Despite Lack of Quorum, Board Grants Stay at OSC Request
On July 13, 2017, the Merit Systems Protection Board, currently without a quorum and consisting of only one member (Vice Chairman Mark Robbins) extended a stay of a Department of Veterans Affairs physician’s removal after the request was made by the Office of Special Counsel.
Since April 2016, the Office of Special Counsel has been investigating whether the removal of a VA pain management physician during his probationary period was motivated by retaliatory intent. The Office of Special Counsel can request a stay of any personnel action, via 5 U.S.C. § 1214, if it believes that there are reasonable grounds to believe that the personnel action was taken as a result of a prohibited personnel practice. OSC requested a 45-day stay on the removal on May 26, 2016, and the request was granted by the MSPB on June 1, 2016. OSC requested several more extensions of the stay while it pursued its investigation. The fourth such request was granted through May 12, 2017.
During the series of stays, a dispute between the physician and the VA emerged, as the parties disagreed on what duties the physician should be assigned. The Board granted a request from OSC to order the VA to assign the physician pain management work within his clinical privileges, but the VA maintains that after it attempted to comply with that order, the physician refused to follow the VA’s orders to see patients. For that reason, the VA proposed his removal from service again on May 31, 2017, this time on two charges: (1) failure to follow orders to begin treating patients; and (2) offensive language.
On June 14, 2017, OSC then requested a stay of the second removal, asserting that the VA proposed the second removal action “less than 3 weeks after OSC had issued a prohibited personnel practice report finding DVA officials violated 5 U.S.C. § 2302(b)(8) and (b)(9) by terminating [the physician’s] employment in April 2016, and only 5 weeks after the DVA Office of Inspector General (OIG) asked DVA management to comment on OIG’s report that ‘substantiated most of the allegations that [the physican] made to the OIG.’”
The Board initially declined to grant the June 14, 2017, stay request because the statute did not provide authority for a single Board member (rather than a quorum) to grant such a request. However, the Board’s denial of the stay request was without prejudice, and noted that Congress had recently passed legislation amending 5 U.S.C. § 1214 in part to allow an individual Board member to extend a stay granted under the statute when the Board lacked a quorum. On June 27, 2017, President Trump signed the bill, and it became law.
After the legislation was enacted, the Board granted OSC’s stay request through July 14, 2017, and retroactive to May 13, 2017. At the expiration of that period, OSC made another request for an extension of time to complete its investigation. Noting that congressional intent was not that stays extend for “prolonged periods of time,” the Board found that “[i]n light of DVA’s recent proposed removal, and its temporal proximity to the OIG report and OSC’s prohibited personnel practices report, a brief extension of the stay will be granted through August 11, 2017, to allow OSC to complete its investigation of that action.” However, the Board also noted that given the “nature of the charges,” it expected OSC to “complete its investigation within that timeframe and then determine whether to pursue corrective action.” The Board observed that the dispute between the physician and the VA was “widening rather than moving towards a resolution.”
The Board also noted that despite granting OSC’s request for a stay, the Board’s decision “should not be interpreted as authorizing [the physician] to refuse to comply with a lawful instruction to return to work,” and that his “return to the status quo ante does not invest him with any special rights to dictate or unilaterally change the terms of his employment.”
For the above stated reasons, the Board granted OSC’s stay request for the proposed removal of a VA physician through August 11, 2017.
Read the full case: Special Counsel v. Department of Veterans Affairs
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.