Legel v. US Department of the Treasury, et al.

Filing 12

ORDER denying 6 MOTION for temporary and immediate injunctive relief to set aside final agency decision and to affirm initial decision and order of ALJ. Signed by Judge James I. Cohn on 5/16/2011. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-60914-CIV-COHN/SELTZER
LAWRENCE LEGEL, CPA,
Appellant,
v.
UNITED STATES DEPARTMENT OF THE
TREASURY INTERNAL REVENUE SERVICE
OFFICE OF PROFESSIONAL RESPONSIBILITY,
KAREN L. KAKINS, DIRECTOR,
Appellee.
_________________________________________/
ORDER DENYING MOTION FOR TEMPORARY AND IMMEDIATE INJUNCTIVE
RELIEF TO SET ASIDE FINAL AGENCY DECISION AND TO AFFIRM INITIAL
DECISION AND ORDER OF ALJ
THIS CAUSE is before the Court on Appellant Lawrence Legel, CPA’s Motion for
Temporary and Immediate Injunctive Relief and to Set Aside Final Agency Decision and
to Affirm Initial Decision and Order of Administrative Law Judge (“ALJ”) [DE 6]
(“Motion”).1 The Court has considered the Motion, Mr. Legel’s Initial Brief for his Appeal
to the US District Court of Appellate Authority’s Final Agency Decision Re: OPR
Complaint No. 2009-16 [DE 7] (“Brief”), the record in this case, and is otherwise advised
in the premises.

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Mr. Legel originally filed his Motion ex parte, but the Court, finding no reason
for the Motion to be without notice, converted the ex parte Motion to a pending Motion
for Temporary Restraining Order With Notice and directed expedited briefing on the
Motion. DE 8.

I. BACKGROUND
Mr. Legel is a solo CPA practitioner who specializes in taxation. Complaint [DE
1] ¶ 4. On August 4, 2008, he pled guilty to a misdemeanor charge of aiding and
abetting in the failure to pay income tax, in violation of 26 U.S.C. § 7203. Id. ¶ 5; Initial
Decision [DE 1-4] at 4. As a result of Mr. Legel’s conviction, the Internal Revenue
Service (“IRS”) Office of Professional Responsibility (“OPR”) automatically and
indefinitely suspended him from practicing before the IRS. Compl. ¶ 5. Mr. Legel
appealed the suspension to OPR, and on April 15, 2010, Chief ALJ Susan L. Biro
issued an Initial Decision and Order [DE 1-4] (“Initial Decision”) lifting the suspension,
effective September 29, 2010. Compl. ¶¶ 6-7. On May 13, 2010, OPR appealed the
Initial Decision to the Appellate Authority, where the case was assigned to the 1st
Appellate Authority (“AA”), Ronald D. Pinsky. Id. ¶ 8. Mr. Legel states that though the
1st AA had not issued a decision by September 29, 2010, OPR did not lift his
suspension. Id. ¶ 9. Then, on March 3, 2011, OPR reassigned the case to the 2nd AA,
Bernard H. Weberman. Id. ¶ 10. On March 31, 2011, the 2nd AA issued a Final
Agency Decision [DE 1-3], reversing the Initial Decision and extending Mr. Legel’s
suspension until January 13, 2012. Id. ¶ 10.
On April 28, 2011, Mr. Legel filed the instant appeal for judicial review pursuant
to the Administrative Procedures Act, 5 U.S.C. § 702. The same day, he filed his
Motion for “Temporary and Immediate Injunctive Relief; Set Aside the Final Agency
Decision of the 2nd AA; and Affirm the Initial Decision and Order of Chief Administrative
Law Judge Susan L. Biro, and find that the suspension imposed by OPR on Lawrence
Legel, CPA was automatically lifted September 29, 2010.” Mot. at 3.
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II. DISCUSSION
A party seeking a temporary restraining order must establish: “(1) a substantial
likelihood of success on the merits; (2) that irreparable injury will be suffered if relief is
not granted; (3) that the threatened injury outweighs any harm relief would inflict on the
non-movant; and (4) that entry of relief would serve the public interest.” Schiavo ex rel.
Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). The same factors are
considered whether deciding a temporary restraining order or a preliminary injunction.
Schiavo, 403 F.3d at 1225. The movant bears the burden of persuasion on all of these
factors. Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).
Furthermore, “even if [the movant] establish[es] a likelihood of success on the merits,
the absence of a substantial likelihood of irreparable injury would, standing alone, make
preliminary injunctive relief improper.” Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir.
2000).
Mr. Legel has not shown that he will suffer irreparable injury absent a temporary
restraining order. See Schiavo, 403 F.3d at 1225-26. Though he requests a temporary
restraining order “to give [him] back his life and his right to again practice his
profession,” Br. at 25, Mr. Legel has not demonstrated that his suspension deprives him
of his “right to practice his profession.” Rather, as the Government notes, the
suspension only prevents Mr. Legel from practicing before the IRS. Resp. at 3. It does
not affect his ability to engage in any other accounting work. Id. Further, it does not
appear that Mr. Legel has suffered irreparable harm in over two years since the
suspension was put in place in January 2009. Recently, in his April 28, 2011 Primary
Affidavit of Lawrence Legel [DE 4-1 at 1-8] (“Legel Affidavit”), Mr. Legel reported, “I
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have 300 clients.” Legel Aff. ¶ 7. Such success does not demonstrate that Mr. Legel
has suffered irreparable harm with respect to his ability to practice his profession.
Therefore, the Court is not convinced that Mr. Legel will suffer irreparable injury absent
a temporary restraining order.
This finding alone requires that the Motion be denied, see Siegel v. Lepore, 234
F.3d at 1176, but the Court also notes that Mr. Legel’s Motion and supporting materials
do not show that the threatened injury outweighs any harm that his requested relief
would inflict on the Government, nor do they show that the temporary restraining order
would serve the public interest, see Schiavo, 403 F.3d at 1225-26. In contrast, the
Response notes that both the Government and the public would suffer harm if Mr.
Legel’s suspension is lifted prematurely in light of the strong interest that the
Government and the public have in ensuring that a tax practitioner who admittedly
commits a tax-related crime receives adequate punishment before again representing
members of the public before the IRS. Resp. at 4.
Based on the foregoing, the Court finds that Mr. Legel has not met his burden to
prove the elements required for a temporary restraining order. Therefore, the Court will
deny the Motion.2

2

Additionally, the Court notes that there is still no indication on the record that
Mr. Legel has completed service on the United States. Under Federal Rule of Civil
Procedure 4(i), service on the United States, its officers and its agencies must be
accomplished through service on both the United States Attorney and the Attorney
General of the United States. Fed. R. Civ. P. 4(i). Failure to effect timely and proper
service may result in the dismissal of the action with prejudice. See Fed. R. Civ. P.
4(m).
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III. CONCLUSION
Accordingly, it is hereby
ORDERED AND ADJUDGED that Appellant Lawrence Legel, CPA’s Motion for
Temporary and Immediate Injunctive Relief and to Set Aside Final Agency Decision and
to Affirm Initial Decision and Order of Administrative Law Judge [DE 6] is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 16th day of May, 2011.

Copies furnished to:
Counsel of record via CM/ECF
Lawrence Legel, pro se
1425 NE 57th Place
Fort Lauderdale, FL 33334

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