Attorney-Applicant Loses Job–Wins in Court

By on September 20, 2005 in Current Events with 0 Comments

An unsuccessful applicant for an attorney position with the Department of Interior showed off his legal skills when he represented himself before the Federal Circuit to challenge the Merit Systems Protection Board’s dismissal of his appeal for lack of jurisdiction. He came away with a win on one issue that sends the case back to the Board, which now must consider the merits of his case. (Patterson v. Department of the Interior, U.S.C.A.F.C.No. 05-3047, September 19, 2005)

When Mr. Patterson applied for the excepted service attorney-advisor position he showed 3-plus years military service on his application. He did not get the job and appealed to the Board. He claimed that (1) the agency failed to grant him veterans preference as required by the Veterans Employment Opportunities Act of 1998 (“VEOA”), and (2) that his non-selection was in fact the result of discrimination based on his prior military service, a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). (Opinion, p. 3) Pub. L. No. 103-353, 108 Stat. 3149 (codified at 38 U.S.C. § 4311 et seq.).

The Board dismissed Patterson’s appeal for lack of jurisdiction, (Patterson v. Dep’t of the Interior, PH-3443-03-0078-I-1 [M.S.P.B. Sept. 22, 2004] [“Final Decision”]; Patterson v. Dep’t of the Interior, PH-3443-03-0078-I-1 [M.S.P.B. Mar. 11, 2003] [“Initial Decision”]).

Mr. Patterson petitioned the Federal Circuit for review. In this partial win for Patterson and partial win for the agency, the court held: “For the reasons set forth below, we see no error in the Board’s dismissal of Mr. Patterson’s VEOA claim. However, we conclude that the Board did err in dismissing his USERRA claim. Accordingly, the Board’s decision is affirmed-in-part and reversed-in-part, and the case is remanded to the Board for adjudication of the merits of Mr. Patterson’s USERRA claim.” (pp.1-2)

On the VEOA claim, the court found that the agency had considered Mr. Patterson’s veterans status a “positive factor” when it evaluated his application. Since attorney positions are excepted, the numerical 5/10 point system does not apply as these types of positions are not filled by numerical scoring. Instead, Office of Personnel Management regulations permit an agency to do exactly what Interior did in this case. The court concluded that OPM acted within its authority in permitting this method for applying veterans preference in filling attorney positions: “The agency has interpreted, and OPM has agreed, that this means an agency must consider veteran status as a ‘positive factor’ in reviewing applications. We think this approach represents a reasonable balance between the goals of the VPA and the flexible hiring standards employed by the excepted service for filling attorney vacancies.” (p. 13)

The court did quibble with how the Board went about dismissing this part of Patterson’s challenge, indicating it should have been for failure to state a claim upon which relief could be granted, rather than for lack of jurisdiction. In any event, the Board had jurisdiction over this part of Mr. Patterson’s claim, but nevertheless his claim failed on the merits. (p.15)

While Mr. Patterson struck out on part one of the claim, he did very well indeed on part two. The USERRA provides that an employer may not deny initial employment on the basis of an individual’s uniformed service. (38 U.S.C. 4311(a)). Patterson demonstrated his military service and his non-selection by the agency and he argued that the non-selection was a pretext….that the agency’s true reason for passing him over was Patterson’s military service.

The court held that these allegations were enough to give the Board jurisdiction to hear this aspect of Patterson’s appeal. Therefore, it reversed this part of the Board’s decision and remanded to the Board to consider the merits of his claim under USERRA. (p. 17)

All and all this was not a bad day’s work for Mr. Patterson. It must have felt good to prevail over the agency that saw fit not to hire him as one of their attorneys.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.