Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs
Background
- OSC initially sought a 45-day stay (May 26, 2016) of the Department of Veterans Affairs’ termination of Dr. Dale Klein to allow OSC to investigate alleged prohibited personnel practices. The Board granted the stay and later granted three extensions, the current stay expiring January 12, 2017.
- The Board denied OSC’s request to order Klein returned to his prior pain management position, but ordered DVA to process his clinical privileges at Harry S. Truman Medical Center and temporarily reassign him to a pain-management role there if privileges were granted; DVA was also ordered to assign clinical pain management consultant work within existing privileges pending that approval.
- OSC requested a fourth extension — a 120-day consent request filed December 19, 2016 — to continue its investigation and legal review of Klein’s prohibited personnel practices complaint.
- The Board evaluates stay-extension requests under 5 U.S.C. § 1214(b)(1), construing the record favorably to OSC and granting extensions unless OSC’s claim is clearly unreasonable; the purpose is to preserve the status quo and minimize consequences of an alleged prohibited personnel practice.
- DVA consented to the extension; the Board found it appropriate to extend the stay through May 12, 2017, but warned OSC this would be the final extension absent unusual circumstances or filing of a petition for corrective action, given prior extensions totaling over 226 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to extend stay under 5 U.S.C. § 1214(b)(1)(B) | OSC: needs additional time (120 days) to complete investigation and determine whether to seek corrective action | DVA: consented to extension; no opposition noted | Board granted extension through May 12, 2017 |
| Whether to return Klein to his prior clinical position pending investigation | OSC sought return (earlier requests) to restore status quo | DVA opposed reinstatement; Board previously denied return to prior position but ordered limited reassignment/processing of privileges | Board declined to order full reinstatement but required processing of privileges and temporary clinical assignment within privileges |
| Whether further stay extensions are appropriate | OSC requested multiple extensions to investigate disclosures | DVA consented; Board must balance investigative needs with timeliness | Board cautioned this would be the final extension absent unusual circumstances or a filed petition for corrective action |
| Obligation to require agency compliance and evidence of compliance | OSC expects Board enforcement of its stay terms | DVA required to show compliance | Board ordered DVA to submit evidence of compliance within 5 working days and set deadlines for any further extension requests/comments |
Key Cases Cited
- Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (holding that stays preserve the status quo and are reviewed in the light most favorable to OSC)
- Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208 (authorizing Board to grant stay extensions as appropriate)
- Special Counsel ex rel. Perfetto v. Department of the Navy, 85 M.S.P.R. 92 (Board’s obligation to press OSC to pursue corrective-action cases promptly)
- Special Counsel ex rel. Bricker v. Department of Homeland Security, 98 M.S.P.R. 185 (discussion of finality of extensions absent petition for corrective action)
- Special Counsel v. Department of Transportation, 62 M.S.P.R. 26 (previously granting indefinite suspension of stay after multiple extensions pending corrective-action filing)