Sherry Fincher v. Department of Veterans Affairs ( 2017 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERRY FINCHER, DOCKET NUMBER
Appellant, DA-1221-13-0475-B-1
v.
DEPARTMENT OF VETERANS DATE: January 3, 2017
AFFAIRS,
Agency.
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 Protection 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 parties’ 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 when such actions have been taken. 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 after 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 agency 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
carried out its obligations, the appellant may file a petition for enforcement with
the office that issued the initial decision on this appeal if the appellant believes
that the agency did not fully carry out its obligations. The petition should contain
specific 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 APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at title 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 initial decision on your appeal.
3
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
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. §§ 1201.201, 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 your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will then be referred 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 APPELLANT REGARDING
YOUR FURTHER 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 deadline
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
Rules 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 accessed
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 of 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 Circuit. The
5
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.