                  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.




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