Albritton v. Department of Treasury , 287 F. App'x 852 ( 2008 )

NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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
2
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
3
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.”).
4
2008-3075