U.S. Code » Title 5 » Part PART III— EMPLOYEES › Subpart Subpart D— Pay and Allowances › Chapter CHAPTER 53— PAY RATES AND SYSTEMS › Subchapter SUBCHAPTER VI— GRADE AND PAY RETENTION

5 U.S.C. § 5366

Appeals

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(a)(1) In the case of the termination of any benefits available to an employee under this subchapter on the grounds such employee declined a reasonable offer of a position the grade or pay of which was equal to or greater than his retained grade or pay, such termination may be appealed to the Office of Personnel Management under procedures prescribed by the Office.(2) Nothing in this subchapter shall be construed to affect the right of any employee to appeal—(A) under section 5112(b) or 5346(c) of this title, or otherwise, any reclassification of a position; or(B) under procedures prescribed by the Office of Personnel Management, any reduction-in-force action.(b) For purposes of any appeal procedures (other than those described in subsection (a) of this section) or any grievance procedure negotiated under the provisions of chapter 71 of this title—(1) any action which is the basis of an individual’s entitlement to benefits under this subchapter, and(2) any termination of any such benefits under this subchapter,shall not be treated as appealable under such appeals procedures or grievable under such grievance procedure.(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1221.)
Notes of Decisions
Cited in 7 cases, 1981–1992 · leading case: Clifton L. Goodrich v. U. S. Dep't of the Navy & Merit Sys. Prot. Bd., 686 F.2d 169 (3rd Cir. 1982).
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Clifton L. Goodrich v. U. S. Dep't of the Navy & Merit Sys. Prot. Bd., 686 F.2d 169 (3rd Cir. 1982). · cites it 3× “5 U.S.C. § 5366 (b). 4 Goodrich thereupon filed a petition for review with the MSPB’s Office of the Secretary, which on October 6, 1980 entered an order denying the petition.”
Genevieve Schaffer v. Merit Sys. Prot. Bd., 751 F.2d 1250 (Fed. Cir. 1985). · cites it 2× “Under 5 U.S.C. § 5366 (b)(1) (1982), an employee’s right to appeal a reclassification to OPM does not authorize an appeal where the employee has an “entitlement” to retain for two years the grade and pay of the position formerly occupied.”
Atwell v. Merit Sys. Prot. Bd., 670 F.2d 272 (D.C. Cir. 1981). · cites it 8× “See 5 U.S.C. § 5366 (a)(2)(A) (Supp. Ill 1979).”
William S. Barnhart v. Donald Devine, Dir., Opm, 771 F.2d 1515 (D.C. Cir. 1985). “The precise holding in Atwell is that reductions in grade which trigger the grade and salary retention benefits of 5 U.S.C. § 5366 (b)(1) (1982) are not adverse actions directly appealable to the MSPB pursuant to 5 U.”
Stephen Bosco, Charles L. Davis, Ray Dean Williams, John M. Wolf, & All Similarly Situated Individuals v. The United States, 976 F.2d 710 (Fed. Cir. 1992). “§§ 5362 & 5363 (1988), the Civil Service Reform Act (CSRA) and not the PR Act governs the rights of those affected by the reclassification.”
Zervas v. United States, 26 Cl. Ct. 1425 (Ct. Cl. 1992). “Perhaps defendant’s strongest argument that Congress intended to preclude judicial review is based on 5 U.S.C. § 5366 , entitled “Appeals.” In Section 5366, Congress, inter alia, describes the “appeals procedures” for agency decisions affecting grade and pay retention.”
Ralph Knepp, Elvis Cannon, Richard Gerow, Larry Groves, Mervin Lee, Daniel McLaughlin & Marvin Richardson v. Dep't of the Navy, 709 F.2d 37 (9th Cir. 1983). “V 1981)): 5 U.S.C. § 5366 and 5 U.S.C. § 7512 (Supp.”
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