UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GREGORY BENN BROWN,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

PH-0752-19-0045-I-1

DATE: May 14, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gregory Benn Brown, New London, Connecticut, pro se.

Alexandra Hudd Sandgren and Sean M. Connolly, Groton, Connecticut, for 

the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed without prejudice his initial appeal. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). For

the reasons discussed below, we FORWARD this matter to the administrative

judge for her to refile the appeal, which was previously dismissed without

prejudice. 

On review, the appellant argues that the record does not support the

administrative judge’s dismissal without prejudice of his appeal over his

objection. Petition for Review (PFR) File, Tab 1 at 5-10. He first contends that

the administrative judge’s order directing him to respond as to whether he

objected to a dismissal without prejudice “chill[ed]” the protection of law”

because he was recovering from a medical condition at the time. Id. at 8; Initial

Appeal File (IAF), Tab 41. He also states that the dismissal constituted harmful

error, an abuse of discretion, an erroneous interpretation of statute and

regulations, and did not serve the interests of fairness, due process, and

administrative efficiency. PFR File, Tab 1 at 5-10. He argues that the

administrative judge’s finding that the record is “replete” with examples of his

inability to meet deadlines due to his medical condition is unfounded and that it is

difficult for him to respond to orders because he is not an attorney. Id. at 9; IAF,

Tab 48, Initial Decision (ID) at 4-5. He further contends that the administrative

judge’s directive that, although the appeal will be automatically refiled on

October 15, 2019, he may refile his appeal sooner if he submits acceptable

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medical documentation is not supported by the Board’s case law because it is

impossible for a doctor to determine whether he is fit to pursue his appeal and

deprives him of his ability to challenge his removal. PFR File, Tab 1 at 8-10; ID

at 5. He requests that his case proceed and submits medical documentation

stating that he is medically stable from his chronic medical problems. PFR File,

Tab 1 at 10, 15. 

The administrative judge did not abuse her discretion in dismissing the

appeal without prejudice. An administrative judge has wide discretion to control

the proceedings before her, and the dismissal without prejudice to refiling is a

procedural option committed to her sound discretion. Gingery v. Department of

the Treasury, 111 M.S.P.R. 134, ¶ 9 (2009); 5 C.F.R. § 1201.29(b). The

administrative judge must exercise her discretion in a manner consistent with the

policies set forth by the Board. Selig v. Department of the Army, 102 M.S.P.R.

189, ¶ 6 (2006). A dismissal without prejudice may be granted when the interests

of fairness, due process, and administrative efficiency outweigh any prejudice to

either party. Gingery, 111 M.S.P.R. 134, ¶ 9; 5 C.F.R. § 1201.29(b). We find no

evidence that the administrative judge’s order informing the parties of her intent

to dismiss the appeal without prejudice and directing them to respond was

harmful to the appellant, as she provided him with an opportunity to respond prior

to her dismissal of the case, and the appellant responded to the order; he has not

indicated how the outcome of the case would have been different had he had

additional time to respond. See IAF, Tabs 41, 43. Given the delays in the case

due to the appellant’s serious medical condition and medical documentation

establishing the appellant’s ongoing recovery from the condition, the

administrative judge did not abuse her discretion in dismissing the case without

prejudice. See, e.g., Padilla v. Department of the Air Force, 58 M.S.P.R. 561,

566 (1993) (finding that the administrative judge did not abuse her discretion in

dismissing the appeal without prejudice in light of the appellant’s medical

3
condition and the need for a lengthy delay). The appellant has not shown, nor

does the record reflect, that he was prejudiced by the dismissal. 

We also find no error in the administrative judge’s decision to

automatically refile the appeal approximately 6 months after the issuance of the

initial decision, but to provide the appellant with an opportunity to refile sooner

upon the submission of medical documentation showing that he is “medically

stable” and “fit to pursue his appeal.” ID at 5. The Board has approved of

language directing an appellant to refile an appeal within a certain time after his

physicians find that he is medically able to proceed and to provide medical

documentation to that effect. See, e.g., Padilla, 58 M.S.P.R. at 567. We find no

error in the administrative judge’s hybrid approach to refiling. Additionally, on

review, the appellant has submitted medical documentation stating that he is

“medically stable.” PFR File, Tab 1 at 15. Accordingly, we find it appropriate to

forward this matter to the administrative judge for her to refile the appeal. 

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

2

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

4
Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

5
(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

6
Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

3

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

7
If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

8