Willie R. Wesley v. Department of the Treasury

NOTE: This disposition is nonprecedential.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

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NOTE: This disposition is nonprecedential.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

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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

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2008-3138 3
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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