Special Counsel ex rel. Jeffrey Missal v. Department of the Interior
Background
- Jeffrey Missal, a Regional Environmental Officer at BSEE in Anchorage, was removed on January 14, 2016, for alleged misconduct (personal business web use, failure to report outside business, misrepresenting prior employment).
- Beginning in Sept. 2014 Missal made multiple disclosures alleging the agency predetermined approval of Lease Sale 193 and violated NEPA (rush EIS timeline, premature applicant contacts, contracts committing resources).
- Missal disclosed concerns up the chain and to the Inspector General (IG); the IG interviewed him in Dec. 2014 and identified witnesses he named.
- Shortly after the IG investigation became known, the Chief of Policy and Analysis initiated an internal investigation of Missal; OSC contends this investigation was pretextual retaliation.
- OSC requested a 45-day stay of Missal’s removal under 5 U.S.C. § 1214(b)(1)(A), asserting reasonable grounds that the removal was a prohibited personnel practice for whistleblowing; the Board granted the stay (Aug 2–Sep 15, 2017) and ordered reinstatement during the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSC showed reasonable grounds that the removal resulted from a prohibited personnel practice so as to warrant a 45‑day stay | OSC: Missal’s protected NEPA disclosures prompted a retaliatory investigation and removal; timing and management knowledge support contributing‑factor inference | Agency: Relevant officials lacked knowledge of Missal’s disclosures and removal was for legitimate misconduct | Granted: Board found OSC’s allegations fall within range of rationality; stay appropriate pending OSC resolution efforts |
| Whether Missal’s disclosures were protected under 5 U.S.C. § 2302(b)(8) (reasonable belief of violation) | OSC: Missal reasonably believed agency violated NEPA by predetermining the lease and rushing EIS; IG report corroborates concerns | Agency disputes that disclosures amounted to reasonable‑belief protected activity | Held: Viewing facts favorably to OSC, Missal’s belief appears reasonable and disclosures qualify as protected |
| Whether contributing factor established (knowledge/timing test) | OSC: widespread internal discussion, disclosures to multiple officials, IG involvement, investigation began shortly after IG contact — supports actual/constructive knowledge and temporal proximity | Agency: disputes that officials had knowledge and that timing supports retaliation inference | Held: Allegations satisfy knowledge/timing test plausibly (investigation began soon after IG involvement; removal within ~1 year of disclosures) |
| Whether a stay is appropriate despite delay from effective removal date to stay request | OSC: investigation completed, OSC sought corrective action and engaged in settlement talks; stay needed to preserve status quo and prevent hardship | Agency: delay and elapsed time weigh against a stay (agency submitted a response disputing knowledge and reasons for removal) | Held: Delay considered but OSC’s completed investigation and settlement efforts justify stay; 45‑day stay granted and reinstatement ordered during stay |
Key Cases Cited
- Special Counsel ex rel. Aran v. Dep’t of Homeland Sec., 115 M.S.P.R. 6 (2010) (OSC stay request standard; review facts most favorably to OSC)
- Hooker v. Dep’t of Veterans Affairs, 120 M.S.P.R. 629 (2014) (contributing‑factor requirement for whistleblower retaliation)
- Linder v. Dep’t of Justice, 122 M.S.P.R. 14 (2014) (standard for reasonable belief in protected disclosure)
- Mastrullo v. Dep’t of Labor, 123 M.S.P.R. 110 (2015) (knowledge/timing test for contributing factor)
- Carney v. Dep’t of Veterans Affairs, 121 M.S.P.R. 446 (2014) (knowledge/timing analysis)
- Special Counsel v. Dep’t of Transportation, 70 M.S.P.R. 520 (1996) (Board authority to issue stays after effective date of personnel action)
- Johnson v. Dep’t of Justice, 104 M.S.P.R. 624 (2007) (agency investigations can be pretext for retaliation)
- Special Counsel ex rel. Feilke v. Dep’t of Defense Dependent Schools, 76 M.S.P.R. 621 (1997) (granting stay despite long lapse where OSC had completed investigation)
- Special Counsel ex rel. Andersen v. Dep’t of Justice, 78 M.S.P.R. 675 (1998) (purpose of stay to preserve status quo while OSC and agency resolve dispute)
- Special Counsel ex rel. Shaw v. Social Security Admin., 76 M.S.P.R. 392 (1997) (stay proceeding not a merits determination)