Special Counsel ex rel. Debbie White v. Department of Defense ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. DEBBIE WHITE, CB-1208-17-0002-U-3
Petitioner,
v.
DATE: December 16, 2016
DEPARTMENT OF DEFENSE,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL *
Lisa Powell, Esquire, Oakland, California, for the petitioner.
Bradley R. Hansen, Esquire, and Sandra K. Whittington, Esquire, Fort Lee,
Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
ORDER ON STAY 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 agency’s action
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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demoting Debbie White. For the reasons discussed below, OS C’s request is
GRANTED, and the stay is extended through February 18, 2017.
BACKGROUND
¶2 On October 7, 2016, Member Mark A. Robbins granted OSC’s initial
request for a 45-day stay of Ms. White’s demotion. Special Counsel ex rel.
White v. Department of Defense, MSPB Docket No. CB-1208-17-0002-U-1, Stay
Request File, Tab 2. On November 1, 2016, OSC filed a timely request to extend
the stay for an additional 30 days. Special Counsel ex rel. White v. Department of
Defense, MSPB Docket No. CB-1208-17-0002-U-2, Stay Request File (U-2 SRF),
Tab 1, and on November 18, 2016, the Board granted the extension through
December 20, 2016, U-2 SRF, Tab 2. On December 5, 2016, OSC filed a timely
request to extend the stay for an additional 60 days. Special Counsel ex rel.
White v. Department of Defense, MSPB Docket No. CB-1208-17-0002-U-3, Stay
Request File (U-3 SRF), Tab 1. The agency has not filed a response to OSC’s
request for a further extension of the stay.
ANALYSIS
¶3 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 of
time 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).
¶4 In its first request for an extension, OSC asserted that it was working
diligently to complete its investigation, having interviewed more than
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20 witnesses, and that the agency was assisting in scheduling interviews and in
providing documents which OSC reviewed as they were produced. U-2 SRF,
Tab 1 at 2-3. OSC further maintained that, once it had completed its
investigation, it might need additional time to evaluate and pursue the matter, as
appropriate. Id. at 3.
¶5 In the request currently before us, OSC asserts that a 60-day extension of
the stay is necessary to allow it to finalize its prohibited personnel practice report
and seek resolution of the complaint. Specifically, OSC indicates that it has
completed its investigation and is drafting the report to the Secretary of Defense,
and that, once the Special Counsel has reviewed and submitted that report, OSC
will need additional time to seek to negotiate a resolution to the complaint.
U-3 SRF, Tab 1 at 2. OSC argues that Ms. White should be held harmless
pending these efforts to resolve the complaint. Id. Thus, OSC maintains that the
evidentiary record has not materially changed during the stay. Id. at 1.
¶6 Under the specific circumstances of this case, including the limited length
of the extension request, the fact that OSC has completed its investigation and is
preparing a report, the fact that the agency has not responded to the request, and
in light of the fact that the evidentiary record supporting OSC’s initial stay
request has not materially changed since Member Robbins granted the initial stay,
we find it appropriate to extend the stay until February 18, 2017. See Special
Counsel ex rel. Waddell, 103 M.S.P.R. 372, ¶ 5.
ORDER
¶7 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby GRANTED. It is hereby ORDERED that:
(1) The terms and conditions of the stay issued on October 7, 2016, and
extended on November 18, 2016, are extended through and including
February 18, 2017;
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(2) 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;
(3) Any request for a further extension of the stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B) must be received by the Clerk of the Board and the
agency, together with any evidentiary support, on or before February 3,
2017. See 5 C.F.R. § 1201.26(b). Any comments on such a request that
the agency wishes the Board to consider pursuant to 5 U.S.C.
§ 1214(b)(1)(C) must be received by the Clerk of the Board, together
with any evidentiary support, before February 10, 2017. See 5 C.F.R.
§ 1201.136(b).
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.