Special Counsel ex rel. Robert Cameron v. Department of Veterans Affairs ( 2019 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. ROBERT CAMERON, CB-1208-19-0001-U-2
Petitioner,
v.
DATE: February 15, 2019
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Szuwei Co, Esquire, Oakland, California, for the petitioner.
Joseph Manuel Briones and Steven R. Snortland, Esquire, Los Angeles,
California, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests that the Board stay indefinitely the separation of Dr. Robert Cameron
while OSC completes its investigation and legal review of the matter and
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administr ative 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).
2
determines whether to seek corrective action. For the following reasons, the stay
is extended for a period of 90 days.
BACKGROUND
¶2 On November 27, 2018, OSC filed an initial request for a 45 -day stay of the
separation of Dr. Cameron. Special Counsel ex rel. Robert Cameron v.
Department of Veterans Affairs, MSPB Docket No. CB-1208-19-0001-U-1, Stay
Request File, Tab 1. In its request, OSC argued that it had reasonable grounds to
believe that the agency decided to separate Dr. Cameron and coerced his
retirement in reprisal for making protected disclosures under 5 U.S.C.
§ 2302(b)(8). Id. Based on OSC’s factual allegations, Vice Chairman
Mark A. Robbins granted the request and stayed Dr. Cameron’s separation
through January 13, 2019. Special Counsel ex rel. Robert Cameron v.
Department of Veterans Affairs, MSPB Docket No. CB-1208-19-0001-U-1,
Order on Stay Request, ¶ 13 (Nov. 30, 2018). The Board notified the parties that
any request for an extension of the stay must be received by the Clerk of the
Board on or before December 31, 2018, and that any comments by the agency on
such a request must be received by the Clerk of the Board on or before
January 7, 2019. Id.
¶3 A partial shutdown of the Federal Government, which included the Board
and OSC, took place from December 22, 2018, through January 25, 2019. OSC
asserts that the agency separated Dr. Cameron from Federal service during the
partial shutdown on January 13, 2019. Special Counsel ex rel. Robert Cameron v.
Department of Veterans Affairs, MSPB Docket No. CB-1208-19-0001-U-2,
Stay Request File (U-2 SRF), Tab 1 at 3. Subsequently, on February 4, 2019,
OSC filed its present request for an indefinite extension of the stay. Id. at 1-2.
Given the automatic extension of all filing deadlines before the Board during the
partial shutdown, the Clerk of the Board deemed the request timely filed and
provided the agency until February 11, 2019, to submit any comment in response.
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U-2 SRF, Tab 2. The agency has filed a response in opposition to OSC’s request.
U-2 SRF, Tab 4.
ANALYSIS
¶4 The Board may extend the period of a stay for any period that it considers
appropriate. 2 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). In evaluating a request for
an extension, the Board will view 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. Special Counsel ex rel. Waddell, 105 M.S.P.R.
208, ¶ 3.
¶5 Here, OSC requests that the Board extend the stay of Dr. Cameron’s
separation so that it can continue its investigation and, if appropriate, pursue
formal corrective action procedures under 5 U.S.C. § 1214(b)(2)(B). U-2 SRF,
Tab 1 at 16. OSC asserts that the evidence on which it relied in seeking the
initial stay request, as well as evidence it has obtained since then, including
documentation and interviews with seven additional witnesses, continues to show
reasonable grounds to believe that the agency decided to separate Dr. Cameron
and coerced his retirement in reprisal for making protected disclos ures.
Id. at 5-11. Moreover, OSC avers that a stay is necessary to ensure that its
investigation will proceed as expeditiously as possible given its claims that, prior
to the Vice Chairman’s grant of the initial 45-day stay request, the agency
delayed production of documents and evidence relevant to its investigation.
Id. at 4-5, 13-15. OSC further asserts that a stay is necessary to protect
Dr. Cameron from further harm. Id. at 4-5.
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Legislation enacted in 2017 allows an individual Board member to extend a stay under
5 U.S.C. § 1214(b)(1)(B) when, as now, the Board lacks a quorum. See Pub. L.
No. 115-42, 131 Stat. 883 (June 27, 2017).
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¶6 Based on the assertions made in its extension request, and v iewing the
record in the light most favorable to OSC, an extension of the stay is not clearly
unreasonable to allow OSC time to continue its investigation, attempt a resolution
of this matter, and, if necessary, pursue corrective action before the Board.
See Special Counsel v. Department of the Treasury, 66 M.S.P.R. 176, 179 (1995).
¶7 The length of the extension requires a separate determination.
Special Counsel ex rel. Waddell, 105 M.S.P.R. 208, ¶ 5. In its request, OSC asks
for an indefinite extension, rather than an extension for a certain number of days,
because of the “real and foreseeable risk” that any extension woul d lapse before
OSC had an opportunity to request a further extension given “the approaching
possibility that no Board member will be available to authorize stay extensions.”
U-2 SRF, Tab 1 at 11-12. The agency opposes the request, claiming, among other
things, that an indefinite stay is unreasonable and unnecessary. U -2 SRF, Tab 4
at 3. The agency requests that the Board issue an extension for no more than
90 days. Id. at 4.
¶8 It is the intent of Congress that stays not be extended for prolonged periods
of time. Special Counsel ex rel. Meyers v. Department of Housing & Urban
Development, 111 M.S.P.R. 48, ¶ 17 (2009). Moreover, the Board is obligated to
press OSC to present corrective action cases in a timely manner. Id. The Board
generally does not grant an indefinite extension of a stay unless OSC has
petitioned the Board for corrective action. See Special Counsel ex rel. Feilke v.
Department of Defense Dependent Schools, 76 M.S.P.R. 625, 629-30 (1997)
(explaining that an indefinite extension of the stay of an employee’s termination
was not appropriate, in part because OSC had not yet filed a petition for
corrective action). The record shows that OSC is reasonably continuing its
investigation at this time, and the agency does not object to the extension of the
stay for 90 days. In light of these considerations, an extension of 90 days is
appropriate.
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ORDER
¶9 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 90-day extension of the stay is
hereby GRANTED, and it is ORDERED that:
(1) The stay issued on November 30, 2018, is extended on the terms and
conditions set forth in the Order on Stay Request, through and
including May 18, 2019;
(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 an extension of this stay, pursuant to 5 U.S.C.
§ 1214(b)(1)(B), as amended by Pub. L. No. 115-42, and 5 C.F.R.
§ 1201.136(b), must be received by the Clerk of the Board and the
agency, together with any further evidentiary support, on or before
May 3, 2019; 3 and
3
If there is no Board member to act on a request for an extension of this stay on May 3,
2019, then the stay automatically will be extended until 45 days after the appointment
of a duly confirmed Board member(s) who can act on the request , at which time the stay
will expire. If such stay is set to expire because of the appointment of a duly confirmed
Board member(s), any request for an extension of that stay, pursuant to 5 U.S.C.
§ 1214(b)(1)(B), as amended by Pub. L. No. 115-42, and 5 C.F.R. § 1201.136(b), must
be received by the Clerk of the Board and the agency, together with any further
evidentiary support, no later than 15 days before the expiration of the stay, and any
comments on such a request that the agency wants the Board to consider , pursuant to
5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R. § 1201.136(b), must be received by the Clerk of
the Board no later than 8 days before the expiration of the st ay.
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(4) Any comments on such a request that the agency wants the Board to
consider, pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R.
§ 1201.136(b), must be received by the Clerk of the Board on or
before May 10, 2019.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.