BNUMBER: B-259251
DATE: September 1, 1995
TITLE: Michael S. Maram
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Matter of:Michael S. Maram
File: B-259251
Date: September 1, 1995
DIGEST
The Social Security Administration's decision to deny relocation
expenses to a transferred employee was not arbitrary, capricious or
clearly erroneous where, on the basis of all the circumstances, it
determined that the transfer was at the employee's request and
primarily for the convenience or benefit of the employee.
DECISION
Mr. Michael S. Maram, an Administrative Law Judge (ALJ) of the Social
Security Administration (SSA) appeals our Claims Group's decision
denying his claim for relocation expenses. In his appeal Judge Maram
contends that the determination of the SSA that his transfer was not
in the interest of the government is arbitrary, capricious or clearly
erroneous on the basis of all the circumstances involved.[1] For the
following reasons, we affirm our Claims Group's decision, and deny the
claim.
The record shows that Judge Maram was assigned to the Dallas (North)
Hearing Office, Dallas, Texas, in 1991. On October 22, 1991, the
Acting Chief ALJ issued a survey to determine if any ALJs were
interested in relocation at their own expense. By memorandum, dated
November 4, 1991, Judge Maram advised the Acting Chief ALJ that he was
requesting a relocation to an SSA location in Florida primarily
because of a medical condition affecting his wife which was
exacerbated by the climate in Dallas. His request was not granted.
By memorandum to the Regional Chief ALJ, dated May 29, 1992, Judge
Maram resubmitted the request and asked that it be reconsidered as a
hardship case. He noted that another Regional Chief ALJ had stated
that the workload of the Hearing Office in Tampa, Florida, warranted
an additional ALJ, and he stated: "I am fully aware that reassignment
at this time will require a substantial personal financial expenditure
which further evidences the urgency of my wife's health problems."
By memorandum, dated June 2, 1992, the Acting Chief ALJ stated that he
could not recommend Judge Maram's reassignment to any of the Hearing
Offices in Florida. He stated: "In reassigning ALJ's our primary
concern is to maintain a balance between our workload and resources by
considering the effect of a transfer on both the gaining and losing
HOs [Hearing Offices]." However, he was also informed that his
request would be kept on file in the event that ALJ's should be needed
for Hearing Offices in Florida in the future.
By memorandum to the Acting Commissioner of Social Security, dated
November 24, 1992, the Deputy Commissioner for Programs requested
approval for the reassignment of 16 ALJs, including Judge Maram. Only
one ALJ (another person) was to be paid relocation expenses. The
Deputy Commissioner proposed to transfer Judge Maram to the Hearing
Office in Tampa, Florida, and to transfer an ALJ in Alexandria,
Louisiana, to Dallas, to replace him. Both the Dallas and Tampa
Hearing Offices were in need of additional ALJs to handle current and
expected workloads. Approval was granted on December 11, 1992.
By memorandum to the Regional Chief ALJ, dated February 9, 1993, Judge
Maram requested a determination of his eligibility for relocation
expenses incident to his reassignment. He stated that he was "fully
prepared to accept a sizeable loss" on the sale of his Dallas
residence and that he would relocate to the Tampa Hearing Office
whether or not he could be reimbursed for his relocation expenses. He
did not receive any reply before he moved, and he reported for duty at
the Tampa Hearing Office on May 3, 1993.
By memorandum, dated July 30, 1993, the Acting Chief ALJ denied the
request for relocation expenses because he determined that Judge
Maram's transfer was not in the interest of the government on the
rationale that it was primarily for the convenience or benefit of
Judge Maram and at his request. The memorandum also noted that Judge
Maram's transfer entailed moving another ALJ to his duty station.
Based on the foregoing facts, the administrative report of the SSA,
concludes that:
"Judge Maram's transfer was not the result of a solicitation
request by the agency; it was a result of his May 29, 1992,
request. The basis for transferring him was primarily because of
his expressed hardship. Concurrently with his transfer, the
agency transferred two experienced Judges into the Dallas (North)
HO; thus demonstrating that the office he transferred from was in
need of judges, as was the office to which he transferred.
. . . . .
"5 U.S.C. []5724(h) specifically requires that, `When a transfer
is made primarily for the convenience or benefit of the employee
. . . or at his request, his expenses may not be allowed or paid
from Government funds.'"[2]
In his appeal from our Claims Group's decision denying his claim,
Judge Maram contends that his transfer was in the interest of the
government, and thus not primarily for his convenience or benefit. He
characterizes the survey of interest concerning transfers, dated
October 22, 1991, as a management-initiated solicitation or vacancy
announcement. He claims that his transfer was in the interest of the
government since he was selected for transfer based upon the SSA's
evaluation of workload needs and resources. Thus, he contends that
the SSA's determination to deny him relocation expenses was arbitrary,
capricious, and clearly erroneous.
Reimbursement of an employee's relocation expenses is conditioned upon
a determination that the transfer is in the interest of the
government, and not primarily for the convenience or benefit of the
employee, or at the employee's request. See 5 U.S.C. 5724(h)
(1994); 41 C.F.R. 302-1.3(a)(1)(i) (1994). The determination of
whether a transfer is in the interest of the government or primarily
for the convenience of the employee is a matter within the discretion
of the employing agency, and we will not overturn an agency's
determination unless it is arbitrary, capricious or clearly erroneous
under the facts of the case. Julia R. Lovorn, 67 Comp. Gen. 392
(1988).
We have carefully examined the record in this case. We note
particularly that the initial survey of interest on October 22, 1991,
expressly stated that funds were severely limited and that an ALJ
"should designate only those locations to which you would be willing
to relocate at your own expense." Furthermore, the memorandum of
November 24, 1992, requesting approval for the relocation of 16 ALJs
(including Maram) stated that only one ALJ would be paid relocation
expenses and that the others (including Maram) had agreed to absorb
those expenses. After having accepted the transfer to Tampa without
authorization of expenses, Judge Maram raised the question of his
eligibility for relocation expenses on February 9, 1993, but
reiterated that he ". . . will relocate to the Tampa Hearing Office
regardless of relocation allowances." Finally, and most persuasively,
the agency had to transfer another ALJ into the Dallas office to take
Judge Maram's place. This was done solely because of Judge Maram's
expressed hardship.
We conclude that the SSA's determination to deny Judge Maram's claim
for relocation expenses cannot be said to be arbitrary, capricious or
clearly erroneous. There is ample evidence in the record on the basis
of which the SSA could reasonably conclude, as it did, that Judge
Maram's transfer was primarily for his own convenience and at his own
request.
Where a transfer has been determined by an agency to be in the
government's interest, the fact that the transfer also serves the
employee's personal needs does not preclude allowance of otherwise
proper expenses, see e.g., Elender C. Hill, B-222905, Mar. 30, 1987.
In this case, however, the agency has not reached a determination that
the transfer was in the government's interest. Thus the rule in
Elender C. Hill does not apply here.
We note that as a general rule, we have sustained an agency's denial
of relocation expenses where the transfers in question were lateral
transfers to positions without greater promotion potential, even where
the transfers are the result of a vacancy announcement. See e.g.,
Julia R. Lovorn, supra, and cases cited therein. See also John C.
Eastman, B-246538.4, Mar. 18, 1994, reconsidering and affirming
B-246538.2, Jan. 27, 1993.
Accordingly, we affirm our Claims Group's denial of Judge Maram's
claim.
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. See Settlement Certificate No. Z-2869305, Sept. 22, 1994. At the
time of the events in the instant case, SSA was a component of the
Department of Health and Human Services.
2. See administrative report at 3, accompanied by SSA's cover letter,
dated July 1, 1994. [Emphasis in original.]