Melissa A. Silas v. Department of the Treasury
Background
- Melissa A. Silas, a preference-eligible veteran, was appointed under a Veterans’ Recruitment Appointment (VRA) to a GS-09 Security Specialist position in Feb 2015 and was terminated effective Oct 30, 2015 for failing to complete required FLETC basic investigator training during her trial period.
- Silas appealed her termination to the MSPB, claiming the agency’s allegations were false and alleging discrimination (Title VII, disability) and later asserting partisan-political and marital-status motivations on review.
- The agency moved to dismiss for lack of jurisdiction, arguing Silas did not meet the statutory definition of “employee” with appeal rights (1 year of current continuous service) and had not alleged the limited regulatory bases that afford a VRA appointee an appeal.
- The administrative judge dismissed the appeal without a hearing, finding Silas failed to nonfrivolously allege she had completed 1 year of current continuous service at separation and failed to plead a regulatory basis (partisan political reasons, marital status discrimination, or pre-appointment matters) for a VRA appeal.
- The Board denied review, holding Silas did not show she met the 1‑year continuous service requirement, her newly-raised claims of partisan or marital-status discrimination lacked evidentiary support and legal fit, and the Board therefore lacked jurisdiction over her termination and related discrimination claims.
Issues
| Issue | Silas’s Argument | Treasury’s Argument | Held |
|---|---|---|---|
| Whether Silas was an “employee” under 5 U.S.C. § 7511(a)(1)(B) (1 year of current continuous service) | Silas asserted she had over 2.5 years of agency service prior to termination | Silas had a break in federal service (resigned Aug 23, 2008; appointed Feb 2015), so she lacked the required 1 year immediately preceding the adverse action | Held: Silas failed to show 1 year of current continuous service; Board lacks jurisdiction under chapter 75 |
| Whether a VRA appointee may appeal under 5 C.F.R. § 315.806 (regulatory bases) | On review Silas alleged termination was due to partisan politics and marital status; also alleged disability discrimination related to an injury at FLETC | Agency argued Silas never timely raised these regulatory grounds below and did not nonfrivolously allege partisan or marital‑status discrimination | Held: Claims raised for first time on review are not considered; even if considered, allegations do not meet regulatory definitions (no partisan‑political affiliation shown; spouse’s race is not marital‑status discrimination); thus no regulatory right to appeal |
| Whether discrimination allegations (disability, Title VII) create independent jurisdiction | Silas argued she was discriminated against and prematurely sent back after injury at training | Agency and Board: discrimination claims do not create independent jurisdiction absent an underlying appealable action | Held: Because Board lacks jurisdiction over the termination, it also lacks jurisdiction to adjudicate discrimination claims |
| Whether the administrative judge abused discretion by dismissing without a hearing | Silas requested a hearing and raised factual claims | Agency argued record lacked nonfrivolous jurisdictional allegations warranting a hearing | Held: No abuse — dismissal appropriate where appellant failed to nonfrivolously allege jurisdictional facts |
Key Cases Cited
- Maibaum v. Department of Veterans Affairs, 116 M.S.P.R. 234 (2011) (1‑year current continuous service dispositive for excepted‑service preference eligibles)
- Mastriano v. Federal Aviation Administration, 714 F.2d 1152 (1983) (definition of partisan political reasons under 5 C.F.R. § 315.806)
- Stokes v. Federal Aviation Administration, 761 F.2d 682 (1985) (insubstantial allegations of marital‑status or political discrimination permit dismissal for lack of jurisdiction)
- Wren v. Department of the Army, 2 M.S.P.R. 1 (1980) (discrimination allegations do not create independent Board jurisdiction)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (1991) (court generally will not waive statutory deadline for appeals)