[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
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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
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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
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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.
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\1\ The prepared statement of Senator Portman appears in the
Appendix on page 26.
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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.
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\1\ The prepared statement of Senator Peters appears in the
Appendix on page 25.
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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.
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\1\ The prepared statement of Senator Van Hollen appears in the
Appendix on page 28.
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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.
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\2\ The prepared statement of Ms. Harris appears in the Appendix on
page 29.
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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.
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\1\ The prepared statement of Mr. Leavitt appears in the Appendix
on page 90.
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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.
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\1\ The prepared statement of Mr. Limon appears in the Appendix on
page 144.
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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\
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\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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