The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER NICOLE BROWN, DOCKET NUMBER
Appellant, PH-315H-24-0005-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: February 18, 2026
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jennifer Nicole Brown , Providence, Rhode Island, pro se.
Nayoka L. Irving , Jared Smith , and Elizabeth Petrus , Washington, D.C.,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this probationary termination appeal for lack of jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
On January 29, 2023, the agency appointed the appellant to the
competitive-service position of GS-7 Secretary, subject to completion of a 1-year
initial probationary period beginning on that date. Initial Appeal File (IAF),
Tab 7 at 55. The agency terminated her appointment effective August 31, 2023,
purportedly for misconduct and performance reasons. IAF, Tab 1 at 15, 17-23,
Tab 7 at 16, 18-24. There is no dispute that, at the time of her termination, the
appellant was serving an initial probationary period and had completed only about
7 months of Federal service. IAF, Tab 1 at 3-4.
An individual in the competitive service who, like the appellant, is serving
an initial probationary period and has not completed 1 year of current continuous
service has no statutory right to bring an adverse appeal to the Board pursuant to
5 U.S.C. chapter 75. See Starkey v. Department of Housing and Urban
Development, 2024 MSPB 6, ¶ 16; Marynowski v. Department of the Navy,
118 M.S.P.R. 321, ¶ 4 (2012); see also 5 U.S.C. §§ 7511(a)(1)(A), 7513(d).
However, under certain limited circumstances, there may be a regulatory right to
appeal under 5 C.F.R. § 315.806. As relevant here, such an individual may
appeal a termination if she alleges that it was based on partisan political reasons
or marital status. See Starkey, 2024 MSPB 6, ¶ 16; 5 C.F.R. § 315.806(b) (2023).
To be entitled to a jurisdictional hearing in such an appeal, an appellant must
make a nonfrivolous allegation of jurisdiction, that is, an allegation of fact that, if
proven, would establish that her termination was based on partisan political
reasons or marital status. Starkey, 2024 MSPB 6, ¶ 16 n.4; Green-Brown v.
Department of Defense, 118 M.S.P.R. 327, ¶ 5 (2012). The appellant’s
allegations must be more than mere conjecture, and the appellant must provide
supporting facts to show that the allegation is not merely a pro forma pleading.
Smirne v. Department of the Army, 115 M.S.P.R. 51, ¶ 8 (2010).
The appellant asserted that her termination was based on partisan political
reasons. IAF, Tab 4 at 5, 10-13. The administrative judge, however, found that
her allegations concerning her conversations with coworkers and her supervisor
3
did not appear to implicate partisan political activity. IAF, Tab 9, Initial
Decision (ID) at 3. He determined that she alleged disagreements about race,
“which she then viewed as her supervisory chain having some form of
discriminatory animus toward her and her views.” ID at 4; see IAF, Tab 4
at 11-13. He found that the appellant did not identify her political party
affiliation or that of her coworkers and supervisors. ID at 4. The AJ further
determined that the appellant did not explain how her discussions with coworkers
contributed to her probationary termination. Id. He concluded that the appellant
did not make nonfrivolous allegations that her probationary termination was
based on partisan political reasons. Id.
Discrimination based on “partisan political reasons” under
5 C.F.R. § 315.806(b) means discrimination based on affiliation with any political
party or candidate. Mastriano v. Federal Aviation Administration, 714 F.2d
1152, 1155-56 (Fed. Cir. 1983); Marynowski, 118 M.S.P.R. 321, ¶ 7. We find
that the initial decision did not address several of the appellant’s allegations
supporting her partisan political discrimination claim. T he appellant alleged that,
in one instance, her supervisor elicited her political views and then made vulgar,
disparaging remarks about supporters of then-former President Donald Trump,
who was, in 2023, seeking the Republican party presidential nomination for the
upcoming election. IAF, Tab 4 at 6, 12. She stated that this compelled her to
clarify to her supervisor that she “was not a Trump supporter.” Id. at 12. Her
supervisor would later effectuate her notice of termination. IAF, Tab 1 at 23,
Tab 7 at 24. She provided another example of a coworker joking in the office
that the agency should use portraits of then-former President Trump as toilet
paper. IAF, Tab 4 at 12. The appellant stated that, although she was not a Trump
supporter, she was “dejected for conservative political views and their favoring
toward non-whites.” Id. As an example of the animus against her, she alleged
that this coworker later disfavored her by excluding her from the agency’s
Continuity of Operations plan. Id. at 12-13.
4
As stated above, the same supervisor who made the political remarks also
effectuated her notice of termination. IAF, Tab 1 at 23, Tab 4 at 6, 12,
Tab 7 at 24. The notice of termination indicates that the agency terminated her
appointment due to several instances of misconduct and unsatisfactory
performance. IAF, Tab 7 at 16, 18-24. However, the appellant alleged that these
stated reasons were pretextual. She claimed that her work performance was “very
good” and “improved the efficiency of the office” and that she had not been
notified of any conduct issues. IAF, Tab 1 at 9, 14. She stated that, when she
met her supervisor for an initial performance meeting, he did not talk about her
work and just gossiped. IAF, Tab 4 at 10. She also claimed that her supervisor
would not give her a performance plan, which was due 3 months into her
appointment, until August 2023, the same month she was terminated. Id. She
stated that the supervisor refused to discuss what he wrote in the August 2023
performance plan and just instructed her to sign it. Id. She suggested that her
complaints of harassment for her views were not taken seriously, alleging that her
supervisor planned a “field day” with people whom she had reported for harassing
her and directed her to schedule the event. Id.
Based on the above, we find that the appellant alleged that she was
perceived by her supervisor and coworkers as being affiliated with or supporting
a recognized political party or candidate for public office and that such a
perception led to her termination. IAF, Tabs 1, 4. We find that such a situation
fits within the definition of “partisan political reasons” under
5 C.F.R. § 315.806(b). See Mastriano, 714 F.2d at 1155-56; Marynowski,
118 M.S.P.R. 321, ¶ 7; Sweeting v. Department of Justice, 6 M.S.P.R. 715,
716-19 (1981). Therefore, we find that the appellant made nonfrivolous
allegations that her termination was based on partisan political reasons, and she is
entitled to a jurisdictional hearing at which she must prove her claim by a
preponderance of the evidence. See, e.g., Marynowski, 118 M.S.P.R. 321, ¶ 9.
Because the appellant made allegations to the administrative judge that warranted
5
a hearing, we have not considered the new evidence and argument she has
submitted with her petition for review. On remand, however, the parties may
submit additional evidence and argument in accordance with the administrative
judge’s orders.
While the appellant’s petition for review was pending before the Board, the
President issued an executive order that is titled Strengthening Probationary
Periods in the Federal Service. Exec. Order No. 14284, 90 Fed. Reg. 17729
(Apr. 24, 2025). Among other things, this order states that subpart H of part 315
of Title 5 “is hereby rendered inoperative and without effect. No agency shall
give force or effect to its provisions.” Id. at 17732. The order also instructed the
Office of Personnel Management to rescind the same—subpart H of part 315 of
Title 5, and OPM complied, effective June 24, 2025. Id.; Strengthening
Probationary Periods in the Federal Service, 90 Fed. Reg. 26727-01 (June 24,
2025). Subpart H of part 315 of Title 5 includes 5 C.F.R. § 315.806, the
regulatory provision under which the appellant is attempting to appeal her
probationary termination. On remand, the parties may present arguments about
the impact of these changes on this appeal, and the administrative judge should
address the matter in the remand initial decision.
6
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.