The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. DALE KLEIN, CB-1208-16-0023-U-7
Petitioner,
v.
DATE: June 29, 2017
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL *
Sheri S. Shilling, Esquire, Washington, D.C., for the petitioner.
Loretta Poston, Esquire, Tampa, Florida, for the relator.
Michael E. Anfang, Esquire, Kansas City, Missouri, for the agency.
Pamela R. Saunders, Minneapolis, Minnesota, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests a 90-day extension of the previously granted stay of the agency’s
termination of Dr. Dale Klein, retroactive to May 13, 2017. For the reasons
discussed below, OSC’s request is GRANTED IN PART and the stay is extended
through July 14, 2017, retroactive to May 13, 2017.
BACKGROUND
¶2 On June 14, 2017, OSC requested a 45-day initial stay of a May 31, 2017
proposal by the Department of Veterans Affairs (DVA) to remove Dr. Klein based
on two charges: (1) failure to follow orders to begin treating patients; and
(2) offensive language. Special Counsel ex rel. Dale Klein v. Department of
Veterans Affairs, MSPB Docket No. CB-1208-17-0019-U-1, Stay Request File,
Tab 1. OSC’s request was viewed as a request for an extension of a stay of
DVA’s decision to terminate Dr. Klein during his probationary period that was
previously granted through May 12, 2017. Special Counsel ex rel. Dale Klein v.
Department of Veterans Affairs, 2017 MSPB 6. Because the Board was without a
quorum, and lacked the authority to rule upon a stay extension request, OSC’s
request was denied without prejudice. Id. Recently, however, Congress passed
legislation that would allow an individual Board member to extend a stay under
section 1214(b)(1)(B) when the Board lacks a quorum, and informed OSC that
following the enactment of such legislation, it could petition for an extension of
the previously granted stay. Id. OSC now requests a 90-day extension of the
previously granted stay, retroactive to May 13, 2017.
ANALYSIS
¶3 Until recently, under 5 U.S.C. § 1214(b)(1)(B), a request for an extension
of a previously granted stay of a personnel action could be granted only by the
Board. However, Congress recently passed legislation amending 5 U.S.C.
3
§ 1214(b)(1)(B) to allow an individual Board member to extend a stay granted
under section 1214(b)(1)(A) during periods when the Board lack s a quorum.
See S. 1083, 115th Cong. (as passed by the House of Representatives on
May 25, 2017, and by the Senate on June 14, 2017). On June 27, 2017, this
legislation was signed into law. Thus, although at present there is only one Board
member and the Board continues to lack a quorum, pursuant to 5 U.S.C.
§ 1214(b)(1)(B)(ii), an individual Board member may rule on OSC’s request for
an extension of the stay.
¶4 A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation, 74 M.S.P.R. 155, 157 (1997).
The purpose of the stay is to minimize the consequences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
record will be reviewed in the light most favorable to OSC and a stay extension
request will be granted if OSC’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. An extension may be granted for any period that is
considered appropriate. 5 U.S.C. § 1214(b)(1)(B); Special Counsel ex rel.
Waddell v. Department of Justice, 105 M.S.P.R. 208, ¶ 3 (2007). Given the
circumstances and history of this case, it is appropriate to extend the stay through
July 14, 2017. Under the Board’s regulations, DVA must be given an opportunity
to comment on the request for an extension. DVA may file any co mments on the
requested extension on or before July 6, 2017. A ruling will be made on the
remaining balance of OSC’s request for an extension of the stay after DVA has
been afforded an opportunity to respond.
ORDER
¶5 Based on the foregoing, granting OSC’s request for an extension of the stay
in part is appropriate. Accordingly, a stay of Dr. Klein’s proposed removal
4
and/or termination is granted through July 14, 2017, retroactive to May 13, 2017 .
It is further ORDERED that:
(1) During the pendency of this stay, Dr. Klein shall be returned to the
status quo ante as of May 12, 2017, when the previous stay expired;
(2) DVA shall not effect any changes in Dr. Klein’s duties or
responsibilities that are inconsistent with his salary or grade level, or
impose upon him any requirement which is not required of other
employees of comparable position, salary, or grade level;
(3) DVA shall not issue a decision on the May 31, 2017 proposed
removal; and
(4) Within 5 working days of this Order, DVA shall file evidence to the
Clerk of the Board showing that it has complied with this Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.