The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. STEVEN MCDANIEL, CB-1208-23-0006-U-4
Petitioner,
v.
DATE: September 7, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Dustin Seth Frankel, Esquire, Washington, D.C., for the petitioner.
Katherine W. Krems, Esquire, Washington, D.C., for the relator.
Glen E. Woodworth, Esquire, Anchorage, Alaska, for the agency.
Theodore M. Miller, Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 60-day extension of the previously granted stay of Mr. McDaniel’s
probationary termination by the Department of Veterans Affairs (agency) while
OSC completes its investigation and legal review of the matter and determines
whether to seek corrective action. For the reasons discussed below, OSC’s
request is GRANTED.
BACKGROUND
¶2 On April 6, 2023, OSC filed a 45-day initial stay request of the
probationary termination of Mr. McDaniel based on alleged misconduct. Special
Counsel ex rel. Steven McDaniel v. Department of Veterans Affairs, MSPB
Docket No. CB-1208-23-0006-U-1, Stay Request File, Tab 1. In its initial stay
request, OSC argued that it had reasonable grounds to believe that the agency’s
action was in retaliation for Mr. McDaniel’s protected disclos ures and activities
under 5 U.S.C. § 2302(b)(8) and (b)(9)(C). Id. On April 10, 2023, OSC’s initial
stay request was granted through and including May 24, 2023. Special Counsel
ex rel. Steven McDaniel v. Department of Veterans Affairs, MSPB Docket No.
CB-1208-23-0006-U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023). OSC
subsequently requested, and the Board granted, two additional extensions of the
stay. 2 The stay currently ends on September 21, 2023. Special Counsel ex rel.
Steven McDaniel v. Department of Veterans Affairs, MSPB Docket No. CB-1208-
23-0006-U-3, Order on Stay Extension Request, ¶ 9 (July 19, 2023).
2
By order dated May 24, 2023, the Board granted OSC’s request to extend the stay for
60 days, through and including July 23, 2023. Special Counsel ex rel. Steven
McDaniel v. Department of Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-2,
Order on Stay Extension Request (May 24, 2023). By order dated July 19, 2023, the
Board granted OSC’s request to extend the stay for 60 days, through and including
September 21, 2023. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-3, Order on Stay Extension
Request (July 19, 2023).
3
¶3 On August 23, 2023, OSC filed a third request to extend the stay for an
additional 60 days. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-4, Stay Request File
(U-4 SRF), Tab 1. The agency has responded to the extension request. U-4 SRF,
Tab 2.
ANALYSIS
¶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
Board will review the record in the light most favorable to OSC and will grant a
stay extension request if OSC’s prohibited personnel practice claim is not clearly
unreasonable. Id. at 158. The Board may grant the extension for any period that
it considers 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).
¶5 In its third request for a 60-day extension of the existing stay, OSC asserts
that, based on the factual record, which remains largely unchanged, it has
concluded that Mr. McDaniel’s probationary termination constituted a prohibited
personnel practice in violation of 5 U.S.C. §§ 2302(b)(8) and (b)(9)(C).
U-4 SRF, Tab 1 at 2, 7-8. OSC states that it has prepared a draft report of its
findings, but the report is currently under supervisory review, and an extension is
needed to finalize the report and transmit it to the Board, the agency, and the
Office of Personnel Management, as required by 5 U.S.C. § 1214(b)(2)(B). U-4
SRF, Tab 1 at 2, 8. OSC further explains that an extension is necessary because
4
the Board’s electronic filing system will be offline between September 9 and
October 1, 2023. 3 Id. at 2.
¶6 In its response to the extension request, the agency continues to maintain
that whistleblower reprisal did not occur but that, given the Boa rd’s ruling on the
previous stay extension request and the status of OSC’s investigation, it was
unlikely that it would be successful in opposing the stay request. U -4 SRF,
Tab 2. Significantly, the agency does not make any specific arguments
supporting its opposition to the extension. Id.
¶7 Viewing the record in the light most favorable to OSC, and considering the
fact that the evidentiary record supporting OSC’s initial stay request does not
appear to have changed materially since the initial stay was g ranted, an extension
of the stay is not clearly unreasonable to allow OSC to finalize its report, attempt
a resolution of this matter, and, if necessary, pursue corrective action before the
Board. Special Counsel v. Small Business Administration , 73 M.S.P.R. 12, 13-14
(1997). A separate determination must be made on the length of a requested stay.
Waddell, 105 M.S.P.R. 208, ¶ 5. It is the intent of Congress that stays not be
extended for prolonged periods of time. Special Counsel v. Department of the
Treasury, 71 M.S.P.R. 419, 421 (1996). Moreover, the Board is obligated to
press OSC to present corrective action cases in a timely manner. Id. at 422.
However, to date, it appears that OSC has utilized the stay judiciously, having
made significant progress in this matter, as evidenced by the fact that OSC has
already concluded its investigation and prepared a draft of its report per 5 U.S.C.
3
On August 7, 2023, the Office of the Clerk of the Board issued a scheduling order,
notifying the parties that the Board is transitioning to a new version of its electronic
filing system, requiring the system to be offline for a period that encompassed the end
of the current stay. Special Counsel ex rel. Steven McDaniel v. Department of Veterans
Affairs, MSPB Docket No. CB-1208-23-0006-U-3, Stay Request File, Tab 6 at 1.
Accordingly, the scheduling order modified the previously set deadlines regarding a
request for an extension of the stay, directing OSC to file any request for an extension
by August 23, 2023, and the agency to file its response to any such request by
August 30, 2023. Id. at 2.
5
§ 1214(b)(2)(B). U-4 SRF, Tab 1 at 2, 7-8. Accordingly, in light of these
factors, we find that a 60-day extension of the stay is warranted, and we therefore
grant OSC’s request.
ORDER
¶8 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby GRANTED, and it is ORDERED that:
(1) The stay issued on April 10, 2023, is extended through and including
November 20, 2023, on the terms and conditions set forth in that
Order;
(2) The agency shall not effect any changes in Mr. McDaniel’s duties or
responsibilities that are inconsistent with the relator’s salary or grade
level, or impose upon the relator any requirement which is not
required of other employees of comparable position, salary, or grade
level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B) and 5 C.F.R. § 1201.136(b) must be received by the
Clerk of the Board and the agency, together with any further
evidentiary support, on or before November 3, 2023; and
6
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b) must be received by the Clerk of the Board on or
before November 10, 2023.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.