                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. DEBBIE WHITE,                           CB-1208-17-0002-U-3
                    Petitioner,

                  v.
                                                     DATE: December 16, 2016
     DEPARTMENT OF DEFENSE,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL *

           Lisa Powell, Esquire, Oakland, California, for the petitioner.

           Bradley R. Hansen, Esquire, and Sandra K. Whittington, Esquire, Fort Lee,
             Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                               ORDER ON STAY 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 the agency’s action


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     demoting Debbie White.       For the reasons discussed below, OS C’s request is
     GRANTED, and the stay is extended through February 18, 2017.

                                       BACKGROUND
¶2         On October 7, 2016, Member Mark A. Robbins granted OSC’s initial
     request for a 45-day stay of Ms. White’s demotion.           Special Counsel ex rel.
     White v. Department of Defense, MSPB Docket No. CB-1208-17-0002-U-1, Stay
     Request File, Tab 2. On November 1, 2016, OSC filed a timely request to extend
     the stay for an additional 30 days. Special Counsel ex rel. White v. Department of
     Defense, MSPB Docket No. CB-1208-17-0002-U-2, Stay Request File (U-2 SRF),
     Tab 1, and on November 18, 2016, the Board granted the extension through
     December 20, 2016, U-2 SRF, Tab 2. On December 5, 2016, OSC filed a timely
     request to extend the stay for an additional 60 days.        Special Counsel ex rel.
     White v. Department of Defense, MSPB Docket No. CB-1208-17-0002-U-3, Stay
     Request File (U-3 SRF), Tab 1. The agency has not filed a response to OSC’s
     request for a further extension of the stay.

                                          ANALYSIS
¶3         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 of
     time 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).
¶4         In its first request for an extension, OSC asserted that it was working
     diligently to   complete    its   investigation,   having   interviewed   more   than
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     20 witnesses, and that the agency was assisting in scheduling interviews and in
     providing documents which OSC reviewed as they were produced.               U-2 SRF,
     Tab 1 at 2-3.     OSC further maintained that, once it had completed its
     investigation, it might need additional time to evaluate and pursue the matter, as
     appropriate. Id. at 3.
¶5         In the request currently before us, OSC asserts that a 60-day extension of
     the stay is necessary to allow it to finalize its prohibited personnel practice report
     and seek resolution of the complaint.      Specifically, OSC indicates that it has
     completed its investigation and is drafting the report to the Secretary of Defense,
     and that, once the Special Counsel has reviewed and submitted that report, OSC
     will need additional time to seek to negotiate a resolution to the complaint.
     U-3 SRF, Tab 1 at 2.      OSC argues that Ms. White should be held harmless
     pending these efforts to resolve the complaint. Id. Thus, OSC maintains that the
     evidentiary record has not materially changed during the stay. Id. at 1.
¶6         Under the specific circumstances of this case, including the limited length
     of the extension request, the fact that OSC has completed its investigation and is
     preparing a report, the fact that the agency has not responded to the request, and
     in light of the fact that the evidentiary record supporting OSC’s initial stay
     request has not materially changed since Member Robbins granted the initial stay,
     we find it appropriate to extend the stay until February 18, 2017. See Special
     Counsel ex rel. Waddell, 103 M.S.P.R. 372, ¶ 5.

                                           ORDER
¶7         Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
     hereby GRANTED. It is hereby ORDERED that:
           (1) The terms and conditions of the stay issued on October 7, 2016, and
               extended on November 18, 2016, are extended through and including
               February 18, 2017;
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     (2) 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;
     (3) Any request for a further extension of the stay pursuant to 5 U.S.C.
        § 1214(b)(1)(B) must be received by the Clerk of the Board and the
        agency, together with any evidentiary support, on or before February 3,
        2017. See 5 C.F.R. § 1201.26(b). Any comments on such a request that
        the agency wishes the Board to consider pursuant to 5 U.S.C.
        § 1214(b)(1)(C) must be received by the Clerk of the Board, together
        with any evidentiary support, before February 10, 2017. See 5 C.F.R.
        § 1201.136(b).




FOR THE BOARD:                         ______________________________
                                       Jennifer Everling
                                       Acting Clerk of the Board
Washington, D.C.
