Sherry Fincher v. Department of Veterans Affairs
Background
- Appellant Sherry Fincher prevailed in an Individual Right of Action (IRA) appeal under the Whistleblower Protection Act; the initial decision granted corrective action.
- The Board issued an order (rendering the initial decision final because members disagreed on review) directing the agency to take specified remedial steps.
- Required remedies: remove any mention of a April 2012 reprimand from personnel files and change the appellant’s FY2012 performance rating to "fully successful."
- The agency must complete the corrective actions within 20 days of the decision and notify the appellant in writing when done.
- The appellant may file a petition for enforcement within 30 days after the agency notifies completion if the agency did not fully comply.
- Notices informed the appellant of possible eligibility for attorney fees and consequential damages (each must be sought within 60 days), referral to the Special Counsel for investigation of possible prohibited personnel practices, and appeal rights to the Federal Circuit (60-day filing deadline).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant is entitled to corrective action under the Whistleblower Protection Act (IRA) | Fincher argued she was a prevailing whistleblower entitled to relief; initial decision agreed | Agency challenged relief in petition for review | Board left the initial decision as final; corrective action ordered |
| Scope of remedial relief required | Fincher sought removal of reprimand and correction of performance rating | Agency opposed or sought narrower relief | Agency must remove reprimand from records and change FY2012 rating to "fully successful" |
| Timing and notice obligations for implementing relief | Fincher required timely implementation and notification | Agency must notify when obligations met | Agency must complete actions within 20 days and promptly notify appellant; enforcement petition available if noncompliant |
| Post-decision remedies and deadlines (fees, damages, appeals) | Fincher may seek fees/damages and judicial review | Agency repeated statutory deadlines and procedures | Appellant given 60 days to file motions for fees/consequential damages and 60 days to seek Federal Circuit review; enforcement procedures reiterated |
Key Cases Cited
- Kerr v. Nat’l Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984) (remedial measures for personnel records and ratings following board relief)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (statutory filing deadlines for appellate review are strictly enforced)