                           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               THIS STAY ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                           2

     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).


     2
       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.
                                                                                      3

     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).
                                                                                         4

¶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
                                                                                   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 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.




4
 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.
