Background - Jeffrey Missal was removed from his Environmental Protection Specialist position effective January 14, 2016, for misconduct; OSC alleged the removal was retaliatory for whistleblowing. - OSC initially requested and received a 45-day stay of the removal on August 2, 2017, after concluding there were reasonable grounds to believe a prohibited personnel practice occurred under 5 U.S.C. § 2302(b). - On August 31, 2017, OSC sought a 90-day extension to complete its investigative report and pursue corrective action; OSC stated its principal investigation was complete but a brief follow-up and report finalization were needed. - The agency opposed the extension, arguing OSC’s claim lacked merit (agency officials lacked knowledge/motive) and that a 90-day extension imposed undue hardship; it alternatively proposed a 15-day extension. - The agency later submitted an addendum alleging Missal engaged in new misconduct while reinstated under the stay and argued that his continued reinstatement posed safety and trust concerns. - The Board, viewing the record most favorably to OSC and declining to decide merits in the stay proceeding, granted a limited extension of the stay — 45 days, through October 30, 2017 — and set deadlines for any further extension requests and agency comments. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---:|---:|---:| | Whether OSC is entitled to an extension of the stay of Missal’s removal | OSC: needs additional time (requested 90 days) to finish report and limited follow-up investigation; claim not frivolous | Agency: OSC’s reprisal claim is unreasonable; officials lacked knowledge/motive; 90 days unnecessary; hardship to agency; urged denial or 15 days | Board granted extension in part: 45 days through Oct. 30, 2017 (viewing record favorably to OSC and declining to weigh merits) | | Whether agency affidavits addressing merits may be weighed in stay proceedings | OSC: stay stage should not resolve merits; evidence should be viewed favorably to OSC | Agency: submitted declarations claiming lack of knowledge/motive to rebut OSC | Board: declined to resolve merits or weigh those declarations in stay decision; such evidence pertains to merits and is inappropriate for stay proceeding | | Whether alleged post-reinstatement misconduct justifies denying or terminating stay | Agency: Missal committed misconduct while reinstated; poses safety and trust concerns | OSC: stay preserves status quo; misconduct charges can be pursued separately | Board: noted submissions but did not make a finding; stays do not shield employee from legitimate misconduct charges; did not deny extension on that basis | | Appropriate length of stay extension | OSC: 90 days needed to finalize report and agency response period | Agency: shorter period (15 days) sufficient; Board should press OSC for timely action | Board: limited extension to 45 days, stressing timeliness given elapsed time since removal and prior settlement efforts | ### Key Cases Cited Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (Board 1997) (stay preserves status quo and minimizes consequences of alleged prohibited personnel practices) Special Counsel ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141 (2006) (Board may extend stay for appropriate period; press OSC for timely prosecution) Special Counsel ex rel. Tines v. Department of Veterans Affairs, 98 M.S.P.R. 510 (2005) (stay proceeding is not a merits hearing; OSC need only show claim falls within range of rationality) Special Counsel v. Department of the Interior, 68 M.S.P.R. 266 (1995) (agency hardship cannot automatically override employee protection pending OSC review) Special Counsel ex rel. Perfetto v. Department of the Navy, 85 M.S.P.R. 454 (2000) (stay orders return status quo ante but do not shield employee from appropriate charges for misconduct committed while reinstated) Special Counsel v. Department of Veterans Affairs, 59 M.S.P.R. 431 (1993) (granting a 45-day extension to prepare investigative report where field investigation was complete) * Feilke v. Department of Defense Dependent Schools, 76 M.S.P.R. 625 (1997) (consideration of elapsed time between personnel action and stay request when deciding extensions)