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(an employee will not intentionally make false or misleading
verbal or written statements in matters of official interest).
The notices proposed to suspend both Sims and McWade for 14
calendar days without pay.
McWade retired from the IRS effective October 2, 1993. On
November 2, 1993, Acting Chief Counsel Jordan approved Sanchez’s
proposed disciplinary action. Sims was suspended from duty
without pay for 14 days and was transferred to the San Francisco
Regional Counsel’s Office, where he was assigned nonsupervisory
duties as a Special Litigation Assistant in the General
Litigation area.
IV. Ninth Circuit Remand and Subsequent Proceedings
A. Ninth Circuit Orders in the DuFresne Case
On June 14, 1994, the Court of Appeals for the Ninth Circuit
filed a per curiam opinion, vacating and remanding this Court’s
decisions in the remaining test cases, on the ground that the
misconduct of Sims and McWade required further inquiry. DuFresne
v. Commissioner, 26 F.3d at 107. Citing Arizona v. Fulminante,
499 U.S. 279, 309 (1991), the Court of Appeals observed:
We cannot determine from this record whether the
extent of misconduct rises to the level of a structural
defect voiding the judgment as fundamentally unfair, or
whether, despite the government’s misconduct, the
judgment can be upheld as harmless error. * * *
Accordingly, the Court of Appeals remanded the remaining test
cases to this Court with directions “to conduct an evidentiary
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