5 U.S.C. § 5362

Grade retention following a change of positions or reclassification

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(a) Any employee—(1) who is placed as a result of reduction-in-force procedures from a position subject to this subchapter to another position which is subject to this subchapter and which is in a lower grade than the previous position, and(2) who has served for 52 consecutive weeks or more in one or more positions subject to this subchapter at a grade or grades higher than that of the new position,is entitled, to the extent provided in subsection (c) of this section, to have the grade of the position held immediately before such placement be considered to be the retained grade of the employee in any position he holds for the 2-year period beginning on the date of such placement.(b)(1) Any employee who is in a position subject to this subchapter and whose position has been reduced in grade is entitled, to the extent provided in subsection (c) of this section, to have the grade of such position before reduction be treated as the retained grade of such employee for the 2-year period beginning on the date of the reduction in grade.(2) The provisions of paragraph (1) of this subsection shall not apply with respect to any reduction in the grade of a position which had not been classified at the higher grade for a continuous period of at least one year immediately before such reduction.(c) For the 2-year period referred to in subsections (a) and (b) of this section, the retained grade of an employee under such subsection (a) or (b) shall be treated as the grade of the employee’s position for all purposes (including pay and pay administration under this chapter and chapter 55 of this title, retirement and life insurance under chapters 83, 84, and 87 of this title, and eligibility for training and promotion under this title) except—(1) for purposes of subsection (a) of this section,(2) for purposes of applying any reduction-in-force procedures, or(3) for such other purposes as the Office of Personnel Management may provide by regulation.(d) The foregoing provisions of this section shall cease to apply to an employee who—(1) has a break in service of one workday or more;(2) is demoted (determined without regard to this section) for personal cause or at the employee’s request;(3) is placed in, or declines a reasonable offer of, a position the grade of which is equal to or higher than the retained grade; or(4) elects in writing to have the benefits of this section terminate.(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219; amended Pub. L. 98–615, title II, § 204(a)(1), Nov. 8, 1984, 98 Stat. 3216; Pub. L. 103–89, § 3(b)(1)(K), Sept. 30, 1993, 107 Stat. 982.)Editorial NotesPrior Provisions

A prior section 5362, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, Pub. L. 95–251, § 2(a)(1), (b)(1), Mar. 27, 1978, 92 Stat. 183, which related to hearing examiners, was renumbered section 5372 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221.

Amendments

1993—Subsec. (c). Pub. L. 103–89 substituted “chapter 55 of this title, retirement and life insurance under chapters 83, 84, and 87” for “chapters 54 and 55 of this title, retirement and life insurance under chapters 83 and 87” in introductory provisions, redesignated par. (4) as (3), and struck out former par. (3) which read as follows: “for purposes of determining whether the employee is covered by the performance management and recognition system established under chapter 54 of this title, or”.

1984—Subsec. (c)(3). Pub. L. 98–615 substituted “performance management and recognition system established under chapter 54” for “merit pay system established under section 5402”.

Statutory Notes and Related SubsidiariesEffective Date of 1993 Amendment

Amendment by Pub. L. 103–89 effective Nov. 1, 1993, see section 3(c) of Pub. L. 103–89, set out as a note under section 3372 of this title.

Effective Date of 1984 Amendment

Section 205 of Pub. L. 98–615 provided that amendment by Pub. L. 98–615 was effective Oct. 1, 1984, and applicable with respect to pay periods commencing on or after that date, with certain exceptions and qualifications.

Additional Pay and Benefits for Employees Reduced in Grade On or After January 1, 1977, Etc.

Pub. L. 95–454, title VIII, § 801(b), Oct. 13, 1978, 92 Stat. 1222, provided that:“(1) Under regulations prescribed by the Office of Personnel Management, any employee—“(A) whose grade was reduced on or after January 1, 1977, and before the effective date of the amendments made by subsection (a) of this section [see Effective Date note set out under section 5361 of this title] under circumstances which would have entitled the employee to coverage under the provisions of section 5362 of title 5, United States Code (as amended by subsection (a) of this section) if such amendments had been in effect at the time of the reduction; and“(B) who has remained employed by the Federal Government from the date of the reduction in grade to the effective date of the amendments made by subsection (a) of this section without a break in service of one workday or more;shall be entitled—“(i) to receive the additional pay and benefits which such employee would have been entitled to receive if the amendments made by subsection (a) of this section had been in effect during the period beginning on the effective date of such reduction in grade and ending on the day before the effective date of such amendments, and“(ii) to have the amendments made by subsection (a), of this section apply to such employee as if the reduction in grade had occurred on the effective date of such amendments.“(2) No employee covered by this subsection whose reduction in grade resulted in an increase in pay shall have such pay reduced by reason of the amendments made by subsection (a) of this section.“(3)(A) For purposes of this subsection, the requirements under paragraph (1)(B) of this subsection, relating to continuous employment following reduction in grade, shall be considered to be met in the case of any employee—“(i) who separated from service with a right to an immediate annuity under chapter 83 of title 5, United States Code, or under another retirement system for Federal employees; or“(ii) who died.“(B) Amounts payable by reason of subparagraph (A) of this paragraph in the case of the death of an employee shall be paid in accordance with the provisions of subchapter VIII of chapter 55 of title 5, United States Code, relating to settlement of accounts in the case of deceased employees.“(4) The Office of Personnel Management shall have the same authority to prescribe regulations under this subsection as it has under section 5365 of title 5, United States Code, with respect to subchapter VI of chapter 53 of such title, as added by subsection (a) of this section.”

Notes of Decisions

Cited in 16 cases, 1977–2016 · leading case: Esther S. Taylor v. Thomas E. White, Sec'y of the Army, 321 F.3d 710 (8th Cir. 2003).

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Esther S. Taylor v. Thomas E. White, Sec'y of the Army, 321 F.3d 710 (8th Cir. 2003). · cites it 3× “Due to application of the statutory salary retention policy of 5 U.S.C. § 5362 , Taylor was entitled to retain her higher, WG-9 grade and salary for a limited period of time following the reduction-in-force.”

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. § 5362 . 8 In addition, at the end of the two year period, pursuant to 5 U.”

Atwell v. Merit Sys. Prot. Bd., 670 F.2d 272 (D.C. Cir. 1981). · cites it 7× “5 U.S.C. § 5362 (Supp. Ill 1979). Furthermore, when the two-year period ends, the employee continues to receive the basic rate of pay that he received before the assignment to the “new” position.”

Nat'l Labor Relations Bd. v. Permanent Label Corp., 657 F.2d 512 (3rd Cir. 1981). “10 For example, although ALJs are considered agency personnel, they are selected by the Office of Personnel Management (OPM) independently of agency recommendation or rating, 5 U.S.C. § 5362 , and cannot be removed from office without a hearing establishing good cause before the…”

Dir., Off. of Workmen's Comp. Prog., United States Dep't of Labor v. Alabama By-Prods. Corp., 560 F.2d 710 (5th Cir. 1977). “§ 7521 such judges may be removed by the agency only for good cause established and determined by the Civil Service Commission on the record after opportunity for hearing; pursuant to 5 U.S.C. § 5362 such judges are entitled to pay prescribed by the Civil Service Commission…”

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). “The premise of the government’s main argument on rehearing is that since, as ordered, the reclassification of the mail processing equipment operator positions from the “Prevailing Rate” (PR) system to the General Schedule (GS) entitled Bosco to receive grade and pay retention…”

Zervas v. United States, 26 Cl. Ct. 1425 (Ct. Cl. 1992). · cites it 2× “Zervas, appearing pro se, seeks grade and pay retention benefits defendant allegedly owes him pursuant to 5 U.S.C. §§ 5362 and 5363, and a living quarters allowance (LQA).”

Brooks v. United States, 101 Fed. Cl. 340 (Fed. Cl. 2011). “” 5 U.S.C. § 5362 (a) (2006); see also 5 U.”

Zervas v. United States, 28 Fed. Cl. 66 (Fed. Cl. 1993). “Zervas, appearing pro se, seeks grade and pay retention benefits pursuant to 5 U. S.C. §§ 5362 and 5363, and a living quarters allowance (LQA) pursuant to Department of State Standardized Regulations (DOSSR) § 031.”

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). · cites it 2× “Each petitioner was granted grade and pay retention benefits under 5 U.S.C. §§ 5362 and 5363 (Supp. V 1981).”

Zervas v. United States, 30 Fed. Cl. 443 (Fed. Cl. 1994). · cites it 5× “Zervas, appearing pro se, seeks a variety of payments and benefits from the United States, including grade and pay retention benefits under 5 U.S.C. §§ 5362 and 5363, and punitive damages.”

Diane Walsh v. Dep't of the Navy (MSPB 2016). · cites it 2× “¶6 In an initial decision based on the written record, the administrative judge found that a demotion resulting from a reclassification that entitles the employee to limited retained grade and pay under 5 U.S.C. §§ 5362 and 5363 is not appealable as an adverse action under 5 U.”

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