Dow v. Gen. Serv. Admin. , No. 08-3352
Decision of the Merit Systems Protection Board dismissing, for lack of jurisdiction, petitioner's challenge to the General Services Administration's refusal to hire him is affirmed where: 1) the record shows that the agency's reason for not hiring petitioner had nothing to do with the Outstanding Scholar Program, but was based on the agency's conclusion that he was not suitable for the position that he sought; and 2) the government's motion to vacate and remand is denied as the case is not moot as there continues to be a live controversy between the parties over whether the Administration's treatment of petitioner violated Part 300 of Title 5 of the Code of Federal Regulations and, if it did, what relief should be obtained.
Appealed from: Merit Systems Protection Board
Decided January 6, 2010
Opinion by Friedman, Circuit Judge
For Appellant: Michael J. Kator, Kator Parks & Weiser, PLLC
For Appellee: Meredyth Cohen Havasy, US Department of Justice, Commercial Litigation Branch