Board of Contract Appeals General Services Administration Washington, D.C. 20405 March 13, 1998 GSBCA 14349-RELO In the Matter of QUENTIN P. McCOLGIN Quentin P. McColgin, Ridgeland, MS, Claimant. Charles R. Boyer, Chief Administrative Law Judge, Office of Hearings and Appeals, Social Security Administration, Falls Church, VA, appearing for Social Security Administration. GOODMAN, Board Judge. Claimant, Quentin P. McColgin, is an Administrative Law Judge (ALJ) for the Social Security Administration (SSA). In 1996, claimant transferred from his position of ALJ with the Department of Labor (DOL) in Metairie, Louisiana, to a similar position with the SSA Office of Hearings and Appeals (OHA) in Jackson, Mississippi. The agency to which he transferred denied his request for relocation expenses arising from this transfer, and claimant requested this Board to review the agency's determination. By decision dated January 29, 1998, we found the agency's decision to be consistent with statute, regulation, and the agency s own policy, not capricious or arbitrary, and denied claimant's claim. On February 13, 1998, claimant filed a motion for reconsideration. We hereby grant reconsideration and affirm our previous decision. The basis of claimant s motion for reconsideration is that: the Board Judge's interpretation of 5 CFR 335.103 is overbroad, unwarranted and erroneous. That regulation simply does not except the agency from compliance with the reporting requirements of 5 CFR 330.102, .707(b) and 335.105. Since the agency did not comply with these requirements, claimant should prevail . . . . The regulation which claimant alleges was interpreted erroneously reads, in relevant part: Discretionary actions. Agencies may at their discretion except the following actions from competitive procedures of this section: . . . . (v) . . . transfer . . . to a position having promotion potential no greater than the potential of a position an employee currently holds or previously held on a permanent basis in the competitive service . . . and did not lose because of performance or conduct reasons. 5 CFR 335.103(c)(3) (1996). Claimant argues that "competitive procedures" referenced in the above regulation are those set forth in (b)(1)-(5) of the section, and that they relate to the selection of candidates for a variety of employment actions including promotion and training. However, claimant maintains paragraphs(b)(1)-(5) do not prescribe procedures relating to the recruitment of applicants from outside the agency's workforce. This argument is not correct. The regulation applies to transfers of employees in the competitive service, which is defined as: (a) All civilian positions in the executive branch of the Government unless specifically excepted therefrom . . . . 5 CFR 1.2. Further, paragraph (b)(4) of section 335.103 specifically refers to selection of candidates from appropriate sources other than an agency's own employees, including transfers (presumably from other agencies). Thus, the regulation would apply to interagency transfers, such as occurred in this instance. Claimant argues further that the agency was still bound to the notice requirements in various sections of the regulations. He cites 5 CFR 330.707(b), which deals with displaced employees. There is no evidence in the record that claimant is a displaced employee, so this notice requirement is clearly not applicable to his situation. Claimant also claims that the agency violated 5 CFR 335.105 and 330.102. The first section reads as follows: Under 5 U.S.C. 3330, agencies are required to report job announcements to OPM [Office of Personnel Management] for vacancies for which an agency will accept applications from outside the agency s work force. This requirement is implemented through 330.102 of this chapter. Pursuant to 5 CFR 330.102, OPM must maintain and make available to the public a list of agency vacancy announcements for positions in the competitive service, and agencies must notify OPM promptly of competitive service vacancies to be filled for more than ninety days when the agency will accept applications from individuals outside the agency s workforce. Claimant additionally relies upon his agency's policy in its personnel manual quoted in the Board s previous opinion, which states: Relocations which are made pursuant to job postings will automatically be deemed in the interest of the Government and not primarily for the convenience or benefit of the employee. Therefore, employees selected from job postings will receive relocation allowances. SSA Personnel Manual for Supervisors, ch. S335-13, IV.B.1 (1993). A review of other portions of the personnel manual indicates that this policy is to be adhered to when a competitive action occurs: All selections from job postings . . . which are made after competition (i.e., after referral lists are submitted to the selecting official) are considered to be in the interest of the Government and not primarily for the convenience or benefit of the employee. Since the selecting official will have had an opportunity to compare candidates, these decisions are considered to be based on merit and relocation expenses must be paid. SSA Personnel Manual for Supervisors, Ch. S335-13 IV.B.2.b (1993). Claimant asks us to make a determination that his application be deemed in response to a vacancy announcement pursuant to the notice requirements, and thereby deem him entitled to relocation costs. Even if claimant is correct that the agency was required to comply with the notice requirements in 5 CFR 335.105 and 330.102, claimant would not be entitled to reimbursement of relocation costs under the circumstances presented here. The agency did not conduct a competitive selection in order to accomplish claimant s transfer. Rather, the agency responded to claimant s previous request for a transfer, which claimant initiated. The agency admits that claimant s request for transfer was honored without the agency ascertaining whether there were qualified candidates locally. We cannot deem a competitive selection process to have occurred when it did not occur. We cannot make the assumption that claimant would have us make--that he would have been selected for the position had a competitive selection been made-- and thereby deem him entitled to reimbursement of relocation costs as a result. In short, it is clear that claimant was transferred because he was considered in a noncompetitive selection process. It is not clear that he would have been selected for transfer if a job posting had been made and competitive procedures employed. As stated in our previous decision, the General Accounting Office has held that lateral transfers are presumed to be in the interest of the employee and do not warrant payment of relocation expenses, even where the transfers are the result of vacancy announcements. See, e.g., Michael S. Maram, B-259251 (Sept. 1, 1995). This Board has made similar rulings in cases involving lateral transfers, as cited in our previous decision in this matter. Accordingly, we affirm our previous decision. ________________________ ALLAN H. GOODMAN Board Judge