Brimer v. Navy

N
OTE: This order is nonprecedential.

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.
______________________

ON PETITION FOR REHEARING EN BANC
______________________

D
ANIEL COOLEY, Finnegan, Henderson, Farabow, Gar-
rett & Dunner, LLP, Reston, VA, filed a petition for rehear-
ing 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, Wash-
ington, DC, filed a response to the petition for rehearing en
banc. Also represented by P
ATRICIA M. MCCARTHY, BRETT
SHUMATE, FRANKLIN E. WHITE, JR.
Case: 24-1388 Document: 51 Page: 1 Filed: 08/14/2026

BRIMER v. NAVY 2
______________________

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

PER CURIAM.
O R D E R
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 ser-
vice. 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,
I
T IS ORDERED THAT:
(1) The petition for rehearing en banc is granted to the
extent discussed in Part I of the modified opinion and judg-
ment accompanying this order.
(2) The precedential opinion and judgment issued De-
cember 17, 2025, are withdrawn and replaced with the
modified opinion and judgment.

August 14, 2026
Date
FOR THE COURT

1
Circuit Judge Newman did not participate.
Case: 24-1388 Document: 51 Page: 2 Filed: 08/14/2026