                    NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                    2008-3138

                               WILLIE R. WESLEY,

                                                         Petitioner,

                                         v.

                       DEPARTMENT OF THE TREASURY,

                                                         Respondent.

      Willie R. Wesley, of Memphis, Tennessee, pro se.

      Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Deborah A. Bynum, Assistant Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2008-3138


                                  WILLIE R. WESLEY,

                                                                Petitioner,

                                            v.

                         DEPARTMENT OF THE TREASURY,

                                                                Respondent.

    Petition for review of the Merit Systems Protection Board in AT0752070416-I-1.


                           __________________________

                           DECIDED: June 5, 2008
                           __________________________


Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge and DYK, Circuit Judge.

PER CURIAM.

       Willie Wesley appeals the decision of the Merit Systems Protection Board, which

upheld his removal from federal service for failing to properly file his income tax returns

and to timely pay his income tax liability for several years. Wesley v. Dept. of the

Treasury, No. AT-0752-07-0416-I-1 (M.S.P.B. June 14, 2007). We affirm.

       Wesley was an information technology specialist with the Internal Revenue

Service (IRS) in Memphis, Tennessee. When it was discovered that he had failed to

properly file income tax returns in 2001, 2002, 2003, and 2004 as well as failing to
timely pay his tax liability in 2001, 2002, and 2003, the IRS removed him from

employment, claiming that his conduct violated “Section 1203(b)(9) of the Restructuring

and Reform Act of 1998” (RRA) and/or “other laws rules or regulations including Section

2635.809 of the Office of Government Ethics (OGE) Standards of Conduct.” The board

affirmed, finding that the agency proved by a preponderance of the evidence that

Wesley had violated section 1203(b)(9) of the RRA, and therefore removal was

mandatory.

      The scope of our review in an appeal from a decision of the board is limited.

Generally, we must affirm the decision unless we find it to be “(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). The record contains substantial evidence

to support the board’s finding. It reached its decision based on the testimony of the tax

specialist that conducted Wesley’s tax audits for the tax years at issue in this case. It

found that in each year, Wesley and his wife claimed business losses of over $30,000,

and received extremely large tax refunds that a reasonable person would have

investigated. Further, the board found that he consented to the accuracy of the audits

and agreed they were liable for increased taxes plus penalties and interest. The board

therefore found that Wesley’s violation of the IRS code was willful.

      The board found that section 1203(b)(9) involves “willful understatement of

Federal tax liability, unless such understatement is due to reasonable cause and not to

willful neglect.” It also found that Wesley was aware of section 1203 and its importance.




2008-3138                                   2
Applying the facts to this legal standard, which Wesley does not challenge, the board

reasonably determined that Wesley had violated section 1203(b)(9).




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