UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

SHERRY FINCHER, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA

- 1221

- 13

- 0475

- B

- 1

DATE: January 3, 2017

Brett Myers , Esquire, Dallas, Texas, for the appellant.

Maureen T. Regan , and Roy Fredrikson
, Washington, D.C., for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

ORDER ¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the initial decision in this individual right of action appeal,
which granted the appellant’s request for corrective action under the
Whistleblower Protection Act. The two Board members cannot agree on the disposition of the petition for review. Therefore, the initial decision now becomes the final decision of the Merit Systems Protecti on Board in this appeal.
Title 5 of the Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This decision shall not be considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3 (d)

. ¶2 Based on the initial decision, which now becomes the final decision of the Board, the p arties’ obligations are set out below:2

¶3 The agency must remove from the appellant’s personnel file and from the agency’s personnel records any mention of the reprimand she received in April 2012. The agency also must change the rating of the appellant’s performance evaluation for the 2012 fiscal year to fully successful and advise the appellant wh en such actions have been t aken

. See Kerr v. National Endowment for the Arts
, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days af ter the date of this decision. ¶4 The agency must tell the appellant promptly in writing when it believes it has fully carried out its obligations and of the actions it took to carry out its obligations. The appellant, if not notified, should ask the agenc y about its

progress. See 5 C.F.R. § 1201.181 (b). ¶5 No later than 30 days after the agency tells the appellant that it has fully
carrie d out its obligations, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appella nt believes that the agency did not fully carry out its obligations. The petition should contain specifi c reasons why the appellant believes that the agency has not fully carried out its obligations, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a).

NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must me et the requirements set out at t itle 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. § 1201.202 . If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the i nitial decision on your appeal.3

NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL DAMAGE S You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.2 01 , 1201.202, and 1201.204. If you believe you meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on y our appeal.

NOTICE TO THE PARTIE S A copy of the decision will then be re ferred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8)
, (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D)

. 5 U.S.C. § 1221 (f)(3).

NOTICE TO THE APPELL ANT REGARDING YOUR FURT HER REVIEW RIGHTS You have the right to request review of the final decision by the U.S. Court of Appeals for the Federal Circuit. The court must receive your request for review no later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory de adline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management
, 931 F.2d 1544 (Fed . Cir. 1991).4

If you want to request review of the Board’s decision concerning your claims of prohibited personnel practices under 5 U.S.C. § 2302 (b)(8), (b)(9)(A)(i ), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s disposition of any other claims of prohibited personnel practices, you may request review of this final decision by the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. The court of appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703 (b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. You may choose to request review of the Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other court of appeals of competent jurisdiction, but not both. Once you choose to seek review in one court of appeals, you may be precluded from seeking review in any
other court. If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives you this right. It is found in title 5 of the U.S. Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the U.S. Code, at our website, http://www.mspb.gov/appeals/uscode/htm

. Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s
Rul es of Practice , and Forms 5, 6, and 11. Additional information about other courts of appeals can be found at their respective websites, which can be a ccessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. If you are interested in securing pro bono representation for your appeal to
the U.S. Court o f Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circu it. The5

Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board