                           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               THIS STAY ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
