Case: 23-2238 Document: 16 Page: 1 Filed: 04/08/2024
`
`NOTE: This disposition is nonprecedential.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
`______________________
`
`JAMES RYAN, Bel Air, MD, pro se.
`
`
` JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by BRIAN M.
`BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.
` ______________________
`
`
`

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`Case: 23-2238 Document: 16 Page: 2 Filed: 04/08/2024
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`RYAN v. DEFENSE
`
`Before MOORE, Chief Judge, LOURIE, Circuit Judge, and
`ALBRIGHT, District Judge.1
`
`PER 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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`Case: 23-2238 Document: 16 Page: 3 Filed: 04/08/2024
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`RYAN v. DEFENSE
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`3
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`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
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`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
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`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).
`DISCUSSION
`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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`Case: 23-2238 Document: 16 Page: 6 Filed: 04/08/2024
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`RYAN v. DEFENSE
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`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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`Case: 23-2238 Document: 16 Page: 7 Filed: 04/08/2024
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`RYAN v. DEFENSE
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`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
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`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.
`
`