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, Washington, 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 unauthorized person. Vestal v. Dep’t of the Treasury, No. DA0752-19-0497-I-1, 2020 MSPB LEXIS 135 (M.S.P.B. 

Jan. 14, 2020) (decision available at App. 1–211) (“Decision”). We affirm. 

BACKGROUND

Ms. Vestal was an IRS Internal Revenue Agent for approximately ten years. S. App. 32.2 Her duties included 

performing examinations, usually in the field of small businesses or self-employed taxpayers. S. App. 60. As a part 

of her job, she routinely had access to personally identifiable 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 proposed suspension for displaying discourteous and unprofessional 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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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 taxpayer information and that Ms. Vestal’s attorney was not 

authorized to receive such information. See, e.g., Petitioner’s Br. 15; App. 78–79; S. App. 78. It is also undisputed that Ms. Vestal sent the record to her attorney 

without first obtaining authorization from the agency, 

without making any redactions, without relying on any advice 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, decided 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 inadequate.” S. App. 5–9. 

Ms. Vestal appealed her removal to the Board. After 

holding a hearing, the administrative judge affirmed. Decision, 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 information, and the unauthorized disclosure of that information 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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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 elaborated: “[Mr.] Dubois credibly testified Revenue Agents are 

trained that taxpayer privacy is ‘sacrosanct’ and any disclosure of taxpayer information outside of work is an ‘absolute 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 administrative judge highlighted that the agency’s table of penalties 

recommends removal for any first offense of intentional 

disclosures of taxpayer information to unauthorized persons. Id. at *30–31. The administrative judge “credit[ed] 

[Ms. Vestal’s] testimony that 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. Specifically, Ms. Vestal stated that she incorrectly believed that 

attorney-client privilege protected the disclosure to her attorney from being unauthorized. The administrative judge 

explained that Ms. Vestal nevertheless did “act[] intentionally in that she knowingly transmitted a taxpayer’s record 

to her attorney.” Id. at *32. The administrative judge further acknowledged that Mr. Dubois considered Ms. Vestal’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 taxpayer 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 otherwise not in accordance with law; (2) obtained without procedures 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 conduct 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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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 appropriateness 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 necessarily 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 misconduct 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 disproportionate 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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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 prospects 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 administrative 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 unauthorized person for her own benefit. Decision, 

2020 MSPB LEXIS 135, at *19–20; S. App. 6. The disclosure violated the law. I.R.C. § 6103(a). Ms. Vestal was 

aware that she had multiple resources at her disposal—including 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 consulted 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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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 received annual trainings between 2009 and 2018 to that effect, 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 disclosures 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 voluntary 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. Decision, 2020 MSPB LEXIS 135, at *32; S. App. 6. 

These findings are supported by the law and substantial evidence. Under these circumstances, the penalty of 

removal was not “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” 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 considered “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”; rather, she contends that she incorrectly believed that attorney-client privilege protected the disclosure from being 

unauthorized. In Ms. Vestal’s view, because her unauthorized disclosure was not willful, the deciding official incorrectly 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 testimony that Revenue Agents are trained that “taxpayer privacy is ‘sacrosanct’” and that “any disclosure of taxpayer 

information outside of work is an ‘absolute no-no.’” Decision, 2020 MSPB LEXIS 135, at *32. And the Board credited 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 findings 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 offense. 

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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 (affirming the removal of an IRS employee even though the 

employee mistakenly believed that the disclosure of confidential 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 disclosure 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 unauthorized persons of tax or other personally identifiable information.” App. 37 (emphasis added). The Penalty Guide

recommends lesser penalties only for the first two offenses 

of “[d]isclosure due to carelessness, recklessness, or negligence.” Id. Ms. Vestal improperly conflates willful unauthorized 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 synonymous. They are not. The use of “intentional” in the guidelines 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 recommending removal only for first offenses of willful disclosures—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 provides no reason why the IRS would have used the word “intentional” 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 Supreme Court has explained that “even in the criminal context, 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 mistakes 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 actor 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 appear less than clear as to the definition of “intentional,” the 

IRM more strongly supports our conclusion than hers. Specifically, the IRM defines “[a]n unauthorized access or disclosure” 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 disclosure 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 include 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 information 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 privacy training, which consistently describes careless disclosures 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 disclosure 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 damaged and appeared to be missing files); id. at 41 (providing 

an example of a careless disclosure as one where an employee 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 examples 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 incorrect fax number”; and second where a Contact Representative 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 documents she did not intend to send). 

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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 warranted 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 admitted that, had Ms. Vestal not intended to make the disclosure to her attorney (e.g., had she mistakenly sent the 

documents to her attorney while intending to send the documents to an authorized recipient), he may have considered a different penalty. 

For starters, Ms. Vestal’s reading of Mr. Dubois’s testimony is inconsistent with the fact that Mr. Dubois’s removal 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 administrative judge specifically credited Ms. Vestal’s testimony 

that she did not intend to violate a law or policy, but nevertheless found that “preponderant record evidence supports Dubois’[s] belief that the appellant’s disclosure of 

taxpayer information was intentional” and that such intentionality “was an aggravating factor.” Decision, 

5 S. App. 40 (providing examples of unintentional errors as “[m]ailing or faxing documents to the wrong taxpayer, [e]rrors in transcript delivery to Income Verification 

Express Service (IVES) participants [or] [i]mproperly sharing or disclosing sensitive data by telephone or email”).

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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 information 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 misconduct 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 attorney. 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 removal nonetheless, stressing that there were only two possibilities: either Ms. Vestal was ignorant of the law or she 

knew her disclosure was unlawful, and either way the disclosure was “very serious and troubling.” App. 60. Nowhere 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 disclosure 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 explanation for his response was that the Penalty Guide does not 

recommend removal for a first offense if the offense is nonwillful. App. 58. But as previously indicated, the Penalty 

Guide does not use the term “willful” at all but rather recommends removal for a first offense of “[i]ntentional disclosure” 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 determination 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 penalty had Ms. Vestal not intended to disclose the information 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 unlawful).

Ms. Vestal also points to Mr. Dubois’s testimony indicating 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 “willful” and “intentional” at various points during these proceedings, 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 disclosure of taxpayer information but as an intentional disclosure.

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16 VESTAL v. TREASURY

of the actual offense,” not on her knowledge that the disclosure 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 testimony aligns with the initial statement he made in the removal letter—that Ms. Vestal “intentionally disclosed 

taxpayer information to [her] individual attorney for personal use,” S. App. 6—an offense warranting removal according 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 removal 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. Vestal’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. Specifically, 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 circumstances was not “so harsh and unconscionably disproportionate 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

Case: 20-1771 Document: 42 Page: 17 Filed: 06/14/2021