Aisha Trimble v. Department of Homeland Security

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AISHA TRIMBLE,
Petitioner
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent
______________________
2023-1279
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3330-22-0251-I-1.
______________________
Decided: September 12, 2023
______________________
AISHA T RIMBLE , Dallas, TX, pro se.
RAFIQUE O MAR ANDERSON, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, P ATRICIA M. MC CARTHY , F RANKLIN E.
WHITE, J R.
______________________
Before M OORE, Chief Judge, REYNA and T ARANTO, Circuit
Judges.
Case: 23-1279 Document: 28 Page: 1 Filed: 09/12/2023

-- 1 of 5 --

TRIMBLE v. DHS 2
P ER CURIAM .
Aisha Trimble appeals a decision of the Merit Systems
Protection Board (Board) denying her request for corrective
action under the Veterans Employment Opportunities Act
of 1998 (VEOA). For the following reasons, we affirm.
BACKGROUND
Ms. Trimble is an honorably discharged, preference-el-
igible veteran who served on active duty in the United
States Army from August 1996 to June 2000. Appx. 16.1
In January of 2022, Ms. Trimble applied for the position of
Executive Assistant in the Region 6 team of the Federal
Emergency Management Agency (FEMA) in Denton,
Texas. Id. The Executive Assistant position was an-
nounced through FEMA’s merit promotion process, id. at
22, 77–79, which permits the “position [ ] to be filled by an
employee of the agency or by an applicant from outside the
agency who has ‘status’ in the competitive service,” Joseph
v. F.T.C., 505 F.3d 1380, 1382 (Fed. Cir. 2007) (citing 5
C.F.R. § 335.103(b)(1)). By statute, veterans are eligible to
apply for all positions listed through the merit promotion
process. Id. (citing 5 U.S.C. § 3304(f)). Ms. Trimble was
initially selected as one of the best qualified candidates and
was invited, along with other candidates, to interview for
the position. Appx. 16.
Ms. Trimble was ultimately not selected for the Execu-
tive Assistant position, which was instead offered to an-
other, non-veteran interviewee. Id. at 12. Ms. Trimble
appealed that decision to the Board, arguing the selection
process violated the VEOA’s provisions requiring veterans
be given “the opportunity to compete” for merit promotion
positions, see 5 U.S.C. § 3304(f)(1), and veterans’ prefer-
ences in hiring decisions, see 5 U.S.C. § 3330a(a)(1)(A)
1 Citations to “Appx.” refer to the appendix attached
to the Respondent’s Informal Brief.
Case: 23-1279 Document: 28 Page: 2 Filed: 09/12/2023

-- 2 of 5 --

TRIMBLE v. DHS 3
(providing a cause of action to “a preference eligible who
alleges that an agency has violated such individual rights
. . . relating to veterans’ preference”). The Board denied
Ms. Trimble’s request for corrective action under the
VEOA. See Trimble v. Dep’t of Homeland Sec., No. DA-
3330-22-0251-I-1 (M.S.P.B. Oct. 7, 2022) (reproduced at
Appx. 15–23). Amongst other things,2 the Board deter-
mined Ms. Trimble failed to show she was not accorded a
fair opportunity to compete, Appx. 18–20, and that, be-
cause the Executive Assistant position was undisputedly
listed through the merit promotion process, Ms. Trimble
was “not entitled to veterans’ preference,” Appx. 22 (quot-
ing Joseph, 505 F.3d at 1383). Ms. Trimble timely ap-
pealed to this Court.3 We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
D ISCUSSION
On appeal, Ms. Trimble disputes the Board’s determi-
nations that she failed to establish she was deprived of a
fair opportunity to compete and application of veterans’
preferences. We must uphold the Board’s decision unless
it is “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
2 The Board also rejected Ms. Trimble’s claims that
FEMA violated 38 U.S.C. § 4214 and 5 C.F.R. § 315.611.
Appx. 22. Ms. Trimble does not appeal those rulings.
3 This is not the first case in which Ms. Trimble has
brought VEOA claims based on her non-selection for an Ex-
ecutive Assistant position within a government agency. In
Trimble v. Dep’t of Veterans Affs., No. 2023-1306, 2023 WL
4287195 (Fed. Cir. June 30, 2023) (non-precedential), we
upheld the Board’s decision regarding substantially simi-
lar VEOA claims arising from Ms. Trimble’s non-selection
for an Executive Assistant position within the Department
of Veterans Affairs (VA).
Case: 23-1279 Document: 28 Page: 3 Filed: 09/12/2023

-- 3 of 5 --

TRIMBLE v. DHS 4
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). We review the Board’s finding that Ms.
Trimble was given a fair opportunity to compete for sub-
stantial evidence. See Asatov v. Dep’t of Lab., 542 F. App’x
930, 932 (Fed. Cir. 2013) (non-precedential) (affirming on
substantial evidence “the Board’s factual conclusion that
[the veteran] was afforded an opportunity to compete”).
Substantial evidence is “such relevant evidence as a rea-
sonable mind might accept as adequate to support a con-
clusion.” McLaughlin v. Off. of Pers. Mgmt., 353 F.3d 1363,
1369 (Fed. Cir. 2004). We review the Board’s legal conclu-
sions, including the interpretation of statutes and prece-
dent, de novo. See Abell v. Dep’t of Navy, 343 F.3d 1378,
1383 (Fed. Cir. 2003).
With respect to Ms. Trimble’s claim that she was de-
prived of a fair opportunity to compete in violation of
§ 3304(f)(1), we hold substantial evidence supports the
Board’s finding to the contrary. Ms. Trimble alleges she
was deprived of that opportunity because another candi-
date was “preselected” for the position despite being ineli-
gible and the conducted interviews were “fake” and only
intended to provide the illusion of fair competition. See Ap-
pellant’s Informal Op. Br. at 2–10. The Board considered
these allegations but found them speculative, wholly un-
supported by evidence, and contrary to the evidence of rec-
ord. Appx. 19–20. In particular, the Board credited
testimony that, contrary to Ms. Trimble’s allegations, the
candidate ultimately selected was eligible for promotion
and was not informed of her tentative selection until well
after interviews with each candidate were completed, bely-
ing claims of preselection. Id. The Board likewise rejected
Ms. Trimble’s allegations that the interviews were pre-
textual and that a letter from the interview panel to the
selecting official recommending the selectee was a “decep-
tive, forged document,” crediting those officials’ sworn tes-
timony that the interview process was identical for each
candidate and that the letter was genuine. Id.; see also
Case: 23-1279 Document: 28 Page: 4 Filed: 09/12/2023

-- 4 of 5 --

TRIMBLE v. DHS 5
Appx. 64 (recommendation letter). This is substantial evi-
dence supporting the Board’s finding that Ms. Trimble did
not establish she was denied a fair opportunity to compete
for the Executive Assistant position.
With respect to Ms. Trimble’s claim that she was im-
properly deprived of veterans’ preferences in violation of
§ 3330a(a)(1)(A), we hold the Board correctly concluded the
veterans’ preference was inapplicable to the merits promo-
tion position for which Ms. Trimble applied. While the
VEOA ensures veterans have the opportunity to compete
for positions announced through the merit promotion pro-
cess, it does not provide for application of the veterans’
preference in that context. Indeed, § 3304(f)(3) of the
VEOA expressly states the “opportunity to compete” provi-
sion of § 3304(f) “shall not be construed to confer an enti-
tlement to veterans’ preference that is not otherwise
required by law.” In short, “an employee is not entitled to
veterans’ preference in the merit promotion process.” Jo-
seph, 505 F.3d at 1383 (quotation omitted). It is undis-
puted the Executive Assistant position for which Ms.
Trimble applied was announced through the merit promo-
tion process. Appx. 22; Appx. 77–79 (vacancy announce-
ment). FEMA’s alleged failure to apply the veterans’
preference to Ms. Trimble’s application for a merit promo-
tion position therefore does not establish a VEOA violation
as a matter of law.
CONCLUSION
We have considered Ms. Trimble’s other arguments
and find them unpersuasive. For the reasons given, we af-
firm the Board’s denial of corrective action under the
VEOA.
AFFIRMED
COSTS
No costs.
Case: 23-1279 Document: 28 Page: 5 Filed: 09/12/2023

-- 5 of 5 --