B-172751, AUG 16, 1971

B-172751, AUG 16, 1971

CIVILIAN EMPLOYEE - TRANSPORTATION AGREEMENT INCIDENT TO TRANSFER - INVOLUNTARY SEPARATION DECISION LEAVING FOR ADMINISTRATIVE DETERMINATION THE QUESTION AS TO WHETHER ORVILLE S. NORDVOLD, A FORMER EMPLOYEE OF THE CONSUMER AND MARKETING SERVICE, MAY BE GRANTED A WAIVER OF HIS INDEBTEDNESS FOR RELOCATION EXPENSES. THE TRANSPORTATION AGREEMENT CONTAINED THE INVOLUNTARY SEPARATION CLAUSE WHICH HAS RECENTLY BEEN INTERPRETED BY THE COURTS AND THE CIVIL SERVICE COMMISSION TO INCLUDE THE SITUATION WHERE AN EMPLOYEE IS TERMINATED FOLLOWING HIS REFUSAL TO ACCEPT A TRANSFER TO A NEW COMMUTING AREA. THE DETERMINATION AS TO WHETHER A SEPARATION IS INVOLUNTARY WITHIN THIS INTERPRETATION LIES WITH THE ADMINISTRATIVE AGENCY.

TO MR. J. A. ALEXANDER:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 17, 1971, IN WHICH YOU ASK FOR OUR DECISION ON THE REQUEST OF MR. ORVILLE S. NORDVOLD, A FORMER EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, CONSUMER AND MARKETING SERVICE, FOR WAIVER OF HIS INDEBTEDNESS FOR RELOCATION EXPENSES UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD INDICATES THAT MR. NORDVOLD'S PERMANENT DUTY STATION WAS CHANGED FROM ALBERT LEA, MINNESOTA, TO COLEMAN, WISCONSIN, ON FEBRUARY 8, 1970. ON MAY 13, 1970, ANOTHER PERMANENT CHANGE OF STATION WAS AUTHORIZED FROM COLEMAN, WISCONSIN, TO RIPON, WISCONSIN. HE WAS AUTHORIZED ALLOWANCES FOR THE TRAVEL OF HIMSELF AND HIS FAMILY, TRANSPORTATION OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS, AS WELL AS FOR TEMPORARY QUARTERS, AND EXECUTED A SERVICE AGREEMENT AS REQUIRED BY 5 U.S.C. 5724(I). THE AGREEMENT OBLIGATED HIM "TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF MY TRANSFER ON OR ABOUT MAY 20, 1970, UNLESS SEPARATED FOR REASONS BEYOND MY CONTROL AND ACCEPTABLE TO C&MS." SUCH AGREEMENT ALSO PROVIDED THAT IF HE VIOLATED THE SAME HE WOULD REPAY TO THE GOVERNMENT AN AMOUNT "EQUAL TO THE AMOUNT EXPENDED BY THE GOVERNMENT FOR TRAVEL, TRANSPORTATION AND OTHER ALLOWANCES CONNECTED WITH THIS TRANSFER *** ." WE ASSUME THAT HE SIGNED A SIMILAR AGREEMENT IN CONNECTION WITH HIS PRIOR TRANSFER FROM ALBERT LEA, MINNESOTA, TO COLEMAN, WISCONSIN, AND ALSO WAS HELD LIABLE FOR ANY EXPENSES REIMBURSED TO HIM IN CONNECTION WITH THAT TRANSFER.

IN NOVEMBER 1970 THE CONSUMER AND MARKETING SERVICE DECIDED THAT MR. NORDVOLD'S SERVICES WERE NO LONGER NEEDED IN RIPON, WISCONSIN, AND THAT HE COULD BE BETTER UTILIZED IN FLORIDA. MR. NORDVOLD WHO HAD BOUGHT A HOUSE IN COLEMAN (POUND) AND ANOTHER IN RIPON INCIDENT TO HIS TRANSFERS REFUSED TO MAKE ANOTHER MOVE AND, WHEN ORDERED TO DO SO, RESIGNED ON NOVEMBER 24, 1970. THEREAFTER THERE WAS APPARENTLY WITHHELD FROM HIS FINAL SALARY AND LEAVE PAYMENTS AN AMOUNT TO COMPENSATE THE GOVERNMENT FOR THE EXPENDITURES IT MADE IN CONNECTION WITH HIS TRANSFERS BECAUSE HE HAD NOT REMAINED IN THE GOVERNMENT SERVICE FOR 12 MONTHS AS AGREED.

THE RECORD INDICATES THAT MR. NORDVOLD'S REQUEST FOR WAIVER WAS DENIED BY ADMINISTRATIVE ACTION OF YOUR AGENCY BECAUSE OF CERTAIN OF OUR DECISIONS IN THIS AREA. IN VIEW THEREOF YOU HAVE REFERRED THE MATTER HERE FOR OUR CONSIDERATION.

WE NOTE THAT THE RECORD CONTAINS A STATEMENT BY MR. NORDVOLD'S REGIONAL SUPERVISOR, PPS&I BRANCH, FRUIT AND VEGETABLE DIVISION, TO THE EFFECT THAT IN ORDERING MR. NORDVOLD TO FLORIDA THE CONSUMER AND MARKETING SERVICE HAD VIRTUALLY TERMINATED HIS SERVICES IN RIPON, WISCONSIN. UNDER THESE CIRCUMSTANCES A QUESTION ARISES OF WHETHER OR NOT THE FACTS SURROUNDING MR. NORDVOLD'S RESIGNATION PROVIDE SUFFICIENT BASIS FOR A FINDING THAT HE WAS SEPARATED FROM THE SERVICE FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE CONSUMER AND MARKETING SERVICE. WE HAVE PREVIOUSLY HELD THAT SUCH DETERMINATION RESTS PRIMARILY WITH THE AGENCY CONCERNED. SEE B- 170392, AUGUST 5, 1970, COPY ENCLOSED.

RECENT DECISIONS IN THE UNITED STATES COURT OF CLAIMS (PATTERSON V UNITED STATES, 436 F. 2D 438 (1971) AND PAULEY V UNITED STATES, 440 F. 2D 426 (1971)), HAVE PROMPTED THE UNITED STATES CIVIL SERVICE COMMISSION TO AMEND ITS REGULATIONS TO THE EFFECT THAT THE REFUSAL OF AN EMPLOYEE TO ACCEPT AN ASSIGNMENT TO ANOTHER COMMUTING AREA IS AN INVOLUNTARY SEPARATION FOR THE PURPOSE OF SEVERANCE PAY OR DISCONTINUED SERVICE ANNUITY, UNLESS THE EMPLOYEE'S POSITION DESCRIPTION OR OTHER WRITTEN AGREEMENT OR UNDERSTANDING PROVIDES FOR SUCH REASSIGNMENTS.

SIMILARLY, WE HAVE NO OBJECTION TO YOUR AGENCY DETERMINING THAT MR. NORDVOLD'S REFUSAL OF THE REASSIGNMENT TO FLORIDA WAS FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO YOUR AGENCY ASSUMING, OF COURSE, THAT HIS POSITION DESCRIPTION DID NOT PROVIDE FOR REASSIGNMENT TO OTHER AREAS OR THAT HE HAD NOT OTHERWISE AGREED TO SUCH REASSIGNMENTS.

FOR A FULL DISCUSSION OF THE AMENDMENTS TO THE UNITED STATES CIVIL SERVICE COMMISSION'S REGULATIONS CONCERNING INVOLUNTARY SEPARATION AND ENTITLEMENT TO SEVERANCE PAY AND DISCONTINUED SERVICE ANNUITY, SEE FPM LETTER NO. 550-59 AND 36 F.R. 12729.

IF THE WAIVER IS GRANTED AND PAYMENT IS MADE TO THE EMPLOYEE FOR HIS FINAL SALARY AND LEAVE IT IS REQUESTED THAT CONGRESSMAN WILLIAM A. STEIGER BE ADVISED TO THAT EFFECT.