B-197887, AUG 7, 1980

B-197887, AUG 7, 1980

DIGEST: EMPLOYEE MAY NOT BE PAID RELOCATION EXPENSES SINCE EMPLOYING AGENCY DETERMINED THAT TRANSFER WAS PRIMARILY FOR CONVENIENCE OF EMPLOYEE RATHER THAN INTEREST OF THE GOVERNMENT. EMPLOYEE REQUESTED TRANSFER BECAUSE HE LACKED OPPORTUNITY FOR ADVANCEMENT AT FORMER DUTY STATION AND HE WANTED TO CHANGE GEOGRAPHICAL AREA.

RONALD E. SHOW - RELOCATION EXPENSES:

THE ISSUE IN THIS CASE IS WHETHER MR. SHOW'S TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT SO THAT HE MAY BE ENTITLED TO RELOCATION EXPENSES INCIDENT TO A CHANGE OF HIS PERMANENT DUTY STATION. FOR THE REASONS STATED BELOW WE HOLD THAT MR. SHOW IS NOT ENTITLED TO RELOCATION EXPENSES.

ON OCTOBER 29, 1975, THE DEFENSE SUPPLY AGENCY OFFERED MR. SHOW A POSITION AT PALMDALE, CALIFORNIA. MR. SHOW HAD REQUESTED A TRANSFER BECAUSE HE LACKED OPPORTUNITY FOR ADVANCEMENT AT HIS OWN DUTY LOCATION AND HE DESIRED TO LOCATE TO ANOTHER GEOGRAPHICAL AREA. THE AGENCY AT THAT TIME LACKED FUNDS FOR MOVING EXPENSES, AND MR. SHOW AGREED THAT HE WOULD NOT RECEIVE GOVERNMENT RELOCATION EXPENSES FOR HIS MOVE TO PALMDALE FROM SIOUX FALLS, SOUTH DAKOTA, WHERE HE WAS EMPLOYED BY THE AIR NATIONAL GUARD. THE JOB OFFER HAD TO BE RESCINDED UNTIL HIS NAME WAS PLACED ON A LIST OF ELIGIBLES FOR SELECTION FROM A CIVIL SERVICE COMMISSION REGISTER BECAUSE HE WAS SERVING UNDER AN EXCEPTED APPOINTMENT WITH THE AIR NATIONAL GUARD. AFTER HE WAS PLACED ON THE LIST OF ELIGIBLES THE AGENCY OFFERED HIM THE POSITION AGAIN, AND HE ACCEPTED WITHOUT ANY EXPRESSED INTENTION THAT HE WOULD RECEIVE RELOCATION EXPENSES. HE WAS OFFICIALLY EMPLOYED AT PALMDALE IN JUNE 1976.

MR. SHOW CLAIMED RELOCATION EXPENSES WHEN HE FOUND THAT OTHER EMPLOYEES WHO HAD TRANSFERRED TO PALMDALE HAD BEEN PAID THE EXPENSES. THE ADMINISTRATIVE REPORTS SHOW THAT HIS CLAIM WAS DENIED BECAUSE HIS TRANSFER WAS FOR THE CONVENIENCE OF THE EMPLOYEE RATHER THAN THE INTEREST OF THE GOVERNMENT. THE AGENCY HAD ASSISTED MR. SHOW IN HAVING HIS NAME PLACED ON THE CIVIL SERVICE COMMISSION REGISTER AS AN ACCOMMODATION TO HIM RATHER THAN BECAUSE OF HIS UNIQUE TALENTS. ALSO, IT WAS MR. SHOW WHO TOOK THE INITIATIVE IN THE TRANSFER BECAUSE OF HIS DESIRE TO MOVE TO CALIFORNIA. FURTHER, THE SELECTING OFFICIAL, MR. SCHERMERHORN, STATED THAT IF EVERYTHING ELSE WERE EQUAL, MR. SHOW WOULD NOT HAVE BEEN SELECTED HAD MR. SHOW'S MOVING EXPENSES BEEN A CONDITION FOR ACCEPTANCE OF EMPLOYMENT. THERE WERE OTHER APPLICANTS EQUALLY QUALIFIED. CONCERNING THE OTHER EMPLOYEES WHO RECEIVED THE EXPENSES, THE AGENCY REPORTS THAT ANNOUNCEMENTS FOR OTHER PALMDALE POSITIONS STATED THAT APPLICANTS NOT REQUIRING MOVING EXPENSES WOULD BE CONSIDERED PRIOR TO APPLICANTS NEEDING THE EXPENSES. THEREFORE, OTHER APPLICANTS SELECTED THROUGH THESE ANNOUNCEMENTS COULD RECEIVE RELOCATION EXPENSES UNLIKE MR. SHOW, WHO HAD AGREED THAT HE WOULD NOT BE PAID.

RELOCATION EXPENSES MAY NOT BE ALLOWED UNDER 5 U.S.C. SECS. 5724 AND 5724A IF THE TRANSFER IS FOR THE CONVENIENCE OF THE EMPLOYEE RATHER THAN THE INTEREST OF THE GOVERNMENT. SEE 5 U.S.C. SEC. 5724(H). THE EMPLOYING AGENCY HAS DISCRETION TO MAKE THAT DETERMINATION WHEN THE EMPLOYEE REQUESTS THE TRANSFER. IN THE PRESENT CASE, THE EMPLOYING AGENCY DETERMINED THAT MR. SHOW REQUESTED RELOCATION TO PALMDALE FOR PERSONAL REASONS AND HIS CONVENIENCE. HIS WAIVER OF RELOCATION EXPENSES BECAUSE OF BUDGET RESTRAINTS HAS NO BEARING ON THE OUTCOME OF THE CASE SINCE THE AGENCY MADE A PROPER DETERMINATION THAT THE TRANSFER WAS NOT PRIMARILY IN THE INTEREST OF THE GOVERNMENT. FURTHER, THE FACT THAT OTHER EMPLOYEES HAD THEIR RELOCATION EXPENSES PAID BY THE GOVERNMENT HAS NO BEARING ON THE CLAIM. SEE ROBERT A. CAVEN, B-193666, AUGUST 20, 1979.

ACCORDINGLY, OUR CLAIMS DIVISION'S DISALLOWANCE OF SEPTEMBER 14, 1978, SETTLEMENT CERTIFICATE NO. Z-2735315, IS SUSTAINED.