UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. DALE KLEIN,

Petitioner,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CB-1208-16-0023-U-6

DATE: January 6, 2017

THIS STAY ORDER IS NONPRECEDENTIAL1

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

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

ORDER ON STAY REQUEST

¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC) 

requests a 120-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 and extend the stay through May 12, 2017. 

BACKGROUND

¶2 On May 26, 2016, OSC requested a 45-day 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. The Board granted OSC’s request for a stay through July 15, 2016. 

U-1 SRF, Tab 3. OSC subsequently requested, and the Board granted, three 

additional extensions of the stay.

2

 The current stay issued on November 10, 2016,

is in effect through January 12, 2017. Special Counsel ex rel. Dale Klein v. 

Department of Veterans Affairs, MSPB Docket No. CB-1208-16-0023-U-5, Stay

Request File (U-5 SRF), Tab 3. 

¶3 Although the Board granted OSC’s stay requests, it denied OSC’s requests

for an order returning Dr. Klein to his position as a pain management physician 

during the pendency of the stay. U-1 SRF, Tab 3; Special Counsel ex rel. Dale 

Klein v. Department of Veterans Affairs, MSPB Docket 

 

2 By order dated July 18, 2016, the Board extended the stay through September 13,

2016. Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs, MSPB 

Docket No. CB-1208-16-0023-U-3, Stay Request File, Tab 3. By order dated 

September 13, 2016, the Board extended the stay through November 10, 2016. Special 

Counsel ex rel. Dale Klein v. Department of Veterans Affairs, MSPB Docket 

No. CB-1208-16-0023-U-4, Stay Request File, Tab 4. By order dated November 10, 

2016, the Board extended the stay through January 12, 2017. Special Counsel ex rel. 

Dale Klein v. Department of Veterans Affairs, MSPB Docket 

No. CB-1208-16-0023-U-5, Stay Request File (U-5 SRF), Tab 3. 
3

No. CB-1208-16-0023-U-3, Stay Request File, Tab 3. In the November 10, 2016 

stay order, however, the Board ordered the Department of Veterans Affairs 

(DVA) to process Dr. Klein’s request for clinical privileges at the Harry S. 

Truman Medical Center in Columbia, Missouri, and to temporarily reassign him 

to a pain management physician position at that facility during the pendency of 

the stay, provided that he is granted the necessary clinical privileges. U-5 SRF,

Tab 3. The Board further ordered DVA to immediately assign Dr. Klein to

clinical pain management consultant work within the scope of his clinical 

privileges while he awaited approval of his request for clinical privileges at the 

Harry S. Truman Medical Center. Id. DVA has submitted evidence of its efforts 

to comply with this order. U-5 SRF, Tab 5. 

¶4 On December 19, 2016, OSC filed a timely consent request to extend the 

stay currently in effect for an additional 120 days. Special Counsel ex rel. Dale 

Klein v. Department of Veterans Affairs, MSPB Docket No. CB-1208-16-0023-

U-6, Stay Request File, Tab 1. 

ANALYSIS

¶5 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). Under the 

circumstances, particularly in light of DVA’s consent to the extension, we find it 

appropriate to extend the stay until May 12, 2017. 
4

¶6 However, the Board has recognized that it has an obligation to press OSC to

present corrective action cases in a timely manner. See Special Counsel ex rel. 

Perfetto v. Department of the Navy, 85 M.S.P.R. 92, ¶ 12 (2000). In addition to 

the initial 45-day stay, OSC has requested and received 3 stay extensions, totaling 

226 days. With the granting of this fourth extension request, OSC will have had 

more than 11 months to investigate and analyze Dr. Klein’s alleged protected 

disclosures to determine what, if any, action is required regarding DVA’s 

decision to terminate his appointment. Given the several extensions that the 

Board has granted in this case, in the absence of any unusual circumstances or the 

filing of a petition for corrective action, this will be the final extension of the stay 

that the Board will grant in this matter. See Special Counsel ex rel. Bricker v. 

Department of Homeland Security, 98 M.S.P.R. 185, ¶ 9 (2005); Special Counsel 

v. Department of Transportation, 62 M.S.P.R. 26, 29-30 (1994) (granting an

indefinite suspension of stay, after previously granting three prior extensions, 

pending resolution of OSC’s petition for corrective action). 

ORDER

¶7 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 terms and conditions of the stay issued on November 10, 2016, are

extended through and including May 12, 2017;

(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 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 April 27, 

2017. See 5 C.F.R. § 1201.136(b); and

(4) Any comments on such a request that the agency wishes the Board to 

consider pursuant to 5 U.S.C. § 1214(b)(1)(C) must be received by the 
5

Clerk of the Board, together with any evidentiary support, on or before

May 4, 2017. See 5 C.F.R. § 1201.136(b). 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board