B-193250, SEP 26, 1980

B-193250, SEP 26, 1980

DIGEST: AN AIR FORCE EMPLOYEE WHO HAD RECEIVED A REDUCTION-IN-FORCE NOTICE DECLINED OFFER OF POSITION AT LOWER GRADE IN ORDER TO ACCEPT POSITION AT ANOTHER LOCATION WITH DEPARTMENT OF HEALTH AND HUMAN SERVICES. AGENCY HAS DISCRETION TO DETERMINE WHETHER TO AUTHORIZE RELOCATION EXPENSES OF EMPLOYEE WHO OBTAINS POSITION AFTER RECEIVING NOTICE OF IMPENDING REDUCTION-IN-FORCE. JTR PARA. C 4100-2.4 STATES THAT WHERE EMPLOYEE IS INVOLUNTARILY SEPARATED AND OBTAINS POSITION ON OWN INITIATIVE, TRANSFER IS IN GOVERNMENT INTEREST ONLY IF LOSING ACTIVITY CERTIFIES THAT EMPLOYEE HAS NOT DECLINED SUITABLE POSITION. SINCE REQUISITE CERTIFICATION HAS NOT BEEN MADE IN THIS CASE, RELOCATION EXPENSES MAY NOT BE ALLOWED.

BETTY S. WENDEL - ENTITLEMENT TO RELOCATION EXPENSES:

THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDS A REQUEST FOR AN ADVANCE DECISION CONCERNING AN EMPLOYEE'S ENTITLEMENT TO RELOCATION ALLOWANCES WHERE, AFTER RECEIVING A REDUCTION-IN-FORCE NOTICE, THE EMPLOYEE VOLUNTARILY OBTAINS A POSITION WITH ANOTHER AGENCY. THE COMMITTEE HAS ASSIGNED THIS REQUEST CONTROL NUMBER 79-38.

MS. BETTY S. WENDEL WAS ISSUED A REDUCTION-IN-FORCE NOTICE DATED JANUARY 26, 1978, WHILE EMPLOYED AT RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI, OFFERING HER A CHANGE TO A LOWER GRADE POSITION TO BE EFFECTIVE APRIL 1, 1978. INSTEAD OF ACCEPTING THE OFFERED POSITION, SHE OBTAINED A TEMPORARY APPOINTMENT ON FEBRUARY 10, 1978, WITH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES (FORMERLY THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE) AT NEVADA, MISSOURI. MS. WENDEL INDICATES THAT THIS TEMPORARY APPOINTMENT WAS ALSO AT A LOWER GRADE BUT WAS TO BE MADE PERMANENT. SHE SAYS SHE ACCEPTED IT BECAUSE OF THE INSECURITY OF FUTURE EMPLOYMENT AT RICHARDS- GEBAUR AND THE POSSIBILITY THAT SHE MIGHT ULTIMATELY BE SEPARATED AS A RESULT OF THE CLOSURE OF THE BASE.

MS. WENDEL INCURRED EXPENSES INCIDENT TO THE CHANGE OF STATION AND ACCORDINGLY SOUGHT REIMBURSEMENT. THE ACQUIRING AGENCY DECLINED TO AUTHORIZE REIMBURSEMENT. THE LOSING AGENCY, THE DEPARTMENT OF THE AIR FORCE, ADVISES THAT NO TRAVEL AUTHORIZATION WAS ISSUED AND QUESTIONS WHETHER THE TRANSFER MUST BE CONSIDERED TO BE IN THE GOVERNMENT'S INTEREST. THERE IS NO INDICATION OF AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER TRANSFER WHICH IS REQUIRED BY 5 U.S.C. 5724(I) FOR REIMBURSEMENT OF RELOCATION EXPENSES.

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 (1947), 34 ID. 313 (1954). ACCORDINGLY, WHETHER OR NOT A REDUCTION-IN-FORCE WAS INVOLVED, ENTITLEMENT TO REIMBURSEMENT OF THE COSTS OF TRANSFER IS DEPENDENT ON A DETERMINATION UNDER 5 U.S.C. 5724 (1976) THAT THE TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT AND NOT PRIMARILY FOR THE EMPLOYEE'S BENEFIT OR AT HIS REQUEST. SEE B-167987, OCTOBER 23, 1969.

THE DEPARTMENT OF DEFENSE HAS DETERMINED BY REGULATION THAT CERTAIN MOVEMENTS ARE IN THE INTEREST OF THE GOVERNMENT. THUS, VOLUME 2 JOINT TRAVEL REGULATIONS (JTR) PARA. C 4100.2 PROVIDES:

"MOVEMENTS IN THE INTEREST OF THE GOVERNMENT. THE FOLLOWING MOVEMENTS ARE CONSIDERED TO BE IN THE INTEREST OF THE GOVERNMENT:

"4. EMPLOYEES BEING INVOLUNTARILY SEPARATED (OTHER THAN FOR PERSONAL CAUSE) WHO ARE IN OTHER THAN A TEMPORARY STATUS AND WHO OBTAIN POSITIONS ON THEIR OWN INITIATIVE (IF THE POSITION WHICH THE EMPLOYEE OBTAINS IS IN THE SAME DOD ZONE, AS DEFINED IN THE DEPARTMENT OF DEFENSE PROGRAM FOR STABILITY OF CIVILIAN EMPLOYMENT (DOD MANUAL 1400.20-1-M), OR OUTSIDE THE DOD ZONE WHERE EMPLOYED, THE MOVEMENT IS CONSIDERED TO BE IN THE INTEREST OF THE GOVERNMENT ONLY IF THE LOSING ACTIVITY CERTIFIES THAT THE EMPLOYEE HAS NEITHER DECLINED A SUITABLE OFFER WITHIN THE DOD ZONE, NOR HAS DECLINED TO ACCOMPANY HIS FUNCTION, NOR CAN BE ASSURED A SUITABLE OFFER WITHIN THE DOD ZONE. THIS EXCEPTION DOES NOT PRECLUDE THE EMPLOYING ACTIVITY FROM CONSIDERING THE MOVEMENT AS BEING IN THE INTEREST OF THE GOVERNMENT IF IT DESIRES TO DO SO IN ORDER TO OBTAIN THE SERVICE OF THE EMPLOYEE.)"

THUS, THE DEPARTMENT OF DEFENSE HAS ESTABLISHED A POLICY WHEREBY TRANSFERS INITIATED BY THE EMPLOYEE AFTER RECEIPT OF A NOTICE OF AN IMPENDING REDUCTION-IN-FORCE MAY BE CONSIDERED IN THE INTEREST OF THE GOVERNMENT ONLY IF THE LOSING ACTIVITY CERTIFIES THAT THE EMPLOYEE HAS NEITHER DECLINED A SUITABLE OFFER WITHIN THE DOD ZONE, NOR CAN BE ASSURED A SUITABLE OFFER WITHIN THE DOD ZONE.

THE RECORD BEFORE US DOES NOT CONTAIN THE REQUISITE CERTIFICATION BY THE AIR FORCE. RATHER, IN A LETTER DATED MAY 16, 1979, FROM HEADQUARTERS 1607TH AIR BASE SQUADRON, RICHARDS-GEBAUR AIR FORCE BASE, MS. WENDEL WAS ADVISED THAT SHE WAS NOT ELIGIBLE FOR A MOVE AT AIR FORCE EXPENSE SINCE SHE HAD DECLINED A SUITABLE OFFER AT THAT PLACE.

THE AIR FORCE'S REFUSAL TO MAKE THE NECESSARY CERTIFICATION, AND THE ACQUIRING AGENCY'S REFUSAL TO AUTHORIZE RELOCATION EXPENSES ARE TANTAMOUNT TO A DETERMINATION BY EACH AGENCY THAT MS. WENDEL'S TRANSFER WAS NOT IN THE INTEREST OF THE GOVERNMENT. SUCH DETERMINATIONS WILL NOT BE OVERTURNED BY THIS OFFICE, IN THE ABSENCE OF A SHOWING THAT IT WAS ARBITRARY OR CAPRICIOUS. FERDINANDO D'ALAURO, B-173873.192, DECEMBER 21, 1976. ON THE BASIS OF THE RECORD BEFORE US, WE BELIEVE THAT THE DETERMINATION THAT THE TRANSFER WAS NOT IN THE GOVERNMENT'S INTEREST WAS WITHIN EACH AGENCY'S DISCRETION. ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.