Background
David Scott Brimer petitioned for Federal Circuit review of a Merit Systems Protection Board proceeding involving the Department of the Navy. The Federal Circuit issued a precedential opinion and judgment in the case on December 17, 2025.
Brimer then petitioned for rehearing en banc. The court invited the Navy to respond, referred the petition to the active circuit judges, and conducted a poll after one was requested. A majority of the judges in regular active service voted for en banc consideration. Circuit Judge Newman did not participate.
The Court’s Holding
In a nonprecedential per curiam order, the Federal Circuit granted Brimer’s petition for rehearing en banc to the extent discussed in Part I of the modified opinion and judgment accompanying the order.
The court also withdrew its precedential opinion and judgment issued on December 17, 2025, and replaced them with the accompanying modified opinion and judgment. The order itself did not describe the substantive changes or reproduce the reasoning in Part I.
Key Takeaways
- A majority of the Federal Circuit’s active participating judges voted for en banc consideration.
- The court granted rehearing only to the extent specified in Part I of the accompanying modified opinion and judgment.
- The December 17, 2025 precedential opinion and judgment were withdrawn and replaced.
Why It Matters
The order eliminates the December 2025 opinion and judgment as the operative disposition and substitutes a modified precedential decision. Its practical and doctrinal significance depends on the changes explained in the accompanying modified opinion, which are not stated in the rehearing order itself.