CBPCourt orders reinstatement of CBP terminated employee, saying termination was unjustified

Customs and Border Protection (CBP) agent Thomas G. Wrocklage has triumphed (Wrocklage v. Department of Homeland Security, CAFC No. 2013-3159) in his effort to return to work following a federal appeals court’s disagreement with how the Merit Systems Protection Board (MSPB) decided his removal appeal. Wrocklage, a 12-year veteran with CBP, was fired following an incident at the Port of Sault Sainte Marie, Michigan where he was serving as Primary Officer in charge of screening travelers.

According to FedSmith, Wrocklage disagreed with his supervisors about a $300 fine issued to an elderly couple, the Millers, for failure to disclose to a second border officer that they had with them some fruits and vegetables. Wrocklage noted to his supervisors that the couple had initially disclosed to him that they had lemons and seeds. On the evening of the incident, Wrocklage submitted a report to the Joint Intake Center and attached a copy of the “Treasury Enforcement Communication System” (TECS) report involving the incident. He stated in his report that the Millers were innocent and should not have been fined.

Wrocklage also accidentally sent a copy of his e-mail to Amy Berglund, an employee in Senator Carl Levin’s (D-Michigan) office. When he realized his mistake, he immediately contacted Berglund and asked her to delete the e-mail and attachment without reading it or saving a copy. Wrocklage then reported the e-mail incident to his supervisors.

Wrocklage’s employment with CBP was soon terminated, and the decision was affirmed by the MSPB, citing three reasons: improper possession of TECS information (as the TECS copy Wrocklage had in his possession included Miller’s social security number, date of birth, address, and license plate number); unauthorized disclosures of TECS information; and lack of candor during the investigation.

On the first charge, that Wrocklage took a copy of the TECS report from his duty station to his home without authorization (to which Wrocklage responded that he had accidentally obtained a wrong copy of the TECS report containing Miller’s information), the court determined that no evidence confirms whether Wrocklage intentionally obtained a wrong copy of the TECS report. Moreover, the court noted, the standard penalty for a first offense of such a charge ranges from a reprimand to 14-day suspension, not termination of employment; therefore MSPB should assess a more appropriate penalty.

The MSPB found that Wrocklage’s e-mail to Berglund violates the Privacy Act, but the appeals court disagreed, saying that merely sending the report did not amount to violation of the Privacy Act. “(D)isclosure (requires) not just transmission, but actual viewing or imminent viewing by another,” the court wrote. Adding that, 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 e-mail and it is therefore not imminently viewable.”

On the charges of lack of candor, the appeals court decided that “substantial evidence does not support” this charge. “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.”