Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________ January 29, 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 in the Department of Labor (DOL) in Metairie, Louisiana, to 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 requests this Board to review the agency's determination. For the reasons set forth below, we affirm the agency's decision and deny claimant's claim. Background By letter dated October 5, 1995, claimant, who was then residing in New Orleans, Louisiana, and was employed as an ALJ with DOL, wrote to Judge Richard Mueller, the Acting Atlanta Regional Chief ALJ for the SSA OHA, asking that he "be considered for any judgeships" which might become available in OHA offices in Mobile, Alabama, Memphis, Tennessee, Birmingham, Alabama, Houston, Texas, or Jackson, Mississippi. On January 10, 1996, claimant followed-up on his previous letter to Judge Mueller with a letter to Chief ALJ Charles R. Boyer of the OHA in Arlington, Virginia, reiterating his "continued interest in transferring from my present position as an administrative law judge with the Dept. of Labor, to the Office of Hearings and Appeals." At that time, he revised his list to include only Mobile, Alabama, Memphis, Tennessee, and Jackson, Mississippi. Chief ALJ Boyer responded to claimant's letter of January 10 on February 28, 1996, thanking him for his interest and letting him know that he was uncertain of OHA's ability to hire additional ALJs during the rest of fiscal year (FY) 1996. Late in FY 1996, OHA exercised its authority to add additional ALJs. As was standard procedure, OHA performed a needs assessment to determine which hearing offices were in greatest need of additional ALJs and had space for additional personnel. The agency alleges: As is also our procedure, before requesting from the Office of Personnel Management (OPM) a list of candidates to fill positions in those offices determined to be in greatest need, OHA first reviewed requests for reassignments and transfers submitted by current ALJs to see if any could be accommodated. We then contacted ALJs who had requested reassignments and transfers to ascertain their continuing interest before seeking necessary Agency approvals. On October 1, 1996, claimant was contacted by what was then known as the OHA Center for Personnel Operations (CPO) to inform him that the Associate Commissioner had approved his transfer to Jackson, Mississippi. At that time he was informed that OHA would pay for the travel and expenses for the four week OHA ALJ orientation to be held in Alexandria, Virginia, but that OHA would not pay for travel and expenses related to relocation. Claimant questioned this decision and requested confirmation by the office of the Chief ALJ. In the meantime, arrangements were made by the CPO with DOL to establish claimant's entry on duty (EOD) date of October 27, 1996, which was when he was to report for orientation. On October 9, 1996, he was again contacted by the CPO to determine if the EOD date was acceptable. On October 10, 1996, the Office of the Chief ALJ confirmed to claimant that his relocation expenses would not be reimbursed. On October 15, 1996, claimant was again contacted by the CPO to confirm that it was still his desire to transfer to OHA and that he would be reporting for duty on October 27, 1996. He informed the CPO that it was his intent to complete the transfer. The transfer occurred, and claimant's salary and pay basis were the same in both his former and current position. On October 21, 1996, prior to his reporting for duty at OHA, claimant wrote to Chief ALJ Boyer to ask for reconsideration of the determination that relocation expenses would not be reimbursed. Chief ALJ Boyer responded to claimant by letter dated February 12, 1997, which denied the request for reconsideration and read, in relevant part: [Y]ou were informed prior to the effectuation of the transfer that you would not be entitled to relocation expenses because the transfer was at your request . . . . The facts are clear here that SSA did not recruit, order or request your transfer, but rather effectuated a transfer which you initiated, as evidenced by your two written requests to be transferred to SSA. On March 27, 1997, claimant again wrote to Chief ALJ Boyer asking for yet another reconsideration of the prior decision and, assuming that the claimed expenses were disallowed, asking that his appeal be forwarded to this Board. By letter dated October 10, 1997, Chief ALJ Boyer affirmed the prior decision not to reimburse claimant for relocation expenses. At claimant's request, claimant's March 27, 1997, letter with all relevant correspondence was furnished to this Board by the agency, with a request that we review the agency's determination in this matter. Discussion Claimant asserts that the agency was required to use competitive procedures which entitle him to the payment of relocation expenses Claimant bases his claim for reimbursement of relocation expenses on his allegation that: [T]he agency routinely violates civil service regulations requiring the issuance of vacancy announcements when the agency considers hiring administrative law judges (ALJs) employed by other Federal agencies (incumbent ALJs). The issuance of such announcements is referred to by the agency as "posting" . . . . Because the agency fails to perform the ministerial act of posting positions for which it accepts applications from incumbent ALJs, I like many incumbent ALJs before me have been unlawfully deprived of the opportunity to respond to the posted vacancy announcements, treated by the agency as having requested a transfer and denied the valuable benefit-of having our relocation expenses reimbursed. In support of his allegation that the agency routinely violates civil service regulations, claimant asserts that the agency is required to post vacancies within the federal civil service pursuant to 5 U.S.C. 3330 (1994). He notes that in this statute, the Office of Personnel Management (OPM) is charged, in the first instance, with responsibility to compile "and make available to the public the list of vacancies" and further states: To implement this statutory mandate "each Federal agency must notify OPM promptly of vacancies in the competitive services to be filled under direct hire procedures." 5 C.F.R. 330.102(a)(B). This requirement is reiterated at 5 C.F.R. 335.105 which provides: Under 5 U.S.C. 3330, agencies are required to report job announcements to OPM of 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. In the instant case, it is clear that the agency accepted claimant's application for transfer from outside the agency's work force without posting the position, i.e., without using competitive procedures. The agency's rationale for doing so is as follows: [B]efore requesting from the Office of Personnel Management (OPM) a list of candidates to fill positions OHA first reviewed requests for reassignments and transfers submitted by current ALJs . . . who had requested reassignments and transfers to ascertain their continuing interest before seeking necessary agency approvals. Agency Response at 1. similarly, the agency states: At the time that [claimant] requested a transfer to various OHA offices there was not a job posting for any of those offices . . . . When the Agency determines that it can accommodate these requests . . . it may contact ALJs who have indicated a desire to be reassigned or transfer[red] to see if they are still interested . In this process, there is no differentiation in the treatment afforded ALJs from within OHA and ALJs from outside Agencies. Indeed the transfer of an ALJ from one agency to another is considered to be non-competitive by OPM (5 C.F.R. 930.206). Id. at 4. Claimant takes issue with the agency's justification for using noncompetitive procedures. The regulation which the agency cites above reads, in relevant part: An agency may transfer an administrative law judge from another agency with the prior approval of OPM on a noncompetitive basis in accordance with regular civil service procedures ... . 5 CFR 930.206 (1996). Claimant does not believe that this regulation supports the agency's actions. He states: [T]he agency intimates that this regulation somehow makes the appointment of an incumbent ALJ to another agency a noncompetitive appointment. Thus, the agency asserts "the transfer of an ALJ from one agency to another is considered by OPM to be noncompetitive." This assertion by the agency is patent nonsense. It erroneously equates a competitive appointment with the authority to make a competitive appointment "on a noncompetitive basis." [Foot # 1 ] The regulations clearly include ALJ positions among those that are competitive service appointments. Thus, the regulations provide: ****************** Footnote Begin ********** [Foot # 1 ] Claimant also makes the argument that "The phrase 'on a non- competitive basis' is obviously used to distinguish an appointment of an incumbent ALJ who is not required to meet the competitive examination process specified in 5 C.F.R 930.203, from an appointment of a candidate who must meet those requirements." In light of our holding that the regulations allow the appointment of an ALJ in circumstances as this without the use of competitive procedures, this argument is not valid, nor is it supported by the terms of Standard Form 59, the agency's request for Approval of Noncompetitive Action, discussed herein. ****************** Footnote End ************ Except as otherwise provided in this subpart, the rules and regulations applicable to positions in the competitive service apply to administrative law judge positions. 5 C.F.R. 930.201(b). Thus, the appointment to an ALJ position is unquestionably a competitive appointment which, in accordance with 5 C.F.R. 930.206(a), must be made "in accordance with regular Civil Service procedures." Among these procedures, it is submitted, include the posting procedures prescribed in 5 C.F.R. 330.102(a) and 335.105. Claimant concludes: Unquestionably, the agency accepted and considered my application while I was employed as an ALJ by another Federal agency. . . . [T]he agency violated Civil Service regulations because the agency could neither accept nor consider an application of an incumbent ALJ from outside the agency's work force without first posting a vacancy notice. 5 U.S.C. 3330; 5 C.F.R. 335.105. Claimant asks the Board for the following remedy: If the Board accepts the argument advanced here that the agency was legally required to post a vacancy announcement for the vacant ALJ position for which I was considered and appointed and that the agency failed to do so, then the appropriate remedy is to impose the time honored principle of nunc pro tunc. Under this principal, the act of posting, which the agency was required to perform, should be deemed to have been done and have the same force and effect as if done at the time it ought to have been. Applying the nunc pro tunc principal [sic] here is dispositive of the remaining issues in this case. While the agency in its Answer argues that my unsolicited application proves that I initiated the process leading to my transfer, this record demonstrates that I had no choice but to do so. As the agency concedes in its answer, it routinely considered applications from incumbent ALJs when the agency hired ALJs even though the agency unlawfully failed to post the position the agency sought to fill. The reason I submitted my unsolicited application to the agency is that I was unlawfully deprived by the agency of the opportunity to respond to a posted vacancy announcement. Accordingly, my transmittal letters of October 5, 1995 and January 10, 1996, should properly be construed as responses to the deemed posted position. According to claimant, if this Board were to find that the agency violated the alleged requirement for competitive procedures and had failed to post a vacancy announcement, by deeming his "transmittal letters" as responses to a posted position, he would be entitled to relocation expenses, as the agency's own Personnel Manual reads as follows: 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, para. IV.B.1. (1993). The agency was not required to use competitive procedures Claimant is incorrect in his assertion that appointment to an ALJ position must be accomplished by competitive appointment through issuance of a vacancy announcement. Claimant is correct that 5 CFR 335.105 states: [A]gencies are required to report job announcements to OPM 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. However, even though the above-quoted section refers to a requirement to report job announcements as implemented through 5 CFR 330.102, this requirement is not mandatory under the circumstances of the instant case. The agency had the authority to except claimant's transfer from competitive procedures, which it did pursuant to 5 CFR 335.103(c) (3), which 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. Thus, according to the above-cited regulation, claimant's transfer is the type of discretionary action which may be excepted from competitive procedures -- it was a lateral transfer to a position having promotion potential no greater than the potential of the position which he held prior to transfer. This is evidenced by Standard Form 59, Request for Approval of Noncompetitive Action, submitted by the agency to OPM on October 1, 1996, and approved thereafter by OPM. According to this form, claimant's transfer is deemed a noncompetitive action pursuant to 5 CFR 930.206. His grade level and salary remained the same before and after the transfer. It is clear that claimant's transfer was a lateral move, and there is no suggestion that the new position has promotion potential greater than that which he held as an ALJ at DOL. Accordingly, it was excepted from competitive procedures, and approved as a noncompetitive action by OPM. Claimant's transfer was not in the interest of the Government Having determined that the agency did not violate statute and regulation by accomplishing claimant's transfer in a noncompetitive action, we must still determine if the transfer was "in the interest of the Government," in order to determine claimant's right to reimbursement of relocation expenses. Payment of relocation expenses is properly determined under 5 U.S.C. 5724, which addresses the transfer of civilian federal employees from one duty station to another. That statute provides that specified travel and relocation expenses of an employee transferred in the interest of the Government will be reimbursed. U.S.C. 5724(a). However, "[w]hen a transfer is made primarily for the convenience or the benefit of an employee . . . or at his request, his expenses . . . may not be allowed or paid from Government funds." Id.. 5724(h). The determination of whether a transfer is in the interest of the Government or for the benefit of the employee is for the employing agency to make. The agency's determination will not be disturbed unless it is arbitrary, capricious, or clearly erroneous. Steven D. Hanson, GSBCA 14270-RELO, 97-2 BCA 29,314. The agency has furnished pertinent sections of its Personnel Manual for Supervisors (PMS), setting forth the criteria for its determination as to whether a transfer is primarily in the interest of the Government. This determination is made by the selecting official with authority over the vacancy. PMS, Ch. S335-13, para. IV.A.2.b. The discretion exercised by this official is limited where law or agency policy require a specific determination. Factors which may affect this decision under the circumstances of this case are 1) did the agency direct the employee to move; 2) was the selection by promotion, reassignment, or change to a lower grade from any type of job posting; and 3) where the selection is not associated with a job posting, was the selection based on a need to fill a specific vacancy with a particular individual. Id., Chap. S335-13. With regard to the first factor in the agency's PMS, the facts are clear that SSA did not direct claimant to move. Rather, SSA responded to claimant's two written requests to be transferred to one of several specified hearing office locations. But for claimant's requests for a transfer, which were made before SSA determined a need to hire, he would not have been transferred. [Foot # 2 ] Since DOL was claimant's employing agency at the time of the requests, SSA had no authority to "direct" claimant to change duty stations. Therefore, claimant's transfer was not directed by SSA. ****************** Footnote Begin ********** [Foot # 2 ] Claimant asserts: Because the agency fails to perform the ministerial act of posting positions for which it accepts applications from incumbent ALJs, I like many incumbent ALJs before me have be lawfully deprived of the opportunity to respond to the posted vacancy announcements, treated by the agency as having requested a transfer and denied the valuable benefits of having our relocation expenses reimbursed. This argument fails for several reasons. There was no vacancy to be filled when claimant made his two written requests for a transfer,so he did in fact request a transfer. As the agency was not required to use competitive procedures, he was not "unlawfully deprived of the opportunity to respond" to a posted vacancy announcement. ****************** Footnote End ************ With regard to the second factor in the agency's PMS, there clearly was no job posting [Foot # 3 ] involved, nor was one required for the noncompetitive action which resulted in claimant's transfer. The agency explains why claimant's transfer was not subject to a job posting, i.e., competitive procedures: ****************** Footnote Begin ********** [Foot # 3 ] A "job posting" includes announcements of job openings pursuant to merit promotion plans, labor relation agreements, and written solicitiations of interest recruiting candidates for a position from which a competitive select will be made. PMS,Ch. D335- 13, para III.A. ****************** Footnote End ************ At the time that [claimant] requested a transfer to various OHA offices there was not a job posting for any of those offices. Further, when [claimant] was offered the opportunity to transfer pursuant to his request, there was still no job posting for an ALJ vacancy in Jackson, Mississippi. And finally, at no time did the Agency seek to fill a specific position vacancy in Jackson, Mississippi, through written solicitations of interest such as memoranda, teletypes, E-mail messages, etc. Nevertheless, the Agency does maintain files of correspondence from ALJs who are expressing a desire to change their duty stations whether due to hardship considerations or for other personal reasons. These files are maintained solely to afford employees an opportunity to relocate to a different commuting area for their benefit as permitted by policy. (PMS, Chapter S335-13,IV,D.) . . . When the Agency determines that it can accommodate these requests because it has been granted the authority to expand the ALJ corp or to replace ALJs lost through attrition, it may contact ALJs who have indicated a desire to be reassigned or transfer[red] to see if they are still interested. If they are, the Agency initiates the Personnel Action to effectuate the transfer. Except in limited circumstances where the Government derives a special benefit discussed below, these transfers are at the employee[']s expense and relocation reimbursement is not paid. In this process there is no differentiation in the treatment afforded ALJs from within OHA and ALJs from outside Agencies. Indeed, the transfer of an ALJ from one Agency to another is considered to be non-competitive by OPM (5 C.F.R. 930.206). The agency's explanation comports with its own policy and the regulation which allows transfers to be excepted from competitive procedures. Apparently, the agency has a policy of accommodating individuals such as claimant who are already working as ALJs but wish to make a lateral transfer. This procedure gives these individuals preference over other individuals who have not yet attained the position of ALJ, by allowing lateral transfers to fill available positions without employing competitive procedures to fill the vacancies. Claimant's assertion that he has been deprived of the right to participate in a competitive hiring procedure which would entitle him to relocation expenses lacks merit in light of what actually occurred. As the agency describes above, it makes a concerted effort to except itself from competitive procedures (which the regulations allow it to do) in order to give preference to individuals such as claimant who are currently employed as ALJs and wish to transfer duty stations for personal reasons. Claimant's request was given such a preference, which resulted in his being transferred to a location of his choice. The fact that optional competitive procedures might result in payment of relocation costs to successful candidates is not a reason to conclude that claimant is now entitled to his relocation costs. Additionally, at the time claimant made his requests for transfer, he had no way of knowing that the agency would not employ competitive procedures, and there appears to be no reason why he could not have submitted the necessary application to participate in the necessary competition if in fact the agency did employ competitive procedures. Even if such procedures had been employed, and claimant participated therein, there is no certainty that claimant would have been chosen for the position to which he was transferred. With regard to the third factor in the agency's PMS, whether the selection was based on a need to fill a specific vacancy with a particular individual, the agency states: The facts surrounding [claimant's] transfer do not satisfy these requirements. . . . Further, although [claimant] had the qualifications to be an AL as evidenced by his employment by DOL, there is nothing in the record which suggests that the Agency had a need for his unique qualifications. And finally, since the Agency sought to honor [claimant's] request for a transfer prior to ascertaining whether there were local qualified candidates for the vacancy, it can hardly be argued that there was an absence of such candidates which led to his transfer. Indeed, there is no reason that the Agency could not have met its need for additional ALJs through requesting a certificate of eligible candidates from OPM. Accordingly, it is clear that claimant's transfer to his current position resulted from the agency honoring his requests for a transfer and using noncompetitive procedures, and not because of a determination that there was a need to fill the specific vacancy with a particular individual. Finally, as the agency notes, in Michael S. Maram, B-259251 (Sept. 1, 1995), in which an ALJ employed by SSA requested and received a transfer within the agency for hardship reasons, the General Accounting Office denied reimbursement for relocation expenses, stating: 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. This Board has made similar rulings in cases involving lateral transfers. Steven D. Hanson, GSBCA 14270-RELO, 97-2 BCA 29,314; Paul C. Martin, GSBCA 13722- RELO (Dec. 11, 1996). [Foot # 4 ] ****************** Footnote Begin ********** [Foot # 4 ] We recognize that claimant has cited an SSA policy in the agency's PMS which automatically deems a relocation in response to a job posting to be in the interest of the Government and not primarily for the convenience or benefit of the employee, entitling such employees hired from job postings to receive relocation allowances. However, we believe these cases are still applicable to the instant situation, in that they espouse a principle concerning lateral moves, which the SSA exempts from competitive procedures. ****************** Footnote End ************ We find the agency's determination that claimant's transfer is not in the interest of the Government is consistent with statute, regulation, and the agency's own policy as set forth in its Personnel Manual, and was not capricious or arbitrary. We affirm the agency's determination and deny claimant's claim. ____________________ ALLAN H. GOODMAN Board Judge