(a) Except as provided in paragraphs (b) and (c) of this section, an injured employee or former employee of an agency in the executive branch (including the U.S. Postal Service and the Postal Rate Commission) may appeal to the MSPB an agency's failure to restore, improper restoration, or failure to return an employee following a leave of absence. All appeals must be submitted in accordance with MSPB's regulations.
(b) An individual who fully recovers from a compensable injury more than 1 year after compensation begins may appeal to MSPB as provided for in parts 302 and 330 of this chapter for excepted and competitive service employees, respectively.
(c) An individual who is partially recovered from a compensable injury may appeal to MSPB for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration. Upon reemployment, a partially recovered employee may also appeal the agency's failure to credit time spent on compensation for purposes of rights and benefits based upon length of service.
Notes of Decisions
Roseanne Cronin v. United States Postal Serv., 2022 MSPB 13 (MSPB 2022).
· cites it 14× “The administrative judge docketed that pleading as the initial appeal in this case, and apprised the appell ant of the requirements for establishing Board jurisdiction over a restoration appeal brought under 5 C.F.R. § 353.304 (c). 3 IAF, Tab 2. 3 Shortly thereafter, on May 20,…”
Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097 (Fed. Cir. 2011).
· cites it 20× “Shirley Bledsoe ("Bledsoe") appeals from a final decision of the Merit Systems Protection Board ("the Board") dismissing her appeal, which alleged, pursuant to 5 C.F.R. § 353.304 (c), that the U.S. Postal Service ("the Postal Service") wrongly denied her restoration following…”
Randall Desjardin v. U.S. Postal Serv., 2023 MSPB 6 (MSPB 2023).
· cites it 6× “§ 8151 does not itself provide for an appeal right to the Board, the regulation at 5 C.F.R. § 353.304 provides Board appeal rights to individuals affected by restoration decisions under 5 C.”
Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380 (Fed. Cir. 2008).
· cites it 7× “(c) An individual who is partially recovered from a compensable injury may appeal to MSPB for a determination of whether the agency is acting arbitrarily and capriciously in denying restoration.”
Gallo v. United States, 76 Fed. Cl. 593 (Fed. Cl. 2007).
· cites it 16× “To do so, he reviewed another OPM regulation, 5 C.F.R. § 353.304 (b), its companion regulations, and prior MSPB decisions which had interpreted it.”
Nurriddin v. Acosta, 327 F. Supp. 3d 147 (D.C. Cir. 2018).
· cites it 4× “See 5 C.F.R. § 353.304 . The Federal Circuit "has sole statutory authority to review most MSPB final decisions.”
Rosemary Jenkins v. United States Postal Serv., 2023 MSPB 8 (MSPB 2023).
· cites it 6× “We FORWARD the matter to the Board’s Washington Regional Office for docketing as a new appeal under 5 C.F.R. § 353.304 (c). 2 BACKGROUND ¶2 Prior to her retirement, the appellant, a preference eligible, was a City Carrier at the L.”
Gallo v. United States, 529 F.3d 1345 (Fed. Cir. 2008).
· cites it 2× “” 5 C.F.R. § 353.304 (a). But the Board has interpreted section 353.”
Bey v. Bolger, 540 F. Supp. 910 (E.D. Pa. 1982).
· cites it 2× “The medical evidence of record does not specifically address all of the position possibilities, agency-wide, to which the appellant was entitled to be considered for restoration as set forth above; nor does the agency otherwise address other position possibilities, other than…”
Cynthia K. Walley v. Dep't of Vets. Affairs, 279 F.3d 1010 (Fed. Cir. 2002).
“” 5 C.F.R. § 353.304 (c) (1996). In the present context, the agency is alleged to have acted arbitrarily because it violated its own regulations.”
— 5 C.F.R. § 353.304(c) — 1 case
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