This morning the Federal Circuit granted a petition for en banc rehearing and issued a modified opinion in Brimer v. Department of the Navy. Notably, Part I of the modified opinion is joined by all eleven of the active judges participating in the case. In that part, the court overrules its precedent and holds that a statutory provision granting veterans’ preference rights is applicable to veterans currently employed by the federal government. Here are the details.
The petition presented the following question:
- “Whether the provision that ‘veterans . . . may not be denied the opportunity to compete’ in section 2 of the Veterans Employment Opportunities Act of 1998 (‘VEOA’), Pub. L. No. 105-339, § 2, 112 Stat. 3182, 3182 (1998) (codified at 5 U.S.C. § 3304(l)) (previously codified at 5 U.S.C. § 3304(f)), excludes from its coverage veterans applying for positions from within the federal civil service.”
In Part I of today’s modified opinion, the en banc court unanimously answered this question with a resounding “no.” Here is Part I’s conclusion:
We conclude that the VEOA guarantees veterans and preference eligibles the right to compete regardless of their status as current federal employees. Accordingly, we hold that under § 3304(f)(1) an agency cannot rely on a veteran’s or preference eligible’s status as a current federal employee to deny him or her the right to compete, a right enforceable before the Board. We thus endorse the Board’s prior opinions in Jolley and Styslinger. Of course, however, while the VEOA guarantees preference eligibles and veterans the right to compete, it does not exempt them from the eligibility criteria, such as time-in-grade restrictions, that are applicable to all candidates.