UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. ZERINA SPALDING,

Petitioner,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

CB-1208-22-0016-U-4

DATE: December 27, 2022

THIS STAY ORDER IS NONPRECEDENTIAL1

Julie R. Figueira, Esquire, Malvina Winston, Esquire, and Paul David 

Metcalf, Jr., Esquire, Washington, D.C., for the petitioner.

Corlie McCormick, Jr., Esquire, Crofton, Maryland, for the relator.

Ralph C. Conte, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 an extension of the previously granted stay of the proposed removal 

issued by the Department of the Treasury (agency) 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 On July 28, 2022, Member Limon granted OSC’s request for a 45-day stay 

of the proposed removal of Ms. Spalding based on a charge of misconduct. 

Special Counsel ex rel. Zerina Spalding v. Department of the Treasury , MSPB 

Docket No. CB-1208-22-0016-U-1, Order on Stay Request (July 28, 2022). OSC 

subsequently requested, and the Board granted, two additional extensions of the 

stay.2 The current stay issued on November 9, 2022, is in effect through 

January 8, 2023. Special Counsel ex rel. Zerina Spalding v. Department of the 

Treasury, MSPB Docket No. CB-1208-22-0016-U-3, Order on Stay Request 

(Nov. 9, 2022) (U-3 Order on Stay Request). 

¶3 On December 22, 2022, OSC filed a timely consent request to extend the 

stay through January 23, 2023. Special Counsel ex rel. Zerina Spalding v. 

Department of the Treasury, MSPB Docket No. CB-1208-22-0016-U-4, Stay 

Request File (U-4 SRF), Tab 1. OSC requests a 14-day extension to the existing 

stay in order to account for the fact that the current stay extension request and 

agency response deadlines fall on weekend days and occur during the winter 

holiday season. Id. at 2. Specifically, OSC requests that the following deadlines 

 

2 By order dated September 9, 2022, the Board extended the stay through November 9, 

2022. Special Counsel ex rel. Zerina Spalding v. Department of the Treasury, MSPB 

Docket No. CB-1208-22-0016-U-2, Order on Stay Request (Sept. 9, 2022). By order 

dated November 9, 2022, the Board extended the stay through January 8, 2023. Special 

Counsel ex rel. Zerina Spalding v. Department of the Treasury, MSPB Docket No. 

CB-1208-22-0016-U-3, Order on Stay Request (Nov. 9, 2022).
3

should apply to extend the stay order: (1) the existing stay should be extended 

through and including January 23, 2023; (2) any request for an additional 

extension by OSC should be due on or before January 9, 2023; and (3) the 

agency’s response to any extension request should be due on or before 

January 16, 2023. Id. at 2-3. 

ANALYSIS

¶4 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, 5 (2007) (noting that a 

separate determination must be made on the length of the requested stay). Under 

the circumstances, and in light of the fact that the agency consents to the 

extension, we find it appropriate to extend the stay through January 23, 2023.

ORDER

¶5 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the requested extension of the stay is 

hereby GRANTED, and it is ORDERED as follows:

(1) The stay issued on November 9, 2022, is extended through and 

including January 23, 2023, on the terms and conditions set forth in 

that Order;

(2) The agency shall not effect any changes in Ms. Spalding’s duties or 

responsibilities that are inconsistent with her salary or grade level, or 
4

impose upon her any requirement that 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) 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 January 9, 2023; 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. 

§ 1201.136(b) must be received by the Clerk of the Board on or 

before January 17, 2023.

3

FOR THE BOARD:

Washington, D.C.

/s/

Jennifer Everling

Acting Clerk of the Board

 

3 Although OSC requests January 16, 2023, as the due date for an agency to comment 

on any request, that day is a Federal holiday. See 5 C.F.R. § 1201.23 (providing that, if 

a filing deadline falls on a weekend or Federal holiday, the filing period includes the 

next business day).