Vestal v. Dep't of the Treasury

• Decision Date: 14 June 2021
• Docket Number: 2020-1771
• Citation: 1 F.4th 1049
• Parties: Sarah VESTAL, Petitioner v. DEPARTMENT OF the TREASURY, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

1 F.4th 1049

Sarah VESTAL, Petitioner

v.DEPARTMENT OF the TREASURY, Respondent

2020-1771

United States Court of Appeals, Federal Circuit.

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.

Before Prost^* , Plager, and Chen, Circuit Judges.

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. DA-0752-19-0497-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 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 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 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 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 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...