                 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

                                      2006-3276


                                THOMAS S. WILSON,

                                                     Petitioner,


                                          v.


                     DEPARTMENT OF HOMELAND SECURITY,

                                                     Respondent.


                          __________________________

                          DECIDED: November 15, 2006
                          __________________________


Before DYK and PROST, Circuit Judges, and MCKINNEY, Chief District Judge.∗

PER CURIAM.

      Petitioner Thomas S. Wilson petitions for review of the final order of the Merit

Systems Protection Board (“board”), sustaining the decision of the Department of

Homeland Security (“agency”) to remove Mr. Wilson from service. We affirm.




      ∗
              Honorable Larry J. McKinney, Chief District Judge, United States District
Court for the Southern District of Indiana, sitting by designation.
                                    BACKGROUND

      Mr. Wilson served as a Customs and Border Protection Officer in the Passenger

Processing Branch of the Bureau of Customs and Border Protection at the Area Port in

Dallas/Fort Worth, Texas. On September 12, 2004, he met Rosanna Silveira when she

arrived on a flight from Brazil.   Mr. Wilson and Ms. Silveira1 were at his home on

December 23, 2004 when Ms. Silveira called the police to report a domestic

disturbance.   Upon arrival at Mr. Wilson’s home, police officers found controlled

substances on the coffee table, and in his freezer and closet. At that time, Mr. Wilson

gave a written statement which said:

      I, Thomas Wilson, was trying to help find marijuana for Josanna Silveira
      for her HIV. I went to Dallas to contact a friend to acquire marijuana for
      Josanna. The marijuana was purchased for $140 for Josanna on Tuesday
      the 12/21/04.

      The agency removed Mr. Wilson from his position based on a charge of

possession of illegal drugs or controlled substances. Mr. Wilson appealed his removal

to the board. During his hearing before the administrative judge, Mr. Wilson sought to

explain the presence of the substances in his home. He testified that the substances

were purchased by and belonged to Ms. Silveira. Wilson v. Dep’t of Homeland Sec.,

No. DA0752050472-I-2, slip op. at 11-12 (M.S.P.B. Feb. 16, 2006). Mr. Wilson also

testified that the use of the term “marijuana” in his statement referred to the marijuana

pills he believed Ms. Silveira had acquired as a prescription medication. Id., slip op. at

11. The administrative judge sustained the charge against Mr. Wilson finding that “it is

undisputed that marijuana, a controlled substance, was found in his home and his



      1
             Mr. Wilson also referred to Ms. Silveira in his statements and testimony as
“Jossana” or “Josanna”.


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statement, voluntarily provided to the police officers, states that he acquired the

marijuana for Silveira.”    Id., slip op. at 15.   In making this finding, the board also

determined that Mr. Wilson’s denial that he purchased the marijuana was not credible.

Id., slip op. at 13-15.

       Mr. Wilson’s subsequent petition of the administrative judge’s decision to the

board was denied. Wilson v. Dep’t of Homeland Sec., No. DA0752050472-I-2, slip op.

at 2 (M.S.P.B. May 22, 2006). Thereafter, the administrative judge’s initial decision

became the final decision of the board. 5 C.F.R. § 1201.113 (2005). Mr. Wilson timely

petitioned this court for review of the board’s final decision.

                                       DISCUSSION

       This court has jurisdiction to review a final order or decision of the board under 5

U.S.C. § 7703(b)(1). In reviewing the board’s decision, this court

       shall review the record and hold unlawful and set aside any agency action,
       findings, or conclusions found to be (1) arbitrary, capricious, an abuse of
       discretion, or otherwise not in accordance with law; (2) obtained without
       procedures required by law, rule, or regulation having been followed; or
       (3) unsupported by substantial evidence . . . .

5 U.S.C. § 7703(c) (2000).

       Mr. Wilson appears to argue that the administrative judge committed procedural

error by excluding three witnesses who could have provided exculpatory testimony. An

administrative judge “is authorized to rule on witness lists, i.e., to exclude witnesses

whose testimony is considered irrelevant, immaterial, or repetitious.” Tiffany v. Dep’t of

Navy, 795 F.2d 67, 70 (Fed. Cir. 1986). This court reviews procedural decisions under

an abuse of decision standard. See Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,




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1378 (Fed. Cir. 1988).     We will not overturn such a decision unless the abuse of

discretion is clear and harmful. Id.

       Two of Mr. Wilson’s witnesses were excluded because they were not designated

in a timely manner and that a third witness was excluded because the administrative

judge did not find the witness’s testimony to be relevant or material. However, affidavits

from all three witnesses were accepted into the record. Mr. Wilson does not provide

any reason why this court should find that these procedural decisions constituted an

abuse of discretion or that they resulted in harm to his case. The board is certainly

permitted to set and enforce deadlines throughout the appeal process. Further, in this

case, the affidavits of all three witnesses were admitted into the record. Therefore, their

testimony was not only before the administrative judge, it was subject to no cross

examination by the agency. Given these facts, Mr. Wilson has not established that the

administrative judge committed procedural error in excluding the live testimony of three

of his witnesses.

       Mr. Wilson also argues that the board failed to consider that he was not

convicted of any crime for the events which led to his removal. In particular, Mr. Wilson

notes that criminal charges against him were dropped so that he was not ultimately

found guilty of any crime and that he “did nothing illegal by helping Ms. Silveira get her

prescription filled.” However, the lack of a criminal conviction does not require reversal

of Mr. Wilson’s removal. It is not necessary for Mr. Wilson to be convicted of a criminal

offense for the agency’s removal to be sustained. Smith v. U.S. Postal Serv., 789 F.2d

1540, 1541 n.1 (Fed. Cir. 1986) (stating that dismissal of criminal charges does not

weaken an agency’s case of removal); see Serrano v. United States, 612 F.2d 525,




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530, (Ct. Cl. 1979) (noting that an acquittal of charges at court martial did not preclude

agency from independently determining whether an employee acted improperly).

Further, the agency is in no way estopped from imposing an adverse employment

action solely because the criminal proceedings resulted in no conviction. The elements

of a criminal violation are different from the elements of misconduct that must be proved

to the board.     The standard of proof is also higher in a criminal case (beyond a

reasonable doubt) than in a proceeding before the board (preponderance of the

evidence). See Rodriguez-Ortiz v. Dep’t of the Army, 46 M.S.P.R. 546, 548 (1991) (“A

determination by a court that the government had insufficient evidence to prove its

criminal case beyond a reasonable doubt will not preclude an agency from attempting to

prove the same set of facts by a preponderance of the evidence in a related

administrative action.”). Therefore, the lack of a criminal conviction does not preclude

the agency from removing Mr. Wilson based on a charge of possession of illegal drugs

or controlled substances.

      Here, the board considered the testimony of the arresting officers and Mr.

Wilson’s statement during arrest, did not find Mr. Wilson’s explanations credible, and

accordingly found that the agency had proved its charge by a preponderance of the

evidence. We find no error in the board’s decision. We therefore affirm.

      No costs.




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