Border Protection Officer's Termination Too Severe for Seriousness of Accidental Violation: Federal Circuit | Practical Law

Border Protection Officer's Termination Too Severe for Seriousness of Accidental Violation: Federal Circuit | Practical Law

In Wrocklage v. Dep't of Homeland Sec., the US Court of Appeals for the Federal Circuit vacated the decision of the Merit Systems Protection Board (MSPB) which had sustained the Department of Homeland Security's (DHS) removal of a Customs and Border Protection (CBP) Officer from his job. The Federal Circuit noted that a federal employee that is removed from his government position can appeal his removal to the MSPB and that an agency that wants to remove the employee has the burden of proving that he engaged in conduct that justifies removal. In addition, the Federal Circuit noted that an employee's stipulation to certain facts is not equivalent to confessing to alleged violations and conceding that a particular penalty is appropriate.

Border Protection Officer's Termination Too Severe for Seriousness of Accidental Violation: Federal Circuit

by Practical Law Labor & Employment
Published on 30 Oct 2014 • USA (National/Federal)
In Wrocklage v. Dep't of Homeland Sec., the US Court of Appeals for the Federal Circuit vacated the decision of the Merit Systems Protection Board (MSPB) which had sustained the Department of Homeland Security's (DHS) removal of a Customs and Border Protection (CBP) Officer from his job. The Federal Circuit noted that a federal employee that is removed from his government position can appeal his removal to the MSPB and that an agency that wants to remove the employee has the burden of proving that he engaged in conduct that justifies removal. In addition, the Federal Circuit noted that an employee's stipulation to certain facts is not equivalent to confessing to alleged violations and conceding that a particular penalty is appropriate.
On October 21, 2014, in Wrocklage v. Dep't of Homeland Sec., the US Court of Appeals for the Federal Circuit vacated the decision of the Merit Systems Protection Board (MSPB) which had sustained the Department of Homeland Security's (DHS) removal of a Customs and Border Protection (CBP) Officer from his job. The Federal Circuit noted that a federal employee that is removed from his government position can appeal his removal to the MSPB and that an agency that wants to remove the employee has the burden of proving that he engaged in conduct that justifies removal. In addition, the Federal Circuit noted that an employee's stipulation to certain facts is not equivalent to confessing to alleged violations and conceding that a particular penalty is appropriate. (No. 2013-3159, (Fed. Cir. Oct. 21, 2014).)

Background

Thomas Wrocklage, a Customs and Border Protection (CBP) Officer for the Department of Homeland Security (DHS), performed a primary CBP inspection of an elderly couple crossing the Canadian border, who declared that they were carrying fruit and vegetables. Another CBP Officer (Hendricks) issued a fine to the couple for failing to declare lemons and seeds. Wrocklage and a colleague contacted their supervisor about the fine issued. Wrocklage took home a copy of the Treasury Enforcement Communication Systems (TECS) report to prepare an email to the Joint Intake Center, in which he reported the day’s events and noted that he believed the couple was wrongly charged. He attached to the email the TECS report, which contained the couple’s personally-identifiable information protected by the Privacy Act (including social security numbers). Wrocklage claimed that after sending his intake center email, he realized that he had inadvertently sent the TECS report to a staff member in a Senator's office. He contacted her immediately and she complied with his request to delete the report without reading it. In addition, he immediately reported his mistake to the DHS.
Following an investigation, the DHS removed Wrocklage from his position with the CBP for:
  • Improperly possessing the TECS report with the couple’s confidential personal information.
  • Inappropriately disclosing the information.
  • A lack of candor during the agency’s investigation.
Wrocklage appealed his removal to the Merit Systems Protection Board (Board), which affirmed the decision. Wrocklage then appealed his removal to the Federal Circuit.

Outcome

The Federal Circuit reversed all charges against Wrocklage except for the improper possession of confidential documents charge (as Wrocklage did not dispute that he brought the confidential materials home). The Federal Circuit remanded the matter for an appropriate penalty on that lone remaining charge.
In reaching its determination, the Federal Circuit noted that:
  • The penalty of removal cannot be sustained solely on the improper possession of confidential documents charge.
  • The seriousness of Wrocklage's alleged violations was significantly reduced because:
    • Wrocklage self-reported the incident; and
    • no one saw the confidential information in the TECS report.
In reversing the unauthorized disclosure charge against Wrocklage, the Federal Circuit:
  • Noted that Wrocklage stipulated to the facts that the TECS report was attached to the email he sent to the intake center and that the senate staffer who was copied on the email received the report.
  • Criticized the administrative judge (AJ) and the Board for treating Wrocklage’s stipulation to these facts as a confession to the alleged violations and as a concession that he should be removed from his position.
  • Discussed the meaning of a disclosure under the Privacy Act and other courts' interpretations and concluded that since the senate staffer who received the report never actually viewed its contents, it was not “disclosed” within the meaning of the Privacy Act.
The Federal Circuit also reversed the lack of candor charge against Wrocklage because the charge was not supported by substantial evidence.

Practical Implications

This decision highlights the fact that a federal employee that is removed from his government position can appeal his removal to the MSPB. The agency that wants to remove the employee has the burden of proving that he engaged in conduct that justifies the removal. Stipulating to undisputed facts is a common litigation tool that helps streamline the issues that need to be decided in a case. However, stipulating to a fact does not necessarily prove the meaning of the fact or carry the day for a party that has the burden of proving the legal consequences of that fact. An agency still has to prove that the employee’s conduct justifies the severe penalty of removal from government service.