B-210192, MAY 31, 1983

B-210192: May 31, 1983

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DIGEST: A TRANSFERRED EMPLOYEE'S ENTITLEMENT TO RELOCATION EXPENSES DEPENDS UPON A DETERMINATION THAT THE TRANSFER IS NOT PRIMARILY FOR CONVENIENCE OR BENEFIT OF EMPLOYEE AND THE COMPTROLLER GENERAL WILL NOT DISTURB AN AGENCY DETERMINATION UNLESS IT IS CLEARLY ERRONEOUS. IS SUSTAINED WHERE THE AGENCY'S DETERMINATION THAT TRANSFER WAS FOR THE EMPLOYEE'S OWN CONVENIENCE WAS BASED ON THE FACT THAT THE EMPLOYEE VOLUNTARILY TRANSFERRED TO ACCEPT POSITION WITH LOWER GRADE WITH NO GREATER POTENTIAL FOR PROMOTION. THE FACT THAT HE WAS COMPETITIVELY SELECTED FOR THE POSITION IS NOT A BASIS TO OVERTURN AGENCY DETERMINATION. THE DENIAL IS SUSTAINED. JACKSON WAS EMPLOYED BY THE INTERNAL REVENUE SERVICE IN LOS ANGELES AS A GS-11 CRIMINAL INVESTIGATOR.

B-210192, MAY 31, 1983

DIGEST: A TRANSFERRED EMPLOYEE'S ENTITLEMENT TO RELOCATION EXPENSES DEPENDS UPON A DETERMINATION THAT THE TRANSFER IS NOT PRIMARILY FOR CONVENIENCE OR BENEFIT OF EMPLOYEE AND THE COMPTROLLER GENERAL WILL NOT DISTURB AN AGENCY DETERMINATION UNLESS IT IS CLEARLY ERRONEOUS, ARBITRARY, OR CAPRICIOUS. THUS, AN AGENCY DETERMINATION TO DENY RELOCATION EXPENSES TO AN EMPLOYEE WHO TRANSFERRED FROM LOS ANGELES, CALIFORNIA, TO SALT LAKE CITY, UTAH, IS SUSTAINED WHERE THE AGENCY'S DETERMINATION THAT TRANSFER WAS FOR THE EMPLOYEE'S OWN CONVENIENCE WAS BASED ON THE FACT THAT THE EMPLOYEE VOLUNTARILY TRANSFERRED TO ACCEPT POSITION WITH LOWER GRADE WITH NO GREATER POTENTIAL FOR PROMOTION. THE FACT THAT HE WAS COMPETITIVELY SELECTED FOR THE POSITION IS NOT A BASIS TO OVERTURN AGENCY DETERMINATION.

CURTIS E. JACKSON:

MR. CURTIS E. JACKSON REQUESTS RECONSIDERATION OF OUR CLAIMS GROUP'S DECEMBER 8, 1981 DENIAL OF HIS CLAIM FOR REIMBURSEMENT OF RELOCATION EXPENSES INCURRED INCIDENT TO HIS TRANSFER FROM LOS ANGELES, CALIFORNIA, TO SALT LAKE CITY, UTAH. THE DENIAL IS SUSTAINED.

MR. JACKSON WAS EMPLOYED BY THE INTERNAL REVENUE SERVICE IN LOS ANGELES AS A GS-11 CRIMINAL INVESTIGATOR. EFFECTIVE JULY 17, 1979, HE WAS REASSIGNED TO A POSITION AS A GS-9 REVENUE OFFICER IN SALT LAKE CITY, UTAH. HE HAD EXPRESSED AN INTEREST IN RELOCATING IN THE UTAH AREA AND RECEIVED ADVANCE NOTICE OF AN IMPENDING VACANCY AT THE SALT LAKE CITY DISTRICT OFFICE. HE APPLIED FOR THE POSITION TO WHICH HE WAS REASSIGNED BEFORE A VACANCY ANNOUNCEMENT WAS ISSUED AND WAS SELECTED COMPETITIVELY WHEN THE POSITION WAS ANNOUNCED. HE ACCEPTED THE POSITION WITH THE UNDERSTANDING AND KNOWLEDGE THAT HE WOULD HAVE TO PAY HIS RELOCATION EXPENSES.

OUR CLAIMS GROUP DENIED THE CLAIM ON THE GROUNDS THAT MR. JACKSON'S TRANSFER WAS A VOLUNTARY REDUCTION IN GRADE TO A NEW POSITION WITH NO GREATER PROMOTION POTENTIAL THAN HIS FORMER POSITION AND CONSEQUENTLY THE TRANSFER WAS OUTSIDE THE MERIT PROMOTION PROGRAM AND FOR HIS BENEFIT RATHER THAN IN THE INTEREST OF THE GOVERNMENT.

IN HIS APPEAL, MR. JACKSON CONTENDS THAT HE AGREED TO PAY HIS RELOCATION EXPENSES BECAUSE HE UNDERSTOOD IT WAS A REQUIREMENT TO INSURE HIS GETTING THE NEW POSITION. HE SUGGESTS THAT THE JOB ANNOUNCEMENT CONTAINED NO STATEMENT CONCERNING MOVING EXPENSES AND THAT AN EMPLOYEE SELECTED ON A COMPETITIVE ANNOUNCEMENT SHOULD NOT BE DENIED THESE EXPENSES.

AS A GENERAL RULE, THERE IS NO AUTOMATIC ENTITLEMENT TO REIMBURSEMENT OF TRAVEL AND RELOCATION EXPENSES UPON AN EMPLOYEE'S CHANGE OF STATION. INSTEAD REIMBURSEMENT OF SUCH EXPENSES UNDER 5 U.S.C. SECS. 5724 AND 5724A IS CONDITIONED UPON A DETERMINATION BY THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE THAT THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT AND IS NOT PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE. MATTER OF TOM, B-206011, MAY 3, 1982.

THE COMMISSIONER OF INTERNAL REVENUE SERVICE HAS DELEGATED THE AUTHORITY TO DETERMINE WHETHER A MOVE IS IN THE BEST INTEREST OF THE GOVERNMENT AND IS NOT PRIMARILY FOR THE BENEFIT OF THE EMPLOYEE TO HEADS OF OFFICES, INCLUDING THE DISTRICT DIRECTOR AT SALT LAKE CITY. SINCE MR. JACKSON APPLIED FOR AND ACCEPTED A DEMOTION TO A POSITION WITH NO PROMOTIONAL POTENTIAL BEYOND THE GS-9 LEVEL TO TRANSFER TO UTAH, THE DISTRICT DIRECTOR, WITHIN HIS AUTHORITY, DETERMINED THAT THE MOVE WAS FOR THE EMPLOYEE'S BENEFIT.

HERE, THE RECORD SUPPORTS THE ADMINISTRATIVE DETERMINATION BY THE DESIGNEE OF THE AGENCY HEAD THAT MR. JACKSON'S TRANSFER WAS FOR HIS BENEFIT AND CONVENIENCE AND NOT THE INTEREST OF THE GOVERNMENT. THUS, WE ARE BOUND TO ABIDE BY SUCH A DETERMINTION SINCE WE WILL NOT OVERTURN AN AGENCY'S DETERMINATION IN THE ABSENCE OF A SHOWING THAT THE DETERMINATION WAS CLEARLY ERRONEOUS, ARBITRARY, OR CAPRICIOUS. MATTER OF GIRARD, B-199943, AUGUST 4, 1981, AND CASES CITED THEREIN.

IN MR. JACKSON'S CASE THE FACT THAT THE POSITION TO WHICH HE TRANSFERRED WAS ONE FILLED BY COMPETITIVE SELECTION DOES NOT PROVIDE A BASIS FOR US TO OVERTURN THE AGENCY'S DETERMINATION THAT THE TRANSFER WAS PRIMARILY FOR HIS BENEFIT. EVEN THOUGH WE HAVE CONSIDERED TRANSFERS RESULTING FROM COMPETITIVE SELECTION PURSUANT TO MERIT PROMOTION ANNOUNCEMENTS TO BE IN THE BEST INTEREST OF THE GOVERNMENT IN THE ABSENCE OF AN AGENCY POLICY TO THE CONTRARY, WE HAVE CONSISTENTLY RECOGNIZED THAT THIS IS NOT THE CASE WITH RESPECT TO TRANSFERS TO LOWER GRADE POSITIONS OR TO LATERAL TRANSFERS BETWEEN POSITIONS AT THE SAME GRADE WITHOUT GREATER KNOWN PROMOTION POTENTIAL. SEE MATTER OF HERTZKE, B-205958, JULY 13, 1982; MATTER OF GIRARD, B-199943, AUGUST 4, 1981; COMPARE MATTER OF PLATT - RECONSIDERATION, 61 COMP.GEN. 156 (1981).

ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS GROUP IS SUSTAINED.