5 C.F.R. § 536.104

Reasonable offer

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(a) For the purpose of determining whether grade retention eligibility or entitlement must be terminated under § 536.207 or 536.208, the offer of a position is a reasonable offer if the position's grade is equal to or higher than the retained grade and if all the conditions in paragraph (c) of this section are met. If the offered position is in a different pay system, § 536.105 must be applied to determine whether the grade of the offered position is equal to or greater than the retained grade.

(b) For the purpose of determining whether pay retention eligibility or entitlement must be terminated under § 536.308, the offer of a position is a reasonable offer if the employee's rate of basic pay in the position would be equal to or greater than the rate to which the employee is or would be entitled under the pay retention provisions and if all the conditions in paragraph (c) of this section are met.

(1) The offer must be in writing and must include an official position description of the offered position;

(2) The offer must inform the employee that entitlement to grade or pay retention will terminate if the offer is declined and that the employee may appeal the reasonableness of the offer as provided in § 536.402;

(3) The offered position must be of equal or greater tenure than the employee's position before the action resulting in the grade or pay retention entitlement;

(4) The offered position must be full-time, unless the employee's position immediately before the action resulting in entitlement to grade or pay retention was less than full-time, in which case the offered position must have a work schedule providing for no fewer hours of work per week or per pay period than the position held before the action; and

(5) The offered position must be in the same commuting area as the employee's position immediately before the offer, unless the employee is subject to a mobility agreement or a published agency policy that requires employee mobility.

Notes of Decisions

Cited in 4 cases (1 in the last 5 years), 2004–2021 · leading case: Mudge v. United States, 63 Fed. Cl. 363 (Fed. Cl. 2004).

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Mudge v. United States, 63 Fed. Cl. 363 (Fed. Cl. 2004). “” 5 C.F.R. § 536.104 (a)(5) (1992). However, one of the exclusions to grade and pay retention states that “an employee serving under a temporary promotion or temporary reassignment may not retain a grade or rate of basic pay held during the temporary promotion or temporary…”

Mudge v. United States, 154 F. App'x 916 (Fed. Cir. 2006). “Mudge, who at all pertinent times was employed at the wage grade 11, step 5 level, based his pay retention claim on 5 C.F.R. § 536.104 (a)(5) (1992), which provides: “Pay retention shall apply to any employee whose rate of basic pay would otherwise be reduced .”

Mudge v. United States, 154 Fed. Appx. 916 (Fed. Cir. 2005). “Mudge, who at all pertinent times was employed at the wage grade 11, step 5 level, based his pay retention claim on 5 C.F.R. § 536.104 (a)(5) (1992), which provides: “Pay retention shall apply to any employee whose rate of basic pay would otherwise be reduced .”

Wilcock v. United States (Fed. Cl. 2021). “” Plaintiff alleges in her complaint that she “never received a written reasonable offer,” citing to 5 C.F.R. § 536.104 , and that plaintiff was involuntarily separated from her service, citing to 5 C.”

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