Federal Circuit Overrules Precedent En Banc in Finnegan Pro Bono Victory for Federally Employed Veterans

FOR IMMEDIATE RELEASE
August 18, 2026

WASHINGTON, DC—Finnegan secured a significant pro bono victory for David Scott Brimer in Brimer v. Department of the Navy. In a rare en banc ruling, the U.S. Court of Appeals for the Federal Circuit overruled Kerner v. Department of the Interior, which excluded veterans already employed by the federal government from the right-to-compete protections of the Veterans Employment Opportunities Act of 1998. Every participating active judge joined the en banc opinion.  

Mr. Brimer is a preference-eligible disabled veteran who applied for a merit-promotion position, but was not referred to the hiring official because the Navy mistakenly believed he had failed to show that he met the time-in-grade requirement. The Board him denied corrective action under Kerner, and a three-judge Federal Circuit panel affirmed because it was bound by that precedent. Finnegan then successfully petitioned for rehearing en banc, and the Federal Circuit overruled that portion of Kerner, holding that an agency may not deny a veteran or preference eligible the opportunity to compete for a merit-promotion vacancy merely because the applicant is already a federal employee. The court vacated the Board’s decision and remanded for further proceedings.  

“Mr. Brimer asked the court to recognize that veterans should not lose an important statutory protection merely because they continued serving the public as federal employees,” said Finnegan partner Daniel Cooley, who led the Finnegan team for the appeal. “The court’s decision affirms that Congress gave that right to compete to veterans both inside and outside the federal workforce.”  

The matter was handled pro bono through Finnegan’s Merit Systems Protection Board appellate program. Daniel argued the appeal, with Alexander Harding, Jason Romrell, and J. Derek McCorquindale serving as counsel. Natalie Nogueira and Sebastian Quiroga also made significant contributions to the matter while working at Finnegan.  

Contacts
 
Terra Liddell, Chief Marketing Officer
terra.liddell@finnegan.com

Angela Robinson, Director of Branding and Communications
angela.robinson@finnegan.com

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