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24–235 PDF 2006

S. Hrg. 109–200

NOMINATIONS OF COLLEEN D. KIKO, MARY M.

ROSE, HON. JULIET J. McKENNA, AND JOHN

R. FISHER

HEARING

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON THE

NOMINATIONS OF COLLEEN D. KIKO TO BE GENERAL COUNSEL, FEDERAL LABOR RELATIONS AUTHORITY; MARY M. ROSE TO BE MEMBER, 

MERIT SYSTEMS PROTECTION BOARD; HON. JULIET J. McKENNA TO 

BE ASSOCIATE JUDGE, DISTRICT OF COLUMBIA SUPERIOR COURT; 

AND JOHN R. FISHER TO BE ASSOCIATE JUDGE, DISTRICT OF COLUMBIA COURT OF APPEALS

SEPTEMBER 13, 2005

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

LINCOLN D. CHAFEE, Rhode Island 

ROBERT F. BENNETT, Utah 

PETE V. DOMENICI, New Mexico 

JOHN W. WARNER, Virginia 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas

MICHAEL D. BOPP, Staff Director and Chief Counsel 

JENNIFER A. HEMINGWAY, Professional Staff Member 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

ADAM R. SEDGEWICK, Minority Professional Staff Member 

TRINA D. TYRER, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Voinovich ............................................................................................. 1

Senator Akaka .................................................................................................. 4

Senator Lautenberg .......................................................................................... 5

Senator Carper ................................................................................................. 6

WITNESSES 

TUESDAY, SEPTEMBER 13, 2005

Hon. F. James Sensenbrenner, Jr., a Representative in Congress from the 

State of Wisconsin ................................................................................................ 2

Colleen D. Kiko, to be General Counsel, Federal Labor Relations Authority .... 7

Mary M. Rose, to be Member, Merit Systems Protection Board ......................... 9

Hon. Eleanor Holmes Norton, a Delegate in Congress from the District of 

Columbia ............................................................................................................... 19

Hon. Juliet J. McKenna, to be Associate Judge, District of Columbia Superior 

Court ..................................................................................................................... 21

John R. Fisher, to be Associate Judge, District of Columbia Court of Appeals . 23

ALPHABETICAL LIST OF WITNESSES

Fisher, John R.: 

Testimony .......................................................................................................... 23

Prepared statement .......................................................................................... 34

Biographical and professional information ..................................................... 121

Kiko, Colleen D.: 

Testimony .......................................................................................................... 7

Prepared statement .......................................................................................... 27

Biographical and professional information ..................................................... 39

Responses to pre-hearing questions ................................................................ 49

Responses to post-hearing questions .............................................................. 63

McKenna, Hon. Juliet J.: 

Testimony .......................................................................................................... 21

Prepared statement .......................................................................................... 33

Biographical and professional information ..................................................... 98

Norton, Hon. Eleanor Holmes: 

Testimony .......................................................................................................... 19

Rose, Mary M.: 

Testimony .......................................................................................................... 9

Prepared statement .......................................................................................... 31

Biographical and professional information ..................................................... 66

Responses to pre-hearing questions ................................................................ 72

Responses to post-hearing questions .............................................................. 93

Sensenbrenner, Hon. F. James, Jr.: 

Testimony .......................................................................................................... 2

APPENDIX 

Hon. Paul Strauss, Shadow U.S. Senator, District of Columbia, prepared 

statement .............................................................................................................. 35

(1)

NOMINATIONS OF COLLEEN D. KIKO, MARY 

M. ROSE, JULIET J. McKENNA, AND JOHN R. 

FISHER 

TUESDAY, SEPTEMBER 13, 2005

U.S. SENATE, 

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

342, Dirksen Senate Office Building, Hon. George Voinovich presiding. 

Present: Senators Voinovich, Akaka, Carper, and Lautenberg. 

OPENING STATEMENT OF SENATOR VOINOVICH 

Senator VOINOVICH. Good morning. Today, the Committee on 

Homeland Security and Governmental Affairs meets to consider 

four nominations: Colleen Kiko to be General Counsel of the Federal Labor Relations Authority (FLRA); Mary Rose to be a member 

of the Merit Systems Protection Board (MSPB); Judge Juliet JoAnn 

McKenna to be an Associate Judge for the Superior Court of the 

District of Columbia; and John Fisher to be an Associate Judge of 

the District of Columbia Court of Appeals. 

I commend all of these nominees for answering the President’s 

call to serve our Nation, and I trust that you will fulfill your responsibilities with honor, courage, and character befitting the office 

to which you have been nominated. 

We will begin by considering the nominations of Ms. Kiko and 

Ms. Rose. You have been nominated during a period of extraordinary change in the Federal workforce. Over the past few years, 

Congress has enacted numerous pieces of legislation that altogether constitute the most significant reforms of the Federal civil 

service since the enactment of the Civil Service Reform Act of 1978. 

Senator Akaka, who I am pleased has joined us here today, has 

been a steadfast partner in working to raise awareness of the importance of strategic human capital management and finding the 

solutions to the government’s personnel challenges. As Federal departments and agencies continue to understand and take steps to 

implement these reforms, whether the groundbreaking efforts of 

developing a new personnel system at the Department of Homeland Security or the more targeted reforms of implementing direct 

hire, the FLRA and the MSPB will continue to play vital roles in 

ensuring the success and integrity of the Federal civil service. 

2

I welcome this morning to the Committee Congressman James 

Sensenbrenner, Chairman of the House Committee on the Judiciary. We are very honored to have you here with us, Congressman 

Sensenbrenner, and I understand that you are going to introduce 

Ms. Kiko to us this morning, if you would proceed. 

Senator LAUTENBERG. Mr. Chairman, are we going to have opening statements? 

Senator VOINOVICH. Well, I think we ought to let the Congressman introduce Ms. Kiko. 

Senator LAUTENBERG. It raises the question for me. All of us 

have our individual rights and opportunities, and there is work 

that goes into laying out what we think are the parameters for the 

discussion. However, I will back down for Congressman Sensenbrenner, but I would hope that after his statement and respect for 

his time that we can hear from each of us, please. 

STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN 

Mr. SENSENBRENNER. Thank you, Mr. Chairman. I appreciate the 

opportunity to come before this Committee and endorse the qualifications of my good friend, Colleen Duffy Kiko, for the position of 

General Counsel for the Federal Labor Relations Authority. She is 

eminently qualified for this position and let me tell you why. 

I have known Colleen for 24 years, since 1981. She graduated 

from George Mason University School of Law in 1986 and was 

hired right out of law school by the Department of Justice in the 

Honors Program, Office of Legal Policy, and later the Civil Rights 

Division. While there, she spent her time investigating and prosecuting housing and credit discrimination complaints and was detailed to the Eastern District of Virginia to serve as a Special Assistant to the U.S. Attorney prosecuting criminal cases. 

At that time, I was the ranking minority member on the Civil 

and Constitutional Rights Subcommittee of the House Judiciary 

Committee, and a vacancy occurred on my subcommittee for associate counsel. I knew that there were three upcoming Federal judicial impeachments coming before the committee for which I would 

need someone on my staff with prosecutorial skills. Colleen fit the 

bill with her background. 

I hired Colleen, who served as my counsel for the several impeachments, and primarily the successful impeachment of Judge 

Walter Nixon, for which I served as one of the House managers 

during the Senate trial. During that time, she also served as the 

principal negotiator for the Judiciary Republicans on the Americans with Disabilities Act, which as we know just celebrated its 

15th anniversary. 

Colleen left my employ in 1989 due to her ever-expanding family 

commitments, or at least that is what she used as an excuse to get 

away from me. 

In 1996, she hung out her shingle and opened up her own law 

practice, focusing primarily on criminal defense and domestic relations. Colleen has excellent legal skills, exercises independent judgment, and is steadfast in purpose. She is good with people and is 

3

a good negotiator. She has shown excellent capabilities of juggling 

both a serious legal career and her important family commitments. 

I would highly recommend her to serve in the position for which 

she has been nominated. First, she was doing the work of the 

FLRA for 2 years even before the agency even existed and worked 

at the FLRA from its inception for 5 more years. She knows the 

agency and its mission. FLRA whetted her appetite for a law degree, and she returns with not only a law degree, but with much 

legal and prosecutorial experience from which to draw to be the 

chief prosecutor for all unfair labor practices in the Federal labor 

relations area. This is a role especially suited to her background 

and experience. 

In short, I am really happy to be able to present to you a public 

servant with a distinguished background who really deserves early 

confirmation by this Committee, and I appreciate your courtesy. 

Senator VOINOVICH. Thank you, Congressman. We really appreciate your being here and appreciate your introduction of Ms. Kiko. 

It means a great deal to me because of the high respect that I have 

for you. 

I know you are a very busy person as chairman of the Judiciary 

Committee, and I suspect you have other things to do. Thanks very 

much. 

Mr. SENSENBRENNER. We are preparing a few more bills to send 

over here. [Laughter.] 

Senator VOINOVICH. Thanks. 

The Federal Labor Relations Authority provides leadership within the Federal Government in developing and maintaining positive 

labor relations. If confirmed, Ms. Kiko’s responsibilities as General 

Counsel will include processing unfair labor practice allegations, 

encouraging the use of alternative dispute resolution techniques, 

and promoting stable and productive labor-management relations 

in the Federal sector. 

As a former mayor and governor, I understand the importance of 

establishing a positive labor-management relationship based on 

open communication and trust. I encourage Ms. Kiko to be active 

in improving labor-management relations in the Federal sector 

during times of such dramatic reform. 

Mary Rose currently serves as the Chair of the Federal Prevailing Rate Advisory Committee of the Office of Personnel Management. Prior to this position, she served as the Deputy Associate 

Director for Presidential Personnel and was the Director of Personnel for President Reagan. Additionally, Ms. Rose was elected as 

the Clerk for Anne Arundel County Circuit. Prior to her elected office, Ms. Rose was the Deputy Under Secretary for Management of 

the Department of Education. Furthermore, Ms. Rose’s professional 

career included working at the Office of Personnel Management, 

where her responsibilities included acting as the agency liaison to 

the White House on personnel policy. 

Her nomination is to the Merit Systems Protection Board, an 

independent agency that protects Federal employees from abuses 

by agency management, including prohibited personnel practices. It 

is an impartial arbiter and is essential to ensuring that agencies 

make employment decisions in accordance with the merit systems 

principles. 

4

I can say to you, Ms. Rose, that the Ranking Member of the Subcommittee, Senator Akaka, is someone who pays a lot of attention 

to that particular Board. 

With the changes underway at the Department of Homeland Security and the Department of Defense, the role of the MSPB continues to evolve. Ms. Rose, if confirmed, you would join the Board 

at a time when it faces new and complex challenges, and everyone 

will be watching how cases that come before the Board are disposed of. There is much uncertainty today with the new personnel 

systems that Congress authorized, and it is going to require the attention of the Board. 

Ms. Kiko and Ms. Rose, we look forward to your testimony so 

that we may learn how you plan to apply your experiences to your 

new positions and what steps you have taken to prepare for them. 

I will now yield to Senator Akaka for his opening statement and 

the other Members of this Committee who are interested in making 

opening statements. Senator Akaka. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman. I again 

want to say I enjoy working with you on this Committee. I also 

want to join you in welcoming our nominees and their families and 

friends who are here today. Of course, it was good to see Chairman 

Jim Sensenbrenner. We served together when I was in the House. 

President Bush has nominated John Fisher to be an Associate 

Judge on the D.C. Court of Appeals, and it is good to see you here, 

John, and your family, and Juliet McKenna to be an Associate 

Judge on the D.C. Superior Court. Both Mr. Fisher, with his background at the U.S. Attorney’s Office, and Ms. McKenna, with her 

background in family law, have impressive resumes. I look forward 

to their testimony and hearing their thoughts on the D.C. Court 

System. 

The positions to which Ms. Kiko and Ms. Rose have been nominated are among the most important for Federal employees. If confirmed, I would expect them to be strong voices for employee rights 

and fair employment principles. 

Ms. Kiko has been nominated to be the General Counsel of the 

Federal Labor Relations Authority. This nomination comes at a 

critical juncture for the FLRA and the Federal workforce, given the 

shifting nature of the Federal labor relations system. As such, the 

position to which she has been nominated will face new challenges 

and take on renewed importance. 

Changes to Federal labor law at the Departments of Homeland 

Security and Defense will impact the workload of the FLRA and its 

General Counsel. I fear that employees at those agencies may be 

unable to have the benefit of an independent prosecutor to bring 

cases of unfair labor practices and will lack the assurance of having 

an impartial and independent adjudicator. In addition, the issues 

that are currently considered unfair labor practices may likely be 

reduced, further eroding employee rights and impacting the workload of the General Counsel. 

In addition, the administration is proposing additional changes 

to the Federal Labor Management System through the Working for 

America Act. Because some of these changes are similar to those 

5

proposed by DHS and DOD, the Federal labor-management construct is facing major changes. 

Ms. Kiko, I look forward to discussing with you your thoughts on 

these proposals and how they will impact the job of the General 

Counsel. 

Ms. Rose has been nominated to be a member on the Merit Systems Protection Board. The MSPB is charged with protecting the 

merit principles and ensuring that Federal employees are free from 

political and other prohibited personnel practices and management 

abuses. 

I have serious concerns with the proposed changes to the appeals 

systems at DHS and DOD, which, in my opinion, undermine longheld merit principles. The MSPB plays a critical role in ensuring 

the right balance between civil service reform and protecting the 

rights of employees, and that is why I look to the members of 

MSPB to ensure that the rights and protections of Federal employees, whether in substance or through procedures, are not eroded. 

I am particularly interested in discussing with Ms. Rose whistleblower protections for Federal workers. Reporting government mismanagement is a basic obligation of the Federal workforce. To foster confidence in these protections, Federal employees, especially 

those disclosing information vital to our national security, should 

feel secure by a strong and functioning Whistleblower Protection 

Act (WPA). Unfortunately, the Federal Circuit Court of Appeals, 

with sole jurisdiction over the WPA, has created inconsistencies 

with Congressional intent through Court decisions. These loopholes 

pose challenges for the MSPB in interpreting the law as envisioned 

by Congress. I am pleased that the Committee, and you in particular, Chairman Voinovich, as well as Senators Lautenberg and 

Carper, have been strong supporters of my legislation, the Federal 

Employee Protection of Disclosures Act, which would restore Congressional intent to the WPA. I hope the Senate will act on this 

soon. 

Ms. Kiko, Ms. Rose, Mr. Fisher, and Ms. McKenna, I want to 

welcome you and congratulate you on your nomination. 

Mr. Chairman, I also want to mention that I had a good meeting 

with Mary Rose and want to mention that her husband, a doctor 

in North Carolina, is teaching and unable to join her. Her son, who 

is serving with the Coast Guard, and her two daughters, who live 

in Los Angeles and Pennsylvania, could not be here either. I know 

the whole family is here today with her in spirit. 

Thank you very much, Mr. Chairman. 

Senator VOINOVICH. Senator Lautenberg. 

OPENING STATEMENT OF SENATOR LAUTENBERG 

Senator LAUTENBERG. Thanks, Mr. Chairman. We rarely have 

any disagreement about decisions that come from your desk. Everyone knows very well of your public service career and has great respect for you and the accomplishments of that career, so while we 

differed on the process, I thank you for permitting the opening 

statements to be read, to learn more about the people who are 

nominated for these important positions. 

I am particularly interested in the Merit Systems Protection 

function. We have recently been given a vivid reminder of how imVerDate 0ct 09 2002 14:08 Mar 27, 2006 Jkt 024235 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 C:\DOCS\24235.TXT SAFFAIRS PsN: PAT
6

portant it is to scrutinize nominees for these important jobs. We 

have a situation at FEMA where the person named to the top position lacked the right experience, and the outcome was almost predictable, and then we learned that some of the claims on his resume or in his biography might have been exaggerated. But this 

underscores the need to take a closer look at nominees before they 

are allowed to assume positions of public trust. 

Ms. Rose, one of the individuals before us today, is nominated for 

one of the three seats on the Merit Systems Protection Board and 

that Board is responsible for enforcing the Federal Government’s 

merit-based employment practices. It was established to protect 

Federal employees, including whistleblowers, from political and 

other prohibited personnel practices and abuses by agency management. Now, I believe that this Board requires members to be capable of looking at the facts of a case in a nonpartisan manner, and 

I am concerned with ensuring that this agency abandon any partisanship and any partisan leanings as they review the cases that 

come before them. 

I would like to learn more about Ms. Rose’s view on the importance of whistleblowers that expose waste, fraud, and mismanagement in government bureaucracies and agencies. Many times, the 

only people aware of such wrongdoings are those who work inside 

the agency, and if we fail to protect those who would come forward 

and do the right thing, we do a disservice to the individual and the 

taxpayers in our country. 

Recently, we learned that a whistleblower who exposed irregularities in a billion-dollar no-bid contract between the Department of 

Defense and Halliburton has been demoted from her job at the 

Army Corps of Engineers. Now, this was only the latest example 

of people who were punished after they revealed information that 

the Administration wanted to hide from the American people. 

In my view, the current whistleblower protection system is not 

working. It doesn’t protect those who would come forward, and I 

am working on legislation to strengthen those protections by making it a criminal offense for an individual to retaliate against whistleblowers. I am pleased to be on an amendment that Senator 

Akaka has produced to make sure that we are dealing fairly with 

these people. 

Mr. Chairman, I thank you very much for the opportunity to 

make my statement and look forward to hearing from our witnesses. 

Senator VOINOVICH. Senator Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thanks, Mr. Chairman. I will be brief. To our 

nominees, welcome, and to those that are on, I think, our second 

panel, the judicial nominees, we welcome you, too. I am not going 

to be able to stay for that second panel, but I wanted to be here 

for at least the beginning of this one. 

Both Senator Lautenberg and Senator Akaka have spoken of the 

need for whistleblower protection. We need it. There are too many 

instances where people of good faith, good intent, are stepping forward and blowing the whistle, telling the truth, and they are being 

punished for it rather than rewarded for it. It is just unacceptable, 

7

1 The prepared statement of Ms. Kiko appears in the Appendix on page 27. 

Biographical and professional information appears in the Appendix on page 39. 

Responses to pre-hearing questions appear in the Appendix on page 49. 

Responses to post-hearing questions appear in the Appendix on page 63. 

and it is unacceptable to me, and I am sure it is unacceptable to 

our Republican colleagues, as well. 

We are reminded on the heels of Katrina that the folks whose 

names come to us for positions—we have an obligation, we have an 

oversight responsibility to make sure that we fully vet those nominees and better ascertain whether they are well qualified to do the 

jobs for which they have been nominated. With respect to FEMA, 

we have seen in recent weeks that sometimes that is not the case. 

That is the responsibility of the Executive Branch, but we bear responsibility, too. 

Again, we thank you. We welcome you and your families and 

friends today and thank you for your willingness to serve. 

Thank you, Mr. Chairman. 

Senator VOINOVICH. Thank you, Senator. 

Ms. Kiko and Ms. Rose, you have filed responses to a biographical and financial questionnaire and answered pre-hearing questions 

submitted by the Committee. You have had your financial statements reviewed by the Office of Government Ethics. Without objection, this information will be made a part of the hearing record, 

with the exception of the financial data, which are on file and 

available for public inspection in the Committee offices. 

Our Committee rules require that witnesses before this Committee take an oath, and if you will stand, I will administer the 

oath. 

Do you swear that the testimony that you are about to give this 

Committee is the truth, the whole truth, and nothing but the truth, 

so help you, God? 

Ms. KIKO. I do. 

Ms. ROSE. I do. 

Senator VOINOVICH. Ms. Kiko, I understand you have some family members here with you, and I would like to give you an opportunity to introduce them before you make your statement to the 

Committee. 

Ms. KIKO. Thank you, Mr. Chairman. I do have my husband, 

Phil Kiko, and my daughter, who is representing my four children, 

Sarah Kiko, and my sister, Tama, is behind my daughter. Thank 

you. 

Senator VOINOVICH. Would you like to share your statement with 

the Committee? 

TESTIMONY OF COLLEEN D. KIKO,1 TO BE GENERAL COUNSEL, 

FEDERAL LABOR RELATIONS AUTHORITY 

Ms. KIKO. Thank you, Mr. Chairman. Chairman Voinovich, Senator Akaka, Senator Lautenberg, Senator Carper, Members of the 

Committee, I would like to thank you and your staff for all the 

courtesies that have been shown to me as I have prepared for this 

hearing. I also deeply appreciate Chairman Sensenbrenner taking 

time away from his boat time to introduce me today. 

It is indeed a very special and honored occasion for me to be sitting here after being nominated by the President to serve as the 

8

General Counsel of the Federal Labor Relations Authority having 

started in the Federal Government in 1972 as a GS–3 clerk-typist. 

The Federal civil service was considered an honored profession in 

my family. My father, Lawrence Duffy, had almost a half-century, 

49 years, of proudly serving as a civil servant, first as a railway 

mail carrier for the U.S. Postal Service, and then for the U.S. Customs Service as a customs inspector. He believed in the opportunities the Federal Government offered and advised me as I was determining what career path to follow to look to the Federal Government as an honorable, rewarding, and fulfilling experience. 

My father always said that you spend almost half of your life at 

whatever job you choose—make sure you are happy in it. He provided a daily example of hard work, commitment, and impeccable 

character. I hope to follow in those shoes. 

I would like to point out several areas of my background and employment experience that I believe affirmatively qualify me for this 

position. From 1976 to 1979, I worked in the Department of Labor, 

Labor Management Services Administration. This same entity was 

transferred to the newly created Federal Labor Relations Authority 

on January 1, 1979, where I worked until I resigned to pursue a 

legal career in 1983. 

I worked in almost all of the professional roles of the Authority. 

In the regional office, I investigated unfair labor practice charges, 

chaired hearings on representational disputes, monitored Federal 

union elections, and conducted training for both management and 

unions. In the headquarters, I reviewed Administrative Law Judge 

decisions and the exceptions filed by the parties and prepared draft 

decisions for the Authority members. I also handled the procedural 

motions practice before the Authority. 

I left the Authority as a supervisory labor relations specialist. My 

experience working at the Authority in increasingly responsible positions throughout the Authority gives me, I believe, a great understanding of the agency as a whole. 

My work at the FLRA spearheaded my decision to pursue a legal 

career. My experience since then has also prepared me well for this 

position. After obtaining my law degree in 1986, my service with 

the Department of Justice in the Civil Rights Division and in the 

U.S. Attorney’s Office, litigating both criminal and civil matters, 

has particularly prepared me for the prosecutorial role of the General Counsel position. 

Further, in my role as an Associate Counsel in the Judiciary 

Committee, I was very involved with the historic impeachment of 

a U.S. District Court judge. The House managers, one of whom was 

Chairman Sensenbrenner, prosecuted the Articles of Impeachment 

before the Senate. 

My years in the private practice of law in a small firm representing clients has given me perspective on advocacy and on the 

need to respond effectively to client needs. 

Finally, in my current position as an Employees’ Compensation 

Appeals Judge, I have had the benefit of independent decisionmaking, listening to both sides objectively, and rendering a fair decision. Exercising such judicial temperament prepares me well for 

the neutral role that the Federal Labor Relations Authority plays 

in the Federal sector labor relations. 

9

1 The prepared statement of Ms. Rose appears in the Appendix on page 31. 

Biographical and professional information appears in the Appendix on page 66. 

Responses to pre-hearing questions appear in the Appendix on page 72. 

Responses to post-hearing questions appear in the Appendix on page 93. 

I believe I have been well prepared for this position. Neither 

when I left North Dakota to come to Washington, D.C. in 1972, nor 

when I left the FLRA to pursue a legal career, did I ever expect 

to be sitting in this chair right now. It is amazing how full-circle 

this journey has become. 

I see as the goal of the Office of the General Counsel as helping 

agencies effectively and efficiently fulfill their statutory mission 

through healthy labor-management relations. I hope to faithfully 

pursue that objective. 

I greatly appreciate the opportunity to appear before this Committee today and will be happy to answer any questions. 

Senator VOINOVICH. Thank you very much, Ms. Kiko. 

Ms. Rose, you have an opportunity to introduce your family to 

the Committee. 

Ms. ROSE. Thank you, Mr. Chairman. My daughter and my sonin-law and my grandchild are sitting over here, Kaitlyn, the little 

redhead. Thank you for giving me the opportunity to introduce 

them. 

Senator VOINOVICH. Would you like to share your statement with 

the Committee? 

TESTIMONY OF MARY M. ROSE,1 TO BE MEMBER, MERIT 

SYSTEMS PROTECTION BOARD 

Ms. ROSE. Good morning, Chairman Voinovich, Ranking Member 

Akaka, and Members of the Committee. I am Mary M. Rose, and 

I appreciate the opportunity to appear before you as you consider 

my nomination to be a member of the Merit Systems Protection 

Board. Given the seriousness of the issues that surround you today, 

I am especially appreciative of the time you have taken to ensure 

the MSPB operates at full strength. 

I am honored by the President’s confidence in me, as demonstrated by his decision to nominate me to a position of such importance. If confirmed, I will dedicate myself to discharging the responsibilities of this office in accordance with the laws, rules, and 

regulations applicable to the Board to the best of my ability. 

In this time of change, the mission of the Merit Systems Protection Board is more important than ever. I will work to fully preserve the merit systems principles and to protect Federal employees from prohibited personnel practices, the core of the MSPB’s 

mission. The assurance of fair adjudication of employment disputes 

and the timely issuance of decisions will enhance the confidence of 

Federal employees and managers in the civil service system as well 

as their effectiveness in fulfilling the missions of their respective 

agencies. 

The Board’s role in regulatory, studies, and oversight functions, 

in addition to its adjudicatory responsibilities, will be part of the 

cutting edge of transformation in human resources management. If 

confirmed, I welcome the opportunity to work in cooperation with 

MSPB’s Chairman McPhie in fulfilling the responsibilities and missions of the Board during this period of transition and beyond. I 

10

hope to use my past experiences in the Federal civil service as well 

as the expertise I have developed to assist the Board in fulfilling 

its missions. 

I began my tenure in Federal service during the early 1980’s 

when the reforms mandated by the Civil Service Reform Act of 

1978 were first being implemented. I saw firsthand how difficult 

change can be, but witnessed the improvements in governmentwide personnel management as a result of that change. During this 

time, a major shift in management practices required managers 

and employees to communicate on an annual basis regarding goals 

of their employing agency and the standards and the expected levels of performance. Should I be confirmed, it will be a great honor 

to be part of this historical time in the continued evolution of Federal human resources management. 

I wish to thank you for consideration for my nomination, and 

again, I express my appreciation for your time. I would be happy 

to answer any questions you may have. 

Senator VOINOVICH. Thank you, Ms. Rose. 

There are standard questions that this Committee asks all of the 

nominees. I will begin with those questions, and I would appreciate 

your answering them yes or no. 

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. KIKO. No. 

Ms. ROSE. No, sir. 

Senator VOINOVICH. Do you know of anything personal or otherwise that would in any way prevent you from fully and honorably 

discharging your responsibilities of the office to which you have 

been nominated? 

Ms. KIKO. No, I do not. 

Ms. ROSE. No, sir. 

Senator VOINOVICH. Do you agree without reservation to respond 

to any reasonable summons to appear and testify before any dulyconstituted committee of Congress if you are confirmed? 

Ms. KIKO. Of course, yes. 

Ms. ROSE. Yes, sir. 

Senator VOINOVICH. I mentioned that you are both coming to 

your responsibilities at a time that is very critical, as far as I am 

concerned. We have, as I mentioned, made significant changes to 

the Civil Service Code at the Department of Homeland Security, 

Department of Defense, and also government-wide. I value Federal 

employees. For too many years they have been neglected, but as we 

have seen with Hurricane Katrina, people do make a difference. 

I would like each one of you to comment about your awareness 

of the situation that you are going to find yourself in. Ms. Kiko. 

Ms. KIKO. I will go first, Mr. Chairman. The Department of 

Homeland Security and the Department of Defense regulations 

that are currently under consideration are examples where the legislative process made changes allowing the agency to appropriately 

craft labor relations and employee relations policies that would best 

effectively take into account its mission. I certainly find that to be 

an appropriate situation. These agencies certainly are going 

11

through a difficult time right now trying to find out how to properly craft those particular regulations. 

Right now, as it is pending litigation in the D.C. Court, certainly 

the merits of the regulations are not something that I would want 

to comment on particularly. I do see the government is going 

through a process of attempting to craft the personnel policies in 

a time now that is a little different from years past, where homeland security is a particularly important area right now. It is a 

challenge and the government is going through a process right now 

which I think is working. The process is doing what it is supposed 

to be doing. 

That is my comment, essentially. I believe that your question 

was directed mostly to the Homeland Security regulations. If I 

have missed the point, I would be happy to redirect the answer. 

Senator VOINOVICH. I think that one of the concerns that our 

unions particularly have is this: What kind of people are we going 

to have in responsible positions and how sensitive are they going 

to be to the rights of Federal employees. 

Ms. Rose. 

Ms. ROSE. Thank you, Mr. Chairman. With the new regulations 

and reforms coming our way, there are going to be major changes, 

and we will have to be ever vigilant as a member of the MSPB. 

When adjudicating cases and writing studies the MSPB must find 

an independent and open way to describe agency performance with 

respect to personnel practices. Additionally, preventing prohibited 

personnel practices against employees is vital. As a board we must 

watch the agency trends to ensure these laws are enacted and the 

intent of Congress is followed. The new laws may be more complicated and more cumbersome, but I believe we should look at this 

enthusiastically as a time of change. I look forward to helping in 

any way I can in the service of my country to protect Federal civil 

servants and to be more vigilant than ever on their behalf. As well, 

I hope to help managers through their difficult times. 

Senator VOINOVICH. You come to the table with individuals who 

obviously feel that they have been discriminated against because 

they have come forward. Do you believe that the parties come to 

the table and it is an even situation, or do you believe the emphasis should be on trying to make sure that the individual who claims 

to have been aggrieved perhaps gets more emphasis than the agency that fired or demoted him? 

Ms. ROSE. I think every case needs to be judged on its merits. 

I can’t answer, without a case in front of me, if one side is being 

favored. This is a difficult question. With the changes and reforms, 

one will have to use extra scrutiny reviewing employee and managers claims because—this is all going to be new to both sides. Everything will have to be looked at very carefully and weighed very 

openly and impartially. That is how I would look at each case. 

Senator VOINOVICH. We have spent a great deal of time on this 

issue. I would recommend that you cearly communicate that the individuals that come before you are going to receive fair consideration. I know we had testimony here about the backlog of cases before the Office of Special Copunsel, and it has been argued that 

maybe each case wasn’t getting the attention that it ought to receive. 

12

I think there is a feeling among Federal employees that perhaps 

individuals aren’t getting the kind of treatment that they should 

get, and it becomes an issue of perception. This will affect whether 

or not people are going to be willing to stand up and report wrongdoing. If they just see co-workers blow the whistle and then get 

shut out, the word will go around that, hey, you had better keep 

your mouth shut, or leave, or whatever the case may be. 

Federal employees really have to have a feeling that they are 

being treated fairly and that they are listened to and that this isn’t 

just some perfunctory process where they come before the Board 

and then end up out on the street. You need to take that into consideration. 

Ms. ROSE. I believe my management and HR experience will be 

a benefit because I have experienced situations where employees 

need help, and I know that communications between manager and 

employee is very important. I have seen this through many years 

of my professional life. I think I will be more open to reviewing 

these cases and seeing them from a different perspective and a dynamic than an attorney would. While I know I am not an attorney, 

I believe I add a valuable dynamic that will be beneficial to the 

Board as well as the employees who come before the Board. 

Senator VOINOVICH. Thank you. Senator Akaka. 

Senator AKAKA. Thank you very much, Mr. Chairman. 

I thank you, Ms. Kiko and Ms. Rose, for your testimony. I appreciate your comments as both the FLRA and MSPB are very important agencies for protecting employee rights. 

Ms. Kiko, DHS and DOD claim that their agencies need flexibility in the area of labor-management relations based on their national security needs. In response to Chairman Voinovich’s question, you said that employee rights and collective bargaining rights 

at DHS and DOD are being balanced against the missions of the 

agency. Could you elaborate on this and tell me if this applies to 

all agencies and all missions or only those pertaining to national 

security? 

Ms. KIKO. Thank you, Senator Akaka. Labor-management relations, healthy labor-management relations, is important in every 

government agency. When the statute was created in 1979, it was 

stated in one of the findings that one of the law’s purposes was to 

help agencies more efficiently and effectively accomplish their statutory mission. Each government agency has been created with a 

particular mission. The best way that mission can be accomplished 

is through employees working well with management to accomplish 

the mission. The best way to do that is with good labor-management relations. 

Does it always work? No. Do I have some magic wand that can 

make it all work? No. But I certainly believe you start there; you 

want to develop and work on healthy labor-management relations 

in each agency. The mission is simply where everybody wants to 

go at the end of the day. What does the agency want to accomplish? 

It doesn’t matter necessarily which mission. Good labor-management relations is good in every agency. 

Senator AKAKA. Ms. Kiko, the FLRA has been without a General 

Counsel for almost a year, and I understand there are over 100 unfair labor practice charges awaiting issuance of a complaint. If you 

13

are confirmed, do you intend to immediately issue complaints on 

these backlogged charges? 

Ms. KIKO. Well, I would probably want to review the complaints 

first, but certainly, I expect there may be some things sitting on 

the desk waiting for my action upon my arrival. I do not certainly 

expect to jump in and start acting immediately. I do intend to communicate with the regional directors, with the staff of the agency, 

to find out where we are, where we need to go. At that time, I 

would evaluate each of the complaints waiting to be filed as an unfair labor practice complaint, and determine whether the qualifications are met or the requirements that have been established to 

date on what would make an unfair labor practice charge into an 

unfair labor practice complaint. At that point, I would make a determination. But certainly, I don’t think I am going to walk in with 

my pen open and ready to sign. 

Senator AKAKA. Ms. Kiko, the General Counsel is responsible for 

the seven regional offices at FLRA. There has been no hiring in the 

regional offices in over a year. Under General Counsel policy, a full 

staffing level of attorneys and labor relations specialists would be 

11 agents. The Atlanta Region currently only has four agents and 

the Dallas Region only has five agents. Do you intend to begin hiring new employees in the regional offices to address these staffing 

shortages? 

Ms. KIKO. I certainly believe one of my first orders of business 

will be to evaluate the staffing needs of the agency and the staff 

that is existing to accomplish the mission. There are many factors 

that affect the staffing in the Federal Labor Relations Authority. 

Workload is one. Geographical location is another. All of those factors, I would like to study and do staffing reviews and management 

reviews to determine what the personnel levels should be. 

There are other situations facing our agency as to whether the 

Homeland Security regulations and the Department of Defense regulations will have an effect on the caseload of the agency. That 

would be certainly something that I would want to investigate prior 

to making any decisions, but certainly that is an area that would 

be getting a lot of my attention. 

Senator AKAKA. Ms. Rose, a number of Federal Circuit Court interpretations of the Whistleblower Protection Act are inconsistent 

with Congressional intent. A primary example is the meaning of 

the term, ‘‘any disclosure.’’ In 1994 and again this year, this Committee reaffirmed language from the 1988 Senate Committee report 

and explicitly stated that the Office of Special Counsel, the Board, 

and the courts should not erect barriers to disclosure of government wrongdoing, including limiting protection for disclosures 

made for certain purposes, limiting protection for disclosures made 

to certain employees, or limiting protection to the employee who is 

the first to raise the issue. Nonetheless, the Federal Court erected 

nearly every barrier listed in the Committee report. 

As a member of the MSPB deciding whistleblower cases, how 

would you reconcile this contradiction between Federal Circuit 

Court case law and clear Congressional intent? 

Ms. ROSE. As a member of the Merit Systems Protection Board, 

I will be obligated to apply the laws that are in place at this time. 

When Congress enacts legislation that strengthens the WhistleVerDate 0ct 09 2002 14:08 Mar 27, 2006 Jkt 024235 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 C:\DOCS\24235.TXT SAFFAIRS PsN: PAT
14

blower Act, I assure you if this issue comes before me, I will adjudicate cases, and I will apply the applicable laws as fairly and as 

openly and as credibly as I can. 

Senator AKAKA. Mr. Chairman, my time has expired. Thank you 

very much. 

Senator VOINOVICH. Thank you. Senator Lautenberg. 

Senator LAUTENBERG. Thank you, Mr. Chairman, and I thank 

the witnesses for their testimony. 

One thing I think that is quite apparent in the Senate is that 

we rely on sources of information that are not necessarily those 

that are routine, those that are brought to a committee hearing. So 

when we have an opportunity to learn from someone who is inside 

the system, I think we have an obligation to listen. 

I ran a pretty good-sized company before I came to this Senate, 

and I encouraged employee suggestions or even criticism. I didn’t 

want a list of whiners standing at my door in the morning because 

I would make sure that if someone had a complaint, that they had 

to have some record of the incident that was verifiable. But I think 

it particularly important in government, when we have the system 

of protection in place that we have, that violations not be ignored. 

Ms. Rose, you worked under Republican administrations, including this White House, where you helped prepare nominees for political appointments. One of the primary systems of the Merit Systems Protection Board is to ensure that politics is not a factor in 

civil service personnel action. Now, what will you do to ensure that 

those individuals who put their consciences above orders that they 

think are inappropriately functioning, to come up with their criticism or complaint and to guarantee that there is no recrimination 

for speaking out? 

Ms. ROSE. Senator, should I be confirmed, as a member of the 

Merit Systems Protection Board, I will not allow partisan politics 

to interfere with any of my decisions. I will not allow partisan politics to exist. 

Yes, I worked in the White House, but I also have worked in 

other jobs. I have worn hats in many fields. My background is varied. I have been a nurse. I did not allow the background of the patients I treated to interfere with my decisions regarding their care. 

As a manager, employee backgrounds were never part of a decision. 

I made strong and sound decisions. 

I know your concern about looking at candidates very carefully 

because I, too, have had that responsibility as a Deputy Assistant 

at the White House. I had to interview people. I had to look them 

in the eye and see if they were actually telling the truth, if their 

backgrounds were correct and verifiable. So it is an awesome responsibility to put the right person in the right job. 

Senator LAUTENBERG. Ms. Rose, I am sure that you employ your 

best instincts, but don’t we have to look to something beyond one’s 

instincts or one’s feeling about the individual to get to the substance of the issue? Are there not systems applications that can be 

used to say, OK, here is what we do if someone comes up with a 

complaint? Where do we go? Do we then call in the supervisor? Do 

we call in fellow employees, rather than rely on some good feeling 

or bad feeling about an individual? I think that gets us into a probVerDate 0ct 09 2002 14:08 Mar 27, 2006 Jkt 024235 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 C:\DOCS\24235.TXT SAFFAIRS PsN: PAT
15

lem that we ought not to be trying to employ in making important 

decisions like this. 

We have, for instance—are you familiar with the Bunny Greenhouse situation? Bunny Greenhouse was an employee of the Corps 

of Engineers, and she was the top civilian contracting official with 

the Army Corps since 1997. She was demoted, and it appears to 

be retaliation for her June 27—just this past year—testimony before a Senate Committee, albeit it was a Democratic Committee because we couldn’t get her on the agenda of the standard Committee 

structure. She talked about inappropriate actions taken by the 

Army Corps in granting a no-bid contract to Halliburton. 

Now, how do you take an action like this and listen to someone 

carefully who feels that the government is acting improperly in this 

action and how do you say to that person, well, understand if you 

tell us, you may be putting your head on the chopping block. What 

would you do to ensure that these complaints are valid, that they 

are heard? Would you take the responsibility solely on yourself for 

making this decision about whether or not this person has fabricated this idea or whether or not punishment is in order? 

Ms. ROSE. I think it is the role of the member to seek the truth 

in whatever way is possible and make decisions based on what you 

believe is the truth and the facts that are laid out in the case. 

Senator LAUTENBERG. Ms. Rose, in 2001, you had a responsibility 

for recruiting, interviewing, and preparing candidates for appointment at executive levels in the Administration. In 2001, a man 

named Mike Brown was nominated to be Deputy Director of 

FEMA. Do you recall working on his nomination? 

Ms. ROSE. No, sir. 

Senator LAUTENBERG. Well——

Ms. ROSE. I did not have FEMA in my portfolio. 

Senator LAUTENBERG. But weren’t you responsible for vetting 

people who were being appointed to high-ranking positions in the 

government? 

Ms. ROSE. Yes, sir. I did domestic agencies, but not FEMA. 

Senator LAUTENBERG. So did you not look at Mr. Brown’s background? You know what happened there. He had a fabricated biography, as exposed by Time magazine and other sources. But that 

should have been an important look at a candidate for such an important job, and you don’t recall having——

Ms. ROSE. No, sir. I had nothing to do with his appointment. 

Senator LAUTENBERG. With the vetting? You weren’t responsible 

for the vetting? 

Ms. ROSE. No, sir. 

Senator LAUTENBERG. Thank you. Thanks, Mr. Chairman. I am 

done, Mr. Chairman. Thank you. 

Senator VOINOVICH. Thank you. Senator Akaka indicated that he 

would like a second round of questioning, and I will start it off. 

Ms. Kiko, how would you approach your responsibility to work 

with the unions and Federal managers to foster effective labor relations in the Federal Government? I will never forget when I was 

mayor of Cleveland I had my directors come to me, and they were 

complaining that it just was impossible to fire a bad employee. I 

talked to the woman that headed up our Civil Service Board, and 

she said, ‘‘Mayor, the bottom line is they don’t know what they are 

16

doing.’’ In other words, there are certain procedures that you follow, and they are not following them. At that time, we began a 

very aggressive effort to educate them about how the system 

worked, and it is amazing how the situation improved. 

Have you thought about how you might communicate to the various agencies on human capital management? If you conclude that 

there are agencies that don’t know what they are doing or the people in human resources don’t have the training they should have, 

do you feel it is your responsibility to call someone and maybe encourage training sessions? 

Ms. KIKO. Thank you for that question. I think it is a very important one in the labor-management area. I think you hit it on the 

head because of your background. Education is very important in 

attempting to help parties get along. I think you can certainly understand that managers deal with their employees. Some employees are good workers and some have challenges. There are problems of communication between parties. Sometimes management 

feels it absolutely can’t stand working with the union, and sometimes the union feels it cannot possibly stand to work with management. Then there are other agencies kind of on middle ground. 

Hopefully, in the role as the General Counsel of the Federal 

Labor Relations Authority, you have an opportunity to do two 

things. Certainly, we have the opportunity to prosecute cases 

against management or against the union if there are violations of 

the law. But prior to that, and I think it is probably the most important role, is attempting to get parties to work together, and the 

most important way to do that is to help them understand their parameters: What are the management rights? What are the union 

rights? What are the employee rights? And help the agencies understand that. 

Certainly, if there are areas where it appears that unfair labor 

practice charges are coming from the same area over and over and 

over again, that should suggest a problem. It would be my role to 

attempt to educate them as to the role of the Federal Labor Relations statute as to the roles of the parties, whether it means picking up the phone and calling someone or whether I set up training 

classes and offer such opportunities to various agencies that may 

need assistance. 

Senator VOINOVICH. You probably haven’t had a chance, but do 

you intend, if confirmed, to examine the performance of various 

agencies to get a feel for——

Ms. KIKO. Absolutely. I mean, this is what we are trying to do, 

is to promote healthy labor relations. If there are unhealthy labor 

relations going on, is there an opportunity to educate in the ways 

of the Authority decisions to help them understand? If they understand their parameters, they may be fighting over less. If we can 

help them understand their particular rights, this is what you need 

to work within. 

I think the Authority in recent years has done an incredibly wonderful job of attempting to do just that, to set out in their decisions, 

more predictability, more understandable decisions on how do I 

take this and then follow a roadmap. Oftentimes, legal opinions can 

be good for this particular case, but not particularly good for the 

next one because no one really understands what it is all about. 

17

But I think the decisions are starting to become much clearer 

and helping to educate the parties in what direction people need 

to go. The FLRA is now telling you: This is what we are finding 

to be right; this is what we are finding to be wrong. Now go out 

and play with those rules. And that helps healthy labor-management relations. Certainly, that is one area that I feel that is very 

important in educating the parties in what their roles are. 

Senator VOINOVICH. Do you know Colleen Kelley? 

Ms. KIKO. I do not know Colleen Kelley. I certainly know who 

she is, but I have not met her yet. 

Senator VOINOVICH. Do you know John Gage? 

Ms. KIKO. Not yet. I do intend to meet with them. 

Senator VOINOVICH. That is good. It would be wise for you to 

spend some time with them and let them share their feelings. I 

think it is important you all get to know each other so that they 

understand that you take your job very seriously and that you understand that there has been some misunderstanding between this 

administration and the unions. I am glad to hear that you are 

going to do that. 

Ms. KIKO. Thank you. 

Senator VOINOVICH. Senator Akaka. 

Senator AKAKA. Thank you very much, Mr. Chairman. 

Ms. Rose, at a November 2004 forum hosted by GAO and the 

National Commission on Public Service, participants questioned 

whether the merit systems principles should be updated in light of 

the new personnel flexibilities granted to Federal agencies as well 

as an increased focus on missions, goals, and results as envisioned 

by the Government Performance and Results Act. Do you believe 

that any changes should be made to the Federal merit systems 

principles, and if so, what changes and why? 

Ms. ROSE. That is a very interesting theory. I think it is very important that we constantly improve, and give introspective thought 

and consideration to all the laws because when laws are enacted, 

government changes. These laws should be changed based on policy 

changes that take place in government. 

I know of the Congress’s intent to look at these merit principles, 

and I welcome that. As I said, we can always look to improve ourselves in any way possible. In doing so, when the Congress enacts 

those changes, I will apply those laws to my cases as I see them 

should I be confirmed. 

Did you want a specific—any specific changes? At this time, I am 

not ready to answer that. As I see cases and identify the need for 

these changes I will say so in my reports and studies. 

Senator AKAKA. Thank you for that. Ms. Kiko, you were a labor 

relations specialist at the FLRA for 7 years. What problems, if any, 

did you see with the system at the time you worked there, and in 

your opinion, do these same problems persist today? 

Ms. KIKO. Well, it has been 23 years ago, so I have to go back 

into the mind a little bit further than I am used to. When I worked 

in the Federal Labor Relations Authority, it was a brand new agency. I think everyone was excited about the process. It is exciting to 

have your role taken out of an agency and put into an independent 

agency, and it gave a much heightened awareness to what we were 

18

doing at the time in the Department of Labor. It was a very exciting time. I recall a birthday cake for it on its first year in 1980. 

So at the time, it seemed a process that was working very well. 

We were attempting to train people. We were attempting to help 

understand the new law, where it was going, how it was going to 

be interpreted, that sort of thing. It was a new and exciting time. 

Were there problems with the system? I suspect there might 

have been. Certainly, whenever you are dealing with people trying 

to get along, you are always going to run into some problems. 

As for how the agency works now, that is one of the things that 

I would like to look at in depth, is how is the agency working, and 

I don’t intend to go in there with a preordained slate of what I remember from 23 years ago. I want to go in there with an open 

slate, and I want to go in and say, what is wrong with this agency 

and how does it work well? What is good? What is bad? Let us talk 

about it, and in my role of the Office of the General Counsel, 

should I be confirmed, what can I do to make it better? 

So I really am looking forward to listening and finding out where 

those issues are from the unions, from management, from my own 

staff in the agency, should I be confirmed, and from there determine where the problems are and find ways to correct them if it 

is possible within my authority. 

Senator AKAKA. Thank you. 

Ms. Rose, DHS and DOD have been granted flexibility to waive 

Chapter 77 of Title 5 relating to Federal employee appeals. As you 

know, the Federal Aviation Administration was granted similar authority in 1996. However, after finding that the internal process 

was unfair and biased, Congress reinstated MSPB appeal rights for 

FAA employees in the year 2000. What do you believe are some 

best practices that should be included in any appeals system? 

Ms. ROSE. Best practices would be making it as easy as possible 

for employees to appeal. By whatever means. For example, printing 

brochures or assisting them by making sure their phone calls are 

answered when they have questions. These simple administrative 

procedures can make it easier for an employee to appeal. Administratively, there are a lot of things I will do to help make the appeal 

process easier for the employee. It should be approachable and understandable. If they can’t understand the language, it doesn’t do 

them much good, and not all of them can afford attorneys or have 

the access to the help some other employees may have. Plain language is important. Communication and openess to employees who 

wish to make appeals are imperative. 

As far as the DHS and DOD regulations, I will just have to wait 

and see how they play out. I will carefully look at how difficult or 

easy it is for these employees to make appeals. The appeals process 

to the agencies and the Board must also be closely watched for difficulties or barriers that might interfere. 

Senator AKAKA. What about the independence of the appeals 

boards? 

Ms. ROSE. Independence is primary. I mean, there can be no interference or no obstruction to that independence. We talk about 

the issue of timeliness and the quality of the decisions of those appeals. I said in my question and answers that timeliness is important because people are suffering and you need to address their 

19

case as soon as possible and give them relief as soon as possible. 

At the same time, I do not believe that the independence or the integrity of the decision process should be endangered. 

Senator AKAKA. I thank you both for your responses. Thank you, 

Mr. Chairman. 

Senator VOINOVICH. I have one other question. Ms. Kiko, who do 

you go to for your budget? 

Ms. KIKO. The Chairman of the Authority manages the budget 

for the Authority. 

Senator VOINOVICH. OK. One of the things that I have observed 

around here is that we often ask people to do a job and then we 

don’t give them the resources to do it. I would hope that you would 

do an initial evaluation of the capacity of the Board to do its job 

and make sure that is communicated to OMB. 

I think that as we go back and examine preparation for Hurricane Katrina we are going to learn that some agencies should have 

had more resources. They have been asking for more resources but 

were ignored by the Administration and Congress. So I would urge 

you to do that. I know it is not easy, but you have to have the resources to get the job done. 

You may also need to hire more people. You are going to have 

people recommended to you, I am sure. I hope that you have the 

wherewithal to be able to reject bad candidates. One of the things 

that I did when I was governor and as mayor, I asked somebody 

to do a job and I said, you are the one that hires and fires and you 

are responsible. If you get someone that is recommended and you 

don’t think they have got it, you need to have the courage to say, 

they are not qualified or I don’t want them. Those two things are 

tough, but standing up for your budget and making sure that you 

get the people that you need to get the job done are important. 

Thank you both for being here today. We are going to leave the 

record open in the event that some of my colleagues have questions 

for the record. It will be open for 48 hours. Thank you. 

Ms. KIKO. Thank you very much, Mr. Chairman. 

Ms. ROSE. Thank you, Mr. Chairman. 

Senator VOINOVICH. You are more than welcome. 

Now, I ask Judge Juliet McKenna and John Fisher to come forward. 

Eleanor, I don’t know how long you have been in the wings, but 

if we kept you there a long time, I apologize. 

Ms. NORTON. It is all right. I was watching the hearing. 

Senator VOINOVICH. I welcome Eleanor Holmes Norton of the 

District of Columbia, who is here to introduce Mr. Fisher and 

Judge McKenna. I would like to thank Delegate Norton for her conscientiousness. She does a good job of making sure that she familiarizes herself with the individuals being nominated and makes it 

her business to come and appear before the Committee. 

Thank you for being here. 

STATEMENT OF HON. ELEANOR HOLMES NORTON, A 

DELAGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA 

Ms. NORTON. Thank you very much, Mr. Chairman, and may I 

thank you once again for your very exceptional work for the residents of the District of Columbia on the authorizing Committee 

20

here, and may I thank you for arranging this hearing for two exceptionally well-prepared and well-qualified nominees. 

I think if you look at their qualifications, and I will only briefly 

summarize them, it would appear that they have spent their entire 

professional lives preparing for the nominations they have received. 

John Fisher, as Associate Judge for the D.C. Court of Appeals, 

our highest appellate court in the District of Columbia, who now 

serves as the Chief of the Appellate Division for the United States 

for the District of Columbia, began his career as a law clerk for a 

Federal judge in the Southern District of Ohio. He was an Assistant Attorney General in Ohio for the United States for 3 years and 

then an Assistant Attorney General in the District of Columbia for 

16 years until he became the Chief of our Appellate Division. 

He has received many awards for his professionalism, including 

the Attorney General’s John Marshall Award for outstanding legal 

achievement in handling appeals. He has been elected to the American Academy of Appellate Lawyers. He is a Vietnam veteran, a 

graduate, magna cum laude, of Harvard College and cum laude, 

Harvard Law School. 

For our Superior Court, Juliet McKenna, who now serves in the 

Family Court as a magistrate. This is a court that this Committee 

was instrumental in forming as a part of our Superior Court, one 

of the great reforms, the first reform of that court in its history. 

Ms. McKenna has spent her life in legal services for children and 

for families. She began in a Washington law firm, but quickly 

moved into what has been her life’s work. She became Director of 

Lawyers for Children of America, which is a nonprofit organization 

that seeks to provide quality legal representation for children in 

the welfare system. She became an Assistant Corporation Counsel 

in the Abused and Neglected Children’s Section, and then she has 

gone to the Family Court as a magistrate and now wishes to be a 

full judge in the Superior Court and has committed herself to serving in the Family Court Section of that court, where we are especially looking for judges who have background and special dedication. 

So it is with great pleasure that I ask you to confirm these two 

exceptionally well-qualified nominees, in my opinion. 

Senator VOINOVICH. Thank you very much for being with us this 

morning. While you are welcome to stay for the remainder of the 

hearing, I understand you have other commitments. Thank you 

very much. 

I have reviewed the biographical questionnaires and believe you 

are both well qualified for the positions to which you have been 

nominated. 

Senator Akaka, would you like to make an opening statement? 

Senator AKAKA. Mr. Chairman, I just want to add my welcome 

to the nominees, and I look forward to their statements this morning. 

Senator VOINOVICH. It is the custom in the Committee, as you 

know, to swear in the witnesses. If you will stand, I will administer 

the oath. 

Do you swear that the testimony you are about to give this Committee is the truth, the whole truth, and nothing but the truth, so 

help you, God? 

21

1 The prepared statement of Judge McKenna appears in the Appendix on page 33. 

Biographical and professional information appears in the Appendix on page 98. 

Mr. FISHER. I do. 

Judge MCKENNA. I do. 

Senator VOINOVICH. Judge McKenna, I understand that you have 

some family members here today, as well as supportive colleagues. 

I would welcome you to introduce them to us. 

Judge MCKENNA. Thank you very much, Senator. I am joined 

today by my parents, Sherri and Jon McKenna, as well as my husband and my 6-year-old daughter, Miracle, who is sitting immediately behind me. 

I am also honored today that Judge Emmet Sullivan of the U.S. 

District Court for the District of Columbia is here today, as well 

as Judge Eric Washington, Chief Judge of the Court of Appeals, 

and my Chief, Chief Judge Rufus King of the Superior Court. 

I also wanted to take this opportunity to recognize several colleagues of mine from the Family Court who, as you can imagine, 

have served as sources of inspiration and support for me, including 

Magistrate Judge Pamela Gray, Magistrate Judge Karen Howze, 

and Magistrate Judge Carol Dalton, along with her courtroom 

clerk. I am also fortunate in that my courtroom clerk, Cynthia Milner, is here, as well as my former clerk, Rhonda Young. Thank you. 

Senator VOINOVICH. Thank you. It is a pleasure to have members 

of your family and colleagues represented here today. 

Please proceed with your statement. 

TESTIMONY OF HON. JULIET J. McKENNA,1 TO BE ASSOCIATE 

JUDGE, DISTRICT OF COLUMBIA SUPERIOR COURT 

Judge MCKENNA. Thank you. Senator, I am honored to testify 

today before the Committee, and I would like to thank Congresswoman Norton for her kind introduction this morning. I also would 

just like to take this opportunity to thank the members of the 

nominations commission for recommending me and the President of 

the United States for nominating me. 

I would, of course, like to express my appreciation to this Committee for convening today’s hearing and to your dedicated and 

hard-working Committee staff, as well as the staff of the White 

House Counsel’s Office, who assisted me throughout this process. 

I have been privileged to serve as a magistrate judge within the 

Family Court for the past 3 years, and I have taken this responsibility very seriously. I am committed to treating all people who 

come before the court with fairness, patience, and respect, and if 

confirmed, I would be honored to continue to serve the citizens of 

the District of Columbia as an Associate Judge. 

I look forward to answering any questions that you or Senator 

Akaka may have for me this morning. 

Senator VOINOVICH. Thank you very much. 

Mr. Fisher, would you please take the opportunity to introduce 

your family and friends who are here today. 

Mr. FISHER. I would, indeed. Thank you, Mr. Chairman. I would 

first like to introduce my wife, Margaret. Margaret and I have been 

married for 39 years, and I know very well that without her constant support and sacrifice, I wouldn’t be here today. Our son, 

22

Clark, who lives and works near San Francisco, and our daughter, 

Mandana, who is a junior at East Carolina University. 

I would like to note for the record, Mr. Chairman, that Margaret, 

Mandy, and I were all born in the great State of Ohio—— [Laughter.] 

Senator VOINOVICH. I was familiar with the fact that you had 

worked with a distinguished law firm in the State of Ohio, but I 

wasn’t aware that you were both born in the State. 

Mr. FISHER. Clark was not born in Ohio, but that is not his fault. 

[Laughter.] 

He did live with us in Columbus for several years, and he is a 

graduate of Denison University in Granville, Ohio. 

Mr. Chairman, many friends are here. I won’t take time to introduce them. I very much want to thank each and every one of them 

for being here today. 

There are a few other individuals I would like to take time to introduce, if I may. I would like to introduce Ken Wainstein, who is 

the U.S. Attorney for the District of Columbia. Mr. Wainstein is a 

very experienced prosecutor. He is a very effective leader of our office, and his nomination to be the presidentially appointed U.S. Attorney is now pending before the full Senate for possible confirmation. 

I would also like to introduce my friend and special advisor, Sam 

Kleinman. I hope Sam is here today. Sam, thank you very much. 

I am also very honored that several judges are here today, Chief 

Judge Eric Washington, who is the new Chief Judge of the District 

of Columbia Court of Appeals. I very much look forward to serving 

under his leadership. 

I would also like to recognize Judge Annice Wagner, who was 

Chief Judge of the Court of Appeals until about a month ago. 

Judge Wagner has been a judge, a trial judge on the Superior 

Court. She has been an associate judge of the Court of Appeals. 

And she has been Chief Judge of the Court of Appeals, and through 

all those assignments, she has been a remarkable leader and a true 

servant of justice. I have been nominated to take her seat, Mr. 

Chairman, but I have no illusions that I can ever take her place. 

I also believe that Judge Emmet Sullivan is here. I think I saw 

him earlier. He is a U.S. District Judge for the District of Columbia. He formerly served on the District of Columbia Court of Appeals, and before that, he served on the Superior Court of the District of Columbia. I believe the reason he is here today is because 

he is the current Chair of the D.C. Judicial Nomination Commission. 

Senator VOINOVICH. Would you stand up so we can see you? 

Thank you for being here. One thing that makes our job a little 

easier is the nominations committee vets everyone that we receive. 

I think Senator Akaka will agree with me that we really get outstanding nominees who come before us. 

Mr. Fisher. 

Mr. FISHER. And Judge McKenna had also introduced Chief 

Judge Rufus King of the Superior Court of the District of Columbia. Thank you for the opportunity to introduce these people. 

Senator VOINOVICH. We would welcome your statement. 

23

1 The prepared statement of Mr. Fisher appears in the Appendix on page 34. 

Biographical and professional information appears in the Appendix on page 121. 

TESTIMONY OF JOHN R. FISHER,1 TO BE ASSOCIATE JUDGE, 

DISTRICT OF COLUMBIA COURT OF APPEALS 

Mr. FISHER. Mr. Chairman and Senator Akaka, it is a great 

honor for me to be here today, and I am very grateful for the opportunity. I know how very busy this Committee is at this particular 

time, and I really do appreciate that both of you have taken time 

to consider our nominations. 

I want to express my sincere thanks to the staff of your Committee. They have been very courteous and they have been very 

helpful. This may be a familiar process to you folks, but it is a 

once-in-a-lifetime experience for me. I very much appreciate your 

courtesy and guidance and especially the courtesy of Ms. Jennifer 

Hemingway. 

As you know, Mr. Chairman, I have devoted most of my professional life to public service, and it has been one of the greatest opportunities of my career to be able to litigate so frequently before 

the District of Columbia Court of Appeals. I really do wish that 

more people understood how very talented and how very dedicated 

the judges of that court are. Our community is very well served by 

its Court of Appeals, and so it is a special honor for me to be nominated to join that court. 

Senator Akaka, Senator Voinovich, you both know about my 

background and my experience. I just want to assure you that if 

the Senate chooses to confirm me, I will work as hard as I can to 

justify your confidence in me, and I do welcome your questions. 

Senator VOINOVICH. Thank you. There are three questions that 

we ask all nominees. 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? If you 

will respond yes or no. 

Judge MCKENNA. No, Mr. Chairman. 

Mr. FISHER. No, Mr. Chairman. 

Senator VOINOVICH. Do you know of any reason, 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? 

Judge MCKENNA. No, sir. 

Mr. FISHER. No, Mr. Chairman. 

Senator VOINOVICH. Do you know of any reason, personal or otherwise, that would in any way prevent you from serving the full 

term for the office to which you have been nominated? 

Judge MCKENNA. No, sir. 

Mr. FISHER. I have an explanation, Mr. Chairman. I intend to 

serve as long as they will let me. I have been nominated to a 15-

year term. I celebrated my 59th birthday late last month, and I 

would be required to retire at the age of 74, so I would fall a couple 

months short of the full 15-year term. 

Senator VOINOVICH. Thank you. Senator Akaka, would you like 

to start the questions? 

Senator AKAKA. Yes. Thank you very much, Mr. Chairman. As 

you pointed out, we have individuals who are well qualified for the 

24

positions to which they have been nominated. I want to congratulate you both and also add my welcome to your families and friends 

who are here today to join you at this hearing. 

I would like to ask each of you what you believe are the biggest 

challenges facing the D.C. Court of Appeals and the D.C. Superior 

Court and what role each of you believe you could play in addressing these challenges. Mr. Fisher, let us start with you. 

Mr. FISHER. Thank you, Senator. Let me begin by saying that 

both courts, the Superior Court and the District of Columbia Court 

of Appeals, are very good courts. This community is very lucky to 

have such well run courts and talented judges serving there. 

A constant problem for both courts is the volume of litigation 

with which they have to contend. Because of my experience practicing so frequently before the courts, I hope to be able to hit the 

ground running. I think as a baby judge, I will not be able to make 

any significant changes in the beginning, but I do think being fairminded and hard-working is the best contribution I can make to 

trying to address fairly and as expeditiously as possible the cases 

that come before us. 

Senator AKAKA. Thank you. Ms. McKenna. 

Judge MCKENNA. Thank you, Senator Akaka. I would just like 

to first echo some of the comments of Congresswoman Norton and 

just recognize the hard work of this Committee with respect to the 

Family Court, which has relieved so much of the stress and the 

burden under which the Family Court used to operate. Now, I am 

very much pleased to have served on that court as a magistrate 

judge. I believe that the children and the families of the District 

of Columbia are much better served, in large part due to the additional resources that this Committee dedicated to the court. 

However, I think one of the challenges that the court as a whole 

continues to face, and the District of Columbia as a community, is 

the pervasive problem of substance abuse addiction, and I think we 

see the impacts of that in every division of the court, whether that 

be family, criminal, or civil in the landlord-tenant arena. Certainly, 

substance addiction is something that plagues many members of 

the D.C. community and can unfortunately lead to increased violence, increased poverty, and mental health issues, which too often 

then bring people before the court. 

I would hope that if I am confirmed and have the honor of sitting 

as an associate judge, I would be able to continue much of the work 

that has already begun through the community courts in the 

Criminal Division and the Family Treatment Court that is a part 

of the Family Court to try to collaborate with service providers in 

the community to be sure that those needs of those litigants are 

met in order to hopefully reduce recidivism and reunite children 

with their families as quickly as possible. 

Senator AKAKA. Thank you. I am interested in knowing, and this 

question is to both of you again, what challenges you will face in 

transitioning from your current positions to your respective positions on the D.C. Court, and how you will address these challenges? Let me switch and ask Ms. McKenna first. 

Judge MCKENNA. Thank you, Senator. As you know from my 

background, I am currently serving as a magistrate judge on the 

court and have been honored to be in that position for the last 31⁄2

25

years. I would welcome the opportunity to preside over a greater 

variety of cases if I am confirmed as an associate judge, but I have 

no illusions. I know that my workload will only increase if I am fortunate enough to be confirmed as an associate judge. But I feel 

that the last 31⁄2 years have prepared me well for that challenge, 

and I certainly look forward to hopefully assuming greater responsibility and being able to perform greater service on behalf of the 

court and the people of the District of Columbia. 

Senator AKAKA. Mr. Fisher. 

Mr. FISHER. Senator, as you know, for most of my career, I have 

been a prosecutor, an advocate, and although I am very familiar 

with appellate litigation, I hope to soon assume a new role, and it 

would not be a role as an advocate but a role as a fair and impartial judge. 

I believe I can make that transition. I certainly am determined 

to be fair and impartial if I am allowed to sit upon the bench. I 

think I have earned a reputation as being a fair-minded person, 

and so I look forward to making that transition in my role from 

being an advocate to being a judge. 

I think there is also a substantial management component to 

being a good and efficient judge. One of the things I will have to 

learn how to do is how to staff and manage a chambers. As Chief 

of the Appellate Division for the last 16 years, I have essentially 

been the manager of a small law firm. We have about 35 lawyers 

and about 10 support people in our Appellate Division, and I am 

hopeful that experience will help me be able to manage a chambers 

efficiently. I have always tried very hard to be a very collegial person, a very friendly person. The court to which I have been nominated is known for its collegiality, and I really do look forward to 

the opportunity to work with the judges there. 

Senator AKAKA. I thank you both very much for your excellent 

responses. 

Mr. Chairman, I just want to tell you that I would join you in 

expediting their confirmation. Thank you. 

Senator VOINOVICH. Thank you. 

Judge McKenna, if you are confirmed for this judgeship, you will 

preside over civil, criminal, and family cases. I have looked at your 

background and noticed your strong background in family law, 

which will be a vital asset to the family courts. What I didn’t see 

was a strong background in criminal law. How are you going to 

deal with some of these areas that maybe you are not as familiar 

with as you would like to be? Are you going to go to school? Do you 

see this as a problem? 

Judge MCKENNA. I appreciate the question. I feel very fortunate 

in that the Superior Court has, over the course of the time that I 

have been there, a long history of providing extensive training opportunities for judicial officers as they embark upon new assignments. 

As you know in your role of the Chairman, the Superior Court 

is a very diverse bench with people with very diverse backgrounds, 

including family, civil, and criminal backgrounds, who are called 

upon at one time or another to serve in divisions with which they 

may have had little previous familiarity. 

26

I feel that I am fortunate in having an extensive litigation background prior to coming to the court during the time that I served 

as a civil prosecutor for the Office of Corporation Counsel, and 

since being on the bench, while the substance of the cases I have 

handled have focused on family, I certainly have had the opportunity to preside over numerous evidentiary hearings and believe 

that I have learned skills in that capacity that will translate to any 

division of the court. 

But while I won’t have the luxury of going back to school, I certainly would avail myself of any and all training opportunities that 

could be made available in the civil or the criminal arena if the 

needs of the court would best be served by having me serve in one 

of those divisions. 

Senator VOINOVICH. The Chief Judge will decide what kind of 

cases you will be assigned to? You could end up handling a lot of 

the same cases? 

Judge MCKENNA. That is correct. Those decisions are made by 

the Chief Judge of the court, who I believe weighs the preferences 

that are expressed by the judges, assesses the backgrounds of the 

various judges, and then makes a determination about how the 

needs of the court would best be served, and I do feel that I am 

certainly prepared and able to serve in any division of the court as 

is needed by the Chief. 

Senator VOINOVICH. I have no further questions, Senator Akaka. 

If there are any other additional questions, they will be submitted 

to you within 48 hours, and if you don’t hear from anybody, it is 

fine. [Laughter.] 

I would like to give a special note to your respective families for 

the sacrifice that they have made so that you can serve in the positions that you have held. So often, our families don’t get the credit 

they deserve for their sacrifices. I am sure they are going to continue to make sacrifices so you can continue the job that you have 

to do. I know in my case, I have burned the midnight oil many 

times. My grandchildren complain about me taking home the weekly reports and reviewing them. So, I want to say thank you to your 

families for the sacrifice they have made over the years and for the 

one they will continue to make. 

I know you are both anxious to be confirmed. The next step in 

the process will be consideration of your nomination at a Committee business meeting, and reporting your nomination to the 

Senate for final action. 

Thank you for being here today. The hearing is adjourned. 

[Whereupon, at 11:45 a.m., the Committee was adjourned.] 

(27)

A P P E N D I X 


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34

PREPARED STATEMENT OF JOHN R. FISHER 

THANK YOU, MR. CHAIRMAN.

IT IS A GREAT HONOR FOR ME TO BE HERE THIS MORNING, AND I AM 

GRATEFUL FOR THE OPPORTUNITY. I KNOW HOW BUSY THE COMMITTEE 

IS AT THIS TIME, AND I THANK YOU AND SENATOR AKAKA FOR TAKING 

TIME TO CONSIDER MY NOMINATION.

I AM HUMBLED AND VERY GRATEFUL THAT PRESIDENT BUSH HAS 

NOMINATED ME TO BE AN ASSOCIATE JUDGE OF THE DISTRICT OF COLUMBIA COURT OF APPEALS.

I WANT TO RECOGNIZE AND THANK NEOMI RAO, ASSOCIATE COUNSEL 

TO THE PRESIDENT, WHO IS HERE THIS MORNING.

I ALSO WANT TO EXPRESS MY SINCERE THANKS TO THE STAFF OF THIS 

COMMITTEE, AND ESPECIALLY MS. JENNIFER HEMINGWAY, FOR THEIR 

COURTESY AND GUIDANCE. THIS MAY BE A FAMILIAR PROCESS TO YOU 

FOLKS, BUT IT IS A ONCE-IN-A-LIFETIME EXPERIENCE FOR ME, AND IT 

HAS BEEN VERY COMFORTING TO HAVE THEIR GUIDANCE.

AS YOU KNOW, MR. CHAIRMAN, I HAVE DEVOTED MOST OF MY PROFESSIONAL LIFE TO PUBLIC SERVICE. ONE OF THE GREAT PRIVILEGES OF MY 

CAREER HAS BEEN THE OPPORTUNITY TO LITIGATE SO OFTEN IN THE 

DISTRICT OF COLUMBIA COURT OF APPEALS.

I WISH MORE PEOPLE UNDERSTOOD HOW TALENTED AND DEDICATED 

THE JUDGES OF THAT COURT ARE. THIS COMMUNITY IS VERY WELL 

SERVED BY ITS COURT OF APPEALS, AND IT IS A SPECIAL HONOR FOR ME 

TO BE NOMINATED TO JOIN THAT COURT.

MR. CHAIRMAN, YOU KNOW ABOUT MY BACKGROUND AND EXPERIENCE.

I ASSURE THIS COMMITTEE THAT, IF YOU CHOOSE TO CONFIRM MY 

NOMINATION, I WILL WORK VERY HARD TO JUSTIFY YOUR CONFIDENCE 

IN ME.

I WELCOME YOUR QUESTIONS.

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Æ


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