                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. BRIAN HAWKINS,                          CB-1208-17-0024-U-1
                    Petitioner,

                  v.
                                                     DATE: August 2, 2017
     DEPARTMENT OF VETERANS
       AFFAIRS,
                 Agency.




               THIS STAY ORDER IS NONPRECEDENTIAL 1

           David Lamine Hendrix, Washington, D.C., for the petitioner.

           Debra L. Roth, Esquire, Washington, D.C., for the relator.

           W. Iris Barber, Washington, D.C., for the agency.


                                           BEFORE

                              Mark A. Robbins, Vice Chairman


                               ORDER ON STAY REQUEST

¶1         Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)
     requests that the Board stay for 45 days the agency’s June 9, 2017 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Brian Hawkins 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         In its July 28, 2017 initial stay request, and its July 31, 2017 amended stay
     request, OSC asserts that it has reasonable grounds to believe that the agency’s
     proposal to remove Mr. Hawkins from his position as Medical Center Director of
     the agency’s Washington, D.C., Veterans Administration Medical Center
     (VAMC) violates 5 U.S.C. § 2302(b)(12). In support of its stay request, OSC
     alleges the following.
¶3         In January 2017, after becoming aware of findings by the agency’s Central
     Office Logistics Team, Mr. Hawkins emailed the former Central Office Acting
     Procurement Officer requesting assistance with improving the Logistics
     Department and initiated an administrative investigation to look into the
     identified deficiencies. On March 13, 2017, Mr. Hawkins informed the agency’s
     Office of Inspector General (OIG) of his concerns regarding the VAMC Log istics
     Department and, on April 6, 2017, met with OIG investigators.              Shortly
     thereafter, on April 12, 2017, OIG issued an Interim Summary Report identifying
     a number of deficiencies at the VAMC that placed patients at unnecessary risk.
     The next day, the agency temporarily reassigned Mr. Hawkins to the Office of
     Deputy Undersecretary of Health for Operations and Management, where he has
     since not performed any substantive duties.
¶4         On June 7, 2017, the Deputy Undersecretary suggested to Mr. Hawkins that
     he resign in light of the OIG Interim Summary Report. Mr. Hawkins apparently
     did not resign, and, on June 9, 2017, the agency proposed to remove him for
     allegedly failing to exercise effective oversight, follow instructions, follow
     policy, and for lack of candor.
                                                                                            3

¶5         In addition to Mr. Hawkins’s complaint, OSC received complaints of
     whistleblower reprisal from two other individuals who allege that the agency’s
     action in proposing Mr. Hawkins’s removal violated agency laws, rules, and
     regulations, and his right to due process.

                                         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
     personnel 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. See Special Counsel
     ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010).
¶7         At issue in this stay request is 5 U.S.C. § 2302(b)(12), which provides that
     it is a prohibited personnel practice to “take or fail to take any other personnel
     action if the taking of or failure to take such action violates any law, rule, or
     regulation implementing, or directly concerning, the merit system principles
     contained in section 2301 of this title.” The Board has held that, to establish that
     an   agency’s    action   constitutes   a    prohibited   personnel   practice     under
     section 2302(b)(12), the following two factors must be met:            (1) the action
     violates a law, rule, or regulation; and (2) the violated law, rule, or regulation is
     one that implements or directly concerns the merit system principles.            Wells v.
     Harris, 1 M.S.P.R. 208, 242-43 (1979); see Special Counsel ex rel. Meyers v.
     Department of Housing and Urban Development, 111 M.S.P.R. 48, ¶ 16 (2009)
                                                                                             4

     (extending a stay based on OSC’s allegations that the agency’s failure to appoint
     the relator was based on a nonmerit factor in violation of section 2302(b)(12)).
¶8         Here, OSC appears to argue that there are reasonable grounds to believe
     that the proposed removal violates the merit system principle set forth in 5 U.S.C.
     § 2301(b)(2), which provides that agencies give “proper regard” to employees’
     constitutional rights. OSC also cites to 5 U.S.C. §§ 7513 and 7701, but does not
     explain its claim that Mr. Hawkins’s proposed removal was based on a violation
     of these statutes. 2 The Board previously has held that the procedures set out in
     5 U.S.C. § 7513(b) can be interpreted as giving effect to the part of 5 U.S.C.
     § 2301(b)(2) that requires respect for the constitutional rights of employees when
     personnel actions are taken. Special Counsel ex rel. Fletcher v. Department of
     Veterans Affairs, 75 M.S.P.R. 219, 222 (1997). OSC appears to contend that the
     proposal notice in this case was implemented in a manner that did not comply
     with due process or section 7513.
¶9         Given the deference that generally should be afforded to OSC in the context
     of an initial stay request and the assertions made in its stay request, and
     considering that 5 U.S.C. § 7513 arguably implements or directly concerns the
     merit system principles, I find that there are reasonable grounds to believe that
     the proposed removal violates 5 U.S.C. § 2302(b)(12). 3


     2
       Section 7513 provides that an employee facing an adverse action under chapter 75 is
     entitled to, among other things, advance notice stating the specific reasons for the
     proposed action and an opportunity to respond. 5 U.S.C. § 7513(b). Section 7701
     provides, among other things, that an employee may appeal an adverse action t o the
     Board and that the Board will not sustain an agency decision if the employee shows
     harmful error in the application of the agency’s procedures in arriving at such a
     decision, that the decision was based on a prohibited personnel practice described in
     section 2302(b), or that the decision was not in accordance with law. 5 U.S.C.
     § 7701(a), (c)(2).
     3
      In light of this finding, I do not reach the issue of whether granting OSC’s stay request
     would be appropriate as to its unspecified claim that the agency violated 5 U.S.C.
     § 7701.
                                                                                           5

                                              ORDER
¶10         Based on the foregoing, I conclude that granting OSC’s stay request is
      appropriate.    Accordingly, a 45-day stay of the agency’s proposal to remove
      Mr. Hawkins is GRANTED. The stay shall be in effect from August 2, 2017,
      through and including September 15, 2017. It is further ORDERED that:
            (1)      During the pendency of this stay, Mr. Hawkins shall be reinstated to
                     the position he held prior to the proposed removal and the agency
                     shall not effect his removal;
            (2)      The agency shall not effect any changes in Mr. Hawkins’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 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), as amended by Pub L. No. 115-42, 4 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
                     August 31, 2017; 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.




      4
       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.
                                                                        6

           § 1201.136(b) must be received by the Clerk of the Board on or
           before September 7, 2017.




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