                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. JEFFREY MISSAL,                         CB-1208-17-0025-U-8
                    Petitioner,

                  v.
                                                     DATE: June 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               THIS STAY ORDER IS NONPRECEDENTIAL 1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 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 July 27, 2018.

                                     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, 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 September 15, October 26,
     and December 8, 2017, and on January 19, March 13, and April 24, 2018,
     separate 45-day extensions of the stay were granted such that the stay is in effect
     through June 12, 2018.     Id., ¶ 10; Special Counsel ex rel. Jeffrey Missal v.
     Department of the Interior, MSPB Docket No. CB-1208-17-0025-U-7, Order on
     Stay Extension Request, ¶¶ 1-2, 7 (Apr. 24, 2018).
¶3         On May 25, 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-8, Stay Request File (U-8 SRF),
     Tab 2. 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 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. 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 seventh 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 evidentiary recor d has not changed
     materially   during   the   stay,   and   formal   mediation   efforts   have   ended
     unsuccessfully. U-8 SRF, Tab 2 at 2-3, 7. OSC further claims that the agency
     has until June 11, 2018, to respond to the prohibited personnel practice report.
     Id. at 4. 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, 7.    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.
¶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 its initial stay request until
     18 months after the effective date of Mr. Missal’s removal, and the stay has been
     in effect for more than 10 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


     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

     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 receive and review the
     agency’s response to the prohibited personnel practice report and/or to 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 Feilke, 76 M.S.P.R. at 629-30 (granting a 45-day extension of the
     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 July 27, 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
                 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;
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         (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 July 12, 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 July 19, 2018.




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




3
    See supra n.2.
