B-246646, Apr 30, 1992

B-246646, Apr 30, 1992

DIGEST: An employee, notified that he would be separated from his position in a reduction-in-force (RIF), was offered and accepted a comparable position in his agency at another location. As authorized he took a househunting trip to the new location at government expense. After his return, the RIF notice was canceled and he chose to remain in his position rather than transfer. Under the circumstances of the RIF cancellation, the declined transfer and retention of position was tantamount to a cancellation of the transfer in the interest of the government, and the employee is not obligated to repay the househunting trip expenses.

James R. Anderson - Declined Transfer - Canceled Reduction-in-Force.

This decision is in response to a request /1/ concerning whether an employee, who accepted a transfer because of a reduction-in-force and took an advance househunting trip at government expense, may be relieved of his obligation to repay that expense when his reduction-in force notice was canceled and he then declined the transfer. For the reasons stated below, we conclude that the employee is not obligated to repay the househunting trip expense.

BACKGROUND

Mr. James R. Anderson, a civilian employee of the Air Force stationed at Hill Air Force Base, Utah, received a specific written notice dated February 8, 1991, stating that he would be separated from his position as a result of a reduction-in-force (RIF). He was also informed by the Civilian Personnel Office that he was not likely to be recalled to work at Hill.

On April 26, 1991, through the assistance of the Civilian Personnel Office, he received a job offer from Holloman Air Force Base, New Mexico, for a position comparable to the position occupied at Hill Air Force Base. Because of the impending termination of his employment at Hill Air Force Base, he accepted the position and signed a 1-year service agreement. Under authority of travel orders dated May 1, 1991, Mr. and Mrs. Anderson took an advance househunting trip between May 4 and May 11, 1991, at a total cost to the government of $1,966.81.

On May 13, 1991, Mr. Anderson was officially notified that the RIF notice was canceled and that he would remain in his present position. inquired at the Hill Air Force Base Personnel Office that day to determine whether he was required to transfer to Holloman Air Force Base. He was informed that he could transfer, or he could remain in his old position. However, he was also told that if he chose to remain in his old position, he would be required to repay the cost of the househunting trip and that the administrative leave granted him for the trip would be converted to annual leave and charged against his annual leave balance.

After considering this information, Mr. Anderson chose to remain in his old position. As a result, his annual leave account was charged with the 40 hours administrative leave used for the trip and recovery of the $1,966.81 cost was begun.

Mr. Anderson has appealed that action, contending that the only reason he had accepted the new position was because of the RIF. Since he had financial obligations at the old duty station, had it not been for the RIF, he would not have sought a transfer. Because of these considerations, as soon as he was given a choice, he chose to remain at Hill Air Force Base.

OPINION

Sections 5724 and 5724a of title 5, United States Code (1988), authorize reimbursement of the travel, transportation and relocation expenses of an employee transferred in the interest of the government from one official station to another for permanent duty. Allowable expenses include transportation costs incurred for one round trip to seek permanent residence quarters at the new official station when both old and new stations are located within the continental United States. 5 U.S.C. Sec. 5724a(a)(2) (1988).

As a condition to payment of the expenses of a househunting trip, 5 U.S.C. Sec. 5724(i) requires that the employee sign an agreement to remain in government service for 12 months after his transfer, unless separated for reasons beyond his control that are acceptable to the agency concerned.

In the case of a violation of the service agreement, including failure to effect the transfer, the Federal Travel Regulation (FTR) provides that any funds expended by the United States shall be recoverable from the individual. 41 C.F.R. Sec. 302-1.5(a) (1991). In this connection, FTR section 302-4.3(a) provides that an employee who accepts a transfer and after making a househunting trip to the new duty station, then declines the transfer, "is subject to the provisions of Sec. 302-1.5 concerning recovery of the amounts reimbursed for travel." We have recognized that an agency has authority to determine that the service agreement required by 5 U.S.C. Sec. 5724(i) was not violated if the reason for not transferring was beyond the employee's control and acceptable to the agency concerned. /2/ Generally when a transfer has been canceled by the concerned agency and relocation expenses would have been reimbursable had the transfer been effected, an employee may be reimbursed for expenses incurred in anticipation of the transfer and prior to its cancellation. See Orville H. Myers, et al., 57 Comp.Gen. 447 (1978); Dwight L. Crumpacker, B-187405, Mar. 22, 1977; and B-177439, Feb. 1, 1973. If the employee's duty station did not change as a result of the canceled transfer, then we have allowed reimbursement as if the transfer had been completed and the employee had been retransferred to his former duty station. Myers, supra; and, Crumpacker, supra. See also Thomas L. Briggs, B-192469, Apr. 4, 1979. However, when a cancellation is the result of the employee's personal reasons and not for any official reason, the government is not liable for the expenses incurred. Sandra A. Cossu, B-193969, June 5, 1980.

We have not had any decisions on the question of liability when the canceled transfer results from the cancellation of a RIF at the old duty station.

In the present case, Mr. Anderson states that he would not have accepted a job at Holloman nor taken a househunting trip if he had not received specific notice that he would be "RIFFed" and been advised that another job at Hill AFB was unlikely. But for the RIF, he would have remained at Hill. When he took the househunting trip, he had no way of knowing that the RIF would be canceled.

We considered a similar situation in decision B-175489, April 27, 1972. There, the employee was officially notified of a transfer of function from Kansas City to Denver. He consented to the transfer and, pursuant to travel orders, took an authorized househunting trip to Denver. Subsequently, his agency offered him another position in Kansas City which he accepted, and he declined the transfer to Denver. We held that, since the new position in Kansas City was in the same agency, "the acceptance thereof was tantamount to a different position assignment and cancellation of the transfer to Denver in the interest of the Government." Thus, we concluded that the expenses of the househunting trip were reimbursable to the extent allowable under the regulations.

Likewise, in B. Lee Charlton, B-189953, Nov. 23, 1977, where the employee sought reimbursement for a househunting trip in connection with a transfer which was later canceled, we held that, if the employee's duty station has not changed as a result of the canceled transfer, the employee is treated as if the transfer had been completed and he has been retransferred to his former duty station. See also William B. Storch, B-226282, July 20, 1987.

We believe that Mr. Anderson should also be treated as if the transfer had been completed and he had been retransferred to Hill Air Force Base. The record shows that, but for the reduction-in-force at Hill, he would not have accepted the job offer at Holloman Air Force Base and that he acted in good faith in taking the househunting trip based on his travel orders. When the reduction-in-force was canceled, and he was offered his old job back, his acceptance thereof was "tantamount to a different position assignment and cancellation of the transfer to Holloman in the interest of the Government," as in B-175489, supra.

Based on these facts and circumstances, and assuming that he has met the 12-month service obligation, we hold that Mr. Anderson has no obligation to repay the amount of the househunting trip expenses to the government and that his annual leave account may not be charged for the 40 hours of administrative leave used during the trip.

/1/ Major M.G. Hilliard, USAF, Deputy Director, Directorate of Settlement and Adjudication, Defense Finance and Accounting Service, Denver, Colorado.

/2/ Murrel C. Hoage, 63 Comp.Gen. 187 (1984).