B-147375, NOVEMBER 29, 1961, 41 COMP. GEN. 371

B-147375, NOVEMBER 29, 1961, 41 COMP. GEN. 371

TRAVEL EXPENSES - FIRST DUTY STATION - OATH EFFECT THE TAKING OF AN OATH BY A GOVERNMENT EMPLOYEE WHO, PRIOR TO REPORTING TO HIS FIRST DUTY STATION, IS ASSIGNED FOR A PERIOD OF TRAINING AT ANOTHER PLACE DOES NOT RELIEVE THE EMPLOYEE OF THE OBLIGATION FOR TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO REPORTING TO THE FIRST DUTY STATION AND A REASSIGNMENT WHILE THE EMPLOYEE IS IN TRAINING TO ANOTHER FIRST DUTY STATION AT HIS REQUEST IS A TRANSFER FOR THE CONVENIENCE OF THE EMPLOYEE WITHIN THE MEANING OF SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-1, WHICH PRECLUDES PAYMENT BY THE GOVERNMENT OF TRAVEL AND TRANSPORTATION EXPENSES IN CASES OF TRANSFERS FOR THE CONVENIENCE OF THE EMPLOYEE AND, THEREFORE, THE EMPLOYEE MAY NOT BE REIMBURSED FOR EXPENSES OF REPORTING TO THE REASSIGNED FIRST DUTY STATION.

TO CLEMENT L. MCEACHERN, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, NOVEMBER 29, 1961:

YOUR LETTER OF SEPTEMBER 26, 1961, REQUESTS REVIEW OF OUR OFFICE SETTLEMENT OF SEPTEMBER 22, 1961, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR THE TRANSFER OF YOUR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM FOUNTAIN INN, SOUTH CAROLINA, TO JACKSON, MISSISSIPPI, SUBSEQUENT STORAGE THEREOF, AND ADDITIONAL CHARGES FOR TRANSPORTATION FROM JACKSON, MISSISSIPPI, TO CHARLOTTE, NORTH CAROLINA.

THE FACTS IN THE RECORD ARE AS FOLLOWS: UPON LEAVING YOUR PRIVATE PRACTICE OF LAW, YOU WERE APPOINTED AS A HEARING EXAMINER BY THE SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, ON JULY 25, 1958, AND WERE SWORN IN AT GREENVILLE, SOUTH CAROLINA, ON THAT DATE. BIRMINGHAM, ALABAMA, WAS NAED AS YOUR FIRST DUTY STATION. YOU WERE SENT TO WASHINGTON, .C., FOR A PERIOD OF TRAINING AND ORIENTATION PRIOR TO YOUR ENTRANCE ON DUTY AT YOUR FIRST DUTY STATION. THE ADMINISTRATIVE OFFICE HAS REPORTED THAT WHILE YOU WERE IN TRAINING AT WASHINGTON, AND BEFORE YOU HAD PHYSICALLY REPORTED FOR DUTY AT BIRMINGHAM, YOU WERE REASSIGNED TO JACKSON, MISSISSIPPI, AS YOU HAD VERBALLY REQUESTED THAT YOU BE ASSIGNED TO THAT POST RATHER THAN TO BIRMINGHAM. THE EFFECTIVE DATE OF THE REASSIGNMENT FROM BIRMINGHAM TO JACKSON WAS AUGUST 10, 1958.

THE ADMINISTRATIVE OFFICE HAS REPORTED FURTHER THAT:

AT THE TIME OF HIS REASSIGNMENT TO JACKSON, MISSISSIPPI, MR. MCEACHERN HAD MADE IT CLEAR TO THIS OFFICE THAT HE WOULD LIKE TO BE CONSIDERED FOR ANY VACANCY THAT MIGHT OCCUR IN THE FUTURE IN EITHER NORTH CAROLINA OR SOUTH CAROLINA. A FEW MONTHS LATER A VACANCY DID OCCUR IN CHARLOTTE, NORTH CAROLINA. AS POINTED OUT IN MR. SIEGEL'S MEMORANDUM TO MR. MCEACHERN OF JUNE 26, 1961, I WROTE TO MR. MCEACHERN ON DECEMBER 30, 1958, IN MY FORMER CAPACITY OF ADMINISTRATIVE OFFICER OF THE OFFICE OF APPEALS COUNCIL (NOW THE OFFICE OF HEARINGS AND APPEALS) AND IN PART STATED," AS PREVIOUSLY UNDERSTOOD VERBALLY, NO TRAVEL EXPENSES OR TRANSPORTATION EXPENSES FOR HOUSEHOLD GOODS OR DEPENDENTS WILL BE AUTHORIZED TO YOU IN CONNECTION WITH THIS TRANSFER.' A TYPED COPY OF THIS ENTIRE MEMORANDUM IS ATTACHED. THIS IS, OF COURSE, CLEARLY IN LINE WITH STANDARD GOVERNMENT TRAVEL REGULATIONS IN THAT PAYMENT OF SUCH EXPENSES SHALL BE MADE ONLY WHERE THE CHANGE OF STATION IS CLEARLY TO THE ADVANTAGE OF THE GOVERNMENT AND NOT PRIMARILY AT THE REQUEST OF OR CONVENIENCE OF THE EMPLOYEE.

YOUR CLAIM WAS DENIED IN OUR OFFICE SETTLEMENT OF SEPTEMBER 22, 1961, ON THE GROUNDS THAT FIRST, IT IS A RULE OF LONG STANDING THAT AN EMPLOYEE MUST BEAR THE EXPENSE OF REPORTING TO HIS FIRST DUTY STATION WHERE HIS COMPENSATION IS FIXED BY LAW OR REGULATION (HERE, JACKSON, MISSISSIPPI), AND SECONDLY, THAT YOUR SUBSEQUENT REASSIGNMENT TO CHARLOTTE, NORTH CAROLINA, WAS MADE AT YOUR OWN REQUEST, AND NOT FOR THE CONVENIENCE OF THE GOVERNMENT FOR WHICH THE UNITED STATES WOULD BE OBLIGATED TO REIMBURSE YOU.

YOU URGE RECONSIDERATION OF YOUR CLAIM ON THE GROUNDS THAT THE RULE THAT AN EMPLOYEE MUST BEAR THE EXPENSE OF REPORTING TO HIS FIRST DUTY STATION APPLIES ONLY BEFORE THE EMPLOYEE IS SWORN IN, AND THAT, WHEN AN EMPLOYEE IS SWORN IN AND IS ON THE PAYROLL HE IS SUBJECT TO THE CONTROL OF HIS SUPERVISORS, AND EVERY MOVE HE MAKES IS SUBJECT TO THE CONTROL OF HIS SUPERVISORS, AND THUS, NO MOVE IS MADE EXCEPT AT THE CONVENIENCE OF THE GOVERNMENT.

THE REASON FOR THE RULE THAT AN EMPLOYEE WHOSE COMPENSATION IS FIXED BY LAW OR REGULATION MUST, UPON APPOINTMENT TO AN OFFICE OR POSITION IN THE SERVICE OF THE UNITED STATES, BEAR THE EXPENSE OF REPORTING TO HIS FIRST DUTY STATION IS THAT "* * * THE PLACING OF ONESELF AT THE STATION WHERE HIS WORK REQUIRES HIM TO BE IS ONE OF THE BURDENS OF QUALIFYING FOR EMPLOYMENT, AND THAT TO SHIFT SUCH EXPENSE TO THE UNITED STATES WOULD RESULT IN THE PAYMENT OF ADDITIONAL COMPENSATION NOT ALLOWED BY LAW * * *.' 22 COMP. GEN. 869, 871. THE FACT THAT YOU TOOK THE OATH OF OFFICE PRIOR TO YOUR REPORTING TO YOUR FIRST DUTY STATION DOES NOT RELIEVE YOU FROM THE OBLIGATION OF REPORTING TO YOUR FIRST DUTY STATION AT YOUR OWN EXPENSE. FURTHERMORE, IT IS WELL ESTABLISHED THAT THE RULE "IS NOT CHANGED BY THE FACT THAT AN EMPLOYEE IS REQUIRED TO COME TO WASHINGTON, OR TO REMAIN TEMPORARILY IN WASHINGTON AFTER APPOINTMENT HERE, OR TO REPORT TO HEADQUARTERS ELSEWHERE, FOR SPECIAL INSTRUCTIONS OR TRAINING BEFORE PROCEEDING TO A FIELD STATION TO PERFORM THE DUTIES FOR WHICH HE WAS APPOINTED. 9 COMP. GEN. 359; 10 ID. 184; 11 ID. 56; 20 ID. 820.' COMP. GEN. 537, 538.

THE RIGHT TO REIMBURSEMENT FOR EXPENSES INCURRED UPON TRANSFER OF STATION IS GOVERNED BY SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 806, AS AMENDED, 5 U.S.C. 73B-1, WHICH READS IN PERTINENT PART AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, ANY CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO, IN THE INTEREST OF THE GOVERNMENT, IS TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER * * * SHALL, EXCEPT AS OTHERWISE PROVIDED HEREIN, WHEN AUTHORIZED OR APPROVED BY SUCH SUBORDINATE OFFICIAL OR OFFICIALS OF THE DEPARTMENT CONCERNED AS THE HEAD THEREOF MAY DESIGNATE FOR THE PURPOSE, BE ALLOWED AND PAID FROM GOVERNMENT FUNDS THE EXPENSES OF TRAVEL OF HIMSELF AND THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY (OR A COMMUTATION THEREOF IN ACCORDANCE WITH SECTION 73A OF THIS TITLE) AND THE EXPENSES OF TRANSPORTATION, PACKING, CRATING, TEMPORARY STORAGE, DRAYAGE, AND UNPACKING OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS * * *: PROVIDED FURTHER, THAT NO PART OF SUCH EXPENSES (INCLUDING THOSE OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, DEPARTMENT OF STATE) SHALL BE ALLOWED OR PAID FROM GOVERNMENT FUNDS WHERE THE TRANSFER IS MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE OFFICER OR EMPLOYEE OR AT HIS REQUEST * * *. ( ITALICS SUPPLIED.)

THE ADMINISTRATIVE OFFICE CONSIDERED YOUR TRANSFER FROM JACKSON TO CHARLOTTE AS BEING MADE AT YOUR REQUEST AND, THEREFORE, PRIMARILY FOR YOUR CONVENIENCE.

AS STATED IN UNPUBLISHED DECISION, B-143845, JULY 26, 1961:

THERE IS NO MANDATORY RIGHT UNDER THE LAW TO PAYMENT OF TRAVEL EXPENSES INCURRED INCIDENT TO TRANSFER FROM ONE OFFICIAL STATION TO ANOTHER. THE FACT THAT A TRANSFER MAY BE IN THE INTEREST OF THE GOVERNMENT, IN ITSELF, DOES NOT CONFER UPON THE EMPLOYEE THE RIGHT TO RECEIVE PAYMENT OF TRAVEL EXPENSES BECAUSE THE LAW SPECIFIES OTHER PREREQUISITE FACTORS, TO WIT, (1) ADMINISTRATIVE APPROVAL, AND (2) THAT THE TRANSFER BE ONE WHICH WAS NOT REQUESTED BY THE EMPLOYEE.

* * * THE LAW DOES NOT SPECIFY FACTORS WHICH RENDER THE TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER "IN THE INTEREST OF THE GOVERNMENT" NOR DOES IT SPECIFY FACTORS WHICH COMPREHEND "PERSONAL CONVENIENCE," EXCEPT WHEN THE TRANSFER IS REQUESTED BY THE EMPLOYEE. THEREFORE, IT IS WITHIN THE DISCRETION OF THE AGENCY TO DETERMINE IN ANY GIVEN CASE WHETHER A TRANSFER IS IN THE INTEREST OF THE GOVERNMENT OR FOR THE CONVENIENCE OF THE EMPLOYEE. IF AN EMPLOYEE HAS TAKEN THE INITIATIVE IN OBTAINING A TRANSFER TO A POSITION IN ANOTHER LOCATION, AN AGENCY USUALLY DETERMINES THAT THE TRANSFER IS MADE FOR THE CONVENIENCE OF THE EMPLOYEE USUALLY DETERMINES THAT THE TRANSFER IS MADE FOR THE CONVENIENCE OF THE EMPLOYEE OR AT HIS REQUEST, WHEREAS, IF THE AGENCY RECRUITS OR REQUESTS AN EMPLOYEE TO TRANSFER TO A DIFFERENT LOCATION IT WILL REGARD SUCH TRANSFER AS BEING IN THE INTEREST OF THE GOVERNMENT.'

SINCE JACKSON WAS YOUR FIRST DUTY STATION, AND THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT YOUR REASSIGNMENT FROM JACKSON TO CHARLOTTE WAS FOR YOUR CONVENIENCE, OUR SETTLEMENT DISALLOWING YOUR CLAIM IS HEREBY SUSTAINED.

IN REGARD TO THE POINT RAISED BY YOU CONCERNING THE STATEMENT ON THE STANDARD FORM NO. 50 COVERING YOUR TRANSFER FROM BIRMINGHAM TO JACKSON THAT " THIS CHANGE IS FOR THE GOOD OF THE SERVICE AND IS NOT MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST," THE ADMINISTRATIVE OFFICE HAS REPORTED THAT:

YOU WILL NOTE THAT STANDARD FORM 50, COVERING THE TRANSFER FROM BIRMINGHAM, ALABAMA, TO JACKSON, MISSISSIPPI, EFFECTIVE AUGUST 10, 1958, STATED IN ITEM 19 " THIS CHANGE IS FOR THE GOOD OF THE SERVICE AND IS NOT MADE PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST.' AS STATED IN MR. SIEGEL'S MEMORANDUM TO MR. MCEACHERN OF JUNE 26, 1961, THIS WAS THE RESULT OF A CLERICAL ERROR. THERE WAS NO ADMINISTRATIVE INTENT THAT THIS STATEMENT SHOULD APPEAR ON STANDARD FORM 50. A PHOTOCOPY OF STANDARD FORM 52, DATED JULY 29, 1958, REQUESTING THE REASSIGNMENT FROM BIRMINGHAM TO JACKSON IS ATTACHED. YOU WILL NOTE THAT NO REQUEST FOR TRAVEL AUTHORITY APPEARED THEREON AND THAT THE ADMINISTRATIVE INTENT IS CLEAR THAT NO TRAVEL AUTHORITY WAS TO BE GRANTED. FURTHER, NO TRAVEL ORDER WAS ISSUED.