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.]