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

Filing 15

AMENDED 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 6/8/2011. (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.
_________________________________________/
AMENDED ORDER DENYING MOTION FOR TEMPORARY AND
IMMEDIATE INJUNCTIVE RELIEF TO SET ASIDE FINAL AGENCY
DECISION AND TO AFFIRM INITIAL DECISION AND ORDER OF ALJ1
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”).2 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 Government’s Response [DE 11], Mr.
Legel’s Reply [DE 14], the record in this case, and is otherwise advised in the premises.

1

The Court entered its original Order Denying Motion for Temporary and
Immediate Injunctive Relief to Set Aside Final Agency Decision and to Affirm Initial
Decision and Order of ALJ [DE 12] (“Original Order”) on May 16, 2011. The next day,
Mr. Legel filed a Reply to the Government’s Response. See Reply. The Court amends
its original Order to address Mr. Legel’s Reply.
2

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 and Order [DE 1-4] (“Initial Decision”) 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 lifting the suspension, effective September
29, 2010. Compl. ¶¶ 6-7; see also Initial Decision. 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.

2

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. In his Reply, Mr. Legel states that the
“effect of the suspension on [his] practice has been devastating,” Reply at 2,
emphasizing that during his suspension, he has lost profits and clients, id. at 2-3.

3

However, in his recent April 28, 2011 Primary Affidavit of Lawrence Legel [DE 4-1 at 18] (“Legel Affidavit”), Mr. Legel reported, “I 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. In his Reply, Mr. Legel says that he “has
no other significant area of practice,” Reply at 2, but he has somehow retained 300
clients even during his suspension. 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. In his Reply, Mr. Legel argues that
the IRS has not suffered any harm and will not suffer any harm if the suspension is
lifted prematurely, see Reply at 1-2, 4, but he also concedes “that the IRS and the
public hold a strong interest in a proper enforcement of the internal revenue laws and in
ensuring that taxpayers receive competent representation in proceedings before the
IRS,” id. at 5. Mr. Legel also offers no arguments to show that a temporary restraining
order would serve the public interest.
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
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deny the Motion.3
III. CONCLUSION
For the foregoing reasons, 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 8th day of June, 2011.

Copies furnished to:
Counsel of record via CM/ECF
Lawrence Legel, pro se, via regular mail
1425 NE 57th Place
Fort Lauderdale, FL 33334
3

Additionally, in the Original Order, the Court noted that there was “still no
indication on the record that Mr. Legel ha[d] completed service on the United States.”
Original Order at 4 n.2. On May 17, 2011, Mr. Legel filed a Notice of Service to the
U.S. Attorney General [DE 13] (“Notice”), stating, “On Saturday, May 14, 2011,
Appellee served the notice of appeal and the entire case file to the U.S. Attorney
General by U.S. mail.” Notice at 1.
The Court reminds Mr. Legel once again that 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).
Service must include a summons as well as a copy of the complaint. Fed. R. Civ. P.
4(c). Further, when an action “challenges an order of a non-party agency or officer of
the United States, [the plaintiff must] send a copy of each by registered or certified mail
to the agency or officer.” Fed. R. Civ. P. 4(i)(1)(C). “To serve a United States agency. .
. or a United States officer or employee sued only in an official capacity, a party must
serve the United States and also send a copy of the summons and of the complaint by
registered or certified mail to the agency, corporation, officer, or employee.” Fed. R.
Civ. P. 4(i)(2). Sending these documents by U.S. mail is not proper service unless the
mail is certified or registered. See Fed. R. Civ. P. 4(i). Additionally, “[u]nless service is
waived, proof of service must be made to the court. Except for service by a United
States marshal or deputy marshal, proof must be by the server’s affidavit.” Fed. R. Civ.
P. 4(l). The Court once again emphasizes that failure to effect timely and proper
service may result in the dismissal of this action. See Fed. R. Civ. P. 4(m).
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