Last Updated: September 2, 2026 Reading Time: 8 min

For more than a decade, a veteran who already held a federal job could be told a merit-promotion announcement was not for them, even when the agency was accepting outside applicants. The full Federal Circuit has now overruled the 2015 decision that allowed that. Below is what Brimer v. Department of the Navy does for the VEOA rights of current federal employees who are veterans, and the three things it does not do.

Quick Answers Before the Details

What changed? Since 2015, a Federal Circuit panel decision called Kerner said the Veterans Employment Opportunities Act's right to compete (5 U.S.C. § 3304(f)(1), recodified in 2024 as § 3304(l)(1)) did not apply to veterans who were already federal employees. The full court has now said Kerner got that wrong.

Who is covered? Preference eligibles, and separately, veterans separated under honorable conditions after three or more years of active service. The second group does not need preference points.

When does it apply? When an agency posts a merit-promotion vacancy and chooses to accept applications from outside its own workforce. Internal-only postings do not trigger it.

What do you get? The right to apply and be considered on the same footing as the outside applicants. You do not get extra points or a pass on time-in-grade.

What if the agency ignores it? DOL-VETS complaint within 60 days, MSPB appeal after that, back pay plus liquidated damages if the violation was willful.

The rest of this post explains each of those in plain terms, with the case facts, so you can spot a VEOA-triggering announcement and know what to do.

The Case: A GS-13 Who Was Told the Job Was Not for Him

David Brimer was a GS-13 Supervisory HR Specialist at the Naval Bureau of Medicine and Surgery, a preference-eligible disabled veteran. In 2020 he applied for a GS-14 Assistant HR Officer job at Naval Education and Training Command. The announcement was open to "current permanent employees, VEOA eligibles, and Military Spouse Preference eligibles."

The Navy did not refer his application. It believed, mistakenly, that he lacked time-in-grade documentation. Brimer filed a VEOA complaint with the Department of Labor on October 20, 2020. Two days later the Navy offered the job to someone else. By the time the Navy received notice of the complaint and found its error, the position was filled.

An MSPB administrative judge, then the full Board, denied relief. Both relied on Kerner: Brimer was a current federal employee, so the VEOA right to compete did not reach him. A three-judge Federal Circuit panel agreed it was bound by Kerner. The full court then took the case en banc.

What the En Banc Court Held About VEOA and Current Federal Employees

The opinion issued December 17, 2025 and was modified and reissued August 14, 2026 after a petition for rehearing. The holding did not change. Eleven of twelve active judges joined it; there was no dissent.

The court read the statute as written. Section 3304(f)(1) says that when an agency accepts applications from individuals outside its own workforce under merit promotion procedures, preference eligibles and qualifying veterans "may not be denied the opportunity to compete." Nothing in that text carves out veterans who already work for the government. So, in the court's words, "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."

Kerner was overruled "to that extent." The court also endorsed two MSPB decisions from 2007, Jolley and Styslinger, that had reached the same conclusion before Kerner, and that the Board itself had abandoned in 2022 to follow Kerner.

The ruling restores a reading the MSPB itself used from 2007 to 2015, when current-employee veterans had this right; Brimer puts it back.

The Three Things This Ruling Does Not Do

Most of the confusion in the first week of coverage comes from mixing up three separate questions. The court answered only one of them.

Claim you may hear What the opinion says Where
"Veterans now get preference points on promotions." False. Kerner's holding that 5 U.S.C. § 3311 preference points do not apply to intra-agency promotions or transfers is expressly left intact. Footnote 4
"Agencies can't apply time-in-grade to veterans anymore." False. VEOA "does not exempt them from the eligibility criteria, such as time-in-grade restrictions, that are applicable to all candidates." Page 9
"Every merit-promotion posting must now accept outsiders." False. The right attaches only when the agency has chosen to accept applications from outside its own workforce. Internal-only postings are untouched. Page 4
"Only veterans with preference points benefit." False. The statute separately covers veterans honorably separated after three or more years of active service, with or without points. Page 6
"Brimer won and gets the GS-14 job." Not decided. The case was vacated and remanded for the MSPB to apply the correct standard; the time-in-grade dispute could still defeat his individual claim. Pages 9-10
"This is brand-new law." It is a reinterpretation of a 1998 statute, restoring the reading the MSPB used from 2007 to 2015. Pages 7-9

The distinction that matters most: the right to compete is the right to be in the pool. Once you are in it, you are ranked and selected under the same merit-promotion rules as everyone else. Your DD-214 gets you through the door. It does not move you up the certificate.

How to Spot an Announcement That Triggers the Right

The trigger is the agency's own choice to open the vacancy beyond its workforce. On USAJOBS, look at "This job is open to" and the "Clarification from the agency" text.

  • Triggers VEOA rights: "Career transition (CTAP, ICTAP, RPL)," "Federal employees - Competitive service," and "Veterans" listed together; or clarification text like "Current permanent federal employees, VEOA eligibles, and ICTAP eligibles."
  • Triggers VEOA rights: "Internal to an agency" paired with "Veterans," because the veterans line is the outside-applicant window.
  • Does not trigger VEOA rights: "Internal to an agency" alone, with clarification text limiting applicants to current employees of that component.

If the posting names VEOA eligibles or veterans as a hiring path, and you are a current federal employee who is a veteran, you apply under that path and the agency may not screen you out for being a current employee. You still have to meet the grade, series, and time-in-grade requirements stated in the announcement.

More Than One in Four Feds Is a Veteran

OPM's FY2024 veterans employment report puts more than 621,700 veterans in the federal executive branch, about 27% of the workforce, and more than half of them are disabled veterans. That is the population this ruling reaches: over 600,000 people, more than the population of Wyoming, who can now assert the right to compete for a promotion opened to outsiders. FedTools 2026 context: workforce share from OPM as reported by Pew Research Center, April 2025.

Not all of them will ever need it. Most merit promotions are filled from inside without a fight. The ruling matters at the margin, for the announcement where an HR office decides that a current employee applying under the veterans path is in the wrong lane.

If Your Agency Blocks You: The 60-Day Clock

The VEOA enforcement path has two stages and two deadlines. Both are short.

  1. File a complaint with DOL-VETS within 60 days of the alleged violation (5 U.S.C. § 3330a(a)). The violation is usually the non-referral or the non-selection notice. Do not wait for the position to be filled.
  2. DOL investigates and tries to resolve it. If DOL notifies you it could not resolve the complaint, you have 15 days from that notice to appeal to the MSPB. If 60 days pass with no DOL notice, you may go to the MSPB starting on the 61st day.
  3. At the MSPB, you have to show the agency denied you an opportunity to compete that the statute guaranteed. Brimer settles the legal question; you still prove the facts.

If the Board finds a violation, it orders compliance and compensation for lost wages and benefits. If it finds the violation was willful, meaning the agency knew or recklessly disregarded that its conduct was prohibited, it must also award liquidated damages equal to the back pay (5 U.S.C. § 3330c). After Brimer, an agency that keeps applying the Kerner rule to current employees has a harder time calling that an honest mistake.

Document the announcement text, your application, the referral or non-referral notice, and any HR communication that cites your current-employee status. That record is what an MSPB judge will ask for.

What This Means If You Are Job-Hunting Inside Government Now

Three practical moves for the next announcement you see:

  • Apply under the veterans path when it is listed, even if you are also eligible as a status candidate. Applying under both, where the system allows it, preserves the VEOA argument.
  • Get your time-in-grade documentation in the application package. SF-50s showing 52 weeks at the next-lower grade. Brimer's remand turns on exactly this, and no ruling helps a package the agency can call incomplete.
  • Know what the promotion is worth before you fight for it. A GS-13 to GS-14 move under the two-step rule is a specific dollar figure, not a vague raise. Run it before you decide whether a DOL complaint is worth your time.

Confirm Your Preference Category

The Veterans Preference Calculator tells you whether you are a 5-point or 10-point preference eligible for open competitive hiring, which is a separate track from the right to compete decided in Brimer. Knowing your category still matters: it decides which hiring paths you can apply under and how an outside-hiring certificate ranks you. Check your category →

To price the promotion itself, the GS Promotion Calculator applies the two-step rule to your current grade and step.

Frequently Asked Questions

Does the Brimer ruling give current federal employees veterans' preference points on promotions?

No. The Federal Circuit left intact the part of Kerner holding that preference points under 5 U.S.C. § 3311 do not apply to transfers or promotions inside the government. Brimer is about the right to compete, meaning the right to apply and be considered, not about extra points once you are in the pool.

Can my agency reject my merit-promotion application just because I already work for the government?

Not when the announcement accepts applicants from outside the agency's own workforce. The en banc court held that an agency cannot rely on a veteran's or preference eligible's status as a current federal employee to deny that person the right to compete under 5 U.S.C. § 3304(f)(1), now codified at § 3304(l)(1).

Do I need veterans' preference points to have VEOA competition rights?

No. The statute covers preference eligibles and also veterans separated under honorable conditions after three or more years of active service. A veteran with no service-connected disability and no campaign medal, who has no preference points, still has the right to compete.

Do time-in-grade and qualification requirements still apply to me?

Yes. The court said VEOA guarantees the right to compete but does not exempt veterans from eligibility criteria such as time-in-grade restrictions that apply to all candidates. Brimer's own case went back to the MSPB partly because of a time-in-grade documentation dispute.

How do I file a VEOA complaint if my agency blocked me from competing?

File with the Department of Labor's Veterans' Employment and Training Service within 60 days of the violation under 5 U.S.C. § 3330a. If DOL cannot resolve it, appeal to the MSPB no later than 15 days after DOL's notice, and not before the 61st day after you filed with DOL if you have heard nothing.

What can the MSPB award if it finds a VEOA violation?

An order to comply plus compensation for lost wages and benefits. If the Board finds the violation was willful, it must also award liquidated damages equal to the back pay under 5 U.S.C. § 3330c, which doubles the money.

Which USAJOBS announcements trigger VEOA competition rights?

Ones that accept applications from outside the agency's own workforce under merit promotion procedures, usually phrased as open to status candidates and VEOA eligibles, or to current federal employees and veterans. An internal-only posting with no outside applicant pool does not trigger the right.

Was this decided in 2025 or 2026?

Both dates are real. The en banc opinion in Brimer v. Department of the Navy, No. 2024-1388, issued December 17, 2025. It was modified and reissued August 14, 2026 after a petition for rehearing, with the same holding. Trade press coverage followed the August reissue.

Did Brimer win his GS-14 job?

Not yet. The court vacated the MSPB's decision and sent the case back so the Board can decide, under the corrected legal standard, whether Brimer was actually denied a fair chance to compete. The Navy's time-in-grade documentation argument could still go against him.

Can the Navy appeal to the Supreme Court?

It could petition, but a near-unanimous en banc decision resting on the plain text of the statute, in the one circuit that hears these appeals, is a hard case for certiorari. No petition was on the public record as of September 2, 2026. Treat Brimer as controlling law for now.

Sources: Brimer v. Department of the Navy, No. 2024-1388 (Fed. Cir., en banc, modified Aug. 14, 2026); Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015); 5 U.S.C. §§ 3304, 3311, 3330a, 3330c; MSPB VEOA information sheet; OPM FY2024 Employment of Veterans report as cited by Pew Research Center (April 2025); FedWeek, Aug. 25, 2026.