UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHERRY FINCHER,

Appellant,

v.

DEPARTMENT OF VETERANS 

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 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: 
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¶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.
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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). 
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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 
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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