B-167987, OCT. 23, 1969

B-167987: Oct 23, 1969

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IS DENIED. MUST BE APPROVED BY AGENCY HEAD AND BASED ON DETERMINATION THAT TRANSFER WAS FOR CONVENIENCE OF GOVERNMENT. EVEN THOUGH IT MIGHT HAVE BEEN DETERMINED EMPLOYEE WAS ENTITLED TO TRANSFER EXPENSES RETENTION OF SUCH BENEFITS WOULD BE DEPENDENT UPON HIS REMAINING IN GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING TRANSFER. YOU WERE OFFERED A POSITION IN A LOWER GRADE UNDER THE CONDITION THAT THE GOVERNMENT WOULD NOT PAY THE EXPENSES OF YOUR MOVE TO MISSISSIPPI. YOU SAY YOU DID NOT WISH TO ACCEPT THAT OFFER IN VIEW OF THE DECREASE IN PAY AND THE EXTRA COSTS WHICH WOULD HAVE BEEN INVOLVED. IN DECEMBER 1967 YOU WERE ADVISED BY THE AIR FORCE IN SUNNYMEAD THAT YOUR POSITION WOULD BE SUBJECT TO REDUCTION-IN-FORCE ACTION IN THE NEAR FUTURE AND IN VIEW THEREOF YOU ACCEPTED THE POSITION OFFERED BY THE FOREST SERVICE AND MOVED YOUR FAMILY TO HATTIESBURG.

B-167987, OCT. 23, 1969

TRAVEL EXPENSES--TRANSFERS--GOVERNMENT V EMPLOYEE INTEREST--REDUCTION-IN FORCE CLAIM FOR TRANSFER COSTS BY FORMER GOVERNMENT EMPLOYEE WHO SOUGHT EMPLOYMENT WITH FOREST SERVICE NEAR FAMILY HOME WHICH HE ACCEPTED AFTER LEARNING AIR FORCE POSITION WOULD BE SUBJECT TO REDUCTION-IN-FORCE ACTION WITH UNDERSTANDING THAT TRANSFER COSTS WOULD NOT BE PAID BY FOREST SERVICE, AND WHO LEFT TO ENTER PRIVATE BUSINESS AFTER 3 MONTHS, IS DENIED, SINCE PAYMENT OF TRANSFER EXPENSES UNDER 5 U.S.C. 5724, WHETHER OR NOT INCIDENT TO A REDUCTION-IN-FORCE, MUST BE APPROVED BY AGENCY HEAD AND BASED ON DETERMINATION THAT TRANSFER WAS FOR CONVENIENCE OF GOVERNMENT; EVEN THOUGH IT MIGHT HAVE BEEN DETERMINED EMPLOYEE WAS ENTITLED TO TRANSFER EXPENSES RETENTION OF SUCH BENEFITS WOULD BE DEPENDENT UPON HIS REMAINING IN GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING TRANSFER, AND RESIGNATION PRIOR TO THAT TIME WOULD RESULT IN LIABILITY FOR REFUND.

TO MR. OSCAR G. ADAMS, JR.:

WE REFER TO YOUR LETTER OF SEPTEMBER 27, 1969, FORWARDED HERE BY CONGRESSMAN GILLESPIE V MONTGOMERY, BY WHICH YOU REQUEST REVIEW OF THE OFFICE SETTLEMENT OF NOVEMBER 29, 1968, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES YOU INCURRED IN TRANSFERRING FROM A POSITION WITH THE DEPARTMENT OF THE AIR FORCE IN SUNNYMEAD, CALIFORNIA, TO A POSITION WITH THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, IN HATTIESBURG, MISSISSIPPI, IN DECEMBER 1967.

SHORTLY BEFORE YOUR TRANSFER YOU CONTACTED THE FOREST SERVICE SEEKING EMPLOYMENT IN MISSISSIPPI FOR THE REASON THAT YOU WISHED TO RETURN TO THE AREA OF YOUR FAMILY HOME. YOU WERE OFFERED A POSITION IN A LOWER GRADE UNDER THE CONDITION THAT THE GOVERNMENT WOULD NOT PAY THE EXPENSES OF YOUR MOVE TO MISSISSIPPI. YOU SAY YOU DID NOT WISH TO ACCEPT THAT OFFER IN VIEW OF THE DECREASE IN PAY AND THE EXTRA COSTS WHICH WOULD HAVE BEEN INVOLVED. HOWEVER, IN DECEMBER 1967 YOU WERE ADVISED BY THE AIR FORCE IN SUNNYMEAD THAT YOUR POSITION WOULD BE SUBJECT TO REDUCTION-IN-FORCE ACTION IN THE NEAR FUTURE AND IN VIEW THEREOF YOU ACCEPTED THE POSITION OFFERED BY THE FOREST SERVICE AND MOVED YOUR FAMILY TO HATTIESBURG, MISSISSIPPI. ALTHOUGH THE FOREST SERVICE SPECIFICALLY ADVISED YOU THAT IT WOULD NOT AUTHORIZE YOUR TRANSFER TO HATTIESBURG AT GOVERNMENT EXPENSE, YOU SAY THAT THE DEPARTMENT OF THE AIR FORCE ADVISED YOU THAT YOU WOULD BE ENTITLED TO REIMBURSEMENT OF ALLOWABLE EXPENSES BECAUSE OF THE REDUCTION IN FORCE WHICH WAS PENDING AT THE TIME YOU WERE SEPARATED FROM YOUR POSITION WITH THAT AGENCY.

5 U.S.C. 5724 WHICH CONTAINS THE BASIC AUTHORITY FOR PAYMENT BY THE GOVERNMENT OF THE COSTS OF TRANSFERRING AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER PROVIDES THAT THE EXPENSES INVOLVED MAY BE PAID ONLY WHEN AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY INVOLVED. FURTHER, SUBSECTION (H) OF THAT SECTION PROVIDES:

"/H) WHEN A TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF AN EMPLOYEE, INCLUDING AN EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED STATES, OR AT HIS REQUEST, HIS EXPENSES OF TRAVEL AND TRANSPORTATION AND THE EXPENSES OF TRANSPORTING, PACKING, CRATING, TEMPORARILY STORING, DRAYING, AND UNPACKING OF HOUSEHOLD GOODS AND PERSONAL EFFECTS MAY NOT BE ALLOWED OR PAID FROM GOVERNMENT FUNDS.'

ALTHOUGH WE HAVE HELD THAT AN EMPLOYEE WHO IS TRANSFERRED INSTEAD OF BEING SEPARATED IN A REDUCTION IN FORCE MAY -- WITHIN THE AGENCY'S DISCRETION -- BE REIMBURSED THE COSTS OF HIS TRANSFER TO THE POSITION WHICH IS AVAILABLE TO HIM UNDER REDUCTION-IN-FORCE PROCEDURES, WE HAVE NOT HELD THAT AN EMPLOYEE WHO IS SUBJECT TO A REDUCTION IN FORCE IS ENTITLED TO BE TRANSFERRED AT GOVERNMENT EXPENSE TO ANY POSITION HE MAY FIND IN THE GOVERNMENT SERVICE. SEE 26 COMP. GEN. 684, 34 ID. 313. ACCORDINGLY, WHETHER OR NOT A REDUCTION IN FORCE WAS INVOLVED, YOUR ENTITLEMENT TO REIMBURSEMENT OF THE COSTS OF TRANSFER IS DEPENDENT ON A DETERMINATION UNDER 5 U.S.C. 5724 THAT THE TRANSFER WAS FOR THE CONVENIENCE OF THE GOVERNMENT AND NOT PRIMARILY FOR YOUR BENEFIT OR AT YOUR REQUEST. IN ANY EVENT, PAYMENT FOR EXPENSES COVERED BY 5 U.S.C. 5724 IS AUTHORIZED ONLY IF AUTHORIZED OR APPROVED BY THE ADMINISTRATIVE OFFICE CONCERNED. SINCE THE FOREST SERVICE HAS NOT AND DID NOT INTEND TO AUTHORIZE REIMBURSEMENT OF EXPENSES IN CONNECTION WITH YOUR TRANSFER, AND HAS NOT APPROVED REIMBURSEMENT THEREOF, YOU ARE NOT ENTITLED TO REIMBURSEMENT OF THOSE EXPENSES.

REGARDING THE PROVISIONS OF THE ACT OF JULY 21, 1966, PUBLIC LAW 89 516, WHICH RELATE TO EMPLOYEE TRANSFERS IN CONNECTION WITH A REDUCTION IN-FORCE ACTION, SECTION 26 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY THAT ACT, NOW 5 U.S.C. 5724 (E), AUTHORIZES THE LOSING AND GAINING AGENCIES TO SHARE THE COSTS OF AN EMPLOYEE'S TRANSFER BETWEEN AGENCIES WHICH RESULTS FROM A REDUCTION IN FORCE ON SUCH BASIS AS MAY BE AGREED UPON BY THE AGENCIES CONCERNED. THAT AUTHORITY, LIKEWISE, IS A DISCRETIONARY ONE. THERE IS NO EVIDENCE OF RECORD HERE INDICATING ANY INTENT BY THE AGENCIES CONCERNED TO USE SUCH AUTHORITY. THEREFORE, THAT PROVISION FURNISHES NO BASIS FOR PAYMENT OF YOUR CLAIM.

ONE OTHER PROVISION OF LAW WHICH WAS CONSIDERED IN THE SETTLEMENT OF YOUR CLAIM WAS THAT CONTAINED IN 5 U.S.C. 5724 (I) WHICH IS AS FOLLOWS:

"/I) AN AGENCY MAY PAY TRAVEL AND TRANSPORTATION EXPENSES (INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS) AND OTHER RELOCATION ALLOWANCES UNDER THIS SECTION AND SECTIONS 5724A AND 5726 (C) OF THIS TITLE WHEN AN EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES ONLY AFTER THE EMPLOYEE AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED. IF THE EMPLOYEE VIOLATES THE AGREEMENT, THE MONEY SPENT BY THE UNITED STATES FOR THE EXPENSES AND ALLOWANCES IS RECOVERABLE FROM THE EMPLOYEE AS A DEBT DUE THE UNITED STATES.' UNDER THAT PROVISION, REGARDLESS OF YOUR INITIAL ENTITLEMENT TO REIMBURSEMENT OF TRANSFER EXPENSES, YOUR RETENTION OF THOSE BENEFITS WOULD HAVE DEPENDED UPON YOUR REMAINING IN GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING YOUR TRANSFER UNLESS SEPARATED FOR REASONS BEYOND YOUR CONTROL AND ACCEPTABLE TO THE FOREST SERVICE. YOU WERE SEPARATED FROM THE FOREST SERVICE APPROXIMATELY 3 MONTHS AFTER YOUR TRANSFER IN ORDER TO ENTER BUSINESS FOR YOURSELF. IN THE ABSENCE OF A DETERMINATION THAT THE SEPARATION WAS FOR REASONS BEYOND YOUR CONTROL AND ACCEPTABLE TO THE FOREST SERVICE, YOUR RESIGNATION WOULD HAVE MADE YOU LIABLE FOR REFUND OF ANY AMOUNT PAID IN CONNECTION WITH YOUR TRANSFER. IN THE CIRCUMSTANCES, ANY DETERMINATION THAT YOU MIGHT HAVE BEEN ENTITLED TO REIMBURSEMENT OF TRANSFER EXPENSES WOULD BE COUNTERBALANCED BY THE FACT THAT YOU WOULD NOT BE ENTITLED TO RETAIN SUCH BENEFITS BECAUSE OF YOUR FAILURE TO REMAIN IN GOVERNMENT SERVICE FOR THE STATED PERIOD OF TIME.

FOR THE REASONS STATED, THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DISALLOWING YOUR CLAIM IS SUSTAINED.