  United States Court of Appeals
      for the Federal Circuit
                ______________________

             THOMAS G. WROCKLAGE,
                   Petitioner,

                           v.

    DEPARTMENT OF HOMELAND SECURITY,
                Respondent.
           ______________________

                      2013-3159
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. CH0752110752-I-1.
                ______________________

               Decided: October 21, 2014
                ______________________

   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 Depart-
ment of Justice, of Washington, DC, argued for respond-
ent. With him on the brief were STUART F. DELERY,
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and MARTIN F. HOCKEY, Assistant Director.
                 ______________________
2                                         WROCKLAGE   v. DHS



    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 (Agen-
cy’s) removal of Mr. Wrocklage from his position as Cus-
toms and Border Protection (CBP) Officer. Wrocklage v.
Dep’t of Homeland Sec., No. CH-0752-11-0752-I-1
(M.S.P.B. June 12, 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.
                       BACKGROUND
    Mr. Wrocklage served as a CBP Officer for twelve
years. On September 28, 2009, Mr. Wrocklage was work-
ing 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 inno-
cent and had been wrongly charged. Mr. Wrocklage
attached the TECS report to his email. He carbon copied
WROCKLAGE   v. DHS                                       3



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 inad-
vertently 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. Wrock-
lage’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 attach-
ment 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 po-
sition for (1) improper possession of TECS information
4                                        WROCKLAGE   v. DHS



(Charge 1), (2) unauthorized disclosures of TECS infor-
mation (Charge 2), and (3) lack of candor during the
investigation (Charge 3). The Board affirmed.
    This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
                       DISCUSSION
     We must affirm the Board’s decision unless it is (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” McLaughlin v. Office of Pers.
Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004). We review
questions of law de novo. Welshans v. U.S. Postal Serv.,
550 F.3d 1100, 1102 (Fed. Cir. 2008).
        I. Improper Possession of TECS Information
                      (Charge 1)
    Charge 1 alleged that Mr. Wrocklage took a copy of
the TECS report from his duty station to his home with-
out authorization. The charge specified that the TECS
report contained Mr. Miller’s personally identifiable
information. Neither the Administrative Judge (AJ) nor
the Board made any factual findings concerning whether
Mr. Wrocklage intentionally removed the TECS report.
Mr. Wrocklage admits that he took the TECS report home
and does not dispute Charge 1 on appeal.
         II. Unauthorized Disclosure (Charge 2)
                 1. Stipulation to Charge 2
    Charge 2 alleged that Mr. Wrocklage copied Ms. Ber-
glund on an email having the TECS report as an attach-
ment. It noted that the TECS report contained Mr.
Miller’s protected personal information and stated that
WROCKLAGE   v. DHS                                        5



Mr. Wrocklage was “not authorized to disclose this infor-
mation to Ms. Berglund.” During an oral reply to the
Agency regarding the proposed removal, Mr. Wrocklage’s
Union representative stated that “the Union does not
dispute that the Agency will likely be able to prove the
charges of improper possession of TECs information and
unauthorized disclosure of TECs information.” J.A. 45.
The deciding official at the Agency found that “there is no
factual dispute regarding either charge 1 or charge 2.”
J.A. 56. Mr. Wrocklage appealed his removal to the
Board. The AJ sustained Charge 2 indicating that the
parties had “stipulated to the factual accuracy of this
charge.” J.A. 119. As the Board explained, Mr. Wrock-
lage argued that “the administrative judge erroneously
treated his stipulation to the underlying facts regarding
his disclosure as a stipulation to the legal conclusion that
his actions were unauthorized.” J.A. 9. The Board none-
theless found that when Mr. Wrocklage “stipulated to the
factual circumstances as stated in charges one and two,”
the charges could be sustained. J.A. 9. We do not agree.
    As an initial matter, neither the statute nor the regu-
lations governing appeals to the Board limit the defenses
that an employee can raise to only those raised before the
Agency. Thus, Mr. Wrocklage is free to argue his inter-
pretation of “disclosure” to the Board regardless of wheth-
er he made this argument to the Agency during its
determination of what action to take against him. It is
not waived when presented for the first time to the Board.
    On appeal, the government argues that Mr. Wrock-
lage conceded Charge 2 and that therefore the agency did
not need to demonstrate that any disclosure actually
occurred. Resp. Br. 11. The government points to two
purported concessions. First, the government relies upon
a statement in a status conference with the administra-
tive judge that “the parties stipulated to the factual
accuracy of this charge.” Resp. Br. at 10. We do not
interpret this as a concession that Charge 2 has been
6                                         WROCKLAGE   v. DHS



established. It is correct that parties in a Merit Systems
Protection Board proceeding “may stipulate to any matter
of fact.” 5 C.F.R. § 1201.63. Mr. Wrocklage stipulated to
the facts of Charge 2 – that he sent the email with the
TECS report attached. However, stipulating to the un-
derlying facts does not satisfy the Agency’s burden where,
as in this case, Mr. Wrocklage was contesting whether
those facts gave rise to a violation. In his Brief in Support
of Appellant’s Defense filed with the Board, Mr. Wrock-
lage argued that “TECS information was never disclosed .
. . the information in question must be imparted before a
disclosure can be complete. . . . Since Ms. Berglund did
not view the attachments, the information contained
therein was never imparted and there was never the
disclosure necessary to trigger the Privacy Act.” J.A. 116.
Stipulating to the facts is not a concession to the charge
that the conduct constituted an unauthorized disclosure,
which requires a legal analysis. The Board’s finding of
“unauthorized disclosure” in this case depends on whether
the conduct constituted a disclosure under the Privacy
Act, 5 U.S.C. § 552a(b).
    The second “concession,” according to the government,
came during Mr. Wrocklage’s deposition when he charac-
terized what his Union representative had said at the oral
hearing before the Agency prior to the initiation of the
Board appeal. Resp. Br. at 10. We agree with Mr. Wrock-
lage that his deposition testimony is not a concession that
his conduct constituted an unauthorized disclosure. Mr.
Wrocklage’s testimony was not that he was conceding
Charge 2 before the Board, but rather his interpretation
of what his Union representative had stated to the Agency
before it had even decided to remove him. This is not a
concession which prevents him from disputing Charge 2
in his Board appeal.
WROCKLAGE   v. DHS                                         7



              2. Transmission as a “Disclosure”
    The Board also found that on the merits the Agency
had proven Charge 2 because Mr. Wrocklage’s transmis-
sion of the TECS report constituted an unauthorized
disclosure. It found that Mr. Wrocklage’s transmission of
the TECS report to Ms. Berglund constituted a “disclo-
sure” in violation of the Privacy Act despite the fact that
Ms. Berglund did not view the TECS report and deleted it
from her possession. J.A. 4. The Board defined disclosure
as the act of sending, “[T]he disclosure, or violation,
occurred when the appellant sent the e-mail message to
Bergland [sic].” J.A. 4.
    The government argues that the Board correctly
found Mr. Wrocklage’s transmission of the TECS report to
Ms. Berglund constitutes a “disclosure.” It argues that a
“transfer” of a record containing protected information
constitutes a prohibited “disclosure,” and that the act of
emailing the TECS report is therefore a “disclosure.”
Resp. Br. 11–12 (citing Office of Management and Budget
Circular No. A-108, Privacy Act Implementation: Guide-
lines and Responsibilities, 40 Fed. Reg. 28,948, 28,953
(July 9, 1975) (“A disclosure may be either the transfer of
a record or the granting of access to a record.”)). It also
relies upon 5 C.F.R. § 297.102 defining “disclosure” to
mean “providing personal review of a record, or a copy
thereof, to someone other than the data subject or the
data subject’s authorized representative” and argues that
the term “providing” means “to make [something] availa-
ble: to supply.” Resp. Br. 12. The government further
asserts that concluding that a “disclosure” did not occur in
this case would cause a “host of problems.” Id. at 14.
Specifically, it asserts that such a holding would effective-
ly allow transmission of documents containing protected
information so long as the recipient only views those
portions free of protected information, and would encour-
age more widespread transmission of documents contain-
ing protected information. Id.
8                                         WROCKLAGE   v. DHS



    We do not agree. Mr. Wrocklage’s transmission of the
TECS report to Ms. Berglund does not constitute a “dis-
closure” because the undisputed facts of this case are that
Ms. Berglund never viewed the TECS report. The Privacy
Act does not define the term “disclosure.” See 5 U.S.C.
§ 552a(a). However, other courts have interpreted this
language in a persuasive manner. In Luster v. Vilsack,
the Tenth Circuit adopted the definition of disclosure
requiring “personal review” by an unauthorized recipient
as set forth in 5 C.F.R. § 297.102 to reject a Privacy Act
violation claim. 667 F.3d 1089, 1098 (10th Cir. 2011).
There, the court concluded that no “disclosure” occurred
where a document containing protected information was
transmitted to a fax machine but there was no evidence
that any unauthorized person actually viewed it. Id.
Similarly, in Schmidt v. United States Dep’t of Veterans
Affairs, the court defined the term “disclose” as “the
placing into the view of another information which was
previously unknown” and concluded that there was no
Privacy Act violation where there was no evidence that
anyone actually viewed the protected information. 218
F.R.D. 619, 630–31 (E.D. Wis. 2003). Most recently, in In
re Science Applications International Corp. Backup Tape
Data Theft Litigation, the court adopted from Privacy Act
authorities what is a “common-sense intuition: If no one
has viewed your private information (or is about to view it
imminently), then your privacy has not been violated.” --
F. Supp. 2d --, 2014 WL 1858458, at *9 (D.D.C. May 9,
2014). On that basis, the court denied standing to most of
the plaintiffs where a thief had acquired tapes containing
protected data but there was no allegation, and it was
entirely speculative, that the thief had actually viewed
their information. Id. We are persuaded that these cases
articulate the correct interpretation of disclose or disclo-
sure as requiring not just transmission, but actual view-
WROCKLAGE   v. DHS                                       9



ing or imminent viewing by another. 1 Of course the fact
that the record was viewed, like other facts, only needs to
be established by a preponderance of the evidence. This
would not seem to require identifying a specific viewer. It
would be enough to show that someone more likely than
not viewed the material. The undisputed facts of this
case, however, are that the record went to one person and
was not viewed. It is undisputed that the recipient delet-
ed the email and it is therefore not imminently viewable.
    While it is true that Mr. Wrocklage transmitted the
TECS report to Ms. Berglund and she received it, it is
undisputed that she never viewed it. There was therefore
no “disclosure.” 2 We conclude that Charge 2 is not sup-
ported by substantial evidence.
              III. Lack of Candor (Charge 3)
    Charge 3 consisted of two specifications. The first
specification charged that Mr. Wrocklage lacked candor in
stating that he copied Ms. Berglund “in error” and that it
“was a mistake due to the stress of the situation.” The
second specification charged that Mr. Wrocklage failed to



   1    Because there was no viewing of the TECS report
at all, this case does not raise the question whether a
“record” is “disclosed” under the Privacy Act once part of
it is actually viewed. This case does not present the
government’s concern about information-specific viewing
within a single document.
    2   Because we reverse the Board’s decision with re-
spect to charges 2 and 3, and vacate the penalty of remov-
al, see infra pp. 9–13, there is no need at this time to
determine whether the emails Mr. Wrocklage sent to Ms.
Berglund constitute protected disclosures under the
Whistleblower Protection Act, and whether the Agency’s
removal of Mr. Wrocklage is a prohibited personnel action
within the meaning of that Act.
10                                      WROCKLAGE   v. DHS



be forthcoming by stating that he did not recall how he
obtained the TECS report on the day in question. The AJ
sustained the Agency’s finding that Mr. Wrocklage lacked
candor, holding that preponderant evidence supported
specifications 1 and 2. J.A. 119–21. The AJ found that
Mr. Wrocklage’s contention that he “did not intend to
include Ms. Berglund” on the email was “not credible.”
J.A. 120. The AJ agreed with the Agency investigator
that Mr. Wrocklage’s transmission of the email to Ms.
Berglund “was not in error” because he sent the email to
Ms. Berglund’s personal attention. Id. The AJ also found
that Mr. Wrocklage’s statement that he could not “recall”
where he received the TECS report after the Agency
advised him that the TECS report sent to Ms. Berglund
was printed from Officer LaLonde’s computer was “inher-
ently incredible.” J.A. 120–21. The AJ concluded that
Mr. Wrocklage’s statement that he could not recall how he
came into possession of the TECS report lacked credibility
because Mr. Wrocklage knew the seriousness of violating
the prohibition against removing TECS documents. J.A.
121. The Board affirmed. J.A. 8–9.
    We agree with Mr. Wrocklage that substantial evi-
dence does not support the lack of candor charge concern-
ing Mr. Wrocklage’s transmission of the TECS report to
Ms. Berglund. The AJ’s decision finds only that Mr.
Wrocklage lacked credibility in alleging that he “did not
intend to include Ms. Berglund in the mailing.” J.A. 120.
But Mr. Wrocklage explained that he had intended to
include Ms. Berglund on his email complaint to the Joint
Intake Center. He explained that after drafting the
email, he spoke with a representative of the Joint Intake
Center who instructed him to attach the TECS report to
the email, and he realized after he had sent multiple
emails containing the TECS information that Ms. Ber-
glund was carbon copied on the email. J.A. 68. Indeed, in
an April 15, 2010 sworn statement completed during the
Agency’s investigation, Mr. Wrocklage explained that
WROCKLAGE   v. DHS                                    11



when he discovered Ms. Berglund “was accidentally cc’d
on the distribution list containing CBP sensitive infor-
mation” he immediately asked Ms. Berglund to delete the
TECS report. J.A. 35 (emphasis added). Lack of candor is
a serious charge that carries with it the possibility of
severe penalties. Bloom v. McHugh, 828 F. Supp. 2d 43,
55 (D.D.C. 2011). Here, the Agency failed to meet its
burden of proof and rebut Mr. Wrocklage’s explanation of
his error. We therefore find that substantial evidence
does not support this specification of Charge 3.
    The lack of candor specification concerning Mr.
Wrocklage’s statements about where he received the
TECS report is similarly unsupported by substantial
evidence. Mr. Wrocklage testified that he had printed out
the TECS report himself and taken it to Officer Price to
complain about the fine levied against the Millers. J.A.
61–63, 92. Officer LaLonde testified that he had likewise
printed out the TECS report and taken it to Officer Price
to complain that the fine against the Millers had been
unwarranted. J.A. 85.
    The statement that Mr. Wrocklage made which the
AJ found lacked candor was his response that he could
“not recall” whether he had obtained the TECS report
from Officer LaLonde. Mr. Wrocklage explained that he
said he could not recall because despite having printed
out the TECS report himself, Internal Affairs showed him
that the copy which he forwarded had in fact been printed
by Officer LaLonde. J.A. 61–63, 91–92. As the AJ
acknowledged, Mr. LaLonde was equally perplexed at how
Mr. Wrocklage had the TECS printout that had originat-
ed from his computer. J.A. 120. After being presented
with this evidence Mr. LaLonde likewise testified that he
could not “recall” how this happened. Both men were
justifiably confused and presented consistent, unrebutted
testimony. Later both men testified that they had each
given their TECS reports to Officer Price and that it is
possible when Officer Price returned the reports to them
12                                        WROCKLAGE   v. DHS



they were mixed up. J.A. 85, J.A. 92. In light of these
facts, the Agency’s conclusion that Mr. Wrocklage lacked
candor when he stated that he did not recall whether the
report he submitted had originated from Officer LaLonde
lacks substantial evidence support. We therefore reverse
the Board’s decision sustaining the finding of lack of
candor.
                 IV. Penalty of Removal
     We reverse all of the charges against Mr. Wrocklage
except Charge 1: Improper Possession of TECS Infor-
mation. In light of the significant change in number and
seriousness of sustained charges, we vacate the penalty of
removal and remand for reconsideration of the appropri-
ate penalty. See Guise v. Dep’t of Justice, 330 F.3d 1376,
1381 (Fed. Cir. 2003). We disagree with the government
that the penalty of removal can be sustained on Charge 1
alone based on the record in this case. Neither the AJ nor
the Board made any findings concerning removal on the
basis of that charge alone. In fact, the evidence shows
that the standard penalty for a first offense of this nature
is “written reprimand to 14-day suspension.” Moreover,
there were no factual findings concerning whether Mr.
Wrocklage intentionally took the TECS report home,
which is a proper consideration in a Douglas Factors
analysis. See Douglas v. Veterans Admin., 5 M.S.P.R.
280, 305–06 (1981). Finally, Mr. Wrocklage’s immediate
self-reporting of his conduct and the fact that no one saw
the information contained in the TECS report are factors
that significantly reduce the seriousness of the violation
and militate in favor of a lesser penalty. See id.
                       CONCLUSION
    Because the charges of unauthorized disclosure and
lack of candor are not supported by substantial evidence,
we vacate and remand for a determination of the appro-
priate penalty on the basis of the sole remaining charge:
improper possession of TECS information.
WROCKLAGE   v. DHS                  13



             VACATED AND REMANDED
   Costs to Appellant.
