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-3
Petitioner,
v.
DATE: October 26, 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THIS STAY ORDER IS NONPRECEDENTIAL 1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 60-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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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removal. For the reasons discussed below, OSC’s request is GRANTED IN
PART, and the stay is extended through December 14, 2017.
BACKGROUND
¶2 As properly described in the prior Order on Stay Extension Request,
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, Order on Stay Extension Request, ¶ 2 (Sept. 15,
2017). On July 28, 2017, OSC requested a 45-day initial stay of Mr. Missal’s
removal. Id. 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). Id. On August 2,
2017, OSC’s initial stay request was granted. Id. On August 31, 2017, OSC
requested a 90-day extension of the stay. Id., ¶ 3. On September 15, 2017, a 45-
day extension of the stay was granted through October 30, 2017. Id., ¶¶ 1, 10.
¶3 On October 13, 2017, OSC filed a timely request to extend the stay for an
additional 60 days. Special Counsel ex rel. Jeffrey Missal v. Department of the
Interior, MSPB Docket No. CB-1208-17-0025-U-3, Stay Request File (U-3 SRF),
Tab 1. 2
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).
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The agency’s comments were due on or before October 20, 2017. Order on Stay
Extension Request, ¶ 10. On October 23, 2017, the agency filed an untimely opposition
to the extension request, arguing that the Board should deny OSC’s request or limit an y
extension to 15 days. U-3 SRF, Tab 2. The agency has not provided any explanation
regarding the apparent untimeliness. In any event, the agency’s untimely pleading
contains nothing that would alter the disposition of this matter.
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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. 3 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 a second extension, OSC asserts that it has prepared a
prohibited personnel practice report finding that the agency removed Mr. Missal
in retaliation for whistleblowing and for cooperating with or disclosing
information to the agency’s Office of Inspector General in violation of 5 U.S.C.
§ 2302(b)(8) and (b)(9)(C), it sent the report to the Secretary of the Interior on
October 12, 2017, and the evidentiary record has not changed materially during
the stay. U-3 SRF, Tab 1 at 2-3, 6. OSC concludes that it needs additional time
to finalize and implement corrective action and requests that Mr. Missal be held
harmless during the resolution of his complaint. Id. at 3-4. In addition, OSC
provides a copy of its prohibited personnel practice report and a letter addressed
to the Secretary of the Interior describing the report and requesting that the
agency consider the report’s recommendations and notify OSC within 30 days of
its response. Id. at 7-29. 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. See Waddell, 104 M.S.P.R.
141, ¶ 6.
3
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).
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¶6 The length of the extension requires a separate determination. Id., ¶ 7. The
Board has recognized its obligation to press OSC to present corrective action
cases in a timely manner. Id. Here, OSC did not file the initial stay request until
18 months after the effective date of Mr. Missal’s removal. 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 an
extension of a stay). Moreover, pursuant to 5 U.S.C. § 1214(b)(2)(C), the agency
has “a reasonable period of time” to correct a prohibited personnel practice before
OSC may petition the Board for corrective action, and OSC’s letter to the
Secretary of the Interior asked for a response within 30 days of that letter.
U-3 SRF, Tab 1 at 8. Because the OSC investigator’s unrebutted declaration
asserts that OSC sent its report to the Secretary of the Interior on October 12,
2017, the agency’s response is not due until approximately 2 weeks after the
current stay is set to expire. Id. at 6. In light of the factors discussed above, a
45-day extension of the stay is appropriate; thus, OSC’s request is granted in part.
See Feilke, 76 M.S.P.R. at 629-30 (granting a 45-day extension of a stay for OSC
to receive the agency’s response to OSC’s request for voluntary corrective action
and, if necessary, to file a corrective action petition with the Board).
ORDER
¶7 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 December 14, 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
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impose upon him any requirement which 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, 4 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
November 29, 2017; and
(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 December 6, 2017.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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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.