NOTE: This disposition is nonprecedential.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 Li tigation 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 Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Syst ems Protection Board in ca se 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. Albritt on petitions for review from the final decision of the U.S. Merit Systems Protecti on 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 posit ion for unauthorized access of taxpayer information, which is referred to by the agency as UNAX. The charge is undisputed. Albritton acknowledges that she accessed t he taxpayer records at issue for personal reasons. According to Albritton she made t he unauthorized accesses in an attempt tolocate her son, who suffers from bipolar di sorder, and to locate the ex-husband of her niece. The IRS has a strict policy agai nst UNAX, and employees undergo regular training in which they are in formed 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 statem ents indicating that she had attended briefings on the IRS’s UNAX poli cy and that she understood that “willful unauthorized access or inspection of tax retu rns and return information can result in severe penalties including . . . dismissal from employment.” The IRS concluded that Albritton’s adm itted conduct “seriously impairs the efficiency of the Federal Service,” noting t hat “each instance of unauthorized access to and/or disclosure of taxpayer information c ould 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 a fter considering all the relevant factors that “removal will promote the efficiency of the Federal service and that a lesser penalty would be inadequate.” Albritt on appealed the decision to the Board. The administrative judge affirmed the removal, find ing that the agency’s decidin g official had considered the appropriate factors under Douglas v. Veterans Admin. , 5. M.S.P.R. 280 (1980), and

2 2008-3075that 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 th e 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 c ontinues to admit her wrongdoing. The only issue presented is whether t he Board imposed an appropr iate penalty. “Determination of an appropriate penalty is a matter committ ed 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 bo unds 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 an y 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. Albritt on was aware of the IR S policy concerning UNAX and knew that any un authorized access to taxpayer records without the taxpayer’s permission could resu lt in her removal. While Al britton 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 he r personal motives did not mitigate the

3 2008-30754 2008-3075 significance of her violation of IRS rule s 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 simila rly situated employee and also concluded that the all egation 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 Boar d that the agency’s penalty wa s well within the bounds of reasonableness, the Board’s decision is affirmed.

1 To the extent that Albritton is a ttempting 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 admini strative 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 rais e 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.”).