David Scott Brimer v. Department of the Navy

United States Court of Appeals
for the Federal Circuit
______________________
DAVID SCOTT BRIMER,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2024-1388
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3330-21-0119-I-1.
______________________
Decided: December 17, 2025
______________________
DANIEL COOLEY, Finnegan, Henderson, Farabow, Gar-
rett & Dunner, LLP, Reston, VA, argued for petitioner.
Also represented by J. DEREK MCCORQUINDALE;
ALEXANDER EDISON HARDING, JASON LEE ROMRELL, Wash-
ington, DC.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
PATRICIA M. MCCARTHY, YAAKOV ROTH, FRANKLIN E.
WHITE, JR.
______________________
Case: 24-1388 Document: 42 Page: 1 Filed: 12/17/2025

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BRIMER v. NAVY 2
Before TARANTO, STOLL, and CUNNINGHAM, Circuit
Judges.
STOLL, Circuit Judge.
David S. Brimer petitions for review of the Final Order
of the Merit Systems Protection Board denying his request
for corrective action under the Veterans Employment Op-
portunities Act of 1998. Because Mr. Brimer was a federal
employee seeking a merit promotion, 5 U.S.C. § 3304(f)(1)
does not apply to him and we affirm.
BACKGROUND
Mr. Brimer is a preference-eligible disabled veteran.
Mr. Brimer was employed by the Naval Bureau of Medicine
and Surgery as a GS-13 Supervisory Human Resources
Specialist. While in that position, he applied for a merit
promotion to a GS-14 Assistant Human Resources Officer
position with the Naval Education and Training Com-
mand. The position Mr. Brimer applied to was open to
“[c]urrent permanent employees, [Veterans Employment
Opportunities Act of 1998 (VEOA)] eligibles, and DoD Mil-
itary Spouse Preference (MSP) eligibles.” J.A. 77.
Mr. Brimer’s application was not referred to the hiring of-
ficial because the agency mistakenly believed that
Mr. Brimer did not submit documents reflecting that he
met the time-in-grade (TIG) requirement for the position.
Mr. Brimer filed a VEOA complaint with the Department
of Labor, Veterans’ Employment and Training Service
(VETS), on October 20, 2020. On October 22, 2020, the po-
sition was offered to another applicant. On November 18,
2020, nearly four weeks after the position was offered to
someone else, the Navy received notice of Mr. Brimer’s
complaint, and identified the error made regarding
Mr. Brimer’s eligibility. The Navy reviewed Mr. Brimer’s
application and determined that Mr. Brimer was not
among the most highly qualified candidates for the posi-
tion. On December 2, 2020, VETS issued a letter closing
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BRIMER v. NAVY 3
the file on Mr. Brimer’s VEOA complaint and notified him
of his appeal rights.
Mr. Brimer timely filed an appeal with the Merit Sys-
tems Protection Board, “alleg[ing] that the agency ob-
structed his right to compete for employment and violated
his veterans’ preference rights” under 5 U.S.C. § 3304(f)(1)
(2017).1 J.A. 3; J.A. 16. Subsection (f)(1) states:
Preference eligibles or veterans who have been sep-
arated from the armed forces under honorable con-
ditions after 3 years or more of active service may
not be denied the opportunity to compete for vacant
positions for which the agency making the an-
nouncement will accept applications from individ-
uals outside its own workforce under merit
promotion procedures.
5 U.S.C. § 3304(f)(1).
The administrative judge denied Mr. Brimer’s request
for corrective action under the VEOA, stating that while
the agency initially erred in finding Mr. Brimer unquali-
fied, this error “was corrected by a merit review of
[Mr. Brimer]’s application.” J.A. 18. Mr. Brimer filed a pe-
tition for Board review. The Board affirmed the initial de-
cision, stating that while it disagreed with the
administrative judge’s reasoning, Mr. Brimer was not enti-
tled to corrective action under the VEOA as a matter of law.
Specifically, relying on Kerner v. Department of the Inte-
rior, 778 F.3d 1336 (Fed. Cir. 2015), the Board held that
Mr. Brimer was not entitled to any corrective action based
on a denial of an opportunity to compete under § 3304(f)(1)
because Mr. Brimer was already a federal employee, and
1 The current version of 5 U.S.C. § 3304 was enacted
in 2024 and the relevant provision in subsection (f)(1) is
now in subsection (l)(1).
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BRIMER v. NAVY 4
§ 3304(f) is inapplicable to veterans who are already em-
ployed by the federal government.
Mr. Brimer now petitions for judicial review of the
Board’s final order. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see also Hornseth v. Dep’t of the Navy,
916 F.3d 1369, 1373 (Fed. Cir. 2019).
When filling vacancies, “[f]ederal agencies generally
use two types of selection processes”: “open competition
and merit promotion.” Kerner, 778 F.3d at 1337. “Open
competition is used for employees seeking to join the com-
petitive service.” Id. (citing Joseph v. Fed. Trade Comm’n,
505 F.3d 1380, 1381 (Fed. Cir. 2007)). “Merit promotion is
‘used when the position is to be filled by an employee of the
agency or by an applicant from outside the agency who has
“status” in the competitive service.’” Id. (quoting Joseph,
505 F.3d at 1381). It is undisputed that the vacancy at is-
sue here was a merit-promotion vacancy.
On appeal, Mr. Brimer challenges the Board’s holding
that the opportunity to compete in § 3304(f) is inapplicable
to veterans who are already employed by the federal gov-
ernment. In particular, Mr. Brimer argues that the Board
misread this court’s decision in Kerner. According to
Mr. Brimer, Kerner only addressed whether an agency
must consider a veteran’s non-federal civil service experi-
ence under 5 U.S.C. § 3111 when giving a veteran an op-
portunity to compete under § 3304(f)(1). Pet. Br. 25.
Mr. Brimer argues that Kerner focused on “whether prefer-
ential treatment—not the fundamental right to compete—
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BRIMER v. NAVY 5
can flow from . . . § 3311 through § 3304 to federally em-
ployed veterans.” Id. at 31.
After considering Mr. Brimer’s arguments, we con-
clude that the Board properly interpreted Kerner as hold-
ing that § 3304(f) is inapplicable to federally employed
veterans. In that case, Mr. Kerner was employed by the
Department of the Interior and applied for two merit pro-
motion vacancies. Kerner, 778 F.3d at 1337. Both posi-
tions required applicants to meet TIG requirements, and
the Department of the Interior determined that Mr. Kerner
did not meet either TIG requirement, and found him un-
qualified for both positions. Id. We affirmed the Board’s
denial of corrective action, concluding that because
Mr. Kerner was already employed by the federal govern-
ment, § 3304(f) was inapplicable to his case. Id. at 1338–
39. To arrive at this holding, we interpreted § 3304(f) and
expressly held that “[v]eterans already employed by the
competitive service are already ‘eligible to apply’ to merit-
promotion vacancies and thus cannot be the intended tar-
get for § 3304(f).” Id. at 1338 (quoting 5 U.S.C. § 3304(f)).
Mr. Brimer urges us to ignore this specific statement
and others in Kerner regarding the inapplicability of § 3304
to veterans already employed by the federal government.
According to Mr. Brimer, these statements are made in iso-
lation and not meant to be binding on all federally em-
ployed veterans. Pet. Br. 26–27. We disagree. While
Kerner involved both §§ 3311 and 3304(f), this court
reached its ultimate holding in the case by limiting
§ 3304(f) to veterans who are not already employed by the
federal government. Citing the title of the VEOA, the title
of § 2 of the VEOA (which amended § 3304(f)), language in
§ 3304(f)(4), and the legislative history, the court reasoned
that these sources demonstrate “that Congress did not in-
tend for § 3304 to apply when a veteran or other prefer-
ence-eligible applicant is already employed in federal civil
service.” Kerner, 778 F.3d at 1338–39.
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BRIMER v. NAVY 6
Mr. Brimer next argues that “to the extent Kerner ac-
tually held that § 3304(f)(1) never applies to federally em-
ployed veterans, it must be clarified or overruled.” Pet.
Br. 33 (capitalization normalized). Even if we agreed with
Mr. Brimer, however, we are bound by this court’s prior de-
cisions. See Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757,
765 (Fed. Cir. 1988) (“This court has adopted the rule that
prior decisions of a panel of the court are binding precedent
on subsequent panels unless and until overturned in
banc.”). Thus, we must affirm the Board’s decision that
Mr. Brimer was not entitled to any corrective action based
on a denial of an opportunity to compete under § 3304(f)(1).
Mr. Brimer contends that Kerner is inconsistent with
this court’s prior decisions in Joseph and Lazaro v. Depart-
ment of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012).
But these cases are inapposite as they do not address the
same question as Kerner. While Joseph addressed whether
a preference-eligible veteran had been afforded an oppor-
tunity to compete under § 3304(f)(1), the court held that
Mr. Joseph had been given a full opportunity to compete.
505 F.3d at 1383. The court therefore had no occasion to
address whether § 3304(f) applies to both veterans seeking
employment with the federal government and veterans al-
ready employed by the federal government. Likewise,
Kerner is consistent with Lazaro because that case ad-
dressed Mr. Lazaro’s nonfrivolous allegation that the VA
violated his rights under 5 C.F.R. § 302.302(d), a regula-
tion relating to veteran’s preference. See Lazaro, 666 F.3d
at 1319. Importantly, the court did not address any issues
that required interpretation of § 3304(f) and whether it ap-
plies to preference-eligible veterans already employed by
the federal government.
We thus affirm the Board’s decision denying
Mr. Brimer’s request for corrective action under the VEOA.
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BRIMER v. NAVY 7
CONCLUSION
We have considered Mr. Brimer’s remaining argu-
ments and find them unpersuasive. For the reasons stated
above, we affirm the Board’s decision denying Mr. Brimer’s
claims.
AFFIRMED
COSTS
No costs.
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