Special Counsel ex rel. Jeffrey Missal v. Department of the Interior ( 2018 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. JEFFREY MISSAL, CB-1208-18-0019-U-1
Petitioner,
v.
DATE: September 7, 2018
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THIS STAY ORDER IS NONPRECEDENTIAL 1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 that the Board stay indefinitely the Department of the Interior’s removal
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
of Jeffrey Missal. For the reasons discussed below, OSC’s request is GRANTED,
and the stay is extended indefinitely.
BACKGROUND
¶2 As properly described in the September 15, 2017 Order on Stay Extension
Request, Mr. Missal was removed from his Environmental Protection Specialist
position effective January 14, 2016. 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 filed an
initial request for a 45-day 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 September 15, October 26, and December 8, 2017, and on
January 19, March 13, April 24, June 7, and July 24, 2018, eight, separate 45-day
extensions of the stay were granted, such that the stay is currently in effect
through September 10, 2018. Id., ¶ 10; Special Counsel ex rel. Jeffrey Missal v.
Department of the Interior, MSPB Docket No. CB-1208-17-0025-U-9, Order on
Stay Extension Request, ¶¶ 1-2, 8 (July 24, 2018).
¶3 On August 23, 2018, OSC filed a petition for corrective action on
Mr. Missal’s behalf with the Board pursuant to 5 U.S.C. § 1214(b)(2)(C).
Special Counsel ex rel. Jeffrey Missal v. Department of the Interior, MSPB
Docket No. CB-1214-18-0018-T-1. On the same day, OSC filed a timely request
to extend indefinitely the stay of Mr. Missal’s removal pursuant to 5 U.S.C.
§ 1214(b)(1)(B). Special Counsel ex rel. Jeffrey Missal v. Department of the
Interior, MSPB Docket No. CB-1208-18-0019-U-1, Stay Request File
3
(0019 SRF), Tab 1. 2 OSC asserts that an indefinite stay is appropriate here
because there are reasonable grounds to believe that the agency has committed a
prohibited personnel practice and because OSC has filed a petition for corrective
action in the matter. Id. at 25-26.
¶4 On August 24, 2018, the Clerk of the Board issued an order informing the
parties that “[t]he Board will treat the present request for an indefinite stay as a
request for an extension of the stay initially granted.” 0019 SRF, Tab 2 at 1. The
agency has not opposed OSC’s stay extension request.
ANALYSIS
¶5 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, 105 M.S.P.R. 208, ¶ 3 (2007). 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. Waddell, 105 M.S.P.R. 208, ¶ 3.
¶6 In OSC’s request for an indefinite stay, OSC asserts that, because the
agency has declined to take the corrective action recommended in OSC’s
prohibited personnel practice report, it has filed a petition for corrective action
with the Board. 0019 SRF, Tab 1 at 26. OSC further asserts that the facts set
forth in OSC’s initial stay request have not changed materially during the stay.
Id. at 62. OSC concludes that a stay is necessary to reduce Mr. Missal’s hardship ,
and it requests that he be held harmless during the corrective action proceedings.
2
As explained in the Clerk of the Board’s order dated August 24, 2018, the instant
request for an indefinite stay extension is being processed under a new docket number
due to MSPB system requirements. 0019 SRF, Tab 2 at 1 n.*.
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), as amended by Pub. L. No. 115-91,
Sec. 1097(j), 131 Stat. 1283, 1625 (Dec. 12, 2017).
4
Id. at 3, 26, 62. Under the specific 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 initial stay was granted, an extension of the stay is
appropriate. See Waddell, 105 M.S.P.R. 208, ¶ 4.
¶7 The length of the extension requires a separate determination. Id., ¶ 5.
Here, OSC did not file its 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, the
stay has been in effect since August 2, 2017, and has been extended continuously
since that time pursuant to eight, separate extension requests from OSC, each of
which the Board granted. 4 See Special Counsel ex rel. Jacobs v. Department of
Justice, 81 M.S.P.R. 493, ¶ 7 (1999) (considering the amount of time the stay had
been in effect in deciding to grant an extension of a stay).
¶8 However, the Board has found it appropriate to grant an indefinite stay
extension if, as here, OSC has filed a petition for corrective ac tion. See Waddell,
105 M.S.P.R. 208, ¶¶ 2, 5 (granting an indefinite stay, after previously granting
three, prior extensions, pending resolution of OSC’s petit ion for corrective
action); Special Counsel ex rel. Perfetto v. Department of the Navy , 85 M.S.P.R.
454, ¶¶ 14-15 (2000) (granting an indefinite stay when OSC had filed a petition
for corrective action despite the agency’s request to set an expiration date ). Here,
OSC contends that an indefinite stay extension is appropriate because additional
time will be required for the Board to adjudicate the corrective actio n petition and
because it would mitigate uncertainty for Mr. Missal and his supervisors.
0019 SRF, Tab 1 at 26. In light of OSC’s filing of a petition for corrective
4
The agency has not opposed the last six extension requests from OSC.
5
action, an indefinite extension of the stay is appropriate under 5 U.S.C.
§ 1214(b)(1)(B). See Waddell, 105 M.S.P.R. 208, ¶ 5.
ORDER
¶9 Pursuant to 5 U.S.C. § 1214(b)(1)(B), an indefinite extension of the stay is
hereby GRANTED, and it is ORDERED that:
(1) The stay issued on August 2, 2017, is extended indefinitely, on the
terms and conditions set forth in that Order until the Boar d issues a
final decision on the petition for corrective action, unless the Board
determines it is appropriate to terminate the stay under 5 U.S.C.
§ 1214(b)(1)(D); and
(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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.