B-131570, MAY 16, 1957

B-131570: May 16, 1957

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HAS BEEN REFERRED TO OUR OFFICE AS IT IS CONSIDERED TO BE A REQUEST FOR REVIEW OF THE SETTLEMENT OF OUR OFFICE OF MAY 31. THE DISALLOWANCE OF YOUR CLAIM WAS BASED UPON SECTION 1 OF THE ACT OF AUGUST 2. PROHIBITING REIMBURSEMENT OF SUCH EXPENSES WHEN THE TRANSFER OF THE EMPLOYEE IS "AT HIS REQUEST" AND THE ADMINISTRATIVE REPORT THAT YOUR TRANSFER WAS REQUESTED BY YOUR LETTER OF JULY 5. YOU STATE THAT WHEN YOU WERE ASKED TO SIGN THE LETTER OF JULY 5. THE CONSEQUENCES OF SUCH A LETTER WERE NOT KNOWN TO YOU. WE WOULD HAVE TAKEN NO ACTION TO EFFECT YOUR TRANSFER AND YOU WOULD HAVE CONTINUED TO SERVE IN THE WASHINGTON AREA. IN NO WAY WAIVED ANY RIGHTS AND BENEFITS TO WHICH YOU WERE ENTITLED.'.

B-131570, MAY 16, 1957

TO MR. WILLIAM K. WITTAUSCH:

YOUR LETTER OF FEBRUARY 25, 1957, TO THE UNITED STATES CIVIL SERVICE COMMISSION, HAS BEEN REFERRED TO OUR OFFICE AS IT IS CONSIDERED TO BE A REQUEST FOR REVIEW OF THE SETTLEMENT OF OUR OFFICE OF MAY 31, 1956. THAT SETTLEMENT DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF $725.12 AND $152.76 EXPENDED BY YOU FOR THE TRANSPORTATION OF YOUR HOUSEHOLD AND PERSONAL EFFECTS FROM WASHINGTON, D.C. AND VENTURA, CALIFORNIA, TO LOS ANGELES, CALIFORNIA, IN CONNECTION WITH YOUR CHANGE OF STATION FROM WASHINGTON, D.C., TO LOS ANGELES IN JULY 1955.

THE DISALLOWANCE OF YOUR CLAIM WAS BASED UPON SECTION 1 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, PROHIBITING REIMBURSEMENT OF SUCH EXPENSES WHEN THE TRANSFER OF THE EMPLOYEE IS "AT HIS REQUEST" AND THE ADMINISTRATIVE REPORT THAT YOUR TRANSFER WAS REQUESTED BY YOUR LETTER OF JULY 5, 1955. IN YOUR LETTER OF FEBRUARY 25, 1957, YOU STATE THAT WHEN YOU WERE ASKED TO SIGN THE LETTER OF JULY 5, 1955, THE CONSEQUENCES OF SUCH A LETTER WERE NOT KNOWN TO YOU, AND YOU SUBMIT COPIES OF CORRESPONDENCE BETWEEN YOURSELF AND VARIOUS OFFICIALS OF THE FEDERAL HOUSING ADMINISTRATION IN SUPPORT OF YOUR CONTENTION. HOWEVER, OUR OFFICE HAS BEEN FURNISHED PHOTOSTATIC COPIES TAKEN FROM THE PERSONNEL FILES OF THE FEDERAL HOUSING ADMINISTRATION, INCLUDING A LETTER DATED JANUARY 12, 1956, ADDRESSED TO YOU, FROM THE DIRECTOR OF PERSONNEL STATING:

"YOUR LETTER OF JULY 5, 1955, IN NO WAY CONCERNED THE EXERCISE OF YOUR REEMPLOYMENT RIGHTS. IT DID, HOWEVER, CONCERN YOUR DESIRE TO BE CONSIDERED FOR THE HOUSING MARKET ANALYST POSITION IN THE LOS ANGELES INSURING OFFICE. HAD YOU NOT REQUESTED CONSIDERATION FOR THE POSITION IN LOS ANGELES, WE WOULD HAVE TAKEN NO ACTION TO EFFECT YOUR TRANSFER AND YOU WOULD HAVE CONTINUED TO SERVE IN THE WASHINGTON AREA. YOUR LETTER OF JULY 5, 1955, IN NO WAY WAIVED ANY RIGHTS AND BENEFITS TO WHICH YOU WERE ENTITLED.'

A SUMMARY OF THE FACTS INVOLVED IN THIS CONTROVERSY IS CONTAINED IN THE LETTER OF MARCH 14, 1956, TO YOU, ALSO FROM THE DIRECTOR OF PERSONNEL AS FOLLOWS:

"THE ACTUAL FACTS SURROUNDING YOUR REEMPLOYMENT WITH THE FEDERAL HOUSING ADMINISTRATION AND SUBSEQUENT REASSIGNMENT TO YOUR PRESENT POSITION ARE AS FOLLOWS:

"1. DURING THE LATTER PART OF MAY, 1955, YOU REPORTED PERSONALLY TO THE PERSONNEL DIVISION TO ADVISE THAT YOUR EMPLOYMENT WITH THE INTERNATIONAL COOPERATION ADMINISTRATION WAS TO BE TERMINATED AND THAT YOU WISHED TO EXERCISE REEMPLOYMENT RIGHTS WITH THE FEDERAL HOUSING ADMINISTRATION. THERE WAS NO QUESTION ABOUT THE OBLIGATION OF THE AGENCY FOR YOUR REEMPLOYMENT IN WASHINGTON. AT THAT TIME YOU SPECIFICALLY STATED, HOWEVER, THAT IT WAS YOUR DESIRE TO OBTAIN A TRANSFER TO THE FHA LOS ANGELES, CALIFORNIA OFFICE AND YOU WENT INTO SOME DETAIL CONCERNING YOUR DESIRE TO RELOCATE YOUR FAMILY IN THAT AREA.

"2. FURTHER DISCUSSIONS WERE HELD WITH YOUR SUPERVISORS CONCERNING YOUR DESIRE FOR REASSIGNMENT TO THE LOS ANGELES AREA. YOUR SUPERVISORS WERE ADVISED THAT, IN ACCORDANCE WITH EXISTING REGULATIONS, ALTHOUGH THERE WAS A VACANT POSITION IN THE LOS ANGELES OFFICE, ACTION COULD NOT BE TAKEN TO EFFECT YOUR REASSIGNMENT UNLESS YOU PRESENTED A WRITTEN REQUEST SIGNED BY YOU WHICH WOULD COMPLY WITH REGULATORY AND PROCEDURAL REQUIREMENTS. FOLLOWING THESE DISCUSSIONS, AN APPROPRIATE LETTER WAS PREPARED FOR YOU, DATED JULY 5, 1955, (THE FIRST WORKING DAY FOLLOWING YOUR INTENDED DATE OF RETURN TO DUTY WITH FHA ON JULY 1) AS FOLLOWS:

"JULY 5, 1955 MR. ALLEN F. THORNTON, DIRECTOR DIVISION OF RESEARCH AND STATISTICS FEDERAL HOUSING ADMINISTRATION WASHINGTON 25, D. C. DEAR MR. THORNTON:

AS YOU KNOW, I HAVE RECENTLY EXERCISED MY REEMPLOYMENT RIGHTS WITH THE FEDERAL HOUSING ADMINISTRATION AND AM CURRENTLY ASSIGNED TO AN XT POSITION, GRADE GS-13, IN THE OFFICE OF THE HOUSING MARKET ANALYST OF THE WASHINGTON, D.C. INSURING OFFICE.

I UNDERSTAND THAT THERE IS A POSITION VACANCY IN THE OFFICE OF THE MARKET ANALYST IN THE LOS ANGELES, CALIFORNIA INSURING OFFICE. I WOULD APPRECIATE IT VERY MUCH IF YOU WOULD CONSIDER ME FOR TRANSFER TO THIS LOS ANGELES POSITION, SINCE I WOULD LIKE TO ESTABLISH MY RESIDENCE IN THAT SECTION OF THE COUNTRY. I UNDERSTAND THAT THE LOS ANGELES POSITION IS CLASSIFIED AT GRADE GS-12 AND THAT IT WILL BE NECESSARY, ACCORDINGLY, FOR ME TO TAKE A REDUCTION IN SALARY TO THE TOP LEVEL OF THE GS-12 GRADE IN THE EVENT OF MY TRANSFER TO THAT POSITION.

IN INITIATING THIS REQUEST, I WISH TO MAKE IT A MATTER OF RECORD THAT THE FEDERAL HOUSING ADMINISTRATION HAS NOT EXERCISED ANY PRESSURE UPON ME TO DO SO, THAT I FULLY UNDERSTAND THE TRANSACTION AND CONSIDER THE REDUCTION TO BE IN MY BEST INTERESTS, AND THAT IF I AM SELECTED FOR THE GS-12 POSITION, I WISH TO WAIVE MY RIGHTS UNDER THE VETERANS' PREFERENCE ACT AND THE REEMPLOYMENT REGULATIONS SO THAT THE ACTION MAY BE TAKEN IMMEDIATELY.

VERY TRULY YOURS,

(S) WILLIAM K. WITTAUSCH"

"3. AT YOUR REQUEST BECAUSE OF CHANGES IN YOUR PLANS, AND IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS, YOU WERE REEMPLOYED EFFECTIVE JUNE 13, 1955, AS HOUSING MARKET ANALYST, GS-13, IN WASHINGTON, D. C. THE LETTER DATED JULY 5 WAS REVIEWED, APPROVED, AND SIGNED BY YOU AND DELIVERED TO FHA FOR THE PERSONNEL FILES AT THE TIME OF YOUR ENTRANCE ON DUTY IN WASHINGTON.

"4. IN ACCORDANCE WITH YOUR REQUEST, YOU WERE OFFICIALLY REASSIGNED TO YOUR PRESENT POSITION OF HOUSING MARKET ANALYST, GS-12, LOS ANGELES OFFICE, EFFECTIVE JULY 18, 1955.

"5. YOUR SCHEDULE OF TRAVEL AND TRAINING WERE MUTUALLY AGREED UPON BETWEEN YOU AND YOUR SUPERVISORS WITH DUE CONCERN FOR THE EFFICIENCY OF THE PROGRESS BUT LARGELY BASED UPON THE CONVENIENCE OF YOUR PERSONAL PLANS AND DESIRES.

"DURING YOUR DISCUSSIONS WITH YOUR SUPERVISORS ABOUT BEING REASSIGNED TO LOS ANGELES, YOU INDICATED THAT THE TRANSFER WOULD INVOLVE NO EXPENSE TO FHA BECAUSE OF ICA OBLIGATIONS FOR YOUR TRAVEL EXPENSE. HENCE, NO CONSIDERATION WAS THEN GIVEN TO THE POSSIBILITY OF SUCH EXPENSES TO FHA. HAD THE MATTER BEEN RAISED, BINDING COMMITMENT COULD NOT HAVE BEEN MADE FOR PAYMENT OF SUCH EXPENSES BY FHA BECAUSE THAT WOULD HAVE BEEN INCONSISTENT WITH THE AGENCY'S POWERS IN THE LIGHT OF YOUR LETTER OF JULY 5 AND THE CIRCUMSTANCES OF YOUR TRANSFER. SUBSEQUENTLY, HOWEVER, YOU PRESENTED A CLAIM TO THE FEDERAL HOUSING ADMINISTRATION FOR THE EXPENSES YOU INCURRED IN TRANSPORTING YOUR HOUSEHOLD GOODS.'

THE MATTER WAS REVIEWED ADMINISTRATIVELY IN THE LETTER OF JUNE 14, 1956, FROM THE ASSISTANT TO THE COMMISSIONER IN WHICH HE STATES:

"SPECIFICALLY, WITH RESPECT TO THE THREE POINTS COVERED BY MR. KADOW, I HAVE FOUND THAT (1) THE REASSIGNMENT WAS EFFECTED AT YOUR REQUEST, (2) AT THE TIME YOU WERE REQUESTING THE TRANSFER YOU ADVISED YOUR SUPERVISORS THAT THE ACTION WOULD BE COMPLETED WITHOUT COST TO THE FEDERAL HOUSING ADMINISTRATION, AND (3) THE LETTER DATED JULY 5, 1955, STATES THAT YOU WISHED TO WAIVE CERTAIN RIGHTS SO THAT THE ACTION COULD BE EFFECTED WITHOUT DELAY.'

THE FOREGOING REASONABLY ESTABLISHES THAT YOUR TRANSFER WAS REQUESTED BY YOU AND WAS FOR YOUR OWN BENEFIT. MOREOVER, THE PAYMENT OF TRANSPORTATION EXPENSES UPON A TRANSFER OF STATION IS NOT AN ABSOLUTE RIGHT. THE LAW PERMITS ALLOWANCE OF SUCH EXPENSES ONLY WHEN "AUTHORIZED OR APPROVED BY SUCH SUBORDINATE OFFICIAL OR OFFICIALS OF THE DEPARTMENT CONCERNED AS THE HEAD THEREOF MAY DESIGNATE.' NO SUCH AUTHORIZATION OR APPROVAL APPEARS TO HAVE BEEN MADE IN YOUR CASE. CONSEQUENTLY, NOTWITHSTANDING THAT THE GOVERNMENT MAY HAVE BENEFITED BY YOUR TRANSFER, REIMBURSEMENT OF THE EXPENSES INCIDENT TO SUCH TRANSFER IS BARRED BY SECTION 1 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806.