Special Counsel ex rel. Glenn Schwarz v. Department of the Navy
Background
- Glenn Schwarz filed an OSC whistleblower reprisal complaint on Sept. 10, 2016; matter resolved by a Nov. 22, 2016 settlement that put a pending removal in abeyance for 2 years subject to performance/conduct conditions.
- On June 8, 2017, the Navy reinstated Schwarz’s removal, allegedly for violating the settlement agreement; OSC alleged the reinstatement was retaliatory for protected disclosures about improper aircraft fuel testing and disposal.
- OSC initiated an investigation and on June 28, 2017 requested a 45-day stay of the agency’s removal action; the Board granted the initial stay on June 30, 2017.
- The agency moved to terminate the stay, arguing Schwarz waived Board appeal rights in the settlement; the Board denied that motion, finding the June 8 action was a personnel action under 5 U.S.C. § 2302(a)(2)(A).
- OSC requested a 90-day extension to finish its investigation; the agency argued OSC’s investigation was overbroad and sought pre-settlement matters resolved by the earlier settlement.
- The Board extended the stay in part, granting a 60-day extension through October 12, 2017, imposed conditions (no adverse duty/salary changes), required agency compliance evidence, and set deadlines for any further extension request and agency comments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to extend OSC's stay of removal | OSC: Investigation incomplete; needs more time to review documents and interview witnesses | Navy: OSC’s probe is overbroad; much concerns pre-settlement matters resolved by contract; shorter extension should suffice | Stay extended 60 days to Oct. 12, 2017 because OSC's claim is not clearly unreasonable and the record has not materially changed |
| Board jurisdiction over stay given settlement waiver | OSC: June 8 removal is a personnel action subject to Board stay authority | Navy: Settlement waived Schwarz’s right to Board review, so no jurisdiction | Board previously found it has jurisdiction; denied agency motion to terminate stay |
| Scope of OSC investigation (pre- vs. post-settlement) | OSC: Pre-settlement facts may show retaliatory motive for the June 8 removal and are relevant | Navy: Investigation improperly seeks matters resolved by settlement and thus is overbroad | Agency motion in limine denied; Board held it lacks authority to limit OSC’s investigation and pre-settlement facts may be relevant |
| Conditions and compliance during stay | OSC: Stay should preserve status quo while investigation proceeds | Navy: (implicitly) should be allowed certain actions if justified | Board ordered no changes inconsistent with salary/grade, required agency to file compliance evidence within 5 working days |
Key Cases Cited
- Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (1997) (purpose and standard for stays under 5 U.S.C. § 1214)
- Special Counsel ex rel. Waddell v. Department of Justice, 105 M.S.P.R. 208 (2007) (Board may grant stay extensions if OSC’s claim is not clearly unreasonable)
- Special Counsel ex rel. Waddell v. Department of Justice, 103 M.S.P.R. 372 (2006) (examples of appropriate stay-extension periods and analysis)