                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL                                 DOCKET NUMBER
     EX REL. JEFFREY MISSAL,                         CB-1208-17-0025-U-5
                    Petitioner,

                  v.
                                                     DATE: January 19, 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               THIS STAY ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 March 14, 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, separate 45-day extensions of the stay were granted such that
     the stay is in effect through January 28, 2018. Id., ¶ 10; Special Counsel ex rel.
     Jeffrey Missal v. Department of the Interior, MSPB Docket No. CB-1208-17-
     0025-U-4, Order on Stay Extension Request, ¶¶ 1-2, 7 (Dec. 8, 2017).
¶3         On January 11, 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-5, Stay Request File (U-5 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
     Board will view the record in the light most favorable to OSC and will gran t a
                                                                                         3

     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 fourth 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 enga ging in settlement
     negotiations and working to schedule formal mediation, and the evidentiary
     record has not changed materially during the stay. U-5 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
     negotiations are ongoing. 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 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; 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 Mr. Missal’s


     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).
                                                                                         4

     removal, and the stay has been in effect for more than 5 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 respons e 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 March 14, 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 by Pub. L. No. 115-42, 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
            February 27, 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 March 6, 2018.




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




3
 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.
