5 U.S.C. § 5363

Pay retention

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(a) Any employee—(1) who ceases to be entitled to the benefits of section 5362 of this title by reason of the expiration of the 2-year period of coverage provided under such section;(2) who is in a position subject to this subchapter and who is subject to a reduction or termination of a special rate of pay established under section 5305 of this title (or corresponding prior provision of this title);(3) who is in a position subject to this subchapter and who (but for this section) would be subject to a reduction in pay under circumstances prescribed by the Office of Personnel Management by regulation to warrant the application of this section; or(4) who is in a position subject to this subchapter and who is subject to a reduction or termination of a rate of pay established under subchapter IX of chapter 53;is entitled to a rate of basic pay in accordance with regulations prescribed by the Office of Personnel Management in conformity with the provisions of this section.(b)(1)(A) If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is less than or equal to the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved, the employee is entitled to basic pay at the lowest rate of basic pay payable for such grade that equals or exceeds such former rate of basic pay.(B) This section shall cease to apply to an employee to whom subparagraph (A) applies once the appropriate rate of basic pay has been determined for such employee under this paragraph.(2)(A) If, as a result of any event described in subsection (a), the employee’s former rate of basic pay is greater than the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved, the employee is entitled to basic pay at a rate equal to the lesser of—(i) the employee’s former rate of basic pay; or(ii) 150 percent of the maximum rate of basic pay payable for the grade of the employee’s position immediately after the occurrence of the event involved,as adjusted by subparagraph (B).(B) A rate to which an employee is entitled under this paragraph shall be increased at the time of any increase in the maximum rate of basic pay payable for the grade of the employee’s position by 50 percent of the dollar amount of each such increase.(3) For purposes of this subsection, the term “former rate of basic pay”, as used with respect to an employee in connection with an event described in subsection (a), means the rate of basic pay last received by such employee before the occurrence of such event.(c)(1) Notwithstanding any other provision of this section, in the case of an employee who—(A) moves to a new official duty station, and(B) in conjunction with such move, becomes subject to both a different pay schedule and (disregarding this subsection) the preceding provisions of this section,this section shall be applied—(i) first, by determining the rate of pay to which such employee would be entitled at the new official duty station based on such employee’s position, grade, and step (or relative position in the pay range) before the move, and(ii) then, by applying the provisions of this section that would apply (if any), treating the rate determined under clause (i) as if it were the rate last received by the employee before the application of this section.(2) A reduction in an employee’s rate of basic pay resulting from a determination under paragraph (1)(ii) is not a basis for an entitlement under this section.(3) The rate of basic pay for an employee who is receiving a retained rate at the time of moving to a new official duty station at which different pay schedules apply shall be subject to regulations prescribed by the Office of Personnel Management consistent with the purposes of this section.(d) A retained rate shall be considered part of basic pay for purposes of this subchapter and for purposes of subchapter III of chapter 83, chapters 84 and 87, subchapter V of chapter 55, section 5941, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe. The Office shall, for any purpose other than any of the purposes referred to in the preceding sentence, prescribe by regulation what constitutes basic pay for employees receiving a retained rate.(e) This section shall not apply, or shall cease to apply, to an employee who—(1) has a break in service of 1 workday or more;(2) is entitled, by operation of this subchapter, chapter 51 or 53, or any other provision of law, to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of basic pay for which is equal to or higher than, the retained rate to which the employee would otherwise be entitled; or(3) is demoted for personal cause or at the employee’s request.(Added Pub. L. 95–454, title VIII, § 801(a)(1), Oct. 13, 1978, 92 Stat. 1219; amended Pub. L. 101–509, title V, § 529 [title I, §§ 101(b)(3)(B), 105(b)(2)], Nov. 5, 1990, 104 Stat. 1427, 1439, 1448; Pub. L. 103–89, § 3(b)(1)(L), Sept. 30, 1993, 107 Stat. 982; Pub. L. 108–411, title III, § 301(a)(5), Oct. 30, 2004, 118 Stat. 2316.)Editorial NotesPrior Provisions

A prior section 5363, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 473, which related to limitation on pay fixed by administrative action, was renumbered section 5373 of this title by Pub. L. 95–454, title VIII, § 801(a)(3)(A)(ii), Oct. 13, 1978, 92 Stat. 1221.

Amendments

2004—Subsec. (a). Pub. L. 108–411, § 301(a)(5)(A), inserted concluding provisions and struck out former concluding provisions which read as follows: “is entitled to basic pay at a rate equal to (A) the employee’s allowable former rate of basic pay, plus (B) 50 percent of the amount of each increase in the maximum rate of basic pay payable for the grade of the employee’s position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade.”

Subsecs. (b) to (e). Pub. L. 108–411, § 301(a)(5)(B), added subsecs. (b) to (e) and struck out former subsecs. (b) and (c) which read as follows:

“(b) For the purpose of subsection (a) of this section, ‘allowable former rate of basic pay’ means the lower of—

“(1) the rate of basic pay payable to the employee immediately before the reduction in pay; or

“(2) 150 percent of the maximum rate of basic pay payable for the grade of the employee’s position immediately after such reduction in pay.

“(c) The preceding 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 entitled by operation of this subchapter or chapter 51 or 53 of this title to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of basic pay for which is equal to or higher than, the rate to which the employee is entitled under this section; or

“(3) is demoted for personal cause or at the employee’s request.”

1993—Subsec. (c)(2). Pub. L. 103–89 substituted “chapter 51 or 53” for “chapter 51, 53, or 54”.

1990—Subsec. (a)(2) to (4). Pub. L. 101–509 substituted “5305 of this title (or corresponding prior provision of this title);” for “5303 of this title; or” in par. (2), inserted “or” at end of par. (3), and added par. (4).

Statutory Notes and Related SubsidiariesEffective Date of 2004 Amendment

Pub. L. 108–411, title III, § 301(d), Oct. 30, 2004, 118 Stat. 2317, provided that:“(1)Effective date.—This section [amending this section, sections 4505a, 5302, 5305, 5334, 5361, and 5365 of this title, and provisions set out as a note under section 5305 of this title] shall take effect on the first day of the first applicable pay period beginning on or after the 180th day after the date of the enactment of this Act [Oct. 30, 2004].“(2)Conversion rules.—“(A)Individuals receiving a retained rate or a rate greater than the maximum rate for the grade.—Subject to any regulations the Office of Personnel Management may prescribe, an employee under a covered pay schedule who, on the day before the effective date of this section, is receiving a retained rate under section 5363 of title 5, United States Code, or is receiving under similar authority a rate of basic pay that is greater than the maximum rate of basic pay payable for the grade of the employee’s position shall have that rate converted as of the effective date of this section, and the employee shall be considered to be receiving a retained rate under section 5363 of such title (as amended by this section). The newly applicable retained rate shall equal the formerly applicable retained rate as adjusted to include any applicable locality-based payment under section 5304 of title 5, United States Code, or similar provision of law.“(B)Definition.—For purposes of this paragraph, the term ‘covered pay schedule’ has the meaning given such term by section 5361 of title 5, United States Code.”

Effective 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 1990 Amendment

Amendment by Pub. L. 101–509 effective on such date as the President shall determine, but not earlier than 90 days, and not later than 180 days, after Nov. 5, 1990, see section 529 [title III, § 305] of Pub. L. 101–509, set out as a note under section 5301 of this title.

Notes of Decisions

Cited in 13 cases (1 in the last 5 years), 1981–2023 · leading case: Little v. United States, 124 Fed. Cl. 256 (Fed. Cl. 2015).

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Little v. United States, 124 Fed. Cl. 256 (Fed. Cl. 2015). · cites it 7× “§ 5334 ; 5 U.S.C. § 5363 ; 5 C.F.R. § 302.102 ; and 5 C.”

Clifton L. Goodrich v. U. S. Dep't of the Navy & Merit Sys. Prot. Bd., 686 F.2d 169 (3rd Cir. 1982). · cites it 2× “8 In addition, at the end of the two year period, pursuant to 5 U.S.C. § 5363 , the employee is entitled to retain the basic rate of pay of his former position.”

Int'l Org. of Masters, Mates & Pilots v. Honorable Harold Brown, Sec'y of Def., 698 F.2d 536 (D.C. Cir. 1983). “Our question is: “Does [ 5 U.S.C. § 5363 , the prior codification of § 5373] entitled, ‘Limitation on pay fixed by administrative action,’ which limits basic pay to the maximum rate of GS-18, apply to salaries constructed under [ 5 U.”

Atwell v. Merit Sys. Prot. Bd., 670 F.2d 272 (D.C. Cir. 1981). · cites it 4× “5 U.S.C. § 5363 (Supp. Ill 1979). Although this scheme is somewhat complex, it suffices to say that the employee whose position is downgraded never has his pay lowered as a net result of the reclassification, and retains his former grade for two years; the affected employee…”

Marion A. Chaney v. Vets. Admin., 906 F.2d 697 (Fed. Cir. 1990). “Since that time she became eligible for pay raises in 1988 and 1989, but complains that these and all future pay raises have not been calculated properly under the law, namely: 5 U.S.C. § 5363 (b)(1). Thus, she alleges a loss in pay for those years and in the future.”

Brooks v. United States, 101 Fed. Cl. 340 (Fed. Cl. 2011). “§ 5362 (a) (2006); see also 5 U.S.C. § 5363 (2006). In other words, upon the conversion, whatever salary an employee earned under the GS schedule had to be retained in the transition into the NSPS schedule.”

Branch v. United States, 101 Fed. Cl. 411 (Fed. Cl. 2011). “230:4-15 (Chapin); 5 U.S.C. § 5363 . Thus, there is nothing on the record to support Mr.”

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). “…of pay of the old grade, but this amount may not exceed 150% of the maximum rate of pay of the new (lower) grade. 5 U.S.C. § 5363 (b)(2) (Supp. V 1981).”

Zervas v. United States, 30 Fed. Cl. 443 (Fed. Cl. 1994). “Because pay retention is likewise unavailable to an employee who has had a break in service, 5 U.S.C. § 5363 (a)(1), plaintiff also is not eligible for benefits under Section 5363.”

Dennis H. Day v. Dep't of the Air Force (MSPB 2015). · cites it 2× “The administrative judge found that the parties had agreed that the appellant would receive pay retention based on his GS-9 step 6 position, which he received until the agency properly terminated it in accordance with 5 U.S.C. § 5363 (b) on September 16, 2007, because his basic…”

Cost of Living Allowances for Employees on Pay Retention (OLC 1989). · cites it 3× “1 Given the clear obliga tion to base COLAs on the employee’s “basic rate of pay,” we turn then to the determination of what the “basic rate of pay” is for an employee receiving retained pay under 5 U.S.C. § 5363 . We believe that OPM is required under its own regulations to…”

Application of the Statutory Pay Cap on Administratively Determined Pay in 5 U.S.C. § 5373 to the Nat'l Sci. Found. (OLC 2023). “The pay cap was initially codified at 5 U.S.C. § 5363 , in subchapter VI of Chapter 53 of title 5.”

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