Appeals Court Hands Fired DHS Employee His Job Back

Score this recent published decision by the Federal Circuit as a big and clear win for the fired Customs and Border Agent and his legal team. He could not convince the agency, the Administrative Law Judge, or the Merit Systems Protection Board. But that does not matter because he definitely convinced the court that he had been too harshly treated.

A Customs and Border Protection Agent has won his job back thanks to the appeals court’s disagreement with how the Merit Systems Protection Board decided his removal appeal. (Wrocklage v. Department of Homeland Security, CAFC No. 2013-3159 (10/21/14))

Wrocklage had been employed for 12 years when he was fired by the agency on various charges stemming from an incident at the Port of Sault Sainte Marie, Michigan where he was serving as Primary Officer in charge of screening travelers. Apparently Wrocklage was concerned with the fairness of an elderly couple being penalized  $300 for failing to disclose information. He was the first customs officer they spoke to and they told him they had some “fruits and vegetables.” When they were screened by another officer they did not mention this and he fined them when he discovered they had lemons and seeds.  Wrocklage brought the matter to his supervisor’s attention arguing he did not believe the fine was fair under these circumstances since they had disclosed the information to him in the first place.

Wrocklage submitted a report that night from home to the Joint Intake Center and attached a copy of the “Treasury Enforcement Communication System” (TECS) report involving the incident. That report included privacy information on the fined individual, including his social security number, address, license number and birth date. He stated his belief that the travelers were innocent and should not have been fined. Unfortunately Wrocklage sent a copy of his email to a Senate staff member, including the attached report. When he realized what he had done, he claims he immediately contacted the staff member and asked her to delete the attachment without reading it or saving a copy. She assured him she had done so. That same night he reported what had happened to his agency. (Opinion pp. 2-3)

The agency investigated Wrocklage’s actions and eventually removed him, citing three reasons. (See the court’s opinion for more details.)

After the MSPB affirmed Wrocklage’s removal, the appeals court has now reversed and remanded. Basically the court found nothing it liked in how the MSPB handled the appeal. Where the Board interpreted certain stipulations made by Wrocklage in the administrative appeal to work against Wrocklage, the court totally disagreed with the Board’s interpretation of those stipulations.  Where the Board found that Wrocklage’s email copy to the staffer constituted a disclosure in violation of the Privacy Act, the court disagreed, finding that his simply sending the report to the staffer did not amount to a prohibited Privacy Act disclosure, stating “[D]isclosure [requires] not just transmission, but actual viewing or imminent viewing by another.” (pp. 8-9) The court goes on to point out it is “undisputed” in this case “that the record went to one person and was not viewed. It is undisputed that the recipient deleted the email and it is therefore not imminently viewable.”  (p. 9) That logic did in charge two in the case.

As to the third charge involving lack of candor, the court second guesses the MSPB’s fact finding and sides with Wrocklage, holding that “substantial evidence does not support” this charge. (p. 10) Here is what the court specifically said, “Lack of candor is a serious charge that carries with it the possibility of severe penalties…Here, the Agency failed to meet its burden of proof and rebut Mr.
Wrocklage’s explanation of his error.” (p. 11) There goes charge three.

The court did uphold charge one involving improper possession of the TECS information by Wrocklage. However, the court disagrees with the agency’s position that this charge alone sustains removal. The court points out that the record shows that the standard penalty for a first offense is reprimand to 14-day suspension. (p. 12) The court therefore tosses out the case and remands it to the MSPB to determine the appropriate penalty, after making clear that removal will not cut it. (p. 12)

Wrocklage v DHS

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.