                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2008-3339

                                 JEROME L. RISER,

                                                           Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                                           Respondent.


      Jerome L. Riser, of Cross Roads, Texas, pro se.

       Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director.

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                    NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2008-3339



                                   JEROME L. RISER,

                                                                 Petitioner,

                                            v.

                          DEPARTMENT OF THE TREASURY,

                                                                 Respondent.

Petition for review of the Merit Systems Protection Board in DA0752080285-I-1.

                           ___________________________

                           DECIDED: February 6, 2009
                           ___________________________


Before RADER, BRYSON, and MOORE, Circuit Judges.

PER CURIAM.

      Jerome Riser appeals the final decision of the Merit Systems Protection Board

(Board) affirming his removal from the Internal Revenue Service (IRS). See Riser v.

Dep’t of the Treasury, No. DA0752080285-I-1 (M.S.P.B. July 11, 2007). Because the

Board’s ruling sustaining the charges against Mr. Riser and concluding that his removal

was reasonable is supported by substantial evidence, we affirm.

                                    BACKGROUND

      Mr. Riser was a contract representative employed by the IRS Wage and

Investment Division in Dallas, Texas. In 2007, the IRS proposed to remove him based

on charges that he (1) failed to timely pay his personal federal income taxes; (2) lacked
candor; (3) failed to follow proper procedures to request leave; (4) failed to follow an

IRS information technology policy; and (5) failed to follow a management directive. Id.

at 2. Mr. Riser attended an oral reply hearing, where he informed the oral reply officer

that he would represent himself. He also requested to have a union representative join

him, not to represent him, but rather “to sit and direct” him during the reply. Id. at 20-21.

The oral reply officer contacted the union representative, but the union representative

was in another meeting and could not attend. The hearing proceeded without the union

representative. Following the oral reply, the IRS affirmed the proposed removal. Mr.

Riser appealed to the Board.

       In a detailed initial decision, the Board’s chief administrative law judge (CALJ)

sustained all five charges, finding that each was supported by preponderant evidence.

Id. at 25. In the process, the CALJ found that four of the six specifications of the third

charge were not supported by preponderant evidence. Id. at 14. Nonetheless, the AJ

sustained the third charge because she found that the two remaining specifications

were sufficient. Id. Similarly, the CALJ sustained the fourth charge despite finding that

two of the six specifications of the charge were not supported by preponderant

evidence. Id. at 18. The CALJ further found that in light of the relevant mitigating

factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 303 (1981), the cumulative

impact of the five charges was such that the removal was within the tolerable bounds of

reasonableness and promoted the efficiency of the service, Riser, No. DA0752080285-

I-1 at 24-25.

       Mr. Riser did not file a petition for review, so the initial decision became final on

August 15, 2008. Mr. Riser now timely appeals.




2008-3339                                    2
                                      DISCUSSION

       “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.” Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1212 (Fed. Cir.

2003); see 5 U.S.C. § 7703(c). Therefore, we cannot freely review the factual findings

of the Board, but only determine “whether the administrative determination is supported

by substantial evidence in the record as a whole.” Kimm v. Dep’t of the Treasury, 61

F.3d 888, 891 (Fed. Cir. 1995). Additionally, we give special deference to the credibility

determinations made by the finder of fact. See Wright v. U.S. Postal Serv., 183 F.3d

1328, 1334 (Fed. Cir. 1999). We review the reasonableness of the penalty imposed by

the IRS for an abuse of discretion. Dominguez v. Dep’t of the Air Force, 803 F.2d 680,

684 (Fed. Cir. 1986). We do not “disturb a penalty unless it is unauthorized or exceeds

the bounds of reasonableness because it is so harsh and unconscionably

disproportionate to the offense that it amounts to an abuse of discretion.” Id.

       On appeal, Mr. Riser makes three groups of arguments. First, Mr. Riser asserts

that the Board failed to consider his lack of union representation. The Board addressed

this issue and concluded that although Mr. Riser had a right to representation, see 5

U.S.C. § 7513(b)(3) (“An employee against whom an action is proposed is entitled

to . . . be represented by an attorney or other representative.”), he did not ask for

representation, and he did not have a right to the presence of a union representative not

actually representing him, Riser, No. DA0752080285-I-1 at 21.          Further, the CALJ

concluded that there was no harmful error. Indeed, Mr. Riser stated at the end of the




2008-3339                                   3
hearing that “[i]t would have been better” had a union representative been present,

“[b]ut irrespective of that, I think it was a fair presentation.” Id. Mr. Riser did not argue

before the Board, and does not argue now, that he desired representation. We cannot

conclude that the IRS violated § 7513(b)(3) during the oral reply.

       Second, Mr. Riser asserts, without explanation, that the Board failed to allow or

consider    certain    subpoenas,   interrogatories,   witnesses,    police   reports,   and

administrative issues. Of these various alleged omissions, the record reflects only Mr.

Riser’s motion for subpoenas of 54 individuals whom he believed had some direct or

indirect connection with this matter. The CALJ denied the motion because Mr. Riser’s

motion did not explain how these individuals were relevant. Mr. Riser does not explain

on appeal why the subpoenas were necessary, or what harm came about from the

CALJ’s denial of the motion. Therefore, we cannot conclude that the denial was an

abuse of discretion.

       Finally, Mr. Riser argues that the Board failed to consider all the evidence and

ultimately reached the incorrect conclusion.      The Board considered a great deal of

testimony and other evidence, and carefully reached conclusions on each specification

of each charge—indeed discarding specifications that were not supported by

preponderant evidence. Mr. Riser does not indicate what particular evidence was not

considered. We therefore conclude that the Board’s affirmance of the five charges was

supported by substantial evidence. As to the severity of the penalty, the Board held that

the Douglas factors weigh against the penalty of removal for any one of the five

charges. Nonetheless, the Board specifically found that the cumulative impact of the

five charges made removal reasonable.         Mr. Riser argues that the Board failed to




2008-3339                                    4
consider all the mitigating factors, but does not state what factors were not considered,

nor can we discern any factors that were not considered. We therefore agree with the

Board that the penalty was not unreasonable for the proven conduct. Accordingly, the

decision of the Board is affirmed.

                                        COSTS

       No costs.




2008-3339                                  5
