Special Counsel ex rel. Jeffrey Missal v. Department of the Interior ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. JEFFREY MISSAL, CB-1208-17-0025-U-2
Petitioner,
v.
DATE: September 15, 2017
DEPARTMENT OF THE INTERIOR,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Lisa Powell, Esquire, Oakland, California, for the petitioner .
Thomas Devine, Esquire, Washington, D.C., for the relator.
Daniel T. Raposa, Washington, D.C., 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 a 90-day extension of the previously granted stay of Mr. Missal’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 id entified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
removal. For the reasons discussed below, OSC’s request is GRANTED IN
PART, and the stay is extended through October 30, 2017.
BACKGROUND
¶2 On July 28, 2017, OSC requested a 45-day initial stay of Mr. Missal’s
removal. Special Counsel ex rel. Jeffrey Missal v. Department of the Interior,
MSPB Docket No. CB-1208-17-0025-U-1, Stay Request File (U-1 SRF), Tab 1.
Mr. Missal was removed from his Environmental Protection Specialist position
effective January 14, 2016, based on a charge of misconduct. Special Counsel
ex rel. Jeffrey Missal v. Department of the Interior, MSPB Docket
No. CB-1208-17-0025-U-2, Stay Request File (U-2 SRF), Tab 2 at 24-27. In its
initial stay request, OSC argued that it had reasonable grounds to believe that the
agency removed Mr. Missal in retaliation for whistleblowing and other protected
activity in violation of 5 U.S.C. § 2302(b)(8) and (b)(9)(C). U-1 SRF, Tab 1 at 5,
23. On August 2, 2017, OSC’s initial stay request was granted. Special Counsel
ex rel. Jeffrey Missal v. Department of the Interior, MSPB Docket
No. CB-1208-17-0025-U-1, Order on Stay Request, ¶¶ 1, 14 (Aug. 2, 2017).
¶3 On August 31, 2017, OSC filed a timely request to extend the stay for an
additional 90 days. U-2 SRF, Tab 1. The agency filed a timely opposition to the
extension request and an addendum to its opposition. 2 U-2 SRF, Tabs 2-3. 3
2
The addendum, purportedly based on newly discovered evidence, was filed within the
time limit for the agency to comment on OSC’s extension request. Order on Stay
Request, ¶ 14; U-2 SRF, Tab 3.
3
On September 11, 2017, OSC filed a motion for leave to file a reply to the agency’s
opposition to the stay extension request and addendum. U-2 SRF, Tab 4. Neither the
applicable statute nor the Board’s regulations provide for such a reply, and OSC has not
shown a reply is necessary to make a decision on its stay extension request. See
5 U.S.C. § 1214(b)(1)(B)-(C); 5 C.F.R. § 1201.136(b), (e). Thus, OSC’s motion
is denied.
3
ANALYSIS
¶4 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 conseq uences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, 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. Id. at 158. The Board may extend the period of a stay for any
period that it considers appropriate. 4 5 U.S.C. § 1214(b)(1)(B); Special Counsel
ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141, ¶ 3 (2006).
¶5 In OSC’s request for an extension, OSC asserts that it has completed its
principal investigation, it is beginning to draft a formal prohibited personnel
practice report, and the evidentiary record has not changed materially during the
stay. U-2 SRF, Tab 1 at 2-3. In a declaration made under penalty of perjury, the
OSC investigator further asserts that a follow-up investigation is required to
adequately assess the agency’s defense and that OSC may need to conduct a small
number of additional interviews. Id. at 6. OSC concludes that it needs additional
time to finalize its report and seek resolution of the complaint, and it requests that
Mr. Missal be held harmless during the pendency of his complaint. Id. at 3.
¶6 In its opposition to the stay extension request, the agency argues that an
extension is not warranted because it would impose a hardship on the agency and
because OSC has failed to present a reasonable claim that the agency committed a
prohibited personnel practice. U-2 SRF, Tab 2 at 1-9. In particular, the agency
asserts that the alleged retaliating officials lacked knowledge of Mr. Missal’s
4
Recently enacted legislation allows an individual Board member to extend a stay
under 5 U.S.C. § 1214(b)(1)(B) when the Board lacks a quorum. See Pub. L.
No. 115-42, 131 Stat. 883 (June 27, 2017).
4
disclosures or complaint with the agency’s Inspector General , or a motive to
retaliate, and the agency submits declarations from two agency officials as
evidence. Id. at 2-7, 12-14. Alternatively, the agency argues that OSC’s request
for a 90-day extension to complete its report is not justified and that a 15-day
extension is more appropriate. Id. at 1-3, 8-9.
¶7 In the agency’s addendum to its opposition, the agency asserts that
Mr. Missal has been engaging in misconduct since he was reinstated pursuant to
the stay and it submits evidence of the alleged misconduct. U-2 SRF, Tab 3. The
agency claims that Mr. Missal’s activity is a continuation of the misconduct for
which he was removed, it cannot trust him to carry out his duties, and his
continued reinstatement presents legitimate safety concerns. Id. at 2. For these
reasons, the agency argues that the Board should deny OSC’s stay extension
request. Id. at 1-2.
¶8 A stay proceeding is not intended to be a substitute for a complete hearing
on the merits of a prohibited personnel practice claim. Special Counsel ex rel.
Tines v. Department of Veterans Affairs, 98 M.S.P.R. 510, ¶ 5 (2005). OSC’s
stay request merely need fall within the range of rationality to be granted. Id. An
agency’s claim of hardship cannot be allowed to override protection of the
employee pending consideration of OSC’s prohibited personnel practice claim.
Special Counsel v. Department of the Interior, 68 M.S.P.R. 266, 269 (1995).
Here, viewing the record in the light most favorable to OSC and considering the
fact that the evidentiary record supporting OSC’s initial stay request does not
appear to have changed materially since the initial stay was granted, an extension
of the stay is appropriate. 5 See Waddell, 104 M.S.P.R. 141, ¶ 6. Moreover, it
5
Without making a finding on this issue, it is noted that the agency contends that
Mr. Missal has continued to engage in misconduct that was the subject of his removal
since the imposition of the stay. U-2 SRF, Tab 3. The Board’s stay orders have
temporarily returned Mr. Missal to the status quo ante, but they do not insulate him
from appropriate charges based on misconduct while so employed. See Special Counsel
ex rel. Perfetto v. Department of the Navy, 85 M.S.P.R. 454, ¶ 24 (2000).
5
would be inappropriate to consider the agency’s submission of declarations from
agency officials in this stay proceeding because they relate to the merits of OSC’s
claim. See Special Counsel ex rel. Perfetto v. Department of the Navy,
85 M.S.P.R. 454, ¶ 13 (2000) (observing that the Board does not decide a
controversy between the parties on the merits or the evidence in a stay
proceeding, which is neither adversarial nor evidentiary); see also Piccolo v.
Merit Systems Protection Board, No. 2016-2374, 2017 WL 3908172 (Fed. Cir.
Sept. 7, 2017) (finding that the “consideration of affidavits submitted by an
allegedly retaliatory supervisor claiming no knowledge of the petitioner’s
protected disclosure or motivation to retaliate” pertained to the merits of his
whistleblower reprisal claim but should not be improperly weighed against the
petitioner’s nonfrivolous allegations at the jurisdictional stage).
¶9 The length of the extension requires a separate determination. Waddell,
104 M.S.P.R. 141, ¶ 7. The Board has recognized its obligation to press OSC to
present corrective action cases in a timely manner. Id. Here, although the record
does not indicate when Mr. Missal filed his OSC complaint, the initial stay
request reflects that OSC informally sought corrective action from the agency on
March 7, 2017, and that settlement discussions began on May 16, 2017.
U-1 SRF, Tab 1 at 5, 25. However, OSC did not file the initial stay request until
July 28, 2017. U-1 SRF, Tab 1. The record further reflects that OSC did not file
the initial stay request until 18 months after the effective date of Mr. Missal’s
removal on January 14, 2016. U-2 SRF, Tab 2 at 24; see Special Counsel ex rel.
Feilke v. Department of Defense Dependent Schools, 76 M.S.P.R. 625, 628-30
(1997) (considering the passage of time from the effective date of the personnel
action to the date of the initial stay request in deciding to grant a 45 -day
extension of a stay). It appears that OSC needs to finalize and submit its
prohibited personnel practice report to the head of the agency, at which time the
agency will, by statute, have up to 30 days to respond. U-2 SRF, Tab 1 at 2-3, 6;
see 5 U.S.C. § 1214(e). In light of the factors discussed above, a 45-day
6
extension of the stay is appropriate, and thus, OSC’s request is granted in part.
See Special Counsel v. Department of Veterans Affairs, 59 M.S.P.R. 431, 432-33
(1993) (granting a 45-day extension of a stay for OSC to prepare an investigative
report when OSC had completed its field investigation).
ORDER
¶10 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 45-day extension of the stay is
hereby GRANTED, and it is ORDERED as follows:
(1) The stay issued on August 2, 2017, is extended through and
including October 30, 2017, on the terms and conditions set forth in
that Order;
(2) The agency shall not effect any changes to Mr. Missal’s duties or
responsibilities that are inconsistent with his salary or grade level, or
impose upon him any requirement that is not required of other
employees of comparable position, salary, or grade level;
(3) 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;
(4) Any request for a further extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B), as amended by Pub. L. No. 115-42, 6 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
October 13, 2017; and
6
As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
7
(5) 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 October 20, 2017.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.