Special Counsel ex rel. Dale Klein v. Department of Veterans Affairs
Background
- OSC sought a 90-day extension of a previously granted stay of the Department of Veterans Affairs’ proposed removal of Dr. Dale Klein (probationary employee) from a May 31, 2017 proposal charging failure to treat patients and offensive language.
- A stay had previously been granted through May 12, 2017; OSC’s earlier request for extension was denied without prejudice because the Board lacked a quorum.
- Congress enacted legislation amending 5 U.S.C. § 1214(b)(1)(B) to permit an individual Board member to extend a stay when the Board lacks a quorum; the bill was signed into law June 27, 2017.
- The Board (single member) reviewed OSC’s extension request under the stay standards applicable to OSC requests and the remedial purpose of maintaining the status quo ante.
- The Board granted OSC’s request in part, extending the stay retroactively to May 13, 2017 and through July 14, 2017, and set a deadline (July 6, 2017) for DVA to file comments on any further extension.
- The Order directed that during the stay Klein be returned to his pre‑May 12, 2017 status, DVA not alter duties or impose special requirements, not issue a decision on the May 31 proposal, and file compliance evidence within 5 working days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an individual Board member may extend a previously granted stay when the Board lacks a quorum | OSC: New congressional amendment authorizes a single member to extend the stay so OSC’s request should be considered | DVA: (implicit) earlier procedural posture meant no extension could be granted absent a Board quorum | Held: After the June 27, 2017 statute, an individual member may rule on the extension request under 5 U.S.C. § 1214(b)(1)(B)(ii) |
| Whether OSC’s stay-extension request is justified under stay standards (maintain status quo to minimize consequences of alleged prohibited personnel practice) | OSC: Its prohibited personnel practice claim is not clearly unreasonable and favors extending the stay | DVA: Extension unnecessary or unwarranted (invited to file comments) | Held: Grant in part — stay extended through July 14, 2017 (retroactive to May 13, 2017); further extension deferred pending DVA comment |
| Appropriate scope and conditions of the stay | OSC: Return Klein to status quo ante and halt removal decision | DVA: Should be allowed to proceed absent Board quorum (implicit) | Held: Ordered return to status quo ante, barred changes inconsistent with pay/grade, barred issuance of decision on proposed removal, and required proof of compliance |
Key Cases Cited
- Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (1997) (purpose of stay is to maintain status quo and minimize consequences of alleged prohibited personnel practice)
- Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208 (2007) (stay-extension may be granted for any appropriate period and record is reviewed in OSC’s favor unless claim is clearly unreasonable)