B-187687, JUN 14, 1977, 56 COMP GEN 709

B-187687, JUN 14, 1977, 56 COMP GEN 709

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - ADMINISTRATIVE DETERMINATIONS - BUDGET CONSTRAINTS AN EMPLOYEE WAS DENIED RELOCATION EXPENSES INCIDENT TO TRANSFER FROM PHILADELPHIA TO MECHANICSBURG, PENNSYLVANIA, ON THE BASIS THAT BUDGET CONSTRAINTS PRECLUDED REIMBURSEMENT. THE RECORD FAILS TO SHOW THAT THE AGENCY MADE A DETERMINATION AS TO WHETHER TRANSFER WAS IN GOVERNMENT'S INTEREST. FEDERAL TRAVEL REGULATIONS, PARA. 2-1.3 (MAY 1973), REQUIRE THAT DETERMINATION BE MADE AS TO WHETHER TRANSFER IS IN GOVERNMENT'S INTEREST OR PRIMARILY FOR CONVENIENCE OR BENEFIT OF EMPLOYEE OR AT HIS REQUEST. OUR DECISIONS PROVIDE GUIDELINES TO ASSIST AGENCIES IN REACHING SUCH DETERMINATIONS. HERE, EMPLOYEE IS NOT ENTITLED TO REIMBURSEMENT FOR RELOCATION EXPENSES SINCE HE APPLIED FOR AND OTHERWISE TOOK INITIATIVE IN OBTAINING TRANSFER.

IN THE MATTER OF DAVID C. GOODYEAR - RELOCATION EXPENSES, JUNE 14, 1977:

THIS ACTION RESULTS FROM THE APPEAL BY DAVID C. GOODYEAR OF THE SETTLEMENT Z-2587294, SEPTEMBER 8, 1975, BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION). THE SETTLEMENT DENIED MR. GOODYEAR'S CLAIM FOR THE EXPENSES OF RELOCATING HIS MOBILE HOME INCIDENT TO HIS RELOCATION FROM PHILADELPHIA, PENNSYLVANIA, TO MECHANICSBURG, PENNSYLVANIA.

MR. GOODYEAR WAS EMPLOYED AT THE MARINE CORPS SUPPLY ACTIVITY, PHILADELPHIA, PENNSYLVANIA. HE STATES THAT IN 1974 HE LEARNED THAT THE ACTIVITY WOULD BE CLOSED SOMETIME IN 1976. APPARENTLY MOTIVATED BY THIS INFORMATION, HE APPLIED AND WAS ACCEPTED FOR A POSITION AT THE NAVAL SHIP PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA. UPON ASKING WHETHER HE WAS ENTITLED TO TRANSFER EXPENSES, HE WAS ADVISED THAT ONE OF THE FORMS NECESSARY TO EFFECTING THE PERSONNEL ACTION CONTAINED THE FOLLOWING NOTICE:

IN ACCORDANCE WITH CURRENT REGULATIONS, IT WILL BE NECESSARY FOR MR. GOODYEAR TO BEAR ALL EXPENSES INCIDENT TO REPORTING FOR DUTY.

THE RECORD IS NOT CLEAR AS TO WHETHER MR. GOODYEAR WAS MADE AWARE OF THIS PRIOR TO THE EFFECTIVE DATE OF HIS TRANSFER.

MR. GOODYEAR TRAVELED TO HIS NEW DUTY STATION AT HIS OWN EXPENSE; HOWEVER, HE STATES THAT HE WAS UNDER THE IMPRESSION THAT HIS MOVING EXPENSES WOULD BE REIMBURSED BY THE GOVERNMENT. SPECIFICALLY, HE SEEKS TO BE REIMBURSED FOR THE EXPENSES HE INCURRED IN MOVING HIS MOBILE HOME TO HIS NEW DUTY STATION. THE NAVY REFUSED TO REIMBURSE HIM FOR SUCH EXPENSES, ON THE BASIS THAT THE EFFECT OF THE ABOVE-QUOTED PHRASE IS TO BAR PAYMENT OF TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES IN ACCORDANCE WITH NAVAL SHIP PARTS CONTROL CENTER POLICY. IN THIS REGARD, A LETTER DATED APRIL 1, 1975, FROM THE DIRECTOR, MANPOWER PLANNING DIVISION, OFFICE OF CIVILIAN MANPOWER MANAGMENT, DEPARTMENT OF THE NAVY, ADVISED THAT:

(NAVAL SHIP PARTS) CONTROL CENTER BUDGET CONSTRAINTS DO NOT ALLOW THEM TO PAY (RELOCATION EXPENSES) EXCEPT IN MANPOWER SHORTAGE OCCUPATIONS.

MR. GOODYEAR HAS PURSUED HIS CLAIM WITH THIS OFFICE ON THE BASIS THAT HIS TRANSFER RESULTED FROM AN IMPENDING SEPARATION DUE TO A REDUCTION IN- FORCE SUCH AS IS CONSIDERED BY FEDERAL TRAVEL REGULATIONS (FPMR 101 7) PARA. 2-1.5D(1) (MAY 1973), SO AS TO BE ENTITLED TO RELOCATION EXPENSES. THAT PARAGRAPH REQUIRES THAT THE EMPLOYEE ACTUALLY HAVE RECEIVED NOTICE OF AN INVOLUNTARY SEPARATION IN ORDER FOR HIS TRANSFER TO BE CONSIDERED IN THE GOVERNMENT INTEREST. SINCE THERE IS NO INDICATION THAT MR. GOODYEAR WAS EVER FORMALLY NOTIFIED THAT HE WOULD BE SEPARATED INCIDENT TO THE PROPOSED CLOSURE OF THE MARINE CORPS SUPPLY ACTIVITY, FTR PARA. 2-1.5D(1) IS NOT APPLICABLE.

THE RECORD BEFORE THIS OFFICE DOES NOT CONTAIN A SPECIFIC FINDING AS TO WHETHER MR. GOODYEAR'S TRANSFER WAS IN THE INTEREST OF THE GOVERNMENT OR FOR HIS CONVENIENCE. SUCH A FINDING IS REQUIRED BY FTR PARA. 2-1.3, WHICH PROVIDES:

WHEN CHANGE OF OFFICIAL STATION OR OTHER ACTION DESCRIBED BELOW IS AUTHORIZED OR APPROVED BY SUCH OFFICIAL OR OFFICIALS AS THE HEAD OF THE AGENCY MAY DESIGNATE, TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES AS PROVIDED HEREIN ARE PAYABLE IN THE CASE OF (A) TRANSFER OF AN EMPLOYEE FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY, PROVIDED THAT:THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT AND IS NOT PRIMARILY FOR THE CONVENIENCE OF BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST. ***

THAT SECTION, INSOFAR AS IT RELATES TO THIS CASE, REQUIRES THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES FOR AUTHORIZED OR APPROVED CHANGES OF STATION UNLESS THERE IS A FINDING THAT THE TRANSFER IS PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST. APPLICABLE DECISIONS OF THIS OFFICE SET FORTH GUIDELINES TO ASSIST AGENCIES IN MAKING SUCH DETERMINATIONS. FOR INSTANCE, IN B-185077, MAY 27, 1976, THREE RULES WITH REGARD TO SUCH DETERMINATIONS READ AS FOLLOWS:

(1) IF AN EMPLOYEE HAS TAKEN THE INITIATIVE IN OBTAINING A TRANSFER TO A POSITION IN ANOTHER LOCATION, AN AGENCY USUALLY CONSIDERS SUCH TRANSFER AS BEING MADE FOR THE CONVENIENCE OF THE EMPLOYEE OR AT HIS REQUEST, (2) 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. (3) OF COURSE, IF AN AGENCY ORDERS THE TRANSFER AND THE EMPLOYEE HAS NO DISCRETION IN THE MATTER, THE EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF MOVING EXPENSES.

THE NAVY'S STATEMENT, THAT "BUDGET CONSTRAINTS" DID NOT AT THAT TIME PERMIT PAYMENT OF RELOCATION EXPENSES EXCEPT IN MANPOWER SHORTAGE CATEGORIES, MISCONSTRUES THE PURPOSE AND SCOPE OF THE REQUIREMENT TO MAKE A DETERMINATION AS TO WHETHER A PARTICULAR TRANSFER IS IN THE INTEREST OF THE GOVERNMENT. THE REQUIREMENT IN FTR PARA. 2-1.3 REFERS TO DETERMINING WHETHER OR NOT THE TRANSFER IS IN THE INTEREST OF THE GOVERNMENT. PROVISION IS MADE TO PERMIT SUCH DETERMINATION, IN EFFECT, TO BE PREDICATED ON THE COST OF RELOCATION EXPENSES. IN SUMMARY, THE REGULATIONS REQUIRE A DETERMINATION AS TO GOVERNMENT INTEREST. THAT DECISION DETERMINES ENTITLEMENT TO REIMBURSEMENT. THUS, "BUDGET CONSTRAINTS" CANNOT FORM THE BASIS FOR DENYING AN EMPLOYEE RELOCATION EXPENSES IF HIS TRANSFER HAS BEEN FOUND TO BE IN THE GOVERNMENT'S INTEREST.

IN MR. GOODYEAR'S CASE, THIS OFFICE CONCURS WITH THE NAVY'S DENIAL OF RELOCATION EXPENSES. IT APPEARS THAT UPON LEARNING OF THE POSSIBLE CLOSURE OF THE MARINE CORPS SUPPLY ACTIVITY, MR. GOODYEAR APPLIED FOR A POSITION AT THE NAVY SHIP PARTS CONTROL CENTER. THUS, SINCE HE TOOK THE INITIATIVE IN OBTAINING A TRANSFER, HE WOULD COME UNDER THE FIRST RULE STATED IN B-185077, SUPRA, QUOTED ABOVE, AND THE TRANSFER WOULD BE CONSIDERED AS BEING FOR HIS CONVENIENCE.

ACCORDINGLY, THE SETTLEMENT OF THE CLAIMS DIVISION DENYING MR. GOODYEAR'S CLAIMS IS SUSTAINED.