639 F.3d 1362
Fed. Cir.2011Background
- Tudor, an IRS Criminal Investigation Supervisory Special Agent in Dallas, directed agents investigating rapid bulk currency and money laundering activity.
- He was supervised by ASAC Lacenski, with Taylor as ASAC for most of the period and Imhoff as Dallas Director of Field Operations; later Lacenski and Imhoff were replaced by Martinez and Lahey.
- In late 2005 Lahey ordered a management inquiry into alleged CIMIS data manipulation by Tudor; a follow-up TIGTA/IG investigation substantiated seven misconduct allegations.
- In June 2007 SAC Martinez proposed demotion of Tudor to Investigative Analyst based on three charges, including a first charge with 64 specifications about improper initiation/referral of cases and 28 specifications of improper referrals to U.S. Attorneys for prosecution.
- An administrative judge sustained the 28 referrals and the second charge (unauthorized disclosure), while discrediting the remaining specifications and deeming the third charge unsubstantiated; the full Board could not agree, so the judge’s decision stood as the Board’s decision.
- Tudor appealed; the Federal Circuit vacated and remanded, finding a misapprehension of SAC Lacenski’s testimony and ordering reconsideration on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is adequate evidentiary support for the 28 referral specifications. | Tudor had verbal authorization to refer cases for prosecution from superiors. | Policy prohibited referrals; evidence supports lack of authority and impropriety. | First charge set aside; lack of substantial evidence for the 28 referrals; remand for penalty on the second charge. |
| Whether Tudor had verbal authority to refer investigations for prosecution and whether credibility determinations were proper. | Tudor testified he had assumed, implied authority and discussed referrals with SAC/Lacenski. | Administrative judge credibly found no such authority; Lacenski never authorized referrals. | Findings based on credibility were not supported by substantial evidence; on remand, reconsider the first charge with proper view of testimony. |
| Whether the penalty determination should be remanded or whether the first charge governs the disposition. | Even if some authority questionable, the penalty could be sustained based on first charge. | If first charge invalid, only second charge remains; remand to determine appropriate penalty. | Remanded to address penalty for the sustained second charge; the first charge should not drive punishment. |
Key Cases Cited
- Bieber v. Dep't of the Army, 287 F.3d 1358 (Fed.Cir.2002) (credibility determinations resolved in conflicts; deference does not override absence of substantial evidence)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial evidence review requires considering all record factors)
- Leatherbury v. Dep't of the Army, 524 F.3d 1293 (Fed.Cir.2008) (substantiality of evidence; weigh record against weight of testimony)
- Vidal v. U.S. Postal Serv., 143 F.3d 1475 (Fed.Cir.1998) (remand for Board reconsideration where initial findings misapprehend evidence)
- Holmes v. Dep't of Veterans Affairs, 58 F.3d 628 (Fed.Cir.1995) (remand and reconsideration in light of conflicting evidence)