UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

SPECIAL COUNSEL EX REL. DALE KLEIN,

Petitioner,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CB

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DATE: January 6, 2017



### THIS STAY ORDER IS N ONPRECEDENTIAL 1

Sheri S. Sh illing , 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1 A nonprecedential order i s one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 RE QUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), the Office of Speci al Counsel (OSC) requests a 120

- day extension of the previo usly granted stay of the agency’ s termination of Dr. Dale Klein’ s appoi ntment

. 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 revie w 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

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- 1, Stay Request File (U

- 1 SRF ),
Tab 1. The Board gr anted OSC’s request for a stay through July 1 5, 2016.
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- 1 SRF , Tab 3. OSC subsequently requested , and the Board granted, three additional extensions of the stay

. 2 The current stay is sued on November 10, 2016 , is in effect through January 12, 2017. Spe ci al Counsel ex rel. Dale Klein v. Department of Veterans Affairs , MSPB Docket No. CB

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- 5, Stay Request File (U

- 5 SRF ), Tab 3. ¶3 Although the Board granted OSC’s stay request s , it denied OSC’s request s for an order returning Dr. Klein to his pos ition 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 N o. CB

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- 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

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- 4, Stay Re quest 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

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- 5, Stay Request File (U

- 5 SRF ), Tab 3.3

No. CB

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- 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 positio n 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

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- 6, Stay Request File, Tab 1.

ANALYSIS ¶5 A stay granted pur suant to 5 U.S.C. § 1214 (b)(1) is issued to maintain the status quo ante while OSC and the agency involve d 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 conseq uences 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 fa vorable to OSC and will grant a stay extension request if OSC’s prohibited personne l practice claim is not clearly
unreasonable. Id. a t 158. The Board may grant th e extension for any period tha t 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, t he 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)

. I n addition to
the initial 45

- day stay , OSC has requested and received 3 stay extensions , totaling
226 days . W ith the granting of this fourth extension request, OSC will have had
more than 11 months to investigate and analyze Dr. Klei n’s alleged protected
disclosure s to determine what, if any, action is required regarding DVA’s
decision to terminate his appointment. Given the several extensions that the
Boa rd has granted in this case, in the absen ce of any unusual circumstances or the filing of a petition for corrective action, th is 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 extens ions, 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 th is 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 supp ort, on or before April 27,
201 7

. 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 the5

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