                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                       2008-3075



                              SHIRLEY C. ALBRITTON,

                                                             Petitioner,

                                           v.

                        DEPARTMENT OF THE TREASURY,

                                                             Respondent.


      Shirley C. Albritton, of Pine Lake, Georgia, pro se.

      Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Steven J. Gillingham, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                      2008-3075

                              SHIRLEY C. ALBRITTON,

                                                      Petitioner,
                                           v.

                        DEPARTMENT OF THE TREASURY,

                                                      Respondent.


  Appeal from the Merit Systems Protection Board in case no. AT-0752-07-0635-I-1.

                           ___________________________

                              DECIDED: April 14, 2008
                           ___________________________

Before GAJARSA, Circuit Judge, ARCHER, Senior Circuit Judge, DYK, Circuit Judge.

PER CURIAM

      Petitioner Shirley C. Albritton petitions for review from the final decision of the

U.S. Merit Systems Protection Board (“Board”) affirming her removal from her position

as a Tax Examining Technician at the Internal Revenue Service (“IRS”). Albritton v.

Dep’t of the Treasury, AT-0752-07-0635-I-1 (M.S.P.B. Aug. 23, 2007). We affirm.


                                   BACKGROUND

      The IRS removed Albritton from her position for unauthorized access of taxpayer

information, which is referred to by the agency as UNAX. The charge is undisputed.

Albritton acknowledges that she accessed the taxpayer records at issue for personal

reasons. According to Albritton she made the unauthorized accesses in an attempt to
locate her son, who suffers from bipolar disorder, and to locate the ex-husband of her

niece.

         The IRS has a strict policy against UNAX, and employees undergo regular

training in which they are informed that unauthorized access of taxpayer information

violates the IRS Rules of Conduct and federal law. See Taxpayer Browsing Act, Pub. L.

No. 105-35, 11 Stat. 1104 (1997) (codified at 26 U.S.C. § 7213) (making unauthorized

inspection of federal tax returns by federal employees a crime); IRS Guide to Penalty

Determinations, UNAX Penalty Determinations (effective date Nov. 1, 2002) (stating

that penalty for unauthorized access of tax return records without the taxpayer’s

knowledge is removal). Albritton repeatedly signed statements indicating that she had

attended briefings on the IRS’s UNAX policy and that she understood that “willful

unauthorized access or inspection of tax returns and return information can result in

severe penalties including . . . dismissal from employment.”

         The IRS concluded that Albritton’s admitted conduct “seriously impairs the

efficiency of the Federal Service,” noting that “each instance of unauthorized access to

and/or disclosure of taxpayer information could erode the public’s confidence in the IRS

and our ability to fairly administer the tax laws while safeguarding a taxpayers rights.”

The agency took into consideration Albritton’s claim that a medical condition caused her

to make the unauthorized access, but found after considering all the relevant factors

that “removal will promote the efficiency of the Federal service and that a lesser penalty

would be inadequate.” Albritton appealed the decision to the Board. The administrative

judge affirmed the removal, finding that the agency’s deciding official had considered

the appropriate factors under Douglas v. Veterans Admin., 5. M.S.P.R. 280 (1980), and



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2008-3075
that the penalty imposed was within the bounds of reasonableness. Albritton did not

appeal the initial decision to the full Board, and it became final. We have jurisdiction

under 28 U.S.C. § 1295(b)(9).

                                     DISCUSSION

      We must affirm the final decision of the Board unless we determine that it is

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

5 U.S.C. § 7703(c)(1). The Board’s findings of fact must be supported by substantial

evidence. § 7703(c)(2).

      In her petition to this court, Albritton continues to admit her wrongdoing. The only

issue presented is whether the Board imposed an appropriate penalty. “Determination

of an appropriate penalty is a matter committed primarily to the sound discretion of the

employing agency.” Hunt v. Dep’t of Health & Human Servs., 758 F.2d 608, 611 (Fed.

Cir. 1985). Accordingly this court “cannot and will not disturb a penalty unless it is

unauthorized or exceeds the bounds of reasonableness because it is so harsh and

unconscionably disproportionate to the offense that it amounts to an abuse of discretion,

or where the record is devoid of any basis demonstrating reasonableness.” Dominguez

v. Dep’t of Air Force, 803 F.2d 680, 684 (Fed. Cir. 1986).

      Congress has made clear that the unauthorized access to tax payers records is a

serious offense. 26 U.S.C. § 7213. Albritton was aware of the IRS policy concerning

UNAX and knew that any unauthorized access to taxpayer records without the

taxpayer’s permission could result in her removal. While Albritton argues that she only

made the unauthorized accesses in order to help her niece and find her ill son, the

Board did not err in concluding that her personal motives did not mitigate the



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2008-3075
significance of her violation of IRS rules of conduct, nor change the reasonableness of

the penalty imposed.

       Albritton also argues that the penalty was unreasonable because other similarly

situated employees did not receive the same penalty for similar conduct and that she

was singled out because she threatened to report illegal conduct to the IRS

Commissioner. The Board found that there were “compelling differences” between

Albritton’s situation and that of the allegedly similarly situated employee and also

concluded that the allegation of a disparate penalty did not provide a basis for reversal

or mitigation because the punishment was appropriate to the seriousness of the

misconduct. See Fearon v. Dep’t of Labor, 99 M.S.P.R. 428, 434 (2005). We detect no

error in these rulings. 1

       As we agree with the Board that the agency’s penalty was well within the bounds

of reasonableness, the Board’s decision is affirmed.




       1
               To the extent that Albritton is attempting to raise a claim under the
Whistleblower Protection Act, 5 U.S. C. § 1211 et seq., this claim is not properly before
us. Albritton has not alleged that she exhausted her administrative remedies before the
Office of Special Counsel, see Briley v. National Archives & Records Admin., 236 F.3d
1373, 1377 (Fed. Cir. 2001) (“Under 5 U.S.C. § 1214(a)(3), an employee is required to
‘seek corrective action from the Special Counsel before seeking corrective action from
the Board.’), nor did she raise the claim before the Board, see Synan v. Merit Systems
Protection Bd., 765 F.2d 1099, 1101 (Fed. Cir. 1985) (“Petitioner cannot raise before
this court an issue which could have been raised below but which was not.”).



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2008-3075
