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Wrocklage v DHS

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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.
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    United States Court of Appeals for the Federal Circuit  ______________________ THOMAS G. WROCKLAGE,    Petitioner,   v.   DEPARTMENT OF HOMELAND SECURITY,   Respondent.    ______________________ 2013-3159  ______________________ Petition for review of the Merit Systems Protection Board in No. CH0752110752-I-1.  ______________________ Decided: October 21, 2014  ______________________ C HRISTOPHER R.   L  ANDRIGAN , The Brownell Law Firm, PC, of Washington, DC, argued for petitioner. With him on the brief were B ONNIE J.   B ROWNELL  and   D.   R OBERT D E P RIEST .   L.   M ISHA P REHEIM , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depart-ment of Justice, of Washington, DC, argued for respond-ent. With him on the brief were S TUART F.   D ELERY  ,  Assistant Attorney General, R OBERT E.   K  IRSCHMAN ,   J R ., Director, and M  ARTIN F.   H OCKEY  , Assistant Director.  ______________________    WROCKLAGE  v. DHS  2 Before M OORE ,   R EYNA  ,   and T  ARANTO ,   Circuit Judges. M OORE , Circuit Judge . Thomas G. Wrocklage appeals from the final decision of the Merit Systems Protection Board (Board) which sustained the Department of Homeland Security’s (Agen-cy’s) removal of Mr. Wrocklage from his position as Cus-toms and Border Protection (CBP) Officer. Wrocklage v.  Dep’t of Homeland Sec. , No. CH-0752-11-0752-I-1 (M.S.P.B. June 12, 2013) ( Final Decision ). Because the Board’s decision is not supported by substantial evidence and is not in accordance with law, we vacate  and remand . B  ACKGROUND  Mr. Wrocklage served as a CBP Officer for twelve years. On September 28, 2009, Mr. Wrocklage was work-ing as a Primary Officer in charge of screening travelers entering the United States through the Port of Sault Sainte Marie, Michigan. Mr. Wrocklage was the first CBP Officer to screen an elderly couple, the Millers, who declared that they were carrying “fruits and vegetables” during primary CBP inspection. However, at a secondary inspection point, CBP Officer Hendricks issued a $300 fine to the Millers for failing to declare lemons and seeds. Mr. Wrocklage and at least one additional officer, Officer LaLonde, contacted their supervisor, Officer Price, about the propriety of the fine. That same night, Mr. Wrocklage took home a copy of the Treasury Enforcement Communication System (TECS) report reflecting the fine issued to the Millers. The TECS report included Mr. Miller’s social security number, date of birth, address, and license plate number. In an email to the Joint Intake Center associated with the CBP, Mr. Wrocklage reported the details of the day’s events and stated that he believed the Millers were inno-cent and had been wrongly charged. Mr. Wrocklage attached the TECS report to his email. He carbon copied  WROCKLAGE  v. DHS  3  Amy Berglund, an employee in Senator Carl Levin’s office, on his email complaint. Within hours of sending the email, Mr. Wrocklage realized that the TECS report had been attached to the email which he copied to Ms. Berglund. He immediately contacted her, and in response to his request, Ms. Berglund deleted Mr. Wrocklage’s emails before opening and reading the attached TECS report. Mr. Wrocklage also immediately self-reported to the Agency his transmission of the TECS report to Ms. Berglund that same night, explaining that he had inad-vertently sent the TECS report to Ms. Berglund in his haste to expeditiously forward the TECS report to the Joint Intake Center. The CBP instituted an investigation into Mr. Wrock-lage’s transmission of the TECS report to Ms. Berglund which ultimately resulted in his removal from his position as a CBP Officer. The Agency determined that the copy of the TECS report sent to Ms. Berglund had been printed by Officer LaLonde. Confronted with this information, Mr. Wrocklage told the agency that he “d[id] not recall” where he obtained the TECS report. Both Mr. Wrocklage and Officer LaLonde explained that on September 28, they both printed off copies of the TECS report and jointly presented the copies to their supervisor, Officer Price. They explained that it was possible that the copies were switched in the process, and it was possible that Officer Price returned Officer LaLonde’s copy to Mr. Wrocklage, and vice versa. Mr. Wrocklage also repeatedly told the  Agency that he mistakenly sent the TECS report to Ms. Berglund. He explained that, after he drafted the email, he spoke with a representative at the Joint Intake Center who told him to include the TECS report as an attach-ment to the email. In a hurry to send the email, he forgot that he had already carbon copied Ms. Berglund on the email. The Agency removed Mr. Wrocklage from his CBP po-sition for (1) improper possession of TECS information    WROCKLAGE  v. DHS  4 (Charge 1), (2) unauthorized disclosures of TECS infor-mation (Charge 2), and (3) lack of candor during the investigation (Charge 3). The Board affirmed. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). D ISCUSSION  We must affirm the Board’s decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without proce-dures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Office of Pers. Mgmt. , 353 F.3d 1363, 1369 (Fed. Cir. 2004). We review questions of law de novo. Welshans v. U.S. Postal Serv. , 550 F.3d 1100, 1102 (Fed. Cir. 2008). I. Improper Possession of TECS Information (Charge 1) Charge 1 alleged that Mr. Wrocklage took a copy of the TECS report from his duty station to his home with-out authorization. The charge specified that the TECS report contained Mr. Miller’s personally identifiable information. Neither the Administrative Judge (AJ) nor the Board made any factual findings concerning whether Mr. Wrocklage intentionally removed the TECS report. Mr. Wrocklage admits that he took the TECS report home and does not dispute Charge 1 on appeal. II. Unauthorized Disclosure (Charge 2) 1.   Stipulation to Charge 2 Charge 2 alleged that Mr. Wrocklage copied Ms. Ber-glund on an email having the TECS report as an attach-ment. It noted that the TECS report contained Mr. Miller’s protected personal information and stated that
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