                          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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
