[00:00:00] Speaker 02: We will hear argument next in number 241388, Breimer versus Navy. [00:00:07] Speaker 02: Do I have the name right? [00:00:09] Speaker 02: That is correct. [00:00:11] Speaker 01: May it please the court, Daniel Cooley on behalf of the petitioner, Mr. David Scott Breimer. [00:00:17] Speaker 01: The plain language of section 3304F1 is clear. [00:00:22] Speaker 01: Veterans may not be denied the opportunity to compete for vacant positions filed through their promotion process. [00:00:29] Speaker 01: Mr. Breimer is such a veteran who meets all of the eligibility criteria but was denied the opportunity to compete because the board held that section 3304 F1 does not apply to veterans who are current federal employees. [00:00:44] Speaker 01: But the plain language of the statute includes no such limitation on the employment status. [00:00:50] Speaker 02: Let me just ask you to move along to what you know is the [00:00:55] Speaker 02: only real issue, but you obviously have a substantial argument on the plain language. [00:01:02] Speaker 02: Equally obviously, you have a problem with our Kerner decision. [00:01:06] Speaker 02: Explain how not just kind of on the facts, the holding of Kerner is different, which I think we get, because that one about 3311 and this one doesn't. [00:01:18] Speaker 02: But the rationale of what's an interpretation of, what's it, 3304, [00:01:25] Speaker 02: which seems to be that a current federal employee veteran with preference doesn't get this right. [00:01:37] Speaker 01: Well, Your Honor, I think that ultimately the statutory interpretation question and the question as to why those statements concur not operative and do not control ultimately converge, we believe that [00:01:50] Speaker 01: those statements of Kerner could not have been anything beyond a dictus statement precisely because Kerner does not do a baseline statutory construction of 3304. [00:02:03] Speaker 01: It does not grapple with the plain text of the operative provision 3304 F1. [00:02:09] Speaker 01: It proceeds immediately to direct discussing the intent of the statute and headings but those sorts of [00:02:20] Speaker 01: options under the statutory canon cannot overcome the plain language. [00:02:24] Speaker 02: And so we believe that ultimately... But I guess those seem to me to be arguments that address whether [00:02:33] Speaker 02: Kerner in its rationale is just wrong. [00:02:38] Speaker 02: We don't get to decide that. [00:02:41] Speaker 02: That's an argument for en banc overruling of Kerner. [00:02:48] Speaker 02: What is the argument? [00:02:50] Speaker 02: And start with the proposition, which the Supreme Court has said in its context, the rationale of a decision is presidential, not merely the bottom line holding. [00:03:03] Speaker 02: Seminole Tribe says that. [00:03:06] Speaker 02: So how do you get this panel to do what you want us to do? [00:03:13] Speaker 01: Sure, Your Honor. [00:03:14] Speaker 01: I think there are two pathways to address the Kerner decision. [00:03:21] Speaker 01: I still submit that those discussions of the legislative intent could be viewed as dicta. [00:03:31] Speaker 01: And I understand your Honor's point that they are part of the rationale, but they are not part of the ultimate holding. [00:03:38] Speaker 01: And I think it is quite important that in the Kerner case, you do have the VPA, which is by its own terms and language a first-timer statute seeking to be drafted upon the VEOA. [00:03:49] Speaker 01: So that is one pathway is through ruling that those statements were dicta. [00:03:56] Speaker 01: The other pathway would be through the court's new decision. [00:04:01] Speaker 01: There is an earlier in time precedent here, which is the Joseph decision, which Kerner neither addresses on the merits nor overrules, which addresses the plain language of 3304 F1. [00:04:14] Speaker 01: And as such, that would be an earlier-in-time precedent. [00:04:16] Speaker 01: And under Newell, that would control. [00:04:19] Speaker 02: Was that a contested point in Joseph? [00:04:24] Speaker 02: I agree. [00:04:24] Speaker 02: Or just an accepted point by the government there? [00:04:28] Speaker 01: What I would say, Your Honor, is Joseph [00:04:31] Speaker 01: It's somewhere in between those two things. [00:04:34] Speaker 01: It was not the key contested point, but nor was it what I would say merely just accepted. [00:04:41] Speaker 01: Because if you look at the Joseph decision, it's a decision like Kerner that addresses the interplay between the VPA and the VEOA, and in its own text talks about federal employees who are presently employed and those who are [00:04:59] Speaker 01: veterans who are presently employed in the Fresno Federal Service and those who are not. [00:05:04] Speaker 01: And so the Joseph Court was well aware of this distinction between these two classes of individuals. [00:05:11] Speaker 01: and the rights and remedies that they may have under the BPA and the EOA, and nonetheless goes on to address the plain text of 3304F1. [00:05:22] Speaker 04: What exact language in Joseph do you think best shows that it's inconsistent directly with Kerner? [00:05:31] Speaker 01: I think there are several places, Your Honor. [00:05:36] Speaker 01: But if I'm referring only to one, I would refer to 1383, where Joseph directly addresses the plain text of the VEOA 3304 F1 and states what it says. [00:05:52] Speaker 01: It says, Congress here adopted a different approach in dealing with veterans and merit promotion. [00:05:58] Speaker 01: It guaranteed veterans only a right to apply and an opportunity to compete for such positions. [00:06:04] Speaker 01: So it guarantees that. [00:06:06] Speaker 01: The critical statutory provision is 5 U.S.C. [00:06:09] Speaker 01: 3304 F1, which was added under the veteran statutes of the VEOA. [00:06:13] Speaker 01: So here it's actually walking through the plain language and the history of the statute. [00:06:18] Speaker 01: It provides that, quote, all merit promotion announcements shall indicate that veterans are eligible to apply and that specified categories of veterans may not be denied the opportunity to compete for vacant positions for which the agency will accept applications from individuals outside of its own workforce. [00:06:35] Speaker 01: under merit promotion procedures. [00:06:37] Speaker 01: All that this latter provision entitles veterans to is an opportunity to compete for vacant positions. [00:06:43] Speaker 01: Here Joseph is dealing with the express text of the statute and finding that it guarantees that right. [00:06:52] Speaker 04: But it doesn't say specifically, I mean, I appreciate your point on the plain statutory language. [00:06:58] Speaker 04: I'm just trying to really understand whether Joseph deals with the situation [00:07:03] Speaker 04: of somebody who deals with somebody who is already in a government position. [00:07:10] Speaker 04: I mean, that's the key issue, right? [00:07:12] Speaker 04: So where in this language that you've identified does it say, this applies even for somebody who is already within the federal government? [00:07:23] Speaker 01: To answer your question, it doesn't use those words, Your Honor. [00:07:27] Speaker 01: But Mr. Joseph was, as we know by the facts of the case, [00:07:31] Speaker 01: already an employee of the federal government. [00:07:35] Speaker 01: And so we think that the provision is so clear on its face, the statutory language is so clear, there's no need to make such an obvious ruling. [00:07:45] Speaker 01: To exclude all of the negative possibilities that are out there in the universe, that would [00:07:51] Speaker 01: a standard difficult to overcome when considering statutory interpretation of the court, considering the statute must eliminate all possible countervailing factors. [00:08:02] Speaker 04: So for purposes of the students in the room, this is something that I think was maybe made clear through the earlier questioning. [00:08:07] Speaker 04: But as a panel, we are bound, a three-judge panel, by all prior three-judge panel decisions that are designated presidential, right? [00:08:18] Speaker 04: That is correct. [00:08:19] Speaker 04: And Kerner was designated presidential. [00:08:21] Speaker 01: That is correct, as was Joseph. [00:08:23] Speaker 01: So our argument is that Joseph, the earlier in time precedent, if we're going to say that the reasoning and rationale is controlling, then Joseph controls Kerner. [00:08:34] Speaker 01: And if we're going to say that, by contrast to the first pathway I mentioned, that they're dicta, perhaps they can both be dicta, and this can be the first instance opportunity that the court can consider, an important point which I will note is also in Kerner, a point not considered [00:08:51] Speaker 01: is whether the plain language, there is any ambiguity in the plain language, warranting a reference to the legislative intent to construe. [00:09:03] Speaker 01: So this will be the first instance that this court can consider whether that ambiguity issue, because it goes unaddressed also in Kerner. [00:09:11] Speaker 01: So if the question is whether this must be a first instance issue, that is a first instance issue addressed neither by Joseph nor by Kerner. [00:09:20] Speaker 04: Can I ask you, what is your response? [00:09:23] Speaker 04: Kerner relies on some [00:09:25] Speaker 04: language in the statute, access for veterans to come up with the interpretation that this is only for somebody who is coming into the government for the first time. [00:09:39] Speaker 04: What is your response to that statutory interpretation argument? [00:09:43] Speaker 01: We believe the word access applies both to presently employed veterans and veterans who are seeking first employment. [00:09:52] Speaker 01: It's a word that [00:09:55] Speaker 01: could equally provide access. [00:09:56] Speaker 01: Both of those classes of veterans are seeking access to employment opportunities. [00:10:01] Speaker 02: And I think it's just in what statutory provision does the word access appear? [00:10:07] Speaker 01: It does not. [00:10:07] Speaker 01: It appears actually we're referring to the titles of this. [00:10:11] Speaker 01: And I would note also under Supreme Court doctrine, where the plain language of the statute is clear, the title cannot override that. [00:10:19] Speaker 01: And you would say the plain language here is clear. [00:10:22] Speaker 02: And this was a title that was actually enacted by Congress, right? [00:10:27] Speaker 01: The title was, yes. [00:10:28] Speaker 01: As was the operative text. [00:10:32] Speaker 02: Sometimes titles are not. [00:10:34] Speaker 02: Sometimes titles are added by the House Law Revision Council to put stuff into the U.S. [00:10:42] Speaker 02: Code where the U.S. [00:10:43] Speaker 02: Code title is not actually enacted by Congress, but Title 38 is. [00:10:48] Speaker 01: as far as I understand, yes. [00:10:50] Speaker 03: Does the legislative history help at all with the argument you're trying to make to this? [00:10:54] Speaker 03: I understand that you don't think you need to reach it, but does it help? [00:10:58] Speaker 01: I believe, Your Honor, that every canon of statutory construction aids our argument. [00:11:03] Speaker 01: I believe the plain language aids it. [00:11:05] Speaker 01: I believe the structure of the statute aids it. [00:11:07] Speaker 01: And I also believe the legislative history aids it. [00:11:10] Speaker 01: because there are various provisions and statements that we know by Congressman Micah, who is the principal sponsor of the bill, where he notes and uses as the primary example for this bill a veteran who was presently employed and had been employed for any number of years in a temporary aspect and was seeking to get full-time employment with the federal government and was unable to do so, and for this reason did not gain access to health insurance and any number of other [00:11:37] Speaker 01: disadvantages that that veteran had to endure. [00:11:41] Speaker 01: That was the precise example that Congressman Micah spoke about when referring to this legislation. [00:11:46] Speaker 01: That example is not discussed in the Kerner decision, nor is any of the other examples we point out referring to veterans who were presently employed in the Civil Service, but nonetheless would seek to have benefit under 3304 F-1. [00:12:34] Speaker 00: May it please the court, Mr. Breimer attempts to sow confusion where none exists. [00:12:39] Speaker 00: This court's conclusion in Kerner was clear, and I quote, Congress did not intend for Section 3304 to apply when a veteran or other preference eligible is already employed in federal civil service. [00:12:51] Speaker 02: Do you think that the correct statutory question is what Congress intended? [00:12:58] Speaker 00: Certainly relevant, but not the only correct question, Your Honor. [00:13:02] Speaker 00: That's just one example of where the holding is reiterated in Kerner. [00:13:07] Speaker 00: As Mr. Brower acknowledged, it was an unqualified remark that 3304 was limited to veterans outside federal civil service. [00:13:16] Speaker 03: Council, do you agree that the relevant portion of Kerner that you're seeking to rely on was largely based on an unbriefed theory? [00:13:24] Speaker 03: A theory that was in the briefing in that case? [00:13:29] Speaker 00: If I do recall the briefing in Kerner, and admittedly I looked at it weeks ago, I do not believe that was specifically raised in the briefing by either party, Your Honor. [00:13:38] Speaker 03: Well, does that impact how authoritatively we might view the alleged holding of Kerner that you are relying on? [00:13:46] Speaker 00: I do not agree, Your Honor. [00:13:48] Speaker 00: It was central to the holding. [00:13:50] Speaker 00: The question presented as phrased by Mr. Breimer is whether the Department of the Interior violated veterans VEOA rights under 3304F. [00:13:59] Speaker 00: The Courter Court answered that question simply, no, because 3304F does not apply to veterans that are already employed in the Federal Civil Service. [00:14:10] Speaker 00: That is a direct and central piece of that holding. [00:14:15] Speaker 04: What language in 3304 best supports that interpretation? [00:14:20] Speaker 00: The access to veterans language, Your Honor, as cited in Kerner and discussed by Your Honors with my colleague, is probably the best piece of statutory language. [00:14:33] Speaker 04: But that's in the title, right? [00:14:36] Speaker 00: Yes. [00:14:37] Speaker 00: If you are reluctant to [00:14:39] Speaker 00: Use the title your honor. [00:14:41] Speaker 02: I'm sorry. [00:14:41] Speaker 02: I just want to be what title where? [00:14:44] Speaker 00: Section 2 the title of section 2 is access for veterans your honor. [00:14:48] Speaker 02: I'm looking at 3304. [00:14:49] Speaker 02: How does that correspond to section 2? [00:14:55] Speaker 00: I would have to look at that your honor. [00:14:56] Speaker 00: I believe that 3304 f1 Is this in section 2 of the eo a yes your honor, but not actually part of the enacted [00:15:08] Speaker 00: It was a portion of, I agree with my colleague, it was a portion of the enacted statement. [00:15:13] Speaker 02: But it's not actually in 3304. [00:15:16] Speaker 00: Well, Your Honor, that would bring me on to my second point, which is 3304F1's, the actual language, the outside-its-only workforce piece of that language, Your Honor. [00:15:26] Speaker 00: And that is important to understand the fact that the statute distinguishes between intra-agency merit-based promotions and not the [00:15:36] Speaker 00: of an individual from outside the workplace of the agency. [00:15:40] Speaker 02: Just say that again, I'm sorry. [00:15:41] Speaker 00: Certainly. [00:15:42] Speaker 00: 3304F1, there is an outside-its-own workforce piece of the language, which I think is integral to understanding the fact that the statute treats an intra-agency merit-based promotion separately from individuals seeking employment from outside the workplace. [00:16:02] Speaker 02: from outside the agency or outside the federal service? [00:16:06] Speaker 00: 3304F1 speaks specifically to outside its own workforce. [00:16:11] Speaker 02: Right. [00:16:12] Speaker 02: This is the sort of hybrid somewhere between merit promotion entirely internally and the overall competitive process with this creature in the middle. [00:16:23] Speaker 00: That is my understanding, Your Honor. [00:16:26] Speaker 00: I would also emphasize that 3304F4 speaks to how a veteran must be informed that they are eligible to apply. [00:16:35] Speaker 00: And frankly, Your Honor, that would not be necessary language for an individual that's already employed in the federal agency for which they are seeking a merit-based promotion. [00:16:43] Speaker 00: They, of course, are eligible to apply, considering that they are already within the federal agency itself and seeking the possibility of an employment, excuse me, a promotion. [00:16:57] Speaker 00: Those are what I would argue are the most convincing pieces of the statutory language itself. [00:17:03] Speaker 00: Judge Cunningham mentioned the legislative history. [00:17:06] Speaker 00: I would also turn to the court's attention to Senator Hagel, who I believe was the sponsor in the Senate, statement that the purpose of the statute was to quote, get and hold federal employment. [00:17:21] Speaker 00: Get meaning obtain initial. [00:17:23] Speaker 00: And also I would quote, the act [00:17:26] Speaker 00: that's in brackets, opens federal employment opportunities by eliminating artificial boundaries which prevent them from competing for federal jobs because they are not already civil employees or employees of a particular agency. [00:17:42] Speaker 00: And that's 144 Congressional Record 24805. [00:17:47] Speaker 00: So at the very least, there are portions of the legislative history that support the Kerner's interpretation of Section 3304, F1. [00:17:59] Speaker 00: I would also suggest, Your Honor, that here, even if Mr. Brimer were correct that he were entitled to the right to compete, that is actually what he received here. [00:18:09] Speaker 00: Although it is certainly conceded that the Navy made an error when initially considering Mr. Brimer's application, they did, in fact, evaluate his application after the fact and determined that his experience was insufficient to qualify for the position. [00:18:23] Speaker 02: The full board, right, didn't reach that issue, right? [00:18:26] Speaker 00: Is that right? [00:18:27] Speaker 00: The MSPB did not, Your Honor. [00:18:29] Speaker 03: What is your response to opposing counsel's arguments under Joseph? [00:18:33] Speaker 03: There was a nice back and forth between Judge Stoll and opposing counsel on that, and I'd like you to address that. [00:18:38] Speaker 00: Certainly. [00:18:39] Speaker 00: I agree, and I forget if it was Judge Stoll or Judge Toronto, which suggested that that issue was not front and center before the court and was assumed, not briefed by either party as to whether 3304F1 applied and was simply assumed. [00:18:53] Speaker 00: Second, Your Honor. [00:18:58] Speaker 00: I apologize. [00:18:58] Speaker 00: I also believe that the portions that were quoted by opposing counsel did not establish that 3304-1 actually, the court made a ruling that it did apply. [00:19:10] Speaker 00: It was an assumption that was also included in Joseph. [00:19:14] Speaker 04: Mr. Joseph was a federal employee who was seeking a merit promotion. [00:19:19] Speaker 04: Is that correct? [00:19:20] Speaker 02: Yes, ma'am. [00:19:21] Speaker ?: OK. [00:19:22] Speaker 02: This is obviously getting ahead of where we are, since we are a panel. [00:19:30] Speaker 02: If we were thinking about whether Kerner might be a good candidate for en banc reconsideration, [00:19:39] Speaker 02: Putting aside the merits arguments for a minute, can you have anything to tell us about why there's been reliance on this in a significant way or something about systemic effects? [00:19:55] Speaker 00: Significant way, Your Honor, I think I'd be overstating my case. [00:19:58] Speaker 00: I will say that this interpretation of Kerner has been adopted by subsequent panels of this court and the Seventh Circuit, which cited Kerner approvingly. [00:20:07] Speaker 00: Therefore, it has been adopted. [00:20:09] Speaker 02: In what kind of case did the Seventh Circuit address this? [00:20:12] Speaker 00: That case was Shulkin v. No, but I mean, it's not an MSPB case, right? [00:20:17] Speaker 00: No, though it is specifically discussing, or at least the VEOA and whether it applies to federal [00:20:24] Speaker 04: Employees and sites current for the proposition that no it does not I mean it seems like the government's position is that it wouldn't matter anyway Because you took an earlier view that this Any government employee would have the right to be considered for merit position. [00:20:43] Speaker 04: I mean once they're in the federal government [00:20:45] Speaker 00: For an intra-agency promotion, I think that's correct, Your Honor. [00:20:49] Speaker 04: So why is there a resistance of the government to the interpretation that's being suggested here? [00:20:58] Speaker 00: One, respect for this court's previous decision. [00:21:00] Speaker 00: And, Kerner, two, Your Honor, I do believe that in the context of someone seeking a promotion that is not intra-agency or a [00:21:10] Speaker 00: promotion to which they may not otherwise be entitled. [00:21:14] Speaker 00: In another government agency, there may be an implication where Kerner would prevent that individual from competing for the position. [00:21:23] Speaker 04: So it does have an impact for where somebody is seeking to change to a different agency. [00:21:27] Speaker 00: It may, Your Honor. [00:21:28] Speaker 00: Frankly, that is not something I have. [00:21:30] Speaker 02: Would a current federal employee just as such have a right to go to the board? [00:21:37] Speaker 00: That's an interesting question, Your Honor. [00:21:39] Speaker 00: This came up in Moody in this quake case. [00:21:42] Speaker 00: I am not aware of any statute that would entitle them to a relief under... I mean, in general, promotions are not within the MSPB's authority. [00:21:52] Speaker 00: Correct, Your Honor. [00:21:52] Speaker 00: I'm not aware of any relief that they could obtain in this situation where he or she not a veteran. [00:22:03] Speaker 00: Unless the panel has any further questions, I will relinquish them. [00:22:07] Speaker 00: Thank you. [00:22:17] Speaker 01: I just want to make a couple additional points, Your Honor. [00:22:20] Speaker 01: I would direct the court to page 15 of our briefing, which I do think addresses Your Honor's question about the title. [00:22:28] Speaker 01: Here it makes clear that section 2 of the VEOA amended 3304F, and that is what is entitled access for veterans. [00:22:38] Speaker 01: So it's the act that amended, not in the statute. [00:22:41] Speaker 01: So that's a clarification for the record. [00:22:43] Speaker 02: Right. [00:22:43] Speaker 02: I got that. [00:22:44] Speaker 01: Thank you. [00:22:46] Speaker 01: Second, I would like to note that earlier we were talking about pathways that this panel could address the Kerner decision, and we noted, too, the dicta and the earlier in time precedent via newel. [00:23:00] Speaker 01: Of course, the court could, as Your Honors have mentioned, also go en banc. [00:23:05] Speaker 01: That would be beyond this panel. [00:23:07] Speaker 01: However, the court has several mechanisms to do such an en banc. [00:23:11] Speaker 01: One, we would direct court to is the Frankway decision, 940 F3D 1304. [00:23:15] Speaker 01: The court has addressed such issues through footnotes, could also sui sponte invite en banc. [00:23:22] Speaker 01: So there are various means within the en banc pathway to resolve an issue of precedent. [00:23:29] Speaker 01: And finally, we would note that it's significant [00:23:36] Speaker 01: that all of this turns on kind of this relief and contrasting between the VEOA and the VPA. [00:23:43] Speaker 01: And again, the VPA by its plain language uses the word entrance. [00:23:47] Speaker 01: In the operative text, it talks about it being a first-timer statute. [00:23:51] Speaker 01: That's what Kern was ultimately holding, we believe. [00:23:55] Speaker 01: The VEOA by its plain text has no such limitation, and we believe it [00:24:00] Speaker 01: provides veterans like Mr. Breimer the opportunity to compete, because Congress was concerned that veterans were the last hired and the first fired and wanted to give them at least minimum that degree of consideration to bring them up to the level to ensure them those rights. [00:24:16] Speaker 02: For any opening where not restricted to a merits process, internal merits process? [00:24:23] Speaker 01: Correct, for any opening. [00:24:25] Speaker 01: And for these reasons, we submit that this case should be vacated such that Mr. Breimer's case can be heard on the merits. [00:24:34] Speaker 01: Or in the alternative, the court take the issue up on Bach to resolve the conflict of precedent. [00:24:41] Speaker 02: Thank you. [00:24:41] Speaker 02: Thanks to both counsels, the case is submitted.