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N OTE: This disposition is nonprecedential.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
______________________
2023-1276
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-4324-22-0335-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: 23-1276 Document: 24 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 the Uni-
formed Services Employment and Reemployment Rights
Act of 1994, 38 U.S.C. §§ 4301–4333 (USERRA). The
Board denied her request. See SAppx. (supplemental ap-
pendix attached to the Respondent’s Informal Brief) 1–10;
Trimble v. Department of Justice, No. DA-4324-22-0335-I-
1, 2022 WL 4634812 (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. She
was found to be one of the best qualified candidates and
was offered an interview, which took place in the first few
days of February 2022 before a panel of three ATF inter-
viewers, including the selecting official. But ATF offered
the job to another candidate, who was not a veteran, and
1 In two previous appeals before this court, Ms.
Trimble has alleged USERRA violations stemming from
her non-selection for positions within the federal govern-
ment. In Trimble v. Department of Homeland Security, No.
2023-1278, 2023 WL 5921627 (Fed. Cir. Sept. 12, 2023)
(non-precedential), we affirmed the Board’s rejection of her
USERRA challenge to her non-selection for a position
within the Federal Emergency Management Agency. In
Trimble v. Department of Veterans Affairs, No. 2023-1307,
2023 WL 4287197 (Fed. Cir. June 30, 2023) (non-preceden-
tial), we affirmed the Board’s rejection of her USERRA
challenge to her non-selection for a position within the De-
partment of Veterans Affairs.
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TRIMBLE v. DOJ 3
that candidate accepted the job offer on February 8, 2022.
SAppx. 2.
The candidate who had accepted the job offer withdrew
her acceptance on March 29. On April 18, Ms. Trimble con-
tacted one of the ATF interviewers to inquire about her ap-
plication, and on April 19, that interviewer responded to
Ms. Trimble that “she was ‘very competitive,’ but ‘another
candidate was offered the position.’” SAppx. 2. (He later
testified that he was unaware that the initial selectee had
already withdrawn. SAppx. 9.) Also on April 19, the Board
found, “[t]he certificates of eligibles expired.” SAppx. 2.
The selecting official (one of the interviewers) testified be-
fore the Board that (in the Board’s description) “when he
learned the selectee had withdrawn her acceptance of the
position, Human Resources informed him that it was too
late to move forward with another selection from the cer-
tificates of eligibles.” SAppx. 9. At the time of the Board
hearing, the selecting official testified, the position at issue
as well as others “remain[ed] vacant” because of an Office
of Personnel Management (OPM) audit. SAppx. 9 n.7.
Ms. Trimble then appealed her non-selection to the
Board under USERRA. Ms. Trimble alleged that ATF did
not want to hire a veteran for the position and that her non-
selection was due to “‘discriminatory bias against her mili-
tary service, in violation of 38 U.S.C. § 4311(a).’” SAppx. 4.
She alleged, in particular, that two of her interviewers had
made statements during her interview reflective of “‘dis-
dain for military veterans’” and that one of them asked if
she had served on active duty or as a reservist. SAppx. 4–
5. Ms. Trimble also asserted that ATF’s failure to offer her
the job after the initial selectee withdrew was further evi-
dence of its discrimination against veterans. SAppx. 9.
After holding a hearing at which all three interviewers
testified, the Board administrative judge assigned to the
matter denied Ms. Trimble’s request for corrective action.
SAppx. 1–2. The administrative judge credited the
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TRIMBLE v. DOJ 4
testimony of the interviewers (including the selecting offi-
cial), considered the fact that a non-veteran was initially
selected, and found that Ms. Trimble failed to establish by
a preponderance of the evidence that her military service
was a substantial or motivating factor in the agency’s se-
lection decision. SAppx. 5–9. That finding made it unnec-
essary to consider stages of a USERRA analysis reached
only upon adequate proof on the threshold substantial-or-
motivating-factor issue. See Erickson v. U.S. Postal Ser-
vice, 571 F.3d 1364, 1368 (Fed. Cir. 2009).
The administrative judge’s decision became the final
decision of the Board on November 3, 2022. SAppx. 10. Ms.
Trimble timely appealed 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). To prove a USERRA violation, the claimant
“bears the initial burden of showing by a preponderance of
the evidence that [her] military service was a substantial
or motivating factor in the adverse employment action.”
Erickson, 571 F.3d at 1368. Whether a veteran’s military
service was a substantial or motivating factor in her non-
selection is a factual question, and the Board’s answer is
reviewed for substantial-evidence support. See Sheehan v.
Department of the Navy, 240 F.3d 1009, 1014 (Fed. Cir.
2001). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” McLaughlin v. Office of Personnel Manage-
ment, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsu-
shita Electric Industrial Co. v. United States, 750 F.2d 927,
933 (Fed. Cir. 1984)). “The petitioner [in this court, i.e.,
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TRIMBLE v. DOJ 5
Ms. Trimble] bears the burden of establishing error in the
Board’s decision.” Harris v. Department of Veterans Af-
fairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Substantial evidence supports the Board’s finding that
Ms. Trimble failed to carry her initial burden to show that
her military service was a substantial or motivating factor
in her non-selection. The Board heard testimony from all
three of Ms. Trimble’s interviewers about what occurred
during Ms. Trimble’s interview. SAppx. 5–9. The testi-
mony was, among other things, that one of the alleged com-
ments was never made and the other had been made in the
course of conversation without any animus. SAppx. 5–6.
The Board found their testimony credible. SAppx. 6. Given
that finding, and the content of the statements and ques-
tions on which Ms. Trimble relies, we have no basis for dis-
turbing the findings under the applicable deferential
standard of review. See, e.g., Frey v. Department of Labor,
359 F.3d 1355, 1361 (Fed. Cir. 2004).
Ms. Trimble also contends that the Board erred in not
requiring proof from ATF—or even definitively determin-
ing—that, after the initial selectee withdrew her ac-
ceptance of the job offer, it was actually too late to offer her
the position. This contention provides no ground for dis-
turbing the Board’s ruling. It was Ms. Trimble who bore
the burden of proving that her non-selection was motivated
by her military service. See Erickson, 571 F.3d at 1368.
Here, the selecting official testified that he was informed
by Human Resources, after the initial selectee withdrew,
that it was “too late to move forward with another selec-
tion.” SAppx. 9. The Board credited that testimony of “re-
liance on” the information, without further inquiry into
whether or not Human Resources was correct, as a nondis-
criminatory reason for ATF’s not turning to Ms. Trimble
after the initial selectee withdrew. SAppx. 9. Ms. Trimble
has provided no contrary evidence that supports disturbing
the Board’s analysis on this aspect of the case.
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TRIMBLE v. DOJ 6
We also see no merit in Ms. Trimble’s contention that
the Board applied the wrong law because it did not take
account of veterans’ preference statutes. USERRA does
not “‘provide a remedy to veterans who are not given pref-
erences in employment decisions.’” Trimble v. Department
of Veterans Affairs, 2023 WL 4287197, at *3 (quoting Wil-
born v. Department of Justice, 230 F.3d 1383 (Fed. Cir.
2000) (unpublished table decision)). As we have previously
noted, claims of improper denial of a statutory preference
for veterans “are properly raised under the Veterans Em-
ployment Opportunities Act of 1998.” Trimble v. Depart-
ment of Homeland Security, 2023 WL 5921627, at *2 n.4.
Ms. Trimble’s separate VEOA claims regarding the facts at
issue here are addressed in Trimble v. Department of Jus-
tice, No. 2023-1277 (Fed. Cir. November 7, 2023).
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
Case: 23-1276 Document: 24 Page: 6 Filed: 11/07/2023

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