united states court of appeals for the federal circuit is now open and in session god save the united states and the honorable court the st case argument this morning is twenty dash one thousand seven  sara vestal the administrative judge committed legal error in this case because in the context of i r s p i disclosure the intentionality factor explicitly includes knowledge that the act was in violation of the rule and that is specifically stated in the i r s manual that controls this matter the charge was specifically upheld on intentionality even though the administrative law judge and of the deciding official acknowledged that they did not know whether she had committed this with knowledge that it was a violation and the administrative judge credited her testimony offense and authorize disclosure of taxpayer information that is intentional and that the penalty guidelines do not require that the disclosure be willful and my understanding the penalty guidelines correctly violation of the rule whereas subsection b refers specifically to intentional and the question is what is intentional mean and in this context of the r s i would constitute i would argue that it means knowledge of the rule in this particular case the ha found that she was unaware of the operation like this is judge prose can i ask you about that because i think there's only at best there's some ambiguity i mean the word willful as you used and willful seems to be defined as intentionally with full knowledge that it is wrong but that doesn't mean that that's what intentionally necessarily consists of judge chen i'm wondering why intentional doesn't is not broad enough to clue it's sort of the opposite of  it wasn't my mistake you didn't know that you were just closing it but you intentionally knew you were just closing it so i'm wondering why you don't think there's enough room in the guidelines and the other documentation to construe intentional in that more limited fashion than you would have a well i would agree with you chief justice protest because in this particular case we addressing an i r s disclosure issue and while intentionality generally is broad enough to cover simply pressing the button as an intentional act that sent in the context of virus disclosure there is a significant difference is knowledge that it was wrong why isn't that sort of like another why is it willfulness broad enough to say knew or should have known it was wrong because if the standard were to be should known then i think you've got a problem right because at a minimum your client if she had any doubt which one could argue she should of given all of the rules in the training she should have at least asked if it was permissible as opposed to doing it without asking should have known your honor would be a negligence standard and it's possible that in another context one might argue that a willful action is also negligent i think this question goes to the clarity of the notice of the role and mr du bois her supervisor specifically testified that the rules for disclosure are complicated and confusing in this context he was not aware of the correct application in an attorney client situation and even the assistant u s attorney who interviewed ms vestal for possible felony indicated that it was a simple mista she had not had training with regard to attorney client privilege to chew ations and she was involved in a very upsetting situation where she had been accused of wrongdoing and she was asked to send information to attorney and did so she was wrong and she is acknowledged that that was wrong she is not contending that that this was in some way correct or that that her belief that it was correct mitigates anything but the question here is was it intentional given testimony in this specific case we cannot argue that she should have known while there can be circumstantial in evidence of inten cannot just be assumed and there are a number of cases involving specifically the i r s for example the albertan case from two thousand and eight from the federal circuit to eighty seven federal appendix eight hundred and fifty two an unpublished decision where an i r s agent admitted that she attempted to locate her son who suffered from bipolar disorder she acknowledged that she had done it and she standard is there not in this context a quite deferential standard that would allow it to the supervisor i mean if the supervisor of the deciding official thinks this woman has mitigating circumstances that might have allowed her to just do it but that the you know sort of discretionary under an abuse of discretion standard or least a deferential standard in terms of the deciding official deciding whether or not removal is appropriate is it not yes there is a differential standard but the question is whether or not deference is owed in this particular case in a situation where the supervisor testifies that he does not know not willfully committed this offense he would not have removed the question was put to him and he said yes that's most likely th intentional in that connection while i have your attention ms rice let me ask you a several questions about the record that un puzzled about that relate to all of this but i couldn't find any description of exactly what it was vestal actually transmitted to you and that means then transmitted i take it back to the government and as part of your explanation of why she hadn't responded quickly on the day you said mr bunn said you had four hours in which to respond as to exactly how many pages and what document was that that caused this whole uproar perhaps you know yes stretch paper i do and i will look when we have a moment to find where in the appendix or appendices we can find this but it was far as i recall a one page document from her calendar indicating where she was at the time that her supervisor made this request and she could have redacted it but she did not it would have made no difference in terms of the sense of her suspension return or tax documents but was a government record that she made her own personal activity that she uses as part of her own records does that what you're honor that's what i'm saying and subject to government counsels possibly correct me that is our contention your contention or that is that is what the records somehow show and is it the page that the taxpayer in this case was a business and not an individual and i do understand that i will point prohibited disclosure i didn't see you arguing with that i thought your argument was that she thought it was protected by attorney client privilege but not challenging the privacy in the you know of the disclosure itself my right about that wrong that's correct judge prost she is not contesting that she should not have sent it there you know she's not saying that that was in any way proper just to start off with here i think the main question is that there was no dispute below as to whether this was a a taxpayer document it was protected by the personal identifiable information in it and so it was a taxpayer record that actually did disclose that a certain pachter was under investigation and again internal revenue code sixty one of three is what really controls here where that i situation that happened here your honor vestal could have easily gone to the office of disclosure services to ask or inquire as to whether attorney client privilege what permit a disclosure of the type that she did  additionally point to supplemental appendix pages twenty two and twenty three where agency counsel below identified it as an examining officers activity record and so that is what the document was that was not  disputing that i take it no i'm not your owner and i think that as we are argued in our brief that this specific argument was not raised below that is the question of whether there was intent to violate the law with the element of w vestal to actually transmit the tax records to her attorney and then he also considered her disclosure to be willful rather than inadvertent due to the fact that she had had extensive training on the fact that you are prohibited by law from making disclosures and so he did consider it to be willful in the sense that as i think i can quote that you said it was a no no and also that it's the sacrosanct nature of taxpayer information as such that the knowing transmission to someone is what really made it an unauthorized disclosure and i think your honor to touch on a little bit although the specific arguments were raised below i think that the administrative law judge did look at ms vestals descents that she thought it was covered by attorney client privilege and i think that you have an pages nineteen and information was not intentional in the sense that she did not intend to violate a law or policy however preponderant evidence shows she acted intentionally and she knowingly transmitted a texters record her attorney and it follows with deal over a distinction between intentional actions and willful actions and that's why the other side's argument is premised on the fact that if if her penalty for removal is due to a willful act then your side needed to prove that she knew that her intentional act was wrong and was illegal and was actually subject to criminal penalties but as i understand the blog deciding official decision and the board's decision neither of those ever what the government's view here is on whether you believe that this vessel was properly removed as the government believes her actions some type of misconduct and then what the penalty would be for that misconduct what did that decision documents and that's what the supplemental appendix five seven what does it say nature and seriousness of the offense is where he explains that her or she intentionally disclose taxpayer information to your individual attorney for personal use and this is a page six of the supplemental and i think that's why the standard even in the penalty table is intentional or as an advertisement and then i know that with some of the arguments in the vessels raised on appeal has brought willful but you know the problem we have is that the i r s manual defines willful as having full knowledge that it is wrong so that's why intentional becomes a key word and willful becomes a problematic or now i read and i wonder if you agree with me i read mr de blas testimony as being slightly confusing but not that much i think  deposition was using the word willfully and so he adopted the word in his testimony but i you know having read the testimony i think it's clear that mr gibb was understood willful in that context to mean intentional and he was quite clear that disclosing confidential information is really bad and it was enough that she disclose the information even if she misunderstood the rules so that's my kind of take on it and i wonder if you agree or disagree because your use of willful intentional synonymously kind of made the issue more confusing for us and i apologize for that you are thinking back i think i did answer mission and the u s attorney apparently this negated the question of whether this was a criminal willful violation of the law and as i read the and they concluded quote the u s attorney this was a simple mistake due to the stress of the hostile environment unquote  appendix seventy eight that puts the criminal division of the justice department with the simple position that you represent do i miss declined to prosecute and so i don't think that you necessarily have to have a prosecution for every single disclosure in order for the agency to determine that a reasonable penalty is removal because  obviously an employee working for treasury with i r s is different than any kind of decision by the justice department to pursue criminal prosecution and i think at the end of the day goes back to the very important distinction between the words willful and intentional correct willful make you subject to criminal penalties it's offense it's a felony under the statute to willfully disclose in an unauthorized way by mere intentional disclosure not willful only leads to a removal maybe civil penalties but not criminal meaning of the words willful and intentional in the context of an authorized disclosure agents and your honor because what i can fall back on is that in this particular instance with the time now i just need a yes or no to my statements last question isn't that there's a very clear and important distinction it may be subtle to some but nevertheless very important the difference between willful disclosures and intentional disclosures willful disclosures lead to criminal prosecution  resources previously if she had questions about whether this was a covered situation for disclosure and i think although there was one taxpayer that was affected there is clearly an important public policy purpose think when you're owners look at the penalty of removal with the nexus of this happening during the course of her work and having the ten years of training of knowing that this is an absolutely sacrosanct thing that you cannot you dollars disclosures they were in the newspaper the iris had to pay a one thousand dollars for every one and she knew that she required certain authorisations and didn't get them so what all this running into this we see with weiss let me ask you i  mean there are two sort of concurrent streams going on one is what the deciding official in the people that took this action thought he was doing and the other is kind of the confusion in the manual it seems to me there's very little there's no confusion that they understood and appreciated that this was intentional but that she said and they didn't read the fact that she thought that it was ok because it was interesting client privilege that was known and understood and i think except that so it's clear that the agency took its action and said it still intentional she should have at a minimum inquired how do you get around their house every day anything in the manual or the code that would preclude the agency in its just crash and for deciding that intentional not willful disclosure is sufficient to remove someone how we just nd guess said it certainly wasn't suggesting that a st penalty would require removal and that is subsection a of a table with penalties reckless careless negligent so he was aware of the distinction but he simply used a different standard in which pressing the button intentionally was sufficient and her knowledge of the error was meaningless and that is legal error your honor tell me again what you're pointing to that the agency is precluded from firing someone because when it's intentional under the circumstances here versus willful that she had a reason that she didn't know she she assumed  that attorney client privilege would protect her here is the point me to where you're saying that the agency cannot fire someone for the kind of intentional disclosure under the circumstances where is it in the manual where knowledge is wrong and further subsection point ten dollars subsection three says generally employees commit inadvertent disclosure because of a misunderstanding of rules and procedures and no further corrective action is necessary once the employee and the manager discuss the matter that is in my free i guess the st thing you cite does not say anything to me just not speak to me about how intentional disclosures even if they're not will mistake this document was included in that that would be inadvertent right but she knew she was sending her to her lawyer the prohibited documentation right that's correct and she acknowledged that this was intentionally sent in the sense that she pressed the button but had she known that she knew what she was sending her lawyer she just she was aware absolutely did to do what the i think all of the training says that if there's any doubt or you're going to do something outside of the lines you should go to this what is it a disclosure they have like a hotline that you're supposed to ask someone whether or not in fact you can disclose it under particular circumstances my right about that that's correct and she had in fact used it previously which demonstrates that she did not have any idea that what she was doing was wrong she had no doubt that it in the table for the category intentional disclosure of information to unauthorized persons the tax or other personally identifiable information the penalty there is removal yes that's correct subsection be yes your honor