NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-3242 BOHDAN SENYSZYN, Petitioner,

v.

DEPARTMENT OF THE TREASURY, Respondent.

__________________________ DECIDED: October 11, 2006

__________________________ Before MICHEL, Chief Judge , LOURIE and SCHALL, Circuit Judges

. PER CURIAM. DECISION Bohdan Senyszyn petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Department of the Treasury, Internal Revenue Service (“agency” or “IRS”), indefinitely suspending him from his position. Senyszyn v. Dep’t of the Treasury , No. PH0752050403-I-1 (M.S.P.B. Mar. 31, 2006) (“ Final Decision ”). We affirm

.DISCUSSI ON
I. Mr. Senyszyn is employed by the agency as a GS-13, Step 10, Internal Revenue Agent in Patterson, New Jersey. On F ebruary 15, 2005, he was arrested and charged with violating 26 U.S. C. § 7214( a)(5). Sect ion 7214( a)(5) makes it a crime for “[a]ny officer or employee of the Un ited States acting in connection with any revenue law of the United States” to “knowingly make . . . opportunity for any person to defraud the United States.” Mr. S enyszyn was charged based upon the criminal complaint of Mark Scrivanic h , a Special Agent of the Treasury Inspector General for Tax Administration. In his com p laint, Agent Scrivanich alleged t hat Mr. Senyszyn willf u lly diverted proceeds from the sale of real esta te as part of a scheme to avoid the payment of taxes. On February 15, 2005, Joseph Cesaro of the IRS proposed that Mr. Senyszyn be indefinitely suspended pending further investigat ion or resolution of the charges against him. According to Mr. Cesaro, the agency had reasonable caus e to believ e that Mr. Senyszyn had committed a crime for wh ich a sentence of imprisonment could be imposed. Mr. Cesaro noted, inte r alia , that the crime with which Mr. Senyszyn had been charged carried a maximum sentence of five years imprisonment; and that the alleged criminal conduct at is sue bore a “direct co nnection” t o Mr. Senyszyn’s duties, which included “recogniz i ng the indicators of fraudulent activity and developing appropriate referrals.” By letter dated April 7, 2005, Lawrence Barnes, the agency’s deciding official, sustained the proposed indefinit e suspens ion. Mr. Senyszyn’s suspens ion began on April 9, 2005.

2Mr. Senyszyn timely appealed his suspens i on to the Board. After Mr. Senyszyn withdrew his request for a hear ing, the administrative judge (“AJ”) to whom t he appeal

was ass i gned iss ued an initia l decision in whic h he sust ained the agency’s action. Senyszyn v. Dep’t of the Treasury , No. PH-0752-05-0403-I-1 (M.S.P.B. Sept. 1, 2005) (“ Initial Decision ”). Th e Initia l D e cision became the final dec ision of the Board on Mar c h 31, 2006 when the Bo ard denied Mr. Senyszyn’s petition fo r review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). 1 Final Decision . This appea l followed. We have jurisdiction pu rsuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the Board is limited. Specifically , we must affirm the Board’s deci sion unless we find it to be arbitrary, capricious, an abuse of discreti on, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule , or regulation havin g been followed; or unsupported by substantial evid ence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998).
In Dunnington v. Dep’t of Justice , 956 F.2d 1151, 1155 (F ed. Cir. 1992), we stated that an agency may indefinitely su spend an employee “only when there has been an allegation of a serious crime, and only when the misconduct alleged bears a sufficient relations hip to the employee’s du ties in the agency to warrant the action as promoting the efficienc y of the service.” Further, an agency may suspend an employee pending the outcome of criminal proceeding s; however, it must terminate the

1 As of Mar c h 31, 2006, the cr imi nal inv e stigation was still ongoing. Howev e r, on Apr i l 13, 2006, a grand jury in dicted Mr. Senyszyn on s e ven counts of various tax-related felonies. Unit ed States v

. Senyszyn , No. 2:06-Cr-00311 ( D .N.J. April 13, 2006).

3suspension within a reasonable time afte r resolution of the criminal charges. Morrison v. Nat’l Sci. Found. , 423 F.3d 1366, 1369 (Fed. Cir. 2005).
The main t h rust of Mr. Senyszyn’s appeal is that the decision of the Board cannot stand because the agency’s deciding offici al failed to conduct an independent investigation into the charges against him before suspending him because he had not been indicted; and that the Boar d’s decis ion is defective bec ause the AJ failed to address what he refers to as “material issues.” Neither contention has merit. The deciding official cons idered the crimi nal complaint and the accompanying swor n statement detailing the char ges against Mr. Senyszyn. This was all the agency was required to do. Se e Dunnington , 956 F.3d at 1156-57. At the sam e time, the AJ did not fail to address “materi a l issues.” The matte rs to which Mr. Senyszyn points all relate to the merits of the criminal charges against him. Bec ause neither the agenc y nor the Board was required to determine Mr. Senyszyn’s guilt or innocence, id. , th ose matter s were not relevant. Finally, we have considered Mr. Senyszyn’s various claims of harmful procedural error by th e agency and the AJ. Specifical ly, Mr. Senyszyn complains that the agency failed to consider hundreds of pages of evidence and that the AJ failed to follow statutes and regulations, failed to consider that Mr. Senyszyn was pro se , failed to rule on motions, and allowed additional evidenc e after the close of the record. We find these claims to be without merit. The agency’s fi nding that there was a reasonable likelihood that a crime was com m itted has support in t he record. Mr. Senyszyn has not explained how the allegedly unconsidered ev idence undermines the agency ’ s finding of a reasonable likelihood that a crime was committed. All he does is attack the merits of

4the criminal charges against him. Nor di d the AJ fail to f o llow any statutes or regulations . The AJ follow ed, as explained above, both Dunnington and Morrison

. Although Mr. Senyszyn’s pro se status may require “t hat administrative judges should provide more guidanc e to pr o se appellants and interpret t heir arguments in the most favorable light,” O'Keefe v. U.S. Postal Ser v ice , 318 F

. 3d 1310, 1316 (Fed. Cir. 2002) (quoting Miles v. Dep't of Veterans Affairs , 8 4 M.S.P.R. 418, 421 (1999)), Mr. Senyszyn has not explained how the AJ ’s decis ion v i ol ates our deferential standard of review. The AJ ’s explanation that he did not rule on some of Mr. Senyszyn’s motions becaus e they were “overcome by events prior to the [AJ’s] chance to rule on them” is not an abuse of discretion. Senyszyn , No. PH-0752-05-0403-I-1, at 2 (M.S.P.B . July, 25, 2005). Moreover, Mr. Senyszyn does not elabor ate on which motions were ignored nor how this created a harmful, i.e. , reversible, error. Finally, the AJ’s allowing additional evidenc e into the record was within his discretion because he did s o to allow t he agency to rebut arguments Mr. Senyszyn raised for the fi rst time in moti ons after the record was closed. Id. at 3. For the foregoing reasons, the final dec ision of the Board s u staining Mr. Senyszyn’s indefinite s u spension is affirmed.

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