                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SPECIAL COUNSEL                                 DOCKET NUMBER
EX REL. GLENN SCHWARZ,                          CB-1208-17-0022-U-2
              Petitioner,

             v.
                                                DATE: July 25, 2017
DEPARTMENT OF THE NAVY,
            Agency.




               THIS ORDER IS NONPRECEDENTIAL 1

      Malvina Winston, Washington, D.C., for the petitioner.

      Sheryl Golkow, Dallas, Texas, for the petitioner.

      Cheri L. Cannon, Esquire, and Smenta K. Chabbra, Esquire, Washington,
        D.C., for the relator.

      Malcolm G. Schaefer, Esquire, Cherry Point, North Carolina, for the
       agency.


                                      BEFORE

                         Mark A. Robbins, Vice Chairman




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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                           ORDER

¶1           On June 30, 2017, a 45-day stay of Glenn Schwarz’s removal was granted.
     The stay, issued pursuant to 5 U.S.C. § 1214(b)(1)(A), was ordered to be in effect
     from June 30 through August 13, 2017. The agency has filed a motion requesting
     that the Board terminate the stay. For the reasons set forth below, the agency’s
     motion is DENIED. Mr. Schwarz has filed a motion to modify the stay to make it
     retroactive to June 8, 2017.    As set forth below, Mr. Schwarz’s request for a
     modification of the initial stay order is DENIED.

                                      BACKGROUND
¶2           On June 28, 2017, the Office of Special Counsel (OSC) requested a 45 -day
     initial stay of the agency’s June 8, 2017 decision to reinstate Mr. Schwarz’s
     removal for allegedly violating a settlement and abeyance agreement.       Special
     Counsel ex rel. Glenn Schwarz v. Department of the Navy, MSPB Docket No.
     CB-1208-17-0022-U-1, Stay Request File (U-1 SRF), Tab 1. Mr. Schwarz had
     previously filed a complaint of whistleblower reprisal with OSC on September
     10, 2016, which was resolved via a November 22, 2016 settlement agreement. Id.
     at 7.     As part of the settlement agreement, the agency agreed to hold
     Mr. Schwarz’s pending removal action in abeyance for a period of 2 years,
     provided he complied with certain performance and conduct standards. Id. On
     June 8, 2017, the agency reinstated Mr. Schwarz’s removal , allegedly for failing
     to comply with these standards. Id.
¶3            In its initial stay request, OSC argued that it had reasonable grounds to
     believe that the agency reinstated Mr. Schwarz’s removal based on reprisal for
     protected disclosures Mr. Schwarz had made concerning the agency’s improper
     testing of aircraft fueling equipment and improper testing and disposing of jet
     fuel. Id. at 10-15. OSC further asserted that an investigation by the agency’s
     Inspector General substantiated Mr. Schwarz’s disclosures. Id. at 6. On June 30,
     2017, OSC’s initial stay request was granted. U-1 SRF, Tab 2.
                                                                                            3

¶4         On July 5, 2017, the agency filed a motion to terminate the stay, pursuant
     to 5 U.S.C. § 1214(b)(1)(D), contending that the Board lacks jurisdiction because,
     as part of the settlement agreement, Mr. Schwarz agreed to waive his right to
     appeal his removal to the Board.        Special Counsel ex rel. Glenn Schwarz v.
     Department of the Navy, MSPB Docket No. CB-1208-17-0022-U-2, Stay Request
     File (U-2 SRF), Tab 1. 2 OSC and Mr. Schwarz were afforded an opportunity to
     comment on the agency’s motion.                U-2 SRF, Tab 2; see 5 C.F.R.
     § 1201.136(d)(1).     Both parties responded, and their responses have been
     considered. U-2 SRF, Tabs 8-9. Mr. Schwarz also has filed a motion requesting
     that the stay issued on June 30, 2017, be modified and granted retroactive to
     June 8, 2017. U-2 SRF, Tab 5.

                                          ANALYSIS

     The agency’s motion to terminate the stay is denied.
¶5         In support of its motion to terminate the stay, the agency argues that the
     Board lacks jurisdiction to order a stay because, as part of the settlement
     agreement, Mr. Schwarz waived his right to appeal his removal to the Board.
     U-2 SRF, Tab 1 at 10-11. Such an argument is unavailing. A Board member has
     authority to issue a stay of any personnel action if there are reasonable grounds to
     believe it was taken, or is to be taken, as a result of a prohibited personnel
     practice.   5 U.S.C. § 1214(b)(1)(A); see Special Counsel ex rel. Aran v.
     Department of Homeland Security, 115 M.S.P.R. 6, ¶ 9 (2010). A removal is a
     personnel action under 5 U.S.C. § 2302(a)(2)(A), and therefore is subject to the
     Board’s stay authority.     Moreover, a stay proceeding is not a substitute for a
     hearing on the merits and is thus not the proper forum to address questions
     regarding the effect of the settlement agreement on the Board’s review of the


     2
       The agency also filed a motion for equitable relief, requesting that the Board stay its
     June 30, 2017 stay order until it ruled on the agency’s motion to terminate the stay.
     U-2 SRF, Tab 1. That motion, however, is rendered moot by this decision.
                                                                                        4

     merits of the agency’s removal action. See Special Counsel v. Department of
     Transportation, 71 M.S.P.R. 87, 90 (1996); see also Special Counsel v.
     Department of Commerce, 26 M.S.P.R. 280, 281-82 (1985) (interpreting the
     predecessor provision to 5 U.S.C. § 1214, 5 U.S.C. § 1208).
¶6         To the extent the agency’s motion seeks to challenge the merits of OSC’s
     arguments in its initial stay request and sets forth the agency’s alleged legitimate
     reasons for reinstating Mr. Schwarz’s removal, such arguments are not proper at
     this stage. In considering a motion to terminate an initial stay granted pursuant to
     5 U.S.C. § 1214(b)(1)(A), the Board cannot ignore the statutory scheme providing
     for such a stay. Special Counsel v. Department of Transportation, 59 M.S.P.R.
     556, 558 (1993). Under 5 U.S.C. § 1214(b)(1)(A)(i), OSC may request that a
     Board member order a stay of any personnel action for 45 days if OSC determines
     that there are reasonable grounds to believe that the personnel action was taken,
     or is to be taken, as a result of a prohibited personnel practice. Such a request
     shall be granted unless the Board member determines that, under the facts and
     circumstances involved, such a stay would not be appropriate.               5 U.S.C.
     § 1214(b)(1)(A)(ii). Unless a Board member acts to deny an initial stay request
     within 3 calendar days, it is granted by operation of law.                5 U.S.C.
     § 1214(b)(1)(A)(iii).
¶7         Such provisions afford great deference to OSC, and, thus, an initial stay
     request can be granted on the basis of relatively little information. See Special
     Counsel v. Department of the Treasury, 70 M.S.P.R. 578, 579 (1996); In re Kass,
     2 M.S.P.R. 79, 85-91 (1980) (interpreting the predecessor provision to 5 U.S.C.
     § 1214, 5 U.S.C. § 1208). Further, by mandating that a Board member decide the
     stay request within 3 calendar days, the statute does not provide an opportunity
     for agency comment on an initial stay request.            See Special Counsel v.
     Department of Commerce, 26 M.S.P.R. at 282 (stating that the purpose of a stay
     is only to maintain the status quo for a finite period and that, consistent with that
     purpose, Congress gave the agency no right to respond to OSC’s initial stay
                                                                                         5

      request). Compare 5 U.S.C. § 1214(b)(1)(A)(iii), with 5 U.S.C. § 1214(b)(1)(C)
      (providing for agency comment on a stay extension request). Thus, the Board has
      held that a motion to terminate should not be used as a means to circumvent this
      statutory limitation on the agency’s right to comment. See, e.g., Special Counsel
      v. Department of Transportation, 71 M.S.P.R. at 90.
¶8          Accordingly, the agency’s motion to terminate the stay is denied.

      Mr. Schwarz’s motion to modify the initial stay order is denied.
¶9          On June 30, 2017, OSC’s request for a stay of Mr. Schwarz’s June 8, 2017
      removal was granted. U-1 SRF, Tab 2. The Board order provided that the stay
      would be in effect from June 30, 2017, through and including August 13, 2017.
      Id. at 5. It further ordered that, during the pendency of the stay, the agency was
      required to return Mr. Schwarz to the position he held prior to the notice of
      reinstatement of his removal. Id.
¶10         On July 11, 2017, Mr. Schwarz filed a motion requesting that the Board
      modify the order to grant the initial stay retroactive to June 8, 2017, the date of
      his removal, instead of June 30, 2017, the date of the initial stay order, to avoid a
      22-day gap in his service. U-2 SRF, Tab 5. The Board has the authority to stay
      an action after its effective date.     See 5 U.S.C. § 1214(b)(1)(A)(i); Special
      Counsel v. Department of Transportation, 70 M.S.P.R. 520, 522 (1996).
      However, such authority is contingent upon OSC’s filing of a petition
      establishing that it has determined there are reasonable grounds to believe the
      personnel action was taken as a result of a prohibited personnel practice.       See
      5 U.S.C. § 1214(b)(1)(A). When there is a lapse in time between the effective
      date of the personnel action and OSC’s initial stay request, the Board generally
      does not grant a stay retroactive to the effective date of the personnel action. See,
      e.g., Special Counsel ex rel. Feilke v. Department of Defense Dependent Schools,
      76 M.S.P.R. 621, 624-25 (1997) (granting an initial stay from August 28 through
      October 12, 1997, over 3 years after the effective date of the termination action
      on March 29, 1994).
                                                                                       6

¶11        Mr. Schwarz argues that the stay order should reinstate him as of the date
      he was removed to ensure that he is afforded proper relief. U-2 SRF, Tab 5 at 6.
      However, the purpose of a stay is to maintain the status quo ante and minimize
      the consequences of an alleged prohibited personnel practice while OSC
      investigates and potentially resolves the disputed matter with the employing
      agency. See, e.g., Special Counsel ex rel. Andersen v. Department of Justice ,
      78 M.S.P.R. 675, ¶ 4 (1998); Special Counsel ex rel. Shaw v. Social Security
      Administration, 76 M.S.P.R. 211, 214 (1997). As discussed, a stay proceeding is
      not a substitute for a hearing on the merits, and the stay itself is not a final
      decision on the merits of the evidence. See Special Counsel v. Department of
      Transportation, 71 M.S.P.R. at 90; Special Counsel v. Department of Commerce,
      26 M.S.P.R. at 282. However, if Mr. Schwarz were to prevail on his claims in a
      proceeding on the merits, he would be entitled to all appropriate remedies,
      including reinstatement and back pay.      See 5 U.S.C. § 5596; Chambers v.
      Department of the Interior, 116 M.S.P.R. 17 (2011) (granting the appellant’s
      request for corrective action in an individual right of action appeal and ordering
      the agency to cancel the appellant’s removal and reinstate her with back pay).
¶12        Accordingly, Mr. Schwarz’s motion to modify the initial stay order is
      denied.




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