UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL 

EX REL. JEFFREY MISSAL,

Petitioner,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

CB-1208-17-0025-U-7

DATE: April 24, 2018

THIS STAY ORDER IS NONPRECEDENTIAL1

Lisa Powell, Esquire, Oakland, California, for the petitioner.

Thomas Devine, Esquire, Washington, D.C., for the relator.

Daniel T. Raposa, Washington, D.C., for the agency.

BEFORE

Mark A. Robbins, Vice Chairman 

ORDER ON STAY EXTENSION REQUEST 

¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC) 

requests a 45-day extension of the previously granted stay of Mr. Missal’s 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

removal. For the reasons discussed below, OSC’s request is GRANTED, and the 

stay is extended through June 12, 2018. 

BACKGROUND

¶2 As properly described in the September 15, 2017 Order on Stay Extension 

Request, Mr. Missal was removed from his Environmental Protection Specialist 

position effective January 14, 2016, based on a charge of misconduct. 

Special Counsel ex rel. Jeffrey Missal v. Department of the Interior, 

MSPB Docket No. CB-1208-17-0025-U-2, Order on Stay Extension Request, ¶ 2 

(Sept. 15, 2017). On July 28, 2017, OSC requested a 45-day initial stay of 

Mr. Missal’s removal. Id. OSC argued that it had reasonable grounds to believe 

that the agency removed Mr. Missal in retaliation for whistl eblowing and other 

protected activity in violation of 5 U.S.C. § 2302(b)(8) and (b)(9)(C). Id. On 

August 2, 2017, OSC’s initial stay request was granted. Id. On September 15, 

October 26, and December 8, 2017, and on January 19 and March 13, 2018, 

separate 45-day extensions of the stay were granted such that the stay is in effect 

through April 28, 2018. Id., ¶ 10; Special Counsel ex rel. Jeffrey Missal v. 

Department of the Interior, MSPB Docket No. CB-1208-17-0025-U-6, Order on 

Stay Extension Request, ¶¶ 1-2, 7 (Mar. 13, 2018).

¶3 On April 13, 2018, OSC filed a timely request to extend the stay for an 

additional 45 days. Special Counsel ex rel. Jeffrey Missal v. Department of the 

Interior, MSPB Docket No. CB-1208-17-0025-U-7, Stay Request File (U-7 SRF), 

Tab 1. The agency has not opposed the request.

ANALYSIS

¶4 A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued to maintain the 

status quo ante while OSC and the agency involved resolve the disputed matter. 

Special Counsel v. Department of Transportation, 74 M.S.P.R. 155, 157 (1997). 

The purpose of the stay is to minimize the consequences of an alleged prohibited 

personnel practice. Id. In evaluating a request for an extension of a stay, the 
3

Board will view the record in the light most favorable to OSC and will grant a 

stay extension request if OSC’s prohibited personnel practice claim is not clearly 

unreasonable. Id. at 158. The Board may extend the period of a stay for any 

period that it considers appropriate. 2 5 U.S.C. § 1214(b)(1)(B); Special Counsel 

ex rel. Waddell v. Department of Justice, 104 M.S.P.R. 141, ¶ 3 (2006).

¶5 In OSC’s request for a sixth extension, OSC asserts that it has completed its 

investigation, it sent a prohibited personnel practice report to the Secretary of the 

Interior on October 12, 2017, the parties are participating in formal mediation, 

and the evidentiary record has not changed materially during the stay. U-7 SRF, 

Tab 1 at 2-3, 6. OSC further claims that it is holding in abeyance the period of 

time afforded to the agency to respond to the prohibited personnel practice report 

while settlement efforts continue. Id. at 3. OSC concludes that a stay is 

necessary to reduce Mr. Missal’s hardship and it requests that he be held harmless 

during the resolution of his complaint. Id. at 4, 6. Viewing the record in the light 

most favorable to OSC and considering the fact that the evidentiary record 

supporting OSC’s initial stay request does not appear to have changed materially 

since the initial stay was granted, an extension of the stay is appropriate. 

See Waddell, 104 M.S.P.R. 141, ¶ 6; see also Special Counsel v. Department of 

the Treasury, 72 M.S.P.R. 62, 64 (1996) (considering that the Board has held that 

ongoing settlement negotiations between the parties constitute a proper basis for 

an extension of a stay).

¶6 The length of the extension requires a separate determination. 

Waddell, 104 M.S.P.R. 141, ¶ 7. The Board has recognized its obligation to press 

OSC to present corrective action cases in a timely manner. Id. Here, OSC did 

not file its initial stay request until 18 months after the effective date of 

 

2 Recently enacted legislation allows an individual Board member to extend a stay 

under 5 U.S.C. § 1214(b)(1)(B) when the Board lacks a quorum. See Pub. L. 

No. 115-42, 131 Stat. 883 (June 27, 2017), as amended by Pub. L. No. 115-91, 

Sec. 1097(j), 131 Stat. 1283, 1625 (Dec. 12, 2017).
4

Mr. Missal’s removal, and the stay has been in effect for more than 8 months. 

See Special Counsel ex rel. Jacobs v. Department of Justice, 81 M.S.P.R. 493, ¶ 7 

(1999) (considering the amount of time the stay had been in effect in deciding to 

grant an extension of a stay); see also Special Counsel ex rel. Feilke v. 

Department of Defense Dependent Schools, 76 M.S.P.R. 625, 628-30 (1997) 

(considering the passage of time from the effective date of the personnel action to 

the date of the initial stay request in deciding to grant an extension of a stay). 

Moreover, the agency has not opposed OSC’s request for a 45-day extension of 

the stay. Further, pursuant to 5 U.S.C. § 1214(b)(2)(C), the agency has “a 

reasonable period of time” to correct a prohibited personnel practice before OSC 

may petition the Board for corrective action. A 45-day extension would allow 

OSC time to settle the matter, request and receive the agency’s response to the 

prohibited personnel practice report, and/or file a petition for corrective action 

with the Board. In light of the factors discussed above, a 45-day extension of the 

stay is appropriate; thus, OSC’s request is granted. See Jacobs, 81 M.S.P.R. 493, 

¶¶ 7-8 (granting a 45-day extension of the stay for OSC either to settle the matter 

or to file a corrective action petition with the Board); Special Counsel v. 

Department of the Navy, 46 M.S.P.R. 504, 505 (1990) (granting OSC’s unopposed 

request for a 45-day extension of the stay based on continuing settlement 

negotiations).

ORDER

¶7 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 45-day extension of the stay is 

hereby GRANTED, and it is ORDERED as follows:

(1) The stay issued on August 2, 2017, is extended through and 

including June 12, 2018, on the terms and conditions set forth in that 

Order;

(2) The agency shall not effect any changes to Mr. Missal’s duties or 

responsibilities that are inconsistent with his salary or grade level, or 
5

impose upon him any requirement which is not required of other 

employees of comparable position, salary, or grade level;

(3) Within 5 working days of this Order, the agency shall submit 

evidence to the Clerk of the Board showing that it has complied with 

this Order; 

(4) Any request for a further extension of this stay pursuant to 5 U.S.C. 

§ 1214(b)(1)(B), as amended,3and 5 C.F.R. § 1201.136(b) must be 

received by the Clerk of the Board and the agency, together with any 

further evidentiary support, on or before May 28, 2018; and

(5) Any comments on such a request that the agency wants the Board to 

consider pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R. 

§ 1201.136(b) must be received by the Clerk of the Board on or 

before June 4, 2018.

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board

 

3

See supra n.2.