James Thomas Ryan v. Department of Defense

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES THOMAS RYAN,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2023-2238
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-14-0323-B-1.
______________________
Decided: April 8, 2024
______________________
J AMES RYAN, Bel Air, MD, pro se.
J OSEPH ALAN P IXLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, T ARA K. HOGAN, P ATRICIA M. M C CARTHY .
______________________
Case: 23-2238 Document: 16 Page: 1 Filed: 04/08/2024

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RYAN v. DEFENSE 2
Before M OORE, Chief Judge, L OURIE, Circuit Judge, and
ALBRIGHT , District Judge.1
P ER CURIAM .
James Thomas Ryan appeals from a final order of the
Merit Systems Protection Board (“the Board”) denying his
petition for review and affirming the denial of his request
for corrective action under the Whistleblower Protection
Act, 5 U.S.C. § 2302(b)(8) (“WPA”). See Ryan v. Dep’t of
Def., No. DC-1221-14-0323-B-1 (M.S.P.B. May 30, 2023)
(“Final Order”), R.A. 1–26; Ryan v. Dep’t of Def., No. DC-
1221-14-0323-B-1 (M.S.P.B. July 12, 2017) (“Initial Deci-
sion”), R.A. 27–50.2
For the following reasons, we affirm.
BACKGROUND
From February 2009 until his removal in June 2017,
Ryan was employed as a police officer by the Pentagon
Force Protection Agency (“the Agency”).3 Throughout 2014
and 2016, Ryan filed a series of individual right of action
(“IRA”) appeals with the Board, alleging that the Agency
had taken several adverse personnel actions against him
in retaliation for various whistleblowing disclosures that
he had made. See Initial Decision, R.A. 27, 31. His appeals
were consolidated, and six of the eight disclosures forming
the basis of Ryan’s appeals were dismissed for lack of juris-
diction. See id. at 28, 31. We say no more as to those six
disclosures, the dismissal of which Ryan does not challenge
1 Honorable Alan D Albright, District Judge, United
States District Court for the Western District of Texas, sit-
ting by designation.
2 “R.A.” refers to the appendix filed with Respond-
ent’s brief.
3 We affirmed Ryan’s removal from service in Ryan
v. Department of Defense, 760 F. App’x 990 (Fed. Cir. 2019).
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RYAN v. DEFENSE 3
on appeal. We focus instead on the two disclosures over
which the Board concluded that it did have jurisdiction: a
January 4, 2013 memorandum submitted to the Agency’s
Office of Professional Responsibility (“OPR”) describing
three incidents of alleged assault, and an April 5, 2013
memorandum submitted to OPR describing an additional
incident of alleged assault. Id. at 31. A hearing to deter-
mine whether Ryan was entitled to corrective action based
on either of those two disclosures was held before an ad-
ministrative judge (“AJ”) on May 4, 2017. Id. at 32.
The first incident, disclosed in Ryan’s January 4, 2013
memorandum, occurred during an honor guard assignment
in or around June or July 2012 at the Raven Rock Moun-
tain Complex in Pennsylvania. Id. at 33–34. Ryan alleged
that a fellow police officer (“the accused officer”) had at-
tempted to embarrass Ryan by intentionally giving him
conflicting commands causing him to be out of step with
the rest of the detail. Id. at 34. According to Ryan, the
accused officer mocked him, making him apprehensive and
distracted from his duties. Id. The AJ concluded that, even
assuming the accused officer had in fact given a false or
conflicting command as Ryan claimed, Ryan could not have
reasonably believed that he was assaulted because he did
not allege that the accused officer intended to cause him
fear of bodily injury. Id. at 35.
The second incident occurred on August 28, 2012, in
Mitchellville, Maryland. Id. According to Ryan, while both
officers were on duty and surrounded by several fellow of-
ficers (including their lieutenant), the accused officer
placed his left hand on Ryan’s chest and pushed him, tell-
ing him to “get out [of] the way” in a taunting manner. Id.
(alteration in original). The AJ concluded that, even as-
suming there was physical contact, Ryan could not have
reasonably believed that the accused officer’s conduct con-
stituted assault. Id. at 36. The AJ reached that conclusion
based on Ryan’s subsequent characterizations of the inter-
action as an affront to his dignity (rather than as a threat
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RYAN v. DEFENSE 4
of bodily harm), the absence of any supporting witnesses
(despite being in the company of several coworkers), and
Ryan’s history of raising unfounded accusations against
coworkers. See id. at 36–37.
The third incident occurred on January 4, 2013, in
Woodbridge, Virginia. Id. at 37. According to Ryan, he had
had an argument with the accused officer over the volume
of the radio in an agency vehicle. Id. When later retrieving
equipment from the rear of that vehicle, the accused officer
allegedly made unnecessary physical contact with Ryan,
laughed, smirked, and said, “[y]ou better leave that alone
or you’ll get smacked.” Id. According to Ryan, that inter-
action made him apprehensive and distracted from his du-
ties. Id. at 37–38. Considering Ryan’s sworn hearing
testimony—characterizing the contact as, among other
things, a “nudge”—as well as the hearing testimony of the
accused officer and other record evidence, the AJ concluded
that Ryan could not have reasonably believed the accused
officer’s conduct constituted assault. Id. at 38–40. The AJ
further found that, even if the physical contact was inten-
tional, nothing in Ryan’s testimony or the evidence sug-
gested that he perceived any threat of bodily harm. See id.
at 40–42 (explaining, for example, that Ryan repeatedly
testified that he was not alarmed or surprised by the ac-
cused officer’s conduct).
The fourth incident of alleged assault, described in
Ryan’s second disclosure at issue, occurred on April 5,
2013. Id. at 42. Ryan alleged that, as he was entering an
agency facility in Arlington, Virginia in plain clothes, the
accused officer, who was on duty and in possession of an
agency firearm, stared at him with a “scorn[ful]/resent-
ful/angry expression on his face.” Id. (alteration in origi-
nal). Ryan alleged that the look he was given was an
attempt by the accused officer to intimidate him with phys-
ical force. Id. Considering all the evidence relating to that
incident, including the Chief of OPR’s memorandum ex-
plaining that the recorded CCTV footage of the incident did
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RYAN v. DEFENSE 5
not corroborate Ryan’s allegations, the AJ concluded that,
even if those allegations were true, Ryan could not have
reasonably believed that any degree of intensity or scorn
he perceived in the accused officer’s expression caused him
to suffer an assault. Id. at 42–44.
Accordingly, because Ryan could not have reasonably
believed that the accused officer’s conduct on any of the
four occasions constituted assault, the AJ held that Ryan’s
disclosures were not protected and that he was not entitled
to relief under the WPA. Id. at 44.
Ryan petitioned for review. The Board denied his peti-
tion, holding that Ryan had not identified any error of fact
or law in the AJ’s decision. Final Order, R.A. 2. Ryan ap-
peals from the Board’s final order. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of the Board’s decision is circumscribed by
statute. We may not reverse a Board decision unless it is
“(1) arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Accordingly, we will generally not over-
turn a Board decision unless it is contrary to law, or it is
not supported by “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
To establish a cause of action for whistleblowing under
the WPA, Ryan must demonstrate by a preponderance of
the evidence that at least one of his disclosures was pro-
tected under 5 U.S.C. § 2302(b)(8). A disclosure is pro-
tected if the employee “reasonably believes” the disclosure
shows “any violation of any law, rule, or regulation[.]” Id.
§ 2302(b)(8)(A)(i).
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RYAN v. DEFENSE 6
Ryan challenges the Board’s conclusion that the evi-
dence does not support a finding that he reasonably be-
lieved that he had disclosed a violation of law, i.e., an
assault. The test for a purported whistleblower’s reasona-
ble belief is an objective one. The question is not whether
Ryan himself subjectively believed the accused officer’s
conduct constituted a violation of law, but whether “a dis-
interested observer with knowledge of the essential facts”
would reasonably conclude that the conduct constituted a
violation. Lachance v. White, 174 F.3d 1378, 1381 (Fed.
Cir. 1999) (emphasis added). Ryan’s “purely subjective
perspective . . . is not sufficient.” Id. Applying that objec-
tive disinterested observer standard, the Board’s conclu-
sions that Ryan could not have reasonably believed that
the accused officer’s conduct on any of the four occasions
amounted to assault were supported by substantial evi-
dence.
Ryan’s primary challenge appears to rest on the defer-
ence that the Board afforded to the AJ’s credibility deter-
minations. See generally Ryan’s Informal Br. at 2. But we
have long held that the presiding official’s (here, the AJ’s)
credibility determinations are “virtually unreviewable.”
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986). Even so, the Board here did not simply accept the
AJ’s credibility determinations out of hand. Rather, it con-
sidered the evidentiary record as a whole and reasoned
that the AJ’s findings, which were “intertwined with issues
of credibility” and Ryan’s demeanor at the hearing, were
afforded “special deference,” which could not be rejected ab-
sent “sufficiently sound” reasons. Final Order, R.A. 17
(first quoting Purifoy v. Dep’t of Veterans Affs., 838 F.3d
1367, 1372–73 (Fed. Cir. 2016); and then quoting Haebe v.
Dep’t of Just., 288 F.3d 1288, 1301 (Fed. Cir. 2002)). The
Board found no such reasons, citing, among other things,
the various inconsistencies in Ryan’s characterizations of
the incidents throughout the proceedings and the lack of
any evidence or testimony corroborating Ryan’s
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RYAN v. DEFENSE 7
representation of the events. See Final Order, R.A. 14–17,
19. We therefore see no error in the Board’s deference to
the AJ’s credibility findings.
Ryan further argues that the Board erred as a matter
of law by construing his disclosures as allegations of as-
sault as opposed to battery. In his view, a “whistleblower
is not obligated to properly label the disclosures,” and the
Board should have recognized that battery is considered an
assault under the relevant state laws. Ryan’s Informal Br.
at 2. At least at common law, however, Ryan’s burden of
establishing battery would have been higher than his bur-
den of establishing assault, as that offense requires more
than a mere threat of bodily injury. See, e.g., Battery,
Black’s Law Dictionary (11th ed. 2019) (requiring an inten-
tional touching). We therefore see no benefit to Ryan in
construing his allegations as the higher offense of battery.
See, e.g., Assault and Battery, Black’s Law Dictionary (11th
ed. 2019) (“Although the term assault and battery is fre-
quently used when a battery has been committed, one who
commits a battery cannot also be punished for committing
an assault, since the lesser offense of assault blends into
the actual battery.” (citation omitted)).
If anything, the Board provided Ryan a more liberal re-
view of the evidentiary record than the AJ, as it not only
considered the common law definition of assault supplied
by the AJ, see Initial Decision, R.A. 35, but also the defini-
tions for assault provided under relevant state law. See
Final Order, R.A. 7–8 (considering Pennsylvania law’s def-
inition of “simple assault” for the first incident); id. at 13–
14 (considering Maryland law’s definition of “second-de-
gree misdemeanor assault” for the second incident); id. at
17 (considering Virginia law’s definition of “assault” for the
third incident). The Board reasonably concluded that,
based on the evidentiary record as a whole, Ryan had failed
to prove—under any of those definitions—that he reasona-
bly believed he had been subjected to an assault, let alone
a battery. And to the extent Ryan maintains that the
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RYAN v. DEFENSE 8
Board’s application of those definitions was still too strict,
we observe that the Board expressly focused on whether
Ryan met the “lower burden of proving second-degree as-
sault” under Maryland law, as opposed to that of first-de-
gree assault which requires causing or attempting to cause
serious physical injury. Id. at 14 n.11 (quoting Md. Code
Ann., Crim. Law § 3-202) (emphases added). We therefore
reject Ryan’s assertion that the Board improperly used his
“labeling of the disclosures as an assault” to deny him re-
lief. Ryan’s Informal Br. at 2.
For at least these reasons, we hold that the Board’s
conclusion that Ryan failed to prove by a preponderance of
the evidence that his January 4, 2013 and April 5, 2013
disclosures were protected was not contrary to law and was
supported by substantial evidence. The Board therefore
did not need to consider whether those disclosures were a
contributing factor in the alleged adverse personnel ac-
tions, or whether the Agency would have taken those ac-
tions in the absence of Ryan’s disclosures. See 5 U.S.C.
§ 1221(e)(1)–(2).
CONCLUSION
We have considered Ryan’s remaining arguments and
find them unpersuasive. Accordingly, the Board’s final or-
der denying Ryan’s petition for review is affirmed.
AFFIRMED
COSTS
No costs.
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