NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3151
MASON B. BROWN,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
DECIDED: August 5, 2005
__________________________
Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.
PER CURIAM.
Mason B. Brown (“Brown”) petitions for review of the decision of the Merit
Systems Protection Board (“Board”) dismissing his appeal of his removal without
prejudice pending the outcome of a criminal investigation into his conduct that
precipitated his removal. Brown v. Dep’t of the Treasury, No. AT-0752-04-0289-I-1
(M.S.P.B. May 27, 2004) (“Initial Decision”). The full Board denied his petition for
review, and the Initial Decision became the final decision of the Board. Because Brown
has not shown that the Board abused its discretion in dismissing his appeal without
prejudice, we affirm.
Brown was removed from the Treasury Department based on a charge of
fraudulent use of identification documents and information and a charge of misuse of a
social security number. Initial Decision, slip op. at 1. Because the matter had been
referred for prosecution, at least some of the evidence could not be disclosed because it
had been subpoenaed by a Grand Jury. Id. at 2. The Board, therefore, dismissed
Brown’s appeal without prejudice, allowing Brown the option of re-filing his appeal within
45 days from the date the criminal matter is resolved or, alternatively, within 20 days
after expiration of six months from the date of the Initial Decision. Id. at 2-3. Although
Brown argues that the Board committed error because he is innocent of the charges,
the merits of Brown’s complaint are not before us. Brown’s complaint has not been
decided, and the dismissal without prejudice gives Brown the opportunity to timely re-file
his appeal and the opportunity to have the propriety of his dismissal adjudicated on the
merits once the criminal matter is resolved. Whether Brown actually committed the acts
of which he is charged is not the issue. The only issue before this court is whether the
Board abused its discretion in dismissing his appeal without prejudice. See 5 U.S.C.
§ 7703(c)(1) (2000). Because Brown has not shown that the Board abused its
discretion in dismissing his appeal without prejudice pending resolution of the criminal
matter, we affirm.
05-3151 2