Tawadrous v. Department of the Treasury ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
SAM B. TAWADROUS,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
2012-3028
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0752110106-I-1.
__________________________
Decided: April 10, 2012
__________________________
SAM B. TAWADROUS, of Plano, Texas, pro se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director.
__________________________
TAWADROUS v. TREASURY 2
Before MOORE, CLEVENGER, and REYNA, Circuit Judges.
CLEVENGER, Circuit Judge.
Sam B. Tawadrous was a Tax Specialist in the Inter-
nal Revenue Service’s (“IRS’s”) Bank Secrecy Act division.
In November 2010, the Department of the Treasury
(“Treasury”) removed Mr. Tawadrous from his position on
three charges: first, that he had inaccurately stated his
birth year on numerous official documents; second, that
during an official investigation he misrepresented under
oath the fact that he had been indicted and arrested for
insurance fraud in Collin County, Texas; and third, that
his entry of a guilty plea to misdemeanor insurance fraud
demonstrated that he had engaged in conduct unbecom-
ing an IRS employee. Because of these alleged untruths
and misconduct, Treasury determined that its trust and
confidence in Mr. Tawadrous had been adversely affected.
Mr. Tawadrous appealed his removal to the Merit
Systems Protection Board (“Board”). The Administrative
Law Judge affirmed Mr. Tawadrous’s removal. Init.
Decision, Tawadrous v. Dep’t of the Treasury, No. DA-
0752-11-0106-I-1, 2011 MSPB LEXIS 1569 (M.S.P.B. Mar.
11, 2011) [hereinafter AJ Op.]. Mr. Tawadrous petitioned
for Board review, which was denied. Tawadrous v. Dep’t
of the Treasury, No. DA-0752-11-0106-I-1, slip op.
(M.S.P.B. Oct. 28, 2011) [hereinafter Bd. Op.]. Mr.
Tawadrous timely appealed. This court has jurisdiction
over appeals from final decisions of the Board. 28 U.S.C.
§ 1295(a)(4).
I
Mr. Tawadrous offers five arguments for why the
Board’s decision should be reversed. First, he contends
that the Board committed reversible error in failing to
take into account the larger context of his situation which,
3 TAWADROUS v. TREASURY
he says, demonstrates that removal was unwarranted.
Second, he argues that he was not actually an employee of
the IRS at the time of the insurance fraud conviction.
Third, Mr. Tawadrous argues that the Board did not
recognize that these same charges were previously lev-
eled, then withdrawn, by Treasury against Mr.
Tawadrous, which Mr. Tawadrous suggests amounts to
double jeopardy. Fourth, Mr. Tawadrous urges that his
removal was not for the cited reasons, but was in fact
retaliation. Fifth, he contends that the Treasury wit-
nesses at his removal hearing gave untruthful testimony.
We address these in order. Our task is to determine
whether the Board’s decision was arbitrary, capricious, an
abuse of discretion, not in accordance with the law, or
unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Sandel v. Office of Pers. Mgmt., 28 F.3d 1184, 1186 (Fed.
Cir. 1994). If not, we must affirm the final ruling of the
Board.
A
On appeal, Mr. Tawadrous attempts to give context to
the removal charges and demonstrate that they were
trumped up. Mr. Tawadrous contends that he is the
victim of an unfair campaign to have him removed with-
out justification. He explains the birth date misstate-
ments by saying that when he first immigrated from
Egypt, accurate birth records were unavailable. His age
was therefore estimated for him at an early job, and he
continued using the estimated birth date for various
employment documents even after the correct birth date
was subsequently determined.
As for the insurance fraud arrest and plea, Mr.
Tawadrous contends that they arose from a series of
disputes he had over work done to repair his home’s roof.
He contends that he never committed any wrongdoing,
TAWADROUS v. TREASURY 4
but was victimized by an unethical insurance adjuster.
While he acknowledges his guilty plea to misdemeanor
insurance fraud, he contends that this was to save on
legal fees, and not intended as an admission of culpabil-
ity. Finally, he says he never intended to conceal this
run-in with the criminal justice system from Treasury.
He says he did not understand that the Collin County
grand jury’s finding of cause for the insurance fraud
charge against him meant that he had been “indicted.”
Similarly, he says he did not understand that when he
voluntarily entered police custody, went through the
booking procedure, and paid a bond in order to leave, he
had been “arrested” within the legal meaning of that
term.
Though the story Mr. Tawadrous lays out helps ex-
plain how he reached his present situation, it does not
present a cognizable basis for reversal. For each of the
removal charges, Mr. Tawadrous is essentially arguing
that he had no wrongful intent. As the AJ recognized,
however, the removal charges do not require wrongful
intent. AJ Op. at *10 (“The agency has not charged [Mr.
Tawadrous] with falsification, only inaccuracy, therefore I
find that a showing of intent to defraud or deceive is not
required.”). Mr. Tawadrous does not dispute that he
repeatedly gave an inaccurate birth year on official forms.
Neither does he dispute that he has been both “arrested”
and “indicted.” The justifications Mr. Tawadrous offers do
not undo his misconduct.
We see no error in the AJ’s treatment of Mr.
Tawadrous’s argument that his failure to acknowledge
the arrest and indictment was a mere mistake. The AJ
noted that Mr. Tawadrous has been in the United States
for forty years, for many of which he occupied a position of
trust with the federal government. The AJ found it
“implausible that [Mr. Tawadrous] would forget to men-
5 TAWADROUS v. TREASURY
tion this series of events [the indictment and arrest] to an
investigator asking if he had ever been indicted or ar-
rested.” Id. at *15. We see no flaw in that reasoning, or
in the AJ’s conclusion that preponderant evidence sup-
ported both of the inaccuracy charges.
We similarly affirm the AJ’s finding of preponderant
evidence supporting removal for conduct unbecoming an
IRS employee. As the AJ noted, this case turns not on the
fraud charge’s underlying merit (which Mr. Tawadrous
disputes) but on the fact that Mr. Tawadrous’s conviction
is now a matter of record. Mr. Tawadrous’s superiors
were entitled to conclude that his conviction undermined
both their own trust in him as well as, potentially, that of
the public in the IRS. The AJ held, and we agree, that in
such circumstances preponderant evidence supported Mr.
Tawadrous’s removal.
B
Mr. Tawadrous’s next argument stems from a 2008
attempt by Treasury to remove him on charges different
from this case. In January of 2008, Treasury removed
Mr. Tawadrous for alleged deficiencies in his 2001 and
2002 federal income tax returns. In June of 2009, an
administrative judge of the MSPB reversed the removal,
and Treasury returned Mr. Tawadrous to his position. AJ
Op. at *27 (discussing this previous attempted removal);
see also Tawadrous v. Dep’t of the Treasury, 110 M.S.P.R.
475 (2009) (discussing the tax charges against Mr.
Tawadrous).
Mr. Tawadrous points out that his guilty plea and
conviction on the fraud charge came in May of 2009, while
he was still removed from his position and the matter was
before the Board. He suggests that, because he was
removed at the time, his conviction cannot be considered
“conduct unbecoming” an IRS agent. The AJ addressed
TAWADROUS v. TREASURY 6
this argument, citing previous opinions of the MSPB that
“off-duty” misconduct could still support removal. We see
no error in the AJ’s analysis. Brown v. Dep’t of the Navy,
229 F.3d 1356, 1361 (Fed. Cir. 2000) (“[O]ff-duty conduct
that is inconsistent with the agency’s mission and that
undermines confidence in the employee can be sufficient
to justify the employee’s removal.”).
C
Mr. Tawadrous’s third argument concerns a June
2010 action by Treasury to remove him on the same
charges that are at issue here. Mr. Tawadrous appealed
that removal to the MSPB. About a month later, Treas-
ury rescinded the removal and reinstated Mr. Tawadrous
with back pay. The MSPB action was later declared moot.
See Bd. Op. 5; AJ Op. at *27–29; see also Init. Decision,
Tawadrous v. Dep’t of the Treasury, No. DA-0752-10-0493-
I-1, 2010 MSPB LEXIS 7527, at *3–4 (M.S.P.B. Dec. 21,
2010) (describing previous removal and reinstatement),
pet’n for review denied, 2011 MSPB LEXIS 4847 (M.S.P.B.
Aug. 8, 2011). Months passed. In November 17, 2010,
Treasury removed Mr. Tawadrous again, on the same
charges as in the removal of the previous June. It was
the November 2010 action that resulted in the present
appeal.
Mr. Tawadrous contends that it is unlawful for him to
face two removal actions on the same charges. Like the
Board, we disagree. This case does not invoke any unlaw-
ful “double jeopardy.” Stevenson v. United States, 155 Ct.
Cl. 592, 597 (1961) (“‘Double jeopardy’ applies to criminal
charges and these were in no sense charges of a criminal
nature. In any event, it is not unusual in cases where a
procedural error is committed, for the agency to begin
again and take final valid action.”). In Stevenson, as here,
the employee was removed from her position on a specific
7 TAWADROUS v. TREASURY
charge. The removal was subsequently undone; in Ste-
venson, it was by order of the Civil Service Commission
based on a procedural defect, while here it was by Treas-
ury’s voluntary action. Id. at 594. We therefore hold
that, as in Stevenson, there was no Fifth Amendment
double jeopardy problem in this case.
Though acknowledging that federal employment cases
do not present a double jeopardy issue per se, the Board
has for a number of years held that, “[w]here an agency
has imposed disciplinary or adverse action because of an
employee’s misconduct, it is barred from subsequently
taking another adverse action for the same reason.”
Adamek v. U.S. Postal Serv., 13 M.S.P.R. 224, 226 (1982).
The roots of this doctrine predate the creation of this
court. See McGhee v. Johnson, 420 F.2d 445, 448 (10th
Cir. 1969) (finding no res judicata problem for federal
employee whose previous attempted removal was re-
versed on procedural grounds); Jenkins v. Macy, 357 F.2d
62, 66–67 (8th Cir. 1966) (finding no “double jeopardy”
problem for a federal employee whose previous attempted
removal was reversed on procedural grounds). But
Adamek’s rule, by its own terms, does not apply to a case
where the employee suffered no adverse consequence from
the previous action. Cf. Jenkins, 357 F.2d at 67 (noting
that employee was “fully reimbursed for his time lost” in
the previous removal attempt).
It is undisputed that the June 2010 removal was re-
scinded before reaching judgment on the merits, and
Treasury reinstated Mr. Tawadrous with back pay. With
no final adjudication of the June 2010 removal, and no
material harm resulting from it, it presents no obstacle to
Treasury’s November 2010 effort to remove Mr.
Tawadrous on the same charges. We therefore see no
error in the Board’s ruling.
TAWADROUS v. TREASURY 8
D
Fourth, Mr. Tawadrous contends that his removal
was retaliation, stemming either from his return to work
after the 2008 attempted removal on tax charges, or from
a 2007 EEO complaint he filed alleging sexual harass-
ment. The burden of proving this charge is his, however.
The AJ concluded that Mr. Tawadrous failed to carry that
burden and, on review of both the record before the Board
and Mr. Tawadrous’s filings here, we see no error in that
conclusion. See AJ Op. at *32–33.
E
Fifth and finally, Mr. Tawadrous contends that the
IRS investigators attached to his case gave untruthful
testimony to the Board. Once again, he has failed to
present reliable evidence in support of that allegation,
and we see no error in the Board’s findings based on that
testimony.
III
For the reasons discussed above, the decision of the
Board stands affirmed.
AFFIRMED
COSTS
No costs.