B-237836, May 2, 1990

B-237836: May 2, 1990

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Married to another employee who was transferred to the same new duty station. Fox was transferred by the Department of the Interior from Norris. Was listed on his travel authorization as his spouse for reimbursement purposes. Fox was not issued a separate travel authorization. Having been informed before she accepted the position that she was not eligible for separate relocation expenses. Fox was not issued a separate travel authorization. Contending that her transfer was a direct result of her selection for the position she accepted. Fox was transferred stated by memorandum that. Who is the authorized approving official for the agency in these matters. Fox's reassignment cannot be considered as agency directed or as a reassignment resulting from a merit staffing action since it was a lateral transfer and noncompetitive in nature.

B-237836, May 2, 1990

CIVILIAN PERSONNEL - Relocation - Purposes - Determination - Administrative discretion DIGEST: An employee, married to another employee who was transferred to the same new duty station, claims separate relocation expenses incident to her transfer. /1/ In February 1988, Mr. Frederick W. Fox was transferred by the Department of the Interior from Norris, Tennessee, to Washington, D.C. His wife, Jennifer J. Fox, also an employee of the Department, was listed on his travel authorization as his spouse for reimbursement purposes. Mr. Fox performed relocation travel in February 1988, and Mrs. Fox remained in the Norris, Tennessee, area until July 1988, when she accepted a noncompetitive lateral transfer to a position with the Department in Washington, D.C. Mrs. Fox was not issued a separate travel authorization, having been informed before she accepted the position that she was not eligible for separate relocation expenses.

Jennifer J. Fox:

Even though Mrs. Fox was not issued a separate travel authorization, she reasserted her right to separate relocation expenses, contending that her transfer was a direct result of her selection for the position she accepted, based on her qualifications and availability. She has not claimed expenses under her husband's travel authorization.

The chief of the division to which Mrs. Fox was transferred stated by memorandum that, since the position needed to be filled promptly, he offered her the lateral reassignment for the convenience of the government. However, the Assistant Director, Budget and Administration, who is the authorized approving official for the agency in these matters, stated that Mrs. Fox's reassignment cannot be considered as agency directed or as a reassignment resulting from a merit staffing action since it was a lateral transfer and noncompetitive in nature.

Section 5724(h) of title 5, United States Code, prohibits payment when a transfer is made primarily for the convenience or benefit of an employee or at the employee's request. See paragraph 2-1.3 of the Federal Travel Regulations (FTR). /2/ Agencies have broad discretion to determine whether a particular transfer is in the interest of the government or for the benefit of the employee. Dante P. Fontanella, B-184251, July 30, 1975. Where an employee's relocation involves a lateral transfer to a position of no greater promotion potential than the old position held, or where the new position reassignment did not result from competitive selection under a vacancy announcement, an agency may conclude that the transfer is primarily for the benefit of the employee and deny reimbursement. Jack C. Stoller, B-144304, Mar. 30, 1976, affirmed on reconsideration, B-144304, Oct. 4, 1977, and Sept. 19, 1979; Henry C. Miller, B-197729, Aug. 6, 1980. Where an agency acts under that authority, we do not disturb its determination unless it is arbitrary, capricious, or clearly erroneous. Marianne Poarch Meehan, B-211572, Aug. 1, 1983, and decisions cited. Cf., Mrs. Elender C. Hill, B-222905, Mar. 30, 1987. /3/

Since Mrs. Fox's reassignment involved a lateral transfer to a position which did not involve a competitive selection process under a vacancy announcement, we conclude that the agency determination denying her separate relocation benefits was not arbitrary, capricious or clearly erroneous.

Therefore, Mrs. Fox's claim for separate expenses is denied.

/1/ The request was made by Roy E. Morris, Authorized Certifying Officer, Office of Surface Mining Reclamation and Enforcement, Department of the Interior, Denver, Colorado (Reference 3110/TRV4). The claimant and her husband were both employed by that Office.

/2/ Incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1988).

/3/ The claimant relies on Roberta Shoaf, B-189189, 57 Comp.Gen. 389 (1978), but in that case the agency had determined that the employee was transferred in the interest of the government.