UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. STEVEN MCDANIEL, CB-1208-23-0006-U-2
Petitioner,
v.
DATE: May 24, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Dustin Seth Frankel, Esquire, Washington, D.C., for the petitioner.
Katherine W. Krems, Esquire, Washington, D.C., for the relator.
Glen E. Woodworth, Esquire, Anchorage, Alaska, for the agency.
Theodore M. Miller, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests a 60-day extension of the previously granted stay of the probationary
termination of Mr. McDaniel by the Department of Veterans Affairs (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 April 6, 2023, OSC filed a 45-day initial stay request of the
probationary termination of Mr. McDaniel based on alleged misconduct. Special
Counsel ex rel. Steven McDaniel v. Department of Veterans Affairs, MSPB
Docket No. CB-1208-23-0006-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
action was in retaliation for Mr. McDaniel’s protected ac tivity under 5 U.S.C.
§ 2302(b)(8) and (b)(9)(C). Id. On April 10, 2023, OSC’s initial stay request
was granted through and including May 24, 2023. Special Counsel ex rel. Steven
McDaniel v. Department of Veterans Affairs, MSPB Docket No. CB-1208-23-
0006-U-1, Order on Stay Request, ¶¶ 1, 10 (Apr. 10, 2023).
¶3 On May 9, 2023, OSC filed a timely request to extend the stay for an
additional 60 days. Special Counsel ex rel. Steven McDaniel v. Department of
Veterans Affairs, MSPB Docket No. CB-1208-23-0006-U-2, Stay Request File
(U-2 SRF), Tab 1. The agency filed a response to OSC’s extension request,
explaining, among other things, that it does not oppose OSC’s request but
reserves the right to comment and oppose future requests. 2 U-2 SRF, Tab 2
at 4-5.
2
The agency’s response was filed 1 day after the May 16, 2023 deadline . However,
because we are granting OSC’s request and the agency is not objecting to an extension,
we do not reach the timeliness issue.
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 (2007).
¶5 In its stay extension request, OSC asserts that it continues to have
reasonable grounds to believe that Mr. McDaniel’s probationary termination
constitutes a prohibited personnel practice pursuant to 5 U.S.C. §§ 2302(b)(8) and
(b)(9)(C), and it states that its investigation is ongoing. U-2 SRF, Tab 1 at 7-8.
OSC explains the actions it has taken thus far, to include, among other things,
serving the agency with a request for information, which the agency has partially
responded to, conducting seven witness interviews, and serving the agency with a
supplemental request for information based on those interviews . Id. at 5. OSC
requests this extension to allow the agency to produce the requested information
and for OSC to conduct additional necessary witness interviews, review and
assess the full evidentiary record, and determine whether further action is
warranted. Id. at 5-8.
¶6 Viewing the record in the light most favorable to OSC, and considering the
fact that the evidentiary record supporting OSC’s initial stay request does not
appear to have changed materially since the initial stay was granted, an extension
of the stay is not clearly unreasonable to allow OSC time to co ntinue its
investigation, attempt a resolution of this matter, and, if necessary, pursue
4
corrective action before the Board. Special Counsel v. Small Business
Administration, 73 M.S.P.R. 12, 13-14 (1997).
¶7 Finally, a separate determination must be made on the length of a requested
stay. Waddell, 105 M.S.P.R. 208, ¶ 5. It is the intent of Congress that stays not
be extended for prolonged periods of time. Special Counsel v. Department of the
Treasury, 71 M.S.P.R. 419, 421 (1996). Moreover the Board is obligated to press
OSC to present corrective action cases in a timely manner. Id. Nevertheless, this
is OSC’s first extension request in this matter, and the agency does not oppose the
request. U-2 SRF, Tab 2. Accordingly, in light of these factors, we find that a
60-day extension of the stay is warranted, and we therefore grant OSC ’s request.
ORDER
¶8 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby GRANTED, and it is ORDERED as follows:
(1) The stay issued on April 10, 2023, is extended through and including
July 23, 2023, on the terms and conditions set forth in that Order;
(2) The agency shall not effect any changes in Mr. McDaniel’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) 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 July 7, 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.
5
§ 1201.136(b) must be received by the Clerk of the Board on or
before July 14, 2023.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.