B-210739, JUN 7, 1983

B-210739, JUN 7, 1983

DIGEST: EMPLOYEE WHO TRANSFERRED TO A POSITION HAVING THE SAME TITLE, GRADE, AND PROMOTION POTENTIAL IS NOT ENTITLED TO MOVING EXPENSES SINCE THE EMPLOYING AGENCY PROPERLY DETERMINED THAT HE TRANSFERRED FOR HIS OWN BENEFIT AND NOT IN THE INTEREST OF THE GOVERNMENT.

JAMES C. JACKSON, JR.:

THIS ACTION IS IN RESPONSE TO THE REQUEST OF AN AUTHORIZED CERTIFYING OFFICER OF THE INTERNAL REVENUE SERVICE, SOUTHEAST REGION, FOR AN ADVANCE DECISION AS TO WHETHER AN EMPLOYEE'S CLAIM FOR RELOCATION EXPENSES MAY BE PAID. WE CONCLUDE THAT THE CLAIM IS NOT PAYABLE BECAUSE THE EXPENSES WERE INCURRED IN CONNECTION WITH A TRANSFER WHICH THE AGENCY HAS PROPERLY DETERMINED WAS PRIMARILY FOR THE BENEFIT OF THE EMPLOYEE.

THE EMPLOYEE, MR. JAMES C. JACKSON, JR., WAS EMPLOYED AS A GRADE GS 7, REVENUE AGENT, IN DALLAS, TEXAS, WHEN IN AUGUST 1980 HE REQUESTED A TRANSFER TO THE JACKSON (MISSISSIPPI) DISTRICT OFFICE IN THE SAME POSITION. SUBSEQUENTLY, A VACANCY ANNOUNCEMENT WAS POSTED FOR A GRADE GS- 5/7/9 REVENUE AGENT IN THE JACKSON DISTRICT. SINCE HIS INITIAL REQUEST HAD NOT YET BEEN PROCESSED, MR. JACKSON APPLIED AND WAS COMPETITIVELY SELECTED FOR THE ANNOUNCED POSITION AT GRADE GS-7. ALTHOUGH RELOCATION EXPENSES WERE NOT AUTHORIZED FOR HIS TRANSFER, HE ACCEPTED THE POSITION AND REPORTED FOR DUTY AT THE NEW POST ON FEBRUARY 1, 1981.

MR. JACKSON NOW BELIEVES HE IS ENTITLED TO PAYMENT ON THE BASIS OF THE DECISIONS OF THE COMPTROLLER GENERAL IN MATTER OF PLATT, 59 COMP.GEN. 699 (1980), AND RECONSIDERATION OF PLATT, 61 COMP.GEN. 156 (1981).

IN OUR DECISION, MATTER OF PLATT, 59 COMP.GEN. 699 (1980), AN AGENCY HAD POSTED AN OFFICIAL VACANCY ANNOUNCEMENT FOR A POSITION TO BE FILLED UNDER ITS MERIT PROMOTION PROGRAM. THE EMPLOYEE APPLIED AND WAS SELECTED FOR THE POSITION, BUT THE AGENCY DENIED RELOCATION EXPENSES ON SEVERAL BASES, ONE OF WHICH WAS ITS DETERMINATION THAT SINCE THE EMPLOYEE APPLIED FOR THE POSITION, THE TRANSFER WAS FOR HIS CONVENIENCE AND, THEREFORE, NOT IN THE INTEREST OF THE GOVERNMENT. WE FOUND THAT THE FACT THAT AN EMPLOYEE REQUESTS A POSITION AS A RESULT OF SUCH AN ANNOUNCEMENT IS NOT A PROPER BASIS TO CONCLUDE THAT THE TRANSFER IS AT THE REQUEST OF, OR PRIMARILY FOR THE CONVENIENCE OF, THE EMPLOYEE.

MR. JACKSON CONTENDS THAT HE SHOULD BE REIMBURSED FOR MOVING EXPENSES BECAUSE HE WAS COMPETITIVELY SELECTED FOR THE POSITION TO WHICH HE TRANSFERRED. HE ALSO MAINTAINS THAT HIS TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT SINCE HE HAD EXPERIENCE IN THE POSITION WHEREAS THE OTHER APPLICANTS WHO WERE CONSIDERED DID NOT.

THE REGIONAL DISTRICT DIRECTOR (INTERNAL REVENUE SERVICE) DETERMINED ON THE BASIS OF MATTER OF TOM, B-206011, MAY 3, 1982, THAT MR. JACKSON WAS NOT ENTITLED TO MOVING EXPENSES BECAUSE THEY WERE INCURRED IN CONNECTION WITH A LATERAL TRANSFER TO A POSITION HAVING NO GREATER PROMOTION POTENTIAL THAN HIS POSITION IN DALLAS, AND BECAUSE MR. JACKSON HAD REQUESTED THE TRANSFER FOR PERSONAL REASONS.

REIMBURSEMENT OF TRAVEL AND RELOCATION EXPENSES UPON AN EMPLOYEE'S CHANGE OF STATION UNDER 5 U.S.C. SECS. 5724 AND 5724A (1976) IS CONDITIONED UPON A DETERMINATION BY THE HEAD OF THE AGENCY CONCERNED OR BY THE DESIGNATED OFFICIAL THAT THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT AND IS NOT PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE, OR AT HIS REQUEST. FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973) (IN EFFECT AT THE TIME OF THE CONCERNED TRAVEL AND RELOCATION), PARAGRAPH 2-1.3.

IN RECOGNITION OF THE AUTHORITY OF THE EMPLOYING AGENCY TO DETERMINE WHETHER A TRANSFER IS IN THE INTEREST OF THE GOVERNMENT OR PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE, OR AT HIS REQUEST, WE WILL NOT OVERTURN THE AGENCY'S DETERMINATION UNLESS IT IS ARBITRARY, CAPRICIOUS, OR CLEARLY ERRONEOUS UNDER THE FACTS OF THE CASE. MATTER OF HERTZKE, B-205958, JULY 13, 1982, AND CASES CITED THEREIN.

IN THIS CASE, WE CONCUR IN THE DETERMINATION OF THE DISTRICT DIRECTOR THAT MR. JACKSON IS NOT ENTITLED TO RELOCATION EXPENSES UNDER THE FACTS AS PRESENTED. ALTHOUGH MR. JACKSON RESPONDED TO A VACANCY ANNOUNCEMENT AND WAS COMPETITIVELY SELECTED FOR THE POSITION AS IN PLATT, THAT CASE INVOLVED A PROMOTION, WHEREAS IN THIS CASE THE REASSIGNMENT DID NOT REPRESENT A PROMOTION, BUT A LATERAL TRANSFER TO A POSITION HAVING NO GREATER PROMOTION POTENTIAL THAN HIS FORMER POSITION.

IN CASES SUCH AS THIS WHERE AN EMPLOYEE'S TRANSFER DID NOT REPRESENT A PROMOTION BUT WAS A LATERAL TRANSFER TO A POSITION HAVING NO GREATER PROMOTION POTENTIAL, WE HAVE SUSTAINED THE AGENCY'S DETERMINATION THAT THE TRANSFER WAS FOR THE EMPLOYEE'S CONVENIENCE AND NOT IN THE INTEREST OF THE GOVERNMENT. SEE MATTER OF PLATT, (1980), AT 701, AND CASES CITED THEREIN; MATTER OF GIRARD, B-199943, AUGUST 4, 1981; AND MATTER OF TOM, B-206011, MAY 3, 1982.

THUS, UNDER THE CIRCUMSTANCES OF THIS CASE, THE HOLDINGS IN PLATT AND IN PLATT RECONSIDERATION (1981) DO NOT APPLY. ACCORDINGLY, PAYMENT TO MR. JACKSON OF TRAVEL AND RELOCATION EXPENSES IN CONNECTION WITH THE SUBJECT TRANSFER MUST BE DENIED.