U.S. GOVERNMENT PUBLISHING OFFICE

32–490 PDF WASHINGTON : 2019

S. Hrg. 115–546 

PENDING NOMINATIONS 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

NOMINATION OF DENNIS D. KIRK NOMINATED TO BE CHAIRMAN, 

MERIT SYSTEMS PROTECTION BOARD, HON. JULIA A. CLARK 

NOMINATED TO BE A MEMBER, MERIT SYSTEMS PROTECTION BOARD, 

ANDREW F. MAUNZ NOMINATED TO BE A MEMBER, MERIT SYSTEMS 

PROTECTION BOARD AND CARMEN G. MCLEAN NOMINATED TO BE AN 

ASSOCIATE JUDGE, SUPERIOR COURT OF THE DISTRICT OF COLUMBIA 

JULY 19, 2018 

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

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE D’ADAMO SINGER, Chief Counsel 

AMANDA R. HILL, Deputy Staff Director, Subcommittee on 

Regulatory Affairs and Federal Management 

MARGARET E. DAUM, Minority Staff Director 

STACIA M. CARDILLE, Minority Chief Counsel 

LAURA W. KILBRIDE, Chief Clerk 

BONNI E. DINERSTEIN, Hearing Clerk 
(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lankford .............................................................................................. 1 

Senator Peters .................................................................................................. 3 

Senator Hassan ................................................................................................. 10 

Senator Heitkamp ............................................................................................ 12 

Prepared statements: 

Senator Lankford .............................................................................................. 21 

Senator Peters .................................................................................................. 23 

WITNESSES 

THURSDAY, JULY 19, 2018 

Dennis D. Kirk Nominated to be Chairman, Merit Systems Protection Board 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 25 

Biographical and financial information .......................................................... 27 

Letter from the Office of Government Ethics ................................................. 49 

Responses to pre-hearing questions ................................................................ 52 

Responses to post-hearing questions .............................................................. 81 

Letter of support ............................................................................................... 94 

Hon. Julia A. Clark Nominate to be a Member, Merit Systems Protection 

Board 

Testimony .......................................................................................................... 6 

Prepared statement .......................................................................................... 96 

Biographical and financial information .......................................................... 98 

Letter from the Office of Government Ethics ................................................. 113 

Responses to pre-hearing questions ................................................................ 116 

Responses to post-hearing questions .............................................................. 135 

Letter of support ............................................................................................... 150 

Andrew F. Maunz Nominated to be a Member, Merit Systems Protection 

Board 

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

Prepared statement .......................................................................................... 151 

Biographical and financial information .......................................................... 153 

Letter from the Office of Government Ethics ................................................. 169 

Responses to pre-hearing questions ................................................................ 172 

Responses to post-hearing questions .............................................................. 192 

Letters of support ............................................................................................. 206 

Carmen G. McLean Nominated to be an Associate Judge, Superior Court 

of the District of Columbia 

Testimony .......................................................................................................... 8 

Prepared statement .......................................................................................... 210 

Biographical and financial information .......................................................... 211 

Responses to pre-hearing questions ................................................................ 235 

Responses to post-hearing questions .............................................................. 255 

APPENDIX 

Opposing Letters ...................................................................................................... 257 

(1) 

1The prepared statement of Senator Lankford appears in the Appendix on page 21. 

NOMINATION HEARING 

THURSDAY, JULY 19, 2018 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:04 a.m., in room 

342, Dirksen Senate Office Building, Hon. James Lankford presiding. 

Present: Senators Lankford, McCaskill, Heitkamp, Peters, Hassan, and Harris. 

OPENING STATEMENT OF SENATOR LANKFORD1

Senator LANKFORD. Good morning, everyone. Today we will consider the nominations of Dennis Kirk, Julia Clark, Andrew Maunz 

to be a Members of the Merit Systems Protection Board (MSPB). 

We will also consider the nomination of Carmen McLean to be an 

Associate Judge of the Superior Court for the District of Columbia. 

The Committee takes these nominations very seriously and we are 

pleased to have all of you appearing before us today. For all of you 

this was a long journey to be able to get to this spot, and there is 

still time to go. 

Dennis D. Kirk, originally of Kansas, earned a Bachelor of 

Science from Northern Arizona University and his J.D. from 

Washburn University’s School of Law. Upon graduation, he moved 

to the Washington area and began working for the Interstate Commerce Commission. Mr. Kirk left government service to practice 

law in private practice in Northern Virginia for almost three decades before rejoining the Federal Government in 2005. 

From 2005 until 2012, Mr. Kirk worked at the Pentagon for the 

Department of the Army, where he was recognized with multiple 

awards, including the Special Act or Service Award for saving the 

Army millions of dollars. 

The Honorable Julia Akins Clark is originally from the Shawnee, 

Oklahoma, area, down the street from my house. She graduated 

from Oklahoma Baptist University (OBU), which is a fine institution, with a B.A. in political science and then proceeded on to the 

American University’s Washington College of Law where she 

earned her J.D. in 1980, but I am sure it was not as good as her 

time at OBU. 

After completing law school, Ms. Clark also went on to work for 

the Federal Government, joining the U.S. Department of Justice 
2 

(DOJ). After 5 years of public service, she went into private law 

practice here in the Washington, DC. area, before moving on to 

work briefly for the National Coalition for the Homeless. Ms. Clark 

worked as the Counsel for the International Federation of Professional and Technical Engineers for over two decades before being 

nominated and confirmed twice during the Obama Administration 

to serve as the General Counsel of Federal Labor Relations Authority (FLRA). Ms. Clark currently serves in the congressional Office 

of Compliance. 

Andrew Maunz of Maryland is also nominated to serve as a 

Member of the MSPB. A native of Cincinnati, Ohio, Mr. Maunz received his Bachelor of Science from Miami University in Ohio in 

2005, and then attended the University of Toledo College of Law, 

earning his J.D. in 2008. Like his fellow MSPB nominees, Mr. 

Maunz joined the Federal Government upon completion of law 

school. Mr. Maunz has worked as an attorney in the Office of General Counsel (OGC) at the Social Security Administration (SSA) 

since 2008. He currently serves the agency as a senior attorney and 

has represented the agency in employment litigation before administrative agencies, including the MSPB. 

Carmen McLean is appearing before us today as a nominee to be 

the Associate Judge of the Superior Court of the District of Columbia. Ms. McLean was originally from Oregon, graduated with a 

Bachelor of Science at George Fox University in 1998. She earned 

her J.D. from Georgetown University Law Center in 2001. Ms. 

McLean is a partner at Jones Day here in D.C. She has extensive 

experience in contracts, torts, anti-trust law. She has also developed expertise in civil procedure and discoveries, especially discovery practices relating to new technologies and social media. 

I would be remiss if I did not mention Ms. McLean’s tremendous 

work on behalf of at-risk children in Washington, DC. Ms. McLean 

has been active with the Children’s Law Center and has provided 

thousands of hours of pro bono work to help individuals and families who want to provide a safe and permanent home for at-risk 

children. In this work, Ms. McLean was named, in 2012, Pro Bono 

Lawyer of the Year by the D.C. Bar Association. Thank you for 

your work for the community and for those kids. 

Committee staff has reached out to a variety of these nominees’ 

colleagues and affiliates, who spoke highly of them, you will be 

glad to know. You came very highly recommended by the people 

who work with you and know you the best. Committee staff has 

also had the opportunity to interview all the nominees on an array 

of issues. They have thoughtfully and competently answered each 

question, and I look forward to speaking with you more today on 

your experience and accomplishments and how you intend to bring 

them to bear in a fair and impartial manner on the Merit System 

Protection Board and for the District of Columbia. 

We also look forward to meeting your families publicly and hope 

that you will take the opportunity to be able to introduce them 

when you are recognized to speak. 

With that I recognize Ranking Member Peters for an opening 

statement. 
3 

1The prepared statement of Senator Peters appear in the Appendix on page 23. 

OPENING STATEMENT OF SENATOR PETERS1

Senator PETERS. Well, thank you, Mr. Chairman, and thank you 

to each of the nominees for your willingness to serve. 

Ms. McLean, you have a rare distinction of being nominated to 

the bench by both President Obama and President Trump. I would 

certainly love to hear how you managed to do that. It is a great 

relief to see that we have a judicial nomination without rancor or 

without controversy, and I hope you do not feel left out if you may 

not get a whole lot of questions here today. I am sure you will be 

OK with that as well. 

Today we are also considering three candidates for appointment 

to the Merit Systems Protection Board, which, as its name suggests, has the core function of safeguarding the merit-based system 

of governance. In a merit-based system, jobs to civil servants are 

not handed out based on political backgrounds or financial contributions. Instead, employees must be hired and retained based on 

their skills and effectiveness in carrying out the many Federal 

services that our communities rely on. Whether it is securing our 

borders, assisting our veterans, or protecting the environment, we 

need to ensure the Federal Government is pulling from a wide variety and a diverse talent pool of Americans who are dedicated to 

work hard for the public. 

This is a long-term strategy, and presidents, their cabinets and 

legislatures will come and go. A stable civil service is essential for 

maintaining a level of consistency, reliability, and competence in 

the American Government, regardless of where the political winds 

may be blowing at the time. 

The Merit Systems Protection Board was established in the same 

legislation that codified a framework for merit-based workforce. 

The Merit System Principles and Prohibited Personnel Practices 

laid out in the Civil Service Reform Act (CSRA) provides us with 

the necessary ingredients for protecting and preventing our civil 

service from becoming a system of political patronage. 

The principals include common-sense worker protections, like 

equal opportunity, retention based on job performance and fair pay. 

They rightfully prohibit employees from taking personal actions 

based on anything other than an individual’s qualifications, performance, and suitability for public service. Importantly, they also 

prohibit retaliation against whistleblowers who lawfully disclose instances of waste, fraud, and abuse. 

With over two million employees, the Federal Government is a 

large and often cumbersome entity, but the Merit System Principles set a critical foundation for accountability, and while protecting this framework we should also diligently try to identify opportunities to make the workforce more efficient. 

The MSPB can play a role in this. The Board is tasked with upholding the Merit System Principles through the precedents it 

takes in adjudicating cases and by taking proactive steps through 

civil service studies and review of the Office of Personnel Management (OPM) rules. 

As we consider your nominations, the question of how you will 

reinforce the merit system and promote an effective Federal work-
4 

1The letter referenced by Senator Peters appear in the Appendix on page 150. 

2The letter referenced by Senator Peters appear in the Appendix on page 260. 

3The prepared statement of Mr. Kirk appears in the Appendix on page 25. 

4The letter referenced by Mr. Kirk appears in the Appendix on page 94. 

force is central to this conversation, especially given the unfair and, 

frankly, harmful sensationalized attacks of our civil service. We 

should approach these issues mindful that we have been entrusted 

as stewards of taxpayer dollars and that we will work together so 

the government works for everyone. 

I look forward to your testimony. And, Mr. Chairman, prior to 

their testimony, if I could enter into the record with two letters, 

one from the National Treasury Employees Union1 and the second 

letter, signed by a variety of labor organizations.2

Senator LANKFORD. Without objection. 

It is the custom of this Committee to swear in all witnesses that 

appear before us, so if you do not mind I would ask all four of you 

to 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. KIRK. I do. 

Ms. CLARK. I do. 

Mr. MAUNZ. I do. 

Ms. MCLEAN. I do. 

Senator LANKFORD. Thank you. You may be seated. Let the 

record reflect that all witnesses answered in the affirmative. 

I want to recognize all of you one at a time for your opening 

statements, and I would encourage you to be able to introduce your 

family, and we do that as well so we can get to know you better. 

One of the challenges of this process is the family that goes 

through this long, painful process with you. So thank you for doing 

that. 

Mr. Kirk, you are recognized first. 

TESTIMONY OF DENNIS D. KIRK,3 NOMINATED TO BE 

CHAIRMAN, MERIT SYSTEMS PROTECTION BOARD 

Mr. KIRK. Thank you, Chairman Lankford, Ranking Member 

Senator Peters, and Senator Hassan. Thank you for the opportunity to appear before you on my hearing for confirmation to serve 

as a Member and the Chairman of the Merit Systems Protection 

Board. 

I would like to introduce my family: my son, Dean, in his final 

year of law school at Washburn University; My brother, Colonel 

Donald R. Kirk, who spent 32 years in service to our country; my 

intern, Oriet Hemenway, who is here observing how our government works. 

My thanks to the Honorable Tom Davis, my friend of over three 

decades, for his supporting statement he submitted to the Committee, and I will ask its admission into the record.4 Tom appointed 

me to the Fairfax County, Virginia, Consumer Protection Commission, where I am now on my 36th year of service, and Penny Gross, 

my Mason District Supervisor, keeps putting me on it. 

The Merit Systems Protection Board protects 2.2 million Federal 

employees by conducting fair and neutral case adjudications, regu-
5 

latory reviews, and independent government studies to improve the 

workforce. In conjunction with the Office of Personnel Management 

and Office of Special Counsel (OSC), it protects the Merit System 

Principles and prevents Prohibited Personnel Practices. The Constitution, U.S. Code, Code of Federal Regulations, and precedents 

of the MSPB and the U.S. courts all guide our Board, assuming 

confirmation—not presuming confirmation—in reaching decisions 

on the original, the appellate, and the specialized jurisdiction 

areas. 

The MSPB has a backlog now of about 1,250 cases awaiting decision because no voting board quorum exists. It literally is the elephant in the room. If the nominees are confirmed, it initiates the 

process toward delivering fair and equitable justice to waiting Federal employees. Employees reporting violations of law, waste, 

fraud, abuse, rules and regulations, mismanagement, and specific 

substantial dangers to public safety will receive our Board’s full 

help, such as protecting whistleblowers against undue retaliation 

or retribution for their coming forward to help our government. 

If confirmed, in collegial collaboration with my fellow board 

members and the excellent staff we have at the MSPB, I pledge to 

ensure the Board will deliver governmentwide studies to advise 

and protect the merit system by analyzing the health of the workforce, offer best practices, seek modernization of the workforce, and 

ensure fair treatment and safety for whistleblowers, and that will 

insure a workplace free from Prohibited Personnel Practices. 

As a proven strategic initiator of innovation, if confirmed I will 

develop creative, rapidly effective solutions to complex problems. 

For example, I will recruit, hire, train, educate, and deploy into the 

MSPB, and thus into our government service, the very best qualified diverse pool of Federal workers. This will assure fair pay with 

excellent treatment for all employees, so they can exhibit the highest standards of integrity while conducting public service. Literally, 

a fair day’s pay for a fair day’s work. 

The Secretary of the Army created a position in the Office of 

General Counsel. I was its first Associate General Counsel for Strategic Integration and Business Transformation. My responsibilities 

were to create, design, and build out a modern business transformation and modernization for the Army, and especially for the 

General Counsel. I developed efficient, economical improvements in 

civilian/military operational and personnel systems. This saved millions of dollars for the taxpayers. Such incredibly difficult challenges could not have been accomplished without the support of our 

excellent team of excellent public servants. 

It is a great honor and privilege to again hear the call to serve 

our United States of America, especially in such a challenging and 

noble function. I am happy to take any questions, and answer within my best abilities and present knowledge about the MSPB. 

Thank you, Senators, and welcome, Senator McCaskill. 

Senator LANKFORD. Thank you, Mr. Kirk. Ms. Clark. 
6 

1The prepared statement of Ms. Clark appears in the Appendix on page 96. 

TESTIMONY OF THE HONORABLE JULIA A. CLARK,1 NOMINATED TO BE A MEMBER, MERIT SYSTEMS PROTECTION 

BOARD 

Ms. CLARK. Thank you, Chairman Lankford, Ranking Member 

McCaskill, Senator Peters and Senator Hassan. I would like to introduce my guest, my baby brother, Tim Akins, and his wife and 

my good friend, Debbie Akins, who have traveled here to support 

me. 

Thank you for the opportunity to appear before you regarding my 

nomination to be a Member of the U.S. Merit Systems Protection 

Board. Thank you, in particular, for expediting this hearing in the 

interest of restoring the Board’s quorum. I understand well the 

challenges facing the incoming Board, who must adjudicate a backlog that will soon be over 1,300. I am confident that if confirmed, 

with the assistance of the MSPB career and non-career staff, and 

the new Board members, we will be able to address the backlog as 

expeditiously as possible. 

I am the daughter of career public servants who taught me, 

through their example, the essential role that career public servants play in the delivery of efficient, effective, and high-quality government services to the American people. I joined the Federal Government myself upon law school graduation, by accepting a position 

as an Honors Program Trial Attorney in the U.S. Department of 

Justice. Subsequently, I devoted my legal career to upholding the 

public’s interest in maintaining a high-quality career civil service. 

For over 20 years, I represented civil servants’ workplace interests 

as a private labor organization attorney. 

I was privileged to represent National Aeronautics and Space Administration (NASA) scientists, engineers, and technicians, Naval 

Shipyard engineers and technicians, Army Corps of Engineers research scientists, Environmental Protection Agency scientists, Congressional Research Service experts, Government Accountability 

Office analysts, Administrative and Immigration Judges and many 

others. 

I was privileged to rejoin the Federal Government in August 

2009, as the General Counsel of the Federal Labor Relations Authority, where I was entrusted by the President and the Senate 

with enforcement of the labor-management relations provisions of 

the Civil Service Reform Act of 1978. And since January 2017, I 

have served as the Deputy General Counsel of the Office of Compliance, the Legislative Branch independent agency tasked with protecting Legislative Branch employees’ workplace rights under the 

Congressional Accountability Act. 

My experience as both a public servant and as a private attorney 

has prepared me for the important adjudicatory responsibilities 

Congress has conferred upon the MSPB Member, and I pledge my 

unqualified commitment to protect the Merit System Principles and 

to promote a Federal civil service free of Prohibited Personnel Practices. I further wholeheartedly embrace the MSPB’s stated vision, 

that by fulfilling the agency’s statutory mission, the MSPB will 

promote a highly qualified, diverse Federal workforce that is fairly 
7 

1The prepared statement of Mr. Maunz appears in the Appendix on page 151. 

and effectively managed, and provides the best possible government services to the American people. 

In closing, I would like to thank the Committee staff, my fellow 

nominees, and acting MSPB Chairman Robbins for their professional and collegial approach to the preparations for this hearing. 

Further, I want to express my appreciation to my family, friends, 

and work colleagues over the years for their guidance and support. 

And most especially, I want to thank the thousands of Federal civil 

servants I have been privileged to meet over the course of my career. They are the foundation of my faith in the enduring value of 

the Federal civil service system to the American people. 

Thank you for allowing me the opportunity to present these remarks, and I look forward to responding to any questions you may 

have. 

Senator LANKFORD. Thank you, Ms. Clark. Mr. Maunz. 

TESTIMONY OF ANDREW F. MAUNZ,1 NOMINATED TO BE A 

MEMBER, MERIT SYSTEMS PROTECTION BOARD 

Mr. MAUNZ. Thank you, Senator. Quickly I will introduce my 

family that is here today. My wife, Kira, our two daughters, Emory 

and Margot. My parents came in from Cincinnati, Ohio, Ed and 

Marie Maunz. 

Chairman Lankford, Ranking Member McCaskill, Senator Peters, Senator Hassan, and the rest of the Members of the Committee and its staff, I would like to thank you for having me here 

today. I would also like to thank President Trump for nominating 

me to this position. To my wife Kira, our two daughters, my parents, and the rest of my family, I would like to thank you for your 

love and support during this process. I would also like to acknowledge the friends, co-workers, and former colleagues who have sent 

well wishes and congratulations. Last but not least, I would like to 

thank acting Chairman of the MSPB, Mark Robbins, and his staff 

for their tremendous assistance in preparing for this hearing. 

First, I would like to tell the Committee a little about myself. I 

was born in a place called Clarksburg, West Virginia, where my father owned a small men’s clothing store that was originally opened 

by my great-grandfather, an Italian immigrant. A few years after 

I was born, my dad closed up the store and my family moved out 

of town. We eventually settled in Cincinnati, Ohio, where my dad 

continued to work in retail and my mom worked as a teacher, primarily at a Catholic elementary school. 

My father is the hardest working person I know. He would regularly work 70–80 hours a week, 6–7 days a week, to provide for our 

family. With his work schedule, my mom had to do the bulk of 

managing our household, which she did wonderfully while balancing her own career. 

As an attorney working for the Social Security Administration 

and as a Federal employee, I have always tried to keep in mind 

that my salary is paid by the taxes of people like my parents, people who go to work every day, work hard, and expect their government to be responsive and efficient. These people, the American 

people, deserve a Federal Government with the best workforce pos-
8 

1The prepared statement of Ms. McLean appears in the Appendix on page 210. 

sible. I believe that the MSPB plays a crucial role in achieving this 

goal. The MSPB helps ensure that all personnel decisions are based 

on merit, it helps protect whistleblowers and our veterans, it keeps 

the workforce free of partisan political activity, and so much more. 

In my opinion, the MSPB fulfills its mission best when it applies 

the relevant legal authorities as they are written and does not 

stray beyond its statutory mandates. The job of the MSPB is not 

to favor one side versus the other. It is to protect our civil service 

system by reviewing the facts and applying the law in a neutral 

and fair way. When it performs its functions properly, the MSPB 

is one of the most important entities in achieving a Federal Government that works best for the American people. 

I am ready for the important job of serving on the MSPB. For 

nearly 10 years, I have been immersed in the many complicated 

issues Federal agencies face. I have litigated employment law cases 

in many forums, including before the MSPB. I have provided legal 

advice on a wide variety of issues, and trained agency managers on 

some of the many laws they must be aware of when managing employees. I believe this experience will serve me well, if I am confirmed to the MSPB. 

I am excited about this opportunity, and if the Senate confirms 

me, it would be an honor to serve in such an important position 

in our government. I will now make myself available to answer any 

questions the Committee may have. Thank you. 

Senator LANKFORD. Thank you, Mr. Maunz. Ms. McLean. 

TESTIMONY OF CARMEN G. MCLEAN,1 NOMINATED TO BE AN 

ASSOCIATE JUDGE, SUPERIOR COURT OF THE DISTRICT OF 

COLUMBIA 

Ms. MCLEAN. Thank you, Mr. Chairman, Senator Peters, Senator 

McCaskill, and Senator Hassan. I am deeply grateful for the opportunity to appear before you as you consider my nomination to be 

an Associate Judge of the Superior Court of the District of Columbia. It is a great honor to be nominated and considered for this position. 

I would like to thank the Judicial Nomination Commission and 

its chair, the Honorable Emmet Sullivan, for recommending me, 

and the President for nominating me. I thank Superior Court Chief 

Judge Robert Morin for attending here today, and Congresswoman 

Norton for her support. Finally, I would like to express my sincere 

thanks and appreciation to the Committee Members and the dedicated Committee staff for their hard work in considering my nomination, and for the courtesy and professionalism to me throughout 

this process. 

Here with me today is my husband, Carson McLean, to whom I 

am immeasurably grateful for his unwavering encouragement, and 

my children, 8-year-old Coen and 5-year-old Cait, who inspired me 

to reach for my dream to become a judge. I love you all dearly. 

I would also like to recognize my mother, Marcia Rush, also here 

today; my sister, Darcy Guerricagoitia, who is on duty as a Lieutenant Commander in the United States Navy today; and other 

members of my family who have been endlessly supportive and are 
9 

watching from afar. Finally, I would like to acknowledge the many 

friends and colleagues who have guided and encouraged me in a 

myriad of ways. Thank you all for your kind support. 

In 1998, I moved from rural Oregon to the District of Columbia 

to attend Georgetown University Law Center and I have been here 

ever since. In 2001, I began working just a few blocks from here, 

at the Washington office of Jones Day, an international law firm. 

During my nearly 17 years at Jones Day, I have been privileged 

to work with many brilliant, strategic, hard-working lawyers, represent influential and innovative clients in a variety of industries, 

including digital music, automotive, and pharmacology. I have 

worked on large-scale litigation matters involving complex and 

novel legal issues. I am extremely grateful for the lessons that I 

have learned through these experiences and from my talented colleagues, and for the honor of working at Jones Day. 

During the past 17 years, I have also dedicated a great deal of 

time to pro bono and public service matters impacting the citizens 

of the District of Columbia. While I have worked on a range of matters, I have spent the vast majority of my time in the service of 

at-risk children who need safe, permanent, and loving homes. 

Through these matters, I saw first-hand the impact of our justice 

system on the citizens of the district and was motivated to further 

my public service. 

Through this work, I also frequently appeared before District of 

Columbia Superior Court judges who demonstrated a mastery of 

the relevant laws, rules, and procedures; who treated all litigants 

fairly, with dignity and respect; maintained high standards for 

counsel; were deliberate in their application of the law to the facts; 

and provided thoughtful and timely decisions. If I am fortunate 

enough to be confirmed, that is exactly the type of judge that I will 

work very hard to become. 

Again, thank you for the opportunity to appear here today. I am 

humbled to be considered for this position, and I look forward to 

answering your questions. 

Senator LANKFORD. Thank you. Thank you to all of you. 

We have three mandatory questions that we ask all of our nominees, that I wanted to be able to just ask each of you, and I will 

ask each of you for a verbal response, and then I am going to go 

directly to Senator Hassan for questions from there. 

First question. 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. Kirk. 

Mr. KIRK. No. 

Senator LANKFORD. Ms. Clark. 

Ms. CLARK. No. 

Senator LANKFORD. Mr. Maunz. 

Mr. MAUNZ. No, Senator. There is no fundamental conflicts, as 

I mentioned in the questionnaires. There could be, it is unlikely but 

there could be individual cases that I could have to recuse myself. 

Senator LANKFORD. We will talk about that in a moment then. 

Ms. McLean. 

Ms. MCLEAN. No. 

Senator LANKFORD. The second one. Do you know of anything 

personal or otherwise that would in any way prevent you from fully 
10 

and honorably discharging the responsibilities of the office to which 

you have been nominated? Mr. Kirk. 

Mr. KIRK. No. 

Senator LANKFORD. Ms. Clark. 

Ms. CLARK. No. 

Senator LANKFORD. Mr. Maunz. 

Mr. MAUNZ. No. 

Senator LANKFORD. Ms. McLean. 

Ms. MCLEAN. No. 

Senator LANKFORD. Third question. Do you agree, without reservation, to comply with any request or summons to appear and 

testify before a duly constituted committee of Congress if you are 

confirmed? Mr. Kirk. 

Mr. KIRK. Yes. 

Senator LANKFORD. Ms. Clark. 

Ms. CLARK. Yes. 

Senator LANKFORD. Mr. Maunz. 

Mr. MAUNZ. Yes. 

Senator LANKFORD. Ms. McLean. 

Ms. MCLEAN. Yes. 

Senator LANKFORD. Thank you. Thank you all. I recognize Senator Hassan for her questions. 

OPENING STATEMENT OF SENATOR HASSAN 

Senator HASSAN. Well, thank you, Mr. Chairman, and Ranking 

Member, and thank you to all of our nominees, and congratulations 

on your nominations and to your families as well. Nobody does public service on their own. They do it with the support of their families, and we are very grateful to yours, as well as to all of you. 

Ms. McLean, I wanted to just start with you. It is always important to me, also a lawyer, to find out why people who aspire to a 

judicial position became lawyers in the first place. So what inspired 

you to want to go into law and what guiding principles will you 

take to the Superior Court, should you be confirmed? 

Ms. MCLEAN. Thank you, Senator, for that question. When I was 

a child, my mother was a legal secretary and a judicial assistant, 

and I went to work with her on many occasions and I saw what 

the men that she worked for did for a living, how they helped their 

clients, how they helped the litigants before them. I decided when 

I was 5 that I was going to be a lawyer, and I never wavered. 

I did not voice my desire to be a judge until I started this process, but it was always there. I always wanted to serve my community in some capacity, and that is why, for the past 17 years, I have 

been so dedicated, while in private practice, to pro bono service, 

and why I now want to make the move to full-time public service. 

And the quality that I would take to the bench is just an inherent sense of justice, principles, and a desire to be organized and 

prepared, and treat each litigant with dignity and respect, and 

move cases forward in a timely manner so that all can have access 

to justice. 

Senator HASSAN. Well, thank you. What I am always looking for 

in a nominee, and in a judge, is somebody who turns their courtroom into a place where everybody truly not only is treated procedurally equally but feels equal in the moment and understands 
11 

that their case will be heard, based on the law and based on the 

general principles that we respect each and every individual. So 

thank you very much for your answer and for your willingness to 

serve. 

To the MSPB nominees, I am going to ask each of you to answer 

just the same question. The MSPB has the authority to issue stays 

of agency action in whistleblower cases. However, they cannot do 

so when the MSPB lacks a quorum, which, as you have all noted, 

is currently the case. 

The Committee Chair and Ranking Member have co-sponsored 

legislation to allow for the MSPB to issue additional stays in the 

absence of a quorum, which would be a good step, but in an ideal 

world we would always have a quorum. 

I worry that this lack of urgency to have a quorum has already 

had negative impacts on whistleblowers and sends a message to potential whistleblowers that their protection is not a priority. 

So should each of you be confirmed, how will you work to ensure 

that whistleblowers are given adequate protections, and will you 

advocate for changes that will ensure that they always have protections, even in the absence of a quorum? 

And I will start with you, Mr. Kirk. 

Mr. KIRK. Thank you for the question, Senator Hassan. Whistleblowers constitute one of the lights in our government where, when 

it turns on, you know there is something to be done now, kind of 

like the lights when the British were coming, and they deserve our 

full attention, protection. Those things they are bringing to us are 

urgent matters. We need to take full cognizance of them. We need 

to do something about them. I find that one of the best things that 

MSPB does is adjudicate those issues that typically are brought up 

from the Office of Special Counsel to us, and the fact that they cannot get justice right now, it is, like I said, the elephant in the room. 

Senator HASSAN. Thank you. Ms. Clark. 

Ms. CLARK. The principle step that we will be taking, that I will 

be taking, if confirmed, is to adjudicate those cases fairly, impartially, and expeditiously. I am sure that if we are confirmed one of 

the first things we will do is be meeting with staff to come up with 

an action plan for clearing the backlog and prioritizing cases. It 

would not surprise me at all if a big subject of discussion is whether to make whistleblower cases one of those priorities, and how to 

do that. But, principally, what we can do for whistleblowers is adjudicate those cases fairly and expeditiously. 

With regard to change, I believe that I really need to be there 

and understand the landscape, but consideration of policy recommendations or procedural changes to the MSPB that would even 

more protect whistleblowers is something that I will dedicate myself to. 

Senator HASSAN. Thank you. And Mr. Maunz. 

Mr. MAUNZ. Thank you, Senator. To echo my fellow nominees, I 

believe whistleblowers play a very important function in our Federal Government in identifying malfeasance. And to the extent 

someone has made a disclosure that is protected under the whistleblower statutes, they should be protected from retaliation to the 

fullest extent of the law, and I believe the best way for the MSPB 
12 

to make sure whistleblowers are protected is to apply that law and 

to take those cases very seriously that come before us. 

As far as your question about changes, I think that is something 

that once I get into the job, hopefully, if confirmed, that I would 

be able to talk to career staff and other people that may have identified issues that have popped up now, when there was not a 

quorum, that could be fixed, and things that could be changed in 

the legislation to help prevent those problems from happening 

again, should a lack of a quorum occur. 

Senator HASSAN. Well, thank you very much, and thank you, Mr. 

Chair. I yield the rest of my time. 

Senator LANKFORD. Thank you. Senator Heitkamp. 

OPENING STATEMENT OF SENATOR HEITKAMP 

Senator HEITKAMP. Thank you, Mr. Chairman, and thank all of 

you for your willingness to serve and the willingness to put your 

name forward. This is kind of a grueling process. I know a number 

of you have been waiting a long period of time, maybe through two 

Administrations, in terms of nominating. But it is time that we get 

the Board up and running and that we make sure that we have 

enough judicial support in D.C. to support the important work that 

that branch of government does. So congratulations to all of you. 

I am struck by kind of this sense that the merit system is antiquated, and I am curious about the role that each one of you will 

play, going forward, in protecting that system, or at least hopefully 

modernizing that system. And so maybe talking about merit-based 

employment, start with you, Mr. Kirk, can you give me the elevator 

speech that you would give anyone who told you that Federal employees do not do a good job and that their job is unreasonably protected, and that we really do not need a merit-based system anymore? 

Mr. KIRK. I come from a military background in the Army and 

I can tell you that we value our fire protectors, our police, our military. But the people do not understand. What gets delivered to 

them every day is from a Federal employee. That Federal employee 

goes to work, work his or her heart out, goes home to the family. 

Every day they have a tough job. They go and do what we have 

to have done, and we cannot just say there is no merit to their 

business. They are our business. 

So the merit system, in my viewpoint, would be to celebrate their 

service, to give them the due they are due, and as I said earlier, 

to pay them fairly for the fair day’s work they put in. 

Senator HEITKAMP. Thank you. Ms. Clark? 

Ms. CLARK. Sure. It always strikes me as inconsistent to question 

why we should have a merit-based system when merit is such a 

positive word. But the essential point of our merit-based system is, 

in the first instance, to protect against arbitrary action, decisions 

based on partisan or other prohibited discrimination and reasons, 

to create a stable workforce, an educated workforce, and to ensure 

that decisions made about their employment is always based on 

merit. And at the end of the day, that means that you are going 

to have the most highly qualified, highly trained, career staff who 

can weather the changes in government that are the foundation of 

our democracy. And what makes those changes allow for continuity 
13 

of those outstanding government services is a merit-based civil 

service. 

Senator HEITKAMP. Thank you. Mr. Maunz. 

Mr. MAUNZ. Thank you, Senator. Senator, I would tell this individual that the Federal Government and the Federal workforce 

work for all of us, and we do not want it to work for a particular 

political party, regardless of what party you belong to, or no party 

at all. You want the jobs to be—who gets the job to be determined 

on who is the best person for the job. You do not want it to be 

handed out through political patronage or anything like that, and 

I believe our civil service laws, our Merit Systems Principles, play 

an important role in ensuring that the best people are hired for the 

jobs and that those people are not fired for the wrong reasons. 

Senator HEITKAMP. Do you think if we did not have a meritbased system and the protections of a merit-based system we would 

be able to recruit the same quality Federal employees that we have 

today? And we will start with you, Mr. Maunz. 

Mr. MAUNZ. Well, I think as far as who would be attracted to the 

jobs, I am not sure, but, without certain civil service laws the same 

people would not apply. But I certainly think it helps ensure that 

the actual people who are hired are the best people for the jobs, 

and that, as I just mentioned, any time, in a government agency, 

depending, there could be the motivation to hire people that are politically connected or people that maybe volunteered on the campaign, or something like that. And I do not think we want that, 

and I know we do not want that. 

So I think the civil service law certainly helps us hire the best 

people. 

Senator HEITKAMP. Ms. Clark. 

Ms. CLARK. I agree. I think the system does ensure that those 

people who are hired are highly qualified and properly vetted, and 

that the checks that are in place in terms of performance management allow for that decision to be evaluated and corrected if made 

incorrectly in the first instance. 

Senator HEITKAMP. Mr. Kirk. 

Mr. KIRK. Senator, history informs us. We learn from the past. 

Chaos happens without a merit systems protection service. We are 

looking for the brightest, the best, the stars to come into the government. They serve because they want to serve. They do not come 

here for the salary. There is not much of that. They come here because they want to be somebody, doing something for the American 

public. Those are the people we want. I would never want to see 

the merit system go away. Those nine principles are sacrosanct. 

Senator HEITKAMP. Yes. I mean, I think quality, continuity, and 

making sure that partisanship is OK, at top levels, as they fulfill 

an agenda, but the daily, day-to-day work, want to draw from the 

most expansive pool that you can, and that means that it cannot 

be partisan-based. 

And, Ms. McLean, congratulations on getting your hearing and 

good luck to you. I know you will be a great judge. Thank you. 

Senator LANKFORD. Senator Peters. 

Senator PETERS. Thank you, Mr. Chairman. Mr. Kirk, the first 

question is for you. After more than a year without a Board 

quorum, what is your plan to adjudicate the more than 1,250 cases 
14 

currently awaiting a decision from the Merit Systems Protection 

Board? 

Mr. KIRK. Thank you, Senator Peters. Right now we have a staff 

that is working on those cases and they have brought them forward 

in certain versions. Those cases have to be looked at by us in a circular manner right now. Under our authority, I, as the lead of the 

agency, have the authority to reach out to other agencies and pull 

in Administrative Law Judges (ALJs), administrative judges and 

attorneys and staff, and bulk up our processing. They will still 

come before the three of us, if confirmed. To do that, I will consult 

with my colleagues, in a collegial manner, but in management I 

will also start talking with the staff of the Board and find out what 

ideas they have. 

I have been Iincluded in processing of prior problems. At the 

Army Science Board, they were years behind. I came with a Lean 

Six Sigma team, three people, and in 45 days we converted that 

process, reformatted it, and rolled it out, deployed a system that 

now, maximum is 90 days. We bring in people to come serve because of that. But you have to think outside the box. The old ways 

of doing things will not cut it, and we have a huge problem coming 

up. 

As you are probably aware, there may be some changes coming 

in the Federal Government. If that happens, there may be Reduction in Force (RIFs), furloughs, firings. We have to deal with that, 

and the way to deal with that is to fairly and quickly get a system 

into place to deal with it. I believe I can do that. Thank you, Senator. 

Senator PETERS. Well, if confirmed, would you institute specific 

changes in policies? You mentioned one from your previous experience. Would we expect something similar to that, or do you have 

something else in mind? 

Mr. KIRK. Well, I have not really studied it yet and I would have 

to deal with my colleagues and the Board staff, so specifics, no, I 

am not going to prejudge anything because I do not know what I 

am going to find when I find the lay of the land. The acting Chairman and present staff have given me a light briefing at the top 

about things. I think they have some good handles on some things, 

but they have not been able to make that move because they do 

not have a quorum and they cannot vote those things through. 

As administrator and chief executive officer (CEO), I will have 

certain powers, but I will not execute them without the collegial 

support of my Board and staff. Thank you. 

Senator PETERS. So what is your understanding of how this backlog occurred in the first place? 

Mr. KIRK. Well, they can handle about 75 cases, I believe, a 

month. When they had a few cases kind of bulk up on them, on 

the calendar, all of a sudden the Vice Chairman left, and then the 

Chairman left, and then there was no action. And you have to give 

the man credit. Mark Robbins did yeoman service but he cannot 

vote. And so without that it just piles up. 

Senator PETERS. Thank you. 

I am going to want to ask the three of you some of your thoughts 

on proposed legislation, the Modern Employment Reform Improvement and Transformation (MERIT) Act which would significantly 
15 

reduce the time it takes to fire a Federal worker accused of poor 

performance or misconduct. The bill reduces the time for an employee to appeal firing decisions or for the MSPB to intervene on 

their behalf, and extends new employee probationary periods to 2 

years. It would also allow agencies to avoid negotiated grievance 

procedures, reduce benefits of workers who are convicted of a felony and fired, and rescind bonuses or other cash awards deemed 

to be wrongly paid. 

On Tuesday of this week, the Nation’s largest Federal union, the 

American Federation of Government Employees, American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), 

signaled its strong opposition to the MERIT Act, arguing that the 

legislation would make it easier to fire Federal employees and 

would give agencies alternative mechanisms for punishment of 

Federal workers. 

So to each of the nominees, my question is, in your view, does 

this legislation support or undermine the due process system that 

provides Federal workers with a meaningful opportunity to defend 

themselves when treated unfairly? And I guess we heard from you 

first, Mr. Kirk, so we will start at the other end of the table and 

work that way. Mr. Maunz. 

Mr. MAUNZ. Thank you, Senator. I would need to study the legislation more. I know I saw news reports about it passing a House 

committee, I think, earlier this week. I would need to take a closer 

look at all the ins and outs of the particular legislation. I think, 

generally, the MSPB should stay out of the legislation that Congress is proposing in this area. Our job is to take whatever laws 

Congress gives us and apply those to the facts of individual cases. 

I leave the making of laws to lawmakers. So, Senator, I would certainly need to study this legislation more before I could give any 

type of informed opinion on it. 

Senator PETERS. OK. And we will give you that opportunity and 

we will be following up with some written questions after you have 

had a chance to review the legislation. We look forward to having 

your response. 

Ms. Clark. 

Ms. CLARK. Yes, Senator Peters. Similarly, I have seen the press 

reports. I have not studied the legislation carefully enough to have 

a professional opinion. I would also note that the statutory role of 

the MSPB is not to make policy but to adjudicate cases based on 

policies set by Congress, and then to offer evidence-based studies 

and review of OPM personnel actions. I really look forward to that 

part of the job. I know that, as a practicing attorney, I frequently 

consulted MSPB’s evidence-based studies and found them to be 

very useful in this area. 

I also would note just that I had a significant period of time as 

a Federal manager and found the existing merit system to be one 

that I found to be very practical and workable in terms of holding 

employees, who were my subordinates, accountable, and without 

undue use of resources or undue time. And I also found, in my experience, that the due process protections not only benefited me as 

a manager, to make sure that we were really doing the right thing, 

we had our facts straight, but also supported the collegial atmosphere of the other workers who were not involved in the perform-
16 

ance or misconduct type issues, because not only did they see us 

as holding their coworker accountable but they also saw us acting 

in a way that was fair and transparent, giving them the assurance 

that if they were ever in those shoes they would be treated according to the Merit Systems Principles as they exist. 

Senator PETERS. Thank you. Mr. Kirk. 

Mr. KIRK. Senator, I do not want to prejudge this because I have 

not read the legislation. I have been here 40 years in this town, 

though, and sometimes what gets introduced and passed does not 

get enacted. So I would be very curious to see what is enacted. But 

we follow the laws you give us, and we follow the Constitution, and 

the court, once in a while, takes some of the laws you pass and 

sends it back. 

So I do not know which it will be. I will try to do my very best, 

under the laws you give me, and I guarantee you, and I pledge to 

you we will be up here, dealing and answering with your questions 

any time you want us here. 

Senator PETERS. So, and I understand, either one of you or all 

three of you, have mentioned you have not seen the legislation so 

I could indulge the Chairman, that is kind of just a general question and does not require you looking at the legislation specifically 

and knowing the details. 

Just in your view, generally, and just your thoughts, quickly, 

would eliminating or shortening processes for Federal workers to 

challenge firing decisions of agencies and empowering agencies to 

take back bonuses or garnish benefits, do you think that improves 

Federal employment practices? 

We can start with you, Ms. Clark, and then we will go to Mr. 

Maunz and then to Mr. Kirk. 

Ms. CLARK. Again, I just have to say that the array of tools available to managers to hold employees accountable is a policy decision. It is not the function of the MSPB to make those policy 

choices. It is the role of Congress. And to the extent—— 

Senator PETERS. I am asking you, just your thoughts, generally. 

I am not asking you to make policy. I just want to know where you 

are coming from on this issue. How do you think about it? 

Ms. CLARK. Well, I can say that from my experience as a Federal 

manager for 7 years with a staff of about 70, that I found the tools 

at my disposal in the civil service to be adequate and practical, and 

I was able to hold employees accountable for a range of performance and conduct issues without an issue, and continue to motivate 

the staff that was under me. 

Senator PETERS. Mr. Kirk. 

Mr. KIRK. The rights and privileges of individuals, when they 

begin to serve in our government, are the same rights and privileges as anybody in life, but when they assume certain duties they 

assume certain obligations. With rights and privileges comes duties 

and obligations. I would expect people to perform their job. If there 

is some tweaking needed to be done to the system, I trust you and 

the other Senators and the House to tell me what you want done, 

because you will have judged those issues, and I will enforce your 

laws. But we do not make policy at the MSPB. 

Mr. MAUNZ. Thank you, Senator. Senator, I think as far as due 

process and things like that I think the Supreme Court has stated 
17 

that public employees have the due process that the legislature 

gives them. So, once again, it is up to you all and your colleagues 

to determine the steps that need to be taken to remove Federal employees. 

As far as the specific proposals you have given, once again I am 

not trying to dodge it, but you asked my opinion. I think it would 

depend on the circumstances. I do not know of any specific examples off the top of my head where a shorter timeframe would had 

allowed an agency to hold an employee accountable where they 

could not otherwise, but I do not know of all the situations that the 

legislators that put together that particular piece of legislation 

have examined or studied. So I do not know the full range of the 

issues. 

Senator PETERS. Thank you. Thank you, Mr. Chairman, for the 

additional time. 

Senator LANKFORD. Ms. McLean, you decided to be a lawyer at 

5 years old, so I feel like I should swap out and put Cait in that 

chair and then go ahead and begin now, questioning her and preparing her for her future nomination, is what I feel like we should 

do, to go ahead and get that started. Because is not Cait five? 

Ms. MCLEAN. Yes, Senator. 

Senator LANKFORD. So maybe the next hearing, Cait, we will 

bring you up and get you started in this process. 

Let me ask you a couple of other questions on this. The role of 

a judge is a very important role, obviously, in our democracy, but 

it is to focus on the facts and the law. So my simple question for 

you, do you pledge to be able to judge based on facts and law, not 

based on preference? 

Ms. MCLEAN. Absolutely, Senator. That is the essential role of a 

judge and I take that responsibility very seriously. 

Senator LANKFORD. Thank you for that. 

Let me ask you about your pro bono experience, which you have 

done extensive work on that. How do you think that affects you as 

you approach this, coming at it not from preferences or background 

but coming at it with facts and law? The pro bono experience obviously affects your own family, your own background, what you 

have seen, how you practiced law in the past. What do you bring 

to this that is an asset? 

Ms. MCLEAN. My pro bono experience rounds out my overall experience in the diversity of my background, from not only just representing large corporations but representing the individuals that 

I will see in Superior Court if I am fortunate enough to be confirmed, because all of my clients would have been pro se had I not 

been their pro bono lawyer, and as we know, Superior Court has 

a tremendous number of pro se litigants. And I have understood, 

over the years, what their background is. 

I have learned how to communicate effectively about complicated 

legal issues and processes, and it has taught me, through representing combat veterans, a mother who wants to adopt a child 

who is in the neglect system and has acquired immune deficiency 

syndrome (AIDS), a father of four who is dealing with housing code 

violations, I have gained respect to all of the litigants that would 

come before me, and it will help me to ensure that I continue to 

treat everybody with respect so that everybody gets to have their 
18 

fair day in court. And then I can communicate with them about the 

results of my decision in a means that they can understand. 

Senator LANKFORD. OK. Fair enough. As we go back through a 

lot of things you have written, that is the benefit of where you have 

been in the past. You have a lot of writing and a lot of things there. 

There is one that stood out to me. You had written a journal entry 

called ‘‘Innovation Does Not Cure Constitutional Violation: Charitable Choice and the Establishment Clause,’’ where you kind of laid 

out some perspective on that. Walk me through a little bit of that 

particular journal, if you remember it, from there, because it has 

been a while since you have written that, obviously, but just on 

your perspective that came from that, where that came from, what 

your perspective is on the establishment clause and charitable 

choice. 

Ms. MCLEAN. Yes, Senator Lankford. Thanks for that question. 

I wrote that note about 20 years ago—— 

Senator LANKFORD. OK. So it is recent. 

Ms. MCLEAN [continuing]. When I was in law school. I had just 

graduated from a conservative Christian university and was attending Georgetown, and I was taking religion and law courses and 

trying to sort of see the intersection of my faith in the extent of 

time that I had spent there with the religion clauses. And I have 

not reviewed that note in the past 20 years, but if I recall correctly 

it was just noting that the free exercise of religion, as guaranteed 

by the Constitution, is one of our core values. 

Senator LANKFORD. That is great. Thank you. Sorry to pull up 

a two-decade-old law journal. 

So let me ask a couple of other questions of some of the folks 

here for MSPB. The issue that Senator Peters brought up I think 

is the dominant issue, and, Mr. Kirk, you brought this up already. 

The backlog is untenable for the Federal worker at this point, and 

it has to be resolved, but it has to be resolved fairly. 

So you talked a little bit about the process with Senator Peters. 

What I need to hear from you is this group is not going to feel the 

obligation to hurry and to not give a full hearing to the cases that 

are coming before them, that you are going to feel the pressure of 

needing to get caught up on the backlog, but that individual that 

has been waiting a long time is feeling the pressure of waiting that 

long to get a good decision on it, that is fair one way or the other. 

Help me understand how you are going to get the backlog but 

also maintain the fairness of the process. 

Mr. KIRK. Thank you, Senator Lankford. When you adjudicate a 

case, you have to give every case full, unbiased, nondiscriminatory 

analysis. You do your research, you check out what is important in 

that case, you check out the precedents, the constitutional law. 

Some cases will have neither law nor facts on their side. Those are 

easy to dispose of. On the other hand you have cases that are magnificently complicated, covering years of problems. Those have to 

take a longer time, and a more thorough time. I would anticipate 

some of those cases I will be sending back to research again, to get 

those people the fairness and the justice they deserve. 

These are not easy matters but every single person who comes 

before us, that is his life. That is her history. That is the worth of 

the individual, and they are going to get full, complete justice 
19 

under the laws of the Constitution and our precedents in court and 

the MSPB. And if you change the laws, we will enforce those laws, 

but they are still going to get a fair judicial outcome. 

Senator LANKFORD. That is what we are looking for. 

Ms. Clark, you have been around this quite a bit, to be able to 

see the functioning, to work with a lot of different clients and such. 

MSPB was established in 1978, as a part of the Civil Service Reform Act. There is a lot that has changed since 1978, thankfully, 

that has changed in that time period. Do you see things that need 

to change in MSPB that are just structural changes that need to 

be there, to be able to best protect workers? 

Ms. CLARK. Thank you for the question. I really do believe that 

I need to be there and get an in-depth understanding of the work 

processes and the structural organization in order to accurately answer your question. I am sorry. I am really not trying to dodge, but 

that—— 

Senator LANKFORD. I understand that. That is fine. 

Ms. CLARK [continuing]. Is also based on the experience I had at 

the FLRA that it was until I got there that I really could form a 

good judgment. But everything that we have been talking about, in 

terms of the continuity of the career civil service, I know first-hand 

how important that is, and we have that at the MSPB too. And I 

believe that we are going to be able to get up to speed and answer 

the kind of questions you have very quickly, if and when we are 

confirmed. 

Senator LANKFORD. OK. Fair enough. Mr. Maunz, you had an interesting response to me when I was talking about conflicts of interest, that demands some more clarification. Is there an area that 

you know of right now that you are going to need recusal, or that 

there may be a pending conflict of interest? 

Mr. MAUNZ. No, Senator. I think I was being extra cautious. 

Senator LANKFORD. Your legal training. 

Mr. MAUNZ. Like anyone who has practiced in an area of law 

that they would then be overseeing cases in the same area I have 

consulted with MSPB ethics staff. Potentially if there were cases 

I worked on personally or situations I worked on personally at Social Security Administration, I would not want to be in a role of 

judging that. Obviously, if they are someone that I knew personally 

or an individual that I knew on a personal level, I would not want 

to be involved in deciding their case either. 

So that is something I would discuss on a case-by-case basis with 

the Ethics Council. I do not know of any specific cases before the 

MSPB that are like that. I do not know of any huge swaths of cases 

that I will have to recuse myself from. I think I was just, trying 

to—— 

Senator LANKFORD. Being lawyerly. 

Mr. MAUNZ [continuing]. Prevent myself from saying no here and 

then maybe 2 years down the road I have to recuse myself from 

a case and then someone points to this testimony. 

Senator LANKFORD. You are right. Thank you. Thank you for 

that. 

Ms. Clark, you also mentioned, in your background materials, 

you have done extensive work as a counsel at International Federa-
20 

1The information submitted by Mr. Kirk appears in the Appendix on page 27. 

2The information submitted by Ms. Clark appears in the Appendix on page 98. 

3The information submitted by Mr. Maunz appears in the Appendix on page 153. 

4The information submitted by Ms. McLean appears in the Appendix on page 211. 

tion of Professional and Technical Engineers. Do you anticipate 

having to recuse yourself from any of those cases? 

Ms. CLARK. It is highly unlikely because it has been nearly 10 

years since I worked there. However, I will work the General Counsel’s Office and the Ethics Officer at the MSPB to ensure that if 

there are any cases that I need to recuse myself from, that I will 

do so. 

Senator LANKFORD. Other issues that you would want to make 

sure you get into this testimony? We have obviously pummeled you 

with questions on the staff level. We have a tremendous amount 

of written materials from you. Are there things that you want to 

make sure that you get into the public testimony today, from any 

of the four of you? Mr. Kirk. 

Mr. KIRK. I would just like to thank Acting Chairman Mark Robbins, Jim Eisenmann, Roz Coates, and all of the people at MSPB 

that briefed us and did a good job of being our Sherpas. I would 

like to thank those people who have been supportive of my candidacy, and particularly the President, who nominated me, and I 

am just grateful to be here, Senator. 

Senator LANKFORD. OK. Thank you. Ms. Clark. 

Ms. CLARK. I just appreciate you all, your support in expediting 

this hearing so that we can get a quorum at the Board and get 

back in business. Thank you. 

Senator LANKFORD. Thank you. Mr. Maunz. 

Mr. MAUNZ. Senator, I do not have anything specific other than 

to say if confirmed to this position it would be truly an honor to 

serve, and I think this is important work that needs to be done 

well. 

Senator LANKFORD. I agree. Ms. McLean. 

Ms. MCLEAN. Chairman, I have nothing to add other than that 

it is truly an honor, and if I am confirmed I will work very hard 

to neutrally apply the law to the facts. 

Senator LANKFORD. Thank you. 

The nominees have made financial disclosures and provided responses to biographical and prehearing questions submitted by the 

Committee.1 Without objection, which I will assume there is no objection on the dais,2 this information will be made part of the hearing record,3 with the exception of the financial data, which is on 

file and available for public inspection in the Committee offices.4

The hearing record will remain open until noon tomorrow, Friday 

the 20th, for submission of statements and questions for the record. 

I would assume that the Committee will be in contact with Cait 

McLean to be able to discuss the next hearing for her as well. But 

thank you for bringing your families and thank you for already 

your commitment to be able to fill out so many pieces of paper. 

There is so much background work to be able to get to this spot. 

We look forward to getting a chance to be able to move this on to 

the next level in the days ahead. 

With that, the hearing is adjourned. 

[Whereupon, at 11:07 a.m., the Committee was adjourned.] 
(21) 

A P P E N D I X 
22 

Counsel of the Federal Labor Relations Authority. Ms. Clark currently serves in the Congressional Office of 

Compliance. 

Andrew Felton Maunz, of Maryland, is also nominated to serve as a Member of the MSPB. A native of Cincinnati, 

Ohio, Mr. Maunz received his B.S. from Miami University in Ohio in 2005 and then attended the University of 

Toledo College of Law, earning his J.D. in 2008. 

Like his fellow MSPB nominees, Mr. Maunzjoined the federal government upon completion of law school. Mr. 

MaunL has worked as an attorney in the Oflice of the General Counsel of the Social Security Administration since 

2008. He currently serves the agency as a senior attorney and has represented the agency in employment litigation 

before administrative agencies, including the Merit Systems Protection Board, 

And Carmen McLean is appearing before us today as a nominee to be an Associate Judge of the Superior Court of 

the District of Columbia. Ms. McLean, originally fiom Oregon, graduated with a B.S. from George Fox University 

in 1998 and earned her J.D. from Georgetown University Law Center in 2001. 

Ms. McLean is a Partner at Jones Day here in Washington, DC. She has extensive experience in contracts, tort and 

antitrust law. She's also developed an expertise in civil procedure and discovery, especially discovery practices 

relating to new technologies and social media. 

I would be remiss if! didn't mention Ms. McLean's tremendous work on behalf of at-risk children in Washington, 

DC. Ms. McLean has been active with the Children's Law Center and has provided thousands of hours of pro bono 

work to help individuals and families who want to provide a safe and permanent home for at-risk children. For this 

work, Ms. McLean was named in 2012 Pro Bono Lawyer of the Year by the D.C. Bar Association. I applaud your 

hard work and commitment to your community. 

Committee staff reached out to a variety of these nominees' colleagues and affiliates, who spoke highly of them. 

Committee staff also had the opportunity to interview all the nominees on an array of issues. 

They have thoughtfully and competently answered each question. 

I look forward to speaking with you a bit more today on your experience and accomplishments and how you intend 

to bring them to bear in a fair and impartial manner for the Merit Systems Protection Board and for the District of 

Columbia. 

I now recognize Ranking Member Peters for his opening statement. 
23 

U.S. Senate Homeland Security and Governmental Affairs Committee 

Nomination of Dennis Kirk to be Chairman, MPSB, 

Hon. Julia Clark to be a Member, MSPB 

Andrew Maunz to be a Member, MSPB 

Carmen McLean to be an Associate Judge, DC Superior Court 

July 19, 2017 

Senator Gary C. Peters, Acting as Ranking Member 

Opening Statement 

Thank you, Mr. Chairman, and thank you to the nominees for being here today and for your 

willingness to serve. 

Ms. McClean, you have the rare distinction of being nominated to the bench by President Obama 

and President Trump. I'd love to hear more about how you managed that. It's a great relief to 

have a judicial nomination without rancor or controversy. I hope you won't feel left out if you 

don't face too many questions at this hearing. 

Today we are also considering three candidates for appointment to the Merit Systems Protection 

Board (MSPB), which, as its name suggests, has the core function of safeguarding a merit-based 

system of governance. 

In a merit-based system, jobs to civil servants arc not handed out based on political backgrounds 

or financial contributions. Instead, employees must be hired and retained based on their skills 

and effectiveness in carrying out the many federal services our communities rely on. 

Whether it's securing our borders, assisting our veterans, or protecting our environment, we need 

to ensure the federal government is pulling from a wide and diverse talent pool of Americans 

who are dedicated to working hard for the public. 

This is a long-term strategy. Presidents, their Cabinets, and legislators will come and go. A 

stable civil service is essential for maintaining a level of consistency, reliability, and competence 

in the American government, regardless of political winds. 

The Merit Systems Protection Board was established in the same legislation that codified a 

framework for a merit-based workforce. The Merit System Principles and Prohibited Personnel 

Practices laid out in the Civil Service Reform Act provide us with the necessary ingredients for 

preventing our civil service from becoming a system of political patronage. 

The principles include commonsense worker protections like equal opportunity, retention based 

on job performance, and fair pay. They rightfully prohibit employees from taking personnel 

actions based on anything other than an individual's qualifications, performance, and suitability 

for public service. Importantly, they also prohibit retaliation against whistle blowers who lawfully 

disclose instances of waste, fraud, and abuse. 

1 
24 

With over 2 million employees, the federal government is a large, often cumbersome entity. But 

the merit system principles set a critical foundation for accountability. While protecting this 

framework, we should also diligently try to identify opportunities to make the workforce more 

efficient. 

The MSPB can play a role in this. The Board is tasked with upholding the merit system 

principles through the precedent it sets in adjudicating cases and by taking proactive steps 

through civil service studies and reviews of OPM rules. 

As we consider your nominations, the question of how you will reinforce the merit system and 

promote an effective federal workforce is central to this conversation, especially given the 

unfair-and frankly harmful-sensationalized attacks on our civil service. 

We should approach these issues mindful that we have been entrusted as stewards of taxpayer 

dollars and that we should work together so that government works for everyone. Thank you, 

and I look forward to your testimony. 

2 
25 

MSPB NOMINATION HEARING TESTIMONY 

DENNIS DEAN KIRK 

MEMBER AND CHAIRMAN 

U.S. MERIT SYSTEMS PROTECTION BOARD 

SENATE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENT AFFAIRS 

July 19, 2018 

Chairman Lankford, Ranking Member Heitkamp and Members of the Committee: 

Thank you for this opportunity to appear before you on my hearing for confirmation to serve as a 

Member and the Chairman of the Merit Systems Protection Board (MSPB). I'd like to introduce 

my family: my son, Dean (now in his final year in law school at my alma mater, Washburn 

University of Topeka, Kansas), and my brother, Colonel Donald R. Kirk, U.S. Army (Ret.), who 

spent over 32 years in service to our country. My Intern, Oriet Hemenway, is here observing 

how our government works. 

My thanks to the Honorable Tom Davis, my friend of over three decades, for his supporting 

statement he submitted to the Committee, and ask its admission into the record. Tom appointed 

me to the Fairfax County (VA) Consumer Protection Commission, where I am now on my 

36'h year of service. 

The MSPB protects 2.2 million federal employees by conducting fair and neutral case 

adjudications, regulatory reviews, and independent government studies to improve the 

workforce. MSPB, in conjunction with the Office of Personnel Management and Office of 

Special Counsel, protects merit system principles and prevents Prohibited Personnel Practices. 

The Constitution, U.S. Code, Code of Federal Regulations, and precedents in Courts and the 

MSPB, all guide the Board in reaching decisions on original, appellate, and specialized 

jurisdiction areas. 

MSPB has a backlog of about 1,250 cases awaiting decision because no voting board quorum 

exists. If nominees are confirmed, it initiates the process towards delivering fair and equitable 

justice to waiting federal employees. Employees reporting violations oflaw, rules and 

regulations, waste, fraud, abuse, mismanagement, and specific substantial dangers to public 

safety will receive the Board's full help, such as protecting whistleblowers against retaliation 

and retribution. 

If confirmed, in collegial collaboration with my other Board members and MSPB staff advisors, 

I pledge to ensure the Board will deliver government-wide studies to advise and protect the merit 

system by analyzing the health of the workforce, offer best practices, seek modernization of the 
26 

Dennis Dean Kirk, Opening Statement, (cont'd) page 2 of2 

workforce, enforce fair treatment and safety for whistleblowers, and insure a workplace free 

from Prohibited Personnel Practices. 

As a proven strategic innovator, if confirmed I will develop creative, rapidly effective solutions 

to complex problems. For example, I will recruit, hire, train, educate, and deploy into public 

service at MSPB the very best qualified diverse pool offederal workers. This will assure fair 

pay with excellent treatment for all employees, so they can exhibit the highest standards of 

integrity while conducting public service. 

The Secretary of the Army created a new position in Army OGC. I was its first Associate 

General Counsel for Strategic Innovation and Business Transformation. My responsibilities 

were to create, design and lead major business modernization. I developed efficient, economical 

improvements in civilian/military operational and personnel systems. This saved millions of 

dollars for taxpayers. Such incredibly difficult challenges could not have been accomplished 

without the support of our Army team of excellent public servants. 

It is a great honor and privilege to again hear the call to serve the United States especially in such 

a challenging and noble function. I am happy to take any questions, and answer within my best 

abilities and present level of knowledge about the MSPB. 
27 

/.1/2-1 G I #~V _,}lJI·'f'l_'l o'JJf:;J G't:'~">;./f'))- .fP.! · ~ 

~~ vt:J: 

REDACn:D 

BSGAC BIOGRAPHICAL QUESTIONS .FOR 

EXECUTIVE .NOMINEES 

1. Basic Biographical Information 

Please provide the following information. 

1 

Est 

c 

Est 

a 
28 

Never Married Married Separated Annulled 

0 0 0 0 

2 

Divorced 

Xo 

0 

Est 

0 

Widowed 

D 

0 

Est 

0 
29 

2. Education 

List all post-secondary schools attended. 

Hutchinson 

Community 

Junior 

Colle e 

Northern 

Arizona 

University 

University 

Law School 

Au_gusll970 Est 

10 

Augusl1972 F.sf 

Date'c:Endei:l 

... •· s¢1ionl 

(niontlltye'!J'J{<lh•ck i:l ·· ·· . ;~ · . o~X:fi!O:stimnti>) ... · . e~~ce kwarilelf · ( ch!"'~'~pri>J;en~· bo* · ·· ifstili'Jn,sclfooJ ESt l'i'escnt Mny 1970 

Est PTt$1.!0t 

MOJ'l9n 10 0 

May J,!J7S E.'lt Prestint 

0 

A.A. 

B.S. 

J.D. 

May 

1970 

May 

1972 

May 

1975 

Washburn 

University 

School of 

Law 

~~------t---------------------------l-------~&,-·r------,E~,,~p~~,.~,1------+------~ 

0 

3 
30 

3. Employment 

(A) List all of your employment activities, including unemployment and self-employment. 

Iftbe employment activity was military duty,Iist separate employment activity periods to 

sh.ow each change of military duty station. Do not list employment before your 18th 

birthday unless to provide a minimum of two years of employment history. 

Commerce 

Conunission 

Oirector,s 

Staff, 13ureau 

of 

4 

DC 10 
31 

Kansas DOT Legal Tope~KS !!sf I,egal (;or.poraljo)l Cl~rkto · ALI~tl974 ,.; M•~ 1.9'75 

·Commission, Director 

Department of 

tmnsportation 

Nationai.DistriC:t Honors Withita, !<S: Est Legal l\1sr19'1.4 xo Aua~t·l!n4 Attorney's Program 

i(\ssoci\\tion, ·prosccutorial 

Sedgwick litte~hip 

C.o\lnt:Y:Disltlct 

Attorney 

Stale ~owrnment Senator Legis!'ative :ropeka,. KS • 1\S! 

All.B.UJt1974 xo ~in,>J!>7~ Theodore S"'!i' Aicte·~nct 

(Democ.rat) Administrative 

.Aide 

L-egal Kansas. DOTLe~al Topeka,KS .1!~ 

Cot.porat!on Clerkro A1:fguatl973· ,J:~ ·Miiy,1914. 

Coj!\missfon,. Director· 

D.ep'!l'tmt!it of 

Transportation 

Stille Govemnmnt Senator LegislatiVe Topeka.KS .,,, Aug(Uil~· xo M~y'l!l74 Theodore Sanr Aide and 

(.Dem·ocrat~ Adniinlstratlve 

Aide 

(B) List any advisory, consultative,,lionorary or other part-time seriice or posiijQn$ with 

federal;. state; or local governments, Iiptli.~ted· elsewhere. 

4~ Potential Conflict oflnterest 

Jlot 

·xo 

£;t 

""· 

&I 

xo 

Est' 

"'' 

Est' 

;a 

(<\) Describ.e any business relationship~ den ling_ or fib.a!Icial tian~ac~on which. y()J.I,havc had· 

dnrlng.tite last 10 years; whether fqr'yi)iltse)f, on behalf of li cJ.illJI(,. 1,1r acting a~ an agent, 

5 
32 

that coQ.Id fu _any way ~Qnstitute or result iira. possibl~: c~nllict.ofint~rest in the position to 

which you lia.ve been nominated. NONE~ 

(B). De5cribe any activity during th·e pits~ 10 years. in wb,iclt yo11 have engaged for the· 

p~rpose ~f directlY or indirectly influencing th~·passage; defeat Qr mo,dification_of any 

Ie~lation or ;ti'fecfmg:t,lui adinin:istration·or ~ectition oflaw or public_p_olicy,.(lfher. than 

whjle·in a fetferal goyern~eqt caJ_taCity. 'N'ONE. 

-5; Honors and Awards 

Lls.t all.scholarsJilps, fellowship&, hoJI!)rary dcg•·c~s, civilian service citation~, military 

medals, academic. or professional honors,honora~ society memberships an~ :an.Y oth'er. 

-speCial recogiiitio.n for ou:tsta'ndiil.g service o:r aehtevemeut. 

• Secretacy·of the Army, Office o'f Geoetal'Gounsei 

Mefitorlous CiyiUan Service.Award (2()12). 

!'' Decoration for' Exceptional Ci_vilian Servlce.{20()9). 

• Awarded,$ pedal Act.orse·rvice Award Bonus, $5,000·(10/17/7008). 

• Awar:ded tlie A,nJ'Iy General Staff pin (10Q6).. -

• Certlfie<jte of Appreclatio[l forO,utstanding SeiVice, p~sented·Qy'Seorqr 

Deputy Generaf Counsel (2005). 

• Aw;:~,rcled PerfonnanGe. Evah.Jation Pay/!Jollus fncrl'!ase, "Exceeds Expected 

Results:' (3/15/2009)~ 

• Letter of Appr.eciat!on for Superb' Leadership; 1h8/2006., for _provldivg vlslgn 

a11d legal servic~s.to Department of Defense in first wartime Quadrennial 

Defense RevieW..(2005J. 

• l?hfl<appa Phi National Honor society 

• Honor~ Program .Prosecutoriallnternshfp, Sedgewick Colmty fliStrlct Attomev (1!?74) 

6. ~entberships 

Llst.all ~embershfps. that y_o~ h~tve held in professional,.soeial~ husi~ess1 fratermd, 

scholarly, c~vic, or charih\blll. Qrgani:l:!ltions in the la~1- .i 0 years.. · 

Unless relevanno yo.~r nomination, you. dq NJ)'f n11ed to inciude memberships hi 

·Charitable organiZ'ations ·available to the Public' as a res:ult,of"a tu:.<Jeductible donation. of 

.Sl,QOO ,:~r ~ess, P,ilrent-Teacher.Ailsodations or other organi:l:ations"Cil'!ln~cted to s~ools 

attended by yolir children, .a.tliletic clubs or tea !Us,. a1,1to~ot.ile.support. organizations ·{$ncb. 

8$, A#). 4iS!XJUDlS ¢1ubs {such as, Groupoilor.Sani's Clnb), or affiitily -' 

memberihips'(eonsumer cluiJs (sllciJ.,as frequent flyer membcr.shi!Js). 
33 

lnte!Jl!lliQ.nal 

·7 
34 

Kat_!Sas Bar Associatl<?ll ·~!!rca 1975-c!ate· 

· Dlstrlct of'G!olumbia Bar Circa 1977-date 

AsSo.Ciatlon 

Vlll!itiia B.ar As~oolation Ciroai990-date 

Natioilill Museumofthe u.s. Anny Citca:2009-date: Fouildinll Member 

·~unters.forthe.trungry Circa 20!)5-dat~. 

Rlleky Mountain. Elk .Foundation. 'Citca 2005-date 

~ationa.l Rifle Association Circa 1'982-tlate 

Annandale.U.nited Methodist ·Cirea 1995-date 

Criurch 

!>CGrandLodge ofMasons Circa .l9841late Va(entine Reintzel Award 

Republic.an·National LawY,ets Circa 2005-daie 

Association 

Senior Execu.tives.As~Qciation Ciroa 2007-<)ate. 

PJtlsburg:MuSiclans'·Protective 1966-date Member Emcrltus'($ince 1917)· Unio11; Lodge·No; 452 ·{American 

Federation ofMusicians' Union) 

Duckll)Jnlimited. Circa 2007 -date 

Rowland Ward Guild. of Field 'Citca:2008-d.ate 

!lpot!Smen 

Fait'falC ~od 1,111d.<;run Club. Cir,9a 1990-daftl 

Republican Natlonal Coi!Uliittee· 

P(~ident'$ Club 

Circa'2005'·date 

ReP,ubllciut Party.o~Virginia i;;il:ca 1979,\fate 

:8 
35 

Consll!ll~r. Pro.tection. commission., 1982-date·. M~ber,·fol1)'t~r'Chair,'Vice Chai~. 

'Fairfax County CV A) SeCr!'!al'Y 

Northern ArlzonaOnivetsity Cirea 201 o-.date 

AhimniAssocialion 

Coltcm~ Hlgli School {Pittsburg, 

~$) Alumni Association 

Circa 19&0-date 

Hlitchmson Community -Jimiot Circa :w IO-date 

College Alumni Allsoclation 

Washburn Uni.versity AlumnJ. Circa J9?!7idate· 

Association 

Washburn UniversitY School of Circa '1977-tlat<i 

Law Alunini-AssoeililionArlington Roy~! Arch C~apter- No. Girca.l9fl.9~(lilte 

~5 

National 'Republican Senatorial Cltca 2004-date 

Committee 

.~a.fari Club Jnternatiom;l Circa 2002-da_te 

Safa'ri Club International- Circa-200/•date 

Wasliin!llon.Metropolitan Chapter 

·g~ <;:lub lnl!'f\latipnat· Circ;l;2007-ilate· 

-Gh!lSapeal!;e CbaptQr 

Safurl Glub International--National Cjr~a 2907-cjate 

'Capitol Chapter 

A.ssoala!ion ot'Fonner lntelligeJ~ce Cirpa 2007 -date, 

Officers 

American :Association ofB:etired Circa 2005-d~te Persons l 
36 

7... Political Activity 

(A) H3VtlJOu.ever been a candldate.for or:been elected or appointed to a political.office? 

QJ) Li~h.ily offices held in !}r services ~ndered to a· political party b.r election committee 

during:the last ten years that you havc.noflisted elsewhere. 

(C) Itemize. aU individual poiitlcal contributions Of $200 or m:ore thafyou J:tave made in the. 

past nYc Years to. any individual, campaign organization, politicnl pariy, politicai aJ:(ion 

10 
37 

committee, or similar entity. Pleas.e Ust e;l.eh·'indiridual co~tribution .and not the.total 

amount contributed to the·person ot·entity'durlng the year. 

11 
38 

!". Publications and-speeches. 

(A) List the tides; ~ublisher.s a,p,d da,tes ofJ>op~, articles,. r.epol;'tl; or oth!lr. pu~liiJhe!l 

·materials tJ:tat you have written, ~luobig ar,tlcles publish~d on.(~e.Internet; Piease .. provide 

the Commttt·ee.with coJ?ics of :Hi listed pub11cations. In'Jiea o:f:h'ard copies, electronic copies· 

can· be provided via e,mail ·or other digital format. 

Intemational m~gazine 

!'UitlL.l:SriiNli INC •. and 

Pul:!lisliing' s ~agazihe 

12 

lltegular 

I do notha:ve copies of these 

~olumns.· The mligazine is·out of 
39 

(B) Li~t any fni:Dlal spcecJi.es ynit have delivered during tbe last five years .. ~d pl:ovide tb.e 

CoDllilittee \viffi copieil of.th.ost\ spe.e.cb,e& r¢lilvant' t(}. the positi.mi ·ror which yo!llillve 'be_en 

pomina.ted. lpclude any·t~~mo~;~y to. Congress or any other l~Jglslati'vc or ~~~inistrative. 

boi!y. J'he~e items eaD J;le provided eJec(ronically via ll;oJIISiJ or Other digital for'Diat. 

(C) Li~t aU spee,ches and tesd~ttnny ynu have delivered in the.pi!St 'ten year$, except for 

thos~ the te:x.t o,: whict,. yo~ are providing to the Committee. 

13 
40 

.9.. Crimlnal Riston: 

Sine~, (and including) rour·l8.1

h birthday, hllhiJy of the fQllmyfng li;tppcn!)dZ 

• ~fav~ you been issued·• s~mmons,.Citation,.or ticket to·appear in court.in a qiJ1iinal proceeding; against you? 

(Eicclude.tll:!ltfons Irivolvii>g trllffidrifractiorui where 'the fine W,as Jes~ than S300.and oiitnot includ~<alc:obol' ot dr\lgs.)NO. . . . 

14-
41 

Have yqu bl)!l_n arreste4 by any polic~ ofticer.;:sbetiff,, marshal-or·aQ.?' 9ther type:o:f law enforcement official? 

NO. 

• .Have y()u.be~n-chargeP,.conVjcte(i, or ~ei)tenced of a_ crime in !llly·c_ow't? NO. 

, Have you be.~n of.·m-c you··i:ll!Tiritly-on probation lir parole? NO. 

· • Me you cuiTentl.Y.-on trial or·awaiting a trialon crimi[\al char;ges? NO. 

To y(iur kl)owledge, have you ever. been the subject ot target of a 'federal, stare :Of local criritinaJ, irivestigatimi'l 

NO. 

If the. answer to a,ny of the quesij()ns;a,bove.is yes,_ plells!l- answer-the ques.tions below fo'r 

each critiiilial eyeitt (cilatiori,:aj:'res~,. inve~ggation, etc_;)., If the event was !lD· inve&tigati!ln, 

·wh.e.re-the question below asks foi"iilformation abbiltthe'i:lffeliset pleas_e !lffer int'orniatiqn 

about the.offerise un~er.i~ves:Vgarion {if known). 

A) Da!<; o{offense: 

•. r~_ihis ljn ·~tii1fate{Yes/No): 

B) Description ofthe specific.natl!re·_qfthe·offeqse: 

C) bid tbl!l\ffense i_nvol.Vt< a,ny ofthe following?· 

l) Pom~!i(ic. violence- o.r a-crime· of villleuce. (such itB, battery or a.Ssault}againsf'your child, depend~nt, 

· -cohabitapJ, ~pou~e, f6nner.sp6nse, or·someonewith whoni you-share-a child in collliilon: Yes {No . . 2) ·F~rrns or explosive~:. Y es/.N!J · · · 

.3.) Alc{>~ol.or drugs: Y~ I No 

D) Location, where. t~e o:fi:epse ~cc~d (~ity, ~unty, state,zip code, country).: 

E) Wer~:you arrested;.--sumniolled; cited or aid :you receive.a tic'ket tq app_ea_r·)ls a· resulf-ofthis offense by any 

poliee.oificeJ·!.sliedff; mimihal or any other t:y~e of law enforc<;ment official: v·es f!'{o 

I) Name ·orthe law ¢nforeement agency .tbat arrested/dtedlf;ummoned you: 

2) Location of the law··enforcement ageftcy(ciiy, county, st~te, :zip-.cqde,_ qppntry): 

F) As-a·result oftliis.otrense .ivete you ·charged;_ convicted, .currently awaitingtrial,-andio'r Qtderll'd tq ~ppe~ ih court in a criminal proceeding against you:· Yes /N_o 

l) If:Yes,-provid~>the naine of the court arid the locaiioRofihe ~ourt (ciiy, ·cqunty, ~tate, zip cod~, -country): 

::;!) .Ityes,,provide·.afl th~-oha~ges brouglit·a~ainsi you fqr this offense; and.Jb~ autcome. of-each chru:ged. 

Qffense,(sucl:t as'found·gililty,-fouri'd:not"guilty_, cltatge dr(lpp_ed . .or"oolle·pr<>~/' etc), If you 'l'ere round 

guilty· of or pl~aded ·guilty to a .lesser offi:nse; list sepani.tely· bodr the orlg!nal.chru:ge. and t!ie· le~ser !iffense:. 

15 
42 

3) ffno, provide explalla!ion: 

G} were you ~entenced as· a result of tliis offense: Yes I No 

H)' ·.Provide.a description ofthe sentence: 

q ·Were ~tl sentenced Ia imprlsoilmentfcir a 'fenn exceeding one ;year: Yes I No 

J) Wereyo·u incaicerated as.aresuJt.ofthat·sehtence for not l.Ss titan one ye<)l': Yes f.ll(o 

K;). lftfie conviction reslifted inJJfiprlsonin'en~ Jirovideihe<la.tes thatyiJti actual.ly were lncar.cera\ed: 

l) If con:iiictiim result~d in prooa!lon.or parole,, provide !be dates.ofprobation or parole: 

M) Are· you currently on trial, .. awaiting a trial, or awaitin!l.sentencing·on.criminal qha;ges for ibis off~nse: Yes'/. No· · · 

N) ·Providti explanation: 

10. CivULitig:ation and Administrative or Legislative Proceedings 

(A) Since'( and includil!g) yout 18Jh birthday, 4avcyou bc~n a pariy to any public record 

civil court actlo:n or administratlve .or legislative procc~ding ofany kind that· rjlsultcd in (I) 

.a f"wiliilg.ofwr~~g~oing. againstyoiJ, ot• (2) a settlement agreement for you, or $ottie ·other 

petson or entity,. to make.a· payhie)Jt to s~ttle a!{egations agaif!st.you, or f9r.you to take, or 

refrain from takin~, some action. Do NOT Include small el:iims proceedings.: 

16. 
43 

{B) In additi!l!l tp.tb.os~ llsted al)ove; have you or:any b~~in,ess o.{whic.h you werll an officer, 

directpr or owner-ever been.liwolved ns :rparty of interest 1n._!)ny .ndmin:ist.r;ative agency 

pro.ceeding-ol' civil IitigationTPlense.identify and· proVide detaildor- any proeeedi~s or· 

!!lVillitjga~ion that inyolve·.adions taken or om~tted by yo~, or .alleged .fo have be~;n take!l.or 

omitted by you, wllUe sei"liing in your officiaJ·ca!'·acity. 

County 

dourr,vA 

from Client to counsel 

fCJ F.on'esponses,.h~ thl! previ.ous question, plc!!se Identify:and provide .. details.for any 

proceedings or. civil litlgatilin·that involve actions taken or ilmitte(!. by you, o.r 

al)eged.to.l!l.lve been taken or omitted by,you, while.serving in-ylint official capa·eity. 

Settlementi.h both eases. 

1.1. Breach otProfessiomil Ethics 

A) .Have_you·ever been disdplined. or eifJxl for a )lreaj;h .Qfethics.o.runp.rofessional 

condue.t l!y; or bc.en the subject ofa complnintto; ariy·court; admlnisttativ.e·agcuey, 

pi'ofcssiolla.l.a:S:sociation, ·di$ciplimiry committl!~ o.r other profeS6ional group? 

Exclude Cl!.$es and proceedings already listed. · · 

No. 

17 
44 

B) Have· .you ever been :fired from a.job! quit .a job after being told you would ,be fired, 

Jet) a jq~ .liy mlltJrai.agr.~~m\lJit follo~i.ng ct,arges· or allegatio~s .of misco~;~duct..l~ft a 

job by itnitual.agree'JD.entfolloWing notice ·ofuli.satisflictory performance\ 'or 

.received:a written warning, been. ofl:iclally·rcprimanded, suspended, or . .dlscip!Pt.ed 

for misconduct hi the w,orl<plli,ce, such as:violation of.a !IJ:curicy·pollcy?. 

No. 

12)Tax Compliance 

.(This information will not lte pubii~hed in the retord of the.hearing:,t1n your nomina«on, 

but.itwill be r:etained in the Committee's ffies and will be available f9r Pllblic insp.ection.) 

REDACTED 
45 

REDACTED 

11. Lobbyig 

t9 
46 

In the past·ten years, have rou.registered liS a lobbyist? If so, please indiea~e th(l state, 

federal, or Iocaibodic.s.with which you have re~Pstcteil (e.g.,.Ho.use, Senate, California. 

Swetaey of State).• 

No. 

14. Outside Positions· 

;<.)( See· Ot3E Fo'nn 278, (If, for ymll' ;ri()ininatioil, you have completed an OGE ·pariiJ. 278. 

Executive 'Branch Pt)t:S(lnilel Pt~P!Ic Financial Dis~lo.sure Report', you may check th~ pox. here to 

complete ti).ia ~ection ·and then proceed. to the.I).ext section.) 

Ji'or the preccd~g·t~n ctdenltl,\t year~ and the current calem~ar year, report a BY position~ 

h.eld, whl'!.th!lr eolt1pens~tfd.or~ot. Positio,nsinclude but·are noHfmited to·ihose of.an 

'!l(fi~er, director; trustee, .~eneralpartnet-; proprietor, representative; employee, or 

cllnsultan:t of·any cor.pol'ation; firm,, pnttnersliiJi.• or .otlier busine,ss· enterprise or any non· 

profi.t'organliation· or educatio:ilal.iustitU:tion •. Eiclude·positi.QilS·Witb religious, soc!a_l, 

fl'J!'terilal, or. politieal entities and thQse solely 1!'1: an honorary ri~tur~.· 

15. Agreements or Arrangements 

20 
47 

~~.See OGE Fofl!] 27~. (If,· for yolll' nominat!ori, yoJ.! have completed !W GG:j'l J,lonp.: 278 

Executive Branch Personnel Pub Iii; Financial Discl\isufe Rep'oft, you may ch~ the.:box. here tocomplete.l;hi:rsection and ~en.proeeed to ihe u~t seqii,on,) 

As Qf tli'l dat~ o(filingyoW' OGE: Form 278, r.eport,your agr.11ement~ or·arrangel)l'cnts:for:: 

(l) Ci)Dtili.l,d~g p~i~pa~!.lD in !In emplo.y!l~ ~~DI)fit-plan (e;g •. pension140lk, deferred 

~;qmpensa.tioa); (2) ·~onfjn\13tjon of paynient ,by.a for.mer empliiyer (inciuding sewrante 

payments);: (a) leaves of absence; and (4).fiiture employlil.eiit.-

'Provide.information regurding,any il~eeDients ·or an~ange~ents you have co.ncern)ng (1) 

iutore·e!fiplqyment; (2) a )eave ·or ilbli!lh~e during your period of.Gov~rnU)ent $~rv'ic.e; (3) 

eont!tUII\tioll of payments by a f~nner. employj)r o~cr than ·th£1 Unite4 States·Govemment;. 

and (4) ~oilti!J,ning pl!r:tlefpalion in an .employee welfare or benefit pian maintained by ·a 

former employer ot~r than United S:(ate&· Government retirement benefits. 

1:6.. Additional Finallcial Data 

All inf9tlllll~on r~q,uested UJJd~ ~his h~ading mu$t .be provided for youtielf, your ~poils!!, 

.a,nd y9nr .dependents. ('l'hls iufO,rmatlon wlii not be J?ubliShed .in the record ~f the ftear~g 

.on your :nomination, l.!llt it.will be .retained 'in the Conunittee'diles.and .will be available for 

publieinspemon.; · · 

REDACTED 
REDACTED 

SIGNATURE .AND DATE 

I by I have read the Biogtnphlcal and Financial Inro·rmation and that the fuform11tili

JS, to 1lie best Gfmy)i:fiowledge. current, accurate, ;p1d complete. 

::atl.p/4-day o.r'V-420lS:, 

28 
49 

UNITED STATES OFFICE OF 

GOVERNMENT ETHICS *··---

The Honorable Ron Johnson 

Chairman 

Committee on· Homeland Security 

and Gevernmental Affairs 

United States Senate 

WMhlngton, DC.205l0 

Dear Mr. Chairinan: 

!REDACTED 

March 21,20.18 

In accordance with the Ethics in Government Act of 19781 tenclose a copy of the 

financial disclosure report filed by Dennis D. Kirk, who has been nominated by President Ttuinp 

for the'position ofMe"mber and Chairman,.Merit Systems Protection Board. 

we have reviewed the report and have obtained advice from the agency conceming any 

~s.~ibie"cQnflict in light of its functions .an~ the nominee's propoSed duties. Also enclosed is an 

ethics· agteement outlining the actions that the nominee will. undertake to avoid ~onflicts.of 

interest. ·Unless a date fOr compl!an.ce is indicated in the ethics agreement, the nominee must 

fully comply within three months of confirmation with any action specified in the ethics 

agreement. 

Based thereon, we believe that this nominee is in compliance with applicable laws and 

regulations governing conflicts ofintere$t. 

.Enclosures REDACTED 

Sincerely~ 

DAVID 

APOL 

David 1. Apol 

D(~iloll~oiiP'OdbyDJIVIDA¥(')t.· 

DN•V'1.J5H>•\!S"Clowmo"''~•"".:0fll.:. 

<>(D_,..c,..,Ontt>do'i«oo!o.wDAVll'lo\I'OL 

'itZl42,Nlo"lg:IIJ(I.!C!l,l.l--11.19100l.Q~)I 

D..,_·lnf~(l]ll tl.-.IHI,·..(Ioj't\1' 

Acting Dfrectot and General Counsel 

1101 NEW YORK AVE NW· SUITE 500 ·WASHINGTON DC•20005 * * * * 
50 

Troyer Mason~Gale 

Alternate Deiligna~ed Agency Ethics OffiCiai 

U.S. Merit Systems. Protection Board 

1615!\,iStreet, N.W. 

WMhirtbitOn, DG20419 

Dear Mr. Mason-Gale: 

March 15,2018 

:The .purpose of this letter is to describe. the steps that 1 wi II take to a,<oid arty actual Qr 

apparent conflict of interest in the event. that I am confirmed for the position ofMemb\)r and 

Chai1man of the Merit Systems Protection Board 

Asrequiredby 1& U.S.C § 208(a), lwill not participate persortaUy and substanti!l,lly in 

ahy particular matter in which I kmlW that I have a flnaqcial interest direct! y and p~dict.ably 

affected by the matter, oi; in which I know that a person whose intcrc.sts are imputed to tne has. a 

financia:t interest directly and predictiibly affected by theimatter, tmless I first obtain a written 

waiver, Pursuant to. 18 U.S,C .. § 208(b)(1), or qualify foija regulatory exemption, pursuanlto 

l8'U.S.C. §'20S(b)(2). I understand thaltlw i.nteresl~ oflfue following persons are impu(edto 

me: any SPbuse or minor child of rtrine;·anY general pa$er of a partnership in which I am.a 

limited .or gener!il partner; any organization in which I serve as officer, director, trustee, general 

partner oremployee; and any person or organization with which 1 am negotiating or have an 

arrangement concerning prospective employment 

[ ain the sole.prciprietor of my law firm, which does business as The Law Offices ol'Dennis 

Dean Kirk,. Esq. [am also. a contract !lttorney with the law; finn of Schmitz & Socanas, LtP ~Upon 

confirmaiion, I wlU .cease p1·ovidiilg services to my clients imd I will refer them to other legal co11nscl 

fm·any ongoing legal matters. twill compleie all such referrals before T assume the duties of the 

po~itic.m.ofMember anq Chairman. If I agree to accept inJy;payment tbr referrals, twill consult your 

office: regardii1g the applicability of 18 U.S.C, §§ 203, 205,iand 209 before I receive any sucb 

payment. Upon confirmation, I will resign from my position willi Schmitz.& Socarras; LLP, and my 

law tinnwijlcease engaging. in any business, including the; representatli:ln of clients~ Doring my 

appointment to the position ofMerriber and Chairman, myjnw firm will rernniry dormant ari9 will not 

advertise. r will not perfbrmnny Nervices tbrthe 1irm, exc«ptthat I will pomply with any 

requirements lrivolving legal ti!ings, taxeis and fees thatare;necessat}'to maintain my law firin while 

itis in an inn.ctive status. As a ,Member and Chainnan, 1 wlil not pa1ticipate personally and 

substantially' in nriyparticular ma.tter that to my knowlfldge:has a direct and predictable effect on the 

financial interests ofTl1e Law Offices of Dennis DeanKil'k, Esq.lri addition, I will not participate 

personally and substantially in any particular matter invojving specific parties ii1 whiCh [ know 

Schtnlt7..& Socarras. LLP ora former client of mine is a part;y or rerrescnt~ a. party for a period of 

one year lifter I last provided service to Schmitz & Socarra~, LLP or to a client of mine, unless.! am 

firstauthodzed to participate; pui·stJant to 5 C.F .R. § 2635402(<1). 

In addition, I may receive a contingency fee payJ:llent in a llilrsonal injury case. The Law 

Ofiia:;s 'Of Penriis Dean Kirk, Esq. and the law finn ofschmitz & Soclittas trtade a case referral 

of this. matter to Peter DePaolis, Esq., ofl<oonz McKinney; Johnsqo, DePaoli&, & Lightfoot law 
51 

finn c~K:o.onz Law Firm';) for case litigati()l:J. lfljle Koonz Law Fhmis SUCCessful in litigating 

this referral, I am entitled to receive a contingency fe<1 payment that is one,tl)ird of3~.333'Yo of 

any <!1\l(.Jilnt of the successful gross teq,ovecy. This 'contingency distribution will be paid to me in 

a lump sllriipayinentifatid when ni:oni!ls are received by the flrm.and this may occur aft~r I 

enter Govemment servi.c~ I will not partiCipate persomjlly ani:! substlmtially in any particular 

matter that to rny knowledge has a direct and predictabl~ effect on the al:)il~ty or v.illingness of 

theKoonz Law :Firm or Peter DeP;toljs, ESq., or any opl?osing Pru'lfto make any payments 

related to this case, unless I first obtain a written waive~ pursuant to 18 U.S .. C. § 208(b)(l ). . ! 

Upon confirmation, I will.also resign from my position with the Consumer. Protectiqn 

Commissio!l of Fairfax Capnty, Virginia. For a period ofone year after my resignation,! will 

not participate personfllly and subs\antially in any pa(ticular matter involvjng specj(kparties in 

whiCh I kitowthe Consl.rrner Protection Coinmission is a parry· on represents il. party, unless I am 

first !lUfuorized to participate pur~uant to 5 C.F.R. § 2635:S02(d). · 

l will retain my posi(ion as a truste!l of the Kirk !Trost. f will not receive any fe.es for the 

services that I provide a5 a truste.e during.lny appointme;nno the position of Chairman. I will not 

partiqip~te pcrstmally and substantially in any particulatj matter that to my knowledge has a direct 

and predictableceffect on t11e financial interests ofth(l Kirk Tmst, unless I first obtain a writ1en 

waiver, pt\fSuant to 18 U .SJ.::;. § 208(b)(l ), or qualifY fat. a regulatory exemption; pursuant to 

18 u.s.c. §2Q8(b:)(2). . 

i.flhave a: managed account or qtherwise use th~ services of an inv~tme11t professional 

during my appoilitment, I will ensure that the account tn;anager or investment professionai 

ob(ains IT!Y prior approval. on a ca~e-by-case basis for tb~ pw"Chase of any assets other than cash, 

cash equivalents, in\lestinent funds that qualify for the e~einption at 5 C.F.R § 2640201 (a), 

obligations of the U nited.States, or mtu1iefpal bo.nds. · ·· 

I understand that as an appointee I will be requi~ed to sigii the Ethics Pleifge (Exec. 

Order No, 13. 770) and that I will be bound l:iy the requirements and r(lstrictioiJS theniiJt.in 

'addition to the conunitments lhave made in this ethics ~greeri1:ent. 

I will meet in person with you during the first wdek of my setvice in the position of 

Chairman in order to complete the. initililethic.s briefingirequited under 5 C.F.R, § .2638;305. 

Within90 days of 'my confirmation, I will document my; compliance with this ethics agreement 

by notifYing you in writing when I have completed the $teps descd bed iii this ethics agreement. 

. I have been advised that this·ethjcs agreement\yiJJ be posted publicly, consistent with 

5 L/.S.C, § 552, on the website ofth~lj.$. Office ofGoy0mment Ethics with ethics agreements 

of other Presidential nominees 'who file public financial disclosure reports. 
52 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-hearing Questionnaire 

For the Nomination of Dennis Dean Kirk to be 

Member and Chairman, Merit Systems Protection Board 

I. Nomination Process and Conflicts of Interest 

1. Did the President give you specific rca~ons why he nominated you to be the Chairman of 

the Merit Systems Protection Board (MSPB)? 

I have not met with the President, nor has he given me reasons (specific or· otherwise) for 

my selection. 

2. Were any conditions, expressed or implied, attached to your nomination? If so, please 

explain. 

None. No conditions, expressed or implied, were attached to my nomination. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as Chairman of the MSPB? If so, what are they, and to whom the 

commitments made? 

No. 

4. Are you aware of any business relationship, dealing, or financial transaction that could 

result in a possible conflict of interest for you or the appearance of a conflict of interest? 

If so, please explain what procedures you will usc to recuse yourself or otherwise 

address the conflict. And if you will recuse yourself, explain how you will ensure your 

responsibilities are not affected by your recusal. 

No. I have closed my law firm of Dennis Dean Kirk, Esq. l have terminated all contract 

partner business relationships with Schmitz and Soccares, LLP. For your information, I 

will resign from being Commissioner of the Fairfax County (VA) Consumer Protection 

Commission. I will avoid all conflicts of interest and appearance of conflicts, pursuant to 

applicable laws, rules, and regulations. The recusal of one MSPB member on any single 

matter docs not prevent that matter being adjudicated. 

II. Background of the Nominee 

5. What specific background and experience affinnatively qualify you to be Chairman of 

MSPB? 

I have 40-plus years' experience as an attorney representing employees before 

administrative agencies, courts, and companies; litigating matters relating to such issues on 

their behalf. I created a U.S. Department of the Army Office of General Counsel (OGC) 

Alternative Dispute Resolution group. While in the Army OGC, I managed about 

Senate Homeland Security and Governmental Affairs Committee Page 1 
53 

200 military and civilian attorneys involving Army employee modernizations, updates of 

processes, and strategic policy improvements. 

6. What experience, if any, do you have in deciding cases, resolving disputes, or 

performing the other duties required in serving as Chairman of the MSPB? 

Created an Alternate Dispute Resolution Office for the Army OGC. I have more than 

40 years' experience representing matters in court, civil, criminal, mediation, arbitration, 

and administrative procedure actions serving employees. I also have 35 years as a 

Commissioner on the Fairfax County (VA) Consumer Protection Commission. 

7. Please describe: 

a. Your leadership and management style. 

Collaborative; listening to all points of view; researching Constitution, laws, and 

regulations; and engaging in discussions with colleagues before decisions. 

b. Your experience managingpersonncl. 

Managed more than 200 military and civilian attorneys in the Army OGC for 

modernization into the 21'1 Century. Created, organized, and ran Lean Six Sigma business 

improvement teams for attorneys. 

c. What is the largest number of people that have worked under you? 

More than 200 Army attorneys (military and civilian) that I personally managed in 15 team 

llliits over a 2-ycar period. 

III. Role of Chairman, MSPB 

8. The Civil Service Reform Act requires that individuals appointed to the MSPB 

"demonstrate[] [the] ability, background, training, or experience" necessary to "carry out 

functions of the Board." 1 Please describe how your abilities, background, training, and 

experience qualify you for the position of Chairman of the MSPB. 

My civilian and government-related practice for the last 40+ years as a Federal civilian 

employee, political appointee, and Highly Qualified Expert in employment law, has served 

to hone my skills and enable my service to offer employees a fair hearing of their 

grievances, guide studies to improve processes, and develop agency-to-agency relationships. 

1 5 u.s.c. § 1201. 

Senate Homeland Security and Governmental Affairs Committee Page 2 
54 

9. In your opinion, what is the role of the MSPB? What is the role of Chairman in carrying 

out the statutory objectives of the MSPB? 

For both questions, I would follow the enabling statute. 5 U.S.C. §1204 sets forth MSPB's 

main responsibilities to (1) adjudicate matters within its jurisdiction and enforce 

compliance; (2) conduct special studies relating to the civil service and to other merit 

systems in the executive branch; and (3) review significant rules and regulations of the 

Office of Personnel Management (OPM). Pursuant to 5 U.S.C. § 1203(a), the Board 

Chairman is the chief executive and administrative officer of the agency. 

I 0. MSPB's mission is to "protect the Merit System Principles and promote an effective 

Federal workforce free of Prohibited Personnel Practices." How do you envision 

fulfilling MSPB's mission both day-to-day, and long-term? 

To serve and protect the merit system principles, fairly adjudicate whistleblower claims, 

and maintain the integrity of the Federal civil service. Study the workforce for continuous 

and steady improvements and report to Congress and the American people about its 

governance. 

By following the Constitution, laws, rules, and regulations, in all matters; including, but not 

limited to, deciding matters fairly and without bias. Protecting the merit system principles 

to produce an equitable process for all employees to enforce their rights and privileges 

while meeting their duties and responsibilities to the public. 

II. What do you anticipate being the greatest challenge you would face as Chairman of the 

MSPB, and how would you seek to prepare for and address those challenges? 

A backlog reported to be over 1,300 cases. While not presuming confirmation, under the 

authority of 5 U.S.C. § 1204 (n), I will seek shared services with other agencies for 

temporarily assigned or detailed staffing to work through this backlog. I will seek to 

streamline and remove any obstructions or delays to fair adjudication. 

12. What do you believe to be the top challenges facing the federal workforce today? What 

steps do you plan to take to address these challenges, if confirmed as Chairman? Please 

explain. 

Communications, fair treatment, and solid knowledge of employee-employer expectations. 

Justice delayed is justice denied; so MSPB must provide employees with reliable and rapid 

service to hear and decide their cases as is possible and realistic. 

Senate Homeland Security and Governmental Affairs Committee Page 3 
55 

13. Do you believe you will review and adjudicate cases that come before you with good 

judgment and impartiality? Please explain, citing examples of prior work or experience 

that could bear on your abilities, if applicable. 

Yes. I have served for 35 years as a Commissioner of Consumer Protection for Fairfax 

County, VA, and heard hundreds of issues and dealt with each using an even, steady hand 

by understanding and following laws, rules, and regulations. When at the Department of 

the Army, all involved received impartial and unbiased results and equal justice. 

IV. Policy Questions 

14. What role do you think alternative dispute resolution options, including the Mediation 

Appeals Program, should play in the MSPB adjudication and enforcement process? 

Alternate dispute resolution generally, and MSPB's Mediation Appeals Program (MAP) in 

particular, can move matters to conclusions and speedily help employees and agencies 

reach fair and equitable outcomes. MAP in-house mediators are trained and certified and 

operate confidentially. MAP is an excellent option when both parties agree to seek swift 

and just resolution of their cases, separate from their work with an adjudicating AJ. 

15, MSPI3 is statutorily responsible for conducting oversight of the Office of Personnel 

Management's significant actions. How will you coordinate with OPM to ensure that 

significant actions confcnm to the merit systems principles outlined in 5 U.S.C. § 2301? 

MSPB leadership and staff have a duty to examine OPM's significant actions under its 

statutory obligations (Title 5 of the U.S. Code). There will be regular lines of 

communication activated between the Chairman and the leadership of OPM to promote, 

foster, and encourage the merit system principles. 

16. MSPB previously highlighted the need to exan1ine the prevalence and forms ofreprisal 

for protected activity, particularly for whistlcblowing.2 Do you view reprisal for 

whistleblowing as a significant challenge facing the federal workforce? Why or why 

not? 

Yes. While I haven't seen recent data, I believe whistleblowers are a valuable, proven, 

critical enhancement of the Federal workforce system. They often provide a valued service 

by bringing to light violations of laws and waste, fraud, and abuse. Prohibited Personnel 

Practices are guarded against by whistleblowers. Reprisals arc appropriately prohibited; 

and will be investigated by agencies and OSC, and adjudicated by MSPB. 

~ Mr.rit Systems Protection Board, MSPB Research Agenda 2015-2018 (Feb, 2015), available at 

https://www.mspb.gov /mspbscarch/viewdocs.aspx?docnumbc r= I l40540&version=! I 

45045&applicalion~ACR OBA T. 

Senate llomeland Security and Governmental Affairs Committee Page 4 
56 

17. In your opinion, is the underutilization of probationary periods a critical issue? lf 

confirmed as Chairman ofMSPB, what steps would you take to ensure that managers 

better utilize probationary periods? 

Yes. Employee problems often show up in probationary periods and managers should 

address them at that time in a swift manner. 

If confirmed, I would ask MSPB to continue to study this issue to find the facts. By using 

the best practices we identify, federal managers can create a modern and respected 

Federal workforce. 

18. How do you view the role of information technology at MSPB as it relates to both dayto-day business and the overall mission objectives to uphold merit systems principles? 

.l!:ffective information security and data management demands the best available 

technological improvements to protect the Federal worker, prevent undue privacy losses, 

and maintain future data safety. A robust information technology {IT) program enhances 

MSPB's ability to safeguard the merit system principles, thus benefitting both the 

government and employees. 

The MSPB IT staff is assiduously working to bring the agency into the next decade. As 

Chairman, I will work with the IT staff to set priorities and goals. Technology is changing 

rapidly; and what seems appropriate now is likely to be obsolete in a few years. 

19. What role do you think merit systems studies, published by MSPB, play in ensuring a 

competent and efficient federal workforce? 

MSPB has the statutory authority under 5 U.S.C. § 1204 to conduct special studies of any 

aspect of the civil service or other merit systems to ensure that they are free of Prohibited 

Personnel Practices. 

These studies provide cutting-edge operating data; allowing and prompting improvements 

1!! .real time and giving agencies the chance to make relevant changes to improve results. 

The studies assist in the development of a competent and efficient Federal workforce. 

a. What steps would you take to ensure that MSPB's external reports address critical 

federal workforce issues? 

MSPB must constantly be cognizant of the changing language, skills, and needs of the 

Federal workforce to provide next-generation information through research. The Board 

will offer guidance and direction to those research efforts through a 5-year agenda. The 

current research agenda covers 2013-2018, so a new agenda will be established by the 

new Board. 

Senate Homeland Security and Governmental Affairs Committee Page 5 
57 

--b. What, if any, coordination do you believe should occur between MSPB and OPM to 

address federal workforce issues raised by MPSB studies? 

MSPB oversees and promotes merit principles and adjudicates PPPs; while OPM handles 

personnel rules and serves as the President's HR operation. While we will continue to share 

useful information with OPM, it is important that MSPB operate within its 

statutory responsibilities. 

20. According to MSPB's Fiscal Year 2017 annual report, 22 percent of MSPR employees, 

including 25 percent of administrative judges, are eligible to retire in the next two years. 

What steps will you take to ensure that MSPB conducts its own succession planning, so 

that you are able to execute your statutory duties? 

While not presuming confirmation, in light of these statistics I will address this matter by 

studying the continuity of operations plan (COOP) that MSPB is currently utilizing. As 

appropriate, I anticipate launching staff recruiters to bring in talented entrants to the 

MSPB in time for orderly transitions, development, and training. 

21. In March 2018, MSPB published an updated survey on sexual harassment in the federal 

workforce.3 ln this survey, 20.9 percent of women in the federal workforce and 8.7 

percent of men experienced a type of sexual harassment in the two years preceding the 

survey.4 Only eight percent of these employees believed corrective action was taken 

against the individual who committed the harassment, ,rossibly resulting in employees 

not using agency procedures to report the harassment: What do you believe is the role 

of MSPB in ensuring accountability against harassers in the federal workplace and in 

ensuring employees can report harassment without reprisal? 

Sexual harassment by managers and/or co-wm·kers, is reprehensible and a Prohibited 

Personnel Practice. MSPB will take seriously claims of sexual harassment that are 

brought to us and adjudicate them appropriately. Promotion of workplace 

preventative education will increase freedom from Prohibited Personnel Practices. 

22. What steps can MSPR take to improve federal supervisors' knowledge and intraagency support regarding disciplinary and removal processes? 

The OPM Learning Connection website has a training unit called "FY18 Addressing 

and Resolving Poor Performance" that gives intensive supervisor and management 

tnining within the laws and regulations. MSPB should continue such educational 

efforts, as this document is easy to follow and teaches how to manage employees 

properly in such circumstances. 

3 Merit Systems Protection Board, Update on Sexual Harassment in the Federal Workforce (Mar. 2018), available at 

https://www .mspb.gov/MSPBSE A RCH/vicwdocs.aspx?docnumber~ 150063 9& version~ 1506232& 

application~ACROBA T. 4 /d. at 4. 5 1d at 8. 

Senate I lome land Security and Governmental Affairs Committee Page 6 
58 

23. Protecting whistle blower confidentiality is of the utmost importance to this Committee. 

a. During your career how have you addressed whistle blower complaints? 

I have vigorously done so in both civilian legal practice and Federal career attorney 

service. In all of such cases, I have advocated for whistleblower protections. 

b. How do you plan to implement policies within the MSPB to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

Not presuming confirmation, I will continue MSPB's educational efforts on recognizing the 

right of whistle blowers to report waste, fraud, abuse, and similar offenses. MSPB has a 

website that covers these matters in detail. Its work under the No FEAR Act is extensive 

and ongoing. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

MSPB does not face retaliation? 

Yes. 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? 

Yes. 

V. Relations with Congress 

24. Do you agree without reservation to comply with any request or summons to appear and 

testify before any duly constituted committee ofConb'fCSS if you are confirmed? 

Yes, pursuant to following the laws and regulations allowing such disclosures 

or actions. 

25. Do you agree without reservation to make any subordinate official or employee available 

to appear and testify before, or provide information to, any duly constituted committee 

of Congress if you are confirmed? 

Yes, pursuant to following the laws and regulations allowing such disclosures 

or actions. 

26. Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents, communications, or any other agency material or information 

from any duly constituted committee of the Congress if you are confirmed? 

Yes, pursuant to following the laws and regulations allowing such disclosures 

or actions. 

Senate Homeland Security and Governmental Affairs Committee Page 7 
59 

VI. Assistance 

27. Arc these answers your own? I lave you consulted \Vith MSPB or any other interested 

parties? If so, please indicate which entities. 

Yes. I have consulted with MSI'H Acting Chail·man Mark A. Hobbins. 

Senate I lome! and Security and Governmental Affairs Committee Page 8 
60 

Minority Supplemental Pre-hearing Questionnaire 

For the Nomination of Dennis Dean Kirk to be 

Member and Chairman, Merit Systems Protection Board 

I. Nomination Process and Conflicts of Interest 

1. Has the President or his staff asked you to sign a confidentiality or non-disclosure 

agreement? 

No. 

2. Has the President or his staff asked you to pledge loyalty to the President or 

the Administration? 

No. 

3. Have you ever represented a party in a matter before or involving the Merit 

Systems Protection Doard (MSPD)? 

a. If so, please describe the matlcr(s) and the nature of the representation. 

Yes. I represented a military and civilian Federal retiree who was denied benefits by 

OPM. I won the case; plus was awarded attorneys fees' for client reimbursement. 

4. As owner of the Law Offices of Dennis Dean Kirk, have you or anyone else associated 

with the fi1m, ever represented a company headquartered outside the United States? 

a. If so, please provide the name of the client, along with a description of the 

matter(s) and the nature of the representation. 

Yes. In about 1984, I negotiated and represented a one-time contract where Cometto 

Industries (Milan, Italy) sold the Space Shuttle's land transport carrier computerized 

motor vehicle to NASA. This vehicle moved the Shuttle around the Space Dock Yards. 

In addition, I searched myself on the computer this morning and came across an article 

that mentioned a case I had very limited involvement with, and had completely 

forgotten about: PETA v. Sally Jewell, Secretary of the Interior, & U.S. Fish & Wildlife 

Service (Case No. 1:15-CV-00600, E.D.VA, Judge Claude Hilton). Filed, May 8, 2015, 

dismissed for lack of jurisdiction, September 8, 2015. 

Senate Homeland Security and Governmental AfT airs Committee Page 9 
61 

I represented The Conservation Force, Dallas Safari Club, and Republic of Namibia 

(Ministry of Environment and Tourism), all of which were seeking to support the U.S. 

Government against this suit to force it to cease importation of hunting trophies. I filed a 

motion to intervene as co-defendents on May 8, 2015. This motion was never ruled on, as 

the U.S. Government was granted its motion to dismiss for lack of jurisdiction four months 

later and the case was dismissed. 

My understanding is that The Conservation Force sought the support and approval of the 

tourism hunting section of the Republic of Namibia's Ministry of Environment and 

Tourism. As a result, Namibia agreed to participate in the intervention motion. I never 

had direct or indirect contact with anyone from Namibia. 

My short representation was done as a favor to a friend who was past president of the 

Safari Club, and also head of The Conservation Force. He is an attorney with a practice in 

Florida. His staff prepared the motion and had all the contact with the three clients. As a 

member ofthe Virginia bar, and admitted to practice in the E.D. VA, I was happy to be 

of assistance. 

I charged no legal fees for my representation, and only billed the filing fee of $75. While I 

represented these clients in my single capacity of the Law Office of Dennis Dean Kirk, the 

filing fee was billed through the system of Schmitz and Socarras, LLP. 

I sincerely regret this omission from my original responses. 

5. As partner of either Schmitz and Socarras, LLP or .Joseph E. Schmitz, LLP, have you or 

anyone else associated with the firm, ever represented a company headquartered outside the 

lJniled States? 

a. If so, please provide the name of the client, along with a description of the 

matter( s) and the nature of the representation. 

As an outside contracted "partner" to Schmitz and Socarras, LLP or Joseph E. Schmitz, 

LLP, I was not aware of any such matter. Other than as identified above, I have never 

any person or entity headquartered outside the United States. 

6. Are you aware of any MSI'B matters brought against one or more of your current partners at 

Schmitz and Socarras, LLP? 

No. 

a. If so, please provide the name of the partner, along with a description of the 

matter? How will you address matters brought against individuals associated with 

your current finn? 

Senate Homeland Security and Governmental Affairs Committee Page 10 
62 

ll. Background of Nominee 

7. Have you represented a whistleblower or other employee in an adversarial dispute against the 

federal government? 

Yes. Cases before FBI, DOD, CIA and State Department as well as other government 

agencies. Those persons are concerned about damages to their privacy and their personal 

protection, so I cannot discuss or divulge their names or secrets. 

8. Do you seck out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? 

Constructive, diverse dialogue sharpens the discussion, creating more logical legal 

reasoning, and gets subordinates and colleagues engaged in energetic approaches 

and governance. 

9. What would you consider your greatest successes as a leader? 

Building collaborative consensus to create and achieve the best transforming 

modernization outcomes in government. 

10. Why do you want to serve as Chainnan ofMSPB? 

I would like to ensure positive, energetic, and meaningful merit systems protections and 

strong employee (e.g., whistleblower) rights by the MSPB in its duty as adjudicator of the 

merit system principles. 

11. Have you sought advice about the functioning of MSPB and your potential role? 

l have asked the Acting Chairman about positive opportunities that may exist, when a 

quorum is restored, on addressing the backlog. 

12. Through your experience, what practices would you consider vital to managing a 

federal workforce? 

The merit system principles help reduce instances of Prohibited Personnel Practices, and 

create a wholesome well-respected modern workforce where employees are proud to serve. 

When an agency fails its workers, whistlcblowers must be protected. Studies of regulatory 

methods are essential to checking means and methods used today to improve tomorrow's 

workplace for all federal workers. 

Senate Homeland Security and Governmental Affairs Committee Page 11 
63 

13. How would you handle jurisdictional issues between agencies similar to MSPB, like the 

Equal Employment Opportunity Commission? 

In accordance with Congressionally passed Jaws and limits, I would adhere to the 

established jurisdictional issues. Collaborative discussions with Congress and these 

agencies will smooth out conflicts when they occur. 

14. Do you have experience addressing instances of prohibited personnel practices (PPPs)? If so, 

please generally describe those instances. 

While protecting clients' legal secrets, I have prevented political influences in the 

workforce, and represented clients that suffered PPPs. 

15. Do you have any experience adjudicating matters? If so, please provide an example. 

As an example, I have served for over 35 years as a Commissioner of the Fairfax County 

(VA) Consumer Protection Commission. This work involved hearing and adjudicating 

multi-issue disputes between parties, reviewing cable TV license applications, food license 

revocations, regulatory discipline matters of business employees, etc. 

16. If confirmed, as Chairman, you would be able to delegate certain responsibilities. Please 

describe how your experience will assist you in delegating authority in an efficient manner. 

What responsibilities would you seek to maintain for yourself? 

I practiced delegation using Lean Six Sigma when managing Army OGC teams. Each had 

anywhere from 3 to 30 in a group (up to 5 groups at a time of 10-15 each). I delegated to 

Team Captains and/or group leaders the daily and middle management responsibilities, 

leading by example and by oversight of a nature to gain knowledge and results while 

fostering their personal achievements. I also practiced delegation by creating and using 

sub-committees and committees in my work with the Consumer Protection Commission. 

17. How will your experience help MSPI3 maintain MSPB's Merit System Principles (MSPs)? 

The merit system principles viewed in light of a modern Federal workforce that functions 

to serve the American public, must be zealously preserved, promoted, and protected. I have 

done so for my clients and my agencies, and will do so for MSPB if confirmed. 

Senate Homeland Security and Governmental Affairs Committee Page !2 
64 

III. Policy Questions 

18. Precedents, findings, recommendations and reviews of Office of Personnel Management 

(OPM) rules by the MSPB have potential to directly affect how employees are managed and 

how their appeals are decided. What role do you believe the MSPB should play in developing 

personnel policy? 

None. MSPB must follow the Constitution, laws, and precedents to adjudicate high quality 

personnel decisions in accord with the merit system principles serving the Federal 

workforce; thereby preventing Prohibited Personnel Practices and retaliation against 

wbistleblowers. 

19. The MSPB has the statutory responsibility to conduct objective, non-partisan studies that 

assess and evaluate Federal merit systems policies, operations, and practices. These studies 

arc typically government-wide in scope and ensure that the workforce is managed in 

accordance with MSPs and is free from PPPs. What role do you believe MSPB's data 

collection should play in supporting personnel policy? 

It is essential that good, reliable, proven data be obtained to ensure integrity of conclusions 

and findings ofMSPB proceedings. To support personnel policy, MSPB is the guardian at 

the gates; conducting studil'S to get on the ground facts to inform Federal personnel 

decisionmakers. 

20. MSPB has been without a quorum of Board members since January 8, 2017. The lack of a 

quorum contributes to delays in issuing final decisions in petitions for review (PFRs) and 

other cases filed at headquarters (HQ) and releasing reports of merit systems studies. 

a. The MSPB currently estimates that it will take months or longer to process the 

inventory of cases at HQ and to publish merit systems studies reports once new 

Board members arc nominated and conlinned. Please describe how you will 

effectively and promptly address MSPI3's current backlog. 

Not presuming confirmation, the authority ofS U.S.C. § 1204 (n), may allow the Board to 

seek and expand partnerships with other agencies to accept shared services, and borrow 

detailees for ALJ, AJ and attorney functions. This brings to bear the increased temporary 

workforce needed to swiftly reduce the administrative backlog. 

b. Please describe how your previous work experience has prepared you to 

address the challenges in resolving MSPB's backlog. 

In the Army, utilizing Lean Six Sigma and OGC modernization, I was able to partner with 

DoD entities to achieve exceptional temporary increases far beyond assigned regular staff 

there. I created great results by delivering products no one had achieved before then. 

Senate Homeland Security and Governmental Affairs Committee Page 13 
65 

c. The MSPB Vice Chairman has voted on over 800 PFR cases which also await 

consideration by new Board members. If confirmed, please describe how you will 

work with your colleagues to consider cases awaiting decisions. 

Working together gets results. Each member is statutorily empowered to research, 

conclude, and write their own opinions. Collegial concurrences are both desirable and 

probable as the laws are clear in many areas. 

d. Do you have experience with resolving backlogs such as the one faced by 

MSPB? If so, please describe your experience. 

Yes. There was a years' long delay in processing persons offering to serve as volunteer 

experts on the Army Science Board. This caused applications of exceptional people to stall 

and many withdrew. I assembled a Lean Six Sigma team, rewrote the flowchart, and 

changed the system managing the governance, and capping delays to 90 days maximum. 

e. Have you sought advice from any current or former MSPB employees about 

how to best address the current backlog? If so, please describe your 

consultations. 

I have discussed the backlog in general with Mark Robbins, current Acting Chairman, and 

beyond the need for a 3 person board quorum nothing specific was mentioned. 

21. MSPB functions as an independent, third-party adjudicatory authority for employee appeals 

of adverse actions (e.g., removals, suspensions for more than14 days, and furloughs) and 

retirement decisions. 

a. Please describe your experience in developing adjudicatory processes and 

procedures, issuing subpoenas, calling witnesses and enforcing decisions. 

As a trial attorney, I have dealt for 40+ years with complex multijurisdictionallocal, state, 

and Federal litigation, as well as litigated and been consulted on administrative agency law 

cases. T have often litigated trials in courts, and before administrative agencies in civil and 

criminal matters involving subpoenas, witnesses, and enforcement of judgments and 

court orders. 

b. Please describe how your previous work experience has prepared you to 

execute and supervise these actions at MSPB. 

As a highly experienced litigator, I am confident in my ability to execute and supervise 

these actions at MSPB. 

Senate Homeland Security and Governmental Affairs Committee Page 14 
66 

22. How should Board members seek to safeguard their independence? 

Members of this independent Board must follow their duties and obligations under the 

Constitution, laws, regulations, and precedents; and they must stay strong in their 

independence to collaborate with their fellow members and observe rights and 

privileges of each of the members. 

23. MSPB was given the authority and responsibility to review the rules, regulations, and 

significant actions ofOPM. Do you have any concerns about OPM's current rules, 

regulations or recent actions? If so, please describe those concerns. 

Not presuming confirmation, I cannot prejudge OPM actions at this point, as it would 

be prejudicial to a careful analysis to be conducted under our MSPB duties and 

obligations once in office. 

24. Do you believe MSPB has the resources it needs to meet current challenges? Please explain. 

It will need to address the more than 1,300 case backlog-when its normal process 

decision flow is approximately 75 cases per month (according to acting Chairman 

Mark Robbins), so borrowed resources of solid ALJs, AJs, and other attorneys might 

he needed. 

25. How will you address the occurrence of PPPs with internal employees of MSPB? 

Prohibited Personnel Practices are not to he tolerated, and I have no data on 

procedures at MSPB currently, so cannot comment on what is not known. I always 

would discourage PPPs. 

26. In some cases, complainants who may be better served by other govemmcnt agencies such as 

the EEO or OSC seck assistance from the MSPB. 

a. How will you work to ensure that your staff effectively guides these 

complaints to the appropriate resources? 

By training in-house, the MSPB employee customer services can identity, properly 

address, and deliver options to complainants. 

b. Will you collaborate with other government agencies to minimize duplication? 

If so, please describe how you will work to achieve this objective. 

Yes. Informational meetings, .ioint training sessions, and data exchanges will do a great 

deal to help resolve this objective. In addition, it will be continually studied for 

improvement in avoiding duplication. 

Senate Homeland Security and Governmental Affairs Committee Page 15 
67 

Hatch Act 

27. What would you consider to be an appropriate penalty for a violation of the ITatch Act by a 

senior administration official? 

The Board docs not adjudicate alleged Hatch Act violations by senior 

administration otlicials. 

Whistleblower protections 

28. Please describe any previous experience-in the public or private sector-with handling 

whistle blower complaints, and what steps you took to ensure those individuals did not 

face retaliation and that their claims were thoroughly investigated? 

As private counsel to private corporate entities, contractor employees, and federal 

employees "blowing the whistle" on corrupt, criminal, fraud, or just waste and abuse 

issues, 1 zealously and vigorously fought as their champion defending their legal rights 

in every effort legally possible. 

29. OSC has filed an amicus brief opposing an MSPB decision that ruled against a whistle blower 

alleging retaliation because the MSPB said the whistleblower's disclosure was motivated by 

"interpersonal squabbling." Do you believe that the motive of the whistleblower should be 

considered when examining retaliation claims? Please explain. 

Not presuming confirmation, but I must not opine on what I do not now know and 

certainly do not want to prejudge any potential issues T may be addressing later. 

30. OSC filed three amicus briefs in 2017 opposing the MSPB's alleged attempts to impose 

higher procedural burdens on whistleblowcrs. Do you believe that whistleblowcrs should 

be subjected to higher proccdut·a] burdens before their cases arc considered by 

administrative judges? Please explain. 

Not presuming confirmation, but I must not opine on what I do not now know and 

certainly do not want to prejudge any potential issues I may be addressing later. 

31. OSC has also filed amicus briefs opposing the application of higher evidentiary burdens on 

whistleblowers. OSC has written that this burden "runs directly counter to Congress's intent 

in passing the WPEA's enhanced protections for federal whistleblowcrs." Do you believe 

that any whistle blowers should be subjected to higher evidentiary burdens? Please explain. 

Not presuming confirmation, but I must not opine on what I do not now know and 

certainly do not want to prejudge any potential issues T may be addressing later. 

Senate Homeland Security and Governmental Affairs Committee Page 16 
68 

32.If confirmed, how will you ensure that whistle blower complaints are properly investigated? 

The protection ofwhistleblowers is a paramount function for good federal governance, 

and it is an essential protection of the workforce. Nothing less than an intense attention 

and assurance from OSC and MSPB of these employees is mandatory in my 

own opinion. 

IV. Relations with Congress and the Public 

33. If confirmed, how will you make certain that you will respond in a timely manner to Member 

requests for in formation? 

Not presuming confirmation, I certainly will examine MSPB's Congressional 

relationship to build, foster and promote rapport to develop greater openness, 

transparency, and better partnerships. 

34.lf confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes, pursuant to following the laws and regulations allowing such disclosures or actions. 

35. If conlirrned, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? 

Yes, pursuant to following the laws and regulations allowing such disclosures or actions. 

36. If confirmed, do you commit to take all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? 

Yes. 

37. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? 

Yes. 

3 8. If confirmed, will you ensure that your staff will fully and promptly provide information and 

access to appropriate documents and officials in response to requests made by the 

Government Accountability Office (GAO) and the Congressional Research Service? 

Yes. 

Senate Homeland Security and Governmental Affairs Committee Page 17 
69 

39.lf confirmed, will you agree to work with representatives from this Committee and 

to promptly implement recommendations for improving MSPB's operations and 

effectiveness? 

Yes, pursuant to following the laws and regulations allowing such disclosures or actions; 

and presuming additional funding provided for additional personnel for such actions. 

40. Ifconfirmed, will you direct your staff to fully and promptly respond to Freedom of 

Information Act requests submitted by ti1e American people? 

Yes. 

41. If confirmed, will you ensure that political appointees arc not inappropriately involved in ilie 

review and release of Freedom oflnformation Act requests? 

Yes. 

Senate Homeland Security and Governmental Affairs Committee Page 18 
70 

VL Assistance 

42. Are these answers your own? Have you consulted with MSPB or any other interested parties? 

If so, please indicate which entities. 

Yes. I have consulted with MSPB Acting Chairman Mark A. Robbins. 

l,.J)-e:n.,;? ~ .hereby state that I have read the foregoing Pre-Hearing 

Questionnaire and SupplementafQuestionnaire and that the information provided therein is, to 

the best of my knowledge, current, accurate, and complete. 

Senate Homeland Security and Governmental Affairs Committee Page 19 
Nominee Report I U.S. Office of Government Ethics; 5 C.F.R. part 2634 I Form Approved: OMB No. (3209-0001) Uanuary 2018) 

Executive Branch Personnel 

Public Financial Disclosure Report (OGE Form 278e) 

Filer's Information 

Kirk, Dennis Dean 

Member (Chairman), Merit Systems Protection Board 

Other Federal Government Positions Held During the Preceding 12 Months: 

None Names of Congressional Committees Considering Nomination: 

Committee on Homeland Security and Governmental Affairs 

Electronic Signature -I certify that the statements I have made in this form are true, complete and correct to the best of my knowledge. 

Is/ Kirk, Dennis Dean [electronically signed on 11/03/2017 by Kirk, Dennis Dean in !ntegrity.gov] 

Agency Ethics Official's Opinion On the basis of information contained in this report, I conclude that the filer is in compliance with applicable laws and regul

(subject to any comments below). 

/sf Mason-Gale, Treyer, Certifying Official [electronically signed on 03/1512018 by Mason-Gale, Treyer in lntegrity.gov] 

Other review conducted by 

U.S. Office of Government Ethics Certification 

Kirk, Dennis D
72 
1. Filer's Positions Held Outside United States Government 

# ORGANIZATION NAME CITY, STATE ORGANIZATION POSITION HELD FROM TO 

TYPE 

Law Offices of Dennis Dean Kirk, Esq. Solo Legal Owner 12/2012 Presen

Practice 

2 Schmitz & Socarras, LLP Falls Church, Law Firm Self Employed 10/2014 Presen

Virginia Contract Law 

Partner 

3 Kirk Trust (revocable) See Endnote Falls Church, Trust Trustee 4/2016 Presen

4 Consumer Protection Commission Fairfax County, 

Virginia 

County 

Government 

Commissioner 1211982 Presen

2. Filer's Employment Assets & Income and Retirement Accounts 

# DESCRIPTION ElF VALUE INCOME TYPE INCOME 

AMOUNT 

of Dennis Dean Kirk, Esq. (sole N/A $100,001-

$250,000 

Legal Fees $13,500 

--- --· 

2 Schmitz & Socarras, LLP (law firm) N/A None (or less 

than $1,001) 

Legal fees $16,625 

Koonz, McKenney, johnson, DePaolis & N/A $15,001- Potential $0 

Lightfoot, LLP $50,000 contingency fee 

3 

case 

3. Filer's Employment Agreements and Arrangements 

Kirk, Dennis De
# EMPLOYER OR PARTY 

Law Offices of Dennis Dean Kirk, Esq. See Endnote 

CITY, STATE 

Falls Church, 

Virginia 

4. Filer's Sources of Compensation Exceeding $5,000 in a Year 

# SOURCE NAME 

Law Offices of Dennis Dean Kirk, Esq. 

2 Schmitz & Socarras, LLP 

3 Robert Stephenson 

CITY, STATE 

Falls Church, 

Virginia 

Falls Church, 

Virginia 

Alexandria, 

Virginia 

5. Spouse's Employment Assets & Income and Retirement Accounts 

None 

6. Other Assets and Income 

STATUS AND TERMS 

The firm will be placed in an inactive status during my 

appointment and the amount or percentage for all 

outstanding and potential client fees will be fixed 

before I enter government service. Specifically, I have 

an agreement with Peter DePaolis, Esq. of Koonz, 

McKenney, johnson, DePaolis & Lightfoot, LLP for a 

contingency fee of one-third of one-third of any 

award made in a personal injury matter that I 

referred to him that has not yet been filed with a 

court. 

BRIEF DESCRIPTION OF DUTIES 

Legal servkes as a solo practitioner 

Legal services as a contract attorney 

Legal services 

DATE 

8/2015 

Kirk, Dennis De
# DESCRIPTION ElF VALUE INCOME TYPE INCOME 

AMOUNT 

Metlife (whole life) N/A $1,001-$15,000 

2 U.S. bank account (cash) N/A $15,001- None (or less 

$50,000 than $201) 

7. Transactions 

(N/ A)- Not requ·~red for this type of report 

8. Liabilities 

# CREDITOR NAME TYPE AMOUNT YEAR RATE TERM 

INCURRED 

Bank of America Credit Card 2017 10.99 Revolv

2 j. P. Morgan Chase Mortgage on $250,001 . 2012 3.625 30 yea

Personal $500,000 

Residence 

9. Gifts and Travel Reimbursements 

(N/A)- Not required for this type of report 

Endnotes 

Kirk, Dennis De
PART # 

1. 3 

3. 

ENDNOTE 

Established in compliance with the National Firearms Act, the trust contains non-revenue pro

~terns used for sport., 

The personal injury matter is not one in which the USG is a party or has a substantial interest

Kirk. Dennis De
Summary of Contents 

1. Filer's Positions Held Outside United States Government 

Part 1 discloses positions that the filer held at any time during the reporting period (excluding positions with the United States Government). Positions are re

even if the filer did not receive compensation. 

This section does not include the following: (1) positions with religious, social, fraternal, or political organizations; (2) positions solely of an honorary nature; (3

held as part of the filer's official duties with the United States Government; (4) mere membership in an organization; and (5) passive investment interests as a 

partner or non-managing member of a limited liability company. 

2. Filer's Employment Assets & Income and Retirement Accounts 

Part 2 discloses the following: 

Sources of earned and other non-investment income of the filer totaling more than $200 during the reporting period (e.g., salary, fees, partnership share

honoraria, scholarships, and prizes) 

Assets related to the filer's business, employment, or other income-generating activities that (1) ended the reporting period with a value greater than $1,0

produced more than $200 in income during the reporting period (e.g., equity in business or partnership, stock options, retirement plans/accounts and thunderlying holdings as appropriate, deferred compensation, and intellectual property, such as book deals and patents) 

This section does not include assets or income from United States Government employment or assets that were acquired separately from the filer's business

employment, or other income-generating activities (e.g., assets purchased through a brokerage account). Note: The type of income is not required if the amo

income is $0 • $200 or if the asset qualifies as an excepted investment fund (ElF). 

3. Filer's Employment Agreements and Arrangements 

Part 3 discloses agreements or arrangements that the filer had during the reporting period with an employer or former employer (except the United States 

Government), such as the following: 

Future employment 

Leave of absence 

Continuing payments from an employer, including severance and payments not yet received for previous work (excluding ordinary salary from a current 

Continuing participation in an employee welfare, retirement, or other benefit plan, such as pensions or a deferred compensation plan 

Retention or disposition of employer-awarded equity, sharing in profits or carried interests (e.g., vested and unvested stock options, restricted stock, futu

a company's profits, etc) 

Kirk, Dennis De
4. Filer's Sources of Compensation Exceeding $5,000 in a Year 

Part 4 discloses sources (except the United States Government) that paid more than $5,000 in a calendar year for the filer's services during any year of the re

period. 

The filer discloses payments both from employers and from any clients to whom the filer personally provided services. The filer discloses a source even if the 

made its payment to the filer's employer and not to the filer. The filer does not disclose a client's payment to the filer's employer if the filer did not provide th

for which the client is paying. 

5. Spouse's Employment Assets & Income and Retirement Accounts 

Part 5 discloses the following: 

Sources of earned income (excluding honoraria) for the filer's spouse totaling more than $1,000 during the reporting period (e.g., salary, consulting fees, 

partnership share) 

Sources of honoraria for the filer's spouse greater than $200 during the reporting period 

Assets related to the filer's spouse's employment. business activities, other income-generating activities that (1) ended the reporting period with a value g

than $1,000 or (2) produced more than $200 in income during the reporting period (e.g., equity in business or partnership, stock options, retirement plan

and their underlying holdings as appropriate, deferred compensation, and intellectual property, such as book deals and patents) 

This section does not include assets or income from United States Government employment or assets that were acquired separately from the filer's spouse's 

employment, or other income-generating activities (e.g., assets purchased through a brokerage account). Note: The type of income is not required if the amo

income is $0- $200 or if the asset qualifies as an excepted investment fund (ElF). Amounts of income are not required for a spouse's earned income (excludin

honor aria). 

6. Other Assets and Income 

Part 6 discloses each asset, not already reported, that (1) ended the reporting period with a value greater than $1,000 or (2) produced more than $200 in inve

income during the reporting period. For purposes of the value and income thresholds, the filer aggregates the filer's interests with those of the filer's spouse 

dependent children. 

This section does not include the following types of assets: (1) a personal residence (unless it was rented out during the reporting period); (2) income or retire

benefits associated with United States Government employment (e.g., Thrift Savings Plan); and (3) cash accounts (e.g., checking, savings, money market accou

single financial institution with a value of $5,000 or less (unless more than $200 of income was produced). Additional exceptions apply. Note: The type of inco

required if the amount of income is $0-$200 or if the asset qualifies as an excepted investment fund (ElF). 

7. Transactions 

Kirk, Dennis D
Part 7 discloses purchases, sales, or exchanges of real property or securities in excess of $1,000 made on behalf of the filer, the filer's spouse or dependent c

reporting period. 

This section does not include transactions that concern the following: (1) a personal residence, unless rented out; (2) cash accounts (e.g., checking, savings, CD

market accounts) and money market mutual funds; (3) Treasury bills, bonds, and notes; and (4) holdings within a federal Thrift Savings Plan account. Addition

exceptions apply. 

8. Liabilities 

Part 8 discloses liabilities over $10,000 that the filer, the filer's spouse or dependent child owed at any time during the reporting period. 

This section does not include the following types of liabilities: (1) mortgages on a personal residence, unless rented out (limitations apply for PAS filers); (2) loa

secured by a personal motor vehicle, household furniture, or appliances, unless the loan exceeds the item's purchase price; and (3) revolving charge accounts

credit card balances, if the outstanding liability did not exceed $10,000 at the end of the reporting period. Additional exceptions apply. 

9. Gifts and Travel Reimbursements 

This section discloses: 

Gifts totaling more than $390 that the filer, the filer's spouse, and dependent children received from any one source during the reporting period. 

Travel reimbursements totaling more than $390 that the filer, the filer's spouse, and dependent children received from any one source during the report

For purposes of this section, the filer need not aggregate any gift or travel reimbursement with a value of $156 or less. Regardless of the value, this section do

include the following items: (1) anything received from relatives; (2) anything received from the United States Government or from the District of Columbia, st

local governments; (3) bequests and other forms of inheritance; (4) gifts and travel reimbursements given to the filer's agency in connection with the filer's of

(5) gifts of hospitality (food, lodging, entertainment) at the donor's residence or personal premises; and (6) anything received by the filer's spouse or depende

totally independent of their relationship to the filer. Additional exceptions apply. 

Kirk, Dennis D
Privacy Act Statement 

Title I of the Ethics in Government Act of 1978, as amended (the Act), 5 U.S.C. app. § 101 et seq., as amended by the Stop Trading on Congressional Knowledg

2012 (Pub. L 112-1 OS) (STOCK Act), and S C.F.R. Part 2634 of the U.S. Office of Government Ethics regulations require the reporting of this information. The p

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Kirk, Dennis De
81 

Kirk Nomination Questions for the Record 

Chairman Ron Johnson 

Post-Hearing Questions for the Record 

Submitted to Mr. Dennis Kirk 

page 1 of 13 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19, 2018 

Do you think it is appropriate to withhold in MSPB opinions the identity of an employee who is 

found to have committed a prohibited personnel practice? If so, please explain the reasons you 

believe the identity should be withheld. 

No. I understand that, while the Board may withhold the identity of an appellant or a respondent 

by granting anonymous "John Doe" status, such status is granted very rarely. A party seeking 

anonymity must overcome the presumption that parties' identities are public information. 

Anonymity is granted only in unusual circumstances, such as to prevent a clearly unwarranted 

invasion of a third party's privacy, to preserve the appellant's physical safety, or when the 

matters involved are of a highly sensitive or personal nature. 
82 

Kirk Nomination Questions for the Record 

Senator Claire McCaskill 

Post-Hearing Questions for the Record 

Submitted to Mr. Dennis Kirk 

page 2 of 13 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court ofthe District of 

Columbia 

Thursday July 19, 2018 

Wbistleblower Protections 

The MSPB is one of several entities --including Inspectors General and the Office of Special 

Counsel (OSC) ··that play a role in protecting whistleblowers from retaliation, and ensuring that 

whistleblowers are made whole if they experience prohibited personnel practices 

Congress has passed numerous laws to protect whistle blowers since the very founding of this 

country. Most recently, and most relevant to MSPB, are the Whistleblower Protection 

Enhancement Act (WPEA) and the recent enacted All Circuit Review Act. It is important to 

emphasize that Congress keeps passing laws and expanding protections because we believe 

whistle blowers are important and should be protected. Yet, sometimes the institutions charged 

with protecting whistle blowers do not heed this intent. We need to make sure that these 

institutions are operating on principles of transparency, accountability, and fairness. 

Q. Under oath, will you commit that federal employees will continue to have access to all 

the avenues of appeal available to them if you are confirmed? 

I can only commit to the avenues of appeal available to Federal employees at the MSPB, 

to the extent they exist under law, mle or regulation. 

Q. What will you do to ensure that the MSPB fosters a reputation for being an institution 

that is fair to whistleblowers? 

MSPB'sjob is to fairly, impartially and expeditiously adjudicate whistleblower claims 

consistent with both statutory provisions and controlling case law from Courts of 

competent jurisdiction. Without speaking for my possible future colleagues, I believe 

this will be a high priority for the Board once a quorum is restored. 

Q. MSPB's significant case backlog, soon to reach 1,300 petitions for review, can lead to 

continuing injustice for whistleblowers. What will you do to address this backlog? 

As I testified at the July 19, 2018 confirmation hearing, addressing the backlog will be 

my most important priority. During the nomination and confirmation process, I have 
83 

Kirk Nomination Questions for the Record page 3 of 13 

come to know and learn to respect the two individuals whom I hope will become my 

colleagues. I believe we will be able to work collegially to set priorities and begin to 

Issue cases. 

Q. Do you believe that the Administrative Judges hearing cases have sufficient training in 

whistleblower protection laws to ensure that rulings are not contrary to the law? What 

will you do to ensure that all employees within MSPB have a proper understanding of 

whistleblower protections? 

I believe in the importance of career development training and note that most attorneys 

have annual continuing legal education requirements. I do not have specific knowledge 

of what types of training MSPB employees, including administrative judges, have access 

to during their careers. But, if confirmed, I will work to ensure that administrative judges 

and all other MSPB employees have access to all of the training they need on 

whistleblower protections and all other topics. 

We have seen troubling instances where there has been burden shifting onto the whistleblowers, 

where the law is clear that the agency bears the responsibility to show by clear and convincing 

evidence that there was no prohibited personnel practice. 

Q. Do you have concerns with burden shifting, and, if so, what should be done to address 

this? What additional efforts should be made to ensure that there is not improper 

burden shifting? 

Without context of the particular situations in which burden shifting might be an issue, 

l cannot answer this question. 

Q. Burden shifting is a key issue in cases where certain employees, like auditors and 

investigators, are reporting concerns in the course of their duties. OSC has argued that 

MSPB has wrongly determined that these employees had a higher evidentiary burden 

than the law required. What are your views of this argument? Does MSPB need to look 

more closely at this issue? 

If confirmed, the issues and concerns raised by the Office of Special Counsel are matters 

that could come before me in existing or future cases that I will adjudicate. As such, it 

would be inappropriate for me to comment on this now. 
84 

Kirk Nomination Questions for the Record 

Senator Gary Peters 

Post-Hearing Questions for the Record 

Submitted to Mr. Dennis Kirk 

page 4 of 13 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board,. 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19,2018 

1. During this morning's hearing, you stated that you have not had the opportunity to review 

the proposed Modern Employment Reform, Improvement, and Transformation Act 

(MERIT Act), H.R. 599, which would significantly reduce the time it takes to fire a federal 

worker accused of poor performance or misconduct. The bill reduces the time for an 

employee to appeal firing decisions, or for the U.S. Merit Systems Protection Board 

(MSPB) to intervene on their behalf, and extends new employee probationary periods to 

two years. It would also allow agencies to avoid negotiated grievance procedures, reduce 

benefits of workers who are convicted of a felony and fired, and rescind bonuses or othe:r 

cash awards deemed to be wrongly paid. On Tuesday, July 17, 2018, the nation's largest 

federal union, the American Federation of Government Employees, AFL-CIO (AFGE) 

signaled its strong opposition to The MERIT Act, arguing that the legislation would make 

it easier to fire federal employees and would give agencies alternative mechanisms for the 

punishment of federal workers. After reviewing the legislation, do you believe it will 

support or undermine the due process system that provides federal workers with a 

meaningful opportunity to defend themselves when treated unfairly? How would the 

legislation impact the ability of the MSPB to review the appeals of employees who f.eel 

they have been wrongly terminated in a timely manner? Would eliminating or 

shortening processes for federal workers to challenge firing decisions of agencies, and 

empowering agencies to take-back bonuses or garnish benefits, improve federal 

employment practices? 

MSPB staff has reviewed the language ofH.R. 599, the Modern Employment 

Reform, Improvement, and Transformation (MERIT) Act, as passed by the House 

Oversight Committee on July 17, 2018, and advised me that they do not believe 

the legislation addresses any issues of jurisdiction, procedure, substantive case 

law or any other matter concerning Board operations. MSPB staff does not 

currently believe that this legislation would negatively impact the Board's ability 

to review the appeals of employees who are the subject of an agency adverse 

action over which the Board has jurisdiction to adjudicate. As long as any 

statutory process is consistent with Constitutional due process, the length of the 
85 

Kirk Nomination Questions for the Record page 5 of 13 

appeals process and any other associated issues is a question of policy better 

addressed by policy makers in Congress. And it should be noted that whether any 

new process is consistent with Constitutional due process is an issue likely to be 

raised before the Board in the first instance. As such, it would be inappropriate 

for me to form an opinion in advance. 

2. The House of Representatives Committee on Oversight and Government Reform recently 

voted to approve a five year reauthorization for the MSPB after more than a decade since 

its last authorization expired in 2007. Included in the reauthorization legislation was 

language that would allow MSPB members to issue summary judgments, reduce the 

burden of proof for agencies to justify adverse personnel actions from "a preponderance of 

the evidence" to "substantial evidence," and it would require federal workers to pay a filing 

fee to appeal adverse personnel actions. The bill reduces the time to seven days for 

employees to respond to a notice of proposed discipline; require the agency to make a final 

decision within J 5 days afterward; and allow only seven days, rather than 30, for the 

employee to appeal to the MSPB. In your opinion, do you believe it is too hard 

currently to fire federal employees? Do you believe reducing the burden of proof to 

justify adverse agency decisions is appropriate? Should you be confirmed, how would 

you ensure that federal employees are treated fairly? 

This is a policy question not relevant to the Board's jurisdiction or its operations. 

But in my personal opinion, no, it is not too hard currently to fire Federal 

employees. The process might be time consuming, but if current law, rules and 

regulations governing adverse actions are followed, a Federal employee may be 

separated for either performance issues or conduct. I will ensure that federal 

employees are treated fairly by adjudicating their cases based on the Constitution, 

Statutes, the Code of Federal Regulations, and the rules and procedures of 

the MSPB. 

3. As noted in some of your questionnaires, the MSPB last published its research agenda in 

2015, which expires in 2018. In order to develop the agenda, the previous MSPB took 

numerous steps to solicit input from stakeholders, including the heads offederal agencies, 

major federal employee unions, and professional associations with expertise in federal 

workforce issues. What is your plan to develop an updated research agenda? What 

would you change from the outreach approach taken by the MSPB in 2015? Who 

would you consider to be important stakeholders in MSPB's research agenda? How 

will you analyze the feedback from stakeholders in order to make decisions about 

research topics? How will you decide which topics to prioritize? 

The current research agenda was adopted by the previous Board in 2015 to last for 

a period of 3-5 years. I understand there are several research projects awaiting 
86 

Kirk Nomination Questions for the Record page 6 of 13 

review by a new quorum. It will be up to the new quorum to set a research 

agenda. I am not familiar with Board history on how research agendas previously 

have been adopted, including the most recent one in 2015. I anticipate that, if 

confirmed, we will reach out to stakeholders both inside the government, 

including Congress, employee representatives in both management and labor, and 

outside the government, including academia, and good government groups, to get 

suggestions for research which would lead to broadly beneficial studies. Not 

being currently familiar with this process, I do not know how stakeholder 

feedback is analyzed or how final decisions are ultimately made. 
87 

Kirk Nomination Questions for the Record 

Senator Heidi Heitkamp 

Post-Hearing Questions for the Record 

Submitted to Mr. Dennis Kirk 

page 7 of 13 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19,2018 

• What is an experience or situation from your life that shaped your outlook on the critical 

federal employee issues that MSPB considers and decides? Why did that situation impact 

you in the way that it did? 

In June 1997, my niece Jacqueline wed Major Paul Syverson, III in the Vatican Chapel of 

Choirs. My brother Colonel Don Kirk, U.S. Army was stationed at the U.S. Embassy and 

we were treated graciously by the Embassy civil servants. A year later, Paul and Jackie 

had a son, Paul Syverson, IV. 

A soldier in the 5

1

h Special Forces, Paul was a hero many times over. After 9/11, in 2001, 

he was severely injured in the bombing of the Fort at Mosar El Shariff, Afghanistan, 

while he and his team tried to rescue Mike Spann, a civil servant trapped inside. Paul had 

several surgeries at Walter Reed Army Hospital, and the incredibly brilliant civilian and 

military doctors, nurses, and staff were amazing to him and our family while he was 

there. With their help, he recovered and returned to his service to our country. 

In April2004, Paul and Jackie had a daughter, Amy; and Paul got a short leave home to 

see his new child before he returned for the last month of his tour of duty. 

In June 2004, Major Paul Syverson, Ill, was killed in Balad, Iraq, by enemy mortar fire. 

He is buried in Section 60, Arlington National Cemetery. He was given full military 

honors at the services by Acting Secretary of the Army, Les Brownlee; arranged by the 

wonderfully kind and gentle ANC staff. 

That placed a sharp focus on my life. I again answered the call of duty to my country, 

and went into the Department of the Army Office of General Counsel. Service in the 

Office of General Counsel during two regional wars was a life-shaping series of 

phenomenal events due to the amazing men and women in civilian federal and military 

service in all the branches and areas where I was privileged to work and interact. Our 

work included: the Department of Defense-wide Quadrennial Defense Review; 
88 

Kirk Nomination Questions for the Record page 8 of 13 

overseeing Army-wide deployment of Lean Six Sigma; and the modernization teams of 

civilian and military folks deployed to reshape Army legal services. 

These Army and Department of Defense folks fought from the Pentagon to keep safe and 

protect our fellow Americans in their everyday lives as citizens. They volunteered 

countless off-the-clock hours as they strove to excel and be inspirational. I was able to 

achieve results with their support. With my Defense Department and Army teams of 

public servants, we modernized the current military and civilian forces by shaping 

creative, innovative, and lasting enterprise operations; literally saving the Defense 

Department and the Army millions of dollars of taxpayer money. 

For that service, I received decorations, medals, and a hefty cash award. In honor of civil 

servants, such as Major Paul Syverson, III, I donated the cash to the Secretary of the 

Army's Gift Fund, designated for the use of the 5th Special Forces Command. That 

Commander deployed it into the Morale, Welfare & Recreation funds at Ft. Campbell, 

and it funded such things as a base-wide picnic for families of soldiers stationed at 

the fort. 

That is why I am thrilled to be called again to work with our federal civil servants; this 

time, in the merit systems protection functions of the MSPB. 

• What role should previous MSPB decisions or other relevant precedents play in how an 

MSPB board member decides cases or makes decisions? 

Precedent plays an important role in judicial and administrative decision-making. If 

confirmed, I will carefully consider all relevant precedents, including whether a previous 

MSPB decision was correct, and arguments raised by the parties in deciding cases that 

come before the Board. 

• If you are confirmed and you come across a case where there is clear precedent, but, 

when you look at the case closely, you begin to question if that previous decision was 

decided correctly. 

o How should a MSPB board member go about determining when a precedent 

needs to be changed? 

An adjudicator's job is to apply the law to a given set of facts unique to the case 

in question. If confirmed, I will carefully consider all relevant precedents and 

arguments about those precedents raised by the parties in deciding cases that 

come before the Board, and question precedent when it is appropriate and 

necessary to do so. 
89 

l~irk Nomination Questions for the Record page 9 of 13 

• What role does the federal workforce play in the United States, and what do the 

American people need from the federal workforce? 

o How should MSPB board members use their authority and decide cases to ensure 

those goals come to pass? 

The question of what role the Federal workforce plays in the U.S. and the needs 

of the American people are policy questions better addressed by policy makers in 

Congress. However, to assist the policy makers in their considerations, the Board 

owes it to them and the American people to provide fair, timely and impartial 

decisions on matters brought to it for adjudication. 

• What changes need to be made to MSPB, its jurisdiction or its authority? 

I'm not currently aware of any needed changes to Board jurisdiction or its authority. 

• Many federal employee and federal employee .groups feel that recent Executive Orders 

from this administration on issues such as making it easier to let go of poor performing 

federal employees or curbing the use of official time are direct assaults on federal 

employees and their long-held civil service rights. 

o What is your opinion of these executive orders? 

While I have not reviewed these executive orders in great detail, opinions on their 

content is a policy question not within the Board's jurisdiction. 

o How do you feel that these executive orders will impact your potential work 

at MSPB? 

See response above. 

o What are your plans to use your role on MSPB to protect the rights of 

federal employees? 

The Board protects Constitutional and Title 5 due process rights of Federal 

employees challenging agency actions by fairly, timely and impartially 

adjudicating its case load. 

• Do you feel that the May 25 Executive Order, which addressed how agencies should deal 

with poor-performing federal employees, can work in concert with the statutory 

protections that federal employees are provided 7 

As discussed above, this is a policy question not within the Board's jurisdiction. 
90 

Kirk Nomination Questions for the Record page 10 of 13 

o What is MSPB's role in determining how to balance the directives to agency 

heads in that executive order with the statutory protections which are the 

foundation of the civil service code? 

The question whether there are any conflicts between provisions of Title 5 and the 

May 25, 2018 executive order might arise in cases that come before the Board. 

As such, it would be inappropriate for me to form an opinion at this point. 

Additional questions below 

Administrative Law Judges (ALJs) have unique statutory protections from unlawful removals. 5 

U.S.C. §7521 generally states that an ALJ can only be removed after good cause to do so was 

established and determined by the MSPB on the record after opportunity for a hearing. The 

recent Executive Order that moved ALJ hiring from the competitive service to the excepted 

service does not impact the 5 U.S. C. §7521 protections. 

• In your opinion, is it important to have specific protections against the unlawful removal 

of ALJ s in federal statute? 

o Why or Why not? 

Yes. It is important to have specific protections against the unlawful removal of 

administrative law judges in Federal statute. The protections contained in 

5 U.S. C. § 7521 and elsewhere ensure that adverse actions against administrative 

law judges are taken solely for performance or conduct reasons and not in 

retaliation for decisions rendered against an agency. 

If confirmed, what steps would you take to examine a case where an agency claimed 

good cause to fire an ALJ to ensure the agency claim was correct? 

If confirmed, I will consider all relevant legal authorities and arguments raised by the 

parties in cases before the Board, including any cases involving dismissal of an 

administrative law judge. 

• In your opinion, does 5 USC §7521 require that MSPB determine if the good cause 

threshold to remove an ALJ has been met, or does it just require that MSPB determine 

only if there is sufficient evidence to prove an agency's determination of"good cause"? 

o Please explain the reasoning behind your answer. 

If confirmed, I will consider all relevant legal authorities and arguments raised 

by the parties in cases before the Board, including arguments concerning 

5 U.S. C. § 7521, which states that actions may be taken against administrative 

law judges "only for good cause established and determined by the" MSPB. 

• In recently published news articles (https://www.reuters.com/article/us-otc-dojmemo/incontidential-memo-to-agency-gcs-doj-signal~.aggressive-stand-on-firing-aljs-
91 

Kirk Nomination Questions for the Record page 11 of 13 

- idUSKBN1KD2BB) about Department of Justice guidance to agencies on how to 

navigate ALJ issues in the wake ofthe recent Lucia v. SEC Supreme Court decision, DOJ 

argued that MSPB should be suitably deferential to the determinations of agency heads 

when it comes to the removal of ALJ s. 

o What role should MSPB play in safeguarding the president's power to 

supervise the executive branch? 

The MSPB's role is to apply the law in cases that come before it If 

confirmed, I will decide cases within MSPB' s jurisdiction fairly and in 

accordance with applicable law. 

o How would you define "suitably deferential" in terms ofMSPB's 

responsibilities to safeguard and protect federal employees from unlawful 

removals? 

To my knowledge, "suitably deferential" is not a standard currently contained 

in Title 5, Board case law, or other binding precedent. To the extent the 

concept could arise in the context of Board consideration of a matter before 

the Board, it would be inappropriate for me to form an opinion prematurely. 

o What role can MSPB play in ensuring that ALJs are not removed for any 

invidious reasons or to influence a particular outcome? 

5 US. C. § 7521 states that an adverse action against an administrative law 

judge may be taken "only for good cause established and determined by the 

Merit Systems Protection Board." The Board can ensure this provision is 

enforced by fair, impartial and timely adjudication of any such actions. 

As mentioned earlier, the recent Executive Order on ALJs recently moved ALJS into the 

excepted service. That means ALJ s will be excepted service employees, giving agencies 

greater flexibility to hire ALJs as they see fit. However, the ALJs will continue to have 

significant merit system protections against removal or other significant employment 

punishment without good cause? 

o What challenges to a member of the MSPB are presented when federal 

employees are both excepted employees and have significant merit system 

protections? 

I am not currently aware of any such challenges. Most excepted service 

Federal employees have had appeal rights to the Board since passage of the 

civil service due process amendments, P.L. No. 101-376 (Aug. 17, 1990). 
92 

Kirk Nomination Questions for the Record page 12 of 13 

• In your opinion, what responsibility do MSPB members have to ensure that ALJs follow 

agency policies, procedures or instructions? 

The MSPB' s role is to apply all applicable laws in cases coming before the Board, 

including cases involving adverse actions against administrative law judges, as 

discussed in 5 U.S.C. § 7521. In examining whether there is good cause, the 

MSPB has at times examined whether an administrative law judge has followed 

lawful agency policies, procedures, or instructions. 
93 

~~r,.., j lii~ea/2 l~ hereby state that I have read the foregoing 

Post-Hearing Questions for the Record and that the infonnation provided therein is, to the 

best of my knowledge, current, accurate, and complete. 

(Signature) 

tttf~ 

This_&_~ of -P+-· 2018 
94 

The Honorable Thomas M. Davis 

Statement in support of 

Dennis Dean Kirk, 

Nominee for Chairman and 

Member of the Merit System Protection Board (MSPB) 

Chairman Lankford, Ranking Member Heitkamp, and distinguished members of the 

United States Senate Homeland Security and Government Affairs Committee's 

Subcommittee on Regulatory Affairs and Federal Management: I am Thomas M. Davis, 

former member of the U.S. House of Representatives and former Chair of the U.S. 

House Committee on Government Reform. I am currently a practicing attorney and 

Managing Director of Deloitte, LLP, in the District of Columbia. 

I appreciate this opportunity to express my strong support on behalf of my great longterm friend, Dennis Dean Kirk, who has been nominated to serve as Chairman and 

Member of the Merit System Protection Board (MSPB). 

In addition to his exceptional professional history, I believe that Dennis possesses the 

necessary character and temperament appropriate to serve in this adjudicatory and 

managerial capacity. Over the years, I have watched as people meet Dennis for the 

first time and are struck by his calm, contemplative, and thoughtful nature. 

My family has been friends with Dennis and his family for over 30 years. I see his son 

Dean is here with us today. Dennis is a caring family man who is driven to excellence by 

his strong sense of duty, honor and compassion for others. 

Dennis is currently the Senior Advisor to the Chief Information Officer, Office of 

Personnel Management. He is assisting in revolutionizing the employee data record 

system for all federal employees. 

Before his OPM appointment, he was six years in private law practice, handling many 

complex employment law cases before federal agencies with the firm of Schmitz and 

Socarras, LLP, and its predecessor, Joseph E. Schmitz, LLP, as their outside contract 

partner for such matters. 

From 2007 to 2012, he was the Associate General Counsel in the Department of the 

Army Office of General Counsel, as the AGC responsible for Strategic Integration and 
95 

Business Transformation across the Army. His accomplishments in the capacity of a 

highly qualified expert transformed the civilian and military core attorneys into a 

modernized force. Prior to that, Dennis was the Special Assistant to the General 

Counsel of the Army from 2005-2007. 

Dennis was in private practice representing civilians such as local, state and federal 

employees, as well as military and business clients from 1977 to 2005. Dennis came to 

Washington, DC, in 1975, serving until1977, as a Trial Attorney on the Bureau of 

Enforcement Director's staff of the Interstate Commerce Commission. 

It was at that time that I met Dennis, and I thought so highly of him that I appointed him 

in 1979 as my Commissioner's Representative to the Fairfax County Consumer 

Protection Commission. Subsequent Commissioners, Democrats and Republicans, 

reappointed him and he has served for 36 years protecting Fairfax County consumers. 

He is a graduate of Washburn Law School (J.D.), of Topeka, Kansas, of Northern 

Arizona University (B.S. in Police Science and Administration) in Flagstaff, and of 

Hutchinson Community Junior College of Kansas (A.A.). 

Dennis has received many awards, including the Secretary of the Army's Decoration for 

Meritorious Civilian Service Medal, and the Decoration for Exceptional Civilian Service 

Medal (the Secretary of the Army's highest honor for civilian service). 

l·am confident that Dennis is ready to confront the challenges that lie ahead of him. 

urge this committee to act promptly on his nomination. 

I would have no hesitation in voting for Dennis Dean Kirk. I hope you will trust me and 

do the same. 

Thanks again to Senator Lankford, Senator Heitkamp, and Members of the 

Subcommittee, for this opportunity to speak. 
96 

MSPB NOMINATION HEARING TESTIMONY 

JULIA AKINS CLARK 

MEMBER 

U.S. MERIT SYSTEMS PROTECTION BOARD 

SENATE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENT AFFAIRS 

July 19,2018 

Chairman Lankford, Ranking Member Heitkamp and Members of the Committee: 

Thank you for the opportunity to appear before you regarding my nomination to be a Member of 

the U.S. Merit Systems Protection Board. I am honored to be nominated to this important 

position and, if confirmed, pledge to serve with the highest degree of professionalism 

and integrity. 

I am the daughter of career public servants, who taught me through their example the essential 

role career public servants play in the delivery of efficient, effective, and high-quality 

government services to the American people. I joined the federal civil service upon law school 

graduation, by accepting a position as an Honors Program Trial Attorney in the U.S. Department 

of Justice. Subsequently, I devoted my legal career to upholding the public's interest in 

maintaining a high-quality career civil service. For over twenty years, I represented civil 

servants' workplace interests, as a private labor organization attorney. For the last nine years, I 

have served as a senior official in two independent agencies-the Federal Labor Relations 

Authority and the Congressional Office of Compliance--administering federal laws designed to 

protect civil servants' workplace rights. 

In my work as private attorney, I was privileged to represent the workplace interests of NASA 

scientists, engineers and technicians, Naval Shipyard engineers and technicians, including those 

with nuclear energy responsibilities, Army Corps of Engineers research scientists and emergency 

preparedness employees, Environmental Protection Agency scientists, Congressional Research 

Service experts, General Accountability Office analysts, Administrative Law and Immigration 

Judges and many others. I was privileged to rejoin the federal government in August 2009 as the 

General Counsel of the Federal Labor Relations Authority, where I was entrusted by the 

President and Senate with enforcement oflabor-management relations provisions of the Civil 

Service Reform Act of 1978. Since January 2017, I have served as Deputy General Counsel of 

the Office of Compliance, the legislative branch's independent agency tasked with protecting 

legislative branch employees' workplace rights under the Congressional Accountability Act. 

My experience as both a public servant and a private attorney has prepared me for the important 

adjudicatory responsibilities Congress has conferred upon the MSPB Member. I pledge my 
97 

Julia Akins Clark, Opening Statement, (cont'd) page 2 of2 

unqualified commitment to protect the Merit System Principles and to promote a federal civil 

service free of Prohibited Personnel Practices by carrying out the MSPB Member's 

responsibilities fairly, impartially and in the public interest. I further wholeheartedly embrace 

the MSPB's stated vision-that by fulfilling the agency's statutory mission, the MSPB will 

promote a highly qualified, diverse federal workforce that is fairly and effectively managed, and 

provides the best possible government services to the American people. 

I want to thank the Committee for expediting the consideration of my nomination in the interest 

of restoring the Board's quorum. I understand well the challenge facing the incoming Board 

who must adjudicate well over a thousand backlogged cases. When I assumed my 

responsibilities as FLRA General Counsel, a backlog of200 unfair labor practice complaint 

cases and 800 appeals cases had accumulated due to extended vacancies in the General Counsel 

and Deputy General Counsel positions. Working with career staff, we developed and 

implemented a plan to address the backlog and managed to clear it within six months. I am 

confident that, if confirmed, the new Board will similarly develop a consensus plan, with 

assistance from MSPB staff, to address the MSPB's backlog as expeditiously as possible. 

I would also like to thank the Committee staff, my fellow nominees and Acting MSPB Chairman 

Robbins for their professional and collegial approach to the preparations for this hearing. 

Further, I want to express my appreciation to my family, friends and work colleagues over the 

years for their guidance and support. Most especially, I want to thank the thousands of federal 

civil servants I have been privileged to meet over the course of my career. They are the 

foundation of my faith in the enduring value of the federal civil service system to the 

American people. 
98 

REDACTED 

BeHSGACBIOGR,APHICAL QUEST,ION~ FOR 

E.XE(;UTIVJ!iNQ M.INEES 

l, . BaSie.Bl6mribica:l ltiforniatiiJil 

Pl~e provide the follo~g information~ 

1 
99 

2 
100 

2. · Ed:ueation, 

LISt all'J)JiSt~~ec,«;ndary·scltiii~IS attepded.~ 

3 
101 

3:. E!gf!!onneg:t 

(A) Llstd of '}'QUI" !liDJil!lYment a~vffi,es,; Uicll!ttl!!g uollQJployme~t andself-employment; 

If the·employmentacllVityivll's·~ duty; list sepi!rate•employmentuctMty')ltlriod.s .tu 

show eacli.ChliDge:ofJJiil(tary dot),' station. Donotlistemploy.rnen:fbeforc four igtb birthday unless~ pwvide 11 nUidlntiDHif t\yO :yean 'ofemploYiDeilt•b,stccy; 
102 

Federal:Empki~ent .Congre5slenal Qffice 

·of!i:omplianci\ 

(B)Lis.t' a;:ey: advisory, cdn!lliltidive, ~ojlotarf o.r oth,r part-time ~et.Vic,.or position~ With 

~r~, state, or lo~l g9,veJ.11111en~. ~ot t;,st~ olsewh~e, 

4, Potential CiJJtflichifintereSt 

{4:) Describe .ltJlY b.us~ess relation!ihip, ~en~g·•rfuiancial:tr~msRetion'whieh you have h.ad 

during the lasit'Oyears, .whetll.edoryburself, on. bthalf ofa dient, qt !lilting. as an agcu(, 

that ~ll~lcrin any'.;..ay emutitute or resulfln a· possibl!l confl!l:t lif mro:re$t in the ~os~fiiinto 

which _you b!lVil 6een :ilOJnhtated.•. 

iJurit)g the one-year periOd p-re,c~.my·appoi$p~n:tlll; ~RA t:Jenerai CO\iiiSei. I·~. 

mnpleyed ~ an, attof!le:Y l;lr fh.e.m~matlon;d:Federaiiotu:ifPro:fu.ssionat andTe~cal E'I:IJiineel,'ll 

(1FPT.6),,!i laboriltgapj:!;afion::thatrepreseni:s•.feder;A.~mploye~s. IFP!E-affiliafed qrganiZatiens 

'Qll'.Y CIUl"elJ.tly be qr- c.ould in the futute berepte5entfug .empiQyees in cases before the .MSPB, 

altlioughihave no·krtqwledge of thiS:. ItiS-alsoJjoosible'that:theF,L;RA or-~jl1oyee;;(.qfthe 

FLRA rm;y.,otttrei:rtly be- o:t ~ai becQille- palitj~s .to c~es''Qefare the IldSP:a:. altbou~ I'have no 

knowledge oftbis .• 

{B) Descdb~:~.any activity 4uiing~h~ past 10 yel!rs ·hi whiei!Y!!Il have e,gaged for the' 

·pu~se of !lirel!tlY or !ftdireetly ih~ue~c~thepp~sag¢,.deftl)!t.or·m·odffication of any 

lc~ation or -atrectfug ~o adi.JliniStr!!.tl(\11 ·or u;;c~tion oflaw. or pnbJic: policy, otliet than 

'1YbUe'in a.,~crral-gOV!!~me:nt capacity. 

5. Honors and AwardS 

LiSfaU $-chillarsliip~:felJq'Ylihlps_, honobiry degr.etl5, e~v!lian•service· dtations, military 

m~s, academic or;pro~esslolial Ji!)n!lrs, P,onorary society membership$ jtnd any other 

spacial.recogiliti!lnlor·oufStilndfng sefij~ or 'Bcld.evement.. · 

Roberts. Kerr SCholar iil. Pliblic ,Affairs, Ok.Iab,omaB!Ipti.St university, 1~74--1 ~n 

5 
103 

6-. Memberilhlus 

List1'U memberships th{lty~ lt.aV~::,.~ in pr,ofl:$.sio:nal,socl~J •. bl(~p~, f'rl!tem.al, 

schol!ll'lY; ~i;il.i&:,.or ciharitablll!)l'JPbiziitla~ in the:.I~Js(IO:years. Uttii!Ss r&Ie'va:~t'to your .n0mmation.;,you do NOT need fu,mtlUdc·m¢mbersbips in cltatiitab.te orgaiiizatioJJ~ · 

.avlJllalii«;.~O ~e'}m~nc au. resukof ll a.x ded1I~~bl~ do~t;.on D'f $~,001) or less, P!lrehtTeitcher Assadations ot·other o~®ns<:Diln:eeted'to•schools attended byyo~r ' 

.chll."ren, l)titl~tic (:]~s.or wams, alj.tomobnesu,pp.ort·org;mip.donf{Sudt WI AAA); 

djseounfi.club& (su!;h·as ~upil~ or Sam's 'Club), oratl1nf~ mem~•hipsf~~~UDJer clubs 

{,!ueh il:s frequent :Oyer memflershtp.s). 

fiislrlct iif.Cnllllnl:iia Bar · 

ASl!Ocfali<>ll 

soeiaLcbair 200$•201 0, Ailiiis)unt 

Secre~W:Y 0211018 'fo::pment 
104 

{B) Lkt9,1iy oi'fit:es held~ or s~es ren.d~lld m·~·po_iitical paliY or el~ctfon: comliliitee 

(11).1'ji,lg.tiJ.eJast te,ny~·tha(yoa.h~V.e-not:list~d.llls'ewhere. 

.NA,. 

(G) Itemize a~ i!uJJVidualpolitical cilntributi_ori~·of$~00 01' IJlD11l'tbat Y,ou haVil mad~ in 

the·p~ ~veyeats.fo !lnyJn4iV~dual, CSJt!.palgo otganiZation~.politi~party, political 

aetipJJ, (;'Omnii~t:t!~ or)lmilar enfity, Ph! as~ li_st ea ~ldntlividu,<Jli)Ont.rlbu~()n. and.n:ot 

~6 Mill.~~t Co$ibuted :t.O the v~on o.r .entjty during·th'e·y\lar. 

Ih;l~~Jilllde poli~calcontribu!i~n~ blll;~o-.$gle: cootnliqtjon was more{blll;> $2,00. lbav~ li<:u\tributed 

mote.1i>!m $200to a single :candidate jnlbe·~gregille, Aa hmderstatld tbe quesf!on, tl\ese, ~pntribu~oos are 

n\rt'respcirisiV'I !0 ihi~,quest}on, · · · · 

. :. ·~ 

NA 

8, Pllblieations an4 Speeches. 

(A) Listthl!l titleS, pub~ets:llnd dates ofbli.ol(s •. ~l!-les •. reJIOrt~·:or J:ither publilih't!d 

matetliiis that you have w,ritten. mcllllijng ~rtide,s puiJIQbeiJ on the lu~et~ .PI !lase ~rllv.fde 

tlte..Compnttee With co~es-or.a». )4'ted p~blieations.·llt Ueu of~rd cop,les, electroJiie;copies. 

ean be:pro~ded. ":iJJ· ~mail'.o.ru#ui~< digimlformqf. ·· ' 

White Collar &C!Jipjlons :Al!A&:elioli on LalwNin.d . ¥mll!Qymeot L'Qw 

:'Pending Ameitdments .ro'lbe Fair 

Ulbor S"tandaril$ Act 

·nevd(l,pmemsmNLRB . 

llilpreseutation Cl'ise11: .i\Ptll·.~OOS 

tbr.Ough ¥~2ll06 · 

ABA FB.ir La!ior Statid~~tds Ciillliiiittae. · · 

7 

l'<ib1'1111t'll~% {I am: qn!lbfu1:a locate· a -copy oftllis paper) 

May'2006. 
105 

NLAA:P'Itltecl.l\d CliilcertedActivi!Y• La\i<it L~~v'El!cl)ange:Yolum!!;:!J 

in cy.berSp~cc · 

I U~o(.Sl~c;trQili~MaiHriUni!:>il 

Organiz.ing (;iunpa!gns 

AFI:.·ql.O ba:Wycrs Copnlinaling 

cimuriiuee · 

No.vcmbet,2i)P3:. 

(.B.)List. any; formal spetclJes-you have-deli.Vered daring thetos.t·fiye y(mJ'S and pl"O'Videthe 

Committee.With eopi~ .ofthose speeches. l.'elevant to the positi!ll:i'fonvhleb ytio have J:lee'-

nomtnatecpnelude ant testimoJ1y ~~~ Congt.ess. or !\JV,qtbjlr tegisfative or adJJ:iiltjl;tz:l\tiVe 

bl)dYrThese f~ems.cao be pr.ov~ded el.~nicallyvia e-Iii:11I QJ.'other digit:Bl.format. 

Tes~imony (confirmation hea)'ing) Washin~,D~C.. . S~te HomOTa!lll ~~\lilty and 

GovemllJCntaJ MfairS Corol11if,tee 

Sociecy ofFt11iendlaborJlilt! 

EiiiployeeRelliijotif P~\ll)i(ls 

(''SFLEln'"), Cty~l!ll cifv.VA 

.Apn119,i014: 

(q List )111 s'peiches:.ani:Uestimonyyotl have deiiv~~ ln'tjle p~t't~Y,ears.:exc~ptfor 

tbose the text of whil:h. you are-.pi:ovidllig til th.e Cj)lnmitte~. 

Ro!e·ofCo1lective·Batgaining iil 

P.role~tii;tg AU ~ualllied Judicial 

IndepeJll!eliae · 

·Remnrlrs 

Washington.D.C' 

.Fed!iral Adtnim,trattvo law Judges: Cpi)Jm:~nce. 

Washington, D;G~ 

:;ertatei·Ionlclimd: SllCUrlty and 

_Governm~ntalA!l'difs·Coimnitte&. 

Amcric~Fcderation of (fuvcmm~nL 

Elilplayees,:R:eno,Ny·· 

&~1~ty·ot1'¢el'iil L;iillor Bi>.d 

Emj>loyc.cr RelatiOJis'Prefi:ssioruils 

cf~F4ERP/, G.l}'s!al Ci4' •. V.A 

8. CrlminaiHistoty· 

DatiCs)of,Sbeeeli. 

Apn111,.2Q09 

Aug:iist.2009. 

· Apn122, 201Q 

• .l{avc y~~ ~~iss~~ a s~cm·;·c:illlliOII: ot1iC)cettn~ppear·mco'uit.in acr#riinal pmoee~~g,118ojlll!t y,ou? Q>xc:JUd• o!lations: Jnvolvmlr,traffic infracU.Ollll ~vh<:l:e 1Jie fine was l01!S·lhlllf $300 .Od dtd not iilolude 11feohbl or dru~~)No ·· · ···· ., · 

• Have ~u been ;uresli>4 by any po~qe offi:~. iiheriff,.mmliaj.in: ahy.oU1et lY.J?e ofiaw eufo~emontC~fSciW.'I No . 

• ' Rave )'~:?U b.ecn cli!i!:g<:d, cairv:ici~!i; or aent<>nl:i:d of nrlme. in nny eourt'l Joj'Q 

8 
106 

-• Have you bee1i'or'8re you otim:ntly iJn j)rol:iati¢n ot )lnro[<>?,No 

A:re you-currently on:tri'il! or awaillhg ~trial OIEQfutrinUI ~hs~g<:!!'l No 

:•· !<)·your'kiiowle!]:ge; baVI> ymLe;•\Or ~lillie subj,ect_ort~et ll{dederal, ~tqte:Qf lo.cal crimin!ll i~v~ti:ga\iQil? 

No 

Ihhe a~i!r. to au.;v ofthe.questions_~bov.e.ls y~, .Pl~se answer :t]Je q~e~tio~ l>:e'o~ to_r· tmch·crimbtaleve~.(i:ltation; aJTCl!t,: mve~.tig!'ti~n, et;c.11f.tlie event~~-an lnY¢!1tlgattoll, 

. .;v)lere the qu¢5tio*· below as~- for ._hlfoi'lilil'tiiu1 abOut tite offens~ j>lellse ·offednfbrmation 

about the offense -onder investigation (if.Jtnl!wn-); NA 

a:. .-Is ihia ·an estiinhte (Yes/No)': 

B) Dc:iorlptioh·Of'1:11'e s~itrc nature oflhe.o~Sii:' 

.q Didtbcoffcns¢-ihl!dl\!l~cllll}' .of,the folil!Win&? . . . I} Driinesiio ,liol.,ncli ota·r.iimc Of~jorence{ruch·as'flilttuy or assatilt;agrunSJ:~nllr i:bi[d, tlependent. 

cohabitllilt.,. spouse. fo11ner·spo11se,. w ~omeonewltll w}ronl yoJJ'h~re a chlld •in ·commoti: )'es r·No 

·2)' Fiiiarms or ejqJloai.vc.,; Yea/No 

.'}j, ~cobol oi: dnigs: Yes /'No 

D) Location 'li'liere the offense.ocoilrtcd:(oity; <:otfu,ty, slaW; zip Code_, country): 

Hl Were:you arrested, imnllnOned, cited ordid.you·recCi'"' alickefla:.a.pJ5.oaras a~t(lfthiil:ciffCri~e by" any 

pa)i<:e-offioer, sluirlff.; 11UITSJieJ'OriUiy othoF J:,<pc of lc.W ~on:c=~ offiCial~· Ye~,/ No 

Jl. -Nam<> of the liiW eilfmeement a!!CJi:cl' l)lat -~jn"~dlci(e'd/$umnioned yo\): 

2~ Locnliori of the Jaw·enforcemem ageiiey (oily, eoruilr· state,ifp cotle, ~:<n,intry): 

F). Alril'!i:sult.aftliis offeriscwer<:'yoochurg¢<1; on,nvictcll; ciutently !!Wllilingtiilll,<Bitd!ororc!ered to·appe!Jl' in. 

cmht iri n -orilnfual p~cding'og!'ilist yoU: ~ea fNo 

'I) If yes,c.proylde tho,\, nli)lle:ofthe ,~lll\ an:il' 1!1e location dfthe CO!lr! (city. :C.(lim~y. ·.slotC, zip· co de, 

cpuntry): · 

l}. Jf~R.P.fO)!ia .. oillhlo C~S bioUI)llf againsl )'Ou-for1lqs offense; and'tlfu outixJm<S a'f'O:acb.<thril'ged· 

oft'¢nse (B1lQh ..,, foun<J: guilty, f~I,IIId not;ID!ilty.,. chl!l'gc·dtopjlr;d (\J'"-ctille' ~," ole)~ lfj.OU. \Vere found 

B!.liliy ofpt !!!leaded ~]ty tp i!Je$$c;t'o!rensc;,fi;lt sCR.arntely bolh, the original charge aucl.!he Jesser 

offel).l¢::, 

:3) If no, pro,..Jde. expl81llldpn: 

G) WelJ'yon senU.<iccd·ns.·n~C$illtof\tfus offc!ll;e: YnH'N~ 

Hl 1'JUVidc ~t.dcs<>ription.ofthe ~enten~(: 

I) w..ro ypu~n(enced tl:l'iiJlPds!m,men~ for:a funn ~>roe"4llliP;>l!<>'y~'!l' V.iH N<~ 

!)_ Were you1ncarcerilied 'ns a n\sul~ Of'fbat.SC!!Ionoe :fb;.notle .. 'tbnn on,c-yenrr )!es 1 No: 

K) lfth•-COIIViiition· ce:~u{ted in 1mpiioon1Iient, Jlrovidc Q.e. ~ales tjiat you actul!l!y ~ere incaro~rated: 
107 

L) :rfconvict\!ln r<:sw~ in prnbatiiin or parele..provide.thcrdat~ofp(<Jb'otlon otp~le: 

. M) Are Y9il C\IIIOJ?IiY OiJ trlal,· awo.itlrig·a ili8),'Qf a:w8ltingscn~n¢ihg~Qn,<liiniinal c\jacyis f<,i; Uii~ .off¢1i~e'. Ye• I 

~0 . . 

N;J Provide eliplin~n: . 

9, · Civil Litiga'tion and Adntinisfrative or.LegfslativeProceedings 

(A)S,ince (and 'including) yooi"lllth birtbday,_have.you been a party to any publkr~llrd 

civil wutt·actJon OJ' ad~i,Ui~katlv.e OJ' Jegis)~tiv!) protee~ii!!g Ofa(ly~ind tlJ,IIt..J'¢SUJted ih;(l) 

~ find\~g oi'WJ.'ongdolrig' agaiJist 'you,,.o_r (2-) a setflem$1fngre:emen.t tor you; or•some other 

perso11 ·cir ~tit)',_ to make a pnyment to.8ettle allegations against.you, orfol' yon t9·,take, or 

refl'ain_.fl'om ial,.:lng,.soJile:actlon. lJo.NOTinclude,smt.Ul.claifus pro-ceedings. No 

(B}~ adslitionJo tbQse'listed<lbov:f;l, bave_:r!\U or any bJI.Smess Qtwhich)•ou were• an offiter, 

director or owner ever been invol-ved a' a p:i.rty ofiqt~est ~~~ l!iJy ~i:ln!i11il!tra_tive ·llgenty 

pro.;eeding w ciVil litigation? ';No. Pleas:e:fdentify and provide detillb-for any lJI"oc:eedlngs or 

dvi! !itigalion tJtatinv,olye.;actions.tllki:!J ot-om!~:by you, or alleged tO bave been ~a ken or 

·omitted by you, w.Jiile·sertblg:in your offi¢ial eapaclt;y;N~ · · 

·N;~-,~~n~xnt:~ing ·~r' .. .-~--­

~nfl>r6Ceedlng 

·.",·:· · .. .. ·:-· . ~· ., ' 

(q.:trpr respuii~f,lS ti>.'tlie;p.r•wious queslion,~;~Ieaallidenfiry and provide details ;or ally 

proceedings. ou~lvlllitiglltlc!n .that inV.olve actions tak.,n or o~i.fted by you, or alleg~ .to. 

ltav4i.J>een.tal';en (lr orriitt.ed'by:you, ~bile serving in your official ~padty, N~ · 

10. Breach ofProfessioriai Ethitil 

·(A) H:ave jPU, evl)r beeJJ..df!ltiplinedor cited for. a:br.ea~li of etliics or uliprof~siouai 

· oo_n,h,u:t:.by,, or f!een._the. subje.ct·of a· complaintJO,.any co. uri, ·administrative ~tgency; 

10 
108 

prof~s.sh,)~nl, IUlSO~atjon~ disciplinary. '!!llmmitte.e;. Qr-ollt\!1' jJrl;if;e~fonlll.gro~ilY 

:Exclude casl!s. 'artdpr-ocwJ,i~,~gs lQrll!l.!JYJ~ ll!n 

(B)'fl.:I!Ye you ~er ~e~ fired from llJoJJo:ql.iit • jof:! after· beiri~.told f6JI would ;bt,fired,left' a job bymutwil· agreement followipg !;barges ol'-all~~!!atlo~ of.·I!Pseon¢ud, l!ifii a 'jo)l·by 

mui!J.Qiagr.eeniett fl!~oWfug:notjce ofllnsttmfactoi.fpet:fqrntariut.or· reellive,d .a ~it 

·warning, beeitoffidaUy rep'rlmandOO,.suspended, or ll~eiplio~ for 'Qiisconduct in tile 

worltpl~ce, such as v;i!!!!',tiDn of a sec!lruy policy? l'!{o 

u .. Ta:x: Compliance 

·(This}~for!nati.on win ~o~ be:pnbilshedi!i .. the rec~td oftllelu~srmgon your'nomination, 

bqt .ltwDI·f!e,retilfiJet;l ip. tl.te Cilm~fttilc s tdeli :and wfli be a~ailabl~·forpublic iBspeetiOtt;). 

REDACTED 
109 

!REDACTED 

13. Lobtiyillg 

'))a the.past ten y~ts, baveY.OU registered- a~ a.l(!bbyist:? ll~o;.pleaie in.dieat~ ~~.state, 

federaii·or lotli) bOdir&'ll'ifh·eWI#~ ;v.ou have reg~ered (e,g ..• Hot~e, Senat~ Calilomia 

Secteblry ofS~te-.); .No · 

.H .. ,Outside P~sifions 
110 

X See OGEFon'!1278, (If; fqryour no~jpafi.p):t; yqti h!rVecqlllpl¢ted'lln OGE Fomr 278 

Eii:CQ!ltive ~ranch Personnel Public. Ffnii11Cia1 Di~clo:rure R11p.ort, you m~y q\leckthe 15ox: bete·to 

complete this m:ction and then proceed to the neXt s.e¢ti(m.:) . . 

Forth~ pteceding ten caJendln•·y'ears and the cnrrenf:calendaq•eJ!r, r.ep.ort :mypositiQns 

:held, \yltether·rompCll$~t~ o~not. Positions ~nl!lude butare.not ll!itited .til'1lios.e1Jfan 

orne&, ~fli'ect:or, ttW!tee,.gent~i:lllpanner,propdetoJ'):represen:tative. employee,. or 

m:intlfllnt·.f>f·~y c~rporation, firm;,panp.ersl(ip, '9r o~\lr·bn~.ness entei;pri~e or·-..n;,(nonprofit organiZa.tlon or. ech1a1tional i.nstitut.lim. ~posi~ions ~itf:l religiqils; social, 

fJ;ater.nal1 or,politic.al enf;ines an.U thlllo solely ufan iu~n,.,rart nature. 

~· .. 

·p-osltion:Held 

::e'l@lonRoid. · ·' From 

{i!ioiilhljeiii) 

15 •. Agre-:me~ds or Arrangements 

X See oGE Form 2'18. (if; for your nnmmatio~ you·haiJe i:91l)pJiited all QGE Fotrh ~78 Ex:ec~tive. Bnmcll._Perseilncl Public Fina~cial Dj$cloirure.Rept:il't, you may -ch~c1c tl;te box hererto· 

complete this section artd 'tbM. proceat to. then~,q sec~ an.) 

~s·or the dnilH)f.fiiing.ytinJ· C?GE Form ~78, repor.t yc)ur .agreerq~:ta !)r< arrangemenb for.: 

W continuing JJ*rti~ipllUOn io an ~p!oy~e be.n.efit pla!) (~.g, p~sion, 40lk, deretted 

coinpensiitlon)l·(2;) ·ciltitintia.tiori of payrtteJ!t by a fonner. employer (Including scverun.ee 

Pa)'inent~)i· (3) lettves ofabsen~j!; .and· (4)f.i$.r~ employmeJJ.t• . 
111 

Ptoyif;le IDfo~tion r~rding any agreemems or arra-.~~C)Jlts you·fl!lVe:.~onc&ll.fng ():) 

·fu:tnrn~ploY.IJl.llnt; (!!) a Jeav!l Qf'lib!en¢e ·tfurmg Y,Olll' p~rloii pf,Gov.~11J.D!e.!lt.~c:e; (3) 

continuation-of paym~ts b;y~ fopi:iei"\lin 1:1~oyer other thml the United States ·Goyernment~ 

and. (4) connnuing,parfidP.adon In AD eniplily;ee wd(ari. or bel\etitplan ~aintained by,a . 

former. employer .o.iher than United Stat~.f.Govetpm~t retlrement.bep:efitS. · 

l6'.Additional Financial :Oata 

Allinfo.lj)tatlon r~queSted 'tinder titfs. ~CI!diug Jl.'lust<be: provided for. youtieJf; yo1tr spouse, 

and y~~r d~epdents• {Tid~ bi~11tlillltiiln Will notbe pubti5bed-i~_ttbe r~rd ofthe~~lng 

OU'Y,OUr ilO~B~On, blit:lt;'Will bU~Ifil!td Ut ~ ·C':IiUJ,mfttee;s·fiJa·and Will Jjf,i :~J\'IiilaliJefor 

pulil!e it!Spettio.m) . · · · · · · · 

REDACTED 
REDACTED 

~IGNf\'.TtiR;EAN:D 

D~TE 

I)Ierel!y state tli~H have r!l&d thfor~omg Sta~at. ~._ BlDgrapbitlillaiid Fbraacihl lnfoitilation,and tha:t,theili

pl'ov·d~·thenin.iS, to the.·best,of m.y l¢ow)ed~e, cup-eat, aceti'rate, anrfcmitplete:; 

di\COcPZ_ ;\vt".{"~! 1 WJI ~ 24 
113 

UNITED STATES OFFICE GF 

GOVERNMENT ETHICS ----·* 

The Honorable Roll Johnson 

Chainnan 

Committee on Homeland Security 

and Governmental Affairs 

United.States Senate 

Washington, DC 205 W 

DearMr. :chainnan: 

REDACTED 

June 26, 2018 

In accordance with the Ethics ln Government Act ofl978, r enclose aoopy of the 

financial.disc]osure report filed by Julia Akins (;lark, who has been nbrninated by 

PreSident TtUIT\p for the position of Member, Merit Systems Protection Board. 

We have. reviewed the report and have obtained advice. from the agency concerning ~ny 

possible·CQnflict in light of its functions and'the nomine~"'s proposed duties. Also e11:closed iS an. 

ethics agreement outlining the actions thatthe nominee will undertake to avold.conflict~ of 

interest. Unless a date for compHance iS ihdJcati:d in the ethics.agreement, the nominee must 

fully comply within three months of confirmation with 11ny action specified in the. ethics 

agreement. 

Based thereon, we believe that ihis nominee is in compliance with applicable laws and 

regulations governing conflicts of interest. 

Enclo~ur•s REDACTED 

Sincerely, 

DAVID 

APOL 

David J. Apol 

tJi.gitafl:Y -3igpcd b-y DAVID 

APOL 

ooie: iou:i:i'M.26 18:28:45 

·04'00' 

Acting Director· and General Counsel 

1201 NEWYORR AYENW·SUITE 500·WASHING1'0N DC•20005 * * * * 
114 

Trey!!!' Mason-Gaie 

Alternate Designated Ageitcy Ethics Official 

U;S. Merit Systems Pro~ction Board 

1615MStNW 

Washington, DC 2<>419 

Dear Mr. Mason-Gale: 

M:ayn20l8 

The putpos~ of this letter is to desCribe thestepsthatl willtak:e to avoid. any actual or 

apparent conflict of interest in the event that I am confirmed for the position of Member of the 

Merit Systems Protection Boilrd. 

As ,:equired by 18 U,S.C. § 208(a),lwill not participate peiSon!!llY and substantially in 

any particular matter in which lknow that I have a financial interest directly and predictabLy 

affected by the matter, orin wbiehl know that a. person whoSe interests are ill:lputt:d to ~ has a 

financial.interest directly and predictably affected by the matter, Uilless lfrrst obtain a written 

waiver, pursuant to 18 U.s,c, § 208(b}(l); ot qimlify for a regulatory ex.emption, putsqarit to 

18 U.S.C. ~ 20S(b)(2J~ I understand that the interests of the following persons are imputed to 

nie: any spouse or ininor child of!1lin(l; arty generalpartiler of a partQer8hip in which I am a 

limited or gentr!ll partner; any organization in which I serve as officer, director, tru&tee, general 

partner or employee; and any person or organization with WhiCh I am negotiating <Jr lJ!I:Vt an 

IUTIUJgement ooncerning prospecti~ employment. 

UP<Jn oonfirmation,.l will resign from J;):ly position as AssistantSe<:retl!lY<>f the 

:&lge.nioor Citizens Association Of Bethesda, MatylaniL Fot a period of one year after my 

resignation, I Will not panicipate personally and ~ubstamially in any p811icular matter involving 

specific parties in. which I know the Edgemoor Citizeits Associatioti is a party or represent~ a 

party, unless I am (U'SC authorized tO participate, pursuant to.$ C.P.R. § 2635 .502(d). 

My spouse is the General Colllisel of the United Food and Commercial. Workers 

.International Union (UFCW), a position for which he receives a fixed annu.ri.l.salary. For.as tong as my ilp<luse continues to work for UFCW, 1 wiUnot p¢icipate personally ~d substantially .fu 

any particular matter that to my knowledge has a direct and predictable effect on my spouse's 

compensation ot employment With UFCW, unless I first obtain. a written waiver:. Pttrsuailt to 

18 U.S.C. ~ 208(b)(l); II\Iso will not participate persomilly and substantially ill. any particular 

matter involving specific J?arties in which lknow UFCW iS a party or represents a party, un}e5s I 

am frrst authorized to participa~, pursuant to 5 C.F .R. § 2635,501(11), .In add{ti<)n, my sl'<lme 

has agreed not to communicate directly with the Merlt Systems. Protection Board on behalf of 

UFCW during my appointment to the position ofMembet. 
115 

lf I hJtvtl a managed account or otherwise \ISe the .services of lin, lnvestmentprofessional 

during my appointment, I Will ensure that the accourtt manager or investmentprofessional 

obtains ·my prior approvlll on a ca~e-by-case basiS for the purc~ase of any ass~ other th8n.cash, 

cash equivlilcilts, inVestment funds that qualify for the exemption at5 C.F.R. § 2640.201(a), 

obligation.s o:fU"le J]nil:(:d States, oqriunicipalbQnds. 

I understand that as liD. appointee (will be.requir~.tosign the EthiC$ Pledge (Exec;. 

Order No. 13770) and thatl win be bound by tkrequirements and restrictions therein:in 

addition to the coriunitmeilts I have made in this ethics agreement, 

I wHI meet in person with you during the firSt week of my service iri the position of 

Board Member .in allier to coroplete the untial ethiCs brlefing required lJlider 5 C.P.R. § . 

2638.305, Within 90 days of my confirmation, I wlll document my compliance with this ethics 

agreement by notifying you in writing when I have compte~ the steps described in this ethics 

agreement. 

I have been advised that this ethics agreement will be posted publicly, consistent with 

5 U.S.C. § 552, on the website of the U.S .. Q:tfice Of Government Eihics with ethics agr~nts 

ofothet Pre5idential nonilitees who tlle public financial disclosure-i'~ports. 

~ Julia Akins Clark 
116 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-hearing Questionnaire 

For the Nomination of Julia Akins Clark to be 

Member, Merit Systems Protection Board 

I. Nomination Process and Conflicts of Interest 

1. Did the President give you specific reasons why he nominated you to be a Member of the 

Merit Systems Protection Board (MSPB)? 

No. 

2. Were any conditions, expressed or implied, attached to your nomination? If so, please 

explain. 

No. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as a Member of the MSPB? If so, what are they, and to whom were 

the commitments made? 

No. 

4. Are you aware of any business relationship, dealing, or financial transaction that could 

result in a possible conflict of interest for you or the appearance of a conflict of interest? 

If so, please explain what procedures you will use to recuse yourself or otherwise 

address the conflict. And if you will recuse yourself, explain how you will ensure your 

responsibilities are not affected by your recusal. 

I am not aware of any such possible conflict, or appearance of a conflict of interest. I will 

seek advice from and strictly adhere to guidance provided by the MSPB's Designated 

Ethics Officer ("DAEO") regarding any recusal and processes to follow to ensure that my 

responsibilities are not affected by any recusal. 

II. Background of the Nominee 

5. What specific background and experience affirmatively qualify you to be a Member of 

MSPB? 

For the past 9 years I have served as a senior official in an independent agency charged 

with investigating, making merit determinations and, in appropriate cases, enforcing 

federal laws prohibiting federal employers and labor organizations from committing 

unfair labor practices ("ULP"). Both my position as FLRA General Counsel and as 

Senate Homeland Security and Governmental Affairs Committee Page I 
117 

Office of Compliance ("OOC") Deputy General Counsel required me to execute these 

duties fairly, impartially and consistent with applicable law. 

6. What experience, if any, do you have in deciding cases, resolving disputes, or 

performing the other duties required in serving on the MSPB? 

As FLRA General Counsel, I was responsible for merit determinations in ULP cases. In 

addition, the Office of the General Counsel ("OGC") under my leadership developed 

extensive on-line information and educational materials and provided in-person training 

to labor organization and agency management representatives nationwide. 

7. Please describe: 

a. Your leadership and management style. 

My leadership and management style is to lead by example with respect to work ethic, 

mission-focus, and personal integrity. I begin work with a new team by developing an 

in-depth understanding of preexisting work processes and procedures, evaluating 

available resources and needs, and soliciting input from the team regarding ways to 

improve work processes and more efficiently deploy resources. I engage the team 

frequently to ensure that I am aware of and can proactively address workplace issues. If I 

believe adjustments in work processes, procedures, assignments etc. may be required, I 

discuss my concerns and ideas with the team to get their input before making a final 

decision. I do my best to treat each employee with dignity and respect and to hold them 

accountable for performing their assigned work consistent with clear and reasonable 

expectations. 

b. Your experience managing personneL 

As FLRA General Counsel, I was responsible for the supervision of the OGC staff, 

including at headquarters and regional offices. 

c. What is the largest number of people that have worked under you? 

Approximately 70. 

III. Role ofa Member, MSPB 

8. The Civil Service Reform Act requires that individuals appointed to the MSPB 

"demonstrate[] [the] ability, background, training, or experience" necessary to "carry out 

functions of the Board." 1 Please describe how your abilities, background, training, and 

experience qualify you for the position of a Member of the MSPB. 

I received my initial on-the-job legal training as an Honors Program Trial Attorney at the 

United States Department of Justice. I subsequently represented the workplace interests 

I 5 U.S. C.§ )2QJ. 

Senate Homeland Security and Governmental Affairs Committee Page 2 
118 

of federal career civil service employees for more than twenty years. Since August 2009, 

I have served as the General Counsel and Deputy General Counsel in two independent 

agencies the FLRA and the OOC, respectively. Both agencies are tasked with 

providing, inter alia, independent, fair and impartial investigative, prosecution, 

adjudication and dispute resolution services to federal agencies, labor organizations and 

covered employees. 

9. In your opinion, what is the role of the MSPB? What is the role of members in carrying 

out the statutory objectives of the MSPB? 

5 U.S.C. § 1204 sets forth MSPB's main responsibilities to (I) adjudicate matters within 

its jurisdiction; (2) conduct special studies relating to the civil service and to other merit 

systems in the executive branch; and (3) review significant rules and regulations of the 

Office of Personnel Management (OPM). MSPB is not authorized to develop or 

implement policy or programs. MSPB Members have no management role unless so 

delegated by the Chairman. Instead, a Member's role is to adjudicate matters within the 

MSPB's jurisdiction. 

10. MSPB's mission is to "protect the Merit System Principles and promote an effective 

Federal workforce free of Prohibited Personnel Practices." How do you envision 

fulfilling MSPB's mission both day-to-day, and long-term? 

I envision fulling the MSPB mission by making case decisions fairly, impartially, and 

consistent with applicable law. I believe written case decisions should provide clear 

guidance to employees and supervisors, thereby providing long term stability in agency 

employee relations. 

11. What do you anticipate being the greatest challenge you would face as a Member of the 

MSPB, and how would you seek to prepare for and address those challenges? 

The greatest challenge facing the MSPB is expeditiously deciding the backlog of 1,300 

cases that have accumulated due to a lack of quorum. I will work collaboratively with 

the Chairman, Vice Chairman, and MSPB staff to develop an action plan to work the 

backlogged cases and decide them as expeditiously as possible. 

12. What do you helieve to be the top challenges facing the federal workforce today? What 

steps do you plan to take to address these challenges, if confirmed as a Member? Please 

explain. 

This question calls for an assessment of federal personnel policy that is beyond the scope 

of the MSPB's mission. 

Senate Homeland Security and Governmental Affairs Committee Page 3 
119 

13. Do you believe you will review and adjudicate cases that come before you with good 

judgment and impartiality? Please explain, citing examples of prior work or experience 

that could bear on your abilities, if applicable. 

I am confident that I can review and adjudicate cases that come before the MSPB with 

good judgment and impartiality based on my experience deciding the merits ofULP 

cases as the FLRA General Counsel. 

IV. Policy Questions 

14. What role do you think alternative dispute resolution options, including the Mediation 

Appeals Program, should play in the MSPB adjudication and enforcement process? 

The Mediation Appeals Program (MAP) began as a pilot program in two regional offices 

in 2002, expanded nationwide in 2005, and has grown since 2007. All MAP mediators 

are Board employees who mediate cases do so as a collateral duty after training and 

certification. MAP is a confidential process in which the administrative judge who is 

assigned to hear the case is not involved in the mediation, and both parties must agree to 

its use before a mediator will be appointed. Over the years, MAP has generally 

maintained about a 60% settlement rate, but even if a case does not settle in MAP, the 

mediation process can assist the parties to focus the adjudication process on matters that 

are genuinely in dispute when returned to the adjudicating AJ. 

15. MSPB is statutorily responsible for conducting oversight of the Office of Personnel 

Management's significant actions. How will you coordinate with OPM to ensure that 

significant actions conform to the merit systems principles outlined in 5 U.S.C. § 2301? 

As required by Title 5 of the U.S. Code, each MSPB Annual Report provides a summary 

and analysis of those OPM actions that MSPB considers most significant. Title 5 does 

not provide for any further MSPB coordination or engagement with OPM regarding a 

significant action. However, policymakers or OPM can independently act on MSPB's 

analysis. For example, MSPB's 2008 review ofOPM significant action noted that OPM 

review of conversions of political appointees was limited to positions in the competitive 

service, and OPM subsequently expanded its review to include positions in the Title 5 

excepted service. 

Senate Homeland Security and Governmental Affairs Committee Page4 
120 

16. MSPB previously highlighted the need to examine the prevalence and forms of reprisal 

for protected activity, particularly for whistleblowing.2 Do you view reprisal for 

whistleblowing as a significant challenge facing the federal workforce? Why or why 

not? 

I am not privy to agency data on the prevalence and forms of alleged whistleblowing 

reprisals. But whistle blowers need to be taken seriously and have their claims 

investigated by agencies and/or OSC and adjudicated by MSPB. 

17. In your opinion, is the underutilization of probationary periods a critical issue? If 

confirmed as a Member ofMSPB, what steps would you take to ensure that managers 

better utilize probationary periods? 

The utilization of probationary periods for workforce competencies is an agency 

management or OPM policy issue and not within the jurisdiction of the MSPB. 

However, MSPB has conducted research on Federal agencies' use of probationary 

periods. For example, MSPB recently estimated that agencies take formal action on 

approximately one-half of one percent of new supervisors for failing supervisory 

probation. 

18. How do you view the role of information technology at MSPB as it relates to both dayto-day business and the overall mission objectives to uphold merit systems principles? 

MSPB 's Strategic Plan highlights the importance of improving and maintaining 

information technology (IT) to support its mission. More specifically, MSPB is in the 

process of modernizing its core business applications (i.e., case management, document 

management, and document assembly) to achieve electronic adjudication and migrate its 

infrastructure to the cloud. MSPB is developing requirements for its new applications, 

and expects to complete this transition in FY 2020. MSPB's existing legacy business 

applications are nearing end-of-life. 

MSPB implemented mandatory e-filing for agencies and attorney representatives in two 

regional offices in 2012. For the past two years, the Board's Denver Field Office has 

utilized 100% electronic case files. Agency-wide, in FY 2017, 61% of initial appeals and 

82% of pleadings were filed electronically. Moving to 100% electronic adjudication will 

allow MSPB to process cases more efficiently and improve service to our customers. In 

addition, this supports MSPB's efforts to comply with Government-wide requirements for 

IT security and electronic records management, and reduces costs. 

2 Merit Systems Protection Board, MSPB Research Agenda 2015-2018 (Feb. 2015), available at 

https:l/www .mspb.gov /rnspbsearch/viewdocs.aspx?docnumbeF 1140540&version~ 1145 045&application= ACROB 

AT. 

Senate Homeland Security and Governmental Affairs Committee Page5 
121 

19. What role do you think merit systems studies, published by MSPB, play in ensuring a 

competent and efficient federal workforce? 

The prospective nature of merit system studies, in conjunction with MSPB's adjudication 

of individual appeals and its authority to review human resources (HR) regulations, 

enables MSPB to fulfill its role as guardian of Federal merit systems and ensure the 

workforce is managed in accordance with the merit system principles and free from 

prohibited personnel practices. As an independent agency with a bipartisan Board, 

MSPB's merit system studies provide an evidence-based, objective perspective on how 

the Federal workforce is being managed. MSPB's broad authority enables it to examine 

any civil service law, policy, or practice that materially affects the competency, 

efficiency, or integrity of the Federal workforce. Because MSPB reports are submitted 

directly to the President and Congress, the studies function serves as a check on 

management abuses, and also informs policy makers, supervisors and practitioners about 

potential improvements in the law and practice. 

a. What steps would you take to ensure that MSPB's external reports address critical 

federal workforce issues? 

The members of the MSPB periodically set out a research agenda for issues to be 

addressed in reports. The last five-year research agenda was adopted in 2013, so the new 

Board members will have an opportunity to set a new research agenda. 

b. What, if any, coordination do you believe should occur between MSPB and OPM to 

address federal workforce issues raised by MPSB studies? 

The Civil Service Reform Act gave MSPB and OPM distinct responsibilities. OPM's 

role is to execute, administer, and enforce personnel management rules and regulations 

and serve as the President's agent for HR management. MSPB, in contrast, provides 

independent oversight of the Federal Government's adherence to merit principles and 

freedom from prohibited personnel practices. In that capacity, it reviews how OPM 

regulations, policies, and actions affect the civil service and reports to Congress and the 

President. MSPB can share information about Federal workforce issues from its merit 

system studies and reviews with OPM. However, to preserve its oversight and 

adjudicatory independence, MSPB does not coordinate with OPM on formulating or 

implementing workforce policies and practices. 

20. According to MSPB's Fiscal Year 2017 annual report, 22 percent of MSPB employees, 

including 25 percent of administrative judges, are eligible to retire in the next two years. 

What steps will you take to ensure that MSPB conducts its own succession planning, so 

that you are able to execute your statutory duties? 

I understand that the present leadership of the Board has a continuity of operations 

(COOP) plan that addresses such issues. The new Chairman will have an opportunity to 

review and revise as he sees fit. 

Senate Homeland Security and Governmental Affairs Committee Page6 
122 

21. In March 2018, MSPB published an updated survey on sexual harassment in the federal 

workforce.3 In this survey, 20.9 percent of women in the federal workforce and 8.7 

percent of men experienced a type of sexual harassment in the two years preceding the 

survey.4 Only eight percent of these employees believed corrective action was taken 

against the individual who committed the harassment,Rossibly resulting in employees 

not using agency procedures to report the harassment. What do you believe is the role 

ofMSPB in ensuring accountability against harassers in the federal workplace and in 

ensuring employees can report harassment without reprisal? 

Ensuring accountability against workplace harassment belongs to individual departments 

and agencies or OPM. The Board adjudicates prohibited personnel practices, including 

cases in which claims of sexual harassment are raised. 

22. What steps can MSPB take to improve federal supervisors' knowledge and intra-agency 

support regarding disciplinary and removal processes? 

MSPB has no direct responsibility for intra-agency support regarding disciplinary and 

removal processes. MSPB provides information on these topics to supervisors and others 

involved in managing the Federal workforce, through publications, its website, and 

outreach. 

23. Protecting whistle blower confidentiality is of the utmost importance to this Committee. 

a. During your career how have you addressed whistleblower complaints? 

I strictly adhered to law and agency policy regarding whistle blower complaints and 

cooperated and instructed my subordinates to cooperate with any whistle blower 

investigation. 

b. How do you plan to implement policies within the MSPB to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

The MSPB website provides detailed information regarding the right of an individual to 

file a complaint under the Inspector General Act when the individual suspects that a 

member of the MSPD staff has committed fraud, waste, abuse, gross mismanagement or 

engaged in conduct that presents a substantial and specific danger to public health or 

safety involving MSPB programs or activities. 

The MSPB website also contains notice of the agency's compliance with its 

responsibilities under the NoFEAR Act. The No FEAR Act requires the agency to inform 

' Merit Systems Protection Board, Update on Sexual Harassment in the Federal Workforce (Mar. 20 18), 

available at https:/ /www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumbeF 1500639&version~ 1506232& 

application~ ACROBAT. 4 Id. at4. 5 ld at 8. 

Senate Homeland Security and Governmental Affairs Committee Page 7 
123 

MSPB employees, former employees, and applicants for employment with the MSPB of 

the rights and protections available under Federal antidiscrimination and whistleblower 

protection laws. 

All MSPB employees complete the NoFEAR training every two years. New employees 

are provided the training within two weeks of their start date. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

MSPB does not face retaliation? 

Yes 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? 

Yes 

V. Relations with Congress 

24. 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? 

Yes 

25. Do you agree without reservation to make any subordinate official or employee available 

to appear and testifY before, or provide information to, any duly constituted committee 

of Congress if you are confirmed? 

Yes 

26. Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents, communications, or any other agency material or information 

from any duly constituted committee of the Congress if you are confirmed? 

Yes 

VI. Assistance 

27. Are these answers your own? Have you consulted with MSPB or any other interested 

parties? If so, please indicate which entities. 

I consulted with Acting MSPB Chairman, Mark Robbins. 

Senate Homeland Security and Governmental Affairs Committee Page 8 
124 

Majority Supplemental Pre-hearing Questionnaire 

For the Nomination of Julia Akins Clark to be 

Member, Merit Systems Protection Board 

1. You hired Dennis Walsh in 2009 to be your Deputy General Counsel, one of your first 

official actions as the General Counsel (GC) at the U. S. Federal Labor Relations 

Authority (FLRA). A November 9, 2015 IG Report (OIG 1-516) indicated that while 

serving as the Philadelphia RD for the National Labor Relations Board, and preceding 

that while serving at the FLRA, Mr. Walsh was engaged in improper fundraising 

activities for the Peggy Browning Fund, leading to charges of pro-Union bias. That 

conflict of interest led to a 30-day suspension from his duties. Were you aware of his 

activities with the Peggy Browning Fund? 

I am not privy to this Report, however, based upon the above description I was not aware of 

the activities that led to Mr. Walsh's suspension. 

2. During your tenure as General Counsel at the FLRA, you increased the number of SES 

from 3 to 8, making 11.6% of the OGC component SES. During the same time, 30.8% of 

the Office of General Counsel (OGC) components were classified as supervisors. Do you 

believe these figures support governmental efficiency? Would you make similar staffing 

decisions at MSPB? Would you commit to reducing theSES and managerial footprint of 

the MSPB? 

I do not have access to data that would allow me to verify the question's representations 

regarding percentages of SES and supervisory employees. However, I would note that any 

such percentage would represent a snap shot in an FLRA rebuilding effort that was far from 

complete at the end of my tenure. I developed a succession and rebuilding plan, which 

permitted the OGC to restore the headquarters and regional offices to full functioning, after a 

40% staff reduction, based on an essentially flat budget. The plan involved development of 

experienced, high performing internal candidates for promotion to supervisory positions and 

hiring new agents at the entry level. I did not increase the number of SES or supervisory 

positions. I filled vacant SES and working supervisor positions with highly qualified internal 

candidates. While proposed by me, this plan was endorsed by all FLRA PAS officials and 

resulted in dramatic improvements in OGC performance, including timely case processing 

and delivery of information and educational resources and in-person training. 

The MSPB Chairman will be responsible for staffing decisions, however, once I fully 

understand the current MSPB staffing structure and resource needs, I will offer my opinions 

and advice to the extent the MSPB Chairman seeks it. 

Senate Homeland Security and Governmental Affairs Committee Page9 
125 

3. What restrictions may an agency reasonably place on the amount of official time union 

representatives may use in representing employees at the MSPB? 

The agency may restrict official time use consistent with the Federal Service Labor 

Management Relations Statute ("FSLMRS"), 5 U.S.C. § 7101 et. seq. and the applicable 

collective bargaining agreement or other bi-lateral agreement, if any. 

4. Should attorney fees be awarded to unions, when a union attorney represents a Federal 

employee before the MSPB but is also a salaried employee of the Union? 

I am aware that the Board has developed a body of case law providing the legal 

framework for the circumstances under which a prevailing party is entitled to attorneys' 

fees. To the best of my knowledge, there is no legal distinction between a union attorney 

and one retained from the private sector. 

5. Prior to serving as GC at the FLRA, you served as the GC for the IFPTE. Would you 

recuse yourself from any cases involving bargaining unit employees ofiFPTE? 

A recusal is legally required only if I was involved in the specific matter, or know an 

individual involved, to the extent that it might compromise my impartiality. 

6. When serving as a General Counsel, did you allow OGC staff to enter into settlement 

negotiations with the agencies/unions prior to determining whether any violation of the 

statute had occurred? If your answer is yes then do you think allowing settlement 

negotiations to go forward before a determination is made to be premature and was your 

primary goal to settle a case or to determine whether the law had been violated? 

During my time as General Counsel of the FLRA, the agency offered alternative dispute 

resolution (ADR) services to the parties. Utilization of the FLRA's ADR services was 

voluntary and offered the parties an opportunity to informally resolve their labor relations 

issues and concerns in a timely, economical and mutually beneficial fashion. 

7. Do you believe when an FLRA agent enters into settlement negotiations with a 

responding party, the responding party would logically believe the Agent believed there 

was a violation of the law- otherwise wouldn't the FLRA dismiss the charge? 

As stated above, the OGC's ADR program offered parties the opportunity to voluntarily 

accept FLRA agent-provided ADR services regarding ULP cases based upon full disclosure 

of pertinent, non-confidential information by the FLRA agent, including whether a merits 

decision had been made. 

Senate Homeland Security and Governmental Affairs Committee Page 10 
126 

Minority Supplemental Pre-hearing Questionnaire 

For the Nomination of Julia Akins Clark to be 

Member, Merit Systems Protection Board 

I. Nomination Process and Conflicts oflnterest 

1. Has the President or his staff asked you to sign a confidentiality or non-disclosure 

agreement? 

No 

2. Has the President or his staff asked you to pledge loyalty to the President or the 

Administration? 

No 

3. Have you ever represented a party in a matter before or involving the Merit Systems 

Protection Board (MSPB)? If so, please describe the matter(s) and the nature of the 

representation. 

No. 

II. Background of Nominee 

4. Do you seek out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? 

My management style is to engage directly with employees, seek their views and suggestions, 

treat them with dignity and respect and build, day-by-day, a work atmosphere oftrust and open 

communications. 

5. Please give examples of times in your career when you disagreed with your superiors and 

aggressively advocated your position. Were you ever successful? 

As General Counsel of a labor organization, I was responsible for providing legal guidance 

which from time-to-time was contrary to a course of action under consideration. In that position, 

I was fortunate to work for superiors who respected well-reasoned, well-researched, and wellsupported legal guidance. 

6. What would you consider your greatest successes as a leader? 

The following accomplishments relate to my tenure as the FLRA General Counsel: 

Improved timely Unfair Labor Practice (ULP) and Representation (REP) Case Processing: ULP 

timeliness improved from 50% to 70% of pending cases resolved within 120 day time target, 

and, as of FY 2016, 95% of all pending cases resolved within 240 days; REP timeliness 

Senate Homeland Security and Governmental Affairs Committee Page I 1 
127 

improved from 54% to 69% of election cases resolved within 120 day time target, and, as ofFY 

2016,95% of all REP cases resolved within 360 days. 

Improved Quality ULP Case Processing: Established a quality review program, including a 

regular audit of closed cases, to supplement on-going pending case supervision and appeals 

review of pending cases. 

FLRA Public Information and Training: Directed development of comprehensive, web-based 

information resources including, Updated ULP and REP Case Handling Manuals and Case Law 

Outlines; and Guidance on high-impact issues (Information Requests, Meetings, Furloughs, Unit 

Definitions and Exclusions, Reorganizations, Electronic Notice Posting); established quarterly 

Basic and Advanced Statutory Training sessions offered to labor and management 

representatives through OGC regional offices. 

HR University On-Line Training: Through an interagency agreement with the Department of 

Veterans Affair and the Department of Defense, I led the team that developed and published free 

interactive, self-paced training modules posted on the Office of Personnel Management's on-line 

HR University (www.hru.gov), which addressed core labor relations topics including, Agency 

and Union ULP, Duty and Scope of Bargaining, Unit Definitions and Exclusions, 

Reorganizations). 

Support for OMB Reduce the Footprint Initiative: Led interagency team, including the FLRA, 

Federal Mediation and Conciliation Service (FMCS), and the General Services Administration 

(GSA), in the development and delivery ofjoint labor-management training in support of the 

Office of Management and Budget's National Strategy for the Efficient Use of Real Property and 

Reduce the Footprint Policy, OMB Memorandum No. 2015-0. 

Improved FLRA Employee Satisfaction: As measured by the Employee Viewpoint Survey 

(EVS), administered annually by the Partnership for Public Service, FLRA employee satisfaction 

improved from last place among small agencies in 2008 to consistently among the top seven 

small agencies in every subsequent year. As the top-level supervisor for over 50% of the FLRA 

workforce, my leadership contributed significantly to this improvement. 

7. Do you have experience addressing instances of prohibited personnel practices (PPPs)? If so, 

please generally describe your experience. 

I do not have relevant experience. 

8. How will your experience help MSPB maintain MSPB's Merit System Principles (MSPs)? 

For the past 9 years, I have served as a senior official in an independent agency charged with 

investigating, making merit determinations and, in appropriate cases, enforcing federal laws 

prohibiting federal employers and labor organizations from committing ULPs. Both my position 

as FLRA General Counsel and as OOC Deputy General Counsel required me to execute these 

duties fairly, impartially and consistent with applicable law. In addition, as a PAS manager of 

dozens of employees, I adhered to and required my subordinates to adhere to the MSPB's MSPs. 

Senate Homeland Security and Governmental Affairs Committee Page 12 
128 

9. What lessons from your experience serving as General Counsel of the Federal Labor 

Relations Authority and Deputy General Counsel of the Congressional Office of Compliance 

will you bring with you to MSPB, if confirmed? 

These experiences taught me the importance of developing and supporting career staff, including 

succession planning, as well as the criticality of devoting time and resources to employee 

engagement, consensus-building and creating a shared vision regarding mission accomplishment 

among political and career employees. 

I 0. Please describe the extent to which your published writings on labor relations might inform 

your understanding of matters presented to MSPB. 

My published writing on labor relations do not relate to matters presented to the MSPB. 

III. Policy Questions 

1 I. Precedents, findings, recommendations and reviews of Office of Personnel Management 

(OPM) rules by the MSPB have potential to directly affect how employees are managed and 

how their appeals are decided. What role do you believe the MSPB should play in developing 

personnel policy? 

None. Personnel policy development is the role ofOPM, the administration and Congress, all of 

which have previously utilized data from Board studies and facts and situations from the Board's 

case law in the development of policy. 

I 2. The MSPB has the statutory responsibility to conduct objective, non-partisan studies that 

assess and evaluate Federal merit systems policies, operations, and practices. These studies 

are typically government-wide in scope and ensure that the workforce is managed in 

accordance with MSPs and is free from PPPs. What role do you believe MSPB's data 

collection should play in supporting personnel policy? 

As mentioned above, MSPB does not have a policy role concerning the Federal civil service. 

However, the data that is collected and analyzed in the Board's studies function is widely 

distributed and available to the policy makers, including OPM, the administration, Congress, and 

private sector/non-profit good government organizations. 

13. MSPB has been without a quorum of Board members since January 8, 2017. The lack of a 

quorum contributes to delays in issuing final decisions in petitions for review (PFRs) and 

other cases filed at headquarters (HQ) and releasing reports of merit systems studies. 

a. The MSPB currently estimates that it will take months or longer to process the 

inventory of cases at HQ and to publish merit systems studies reports once new 

Board members are nominated and confirmed. Please describe how you will 

effectively and promptly address MSPB's current backlog. 

Senate Homeland Security and Governmental Affairs Committee Page 13 
129 

I will work collaboratively with the Chairman, Vice Chairman, and MSPB staff to develop an 

action plan to work the backlogged cases and decide them as expeditiously as possible. 

b. Please describe how your previous work experience has prepared you to 

address the challenges in resolving MSPB's backlog. 

When I was appointed FLRA General Counsel, the OGC had a backlog of200 ULP complaint 

cases and 800 ULP appeal cases due to a prolonged vacancy in the General Counsel and Deputy 

General Counsel positions. 1 consulted with career staff who had developed a plan to clear the 

backlogged cases. Based on this recommendation I approved a plan, including time targets, 

which the FLRA OGC career staff executed. 

c. The MSPB Vice Chairman has voted on over 800 PFR cases which also await 

consideration by new Board members. lf confirmed, please describe how you 

will work with your colleagues to consider cases awaiting decisions. 

As stated above, I will work collaboratively with the Chairman, Vice Chairman, and MSPB staff 

to develop an action plan to work the backlogged cases and decide them as expeditiously as 

possible. 

d. Do you have experience with resolving backlogs such as the one faced by 

MSPB? If so, please describe your experience. 

As stated above, when I was appointed FLRA General Counsel, the OGC had a backlog of200 

ULP complaint cases and 800 ULP appeal cases due to a prolonged vacancy in the General 

Counsel and Deputy General Counsel positions. I consulted with career staff who had developed 

a plan to clear the backlogged cases. Based on this recommendation I approved a plan, including 

time targets, which the FLRA OGC career staff executed. 

e. Have you sought advice from any current or former MSPB employees about 

how to best address the current backlog? If so, please describe your 

consultations. 

I have been generally briefed by the current Acting Chairman on the size and scope ofthe 

backlog. Addressing it will be the top priority of the new Board and we will seek advice from 

the career and non-career staff on case processing prioritizations. 

14. MSPB functions as an independent, third-party adjudicatory authority for employee appeals 

of adverse actions (e.g., removals, suspensions for more than 14 days, and furloughs) and 

retirement decisions. 

a. Please describe your experience in developing adjudicatory processes and 

procedures, issuing subpoenas, calling witnesses and enforcing decisions. 

• I have not had the opportunity to develop adjudicatory processes. 

Senate Homeland Security and Governmental Affairs Committee Page 14 
130 

• In my position as a trial attorney at the Department of Justice, I assisted in 

the development and issuance of Civil Investigative Demands (a form of 

compulsory process). As private counsel, I also prepared and subpoenas 

for issuance in federal administrative proceedings. 

• I called and examined witnesses in both civil investigations and a federal 

trial as a Justice Department trial attorney. As private counsel I called and 

examined witnesses in administrative and arbitration hearings. 

• As FLRA General Counsel, I sought and received FLRA approval to seek 

enforcement in ULP cases. As OOC Deputy General Counsel, I have 

represented the OOC in seeking enforcement of OOC Board decisions in 

ULP cases. 

b. Please describe how your previous work experience has prepared you to 

execute and supervise these actions at MSPB. 

For the past 9 years I have served as a senior official in an independent agency 

charged with investigating, making merit determinations and, in appropriate cases, 

enforcing federal laws prohibiting federal employers and labor organizations from 

committing ULPs. Both my positions as FLRA General Counsel and as OOC 

Deputy General Counsel required me to execute these duties fairly, impartially and 

consistent with applicable law. 

15. How should Board members seek to safeguard their independence? 

The Board's independence is statutory, based in Title 5. Historically, the Board has maintained 

its independence and reputation by staying focused on its statutory responsibilities and not 

straying into policy discussions, which are beyond the Board's scope of authority. 

16. MSPB was given the authority and responsibility to review the rules, regulations, and 

significant actions ofOPM. Do you have any concerns about OPM's current rules, 

regulations or recent actions? If so, please describe those concerns. 

I have not had the opportunity to review OPM's current rules, regulations or recent actions nor 

do I have access to sufficient information, which would allow me to develop an opinion in 

response to this question. 

17. Do you believe MSPB has the resources it needs to meet current challenges? Please explain. 

I do not have sufficient information to develop an opinion regarding the adequacy of the MSPB's 

resources. 

18. How will you address the occurrence ofPPPs with internal employees ofMSPB? 

I understand there are already internal processes and guidelines for employees who allege a PPP 

within the agency. 

Senate Homeland Security and Governmental Affairs Committee Page 15 
131 

19. In some cases, complainants who may be better served by other government agencies such as 

the EEO or OSC seek assistance from the MSPB. 

a. How will you work to ensure that your staff effectively guides these 

complaints to the appropriate resources? 

Processes are already in place to determine appropriate Board jurisdiction over issues 

brought to it. 

b. Will you collaborate with other government agencies to minimize duplication? 

If so, please describe how you will work to achieve this objective. 

I understand MSPB has working relationships with OSC, EEOC, FLRA and OPM to 

address issues of jurisdiction where there may be overlap and possible duplication. 

Hatch Act 

20. What would you consider to be an appropriate penalty for a violation of the Hatch Act by a 

senior administration official? 

The Board lacks jurisdiction over alleged Hatch Act violations by senior administration officials. 

Whistleblower protections 

21. Please describe any previous experience-in the public or private sector-with handling 

whistle blower complaints, and what steps you took to ensure those individuals did not face 

retaliation and that their claims were thoroughly investigated? 

My sole experience occurred at the FLRA. I strictly adhered to law and agency policy regarding 

whistleblower complaints and cooperated and instructed my subordinates to cooperate with any 

whistleblower investigation. 

22. OSC has filed an amicus brief opposing an MSPB decision that ruled against a whistle blower 

alleging retaliation because the MSPB said the whistleblower's disclosure was motivated by 

"interpersonal squabbling." Do you believe that the motive of the whistle blower should be 

considered when examining retaliation claims? Please explain. 

It is my understanding that, under the whistleblowing statutes, while motive may be relevant to 

determining if an individual has a reasonable belief, a disclosure is not excluded from protection 

based on an individual's motive in making it. See 5 U.S.C. § 2302(f)(l) (codifying this rule in 

theWPEA). 

23. OSC filed three amicus briefs in 2017 opposing the MSPB's alleged attempts to impose 

higher procedural burdens on whistle blowers. Do you believe that whistle blowers should be 

subjected to higher procedural burdens before their cases are considered by administrative 

judges? Please explain. 

Senate Homeland Security and Governmental Affairs Committee Page 16 
132 

It is my understanding that these questions address issues that are presently pending before the 

Board for consideration and resolution in active cases. It would be inappropriate to address these 

whistleblowing issues now before I have had a chance to review the actual cases. 

24. OSC has also filed amicus briefs opposing the application of higher evidentiary burdens on 

whistleblowers. OSC has written that this burden "runs directly counter to Congress's intent 

in passing the WPEA's enhanced protections for federal whistleblowers." Do you believe 

that any whistleblowers should be subjected to higher evidentiary burdens? Please explain. 

It is my understanding that these questions address issues that are presently pending before the 

Board for consideration and resolution in active cases. It would be inappropriate to address these 

whistleblowing issues now before I have had a chance to review the actual cases. 

25. If confirmed, how will you ensure that whistleblower complaints are properly investigated? 

The Board lacks jurisdiction to investigate allegations of whistleblowing reprisal. That authority 

belongs to OSC. The Board adjudicates these claims. 

IV. Relations with Congress and the Public 

26. If confirmed, how will you make certain that you will respond in a timely manner to Member 

requests for information? 

Yes, consistent with the law and all applicable rules and regulations. 

27. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes, consistent with the law and all applicable rules and regulations. 

28. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? 

Yes, consistent with the law and all applicable rules and regulations. 

29. If confirmed, do you commit to take all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? 

Yes, consistent with the law and all applicable rules and regulations. 

30. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? 

Yes, consistent with the law and all applicable rules and regulations. 

Senate Homeland Seeurity and Governmental Affairs Committee Page 17 
133 

31. If confirmed, will you ensure that your staff will fully and promptly provide information and 

access to appropriate documents and officials in response to requests made by the 

Government Accountability Office (GAO) and the Congressional Research Service? 

Yes, consistent with the law and all applicable rules and regulations. 

32. If confirmed, will you agree to work with representatives from this Committee and the GAO 

to promptly implement recommendations for improving MSPB's opemtions and 

effectiveness? 

Yes, consistent with the law and all applicable rules and regulations. 

33. If confirmed, will you direct your staff to fully and promptly respond to Freedom of 

Information Act requests submitted by the American people? 

Yes, consistent with the law and all applicable rules and regulations. 

34. If confirmed, will you ensure that political appointees are not inappropriately involved in the 

review and release of Freedom oflnformation Act requests? 

Yes, consistent with the law and all applicable rules and regulations. 

Senate Homeland Security and Governmental Affairs Committee Page 18 
134 

VI. Assistance 

35. Are these answers your own? Have you consulted with MSPB or any other interested 

parties? If so, please indicate which entities. 

Yes. I consulted with Acting MSPB Chairman, Mark Robbins. 

I, J0 \ i 0. f\ ~\~~ C 'wK , hereby state that I have read the foregoing Pre-Hearing 

Questionnaire and Supplemental Questionnaires and that the information provided therein is, to 

the best of my knowledge, current, accurate, and complete. 

This_ll__day of .To I~ . 2018 

Senate Homeland Security and Governmental Affairs Committee Page 19 
135 

Clark Nomination Questions for the Record 

Chairman Ron Johnson 

Post-Hearing Questions for the Record 

Submitted to The Honorable Julia A. Clark 

page 1 of 15 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19,2018 

Do you think it is appropriate to withhold in MSPB opinions the identity of an employee who is 

found to have committed a prohibited personnel practice? If so, please explain the reasons you 

believe the identity should be withheld. 

No. I understand that, while the Board may withhold the identity of an appellant or a respondent 

by granting anonymous "John Doe" status, such status is granted very rarely. A party seeking 

anonymity must overcome the presumption that parties' identities are public information. 

Anonymity is granted only in unusual circumstances, such as to prevent a clearly unwarranted 

invasion of a third party's privacy, to preserve the appellant's physical safety, or when the 

matters involved are uf a highly sensitive or personal nature. 
136 

Clark Nomination Questions for the Record 

Senator Claire McCaskill 

Post-Hearing Questions for the Record 

Submitted to The Honorable Julia A. Clark 

page 2 of 15 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District of 

Columbia 

Thursday July 19, 2018 

Whistleblower Protections 

The MSPB is one of several entities -- including Inspectors General and the Office of Speeial 

Counsel (OSC) --that play a role in protecting whistle blowers from retaliation, and ensuring that 

whistleblowers arc made whole if they experience prohibited personnel practices 

Congress has passed numerous laws to protect whistleblowers since the very founding of this 

country. Most recently, and most relevant to MSPB, are the Whistleblower Protection 

Enhancement Act (WPEA) and the recent enacted All Circuit Review Act. It is important to 

emphasize that Congress keeps pa~sing laws and expanding protections because we believe 

whistleblowers are important and should be protected. Yet, sometimes the institutions charged 

with protecting whistleblowers do not heed this intent. We need to make sure that these 

institutions are operating on principles of transparency, accountability, and fairness. 

Q. Under oath, will you commit that federal employees will continue to have access to all 

the avenues of appeal available to them ifyou are confirmed? 

I can only commit to the avenues of appeal available to Federal employees at the MSPB, 

to the extent they exist under law, rule or regulation. 

Q. What will you do to ensure that the MSPB fosters a reputation for being an institution 

that is fair to whistle blowers? 

MSPB's job is to fairly, impartially and expeditiously adjudicate whistle blower claims 

consistent with both statutory provisions and controlling case law from Courts of 

competent jurisdiction. Without speaking for my possible future colleagues, I believe 

this will be a high priority for the Board once a quorum is restored. 

Q. MSPB's significant case backlog, soon to reach 1,300 petitions for review, can lead to 

continuing injustice for whistleblowers. What will you do to address this backlog? 

As I testified at the July 19,2018 confirmation hearing, addressing the backlog will be 

my most important priority. During the nomination and confim1ation process, I have 
137 

Ciark Nomination Questions for the Record page 3 of 15 

come to know and learn to respect the two individuals whom I hope will become my 

colleagues. I believe we will be able to work collegially to set priorities and begin to 

issue cases. 

Q. Do you believe that the Administrative Judges hearing cases have sufficient training in 

whistleblower protection laws to ensure that rulings are not contrary to the law? What 

will you do to ensure that all employees within MSPB have a proper understanding of 

whistleblower protections? 

I believe in the importance of career development training and note that most attorneys 

have annual continuing legal education requirements. I do not have specific knowledge 

of what types of training MSPB employees, including administrative judges, have access 

to during their careers. But, if confirmed, I will work to ensure that administrative judges 

and all other MSPB employees have access to all of the training they need on 

whistleblower protections and all other topics. 

We have seen troubling instances where there has been burden shifting onto the whistleblowers, 

where the law is clear that the agency bears the responsibility to show by clear and convincing 

evidence that there was no prohibited personnel practice. 

Q. Do you have concerns with burden shifting, and, if so, what should be done to address 

this? What additional efforts should be made to ensure that there is not improper 

burden shifting? 

Without context of the particular situations in which burden shifting might be an issue, 

I cannot answer this question. 

Q. Burden shifting is a key issue in cases where certain employees, like auditors and 

investigators, are reporting concerns in the course of their duties. OSC has argued that 

MSPB has wrongly determined that these employees had a higher evidentiary burden 

than the law required. What are your views ofthis argument? Does MSPB need to look 

more closely at this issue? 

If confirmed, the issues and concerns raised by the Office of Special Counsel are matters 

that could come before me in existing or future cases that I will adjudicate. As such, it 

would be inappropriate for me to comment on this now. 
138 

Clark Nomination Questions for the Record 

Senator James Lankford 

Post-Hearing Questions for the Record 

Submitted to the Honorable Julia A. Clark 

page 12 of 15 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge ofthc Superior Court ofthe District 

of Columbia 

Thursday July 19, 2018 

I. While you were General Counsel of the Federal Labor Relations Authority (FLRA) what 

was your approved protocol when, after investigation of an unfair labor practice charge, 

the FLRA would find no merit to the charge? Would the charge be dismissed or would 

the charging party be offered an opportunity to withdraw the charge? 

The protocol! followed for handling unfair labor practice charges, which, after 

investigation, were determined by the FLRA Regional Director to lack merit can be 

found in the FLRA's Unfair Labor Practice Case Handling Manual. That Manual 

implemented FLRA regulations with respect to withdrawal of unfair labor practice 

charges (see 5 CFR § 2423.11 (a)). The Manual is publicly available through the FLRA 

website at: 

hltps:f/wv.;w.llra.gov/systcmffiles/wcbfin/OGC/Manuals/ULP Case llandlim! Manuai/U 

LP%20Ca~20Ha_ndling%20Manual%20julv%202016.pdf. As the FLRA website 

states, this is the Manual that FLRA agents follow when processing unfair labor practice 

cases. It describes the procedures for handling and investigating unfair labor practice 

charges, including those, which, after investigation, are found to lack merit. The Unfair 

Labor Practice Case Handling Manual does allow agents, under appropriate 

circumstances, to offer the charging party an opportunity to withdraw an unfair labor 

practice charge that lacks merit. The withdrawal-of-charge protocol has been in effect 

since the FLRA commenced operations in 1978. 

a. If the protocol allowed for the opportunity for the charging party to withdraw the 

charge then how would these discussions take place? By letter, by telephone, by 

e-mail or other electronic fonns of communication? 

The Unfair Labor Practice Case Handling Manual provides that this 

communication can include oral discussions (in-person or by telephone) but must 

always include a written confirmation, which could be transmitted electronically 

as well as by U.S. mail. 
139 

Clark Nomination Questions for the Record page 13 of 15 

b. Would the charge party be a party to those discussions or would the conversation 

solely be conducted between the charging party and the FLRA? 

An agent's communication with the charging and charged parties-including 

those related to withdrawal of charges-would typically be conducted separately. 

This is because the agent is performing delegated investigatory responsibilities 

pursuant to 5 U.S.C. § 7104(f)(2)(A) to determine whether to prosecute an unfair 

labor practice pursuant to 5 U.S.C. § 7104(f)(2)(B). As such, the agent must treat 

as confidential certain investigatory and deliberative information, unless and until 

an enforcement decision is made. 

c. Tfthe charging party is offered a "side deal" to withdraw the charge to avoid 

receiving a negative decision, what affect do you think that has on the appearance 

of impartiality of the FLRA? 

Under the protocol set forth in the above-cited Unfair Labor Practice Case 

Handling Manual, charging parties were not offered a "side deal" but were 

informed that their charge would be dismissed absent withdrawal and given a 

reasonable opportunity to withdraw. This long-standing protocol is available to 

the public. Consequently, the logical inference to be drawn from a 

post-investigation withdrawal is that the FLRA Regional Director determined that 

the charge lacked merit. I retained this long-standing protocol, because, in my 

professional opinion and experience, it served to expeditiously resolve unfair 

labor practice charges and to support effective and efficient labor-management 

relations in the federal service. 

2. As a Member of the Merit Systems Protection Board, would you find such ex parte 

conversation(s) with one side or the other to be appropriate? 

The roles of the General Counsel at FLRA and a Member of the MSPB arc completely 

different. The Office of General Counsel at FLRA has investigation and prosecution 

responsibilities. The MSPB adjudicates matters before it. As impartial adjudicators, 

ex parte communications with parties to the specific matter before the Board are allowed 

only in limited circumstances. Title 5 does provide that any single member of the Board 

may seek advisory opinions from OPM. See 5 U.S.C. 1204(e). And the Board has in the 

past solicited amicus briefs from non-parties on issues of wider significance. 

In addition, at both the administrative judge and Board levels, MSPB prohibits oral and 

written ex parte communications on the merits of matters before it between 

decision-making officials of the Board and an interested party to a proceeding. See 

5 C.F.R. 1201.102. Ex parte communications must be made a matter of record, the other 

party must be provided a chance to respond, and sanctions appropriate to the situation 
140 

Clark Nomination Questions for the Record page 14 of 15 

may also be imposed. The parties may waive the rule against ex parte communications to 

allow an administrative judge to discuss settlement outside the presence of the 

other party. 

If confirmed to be a MSPB Member, I would adhere strictly to these prohibitions and 

restrictions on ex parte communications. 
141 

Clark Nomination Questions for the Record 

Senator Gary Peters 

Post-Hearing Questions for the Record 

Submitted to The Honorable Julia A. Clark 

page 4 of 15 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19, 2018 

l. During this morning's hearing, you stated that you have not had the opportunity to review 

the proposed Modem Employment Reform, Improvement, and Transformation Act 

(MERIT Act), H.R. 599, which would significantly reduce the time it takes to fire a federal 

worker accused of poor performance or misconduct. The bill reduces the time for an 

employee to appeal firing decisions, or for the U.S. Merit Systems Protection Board 

(MSPB) to intervene on their behalf, and extends new employee probationary periods to 

two years. It would also allow agencies to avoid negotiated grievance procedures, reduce 

benefits of workers who are convicted of a felony and fired, and rescind bonuses or other 

cash awards deemed to be wrongly paid. On Tuesday, July 17,2018, the nation's largest 

federal union, the American Federation of Government Employees, AFL-CIO (AFGE) 

signaled its strong opposition to The MERIT Act, arguing that the legislation would make 

it easier to fire federal employees and would give agencies alternative mechanisms for the 

punishment of federal workers. Mter reviewing the legislation, do you believe it will 

support or undermine the due process system that provides federal workers with a 

meaningful opportunity to defend themselves when treated unfairly? How would the 

legislation impact the ability of the MSPB to review the appeals of employees who feel 

they have been wrongly terminated in a timely manner? Would eliminating or 

shortening processes for federal workers to challenge firing decisions of agencies, and 

empowering agencies to take-back bonuses or garnish benefits, improve federal 

employment practices? 

I am informed that MSPB staff has reviewed the language ofH.R. 599, the 

Modem Employment Reform, Improvement, and Transformation (MERIT) Act, 

as passed by the House Oversight Committee on July 17,2018, and advised me 

that they do not believe the legislation addresses any issues of jurisdiction, 

procedure, substantive case law or any other matter concerning Board operations. 

MSPB staff does not currently believe that this legislation would negatively 

impact the Board's operational ability to review the appeals of employees who are 

the subject of an agency adverse action over which the Board has jurisdiction to 

adjudicate. As long as any statutory process is consistent with Constitutional due 
142 

Clark Nomination Questions for the Record page 5 of 15 

process, the length of the appeals process and any other associated issues is a 

question of policy better addressed by policy makers in Congress. And it should 

be noted that whether any new process is consistent with Constitutional due 

process is an issue likely to be raised before the Board in the first instance. As 

such, it would be inappropriate for me to form an opinion on the Constitutional 

question in advance. 

As I stated in my responses to the Committee's initial policy questions, I commit 

to respond to Congressional inquiries, if confirmed. However, I presently do not 

have access to information or data on which this proposed legislation is based and 

believe it would be inappropriate and ill-advised to offer an opinion at this time. I 

simply wish to reiterate my response to this question as it was posed during the 

hearing. Based on my decades of expelience as both an employee representative 

and federal manager, current law and policy has, in my professional opinion, 

allowed me to fully represent not only the employees' interest but also the federal 

agency's and the public's interest in a merit-based civil service system. 

2. The House of Representatives Committee on Oversight and Government Reform recently 

voted to approve a five year reauthorization for the MSPB after more than a decade since 

its last authorization expired in 2007. Included in the reauthorization legislation was 

language that would allow MSPB members to issue summary judgments, reduce the 

burden of proof for agencies to justify adverse personnel actions from "a preponderance of 

the evidence" to "substantial evidence," and it would require federal workers to pay a filing 

fee to appeal adverse personnel actions. The bill reduces the time to seven days for 

employees to respond to a notice of proposed discipline; require the agency to make a final 

decision within 15 days afterward; and allow only seven days, rather than 30, for the 

employee to appeal to the MSPB. In your opinion, do you believe it is too hard 

currently to fire federal employees? Do you believe reducing the burden of proof to 

justify adverse agency decisions is appropriate? Should you be confirmed, how would 

you ensure that federal employees are treated fairly? 

This is a policy question not relevant to the Board's julisdiction or its operations. 

But in my personal opinion, no, it is not too hard currently to fire Federal 

employees. The process requires an appropliate investment of time and resources 

but if current law, rules and regulations governing adverse actions are followed, a 

Federal employee can be lawfully and efficiently separated for either performance 

issues or conduct, consistent with federal agencies' and the public's interest in 

ensuring that removal actions are taken consistent with merit system principles 

As stated in response to the previous question, in my professional opinion, current 

law and policy allows federal employees and federal agencies to fully and 

appropriately represent both their interests and the public's interest in a 
143 

Clark Nomination Questions for the Record page 6 of15 

merit-based civil service system. Should I be confirmed, I will ensure that federal 

employees are treated fairly by adjudicating cases that come before the Board in a 

fair, impartial and expeditious manner consistent with the law as written and 

binding precedent. 

3. As noted in some of your questionnaires, the MSPB last published its research agenda in 

2015, which expires in 2018. In order to develop the agenda, the previous MSPB took 

numerous steps to solicit input from stakeholders, including the heads offederal agencies, 

major federal employee unions, and professional associations with expertise in federal 

workforce issues. What is your plan to develop an updated research agenda? What 

would you change from the outreach approach taken by the MSPB in 2015? Who 

would you consider to be important stakeholders in MSPB's research agenda? How 

will you analyze the feedback from stakeholders in order to make decisions about 

research topics? How will you decide which topics to prioritize? 

The current research agenda was adopted by the previous Board in 2015 to last for 

a period of 3-5 years. I understand there are several research projects awaiting 

review by a new quorum. It will be up to the new quorum to set a research 

agenda. I am not familiar with Board history on how research agendas previously 

have been adopted, including the most recent one in 2015. I anticipate that, if 

confirmed, we will reach out to stakeholders both inside the government, 

including Congress, employee representatives in both management and labor, and 

outside the government, including academia, and good government groups, to get 

suggestions for research which would lead to broadly beneficial studies. Not 

being currently familiar with this process, I do not know how stakeholder 

feedback is analyzed or how final decisions are ultimately made. 
144 

Clark Nomination Questions for the Record 

Senator Heidi Heitkamp 

Post-Hearing Questions for the Record 

Submitted to The Honorable Julia A. Clark 

page 7 of 15 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19,2018 

• What is an experience or situation from your life that shaped your outlook on the critical 

federal employee issues that MSPB considers and decides? Why did that situation impact 

you in the way that it did? 

As a labor organization attorney, I assisted a local affiliate in representing bargaining-unit 

employees during a reduction in force at a naval shipyard. This experience shaped my 

outlook on federal employee merit system issues because I was able to witness the 

application of merit system principles to a large-scale personnel action. Neither the labor 

organization nor the shipyard command had the power or authority to alter the 

reduction-in-force decision. Nevertheless, labor and management worked collaboratively 

to apply the federal merit system law, rules and regulations to ensure that once the 

reduction in force was completed, employee retention was fully compliant with merit 

system principles. This process required diligent efforts by both labor and management 

representatives and employees to ensure that the retention register, on which the 

reduction in force-based personnel actions were taken, accurately reflected each 

employee's retention status. While there were a few disputes that could not be resolved 

in a bi-lateral maru1er, nearly all issues were resolved through open dialogue based upon 

merit system principles. This experience allowed me to witness firsthand the public 

benefit of ensuring that federal personnel actions are based strictly on merit system law, 

rule and regulation. 

• What role should previous MSPB decisions or other relevant precedents play in how an 

MSPB board member decides cases or makes decisions? 

Precedent plays an important role in judicial and administrative decision-making. If 

confirmed, I will carefully consider all relevant precedents, including whether a previous 

MSPB decision was correct, and arguments raised by the parties in deciding cases iliat 

come before tile Board. 
145 

Clark Nomination Questions for the Record page 8 of 15 

• If you are con finned and you come across a case where there is clear precedent, but, 

when you look at the case closely, you begin to question if that previous decision was 

decided correctly. 

o How should a MSPB board member go about detennining when a precedent 

needs to be changed? 

An adjudicator's job is to apply the law to a given set offacts unique to the case 

in question. If confinned, I will carefully consider all relevant precedents and 

arguments about those precedents raised by the parties in deciding cases that 

come before the Board and question precedent when it is appropriate and 

necessary to do so. 

• What role does the federal workforce play in the United States, and what do the 

American people need from the federal workforce? 

o How should MSPB board members use their authority and decide cases to ensure 

those goals come to pass? 

The question of what role the Federal workforce plays in the U.S. and the needs 

of the American people are policy questions better addressed by policy makers in 

Congress. However, to assist the policy makers in their considerations, the Board 

owes it to them and the American people to provide fair, timely and impartial 

decisions on matters brought to it for adjudication. 

• What changes need to be made to MSPB, its jurisdiction or its authority? 

I'm not currently aware of any needed changes to Board jurisdiction or authority. 

• Many federal employee and federal employee groups feel that recent Executive Orders 

from this administration on issues such as making it easier to let go of poor performing 

federal employees or curbing the use of official time are direct assaults on federal 

employees and their long-held civil service rights. 

o What is your opinion ofthese executive orders? 

While I have not reviewed these executive orders in great detail, opinions on their 

content is a policy question not within the Board's jurisdiction. 

o How do you feel that these executive orders will impact your potential work 

atMSPB? 

See response above. 
146 

Clark Nomination Questions for the Record page 9 of 15 

o What are your plans to use your role on MSPB to protect the rights of 

federal employees? 

The Board protects Constitutional and Title 5 due process rights of Federal 

employees challenging agency actions by fairly, timely and impartially 

adjudicating its case load. 

• Do you feel that the May 25 Executive Order, which addressed how agencies should deal 

with poor-performing federal employees, can work in concert with the statutory 

protections that federal employees are provided? 

As discussed above, this is a policy question not within the Board's jurisdiction. 

o What is MSPB's role in determining how to balance the directives to agency 

heads in that executive order with the statutory protections which are the 

foundation of the civil service code? 

The question whether there are any conflicts between provisions of Title 5 and the 

May 25, 2018 executive order might arise in cases that come before the Board. 

As such, it would be inappropriate for me to form an opinion at this point. 

Additional questions below 

Administrative Law Judges (ALJs) have unique statutory protections from unlawful removals. 5 

U.S.C. §7521 generally states that an ALJ can only be removed after good cause to do so was 

established and determined by the MSPB on the record after opportunity for a hearing. The 

recent Executive Order that moved ALJ hiring from the competitive service to the excepted 

service does not impact the 5 U.S.C. §7521 protections. 

• In your opinion, is it important to have specific protections against the unlawful removal 

of ALJs in federal statute? 

o Why or Why not? 

Yes. It is important to have specific protections against the unlawful removal of 

administrative law judges in Federal statute. The protections contained in 

5 U.S.C. § 7521 and elsewhere ensure that adverse actions against administrative 

law judges are taken solely for performance or conduct reasons and not in 

retaliation for decisions rendered against an agency. 

• If confiimed, what steps would you take to examine a case where an agency claimed 

good cause to fire an ALJ to ensure the agency claim was correct? 

If confirmed, I will consider all relevant legal authorities and arguments raised by the 

parties in cases before the Board, including any cases involving dismissal of an 

administrative law judge. 
147 

Clark Nomination Questions for the Record page 10 of 15 

• In your opinion, does 5 USC §7521 require that MSPB determine if the good cause 

threshold to remove an ALJ has been met, or does it just require that MSPB determine 

only if there is sufficient evidence to prove an agency's determination of"good cause"? 

o Please explain the reasoning behind your answer. 

If confirmed, I will consider all relevant legal authorities and arguments raised 

by the parties in cases before the Board, including arguments concerning 

5 U.S.C. § 7521, which states that actions may be taken against administrative 

law judges "only for good cause established and determined by the" MSPB. 

In recently published news articles (https://www.reutcrs.com/articlc/us-otc-dojmemo/inI.:Onfidcntiul-meJnO-to-agencv-gcs-doj-siuna!s-aggressive-stand-on-!iring-aljsidUSKBN I KD2BB) about Department of Justice guidance to agencies on how to 

navigate ALJ issues in the wake of the recent Lucia v. SEC Supreme Court decision, DOJ 

argued that MSPB should be suitably deferential to the determinations of agency heads 

when it comes to the removal of ALJs. 

o What role should MSPB play in safeguarding the president's power to 

supervise the executive branch? 

The MSPB's role is to apply the law in cases that come before it. If 

confirmed, I will decide cases within MSPB'sjurisdiction fairly and in 

accordance with applicable law. 

o How would you define "suitably deferential" in terms ofMSPB's 

responsibilities to safeguard and protect federal employees from unlawful 

removals? 

To my knowledge, "suitably deferential" is not a standard currently contained 

in Title 5, Board case law, or other binding precedent. To the extent the 

concept could arise in the context of Board consideration of a matter before 

the Board, it would be inappropriate for me to form an opinion prematurely. 

o What role can MSPB play in ensuring that ALJs are not removed for any 

invidious reasons or to influence a particular outcome? 

5 U.S.C. § 7521 states that an adverse action against an administrative law 

judge may be taken "only for good cause established and determined by the 

Merit Systems Protection Board." The Board can ensure this provision is 

enforced by fair, impartial and timely adjudication of any such actions. 

• As mentioned earlier, the recent Executive Order on ALJs recently moved ALJS into the 

excepted service. That means ALJs will be excepted service employees, giving agencies 

greater flexibility to hire AL.Ts as they see fit. However, the AUs will continue to have 
148 

Clark Nomination Questions for the Record page 11 of 15 

significant merit system protections against removal or other significant employment 

punishment without good cause? 

o What challenges to a member of the MSPB arc presented when federal 

employees are both excepted employees and have significant merit system 

protections? 

I am not currently aware of any such challenges. Most excepted service 

Federal employees have had appeal rights to the Board since passage of the 

civil service due process amendments, P.L. No. 101-376 (Aug. 17, 1990). 

• In your opinion, what responsibility do MSPB members have to ensure that ALJs follow 

agency policies, procedures or instructions? 

The MSPB's role is to apply all applicable laws in cases coming before the Board, 

including cases involving adverse actions against administrative Jaw judges, as discussed 

in 5 U.S.C. § 7521. In examining whether there is good cause, the MSPB has at times 

examined whether an administrative law judge has followed lawful agency policies, 

procedures, or instructions. 
149 

I, Ju \~ 0. (\'f...·' "- S. C \o.-K , hereby state that I have read the 

foregoing PostHearing Questions for the Record and that the Information 

provided therein is, to the best of my knowledge, current, accurate, and 

complete. 

(Signature) 

• 2018 
150 

NTEU 

The National Treasury Employees Union 

July II, 2018 

The Honorable Ron Johnson 

Chair, Senate Committee on Homeland Security and Governmental Affairs 

U.S. Senate 

Washington, DC 20510 

Dear Senator Johnson: 

As National President of the National Treasury Employees Union, I represent over 

150,000 federal employees in 32 agencies. I am writing to give unqualified support for the 

nomination of Julia Clark to the Merit Systems Protection Board (MSPB). 

Ms. Clark has been involved with federal employee organizations since 1988. She knows 

every aspect of federal employee rights and responsibilities. In her most recent position as 

General Counsel of the Federal Labor Relations Authority, she proved herself a capable and 

innovative leader. For instance, under Ms. Clark's command, the timeliness and quality of 

processing representational cases improved dramatically. Early intervention in unfair labor 

practice charges and negotiability disputes was also expanded and invigorated, with the result 

that many disputes were resolved short of formal litigation. In addition, she advanced labormanagement relations in the federal government by implementing nationwide training sessions 

and making guidance materials readily available to the federal sector labor-management 

community. In her work with the International Federation of Professional and Technical 

Engineers, she acquired expertise in federal personnel law and the statutes directly impacting the 

MSPB, including chapters governing whistle blower protections, prohibited personnel practices, 

adverse actions and appeals. 

I believe Ms. Clark will be an invaluable asset to the MSPB, providing a keen intellect, a 

judicial temperament, and expertise in federal personnel-management issues. It is also well past 

time to have a functioning MSPB. I urge you to advance her nomination forward. 

Sincerely, 

~M.~ 

cc: The Honorable Claire McCaskill 

The Honorable James Lankford 

The Honorable Heidi Heitkamp 

Anthony M. Reardon 

National President 
151 

MSPB NOMINATION HEARING TESTIMONY 

ANDREW F. MAUNZ 

MEMBER (TO BE DESIGNATED VICE CHAIRMAN) 

U.S. MERIT SYSTEMS PROTECTION BOARD 

SENATE COMMITTEE ON HOMELAND SECURITY AND GOVERNMENT AFFAIRS 

July 19,2018 

Chairman Lankford, Ranking Member Heitkamp, and the rest of the members of the Committee 

and its staff: 

I would like to thank you for having me here today. I would also like to thank President Trump 

for nominating me to this position. To my wife Kira, our two daughters, my parents and the rest 

of my family, I would like to thank you for your love and support during this process. I would 

also like to acknowledge the friends, co-workers, and former colleagues who have sent 

well-wishes and congratulations. Last, but not least, I would like to thank acting Chairman of 

the MSPB Mark Robbins and his staff for their tremendous assistance in preparing for 

this hearing. 

First, I would like to tell the Committee a little about myself. I was born in a place called 

Clarksburg, West Virginia where my father owned a small men's clothing store that was 

originally opened by my great-grandfather, an Italian immigrant. A few years after I was born, 

my dad closed up the store and my family moved out of town. We eventually settled in 

Cincinnati, Ohio, where my dad continued to work in retail and my mom worked as a teacher, 

primarily at a Catholic elementary school. My father is the hardest working person I know. He 

would regularly work 70-80 hours a week, 6-7 days a week, to provide for our family. With his 

work schedule, my mom had to do the bulk of managing our household, which she did 

wonderfully while balancing her own career. 

As an attorney working for the Social Security Administration and as a Federal employee, I have 

always tried to keep in mind that my salary is paid by the taxes of people like my parents. 

People who go to work everyday, work hard, and expect their government to be responsive and 

efficient. These people, the American people, deserve a Federal government with the best 

workforce possible. I believe that the MSPB plays a crucial role in achieving this goal. The 

MSPB helps ensure that all personnel decisions are based on merit, it helps protect 

whistleblowers and our veterans, it keeps the federal workforce free of partisan political activity 

and so much more. 

In my opinion, the MSPB fulfills its mission best when it applies the relevant legal authorities as 

they are written and does not stray beyond its statutory mandates. The job of the MSPB is not to 
152 

Andrew F. Maunz, Opening Statement, (cont'd) page 2 of2 

favor one side versus the other, it is to protect our civil service system by reviewing the facts and 

applying the law in a neutral and fair way. When it performs its functions properly, the MSPB is 

one of the most important entities in achieving a Federal government that works best for the 

American people. 

I am ready for the important job of serving on the MSPB. For nearly 10 years I have been 

immersed in the many complicated issues Federal agencies face. I have litigated employment 

law cases in many forums, including before the MSPB. I have provided legal advice on a wide 

variety of issues, and trained agency managers on some of the many laws they must be aware of 

when managing employees. I believe this experience will serve me well, ifl am confirmed to 

the MSPB. 

I am excited about this opportunity, and if the Senate confirms me, it would be an honor to serve 

in such an important position in our government. I will now make myself available to answer 

any questions the Committee may have. Thank you. 
153 

REDACTED 

HSGAC .BIOGRAPIHCAL Q'lTESTIONS FOR 

EXECUTIVE NOMINEES 

1. Basic ·Biographical Information 

Plcll!le proVide the-following ~nformatioli. 

1 
154 

2. 
155 

2. Education 

List ali Jiost-secondary· sclioolil attended. 

N'ame:or: 

s:•iiOO,i. · 

Miami 

·university· 

3 
156 

4. Employment 

(~):List all of your eiilployineot activities, In.clndiug nJ!.Ciltlploy.mcrit'llnd self~emplo_yment. 

.if the·.emp·ioyme~t activity-was .military duty, iist.separafe employment a'ctivity:periolls to 

show ·each change. of military·dllty station; Do. not list employnrent before your 18th 

birtkday. unless to _provide a.·minimum. lit two ;rears of employment history. 

State 

EmplPjrR\ent Cltocolllti:-Factory 

sears 

4 
157 

No!l·&n:Vemment 43 Enst .B.ar· a11~ Oti!l Bus!lo)'/ 'OI(ford,. 01}100J tt, t·~ IWlOOl.f;stx 

IJ.isJtwasher O~io· 

Non-go,emnteJ}t Coney .Island- Pi24a·M~<;r/ <;:inomna 0Silq<ll-ll81200f 08/lODZ.. &t-:t... OSI1001 L~rosa's bl.~hter ti,Ohio 

bt.~ 

Non-goyerrtlitent ·sears Hafilware. Cashler· Cilic"illila' 1999 £1:1.~ OfllOOl (Warled. 

h(~ tf~r.~ut' ti,OH biz!ts~!J]~od 

fdWrmflktith-·bt' 

!~~!~}~~:~ ol 

Non-geverpf1!ent To~yRomals Buslioy ! C)lii:tilna· 

:ti,."QH 

O.IaODl £s't.s. ~O!ll~tx 

(B) List arty adviSory, coi!SO.ltative1 honorary or. other part-time servi~;e !Jr ·po~itiol)s wit~ 

federal; state~ or locillgovernmen·ts; not.Iisffid. else:W.ber.e. 

None. 

4. Potential Conflict oflntel"est 

.lA:) Des~rib~ 11ny bu~inesn:elationsbiiJ• dealing·. or finanCial ttansaetio11 jv.biC:It you have had 

dnri~g1he litst lO y~r.s, wbet_her for.yourself, on b~half of a.client, or acting As-au agent, 

tbatco:uld in a11y way·~onstit11te nr Tlll!n.lt in .a possible ronflict of'hiterest ·in'tlic· position to' 

which you have been nq_m1n;t~cd. 

I have' worked' at the·Soqiaf s:e.cl!rity Ad!nini~tration fat nearly: the past .1 il years·, fwotild re~use 

niyself~1:0111 any maiter!J.that-1 was p.erso!U\IIY involved in at SSA. I Would ·consult wlth the 

MSP.B's etqics ;taff on ~f.\ here art:: any. gthe~ i.~s.ues invQJying SSA from «•hich r should recuse 

myselffn addition, n1y wife. is currently a Federal emplqyel). S(le works as an A.~t rn~y-AdV.1&or in. the 

S'Qcial SecuritY' :Adniinistrafion ·~·Office ofAppeUate Opefl\tions where· she ·i!ssjsts fn:deciding. 

disability claims -and·warks on pblicies telate(l·~a the-igency's dil!ability -adju\ficl\ti'on·system. · 

Offie!!··of Government Ethics regulations make ii <;lew; that is~uc;s :u;ising-·genQrally. '.from a 

spouse's F~derof employment do not create a conflict ofinler~st, $ee·:5 C.F.I:t. '§ 2640.2QJ(d), 

Howeve(, I wo.tild·recuse myself.should any ma'tter c·ome before th~M~P.E! .that C!f~~dy·involves 

or involyeo;! my wife • 

.. (B) Descrlb'e:;~ny llc.tivifj during file past1(! )'!Iars in wllielt you bave.eligaged for th~ 

purpose of !lirectfy or i"-4irectly 'inftuem:i!lg the. passage, defeat tir J;Itildification of ;my . . . 

. 5 
158 

tegislatiop. or. a'ffccting the' ad.mlnmtration or execut;ion,o'(iaw or· public policy,·othcr than 

whil4.in a .fed"ral.~ovemment capacity. 

lil20;o9, in my personl).l capac.ity,J WI'Qfe a lett~r to. Ohio State Senator Bill Seitz encouraging 

·hiil:l to s(!ppoi;1::B pallsenger r\\IJ·biiJ in 0!\io. 

In 2009' in :r;ny persa.mil.!)!)"pactty' r -91111~ Congressman Steve .Orieqaus's officli),·SPOke to a ~taff 

member; ahd ~pcom:iiged the· congiessma!) lei vote agalnsr th~:Cap. an~ t~de Bill. 

$~ Honors and Awards 

List all schQII!·f"!l)lips, .fellowships,. honorary .degr~s, civilian service citations, military 

-~edids, acade:mic or professionaJbonors,· hoil~rary· society memberships· a11d ·iJ.ny other 

special recognifton for outstanding_ service or achievement. 

LawSehnol" Full TuitioJi Scholar.sqip 2005~200~; p,o;lqated~nagn£! cum lc!l(de and made Dean's 

LiSt:several tiines,."lidmitied to the Ot-det bf~e C6ifi..,ega(H{)norSocie~ty. 

A,'!fards wpile woddn~.at SSA· 

Monetary Awards Received: 

Non-Monetary Award~ ·Re~.;.c;i.veq;. 

<;:omnli$siot:n:r"~:s. 'rean1 A ward,- 2016 

6· 
159 

General' CGunsel Excellence in Serville TeamAward- Z016 

D~put;Y Conimlssioner Citation-. Office ofL>Isab.ilicy Adjudication a.n4 Rc;:view-:2Q 12 

6. Menibersllips 

List all memD!<!rshlps that you have held ln ptofessit'loi.d, soda!, business, :fraternal, 

sclrolarlf., dvic, or.cihat:itable·.or.gan,il:afiouslu-'tbe.Jast to ye.nrs. ' 

Unless relevant to yo'ur·nomin,atii:i~, ygu· do NOT need to inc!ude.membership.s in 

chari_table ·1,1~an~ations av~il1tbl~ to (he public as a -result or-a tax deductible- donation of 

S.l,OOO or less;Par.ent• Teacher' Assodations·or oth\ir organizations to_nnecte4· to sc4_6Qis 

·attenlf.~ ·by your chitd,en, athleric.clul)s.o.r te;tm~, aujomobjle support (lrganizations {such 

I!S AAA}, discounts· clubs (such-illl Group on or.Saiti.'S' Club), in" a'ffi~ity 

mernb·ersliips/i!onsiimer pi~bs (su~:h as -~q11~;~nt l'1rer meml:!erships). 

· Ptllishioner.- Cathedrol ofMacy. :Qur·queen C~th:olic Church· 

'Parishioner- Bas1 tca.of·the 

National Stirine. ofthe A-ssumjJtio~ 

'a'f.th~ B.!tssed Virgin Mai)' 

Catbollc:ChurGh -· 

_M.em~r- .B9lton .Swim an(l T¢11Iiis .. 

TqledO'.Ln\Y Revi~w 

\)rder of lll.ec Coif L.eigal HonorSociety 

Ofiio Ia(~ B~r ASsociatiP.nv.a IUJtta,Y bar assooialio.n· in ·Ohio. 

Practice. of [a',l'·IS>regu_lated by-Qhiq-· 

Supreme Co_utt by wh!clt I. bave 

beeh !lcenseil to ·P.I'!\c'tice Jqw 

edntinttous[ since'No~ember2008. 

tvtnrch 2017- Pre_sl"l( 

2!)08- March 20'17. 

· 20:12-Ptesenr 

'2006- May.2008 

Admitted 2008 

-Mnrch·2009· March 01.0 

JanuaiY-2016~ Elecenlber 20_t'6. 

:-D i;;;t1,;;;f\~:r;:t.~~~~~r~!~~~i~/:,_:;.j::;: oq_e 

Non_eNo.te wid'Cilmrn~nr E': qr 

None 

(. P.oliticalActivi!Y 

(A) Have you ever been· !l-cn~djdate for or b~ll. ~lectcil or a{l):l<lin'fed -ti:i a: political office? 

No. 

7 
160 

(B) List a.qy.offi<;J:S h~ld in ouerv.ices re11dered .. to a political party or election. committee 

during th·e last ten years·:tha:t you have'nof listed i:l.s~vhere. 

·None. 

(C) It¢mize all individual ~olftical conttib!!tigns of'$.200 or l)lore that yot,~. have made.iii· the 

piJs.t·fwe years to any i!!.di\tld'lllll, campa,ign org!Uiization, pU:Iitieal. party, poiitlcal.action 

.commi(tee, (!f similar entity. Plei\Se.lli;~ each individual~::ontribu:tiqn. and not the :total 

am·ount contrillute.d to lh"~:·person or entity during the yeat;. 

Nen.e. 

8. Publications and Speeches; 

(A) LISt the ~tlesdllitilishers .l;lnd da:tes.of books, articles,.reports.·or other published 

·m·aterials thatyou hav~ written;jnclilding .. arfi~.Ies published o.n the Jnter~ct. Plea:Je' provide 

the Commi~ee with copies Of.11,lllis~ed publication1§. In.lieu· of hard copies, electronic copies 

can be prov\d.ed yia e~mail or otht,Jr digital f~;~rmat; · · 

I do nol have any (ormally pub!i'shed wrjthjgs. Hqwever, in the interest af fuli disdosure,1·a:m 

providi'ng·three lilo.g past's l made for.a: short• live£~ sports:blog in 2006. 

I posted·:these under the riaml! "'#altoo41ifll" 

Jason Whltlock is·lnsightfulhttp:/fwherehavliyougonemargeschott.blogsoot,com/2006/D7 fiason• 

·)Ai!iltlodi-is·losi!thtful. fitm!im .. 1 · 

Walt,.what-.are ttie refereeswearlnghttp:!fwh etebaveyo ugonemar.geschgtt.blogsoot.com/2006iostwaitwhat-ar~referees-wear'ing.iJtmi?m-1 · ·· 

·NFL Week·h 

bttp~Uwherehav~yougorremargeschott.blo@pot.Cpm/20Dil/09/nftweek"l.htmi?m=l · ·· . 

·8 

Se(f p)lblisbed 

tni.tb"· 

b!ogSpot.com 

pl41fotm'. 

7!24f2006 

9/1!/2906 
161 

(B) List llll:t·foniuil speeclt.e5 you.Jiave ii:eliv.ercd during the laslfiv¢ years· and ptoYide the 

Committee with copres.:ohbo~e speeches relevant to the positlolifot which.yo ... ·ha:ve b'eeiJ. 

nomlnate"d •. lridude any testimmiy to·Cougress or any other lcg'!slati'vii or administrative· 

body~--Tbe.se·l~.nu;. can· be.. provided electron"icaJ'r v.ia e-niail or otber .dig_itlit"-fotmat. 

·The items belew·do no~ ctlncem. Federal employ!'nertt issues, ~~1t they do con._eri:J ~dministrativ~ 

La.w·Md the F¢.detal goverru'nent, sol am. liSting them.hei.~. They l!r~ pr_esentations l gav~ to 

va·rious·gj::oups.oh compliance with SSA;s regulations at"20 C.F:R. setti:OJ;lS 404.[700~;}:7,99, 

416.1500"..1599. 

ReP.resen!lltiveR!lles ofConP~¥1 fifth CircultOrgaili~ii:in ofSocia! Feljruary1,8, 2015 

s~d-llanetipns ~I)< Clhi!llants Repre$'~ntat[yQ! 

Discussed the obligations 

ofr.ept,seotatives. ui1aer · 

lh~ SPc.hil Security 

Adminlstra\iQ•I'~ 

Regulations 

I ~ld not have prepared remarks,. 

but, .upon requesf'i [can provide th~ 

Fow.erPoint-J used, if. the' .Cqmmitiec 

wo·utd lilt;e·Jhat. I f,lhe~ is.:videll 'Or 

a t,raq·~.jp~ llf h'Q'. p~entatlon, tl1e 

01-gpniZlltipn f.0SS,CR would have· 

~I, 

.Pre!ehteiion'the obligations of 

repres~ntatiVes under SSA' s 

regulatioi!S'. 

Once agaip,.J qid not.haye prep~red 

remorl;s, bqt, upon request, I' can 

P.rovide.a copy ofanr matedals:l 

pieseJited ro ibe group, if the. 

t;:ommittee:wouid like that\ lfthere 

is vide<l qr-a tran•eript of my 

. J5resentatiiln the:qrgard~atipn 

NADR: wo.tilirti~:ve i(, 

Sth)cal CQn~fderatron whefl 

Represeniiqg~S.!>clal Security 

-Claimants· 

·-Pre~ented oo thoro,bligations:of 

.rej:!r~sentatives UJ\d.~r·SSA 's 

regulations. 

.(FOSSCR) "2~15 Confi:rcnc;e 

San Antonio, Teias 

National' A~sociaiion ~fDisaliility · M~nih: I.S', ~0! 4 

Representutives' (N.ii:DR) Natipmil 

SociaLSeouri\Y Law.Conference 

.Wa5hington, DG. 

Natidl!al Orgnni2:llliqn <tfSocial , May. n, 20·13 

Sec~rity c;lalmanfs. R~prese~ttatives 

(NOSSCRj e9nt'er~npe 

Washington, DC 

9 
162 

once ·~ain,J dicl-notJtfiVtl P!'O{'Bred 

remarks, b_uf, .upqn l'!!.q\le~t, l cal!o 

j:inivide ~ cclpy·of !lie Po~erPoint I' 

used, ifth~ .Committee would liko. 

!liai. If there is v.ideo or1i irans~ripf 

ofJily'Jlrcsentation the organization 

NOSSCR would have it.. 

(C) Lisi ~il11pee.~h!:S am:J i~~S.timonyyoQ bav~delivered in the past ten rears-; except for 

tb!)Se. ~h.!\:.te)[t ofw.liich·y(l11 are providing -.to ._the CitDJD.littee. 

~ ::.·· 

Et tc presentation on- compliance 

\Vitfi SSA 's reg:uJ~iions_. .. 

Presentiitioti 011 the 

agel)cy's Rul~s ofC.mtduct 

}or ;! group of re __ re;;e!Wjtives. 

'Ethic, 'Prt<Sen\atiqq for ~octal 

Security ~eprJJsenflltives-, 

Ethical Cot\SideratiQns in Practice· 

before· the ()ffloe of Disability 

A!\i~dicati~n an~ Rc;~iew .. · 

Uis-Vegas; 'NV 

Social ~eCI!fi\Y.Oisabi!it}' 4w 

Sem_inar 

CLE·Afabamn 

UniversitY ofAiatillll!o Sc;h®f·of 

Law · 

Bimtin · am, Alabama 

Social Secilrity ·seminar 

lhstitut~ of¢ontinl!ing Legai 

EdllCIIIion in Geo ia 

.9. Crimiiral History· 

November 5, 20 10 

February 13,2909 

Slnce·{an!'-1 inclUding) Y!'llr 18111 l:lirl.hd.ay, baS.Ilf!y of-the following ·happened? 

Have y.ou been tss11ea-a; su.m~tons,dtatioiT,.oq)ckettQ appear in cou11 iii a .criminal p.-Qceeding agait1sf you? 

(?xclude citations involvilig-traffic.infra'cti0ns,wliere·the fine.w~s .less _tlto.n $300,and did not includ~ alcoliOl or drugs:) ·· · 

Yes ~-ciitation·for<open ~ntl!ini:r ih 2001. 

l'!aye you;~een ru:rested:by .arty pollee offic_er.-sneriff; niaishal·or any· other· !Ype. of Jaw enforcement offici~!?·. 

No • 

.- Have·you·been charged, c<,nvlcted, or sentence£! 0f.a 'ri'-'!e ln !lny<:qurt7· .No; 

ti Have you beell•orar'eyou current!~ on p,ro'pation or parole7 No. 

Ar~.yo:U c!!frently on tria.l on waiting a trial on criminal charge~7 No. 
163 

To your knowle~ge. hil\'~ you evet b~n-tb~·subjeet-or:targ<;t.-<ifa·fe<t~l'id,.sJate ·or IOcal':criminill iitve!tigatlon? 

No: 

ffflic answer to 'll"Y of the. questions· .ilbov:ids-yes. please a_nswer- the questio.ns 'belo"' fo.r 

~ell criminai.e.vent (citation, lltTest,.investigation; etc.); Jhhe;event. was:an invest~iltion; 

where the qqes(ion,liel(nyil~lcs for infor~atipn _S:bQiiftlie offense, please offer q.fOT.Ill&tiOI.l 

ab(!!lfthe;of(ense under:tnvestiga'tio.n- (if known). 

A) Dale of'off~nse: O?i09120~J 

a. Is tliis an estimate O'~o):.N\) 

B-l Desctip'tion.'of the. specific nanire ofthc ·offense; 

was given_a.cit~tion forQ~et\ ai~b!!l t:onli\ipe'r, 

C) Did the of:fense inyqlve any:qf'ljle fo.Uowing7 . 

I) · Dom~stic vloience·or a .crime of violc!lc• (su~ll.as.~atlery. (Jr·~S'!ultluMinsryour·cl)ild,.Ciepentl~nt,­

conabitlirit, spbus~, rormerspouse,. or someone with whom rou share. a child in CQtnmon: . Yes I NoNo. · 2) Pire~rms·o.rexplo.'!ives: Yes:f No-·No. 

3) Alcqhol-ot• drugs; Yes t No· Yes, alctihol, 

D). Locillioh wh~re the offense.occurrcd. (tf!Y,, Wl\nty, sta)e, :tip cod.e, couqtry): 

-Haniilton .C<liliitY Ohio: 

E) -W;,·re ~ou arrested,.summoned,.c.lted or 4id_you receive a .ticket to appe~. as a_re~11it of!hls:~fi'cnse_ by any 

,p'61il:'b officer.-slieriff, tn'arstial or ·any. other type cif!aw en(OI:cement official: Yes.( No- \'.e~. clta)lon. 

i) ~ome- _o.f'the iaw enfnteemi'"tagen_cy that-aitestetl/citedlsumnJOtied)o·u: Ham ilion Collnf¥ Shedffs 

Of!ice. 

2) LoCl)tion ofthdaw cnfo~ement·ag~n·cy {cily,.cpu·qty,.state, zip·.eo.<le, t:Quntry): 

1Q9_D 8yca)!IDI'!l Sl!!'ill- Citicinnatl, Ohio-~~202 

FJ ,4-s a result of-litis offense were·yo)J c~arged, c_onvlcted,_eu]'tel).tly awnitil)g trial, and/or.ard~red to :appear in 

.court.iii a crimfnai proceer.t\tig.againstyou:: Y.,. /l'jo -No, t J!aiif!he line.. 

1} lf:yes, provid~'the nome oftlte eourt:and thli locatioti·oftlie court (citr,• ~Pnty, sllitc;;zjp em!~. 

t:ouhtr:y}: 

2) If}'es, .provide all the chn~ge~ brought again~! you Jot: this Q~nse, ancf.th~ oul~(i!Jle ofcach ciJ~rgCd 

oftense (such as fciund.guHfr;found not"Sl!.ilty, clil!l'gc. dropp~d of. ''nolle pros,;' etc}.lfyou were fo!IQd guiltY. of.or:pleaded.gUllt:y to· a:-lesger olTense,. fiSt separa~eiy_botti the original c)wrge and t_he less~r 

of!l,nse: 

3) Ifno,_provld.c expls-na!io~: 

Q) W<ire rou sentenced qs a resu)t oftlljs-offense: Yes} NO- N~. 

11 
164 

I) Were yo,u ·ser\tenced.I!J: in\j)rjsorim~nt. fo(a·term exc·ee:iling o!le:year: Yes /l'f o· No. 

J) Ware.·you i•icar~erated $.1' result of !hat senieJJce for. not less l~a" o.ne.year: ¥es-/ NQ- No. 

K) If the c6nl(ictio'n resutt~.iidmprisonment, ·provide the dllres that you actually were incareerate4: 

L). If CO!Jvlcti~n re'ulte~ in probation or p,arole, P,rovl<!e tlte ·daies of J!robation or pnroie: 

M)' Are. you currently otrtrial, awaiting n trial, oi:.awaiting.~ent~ncing.on criminal charges:for.this o.tfe.nse: 'Vos) 

.J:ilo"No. 

N) .Provid.e exp!W!atlon: 

W~·pmvid~c( an opim:~on~il)cr. c'itaJl~n·t:or·alcobollMore a concert. Matterwas.expunged fuim my record on.llily 

8, Z004. 

12 
165 

10, Civil Litigation and· Admi'nistrative or LegislatiVe Proceedings 

(A):Since.(and iii eluding)' your I~th birth~ay~ ~tave.y.ou b~e?: a.party ~o any~pu61ic r.ec~td· civil court action ·or administrative or legiSlative procee4mg of .. any kmd thitt result~d m '(1) 

~ finding_ of wrqngdoing-againl!t y(lu;or {2) ll seft.Iemellt ag_r:eement--foryi!u, or sonie.other 

person or entity, to make a payment fo ·settle allegations .against )imj; or for you .to take, 111: 

r41frain from taidng;some 11ctipn •. Jjo NOT incl~desmall~;laims prooeedin·gs. 

No-.. 

{B) In addition to tliof!.e listW. above; Jiav.e ypu !Ji" any business qf .. 1vhich ·you wcre·~n officer, 

director m: ow~er. eve~; b_een involved as·a partyofjnterest in any admiDJstratiVe ageilc)' 

prm:eedilig cir civ1llifi'gatiol'l? Pl~se if;lentifjr and pnivide-dl\tails for any .pr.oceedings. or 

civil li'tig'ilfion.tl!at inyoiV'!l acjioll$ taken. or qm.itte4 by.yo_~.t, l)r f;illeged to haye !Je!lfl taken or 

o.mitted. br you, whlle.·serving_ in· yaur official capacity.. · 

No. 

(C) For- responses. iothe:previolls queslio.n, ·plellse:identlfy>and provfde·details for any 

proceedings or> ci11illitigation that in~'olv'e-aCtions taken or omi#!!d -~Y you, or alleg!!d .to. 

Jlave· I)~CD :tll,k!!D .01" O,mjf~cd br you, wfijJe.S!!rving iii ypur offltiaJ capadt}'. 

11. Breach of-Professional Eth1cs 

(A) Have YO\J.ever·l!eel!. !l!$cipllneil or cl~ed.fqr a breach-or ethics or-linprofessiolial·conduct 

by,,:or been··the·subjeet ofa complaint ~.·any.court, ad~ihi~.tratiV_e agency, pr-ofe,9siooal. 

assoclatioil,.di$cipliiuiry eommittee;·Qr .ot~er prof!!ssional group? Exclude cases and 

procli,leding$ a.!ready:lis.fed. · 

No, 

·(B) Have you ·eYer been ·nred. from a job, qiiit a job.a'ftei' ~eing told you "·oullf be fir~d, left a job ~y·tnutual agreement foUowing: !=hai'ges or-·alleg!lli«!cJIS ~f m·~sconduct, le{t a job by 

~utual.-~g•'ecmentfolll).lving-.notiC€l ~:if-unsatisfactory perfornhmce1 or received a 'il"ritten 

warning, been:·officially reprimanded, st(spehded,or, dis~:iplinf,!d r:o·r f!liscol)dnct in. the· 

workplace; su~;h. a11. violatipn. ofa se.curity policy? 

No. 

il. Tu Com'P]i~nce 

{TI!is information will·.not be. published in 'the r.ecord. of the hearing on yli!J.r npminati~:m, 

bu( it will bA~· .::etained in the ·commiftee's .files and will be ayaila~le fl;ir publk inspection.) 

13 
166 

REDACTED 

13. Lobbying 

ln the .past-ten·years;. have·yon reg_i~tere4 ils a lobby~t? If~o, pl~e fl\r,licafl1 ~lie state, 

fede'nll, or local lrodies'-with which you, have n!gistered. _(e.g_., House, -Seilate,-Califofnia: 

S~etary·.of·State). 

No. 

14. Outside P.i>sitlonsI .~e OGE:For-!~ 278. (If,: for yol.!r.oQ.l)li!Jation, you hs.ve·:completed an OGE Fann 278 .. 

Execittive Branch: P.erj!eimel Pul:!lic..Fil\anc:ial·Distlosure . ."Report, you may .~heck the box here to 

i:omplete thiS" se.ctioinnd)hen ptoce.eq tQ .the next ~cti n.) 

J'iir tlie pr.eteilin~ tell" .calendar yeoj.i's and the current Citle~"dar year, report .anY. p.ositlo'111 

·held, \Vhetlter comvensated or not. Positions ilii:!nde but a[jl J!.Dt l~ited to. those.of.an 

officer, directorl trustee1 general parmer,_proptietoi>, representati've,.empll)y:ee, o.f 

con~ultant.of.an)r cor.po~tlon, ·firm, partnership; lit other business-enterprise. or· any nrinp.J.'ofit:or;g_l!llization D!' edu~a:tion·al"insiifution. ~Jit."pci5ifions With r.eligiOUSrSOciit.l, 

f17!1tllrO;\ll, or p\l.fitital entities anci"ihos~ solely of an hono•·iuy nature. 
167 

l I 

J,S., Agi'e.enients oo: Artan.gements' 

J See (jGE:FtJrm 278. (If, for your.nortiination, you·have completed an OGE Form 2'78 . 

J;::xecutive.Hranch PersonndPiiblic Financial Disclosure Report, you ma:y checkth'e box here-to· 

c;omplete:thrs aecrton.and then proceed te the next section.) 

Aii-<if the date of fil~g yol!l' OGE l"omr278,.reportyot~r !lgreemen~~- or arrJ!~gem'lll.ts·for: 

(1) \!ODtinuing·particiPil:ti0n in an eitiploy.~e bene(!~ plan (~.g. pen:~ion, 4.0lk,.def~rred 

compensation); {l) continuation ilf payment by.a f!Jrmer employer (iiu:luding .se.vemnCIJ 

.Pay.mentsH (3) leaves ofillisencef-and.(4J (uture ~mploy~en~; 

Provide information regarding ariy agreements ox arr.imge!Uen~ yo11 have conce.rnlng (1) 

future employment> ~) ;t·t~ave of abl!~nce during yoitr pe_riod of Go'(ernmen~ servi!:c; (3) 

continuation of. payments by a former employer other than the UnitecJ States Governmcnh 

and,_(4). continuing· participation irian employee welfare-or benefit pl;:tn milin'tainer,l by !I· 

foimer-empiorer· other than ·United States Government retire~ne!lt ~nefitii. 

i6. Additional Financial Data 

,411 inforrt~_afi9D req·!lesJed. under tli(ii. beading·w~st be prov_i!Jed for 'foutself1-your spouse, 

and your dt!pende~ts• (T)lis i~fo,rmatiotr. will not be· published .in the-record- of the. hearing 

on, your nomination; !J.uf' it will be retained)n the: Col)l!n.ittee's.files and will be available Cot 

public inspection.) 

16 
REDACTED 

SIGNaTURE AND DkTE 

I hereby stab! ·thatl have read th¢ foregoiilg,~tafeWil!lt'o~ ~iog~phical and Fi~p.cial Jnfor.mation and thnHhi! inf

prqvid~ tli.crein is, to:the liest ofmy knoWledge; torrent, accurate. and.cmp.p1et¢ .. 

~~· 

Tl!.is d_ ~ .j.h d~y 9{ lllN~ 2!11 16 

24 
169 

UNITED STATES OFFICE OF 

GOVERNMENT ETHICS 

---- * ---------

The Honorable Ron Johnson 

Chairman 

Committee on Homeland Security 

and Governmental Affairs 

United States Senate 

Washington, DC 20510 

Dear Mr. Chairtnan: 

REO ACTED 

March !4, 201& 

In accordance with the Ethics in Government Act of 1978, [enclose a copy of the 

financial disclosure report filed by Ancliew F. Maunz, who has been nominated by 

President Trump for the position ofMember, Merit Systems Protection Board. 

We have reviewed the report and have oblllined.advice fromtbe agency concerning any 

possible confliet in light. 9f its functions and the· nomiriee~~ propose~ duties: ·Also enclosed is an· 

ethics agreement outlining the actions that the nominee will Ul)dertake to avoid conflicts of 

interest. Unless· a date· for corriplian¢e is ihdicated in the ethics.agreen'rent, the nominee mU:st 

fully comply within three months of confirmation with any action specified in the ethics 

agt'eemetit. 

Based thereon, we believe that this nominee is in compliance with applicable laws and 

regulations ·gov~rning conflicts 9finterest. 

Enclosures REDACTED 

Sincerely, 

DAVID 

APOL 

David J. A poi 

tJisi!olly:ll!!!d\>j"D!\VIDAI'Ol 

oo, .... us, .... u.s.a.... ............ omo. <>fGo_ ... ~kJ;..,..O.r\VIDAP£ii., 

~:·ZJoll.Wl06.'00.lot1ll~9101ll91ll 

o-m1t.u~.H t¥,'1Q"I5 .fl.I'M' 

Acting Director and General Counsel 

1201 NEW YORK AV£NW·SUITE SOO·WASH!NCTON DC•:iOOOS * * * * 
170 

Treyer Mason-Gale 

Alternate Deiiignated Agency Ethi~ Official 

U.S.Merit Systems Protection Board 

l615MSt'NW 

Washington, DC 20419 

.Dear Mr. Mason-Gale: 

January 13, 2018 

The pUIJlOSe ofthi11.letter is to describe the steps. that I will take to avoid l!riY achial or 

apparent conflict .of interest in the event that! am confirmed for tl:wposition ofMembcr and 

Vice Chairm.a11 of the Merit Systems Protection Board. 

As required by 1'8 U.S.C. §. 208(a),lwill not participate personally and substantiaJly in 

any particular matter in which I toiowthat I have a fin8f1cial interest directly and IJredictably 

affected by the matter; or in which I know .that a person whose intcr~ts are Imputed to me has a 

financial interest directly and. predictably affetted by the matter, unless I first obtain a written 

waiver, pursuant to 18 U.S.C. § 208(b)(l), or q!Jalizy for. a reg!Jiatory exemption, pursuant to 18 

U.S.C. § 208(b)(2). I understand that the interests of the following per.Sons are imputed to me; 

any spouse or minor child of mine; any general par:uuir of a partnership in which I am a llmitea 

or gener~;~l partner; any prganizatiqn in whic~ I serve. as officer, di~ctor, &uste.e, generai partner 

or employee; and any person or organization with which I am negotiating or have an 

ammge,mcnt concerning prospective employment. 

Jfi have. a managed aceount Or otherwise use the services ofan investment professionai 

during my appointment; 1 wilt ensure that the account manager or investmen~ professional 

obtains my prior approval ort a cBse-by~case basis for the pureha~ ofany as$ets other than cash, 

cash equi:\ialems; investment funds that qualifY for the exemption at 5 CER. § 2640;20I(a), · 

ob(jgations oftl)e United.States, or municipalbonds. · · 

I understand thatas an appointee. I will be required to sign the Ethics Pledge {Exec. 

Order Ng. 13?:70) and that l will be bound by the requirements and restrictions therein in 

addition to the commitments I have made .in this ethics agreement. 

l willmeefiil person with you during the first week of my service in ,the position of 

Member and Vice Chilinnan in ordertb complete the initial ethiCs briefing required under 5 

C.F.R. § 2638.305. Within 90 days of mY c.onlinnation, I will document my compliaricewith 

this ethics agreement by nodtying you in writing when I have completed the steps described in 

this ethics agreement. ·· 
171 

I have be.en advisedcthat this ethics agreement w.ill be posted publicly, consistent with. 

5 U.S.C. § 552, on the website of the U;S. ·Office of Government Ethics with ethics agreements 

Of other Presidential nominees who file pubHc financial disclositr¢ reports. 

Sincerely, 

~ Andrew F. Jytaun<: 
172 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-hearing Questionnaire 

For the Nomination of Andrew F. Maunz to be 

Member (to be designated Vice Chairman), Merit Systems Protection Board 

I. Nomination Process and Conflicts of Interest 

I. Did the President give you specific reasons why he nominated you to serve as Vice 

Chairman of the Merit Systems Protection Board (MSPB)? 

No. 

2. Were any conditions, expressed or implied, attached to your nomination? If so, please 

explain. 

No. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as Vice Chairman of the MSPB? If so, what are they, and to whom 

were the commitments made? 

No. 

4. Are you aware of any business relationship, dealing, or financial transaction that could 

result in a possible conflict of interest for you or the appearance of a conflict of interest? 

If so, please explain what procedures you will use to recuse yourself or otherwise 

address the conflict. And if you will recuse yourself, explain how you will ensure your 

responsibilities are not affected by your recusal. 

I have no business relationships, dealings, or financial transactions that would cause a 

a conflict of interest in this position. In addition, there is nothing else that causes a 

fundamental conflict of interest that would interfere in my ability to serve in this position. 

I will consult the appropriate ethics officials on the standards for recusal on any particular 

case. As I mentioned previously in my biographical questionnaire, it is possible that 

cases that involve work I was personally involved in at SSA may require me to recuse 

myself. Also, due to the fact that my wife is a current federal employee (attorney at 

SSA), it is possible I might have to recuse myself from any cases that come before the 

MSPB, directly involving her, either personally or as an attorney representing a party. I 

believe that the chances that a case would come before the Board under either of these 

scenarios is slim. On the rare chance that I must recuse myself from a specific case, I 

would leave it up to my fellow MSPB members to make the decision without me. 

Otherwise, my responsibilities at the MSPB would not be affected. 

Senate Homeland Security and Governmental Affairs Committee Page I 
173 

II. Background ofthe Nominee 

5. What specific background and experience affirmatively qualify you to be Vice Chairman 

ofMSPB? 

I have been involved in the full spectrum of employment law in the federal government. 

1 have litigated employment cases in a wide variety of forums, including before the 

MSPB. I have trained agency managers on employment issues, and I have researched 

and provided the agency guidance on the types of employment issues that the MSPB 

must decide. 

In addition to my employment law experience, I have been involved in several other 

aspects of administrative law, such as drafting agency regulations and policies that will 

assist me in my duties at the MSPB. 

6. What experience, if any, do you have in deciding cases, resolving disputes, or 

performing the other duties required in serving as Vice Chairman of the MSPB? 

As someone litigating cases, I have always had to evaluate the strengths and weaknesses 

of each side's case, which is similar to what a member of the MSPB must do to decide 

cases. I have also successfully resolves many cases through settlements. This has 

involved working with the other side to find common ground and ways we can resolve 

often contentious cases. 

I have also been heavily involved in SSA's Freedom oflnformation Act (FOIA) 

workload in recent years. When a FOIA case is made to the agency, the agency issues an 

initial decision and an appeal decision before the requester can challenge the agency's 

decision in federal court. One of my roles as an SSA attorney has been to review these 

decisions for legal sufficiency and to ensure the agency is issuing a legally correct 

decision in response to the FOIA request. 

Furthermore, SSA's Office of the General Counsel has delegated authority to issue 

decisions in cases where employees are seeking a waiver of an overpayment and in 

requests for testimony under the Touhy process. In my capacity as an attorney at SSA, I 

have been involved in deciding these requests. 

7. Please describe: 

a. Your leadership and management style. 

I am someone that believes true leaders lead by example and set a positive tone for all the 

other individuals in their organization through their own positive behavior. 

As far as managing the work of others and delegating tasks, I believe it is important to let 

all individuals know that, whatever they are doing, they are playing an important role in 

the ultimate process of completing the task. I believe that the best managers make sure 

Senate Homeland Security and Governmental Affairs Committee Page 2 
174 

their subordinates feel that they are able to contribute their own talents and perspectives 

to a project. It is important to stay engaged with the people you are managing to ensure 

the tasks are completed timely and correctly, but I believe that you must trust their 

abilities and not micromanage. 

b. Your experience managing personnel. 

I have served as an acting division director on many occasions. I have also led projects 

and organized trainings when I have had to get many people on the same page to 

complete the task. In addition, I often review other attorneys' work when requested to 

provide constructive feedback and try to serve as a resource and mentor for newer 

attorneys in my office. 

c. What is the largest number of people that have worked under you? 

When serving as an acting division director, I have been responsible for about 5-7 

attorneys and 1 paralegal. 

III. Role of Vice Chairman, MSPB 

8. The Civil Service Reform Act requires that individuals appointed to the MSPB 

"demonstrate[] [the] ability, background, training, or experience" necessary to "carry out 

functions of the Board." 1 Please describe how your abilities, background, training, and 

experience qualify you for the position of Vice Chairman of the MSPB. 

As discussed above in question 5, I have ample experience with the types of employment 

law issues the MSPB handles. I believe that I am a skilled lawyer who can analyze 

several complex legal issues at the same time, which will help me in deciding cases at 

the MSPB. In addition to my training as a lawyer, I have attended several trainings 

specific to MSPB issues. 

9. In your opinion, what is the role of the MSPB? What is the role of Vice Chairman in 

carrying out the statutory objectives of the MSPB? 

As an administrative agency, the MSPB's role is laid out by statutes. Primarily, it is to 

decide the various cases it has the authority to decide within the bounds of the relevant 

legal authorities. A large portion of the MSPB workload is to review federal agencies' 

major disciplinary actions to ensure they are lawful and have not violated the employee's 

rights. It also plays an important role in protecting whistleblowers, keeping the federal 

workforce free of partisan political activity on government time, preventing of prohibited 

personnel practices, and other important functions by reviewing personnel actions and 

applying the law as written. The MSPB also has the authority to conduct studies and 

review Office of Personnel Management regulations. 

I 5 U.S.C. § 1201. 

Senate Homeland Security and Governmental Affairs Committee Page 3 
175 

While the Chairman has the authority to run the administration of the MSPB, the Vice 

Chairman's role is to provide support and advice to the Chairman in fulfilling these tasks, 

when needed. The Vice Chairman must also be ready to serve as Acting Chairman when 

necessary. 

10. MSPB's mission is to "protect the Merit System Principles and promote an effective 

Federal workforce free of Prohibited Personnel Practices." How do you envision 

fulfilling MSPB's mission both day-to-day, and long-term? 

Day-to-day, the most important way for the MSPB to fulfill its mission is to issue 

decisions that apply the law as it is written. Long term, the MSPB can fulfill its mission 

by establishing clear precedents that closely follow the text of the law. This will allow 

employees and agencies to have a clear picture of the legal landscape when they make 

their decisions. 

11. What do you anticipate being the greatest challenge you would face as Vice Chairman of 

the MSPB, and how would you seek to prepare for and address those challenges? 

The greatest challenge currently facing the MSPB is the number of cases currently 

waiting for a decision. As Vice Chairman, I would address this challenge by working as 

hard as possible to issue legally correct decisions as quickly as 1 can. I will also be 

willing to explore innovations and changes that could help the MSPB issue more 

decisions quickly. 

12. What do you believe to be the top challenges facing the federal workforce today? What 

steps do you plan to take to address these challenges, if confirmed as Vice Chairman? 

Please explain. 

This question largely focuses on policy, which is the domain of the Office of Personnel 

Management. The MSPB's primary role in addressing any issue in the federal workforce 

is to issue legally correct decisions. It also can help identifY current and potential issues 

through the studies it has the authority to conduct. 

13. Do you believe you will review and adjudicate cases that come before you with good 

judgment and impartiality? Please explain, citing examples of prior work or experience 

that could bear on your abilities, if applicable. 

Yes, as discussed above, when litigating cases and providing SSA advice, I have had to 

look at the situation from an impartial perspective to make sure I am considering all 

issues and perspectives. I have also had to perform some of my work from a neutral 

standpoint, like the FOIA decisions I mentioned. 

I believe the people 1 work with view me as someone who is level-headed and has good 

judgment. I am known in my office as someone who can look at issues and problems 

Senate Homeland Security and Governmental Affairs Committee Page4 
176 

from a calm perspective and as someone who is able to review the facts and the law to 

reach the right conclusion, without my personal preferences entering into the analysis. 

IV. Policy Questions 

14. What role do you think alternative dispute resolution options, including the Mediation 

Appeals Program, should play in the MSPB adjudication and enforcement process? 

Alternative dispute resolution, including mediation, plays an important role in nearly all 

litigation these days. Mediation can be an effective way to resolve disputes without the 

costs of a trial. I personally have participated in mediation in attempts to resolve 

disputes on multiple occasions. There are different techniques for mediation and I 

believe that some techniques are more effective than others. As Vice Chairman, I would 

work to make sure that the MSPB's mediation program uses the most effective 

approaches to resolve cases and allows all parties involved to feel that the mediation was 

a productive use of time. 

15. MSPB is statutorily responsible for conducting oversight ofthe Office of Personnel 

Management's significant actions. How will you coordinate with OPM to ensure any 

significant actions conform to the merit systems principles outlined in 5 U.S.C. § 2301? 

5 U.S.C. § 1204(f) allows the MSPB to review OPM rules and regulations "after the 

effective date." Also, 5 U.S.C. § 1206 states that the MSPB's annual report will review 

the significant actions of OPM. The best way for the MSPB to ensure that OPM's 

actions conform to merit systems principles is to use these authorities to conduct 

meaningful oversight ofOPM's actions. 

16. MSPB previously highlighted the need to examine the prevalence and forms of reprisal 

for protected activity, particularly for whistleblowing.l Do you view reprisal for 

whistleblowing as a significant challenge facing the federal workforce? Why or why 

not? 

I believe that whistleblowers play an important role in identifYing malfeasance in the 

federal government. If an individual makes a protected whistleblower disclosure or 

engages in protected whistleblower activities, he or she should be protected from 

retaliation to the fullest extent the law allows. Any illegal reprisal against 

whistleblowers is significant and should be remedied immediately. I do not have access 

to the data at this time to determine how many of these incidents occur throughout the 

federal government. 

17. In your opinion, is the underutilization of probationary periods a critical issue? If 

confirmed as Vice Chairman ofMSPB, what steps would you take to ensure that 

managers better utilize probationary periods? 

2 Merit Systems Protection Board, MSPB Research Agenda2015-2018 (Feb. 2015), available at 

https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=ll40540&version=l145045&application=ACROB 

AT. 

Senate Homeland Security and Governmental Affairs Committee Page5 
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This is a workforce management issue that should be left to OPM. I would decide any 

cases involving probationary periods in accordance with the applicable legal standards. 

18. How do you view the role of information technology at MSPB as it relates to both dayto-day business and the overall mission objectives to uphold merit systems principles? 

Information technology plays an important role in both how the agency decides cases 

and how it conducts agency business. As a practitioner, I have always been impressed 

with the MSPB's electronic case filing system. I believe the MSPB should explore all 

avenues in how information technology can allow it to hold more hearings and process 

cases quicker. 

Information technology can also enhance the way the agency communicates with its 

employees across the country. I believe to the greatest extent possible the MSPB should 

be using technologies like video teleconferencing to allow its offices to communicate 

with each other and save on costly travel. 

19. What role do you think merit systems studies, published by MSPB, play in ensuring a 

competent and efficient federal workforce? 

These studies play an important role in identifying and examining emerging issues in the 

federal government. I believe they can be an important tool for agencies, OPM, 

Congress, and the White House in developing policies for the federal government 

workforce. 

a. What steps would you take to ensure that MSPB's external reports address critical 

federal workforce issues? 

The best step that can be taken is to solicit feedback from outside MSPB to see which 

issues stakeholders in this field want to see studied. The MSPB members can take 

what has been suggested from the outside, as well as ideas from inside the MSPB, 

and use it to develop an agenda that it relevant to the federal government community. 

b. What, if any, coordination do you believe should occur between MSPB and OPM to 

address federal workforce issues raised by MPSB studies? 

Ultimately, as the policy making agency, OPM has the responsibility to use these 

studies to determine what policies it should implement. However, I believe the 

MSPB should solicit feedback from OPM, as it would other interested parties, on 

what areas it would like to see studied and what information it thinks the MSPB 

should collect in order to study a particular area. 

20. According to MSPB's Fiscal Year 2017 annual report, 22 percent ofMSPB employees, 

including 25 percent of administrative judges, are eligible to retire in the next two years. 

Senate Homeland Security and Governmental Affairs Committee Page 6 
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What steps will you take to ensure that MSPB conducts its own succession planning, so 

that you are able to execute your statutory duties? 

The MSPB should periodically review all succession planning to ensure that it is up to 

date on the realities of its workforce. It should also work to make sure it is recruiting the 

best people to come work at the MSPB. In addition to succession planning and 

recruitment, the MSPB should also examine what, if any, changes it can make to its case 

processing that would allow it to process more cases with fewer people. 

21. In March 2018, MSPB published an updated survey on sexual harassment in the federal 

workforce. 3 In this survey, 20.9 percent of women in the federal workforce and 8.7 

percent of men experienced a type of sexual harassment in the two years preceding the 

survey. 4 Only eight percent of these employees believed corrective action was taken 

against the individual who committed the harassment, possibly resulting in employees 

not using agency procedures to report the harassment. 5 What do you believe is the role 

ofMSPB in ensuring accountability against harassers in the federal workplace and in 

ensuring employees can report harassment without reprisal? 

The MSPB's primary role is in reviewing the disciplinary cases of the harassers and 

issuing clear, predictable decisions in accordance with the law. 

The law also makes it clear that it is illegal to engage in reprisal against someone who 

reports harassment. The MSPB can help remedy this situation by issuing decisions in the 

cases that come before it that clearly uphold the law and state that illegal reprisal will not 

be tolerated in the federal government. 

22. What steps can MSPB take to improve federal supervisors' knowledge and intra-agency 

support regarding disciplinary and removal processes? 

In order to inform not just supervisors, but the public in general, the best step the MSPB 

can take is to issue clear decisions that can be understood by a layperson, and not create a 

disciplinary process that is more complicated than the law requires. The MSPB can also 

continue to engage in outreach at federal government conferences and other events in 

order to let supervisors, employees, agency attorneys, and plaintiffs' attorneys know 

about the latest developments in this field. 

23. Protecting whistleblower confidentiality is of the utmost importance to this Committee. 

a. During your career how have you addressed whistle blower complaints? 

3 Merit Systems Protection Board, Update on Sexual Harassment in the Federal Workforce (Mar. 2018), 

available at https://www. mspb .gov/MSPB SEARCH/viewdocs.aspx?docnum ber= 150063 9&version= 150623 2& 

application=ACROBAT. 

'Id. at4. 

'Id. at 8. 

Senate Homeland Security and Governmental Affairs Committee Page7 
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I believe that all whistleblower complaints should be taken seriously and a thorough 

examination ofthe facts should take place to determine what happened. 

My firsthand experience with whistleblower issues consists of an administrative law 

judge (ALl) discipline case where a whistleblower defense was raised briefly, but not 

central to the case. I also assisted in the SSA's production of documents for an Office 

of Special Counsel investigation. I also did extensive research and wrote an internal 

SSA white paper of the issue of federal employees' First Amendment rights, which 

often coincide with whistle blower issues. Also, while not specific to whistleblowers, 

I have trained managers on retaliation and reprisal issues and infonned them that they 

should not base any personnel actions on illegal retaliatory motives. 

b. How do you plan to implement policies within the MSPB to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

I believe in having an open door policy where employees can come to me with 

suggestions, concerns, and criticisms. I am not someone who is easily offended by 

someone disagreeing with me or having different views. I will welcome all 

perspectives at the MSPB, and any illegal reprisal will not be tolerated. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

MSPB does not face retaliation? 

Yes. 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? 

Yes. 

V. Relations with Congress 

24. 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? 

Yes, consistent with the law and applicable rules and regulations. 

25. Do you agree without reservation to make any subordinate official or employee available 

to appear and testify before, or provide information to, any duly constituted committee 

of Congress if you are confirmed? 

Yes, consistent with the law and applicable rules and regulations. 

26. Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents, communications, or any other agency material or information 

from any duly constituted committee of the Congress if you are confirmed? 

Senate Homeland Security and Governmental Affairs Committee PageS 
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Yes, consistent with the law and applicable rules and regulations. 

V. Assistance 

27. Are these answers your own? Have you consulted with MSPB or any other interested 

parties? If so, please indicate which entities. 

The answers are my own. I shared a draft with acting MSPB Chairman Mark Robbins 

and MSPB staff to allow them to review. 

Senate Homeland Security and Governmental Affairs Committee Page 9 
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Minority Supplemental Pre-bearing Questionnaire 

For the Nomination of Andrew Felton Maunz to be 

Member (to be designated Vice Chairman), Merit Systems Protection Board 

I. Nomination Process and Conflicts oflnterest 

I. Has the President or his staff asked you to sign a confidentiality or non-disclosure 

agreement? 

No. 

2. Has the President or his staff asked you to pledge loyalty to the President or the 

Administration? 

No. 

3. Have you ever represented a party in a matter before or involving the Merit Systems 

Protection Board (MSPB)? 

a. If so, please describe the matter(s) and the nature of the representation. 

Yes. Since these are administrative proceedings, I am providing initials ofthe names of the 

litigants, unless there is a public decision of the case, in order to protect these individuals from 

public scrutiny. 

SSA v. JP, Docket No. CB-7521-13-0004-T-1: !represented SSA in this ALJ discipline 

case, which settled. 

SSA v. McQuary, Docket No. CB-7521-11-0003-T-1: !represented SSA in this ALJ 

discipline case. 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=736991&version=73 

9597 &application=ACROBAT. 

DM v. SSA, Docket No. PH-0432-10-0028-I-1: I briefly entered an appearance to 

represent the agency in this performance removal case, but soon left the case to deal with 

other more pressing workloads. 

TL v. SSA, Docket No. PH-0752-09-0463-I-1: I represented the agency in this 

suspension case, which settled. 

LB v. SSA, Docket No. DE-0752-08-0436-A-1: I represented the agency in this litigation 

over attorney fees after the individual had successfully got her removal overturned. I did 

not represent the agency in the original action challenging the removal. 

4. Have you ever represented the Social Security Administration in a matter involving the Civil 

Rights Act of 1964, the Age Discrimination in Employment Act, the Privacy Act of 1974, or 

the Equal Access to Justice Act? 

a. If so, please describe the matter(s) and the nature of the representation. 

Senate Homeland Security and Governmental Affairs Committee Page 10 
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Yes, these four laws were listed in the first paragraph of the complaint in the case of 

Ridgell-Boltz v. Astrue/Colvin No. 201 0-cv-00252. I began representing the agency in this 

case as a Department of Justice Special Assistant United States Attorney/ Special Attorney 

in September 20 II. Under this status, I was working under the authority and supervision 

of the civil chief of the New Mexico U.S. Attorney's Office. A colleague and I 

represented the agency at a jury trial in the summer of 2012. I served as the second chair 

attorney at the trial. I also represented the agency in two appeals of the case to the I oth 

Circuit (Ridgell-Boltz v. Colvin No, 12-1495 and Ridgell-Boltz v. Colvin No. 15-1361). I 

continued to serve as the agency's counsel in the case until early 2017 when the case was 

finally resolved after I negotiated a settlement with the plaintiff and her counsel. 

Civil Rights Act of 1964, Age Discrimination in Employment Act, and other civil 

rights laws. 

I have represented the agency in several other cases that involve these laws in litigation 

before the Equal Employment Opportunity Commission. I am listing the cases I have 

handled before the EEOC that involve these civil rights laws below. As I did with the 

MSPB cases, I am listing the litigants' names as initials. 

African American Males Class Action, EEOC No. 531-2013-00 129X. I have represented 

the agency for the past several years as the lead attorney in this multi-million dollar class 

action case that stems from a finding the agency breached a settlement agreement to 

resolve the original class action. 

RA v. SSA, EEOC No. 53l-2009-0056X 

LB v. SSA, Petition No. 0320100006 

RJ v. SSA, EEOC No, 531-2010-00095X 

RK v. SSA, EEOC No. 531-2011-00027X 

EK v. SSA, EEOC No. 531-2008-00174X 

HM v. SSA, EEOC No. 531-2009-00244X 

HMv. SSA, EEOC No. 53l-2011-00309X 

HR v. SSA, EEOC No. 531-2008-0228X 

DS v. SSA, EEOC No. 531-2008-00298X 

LB v. SSA, EEOC No. 541-2010-00033X 

DL v. SSA, EEOC No. 541-2010-00023X 

MS v. SSA, EEOC No. 570-2009-00769X 

CS v. SSA, EEOC No. 53!-2009-00243X 

SB v. SSA, EEOC No. 460-2012-00002X 

Privacy Act of 1974 

Robinson, et al. v. SSA, Civil No. 11-10524-GAO. I did not enter an appearance in the 

case, but I assisted the Assistant US Attorney in defending the agency in this Privacy Act 

case. 

Senate Homeland Security and Governmental Affairs Committee Page II 
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Equal Access to Justice Act 

EAJ A primarily serves to provide attorney fees to litigants who are litigating against the 

federal government. Most of the cases I am involved in feature laws that have specific 

provisions providing attorney fees, so I have not directly handled any cases where EAJ A 

was an issue. It was only briefly mentioned in the Ridgell-Boltz case. 

II. Accountability 

5. During your career, has your conduct as a federal employee ever been subject to an 

investigation or audit by CIGIE, Office of Special Counsel, Equal Employment Opportunity 

Commission, Department of Justice, or any other federal investigative entity? If so, please 

describe the investigation or audit and its outcome. 

No. 

III. Publications and Speeches 

6. Please describe the purpose and name of your blog: 

wherehaveyougonemargeschott.blogspot.com. 

The purpose ofthe blog was just to be a fun way for me and my friend to talk about sports 

and to serve as a distraction from law school. It was quickly abandoned because we both got 

too busy. 

The name was a take-off of the line "Where have you gone Joe DiMaggio?" from the Simon 

and Garfunkel song "Mrs. Robinson." The name was supposed to be a tongue in cheek 

reference to how long-suffering Ohio sports fans (my friend was a Cleveland Browns fan and 

I was a Cincinnati Reds and Bengals fan) often long for the "good old days," even if the 

people who led the teams in those days were controversial, like Marge Schott. The name in 

no way was meant to celebrate Mrs. Schott, nor condone any of her behavior or statements. 

7. Do you maintain any other public blog(s)? If so, please share the appropriate links to each. 

No. 

IV. Background of Nominee 

8. Have you represented a whistleblower or other employee in an adversarial dispute against the 

federal government? 

No. 

9. Do you seek out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? 

Yes, please see my answer to question 23b of the majority questionnaire. 

Senate Homeland Security and Governmental Affairs Committee Page 12 
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10. Please give examples of times in your career when you disagreed with your superiors and 

aggressively advocated your position. Were you ever successful? 

While I am not sure I disagreed with my superiors or "aggressively advocated" my position, 

one situation that 1 can think of where I was able to convince not just my immediate 

supervisors, but also agency executives, to take an action they may not have taken otherwise 

is when I convinced the agency to ask for an opinion from the Department of Justice Office 

of Legal Counsel (OLC) on the legality of an EEOC order. I advocated my idea at several 

levels of the agency and was able to convince all relevant individuals that this was the right 

course of action. Ultimately, OLC agreed with my position and issued an order in the 

agency's favor. https://www .justice.gov/opinion/file/83 359 I! download 

II. What would you consider your greatest successes as a leader? 

I consider my greatest success as a leader the securing of the OLC opinion I described above 

in question I 0. I truly feel that I was able to lead the agency to a result that it likely would 

not have otherwise pursued. 

12. Why do you want to serve as Vice Chairman ofMSPB? 

It would be a great opportunity to serve in such an important role in our government and to 

help ensure that our civil service laws are applied properly. 

13. What type of managerial style do you think is necessary for the role of Vice Chairman of 

MSPB? 

I believe that the Vice Chairman of the MSPB should lead by example and set the tone for 

the agency by conducting himself with integrity. Please also see my answer to question 7a of 

the majority questionnaire. 

I 4. If an accusation of discrimination were to arise within an office under your management, 

what actions would you take to address such an accusation? 

I would ensure that the allegations are processed under the appropriate procedures in 

accordance with MSPB's policies for handling discrimination claims. 

15. Do you have experience addressing instances of prohibited personnel practices (PPPs)? If so, 

please generally describe your experience. 

As described above, I have litigated numerous discrimination cases before the EEOC. 

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16. Do you have any experience adjudicating matters? If so, please provide an example. 

Yes, please see my answer to question 6 ofthe majority questionnaire. 

17. How will your experience help MSPB maintain MSPB's Merit System Principles (MSPs)? 

My experience in the federal government has given me first-hand experience in how 

important it is that MSPs are maintained and that the federal government operates under the 

highest standards. Using this background, I will be able to take the necessary actions to 

maintain MSPs. 

18. What lessons from your time as a Senior Attorney with the Social Security Administration 

(SSA), will you bring with you to MSPB, if confirmed? 

My experience with SSA has not only given me familiarity with many of the laws that the 

MSPB administers, but also has given me experience for how agencies actually operate. I 

have learned lessons about the challenges agencies face in managing their workforce and also 

about the perspectives that many employees have. Familiarity with these issues will be 

invaluable to my work with the MSPB, if! am confirmed. 

V. Policy Questions 

19. Precedents, findings, recommendations and reviews of Office of Personnel Management 

(OPM) rules by the MSPB have potential to directly affect how employees are managed and 

how their appeals are decided. What role do you believe the MSPB should play in developing 

personnel policy? 

The role ofthe MSPB is to issue legally correct decisions. Other agencies are responsible for 

developing personnel policies. 

20. The MSPB has the statutory responsibility to conduct objective, non-partisan studies that 

assess and evaluate Federal merit systems policies, operations, and practices. These studies 

are typically government-wide in scope and ensure that the workforce is managed in 

accordance with MSPs and is free from PPPs. What role do you believe MSPB's data 

collection should play in supporting personnel policy? 

My understanding is that the data the MSPB collects for its studies is available to policy 

makers to use to make their decisions. 

21. MSPB has been without a quorum of Board members since January 8, 2017. The lack of a 

quorum contributes to delays in issuing final decisions in petitions for review (PFRs) and 

other cases filed at headquarters (HQ) and releasing reports of merit systems studies. 

a. The MSPB currently estimates that it will take months or longer to process the 

inventory of cases at HQ and to publish merit systems studies reports once new 

Senate Homeland Security and Governmental Affairs Committee Page 14 
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Board members are nominated and confirmed. Please describe how you will 

effectively and promptly address MSPB's current backlog. 

One of the first things that I believe the newly confirmed members of the 

MSPB should do is develop a plan to try to address the backlog as quickly as 

possible. Personally, I am committed to working as quickly as possible so the 

agency can issue cases as fast as it can. 

b. Please describe how your previous work experience has prepared you to 

address the challenges in resolving MSPB's backlog. 

While at SSA, one of the main focuses of the agency during my career has 

been reducing the number of cases pending for a hearing before an ALJ. 

Therefore, I am familiar with an agency working to reduce its backlog and 

have been involved in some of the agency's efforts to process cases faster. In 

particular, I have been involved in providing legal guidance for the agency's 

policies concerning the claimants' representatives that appear before the 

agency. Many of these policies have been focused on the agency's ability to 

process cases quickly. As examples, I have worked with the agency to 

implement new regulations, clarify the agency's submission of evidence rules, 

and require representatives to use the agency's electronic services in certain 

situations. 

c. The MSPB Vice Chairman has voted on over 800 PFR cases which also await 

consideration by new Board members. If confirmed, please describe how you 

will work with your colleagues to consider cases awaiting decisions. 

As I stated above, I believe my colleagues and I should immediately work on a 

plan to tackle the number of cases pending before the MSPB. 

d. Do you have experience with resolving backlogs such as the one faced by 

MSPB? If so, please describe your experience. 

Yes, my experience with SSA as described above in the answer to 21 b. 

e. Have you sought advice from any current or former MSPB employees about 

how to best address the current backlog? If so, please describe your 

consultations. 

The current acting Chairman Mark Robbins has generally explained the 

situation to all of the nominees. 

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22. MSPB functions as an independent, third-party adjudicatory authority for employee appeals 

of adverse actions (e.g., removals, suspensions for more than 14 days, and furloughs) and 

retirement decisions. 

a. Please describe your experience in developing adjudicatory processes and 

procedures, issuing subpoenas, calling witnesses and enforcing decisions. 

In addition to my litigation experience that I have already described, I have 

worked to help develop the adjudicatory processes SSA uses to disqualifY 

claimants' representatives from appearing before the agency. See 20 C.F.R. §§ 

404.1700-.1799. I have also handled actions to disqualifY representatives from 

practice before SSA. In those actions, I have requested subpoenas and 

implemented the agency's decision to disqualifY the representative. 

b. Please describe how your previous work experience has prepared you to 

execute and supervise these actions at MSPB. 

I have a variety of experience litigating in various forums. This experience has 

prepared me for fulfilling my role at the MSPB. 

23. How should Board members seek to safeguard their independence? 

The best way for Board members to safeguard their independence is to issue decisions that 

are based on nothing more than the appropriate legal standards and to only issue decisions 

that are based on their best judgment, not the pressures from any outside forces. 

24. MSPB was given the authority and responsibility to review the rules, regulations, and 

significant actions ofOPM. Do you have any concerns about OPM's current rules, 

regulations or recent actions? If so, please describe those concerns. 

1 would have to better familiarize myself with all ofOPM's rules, regulations, and significant 

actions before I could answer this question. 

25. Do you believe MSPB has the resources it needs to meet current challenges? Please explain. 

I am not in a position to answer this without more information on the internal workings of the 

MSPB and its current resources. 

26. How will you address the occurrence of PPPs with internal employees of MSPB? 

MSPB managers should be trained appropriately so that PPPs do not occur in the first place. 

If there are allegations of PPPs at the MSPB, I would ensure that the complaint is handled 

properly in accordance with the MSPB's processes. 

27. In some cases, complainants who may be better served by other government agencies such as 

the EEO or OSC seek assistance from the MSPB. 

Senate Homeland Security and Governmental Affairs Committee Page 16 
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Hatch Act 

a. How will you work to ensure that your staff effectively guides these 

complaints to the appropriate resources? 

Make sure staff reroutes cases that are not in the MSPB's jurisdiction quickly and 

efficiently. 

b. Will you collaborate with other government agencies to minimize duplication? 

If so, please describe how you will work to achieve this objective. 

I believe agencies should communicate with each other and the public to ensure 

that the appropriate cases are filed with the correct agency. 

28. What would you consider to be an appropriate penalty for a violation of the Hatch Act by a 

senior administration official? 

While I am not sure what you mean by "senior administration official," most individuals who 

would fall under that term are exempted from the MSPB's Hatch Act jurisdiction. The 

penalty for any Hatch Act violation should depend on the facts of the case. 

Whistle blower protections 

29. Please describe any previous experienc~in the public or private sector-with handling 

whistieblower complaints, and what steps you took to ensure those individuals did not face 

retaliation and that their claims were thoroughly investigated? 

Please see my answer to question 23a of the majority questionnaire. 

30. OSC has filed an amicus brief opposing an MSPB decision that ruled against a whistleblower 

alleging retaliation because the MSPB said the whistieblower's disclosure was motivated by 

"interpersonal squabbling." Do you believe that the motive of the whistleblower should be 

considered when examining retaliation claims? Please explain. 

I am not familiar with that specific case and would need to examine the issue in more detail 

before I can opine. 

31. OSC filed three amicus briefs in 2017 opposing the MSPB' s alleged attempts to impose 

higher procedural burdens on whistleblowers. Do you believe that whistleblowers should be 

subjected to higher procedural burdens before their cases are considered by administrative 

judges? Please explain. 

I am not familiar with that specific case and would need to examine the issue in more detail 

before I can opine. 

Senate Homeland Security and Governmental Affairs Committee Page 17 
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32. OSC has also filed amicus briefs opposing the application of higher evidentiary burdens on 

whistleblowers. OSC has written that this burden "runs directly counter to Congress's intent 

in passing the WPEA's enhanced protections for federal whistleblowers." Do you believe 

that any whistle blowers should be subjected to higher evidentiary burdens? Please explain. 

I am not familiar with that specific case and would need to examine the issue in more detail 

before I can opine. 

33. If confirmed, how will you ensure that whistleblower complaints are properly investigated? 

The Office of Special Counsel has the responsibility for investigating whistleblower 

complaints. MSPB can ensure that the complaints are properly investigated by using its 

authority under 5 U.S.C. § 1212(b)(3)(A) to enforce OSC subpoenas. 

VI. Relations with Congress and the Public 

34. If confirmed, how will you make certain that you will respond in a timely manner to Member 

requests for information? 

Yes, consistent with the law and applicable rules and regulations. 

35. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes, consistent with the law and applicable rules and regulations. 

36. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? 

Yes, consistent with the law and applicable rules and regulations. 

37. If confirmed, do you commit to take all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? 

Yes, consistent with the law and applicable rules and regulations. 

38. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? 

Yes, consistent with the Jaw and applicable rules and regulations. 

Senate Homeland Security and Governmental Affairs Committee Page 18 
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39. If confirmed, will you ensure that your staff will fully and promptly provide information and 

access to appropriate documents and officials in response to requests made by the 

Government Accountability Office (GAO} and the Congressional Research Service? 

Yes, consistent with the law and applicable rules and regulations. 

40. If confirmed, will you agree to work with representatives from this Committee and the GAO 

to promptly implement recommendations for improving MSPB's operations and 

effectiveness? 

Yes, consistent with the law and applicable rules and regulations. 

41. If confirmed, will you direct your staff to fully and promptly respond to Freedom of 

Information Act requests submitted by the American people? 

Yes, consistent with the law and applicable rules and regulations. 

42. If confirmed, will you ensure that political appointees are not inappropriately involved in the 

review and release of Freedom oflnformation Act requests? 

Yes, consistent with the law and applicable rules and regulations. 

VII. Assistance 

43. Are these answers your own? Have you consulted with MSPB or any other interested 

parties? If so, please indicate which entities. 

The answers are my own. I provided a draft to acting MSPB Chairman Mark Robbins and 

the staff of the MSPB for their review. 

Senate Homeland Security and Governmental Affairs Committee Page 19 
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I. A11llw F. r~fJ.Y.-nl.. 'hereby state that I have read the foregoing Pre-Hearing 

Questionnaire and Supplemental Questiorumire and that the infonnation provided therein is, to 

the best of my knowledge, current, accurate, and complete. 

ThisJl.ih.day of J 1.\\f . 2018 

Senate Homeland Security and Governmental Affairs Committee 
192 

Maunz Nomination Questions for the Record 

Chairman Ron Johnson 

Post-Hearing Questions for the Record 

Submitted to Mr. Andrew F. Maunz 

page 1 of 14 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19, 2018 

Do you think it is appropriate to withhold in MSPB opinions the identity of an employee who is 

found to have committed a prohibited personnel practice? If so, please explain the reasons you 

believe the identity should be withheld. 

No. I understand that, while the Board may withhold the identity of an appellant or a respondent 

by granting anonymous "John Doe" status, such status is granted very rarely. A party seeking 

anonymity must overcome the presumption that parties' identities are public information. 

Anonymity is granted only in unusual circumstances, such as to prevent a clearly unwarranted 

invasion of a third party's privacy, to preserve the appellant's physical safety, or when the 

matters involved are of a highly sensitive or personal nature. 
193 

Maunz Nomination Questions for the Record 

Senator Claire McCaskill 

Post-Hearing Questions for the Record 

Submitted to Mr. Andrew F. Maunz 

page 2 of 14 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District of 

Columbia 

Thursday July 19, 2018 

Whistle blower Protections 

The MSPB is one of several entities -- including Inspectors General and the Office of Special 

Counsel (OSC) -- that play a role in protecting whistle blowers from retaliation, and ensuring that 

whistlcblowers are made whole if they experience prohibited personnel practices 

Congress has passed numerous laws to protect whistleblowers since the very founding of this 

country. Most recently, and most relevant to MSPB, are the Whistle blower Protection 

Enhancement Act (WPEA) and the recent enacted All Circuit Review Act. It is important to 

emphasize that Congress keeps passing laws and expanding protections because we believe 

whistleblowers are important and should be protected. Yet, sometimes the institutions charged 

with protecting wjlistleblowers do not heed this intent. We need to make sure that these 

institutions are operating on principles of transparency, accountability, and fairness. 

Q. Under oath, will you commit that federal employees will continue to have access to all 

the avenues of appeal available to them if you are confirmed? 

I can only commit to the avenues of appeal available to Federal employees at the MSPB, 

to the extent they exist under law, rule or regulation. 

Q. What will you do to ensure that the MSPB fosters a reputation for being an institution 

that is fair to whistleblowers? 

MSPB'sjob is to fairly, impartially and expeditiously adjudicate whistleblower claims 

consistent with both statutory provisions and controlling case law from Courts of 

competent jurisdiction. Without speaking for my possible future colleagues, I believe 

this will be a high priority for the Board once a quorum is restored. 

Q. MSPB's significant case backlog, soon to reach 1,300 petitions for review, can lead to 

continuing injustice for whistle blowers. What will you do to address this backlog? 

Addressing the backlog quickly, while still providing high-quality decisions, will be one 

of my top priorities if I serve on the MSPB. I believe that my fellow nominees and I will 
194 

Maunz Nomination Questions for the Record page 3 of 14 

be able to work well together to establish a plan to decide cases quickly and accurately to 

bring down this backlog as soon as possible. 

Q. Do you believe that the Administrative Judges hearing cases have sufficient training in 

whistleblower protection laws to ensure that rulings are not contrary to the law? What 

will you do to ensure that all employees within MSPB have a proper understanding of 

whistle blower protections? 

I believe that all employees should receive the training they need to perform their jobs to 

the best oftheir abilities. I do not have specific knowledge of what types of training 

MSPB employees, including administrative judges, have access to during their careers. If 

confirmed, I will ensure that administrative judges and all other MSPB employees have 

access to all of the training they need on whistle blower protections and all other topics. 

We have seen troubling instances where there has been burden shifting onto the whistleblowers, 

where the law is clear that the agency bears the responsibility to show by clear and convincing 

evidence that there was no prohibited personnel practice. 

Q. Do you have concerns with burden shifting, and, if so, what should be done to address 

this? What additional efforts should be made to ensure that there is not improper 

burden shifting? 

Without context of the particular situations in which burden shifting might be an issue, 

I cannot answer this question. 

Q. Burden shifting is a key issue in cases where certain employees, like auditors and 

investigators, are reporting concerns in the course of their duties. OSC has argued that 

MSPB has wrongly determined that these employees had a higher evidentiary burden 

than the law required. What are your views of this argument? Does MSPB need to look 

more closely at this issue? 

If confirmed, the issues and concerns raised by the Office of Special Counsel are matters 

that could come before me in existing or future cases that I will adjudicate. As such, it 

would be inappropriate for me to comment on this now. 
195 

Maunz Nomination Questions for the Record 

Senator Gary Peters 

Post-Hearing Questions for the Record 

Submitted to Mr. Andrew F. Maunz 

page 4 of 14 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19, 2018 

1. During this morning's hearing, you stated that you have not had the opportunity to review 

the proposed Modem Employment Reform, Improvement, and Transformation Act 

(MERIT Act), H.R. 599, which would significantly reduce the time it takes to fire a federal 

worker accused of poor performance or misconduct. The bill reduces the time for an 

employee to appeal firing decisions, or for the U.S. Merit Systems Protection Board 

(MSPB) to intervene on their behalf, and extends new employee probationary periods to 

two years. It would also allow agencies to avoid negotiated grievance procedures, reduce 

benefits of workers who are convicted of a felony and fired, and rescind bonuses or other 

cash awards deemed to be wrongly paid. On Tuesday, July 17,2018, the nation's largest 

federal union, the American Federation of Govemment Employees, AFL-CIO (AFGE) 

signaled its strong opposition to The MERIT Act, arguing that the legislation would make 

it easier to fire federal employees and would give agencies alternative mechanisms for the 

punishment of federal workers. Mter reviewing the legislation, do you believe it will 

support or undermine the due process system that provides federal workers with a 

meaningful opportunity to defend themselves when treated unfairly? How would the 

legislation impact the ability of the MSPB to review the appeals of employees who feel 

they have been wrongly terminated in a timely manner? Would eliminating or 

shortening processes for federal workers to challenge firing decisions of agencies, and 

empowering agencies to take-back bonuses or garnish benefits, improve federal 

employment practices? 

MSPB staff has reviewed the language ofH.R. 599, the Modem Employment 

Reform, Improvement, and Transformation (MERIT) Act, as passed by the House 

Oversight Committee on July 17, 20 18, and advised me that they do not believe 

the legislation addresses any issues of jurisdiction, procedure, substantive case 

law or any other matter concerning Board operations. MSPB staff does not 

currently believe that this legislation would negatively impact the Board's ability 

to review the appeals of employees who are the subject of an agency adverse 

action over which the Board has jurisdiction to adjudicate. As I mentioned at the 

hearing, the Supreme Court has provided clear guidance on when due process 
196 

Maunz Nomination Questions for the Record page 5 of 14 

rights for public employees attach and what pre-termination steps must be taken 

to satisfY due process requirements. See Cleveland Bd. of Educ. v. Loudermill, 

470 U.S. 532, 538-46 (1985). As long as any statutory process is consistent with 

these due process requirements, the length of the appeals process and any other 

associated issues is a question of policy better addressed by policy makers in 

Congress. And it should be noted that whether any new process is consistent with 

Constitutional due process is an issue likely to be raised before the Board in the 

first instance. As such, it would be inappropriate for me to form an opinion 

in advance. 

2. The House of Representatives Committee on Oversight and Government Reform recently 

voted to approve a five year reauthorization for the MSPB after more than a decade since 

its last authorization expired in 2007. Included in the reauthorization legislation was 

language that would allow MSPB members to issue swnmary judgments, reduce the 

burden of proof for agencies to justify adverse personnel actions from "a preponderance of 

the evidence" to "substantial evidence," and it would require federal workers to pay a filing 

fee to appeal adverse personnel actions. The bill reduces the time to seven days for 

employees to respond to a notice of proposed discipline; require the agency to make a final 

decision within 15 days afterward; and allow only seven days, rather than 30, for the 

employee to appeal to the MSPD. In your opinion, do you believe it is too hard 

currently to fire federal employees? Do you believe reducing the burden of proof to 

justify adverse agency decisions is appropriate? Should you be confirmed, how would 

you ensure that federal employees are treated fairly? 

This is largely a policy question not relevant to the Board's jurisdiction or its 

operations. I believe that if the MSPB issues clear, understandable decisions that 

are within the bounds of the law, current law gives sufficient tools to agencies to 

hold employees accountable. Issues such as burdens of proof are best left to 

policy makers in Congress to decide. If confirmed, I would ensure that federal 

workers are treated fairly by reviewing every case with an open mind and making 

my decision based on the facts and relevant legal authorities. 
197 

Maunz Nomination Questions for the Record page 6 of 14 

3. As noted in some of your questionnaires, the MSPB last published its research agenda in 

2015, which expires in 2018. In order to develop the agenda, the previous MSPB took 

numerous steps to solicit input from stakeholders, including the heads of federal agencies, 

major federal employee unions, and professional associations with expertise in federal 

workforce issues. What is your plan to develop an updated research agenda? What 

would you change from the outreach approach taken by the MSPB in 2015? Who 

would you consider to be important stakeholders in MSPB's research agenda? How 

will you analyze the feedback from stakeholders in order to make decisions about 

research topics? How will you decide which topics to prioritize? 

The current research agenda was adopted by the previous 13oard in 2015 to last for 

a period of 3-5 years. I understand there are several research projects awaiting 

review by a new quorum. It will be up to the new quorum to set a research 

agenda. I am not familiar with Board history on how research agendas previously 

have been adopted, including the most recent one in 2015. I anticipate that, if 

confinned, we will reach out to stakeholders both inside the government, 

including Congress, employee representatives in both management and labor, and 

outside the government, including academia, and good government groups, to get 

suggestions for research which would lead to broadly beneficial studies. Not 

being currently familiar with this process, I do not know how stakeholder 

feedback is analyzed or how final decisions are ultimately made. 
198 

Maunz Nomination Questions for the Record 

Senator Heidi Heitkamp 

Post-Hearing Questions for the Record 

Submitted to Mr. Andrew F. Maunz 

page 7 of 14 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and 

Carmen G. McLean to be an Associate Judge of the Superior Court of the District 

of Columbia 

Thursday July 19,2018 

• What is an experience or situation from your life that shaped your outlook on the critical 

federal employee issues that MSPB considers and decides? Why did that situation impact 

you in the way that it did? 

I have worked in the federal govemment as a career employee since 2008. While 

working in the government, I have seen what an important role the MSPB plays in 

ensuring that our govemment operates efficiently for the American people and that 

federal employees are treated fairly. My exposure to the inner workings of the federal 

govemment has given me great insight into what a positive force for "good govemment" 

the MSPB can be. 

• What role should previous MSPB decisions or other relevant precedents play in how an 

MSPB board member decides cases or makes decisions? 

Precedent plays an important role in judicial and administrative decision-making. If 

confirmed, 1 will carefully consider all relevant precedents, including whether a previous 

MSPB decision was correct, and arguments raised by the parties in deciding cases that 

come before the Board. 

• If you are confirmed and you come across a case where there is clear precedent, but, 

when you look at the case closely, you begin to question if that previous decision was 

decided correctly. 

o How should a MSPB board member go about determining when a precedent 

needs to be changed? 

An adjudicator's job is to apply the law to a given set of facts unique to the case 

in question. If confirmed, I will carefully consider all relevant precedents and 

arguments about those precedents raised by the parties in deciding cases that 

come before the Board and question precedent when it is appropriate and 

necessary to do so. 
199 

Maunz Nomination Questions for the Record page 8 of 14 

• What role does the federal workforce play in the United States, and what do the 

American people need from the federal workforce? 

o How should MSPB board members use their authority and decide cases to ensure 

those goals come to pass? 

The question of what role the Federal workforce plays in the U.S. and the needs 

of the American people are policy questions better addressed by policy makers in 

Congress. However, to assist the policy makers in their considerations, the Board 

owes it to them and the American people to provide fair, timely and impartial 

decisions on matters brought to it for adjudication. 

• What changes need to be made to MSPB, its jurisdiction or its authority? 

l'm not currently aware of any needed changes to Board jurisdiction or authority. 

• Many federal employee and federal employee groups feel that recent Executive Orders 

from this administration on issues such as making it easier to let go of poor performing 

federal employees or curbing the use of official time are direct assaults on federal 

employees and their long-held civil service rights. 

o What is your opinion of these executive orders? 

Opinions on the content of the Executive Orders is a policy question not within 

the Board's jurisdiction. 

o How do you feel that these executive orders will impact your potential work 

atMSPB? 

The Executive Orders do not make any direct requirements on the MSPB's 

adjudication process, but issues discussed in the Executive Orders may be raised 

by litigants before the MSPB. 

o What are your plans to use your role on MSPB to protect the rights of 

federal employees? 

The Board protects the rights offederal employees by fairly, timely and 

impartially adjudicating its case load. 

• Do you feel that the May 25 Executive Order, which addressed how agencies should deal 

with poor-performing federal employees, can work in concert with the statutory 

protections that federal employees are provided? 

As discussed above, this is a policy question not within the Board's jurisdiction. 
200 

Maunz Nomination Questions for the Record page 9 of 14 

o What is MSPB's role in determining how to balance the directives to agency 

heads in that executive order with the statutory protections which are the 

foundation of the civil service code? 

The question whether there are any conflicts between provisions of Title 5 and the 

May 25, 2018 executive order might arise in cases that come before the Board. 

As such, it would be inappropriate for me to form an opinion at this point. 

t\dditional questions below 

Administrative Law Judges (ALJs) have unique statutory protections from unlawful removals. 5 

U.S.C. §7521 generally states that an ALJ can only be removed after good cause to do so was 

established and determined by the MSPB on the record after opportunity for a hearing. The 

recent Executive Order that moved ALJ hiring from the competitive service to the excepted 

service does not impact the 5 U.S.C. §7521 protections. 

• In your opinion, is it important to have specific protections against the unlawful removal 

of ALJs in federal statute? 

o Why or Why not? 

Yes. It is important to have specific protections against the unlawful removal of 

administrative Jaw judges in Federal statute. The protections contained in 

5 U.S.C. § 752 J ensure that adverse actions against administrative law judges are 

taken solely for performance or conduct reasons and not an effort to interfere with 

an administrative law judge's qualified decisional independence. 

• If confirmed, what steps would you take to examine a case where an agency claimed 

good cause to fire an ALJ to ensure the agency claim was correct? 

If confirmed, I will consider all relevant legal authorities and arguments raised by the 

parties in cases before the Board, including any cases involving dismissal of an 

administrative law judge. 

• In your opinion, does 5 USC §7521 require that MSPB determine if the good cause 

threshold to remove an ALJ has been met, or does it just require that MSPB determine 

only if there is sufficient evidence to prove an agency's determination of"good cause"? 

o Please explain the reasoning behind your answer. 

If confirmed, I will consider all relevant legal authorities and arguments raised 

by the parties in cases before the Board, including arguments concerning 

5 U.S.C. § 7521, which states that actions may be taken against administrative 

Jaw judges "only for good cause established and determined by the" MSPB. 

• In recently published news articles dJnRs://www.reuters.com/article/us-otc-dojmemo/inconlidential-memo-to-ageJlQV-gcs-doj-signals-aggJ'essive-stand-on-!iring-aljs: 
201 

Maunz Nomination Questions for the Record page 10 of 14 

idUSKBN1KD2BB) about Department of Justice guidance to agencies on how to 

navigate AU issues in the wake of the recent Lucia v. SEC Supreme Court decision, DOJ 

argued that MSPB should be suitably deferential to the determinations of agency heads 

when it comes to the removal of ALJs. 

o What role should MSPB play in safeguarding the president's power to 

supervise the executive branch? 

The MSPB's role is to apply the law in cases that come before it. If 

confirmed, I will decide cases within MSPB'sjurisdiction fairly and in 

accordance with applicable law. 

o How would you define "suitably deferential" in terms ofMSPB's 

responsibilities to safeguard and protect federal employees from unlawful 

removals? 

To my knowledge, "suitably deferential" is not a standard currently contained 

in Title 5, Board case law, or other binding precedent. To the extent the 

concept could arise in the context of Board consideration of a matter before 

the Board, it would be inappropriate for me to form an opinion prematurely. 

o What role can MSPB play in ensuring that ALJs are not removed for any 

invidious reasons or to influence a particular outcome? 

5 U.S.C. § 7521 states that an adverse action against an administrative law 

judge may be taken "only for good cause established and determined by the 

Merit Systems Protection Board." The Board can ensure this provision is 

enforced by fair, impartial and timely adjudication of any such actions. 

• As mentioned earlier, the recent Executive Order on ALJs recently moved ALJS into the 

excepted service. That means ALJs will be excepted service employees, giving agencies 

greater flexibility to hire ALJs as they see fit. However, the ALJs will continue to have 

significant merit system protections against removal or other significant employment 

punishment without good cause? 

o Wbat challenges to a member of the MSPB are presented when federal 

employees are both excepted employees and have significant merit system 

protections? 

I am not currently aware of any such challenges. Most excepted service 

Federal employees have had appeal rights to the Board since passage of the 

Civil Service Due Process Amendments, P.L. No. 101-376 (Aug. 17, 1990). 
202 

Maunz Nomination Questions for the Record page 11 of 14 

• In your opinion, what responsibility do MSPB members have to ensure that ALJs follow 

agency policies, procedures or instructions? 

The MSPB's role is to apply all applicable laws in cases coming before the Board, 

including cases involving adverse actions against administrative law judges, as discussed 

in 5 U.S.C. § 752 J. In examining whether there is good cause, the MSPB has at times 

examined whether an administrative law judge has followed lawful agency policies, 

procedures, or instructions. 
203 

Maunz Nomination Questions for the Record 

Senator Kamala Harris 

Post-Hearing Questions for the Record 

Submitted to Andrew F. Maunz 

page 12 of 14 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable .Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and Carmen G. 

McLean to be an Associate Judge of the Superior Court of the District of Columbia 

Thursday July 19, 2018 

Ability to Appear Fair and Uninterested 

While in law school you contributed to a sports blog- "Where have you gone Marge 

Schott?" -named after the former Cincinnati Reds owner who made racist, homophobic, and 

anti-Semitic remarks. The blog includes writing that is demeaning to people with disabilities, 

LGBTQ people, people of color, and women; some of the posts are by you and some of them are 

by other contributors. 

For instance, you wrote: "Yet when I turn on my T.V. all I hear about is how great this 

team is, or how terrible this other one is. I mean for christ sakes John Clayton is slobbing on 

more knobs than Paris Hilton at a Greek shipping heir convention." (Citation: 

http://wherehaveyougonemargeschott.blogspot.com/) 

In response to a committee staff question about that comment, you stated that you could 

not have misogynistic attitudes or gender bias because you have female family members that you 

love and respect. This further raises concerns, as it suggests a lack of understanding as to why it 

raises concerns. Nor did you actually address the substance of your comments. 

The MSPB is tasked with protecting federal employees from Prohibited Personnel 

Practices, including hearing appeals in which an employee alleges discrimination on the basis of 

race, religion, national origin, orientation, sexual orientation, or disability. These comments, 

along with others written on a blog named after Marge Schott, raise concerns that you may not 

be able to serve as a fair adjudicator of discrimination claims. 
204 

Maunz Nomination Questions for the Record page 13 of 14 

r. How can women, people of color, LGBTQ people, or people with disabilities be 

confident that you would be an impartial adjudicator of their cases considering your 

comments and the content of that blog? 

I am an open-minded person who believes in treating every person J encounter with 

dignity and respect. I choose to live in a diverse neighborhood in the city of Baltimore. 

My community contains people of different races, ethnicities, religions, and sexual 

orientations. For example, my neighbors are two gay African American men with whom 

my family has exchanged gifts on several occasions. On a daily basis, both in my 

personal and professional lives, I encounter people of various backgrounds. I treat 

everyone as I would like to be treated myself, and I teach my children to do the same. 

The FBI and this Committee have thoroughly investigated my background. No incidents 

of bigotry or bias were found because none exist. 

I believe in viewing people as individuals and not prejudging them. I will bring this 

approach to deciding cases at the MSPB. I will approach every case with an open mind, 

and my decision will be driven by the facts of the case and the law. Every person will be 

able to receive justice from the MSPB, if I am a member. 

Regarding the blog, when I voluntarily disclosed its existence to the Committee, I pointed 

to the three posts for which I was responsible. The Committee staff read from several 

posts I did not write. The only language they read that was from something I wrote is the 

above quoted language about Paris Hilton. I had no editorial control over what anyone 

else wrote on the site. 

2. Do you believe that having female family members means that one cannot show 

gender bias? 

No. 

3. If not, then please explain your response to that blog post? 

In the interview with staffers, I did address the substance of my comments. I said the 

language was crude and inappropriate, I disavowed it and said I would not use that 

language today, and said that if! had the opportunity, I would apologize to Paris Hilton. 

I mentioned the many women I Jove and respect in my life to give insight into who I am. 

I have been surrounded by strong, independent women my entire life. My wife is a 

lawyer, my sister is a doctor, my mother is an incredibly independent person, and I am 

raising my daughters to be the same. I celebrate all of their accomplishments. 
205 

1. .....:A.....o..;.~.:..:..~~~:...!:wO!..-!f~rn~l).:..::..:~.!..:l'\~L..,__ __ • berdly state lhat r have read lbe foo:&ol~ Posl-HCllring Questions for the Rcconl. and that the infurnlation provided therein is.. ro the 

best of my knowledge. cum:nl, aetUnltl'. and romplete. 

(Signature) 7 
206 

July 26,20 18 

U.S. Senate Committee on Homeland Security 

and Governmental Affairs 

340 Dirksen Senate Office Building 

Washington, D.C. 20510 

To Whom It J\Jay Concern: 

My name is Kira Chilcote Maunz and I'm an attorney, mother, and lifelong Democrat. I 

am also the wife of Merit Systems Protection Board member nominee Drew Maunz. 

I grew up in rural Ohio where we had few Democrats and virtually no female attorneys. I 

became politically engaged at a young age and later became the President of the Holmes 

County, Ohio Young Democrats in high school. Through this role, I endlessly volunteered 

and worked at local events to elect Democrats in local, state, and federal elections. In 

college, I had the privilege of interning full-time for six months for my childhood role 

model, U.S. House Democratic Leader, Rep. Nancy Pelosi, in her leadership office. 

Following this experience, I worked on a small campaign staff to elect former U.S. Rep. 

Zack Space of Ohio to flip Rep. Bob Ncy's scat blue. In law school, I was an active 

member of the Women's Law Student Association. My social circle includes a strong, 

diverse group of women. vVhile I personally do not approve of the language my husband 

used regarding Ms. Hilton in 2006, it is not indicative of who he is as a person. Given my 

personal and professional background, I could not and would not tolerate having a 

misogynist as an acquaintance let alone a partner. 

Drew Maunz is a person who supports and champions women. This is not by virtue of 

familial relationships, but based upon his core values and respect for women. In his 

personal life, he goes out of his way to offer career advice, childcarc assistance, and moral 

support to our friends. He has helped so many of my female friends with career assistance 

that I have lost count. 

In our personal lives, my husband performs many roles that were once associated with 

women. He washes dishes, packs lunches, changed virtually all the diapers for two 

children, and takes our kids to and from school, dance class, soccer, basketball, etc. He 

does not demand recognition for his efforts and has never told me these chores arc 

reserved for women. 
207 

Instead, he does them because he is their parent and our children are blessed to have an 

active male caregiver in their lives. 

I grew up with a single mom in a home with my grandparents and adult aunt with an 

intellectual disorder. My aunt was unable to live independently or work, and could not 

read or write beyond a second grade level. I do not surround myself with individuals who 

usc slurs against the disabled. My husband has not once used that repulsive language. 

Finally, the day my husband received the Committee's post-hearing supplemental 

questionnaire inquiring as to whether he was a misogynist, he had just returned from 

donating boxes of diapers to a neighborhood charity for women and children. 

Best regards, 

Kira Chilcote Maunz 
208 

July 25, 2018 

To Whom It May Concern: 

This letter is written in support ofDrew Maunz in his pursuit of a position with the Merit 

Systems Protection Board (MSPB). I consider Drew and his wife Kira Chilcote Maunz, a 

colleague of mine, to be dear family friends. 

I am a single mother to two girls, ages five and eight. I have been the primary caregiver to them 

since October 2016. When my husband and I first separated and I was on my own, I was 

overwhelmed. Drew and Kira were quick to offer their support and company whenever I needed 

it. We have spent time in each other's homes and our daughters have become friends. I have 

observed Drew with his daughters and with my own, and he is an amazing father. He shares 

parenting responsibilities with Kira equally and contributes in the home with both childcare and 

household maintenance duties. 

Drew provides advice and ongoing encouragement in support of my pursuits in my career. He 

sets an outstanding example of someone who maintains high standards of ethics and morality 

throughout every facet of his life, from the personal to professional. I can think of no one else 

that I would recommend as strongly and sincerely as I would Drew for a position with the 

MSPB. I have every confidence that in that position, Drew will continue to maintain the same 

level of impartiality and professionalism that he has maintained thus far. 

Thank you, 

Is! Jennifer Margolese, Esq. 
209 

july 24, 2018 

To Whom It May Concern: 

My friend and former colleague Kira Chilcote Maunz has asked me to provide a 

statement to the US Senate Committee on Homeland Security and Governmental 

Affairs regarding her husband Drew Maut1Z's ability to be fair towards members of 

the LGBT community. I understand Drew is being considered for a position with the 

Merit Systems Protection Board. I also understand this position would require him 

to adjudicate personnel disputes and it's likely that some of these disputes would 

involve LGBT personnel. 

l met Drew through Kira in approximately 2011. I've interacted with Drew several 

times at dinners, brunches and barbecues. My partner (now husband) has always 

been present at these occasions, so I'm sure Drew knows I'm gay. I have never 

observed or even suspected any anti-LGBT bias from Drew. For example, my 

husband and I held a small barbecue at our house several years ago. Drew, Kira and 

their infant daughter Emery spent several hours at our house and Drew seemed 

perfectly at ease. There were other gay people at this small gathering, and I never 

detected any discomfort from Drew with being around gay people. 

Drew's wife Kira was a colleague of mine at the Social Security Administration for 

the entire time I worked there (about six years). She is gay-friendly and has always 

expressed support for me and my husband personally and for gay people in general. 

I don't have any reason to believe that Drew's attitudes are any different. 

Drew has always struck me as highly intelligent and professional. Based on my 

interations with him, I have no doubt that he is able to treat LGBT people with 

empathy, respect and fairness in any situation, including MSPB adjudications. 

Thank you, 

/s/ William H. Owen 
210 

Opening Statement of Carmen Guerricagoitia McLean 

Nominee to be an Associate Judge of the District of Columbia Superior Court 

July 19, 2018 

Mr. Chairman and members of the Committee, I am deeply grateful for the opportunity to 

appear before you as you consider my nomination to be an Associate Judge of the Superior Court 

of the District of Columbia. It is a great honor to be nominated and considered for this position. 

I would like to thank the Judicial Nomination Commission and its chair, the Honorable Emmet 

Sullivan, for recommending me to the White House, and the President for nominating me. I also 

would like to thank Congresswoman Norton for her support. Finally, I would like to express my 

sincere thanks and appreciation to the Committee members and the dedicated Committee staff 

for their hard work, for considering my nomination, and for the courtesy and professionalism 

they have extended to me throughout this process. 

Here with me today is my husband, William Carson McLean, to whom I am 

immeasurably grateful for his unwavering encouragement, and my children, eight year old Coen 

and five year old Cait, who inspired me to reach for my dream of becoming a judge. I love you 

all dearly. I would also like to recognize my mother, Marcia Rush, also here with me today; my 

sister, Darcy Guerricagoitia, a Lieutenant Commander in the United States Navy; and other 

members of my family who have been endlessly supportive and are watching from afar. Finally, 

I would like to acknowledge the many friends and colleagues, several of whom are here today, 

who have guided and encouraged me in a myriad of ways over the years. Thank you all for your 

kind and unwavering support. 

In August of 1998, I moved from rural Oregon to the District of Columbia to attend 

Georgetown University Law Center and I have lived here ever since. In 2001, I began working 

just a few blocks from here, at Washington office of Jones Day, an international law firm. 

During my nearly seventeen years at Jones Day, I have been privileged to work with many 

brilliant, strategic, and hard-working attorneys; represent influential and innovative clients in a 

variety of industries, including digital music, automotive, and pharmacology; and work on large 

scale litigation matters involving complex and novel legal issues. I am extremely grateful for the 

lessons I have learned through these experiences and from my talented colleagues, and for the 

honor of working at Jones Day. 

During my time at Jones Day I have also dedicated a great deal of time to pro bono and 

public service matters impacting citizens of the District of Columbia. While I have worked on a 

range of matters, I have spent the vast majority of my time in the service of at-risk children who 

need safe, permanent, and loving homes. Through these matters, I saw first-hand the impact of 

our justice system on individual lives and was motivated to further my public service. Through 

this work, I also frequently appeared before District of Columbia Superior Court judges who 

demonstrated a mastery of relevant laws, rules, and procedures; treated all litigants with dignity 

and respect; maintained high standards for counsel; were deliberate in their application of the law 

to the facts; and provided thoughtful and timely decisions. If I am fortunate enough to be 

confirmed, that is exactly the type of judge I will work very hard to be. 

Again, thank you for the opportunity to appear today. I am humbled to be considered for 

this position, and I look forward to answering your questions. 
211 

REDACTED 

QUESTIONNAIRE FOR NOMINEES TO THE DISTRICT OF COLUMBIA COURTS 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS; 

UNITED STATES SENATE 

I. BIOGRAPHICAL AND PROFES:SIONAL INFORMATION 

1. FuiiQame (include any fornwrnames used). 

Carmen Guerricagoitia McLear! (formerly Carmen May Guerdcagoitia). 

2. Citizenship (ifyou are a.naturaljzed U.S, citizen, please provide pro!){ of.your 

naturalization). 

I am a citizen of the United States. 

3. Current oflke.address and telepholie number. 

Jones Day 

51 Louisiana Avenue, NW 

Washington, D.C. 20001 

202-879-3744 

4. Date and place Of birth. 

September 25, 1.976; Ontario, OR. 

5. Ma.rital status (if married, includ.e maiden name of wife, or husband's name). List 

spouse's occupation, employer's name and business address(es). 

Lam married to William Carson McLean, an Assiitant Director iri the Office of Clearance 

and Settlement of' the Division of Trading and Markets ofthe United States S(lcurities and 

Exchange Commission, 100 FStreet~ NE, Washington, D.C.20549. 

6. Names and ages of childl·en. LiSt occupation and employer's name if appropriate. 

REDACTED 

7. Edueatioh. List secondary schoul(s), collegc(s), la\v school(s), and any other 

institutions of higher education attended; list dates of attendance, degrell recciv!;!d, 

and date each deg1·ee.\vas received. Please list dating back from most recent to 

earliest. 

Georgetown University Law Center; Washington, D.C.; September 1998- May 2001; 

Juris Doctor awarded 200 i. 
212 

George Fox University, Newberg, Oregon; September 1994 -May 1998; Bacheior of 

Scienc~. aw!lrded 1998. 

Keble College, Oxford University, Oxford, United Kingdom;)une 1.997- Aug\lst 1997; 

no degree awarded. 

Coalition of Christian Colleges and Universities, Washington, D.c;; August !996-

Decem bet 1996; no degree awarded. 

Portland Community Col!eg.e, Portland, Oregon;. June 1996 -August 1996; no degree 

awarded. 

Rainier High School, Rainier, Oregon; August 1991- iune 1994; High School Diploma 

awarded June 1994. 

Burns. Hlgh School, Bums, Oregon; August 1990 -June 1991; no. degree awarded. 

8. Employment record. List all jobs held since college, othe.r than legal experience 

covered in question 16,. including the dates of employment,job title or description of 

job, and namea(ld addr.ess o( employer. Please list datirtg back from most recent to 

:earliest, If yon have served i:n the US military, please list dates of service, rank or 

rate, serial number, and type of discharge received. 

September !998- May 1999 

Georgetown University Law Center 

600New Je~seyAvenue,NW 

Washington; D.C. 20001 

Library Work Study 

9. Honors. and awards. List any scbolarships,Jellowships, h<morary degrees, .a~:ademic 

or (lr()fessional.honors, honorary soch:ty memberships, military awards; and any 

other special recognition for outstanding service or achievement~ 

Best Lawyers in America: Litigation- Antitrust (2016, 2017, 2018) 

D.C. Rising Star, Natibnal Law Journal (20 15) 

Pro Bono. Lawyer ofthe Yeat, District of Columbia Bar (20I2) 

Champion ofthe L~gal Profession, National I.aw Journal (20 ll) 

Outstanding Recent Alumna, George Fox University (2004) 

Summa Cum Laude designation upon gracjuating from George Fox University (1998) 

2 
213 

10. Business.relationships. List all positions currently or formerly held as an officer, 

directQr, trustee, partner, proprjetor,.agent, representative, .or consultant of any 

corporation, company, firm,, partnership, or othe1· busineSs enterprise; or 

educationaLor other institutio~:~. 

Capitol Hill Cluster School Parent Teacher Association 

Board (2014 -2017) 

Children's Law Center 

EmeritUs Board {2015- present) 

Boar.d of Directors {2009- 401 5) 

Advisory Board Chair (20 I 0 -2011) 

BEST Kids 

Hoard ofDirectors(2008) 

11. Bar assoCiation~. List all.bar associatio.ns, legal or judicial-related committees, 

conferences, or .organizations of whiCh you are .or have ever been a member, and 

provide titles and dates ofany offices whicbyou have held in such groups. 

American Bar Association 

Member {200 1 -present) 

Antitrust Section (2008 - 2016) 

Oregon State Bar House :ofDelegates 

Deb:gate (2005 - 2008) 

Orego11 Bar Association 

Member (2001 -present) 

.District of Columbia Bar Association 

Member (2002 -present) 

12. Other memberships. List all memberships and offiCes currently and fonrierly held 

in professional, business, frat!)mal, scholarly, civic, publico charitable; or other 

organizations, other than those listed in response to Question 1 I. .Please indicate 

whether any of these orga11izations formerly discriminated or currently 

discriminates on the basis ofracc, sex, or religion. 

C!'lpitoi Hill Cluster School 

Parent Teacher Association(20l3- present) 

Georgetown Journal on Poverty Law & Policy 

Editoria!.Staff {1999- 200\) · 

3 
214 

,Law St1.1dents in Court Clinical Program 

Student (1999 -2000) 

George Fox University 

Associated Student Community Vice President ( 1997- .1998) 

None ofthese otganizatiorts fotirledy ot currently discrimimite based on race, sex or 

religion. 

13. Court admissions. List all courts itt which you have been !ldmittcd to practicll, with 

dates of admission and iapses in admission if any such memberships have lapsed. 

Please explain the reason for any )apse in meJIIbership; Please provi!ie. the s.ame 

information for any administrative bodieswliich require specialadmission to 

practice. 

14, 

Oregon Bar, admitted October 24, 2001. 

Disti-ict of Columbia Bar, admitted April 8, 2002. 

U.S. Court of Appeals for theDisttict of Columbia Circuit, admitted February 9, 2005. 

u.s. District Co!Jrt for the District ofColumbia, admittedJ1Jly 10, 2006. · 

U.S. District Court for the .Eastern DistdctofMichigan, admitted April4, 2016. 

None of these memberships have lapsed. 

Published writings. List the titles, publishers, and dates of books; articles, reports, 

or other published material you have written or edited. 

Co-Author, Noteworthy Trendsfrom Cases Decided Under the RecentlyAmended 

Federal Rules ofCivil Procedure, Jones Day Commentary (September 20 16). 

Authdr; Relicif:from ESI Over-Preservatii:m, Metropolitan Corporate Counsel (December 

2015). 

Co-Author, Signiftccmt Changes to the Federal Rules of Civil Procedure E;xpected to 

'['ake Effect JJecembm· 1. 2(JJ 5: Ptacticallinpllcations and What Litigator:S Need to 

Know, JortesDay White Paper(September 201~). 

Co-Author,; Proposed Changes to the Federal Rules of Civil Procedure, Jones Day White 

Paper (March 20 14). 

Co-Author, Will Recent CourtApprol'alofComputer-Assisted.Doc1{mrmtReview Spur 

Acceptance in Antitrust Inw!sfigalions?, Jones Day Alert (March 20 12). 

Author, Innovation Does NotCure Constitutional Violation: Charitable Choice andthe 

Establishment C/ause,.GeorgetoWiJ Journal on Poverty Law &Policy, Vol. Vlll (Summer 

2001), 

4 
215 

l5. Speeches. List the titles ofariy formalsp.eei:hes you have delivered during the last 

five (5) years and the date and place where they w.ere d.elivered. Please provide the 

Committee with four (4) copies of any of these speeches. 

I have Mt givenaily formal speeches in the last five years; but I have taught numerous 

continuing legal educ.ation courses; I list those courses below. 

Novetnbef3, 2016: CocPresenter, The Federal Rul.e.s of Civil Procedure a Year Later: 

The<Latest Decisions aild.other Developments, West LegalEd, Webcast. Powerpoint 

presentation supplied. 

January 21,2016: Panelist,The 2016 Amendments to the F.RCP, Part JI;- Rule 26, 

Prqportianality, JudlciaUntervention, .and Ma$1erin[: the Discovery Juggernm#, 

American BarAssociation, We beast. PowerP0intpresentation supplied. 

October29; 2015:. Presenter, E-Discdvery-2015: Recent Dect:l'ions and Practical 

Implications for All Attorneys, West LegatEd, W ebcast. Power Point. presentation 

supplied. 

June 18, 2015: Co-Presenter, The Role afSodal Media in E•Discovery: Current 

Developmenisfor All Aitor·ney$, West LegalEd, Webcast. Power Point presentation 

supplied. 

June. ~4, 2014: Co-Presenter, CrossBord¢r £-Discovery, West LegalEd, Webcast. 

PowerPoittt pt-esentation supplied. · 

January 29, 20 I 4: Presenter, On Notice: Using Proposed Changes to the FederalRules of 

Civil Procedure to Inform PreservationandLitlgationS!ralegiesNow, West LegalEd;. 

We beast. Power Point presentation supplied, · 

June 1 (,2013: Presenter, Is There A Middle Ground Between Document Ovei· 

Preservation and Allegations of Spoliation? An Analysisforln-Hause and Corporate 

Counsel, West LegfliEd, Webcast. PowerPoint presentation supplied. 

May 16, 2013: Panelist, New Antitrust Chql/enges for U.S. C\Jmpanies Aro)Jnd the Globe; 

Jones Day, Washington, D.C. PowerPoint presentation supplied. 

August 22, 2012: Co-Presenter, Nuts and Bolts of Computer-Assisted Document Review: 

A Primer for All A((orJieys; WestLega!Bd, Webcast. PowerPoint presentation supplied. 

April 25, 20'12: Co-Presenter, Ratle 26(/) Conferences: Row to Prepare & Whatto 

Dlscus,r, Wes/Legq!Ed, Webcast. PowerPoint presentation supplied. 

5 
216 

]6, Legal career. 

A. Describe chrono!Qgic!llly yourl!IW pr11ctice and experience after graduation 

from law school,. including: 

(1) Whether you served as a law clerk to a judge, and ifSo, the name of 

thcjudgc, the court, and the dates of your clerkship; 

I have never sei-ved a~ a law clerk to ajudge. 

(2) Whether you pract~ced alone, .and if so, the addres~es and dates; 

(3) 

I have never practiced alone. 

The dates,. names; and addl'ess of law·firms, companies, or 

governmental agencies with which you have been employed. 

June 1998 -August l998 

Gaty M. Bullock and Associates, P.C. 

1000 SW Broadway, Suite 2460 

Portland, OR 97205 

Legal Assist!l.nt and Receptionist 

June 1999- August 1999 

Judge Advocate General Corps 

U.S~ Army Garrison Ansbach 

Katierbach, Germany 

Civilian Interi1 

September 1999-May2000 

Becket Fund for Religious Liberty 

1200 New Hampshire Avenue, NW, Suite 700 

Washington, D:C. 20036 

InterniW ark Study 

May2000- August 2000 

Stoel Rives, LLP 

760 SW9th Avenue 

Portland, OR 97205 

Summer Associate 

October 2000 -May 2001 

Jones Day 

5! Louisiana Avenue, NW 

Washington, D.C. 20001 

6 
217 

Law Clerk 

October.2001- present 

Jones Day 

51 LouisiimaAvenue, NW 

Washington, D.C. 20001 

Partner (January 2011 -present) 

Associate (October 200 l -December 2010) 

B. Desc1·ibe the general ch:tracter of your law practice, dividing it into periods 

with dates if its cliaracter hns changed over the years. 

1 have spent the entirety of iny legai career at Jones Day working as a corporate 

litigator and trial attorney. Although l have developed a deep knowledge of 

certain substantive areas, including .contracts, copyright, tort, and antitrust; .I 

consider myself a generalist with well-developed litigati-on skills, inc)l)ding 

expertise in civil procedure,discovery,. and motions practice, that are applicable 

across substantive practice areas. 

From the. time IjoinedJones Day in October 2001 through. approximately August. 

2002, I was a member ofa team that arbitrated a non-public contract dispute. 

between two softWare cqrripanies. In that matter, I shareq resJlorisibility for 

discovery, witness and exhibit preparatiqn, demonstratives, and pre .arid postarbitration briefing. 

From approximately \Vinter.2002 through approximatelfNovember 2006, f 

focused primarily on a copyright matter related to the streaming of digital music 

m't the internet. l was a key ntemberofthisteam litigating issues of first 

impression from discovery through motions in limine. During.this period I !;Iegan 

my work feir at-risk children in the District of Columbia by actiitg as "first chait in 

at least two representations each of which included multiple status hearings and a 

bench trial. 

Pt·om November. 2006 througlt March 20 lO, the. bulk of my time was split 

between three matters. First, a criminal investigation by the Department of 

Justice related to price fixing and bid rigging in the marine hose industry and the 

ensuing class· action lawsuits. Second, a trial matter in the United States District 

Court for the. District of S()uth Carolina related to issues ofcontractinterpretation 

and successor liability; Third, a dispute in the Circuit Court of the Fifteenth 

Judicial Circuit of Florida reg:::~rding the alleged viohttion of a non-competition 

agreement and misappropriatkm of tradesecrets. During this period 1 also 

regularly appeared in Superior Court hearings or trials related 16 the pehnanency 

of at-riskchildren in the Pi strict of Columbia, including first chairing a. custody 

trial before Superior Court Judge J. Michael Ryan that spanned six days. . 

7 
218 

Ftom March 2010 through fall20l6, the majority of my work focused. on a largescale criminal inves(igljtion by the Department ofJustice related to price fixing 

and bid rigging. In the automotive industry and the ensuing class action la:wsui~. 

spent substantial titne negotiating with counsel representing the Department of 

Justice and civil plaintiffS, drafting motions, and defending. depositions. During 

the same period, [ appeared at hearings and trials in Superior Court for .seven 

matters related to the permanency ofat-risk cnildren in the District of Columbia. 

In these representations, lied teams ofjunioh:tttorneyswith the goal of.helping 

them develop litigation skills, including case strategy and presentation of 

arguments.and evidence at hearings and trials. 

From fall2016 to the present, the focus of my work has been advising a For.tune 

500 pharmace~tica[ company regarding litigation readiness. Additionally, T have 

represented two pm bono clients: a United States Army Combat Medic who 

returned from three deployments in Afghanistan with ca tral(rhatie brain inju:cy and 

post-traumatic str~::ss disonjer related to a <;riminal charge and a singl.e father of 

four who resided in substandard living conditions; Both representations were in 

the Superior Courtofthe District ofColumhi& Finally, [have overs()en the pro 

bono, public service, and diversity efforts for Jones Day's Washington Office. 

C. Describe your tyjlital former dients and describe the areas of practice, if 

any, in which you have specialized. 

Throughout my career my billable clients have almostexclusively been large 

compa,nies involved in high-stakes litigation. These representations have spanned 

multiple substantive areas. My pro bono clients are predominately individuals or 

familieswho want to provide a safe and permanent home. to atcrisk children in the 

District of Columbia. · 

D. Describe the general nature of your litigation experience, including: 

(1) Wh.ether you have appeared in courtfrequeritly, oi:casic:inally, or riot 

at all. If the frequency of your court appearances has varie!;) over 

thne, please describe in detail each such variance and give applicable 

dates. 

During my career l have regularly appeared in Federal court, DistriCt cif 

Columbiil Supetror Court, and before arbitrators. I firstcchalred severai 

trials in Superior Court related to the permanency ofat-dsk chlldren. l 

seco.nd-chaired a multi-day trial related to a con\ractdispute in the United 

States District Court for the District of South Carolina. In addition to the 

above tiial matters, I. second-chaired many hearings in the Circuit Court qf 

the Fifteenth Judicial Circuit of Florida and United States District Court 

for the Southern District ofNew York. l also regularly appeared in 

Superior Court for status hearings and evidentiary hearings in adoption, 

8 
219 

custody; guardianship, and neglect matters. 

(2) What pcrcentagcofthese appearances was in; 

(a) Federal courts (including Federal courts in D.C.); 

(b) State courts ofrecord (excluding D.C. courts); 

(c) D.C. courts (Superior Court and D.C. CourtofAppeal~ only); 

(d) other courts and administrative bodies. · 

My practice has been approximately 95% in Federal cout1s and 5 %in the 

Superior Court for the District of Columbia. 

(3) What.percentage.of·yoilr litigation has been: 

(a} civil; 

(b) criminal. 

·My practice has been approximately 95 %civil and 5 %criminal, and I 

have been1nvo.lved in numerous settlements. 

(4) What is the total number ofcascs in courts of record you tried to 

verdict or judgment (rather than settled or resolved, but may include 

cases decided on motion if they are tabul!ited separately)., Indicate 

whether you were sole counsel, lead. counsel, or associate counsel in 

these cases. 

I estimate tlwt I have. tried 15 matters to verdict in Federal court or 

Superior Court. Iserved as.lead counsel in approximately l3 oftlwse 

matters and was associate counsel in the remaining matters. 

(5) What percentage of these trials was to 

(a) ajury; 

(b) the court (include cases decided oil motion but tabulate thein 

separately). 

All i 5 matters that I have tried to verdict in .Federal court or Superior 

Court were bench trials. 

9 
220 

17. Pescribc the Jive (S) most significant litigated matters which you personally 

handled. Provide citations, if the cases were reported, or the. docket number and 

<late if unrepprted. Givea capsule summacyofthe SIJbstance of each esse and a 

·succinct statementofwhat you believe was of particular significance about the case; 

Jde!)tifythe party/parties you. represented and d~.t:ribe in detailtlte nature ofyour 

participation in .the litigation and the final disposition of the ease •. Also state asto 

each ease;( a) tbe-dateof representation; (b). the court and the name oftbe judge or 

judges before whom the case was litigated; and. {c) the name(s) and address(es) attd,. 

telephone number(s) of co-counsel and of the piincipalcounselfol' the other parties. 

L In re Auto. Parts Antitrust Litig.,50 F. Supp. Jd 836 (E.D, Mich. 2014) imd .ill re Auto. Parts Antitrust Litig., 50 F. Supp. 3d. 869 (E,D. Mich. 21H4) 

In February 2010, the United States Department of Justice (".OOJ'') and the federal 

BUteau ofln:VestigatloiT raided Yazaki Corporation and Yazaki North America, Inc. 

(collectiVely, "Yazald"}atid se1'ved a grand jury subpo.etia alleging .price fixing and bid 

rigging of automotive parts. The DOJ characterized this matter as involving the. world's 

laigestptice fixing carteL Yazaki; a major supplier of automotive wire harnesses, was 

pne qfthe first Nrties raided. Imnwdiate!y after its raid, Yazaki retained Jones Day to 

defendthe criminal investigation and resulting civil litigation. In Octo\xlr 2.011, the first 

.QfWhllt would eventually be over 4Q. class action complaints was filed on the basis.ofthe 

DOJ's allegations. These complaints werelaterconsolidateditito a multidi.strict litigation 

in the Eastern District of Michigan. U.S. District ('outt Judge George. Caratn Steeh 

oversaw the criminal plea, and U.S. District Court Judge Marianne Q, Battani is 

overseeing the civil rriultidistrictlitigation. 

To resolve the criminal case; inJaimary 20\2, Yazakiagreed to pay a $470 million 

criminalftne., one of the largest fines in the history of the DOJ's Antitrust Division. In 

the subsequentni.onths,csix Yazaki employees, allforeign nationals, agreed to. enter plea 

agreements tha( required substantial prison terms. Despite the severity ofthese:penalties, 

it was a very successful result for Yazaki in.light of the facts and volume of commerce at 

issue .. We have settled with the four civil plaintiff groups (tbe amounts of the. s~ttlemehts 

are confidential). 

Senior Co-Counsel: 

Steven F. Chen'y 

Wilmer Bale 

1875 Pennsylvania Avenue, NW 

Washington, D.C. :20006 

202-66H321 

Senior Co•Counsel: 

Marguerite Sullivan 

Latham & Watkins 

:55:5 llth Street,NW, Suite IOOO 

10 
221 

Washington, D.C. 20004 

202-637~2200 

Senior Co-Counsel: 

MichaelA. Rubin 

Arnold & Porter 

555 12th Streee; NW 

Washington, D.C. 20004 

202-942~6171 

Counsel for Plaintiffs: 

Michael E. 1\llos~ovitz 

Freed Kanner London & Millen LLC 

2201 Waukegan Road, Suite 130 

Bannockburn, IL 60015 

224-632-4506 

Counsel for Government: 

Kathryn Hell ings 

[fhen at Unite<! States Department ofJustice, Antitrust Divi~ion] 

Hogan Lovells 

555 13th Street; NW 

Washington, D.C. 20004 

202-637~5483 

Counsel for Government: 

Shane Cralle 

[Then at United StatesDepartmeritofJustiee, Antitrust Division] 

United States Attorney's Office forthe Eastern District of Michigan 

211 W. FortStreet, Suite 2001 

Detroit; Ml48226 

313-226~9551 

~. ln re Marine Hose Antitrust Litiu.,.53l f. Supp. 2d 1381 (J.P.M.L. 2008) 

On May 1, 2007, the United Sta:tesDepartmentof Justice ("DOJ;') and the Fe<ler!\1 

·Bureau of Investigation conducted. a raid at a meeting of suppliers of madne hose held in 

Houston, Texas. After that. raid, the head qfinarine hose business for Parker Hannifin 

Corporation and Parker ITR, S.r.L (collectively; "Parker") was arrested and Parker w.as 

seJ'ved.with a grand jury subpoena ill the Southern District ofTexasbefqre Un.ited St~tes 

District C()urtJudge Sim Lake, that alleged that Parker had been a part of a conspiracy to 

rig bids arid fix prices fol"marirte hose. Parker promptly retained Jones Dayto repres~nt 

the (;OITipany; [n tl]e days and ITI.Qnths that followed the raid, competition authorities in 

Europe, Japan, Korea, Australia, and Brazil initiated .their own investigations into. 

competiti(m in the marine hose .industry. Private litigants. filed suit in the United States, 

1!. 
222 

arid the suits were consolidated into a multi district litigation in the Southern District of 

Florid.a before United States District Court Judge Donald L Graham. While litigating the 

multidistrict litigation, we conducted fact and expert document and deposition discovery 

and filed dispositive briefs. We negotiated a. plea agreement wlth the DOJ, :Settled with· 

the civil litigants in the United States, avoided threatened litigation in Europe, and 

resolved the civil goVernmental investigations in Japan, Korea, Australia, and.BraziL 

Counsel for Govertnnent: 

. Portia Brown Bamiduro 

[Then at United States Department.of)ustice, Antitrust Division] 

United States Senate 

Homell!nq Sec!.lrity and Governmental Affairs Committee 

340 Dirksen Senate Office. Building 

Washington, D.C. 20510 

.202-228•3164 

.CounseL for Government: 

Crs;ig.Y. Lee 

United States Department of Justice, Antitrust Division 

450 5th Street, NW,Suite 11300 

W!!shington, D.C. 20530 

202<J07" 1.044 

Counsel for Plaintiffs: 

Gregory P. Hansel 

Preti, Flaherty Beliveau & Pachios LLP 

One City Center 

P.O. Box 9546 

.Portland, ME. 04112 

207-791-3000 

Counsel for Plaintiffs: 

Jan R. Bartelli 

Nussbaum. Law Group, P.C. 

1211 Avenue ofthe Americas, 40th Floor 

New York, NY 10036 

212-702-7053 

Counsel for Plaintiffs: 

Hollis L. Salzman 

Robins Kaplan LLP 

601 LeX:ingtol1 Avenue, Suite3400 

Ne;v York, NY 10022 

212-980-7 400 

12 
223 

Counsel fot Plaintiffs: 

Brian Ratner and Reena A. Gaml;;\1ir 

HausfeldGl()bal Legal Solutions 

1700 K Street,NW, Suite 650 

Wa1;hington, D.C. 20009 

202~540-7220 

3. Reed Elsevier. Inc .. et: at. v.. Henry E. Asher. et. al. (Fifteentlt Jud. Circ. Ct. .bfFl. 

2009) 

Reed Elsevier Inc., a large publishing company, pui.'chas.ed Seisint, a personal 

infonnation ctatal;;ase business created by Henry E. Asher; for $775 million on August 3J; 

2004. The purchase 11greement included a non-coin petition agreement with an exception 

for Mr. Asher's charitable work for the National Center for Missing and.E:)(ploited 

Children and law enforcement agencies. Following the deal, Mr. Ashet went on to create 

a new co1;npany and a new personal i11formation database, Reed Elsevier claimed .that 

Mr. Asher had violated the non-competition terms of the purchase agreement and 

misappropriated business secrets by creating a database that Reed Elsevier alleged was in. 

direct competition with Reed Elsevier and its affiliates. Jones Day was hired by Asher 

mid~litigatipn, after Mr. Asher had terminated severi).l other firms. There were several 

pending motions 'in the CitcuitCourt ofthe Fifteenth Judicial Circuit of Florida that 

required briefing and a variety ofoutstanding discovery requests that required immediate 

action. Approximat~ly two months after wetobk over the matter, the parties agreed to. 

settle on terms that were favorable for Mr. Asher. Judge David E. French ofthe Fifteen 

JudiCial Circuit .Court of Florida presided over the matter. 

Counsel for Plaintiffs: 

H. Lamar Mixso11 

Bondurant, Mixson & Elmore, LLP 

1201 West Peachtree Street, NW 

Atlanta, GA 30309-3417 

404~881-4171 .. 

Counsel for Plaintiffs: 

Edward A. Matod 

Gunster 

777 South Flagler Ddve, Suite 500 East 

Wes( Palm]3each, FL 33401 

561-650"0669 

Counsel for Plaintiffs: 

Bruce S. Rogow 

Bruce $, Rogow; P.A. 

Broward Financial Centre 

13 
224 

50.0 EastBroward Boulc::vard,. Suite 1930 

Fort Lauderdale, FL 33394 

954•767-8909 

Counsel for Plaintiffs: 

Faith E. Gay 

QUinn Emanm;l 

51 Madison A venue, 2rtd Floor 

New York, NY 10010 

2i2-S49-7000 

Counsel for Defendants: 

Robetr A. Butteiworth 

Buchanan.Ingersoll & Rooney .PC 

401 East Las Olas Boulevard, Suite 2250 

Fort Lauqerdale,.FL 3330 I 

954-335-1582 

Counsel for Defendants: 

Michael Moore 

Michael Moore Law Firm, tLC 

10 Canebrake Boulevard, Suite 150 

Flowood, MS 39232 

601-933-0070 

4. Ashley II ofCharlestot1. LLCv. PCS Nitrogen, .Inc., 746 F. Supp. 2d 692 (D.S.C. 

2010), Ashley II of Charleston, LLCv. PCS Nitrogen, Inc., 791 F. Stipp. 2d 431 

(D.S.C 2011), Ashley II of Charleston, LLCv, .PCS Nitrogen. Inc .. 79l F. Supp. 2d 

431 (D.S:C. 2011), Ashley HofCharleston, LLC v. PCS Nitrogen. Inc;, 163 S.E.2d 

19 (S.C. 2014) . 

PCS Nitrogen purchased several fertinzer facilities and related assets. One of the assets 

was a large piece cif land on the Ashley River rie.ar Charleston, South Carolina, where a 

fe1tili;z;er p{ant was previou,sly operated, PCS Nitrogen sold the .lam!, which was iater 

designated as a Superfund site due to Contamination that occurred during the operation of 

the fertilizer plant. Eventually that land was acquired by a land development company, 

which could not develop the land unless it undertook an expensive effort to reiliediate the 

environmental issues. In Ashlev II of Charleston. LLC v; PCS Nitrogen, before Judge C. 

Wes.ton Houck of the U.S. District Court of the District of South Carolina, the 

development company sued PCS Nitrogen seeking di:!rnages for the costof remediation. 

PCS Nitrogen engaged .Jones Day to defend the Utigation .. We tiled couiJterclaims 

against officets and directors of the company who awned the land at the time the 

fertilizer plant was in operation. The. issues for trial were predominateiy contract 

interpretation, successor liability and tort 

14 
225 

Counsel for Defendants: 

John B. Williams 

Williams Lopatto PLLC 

1707 LStr~et NW,Suite 550 

Washington, D.C.20036 

202-296-1665 

Counsel for Plaintiffs: 

Joseph Rutleqge Young; Jr. {deceased) 

James Hartzell {retired) 

212 East Park Drive 

Raleigh, NC 27605 

919c8)9·6l73 

5. AdstaRecords; LLCv. Launch Media, Inc., 578 F.3d 148 (:?d Cir. 2009) 

LAUNCHcast was an early online streaming music;service that allowed 1J$ers to indicate 

certain preferences (e.g., rating songs, artists and albums). Th~ Recording Industry 

Association of America tiled suit against LAUNCHcast on behalf of severaiofits 

111embers, four oftl1e five major record labels; to argue thatthe degree of user influence 

rendered LAUNCHcast "interactlve" and; as a result, LAUNCH cast should have 

negotiated individual licenses with the owners oftbe copyrighted works. LAUNCHcast 

argued before Judge Richard. Owen oft he U.S. District Court for the Southern District of 

NewYork, that the user influence was ihsufficient to rt;~nder LAUNCH cast "interactive'' 

and, as such, Laurich was pennitted to exercise the.statutory license provided by the 

Digital Music. Copyright Act ("DMCA"). This case was the first to addressthe issue of 

interattivity under the DMCA and had a significant impacton the. development ofmusic 

distribution over the intemet. Launch engaged Jones Day to defend the litigation. 

Plaintiffs argued ii1fringement of thousands of sound recordings (i.e., the perfonnance of 

a song. rather than the separately copyrightable music and lyrics) and, if plaintiffs were 

able to prove infringement, statutory damages would have been sub$tantial.·ln the course 

of discovery, I recognized that most record labels claimed ownership ofsound recordings 

as "works made for hire," a form of copyright ownership that requires: specific fat~ual 

elements. [ determined that the plaintiffs' claims of ownership of most of the alkge9iy 

infringed works failed for one or more reasons: We engaged experts to testify about my 

factual analysis as well as to provide supporting evidc{lce about the recording industry 

that wa.~ relevant to challet1ging plaintiffs' ownership. On this basis, we fi!eda mcitiori in 

liinine to challenge plaintiffs' rightto allege infringement of works thatwere subject to 

one of the identified defects. We won that .motion. Yahoo! decided to transition the 

matter to another firm for trial. The case was tried using the facts andargumentsl 

developed with my Jones Day colleagues and the jury found that LAUNCF-Icast was. not 

interactive. That decision was upheld by the Second Circuit. 

15 
226 

Counsel for Plaintiffs: 

Hadrian Klitz 

Sterne, Kessler, Goldstein and Fox 

IlOONewYork Avenue; NW, Suite600 

Washington, D.C. 20.005 

703-863" 7644. 

Counsel for Plaintiffs:. 

Rob~rt Goodman 

Current contact il?{ormation unknown 

Counsel for Plaintiffs: 

Brad Newberg 

McGuire Woods 

1750. Tysons Boulevatd, Suite 1800 

Tysons, VA 2.2102 

703-712-506[ 

Counsel for Recording Industry AsSociation of A medea: 

Dean c, Garfield 

Infonnation Technology Industry Council 

1101 KStreet,NW,Su\te610 

Washington, D.C. 20005 

202-737-8888 

18, Describe the most significantlegal activities you have pursued, including significant 

litigation which did not·proceed to trial or legal matters that did notlnvolve 

litigation. Describe the nature of your participation in each instance described, but 

you may omit any information protected by the attorney-client privilege( unless the 

privilege has been waived). 

I have taken several leadership positions In Jones Day's Washington office; 

S.in~;e Octqber 2015, I have co-chaired the Diversity Committee, In that role r have 

evaluated diversity in the Washington offic~ of Jones Day and defined priorities for the 

future, including creation of a women's initiativeJocused on addressing retention of 

women, expanding our pro bono work into areas that serve the LGBTQ community, and 

training lawyers about implicit biases that may impact how they view and/or . 

communicate with colleagues, clients, witnesses, judges,. and jurors. 

Sinpe August 20 14, I have been the Partner in Charge of Pro Bono and Public ServiCe. In 

that role I encourage my colleagues to engage in pro bono work, help colleagues identify 

pro bono matters that satisfy their interests and goals, ev<~luate the. merit and scope ofall 

potential pro bono engagements, p!mi service events in the community, chair our 

committee on pro bono and public service, .and c.oordinate opportunities to discuss 

16 
227 

ongoing pro bonq work and the finn's relationships with various pro bono,and public 

service organizations in the, District of Columbia. 

In 20J 0, recognizing the need to ensure that out lawyers were prof)erly trained, regarding 

electronic document discovery, including the technological and legal issues associated 

with electronic document discovery, 1 requested perrrtissi()n to create a training program, 

Through this program r have trained more than 300 Jories Day attorneys during more than 

40 continuing ]ega! edL!cation programs in areas such as litigation holds, collection, cost 

and timing considerations, ethics. Federal Rule of Ciyi! Procedure 26(f) conferences, 

.spol(ation, .social media, predictive coding; search terms, negotiating agreements with 

opposing counsel, and current judicial treatment of issues related to electronic document 

dls~overy. As a result of my efforts, I became theE-Discovery Partner in Jones Day's 

Wa!ihingtort office and partners and clients throughout the United States consult me oil 

issuesreiated to complex document di~covery. 

Finally, I have dedicated over 3;000.hours to representing pro bonq clients in ihe District 

of Columbia. This time has been exclusively on matters in Superior Court and 

predominately related to securing safe and penn anent homes for at-risk children in the 

District. 

19. Have you t:ver held judicial office? Ifso, please give the details o.fsuch service, 

including the court(s) on which you served; whether you were elected or appointed, 

the ilates ofyom· service,and a description of the jurisdiction ofthe court Please 

providefour (4) copies of all opinions you wrote during such service as a j1.1dge. 

No. 

A. List. all court decisions you hllv.e made which were reversed or otherwise 

criticized on app.eal. 

20. Have you ever been a candidate for elective,judicial; or any other public office? H 

so, please give the details, includingthe date(s) of the election, the office(s) sought, 

and theiresults of the election{s). · 

No. 

ll. Political actMties and affiliations; 

,o List all public offices, either elected or appointed, which you have held or sought as 

a candidate or applicant. 

None. 

• List all memberships and offices held in and services rendered to any political party 

or .election committee during thelastten {10) years. 

17 
228 

No11e. 

• !te~J~ize alt political contributions to imy individual, campaign orgaJib:ation"political 

party, political action committee, or similar entity during the last five{5) years of 

$50 or rno.re. 

None. 

22. To your knowledge, have you ever been. investigated, arrested, ch11rgcd, ot.convictcd 

(include pleas of guilty or nolo contendere) by federal, State; !ocai,.or {)ther law 

enforcement authorities for violations of any federal, State, couitly, or rnunici·pal 

law, other than for a minor traffic offense? If so, piease provide details. . 

No .. 

23. Have you or any busii1ess ofwhkh you are or were an officer, .director or owner 

ever' been a party or otherwise involved as a party in any other legal or 

administrative proceedings? If so, give th:e particulars. Do 110f JiSt any proceedings 

in which you were merely a guardian ad litem or stakeholder. Incl.ude ali 

proceedings .in \Vhich you were a party iit interest, a material witness, were named 

as· a co-conspiratoJ· or co-respondent, and list any grand j11ry Investigation in which 

you appeared as a witness. 

No. 

24. Have you ever been disciplined or Cited for.a breach of ethics for unprofessional 

cond~ct by, or been tlte subject of a complaint to any .court, administrative agency, 

bar or professional .association, disciplinary committee, or other professional group? 

If so, please provide the details. · · 

No. 

18 
229 

II. POTENTIAL CONFLICTS OF INTEREST 

1. Will you. sever all connections with your present employer(s), business firm(s), 

business association(s), or bushuiss organization(s) ifyou are confirmed? 

Yes. 

2; Describe. all financial arrangements, deferred compensation agreements, or other 

continuing dealings witlt your law firm; business associates, or clients. 

Each Match, Jones Day sets my compensation for.that calendar year, My compensation 

is 4istributed in the form of a monthly draw that is a ~et amount and.does not vary by 

year.. Tht:: remainder ofthat year's income is paid the following year at various 

percentages in January, April, June, September and December, Each year! make,a 

capital investment in Joites Day. I have confirmed that when I resign my partnership; my 

unpaid income and my capital it\vestlnent will be returned to me save a retainer to pay 

taxes. tor certain states and international jurisdictions where Jones Day files aggregated 

returns for partners (this does not include taxes to the United States of America, the 

DistrictQfCoh!mbia, and California, which I pay ii1dividua!ly). 1 will also c.ontrnueto. 

have. the retirement benefits accrued during my time at JMes Day: a 40 I K retirement 

plan and a pension, Estimated amounts for these accounts, my capital account, and my 

unpaid cmnpensation are included in response to Question !TlJ, below. 

3, Inditate any investments, obligations, liabilitie5, iir otbet• relationsliipswhich could 

invglv¢ potenti;ll conflicts of interest. 

None. 

4. Describe. any business rehitionship, dealing, or finanCial transaction wbich you have 

had in the lastten (10) years, whether for yourself, on behalf of a Client, or acting as 

an agent, that could in any. way constitute or reSult in a possible conflict of interest 

otlter than while in a federal government capacity. 

None. 

s. Describe any activity during the last teit (10) years in which you have engaged for 

the purpose of directly or indirectly influencing the passage, defeat, or modification 

of legislation or affecting the administration and execution otlaw or public poliCy 

other (ban while as a federal government en1p)oyee. 

As a parent and a member of the Capitol 1-HllCiuster School Parent Teach~r Association 

Board of Directors ("PTA"), l testified oefore the District ofColun'lbia Council at two 

separate hearings. In February20 (7, I reque~ed that funding be allocated for a shuttle 

bus b~tween two campuses of the Capitol Hill Cluster SchooL In April2017, !testified 

regarding the investment of funds the PTA made into the Capitol Hill Cluster School. 

19 
230 

6. Do you have any plans, commitments, or agreements to pursue outside employment, 

with or without compensation, during your service as a judge? If so, explain. 

No. 

7. Explain how you will resolve any potenti:ll coilflicts of hltercst, including any that 

may have.been disclosed by your responses to the above items. Please· provide three 

(3) copies of any trust or other relevant agreements. 

I foresee no potential conflict ofinterest. If one were to arise I would resolve it .pursuant 

to the District of Columbia CodepfJudicial Conduct. 

s. If confirmed, do you cxpectto serve out your run term? 

Yes. 

20 
231 

III. FINANCIAL DATA 

AU information requested under this heading must be provided (or yourself, your spouse, 

and your dependents. (fhis information will riot be published in the record 6f.the. hearing 

on your nomination, but it will be retained in tile Committee's flies and will be available for 

public inspection,) 
232 

TV. DISTRICT OF COLUMBIA REQUIREMENTS 

Suppiemental questions con~erning specific statutpry qualificjltions for service as 11 judge 

iidhc courts of the.Distriet ofColunibia purs.uanUo the District ofColunibia Court 

Reform and Criminal Procedure Act of 1970, D.C. Code Section l I- 1$0 1 (b), as' amended. 

1. A,rc~you a eitizen of the UnHed States? 

Yes. 

2, Are you a member of the bar of the District of Columbia? 

Yes. 

3~ lliweyou been a meniber ofthe bar of the District of Columbia for afleast five (,5) 

years? Please. provide tile date you were admitted to practice .In the District of 

Columbia. 

Yes, AprilS, 2002. 

4.. If ~h.c answer to Question 3 is "no" --

A. Are you a professor· of.law in a law schooi in the DistiictofColumbia? 

B. An~ you a lawyer employed in the District ofColumbJa by the. United States 

or the District of Columbia? 

C. Have: you been eligible for lnenibership in the bar ofthe District of Columbia 

for atleast five {5) years? · · . 

D,_ l]pon' whitt gt:ounds is that eligibility based? 

S. Are you a bona fide-resident of the District of Cohrmbf;~.? 

Yes. 

6. Haveyoti maintained ali actual place of abodidri the greater Washingt9n, D.C area 

for at leasUive (5) yeat·s? Please list the addresses ofyour actual plaees ofa:l:JoU.e 

(inCluding temporary residenees) with dates-of occupancy for the last five (5) years. 

25 REDACTED 
233 

7, are you a member of the District of Columbia Com.missiou on Judicial Di~a,~ilities 

and Tenure. or theDistdct of Columbia Judic.ial Nominating Commission? 

No. 

8. lla:ve you been a member of either of tlu~se Commissions within tJJe last 12 months? 

No. 

9. Please provide the committee wi.th four (4) copies ofyo!Jr District of Col!lml,ia 

Judicial Nomination Commission questionnaire. 

See .. attached. 

26 
234 

AFFIDAVIT 

Carmen Guerricagoitia McLean being duly sworn, hereby stales th11t he/she has rea4 and 

signed 'the foregoing Stutement on Biographical and Financial Information and that the 

inforrruition provided therein is, to the best ofhislher knowledge, current, accurate, and 

ro~•W (}kL ··-

SUBSCRJBED and SWORN TO before me this / r; day of tJOVt!dltbe--r 2017. 

JAMIE M,TANIS . 

NCITAAY PUBUCOIST!liCT OF COlUMEllA 

lilt Commlsslon E'Pire• JaliUSI)' !, 2018 
235 

U.S. Senate Committee on Homeland Security and Governmental Affairs 

Pre-hearing Questionnaire 

For the Nomination of Andrew F. Maunz to be 

Member (to be designated Vice Chairman), Merit Systems Protection Board 

I. Nomination Process and Conflicts of Interest 

I. Did the President give you specific reasons why he nominated you to serve as Vice 

Chairman of the Merit Systems Protection Board (MSPB)? 

No. 

2. Were any conditions, expressed or implied, attached to your nomination? If so, please 

explain. 

No. 

3. Have you made any commitments with respect to the policies and principles you will 

attempt to implement as Vice Chairman of the MSPB? If so, what are they, and to whom 

were the commitments made? 

No. 

4. Are you aware of any business relationship, dealing, or financial transaction that could 

result in a possible conflict of interest for you or the appearance of a conflict of interest? 

If so, please explain what procedures you will use to recuse yourself or otherwise 

address the conflict. And if you will recuse yourself, explain how you will ensure your 

responsibilities are not affected by your recusal. 

I have no business relationships, dealings, or financial transactions that would cause a 

a conflict of interest in this position. In addition. there is nothing else that causes a 

fundamental conflict of interest that would interfere in my ability to serve in this position. 

I will consult the appropriate ethics officials on the standards for recusal on any particular 

case. As I mentioned previously in my biographical questionnaire, it is possible that 

cases that involve work I was personally involved in at SSA may require me to recuse 

myself. Also, due to the fact that my wife is a current federal employee (attorney at 

SSA), it is possible I might have to recuse myself from any cases that come before the 

MSPB, directly involving her, either personally or as an attorney representing a party. I 

believe that the chances that a case would come before the Board under either of these 

scenarios is slim. On the rare chance that l must recuse myself from a specific case, I 

would leave it up to my fellow MSPB members to make the decision without me. 

Otherwise, my responsibilities at the MSPB would not be affected. 

Senate Homeland Security and Governmental Committee Page I 
236 

II. Background of the Nominee 

5. What specific background and experience affirmatively qualify you to be Vice Chairman 

ofMSPB? 

I have been involved in the full spectrum of employment law in the federal government. 

I have litigated employment cases in a wide variety of forums, including before the 

MSPB. I have trained agency managers on employment issues, and I have researched 

and provided the agency guidance on the types of employment issues that the MSPB 

must decide. 

In addition to my employment law experience, I have been involved in several other 

aspects of administrative law, such as drafting agency regulations and policies that will 

assist me in my duties at the MSPB. 

6. What experience, if any, do you have in deciding cases, resolving disputes, or 

performing the other duties required in serving as Vice Chairman of the MSPB? 

As someone litigating cases, I have always had to evaluate the strengths and weaknesses 

of each side's case, which is similar to what a member of the MSPB must do to decide 

cases. I have also successfully resolves many cases through settlements. This has 

involved working with the other side to lind common ground and ways we can resolve 

often contentious cases. 

I have also been heavily involved in SSA's Freedom oflnformation Act (FOIA) 

workload in recent years. When a FO!A case is made to the agency, the agency issues an 

initial decision and an appeal decision before the requester can challenge the agency's 

decision in federal court. One of my roles as an SSA attorney has been to review these 

decisions for legal sufficiency and to ensure the agency is issuing a legally correct 

decision in response to the FOlA request. 

Furthermore, SSA's Office of the General Counsel has delegated authority to issue 

decisions in cases where employees are seeking a waiver of an overpayment and in 

requests for testimony under the Touhy process. In my capacity as an attorney at SSA, I 

have been involved in deciding these requests. 

7. Please describe: 

a. Your leadership and management style. 

I am someone that believes true leaders lead by example and set a positive tone for all the 

other individuals in their organization through their own positive behavior. 

As far as managing the work of others and delegating tasks, I believe it is important to let 

all individuals know that, whatever they are doing, they are playing an important role in 

the ultimate process of completing the task. I believe that the best managers make sure 

Senate Homeland Security and Governmental Page 2 
237 

their subordinates feel that they are able to contribute their own talents and perspectives 

to a project. It is important to stay engaged with the people you are managing to ensure 

the tasks are completed timely and correctly, but I believe that you must trust their 

abilities and not micromanage. 

b. Your experience managing personnel. 

I have served as an acting division director on many occasions. I have also led projects 

and organized trainings when I have had to get many people on the same page to 

complete the task. In addition, I often review other attorneys' work when requested to 

provide constructive feedback and try to serve as a resource and mentor for newer 

attorneys in my office. 

c. What is the largest number of people that have worked under you? 

When serving as an acting division director, I have been responsible for about 5-7 

attorneys and I paralegal. 

III. Role of Vice Chairman, MSPB 

8. The Civil Service Reform Act requires that individuals appointed to the MSPB 

"demonstrate[] [the] ability, background, training, or experience" necessary to "carry out 

functions ofthe Board." 1 Please describe how your abilities, background, training, and 

experience qualify you for the position of Vice Chairman of the MSPB. 

As discussed above in question 5, I have ample experience with the types of employment 

law issues the MSPB handles. I believe that I am a skilled lawyer who can analyze 

several complex legal issues at the san1e time, which wi II help me in deciding cases at 

the MSPB. In addition to my training as a lawyer, l have attended several trainings 

specific to MSPB issues. 

9. In your opinion, what is the role of the MSPB? What is the role of Vice Chairman in 

carrying out the statutory objectives of the MSPB? 

As an administrative agency, the MSPB's role is laid out by statutes. Primarily, it is to 

decide the various cases it has the authority to decide within the bounds of the relevant 

legal authorities. A large portion of the MSPB workload is to review federal agencies' 

major disciplinary actions to ensure they are lawful and have not violated the employee's 

rights. It also plays an important role in protecting whist!eblowers, keeping the federal 

workforce free of partisan political activity on government time, preventing of prohibited 

personnel practices, and other important functions by reviewing personnel actions and 

applying the law as written. The MS PB also has the authority to conduct studies and 

review Office of Personnel Management regulations. 

I 5 U.S.C. § 1201. 

Senate Homeland Security and Governmental Committee Page 3 
238 

While the Chairman has the authority to run the administration of the MSPB, the Vice 

Chairman's role is to provide support and advice to the Chairman in fulfilling these tasks, 

when needed. The Vice Chairman must also be ready to serve as Acting Chairman when 

necessary. 

I 0. MSPB's mission is to "protect the Merit System Principles and promote an effective 

Federal workforce free ofProhibited Personnel Practices." How do you envision 

fulfilling MSPB's mission both day-to-day, and long-term? 

Day-to-day, the most important way for the MSPB to fulfill its mission is to issue 

decisions that apply the law as it is written. Long term, the MSPB can fulfill its mission 

by establishing clear precedents that closely follow the text of the law. This will allow 

employees and agencies to have a clear picture of the legal landscape when they make 

their decisions. 

II. What do you anticipate being the greatest challenge you would face as Vice Chairman of 

the MSPB, and how would you seek to prepare for and address those challenges? 

The greatest challenge currently facing the MSPB is the number of cases currently 

waiting tor a decision. As Vice Chairman, I would address this challenge by working as 

hard as possible to issue legally correct decisions as quickly as I can. I will also be 

willing to explore innovations and changes that could help the MSPB issue more 

decisions quickly. 

12. What do you believe to be the top challenges facing the federal workforce today? What 

steps do you plan to take to address these challenges, if confirmed as Vice Chairman? 

Please explain. 

This question largely focuses on policy, which is the domain of the Office ofPersonnel 

Management. The MSPB's primary role in addressing any issue in the federal workforce 

is to issue legally correct decisions. ft also can help identifY current and potential issues 

through the studies it has the authority to conduct. 

13. Do you believe you will review and adjudicate cases that come before you with good 

judgment and impartiality? Please explain, citing examples of prior work or experience 

that could bear on your abilities, if applicable. 

Yes, as discussed above, when litigating cases and providing SSA advice, I have had to 

look at the situation from an impartial perspective to make sure I am considering all 

issues and perspectives. I have also had to perform some of my work from a neutral 

standpoint, like the FOIA decisions !mentioned. 

I believe the people I work with view me as someone who is level-headed and has good 

judgment. I am known in my office as someone who can look at issues and problems 

Senate Homeland Security and Governmental Affairs Committee Page 4 
239 

from a calm perspective and as someone who is able to review the facts and the law to 

reach the right conclusion, without my personal preferences entering into the analysis. 

IV. Policy Questions 

14. What role do you think alternative dispute resolution options, including the Mediation 

Appeals Program, should play in the MSPB adjudication and enforcement process? 

Alternative dispute resolution, including mediation, plays an important role in nearly all 

litigation these days. Mediation can be an etTective way to resolve disputes without the 

costs of a trial. I personally have participated in mediation in attempts to resolve 

disputes on multiple occasions. There are different techniques for mediation and I 

believe that some techniques arc more effective than others. As Vice Chairman, I would 

work to make sure that the MSPB's mediation program uses the most effective 

approaches to resolve cases and allows all parties involved to feel that the mediation was 

a productive use of time. 

15. MSPB is statutorily responsible for conducting oversight of the Office of Personnel 

Management's significant actions. How will you coordinate with OPM to ensure any 

significant actions conform to the merit systems principles outlined in 5 U.S.C. § 2301? 

5 U.S.C. § 1204(f) allows the MSPB to review OPM rules and regulations "after the 

effective date.·· Also, 5 U .S.C. § 1206 states that the MSPB 's annual report will review 

the significant actions of OPM. The best way for the MSPB to ensure that OPM's 

actions conform to merit systems principles is to use these authorities to conduct 

meaningful oversight ofOPM's actions. 

16. MSPB previously highlighted the need to examine the prevalence and forms of reprisal 

for protected activity, particularly for whistleblowing. 2 Do you view reprisal for 

whistleblowing as a significant challenge facing the federal workforce? Why or why 

not? 

I believe that whistleblowers play an important role in identifying malfeasance in the 

federal government. If an individual makes a protected whistle blower disclosure or 

engages in protected whistle blower activities, he or she should be protected from 

retaliation to the fullest extent the law allows. Any illegal reprisal against 

whistleblowers is significant and should be remedied immediately. I do not have access 

to the data at this time to determine how many ofthesc incidents occur throughout the 

federal government. 

I7. In your opinion, is the underutilization of probationary periods a critical issue? If 

confirmed as Vice Chairman ofMSPB, what steps would you take to ensure that 

managers better utilize probationary periods? 

2 Merit Systems Protection Board, MSPB Research Agenda 2015-2018 (Feb. 2015), available at 

https:/ /www.mspb.gov /msp bsearch/viewdocs.aspx ?docnu mber= I l40540&version= 114504 5&appl ication=ACROB 

AT. 

Senate Homeland Security and Governmental Committee Page 5 
240 

This is a workforce management issue that should be left to OPM. I would decide any 

cases involving probationary periods in accordance with the applicable legal standards. 

18. How do you view the role of information technology at MSPB as it relates to both dayto-day business and the overall mission objectives to uphold merit systems principles? 

Information technology plays an important role in both how the agency decides cases 

and how it conducts agency business. As a practitioner, I have always been impressed 

with the MSPB's electronic case tiling system. I believe the MSPB should explore all 

avenues in how information technology can allow it to hold more hearings and process 

cases quicker. 

Information technology can also enhance the way the agency communicates with its 

employees across the country. I believe to the greatest extent possible the MSPB should 

be using technologies like video teleconferencing to allow its otlices to communicate 

with each other and save on costly travel. 

19. What role do you think merit systems studies, published by MSPB, play in ensuring a 

competent and efficient federal workforce? 

These studies play an important role in identifying and examining emerging issues in the 

federal government. I believe they can be an important tool for agencies, OPM, 

Congress, and the White House in developing policies for the federal government 

workforce. 

a. What steps would you take to ensure that MSPB's external reports address critical 

federal workforce issues? 

The best step that can be taken is to solicit feedback from outside MSPB to see which 

issues stakeholders in this field want to sec studied. The MSPB members can take 

what has been suggested from the outside, as well as ideas from inside the MSPB, 

and use it to develop an agenda that it relevant to the federal government community. 

b. What, if any, coordination do you believe should occur between MSPB and OPM to 

address federal workforce issues raised by MPSB studies? 

Ultimately, as the policy making agency, OPM has the responsibility to use these 

studies to determine what policies it should implement. However, I believe the 

MSPB should solicit feedback from OPM, as it would other interested parties, on 

what areas it would like to see studied and what information it thinks the MSPB 

should collect in order to study a particular area. 

20. According to MSPB's Fiscal Year 2017 annual report, 22 percent ofMSPB employees, 

including 25 percent of administrative judges, are eligible to retire in the next two years. 

Senate Homeland Security and Governmental Affairs Committee Page 6 
241 

What steps will you take to ensure that MSPB conducts its own succession planning, so 

that you are able to execute your statutory duties? 

The MSPB should periodically review all succession planning to ensure that it is up to 

date on the realities of its workforce. It should also work to make sure it is recruiting the 

best people to come work at the MSPB. In addition to succession planning and 

recruitment, the MSPB should also examine what, if any, changes it can make to its case 

processing that would allow it to process more cases with fewer people. 

21. In March 2018, MSPB published an updated survey on sexual harassment in the federal 

workforce. 3 In this survey, 20.9 percent of women in the federal workforce and 8.7 

percent of men experienced a type of sexual harassment in the two years preceding the 

~urvey. 4 Only eight percent of these employees believed corrective action was taken 

against the individual who committed the harassment, possibly resulting in employees 

not using agency procedures to report the harassment. 5 What do you believe is the role 

of MSPB in ensuring accountability against harassers in the federal workplace and in 

ensuring employees can report harassment without reprisal? 

The MSPB's primary role is in reviewing the disciplinary cases of the harassers and 

issuing clear, predictable decisions in accordance with the Jaw. 

The law also makes it clear that it is illegal to engage in reprisal against someone who 

reports harassment. The MSPB can help remedy this situation by issuing decisions in the 

cases that come before it that clearly uphold the law and state that illegal reprisal will not 

be tolerated in the federal government. 

22. What steps can MSPB take to improve federal supervisors' knowledge and intra-agency 

support regarding disciplinary and removal processes? 

ln order to inform not just supervisors, but the public in general, the best step the MSPB 

can take is to issue clear decisions that can be understood by a layperson, and not create a 

disciplinary process that is more complicated than the law requires. The MSPB can also 

continue to engage in outreach at federal government conferences and other events in 

order to let supervisors, employees, agency attorneys, and plaintiff~' attorneys know 

about the latest developments in this field. 

23. Protecting whistleblower confidentiality is ofthe utmost importance to this Committee. 

a. During your career how have you addressed whistleblower complaints? 

3 Merit Systems Protection Board, Update on Sexual Harassment in the Federal Workforce (Mar. 2018), 

available at https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumbcr~ 1500639&vcrsion=l50623 2& 

application= ACROBAT. 4 ld. at4. 

'ld. at 8. 

Senate Homeland Security and Governmental Affairs Committee Page 7 
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I believe that all whistleblower complaints should be taken seriously and a thorough 

examination of the facts should take place to determine what happened. 

My firsthand experience with whistleblower issues consists of an administrative law 

judge (ALJ) discipline case where a whistleblowcr defense was raised briefly, but not 

central to the case. I also assisted in the SSA's production of documents for an Office 

of Special Counsel investigation. l also did extensive research and wrote an internal 

SSA white paper of the issue of federal employees' First Amendment rights, which 

often coincide with whistleblower issues. Also, while not specific to whistleblowers, 

I have trained managers on retaliation and reprisal issues and informed them that they 

should not base any personnel actions on illegal retaliatory motives. 

b. How do you plan to implement policies within the MSPI3 to encourage employees to 

bring constructive suggestions forward without the fear of reprisal? 

I believe in having an open door policy where employees can come to me with 

suggestions, concerns, and criticisms. I am not someone who is easily offended by 

someone disagreeing with me or having different views. I will welcome all 

perspectives at the MSPB, and any illegal reprisal will not be tolerated. 

c. Do you commit without reservation to work to ensure that any whistleblower within 

MSPI3 docs not face retaliation? 

Yes. 

d. Do you commit without reservation to take all appropriate action if notified about 

potential whistleblower retaliation? 

Yes. 

V. Relations with Congress 

24. 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? 

Yes, consistent with the law and applicable rules and regulations. 

25. Do you agree without reservation to make any subordinate official or employee available 

to appear and testify before, or provide information lo, any duly constituted committee 

of Congress if you are confirmed? 

Yes, consistent with the law and applicable rules and regulations. 

26. Do you agree without reservation to comply fully, completely, and promptly to any 

request for documents, communications, or any other agency material or information 

from any duly constituted committee of the Congress if you are confirmed? 

Senate Homeland Security and Governmental Affairs Committee Page 8 
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Yes, consistent with the law and applicable rules and regulations. 

V. Assistance 

27. Are these answers your own? Have you consulted with MSPB or any other interested 

parties? If so, please indicate which entities. 

The answers are my own. I shared a drafl with acting MSPB Chairman Mark Robbins 

and MSPB staff to allow them to review. 

Senate Homeland Security and Governmental Affairs Committee Page 9 
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Minority Supplemental Pre-hearing Questionnaire 

For the Nomination of Andrew Felton Maunz to be 

Member (to be designated Vice Chairman), Merit Systems Protection Board 

I. Nomination Process and Conflicts oflnterest 

I. Has the President or his staff asked you to sign a confidentiality or non-disclosure 

agreement? 

No. 

2. Has the President or his staff asked you to pledge loyalty to the President or the 

Administration? 

No. 

3. Have you ever represented a party in a matter before or involving the Merit Systems 

Protection Board (MSPB)? 

a. If so, please describe the matter(s) and the nature of the representation. 

Yes. Since these are administrative proceedings, I am providing initials of the names of the 

litigants, unless there is a public decision of the case, in order to protect these individuals from 

public scrutiny. 

SSA v. JP, Docket No. CB-7521 -13-0004-T-1: I represented SSA in this ALJ discipline 

case, which settled. 

SSA v. McQuary, Docket No. CB-7521-11-0003-T-1: I represented SSA in this ALJ 

discipline case. 

https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=736991&version=73 

9597&application=ACROBAT. 

OM v. SSA, Docket No. PH-0432-I 0-0028-l-l: I briefly entered an appearance to 

represent the agency in this performance removal case, but soon left the case to deal with 

other more pressing workloads. 

TL v. SSA, Docket No. PH-0752-09-0463-I-l: 1 represented the agency in this 

suspension case, which settled. 

LB v. SSA, Docket No. DE-0752-08-0436-A-1: I represented the agency in this litigation 

over attorney fees after the individual had successfully got her removal overturned. I did 

not represent the agency in the original action challenging the removal. 

4. Have you ever represented the Social Security Administration in a matter involving the Civil 

Rights Act of 1964. the Age Discrimination in Employment Act, the Privacy Act of 1974, or 

the Equal Access to Justice Act? 

a. If so. please describe the matter(s) and the nature of the representation. 

Senate Homeland Security Committee Page 10 
245 

Yes, these four laws were listed in the first paragraph of the complaint in the case of 

Ridgell-Boltz v. Astrue/Co/vin No. 20 I 0-cv-00252. I began representing the agency in this 

case as a Department of Justice Special Assistant United States Attorney/ Special Attorney 

in September 20 II. Under this status, I was working under the authority and supervision 

of the civil chief of the New Mexico U.S. Attorney's Office. A colleague and I 

represented the agency at a jury trial in the summer of2012. I served as the second chair 

attorney at the trial. I also represented the agency in two appeals of the case to the I O'h 

Circuit (Ridgell-Boltz v. Colvin No, 12-1495 and Ridgell-Boltz v. Colvin No. 15-1361). I 

continued to serve as the agency's counsel in the case until early 2017 when the case was 

finally resolved after I negotiated a settlement with the plaintiff and her counsel. 

Civil Rights Act of 1964, Age Discrimination in Employment Act, and other civil 

rights laws. 

I have represented the agency in several other cases that involve these Jaws in litigation 

before the Equal Employment Opportunity Commission. I am listing the cases I have 

handled before the EEOC that involve these civil rights laws below. As I did with the 

MSPB cases, I am listing the litigants' names as initials. 

African American Males Class Action, EEOC No. 531-2013-00 129X. I have represented 

the agency tor the past several years as the lead attorney in this multi-million dollar class 

action case that stems from a tlnding the agency breached a settlement agreement to 

resolve the original class action. 

RA v. SSA, EEOC No. 531-2009-0056X 

LB v. SSA, Petition No. 0320100006 

RJ v. SSA, EEOC No, 531-2010-00095X 

RK v. SSA, EEOC No. 531-2011-00027X 

EK v. SSA, EEOC No. 531-2008-00174X 

HM v. SSA, EEOC No. 531-2009-00244X 

HM v. SSA, EEOC No. 531-2011-00309X 

HR v. SSA, EEOC No. 531-2008-0228X 

OS v. SSA, EEOC No. 531-2008-00298X 

LB v. SSA, EEOC No. 541-2010-00033X 

DL v. SSA, EEOC No. 541-2010-00023X 

MS v. SSA, EEOC No. 570-2009-00769X 

CS v. SSA, EEOC No. 531-2009-00243X 

SB v. SSA, EEOC No. 460-20 12-00002X 

Privacy Act of 1974 

Robinson, et a!. v. SSA, Civil No. Il-l 0524-GAO. l did not enter an appearance in the 

case, but I assisted the Assistant US Attorney in defending the agency in this Privacy Act 

case. 

----"""'-·-'''""" Senate Homeland Security ----~~-~~~---­ and Governmental Affairs Committee Page II 
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Equal Access to Justice Act 

EAJA primarily serves to provide attorney fees to litigants who are litigating against the 

federal government. Most of the cases I am involved in feature laws that have specific 

provisions providing attorney fees, so I have not directly handled any cases where EAJA 

was an issue. It was only briefly mentioned in the Ridgell-Boltz case. 

II. Accountability 

5. During your career, has your conduct as a federal employee ever been subject to an 

investigation or audit by CIGIE, Office of Special Counsel, Equal Employment Opportunity 

Commission, Depmtment of Justice, or any other federal investigative entity? If so, please 

describe the investigation or audit and its outcome. 

No. 

III. Publications and Speeches 

6. Please describe the purpose and name of your blog: 

wherehaveyougonemargeschott.blogspot.com. 

The purpose of the blog was just to be a fun way for me and my friend to talk about sports 

and to serve as a distraction from law school. It was quickly abandoned because we both got 

too busy. 

The name was a take-off of the line "Where have you gone Joe DiMaggio?" from the Simon 

and Garfunkel song "Mrs. Robinson." The name was supposed to be a tongue in cheek 

reference to how long-suffering Ohio sports fans (my friend was a Cleveland Browns fan and 

I was a Cincinnati Reds and Bengals fan) often long for the "good old days," even if the 

people who led the teams in those days were controversial, like Marge Schott. The name in 

no way was meant to celebrate Mrs. Schott, nor condone any of her behavior or statements. 

7. Do you maintain any other public blog(s)'? If so, please share the appropriate links to each. 

No. 

IV. Background of Nominee 

8. Have you represented a whistle blower or other employee in an adversarial dispute against the 

federal government? 

No. 

9. Do you seek out dissenting views and how do you encourage constructive critical dialogue 

with subordinates? 

Yes, please see my answer to question 23b of the majority questionnaire. 

----------,~----------------------------- Senate Homeland Security and Governmental Affairs Committee Page 12 
247 

10. Please give examples of times in your career when you disagreed with your superiors and 

aggressively advocated your position. Were you ever successful? 

While I am not sure I disagreed with my superiors or "aggressively advocated" my position, 

one situation that I can think of where I was able to convince not just my immediate 

supervisors, but also agency executives, to take an action they may not have taken otherwise 

is when I convinced the agency to ask for an opinion from the Department of Justice Office 

of Legal Counsel (OLC) on the legality of an EEOC order. I advocated my idea at several 

levels of the agency and was able to convince all relevant individuals that this was the right 

course of action. Ultimately, OLC agreed with my position and issued an order in the 

agency's favor. https://www. j ustice.gov /opinion/file/833591/ down load 

II. What would you consider your greatest successes as a leader? 

I consider my greatest success as a leader the securing of the OLC opinion I described above 

in question 10. I truly feel that I was able to lead the agency to a result that it likely would 

not have otherwise pursued. 

12. Why do you want to serve as Vice Chaim1an ofMSPB? 

It would be a great opportunity to serve in such an important role in our government and to 

help ensure that our civil service laws arc applied properly. 

13. What type of managerial style do you think is necessary for the role of Vice Chairman of 

MSPB? 

I believe that the Vice Chairman of the MSPB should lead by example and set the tone for 

the agency by conducting himself with integrity. Please also see my answer to question 7a of 

the majority questionnaire. 

14. !fan accusation of discrimination were to arise within an office under your management, 

what actions would you take to address such an accusation? 

I would ensure that the allegations are processed under the appropriate procedures in 

accordance with l\IISPB's policies for handling discrimination claims. 

15. Do you have experience addressing instances of prohibited personnel practices (PPPs)? If so, 

please generally describe your experience. 

As described above, I have litigated numerous discrimination cases before the EEOC. 

Senate Homeland Security and Governmental Affairs Committee Page 13 
248 

16. Do you have any experience adjudicating matters? If so, please provide an example. 

Yes, please see my answer to question 6 of the majority questionnaire. 

17. How will your experience help MSPB maintain MSPB's Merit System Principles (MSPs)? 

My experience in the federal government has given me first-hand experience in how 

important it is that MSPs are maintained and that the federal government operates under the 

highest standards. Using this background, I will be able to take the necessary actions to 

maintain MSPs. 

18. What lessons from your time as a Senior Attorney with the Social Security Administration 

(SSA), will you bring with you to MSPB, if confirmed? 

My experience with SSA has not only given me familiarity with many of the laws that the 

MSPB administers. but also has given me experience for how agencies actually operate. I 

have learned lessons about the challenges agencies face in managing their workforce and also 

about the perspectives that many employees have. Familiarity with these issues will be 

invaluable to my work with the MSPB, if I am confirmed. 

V. Policy Questions 

19. Precedents, findings, recommendations and reviews of Office of Personnel Management 

(OPM) rules by the MSPB have potential to directly affect how employees are managed and 

how their appeals are decided. What role do you believe the MSPB should play in developing 

personnel policy? 

The role of the MSPB is to issue legally correct decisions. Other agencies are responsible for 

developing personnel policies. 

20. The MSPB has the statutory responsibility to conduct objective, non-partisan studies that 

assess and evaluate Federal merit systems policies, operations, and practices. These studies 

are typically government-wide in scope and ensure that the workforce is managed in 

accordance with MSPs and is free from PPPs. What role do you believe MSPB's data 

collection should play in supporting personnel policy? 

My understanding is that the data the MSPB collects for its studies is available to policy 

makers to use to make their decisions. 

21. MSPB has been without a quorum of Board members since January 8, 2017. The lack of a 

quorum contributes to delays in issuing final decisions in petitions for review (PFRs) and 

other cases filed at headquarters (HQ) and releasing reports of merit systems studies. 

a. The MSPB currently estimates that it will take months or longer to process the 

inventory of cases at HQ and to publish merit systems studies reports once new 

Senate Homeland Security and Governmental Affairs Committee Page 14 
249 

Board members are nominated and confirmed. Please describe how you will 

effectively and promptly address MSPB' s current backlog. 

One of the first things that I believe the newly confirmed members ofthe 

MSPI3 should do is develop a plan to try to address the backlog as quickly as 

possible. Personally, I am committed to working as quickly as possible so the 

agency can issue cases as fast as it can. 

b. Please describe how your previous work experience has prepared you to 

address the challenges in resolving MSPB's backlog. 

While at SSA, one ofthe main focuses of the agency during my career has 

been reducing the number of cases pending for a hearing before an ALJ. 

Therefore, I am familiar with an agency working to reduce its backlog and 

have been involved in some of the agency's efforts to process cases faster. In 

particular, I have been involved in providing legal guidance for the agency's 

policies concerning the claimants' representatives that appear before the 

agency. Many of these policies have been focused on the agency's ability to 

process cases quickly. As examples, I have worked with the agency to 

implement new regulations, clarify the agency's submission of evidence rules, 

and require representatives to use the agency's electronic services in certain 

situations. 

c. The MSPB Vice Chainnan has voted on over 800 PFR cases which also await 

consideration by new Board members. If confirmed, please describe how you 

will work with your colleagues to consider cases awaiting decisions. 

As I stated above, I believe my colleagues and I should immediately work on a 

plan to tackle the number of cases pending before the MSPB. 

d. Do you have experience with resolving backlogs such as the one faced by 

MSPB? If so, please describe your experience. 

Yes, my experience with SSA as described above in the answer to 21 b. 

e. Have you sought advice from any current or former MSPB employees about 

how to best address the current backlog? If so, please describe your 

consultations. 

The current acting Chairman Mark Robbins has generally explained the 

situation to all of the nominees. 

Senate Homeland Security and Governmental Affairs Committee Page 15 
250 

22. MSPB functions as an independent, third-party adjudicatory authority for employee appeals 

of adverse actions (e.g., removals, suspensions for more than 14 days, and furloughs) and 

retirement decisions. 

a. Please describe your experience in developing adjudicatory processes and 

procedures, issuing subpoenas, calling witnesses and enforcing decisions. 

In addition to my litigation experience that I have already described, I have 

worked to help develop the adjudicatory processes SSA uses to disqualifY 

claimants' representatives from appearing before the agency. See 20 C.F.R. §§ 

404.1700-.1799. I have also handled actions to disqualifY representatives from 

practice before SSA. In those actions, I have requested subpoenas and 

implemented the agency's decision to disqualify the representative. 

b. Please describe how your previous work experience has prepared you to 

execute and supervise these actions at MSPB. 

I have a variety of experience litigating in various forums. This experience has 

prepared me for fulfilling my role at the MSPB. 

23. How should Board members seek to safeguard their independence? 

The best way for Board members to safeguard their independence is to issue decisions that 

are based on nothing more than the appropriate legal standards and to only issue decisions 

that are based on their best judgment, not the pressures from any outside forces. 

24. MSPB was given the authority and responsibility to review the rules, regulations, and 

significant actions ofOPM. Do you have any concerns about OPM's current rules, 

regulations or recent actions? If so, please describe those concerns. 

I would have to better familiarize myself with all ofOPM's rules, regulations, and significant 

actions before l could answer this question. 

25. Do you believe MSPB has the resources it needs to meet current challenges? Please explain. 

I am not in a position to answer this without more information on the internal workings ofthe 

MSPB and its cmrent resources. 

26. How will you address the occurrence ofPPPs with internal employees ofMSPB? 

MSPB managers should be trained appropriately so that PPPs do not occur in the first place. 

If there are allegations of PPPs at the MSPB, I would ensure that the complaint is handled 

properly in accordance with the MSPB's processes. 

27. In some cases, complainants who may be better served by other government agencies such as 

the EEO or OSC seek assistance from the MSPB. 

--~--~=~--------~------------~--~-­ Senate Homeland Security and Governmental Affairs Committee Page 16 
251 

Hatch Act 

a. How will you work to ensure that your staff effectively guides these 

complaints to the appropriate resources? 

Make sure staff reroutes cases that are not in the MSPB'sjurisdiction quickly and 

efficiently. 

b. Will you collaborate with other government agencies to minimize duplication? 

If so, please describe how you will work to achieve this objective. 

I believe agencies should communicate with each other and the public to ensure 

that the appropriate cases are filed with the correct agency. 

28. What would you consider to be an appropriate penalty for a violation of the Hatch Act by a 

senior administration official? 

While I am not sure what you mean by "senior administration official," most individuals who 

would fall under that term are exempted from the MSPB's Hatch Act jurisdiction. The 

penalty for any Hatch Act violation should depend on the facts of the case. 

Whistleblower protections 

29. Please describe any previous experience-in the public or private sector-with handling 

whistleblower complaints, and what steps you took to ensure those individuals did not face 

retaliation and that their claims were thoroughly investigated? 

Please see my answer to question 23a of the majority questionnaire. 

30. OSC has filed an amicus brief opposing an MSPB decision that ruled against a whistleblower 

alleging retaliation because the MSPB said the whistleblower's disclosure was motivated by 

"interpersonal squabbling." Do you believe that the motive of the whistleblower should be 

considered when examining retaliation claims? Please explain. 

I am not familiar with that specific case and would need to examine the issue in more detail 

before I can opine. 

31. OSC filed three amicus briefs in 2017 opposing the MSPB's alleged attempts to impose 

higher procedural burdens on whistleblowers. Do you believe that whistleblowers should be 

subjected to higher procedural burdens before their cases are considered by administrative 

judges? Please explain. 

I am not familiar with that specific case and would need to examine the issue in more detail 

before I can opine. 

Senate Homeland Security and Governmental Affairs Committee Page 17 
252 

32. OSC has also filed amicus briefs opposing the application of higher evidentiary burdens on 

whistleblowers. OSC has written that this burden "runs directly counter to Congress's intent 

in passing the WPEA's enhanced protections for federal whistleblowers." Do you believe 

that any whistleblowers should be subjected to higher evidentiary burdens? Please explain. 

I am not familiar with that specific case and would need to examine the issue in more detail 

before I can opine. 

33. If confirmed, how will you ensure that whistleblower complaints are properly investigated? 

The Office of Special Counsel has the responsibility for investigating whistleblower 

complaints. MSPB can ensure that the complaints are properly investigated by using its 

authority under 5 U.S.C. § I212(b)(3)(A) to enforce OSC subpoenas. 

VI. Relations with Congress and the Public 

34. If confirmed, how will you make certain that you will respond in a timely manner to Member 

requests for information? 

Yes, consistent with the law and applicable rules and regulations. 

35. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from the Ranking Member of any duly constituted committee of the Congress? 

Yes, consistent with the law and applicable rules and regulations. 

36. If confirmed, do you agree without reservation to reply to any reasonable request for 

information from members of Congress? 

Yes, consistent with the law and applicable rules and regulations. 

37. If confirmed, do you commit to take all reasonable steps to ensure that you and your agency 

comply with deadlines established for requested information? 

Yes, consistent with the law and applicable rules and regulations. 

38. If confirmed, do you commit to protect subordinate officials or employees from reprisal or 

retaliation for any testimony, briefings or communications with members of Congress? 

Yes, consistent with the law and applicable rules and regulations. 

Senate Homeland Security and Governmental Affairs Committee Page 18 
253 

39. If confirmed, will you ensure that your staff will fully and promptly provide information and 

access to appropriate documents and officials in response to requests made by the 

Government Accountability Office (GAO) and the Congressional Research Service? 

Yes, consistent with the law and applicable rules and regulations. 

40. If confirmed, will you agree to work with representatives from this Committee and the GAO 

to promptly implement recommendations for improving MSPB's operations and 

effectiveness? 

Yes, consistent with the law and applicable rules and regulations. 

41. If confirmed, will you direct your staff to fully and promptly respond to Freedom of 

Information Act requests submitted by the American people? 

Yes, consistent with the law and applicable rules and regulations. 

42. If confirmed, will you ensure that political appointees are not inappropriately involved in the 

review and release of Freedom oflnformation Act requests? 

Yes, consistent with the law and applicable rules and regulations. 

VII. Assistance 

43. Are these answers your own? Have you consulted with MSPB or any other interested 

parties? If so, please indicate which entities. 

The answers are my own. I provided a draft to acting MSPB Chairman Mark Robbins and 

the staff of the MSPB for their review. 

Senate Homeland Security and Governmental Affairs Committee Page 19 
254 

I. A'(lliN F. (1/(J.y,Y!,J._, , hereby state that I have read the foregoing Pre-Hearing 

Questionnaire and Supplemental Questionnaire and that the information provided therein is, to 

the best of my knowledge, current. accurate, and complete. 

11 l,y IJJ7t,t1vl-,, / 

~~~c) '• -~------

Thisl.lth.day of J v..\J , 2018 

Senate Homeland Security and Governmental Affairs Committee 
255 

Senator Gary Peters 

Post-Hearing Questions for the Record 

Submitted to Carmen G. McLean 

Nominations of Dennis D. Kirk to be Chairman of the Merit Systems Protection Board, 

The Honorable Julia A. Clark to be a Member of the Merit Systems Protection Board, 

Andrew F. Maunz to be a Member of the Merit Systems Protection Board, and Carmen G. 

McLean to be an Associate Judge of the Superior Court of the District of Columbia 

Thursday July 19, 2018 

I. Ms. McLean, you stated that you decided at the age of five to dedicate your life to public 

service. Since then, you've spent your entire legal career in a corporate litigation practice 

and your career and published writings have been rewarded with honors and awards such 

as the Best Lawyers in America 2016-2018, D.C. Rising Star, and the Pro Bono Lawyer 

of the Year. The day-to-day business of the DC Superior Court certainly differs in 

significant ways from your practice as a litigator. What experiences, professional or 

othenvise, will you bring to bear when presiding over matters before the Superior 

Court? 

I appreciate the opportunity to provide additional information about my background and 

experience. Respectfully, I would like to clarify the portion of my testimony summarized in the 

question. During my testimony before the Committee I noted that I wanted to be a lawyer from 

age five, that I have been very dedicated to public service during my 17 years in private practice, 

and that my extensive pro bono work is what motivates my desire to transition into full-time 

public service. During my meeting with Senate staff we spoke in greater detail about my 

personal background, why I entered private practice, and my desire to transition to full-time 

public service. 

I believe my 17 years of litigation experience, including experience in the Superior Court, has 

prepared me well for an appointment to the Superior Court. 

I have substantial experience in Superior Court. When I was named D.C. Bar Pro Bono Lawyer 

of the Year, it was in recognition of my thousands of hours of work in Superior Court on behalf 

oflow-income residents of the District of Columbia. I am familiar with Superior Court's fast 

pace and varied docket. I know how quickly a judge there must pivot and I am comfortable doing 

so. My experience also gives me particular insight into the importance of prose litigation in 

Superior Court. In fact, most of my clients would have been pro se had I not represented them. In 

addition, I am proud to say that in every one of my cases in Superior Court I obtained the result 

desired by my clients. Through my many appearances in Superior Court I learned a great deal 

about the type of judge that I would like to become should I be confirmed: I would like to work 

hard to master relevant laws, rules, and procedures; treat all litigants fairly and with dignity and 
256 

respect; maintain high standards for counsel before me; be deliberate in my application of the 

law to the facts; and provide thoughtful and timely decisions. 

Throughout my career as a trial attorney I have represented clients in complex litigation, trials, 

and arbitrations in both federal and state courts. I have been fortunate to have a diverse range of 

experiences which I would bring to bear should I be confirmed. First, I bring with me substantial 

courtroom experience as I have had many opportunities to first and second chair trials, argue 

motions and evidentiary issues, and negotiate resolutions in both Federal and Superior Courts. 

Second, I have substantial experience in a broad range of subject matters, including antitrust, 

copyright, successor liability, contract interpretation, and client counseling on litigation readiness 

and electronic discovery. Through these experiences I have gained substantive expertise; learned 

how to efficiently locate, Jearn, and apply new areas of law to the facts of a particular matter; and 

learned to neutrally assess the strengths and weakness of legal arguments. Third, I have 

represented a broad range of clients, ranging from the firm's traditional corporate clients to the 

pro bono clients I routinely represented in Superior Court. Through these representations, I have 

learned how to adjust my methods of communication, both oral and \\Titten, as necessary, and 

counsel my clients regarding complicated legal and practical issues. Finally, I have both civil and 

criminal experience. In addition to the many civil lawsuits I have litigated, I have defended 

matters brought by the Department of Justice, grand juries, and United States Attorneys. I am 

confident that this diversity of experience has prepared me to efficiently and effectively address 

the wide variety of Superior Court dockets and litigants. 

I also believe my personal qualities would make me an effective Superior Court judge. I have a 

strong commitment to serving my community, which I have demonstrated through my pro bono 

work and volunteer service to several District of Columbia non-profits. I believe that judicial 

independence is central to the role of the judge and fundamental to equal access to justice. My 

decisiveness, commitment to the rule of law, and respect for others would allow me to 

demonstrate a positive judicial temperament. And I am a leader and a person of integrity, as has 

been recognized by lawyers inside and outside of my firm who have placed me in leadership 

roles and selected me to receive various awards. I am humbled by the public support I have 

received from prominent partners at my law firm, over 50 lawyers whom I have mentored, the 

Solicitor General, a former Chief Judge of the Family Court, the Executive Director of the 

Children's Law Center, the District of Columbia Hispanic Bar Association, and the District of 

Columbia Asian Pacific American Bar Association. 

Should I be confirmed, I would bring to bear 17 years oflitigation experience, including my 

extensive practice in the District of Columbia Superior Court, and the personal qualities 

described above. The combination makes me well suited to serve as a Superior Court judge. 
257 

KERRI S. KUHLMANN 

Via electronic delivery 

Hon. Ron Johnson, Chainnan 

Hon. Claire McCaskill, Ranking Member 

Hon. Committee Members 

July 16,2018 

Homeland Security and Governmental Affairs Committee 

United States Senate 

RE: Hearing on the President's Nominations to the Merit Systems Protection Board: 

Addressing MSPB's Practice of Concealing Identities of Federal Agency Officials 

Who Violate Whistle blower Protection Laws 

Dear Senator Johnson, Senator McCaskill. and Committee Members: 

In your hearing on the President's nominations to the Merit Systems Protection Board 

(MSPB or Board), I respectfully request that the Committee ask the nominees whether, if 

confirmed, they will halt MSPB's unauthorized, unjust practice of protecting from public 

disclosure the identities of federal agency management officials who violate, or pmticipate in 

violating, the Whist1eblower Protection Act of 1989, as mnended by the Whistle blower 

Protection Enhancement Act of 2012 (collectively, WPA). 

I. Background 

In or around 2014, the MSPB unilaterally decided to begin scrubbing from its published 

decisions the identities of all federal agency management officials who are named as wrongdoers 

or witnesses in Board appeals. See, e.g., Ayers v. Department oft he Army, 123 M.S.P.R. l I 

(20 15) (MSPB disguised identities of agency management officials who violated WP A); 

Thompson v. Department of the Army, 122 M.S.P.R. 372 (2015) (MSPB concealed identities of 

agency management officials by referring only to their job titles). There is no legal or statutory 

authority, nor any legitimate public interest, justifying the MSPB's actions; rather, MSPB career 

employees implemented this practice of their own accord with the obvious goal of protecting 

agency managers with whom they sympathize. 1 See MSPB Judges Handbook, Ch. 2, Reviewing 

1 MSPB's so-called "administrative judges," who are merely MSPB career-employee-attorneys, are 

notoriously biased against whistleblowers, and rarely rule in their favor. See, e.g., 
258 

the Appeal, 5. Pseudonymous Appeals, e. Non-Party Anonymity, and Ch. 12, Initial Decisions, 

8. Sanitization of Initial Decisions. 

https://www .mspb.gov/mspbscarch/viewdocs.aspx?docnumbcr=241913&vcrsion=242182&appli 

cation=ACROBAT. In brief, MSPB career employees decided that whistle blowers and other 

employees who appeal erroneous "initial decisions" to the full Board waive their right to 

privacy-as if they had a choice. Jd at Ch. 12, Sanitization oflnitial Decisions. MSPB decided 

that whistleblowers "generally will not be granted anonymity," even when "harm is likely" 

because the whistleblowers' "identities are public information" and "public interest in the 

disclosure of parties' identities" outweighs protecting the whistleblower. Jd at Ch. 2, 5.c.3. 

In stark contrast to their treatment of whistle blowers-whose reputations they 

unreservedly expose to public scrutiny-MSPB career employees essentially invented, with no 

legal authority, enhanced privacy rights for misbehaving agency officials. MSPB attempts to 

rationalize those fictitious enhanced privacy rights by characterizing said agency officialswhiCh include Senior Executive Service (SES) employees and career Agency heads-as "nonparties." One need not be the proverbial "rocket scientist" to see the flaws in that rationalization. 

With regard to MSPB's specious assertion that agency heads, Senior Executives, and 

other agency managers are "non-parties" to whistle blower appeals in which they play a role, 

please consider MSPB whistle blower appeal Docket Number DC-1221-17 -043 7-W-1 (20 17).2 

In that case, several high-level senior executives, including the agency head, were accused of 

violating the WPA, and testified as hearing witnesses. Some of those senior executives were 

afforded the agency's alleged attorney-client privilege to avoid answering questions about the 

extent of the coaching they received from the agency's lawyers, which included coordinating 

testimony and documentary evidence while the hearing was in progress. Plus, the accused SESagency-head-witness, a Deputy Assistant Secretary, was the "deciding official" with regard to 

directing the litigation, and was responsible for rejecting all possibility of settlement. These are 

not the actions and privileges of "non-parties." Moreover, even if those agency management 

officials could be described as "non-parties," there still is no law, public policy, or Freedom of 

Information Act (FOIA) exemption justifying MSPB's gratuitously granting them anonymity. 

Taxpayer-salaried public servants, especially agency managers and other high-level officials, do 

not have a privacy interest in the conduct of their of!icial duties. This probably explains why the 

MSPB has not offered or identified any legitimately-applicable legal authority or "compelling 

m:;3d" justifying the masking of their identities. Thus, MSPB's stated excuse for scrubbing public 

employees' names from its published decisions is nothing less than career MSPB employees' 

bald and illegitimate attempt to shield their fellow agency officials (and former clients and 

colleagues) from public scrutiny oftheir official conduct, and this practice must be stopped. 

hllp.'>':i/lnn-v.hsvm;.senare.gov/hf!aring.;,'/blolring-thc:~i-·vhistlc-on-retaliation-accounts-of..current-and­

.I!!!3JJSl'::/5•deflJI-ctgf!li')':.!d!istlebloH·e_l]i_ and [lttps:l/oversight.house.gov!hearing/five-vears-lat~!eview­

"histleblower-protectiou-enhancement-aet. That bias perhaps stems from the fact that many ofMSPB's 

career employees previously worked as federal agency lawyers, and began their federal careers by 

defending bureaucratic misconduct. MSPB's recently-devised practice of concealing agency managers' 

identities further reveals that bias. 

'Available upon request. 

2 
259 

II. Abuse of Discretion- MSPB's Actions Violate Public Policy and Undermine the 

WP A and Congressional Intent 

American jurisprudence dictates that, except in exceptional circumstances, all material 

participants in a legal proceeding should be identified; a practice that discourages perjury and 

bias and promotes the appearance fairness. The public has a vested interest in ensuring 

transparency, openness, and oversight within the government and its legal systems. 3 Further, one 

of the WPA's cornerstone principles is to encourage federal employees to report government 

fraud, waste, and abuse, in exchange for which Congress promised that the WP A and MSPB will 

protect them from retaliation and hold accountable those who violate their rights. 

Although it has been six years since Congress enacted the WPEA, would-be 

whistle blowers continue to hide in the shadows for fear of retaliation. The MSPB's practice of 

protecting retaliatory managers tells whistleblowers that the shadows are where they should stay, 

because even if they prove their case, their careers and reputations will be destroyed, while the 

public officials who retaliated against them will enjoy complete anonymity and freedom from 

consequences for their actions. See MSPB Judge's Handbook, at Ch. 2, 5.e. (MSPB disguises 

managers' names so that they are not "apparent to a reader unfamiliar with the facts of the 

case"). This puts whistleblowers at a severe disadvantage, deters whistle blowing and the public 

interest it serves, and thus undermines Congressional intent. 

III. Conclusion 

Congress premised the WPA's protections on a federal employee's disclosing 

wrongdoing, because exposing government wrongdoing serves a legitimate public interest. 

MSPB career employees have turned that concept on its head with their unilateral decision to 

cease disclosing the wrongdoers' identities. This practice, which lays bare MSPB career 

employees' well-publicized pro-agency, anti-whistleblower bent, cannot withstand scrutiny and 

must be stopped. I hope you will agree. 

Thank you for addressing this very important issue. 

Sincerely, 

Ken ... &S.K~ 

3 See Redschlag v. Department of the Army, 89 M.S.P.R. 589, fn.l (200 I )(MSPB denied employeeappellant's request for anonymity and a protective order, claiming that FOJA mandates disclosure of 

MSPB proceedings); Coons v. Department of the Treasury, 85 M.S.P.R. 631, ~23 (2000) (noting that 

FOIA policy does not favor sealing records, and FOIA exemptions must be narrowly construed). 
260 

July 18, 2018 

The Honorable Ron Johnson 

Chairman 

Senate Committee on 

Homeland Security and Governmental Affairs 

42 Dirkson Senate Office Building 

Washington, DC 2051 0 

Dear Chairman and Ranking Member, 

The Honorable Claire McCaskill 

Ranking Member 

Senate Committee on 

Homeland Security and Governmental Affairs 

304 Dirkson Senate Office Building 

Washington, DC 20510 

We are federal sector unions collectively representing over one million workers and we are writing 

today to express our opposition to the nominations of Andrew Maunz and Dennis Dean Kirk for the 

positions of Vice Chairman and Chair, respectively, for the Merit Systems Protection Board 

(MSPB). In addition, we are all unified in our unequivocal support for the nominee Julia Clarke, 

whose long and excellent service in the public good as a labor advocate and at the FLRA make her 

supremely qualified for this position on the MSPB. 

Both the Vice Chair and Chair nominees clearly lack the experience that would make them qualified 

for these positions. Neither have spent considerable time representing employees or agencies before 

the MSPB and are notably lacking in significant experience with labor/employment/or personnel 

law. In fact, within his very sparse federal representation experience, the Vice Chair nominee, 

Andrew Maunz, received a scathing comeuppance from a District Court Judge for being 

unprofessional and lacking the temperament to conduct himself appropriately in his role as a 

representative of the Social Security Administration. 

It was originally unclear, based upon his rather unrelated legal experience, why Dennis Kirk would 

even be considered for Chair of the MSPB. Through additional research we have learned of facts 

that leave us deeply concerned not just with the nominee's qualifications, but also about his possible 

connections to other ongoing investigations. Enough serious concerns have been raised by simply 

reviewing the public record that a much deeper Congressional investigation is warranted prior to 

considering this nomination. 

Dennis. Kirk is a partner in the law firm Schmitz & Socarras, LLP, which specializes in 

representing numerous foreign corporations and "investors," including those in Russia. The firm's 

website states that one area of representation is "regulatory compliance challenges" and includes a 

list of clients. One client is Sukhoi, a Russian aircraft manufacturing company with a long history of 

producing aircraft for the Soviet and now Russian Air Force. They also produce civilian aircraft, 

and like many Russian companies have historical roots in previous Soviet society. Sukhoi now has a 

parent company, United Aircraft Corporation, which was created in February 20, 2006 by Russian 

President Vladimir Putin in Presidential Decree No. 140. 

Thus, funds received by the law firm of Schmitz and Socarras, LLP, from the subsidiary, Sukhoi, 

would have clear financial and management ties to the Putin-created company, United Aircraft. We 

do not know the scope of work performed by Dennis Kirk and/or his law firm on behalf of Sukhoi, 

or if it would require, for instance, filing as a foreign agent. However, nothing in the firm's 

description indicates that it performs the kind of work that would typically be performed by a 

qualified candidate for the MSPB. 
261 

Æ 

In addition, there are troubling indications that Dennis Kirk's law partner, Joseph Schmitz, served 

as General Counsel to Erik Prince's organization, the Prince Group, served as a noted foreign policy 

<tJvisor to the Trump campaign, and claimed during the election to be in possession of the missing 

30,000 Hillary Clinton emails from a client, presumably of Kirk's law firm, known as "patriot". 

Considering this is a three-person law firm, his partner's long history of representing the interests of 

Russia should be noted, and Mr. Kirk's involvement in and/or enrichment from these activities 

merit further investigation. 

Positions on the Merit Systems Protection Board afford the occupants access to extensive amounts 

of personal data on employees of the government. Just as we have expressed deep concern with the 

OPM data breach, we, and all federal employees, including those with all levels of security and 

sensitive clearances, need to be secure in the knowledge that the MSPB provides a fair and 

transparent venue for personnel appeals. We need to know that federal employees will not be 

compromised or silenced for speaking up as whistle blowers and not betrayed by political pressure 

from either party, or from any foreign influences, at the MSPB. 

The Merit Systems Protection Board by comparison to many other federal agencies can seem to be 

a rather small, obscure agency; normally, it should be. The MSPB for the most part quietly handles 

personnel issues in federal employment. But, it plays a vital role in ensuring that merit principles 

apply and not political cronyism. The unusual connections of this three-partner law firm raise 

troubling questions about the nomination of Mr. Kirk for the position that essentially umpires 

!.~inations of federal employees, including those alleging retaliation for whistleblowing. 

In conclusion, we do not feel that Dennis Kirk's background and professional career demonstrate 

appropriate experience for a position on the MSPB. Furthermore, his connections through his law 

firm to Joseph Schmitz and issues related to the Russia investigations, raise red flags about his 

placement in a position with oversight over federal employees and whistleblowers. 

Sincerely, 

American Federation of Government Employees (AFGE) 

International Association of Fire Fighters (IAFF) 

International Association of Machinists and Aerospace Workers (IAMAW) 

International Brotherhood of Teamsters (!BT) 

International Federation of Professional and Technical Engineers (IF PTE) 

Marine Engineers' Beneficial Association (MEBA) 

Metal Trades Department, AFL-CIO (MTD) 

National Association of Govemment Employees, SEIU (NAG E) 

National Federation of Federal Employees (NFFE) 

National Weather Service Employees Organization (NWSEO) 

P~t~ntOffice Professional Association (POPA)