A candidate passes all the tests, invests months in preparation, and in the final stretch, receives the news of their elimination. The reason is an old investigation that never even became a criminal case, or a minimum height requirement that was only mentioned in the announcement, or a psychological exam whose result no one can explain. The question that reaches the lawyer is always the same: Is there anything that can be done?

In most cases, yes. Judicial review of the elimination phases of public service examinations is one of the busiest chapters of Administrative Law, and the jurisprudence of the Superior Court of Justice (STJ) and the Supreme Federal Court (STF) has established quite precise criteria regarding when the Administration acts within the law and when it oversteps its bounds. 

Understanding these criteria, phase by phase, is what separates a successful application from one that is doomed from the start. And the starting point is a single rule that runs through all stages.

What rule unifies the control of public service examinations?

The Judiciary does not replace the selection committee nor does it re-evaluate the administrative merit. What it controls is the legality of the act that eliminates the candidate. And this control is based on a requirement that is repeated in almost all phases: that the restriction imposed be provided for by law, with objective criteria and concrete justification.

The distinction between law and public notice is at the heart of the matter. The public notice organizes the selection process, but it cannot, on its own, create a barrier that the law does not authorize. When an eliminatory requirement exists only in the public notice, without support in specific legislation, the act of exclusion tends to collapse under judicial review. 

Based on this key, each phase of the public competition has its own test, which the lawyer needs to know in order to determine, beforehand, whether or not their client's elimination is justifiable.

Physical requirements: height, weight, and BMI only with specific legislation.

The requirement of a minimum height, weight, or body mass index for military careers is constitutional, but the Superior Court of Justice (STJ) conditions it on a strict requirement. There needs to be a provision in a specific law, compatible with the duties of the position; a clause in the public competition notice is not sufficient.

The sensitive point is that the Military Statute, Law 6.880/1980 , does not set a limit on height, weight, or BMI for entry. And generic provisions, such as that of Law 12.464/2011, which only mentions the possibility of requiring anthropometric requirements, were considered insufficient to meet the constitutional requirement of legal provision. In cases such as AgInt in REsp 2.085.689 and AgInt in AREsp 2.042.248, the Superior Court of Justice (STJ) recognized the illegality of excluding candidates when the minimum height requirement came only from the public notice and internal instructions from the military command.

According to the lawyer, the argument is straightforward. If the physical requirement that eliminated the candidate is not based on specific legislation, but only on the terms of the public notice, the exclusion is justifiable. The challenge lies in not turning the discussion into a matter of measuring the test itself, a field where Precedent 7 of the Superior Court of Justice (STJ) prohibits further discussion.

Social investigation and Topic 22 of the STF (Supreme Federal Court)

The social investigation phase is the one that generates the most controversy and requires the most detailed analysis. In Case 22, the Supreme Federal Court (STF) established that the mere existence of a police report, investigation, or ongoing criminal proceedings does not authorize the elimination of a candidate, in respect of the presumption of innocence. As a rule, a conviction by a collegiate body or a final conviction is required, along with a reasoned demonstration of the incompatibility between the conduct and the position.

However, there is a relevant mitigation. For public security careers, such as prison guards and military police officers, and for the judiciary, the Supreme Federal Court (STF) and the Superior Court of Justice (STJ) admit greater rigor in assessing moral integrity, but only in extremely exceptional situations of indisputable gravity, proven objectively. The social investigation can encompass moral and social conduct throughout life, and not only criminal records. This was the basis for maintaining the exclusion in RMS 77.518, concerning a prison guard with a concrete and repeated history of serious misconduct.

The Special Court of the Superior Court of Justice (STJ), in the judgment that examined RMS 64.965, upheld the annulment of exclusion based exclusively on police reports and criminal proceedings, without concrete demonstration of exceptionality, under penalty of transforming the exception of the Supreme Federal Court (STF) into a rule. And in RMS 73.194, it recognized the excessive rigor of the Administration in rejecting a candidate for a matter already resolved in a non-prosecution agreement and for a complaint of domestic violence retracted by the author herself. The dividing line is the concrete and motivated gravity, not the mere pendency.

Psychometric test: the three assumptions

Case law has established that psychometric testing in public service examinations is only legitimate when it fulfills three cumulative requirements: legal provision, objective criteria defined in the notice of competition, and the possibility for the candidate to review the result. The absence of any one of these elements invalidates the evaluation.

The subjective character test, which does not specify which personality traits were analyzed nor allow for appeals, is null and void because it violates the principles of publicity, impartiality, and the right to a full defense. Once the nullity is recognized, the rule, established by the Supreme Federal Court in RE 1.133.146 under general repercussion, is that the candidate must undergo a new examination with objective criteria, and not automatically proceed in the competition, in respect of equality. There is an important exception, however. When the notice itself did not provide for objective criteria, there is no parameter for repeating the test, and the Superior Court of Justice has rejected the requirement for a new evaluation.

For the petition, the strategy unfolds. Attack the nullity due to lack of objectivity or appealability, and, as the case may be, request a new examination with public criteria or direct continuation when the flaw in the notice makes repetition impossible.

Age and pregnancy: specific law and protection of motherhood.

The age limit follows the same logic as the physical requirements. It is only legitimate when provided for by law and justified by the nature of the job's duties, according to Precedent 683 of the STF (Supreme Federal Court), and a provision in the public notice alone is insufficient. Proof of age must be provided at the time of registration, not at the time of enrollment in the training course. It is worth noting that a writ of mandamus cannot be used to challenge a law in abstract terms, by virtue of Precedent 266 of the STF, which requires care in formulating the request.

The protection of motherhood opens a separate and favorable chapter for the candidate. Although the general rule denies the rescheduling of tests due to personal circumstances, the Brazilian Supreme Court (STF), in Case 973, established that the rescheduling of the physical aptitude test for a pregnant candidate is constitutional, regardless of any provision in the public notice. The Superior Court of Justice (STJ) extended the same protection to breastfeeding candidates. This is a right that does not depend on a clause in the public notice and prevails even in the face of an express provision to the contrary.

How do I incorporate the thesis statement into the petition?

Practical synthesis begins with a procedural choice that defines success. A writ of mandamus is the most common, swift, and appropriate route when the right is demonstrable through pre-established evidence, but does not allow for further evidentiary proceedings. When the controversy depends on expert analysis, as in a contested height measurement, ordinary legal action is usually the safest path.

Once the route is defined, the itinerary is organized into a few main axes.

• To demonstrate that the elimination requirement lacks specific legal basis, relying solely on the terms of the public notice, whenever that is the case, because it is the strongest argument.
• In public security careers, it is argued that exclusion based on social investigation is only legitimate in cases of concrete and justified seriousness, invoking Supreme Court Ruling 22 and dismissing the mere pendency of an inquiry or criminal action.
• In the psychometric test, challenge the lack of objectivity in the criteria and the lack of appealability, requesting a new test or continuation of the process depending on the identified flaw.
• It is necessary to verify the interest in pursuing legal action before litigating, as there is no point in discussing a phase when the candidate has already been independently disqualified in another, as the Superior Court of Justice (STJ) established when recognizing the loss of object in the AgInt in RMS 70.207.
• In the appeal process, it is necessary to specifically challenge all the grounds of the judgment and address the pre-trial issues, otherwise Supreme Court rulings 284 and 282 and Superior Court of Justice ruling 7 regarding matters of evidence will apply.

Mastering this map transforms the candidate's indignation into a calibrated procedural strategy that attacks precisely the point where the Administration deviated from legality.

The postgraduate program in Administrative Law at IDP

The case of the public tender reveals what lies at the heart of contemporary Administrative Law. Controlling the legality of state action, from the exclusion of a candidate to major bidding and contracting decisions, requires a professional who understands the limits of administrative power and the instruments for its review. Those who master this logic have an advantage in litigation on both sides, that of the citizen and that of the Administration.

The Postgraduate Program in Administrative Law at IDP was designed to deliver precisely this training. The program is organized into two axes: one on the fundamentals and structure of Administrative Law, including the civil liability of the State and internal and external controls; and another on contracting, governance, and implementation instruments, which includes bidding processes, arbitration in the public sector, and judicial control of the administration. 

The faculty includes those who work on the front lines of these decisions, such as Gustavo Schiefler, PhD in Law and lawyer specializing in the area, Weder de Oliveira, PhD and minister of the Federal Court of Accounts, and Vládia Pompeu, PhD in Law and ombudsman in the federal public sector.

The classes are 100% online and live, held every two weeks, a format that fits the routine of those who practice law and study at the same time. 

Anyone who understands at what point elimination in a public competition ceases to be discretionary and becomes illegal sees the argument that their colleague only realizes after missing the deadline. 

Manassés Lopes da Silva is a lawyer and university professor. He holds a Master's degree in Law from IDP/SP, a specialization in Civil Procedural Law from IDP, and an LLM in Processes and Appeals in Superior Courts. Email: contato@manasseslopes.com