                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. JEFFREY MISSAL,                         CB-1208-17-0025-U-7
                    Petitioner,

                  v.
                                                     DATE: April 24, 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               THIS STAY ORDER IS NONPRECEDENTIAL 1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 a 45-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                              2

     removal. For the reasons discussed below, OSC’s request is GRANTED , and the
     stay is extended through June 12, 2018.

                                          BACKGROUND
¶2         As properly described in the September 15, 2017 Order on Stay Extensi on
     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 whistl eblowing 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 and March 13, 2018,
     separate 45-day extensions of the stay were granted such that the stay is in effect
     through April 28, 2018.         Id., ¶ 10; Special Counsel ex rel. Jeffrey Missal v.
     Department of the Interior, MSPB Docket No. CB-1208-17-0025-U-6, Order on
     Stay Extension Request, ¶¶ 1-2, 7 (Mar. 13, 2018).
¶3         On April 13, 2018, OSC filed a timely request to extend the stay for an
     additional 45 days. Special Counsel ex rel. Jeffrey Missal v. Department of the
     Interior, MSPB Docket No. CB-1208-17-0025-U-7, Stay Request File (U-7 SRF),
     Tab 1. The agency has not opposed the request.

                                            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 consequences of an alleged prohibited
     personnel practice. Id. In evaluating a request for an extension of a stay, the
                                                                                         3

     Board will view the record in the light most favorable to OSC and wil l 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. 2 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 sixth extension, OSC asserts that it has completed its
     investigation, it sent a prohibited personnel practice report to the Secretary of the
     Interior on October 12, 2017, the parties are participating in formal mediation,
     and the evidentiary record has not changed materially during the stay. U-7 SRF,
     Tab 1 at 2-3, 6. OSC further claims that it is holding in abeyance the period of
     time afforded to the agency to respond to the prohibited personnel practice report
     while settlement efforts continue.      Id. at 3.   OSC concludes that a stay is
     necessary to reduce Mr. Missal’s hardship and it requests that he be held harmless
     during the resolution of his complaint. Id. at 4, 6. Viewing the record in the light
     most favorable to OSC and considering the fact that the evide ntiary 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; see also Special Counsel v. Department of
     the Treasury, 72 M.S.P.R. 62, 64 (1996) (considering that the Board has held that
     ongoing settlement negotiations between the parties constitute a proper basis for
     an extension of a stay).
¶6         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, OSC did
     not file its initial stay request until 18 months after the effective date of


     2
       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

     Mr. Missal’s removal, and the stay has been in effect for more than 8 months.
     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); see also 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 agency has not opposed OSC’s request for a 45 -day extension of
     the stay.   Further, 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. A 45 -day extension would allow
     OSC time to settle the matter, request and receive the agency’s response to the
     prohibited personnel practice report, and/or file a petition for corrective action
     with the Board. In light of the factors discussed above, a 45-day extension of the
     stay is appropriate; thus, OSC’s request is granted. See Jacobs, 81 M.S.P.R. 493,
     ¶¶ 7-8 (granting a 45-day extension of the stay for OSC either to settle the matter
     or to file a corrective action petition with the Board); Special Counsel v.
     Department of the Navy, 46 M.S.P.R. 504, 505 (1990) (granting OSC’s unopposed
     request for a 45-day extension of the stay based on continuing settlement
     negotiations).

                                           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 June 12, 2018, 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
                                                                                   5

                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, 3 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 May 28, 2018; 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 June 4, 2018.




FOR THE BOARD:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.




3
    See supra n.2.
