An IRS employee did not get far with his argument that since he was eventually indicted under a different subsection of a criminal statute than the one he was originally charged with, then his indefinite suspension by the agency should be set aside.
In Senyszyn v. Department of the Treasury, C.A.F.C. No. 2007-3155 (nonprecedential), 7/16/07, the court found the employee’s "argument to be without merit." (Opinion p. 4) Let’s back up and take a look at the facts as reported in the Federal Circuit’s decision.
Senyszyn was arrested and charged with violating 26 U.S.C. 7214(a)(5). This law prohibits a federal employee from "acting in connection with any revenue law of the United States" to "knowingly make opportunity for any person to defraud the United States." (pp. 1-2) Specifically, at his arrest Senyszyn was charged with diverting "proceeds from the sale of real estate as part of a scheme to avoid the payment of taxes." (p. 2)
In short order, the IRS indefinitely suspended Senyszyn. The decision letter indicated the suspension would end "upon completion of the investigation or resolution of the criminal charges against [him]." (p. 2)
Senyszyn eventually was indicted by a grand jury on 7 counts, 4 of which involved "False Returns By An IRS Agent," under 26 U.S.C. §7214(a)(7). This law makes it a crime for a federal employee "acting in connection with any revenue law of the United States" to "make or sign any fraudulent entry in any book, or make or sign any fraudulent certificate, return, or statement." (cited in Opinion p. 2)
According to the indictment, Senyszyn avoided paying taxes on real estate sales by filing fraudulent tax returns for businesses that he had set up. (pp. 2-3)
At this point, Senyszyn appealed to the MSPB and eventually back to the circuit court, arguing that because he was indicted under a different criminal provision than the one he was originally arrested for, his indefinite suspension should be ended.
The Administrative Judge found that the notice of suspension stated that it would end "upon completion of the investigation or resolution of the criminal charges against [him]," the criminal charges were still pending, the indictment was based on the same underlying criminal statute, and therefore, the "condition subsequent to the termination of Mr. Senyszyn’s suspension had not occurred." His petition for enforcement was denied by the MSPB. (p. 3)
Finding Senyszyn’s arguments "unpersuasive," the appeals court has affirmed the MSPB decision. (p. 5)
Mr. Senyszyn stays suspended indefinitely until his criminal case is over.