Brimer v. Navy

Opinion

Case: 24-1388 Document: 51 Page: 1 Filed: 08/14/2026

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit

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DAVID SCOTT BRIMER,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

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2024-1388

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Petition for review of the Merit Systems Protection Board in No. AT-3330-21-0119-I-1.

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ON PETITION FOR REHEARING EN BANC

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DANIEL COOLEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Reston, VA, filed a petition for rehearing en banc. Also represented by J. DEREK MCCORQUINDALE; ALEXANDER EDISON HARDING, JASON LEE ROMRELL, Washington, DC.

STEPHEN J. SMITH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington , DC, filed a response to the petition for rehearing en banc. Also represented by PATRICIA M. MCCARTHY, BRETT SHUMATE, FRANKLIN E. WHITE, JR.

Case: 24-1388 Document: 51 Page: 2 Filed: 08/14/2026

2 BRIMER v. NAVY

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Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1

PER CURIAM.

ORDER

David Scott Brimer filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by the Department of the Navy. The petition was referred to the circuit judges who are in regular active service . The court conducted a poll on request, and a majority of the judges who are in regular active service voted for en banc consideration.

Accordingly, IT IS ORDERED THAT: (1) The petition for rehearing en banc is granted to the extent discussed in Part I of the modified opinion and judgment accompanying this order.

(2) The precedential opinion and judgment issued December 17, 2025, are withdrawn and replaced with the modified opinion and judgment.

FOR THE COURT

August 14, 2026 Date

1 Circuit Judge Newman did not participate.