Senyszyn v. Department of the Treasury , 465 F. App'x 935 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BOHDAN SENYSZYN,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
2011-3226
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH0752080226-I-2.
____________________________
Decided: February 10, 2012
____________________________
BOHDAN SENYSZYN, of Succasunna, New Jersey, pro
se.
CHRISTOPHER L. KRAFCHEK, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
__________________________
SENYSZYN v. TREASURY 2
Before LINN, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
The Internal Revenue Service removed Bohdan
Senyszyn from his position as a revenue agent after Mr.
Senyszyn pled guilty in federal court to filing false tax
returns as an I.R.S. agent, tax evasion, structuring finan-
cial transactions, and bank fraud. Mr. Senyszyn petitions
this court for review of the final decision of the Merit
Systems Protection Board affirming the I.R.S.’s removal
action. Because the Board’s decision contains no legal
error and is supported by substantial evidence, we affirm.
I.
As a revenue agent in the I.R.S.’s large- and mid-sized
operation division, Mr. Senyszyn was responsible for
examining and investigating complex tax returns filed by
large businesses, corporations, and organizations. His
duties included responsibility for recognizing indicators of
fraudulent activity and developing appropriate referrals.
On April 13, 2006, a federal grand jury in New Jersey
returned a seven-count indictment charging Mr. Senyszyn
with various tax and financial offenses. Mr. Senyszyn
pled not guilty to the indictment but subsequently negoti-
ated a plea agreement with the government. Pursuant to
the plea agreement, the government filed a superseding
information, which contained four counts: filing false tax
returns as an I.R.S. agent in violation of 26 U.S.C.
§ 7214(a)(7) and 18 U.S.C. § 2; tax evasion for the year
2003 in violation of 26 U.S.C. § 7201; structuring financial
transactions in violation of 31 U.S.C. § 5324(a)(3), 18
U.S.C. § 2, and related regulations; and bank fraud in
violation of 18 U.S.C. § 1344.
Mr. Senyszyn pled guilty to all four counts on Sep-
tember 20, 2007. During the plea hearing, the assistant
3 SENYSZYN v. TREASURY
United States Attorney (“AUSA”), at the district court’s
direction, recited a number of allegations from the super-
seding information. Among those allegations was that
Mr. Senyszyn knowingly made a false representation on a
tax return about certain shareholders’ capital contribu-
tions to a partnership to claim future losses and thereby
avoid $500,000 in taxes. The AUSA also explained that
Mr. Senyszyn was accused of knowingly and intentionally
filing tax returns that failed to report substantial
amounts of taxable income. Mr. Senyszyn admitted the
truth of all the allegations recited by the AUSA. Based on
those admissions, the district court found that there was a
sufficient factual basis to support Mr. Senyszyn’s plea to
the offenses charged in the superseding information and,
ultimately, adjudged Mr. Senyszyn guilty.
After his plea hearing, but before his sentencing, Mr.
Senyszyn moved to withdraw his guilty plea as to the tax
evasion count because he claimed to be actually innocent
of the conduct charged and to have misunderstood the
terms of the plea agreement. He also asked that the court
terminate his court-appointed counsel’s representation.
The district court denied the motion to withdraw the
guilty plea, but relieved Mr. Senyszyn’s lawyer from the
representation and allowed Mr. Senyszyn to proceed pro
se. Mr. Senyszyn appeared at his sentencing pro se. On
February 25, 2008, the district court sentenced him to
thirty-four months of imprisonment, five years of super-
vised release, a $12,500 fine, and a $400 special penalty
assessment.
Mr. Senyszyn never filed a direct appeal of his sen-
tence or conviction. While he did appeal the denial of his
motion to withdraw his guilty plea, the U.S. Court of
Appeals for the Third Circuit affirmed the district court.
United States v. Senyszyn, 338 F. App’x 201 (3d Cir.
2009). Mr. Senyszyn also filed a motion to vacate, set
SENYSZYN v. TREASURY 4
aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. The district court denied that motion. Senyszyn
v. United States, No. 2:09-cv-6120 (D.N.J. June 4, 2010),
ECF No. 13. Mr. Senyszyn did not appeal the denial of
his habeas petition.
II.
In a letter dated October 9, 2007, the I.R.S. proposed
to remove Mr. Senyszyn from his position based on his
guilty plea. The agency noted that Mr. Senyszyn pled
guilty to filing false tax returns as an I.R.S. agent, and
that the statute governing that offense required the
agency to remove Mr. Senyszyn from his employment.
See 26 U.S.C. § 7214(a)(7). The agency also noted that
Mr. Senyszyn pled guilty to three additional felonies.
Because Mr. Senyszyn was responsible for examining
complex tax returns and detecting fraudulent activity, the
agency concluded that there was a direct connection
between Mr. Senyszyn’s job duties and the criminal
conduct of which he was convicted. Mr. Senyszyn submit-
ted a written response to the notice of proposed removal.
After considering Mr. Senyszyn’s response, the agency’s
deciding official sustained the removal.
Mr. Senyszyn appealed his removal. An administra-
tive judge (“AJ”) considered his appeal and affirmed his
removal in an initial decision dated December 20, 2010.
The AJ first found a factual basis for the charged miscon-
duct. Rather than requiring the agency to offer fresh
proof that Mr. Senyszyn engaged in the charged miscon-
duct, the AJ concluded that Mr. Senyszyn was collaterally
estopped from challenging the charged misconduct in
light of his admissions in the criminal action. The AJ
then considered Mr. Senyszyn’s affirmative defense that
the agency retaliated against him for making a protected
whistleblower disclosure. The AJ assumed, without
5 SENYSZYN v. TREASURY
deciding, that Mr. Senyszyn made a protected disclosure
in an October 2007 e-mail message. He found, however,
that Mr. Senyszyn’s disclosure was not a contributing
factor in the removal because there was no evidence that
either the proposing official or the deciding official was
aware of the e-mail message. The AJ found, moreover,
that the agency would have removed Mr. Senyszyn in the
absence of his protected disclosure because his guilty plea
would have provided strong evidence for disciplinary
action. Finally, the AJ found that the penalty of removal
was reasonable and promoted the efficiency of the service
in light of the seriousness of Mr. Senyszyn’s misconduct,
which went to the heart of his position. In the AJ’s view,
“if the agency did anything short of removing the appel-
lant in this instance, it would lose all credibility with the
tax paying public.”
Mr. Senyszyn filed a petition for review with the
Board, which affirmed the AJ’s decision, finding that the
AJ committed no legal error and that Mr. Senyszyn had
failed to present any new, material evidence. Mr.
Senyszyn attempted to introduce additional evidence,
which the Board rejected because the evidence either was
not new or was immaterial. Mr. Senyszyn also challenged
the AJ’s application of collateral estoppel; the Board
found no error in that application. Finally, Mr. Senyszyn
asserted again that he was actually innocent of the 2003
tax evasion charge. The Board rejected that argument
because it recognized that neither the district court nor
the Third Circuit had allowed Mr. Senyszyn to withdraw
his guilty plea or had vacated his conviction.
Mr. Senyszyn now appeals to this court.
III.
Our standard of review in an appeal from a Board de-
cision is limited by statute. 5 U.S.C. § 7703(c) (2004). See
SENYSZYN v. TREASURY 6
also Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321 (Fed.
Cir. 1999); O’Neill v. Office of Pers. Mgmt., 76 F.3d 363,
364-65 (Fed. Cir. 1996). We may reverse a decision of the
Board only if it is “(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) (2004).
We have considered each of Mr. Senyszyn’s argu-
ments. For the reasons discussed below, we find no legal
error in the AJ’s or Board’s respective decisions and find
the decisions to be supported by substantial evidence. We
address each of Mr. Senyszyn’s arguments in turn.
A.
Mr. Senyszyn argues that the AJ acted as an advocate
for the agency, and failed to afford him a full and fair
hearing on the merits, when the AJ invoked collateral
estoppel to find the charged misconduct proven. Mr.
Senyszyn is correct that litigants are entitled to a full and
fair hearing. The doctrine of collateral estoppel, however,
does not abridge that right. The doctrine saves an adjudi-
cating body from wasting resources on unnecessary litiga-
tion of an issue when that issue was decided in an earlier
proceeding. Chisholm v. Defense Logistics Agency, 656
F.2d 42, 46 (Fed. Cir. 1981). When he applied collateral
estoppel, the AJ did not absolve the agency from proving
the charged misconduct, as Mr. Senyszyn claims. The AJ
found that the proof already existed because Mr.
Senyszyn admitted, under oath, in his criminal action
that he engaged in the charged misconduct. The AJ was
not obligated to require the agency to prove something
that Mr. Senyszyn conceded occurred. “The grant of a
right to appeal does not in itself limit the decisionmaking
mechanisms available to the appellate tribunal. This
7 SENYSZYN v. TREASURY
court . . . has approved use of collateral estoppel by the
board.” Kroeger v. U.S. Postal Serv., 865 F.2d 235, 238
(Fed. Cir. 1988) (citations omitted).
B.
Mr. Senyszyn alternatively argues that the AJ misap-
plied collateral estoppel to the facts of this case. This
argument also fails.
To apply collateral estoppel, the AJ was required to
find the following: (1) the issues previously adjudicated
were identical with those now presented; (2) the issues
were actually litigated in the prior proceeding; (3) the
previous determination of those issues was necessary to
the end decision then made; and (4) the party precluded
was fully represented in the prior action. Kroeger, 865
F.2d at 239 (citing Thomas v. Gen. Serv. Admin., 794 F.2d
661, 664 (Fed. Cir. 1986) and Mother’s Rest., Inc. v.
Mama’s Pizza, Inc., 723 F.2d 1566, 1469 (Fed. Cir. 1983)).
We address each requirement in turn.
1.
The issues adjudicated in Mr. Senyszyn’s criminal ac-
tion are identical with those now presented. The notice of
proposed removal identified each of the four counts to
which Mr. Senyszyn pled guilty and cited them as the
basis for his removal. Mr. Senyszyn argues that the
issues are not identical because “[t]he [agency’s] charged
misconduct relates to tax evasion from embezzlement and
the plea relates to intended tax loss from the sale of
Schedule D transactions . . . .” Mr. Senyszyn mischarac-
terizes the conduct identified in the notice of proposed
removal, the charges specified in Mr. Senyszyn’s plea
agreement, and the conduct to which Mr. Senyszyn ad-
mitted during his plea hearing. The plea agreement
specifies the four counts to which Mr. Senyszyn agreed to
SENYSZYN v. TREASURY 8
plead guilty. The transcript of Mr. Senyszyn’s plea hear-
ing reflects that Mr. Senyszyn pled guilty to each count
and admitted the truth of numerous facts supporting each
count. The district judge found that the facts Mr.
Senyszyn conceded were both true and sufficient to sup-
port each of the charges to which Mr. Senyszyn pled
guilty. The notice of proposed removal recites the exact
same charges. Thus, the charged conduct in Mr.
Senyszyn’s removal action is identical to that to which
Mr. Senyszyn pled guilty in his criminal action.
2.
The issues here were actually litigated in Mr.
Senyszyn’s criminal action. In his plea agreement and
during his plea hearing, Mr. Senyszyn admitted the truth
of the facts supporting the charged offenses. The district
court entered judgment, which specified that “the court
has adjudicated that the defendant is guilty of the [four
charged] offenses.” The government did not have to
present its case to a jury to actually litigate it.
Mr. Senyszyn attempts to cast his guilty plea as a
stipulation and argues that a stipulated fact has not been
actually litigated for purposes of collateral estoppel unless
the stipulation clearly manifests a party’s intent to be
bound in future actions. Mr. Senyszyn, however, could
not have made his intent to be bound clearer. During the
plea hearing, the district court advised Mr. Senyszyn
that, as a consequence of the guilty plea, he would be
“required to be discharged from employment with the IRS
. . . under a federal law.” When the court asked Mr.
Senyszyn whether he understood that consequence, Mr.
Senyszyn responded, “[y]es, your Honor.” The AUSA then
recited facts alleged in the superseding information. Mr.
Senyszyn responded by admitting that each recited fact
was true. At the end of this colloquy, the AUSA asked
9 SENYSZYN v. TREASURY
Mr. Senyzszyn, “[a]re you pleading guilty to the crimes in
Counts 1, 2, 3 and 4 of the Superseding Information
because you, in fact, are guilty of those offenses?” “Yes, I
am,” Mr. Senyszyn responded.
Mr. Senyszyn clearly understood what he was admit-
ting when he pled guilty and the consequences of doing so.
He cannot argue that he did not intend to be bound by his
plea.
3.
The previous determination of the issues here was
necessary to the end decision made in the criminal action.
The district court had to accept Mr. Senyszyn’s guilty plea
and his proffered factual basis to enter judgment against
him. See Fed. R. Crim. P. 11(b)(3). See also Boykin v.
Alabama, 395 U.S. 239, 242 (1969) (“A guilty plea is more
than a confession which admits that the accused did
various acts; it is itself a conviction; nothing remains but
to give judgment and determine the punishment.”).
4.
Mr. Senyszyn argues that the final requirement for
collateral estoppel is not satisfied because he was not fully
represented throughout the entirety of his criminal pro-
ceedings, specifically at his sentencing hearing. We
disagree.
Mr. Senyszyn was represented by counsel during the
phase of his criminal action relevant to this case. After
Mr. Senyszyn was indicted, the district court appointed
an assistant federal public defender, K. Anthony Thomas,
to represent him. The government presented the plea
agreement to Mr. Thomas to review with Mr. Senyszyn.
Mr. Thomas signed the plea agreement with Mr.
Senyszyn. Mr. Thomas also appeared with Mr. Senyszyn
at the plea hearing, when Mr. Senyszyn admitted to the
SENYSZYN v. TREASURY 10
factual basis supporting the charged offenses and pled
guilty in open court. Although Mr. Senyszyn decided to
proceed pro se for his sentencing, the terms of his sen-
tence had no bearing on the I.R.S.’s decision to remove
him. It was his guilty plea and conviction that prompted
the agency to do so.
The requirement that an estopped party have been
“fully represented” in a prior proceeding, moreover, does
not mean that the party had to be represented by counsel.
The relevant inquiry is whether the party had a “full and
fair chance to litigate” the issue to be precluded. Blonder-
Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313,
329 (1971). While we have considered whether an es-
topped party was represented in a prior proceeding as a
factor in determining whether the party was “fully repre-
sented,” see Thomas, 794 F.2d at 665 n.3, we have not
deemed the presence of counsel mandatory. Where, as
here, Mr. Senyszyn himself asked that counsel be dis-
charged and informed the court that he was prepared to
represent himself at sentencing, we find that the absence
of counsel had no impact on Mr. Senyszyn’s ability to fully
and fairly litigate all aspects of his criminal action.
5.
Mr. Senyszyn advances other arguments about collat-
eral estoppel that are not well taken. He argues that the
plea agreement has no collateral estoppel effect because it
is limited to the U.S. Attorney’s Office for the District of
New Jersey and “cannot bind other federal, state, or local
authorities.” The AJ, however, did not blindly accept the
plea agreement as binding. He applied each of the collat-
eral estoppel requirements and found that the facts to
which Mr. Senyszyn admitted did not have to be reliti-
gated here. The provision of the plea agreement on which
Mr. Senyszyn relies does not bar the application of collat-
11 SENYSZYN v. TREASURY
eral estoppel; it merely preserves the right of other au-
thorities to pursue action against Mr. Senyszyn. In fact,
the next paragraph of the plea agreement provides that
“[t]his agreement does not prohibit the United States, any
agency thereof (including the Internal Revenue Service),
or any third party from initiating or prosecuting any civil
proceeding against [Mr. Senyszyn].”
Mr. Senyszyn also argues that the AJ erred by apply-
ing the Federal Circuit’s collateral estoppel precedent
rather than that of the Third Circuit. He cites our hold-
ing, in Vardon Golf Co. v. Karsten Manufacturing Corp.,
that, “[b]ecause the application of collateral estoppel is
not a matter within the exclusive jurisdiction of this
court, this court applies the law of the circuit in which the
district court sits.” 294 F.3d 1330, 1333 (Fed. Cir. 2002)
(citation omitted). The rule that Mr. Senyszyn cites is
applicable in cases in which a district court’s jurisdiction
was based on a patent infringement claim, not in em-
ployment cases appealed from the Board. We have long
applied our own collateral estoppel precedent in Board
appeals. See, e.g., Kroeger, 865 F.2d at 239.
The AJ, in sum, properly applied collateral estoppel.
C.
Mr. Senyszyn also argues that the I.R.S. admitted
that it did not prove the charged misconduct. He seizes
on a statement made by the agency’s deciding official,
Lavena Williams, when Mr. Senyszyn cross-examined
her:
[Mr. Senyszyn:] You stated that you read the
press release, and you read the plea agreement,
and the other items. Do you have any proof that I
– absent the plea, do you have any proof that I
SENYSZYN v. TREASURY 12
committed any of these conduct [sic] independ-
ently of the plea?
[Ms. Williams:] No.
Pet’r’s App. 46-47. Ms. Williams’s purported admission is
irrelevant. Because the ALJ properly applied collateral
estoppel, the agency did not have to offer duplicative proof
of Mr. Senyszyn’s misconduct.
D.
Mr. Senyszyn also argues that, when the AJ found a
nexus between the misconduct and his job duties, the AJ
limited that nexus finding to the 2003 tax evasion charge.
This purported limitation, Mr. Senyszyn argues, is impor-
tant because he is currently challenging his 2003 tax
assessment in the U.S. Tax Court. Mr. Senyszyn theo-
rizes that, if the Tax Court agrees with him that he owes
no tax for 2003, he will be able to vacate his conviction for
the 2003 tax evasion.
We find nothing in the AJ’s or the Board’s opinions
indicating that the nexus finding was limited to tax
evasion. In any event, we must proceed on the current
reality that Mr. Senyszyn stands convicted of that of-
fense—a reality solidified after the Third Circuit affirmed
the district court’s denial of Mr. Senyszyn’s motion to
withdraw his guilty plea and the district court denied his
Section 2255 motion. This is an employment termination
case on appeal from the Board, not from the court of
conviction. We must respect the Third Circuit’s and
district court’s disposition of Mr. Senyszyn’s criminal
matters.
E.
Mr. Senyszyn also claims that the AJ and the Board
improperly relied upon sentencing stipulations in the plea
13 SENYSZYN v. TREASURY
agreement. Although Mr. Senyszyn’s argument on this
point is not entirely clear, he appears to believe that those
stipulations are not binding here because they were
proffered only to aid the district court in determining his
sentence and did not form the factual basis for his guilty
plea. Mr. Senyszyn appears particularly concerned about
the sentencing stipulations pertaining to the tax evasion
charge, which he believes should be vacated.
We have reviewed the AJ’s and the Board’s respective
opinions, and the agency’s proposed and final notices of
termination. We discern no instance in which an official
relied on the sentencing stipulations in proposing or
sustaining Mr. Senyszyn’s removal. It is clear that the
agency, the AJ, and the Board believed the very fact of
Mr. Senyszyn’s guilty plea and conviction was sufficient to
support removal. Reliance on the sentencing stipulations
was unnecessary.
IV.
We have considered the remainder of Mr. Senyszyn’s
arguments and find them unpersuasive. We have also
considered his motions for judicial notice and deny them
because they are unnecessary for the resolution of this
appeal. The Board’s decision is affirmed.
AFFIRMED