                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL,                                DOCKET NUMBER
                  Petitioner,                        CB-1208-16-0028-U-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 30, 2016
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL *

           Paul David Metcalf, Jr., Esquire, and Sarah Black, Esquire, Washington,
             D.C., for the petitioner.

           Jill A. Weissman, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman


                               ORDER ON STAY REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(A)(i), the Office of Special Counsel
     (OSC) requests a 45-day stay of the agency’s appointment of two unnamed
     individuals to Assistant Director positions in the International Criminal
     Investigative Training Assistance Program (ICITAP) while OSC completes its


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     investigation and determines whether to seek corrective action. For the reasons
     discussed below, OSC’s request is GRANTED.

                                     BACKGROUND
¶2         In its September 28, 2016 stay request, OSC alleges that it has reasonable
     grounds to believe that the agency’s impending appointment of two individuals to
     Assistant Director positons in ICITAP would violate 5 U.S.C. § 2302(b)(6). OSC
     alleges that, in April 2015, the agency issued vacancy announcements for two
     GS-15 Assistant Director positions in ICITAP. For both vacancy announcements,
     the agency advertised under its delegated examining authority (DEU) and merit
     promotion procedures. Veteran A and Veteran B applied for both positions. It
     appears that they were afforded their statutory right to compete under 5 U.S.C.
     § 3304(f) for the merit promotion announcement, and they were both afforded
     their veterans preference points in the DEU announcement.     The agency rated
     both veterans “Best Qualified” and referred them for selection under both the
     DEU and merit promotion announcements. Both were interviewed.
¶3         Less than a week later, according to OSC, ICITAP officials met with
     Veteran A and Veteran B individually and told them both that the highest-ranked
     candidate was a nonveteran who could not be hired unless Veteran A and Veteran
     B withdrew from competition.        ICITAP officials suggested that the two
     candidates weigh their options and confer with each other, but, ultimately, they
     did not withdraw from competition.     ICITAP attempted to hire its preferred
     candidate anyway, but was prevented from doing so by human resources officials.
     The agency eventually canceled the vacancy announcements without making a
     selection. In December 2015, OSC notified the agency that it was investigating
     whether prohibited personnel practices had occurred in connection with the
     Assistant Director positions.
¶4         While OSC’s investigation was ongoing, in June 2016, the agency
     readvertised both positions under both DEU and merit promotion procedures. In
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     the 2015 advertisements, command level law enforcement experience had been
     one of the various factors the agency used to rank applicants.            The 2016
     announcements, however, had been rewritten so that command level law
     enforcement experience was a minimum qualification required for the positon.
¶5         Veteran A and Veteran B applied for the positions but were found
     unqualified because they lacked command level law enforcement experience. In
     fact, no veterans who applied for the positions in 2016 were found qualified.
     OSC informed the agency that it was investigating the 2016 hiring process for
     possible prohibited personnel practices, and the parties reached an informal
     agreement that the agency would not fill the positions until OSC had “adequately
     investigated.” OSC represents that the agency recently repudiated the agreement
     and announced its intent to move forward with the appointments.

                                         ANALYSIS
¶6         Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request that any member of
     the Merit Systems Protection Board order a stay of any personnel action for
     45 days if OSC determines that there are reasonable grounds to believe that the
     personal action was taken, or is to be taken, as a result of a prohibited personnel
     practice. Such a request shall be granted unless the Board member determines
     that, under the facts and circumstances involved, such a stay would not be
     appropriate.   5 U.S.C. § 1214(b)(1)(A)(ii).   OSC’s stay request need only fall
     within the range of rationality to be granted, and the facts must be reviewed in the
     light most favorable to a finding of reasonable grounds to believe that a
     prohibited personnel practice was (or will be) committed. Special Counsel ex rel.
     Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶7         The prohibited personnel practice at issue here is set forth at 5 U.S.C.
     § 2302(b)(6), which provides that it is a prohibited personnel practice to:
           [G]rant any preference or advantage not authorized by law, rule, or
           regulation to any employee or applicant for employment (including
           defining the scope or manner of competition or the requirements for
                                                                                       4

            any position) for the purpose of improving or injuring the prospects
            of any particular person for employment[.]
      As OSC correctly states in its stay request, to prove a violation of 5 U.S.C.
      § 2302(b)(6), the petitioning party must show:      (1) the relevant management
      official had the authority to take personnel actions; (2) the official granted a
      preference or advantage not authorized by law, rule, or regulation; and (3) the
      official granted the preference to a particular individual with the purpose of
      improving his prospects for employment.          See Special Counsel v. Byrd,
      59 M.S.P.R. 561, 570 (1993), aff’d, 39 F.3d 1196 (Fed. Cir. 1994) (Table).
¶8          Based on the evidence amassed so far, OSC contends that the relevant
      managers had the authority to take personnel actions. OSC further contends that
      it has reasonable grounds to believe that ICITAP managers granted an
      unauthorized preference or advantage to their preferred nonveteran candidate
      when they attempted to manipulate the hiring process in 2015 as described above,
      and when they restructured the vacancy announcement in 2016 in such a way that
      gave an advantage to their preferred nonveteran candidate and excluded otherwise
      qualified veterans.
¶9          Thus, given the assertions made by OSC in its stay request, I find that there
      are reasonable grounds to believe that the agency violated 5 U.S.C. § 2302(b)(6)
      when it attempted to influence Veteran A and Veteran B to withdraw their
      applications for the 2015 announcements, when it attempted to hire its preferred
      candidate over “best-qualified” veteran candidates, and when it rewrote the
      minimum qualification standards for the position to favor its preferred candidate
      and exclude veterans who had previously been higher-rated candidates.

                                           ORDER
¶10         Based on the foregoing, I conclude that granting OSC’s stay request would
      be appropriate.       Accordingly, a 45-day stay of the agency’s impending
      appointments to fill the two Assistant Director vacancies in ICITAP is
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GRANTED. The stay shall be in effect from September 30, 2016, through and
including November 14, 2016. It is further ORDERED that:
     1)    In the event that the agency has already made selections for the
           position, the natural and foreseeable consequences of the selection
           and appointment process are STAYED, including but not limited to
           setting salary and benefits, negotiating start dates, completing pre-
           appointment documents, and allowing the selectees to perform the
           duties of the positions.
     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 an extension of this 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 evidentiary support, on or before October 28,
           2016. 5 C.F.R. § 1201.136(b). Any comments on such a request that
           the agency wants 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, on or before November 4, 2016.




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