[Senate Hearing 118-240]
[From the U.S. Government Publishing Office]


                                                          S. Hrg. 118-240

                NOMINATIONS OF HON. HAMPTON Y. DELLINGER
                        AND HON. HENRY J. KERNER

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                    ONE HUNDRED EIGHTEENTH CONGRESS


                             FIRST SESSION

                               __________

         NOMINATIONS OF HON. HAMPTON Y. DELLINGER TO BE SPECIAL
                COUNSEL, OFFICE OF SPECIAL COUNSEL, AND
  HON. HENRY J. KERNER TO BE A MEMBER, MERIT SYSTEMS PROTECTION BOARD

                               __________

                           NOVEMBER 30, 2023

        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                    
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware           RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire         RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona              JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada                  MITT ROMNEY, Utah
JON OSSOFF, Georgia                  RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut      JOSH HAWLEY, Missouri
LAPHONZA BUTLER, California          ROGER MARSHALL, Kansas

                   David M. Weinberg, Staff Director
                  Claudine J. Brenner, Senior Counsel
           William E. Henderson III, Minority Staff Director
              Christina N. Salazar, Minority Chief Counsel
                  Andrew J. Hopkins, Minority Counsel
                     Laura W. Kilbride, Chief Clerk
                   Ashley A. Gonzalez, Hearing Clerk

                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Peters...............................................     1
    Senator Carper...............................................     9
    Senator Hawley...............................................    12
Prepared statements:
    Senator Peters...............................................    19

                               WITNESSES
                      Thursday, November 30, 2023

Hon. Hampton Y. Dellinger, to be Special Counsel, Office of 
  Special Counsel
    Testimony....................................................     3
    Prepared statement...........................................    20
    Biographical and professional information....................    22
    Letter from U.S. Office of Government Ethics.................    44
    Responses to pre-hearing questions...........................    48
    Responses to post-hearing questions..........................    66
    Letter of support............................................    69
Hon. Henry J. Kerner to be a Member, Merit Systems Protection 
  Board
    Testimony....................................................     5
    Prepared statement...........................................    77
    Biographical and professional information....................    79
    Letter from U.S. Office of Government Ethics.................    96
    Responses to pre-hearing questions...........................    99
    Responses to post-hearing questions..........................   114

 
                             NOMINATIONS OF
                       HON. HAMPTON Y. DELLINGER
                        AND HON. HENRY J. KERNER

                              ----------                              


                      THURSDAY, NOVEMBER 30, 2023

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
room 562, Dirksen Senate Office Building, Hon. Gary Peters, 
Chair of the Committee, presiding.
    Present: Senators Peters [presiding], Carper, Hassan, 
Ossoff, Scott, and Hawley.

             OPENING STATEMENT OF SENATOR PETERS\1\

    Chairman Peters. The Committee will come to order. Today we 
are considering two nominations, Hampton Dellinger to be the 
Special Counsel for the Office of Special Counsel (OSC), and 
Henry Kerner, to be a Member of the Merit Systems Protection 
Board (MSPB).
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Peters appears in the 
Appendix on page 19.
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    Welcome to each of our nominees, and to your friends and 
family members who are joining us here today. Thank you for 
your prior public service and your willingness to fill these 
two very important positions.
    OSC and the MSPB are both small, independent agencies that 
help build a more effective and accountable Federal Government. 
In particular, both are essential to protecting whistleblower 
rights. Federal employees must be able to report waste, fraud, 
and abuse all across government without the fear of reprisal.
    Whistleblowers have exposed serious safety shortfalls, 
wasteful spending, and corruption. They are indispensable to 
the oversight work of Congress and the Inspector General (IG). 
The Special Counsel is the Chief Whistleblower Advocate in the 
Federal Government and is responsible for safeguarding 
whistleblower rights.
    OSC investigates whistleblower disclosures and prosecutes 
instances of retaliation for vulnerable employees. In addition, 
OSC helps to ensure that the Federal Government is free from 
improper partisan political activity and protects our service 
members and veterans from employment discrimination.
    Mr. Dellinger, independence is critical to the success of 
the OSC, and I appreciate the commitments you have made to 
leading OSC in a nonpartisan manner, if confirmed. I look 
forward to learning more about your experience as well as your 
vision for this office.
    The Merit Systems Protection Board is an independent, 
quasi-judicial agency dedicated to upholding the merit systems 
principles at the very heart of the Federal civil service. The 
bipartisan three member Board evaluates cases of whistleblower 
retaliation and other violations of civil service laws.
    The Board also conducts governmentwide studies of important 
civil service issues and provides oversight of the Office of 
Personnel Management (OPM). Last year, the Senate confirmed 
three MSPB members.
    Before that, the Board was left without a quorum for more 
than five years. These unprecedented vacancies led to an 
immense backlog of approximately 3,800 cases. I am grateful for 
the hard work that the MSPB has done to resolve a significant 
portion of this backlog, providing long awaited resolutions and 
relief for many Federal employees.
    That said, there is still a whole lot of work to be done. 
Mr. Kerner, your confirmation would give the MSPB its full 
complement of Board members and allow it to carry out these 
essential responsibilities, and I look forward to hearing more 
from you today about how you plan to approach this new role.
    Each of these nominees will help our Federal Government 
remain accountable, efficient, and effective, and I look 
forward to further discussing their plans for each position. It 
is the practice of the Homeland Security and Governmental 
Affairs Committee (HSGAC) to swear in witnesses.
    If each of you would please stand and raise your right 
hand. Do you swear the testimony that you will give before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Mr. Dellinger. I do.
    Mr. Kerner. I do.
    Chairman Peters. You may be seated. Our first nominee, 
Hampton Dellinger, has most recently served in the Department 
of Justice (DOJ) from October 21 to June 23, 2023, as an 
Assistant Attorney General (AAG) overseeing the Office of Legal 
Policy (OLP).
    During his tenure, OLP updated guidelines for the support 
of crime victims, contributed to the National Strategy to 
Combat Human Trafficking, and played a key role in implementing 
public safety policies such as the bipartisan Safer Communities 
Act.
    He has previously served in the North Carolina Department 
of Justice, the Office of North Carolina Governor, and in 
private practice. Dellinger holds a J.D. from Yale Law School, 
and I am proud to note that he received his undergraduate 
degree from a really wonderful, great university, the 
University of Michigan.
    Mr. Dellinger, you are recognized for your opening 
statement.

    TESTIMONY OF HON. HAMPTON Y. DELLINGER\1\ TO BE SPECIAL 
               COUNSEL, OFFICE OF SPECIAL COUNSEL

    Mr. Dellinger. Chairman Peters, Senator Hassan, Ranking 
Member Paul, and Senators of this distinguished Committee, 
thank you for considering my nomination to head the Office of 
Special Counsel. Each day millions of Federal employees 
interact, reach decisions, and take action.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Dellinger appears in the Appendix 
on page 20.
---------------------------------------------------------------------------
    We are all indebted to these honorable civil servants as so 
much of this workplace conduct is lawful, professional, and in 
the public interest. But each year there are several thousand 
complaints made to the Office of Special Counsel about 
governmental conduct that is not appropriate.
    We also owe thanks to everyone who blows the whistle on 
government misconduct because they do so with great courage, 
and regrettably, too often find themselves at professional 
peril. But our gratitude is not enough.
    Federal Government whistleblowers deserve and are legally 
entitled to robust protection from retaliation. Simply put, the 
branch of government that executes the law and enforces the law 
must obey the law always.
    If confirmed, I will take every complaint made to OSC 
seriously, every single one, and my overriding goal will be to 
contribute to greater trust in government, including by 
protecting whistleblowers vigorously.
    To earn such trust, I promise to act independently, just as 
I have done throughout my 30 year legal career. In North 
Carolina, I sued the Administration of a Governor I admired and 
had previously worked for because I saw taxpayer funds being 
misused and wasted.
    At the United States Justice Department, I advocated for 
scientists and not lawyers to lead on forensic science issues. 
I raised privacy, civil rights, and civil liberties as vital 
considerations in surveillance and other law enforcement 
operations.
    OSC's independence to me would mean ensuring that all 
Federal workers, no matter what they disclose or about who they 
challenge, receive the legal rights and protections they are 
guaranteed. If confirmed, I will work with my OSC colleagues to 
vindicate these rights and protections.
    We will do so independently, even handedly, without regard 
to politics, and 100 percent consistent with the mission and 
mandate Congress has given the agency. I have worked with, 
advocated for, and provided trusted counsel to whistleblowers 
throughout my career.
    They were key to the Medicaid fraud cases I oversaw in the 
North Carolina Attorney General's Office, to the False Claims 
Act case I filed on behalf of a qui tam plaintiff, and to 
lawsuits and investigations I have handled and led for years. I 
strongly agree we should have an annual designated 
Whistleblowers Day to acknowledge their inestimable 
contributions to government accountability and transparency. If 
confirmed, I will make sure to ensure that Federal Government 
whistleblowers are respected and protected every day.
    OSC also enforces the Hatch Act, a law that demands 
nonpartisanship in Executive Branch activities. I know the 
Hatch Act well. I taught it as a law school instructor, and I 
followed it to the letter as a public official.
    I am prepared to enforce it vigorously and even handedly. I 
also believe deeply in another core mission of OSC, ensuring 
that Federal workers also serving in the military do not face 
job related setbacks when returning from active duty or 
training.
    I made promises to the U.S. Senate when in 2021 you 
confirmed me to be an Assistant Attorney General heading up the 
Office of Legal Policy. I kept my word. Senators asked me not 
to impose litmus tests on potential judicial nominations my 
office vetted. I did not. I was urged to make sure that 
background investigations of nominees were thorough and 
surfaced every relevant issue. I did. I was told not to be a 
partisan. I was not.
    I win with my family. My late father, Walter, served in the 
Executive Branch in the 1990s. My late mother, Anne, also 
worked for the Federal Government. She was with the Federal 
Bureau of Investigation (FBI) in 1979 and 1980, and while 
there, she had the courage to call out gender discrimination 
she witnessed.
    I am proud of my mom's distinguished career, as well as my 
dad's, and I deeply admire the teaching and scholarship of my 
wife, Jolynn, a privacy expert at Duke Law School. Our son and 
our daughter are both first year law students, and I hope they 
are studying for exams. I know the most valuable possession I 
can give them is the good name my parents left for me.
    As a lawyer, a husband, and a father, I can assure the 
Committee that I will always adhere to my legal and ethical 
obligations and properly discharge my duties. If confirmed, I 
will be serving as Special Counsel as a high honor bestowed 
upon me only temporarily, and one that I must safeguard as a 
vital public trust.
    Thank you for your consideration. I want to thank Henry 
Kerner, who ably upheld that trust during his recently ended 
tenure as Special Counsel. Acting Special Counsel Karen Gorman 
is doing so as well. I am indebted to and thank them both. I am 
honored to be here and welcome your questions.
    Chairman Peters. Thank you. Our second nominee, Henry J. 
Kerner, as was mentioned, most recently served in the role that 
Mr. Dellinger is nominated to fill.
    He served as Special Counsel of the U.S. Office of Special 
Counsel and served in that role from October 2017 to October 
2023. During that time, he helped increase OSC's responsiveness 
to whistleblower complaints and restructured the office's 
programmatic units to improve efficiency.
    Mr. Kerner has a long career of public service, including 
as a prosecutor in Compton, California, and a staff member for 
the House Committee on Oversight and Government Reform. He 
holds a J.D. from the Harvard Law School.
    Mr. Kerner, welcome to the Committee, and you are now 
recognized for your opening statement.

  TESTIMONY OF HON. HENRY J. KERNER\1\ TO BE A MEMBER, MERIT 
                    SYSTEMS PROTECTION BOARD

    Mr. Kerner. Thank you very much, Mr. Chairman. Chairman 
Peters, Ranking Member Paul, Senator Hassan, and distinguished 
Members of the Committee, thank you for the honor to appear 
before you today and for the privilege of your consideration of 
my nomination.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Kerner appears in the Appendix on 
page 77.
---------------------------------------------------------------------------
    I am honored that Minority Leader McConnell recommended me 
and President Biden nominated me for the position of member of 
the Merit Systems Protection Board, which protects the 
employment rights of Federal employees and safeguards the merit 
system that is foundational to our nonpartisan career civil 
service.
    I would like to start by extending my gratitude to my 
family in California. My parents, Mark and Larissa, who are 
watching online. They have been incredibly supportive, and I 
appreciate their continued engagement. I am also grateful to 
the late Senator John McCain, who gave me the opportunity to 
serve as a Staff Director on this Committee's Permanent 
Subcommittee on Investigations (PSI) during the 113th Congress.
    Finally, I want to thank the staff of OSC, some of whom are 
here today, with whom I have worked over the past six years. My 
former colleagues at OSC are incredibly hardworking, 
knowledgeable, and dedicated to the agency's mission.
    Together, we had to overcome many obstacles from the 
Coronavirus Disease 2019 (COVID-19) pandemic to addressing the 
agency's backlog, to an extended government shutdown, to two 
Supreme Court cases that challenged OSC's independence.
    I am so proud of how everyone not only persevered but 
excelled in the face of these myriad external challenges over 
my term as Special Counsel. Six years ago, I sat before this 
Committee to lay out my vision for OSC as the nominee for 
Special Counsel. I would like to briefly recap some of those 
goals and see what we were able to accomplish during my tenure. 
First, I wanted to build on the excellent work of my 
predecessor, now Judge Carolyn Lerner.
    We achieved record numbers of what we call favorable 
actions, which include corrective action for complainants and 
disciplinary action against agency officials found to have 
engaged in misconduct. For example, in Fiscal Year (FY) 2022, 
OSC achieved a record 417 favorable actions, nearly 20 percent 
above the average over the previous five Fiscal Years.
    In 2021, OSC was recognized as the second highest ranked 
best places to work out of 29 small Federal agencies by the 
Partnership for Public Service (PPS) and Boston Consulting 
Group (BCG). We finished in the top three again in 2022 and 
this year. Second, I said I wanted to implement information 
technology (IT) system upgrades to prioritize caseload 
efficiency.
    In 2018, OSC successfully launched our new internal case 
management system, electronic case management system (eCMS), 
which is considerably more user friendly than its predecessor, 
OSC 2000, was. Six years ago, I also highlighted my goal of 
addressing how to optimize the intake of cases to provide 
appropriate response times to whistleblowers.
    When I first arrived at OSC, I assembled an efficiency and 
effectiveness working group, which studied OSC's processes and 
found that OSC could perform more efficiently by improving 
interagency collaboration and communication.
    Under the resulting reorganization, OSC streamlined its 
procedures for prohibited personnel practice (PPP) complaints, 
by combining units with overlapping responsibilities and 
creating one unit to handle all PPP complaints that meet 
threshold jurisdictional requirements.
    Fourth, I wanted to increase educational outreach with 
agency and congressional staff, especially with regard to the 
Hatch Act and whistleblower rights. It is critical that OSC 
work with agencies to ensure they receive robust training to 
prevent violations before they can occur.
    During my tenure, we dramatically increased training of the 
Federal community, conducting approximately 150 outreach events 
per year. With regard to the Hatch Act, am very proud of OSC's 
record of evenhanded enforcement.
    A Special Counsel's term is five years, including a 
potential one year holdover, and intended to overlap 
Presidential Administrations. The statutory scheme relies on 
the Special Counsel's independence, unbeholden to political 
influence and free from partisan bias. I relied heavily on the 
recommendations from OSC's experienced career Hatch Act unit 
staff, and we enforced the Hatch Act evenly against members 
from both Administrations.
    In summary, I am proud of our achievements over the past 
six years, and I am confident that OSC will continue to be a 
model Federal agency in the future. I now look forward to a new 
challenge as a Board member at the MSPB, in the event I am 
fortunate enough to be confirmed.
    The mission of the MSPB is to protect the Federal Merit 
System principles which uphold the value of fairness, equal 
opportunity, and nondiscrimination within our civil service. If 
confirmed, I look forward to the opportunity to work closely 
with the two other members, Acting Chair Cathy Harris and Ray 
Limon, to protect the employment rights of Federal employees 
and to work down the inherited inventory of cases from the 
years without a quorum.
    I also wanted to say thank you to Mr. Dellinger for his 
kind words in his opener. Of course, should he be confirmed, I 
wish him nothing but the best and stand ready to assist in any 
way. Thank you for listening to me, and I would be happy to 
answer any questions. Thank you.
    Chairman Peters. Wonderful. Thank you for that. There are 
three quick questions that this Committee ask of every nominee, 
and I am going to ask you both to respond just briefly with a 
yes or no.
    Mr. Kerner, we will start with you, and then Mr. Dellinger, 
for the three questions. First, is there anything that 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?
    Mr. Kerner. No.
    Mr. Dellinger. No.
    Chairman Peters. Second, do you know of anything personal 
or otherwise, that would in any way prevent you from fulfilling 
and honorably discharging the responsibilities of the office 
for which you have been nominated?
    Mr. Kerner. No.
    Mr. Dellinger. 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?
    Mr. Kerner. Yes.
    Mr. Dellinger. Yes.
    Chairman Peters. Very good. Mr. Dellinger, the Office of 
Special Counsel has around 140 employees, ones responsible for 
protecting the whistleblower rights of all 2.1 million 
employees all across the Federal Government.
    My question for you, sir, is if confirmed, how will you 
ensure that every Federal employee has confidence in OSC's 
independence and commitment to protect whistleblowers?
    Mr. Dellinger. Thank you, Senator. The first thing I want 
to recognize is the fine work that OSC has been doing under 
former Special Counsel Kerner. He and Judge Lerner really 
helped, I think, to elevate the confidence that Federal workers 
can have in OSC.
    I think Congress has confidence in OSC, and OSC has been 
doing a great job, it looks like, at prioritizing the cases 
that it will focus on and being really efficient and really 
effective with the cases before it.
    My first order of business is to not disrupt the great work 
that is being done today, including under Acting Special 
Counsel Gorman. That will be my focus. I have worked with 
whistleblowers throughout my career.
    I have been a litigator throughout my career. I have been 
an investigator throughout my career. Those are the core 
functions of OSC, to investigate, to litigate, to advocate. It 
is something I have a lot of experience with, and I would very 
much look to be a meaningful member of the team.
    Chairman Peters. Mr. Kerner, the MSPB and the OSC both 
serve important functions when it comes to upholding 
whistleblower rights and preventing prohibited personnel 
practices.
    However, the role of an individual MSPB member is quite 
different from that of the Special Counsel role. My question 
for you, sir, is if confirmed, how will you approach the 
transition from leading an office focused on investigating and 
prosecuting cases, to serving as an impartial adjudicator?
    Mr. Kerner. Absolutely. The roles are quite different. Not 
only is the Special Counsel, of course, investigating these 
practices, but also the Special Counsel stands alone stands as 
a single decisionmaker, a single director.
    The transition to going to the Board will require a 
different skill set, both in terms of a different role, which 
is now adjudicating cases. It is a more judicial role. But also 
working in a Board, working with two other members, and having 
that kind of give and take that is required in order to come to 
hopefully consensus or working on the decisions.
    I think one thing that has really prepared me at OSC very 
well for this role is I have always had an open discussion 
process, and people were able to express their views freely.
    I have kind of been a little bit in a judicial role already 
because I would get opinions from various people and then had 
to make a call based on that. I think that training I will 
bring with me when that same thing happens in adjudicating 
cases, obviously a little bit more on the judicial side at that 
point.
    Chairman Peters. Mr. Dellinger, one of OSC's lesser known, 
but I think incredibly important responsibilities is enforcing 
the Uniformed Services Employment and Reemployment Rights Act 
(USERRA).
    This law ensures that military service members and veterans 
do not face discrimination when they are seeking return to 
civilian employment. Could you briefly describe how you will 
prioritize USERRA enforcement if you are confirmed for this 
position?
    Mr. Dellinger. Absolutely, Senator. I am proud of my ties 
to Michigan, but I am the Tar Heel. I grew up in North 
Carolina, and North Carolina prides itself on being America's 
most military friendly State.
    For decades, my friends, coworkers have been in the 
military, active duty, reserves, and I have seen them leave the 
civilian workforce and then come back. I strongly believe in 
USERRA, in the protections that Congress has established for 
members of the Federal civilian workforce to allow them to 
serve our country, to respect the fact that they have put their 
lives on the line for America, but then to return with no 
detriment to their civilian prospects.
    I believe there is a sensitivity within Federal agencies to 
the rights that Federal employees have when they go on active 
duty or training. But when issues arise, it is up to the Office 
of Special Counsel to protect our Federal workers who are in 
the military, and I am fully committed to making sure that all 
the necessary resources are available, if confirmed, to 
vindicate the rights of every single member of the Federal 
civilian workforce who also does double duty on behalf of 
America in the military.
    Chairman Peters. Ensuring that employees and managers fully 
understand their rights and their responsibilities I think can 
be argued will help prevent whistleblower retaliation and other 
prohibited personnel practices before they occur, which is the 
ultimate goal.
    Mr. Kerner, are there any outreach or training efforts that 
you found to be particularly effective during your tenure at 
the OSC? If so, or if not, are there lessons that you have 
learned that you are going to be able to apply to the MSPB?
    Mr. Kerner. Yes. Yes, Mr. Chairman. The outreach on OSC was 
very important. We did about 150, give or take, different year.
    I know the Hatch Act unit goes and has meetings. I think 
most effective, since you asked about effectiveness, are 
meetings that are in person that allow for engagement, and we 
did a lot of those. I noticed that MSPB also did a lot of 
outreach. They have done about 112 meetings.
    I think we are quite aligned with them on that. As you say, 
it is crucially important to teach supervisors and also 
managers about non-retaliation. I think just building on the 
good work and having a very robust outreach function.
    OSC has three dedicated people to doing that plus a lot of 
the line lawyers also go out and do a lot of the teaching. I 
think having an emphasis from the top about the importance of 
outreach, advocacy, and training is really important.
    Chairman Peters. Apart from the agency's adjudication 
functions, MSPB responsibilities include conducting nonpartisan 
studies on the Federal workforce that can inform policymakers 
and other government decisions.
    Mr. Kerner, if confirmed, how would you use your role on 
the Board to shape the strategy for these Federal workforce 
studies and the specific topics that they assess related to the 
health of the Federal service?
    Mr. Kerner. MSPB has a plan, actually. They have an office, 
I think it is called OP, that conducts these studies. That 
office has laid out a plan. It is from 1922 to 1926. They had 
about 40 studies that they suggested looking at six different 
areas.
    Their proposals go to the Board. The Board already approved 
a lot of them and prioritized the number of them. By the time I 
get there, there is already a plan in place. Obviously, the 
last couple of studies were on sexual harassment in the 
workforce and on perceptions of prohibited personnel practices.
    They are very timely and very important things. As I said, 
they have about 40 that they have already prepared and the 
Board has voted on to prioritize, but obviously, once I come 
in, I am happy to contribute my thoughts on this topic as well.
    Chairman Peters. And you mentioned some of the future. Do 
you anticipate conducting studies on the Federal Government's 
recruitment, retention, and training practices, and how they 
can be improved? Is that something you would be interested in 
focusing on?
    Mr. Kerner. Yes, and I believe those are already on the 
approved list from the 1922 to 1926 time period.
    Chairman Peters. Those are ones that you will focus on?
    Mr. Kerner. I think mine would be a recommendation, but I 
certainly think those should be considered, yes.
    Chairman Peters. Great. Good. Thank you. Senator Carper, 
you are recognized for your questions.

              OPENING STATEMENT OF SENATOR CARPER

    Senator Carper. Thanks, Mr. Chair, and welcome. Nice to see 
both of you. Congratulations on your nominations and thank you 
for your distinguished careers and your service to the people 
in this country.
    As a lifelong public servant, you know better than most 
that our workforce is one of the most important assets, I think 
maybe the most important asset, that we have in the Federal 
Government.
    The role of Special Counsel and the Merit System Protection 
Board is, as you know, critical to safeguarding the integrity 
of our civil service, protecting whistleblowers and ensuring 
that all Federal employees have a safe and a fair place to 
work. I am going to start off with a question if I could, Mr. 
Dellinger, for you on the importance of customer service, 
something I have been interested in forever--customer service.
    During your nomination, you have mentioned the importance 
of improving customer service, something I applaud, and 
developing a culture at the Office of Special Counsel. To make 
sure resources are accessible and available to those who need 
them. I applaud your commitment.
    During the Thanksgiving holidays, my wife and I went on a 
five State road trip and it took us back to my native West 
Virginia, and we almost drove in Beckley, West Virginia, on 
Harper Road, where Patton's Market used to exist and was in 
business for 30 years or more, owned by my aunt and uncle.
    The butcher was my grandfather. when you walked into that 
store, it had a sign that said, welcome to Patton's Market. 
Friendliest store in Beckley. My wife and I visited one of my 
cousins whose father owned that store, and they found their 
home in their garage that sign that used to say, welcome to 
Patton's Market, friendliest store in Beckley.
    I am a big believer in, as a kid who used to work there a 
long time ago, big believer in customer service. But I believe 
in improving customer service and making government more 
accessible to the people that we serve, whether it is expanding 
access to taxpayer services, which we deal with another 
committee, I serve on the Finance committee, or improving 
services that our division of Motor Vehicles and inspection 
lanes and all.
    Our constituents need to know that our government is 
responsive to them and their needs, and I think the Office of 
Special Counsel is no different. While your customers may be 
whistleblowers or civil service employees, your office has a 
responsibility to intake complaints efficiently and 
effectively.
    My question is, Mr. Dellinger, what a customer service 
oriented culture at the Office of Special Counsel look like to 
you? Could you just explain for us why customer service is 
critical in your point of view, and why is it critical to 
fulfilling the Special Counsel's mission?
    Mr. Dellinger. Thank you, Senator, for the question and for 
being here. I, my first job was delivering newspapers. I always 
took it to the door, then I bagged groceries. I would take it 
to the car. Is something I have--customer----
    Senator Carper. Sounds familiar.
    Mr. Dellinger. Yes. Customer service is something I grew up 
with. Particularly as a litigator, you have clients, witnesses 
who are facing maybe the most difficult moment of their 
professional careers when they are in high stakes litigation, 
and you have millions of Federal workers, but every year you 
have a couple thousand who see wrongdoing, who see misconduct, 
and who do not look away.
    They stand up and say something. To my mind, every single 
one of those cases has to be taken seriously, empathetically. 
You have to look at the facts and follow the facts and the law. 
It is difficult with a small agency, a couple hundred, 120, 
130, 140 members of OSC trying to look out for 2.1 million 
Federal workers.
    But the way to do it is to not think about the overall 
statistics. Think about each person's individual. As I said in 
my opening statement, I am committed to taking every single 
complaint filed with OSC seriously and personally.
    Senator Carper. In addition to that, what steps, other 
steps come to mind that you take to make the Office of Special 
Counsel and its resources as accessible as possible to any and 
all who need them? Are there any specific areas of improvement 
or policies that you are looking to implement?
    Mr. Dellinger. I would want to, if confirmed, consult with 
my new colleagues. I certainly admire the work that former 
Special Counsel Carter did, along with his colleagues in 
reducing the backlog. Obviously, having a quorum at the Merit 
Systems Protection Board has helped, but there are still 
thousands of cases pending at the Protection Board.
    There are a number of cases OSC is still working on. I am 
committed to being a hardworking part of the team. I will take 
on any task to get the job done, and I am committed to making 
sure and advocating for OSC having the resources it needs to 
get the job done that Congress has intended.
    Senator Carper. OK. Thank you. Mr. Kerner, please welcome. 
Good to see you. As you know, the Merit Systems Protection 
Board, you know better than most of us, what nearly five years 
without a quorum significantly hampered its ability to function 
and the process cases. During this time, the backlog grew to an 
unprecedented level.
    A total of more than 3,500 cases, which is a lot of cases. 
Justice delayed is justice denied. We need a functioning and 
effective Board to safeguard the civil service and protect our 
fellow employees. In your testimony, I believe you mentioned 
your commitment to working with your fellow Board members to 
address this backlog. Good for you.
    Mr. Kerner, as a Special Counsel, you testified that you 
modernized the office's case intake system and improved 
responsiveness and favorable actions on behalf of complainants. 
Question, can you share with us what strategies you found were 
most effective as Special Counsel in improving the office's 
ability to be responsive and effective? What lessons did you 
learn during your tenure?
    Mr. Kerner. Thank you, Senator Carper. It is nice to see 
you again as well. I also delivered newspapers when I was a 
kid.
    Senator Carper. Anybody in the room who did not deliver--or 
bagged groceries? All of the above. [Laughter.]
    Mr. Kerner. I think the most effective ways that we 
improved customer service and OSC and also efficiency was 
through, as you say, getting through the backlog, being more 
efficient. We combined some units that had some lags, internal 
lags.
    We eliminated that. What happen is now when you file with 
OSC, you get someone assigned, typically a lawyer or 
occasionally an investigator within 48 hours. That person is 
assigned for the duration of the case.
    There is no handing over cases which delays, or people 
having information about the cases. We learned that having more 
efficiency that way is really helpful. We reduced the backlog 
by almost a thousand cases at OSC.
    I have to give credit to the current Board members, Kathy 
Harris and Ray Limon. They reduced the backlog from, as you 
say, almost 3,800 cases to about 1,900. About half in a year 
and a half. Hopefully I am lucky to be confirmed, I would get 
in there and help out with that task, too, because as you say, 
justice delayed is justice denied.
    Senator Carper. Thank you. In closing, my time is expired. 
When I used to be Governor, when I got to be Governor, we were 
considering changing the State motto, and it had been, we were 
the first State to ratify the Constitution.
    You come across the border into Delaware, and it would say, 
welcome to Delaware, fist State at the start of the Nation. 
Pretty good motto. Another Governor, I think, was Governor Pete 
du Pont changed that to the small wonder, welcome to Delaware, 
which is a pretty good one as well.
    I toyed with the idea of a new Governor changing that even 
for further to say, welcome to Delaware, the friendly, but you 
will get used to it. With that, I am going to relinquish my 
time. Thank you. Thank you all for your service. It is nice to 
see you.
    Chairman Peters. Thank you, Senator Carper. Senator Hawley, 
you are recognized for your questions.

              OPENING STATEMENT OF SENATOR HAWLEY

    Senator Hawley. Thank you very much, Mr. Chair. 
Congratulations to the nominees. Thanks for being here. Mr. 
Kerner, let me start with you.
    Almost two years ago this month, I wrote a letter to the 
General Services Administration (GSA) about the Goodfellow 
Federal Center in St. Louis, Missouri. This was, you might 
remember, a center where workers had been exposed and children 
have been exposed in the childcare facility to widespread 
contaminants, including asbestos, lead, mercury, arsenic, and 
explosive materials, just for good measure.
    I wrote this based in large part on your report to 
President Biden, which claimed that whistleblowers had reached 
out to your office regarding this issue. I am pleased to say 
that since that debacle, the Goodfellow Center has been closed. 
That its employees have been moved to a safe location in 
downtown St. Louis.
    I bring this up to say that I appreciate your vigilant work 
on this. Because of the work that you did and because of your 
protection for whistleblowers, we were able to get some relief, 
much needed relief for the people of my State.
    Let me ask you this, if confirmed, what role, if any, would 
you see yourself playing in continuing to protect 
whistleblowers who might speak out to Federal officials and 
expose important instances of corruption and abuse like that 
one?
    Mr. Kerner. Thank you very much, Senator. On the Board, it 
is really important that we have an adjudicatory function, so 
it is a little bit different.
    But making sure that there is no retaliation either within 
MSPB itself, but also making sure that people, there is being 
denying cases that are brought, and that those are adjudicated 
correctly, and that whistleblowers are protected and do not 
face retaliation.
    I think it is from a judicial standpoint as opposed to from 
an investigatory standpoint that I would contribute at that 
point.
    Senator Hawley. Yes. Very good. In terms of making sure 
that the whistleblowers do not face retaliation, particularly 
at MSPB, what steps do you envision taking to see that that is 
the case?
    Mr. Kerner. One of the most important steps is you have to 
communicate that. I know Chair Harris has already done that. I 
am aware she has had a yearly speech where she tells managers 
not to do that. It is also managers performance plans.
    They get evaluated based on nonretaliation. I, from my own 
experience, of course, bring a special sensitivity to that 
because that is what I have been doing for the last six years. 
I also believe in what I call the challenge process, and that 
is basically allowing people to have a wide swath of opinions 
that I listen to.
    Everyone's welcome to express those, and there is no 
retaliation permitted.
    Senator Hawley. Very good. Thank you for your service on 
this. Mr. Dellinger, you were at the Office of Legal Policy for 
how long?
    Mr. Dellinger. Approximately two years.
    Senator Hawley. Yes, I think I saw you in the Judiciary 
committee before you took that job. Are you familiar with this 
case, Missouri v. Biden?
    Mr. Dellinger. Not in detail. The civil appellate office, 
Assistant General would focus on the litigation for the 
Department.
    Senator Hawley. But are you aware of the case and its 
significance? Do you know what it is about? Do you know 
anything about it?
    Mr. Dellinger. I would be happy to respond to any specific 
questions you have.
    Senator Hawley. I am surprised that you have not at least 
heard of it. Are you aware of the basics of the case?
    Mr. Dellinger. I would ask that you remind me.
    Senator Hawley. Missouri v. Biden is a case brought by my 
State against the Biden Administration and various agencies of 
the government, including those you had some portion overseeing 
in the Department of Justice, for their coordination with 
social media companies in censoring American speech. Is this 
ringing any bells yet?
    Mr. Dellinger. It does.
    Senator Hawley. OK, good. I would certainly hope so. It is 
to my knowledge the first time that a series of Federal courts, 
Federal District Court, Federal Court of Appeals found that the 
White House directed the censorship of American speech and 
directly violated the First Amendment.
    Now, the court found, among other things, that there are 
voluminous trial findings here that were then affirmed on 
appeal, and the Fifth Circuit found that the White House 
directed these social media companies to take down posts that 
they did not like, directed the social media companies to 
change or alter their censorship practices.
    That the FBI, that Cybersecurity and Infrastructure 
Security Agency (CISA), that the Centers for Disease Control 
and Prevention (CDC), and a variety of other Federal agencies 
regularly met with these social media companies and coerced 
them into carrying out the Administration's censorship agenda. 
That included people in my State who were censored.
    We had parents, according to the court's findings, parents 
in my State, in the greater St. Louis area who had posts about 
school Board meetings that were removed by Facebook--school 
Board meetings that were removed at the direction of the White 
House and the FBI. This is really extraordinary.
    These companies, I should say, already have too much power. 
These companies are, in my view, a scourge in this country. But 
to have the Federal Government use the companies as their 
instrumentality to censor American speech is unbelievable.
    Were you aware of this happening while you were at the 
Justice Department?
    Mr. Dellinger. I was not involved in litigation on behalf 
of the Justice Department.
    Senator Hawley. Were you aware of the actions happening? 
Were you aware that the White House, the Justice Department, 
the FBI, CISA, the CDC were meeting with social media 
companies?
    Mr. Dellinger. I was not.
    Senator Hawley. What would you advise the White House to do 
in the wake of this ruling?
    Mr. Dellinger. I think all Americans and all parties to 
litigation have to comply with court orders. I know the Justice 
Department has a litigation process where the civil appellate 
division, the Office of the Solicitor General handles 
litigation on behalf of the Department. There has certainly 
been a lot of litigation involving States, including yours. 
One, you follow the order of the court, and you follow the 
process on appeal.
    Senator Hawley. But do you think that this is a problem? Do 
you think it is a problem that the White House, the FBI, the 
CDC, CISA has been found by Federal, multiple Federal courts 
now to have violated the First Amendment with respect to the 
speech of individual Americans? Does that strike you as 
problematic?
    Mr. Dellinger. I certainly believe that everyone needs to 
follow the court order. If there has been a court finding and a 
court directive, then all Americans, including the Federal 
Government, need to adhere to the court directive.
    Senator Hawley. Do you think it is appropriate for the 
White House and other members of the Federal Government to meet 
with social media company executives and officials and try to 
coerce them to carry out the speech agenda of the White House? 
Do you think that's appropriate?
    Mr. Dellinger. I think what is appropriate is that every 
Federal employee follow the law, respect and honor the First 
Amendment. Do not engage in improper censorship. To that 
extent, I agree with you that conduct has to be lawful and 
Constitutional.
    Senator Hawley. Were you consulted at any time in the last 
two years about meetings with social media companies, 
interfacing with social media companies, policy toward social 
media companies in any way?
    Mr. Dellinger. My office did play a coordinating role to 
combat human trafficking. I am not aware of any specific 
meetings, but I know we were one aspect of combating human 
trafficking.
    Senator Hawley. What about combating so-called 
misinformation, disinformation, mal information?
    Mr. Dellinger. Right. I was not involved in that.
    Senator Hawley. The Office of Legal Policy has given no 
advice on that at any time, to the White House, to the Attorney 
General, to the DAG?
    Mr. Dellinger. No. Again, you have the Civil Appellate 
Office, Solicitor General, Office of Legal Counsel. That type 
of issue might have fallen in one of those bailiwick.
    Senator Hawley. Your testimony to this Committee is you 
were completely outside of the loop on this at all times. You 
knew nothing about it.
    You did not play any role in it and that your office did 
not play any role at any of these meetings with social media 
companies. You were not consulted about it at any time?
    Mr. Dellinger. That is correct. Again, other than on 
efforts to combat human trafficking.
    Senator Hawley. That did not involve any request to change 
the moderation policies, so-called, of any of these companies, 
to your knowledge?
    Mr. Dellinger. Not to my knowledge, Senator.
    Senator Hawley. OK. Mr. Chair, my time has expired. I want 
to note again for the record, the reason I raise this with you, 
Mr. Dellinger, is you were in a very senior leadership position 
at the Department of Justice.
    This is very serious. It is very serious when the American 
people cannot go online and post about a school Board meeting 
and not have the White House censor their speech. We are not 
going to have a democracy if you cannot speak in this country. 
It was not one issue.
    I advise you to read the case. It was COVID. It was 
elections. It was school Boards. It was the Hunter Biden laptop 
story. It was everything. It was anything that the White House 
did not like that it would label disinformation, mal 
information, who knows what. Anything they did not like they 
would go to these companies and the companies remarkable just 
complied.
    Of course, they coerced them to do it, but I am sure the 
companies actually enjoyed doing it because they enjoyed the 
power. The problem is that the only people who do not have 
power in this scenario are the American people. They are the 
ones who get screwed in this.
    I can just tell you, if we cannot have free speech in this 
country, we cannot have free elections in this country, and we 
do not have a democracy. The fact that you were in a leadership 
position at the Department of Justice while this is going on 
gives me serious pause. Thank you, Mr. Chair.
    Chairman Peters. Thank you, Senator Hawley. One last 
question before we start wrapping this up, and it is going to 
be to both of you gentlemen. You both have extensive experience 
working directly with whistleblowers throughout your entire 
career.
    My question for you is, are there additional steps that you 
think that agencies or Congress can take to strengthen 
whistleblower protections and create a more open, more non-
retaliatory culture all across the government? Are there any 
things that come to mind that would be helpful for us to 
consider, particularly as this Committee attempts to constantly 
strengthen the protections for whistleblowers?
    Mr. Kerner, we will start with you, and then the last word 
will go to you, Mr. Dellinger.
    Mr. Kerner. Yes. I think the most important thing in terms 
of strengthening whistleblower protections is the consensus, 
the bipartisan consensus.
    To the extent that the Congress, the Senate, this Committee 
can find it to collaborate and to agree amongst yourselves on 
the importance of protecting whistleblowers, because sometimes 
whistleblowers disclose things that may be inconvenient to one 
party or the other in power.
    But if we do not support them in general and in principle, 
then it becomes a matter of political football. I think that is 
the important thing, and that then trickles down to agency 
leadership. Holding the secretaries, the cabinet secretaries, 
the leaders of agencies accountable for ensuring that 
whistleblowers are protected.
    One of the things I did when I was there, I went and met 
with a lot of leaders. I met with three Veteran's Affairs (VA) 
secretaries, the current one and the two prior predecessors, in 
terms of respecting whistleblowers and the culture.
    VA is one, as I like to call it, they are our number one 
customer. They obviously have a lot of whistleblowers, and 
protecting those whistleblowers and making sure two things. 
One, that they take seriously what the whistleblower reports 
and make sure that they follow up. Two, that they do not punish 
them. That it is not a career ender.
    Those are the two things that have to be brought to the 
attention of the leadership. When you have that culture and the 
bipartisan consensus supporting whistleblowers, I think that is 
the most important thing to protect them.
    Mr. Dellinger. I agree with all that, Senator, and I would 
say briefly that I think it is important for managers to 
understand the standard for whistleblower protection, which is, 
if a whistleblower has a reasonable belief that she or he is 
seeing a violation of law and abuse of authority, gross 
mismanagement, or gross misuse of taxpayer funds, that is the 
standard for whistleblower protection.
    Making sure that that is well and widely understood is 
vital. Then, I think second and last, I would say, for managers 
in the Executive Branch to see cooperation between OSC and the 
Congress is vital.
    I commit to be a full partner to support the Congress in 
its protection of whistleblowers, and would look forward, if 
confirmed, to working with you, with this Committee, and with 
your staff.
    Chairman Peters. Very good. I would like to thank both of 
our nominees for joining us today and for your willingness to 
serve in these very important positions. The nominees have 
filed responses to biographical and financial 
questionnaires.\1\
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    \1\ The financial information of Mr. Dellinger appears in the 
Appendix on page 22.
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    Without objection, this information will be made part of 
the hearing record,\2\ with the exception of the financial 
data, which is on file and available for public inspection in 
the committee offices.
---------------------------------------------------------------------------
    \2\ The financial information of Mr. Kerner appears in the Appendix 
on page 79.
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    Chairman Peters. The hearing record will remain open until 
12.00 p.m. tomorrow, December 1st, for the submission of 
statements and questions for the record. This hearing is now 
adjourned.
    [Whereupon, at 10:49 a.m., the hearing was adjourned.]

                            A P P E N D I X

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