Dean v. Consumer Product Safety Commission

Opinion

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2007-3038

DAVID DEAN,

Petitioner,

v.

CONSUMER PRODUCT SAFETY COMMISSION,

Respondent.

David Dean, of Lugoff, South Carolina, pro se.

Marla T. Conneely, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Donald E. Kinner, Assistant Director.

Appealed from: United States Merit Systems Protection Board NOTE: This disposition is nonprecedential.

__________________________

DECIDED: February 28, 2007 __________________________

Before NEWMAN, MAYER, and PROST, Circuit Judges.

NEWMAN, Circuit Judge.

David Dean petitions for review of the decision of the Merit Systems Protection

Board, Docket Nos. AT3443050147-I-1 and AT3443050179-I-1, dismissing his claims for

failure to state a claim for which relief can be granted. We vacate the decision of the Board

and remand for further proceedings. DISCUSSION

Mr. Dean, a disabled veteran, applied for the position of Products Safety Investigator

with the Consumer Products Safety Commission (the Agency) in Columbia, South Carolina.

The seven page notice announcing the position contained, on the sixth page, the following

statement:

Status candidates and individuals who are eligible for special hiring authorities, who wish to be considered under both merit promotion or special hiring authority and competitive procedures, MUST submit two (2) complete applications. If one application is received, it will only be considered under the special hiring authority or the merit promotion procedure.

Mr. Dean applied for the position, by covering letter identified himself as a 30% disabled,

preference-eligible veteran, and requested that his application be considered for "non-

competitive appointment under applicable non-competitive appointment authorities." In his

initial mailing he submitted only one application. Mr. Dean states that he subsequently

realized his mistake and submitted two more applications, and he submitted to the Board

the affidavits of two witnesses who averred that they saw him place the additional

applications in the mail. The Agency stated that only one application was received, and the

Board so found. This disputed issue of fact raises questions of credibility, which the Board

resolved against Mr. Dean. We have no basis on which to overturn the Board's

determination of this issue.

The Agency developed two lists of candidates for the position, one a "competitive"

list of ranked candidates and the other a "non-competitive" list of candidates. Mr. Dean's

application was placed on the non-competitive list. His candidacy apparently received no

consideration, for the position was filled from the other list.

2007-3038 2 The administrative judge dismissed his appeal for failure to state a claim upon which

relief can be granted. The full Board denied review, with Chairman McPhie filing an opinion

raising concerns about the use of two lists. He states that the Board has never ruled on

whether this procedure is acceptable under federal employment law, and expresses

concern that persons such as disabled veterans must either submit multiple applications or

encounter the possibility of not even being considered for the announced position.

However, the Board did not review the procedure, and sustained the dismissal.

Mr. Dean alleges violation of the Veterans Employment Opportunities Act, 5 U.S.C.

§3330a ("VEOA") and the Uniformed Services Employment and Reemployment Rights Act,

38 U.S.C. §4324 ("USERRA"). The Agency states that Mr. Dean was placed on the non-

competitive list at his request, and that "he was placed on the non-competitive appointment

list where veterans' preferences do not apply." Respondent's Brief at 9. The Agency does

not explain why it establishes two separate lists and then selects from only one, discarding

the other. The Agency does not dispute that no one on the non-competitive list was ranked

or given further consideration unless he had submitted two applications and requested

placement on both lists. Mr. Dean challenges the practice of creating two hiring lists and

then using only one list as a source of eligible candidates. He states that the procedure

enables the Agency to manipulate appointments, to circumvent merit selection, and to

discriminate against disabled veterans, whose statutory preference would otherwise give

the veteran an advantage. Mr. Dean states that this procedure deprived him of the

opportunity and right to compete for the position, violating both the VEOA and USERRA,

and is per se discriminatory.

2007-3038 3 The record is undeveloped, and the Agency did not explain the reasons for this

procedure. However, in view of the impact on Mr. Dean (whose application apparently

received no consideration), and given Mr. Dean's veteran's preference status, the

procedure on its face raises questions. We conclude that the Board erred in declining Mr.

Dean's request to consider the validity of the procedure as practiced by the Agency.

We vacate the decision of the Board, and remand for determination of whether the

Agency's practice is in accordance with law and merit principles.

2007-3038 4