Merit Systems Protection Board Grants Stay for Environmental Whistleblower

Chalk up a small victory for a whistleblower who spoke up about environmental protection breaches at the U.S. Department of the Interior (DOI)—and was fired for doing the right thing. On August 2, 2017, the Merit Systems Protection Board (MSPB) granted a stay to GAP client Jeffrey Missal, putting him back to work while the Office of Special Counsel (OSC) completes its investigation.

Beginning in 2014, Mr. Missal persistently raised concerns with his superiors that the DOI was shortcutting the required environmental reviews for offshore oil production in the Arctic Ocean, in violation of the National Environmental Policy Act (NEPA). When his concerns went unheeded, he made the same disclosures to the agency’s Solicitor and Inspector General—disclosures that were fully protected under the Whistleblower Protection Act (WPA). For his truth telling, Mr. Missal was stripped of his duties and responsibilities, subjected to a pretextual retaliatory investigation, and fired.

Until early 2016, Mr. Missal was a Regional Environmental Officer for the Bureau of Safety and Environmental Enforcement[1] (BSEE) in Anchorage, Alaska. One of his duties was to ensure that the BSEE conducted a thorough and independent environmental review of any proposed oil and gas exploration activities before granting the necessary permit to drill.

The requirement to complete an Environmental Impact Statement before granting such a permit provides the agency with the time to properly carry out its duty to “rigorously explore and objectively evaluate the environmental impact”[2] of the proposed activity. This requirement is mandated by NEPA regulations and designed to lessen the probability that haste will weaken the environmental protections.

In 2014, Shell Oil Company, BSEE, and its sister agency, the Bureau of Ocean Energy Management (BOEM), were anticipating Shell’s offshore oil exploration in the Arctic Ocean the following year under “Lease Sale 193.” However, the necessary environmental reviews by BSEE and BOEM were threatening to derail Shell’s 2015 Arctic Ocean venture. In violation of NEPA regulations, BSEE and BOEM began concurrent environmental evaluations of the proposed drilling. In addition, BSEE and BOEM allowed Shell to commit substantial resources to the 2015 effort—telegraphing to Shell that the permit was a mere formality, and also another NEPA violation.

Missal first disclosed his belief that BSEE and BOEM were bypassing NEPA environmental review regulations at the weekly BSEE Division staff meetings. He was quickly reassigned and stripped of his duties. Four months later, when his expertise became necessary for the effort to expedite approval of Lease Sale 193, he was put back to work on the environmental review.

Missal continued to discuss his concerns with his supervisor, who acknowledged the merit of Mr. Missal’s argument, but nonetheless instructed Missal to cease any further discussion of the matter—a prohibited attempt to gag Missal. However, Missal had already made an initial disclosure to the DOI Inspector General (IG).

Three months later, the IG interviewed Missal and provided the IG with the names of potential witnesses—one of whom was a subordinate of the BSEE Chief of the Office of Policy and Analysis. Within three hours of learning that his subordinate was to be a witness in the IG investigation that was triggered by Mr. Missal’s disclosures, the Chief initiated a misconduct investigation of  Missal related to an incident that had occurred five months earlier.  Missal was soon stripped of his duties for the second time, assigned meaningless busywork, and later fired as a result of the retaliatory investigation.

In the fall of 2016, GAP filed a petition with the OSC requesting a 45-day stay of Mr. Missal’s removal. OSC investigated further and asked the MSPB to grant Missal’s request. The MSPB granted the stay[3] on August 2, 2017, putting  Missal back to work for the time being, and giving OSC time to complete its investigation.  Missal has been without a paycheck for 20 months and faces an uphill road to full vindication, but is grateful for this preliminary step.

GAP’s Legal Director, Tom Devine said, “The OSC’s excellent work illustrates the Whistleblower Protection Act at its best. It proves how free speech rights can make a difference when an agency appears intent on ruining a whistleblower.”