Special Counsel ex rel. Jeffrey Missal v. Department of the Interior
Background
- Jeffrey Missal, an Environmental Protection Specialist, was removed effective January 14, 2016 for misconduct.
- The Office of Special Counsel (OSC) alleged the removal was retaliatory for whistleblowing and related protected disclosures under 5 U.S.C. § 2302(b)(8) and (b)(9)(C).
- OSC obtained an initial stay of removal on August 2, 2017 and a 45-day extension through October 30, 2017; OSC then sought an additional 60-day extension on October 13, 2017.
- OSC prepared and sent a prohibited personnel practice report to the Secretary of the Interior on October 12, 2017 and requested the agency’s response within 30 days.
- The agency filed an untimely opposition arguing the stay should be denied or limited to 15 days; the Board found the late filing insufficient to change the outcome.
- The Board viewed the record favorably to OSC, concluded the evidentiary record had not materially changed, but limited the extension to 45 days to allow the agency time to respond and to encourage timely OSC action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSC’s extension request shows OSC’s claim is not clearly unreasonable, warranting continued stay | OSC: Prohibited personnel practice report supports claim of retaliatory removal; record unchanged; needs time to finalize corrective action | Agency: Opposed (untimely) and urged either denial or a short (15-day) extension | Board: Grant extension; record viewed favorably to OSC; extension appropriate (but limited) |
| Appropriate length of stay extension | OSC: Requested 60 days to obtain agency response and implement corrective action | Agency: Argued for denial or 15 days | Board: Granted 45-day extension (through Dec. 14, 2017) to allow agency response and promote timeliness |
| Whether to require agency compliance with stay conditions | OSC: Requested that Missal be held harmless during resolution | Agency: Did not rebut stay terms | Board: Ordered stay terms continued (no changes to duties/pay inconsistent with grade; agency must file compliance) |
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(b)(1))
- Special Counsel ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141 (2006) (Board may extend stay and considers timeliness and OSC’s need for time to pursue corrective action)
- Special Counsel ex rel. Feilke v. Department of Defense Dependent Schools, 76 M.S.P.R. 625 (1997) (passage of time between personnel action and OSC’s stay request relevant to stay duration analysis)