Special Counsel ex rel. Kelly Hale v. Department of Veterans Affairs
Background
- OSC obtained an initial 45-day stay (granted Oct 5, 2017) of the VA’s proposed removal of Dr. Kelly Hale, asserting retaliation for protected whistleblowing under 5 U.S.C. §§ 2302(b)(8), (b)(9)(C).
- OSC timely requested a 90-day extension of the stay on November 2, 2017, stating the agency did not oppose and in fact did not respond to the request.
- OSC explained the investigation remains incomplete because the agency is still producing documents and complex electronic discovery will take additional weeks.
- The Board evaluates stay-extension requests in the light most favorable to OSC and grants extensions unless the prohibited personnel practice claim is clearly unreasonable; stays preserve the status quo to minimize harm.
- The Board extended the stay through February 16, 2018, and imposed conditions preserving Hale’s position, duties and grade, and requiring the agency to certify compliance and file any further submissions by set deadlines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to extend OSC’s stay of removal under 5 U.S.C. § 1214(b)(1)(B) | OSC: Investigation incomplete; document/e-discovery ongoing; extension needed to develop record | Agency: did not oppose or respond to extension request | Stay extended 90 days to Feb 16, 2018; stay preserved status quo and conditions imposed |
| Standard for reviewing a stay-extension request | OSC: Board should review record favorably to OSC and not deny unless claim is clearly unreasonable | Agency: (no opposition/argument) | Board applies light-most-favorable review; grants extension where claim not clearly unreasonable |
| Scope and terms of the stay | OSC: continuation of prior stay terms while investigation proceeds | Agency: (no opposition/argument) | Prior stay terms continued: Hale remains in position; no adverse duty/grade changes; agency must certify compliance |
| Deadline and process for further extension or agency comments | OSC: needs additional time; requests deadlines for further submissions | Agency: (no response) | Board set deadlines: extension requests due Feb 1, 2018; agency comments due Feb 8, 2018 |
Key Cases Cited
- Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (1997) (stay preserves status quo and Board reviews stay requests favorably to OSC)
- Special Counsel ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141 (2006) (Board may extend stay for any appropriate period and uses favorable-review standard)
- Special Counsel ex rel. Waddell v. Department of Justice, 103 M.S.P.R. 372 (2006) (illustrative extension of stay where record had not materially changed)