                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SPECIAL COUNSEL                                 DOCKET NUMBER
EX REL. DALE KLEIN,                             CB-1208-16-0023-U-4
              Petitioner,

             v.
                                                DATE: September 13, 2016
DEPARTMENT OF VETERANS
  AFFAIRS,
            Agency.




          THIS STAY ORDER IS NONPRECEDENTIAL ∗

      Sheri S. Shilling, Esquire, Washington, D.C., for the petitioner.

      Loretta Poston, Esquire, Tampa, Florida, for the relator.

      G.M. Jeff Keys, Esquire, Saint Louis, Missouri, for the agency.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




∗
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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
     termination of Dr. Dale Klein’s appointment. For the reasons discussed below,
     we   GRANT      OSC’s    request    IN   PART   and   extend    the   stay   through
     November 10, 2016, but we DENY OSC’s request to order the agency to reassign
     Dr. Klein to a pain management physician position in Columbia or Kansas City,
     Missouri.

                                        BACKGROUND
¶2         On May 26, 2016, OSC requested a stay of the termination of Dr. Klein’s
     appointment to complete its investigation and legal review of his prohibited
     personnel practices complaint and determine whether to seek corrective action.
     Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs, MSPB
     Docket No. CB-1208-16-0023-U-1, Stay Request File (U-1 SRF), Tab 1. OSC
     also requested an order returning Dr. Klein to his position and duties as a pain
     management physician at the Poplar Bluff Medical Center during the period of
     the stay. Id. The Board granted OSC’s request for a stay through July 15, 2016,
     but denied OSC’s request to order the Department of Veterans Affairs (DVA) to
     return Dr. Klein to his duties and responsibilities as a physician. U-1 SRF, Tab 3.
¶3         On June 9, 2016, OSC filed a motion to modify the order granting the initial
     stay request by ordering that Dr. Klein be returned to his position as a pain
     management physician.     Special Counsel ex rel. Dale Klein v. Department of
     Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-2, Stay Request File
     (U-2 SRF), Tab 1. In the alternative, OSC requested that the Board order DVA to
     assign Dr. Klein to “mutually agreed upon duties that are ordinarily performed by
     physicians at the Poplar Bluff [Medical Center].”              Id. at 11-12.     On
     June 11, 2016, DVA filed a response to OSC’s motion stating that the Poplar
     Bluff Medical Center’s pain management clinic has been closed and explaining
                                                                                     3

     the difficulties in reopening the clinic during the 45-day period of the stay. U-2
     SRF, Tab 2.      On June 20, 2016, the Board denied OSC’s motion for a
     modification of the initial stay order. U-2 SRF, Tab 3.
¶4        On June 30, 2016, OSC filed a request to extend the stay for an additional
     60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs,
     MSPB Docket No. CB-1208-16-0023-U-3, Stay Request File (U-3 SRF), Tab 1.
     OSC also renewed its request that the Board order Dr. Klein to be returned to his
     position of record. Id. Alternatively, OSC requested an order placing Dr. Klein
     in a “substantially similar physician position” or another physician position for
     which he is qualified. Id. at 2, 6-8. In response, DVA asserted that the Popular
     Bluff Medical Center did not have a present need for a physician with Dr. Klein’s
     skills and privileges. U-3 SRF, Tab 2 at 4. In particular, DVA reiterated that the
     pain management clinic had closed and there was no need for an anesthesiologist
     at the Poplar Bluff Medical Center, which is not a full-service hospital and does
     not perform invasive surgical procedures. Id.
¶5        The Board granted OSC’s request for a stay through September 13, 2016,
     but denied its request for an order returning Dr. Klein to his position as a pain
     management physician to the extent the position no longer exists.       U-3 SRF,
     Tab 3. The Board, however, ordered DVA to provide a detailed accounting of its
     search for vacant positions and modified assignments with physician duties
     within the local commuting area to which it could temporarily reassign Dr. Klein.
     Id. at 7-8. In response, the agency identified three vacancies at the Poplar Bluff
     Medical Center, two primary care physician positions and one urgent care
     physician position. U-3 SRF, Tab 6 at 3. DVA argued that, while Dr. Klein met
     the minimum requirements to be considered for appointment to these positions, he
     did not have the clinical or diagnostic skills and experience necessary for them
     because he specializes in pain management and anesthesiology. Id. at 3, 8.
                                                                                     4

¶6        On August 26, 2016, OSC filed a timely request to extend the stay for an
     additional 60 days. Special Counsel ex rel. Dale Klein v. Department of Veterans
     Affairs, MSPB Docket No. CB-1208-16-0023-U-4, Stay Request File (U-4 SRF),
     Tab 1. The agency has filed a timely response. U-4 SRF, Tab 2. OSC has filed a
     reply. U-4 SRF, Tab 3.

                                       ANALYSIS
¶7        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).
¶8        In its first request for extension, OSC asserted that DVA had failed to
     respond to its requests for information and documents pursuant to 5 C.F.R. § 5.4.
     U-3 SRF, Tab 1 at 3.     OSC further maintained that, after DVA responded, it
     would need additional time to schedule and conduct witness interviews or, if
     necessary, request additional information.   Id.   OSC asserts that, on July 19,
     2016, after the Board granted its first request for an extension, DVA partially
     responded to its request for information and documents by providing the
     documents in the evidence file supporting Dr. Klein’s termination, which
     previously had been informally provided to OSC. U-4 SRF, Tab 1 at 3.
¶9        In its second request for extension currently before us, OSC asserts that an
     additional 60 days is necessary because electrically stored responsive information
     is still outstanding and DVA has informed OSC that it will be weeks before it will
                                                                                        5

      be able to provide such information.        Id.   Thus, OSC maintains that the
      evidentiary record has not materially changed since OSC filed its initial stay
      request. Id. at 6. DVA does not dispute that it has not fully responded to OSC’s
      requests for information, though it disputes the proper method for locating
      responsive electronic information. U-4 SRF, Tab 2 at 2-3.
¶10        Under the specific circumstances of this case and in light of the fact that the
      evidentiary record supporting OSC’s initial stay request has not materially
      changed since the Board granted the initial stay, we find it appropriate to extend
      the stay until November 10, 2016.       See Special Counsel ex rel. Waddell v.
      Department of Justice, 103 M.S.P.R. 372, ¶ 5 (2006).
¶11        In addition to its stay request, OSC also requests that the Board order that
      DVA temporarily reassign Dr. Klein to a vacant pain management physician
      position located in either Columbia or Kansas City, Missouri. U-4 SRF, Tab 1
      at 7-8. A stay granted pursuant to 5 U.S.C. § 1214(b) is issued as a means of
      minimizing the adverse consequences of a prohibited personnel practice,
      providing time for a full investigation and settlement negotiations and
      safeguarding the status quo ante while the interested parties prepare their cases
      for presentation to the Board. Special Counsel v. Department of Veterans Affairs,
      60 M.S.P.R. 40, 41 (1993). If OSC has met its burden, the employee is usually
      placed in the same position he held before the agency’s allegedly improper
      actions. Special Counsel v. Department of the Interior, 68 M.S.P.R. 266, 269
      (1995).   The Board has, however, recognized that an agency may show a
      compelling reason for not returning an employee to the duties and responsibilities
      of his position during the pendency of a stay.      See, e.g., Special Counsel v.
      Department of Transportation, 72 M.S.P.R. 104, 108 (1996).
¶12        Here, DVA asserts that Dr. Klein cannot be returned to duty in his former
      position because it closed the pain clinic. U-1 SRF, Tab 2 at 4. Further, DVA
      contends that there are no vacant positions within Dr. Klein’s specialties at the
      Poplar Bluff Medical Center and it would be inappropriate to assign him to any of
                                                                                         6

      the three vacant positions at Poplar Bluff Medical Center, which are in primary or
      urgent care settings, settings in which Dr. Klein has no prior experience. U-3
      SRF, Tab 6 at 3-4, 8.      OSC contends that, because DVA cannot locate an
      appropriate physician position in the local commuting area, the Board should
      order DVA to temporarily reassign Dr. Klein to an available pain management
      physician position in either Columbia or Kansas City, Missouri. U-4 SRF, Tab 1
      at 7-8. DVA responds that Dr. Klein would need to obtain appropriate credentials
      from these facilities prior to performing any clinical duties. U-4 SRF, Tab 2 at 5.
      It further asserts that there is no guarantee that he would be granted such
      credentials because the decision whether to grant a physician clinical privileges is
      made by officials at the local medical center, the fact that one facility has granted
      particular clinical privileges to an individual physician does not guarantee that
      another facility will grant the same privileges, and the overall scope of the
      clinical services provided by the medical centers in Columbia and Kansas City,
      Missouri, is broader than the scope of services provided at the Poplar Bluff
      Medical Center. Id. at 3-5.
¶13         At this time, we will not order DVA to reassign Dr. Klein to either pain
      management position in Columbia or Kansas City, Missouri, to the extent that
      Dr. Klein does not have clinical privileges at these medical centers and agency
      officials at the Poplar Bluff Medical Center have no authority to grant Dr. Klein
      the clinical privileges required for him to perform medical procedures within his
      specialties at these locations. Nor will we order DVA to reassign Dr. Klein to
      any of the three vacant positions identified at Poplar Bluff Medical Center
      because such positions appear to lie outside of Dr. Klein’s expertise and OSC has
      not disputed DVA’s contentions that, given Dr. Klein’s skills and experience as
      an anesthesiologist and pain management specialist, it would not be appropriate
      to place him in a primary care or urgent care physician position.
¶14         However, DVA should continue to search for and assign Dr. Klein to any
      appropriate physician position within his skills and experience should such a
                                                                                            7

      position become available within the local commuting area during the pendency
      of the stay. To the extent that OSC believes that the agency has failed to comply
      with the terms and conditions of this Order as set forth below, OSC may petition
      the Board for enforcement of this Order and may recommend appropriate
      sanctions to be imposed for the agency’s noncompliance. See 5 C.F.R. part 1201,
      subpart F.

                                              ORDER
¶15         Pursuant to 5 U.S.C. § 1214(b)(1)(B), an extension of the stay is hereby
      granted, and we ORDER as follows:
            (1) The stay issued on June 1, 2016, is extended through and including
                   November 10, 2016, on the terms and conditions that (a) DVA will
                   reinstate Dr. Klein to the status quo ante, but is not required to reassign
                   him to the vacant primary care or urgent care physician positions
                   located at Poplar Bluff Medical Center or to the vacant pain
                   management physician positions in Columbia or Kansas City, Missouri;
                   (b) DVA shall not affect any change to Dr. Klein’s salary, grade level,
                   or duty station, or impose upon him any requirement that is not
                   required of other employees of a comparable grade level; and (c) DVA
                   shall assign Dr. Klein to a physician position within his skills and
                   experience to the extent one becomes available within the local
                   commuting area during the pendency of the stay;
            (2) Within 5 working days of this Order, DVA shall submit evidence to the
                   Clerk of the Board showing that it has complied with this Order; and
            (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 October 26,
                   2016. See 5 C.F.R. § 1201.136(b). Any comments on such a request
                   that the agency wishes the Board to consider pursuant to 5 U.S.C.
                                                                           8

         § 1214(b)(1)(C) must be received by the Clerk of the Board, together
         with any evidentiary support, on or before November 2, 2016.    See
         5 C.F.R. § 1201.136(b).




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