B-169880, JUL. 6, 1970

B-169880, JUL. 6, 1970

CIVIL PAY -- RESIGNATION AFTER TRANSFER TO NEW STATION DECISION TO CERTIFYING OFFICER OF DEPT. OF AGRICULTURE AS TO WHETHER AN EMPLOYEE OF THE FOREST SERVICE MUST REFUND TO THE GOVERNMENT THE AMOUNT PAID INCIDENT TO TRANSFER TO NEW STATION WHEN HE DID NOT FULFILL THE AGREEMENT TO SERVE 12 MONTHS AFTER TRANSFER. EMPLOYEE WHO, AFTER LATERAL TRANSFER IN REDUCTION-IN-FORCE ACTION, RESIGNS BEFORE FULFILLING REQUIRED YEAR OF SERVICE AT NEW STATION BECAUSE OF LACK OF PROFESSIONAL OPPORTUNITY FOR ADVANCEMENT, HOUSING DIFFICULTIES AT NEW STATION, MUST HAVE ADMINISTRATIVE DETERMINATION THAT RESIGNATION IS VOLUNTARY RATHER THAN FOR REASONS BEYOND EMPLOYEES CONTROL UPHELD AND THEREFORE REFUSAL OF AGENCY TO WAIVE TRANSFER EXPENSE INDEBTEDNESS WOULD NOT BE ARBITRARY.

TO MR. KARL J. KELLNER:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 16, 1970, FILE REFERENCE 6530, RECEIVED HERE ON MAY 22, 1970, IN WHICH YOU SEEK OUR ADVICE ON AN APPEAL MADE BY MR. PHILLIP S. WULFF, A FORMER EMPLOYEE OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, ANACONDA CIVILIAN CONSERVATION CENTER, ANACONDA, MONTANA, FROM A DECISION REQUIRING REPAYMENT OF THE AMOUNT PAID BY THE GOVERNMENT INCIDENT TO HIS TRANSFER FROM DICKINSON, NORTH DAKOTA, TO ANACONDA, MONTANA, IN VIEW OF THE FACT THAT HE FAILED TO FULFILL HIS AGREEMENT TO SERVE 12 MONTHS WITH THE FEDERAL GOVERNMENT AFTER SUCH TRANSFER.

THE CORRESPONDENCE ACCOMPANYING YOUR LETTER SHOWS THAT MR. WULFF TRANSFERRED TO THE ANACONDA CIVILIAN CONSERVATION CENTER ON JUNE 29, 1969, AND WHILE AT THAT STATION HE RESIGNED FOR PERSONAL REASONS EFFECTIVE FEBRUARY 13, 1970. CONSEQUENTLY MR. WULFF WAS CHARGED FOR THE CHANGE-OF- STATION COSTS AGGREGATING $2,190.28. HIS TERMINAL NET PAY OF $1,137.42 WAS APPLIED AGAINST HIS INDEBTEDNESS LEAVING A BALANCE OF $1,052.86 FOR DEDUCTION FROM THE AMOUNT STANDING TO HIS CREDIT IN THE RETIREMENT FUND.

IN HIS LETTER DATED MARCH 15, 1970, MR. WULFF BASES HIS APPEAL FROM HIS INDEBTEDNESS ON THE PARTICULAR CIRCUMSTANCES INVOLVED IN CONNECTION WITH HIS ACCEPTANCE OF THE POSITION AT THE ANACONDA CIVILIAN CONSERVATION CENTER IMMEDIATELY FOLLOWING THE CLOSING OF THE DICKINSON CIVILIAN CONSERVATION CENTER. HE ADVISES THAT AT THE TIME THE REDUCTION-IN-FORCE ACTION TOOK PLACE HE MADE APPLICATIONS FOR OTHER POSITIONS BUT DUE TO THE BRIEF TIME ELAPSE HE HAD NO RESPONSE ON THOSE APPLICATIONS AND FURTHER THAT WITHOUT BEING CONSULTED OR PERMITTED TO INDICATE PERSONAL PREFERENCES HE WAS SELECTED FOR LATERAL TRANSFER TO THE ANACONDA CIVILIAN CONSERVATION CENTER.

IN FURTHER ADVISING IN HIS LETTER THAT HE SERIOUSLY ATTEMPTED TO FIND ANOTHER POSITION WHEN NOTIFIED OF THE REDUCTION-IN-FORCE ACTION, HE ASSERTS THAT HE ACCEPTED THE POSITION AT ANACONDA BECAUSE IT WAS THE ONLY POSITION AVAILABLE ON SHORT NOTICE. HE HAS FURNISHED, IN ADDITION, DETAILS CONCERNING HIS HOUSING DIFFICULTIES AT ANACONDA. IN SUPPORT OF HIS APPEAL, HE CITES THE CASE OF ANOTHER EMPLOYEE WHO RESIGNED SHORTLY AFTER HAVING BEEN SIMILARLY TRANSFERRED TO ANACONDA BUT WAS RELIEVED OF HIS REFUND OBLIGATION. WHEN MR. WULFF SUBMITTED HIS RESIGNATION ON JANUARY 30, 1970, EFFECTIVE FEBRUARY 13, 1970, HE LISTED HIS REASON THEREFOR AS FOLLOWS:

"THE U.S. FOREST SERVICE LACKS OPPORTUNITIES FOR INDIVIDUALS WITH MY PROFESSIONAL PREPARATION AND EXPERIENCE; THEREFORE, I FEEL IT BEST FOR ME TO RESIGN AND ACCEPT A POSITION WHERE GREATER OPPORTUNITIES EXIST."

IN YOUR LETTER OF APRIL 16, 1970, YOU SAY, AMONG OTHER THINGS, THAT MR. WULFF HAD THE FREEDOM OF STAYING ON THE JOB AND THAT HIS ELECTION TO SEEK AND ACCEPT OTHER EMPLOYMENT WAS AN ACT FAVORABLE TO HIMSELF. YOU, THEREFORE, HAVE EXPRESSED THE VIEW THAT HIS RESIGNATION WAS VOLUNTARY. ALSO, YOU HAVE DISTINGUISHED THE CASE CITED BY MR. WULFF, AS MENTIONED ABOVE, ON THE BASIS OF THE PARTICULAR CIRCUMSTANCES INVOLVED. HOWEVER, SINCE MR. WULFF HAD REQUESTED HIS LETTER TO BE SENT HERE FOR REVIEW IN THE EVENT HIS APPEAL WAS DENIED AND IN VIEW OF THE SUBSTANTIAL AMOUNT INVOLVED, YOU REQUEST US TO DETERMINE, IN A REVIEW OF THE CASE, WHETHER HIS RESIGNATION WAS FOR "REASONS BEYOND HIS CONTROL."

UNDER THE CONTROLLING LAW AND REGULATIONS, 5 U.S.C. 5724(I) AND SECTION 1.3C(1) OF BUREAU OF THE BUDGET CIRCULAR A-56, REVISED, THE DETERMINATION AS TO WHETHER AN EMPLOYEE'S RESIGNATION FROM HIS POSITION IS "FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED" IS PRIMARILY FOR THE AGENCY IN WHICH HE WAS LAST EMPLOYED. IN THE ABSENCE OF EVIDENCE SHOWING THAT SUCH DETERMINATION IS ARBITRARY OR CAPRICIOUS THIS OFFICE IS BOUND BY SUCH DETERMINATION. SEE 31 COMP. GEN. 588, 590. SEE ALSO B-160646, MARCH 10, 1967; B-164605, AUGUST 22, 1968; AND B-167987, OCTOBER 23, 1969, COPIES ENCLOSED. IN MR. WULFF'S CASE WE CANNOT SAY THAT A DETERMINATION NOT TO WAIVE THE INDEBTEDNESS WOULD BE ARBITRARY OR CAPRICIOUS.

THE CORRESPONDENCE WHICH ACCOMPANIED YOUR LETTER OF APRIL 16, 1970, IS RETURNED.