Vestal v. Treasury ( 2021 )

Case: 20-1771 Document: 42 Page: 1 Filed: 06/14/2021
United States Court of Appeals
for the Federal Circuit
______________________
SARAH VESTAL,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2020-1771
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-19-0497-I-1.
______________________
Decided: June 14, 2021
______________________
JILLIAN T. WEISS, Law Office of Jillian T. Weiss, P.C.,
Brooklyn, NY, argued for petitioner.
KARA WESTERCAMP, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
JEFFREY B. CLARK, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.
______________________
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2 VESTAL v. TREASURY
Before PROST *, PLAGER, and CHEN, Circuit Judges.
Opinion for the court filed by Circuit Judge PROST.
Circuit Judge PLAGER concurs in the result.
PROST, Circuit Judge.
Ms. Sarah Vestal petitions for review of a decision by
the Merit Systems Protection Board (“Board”) sustaining
her removal from the Internal Revenue Service (“IRS”) for
intentionally disclosing taxpayer information to an unau-
thorized person. Vestal v. Dep’t of the Treasury, No. DA-
0752-19-0497-I-1, 2020 MSPB LEXIS 135 (M.S.P.B.
Jan. 14, 2020) (decision available at App. 1–21 1) (“Deci-
sion”). We affirm.
BACKGROUND
Ms. Vestal was an IRS Internal Revenue Agent for ap-
proximately ten years. S. App. 32. 2 Her duties included
performing examinations, usually in the field of small busi-
nesses or self-employed taxpayers. S. App. 60. As a part
of her job, she routinely had access to personally identifia-
ble and other taxpayer information. Decision,
2020 MSPB LEXIS 135, at *27–28. Between 2009 and
2018, Ms. Vestal received annual “Privacy, Information
Protection and Disclosure training.” S. App. 32.
In October 2018, Ms. Vestal received a notice of pro-
posed suspension for displaying discourteous and unprofes-
sional conduct and for failing to follow managerial
directives. S. App. 16–18. In preparing her defense, she
* Circuit Judge Sharon Prost vacated the position of
Chief Judge on May 21, 2021.
1 “App.” refers to the appendix filed by Ms. Vestal
with her opening brief.
2 “S. App.” refers to the supplemental appendix filed
by the government.
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VESTAL v. TREASURY 3
sent her attorney an Examining Officer’s Activity Record
from a taxpayer’s file. S. App. 32. It is undisputed that
this record included personally identifiable and other tax-
payer information and that Ms. Vestal’s attorney was not
authorized to receive such information. See, e.g., Peti-
tioner’s Br. 15; App. 78–79; S. App. 78. It is also undis-
puted that Ms. Vestal sent the record to her attorney
without first obtaining authorization from the agency,
without making any redactions, without relying on any ad-
vice from legal counsel before making the disclosure, and
without being aware of any rule or regulation that would
have permitted the disclosure without authorization.
S. App. 32.
Ms. Vestal’s supervisor, Mr. Tonnie Buggs, issued a
proposed removal letter recommending that Ms. Vestal be
removed for making an unauthorized disclosure.
S. App. 1–4. Mr. Alain Dubois, the deciding official, de-
cided to remove Ms. Vestal from service, explaining in his
removal letter “that a removal will promote the efficiency
of the Service and that a lesser penalty would be inade-
quate.” S. App. 5–9.
Ms. Vestal appealed her removal to the Board. After
holding a hearing, the administrative judge affirmed. De-
cision, 2020 MSPB LEXIS 135, at *1. The administrative
judge concluded that the agency proved its charge—that
Ms. Vestal unlawfully disclosed taxpayer information to an
unauthorized person—by preponderant evidence, as
Ms. Vestal stipulated. Id. at *2–4. The administrative
judge also determined that the agency had shown a nexus
between the employee’s conduct and the efficiency of the
service, as Ms. Vestal “routinely had access to [taxpayer’s
personally identifiable information] and other taxpayer in-
formation, and the unauthorized disclosure of that infor-
mation jeopardizes the integrity of the agency.” Id. at *28.
Further, the administrative judge sustained the
agency’s chosen penalty of removal. Id. The
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4 VESTAL v. TREASURY
administrative judge highlighted that the unauthorized
disclosure was made to someone “over whom the agency
had no control as to subsequent disclosure.” Id. at *30.
Such a disclosure was “very serious,” as the IRS “is charged
with collecting the nation’s revenue, most of which is paid
voluntarily,” and the “disclosure of taxpayer information
erodes taxpayer confidence when entrusting information to
the agency, thereby jeopardizing the voluntary submission
of revenue.” Id. at *29–30. The administrative judge elab-
orated: “[Mr.] Dubois credibly testified Revenue Agents are
trained that taxpayer privacy is ‘sacrosanct’ and any dis-
closure of taxpayer information outside of work is an ‘abso-
lute no-no.’” Id. at *32.
The administrative judge further concluded that the
record supported Mr. Dubois’s conclusion that Ms. Vestal’s
disclosure was intentional. Id. at *30–32. The administra-
tive judge highlighted that the agency’s table of penalties
recommends removal for any first offense of intentional
disclosures of taxpayer information to unauthorized per-
sons. Id. at *30–31. The administrative judge “credit[ed]
[Ms. Vestal’s] testimony that her disclosure of taxpayer in-
formation was not intentional in the sense that she did not
intend to violate a law or policy.” Id. at *31–32. Specifi-
cally, Ms. Vestal stated that she incorrectly believed that
attorney-client privilege protected the disclosure to her at-
torney from being unauthorized. The administrative judge
explained that Ms. Vestal nevertheless did “act[] intention-
ally in that she knowingly transmitted a taxpayer’s record
to her attorney.” Id. at *32. The administrative judge fur-
ther acknowledged that Mr. Dubois considered Ms. Ves-
tal’s prior suspension as aggravating, her job performance
as mitigating, and her ten years of service with the agency
as mitigating though also supporting that she had ample
notice of the seriousness of unauthorized disclosures of tax-
payer information. Id. After considering all the evidence,
the administrative judge ultimately concluded that the
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VESTAL v. TREASURY 5
penalty of removal was not unreasonable, particularly in
view of the seriousness of the sustained charge. Id. at *33.
The administrative judge’s initial decision became the
Board’s final decision. Ms. Vestal now petitions for review.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Ms. Vestal does not dispute that the agency proved its
charge that she unlawfully provided taxpayer information
to an unauthorized person, nor does she dispute that the
agency had shown a nexus. Ms. Vestal argues only that
the Board committed various errors and that the penalty
of removal was too severe. We affirm the Board’s decision.
I
Our review of Board decisions is limited. Whiteman v.
Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A
final decision of the Board must be affirmed unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see also Potter v. Dep’t of Veterans Affs.,
949 F.3d 1376, 1379 (Fed. Cir. 2020).
We do not disturb an agency-imposed penalty merely
because we might have chosen a lesser penalty had we been
in charge. Webster v. Dep’t of the Army, 911 F.2d 679, 686
(Fed. Cir. 1990) (“Whether this court would have chosen a
different penalty is irrelevant.”); Graybill v. U.S. Postal
Serv., 782 F.2d 1567, 1574 (Fed. Cir. 1986) (“In reviewing
the appropriateness of an agency-imposed penalty, this
Court does not sit as a final arbiter of disputes between the
government and its employees. Our function is not to con-
duct a de novo review of agency disciplinary proceedings in
order to determine what penalty we might have imposed.
. . . [T]he agency need not demonstrate that the particular
penalty which it has imposed is the least severe penalty
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6 VESTAL v. TREASURY
which can be imposed to effect the desired result.” (citation
omitted)); Weston v. U.S. Dep’t of Hous. & Urb. Dev.,
724 F.2d 943, 949 (Fed. Cir. 1983) (“In reviewing the ap-
propriateness of an agency-imposed removal, it is not the
place of this court to determine what course would have
been pursued were we in charge.”); see also Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1366 (Fed. Cir. 2012) (“In
exercising this limited scope of review, we do not consider
how we would have decided the case in the first instance,
and may not merely substitute our judgment for that of the
board.”).
Rather, “[i]t is well established that the determination
of the proper disciplinary action to be taken to promote the
efficiency of the service is a matter peculiarly and neces-
sarily within the discretion of the agency.” Parker v. U.S.
Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987); see also
Guise v. Dep’t of Just., 330 F.3d 1376, 1382 (Fed. Cir. 2003)
(“The choice of penalty is committed to the sound discretion
of the employing agency.”); Lachance v. Devall, 178 F.3d
1246, 1251, 1259 (Fed. Cir. 1999) (“It is a well-established
rule of civil service law that the penalty for employee mis-
conduct is left to the sound discretion of the agency.”).
Accordingly, the court must defer “to the agency’s
choice of penalty ‘unless the penalty exceeds the range of
permissible punishment specified by statute or regulation,
or unless the penalty is so harsh and unconscionably dis-
proportionate to the offense that it amounts to an abuse of
discretion.’” Archuleta v. Hopper, 786 F.3d 1340, 1352
(Fed. Cir. 2015) (quoting Brook v. Corrado, 999 F.2d 523,
528 (Fed. Cir. 1993)); see also Allen v. U.S. Postal Serv.,
466 F.3d 1065, 1071 (Fed. Cir. 2006); Parker, 819 F.2d
at 1116; Graybill, 782 F.2d at 1574; Weston, 724 F.2d at
949.
This highly deferential standard of review is reflective
of the “great reluctance on the part of the courts to become
enmeshed in the disciplinary process,” Weston, 724 F.2d
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VESTAL v. TREASURY 7
at 949, as “the employing (and not the reviewing) agency is
in the best position to judge the impact of the employee
misconduct upon the operations of the agency, the pro-
spects for the employer’s rehabilitation and improvement,
and the need to maintain and encourage high standards of
conduct by all employees,” Beard v. Gen. Servs. Admin.,
801 F.2d 1318, 1321 (Fed. Cir. 1986).
II
On appeal, Ms. Vestal argues only that the administra-
tive judge committed various errors and that the penalty of
removal is so harsh and unconscionably disproportionate
to the offense that it amounts to an abuse of discretion. We
disagree.
Mr. Dubois’s penalty determination was guided by the
factors set forth in Douglas v. Veterans Administration,
5 M.S.P.R. 280 (1981). We have repeatedly approved of
employing these factors to determine the reasonableness of
a penalty. See, e.g., Zingg v. Dep’t of the Treasury, 388 F.3d
839, 841 (Fed. Cir. 2004).
As both Mr. Dubois and the Board found, Ms. Vestal
intentionally disclosed taxpayer information to an unau-
thorized person for her own benefit. Decision,
2020 MSPB LEXIS 135, at *19–20; S. App. 6. The disclo-
sure violated the law. I.R.C. § 6103(a). Ms. Vestal was
aware that she had multiple resources at her disposal—in-
cluding her supervisors and the IRS Office of Disclosure
Services—to discuss whether and how certain disclosures
could be made, and in fact Ms. Vestal had previously con-
sulted the Office of Disclosure Services. App. 80–81;
S. App. 71–72. Yet she made this disclosure without first
consulting any of these resources or otherwise obtaining
permission from the agency. She also made the disclosure
without first redacting any of the taxpayer information,
without relying on any advice from her legal counsel when
she made the disclosure, and without knowledge of any
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8 VESTAL v. TREASURY
rule or regulation permitting the disclosure without prior
authorization from the agency. S. App. 32.
Ms. Vestal “knew privacy protection was important,”
Decision, 2020 MSPB LEXIS 135, at *30–31, and she re-
ceived annual trainings between 2009 and 2018 to that ef-
fect, id.; S. App. 6, 32. Specifically, IRS Revenue Agents
such as Ms. Vestal “are trained that taxpayer privacy is
‘sacrosanct’ and any disclosure of taxpayer information
outside of work is an ‘absolute no-no.’” Decision,
2020 MSPB LEXIS 135, at *32. Such unauthorized disclo-
sures are particularly serious in this context, because the
IRS “is charged with collecting the nation’s revenue, most
of which is paid voluntarily,” and “disclosure of taxpayer
information erodes taxpayer confidence when entrusting
information to the agency, thereby jeopardizing the volun-
tary submission of revenue.” Id. at *29–30. 3 Furthermore,
although of lesser importance to the deciding official,
App. 59, Ms. Vestal had been previously suspended. Deci-
sion, 2020 MSPB LEXIS 135, at *32; S. App. 6.
These findings are supported by the law and substan-
tial evidence. Under these circumstances, the penalty of
removal was not “so harsh and unconscionably dispropor-
tionate to the offense that it amounts to an abuse of discre-
tion.” Archuleta, 786 F.3d at 1352 (quoting Brook,
999 F.2d at 528).
III
Ms. Vestal’s primary argument on appeal is that “[t]he
penalty imposed was that for willful disclosure, rather than
3 For example, a transcript of one of Ms. Vestal’s
trainings provides that “our work holds us to a higher
standard—our actions must inspire trust and confidence in
the Internal Revenue Service. That trust is a cornerstone
of voluntary compliance with our nation’s tax laws.”
S. App. 38.
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VESTAL v. TREASURY 9
negligent disclosure.” Petitioner’s Br. 2. Ms. Vestal relies
on the IRS Internal Revenue Manual (“IRM”), which states
that “[a]n unauthorized access or disclosure” can be consid-
ered “willful” only if it is made “with full knowledge that it
is wrong.” IRM § 11.3.1.9. Ms. Vestal contends that her
unauthorized disclosure was not willful because she did not
have “full knowledge that [her actions were] wrong”; ra-
ther, she contends that she incorrectly believed that attor-
ney-client privilege protected the disclosure from being
unauthorized. In Ms. Vestal’s view, because her unauthor-
ized disclosure was not willful, the deciding official incor-
rectly assessed three of the Douglas factors, namely: the
nature and seriousness of the offense, the clarity with
which the employee was on notice of any rules that were
violated in committing the offense, and the consistency of
the penalty with any applicable agency table of penalties.
See Petitioner’s Br. 5. We disagree.
Ms. Vestal’s removal was properly predicated on her
intention to disclose the information to her attorney and
did not depend on whether she knew that the disclosure
was wrong. As to the nature and seriousness of the offense
and clarity of notice, the Board credited Mr. Dubois’s testi-
mony that Revenue Agents are trained that “taxpayer pri-
vacy is ‘sacrosanct’” and that “any disclosure of taxpayer
information outside of work is an ‘absolute no-no.’” Deci-
sion, 2020 MSPB LEXIS 135, at *32. And the Board cred-
ited Mr. Dubois’s testimony that the intentional nature of
Ms. Vestal’s conduct—i.e., her intentional transmission of
a taxpayer’s record to her attorney—was an aggravating
factor even though “her disclosure of taxpayer information
was not intentional in the sense that she did not intend to
violate a law or policy.” Id. at *31–32. None of these find-
ings are unsupported by the law or substantial evidence.
Whether Ms. Vestal intended to make the disclosure at all
is clearly relevant to the nature and seriousness of the of-
fense.
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10 VESTAL v. TREASURY
Of course, the IRS might have viewed this case quite
differently if Ms. Vestal’s disclosure were a mistake—for
example, had she intended to send the information to an
authorized person but mistakenly sent the information to
her attorney instead. But here, Ms. Vestal did intend to
send the information to her attorney. It was not improper
to consider such intentionality as aggravating. This court
has even previously concluded that such intentionality can
provide a basis for removal. See Zingg, 388 F.3d at 844 (af-
firming the removal of an IRS employee even though the
employee mistakenly believed that the disclosure of confi-
dential taxpayer information was excused).
As to the penalty guidelines, Ms. Vestal is incorrect
that “[t]he penalty imposed was that for willful disclosure
under the Agency’s penalty table, rather than that for dis-
closure due to carelessness, recklessness[,] or negligence.”
Petitioner’s Br. 6. In fact, the relevant section of the IRS
Manager’s Guide to Penalty Determinations (“Penalty
Guide”) does not use the word “willful” at all. Rather, the
Penalty Guide recommends removal for even a first offense
of an “[i]ntentional disclosure of information to unauthor-
ized persons of tax or other personally identifiable infor-
mation.” App. 37 (emphasis added). The Penalty Guide
recommends lesser penalties only for the first two offenses
of “[d]isclosure due to carelessness, recklessness, or negli-
gence.” Id. Ms. Vestal improperly conflates willful unau-
thorized disclosures—which may constitute a felony, see
I.R.C. § 7213—from disclosures, like hers, that were
merely intentional.
Ms. Vestal also appears to argue that, for purposes of
the Penalty Guide, “intentional” and “willful” are synony-
mous. They are not. The use of “intentional” in the guide-
lines refers to disclosures that were made on purpose even
if the employee did not know that the disclosures were
wrong. If the IRS wanted to limit the guidelines to recom-
mending removal only for first offenses of willful disclo-
sures—i.e., disclosures that, in Ms. Vestal’s view, require
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VESTAL v. TREASURY 11
knowledge of wrongdoing—the IRS would have used the
word “willful” in the guidelines. It did not. Ms. Vestal pro-
vides no reason why the IRS would have used the word “in-
tentional” in the Penalty Guide if it really meant “willful.”
It would be one thing if “willful” and “intentional” were
generally synonymous in the law. They are not. The Su-
preme Court has explained that “even in the criminal con-
text, reference to a[n] . . . ‘intentional’ ‘violation’ . . . has not
necessarily implied a defense for legal errors.” Jerman v.
Carlisle, 559 U.S. 573, 582–85 (2010) (citation omitted).
And as compared with “intentional,” the term “willful” is
“more often understood in the civil context to excuse mis-
takes of law.” Id. at 584; see also id. at 582–83 (“Our law
is therefore no stranger to the possibility that an act may
be ‘intentional’ for purposes of civil liability, even if the ac-
tor lacked actual knowledge that her conduct violated the
law.”).
Ms. Vestal relies heavily on the IRM in support of her
argument. While we acknowledge that the IRM may ap-
pear less than clear as to the definition of “intentional,” the
IRM more strongly supports our conclusion than hers. Spe-
cifically, the IRM defines “[a]n unauthorized access or dis-
closure” as “willful when it is done voluntarily and
intentionally with full knowledge that it is wrong.” IRM
§ 11.3.1.9 (emphasis added). Thus, for purposes of the
IRM, “willful” and “intentional” cannot mean the same
thing, as “intentional” is merely one subcomponent of the
definition of “willful.” And the definition of a willful disclo-
sure in the IRM also makes clear that knowledge that the
disclosure is wrong is separate from the intentionality of
the disclosure—otherwise the definition of willful would in-
clude a significant redundancy. Accordingly, the IRM most
readily supports our interpretation of the Penalty Guide,
not Ms. Vestal’s.
Ms. Vestal also relies on the fact that the Penalty
Guide recommends lesser penalties for “[d]isclosure[s] due
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12 VESTAL v. TREASURY
to carelessness, recklessness, or negligence.” See App. 37.
In Ms. Vestal’s view, her actions fall into this this category
because her disclosure was due to her mistaken belief that
attorney-client privilege protected the disclosure. But as
Mr. Dubois explained, and as the text plainly indicates,
this category of offense is for disclosures that the employee
never intended to make in the first place, such as where an
employee intends to fax a document with taxpayer infor-
mation to an authorized recipient but negligently faxes the
document to an unauthorized recipient. See S. App. 56–57.
This interpretation is also supported by the agency’s pri-
vacy training, which consistently describes careless disclo-
sures as those made without any intent to disclose
information to an unauthorized person. 4 The privacy
4 S. App. 40 (providing an example of a careless dis-
closure as one where an employee, “in haste,” fails to follow
shipping procedures when shipping a package containing
personally identifiable taxpayer information, and although
the package was ultimately delivered, the box was dam-
aged and appeared to be missing files); id. at 41 (providing
an example of a careless disclosure as one where an em-
ployee picks up groceries while leaving her laptop, which
contains personally identifiable taxpayer information, on
the passenger seat of the car, and the laptop is stolen while
the employee is getting groceries); id. (providing two exam-
ples of careless disclosures caused by faxing: first where
“[a] Revenue Agent was attempting to EEFax various
forms for tax years 2012–2017 to a taxpayer but after
transmitting he realized he erroneously sent them to an in-
correct fax number”; and second where a Contact Repre-
sentative sent personally identifiable taxpayer information
to an unauthorized recipient because she “grabbed several
documents from a shared printer” and transmitted all the
documents without realizing that she had grabbed docu-
ments she did not intend to send).
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VESTAL v. TREASURY 13
training also characterizes unintentional disclosures in the
same manner. S. App. 40. 5
Against this backdrop, it is clear that the IRS used the
word “intentional” rather than “willful” in the Penalty
Guide to connote that removal for a first offense is war-
ranted even if the disclosure were not made with full
knowledge that it was wrong. Accordingly, the penalty of
removal is not inconsistent with the Penalty Guide.
Relatedly, Ms. Vestal argues that Mr. Dubois conceded
that he might have recommended a different penalty had
Ms. Vestal’s disclosure been non-willful. See App. 58–59,
67. But Ms. Vestal misreads Mr. Dubois’s testimony. With
just a little context, it is clear that Mr. Dubois only admit-
ted that, had Ms. Vestal not intended to make the disclo-
sure to her attorney (e.g., had she mistakenly sent the
documents to her attorney while intending to send the doc-
uments to an authorized recipient), he may have consid-
ered a different penalty.
For starters, Ms. Vestal’s reading of Mr. Dubois’s testi-
mony is inconsistent with the fact that Mr. Dubois’s re-
moval decision was not based on Ms. Vestal having
knowledge that the disclosure was wrong. See S. App. 6,
56–57; App. 59–61. In affirming the removal, the adminis-
trative judge specifically credited Ms. Vestal’s testimony
that she did not intend to violate a law or policy, but nev-
ertheless found that “preponderant record evidence sup-
ports Dubois’[s] belief that the appellant’s disclosure of
taxpayer information was intentional” and that such inten-
tionality “was an aggravating factor.” Decision,
5 S. App. 40 (providing examples of unintentional er-
rors as “[m]ailing or faxing documents to the wrong tax-
payer, [e]rrors in transcript delivery to Income Verification
Express Service (IVES) participants [or] [i]mproperly shar-
ing or disclosing sensitive data by telephone or email”).
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14 VESTAL v. TREASURY
2020 MSPB LEXIS 135, at *32. As the administrative
judge explained, Mr. Dubois’s removal determination was
founded upon Ms. Vestal’s intention to disclose the infor-
mation to her attorney, not on whether she knew that the
disclosure was wrong. See id. at *31–32.
In the removal letter, Mr. Dubois described the miscon-
duct as the intentional disclosure of taxpayer information.
S. App. 6. Turning to the hearing, Mr. Dubois explained
that Ms. Vestal’s misconduct was intentional because
Ms. Vestal purposely shared the information with her at-
torney. S. App. 56–57. Mr. Dubois contrasted Ms. Vestal’s
case with one where someone faxes something incorrectly
and thus did not intend to make the disclosure at all.
S. App. 56–57. Mr. Dubois conceded that he did not know
whether Ms. Vestal knew the disclosure was wrong when
she made it. App. 59–60. But Mr. Dubois proposed re-
moval nonetheless, stressing that there were only two pos-
sibilities: either Ms. Vestal was ignorant of the law or she
knew her disclosure was unlawful, and either way the dis-
closure was “very serious and troubling.” App. 60. No-
where did Mr. Dubois indicate that his removal
determination was based in any part on Ms. Vestal’s
knowledge that her disclosure was wrong. In context, it is
thus clear that the admissions relied upon by Ms. Vestal
refer to an admission by Mr. Dubois that he probably would
have chosen a lesser penalty had Ms. Vestal not intended
to make the disclosure.
It is true that Mr. Dubois responded “[m]ost likely” to
Ms. Vestal’s attorney’s question, “[i]f Ms. Vestal’s disclo-
sure had been non-willful, you would have recommended a
different penalty, correct?” App. 58 (emphasis added). But
it is clear from his testimony that he understood the use of
willful during the hearing as synonymous with
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VESTAL v. TREASURY 15
intentional. 6 App. 58. For example, Mr. Dubois’s explana-
tion for his response was that the Penalty Guide does not
recommend removal for a first offense if the offense is non-
willful. App. 58. But as previously indicated, the Penalty
Guide does not use the term “willful” at all but rather rec-
ommends removal for a first offense of “[i]ntentional disclo-
sure” and lesser penalties for a first offense of “[d]isclosure
due to carelessness, recklessness, or negligence.” App. 37.
Given this context, and given that Mr. Dubois’s penalty de-
termination was not based on Ms. Vestal’s knowledge of
wrongdoing, it is clear that Mr. Dubois indicated at the
hearing only that he would have considered a different pen-
alty had Ms. Vestal not intended to disclose the infor-
mation to her attorney. See also App. 60 (Mr. Dubois using
“willful” in the context of intending the disclosure, not in
the context of knowing whether the disclosure was unlaw-
ful).
Ms. Vestal also points to Mr. Dubois’s testimony indi-
cating that he did not believe that Ms. Vestal actually
thought attorney-client privilege protected the disclosure.
App. 65–67. But right afterward, Mr. Dubois clarified that
his removal decision was based upon her intent to disclose
the information to her attorney and “the sacrosanct nature
6 Indeed, Ms. Vestal, the administrative judge, and
even the government have all improperly conflated “will-
ful” and “intentional” at various points during these pro-
ceedings, so it should come as no surprise that Mr. Dubois
fell prey to such conflation as well. Further, the concept of
a “willful” disclosure appears to have been introduced by
Ms. Vestal’s counsel during the questioning of Mr. Dubois
at the December 12, 2019 administrative judge hearing.
App. 58. As noted supra, in the removal letter, Mr. Dubois
did not describe Ms. Vestal’s misconduct as a willful disclo-
sure of taxpayer information but as an intentional disclo-
sure.
Case: 20-1771 Document: 42 Page: 16 Filed: 06/14/2021
16 VESTAL v. TREASURY
of the actual offense,” not on her knowledge that the disclo-
sure was wrong. App. 66–67. And again, the remainder of
Mr. Dubois’s testimony makes clear that he recommended
removal because Ms. Vestal intended the disclosure, not
based upon whether Ms. Vestal knew the disclosure was
unauthorized when she made it. Overall, Mr. Dubois’s tes-
timony aligns with the initial statement he made in the re-
moval letter—that Ms. Vestal “intentionally disclosed
taxpayer information to [her] individual attorney for per-
sonal use,” S. App. 6—an offense warranting removal ac-
cording to the Penalty Guide. Ms. Vestal also argues that
the Board erred in considering Ms. Vestal’s prior discipline
as an aggravating factor because Mr. Dubois “testified that
he did not consider her prior discipline to be significant in
determining the penalty.” Petitioner’s Br. 16 (citing
App. 59). But Mr. Dubois merely testified that he did not
consider Ms. Vestal’s discipline to be a significant factor in
determining the penalty, not that her prior discipline was
irrelevant or not aggravating. App. 59. Mr. Dubois’s re-
moval letter specifically lists Ms. Vestal’s prior disciplinary
record as aggravating. S. App. 5–6.
Ms. Vestal also contends that the administrative judge
“incorrectly stated that Mr. Dubois considered [Ms. Ves-
tal’s] length of service as a mitigating factor.” Petitioner’s
Br. 18–19. Ms. Vestal reasons that Mr. Dubois’s testimony
was inconsistent on that score and that the administrative
judge erred in refusing to let counsel “read the deposition
testimony into the record and question the witness about”
the inconsistency. Petitioner’s Br. 18–19. We disagree. As
the administrative judge found, Mr. Dubois acknowledged
the alleged ambiguity and adequately explained it. Specif-
ically, he explained that he considered Ms. Vestal’s ten
years of service as a mitigating factor but her ten years of
training on taxpayer privacy as aggravating. App. 72–75;
see also S. App. 5–9.
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VESTAL v. TREASURY 17
CONCLUSION
We have considered Ms. Vestal’s remaining arguments
but find them unpersuasive. For the foregoing reasons, the
Board’s decision is supported by substantial evidence, is in
accordance with the law, and did not amount to an abuse
of discretion. The penalty of removal under these circum-
stances was not “so harsh and unconscionably dispropor-
tionate to the offense that it amounts to an abuse of
discretion.” Archuleta, 786 F.3d at 1352 (quoting Brook,
999 F.2d at 528).
AFFIRMED