THOMAS G. WROCKLAGE, Petitioner,
DEPARTMENT OF HOMELAND SECURITY, Respondent
Petition for review of the Merit Systems Protection Board in No. CH0752110752-I-1.
CHRISTOPHER R. LANDRIGAN, The Brownell Law Firm, PC, of Washington, DC, argued for petitioner. With him on the brief were BONNIE J. BROWNELL and D. ROBERT DEPRIEST. CHRISTOPHER R. LANDRIGAN, The Brownell Law Firm, PC, of Washington, DC, argued for petitioner. With him on the brief were BONNIE J. BROWNELL and D. ROBERT DEPRIEST.
L. MISHA PREHEIM, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and MARTIN F. HOCKEY, Assistant Director.
Before MOORE, REYNA, and TARANTO, Circuit Judges.
Moore, 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 (Agency's) removal of Mr. Wrocklage from his position as Customs and Border Protection (CBP) Officer. Wrocklage v. Dep't of Homeland Sec., No. CH-0752-11-0752-I-1, 119 M.S.P.R. 491 (M.S.P.B. 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.
Mr. Wrocklage served as a CBP Officer for twelve years. On September 28, 2009, Mr. Wrocklage was working 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 innocent and had been wrongly charged. Mr. Wrocklage attached the TECS report to his email. He carbon copied 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 inadvertently 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. Wrocklage'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 attachment 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 position for (1) improper possession of TECS information (Charge 1), (2) unauthorized disclosures of TECS information (Charge 2), and (3) lack of candor ...