UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS G. WROCKLAGE, DOCKET NUMBER
Appellant, CH-0752-11-0752-M-1
v.
DEPARTMENT OF HOMELAND DATE: April 10, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Bonnie Brownell, Esquire, Washington, D.C., for the appellant.
Chris Yokus, Detroit, Michigan, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This case is before the Board on remand from the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit). The court vacated our prior decision and
instructed us to determine the appropriate penalty to be imposed for the sole
remaining charge. Wrocklage v. Department of Homeland Security, 769 F.3d
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
1363, 1365, 1370-71 (Fed. Cir. 2014); see Wrocklage v. Department of Homeland
Security, MSPB Docket No. CH-0752-11-0752-I-1, Final Order (June 12, 2013)
(hereinafter “Final Order”). For the reasons set forth herein, we ORDER the
agency to cancel the removal action, substitute a 14-day suspension, and restore
the appellant effective July 1, 2011.
BACKGROUND
¶2 The appellant was removed effective July 1, 2011, based on three charges:
Improper Possession of TECS 2 Information (one specification), Unauthorized
Disclosure of TECS Information (one specification), and Lack of Candor (two
specifications). MSPB Docket No. CH-0752-11-0752-I-1, Initial Appeal File
(IAF), Tab 6, Subtabs 4b, 4f. These charges pertained to his allegations that
agency personnel had levied an excessive fine against an elderly couple who
inadvertently failed to declare certain agricultural products when they re-entered
the United States from Canada via the Sault Ste. Marie border crossing. See id.,
Subtab 4g at 14-15.
¶3 The administrative judge affirmed the removal action. IAF, Tab 26, Initial
Decision (ID) at 1, 8. The appellant petitioned the Board for review based in
large part on an affirmative defense of whistleblowing, and the Board affirmed
the initial decision. Final Order at 2, 11. He then appealed to the Federal Circuit.
He did not challenge the Board’s finding as to the first charge, Unauthorized
Disclosure of TECS Information, but did challenge the findings for the second
and third charges. Wrocklage, 769 F.3d at 1366-67, 1370. The court found that
the second and third charges were not supported by substantial
evidence. Id. at 1369-70. The court vacated the penalty of removal and
2
TECS, or the Treasury Enforcement Communication System, is an online database that
allows users to access information relevant to the agency’s law enforcement mission from
several different databases related to law enforcement, inspection, and intelligence. TECS
includes the agency’s information about persons entering the United States from abroad.
Initial Appeal File, Tab 6, Subtab 4f at 1, Tab 12 at 1, 3.
3
remanded the case for reconsideration of the penalty. Id. at 1370-71. Because the
record is well-developed, we may address the issue without further remand.
¶4 When some but not all charges are sustained in a chapter 75 appeal, the
Board will consider carefully whether the sustained charges merited the penalty
imposed by the agency. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 308
(1981). The Board may mitigate the agency’s penalty to the maximum reasonable
penalty so long as the agency has not indicated either in its final decision or in
proceedings before the Board that it desires for a lesser penalty to be imposed if
fewer than all of the charges are sustained. Lachance v. Devall, 178 F.3d 1246,
1260 (Fed. Cir. 1999).
¶5 Although it is by no means an exhaustive list, the Board considers the
following factors to be relevant in penalty determinations: (1) the nature and
seriousness of the offense, and its relation to the employee’s duties, position, and
responsibilities, including whether the offense was intentional or technical or
inadvertent, or was committed maliciously or for gain, or was frequently
repeated; (2) the employee’s job level and type of employment, including
supervisory or fiduciary role, contacts with the public, and prominence of the
position; (3) the employee’s past disciplinary record; (4) the employee’s past
work record, including length of service, performance on the job, ability to get
along with fellow workers, and dependability; (5) the effect of the offense upon
the employee’s ability to perform at a satisfactory level and its effect upon
supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the
same or similar offenses; (7) consistency of the penalty with any applicable
agency table of penalties; (8) the notoriety of the offense or its impact upon the
reputation of the agency; (9) the clarity with which the employee was on notice of
any rules that were violated in committing the offense, or had been warned about
the conduct in question; (10) potential for the employee’s rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job
4
tensions, personality problems, mental impairment, harassment, or bad faith,
malice or provocation on the part of others involved in the matter; and (12) the
adequacy and effectiveness of alternative sanctions to deter such conduct in the
future by the employee or others. Douglas, 5 M.S.P.R. at 305-06.
¶6 Although the agency argued in favor of removal, the court precludes
consideration of that penalty. See Wrocklage, 679 F.3d at 1371. The court noted
that neither the administrative judge nor the Board made any findings regarding a
lesser penalty for the first charge alone. 3 Id. The agency has, however, explained
that the remaining charge is a serious one. See IAF, Tab 6, Subtab 4b at 2. The
appellant received yearly training regarding the security and integrity of the
TECS system, which addressed his responsibility to “protect the privacy of those
individuals whose information is stored herein.” Id. The printout in question
contained identifying information about an individual, including name, social
security number, date of birth, and license plate number. Id.; see id., Subtab 4g
at 17. The agency additionally considered that the appellant had been previously
suspended for 21 days for other misconduct. Id., Subtab 4b at 2; see id.,
Subtab 4h.
¶7 The court noted, however, that the administrative judge made no findings
regarding whether the appellant intentionally took the TECS reports home, which
is a proper consideration under the Douglas factors. Wrocklage, 769 F.3d
at 1371; see Douglas, 5 M.S.P.R. at 305-06. The court also noted that the Board
should consider the appellant’s self-reporting of his conduct as a mitigating
factor. Wrockage, 769 F.3d at 1371. The appellant’s length of service and
successful performance record are also mitigating factors. See IAF, Tab 6,
Subtab 4b at 2.
¶8 As the court explained, the agency’s Table of Offenses and Penalties shows
a range of penalties from a written reprimand to a 14-day suspension for a first
3
Indeed, the agency argued before the administrative judge that each charge
independently supported the penalty of removal. See IAF, Tab 24 at 24.
5
offense such as this one. See IAF, Tab 6, Subtab 4k at 10. Although the table is
not binding in these circumstances, 4 we believe that it provides useful guidance
here. The appellant’s misconduct was serious. Even if the agency did not prove
intentional misconduct, users of federal information systems that include
personally-identifiable information bear a great responsibility for protecting such
information. Although the appellant’s offense is his first one of this nature, he
has been disciplined previously. Accordingly, consistent with agency guidance,
we find that a 14-day suspension is the maximum reasonable penalty under the
circumstances.
ORDER
¶9 We ORDER the agency to cancel the removal action and substitute a 14-day
suspension and to restore the appellant effective July 1, 2011. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶10 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
4
The Table of Offenses and Penalties states that it “serves as a guide to managers,
supervisors, and practitioners in assessing the appropriate penalties for common types
of misconduct,” but is “not a set of mandatory rules” and “does not relieve supervisors
and managers of the responsibility of using good judgment when applying it to
discip linary situations.” IAF, Tab 6, Subtab 4k at 1. If an agency’s table of penalties
was not issued as a formal regulation, it b inds the agency only if the circumstances,
including whether the agency treated it as binding, ind icate that the agency intended to
be bound by it. The primary consideration in that determ ination is whether the text
itself indicates that it was intended to be binding. Farrell v. Department of the I nterior,
314 F.3d 584, 590-91 (Fed. Cir. 2002).
6
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶11 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶12 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶13 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
7
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
8
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if app licable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work durin g the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicab le) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.