UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. KELLY HALE,

Petitioner,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CB-1208-18-0002-U-2

DATE: November 17, 2017

THIS STAY ORDER IS NONPRECEDENTIAL1

Shayla Silver-Balbus, Esquire, Oakland, California, for the petitioner.

Marc Pasekoff, Esquire, Washington, D.C., for the relator.

Jason C. Green, Dallas, Texas, for the agency.

BEFORE

Mark A. Robbins, Vice Chairman 

ORDER ON STAY EXTENSION 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 agency’s proposed 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

removal of Dr. Hale. For the reasons discussed below, OSC’s request is 

GRANTED and the stay is extended through February 16, 2018. 

BACKGROUND

¶2 On October 4, 2017, OSC requested a 45-day initial stay of the proposed 

removal of Dr. Hale based on charges of misconduct. Special Counsel ex rel. 

Hale v. Department of Veterans Affairs, MSPB Docket No. 

CB-1208-18-0002-U-1, Stay Request File, Tab 1. In its initial stay request, OSC 

argued that it had reasonable grounds to believe that the agency’s proposed action 

was in retaliation for Dr. Hale’s protected activity under 5 U.S.C. § 2302(b)(8) 

and (b)(9)(C). Id. On October 5, 2017, OSC’s initial stay request was granted

through and including November 18, 2017. Special Counsel ex rel. Hale v. 

Department of Veterans Affairs, MSPB Docket No. CB-1208-18-0002-U-1, Order 

on Stay Request, ¶¶ 1, 13 (Oct. 5, 2017).

¶3 On November 2, 2017, OSC filed a timely request to extend the stay for an 

additional 90 days. Special Counsel ex rel. Hale v. Department of Veterans 

Affairs, MSPB Docket No. CB-1208-18-0002-U-2, Stay Request File (U-2 SRF), 

Tab 1. OSC asserted that the agency did not oppose the request. Id. at 1, 2. In 

fact, although afforded an opportunity to do so, the agency did not respond to 

OSC’s request.

ANALYSIS

¶4 A stay request 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 if OSC’s prohibited personnel practice claim is not clearly 

unreasonable. Id. at 158. The Board may extend the period of a stay for any 
3

period that it considers appropriate. 2 5 U.S.C. § 1214(b)(1)(B); Special Counsel 

ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141, ¶ 3 (2006).

¶5 In OSC’s request for an extension, it asserts that, at this time, the 

evidentiary record is not sufficiently developed for OSC to complete its 

investigation. U-2 SRF, Tab 2 at 2. OSC asserts that, after the Board ordered the 

stay, OSC submitted a comprehensive document request to the agency, including 

a complex electronic discovery request. U-2 SRF, Tab 1 at 1. OSC also asserts 

that the agency has begun producing the requested documents but has indicated 

that it will not be able to complete OSC’s document request before the stay 

expires on November 18, 2017. Id. Further, OSC asserts that the electronic

discovery request in particular may take many weeks beyond the expiration of the 

stay to complete but that, based on the ongoing nature of the discovery process, it

has timely reviewed the documents produced to date and has continued to 

interview witnesses. Id. at 1-2.

¶6 At this stage, and in light of the fact that the evidentiary record supporting 

OSC’s initial stay request does not appear to have materially changed since the 

Board granted the initial stay, it is appropriate to extend the stay through 

February 16, 2018. See Special Counsel ex rel. Waddell v. Department of Justice, 

103 M.S.P.R. 372, ¶ 5 (2006).

ORDER

¶7 Accordingly, a 90-day extension of the stay of Dr. Hale’s proposed removal 

is GRANTED. The stay issued on October 5, 2017, is extended through and 

including February 16, 2018, on the terms and conditions set forth in that Order. 

It is further ORDERED that:

(1) Dr. Hale shall remain in his position;

 

2 Recently enacted legislation allows an individual Board member to extend a stay 

under 5 U.S.C. § 1214(b)(1)(B) when the Board lacks a quorum. See Pub. L. 

No. 115-42, 131 Stat. 883 (June 27, 2017).
4

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

responsibilities that are inconsistent with his salary or grade level, or 

impose upon him any requirement which 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), as amended by Pub. L. No. 115-42,3 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 

February 1, 2018; 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 February 8, 2018.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board

 

3 As passed by the House of Representatives on May 25, 2017, passed by the Senate on 

June 14, 2017, and signed into law on June 27, 2017.