NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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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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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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.”).