistleblowers, as you identified. Since the last study did not
    happen since 2011, a lot has happened. So doing a study on this
    to help educate managers, employees, human resource (HR)
    professionals I think would be highly valuable for the Board to
    consider and to do.
        Mr. Leavitt's kind of cautionary tale about culture, a lot
    of it is about culture. Where can people go? Where can people
    feel safe to highlight these concerns? Where in the
    organization is best to do that? And that is where, I think,
    the training and reestablishing and improving our culture can
    help. Thank you.
        Senator Portman. OK. I said it in my opening statement that
    this is a quasi-judicial agency charged with protecting the
    Federal Merit Systems against partisan, political, or other
    prohibited personnel practices.
        So this question, Ms. Harris, is for you, and I know you
    are expecting this question since we talked about it quite a
    bit. But given that role of the Board, particularly with regard
    to protecting people against partisan, political practices in
    hiring and personnel matters, I am concerned about your
    background as a partisan.
        Particularly, looking at some of your Tweets, they are
    often hostile and very critical of Republicans and conservative
    viewpoints. You accuse Republicans of suppressing votes. You
    express strong opposition to not just the appointment of Amy
    Coney Barrett but attacking the Girl Scouts for sharing post
    highlighting the five women appointed to the Supreme Court
    simply because the post included Amy Coney Barrett. You called
    Republican Governor Larry Hogan, cynical and cowardly for his
    vote in the 2020 election.
        My question to you is: In light of those partisan
    statements and the approach that you have taken in the past, I
    would like to know how can people in the Federal system feel
    comfortable that they are going to be fairly heard and fairly
    treated?
        Ms. Harris. Thank you, Senator. I agree with you. It is
    absolutely important that all coming before the Board
    understand they will get a fair, objective determination on the
    merits. I do not see myself as particularly partisan. I respect
    your opinion on that, but that is not how I see myself in a
    professional capacity or really a personal capacity.
        Senator Portman. Let me just say, it is not my opinion. I
    am just reading from the Tweets.
        Ms. Harris. Yes. No. I----
        Senator Portman. I can read from more.
        Ms. Harris. No. I understand. I understand completely, and
    that is what I would like to address. The tone I took in a few
    instances on Twitter, what I am trying to say is it does not
    reflect the day-to-day me, who I am as a professional and in my
    personal capacity. I believe in respect. I try to teach my
    daughter to be respectful, and I try to do so myself.
        I have represented Democrats, Republicans, people who have
    no idea what their party is. I represented Federal agencies
    under, I think, every administration for the past 20 years. My
    personal opinions, I am very well practiced at putting them
    aside and advocating for my clients in the most zealous manner
    that I can, for their benefit. If you asked my clients, the
    MSPB Administrative Judges (AJs) before whom I practiced,
    Federal court judges, my opposing counsel, they would tell you
    that I am fair, I am objective, and I do my best.
        I want to commit to you, you will not hear that kind of
    language from me in my job going forward, and it is not
    something that I would do. I commit to working with the Senate
    and my fellow board members in a bipartisan spirit of
    cooperation.
        I have spent my career opposing discrimination, and it is
    just simply repugnant to me that I would discriminate against
    anyone based on political affiliation. It is not something that
    comes before the Board. The Board does not ask parties what
    their political affiliation is, and in fact, it is one of the
    prohibited personnel practices. Political coercion or deciding
    personnel matters based on political partisanship is not
    allowed.
        I believe that as I have put my personal opinions aside as
    an advocate I can do the same as an adjudicator. We are trained
    as lawyers to do that, and I really do not see that I will have
    a problem in doing so.
        With respect to the specific Tweets, I think two that you
    mentioned were re-Tweets of others' words. I did it, so I do
    not want to back away from re-tweeting them. But I have learned
    a valuable lesson about re-tweeting others who have used words
    that I would not have personally chosen, and I think I am never
    going to re-tweet anybody ever again.
        So that said, I think the comments that you referred to I
    think they were overbroad in their characterization of those
    particular issues, and that is not how I feel.
        I do regret not having been more respectful and nuanced in
    my own Tweets and in my poor judgment of re-tweeting others,
    and I certainly want to do better going forward, and I will do
    better forward. I mean, as I said, I probably will never use
    Twitter again anyway, but I will not be tweeting personal
    opinions like that going forward.
        I hope that reassures you, Senator. I am really committed
    to doing this job well, and I believe doing it well means to do
    it according to the rule of law and not according to personal
    opinion. Thank you.
        Senator Portman. Thank you. My time is way expired, but I
    wanted to hear your response. It is about people being treated
    fairly. That is what the focus is. So thank you.
        Chairman Peters. Thank you, Ranking Member Portman.
        Senator Lankford, you are recognized for your questions.

                 OPENING STATEMENT OF SENATOR LANKFORD

        Senator Lankford. Thank you, Mr. Chairman.
        If I can just close the loop on this, Ms. Harris, one of
    the things that you tweeted was Amy Coney Barrett was
    reflexively responding to substantive questions with an evasive
    answer, which should disqualify her. If you have an evasive
    answer on anything in this conversation, should we disqualify
    you, hold you to the same standard that you tweeted out, not a
    re-Tweet, but that you tweeted out for Amy Coney Barrett?
        Ms. Harris. I am not an evasive person. I like to answer
    questions directly. I am a New Yorker. That is what we do. I
    hope if you feel that I am being evasive, please tell me, and I
    will try to be more direct.
        Senator Lankford. That is great. Let me talk through
    something that has come up and that will come up before all of
    you, and it is the issue about vaccine mandates and Federal
    workers. There are quite a few Federal workers that joined the
    Federal workforce 10, 12, or 15 years ago. They had a labor
    agreement. They had an understanding of what it would mean to
    be able to work for the Federal workforce, and they have
    suddenly learned that they now have to be vaccinated.
        Now somewhere around 80-plus percent of our Federal
    workforce is vaccinated depending on the agency already, but
    there are 20 some odd percent, and some higher in some
    agencies, some lower in some agencies, that they are not
    vaccinated for multiple reasons. Some of them may not be
    vaccinated because they have already had COVID and they have
    recovered from it. The science shows they have natural
    immunity, so they do not want to also be vaccinated. Some have
    health issues where they may be cancer patients, other issues.
    Some may be pregnant and trying to get pregnant. Some of them
    may be in a situation where they have a religious issue on
    being vaccinated, and they do not want to do that.
        On top of that, currently, we do not know what the policy
    is going to be, but the U.S Department of Agriculture (USDA) is
    talking about a policy saying that if you are in USDA and you
    are not vaccinated you can wear a mask and do social
    distancing, and other agencies are saying, no, you are going to
    have to all be vaccinated.
        What I am trying to figure out is if I am a Federal
    employee and I have a complaint because I am about to be fired
    or disciplined or not promoted or not allowed to travel based
    on a new requirement that was not there, that was not done with
    collective bargaining in any of my agreements, that is now
    being imposed on me, against the science of the issue of I have
    already had COVID and recovered from it, why am I being
    required on this vaccine? What authority does the Federal
    Government have to be able to discipline those individuals? How
    will you handle a case like that?
        Mr. Limon, let me start with you. I want each of you to
    answer it, though.
        Mr. Limon. Yes. Thank you, Senator Lankford. I think that
    is one of the considerations that as a chief human capital
    officer myself, who has responsibility over safety and security
    of our employees, looking at this new--the future of work. Now
    we are dealing with a mandate. There are a lot of concerns as a
    policymaker within my Federal agency that I am very concerned
    about.
        In this role as the MSPB Vice Chair, we would not
    necessarily be working on policy setting as much as maybe
    dealing with adjudications----
        Senator Lankford. Right.
        Mr. Limon [continuing]. That could come out of the result
    of this new requirement that is coming out.
        In my day-to-day work, I have been in some meetings with
    the Office of Personnel Management and the Office of Management
    and Budget (OMB) that are working exactly through these issues
    as you are highlighting right now. There was an Executive Order
    (EO) mandating this for Federal employees and for contractors.
    There are citations to U.S. Code about setting qualifications
    for these positions. How that ends up being meted out I believe
    is still being worked through.
        We are currently in a maximum telework environment for many
    of our Federal agencies. There are mask requirements based on
    local jurisdictions. But at the same time, when it comes to
    this potential for discipline for failure to being vaccinated,
    that is something that I am very concerned about today. I will
    be honest. Right now, we do not have an answer to that because
    that guidance is being discussed with this administration and
    working through the general counsels of the Federal agencies.
        As an HR practitioner myself, I am kind of anticipating
    what that guidance will be so we could ensure--to your point
    about USDA and other agencies doing something different, that
    does not help. Having consistent guidance and understanding of
    how we are supposed to implement this new Executive Order is
    going to be key. And could it have an impact down the road to
    the MSPB as far as additional adjudications? Absolutely.
        Senator Lankford. Yes. Thank you.
        Mr. Leavitt.
        Mr. Leavitt. This is clearly a hot-button issue, and there
    are some very difficult questions there. To be totally honest,
    I am a little bit nervous on this one because there is--it
    seems like there is a really good chance we may well have to
    adjudicate it. So when you have all heard this before, right?
    But the consideration here is we want to make sure that anyone
    who does end up with a case in front of us feels like we have
    not made up our mind in advance, that they are getting a fair
    judgment.
        So you know, that said, to be fair on the other side, I
    really do not know much about the law in this area in terms of
    where it is being used. I know there are a lot of contexts
    where job requirements are imposed, right? Generally, in a lot
    of instances, if there is a kind of nexus to someone's work my
    general impression is that they tend to be frequently upheld.
        But again, this is a unique issue. It is clearly
    unprecedented in the history of the Federal Government and just
    as the pandemic really has been unprecedented in scope and
    scale, so . . .
        Senator Lankford. When I speak to folks that are in
    American Federation of Government Employees (AFGE) and others,
    they are pretty furious about this. They feel like they were
    left out in the conversation, that it was not part of the
    collective bargaining agreements, that individuals there that
    have personal exceptions, medical exceptions, religious
    exceptions, or are already having had COVID and recovered from
    it are being disproportionately discriminated against, when
    they worked for the last year through telework and then now
    they walk into this buzz saw of a new mandate for them, when
    they have had a long successful career with the Federal
    Government.
        Tere are multiple individuals in my State that are saying,
    I am gone. I am going to leave, and I am being pushed out on
    something that I did not have an opportunity to be able to
    speak into.
        Ms. Harris, do you want to speak into this?
        Ms. Harris. Yes. Thank you, Senator. I wanted to address
    directly how the board members would be able to deal with such
    issues if they were to come before the Board. I agree with Mr.
    Leavitt. I do not want to prejudge any case. I would not do
    that.
        But you know, there are two ways that the Board would be
    able to address these issues. One is the Board has the
    authority to review OPM rules and regulations to ensure
    conformance with--that they do not commit a prohibited
    personnel practice. That would be one way the Board would--OPM
    presumably will develop rules and regulations regarding this
    issue. I am sure that is something the Board would review at
    that time and be able to see, look down the list of prohibited
    personnel practices. Is it a problem, and if so, we take
    action.
        The other way, if disciplinary cases come before the Board,
    if someone was eventually disciplined for not complying with
    whatever rules and regulations are eventually promulgated, the
    way the Board looks at it--in addition to seeing whether the
    person committed misconduct, we get to look at what is well
    known as the Douglas Factors. Are there mitigating or
    aggravating factors that require the penalty to be imposed or
    the penalty to be mitigated?
        When you went through your list of items, to me, that
    sounds like a brief that I would write regarding someone, who
    was coming up with mitigating factors for why they have been
    disciplined. So you know, I would expect appellants to bring
    those kinds of arguments before, if they were, by the time it
    got to the Board, they would have already been disciplined, and
    hopefully, they would bring those kinds of considerations up
    during the disciplinary process before it got to the Board.
        Senator Lankford. I would hope so. I would hope that we do
    not have agencies that say, ``I am going to fire you, remove
    you, refuse to promote you'' when, for instance, USDA can say,
    ``You are a valuable employee. Just wear a mask'' and other
    agencies would say, ``I am sorry. You are out.''
        It becomes nonsensical, especially when you have
    individuals that have had COVID, the vaccine itself, and they
    still have breakthrough cases and are still contagious. It does
    not seem to follow the science on it, and it certainly does not
    follow the agreements that have been made by AFGE and multiple
    other unions that are across the Federal workforce. Thank you.
        Senator Portman [presiding]. Thank you, Senator Lankford.
        Senator Hawley.

                  OPENING STATEMENT OF SENATOR HAWLEY

        Senator Hawley. Thank you, Mr. Chairman.
        Congratulations to the nominees. Thank you all for being
    here.
        Ms. Harris, let me start with you if I could. My
    understanding is the Merit Systems Protection Board is charged
    with upholding the Merit System principles. That is a defined
    term in our statutory law. One of the standards that the
    statute defines in relationship to Merit System principles is
    this: ``All employees and applicants for employment should
    receive fair and equitable treatment in all aspects of
    personnel management''--here is the key part--``without regard
    to political affiliation.'' I heard you speaking about that
    earlier.
        I want to raise that because I have to say that prior to
    this nomination you have made some incredibly political
    comments. Very political. I am concerned about them, and I
    would like to hear you respond to some of them. Let us start
    with some of the comments about Supreme Court justices that I
    think Senator Portman was asking you about earlier, but I would
    like to hear your specific response.
        On September 27, 2018, you said: ``Kavanaugh,'' referring
    to now Justice Kavanaugh, ``is doing a great impression of an
    angry drunk person. Not my idea of a Supreme Court justice.''
        With regard to Justice Amy Coney Barrett, when the Girl
    Scouts congratulated her on her nomination, you replied and
    said, ``It was not that your post was political. It is that Amy
    Coney Barrett is hostile to LGBT and women's rights, and your
    essentialist position makes no sense if you are really trying
    to uplift the rights of young women. Do better, Girl Scouts.''
        Let me just stop right there. Can you help me understand
    your point about Amy Coney Barrett? Your view is that she
    should not--women's groups should not congratulate her on being
    nominated because her positions disqualify her from being
    considered an advancement for women? I mean, help me understand
    what you meant there.
        Ms. Harris. First, can I go back to the first Tweet you
    read?
        Senator Hawley. Sure.
        Ms. Harris. I regret using those words. They are not as
    respectful and certainly nuanced as I would like to be, and I
    regret it.
        With respect to the Girl Scouts Tweet, I am sorry I do not
    recall it exactly, but thank you for refreshing my recollection
    about it. I think my best guess as to what I meant at the time
    is that just because someone is a member of a particular group
    does not mean that they are advancing the rights of that group.
    I think I could have said that definitely in a more respectful
    way at that time as well.
        Senator Hawley. Fair enough. I thought that is what you
    meant, but I just wanted to be clear when you say that the Girl
    Scouts' position congratulating Justice Barrett is an
    essentialist position, makes no sense if you are trying to
    uplift the rights of young women. So it was your position that
    Amy Coney Barrett was actually--that her nomination was a step
    backward for the rights of women; she would harm the rights of
    women?
        Ms. Harris. That was not my position at the time. I think
    my concern was just congratulating somebody on a nomination
    because they are a member of a certain group, a woman or a
    member of a particular minority, does not mean that that person
    is necessarily advancing the rights of that group.
        Senator Hawley. You clearly thought Justice Barrett was not
    because you say it makes no sense to congratulate her if you
    really are trying to uplift the rights of young women. I take
    it that you think that Justice Barrett was not trying to uplift
    the rights of young women.
        Ms. Harris. I think what I said in that Tweet was my
    concern about some of her prior rulings on LGBT issues, which
    is a concern to me and my family. It is personal to me. It is
    you know, I do not think of it as political. It is a concern to
    me, and that was my concern at the time, as best I can recall.
        Senator Hawley. So you do not think that this is a--you
    would not say that this is a political Tweet? You do not think
    this is a political position?
        Ms. Harris. No. I am just saying that--it was my Tweet. I
    do not know how to categorize it exactly, but I am just telling
    you that is my personal opinion about LGBT rights.
        Senator Hawley. Right. The fact that praising Amy Barrett
    is an essentialist position, so she should not be praised as a
    woman. I guess, women face, as you know, a lot of barriers.
    Justice Barrett was criticized for her faith. She was
    criticized for various positions she took as a woman. I am
    always disturbed when I see people saying, basically, you do
    not--you should not be able to speak as a woman. You do not
    have--you should not be counted as a woman because you do not
    have the right positions, whatever they are.
        Now you are entitled to take those positions, and that is a
    very political position. You are entitled to take those
    positions. I disagree with that. I mean, I think shutting down
    her voice and criticizing her in that way is actually very
    disturbing, but you are certainly entitled to take it. My
    concern is that you are being nominated for a position in which
    you are supposed to be politically neutral and people who come
    before you have to have confidence that you can give them
    judgment without regard to political affiliation.
        Let me ask you about some other comments that you have
    made. You have been especially critical of the last
    administration's actions regarding critical race theory. You
    wrote that those actions white-washed our history, and you also
    said, when our government orders a ban on certain ideologies,
    theories, and education, which just happen to deal with anti-
    racism, we should be screaming about it. Do you stand by those
    comments, and can you explain those to me?
        Ms. Harris. I think that was around the time that the
    administration was directing Federal agencies to cancel
    diversity trainings for Federal employees.
        Senator Hawley. This is October 1, 2020.
        Ms. Harris. Yes, I think that is?
        Senator Hawley. That is when your Tweet was?
        Ms. Harris. Yes, I think that is what was happening at that
    time. I thought that was a bad idea for several reasons. One, I
    think diversity training is a good idea. I think it is good for
    employees to learn about each other, learn about getting along
    together. I think it is really important to be--and I think it
    is part of the law to be able to inform employees about their
    rights and responsibilities in filing complaints of
    discrimination.
        My concern in that particular matter was the elimination. I
    thought it was overbroad, right? Maybe there were a few
    trainings that the administration did not like, but I thought
    eliminating all of them was a real problem. I had expressed
    that at the time I thought it would eliminate the Faragher
    Ellerth defense for employers, for the agencies. They would not
    be able to show that they trained employees on their rights and
    responsibilities in reporting harassment, whistleblowing, and
    all these other matters. So that was a major concern I had. I
    thought it was a really bad idea.
        I also do agree that--and I want to come back to what you
    said before.
        Senator Hawley. OK. Can I just--before we leave this
    topic----
        Ms. Harris. Yes.
        Senator Hawley. My time is technically expired, but I will
    be fast here, Mr. Chairman, in finishing this.
        Critical race theory, which is what we are talking about.
    It was critical race theory banned that the administration
    implemented. I realize this is a very divisive topic. This is
    something that a lot of people disagree on. You clearly have
    your views on it. You use language like white-washing, which is
    typically language associated with critical race theory. Again,
    that is fine.
        Here is my concern: If a Federal worker refuses to attend a
    CRT training and they get reprimanded, they may end up in front
    of you.
        My question is: Can they be sure that you will assess their
    case impartially, according to these standards that we talked
    about earlier? That is what I am driving toward here.
        Ms. Harris. Sure. First of all, I do not believe in
    silencing anyone. So if somebody has an opinion, I believe they
    should be able to express it. I want to come back to what you
    said before. I do not believe that somebody should not be able
    to express their opinion.
        I do not also know that--I mean, critical race theory
    trainings, I am not really aware of any in Federal agencies.
    Just none have ever come to my attention in my cases.
        Senator Hawley. We would be happy to provide you a list.
        Ms. Harris. But I think the answer to your question is if
    an employee was disciplined for refusing to attend a training
    of any kind that is what I would be looking at. I would not be
    looking at the type of training. OK? In terms of evaluating
    whether the disciplinary was correct.
        In terms of the Douglas Factors and looking about
    mitigating or aggravating circumstances, if the employee had a
    strongly held belief, right, about the training and why they
    did not want to go. Like you know, I had a client, a Catholic
    chaplain at the National Institutes of Health (NIH), who was
    actually fired for refusing to attend certain continuing
    pastoral education programs because he felt they did not adhere
    to his religious faith. He thought they were for other faiths,
    and he refused. I represented him, and we won. Because that is
    wrong. If someone has a firmly held religious belief, for
    example, that is something that needs to be taken into
    consideration.
        Senator Hawley. I appreciate that.
        Senator Carper. Mr. Chairman, regular order, please. We
    have a vote underway. I have not had a chance to ask any
    questions, please.
        Chairman Peters [presiding]. If you could wrap it up.
        Senator Hawley. Oh, I am done. I am just waiting. If you
    would like to interrupt the witness, Senator Carper, go ahead.
    I was just letting her finish.
        Senator Carper. Thank you. I am ready to ask questions.
        Senator Hawley. I concluded my questions before the time
    expired.
        Senator Carper. Thank you very much.
        Senator Hawley. I was going to thank them. Is it OK if I
    thank them?
        Senator Carper. Please thank them.
        Senator Hawley. All right. Thank you so much for your
    responses. I will have some additional questions for the
    record.
        Senator Carper. Thank you. Thank you, Senator.
        Chairman Peters. Thank you, Senator Hawley.

                  OPENING STATEMENT OF SENATOR CARPER

        Senator Carper, you are recognized for your questions.
        Senator Carper. Thanks very much. I think my colleagues
    heard me say, welcome, everyone. We have a lot going on in
    hearings and votes. I apologize for being here so late.
        I always like to say the leadership is most important in
    creating the success of any organization I have ever been
    privileged to be a part of and for almost any organization to
    succeed they need leadership, principles of leadership.
        The mission of the Merit Systems Protection Board is to
    protect the Merit System principles and promote an effective
    Federal workforce that is highly qualified, diverse, and
    managed fairly. Reflecting on your experience in Federal
    personnel matters, can each of you please take a moment, maybe
    a minute, to discuss the importance of having well-qualified
    Senate-confirmed leadership at the MSPB? Further, how have
    longstanding vacancies in all three board seats restricted the
    Board's ability to execute its mission?
        If you would take about a minute, please start with Ms.
    Harris, please.
        Ms. Harris. Sure. I lost a little bit of your question at
    the end, but I think it was you were asking how has the
    vacancies affected the Board's ability to operate. It has been,
    I think, very difficult for employees and agencies and the
    employees at the Board. So getting a Board restored, getting
    that system back in full operation, enabling it to do its
    statutory mission is vital to protecting the Merit System and
    ensuring that prohibited personnel practices do not occur in
    Federal Government. It is one of the pillars of good
    government, the MSPB. We need it in order to enforce the laws,
    in order to protect Federal employees from retaliation,
    political coercion, corruption, all those things. It is
    essential.
        I am really looking forward to getting down to work,
    getting the backlog reduced, as I discussed before some ideas I
    had for doing so, and ensuring that employees know that the
    Merit Systems Protection Board is there to protect them,
    protect the Merit System----
        Senator Carper. OK. I am going to ask you to stop right
    there.
        Ms. Harris. Yes, sir. Thank you.
        Senator Carper. Thanks very much. I am going to ask you to
    complete your response to the question for the record.
        Mr. Leavitt, please, same question. What I am interested in
    is how have longstanding vacancies in all three board seats
    restricted the Boards ability to execute its mission. Just very
    briefly, one minute.
        Mr. Leavitt. Absolutely. I think it has clearly had a
    significant impact. I do want to make sure everyone is aware,
    of course, the Agency has still been operating, right? All of
    the offices have still been fully busy. Former Acting Chair
    Mark Robbins used to joke, it is not that he was just sitting
    there by himself, eating bonbons all day. The offices have all
    been very busy, but it is clear that there are parts of MSPB's
    mission that just cannot be completed without board members.
        So that includes hearing petitions for review. So that
    backlog that has been growing is because there are no board
    members to hear those. Individuals can still receive an initial
    decision from an administrative judge and appeal straight to
    Federal courts. But for those that want to go to the Board,
    they have just been waiting, and that is why we have that 3,400
    case backlog.
        A second area where it has really had an impact is that
    MSPB has a really important studies function of looking at the
    operations of the Federal Government and making sure that they
    are in compliance with the merit principles, and that has
    really been impeded. So MSPB, although it has released some
    kind of watered down or some slimmer products during this time,
    it has not made big recommendations, which are part of its
    mission.
        Then, of course, one that is very important to me is
    issuing whistleblower stays. If there is no sitting board
    member at all, there is no one to issue stays. In the Office of
    Special Counsel's interactions with agencies, they are really
    missing an important tool to help encourage agencies to do the
    right thing.
        Senator Carper. Yes. The last one is--thank you for that.
        Do you pronounce your last name Limon?
        Mr. Limon. Limon, yes.
        Senator Carper. Limon, all right. Has anyone ever
    mispronounced your name?
        Mr. Limon. I am used to it.
        Senator Carper. All right. I will try not to do it. Same
    question, please.
        Mr. Limon. OK. Thank you for that question. Again, similar
    to my colleagues' statement, but as you know, the MSPB is part
    of the civil service commission, that history of protecting
    employees and letting the public know that the work that is
    being done by the Federal employees is being done in a
    nonpartisan way, that kind of four-legged stool between MSPB,
    the Office of Special Counsel, OPM, and the Federal Labor
    Relations Authority (FLRA). Without a fully functioning MSPB,
    it is not going to be centered. We are not going to be able to
    have that expectation and that appearance that there are
    institutions there to protect them and to protect applicants to
    our Federal positions.
        So, yes, there are wonderful employees currently working
    very hard at the MSPB, but not having the quorum, not having
    that leadership, people are going to think we are not at full
    strength. And truth be told, it is not at full strength. And so
    having an ability to come together and work with our sister
    agencies, to bring back and remind everybody how important
    Merit System principles are, we need to do that as soon as
    possible.
        Senator Carper. All right. Thank you.
        I have a couple of questions I am going to ask for the
    record. I would ask that you respond to these questions, if you
    will, please. One of those is: Could each of you please take
    some time in the week to come to explain what you view is the
    biggest threat to maintaining an apolitical civil workforce.
    All right. That would be No. 1.
        My next question is: Are there actions that we in Congress
    may want to consider in order to ensure the political
    independence and integrity of the merit civil service system?
    So those are my questions.
        Again, thank you all for being here today.
        Chairman, thank you for giving me an opportunity to ask
    those questions of our witnesses. Thanks.
        Chairman Peters. Thank you, Senator Carper.
        All three nominees have made financial disclosures and
    provided responses to biographical and prehearing questions
    submitted by this Committee.\1\ Without objection, this
    information will be made part of the hearing record with the
    exception of the financial data,\2\ which are on file and
    available for public inspection in the Committee offices.\3\
    ---------------------------------------------------------------------------
        \1\ The information of Ms. Harris appears in the Appendix on page
    31.
        \2\ The information of Mr. Leavitt appears in the Appendix on page
    92.
        \3\ The information of Mr. Limon appears in the Appendix on page
    146.
    ---------------------------------------------------------------------------
        The hearing record will remain open till 12 p.m. tomorrow,
    September 23rd, for the submission of statements and questions
    for the record.
        This hearing is now adjourned.
        [Whereupon, at 11:43 a.m., the Committee was adjourned.]

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