Protecting Workers’ Rights

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Demotion Reversed for Lack of Evidence

The U.S. Court of Appeals for the Federal Circuit reversed a decision of the Merit Systems Protection Board, which had sustained the demotion of Roger Tudor by the Internal Revenue Service from supervisory special agent to investigative analyst. Roger Tudor v. Dep’t of the Treasury, Case No. 2009-3237 (Fed. Cir. May. 9, 2011). The agency had demoted Tudor based on allegations of: (1) failure to obtain appropriate approval authority for certain actions; (2) unauthorized disclosure of taxpayer information; and (3) repeated entry of false information into a government database. The first charge consisted of 64 specifications: 35 specifications of improper initiation of investigations without authority; 28 specifications of improper referral of IRS investigations to U.S. Attorneys’ offices for prosecution; and one specification of improper initiation of a subject seizure investigation.

Tudor appealed his demotion to the MSPB, and the administrative judge sustained the agency’s action based on the 28 referral specifications of the first charge and the second charge of unauthorized disclosure of taxpayer information. The administrative judge did not make conclusive determinations regarding the remaining 36 specifications of the first charge, and he explicitly found that the third charge of entry of false information was unsubstantiated. Based on management’s testimony that it would have sustained the demotion based on the first charge alone, the administrative judge found the penalty of demotion appropriate. The sole issue on appeal to the Federal Circuit was whether there was adequate evidentiary support for the administrative judge’s findings related to the 28 specifications of the first charge dealing with improper referrals of investigations to U.S. Attorneys’ offices for prosecution.

The Federal Circuit set aside the first charge of failure to obtain appropriate approval authority based on its determination that the administrative judge did not support his finding with substantial evidence. The Federal Circuit found that none of the witnesses contradicted Tudor’s testimony that he had been given oral authority to refer investigations to U.S. Attorneys’ offices for prosecution. In fact, the agency’s deciding official testified that the second charge of unauthorized disclosure of taxpayer information would “probably not” merit the same penalty of demotion were it to stand alone. Therefore, because the administrative judge misconstrued an important component of the evidence in the case, the Federal Circuit vacated the Board’s decision and remanded the case for a determination of the appropriate penalty for Tudor.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to

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