Board of Contract Appeals General Services Administration Washington, D.C. 20405 May 18, 2000 GSBCA 15267-RELO In the Matter of ARNETT M. FLOWERS Arnett M. Flowers, Sneads, FL, Claimant. Bruce K. Sasser, Assistant Director for Administration, Federal Bureau of Prisons, Washington, DC, appearing for Department of Justice. DANIELS, Board Judge (Chairman). Arnett M. Flowers retired in 1999 after twenty-seven years of federal service. At the time, Mr. Flowers was Warden of Federal Correctional Institution (FCI) El Reno, Oklahoma, a Senior Executive Service (SES) position. He had transferred to El Reno from FCI Tallahassee, Florida, two and one-half years earlier. Mr. Flowers challenges the determination of the Bureau of Prisons, his employing agency, that he was not entitled to "last move home" benefits. Certain career SES appointees are entitled, upon their retirement, to "last move home" benefits -- travel and transportation expenses, a mileage allowance for travel by privately-owned automobile, and costs of transportation and temporary storage of household goods. 5 U.S.C. 5724(a)(3) (1994); 41 CFR 302-1.100 through -1.107 (1995). Two principal eligibility criteria must be met for an individual to qualify for these benefits. First, the individual must have been "transferred . . . in the interest of the Government and at Government expense from one official station to another for permanent duty" either (a) from an SES career position to another SES (or equivalent) career position or (b) from another position to an SES career appointment. Second, at the time of the transfer, the individual must have been qualified to receive a retirement annuity or within five years of being qualified to receive an optional retirement annuity. 5 U.S.C. 5724(a)(3)(A), (B); 41 CFR 302-1.101(a), (b); Henry W. Gresham, GSBCA 15124-RELO, 00-1 BCA 30,742 (1999). There is no question that Mr. Flowers's transfer occurred within five years of his being qualified to receive an optional retirement annuity. The issue in this case is whether the employee met the first of the stated eligibility requirements. Mr. Flowers's transfer from FCI Tallahassee to FCI El Reno was approved on March 5, 1996, to be effective on June 9. He left Tallahassee on June 10 and arrived in El Reno on June 13. While he was en route, on June 12, he was officially appointed to the SES. The Bureau of Prisons issued an official "notification of personnel action" statement regarding this appointment on June 23. When Mr. Flowers first asked to be paid his "last move home" benefits, the Bureau of Prisons denied his request. The Bureau placed pivotal weight on the fact that the employee's reassignment was effective on June 9, before he became a member of the SES. Thus, in the agency's view, Mr. Flowers's transfer from Tallahassee to El Reno was from one non-SES position to another; the SES appointment was merely a change in status at a later date. After Mr. Flowers filed his case with the Board, the Bureau modified its position. It now says that it "would not object to approving benefits if you determine we can interpret the regulations to mean an individual is eligible for benefits if transferred into an SES career position, and is awaiting OPM [Office of Personnel Management] confirmation of the appointment."[foot #] 1 The relevant statute and regulation not only can, but also should be interpreted in the way suggested by the Bureau of Prisons. The laws make a condition of eligibility the transfer of an employee for permanent duty as a career appointee in the SES. If having the employee serve in an SES career position is the purpose of the relocation, this condition is met, no matter whether, technically, the appointment occurs on any particular day. Mr. Flowers asserts, and the agency does not deny, that he moved to El Reno in large part because the warden's job there was a career SES position. This satisfies the eligibility requirement at issue. Even if we had not accepted the Bureau's invitation to enunciate a broad standard for eligibility, however, we would find Mr. Flowers qualified for the benefits in question on a narrower ground. A "transfer or appointment" occurs, for purposes of federal employee relocation benefits, on "[t]he date on which an employee or new appointee reports for duty at his/her new or first official station." 41 CFR 302-1.4(l); Gresham. Mr. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Initial appointments to the SES must be approved by an OPM qualification review board. 5 U.S.C. 3393(c); 5 CFR 317.502; see Richard S. Citron, GSBCA 15166-RELO, 00-1 BCA ___ ___________________ 30,788. ----------- FOOTNOTE ENDS ----------- Flowers did not report for duty at El Reno until June 13[foot #] 2 -- after he had been appointed to the SES. Thus, his reassignment was from a non-SES position (at Tallahassee) directly to an SES career appointment (at El Reno). The "notification of personnel action" statement turns out to have been incorrect as to the effective date of Mr. Flowers's promotion. In filing this case, Mr. Flowers said that he was "seeking adjudication of this issue . . . in the amount of $12,000.00." In response, the Bureau says that based on its estimates, it believes our agreement with the employee as to eligibility for benefits will cost the agency approximately $8,000. Mr. Flowers now agrees that the Bureau's estimate is about right. Because no specific dollar figures or justifications have been presented to us, we express no opinion on the monetary impact of our eligibility finding. If, after Mr. Flowers has presented a specific monetary claim to the Bureau and the agency has made a determination as to that claim, Mr. Flowers believes that the determination is not consistent with the dictates of law, he may file a new case with us challenging it. _________________________ STEPHEN M. DANIELS Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 Or 14 -- we do not know whether he reported for duty on the day he arrived in town or on the following day.