[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
        
        
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                    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.
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    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.]

                            A P P E N D I X

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