FEDweek

Court Finds No Unauthorized Disclosure, Reverses Firing

The U.S. Court of Appeals for the Federal Circuit recently reversed a final decision by the Merit Systems Protection Board which had upheld the dismissal of a Customs and Border Protection officer. Wrocklage v. DHS, Appeal No. 1:087-cv-01590 (October 21, 2014). Officer Wrocklage and a colleague had protested to their supervisor an unfair $300 fine assessed against travelers entering the U.S. at the Canadian Border. Wrocklage further protested the fine in an online Joint Intake Center(JIC) hotline complaint. The JIC had requested a copy of the fine, so Wrocklage took home and attached to the JIC hotline complaint a copy of the “TECS” (Treasury Enforcement Communications System) report documenting the fine.

The TECS report contained the couple’s personal information, including their dates of birth and social security numbers. Wrocklage also sent a copy of the JIC email to a U.S. Senate staff member.Hours later Wrocklage realized he had inadvertently included the TECS report containing personal information in the email to the Senate staffer, contacted her, and she immediately deleted the attachment without reading it. Wrocklage promptly self-reported to his supervisor his inadvertent transmission of the TECS report to the staffer.

CBP launched an investigation of Wrocklage’s transmission of the TECS report and fired him on charges of improper possession of the TECS report, unauthorized disclosure, and lack of candor during the investigation. The Board sustained the removal.

The court of appeals concluded that the latter two charges were not supported by the evidence and reversed and remanded for a penalty consistent with the less serious first charge, improper possession of a document. As to the second charge, the court’s key holding was that there was no unauthorized “disclosure” of private information if a recipient never views the information, i.e. if the information was never “imparted.”Here, because the staffer never opened the email, the court ruled that there was no “disclosure” and therefore no Privacy Act violation.

The court also made two additional important legal points concerning the second charge. First, the MSPB allows appellants to raise new defenses not raised at the agency proceeding. Second, just because an employee stipulates to a fact, that does not mean that the employee also stipulates or concedes the legal conclusion.Here, Wrocklage admitted he took home the TECS report, but that did not mean he conceded that what he did was improper, or constituted misconduct.

With respect to the charge of lack of candor, the court re-examined the circumstances of Wrocklage’s investigative interview in light of confusion surrounding the supervisor’s return of Wrocklage’s and his colleague’s copies of the TECS report, and credited Wrocklage’s testimony that he truly could not recall how he came into possession of the copy of TECS report.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

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