Special Counsel ex rel. Glenn Schwarz v. Department of the Navy
Background
- OSC requested a 45-day initial stay on June 28, 2017 of the Navy’s June 8, 2017 reinstatement of Glenn Schwarz’s removal, asserting reprisal for whistleblowing tied to improper fueling and fuel disposal disclosures.
- The settlement agreement from November 22, 2016 had put Schwarz’s prior removal in abeyance for 2 years if he met conduct/performance conditions; the agency later reinstated the removal on June 8, 2017 for alleged noncompliance.
- The Board granted OSC’s initial stay on June 30, 2017, making the stay effective June 30–August 13, 2017, and ordered Schwarz returned to his prior position during the stay.
- The Navy moved to terminate the stay, arguing the Board lacks jurisdiction because Schwarz waived appeal rights in the settlement agreement. OSC and Schwarz opposed; the Board considered the filings.
- Schwarz separately moved to modify the stay to make it retroactive to June 8, 2017 to cover the 22-day gap between removal and the stay grant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board may issue a stay of a personnel action alleged to be reprisal for protected disclosures | OSC: statute authorizes a 45-day initial stay where OSC has reasonable grounds to believe a prohibited personnel practice occurred | Navy: settlement waiver bars Board jurisdiction to stay or review the removal | Board: Stay authority under 5 U.S.C. § 1214(b)(1)(A) applies; jurisdictional waiver argument is premature in stay proceeding — motion to terminate denied |
| Whether the agency’s merits-based reasons for removal may be resolved in a stay-termination motion | OSC: stay stage is not the forum to litigate merits; only need reasonable grounds for stay | Navy: articulated legitimate reasons for reinstating removal and seeks to present them now | Board: Merits arguments are improper at initial-stay stage; motion to terminate cannot be used to circumvent statutory stay process — denied |
| Whether the Board should make the June 30 stay retroactive to June 8, 2017 | Schwarz: retroactivity avoids a 22-day gap and preserves relief pending OSC action | Agency: implicitly opposes retroactivity (argues no entitlement) | Board: Denied retroactivity; generally will not make an initial stay retroactive when there is a lapse between action date and OSC’s stay request |
| Whether the agency’s motion for equitable relief (staying the stay) affects the Board’s determination | Agency: requested the Board stay its June 30 stay pending resolution of termination motion | OSC/Schwarz: opposed as unnecessary | Board: Motion rendered moot by decision denying termination; no relief granted |
Key Cases Cited
- Special Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6 (2010) (Board stay authority applies when there are reasonable grounds to believe a personnel action was a prohibited personnel practice)
- Special Counsel v. Department of Transportation, 71 M.S.P.R. 87 (1996) (stay proceeding is not a substitute for merits hearing; stay only maintains status quo)
- Special Counsel v. Department of Commerce, 26 M.S.P.R. 280 (1985) (predecessor-stay provisions interpreted; agency has no right to comment on initial stay request)
- Special Counsel v. Department of the Treasury, 70 M.S.P.R. 578 (1996) (initial stays may be granted on relatively little information)
- Special Counsel v. Department of Transportation, 59 M.S.P.R. 556 (1993) (statutory scheme grants deference to OSC and limits agency input on initial stay)
- Chambers v. Department of the Interior, 116 M.S.P.R. 17 (2011) (if prevailing on the merits, appellant may obtain corrective action including reinstatement and back pay)
- Special Counsel ex rel. Feilke v. Department of Defense Dependent Schools, 76 M.S.P.R. 621 (1997) (Board generally will not grant retroactive initial stays after a lengthy lapse between action and OSC request)