Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405



                                              

                          June 18, 1998
                                              


                         GSBCA 14546-RELO


                In the Matter of BART J. DUBINSKY


     Bart J. Dubinsky, Flower Mound, TX, Claimant.

     Dr. Michael H. Trujillo, Assistant Surgeon General and Acting Director, Indian
Health Service, Rockville, MD, appearing for Department of Health and Human Services.

DANIELS, Board Judge (Chairman).

     The Indian Health Service (IHS), a unit of the Department of Health and Human
Services' Public Health Service, reassigned employee Bart J. Dubinsky from Phoenix,
Arizona, to Dallas, Texas, effective September 17, 1995.  Mr. Dubinsky objects to IHS's
determination not to pay for various expenses he incurred in connection with this relocation. 
We agree with the employee that the reassignment was in the interest of the Government, and
that the agency must consequently pay such relocation benefits as are prescribed by statute
and regulation.

                            Background

     As 1995 dawned, Mr. Dubinsky was an IHS personnel officer in Phoenix.  In March
of that year, the agency issued a vacancy announcement regarding four positions for labor
relations specialists, one of which was to be located in Dallas.  The announcement states
prominently, "RELOCATION EXPENSES WILL NOT BE PAID."

     In June, the United States Attorney for the Southern District of Texas offered Mr.
Dubinsky a position as a personnel management specialist, contingent on his completing a
background investigation and passing a drug test.  Mr. Dubinsky asserts that "IHS
specifically asked [him] to decline that offer and stay with the Agency with the promise of
moving [him] back to Dallas."  Mr. Dubinsky further asserts that in a meeting on August 24,
the Acting Associate Director of IHS's Office of Human Resources and the agency's Phoenix
Area Director approved reimbursement of expenses the claimant would incur in relocating
to Dallas.  Also according to Mr. Dubinsky, an IHS employee then asked him to complete
a travel order form regarding this transfer.

     We asked IHS to comment on the validity of these statements by the claimant, to
provide documents and affidavits concerning them, and to explain which agency officials
have authority to determine whether the transfer of an employee is primarily in the interest
of the Government.  We cautioned IHS that if it did not respond within three weeks (by
June 11), we would conclude that the statements are true and that the officials who assertedly
promised to move Mr. Dubinsky to Dallas are authorized to determine whether a transfer is
primarily in the interest of the Government.  IHS did not respond.  We consequently make
these conclusions.

     IHS never issued a travel order to Mr. Dubinsky.  Instead, it gave the claimant only
a Notification of Personnel Action which reassigned him from Phoenix to Dallas.  This form
says nothing about reimbursement of relocation expenses.  Mr. Dubinsky actually moved to
Dallas, and began work there, in January 1996.

     Just prior to the second anniversary of the effective date of the reassignment, Mr.
Dubinsky filed a claim with IHS for such reimbursement.  He specifically asked IHS to pay
for expenses he incurred in transporting himself and his family to Dallas, shipping and
storing his household goods, and selling his former residence in Arizona and purchasing a
home in Texas, as well as $700 in miscellaneous expenses.  He also asked the agency to
provide him with numerous documents which he considered relevant to this matter.

     IHS denied the claim on the ground that it had determined, before advertising for the
four labor relations specialist positions, that relocation benefits would not be paid because
"a qualified pool of candidates was available in the areas where the vacancies were
advertised."  IHS now states, "It is the agency's posture that since there was a qualified pool
of candidates in the Dallas area, there was no rationale for payment of any relocation
entitlements."  When Mr. Dubinsky asked to review documents which might substantiate this
position, IHS responded that its file relating to actions involved in filling the position in
Dallas had been shredded, and that files of this sort are usually kept for only two years.

                            Discussion

     By law, when an agency transfers an employee "in the interest of the Government
from one official station . . . to another for permanent duty," it must pay various expenses
which are incurred in the move.  5 U.S.C.    5724, 5724a (1994).  These expenses include
those of transporting the employee and his immediate family, shipping and storing household
goods, selling the employee's residence at his old station and purchasing one at the new
station, and certain miscellaneous costs.  See id.   5724(a)(1)-(2), (c),   5724a(a)(1), (4), (b). 
The precise amounts to be paid must be calculated with reference to the Federal Travel
Regulation (FTR), 41 CFR ch. 302.  "When a transfer is made primarily for the convenience
or benefit of an employee, . . . or at his request," however, such expenses "may not be
allowed or paid from Government funds."  5 U.S.C.   5724(h); see also 41CFR
302-1.3(a)(1)(i) (1995).

     As we explained in Gerard R. Sladek, GSBCA 14125-TRAV, 98-1 BCA   29,403, the
authority to determine whether a transfer is in the interest of the Government rests primarily
with the employing agency.  We will not overturn an agency's exercise of this discretion
unless we are convinced that the determination was arbitrary, capricious, or clearly
erroneous.  See also Steven D. Hanson, GSBCA 14270-RELO, 97-2 BCA   29,314; Paul C.
Martin, GSBCA 13722-RELO (Dec. 11, 1996).  We have expressed the rule to be applied
by agencies in these words: "Generally, an agency should consider a transfer to be for the
convenience of the employee if the employee has taken the initiative by requesting it; if, on
the other hand, the agency recruits, requests, or orders the employee to move, the transfer
should be deemed to be in the interest of the Government."  Sladek.

     IHS initially intended to fill the position for which Mr. Dubinsky was selected with
a candidate who was already living in the Dallas area.  The agency maintains that a number
of qualified candidates from that area could have been chosen.  Whether this assertion is true
or not will never be known, however, because IHS improperly destroyed relevant
documents.  In any event, whether local candidates were available or not, supervisory
agency officials evidently so much wanted Mr. Dubinsky to perform the job that the officials
promised that if he would accept the position, rather than take one with the Department of
Justice, IHS would pay relocation benefits.  These officials were authorized to make this
promise.  Thus, in the final analysis, IHS effectively determined that transferring Mr.
Dubinsky from Phoenix to Dallas, rather than selecting a candidate already in the latter city
(as originally envisioned), was primarily in the interest of the Government.  This case is
therefore unlike others, such as Hanson, Derek T. Lamirault, GSBCA 13933-RELO, 97-2
BCA   29,028, and Earl G. Gongloff, GSBCA 13860-RELO, 97-1 BCA   28,792, in which
the employing agency expressly told the employee, prior to his move, that it would not pay
relocation benefits because qualified local candidates were available.

     IHS's after-the-fact characterization of the move as being primarily in the interest of
the employee is plainly inconsistent with the agency's action in promising benefits in
exchange for staying with IHS and transferring to Dallas.  The agency's "posture" is clearly
erroneous and an abuse of discretion.  See Cheryl A. Cadwell, GSBCA 14148-RELO, 97-2
BCA   29,066; John Patrick Pede, GSBCA 13862-RELO,  97-2 BCA   29,023 (agency may
not exercise discretion by authorizing relocation benefits and later, after employee incurs
expenses which qualify for reimbursement, denying them).

                             Decision

     Having effectively determined that reassigning Mr. Dubinsky to Dallas was in the
interest of the Government, IHS obligated itself to reimburse this employee for all relocation
benefits which are provided by statute and regulation.  The fact that the agency did not issue
a travel authorization to the employee, as it should have, 41 CFR 302-1.3(c), is immaterial.
We direct IHS to review the specifics of this claim in accordance with the law's requirements
and to reimburse the claimant accordingly.  If Mr. Dubinsky believes that any of the agency's
determinations as to the specifics of the claim are improper, he may ask this Board to review
the propriety of those decisions.




                              _________________________
                              STEPHEN M. DANIELS 
                              Board Judge