                        UNITED STATES OF AMERICA
                     MERIT SYSTEMS PROTECTION BOARD
                                      2017 MSPB 6

                           Docket No. CB-1208-17-0019-U-1

                                    Special Counsel
                                   ex rel. Dale Klein,
                                       Petitioner,
                                            v.
                          Department of Veterans Affairs,
                                         Agency.
                                      June 19, 2017

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

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

          Michael E. Anfang, Kansas City, Missouri, for the agency.

          Pamela R. Saunders, Minneapolis, Minnesota, for the agency.

                                        BEFORE

                            Mark A. Robbins, Vice Chairman


                                OPINION AND ORDER

¶1        Pursuant to 5 U.S.C. § 1214(b)(1)(A), the Office of Special Counsel (OSC)
     has requested a 45-day stay of the proposal to remove Dr. Dale Klein while
     OSC completes its investigation and legal review of Dr. Klein’s prohibited
     personnel practice complaint and determines whether to seek corrective
     action. For the reasons discussed below, OSC’s stay request is DENIED
     WITHOUT PREJUDICE.
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                                        BACKGROUND
¶2          On May 26, 2016, OSC previously filed a request for a 45-day stay of a
     decision of the Department of Veterans Affairs (DVA) to terminate Dr. Klein
     during his probationary period, effective April 28, 2016. 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 alleged that
     Dr. Klein, a pain management physician, was terminated in retaliation for making
     protected disclosures to DVA’s Office of the Inspector General (OIG) and DVA
     management officials that patients were diverting controlled substances and DVA
     was not taking appropriate preventive measures and that DVA had not provided
     him with a sterile area to perform injections. U-1 SRF, Tab 1 at 7. OSC also
     alleged that Dr. Klein engaged in protected activity when he was interviewed by
     the OIG in January 2016 concerning his disclosures. Id.
¶3          The Board granted OSC’s request, U-1 SRF, Tab 3, and subsequently
     granted several extensions of the stay, which was in place from June 1, 2016,
     through May 12, 2017. See Special Counsel ex rel. Dale Klein v. Department of
     Veterans   Affairs,    MSPB      Docket       Nos. CB-1208-16-0023-U-3,      CB-1208-16
     0023-U-4, CB-1208-16-0023-U-5, CB-1208-16-0023-U-6.
¶4          In its current stay request, OSC asserts that, following the expiration of the
     stay on May 12, 2017, DVA proposed Dr. Klein’s removal on May 31, 2017,
     based on two charges: (1) failure to follow orders to begin treating patients; and
     (2) offensive language.      OSC contends that the proposed removal constitutes
     further retaliation because it occurred shortly after the OIG issued a report that
     OSC contends substantiated Dr. Klein’s disclosures regarding the diversion of
     controlled substances, and shortly after OSC issued a prohibited personnel
     practice   report     on   May   11,        2017,   finding   that   DVA    had   vi olated
     sections 2302(b)(8) and (b)(9) by terminating Dr. Klein’s employment during his
     probationary period.       OSC further contends that DVA’s reasons for proposing
     Dr. Klein’s removal for failure to follow orders to start treating patients are weak
                                                                                       3

     because Dr. Klein had been engaged in discussions with DVA about returning to
     treating patients after not having done so for over a year as a result of the
     agency’s prior termination action and the Board’s prior stay orders.           OSC
     maintains that, in the midst of these discussions concerning training, equipment,
     and resources, DVA proposed Dr. Klein’s removal in further retaliation for his
     prior disclosures and for his subsequent protected activity of filing an
     OSC complaint.

                                        ANALYSIS
¶5         This request is before the Board under unusual circumstances.          Under
     5 U.S.C. § 1214(b)(1)(B), a request for an extension of a previously granted stay
     of a personnel action may be granted only by the Board. A quorum must be
     present for the Board to consider OSC’s request for an extension. When the stay
     expired on May 12, 2017, the Board lacked a quorum and, thus, also the authority
     to grant an extension of the previously granted stay, had OSC requested it and the
     sole Board member determined that such an extension was appropriate.             In
     addition, OSC contends that 1 day prior to the expiration of the stay, it issued its
     prohibited   personnel     practices   report    finding   that    DVA     violated
     sections 2302(b)(8) and (b)(9).
¶6         Under the unusual circumstances of this case, OSC’s request is to be
     viewed as a request for an extension of the stay previously granted through
     May 12, 2017. The May 31, 2017 proposal to remove Dr. Klein does not appear
     to be separate from the issues surrounding the agency’s prior termination action.
     Rather, OSC contends that it stems from and is related to Dr. Klein’s conduct
     during discussions regarding his return to treating patients.      Thus, the 2017
     proposed removal appears intertwined with the parties’ attemp ts to comply with
     the Board’s November 10, 2016 stay extension order, which ordered DVA to
     reassign Dr. Klein to a pain management physician position in Columbia,
                                                                                     4

     Missouri, during the pendency of the stay, provided that the Columbia, Missouri
     facility granted him the necessary clinical privileges.
¶7         At present, there is only one Board member and the Board lacks a quorum.
     Thus, the Board lacks the authority to act upon OSC’s request for an extension of
     the stay. However, Congress has recently passed legislation amending 5 U.S.C.
     § 1214 to allow an individual Board member to extend a stay granted under
     section 1214(b)(1)(A) during periods when the Board lacks a quorum.          See
     S. 1083 115th Cong. (as passed by the House of Representatives on May 25,
     2017, and by the Senate on June 14, 2017). The Vice Chairman has publicly
     stated support for this legislation and has so informed the White House Office of
     Policy Development and the Office of Management and Budget of this support.
     There does not appear to be any opposition to the legislation’s enactment.
     Following the enactment of this legislation, OSC again can petition the Board for
     an extension of the previously granted stay.      Given the unusual circumstances
     present in this case and the fact that the Board has been without a quorum since
     January 7, 2017, should OSC request an extension of the stay following
     enactment of the pending legislation, OSC also may include a request th at the
     stay be granted retroactive to May 13, 2017.
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                                         ORDER
¶8         Accordingly, OSC’s present request for an extension of the stay is hereby
     denied without prejudice. *



     FOR THE BOARD:


     ______________________________
     Jennifer Everling
     Acting Clerk of the Board
     Washington, D.C.




     *
       Pursuant to 5 U.S.C. § 7513(b)(1), DVA is required to afford Dr. Klein 30 days’
     advance notice prior to effecting his removal. OSC indicates that DVA notified
     Dr. Klein on May 31, 2017, that it was proposing his removal. Thus, there does not
     appear to be any immediate harm to Dr. Klein as a result of the Board’s current
     inability to act upon OSC’s request for an extension of the stay until the pending
     legislation is enacted.
