Senyszyn v. Department of the Treasury

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

06-3242

BOHDAN SENYSZYN,

Petitioner,

DEPARTMENT OF THE TREASURY,

Respondent.

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DECIDED: October 11, 2006
__________________________

Before MICHEL, Chief Judge, LOURIE and SCHALL, Circuit Judges.

PER CURIAM.

DECISION

Bohdan Senyszyn petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that sustained the action of the Department of the Treasury,

Internal Revenue Service (“agency” or “IRS”), indefinitely suspending him from his

position. Senyszyn v. Dep’t of the Treasury, No. PH0752050403-I-1 (M.S.P.B. Mar. 31,

2006) (“Final Decision”). We affirm.
DISCUSSION

Mr. Senyszyn is employed by the agency as a GS-13, Step 10, Internal Revenue

Agent in Patterson, New Jersey. On February 15, 2005, he was arrested and charged

with violating 26 U.S.C. § 7214(a)(5). Section 7214(a)(5) makes it a crime for “[a]ny

officer or employee of the United States acting in connection with any revenue law of

the United States” to “knowingly make . . . opportunity for any person to defraud the

United States.” Mr. Senyszyn was charged based upon the criminal complaint of Mark

Scrivanich, a Special Agent of the Treasury Inspector General for Tax Administration.

In his complaint, Agent Scrivanich alleged that Mr. Senyszyn willfully diverted proceeds

from the sale of real estate as part of a scheme to avoid the payment of taxes.

On February 15, 2005, Joseph Cesaro of the IRS proposed that Mr. Senyszyn be

indefinitely suspended pending further investigation or resolution of the charges against

him. According to Mr. Cesaro, the agency had reasonable cause to believe that Mr.

Senyszyn had committed a crime for which a sentence of imprisonment could be

imposed. Mr. Cesaro noted, inter alia, that the crime with which Mr. Senyszyn had been

charged carried a maximum sentence of five years imprisonment; and that the alleged

criminal conduct at issue bore a “direct connection” to Mr. Senyszyn’s duties, which

included “recognizing the indicators of fraudulent activity and developing appropriate

referrals.” By letter dated April 7, 2005, Lawrence Barnes, the agency’s deciding

official, sustained the proposed indefinite suspension. Mr. Senyszyn’s suspension

began on April 9, 2005.

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Mr. Senyszyn timely appealed his suspension to the Board. After Mr. Senyszyn

withdrew his request for a hearing, the administrative judge (“AJ”) to whom the appeal

was assigned issued an initial decision in which he sustained the agency’s action.

Senyszyn v. Dep’t of the Treasury, No. PH-0752-05-0403-I-1 (M.S.P.B. Sept. 1, 2005)

(“Initial Decision”). The Initial Decision became the final decision of the Board on March

31, 2006 when the Board denied Mr. Senyszyn’s petition for review for failure to meet

the criteria for review set forth at 5 C.F.R. § 1201.115(d).1 Final Decision. This appeal

followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II.

Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

In Dunnington v. Dep’t of Justice, 956 F.2d 1151, 1155 (Fed. Cir. 1992), we

stated that an agency may indefinitely suspend an employee “only when there has been

an allegation of a serious crime, and only when the misconduct alleged bears a

sufficient relationship to the employee’s duties in the agency to warrant the action as

promoting the efficiency of the service.” Further, an agency may suspend an employee

pending the outcome of criminal proceedings; however, it must terminate the

1
As of March 31, 2006, the criminal investigation was still ongoing.
However, on April 13, 2006, a grand jury indicted Mr. Senyszyn on seven counts of
various tax-related felonies. United States v. Senyszyn, No. 2:06-Cr-00311 (D.N.J. April
13, 2006).

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suspension within a reasonable time after resolution of the criminal charges. Morrison

v. Nat’l Sci. Found., 423 F.3d 1366, 1369 (Fed. Cir. 2005).

The main thrust of Mr. Senyszyn’s appeal is that the decision of the Board cannot

stand because the agency’s deciding official failed to conduct an independent

investigation into the charges against him before suspending him because he had not

been indicted; and that the Board’s decision is defective because the AJ failed to

address what he refers to as “material issues.” Neither contention has merit. The

deciding official considered the criminal complaint and the accompanying sworn

statement detailing the charges against Mr. Senyszyn. This was all the agency was

required to do. See Dunnington, 956 F.3d at 1156-57. At the same time, the AJ did not

fail to address “material issues.” The matters to which Mr. Senyszyn points all relate to

the merits of the criminal charges against him. Because neither the agency nor the

Board was required to determine Mr. Senyszyn’s guilt or innocence, id., those matters

were not relevant.

Finally, we have considered Mr. Senyszyn’s various claims of harmful procedural

error by the agency and the AJ. Specifically, Mr. Senyszyn complains that the agency

failed to consider hundreds of pages of evidence and that the AJ failed to follow statutes

and regulations, failed to consider that Mr. Senyszyn was pro se, failed to rule on

motions, and allowed additional evidence after the close of the record. We find these

claims to be without merit. The agency’s finding that there was a reasonable likelihood

that a crime was committed has support in the record. Mr. Senyszyn has not explained

how the allegedly unconsidered evidence undermines the agency’s finding of a

reasonable likelihood that a crime was committed. All he does is attack the merits of

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the criminal charges against him. Nor did the AJ fail to follow any statutes or

regulations. The AJ followed, as explained above, both Dunnington and Morrison.

Although Mr. Senyszyn’s pro se status may require “that administrative judges should

provide more guidance to pro se appellants and interpret their arguments in the most

favorable light,” O'Keefe v. U.S. Postal Service, 318 F.3d 1310, 1316 (Fed. Cir. 2002)

(quoting Miles v. Dep't of Veterans Affairs, 84 M.S.P.R. 418, 421 (1999)), Mr. Senyszyn

has not explained how the AJ’s decision violates our deferential standard of review.

The AJ’s explanation that he did not rule on some of Mr. Senyszyn’s motions because

they were “overcome by events prior to the [AJ’s] chance to rule on them” is not an

abuse of discretion. Senyszyn, No. PH-0752-05-0403-I-1, at 2 (M.S.P.B. July, 25,

2005). Moreover, Mr. Senyszyn does not elaborate on which motions were ignored nor

how this created a harmful, i.e., reversible, error. Finally, the AJ’s allowing additional

evidence into the record was within his discretion because he did so to allow the agency

to rebut arguments Mr. Senyszyn raised for the first time in motions after the record was

closed. Id. at 3.

For the foregoing reasons, the final decision of the Board sustaining Mr.

Senyszyn’s indefinite suspension is affirmed.