                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. KELLY HALE,                             CB-1208-18-0002-U-2
                   Petitioner,

                  v.
                                                     DATE: November 17, 2017
     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1

           Shayla Silver-Balbus, Esquire, Oakland, California, for the petitioner.

           Marc Pasekoff, Esquire, Washington, D.C., for the relator.

           Jason C. Green, Dallas, Texas, for the agency.


                                           BEFORE

                              Mark A. Robbins, Vice Chairman


                       ORDER ON STAY EXTENSION REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
     requests an extension of the previously granted stay of the agency’s proposed


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     removal of Dr. Hale.       For the reasons discussed below, OSC’s request is
     GRANTED and the stay is extended through February 16, 2018.

                                       BACKGROUND
¶2          On October 4, 2017, OSC requested a 45-day initial stay of the proposed
     removal of Dr. Hale based on charges of misconduct. Special Counsel ex rel.
     Hale     v.   Department     of    Veterans   Affairs,   MSPB      Docket     No.
     CB-1208-18-0002-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 proposed action
     was in retaliation for Dr. Hale’s protected activity under 5 U.S.C. § 2302(b)(8)
     and (b)(9)(C). Id. On October 5, 2017, OSC’s initial stay request was granted
     through and including November 18, 2017.        Special Counsel ex rel. Hale v.
     Department of Veterans Affairs, MSPB Docket No. CB-1208-18-0002-U-1, Order
     on Stay Request, ¶¶ 1, 13 (Oct. 5, 2017).
¶3          On November 2, 2017, OSC filed a timely request to extend the stay for an
     additional 90 days.    Special Counsel ex rel. Hale v. Department of Veterans
     Affairs, MSPB Docket No. CB-1208-18-0002-U-2, Stay Request File (U-2 SRF),
     Tab 1. OSC asserted that the agency did not oppose the request . Id. at 1, 2. In
     fact, although afforded an opportunity to do so, the agency did not respond to
     OSC’s request.

                                        ANALYSIS
¶4          A stay request 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 if OSC’s prohibited personnel practice claim is not clearly
     unreasonable. Id. at 158. The Board may extend the period of a stay for any
                                                                                       3

     period that it considers appropriate. 2 5 U.S.C. § 1214(b)(1)(B); Special Counsel
     ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141, ¶ 3 (2006).
¶5         In OSC’s request for an extension, it asserts that, at this time, the
     evidentiary record is not sufficiently developed for OSC to complete its
     investigation. U-2 SRF, Tab 2 at 2. OSC asserts that, after the Board ordered the
     stay, OSC submitted a comprehensive document request to the agency, including
     a complex electronic discovery request. U-2 SRF, Tab 1 at 1. OSC also asserts
     that the agency has begun producing the requested documents but has indicated
     that it will not be able to complete OSC’s document request before the stay
     expires on November 18, 2017.       Id.   Further, OSC asserts that the electronic
     discovery request in particular may take many weeks beyond the expiration of the
     stay to complete but that, based on the ongoing nature of the discovery process, it
     has timely reviewed the documents produced to date and has continued to
     interview witnesses. Id. at 1-2.
¶6         At this stage, and in light of the fact that the evidentiary record supporting
     OSC’s initial stay request does not appear to have materially changed since t he
     Board granted the initial stay, it is appropriate to extend the stay through
     February 16, 2018. See Special Counsel ex rel. Waddell v. Department of Justice,
     103 M.S.P.R. 372, ¶ 5 (2006).

                                          ORDER
¶7         Accordingly, a 90-day extension of the stay of Dr. Hale’s proposed removal
     is GRANTED.      The stay issued on October 5, 2017, is extended through and
     including February 16, 2018, on the terms and conditions set forth in that Order.
     It is further ORDERED that:
           (1)    Dr. Hale shall remain in his position;

     2
       Recently enacted legislation allows an individual Board member to extend a stay
     under 5 U.S.C. § 1214(b)(1)(B) when the Board lacks a quorum.         See Pub. L.
     No. 115-42, 131 Stat. 883 (June 27, 2017).
                                                                                   4

      (2)   The agency shall not effect any changes in Dr. Hale’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)   Within 5 working days of this Order, the agency sha ll 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), as amended by Pub. L. No. 115-42, 3 and 5 C.F.R.
            § 1201.136(b) must be received by the Clerk of the Board and the
            agency, together with any further evidentiar y support, on or before
            February 1, 2018; and
      (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 February 8, 2018.




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




3
 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
