Background - Jeffrey Missal was removed from his Environmental Protection Specialist position effective January 14, 2016, for misconduct; OSC alleges the removal was retaliatory for protected whistleblowing. - OSC requested an initial 45-day stay of the removal on July 28, 2017; the Board granted the stay on August 2, 2017. - Two prior 45-day extensions were granted (through December 14, 2017); OSC timely requested a third 45-day extension on November 28, 2017. - OSC reports its investigation is complete, sent a prohibited personnel practice (PPP) report to the Secretary on October 12, 2017, and the parties are engaged in settlement negotiations. - The agency did not oppose OSC’s request; OSC seeks that Missal be held harmless during resolution and asks the Board to extend the stay to allow settlement or filing of a corrective-action petition. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---:|---:|---:| | Whether to extend the OSC-issued stay of Missal’s removal | OSC: stay should be extended because investigation is complete, PPP report sent, settlement negotiations ongoing, record unchanged, and extension reduces hardship | Agency: no opposition to extension | Board: grant extension; view record favorably to OSC and extend stay because claim is not clearly unreasonable | | Appropriate length of extension | OSC: requests 45 days to settle, obtain agency response, or file corrective-action petition | Agency: no opposition to 45 days; implicit interest in timely resolution | Board: 45-day extension is appropriate given time elapsed, need for OSC to act, and precedent granting similar extensions | | Conditions and compliance during stay | OSC: requests “held harmless” treatment and protection from adverse duty/position changes | Agency: not opposing but must comply with Board order | Board: extends stay through Jan. 28, 2018, and orders agency not to change duties/requirements inconsistent with pay/grade, to submit compliance evidence within 5 working days, and sets deadlines for further extension requests/comments | ### Key Cases Cited Special Counsel v. Department of Transportation, 74 M.S.P.R. 155 (1997) (purpose of a stay is to maintain status quo and minimize consequences of alleged PPP) Special Counsel ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141 (2006) (standard for stay-extension requests and Board may extend for appropriate period) Special Counsel v. Department of the Treasury, 72 M.S.P.R. 62 (1996) (ongoing settlement negotiations can justify stay extension) Special Counsel ex rel. Jacobs v. Department of Justice, 81 M.S.P.R. 493 (1999) (consideration of how long a stay has been in effect when deciding extensions; precedent granting 45-day extension) Special Counsel ex rel. Feilke v. Department of Defense Dependent Schools, 76 M.S.P.R. 625 (1997) (consideration of passage of time from action to initial stay request) Special Counsel v. Department of the Navy, 46 M.S.P.R. 504 (1990) (granting unopposed 45-day stay extension based on settlement negotiations)