Special Counsel ex rel. Department of Justice v. Department of Justice

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL, DOCKET NUMBER
CB-1208-16-0028-U-2
Petitioner,
v.
DATE: November 14, 2016
DEPARTMENT OF JUSTICE,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL *
Paul David Metcalf, Jr., Esquire, and Sarah Black, Esquire, Washington,
D.C., for the petitioner.
Jill A. Weissman, Esquire, Washington, D.C., 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)
has requested a 90-day extension of the previously granted 45-day stay of the
agency’s appointment of two unnamed individuals to Assistant Director positions
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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in the International Criminal Investigative Training Assistance Program (ICITAP)
while OSC completes its investigation and determines whether to seek corrective
action. For the reasons discussed below, we GRANT OSC’s request.
BACKGROUND
¶2 In a September 28, 2016 stay request, OSC alleged that it had reasonable
grounds to believe that the agency’s impending appointment of two individuals to
Assistant Director positions in ICITAP would violate 5 U.S.C. § 2302(b)(6).
OSC alleged that, in April 2015, the agency issued vacancy announcements for
two GS-15 Assistant Director positions in ICITAP. For both vacancy
announcements, the agency advertised under its delegated examining authority
(DEU) and merit promotion procedures. Veteran A and Veteran B applied for
both positions. It appears that they were afforded their statutory right to compete
under 5 U.S.C. § 3304(f) for the merit promotion announcement, and they were
both afforded their veterans’ preference points in the DEU announcement. The
agency rated both veterans “Best Qualified” and referred them for consideration
under both the DEU and merit promotion announcements. Both were
interviewed.
¶3 Less than a week later, according to OSC, ICITAP officials met with
Veteran A and Veteran B individually and told them both that the highest-ranked
candidate was a nonveteran who could not be hired unless Veteran A and
Veteran B withdrew from competition. ICITAP officials suggested that the two
candidates weigh their options and confer with each other but, ultimately, they
did not withdraw from competition. ICITAP attempted to hire its preferred
candidate anyway, but was prevented from doing so by human resources officials.
The agency eventually canceled the vacancy announcements without making a
selection. In December 2015, OSC notified the agency that it was investigating
whether prohibited personnel practices had occurred in connection with the hiring
process for the Assistant Director positions.
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¶4 In June 2016, while OSC’s investigation was ongoing, the agency
readvertised both positions under both DEU and merit promotion procedures. In
the original 2015 advertisements, command level law enforcement experience had
been one of the various factors the agency used to rank applicants. The revised
2016 advertisements, however, had been rewritten so that command level law
enforcement experience was a minimum qualification required for the positon.
¶5 Veteran A and Veteran B applied for the positions but were found
unqualified because they lacked command level law enforcement experience. In
fact, no veterans who applied for the positions in 2016 were found qualified.
OSC informed the agency that it was investigating the 2016 hiring process for
possible prohibited personnel practices, and the parties reached an informal
agreement that the agency would not fill the positions until OSC had “adequately
investigated.” OSC represented in its initial stay request that the agency recently
had repudiated the agreement and announced its intent to move forward with
the appointments.
¶6 Chairman Grundmann granted OSC’s stay request. On October 28, 2016,
OSC timely requested a 90-day extension of the request. Special Counsel v.
Department of Justice, MSPB Docket No. CB-1208-16-0028-U-2, Stay Request
File (SRF2), Tab 1. The agency timely opposes OSC’s request for an extension
or, in the alternative, requests that any extension be limited to 30 days.
SRF2, Tab 2.
ANALYSIS
¶7 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 view the request in the light most favorable to OSC and will grant a
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stay extension request if OSC’s prohibited personnel practices claim is not clearly
unreasonable. Id. at 158. OSC’s initial stay request was based on its implicit
allegation that the agency potentially was violating or about to violate 5 U.S.C.
§ 2302(b)(6) by attempting to manipulate the hiring process for the positions in
question to circumvent veterans’ preference requirements and reach pre‑selected
nonveteran candidates. The agency notes that this is the first case in which OSC
has requested a stay that did not involve an allegedly retaliatory action taken
against an employee. SRF2, Tab 2 at 6-7. In the typical stay case, a stay
maintains the status quo ante to avoid harm to the employee while an
investigation is ongoing. In this situation, though, a stay does not operate to
protect any individual from harm. However, viewing the facts of the case in the
light most favorable to OSC, we find that OSC’s claim that the agency has
committed or is about to commit a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(6) is not clearly unreasonable. See Special Counsel ex rel. Tines v.
Department of Veterans Affairs, 98 M.S.P.R. 510, ¶ 5 (2005) (stating that a stay
request need merely fall within the range of rationality to be granted); Special
Counsel v. Department of Transportation, 74 M.S.P.R. at 157 (stating that a stay
proceeding is not intended to be a substitute for a complete hearing on the merits
of a prohibited personnel practice claim). Under the unique circumstances of this
case and in light of the fact that the evidentiary record supporting OSC’s initial
stay request has not changed significantly since the stay went into effect, a further
stay is appropriate. See Special Counsel ex rel. Meyers v. Department of
Housing & Urban Development, 111 M.S.P.R. 48, ¶ 16 (2009).
¶8 A separate determination must be made on the length of the requested stay.
Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208, ¶ 5
(2007). The Board may extend the period of a stay for any period that it
considers appropriate. 5 U.S.C. § 1214(b)(1)(B); Special Counsel ex rel.
Meyers, 111 M.S.P.R. 48, ¶ 17.
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¶9 OSC contends that the agency responded to an information request with a
flash drive containing the equivalent of thousands of pages of documents, which
OSC is reviewing. SRF2, Tab 1 at 5. OSC asserts that, following its review of
the documents, it will need to plan what additional investigation is required, who
should be interviewed, and whether additional information should be
requested. Id. OSC further asserts that it has conducted some witness interviews,
is arranging others, and plans to interview the responsible managers. Id.¶10 The agency requests that the Board deny OSC’s extension request or, in the
alternative, grant only a limited extension for 30 days. SRF2, Tab 2. The agency
asserts that OSC began investigating this case in November 2015, and has made
multiple requests for information to which the agency has responded promptly
and completely. Id. at 4-6. The agency also states that OSC did not begin
conducting witness interviews until a few days before filing its initial stay request
and did not attempt to schedule interviews with management witnesses until
October 19, 2016. Id. at 5-6. The agency asserts, moreover, that granting a
lengthy extension and keeping open the positions in question works a hardship on
the agency, because the vacancies are two Assistant Director positions in an
office that only has three Assistant Director positions, and they already have been
vacant for an extended period of time. Id. at 5.
¶11 The agency’s point about the amount of time this case has taken already is
noted. It is the intent of Congress that stays not be extended for prolonged
periods of time. Special Counsel v. Department of the Treasury, 71 M.S.P.R.
419, 421 (1996). Moreover, the Board is obligated to press OSC to present
corrective action cases in a timely manner. Id. at 422. However, the fact that
OSC recently received a large quantity of information to review and needs to
interview a number of witnesses is a factor in favor of granting its request for an
extension of the stay. See Tines, 98 M.S.P.R. 510, ¶¶ 4-6 (granting a request for a
70‑day extension of a stay where OSC recently received 600 pages of documents
to review from the agency and needed to conduct witness interviews). Moreover,
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if the Board were to accede to the agency’s request that we extend the stay for
only 30 days, or if we decided sua sponte to grant an extension for some amount
less than 90 days, much of the stay would take place during the winter holiday
period when it is difficult to find mutually agreeable times to interview witnesses
and OSC would likely be unable to complete its investigation. See Special
Counsel v. Department of Transportation, 59 M.S.P.R. 559, 560 (1993) (finding
that a 90-day extension of a stay was appropriate because of, inter alia, the
difficulty inherent in scheduling investigatory interviews during the holiday
season). For these reasons, and viewing the record in the light most favorable to
OSC, we find that OSC has shown reasonable cause to justify extending the stay
an additional 90 days.
¶12 However, given our obligation to press OSC to present corrective action
cases in a timely manner and in view of the agency’s assertions of hardship and
the year that OSC has already spent looking into this matter, we expect that OSC
should be able to complete, or nearly complete, its investigation before the
extension expires.
ORDER
¶13 Accordingly, a 90-day stay of the agency’s impending appointments to fill
the two Assistant Director vacancies in ICITAP is GRANTED. The stay shall be
in effect from November 15, 2016, through and including February 12, 2017. It is
further ORDERED that:
(1) The terms and conditions of the stay issued on September 30, 2016,
are extended through and including February 12, 2017.
(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; and
(3) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B) must be received by the Clerk of the Board and the
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agency, together with evidentiary support, on or before January 28,
2017. 5 C.F.R. § 1201.136(b). Any comments on such a request that
the agency wants 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, on or before February 4, 2017.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.