Special Counsel ex rel. Debbie White v. Department of Defense
Background
- OSC obtained an initial 45-day stay (Oct 7, 2016) halting the Department of Defense’s demotion of Debbie White.
- OSC requested and received a 30-day extension (through Dec 20, 2016).
- OSC filed a timely request for a further 60-day stay extension on Dec 5, 2016; the agency did not respond.
- OSC completed its investigation, is drafting its report to the Secretary of Defense, and seeks time to negotiate a resolution; OSC contends the evidentiary record has not changed materially.
- The Board evaluates stay-extension requests in OSC’s favor unless OSC’s prohibited personnel practice claim is clearly unreasonable, and may extend stays as appropriate to preserve the status quo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to extend the stay of White’s demotion for 60 days | OSC: needed 60 days to finalize report and attempt negotiation; White should be held harmless | DoD: no response to the extension request | Board granted 60-day extension through Feb 18, 2017 |
| Standard for evaluating an OSC stay-extension request | OSC: facts support extension because investigation complete and record stable | DoD: (no submitted argument) | Board applies lenient review favoring OSC unless claim is clearly unreasonable |
| Whether the evidentiary record justifies continued stay | OSC: record unchanged since initial stay; investigation complete | DoD: (no submitted argument) | Board found record had not materially changed and extension appropriate |
| Conditions and deadlines for further extensions and compliance | OSC: seeks time to negotiate after report submission | DoD: (no submitted argument) | Board ordered agency to show compliance within 5 working days; set deadlines for further extension requests/comments |
Key Cases Cited
- Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (1997) (describing stay purpose as maintaining status quo and minimizing consequences of alleged prohibited personnel practices)
- Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208 (2007) (Board may grant stay extensions for periods it deems appropriate)
- Special Counsel ex rel. Waddell, 103 M.S.P.R. 372 (Board decision cited for precedent on stay extensions)