The U.S. Court of Appeals for the Federal Circuit, sitting en banc, ruled in favor of Finnegan client David Brimer, that veterans who are already federal employees may still be entitled to protections under the Veterans Employment Opportunities Act (VEOA) when applying for promotions that are also open to outside candidates. In doing so, the court overruled part of its 2015 decision in Kerner v. Department of the Interior.
The case arose after the U.S. Navy rejected David Brimer’s application for a promotion based on the mistaken belief that he had failed to submit required documents. Although the Navy later reviewed his application, it did so after selecting another candidate. Brimer challenged the decision, arguing that the Navy denied him the opportunity to compete for the position and violated his veterans’ preference rights.
The Federal Circuit agreed that the plain language of the statute does not limit its protections to veterans who are new to federal service. The court held that eligible veterans may not be denied the opportunity to compete for positions when an agency accepts applications from outside its workforce, regardless of whether the veteran is already employed by the federal government. The court remanded the case for further proceedings.
Finnegan partner Dan Cooley told Law360 that he was pleased with the Federal Circuit’s en banc decision.
"By overruling its prior precedent, the court restored to veterans like Mr. Brimer the opportunity to compete on a level playing field for federal employment and reaffirmed the protections Congress enacted on their behalf," Dan said.
Read “Fed. Circ. Overrules Precedent on Veteran Hiring Protections”
