Aisha Trimble v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AISHA TRIMBLE,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2023-1277
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3330-22-0317-I-1.
______________________
Decided: November 7, 2023
______________________
AISHA T RIMBLE , Dallas, TX, pro se.
K ARA WESTERCAMP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , F RANKLIN E. WHITE, J R.
______________________
Before T ARANTO, CHEN, and STOLL , Circuit Judges.
P ER CURIAM .
Case: 23-1277 Document: 35 Page: 1 Filed: 11/07/2023

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TRIMBLE v. DOJ 2
Aisha Trimble applied for a job with the Bureau of Al-
cohol, Tobacco, Firearms, and Explosives (ATF), a compo-
nent of the Department of Justice, but was not selected.
She then sought corrective action from the Merit Systems
Protection Board, asserting that ATF had violated require-
ments of the Veterans Employment Opportunities Act of
1998 (VEOA), particularly, 5 U.S.C. §§ 3304(f)(1),
3330a(a)(1)(A). The Board denied her request. See SAppx.
(supplemental appendix attached to the Respondent’s In-
formal Brief) 1–8; Trimble v. Department of Justice, No.
DA-3330-22-0317-I-1, 2022 WL 4634810 (M.S.P.B. Sept.
29, 2022). On Ms. Trimble’s appeal, we affirm the Board’s
decision.1
I
Ms. Trimble is an honorably discharged veteran who
served on active duty in the United States Army. She ap-
plied for an executive assistant position within ATF. The
opening was a merit-promotion vacancy. See Joseph v.
Federal Trade Commission, 505 F.3d 1380, 1381 (Fed. Cir.
2007) (describing government hiring mechanisms). Ms.
Trimble was found to be one of the best qualified candi-
dates and was offered an interview, which took place in the
1 In two previous appeals before this court, Ms.
Trimble has alleged VEOA violations stemming from her
non-selection for positions within the federal government.
In Trimble v. Department of Homeland Security, No. 2023-
1279, 2023 WL 5921621 (Fed. Cir. Sept. 12, 2023) (non-
precedential), we affirmed the Board’s rejection of her
VEOA challenge to her non-selection for a position within
the Federal Emergency Management Agency. In Trimble
v. Department of Veterans Affairs, No. 2023-1306, 2023 WL
4287195 (Fed. Cir. June 30, 2023) (non-precedential), we
affirmed the Board’s rejection of her VEOA challenge to her
non-selection for a position within the Department of Vet-
erans Affairs.
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TRIMBLE v. DOJ 3
first few days of February 2022, before a panel of three ATF
interviewers, including the selecting official. But ATF of-
fered the job to another candidate, who was not a veteran.
The selectee, however, withdrew her acceptance of the of-
fer. SAppx. 7. Ms. Trimble contacted ATF to inquire about
her application, and on April 19, 2022, she was informed
that she had not been selected. SAppx. 2.
After exhausting her administrative remedy at the De-
partment of Labor, Ms. Trimble appealed her non-selection
to the Board under VEOA. She alleged that ATF “improp-
erly considered her under Schedule A” (of the Excepted
Schedules, 5 C.F.R. §§ 213.3101–.3102) “rather than under
the Veterans’ Recruitment Appointment (VRA) authority”
(see 38 U.S.C. § 4214; 5 C.F.R. pt. 307 (§§ 307.101–.105)
and that the specified improper treatment denied her a vet-
erans’ preference in violation of 5 U.S.C. § 3330a(a)(1)(A).
SAppx. 2–3; see SAppx. 20–23. Ms. Trimble also alleged
that, because she was not offered the position when the in-
itial selectee withdrew, she had not been given the fair op-
portunity to compete required by 5 U.S.C. § 3304(f)(1),
which guarantees certain veterans the opportunity to com-
pete for merit-promotion employment positions. SAppx. 7.
Finally, she alleged, seemingly under both 5 U.S.C.
§ 3330a(a)(1)(A) and 5 U.S.C. § 3304(f)(1), that ATF had
not followed certain procedures required for persons with a
veterans’ preference. SAppx. 6.
The Board administrative judge assigned to the matter
denied Ms. Trimble’s request for corrective action, conclud-
ing that a hearing was unnecessary because no legally ma-
terial facts were genuinely disputed. SAppx. 1–2. The
administrative judge concluded that ATF was not required
to make the appointment for the position under its VRA
authority. SAppx. 3. The administrative judge also deter-
mined that Ms. Trimble failed to establish that ATF denied
her the opportunity to compete for the position. SAppx. 6–
7. Finally, the administrative judge determined that be-
cause the vacancy was to be filled by merit promotion
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TRIMBLE v. DOJ 4
rather than by competitive examination, Ms. Trimble was
not entitled to the veterans’ preference benefits she cited.
SAppx. 6.
The administrative judge’s decision became the final
decision of the Board on November 3, 2022. SAppx. 8. Ms.
Trimble timely appealed to this Court on December 14,
2022. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We will affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We see no basis for disturbing the Board’s deci-
sion given the applicable law and the material facts that
are not genuinely in dispute. We hold the Board correctly
concluded that ATF was not required to make an appoint-
ment for the position in question under its VRA authority,
that Ms. Trimble was not denied an opportunity to com-
pete, and that no veterans’ preference applied to the merit
promotion position at issue.
Ms. Trimble first argues that the Board erred in deny-
ing the claim she made under 5 U.S.C. § 3330a(a)(1)(A)
that she was entitled to a veterans’ preference because (she
contends) she was entitled to be treated, for hiring, under
ATF’s VRA authority. No error has been established. The
statute provides for VRA eligibility in accordance with reg-
ulations, 38 U.S.C. § 4214(b), and the regulations refer to
Executive Order 11521 as providing the authority for
“agencies to appoint qualified covered veterans to positions
in the competitive service.” 5 C.F.R. § 307.101 (emphasis
omitted). Executive Order 11521 provides that “the head
of an agency may make an excepted appointment.” Exec.
Order No. 11521, 3 C.F.R., 1966–1970 Comp., p. 912 (em-
phasis added). Neither the regulations nor the executive
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TRIMBLE v. DOJ 5
order declare any enforceable duty to make such appoint-
ments. We have been shown no error in the Board’s con-
clusion that VRA authority “is a special authority by which
agencies can, if they wish, appoint eligible veterans without
competition,” so that the choice of hiring mechanisms is for
the agencies to make. SAppx. 3 (emphasis added).
Ms. Trimble also objects on two grounds to the Board’s
analysis under 5 U.S.C. § 3304(f)(1) regarding her oppor-
tunity to compete for the position. First, she contends that
the Board should have found that she was deprived of the
required fair opportunity to compete because ATF did not
grant her certain veterans’ preference procedural rights,
such as affording an opportunity to object to the selection
of a non-veteran under 5 U.S.C. § 3318. But the Board cor-
rectly concluded that 5 U.S.C. § 3304(f)(1) does not require
that an agency apply veterans’ preference procedures in or-
der for a veteran to have had an opportunity to compete.
The statute only requires that eligible veterans “not be de-
nied the opportunity to compete”—not that they be given
preference. 5 U.S.C. § 3304(f)(1).
Second, Ms. Trimble contends that the Board should
have found that she was deprived of an opportunity to com-
pete when the agency did not disclose to her that the initial
selectee for the position had withdrawn. But the Board
found, as was clear, that Ms. Trimble was designated best
qualified and given an opportunity to interview, SAppx. 4–
5, 7, and it observed that Ms. Trimble’s claims of an unfair
process were not supported by any evidence, SAppx. 5–6.
ATF’s choice not to proceed with Ms. Trimble or anyone
else after the initial selectee withdrew showed no denial of
the opportunity to compete for the position: She had a full
opportunity to compete before the withdrawal; and after
the withdrawal, there was no selection process at all.
SAppx. 7.
Finally, we reject Ms. Trimble’s argument that the
Board erred because the position for which she applied was
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TRIMBLE v. DOJ 6
a competitive-service position and that fact gave her an en-
titlement to veterans’ preference procedures, such as those
conferred by 5 U.S.C. § 3318, even though the vacancy was
a merit-promotion vacancy. “Federal agencies generally
use two types of selection to fill vacancies: (1) the open
‘competitive examination’ process and (2) the ‘merit promo-
tion’ process.” Joseph, 505 F.3d at 1381. The chosen type
of hiring action affects whether veterans are to be given a
preference in the evaluation process. Specifically, we have
explained that veterans are not entitled to a preference
when the selection process being used is merit promotion,
even though multiple candidates may be vying for the spot.
Id. at 1382. The preference entitlement applies only when
a position is being filled using “competitive examination,”
id., sometimes termed “open competition,” see id. at 1383.
And the classification of a position as in the “competitive
service” under 5 U.S.C. § 2102 and 5 C.F.R. § 212.101 does
not mean that hiring for the position is by competitive ex-
amination rather than merit promotion. Here, the hiring
process was the latter, as is uncontested, SAppx. 2, so vet-
erans’ preference procedures did not apply.
To be sure, in merit promotion hiring, veterans are still
given a preference in that they are allowed to apply at all.
See Joseph, 505 F.3d at 1382. Someone who was not a vet-
eran and did not otherwise have competitive status could
not have applied for the executive assistant position for
which Ms. Trimble was interviewed. See SAppx. 33 (indi-
cating that the position to which Ms. Trimble applied was
only open to “[i]ndividuals with disabilities,” “[c]urrent or
former competitive service federal employees,” “[c]areer
transition” federal employees, and “[v]eterans”). The lan-
guage of the VEOA is clear, however, that beyond the priv-
ilege of being eligible to apply, there is no additional
veterans’ preference conferred for merit promotion hiring
processes. 5 U.S.C. § 3304(f)(3). Therefore, we conclude
that the Board properly found that Ms. Trimble’s non-se-
lection did not violate her veterans’ preference rights.
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TRIMBLE v. DOJ 7
III
We have considered Ms. Trimble’s other arguments
and find them unpersuasive. For the foregoing reasons,
the decision of the Merit Systems Protection Board is af-
firmed.
The parties shall bear their own costs.
AFFIRMED
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