Trimble v. DVA

• Court: Court of Appeals for the Federal Circuit
• Decided: June 30, 2023
• Docket: 23-1306
• Status: Unpublished

Opinion

Case: 23-1306 Document: 17 Page: 1 Filed: 06/30/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

AISHA TRIMBLE, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2023-1306 ______________________

Petition for review of the Merit Systems Protection Board in No. DA-3330-22-0254-I-1. ______________________

Decided: June 30, 2023 ______________________

AISHA TRIMBLE, Dallas, TX, pro se.

DANIEL FALKNOR, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR. ______________________

Before HUGHES, CUNNINGHAM, and STARK, Circuit Judges. PER CURIAM. Case: 23-1306 Document: 17 Page: 2 Filed: 06/30/2023

Ms. Aisha Trimble appeals a decision from the Merit Systems Protection Board (MSPB) denying her request for corrective action under the Veterans Employment Oppor- tunities Act of 1998 (VEOA). Because the Board’s findings were supported by substantial evidence and because the Board did not legally err, we affirm. I Ms. Trimble served on active duty in the United States Army from August 1996 through June 2000. She was hon- orably discharged and has service-connected disabilities at 30% or greater. In November 2021, Ms. Trimble applied for an Execu- tive Assistant position with the Board of Veterans Appeals (the agency) based on a job listing posted on USAJobs.gov. The listing used a merit promotion certificate and indi- cated that the position was only open to career transition Federal employees, current or former competitive service Federal employees, individuals with disabilities, military spouses, and veterans. Ms. Trimble qualified to apply for the position because of her status as a veteran. On November 16, 2021, the agency notified Ms. Trim- ble that it would “assess [her] qualifications based upon [her] resume, the responses [she] provided in the question- naire, as well as all other materials requested in the job opportunity announcement.” SAppx24. 1 On December 10, 2021, the agency notified Ms. Trimble that she had been referred to the hiring manager. The agency also informed Ms. Trimble that she was entitled to “CPS-10-point prefer- ence” because she had a service-connected disability of 30% or more. Appx25.

1 We use “SAppx,” to refer to the appendix attached to the government’s response brief, and “Appx” to refer to the appendix attached to Ms. Trimble’s opening brief. Case: 23-1306 Document: 17 Page: 3 Filed: 06/30/2023

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The job posting indicated that the agency was seeking six Executive Assistants. After accepting applications from November 15 to November 26, 2021, the agency identified 521 candidates who preliminarily qualified for the six posi- tions. Of these candidates, about 92 were individuals who were 30% or more disabled veterans, including Ms. Trim- ble. This list of more than 500 candidates was sent to six executives (selecting officials). The list was split across three certificates of eligible candidates, and the applicants were listed in alphabetical order on each certificate. When the selecting officials were given the list of candidates, they were “reminded that while you are not required to select an internal candidate, you must consider internal appli- cants first.” Appx15. The selecting officials reviewed the applications and rated each candidate as either meriting or not meriting an interview based on the candidates’ ability or experience in four areas: (1) supporting a senior executive (or equivalent) in the Federal service; (2) overseeing or leading tasks or programs involving compliance with deadlines or organiza- tional change; (3) working collaboratively with executives, peers, and subordinates; and (4) supporting operations in a judicial or quasi-judicial environment. One of the selecting officials listed Ms. Trimble as a “maybe” for an interview, but ultimately she was not one of the 26 individuals inter- viewed. After conducting interviews in January 2022, six can- didates were extended offers. Of the individuals given of- fers, this record indicates that at least three are veterans or have prior military service, and at least one of the indi- viduals has service-connected disability ratings of at least 30%. Ms. Trimble was notified that she had not been se- lected for an Executive Assistant position on February 9, 2022. Case: 23-1306 Document: 17 Page: 4 Filed: 06/30/2023

Ms. Trimble filed a complaint with the Department of Labor alleging that her right to compete as a preference- eligible veteran was violated. Her claim was denied be- cause the job listing was a merit promotion announcement, and so she was not entitled to “receive veterans’ preference points or priority over others.” SAppx1. Ms. Trimble filed a request with the MSPB for corrective action under the VEOA, arguing that the chosen applicants had been prese- lected and the agency violated statutes and regulations that entitled her to veterans’ preference. The Board denied her request for a hearing, holding there were no material facts in genuine dispute, and denied her request for correc- tive action in an Initial Decision. The Board first found that Ms. Trimble’s claims of pre-selection were “speculative and not supported by evidence.” Appx9. The Board also held that the Executive Assistant job listing was a merit promo- tion listing, to which the veterans’ preference requirements do not apply. Ms. Trimble appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II We set aside the Board’s decision only if it is “(1) arbi- trary, 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). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Off. of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004). Legal conclusions by the Board are reviewed de novo. Wrocklage v. Dep’t of Homeland Sec., 769 F.3d 1363, 1366 (Fed. Cir. 2014). III Ms. Trimble’s appeal raises two issues under the VEOA. The first is whether she was denied a right to Case: 23-1306 Document: 17 Page: 5 Filed: 06/30/2023

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compete under merit promotion procedures. The second is whether the agency violated her rights to veterans’ prefer- ence. We affirm as to both. A We begin with Ms. Trimble’s right to compete. Because substantial evidence supports the Board’s finding that Ms. Trimble had the opportunity to compete, we affirm. The VEOA provides that “veterans . . . may not be de- nied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce un- der merit promotion procedures.” 5 U.S.C. § 3304(f)(1). While this requires that preference eligible veterans have the chance to compete for such vacant positions, it does not ensure that the veteran will be selected for the position. Joseph v. Fed. Trade Comm’n, 505 F.3d 1380, 1384 (Fed. Cir. 2007). Here, there is no genuine dispute that Ms. Trim- ble is a preference eligible veteran, and that the vacancy was to be filled through merit promotion procedures. 2 The only issue is whether she had a chance to compete for the position.

2 In her brief, Ms. Trimble argues “[t]here is no such thing as a Merit Promotion Announcement,” and that “[t]he job opportunity was posted to USAJobs.gov as a Competitive Service vacancy announcement.” Pet. Br. 6. But this argument misunderstands the law. As discussed below in section III.B, there are two separate procedures for agencies to fill a position in the competitive service: the procedures for open competition jobs and the procedures for merit promotion jobs. Here, it is clear from the certificate of eligible candidates that this job was to be filled with merit promotion procedures. Appx22 (classifying the certif- icate as “Competitive Merit Promotion.”). Case: 23-1306 Document: 17 Page: 6 Filed: 06/30/2023

The Board found that Ms. Trimble had the opportunity to compete because the agency publicly advertised the Ex- ecutive Assistant position, Ms. Trimble applied for the po- sition, and her application was referred to the selecting officials for consideration. This is evident at least from the job posting; the emails to Ms. Trimble confirming that her application was received and that she qualified as an ap- plicant; and the email to the selecting officials with the at- tached certificates, on which Ms. Trimble was listed as a candidate to consider. Though unnecessary to show an op- portunity to compete, we know Ms. Trimble remained in competition past the initial narrowing round and into the pre-interview stage because she was listed as a “maybe” on one of the selecting official’s interview lists. The record thus contains substantial evidence to support the Board’s conclusion that Ms. Trimble was not denied an opportunity to compete. Ms. Trimble argues that the agency violated her right to compete by preselecting internal candidates. Her sup- port for this argument is an email from an agency employee instructing the selecting officials to “consider internal ap- plicants first.” Appx15. But that email also specifies that the selecting officials were not required to choose internal applications, and any remaining allegations of preselection are speculative at best. See, e.g., Pet. Br., 5 (“I strongly be- lieve that neither [sic] of the six Selecting Officials thor- oughly reviewed 521 resumes and applications referred under the vacancy. . . . I believe names were randomly placed on Exhibits 12 & 13, and the Selecting Officials pre- selected the appointed Selectees.”) (emphases added); see also id. at 7–8 (speculating that the timing of the offer let- ters to the selectees and the lack of signatures necessarily mean there was preselection). Ms. Trimble’s subjective be- lief that the selecting officers preselected the six select- ees—and her implication that the agency then created a sham job posting, drafted certificates, and interviewed 26 candidates to try to appear fair—is not supported by the Case: 23-1306 Document: 17 Page: 7 Filed: 06/30/2023

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record. Rather, as explained above, there is substantial ev- idence that Ms. Trimble was given a fair opportunity to compete. Ms. Trimble also alleges that she was denied a right to compete because all six selectees were current federal em- ployees at the time of their selections, and the selectees were less experienced than her or were not veterans. First, some of these allegations are speculative and reflect only Ms. Trimble’s opinions or beliefs. For example, Ms. Trimble states that one of the selectees is “possibly not a veteran,” and faults the Board for using DD-214 records as proof of military service because such records “can be falsified.” Pet. Br. 1–2. But nothing in the record suggests that the relevant documents were, in fact, falsified. Moreover, even to the extent Ms. Trimble does rely on the record, the facts that some selectees were not veterans and others had fewer years of experience as “Executive Assistants” are irrele- vant. It is not up to the MSPB, in a VEOA case, to decide which of the applicants are most qualified for this position. Miller v. Fed. Deposit Ins. Corp., 818 F.3d 1361, 1366 (Fed. Cir. 2016) (“[T]he VEOA does not authorize the MSPB to conduct, on appeal, a substantive review of the veteran’s qualifications and adjudicate the correctness of the agency’s hiring decision.”). Nor was the agency required to ultimately hire veterans and preference eligible veterans who were outside the federal workforce. All that was re- quired was that those individuals had the opportunity to compete. Joseph, 505 F.3d at 1384. Finally, Ms. Trimble cites to facts developed in a hear- ing for a separate MSPB matter under the Uniformed Ser- vices Employment and Reemployment Rights Act of 1994 (USERRA). But the Board did not hold a hearing here, and the hearing in the USERRA case is not part of this record. These arguments are irrelevant and do not persuade us that the Board lacked substantial evidence in concluding Ms. Trimble had an opportunity to compete. Case: 23-1306 Document: 17 Page: 8 Filed: 06/30/2023

B Next, we address Ms. Trimble’s argument that the agency violated various statutes and regulations by not giving her veterans’ preference in the application process. Besides providing a right to compete claim, “[t]he VEOA provides preference eligible veterans with a right to file a claim for any agency hiring decision that violated the vet- eran’s rights under a statute or regulation relating to vet- eran’s preference.” Lazaro v. Dep’t of Veterans Affs., 666 F.3d 1316, 1318 (Fed. Cir. 2012) (citing 5 U.S.C. § 3330a). Here, Ms. Trimble argues the agency violated statutory and regulatory provisions that give veterans preference over other applicants by, for example, not applying her preference points; not creating and ranking her on a Best Qualified or Well Qualified Candidate Certificate; and not giving notice of passing her over and allowing her to object. Pet. Br. 1, 5–6. 3 There are generally two ways for federal agencies to fill vacancies in the competitive service: (1) through open com- petition; or (2) through merit promotion. Joseph, 505 F.3d at 1381. Open competition is used when the agency seeks to fill the position with employees not already in the com- petitive service. Kerner v. Dep’t of the Interior, 778 F.3d 1336, 1337 (Fed. Cir. 2015). In contrast, merit promotion is used to fill a vacancy by promoting or transferring an em- ployee of the agency or by hiring an applicant from outside

3 Apart from the right to compete provision in 5 U.S.C. § 3304(f)(1), Ms. Trimble identifies the following veterans’ preference statutes: 5 U.S.C. §§ 2302(b)(11)(a-b), 3309(1), 3311(2), 3313(2), 3317(b), and 3318(c)(2-4). She also identified the following veterans’ preference regula- tions: 5 C.F.R. §§ 332.401(a)(b) and 332.406(a)(1). These additional authorities all involve veterans’ preference. Case: 23-1306 Document: 17 Page: 9 Filed: 06/30/2023

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the agency who has “status” for that position. Joseph, 505 F.3d at 1382. Different procedures apply depending on whether a job vacancy is filled through open competition or merit promo- tion. When a position is filled through open competition, the agency provides a “category rating system,” by which candidates at similar levels are in the same category; and a preference eligible with a compensable service-connected disability of at least 10% must be listed in the highest qual- ity category. 5 U.S.C. § 3319. See also Lodge v. E.E.O.C., 389 F. App’x 993, 996 (Fed. Cir. 2010) (non-precedential). Within each category, preference eligible veterans must be listed above non-preference eligible individuals. 5 U.S.C. § 3319. Moreover, an agency may not select a non-prefer- ence eligible over a preference eligible in the same category unless it seeks and receives approval for a pass over. Id. These same advantages do not extend to the merit pro- motion context. An applicant “is not entitled to veterans’ preference in the merit promotion process.” Joseph, 505 F.3d at 1383. Veterans are guaranteed only the right to ap- ply and an opportunity to compete for a merit promotion position. Miller, 818 F.3d at 1359–60. Here, the vacancy was filled through merit promotion procedures. The job posting sought to promote or transfer either Federal employees into the role, or employees who had status to apply as an individual with a disability, a military spouse, or a veteran. Appx29. And the relevant certificate of eligible candidates was explicitly labeled a “competitive merit promotion” certificate. Appx22. This re- affirms that the role was to be filled through merit promo- tion procedures. Because this was a merit promotion listing, none of the open competition procedures Ms. Trimble identifies apply. Joseph, 505 F.3d at 1383. Thus, there are no underlying violations regarding veterans’ preference that give rise to a viable VEOA claim. Case: 23-1306 Document: 17 Page: 10 Filed: 06/30/2023

IV In addition to her merits arguments, Ms. Trimble ar- gues that the Board denied her a right to due process by not holding a hearing. Pet. Br. 1. She also alleges that the Board violated her rights, for example, by saying that it would likely “throw out [her] Appeal before [beginning] dis- covery;” ignoring material facts; and allowing the govern- ment to redact names during discovery. Id. at 6–8. In a VEOA appeal, “[t]he Board . . . has the authority to decide [the] appeal on the merits, without a hearing, where there is no genuine dispute of material fact and one party must prevail as a matter of law.” Jones v. Dep’t of Health & Hum. Servs., 640 F. App’x 861, 864 (Fed. Cir. 2016) (citing 5 C.F.R. § 1208.23(b)). We agree with the Board that there was no genuine dispute of material fact about whether Ms. Trimble had the opportunity to compete for this position. Ms. Trimble did not identify any evidence disputing that the agency publicly disclosed the job posi- tion, received over 500 applications, reviewed her submis- sion, and held 26 interviews before choosing the six selectees. We see no reversible error regarding Ms. Trim- ble’s remaining procedural complaints and hold that the Board did not violate Ms. Trimble’s procedural rights. V We have considered Ms. Trimble’s remaining argu- ments and do not find them persuasive. We affirm because the Board’s findings were supported by substantial evi- dence, the Board correctly held that Ms. Trimble was not entitled to veterans’ preference, and the Board did not err in deciding these issues without holding a hearing. AFFIRMED No costs.