UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMES THOMAS RYAN,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBERS

DC-1221-14-0323-B-1

DC-1221-14-0378-B-1

DC-1221-14-0434-B-1

DC-1221-14-0700-B-1

DC-1221-16-0177-W-2

DC-1221-16-0178-W-2

DC-1221-16-0179-W-2

DATE: May 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

James Thomas Ryan, Bel Air, Maryland, pro se.

Elizabeth E. Pavlick, Esquire, and Lundi McCarthy Shafiei, Esquire,

Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision

in this individual right of action (IRA) appeal, which denied his request for 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly 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 Parties may cite nonprecedential orders, 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

corrective action. Generally, we grant petitions such as this one only in the 

following circumstances: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpre tation of statute 

or regulation or the erroneous application of the law to the facts of the case; the 

administrative judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED to 

address the appellant’s claim that he disclosed a violation of an agency rule, we 

AFFIRM the remand initial decision. 

BACKGROUND

¶2 The Board remanded this IRA appeal to the regional office, finding that the 

appellant established jurisdiction over his claim that the agency had taken several 

personnel actions in reprisal for his January 4 and April 5, 2013 disclosures to the 

agency’s Office of Professional Responsibility (OPR). Ryan v. Department of 

Defense, MSPB Docket Nos. DC-1221-14-0323-W-1, DC-1221-14-0378-W-1, 

DC-1221-14-0434-W-1, DC-1221-14-0700-W-1, Remand Order (Feb. 4, 2016)

(Remand Order).

2

 The appellant subsequently filed three additional IRA appeals 

alleging that the agency had taken additional personnel actions in reprisal for the 

 

2

The appellant originally filed four separate IRA appeals, MSPB Docket Nos. 

DC-1221-14-0323-W-1, DC-1221-14-0378-W-1, DC-1221-14-0434-W-1, and DC-1221-

14-0700-W-1, which the administrative judge joined for adjudication because he found 

that they all “arise from the same or related underlying events, and involve aspects of 

the same whistleblowing claim.” Remand Order, ¶ 5 n.2. 
3

same disclosures,

3

and the administrative judge joined those appeals with the 

remanded appeals for a hearing on the appellant’s claim that the agency took six 

personnel actions in retaliation for his January 4 and April 5, 2013 disclosures. 

Ryan v. Department of Defense, MSPB Docket No. DC-1221-14-0323-B-1, 

Remand File (RF), Tabs 12, 59; Tab 72, Remand Initial Decision (RID) at 5-6. 

¶3 The appellant’s disclosures concern four separate incidents involving the 

same coworker, who was a fellow police officer. RID at 7. The administrative 

judge carefully analyzed the appellant’s disclosures concerning each alleged 

incident to determine whether the appellant had proved by preponderant evidence 

that a disinterested observer, with knowledge of the essential facts known to and 

readily ascertainable to him, could reasonably conclude that his disclosure

evidenced a violation of law. RID at 7-18; see 5 U.S.C. § 2302(b)(8)(A)(i); 

Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010)

(discussing this standard at the jurisdictional stage of an IRA appeal). As set 

forth below, the administrative judge found that the appellant failed to establish 

by preponderant evidence that he made a protected disclosure under 5 U.S.C. 

§ 2302(b)(8). RID at 7-18. 

¶4 The appellant’s January 4, 2013 memorandum to OPR recounts three 

separate incidents. RF, Tab 21 at 12-13. Concerning the first incident, which 

allegedly occurred during an honor guard assignment in June or July 2012 at the 

Raven Rock Mountain Complex, the appellant contended that another officer had 

intentionally given him conflicting commands in an effort to embarrass him. Id. 

The administrative judge found no evidence, save for the appellant’s assertion,

that the other officer had done so. RID at 8. Even crediting the appellant’s 

account of the incident, the administrative judge determined that the actions 

described failed to satisfy the elements of an assault, finding no evidence of a 

threat or attempt of violence or injury. Id. Moreover, even if the appellant’s 

 

3

Ryan v. Department of Defense, MSPB Docket Nos. DC-1221-16-0177-W-2, 

DC-1221-16-0178-W-2, and DC-1221-16-0179-W-2. 
4

assertion that the other officer intended to embarrass, mock, or disparage him

were true, the administrative judge found that the appellant could not have 

reasonably believed that such conduct constituted an assault. Id. 

¶5 In the second incident, which allegedly occurred on August 28, 2012, in 

Mitchellville, Maryland, the appellant claimed that the other officer placed his 

left hand on the appellant’s chest and pushed him, stating “get out the way” in a 

taunting manner. RF, Tab 21 at 12-13; Hearing Transcript (HT) at 9 (testimony 

of the appellant). Because the appellant’s testimony on this point was unrebutted,

the administrative judge found it more likely than not true that some manner of 

physical contact occurred between the appellant and the other officer. RID at 10. 

Nevertheless, citing the lack of any other evidence in support of the appellant’s 

version of the incident, particularly considering how many officers were present

when it allegedly happened, the appellant’s failure to raise the incident with 

anyone until January 2013, and his history of making unfounded accusations 

against his coworkers, the administrative judge found that the appellant could not 

have reasonably believed that the other officer’s actions amounted to an assault. 

RID at 10-11. 

¶6 Concerning the third incident, which occurred on January 4, 2013, the 

appellant recounted an argument with the other officer over the volume of the 

radio in an agency vehicle. RF, Tab 21 at 12-13. Following the argument, when 

retrieving their equipment from the back of the vehicle, the appellant alleged that 

the other officer then made unnecessary physical contact with him, laughed and 

smirked, and said to him “[y]ou better leave that alone or you’ll get smacked.” 

Id. at 12. The administrative judge found that, even if he assumed the contact 

was intentional, the appellant had consistently interpreted the episode as an 

affront to his dignity and not a threat of bodily harm by force or violence ,

observing that the appellant’s reactions, as well as his hearing testimony,

undermined his assertion that the other officer either caused him apprehension or 

intimidated him. RID at 14-16. Thus, the administrative judge found that the 
5

appellant also failed to show that he reasonably believed he was assaulted by the 

other officer on January 4, 2013. RID at 16. 

¶7 In his April 5, 2013 memorandum to OPR, the appellant recounted a fourth 

alleged assault, asserting that when he was entering an agency facility earlier that

day, the other officer had stared at him with a “scorn[ful]/resentful/angry 

expression on his face.” Ryan v. Department of Defense, MSPB Docket No. 

DC-1221-14-0434-W-1, Initial Appeal File (0434 IAF), Tab 10 at 5. The 

appellant, who was off-duty at the time, remarked that the other officer was in 

possession of an agency firearm, and he asserted that the look he received was an 

attempt by the other officer to intimidate him with physical force. Id. In 

reviewing the appellant’s allegations, the administrative judge cited a 

memorandum issued by the Chief of OPR concerning OPR’s review of security 

camera footage of the alleged incident, which did not support the appellant’s 

version, and found that the record contained no evidence as to what, if anything,

took place. RID at 16-17; RF, Tab 67 at 4. Nevertheless, the administrative 

judge found that, even if the appellant’s allegations were true, he could not have 

reasonably believed that the other officer’s expression of scorn caused him to 

suffer an assault. RID at 18. Accordingly, the administrative judge found that 

the appellant failed to establish that his January 4 and April 5, 2013 disclosures 

were protected under 5 U.S.C. § 2302(b)(8). Id. 

¶8 In his petition for review, the appellant argues that the administrative judge 

misinterpreted his allegations and used too restrictive a definition of assault in 

finding that his January 4 and April 5, 2013 disclosures were not protected. 

Petition for Review (PFR) File, Tab 1. He also challenges the administrative 

judge’s factual and credibility determinations. Id. He asserts that he reasonably 

believed that the June or July 2012 incident evidenced “a security violation (a 

violation of [Department of Defense (DOD)] regulation [Administrative 

Instruction (AI)] 30,” rather than an assault. Id. at 5-6. The agency has filed a 
6

response to the appellant’s petition for review, and the appellant has filed a reply 

to the agency’s response. PFR File, Tabs 2, 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 After establishing the Board’s jurisdiction in an IRA appeal, an appellant 

must establish a prima facie case of whistleblower retaliation by proving by 

preponderant evidence that he made a protected disclosure that was a contributing 

factor in a personnel action taken against him. 4 5 U.S.C. § 1221(e)(1); Lu v. 

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). As noted 

above, the administrative judge found that the appellant failed to prove at least 

one element of this burden—that the relevant disclosures were protected. RID 

at 7-18. This decision will be similarly focused.

¶10 A protected disclosure is one that an appellant reasonably believes

evidences a violation of any law, rule, or regulation, gross mismanagement, a 

gross waste of funds, an abuse of authority, or a substantial and specific danger 

to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chavez v. Department of 

Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). The test for determining if an 

employee’s belief regarding the disclosed matter is reasonable is whether a 

disinterested observer with knowledge of the essential facts known and readily 

 

4

This appeal involves events occurring both before and after the December 27, 2012 

effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA). 

Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Because the changes made by the 

WPEA do not affect the outcome of this appeal, we find it unnecessary to resolve 

whether it applies here. 

Similarly, during the pendency of this appeal, the National Defense Authorization Act 

for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on 

December 12, 2017. It expanded the activities protected under 5 U.S.C.

§ 2302(b)(9)(C) to include cooperating or disclosing information to “any . . . component 

responsible for internal investigation or review.” Pub. L. No. 115-91, § 1097(c)(1)(A), 

131 Stat. 1283, 1618. That expansion does not affect the outcome of this appeal 

because all of the relevant events occurred prior to December 12, 2017. Edwards v. 

Department of Labor, 2022 MSPB 9, ¶¶ 29-33 (finding that the changes to section 

2302(b)(9)(C) do not apply retroactively).
7

ascertainable by the employee could reasonably conclude that the actions of the 

agency evidenced a violation of law, rule, or regulation, or one of the other 

conditions set forth in 5 U.S.C. § 2302(b)(8). Baldwin, 113 M.S.P.R. 469, ¶ 12.

The appellant failed to prove that his disclosure about the June or July 2012 

incident was protected. 

¶11 In his January 4, 2013 memorandum to OPR, the appellant asserted that his 

coworker gave him conflicting orders during an honor guard ceremony in June or 

July 2012 and then mocked him for being out of step, all in an effort to embarrass 

the appellant. RID at 7-8; RF, Tab 21 at 12. The administrative judge found it 

more likely that any misstep on the part of the appellant was the result of “his 

own mistake, simple miscommunication, or other unremarkable cause .” RID at 

8-9. He concluded that, even assuming the appellant’s coworker gave the 

appellant a false or conflicting command as claimed, the appellant could not have 

reasonably believed that he was assaulted. RID at 7-9.

¶12 On review, the appellant presents two brief but distinct arguments about 

this disclosure. First, the appellant challenges the administrative judge’s 

definition of assault, arguing that the administrative judge should have used the 

state law definition of assault, rather than one from Black’s Law Dictionary. 5 

PFR File, Tab 1 at 6. Second, the appellant argues that the June or July 2012

incident amounted to a violation of a particular agency policy regarding 

workplace violence. Id. at 5-6. 

¶13 Regarding this disclosure and the concept of an “assault,” we note that the 

underlying incident took place in Pennsylvania. HT at 8 (testimony of the 

appellant). Pennsylvania defines simple assault, in pertinent part, as “attempts by 

 

5

The appellant argued that the Maryland or Virginia definitions should have been used. 

PFR File, Tab 1 at 6. Because the incident occurred in Pennsylvania, we infer that he 

meant to refer to Pennsylvania law. He also claims that an assault is a threat of 

unwanted touching but notably does not claim that any threat of touching occurred. Id.
8

physical menace to put another in fear of imminent serious bodily injury.”

6

18 Pa. Cons. Stat. Ann. § 2701(a)(3); see Baldwin, 113 M.S.P.R. 469, ¶¶ 18-21 

(considering the various definitions of assault, including under South Carolina 

law, in finding that an appellant nonfrivolously alleged that he reasonably 

believed that his coworker’s action of waving a box cutter at him in a threatening 

manner was an assault).

¶14 The appellant has not alleged that he believed his fellow officer intended to 

cause him fear of bodily injury. The appellant testified that the other officer 

deliberately misdirected him to “embarrass” and “taunt.” HT at 69 (testimony of 

the appellant). This allegation is not something a reasonable individual with the 

appellant’s knowledge in law enforcement would believe was an assault. See 

Schlosser v. Department of the Interior, 75 M.S.P.R. 15, 22 (1997) (considering 

that the appellant was a police officer in determining the reasonableness of his 

belief that he disclosed a violation of law). Accordingly, we agree with the 

administrative judge’s finding that the appellant did not believe, and a

disinterested observer in his position would not believe, that his fellow officer 

intended to cause him fear of bodily harm. RID at 9. This is true under the more 

generalized definition of “assault” used by the administrative judge as well as the 

definition specific to Pennsylvania.

¶15 As previously stated, the appellant argues, in the alternative, that his 

disclosure revealed a violation of AI 30, which he describes as making it a 

“security violation . . . to cause someone embarrassment in the workplace because 

it is a sign of workplace violence.” PFR File, Tab 1 at 5-6. The appellant also 

raised this claim during the hearing below. HT at 8 (testimony of the appellant). 

The administrative judge did not address this argument, and we modify the initial 

 

6

The appellant has not alleged that his fellow officer actually harmed him or intended 

to harm him. RF, Tab 21 at 12; see 18 Pa. Cons. Stat. Ann. § 2701(a)(1)-(2) (setting 

forth alternative definitions of “assault”).
9

decision to do so. We find that the appellant did not prove he reasonably 

believed that his coworker violated AI 30. 

¶16 As an initial matter, we find that the appellant has proven that AI 30 

constitutes a “rule” for purposes of determining if the agency violated a “law, 

rule, or regulation.” Although the WPEA does not define “rule,” it includes 

established or authoritative standards for conduct. See Rusin v. Department of 

the Treasury, 92 M.S.P.R. 298, ¶¶ 15-17 (2002) (citing dictionary definitions of 

the word “rule”). In finding that this pro se appellant met his burden, we have 

broadly construed the whistleblower reprisal statutory scheme in his favor. See 

Rusin, 92 M.S.P.R. 298, ¶ 17 (acknowledging that the Whistleblower Protection 

Act is a remedial statute intended to improve protections for Federal employees 

and should be broadly construed in favor of those whom it was intended to 

protect); Melnick v. Department of Housing and Urban Development, 

42 M.S.P.R. 93, 97-98 (1989) (explaining that the Board construes pro se 

pleadings liberally, and parties that are pro se are not required to plead issues 

with legal precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). There is no 

de minimis exception to the protection afforded disclosures of the violation of a 

law, rule, or regulation. See Fisher v. Environmental Protection Agency, 

108 M.S.P.R. 296, ¶ 9 (2008). 

¶17 We have been unable to find AI 30 in the record. This contrasts with 

another agency policy, AI 8, along with some legal definitions of assault, which 

the appellant submitted into evidence.7 RF, Tabs 46-47. However, the absence 

of this policy from the record is not fatal to the appellant’s claim. An appellant 

is not required to identify the law, rule, or regulation that was violated “by title 

or number, when [his] statements and the circumstances surrounding the making 

 

7 Although the appellant’s updated exhibit list identifies AI 8 as Exhibit M, RF, Tab 56 

at 4, his exhibit list does not include AI 30, and, as noted above, he fails to identify the 

document on review. Further, we were unable to access AI 30, which is listed as a 

controlled document, on the internet. DOD Issuances, AI 30, 

https://www.esd.whs.mil/Directives/issuances/admin_inst/ (last visited May 26, 2023).
10

of those statements clearly implicate an identifiable violation of law, rule, or 

regulation.” See Chavez, 120 M.S.P.R. 285, ¶ 19 (quoting Langer v. Department 

of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001)). Thus, we conclude that 

AI 30 is an agency “rule” for purposes of the appellant’s whistleblower reprisal 

claim.

¶18 The appellant described AI 30 as a workplace violence policy that protects 

against embarrassment. PFR File, Tab 1 at 5-6; HT at 8 (testimony of the 

appellant). He testified that his coworker committed a “security violation” by 

“deliberately caus[ing the appellant] embarrassment in front of a group of 

people.” HT at 70 (testimony of the appellant). We find that the appellant failed 

to prove that he reasonably believed that his coworker deliberately embarrassed 

him.8 The appellant’s coworker testified that he gave the same verbal commands 

to the entire honor guard, “and everyone did the same move except for [the 

appellant].” HT at 138 (testimony of the accused officer). The administrative 

judge concluded that the appellant’s missteps during the ceremony were due to 

“his own mistake, simple miscommunication, or other unremarkable cause.” RID 

at 8-9. In so finding, the administrative judge credited the testimony of the 

appellant’s fellow officer regarding the June or July 2012 incident after holding a 

hearing. RID at 7-9. The Board defers to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on observing the 

demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find no such 

sufficiently sound reasons here. 

¶19 The administrative judge did not specifically address whether the appellant 

reasonably believed his coworker acted deliberately. We find that the appellant 

failed to provide evidence supporting such a claim. The appellant has the burden 

 

8

In light of this finding, we need not reach the issue of whether the appellant proved 

that he reasonably believed AI 30 prohibited deliberately embarrassing someone.
11

of proving that it is more likely than not that he reasonably believed, as relevant 

here, that his coworker deliberately embarrassed him in violation of AI 30. See

Lu, 122 M.S.P.R. 335, ¶ 7 (setting forth an appellant’s burden to prove his claim 

on the merits by preponderant evidence); 5 C.F.R. § 1201.4(q) (defining 

preponderant evidence as the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue). He gave speculative and 

conclusory testimony that his coworker gave him conflicting instructions “for the 

purpose of causing [him] embarrassment” and “intentionally miscommunicat[ed] 

information to [him].” Id. (testimony of the appellant). He provided no details 

supporting these conclusions, and we find that the appellant’s testimony does not

meet his burden of proving by preponderant evidence that he reasonably believed 

his coworker was motivated to embarrass him. 

¶20 For the first time on review, the appellant asserts that his coworker “told 

[the appellant] privately to march in a wheel pattern when [the coworker] gave 

[the appellant] the command to ‘march.’” PFR File, Tab 1 at 5. The Board 

generally will not consider an argument raised for the first time in a petition for 

review absent a showing that it is based on new and material evidence not 

previously available despite the party’s due diligence. Clay v. Department of the 

Army, 123 M.S.P.R. 245, ¶ 6 (2016). We have been unable to locate in the record

below that the appellant claimed or provided evidence that his coworker gave him 

a private order to walk in a wheel pattern when ordered to march. For example,

the appellant did not testify regarding any such order or refer to it in his 

January 4, 2013 disclosure. HT at 8, 68-70 (testimony of the appellant); RF, 

Tab 21 at 12. 

¶21 The appellant argues on review that he did not previously challenge his 

coworker’s testimony regarding the June or July 2012 incident because while his 

coworker testified that he gave the same “command” to all members of the honor 

guard, he gave the appellant a different “order.” PFR File, Tab 1 at 5. The 
12

appellant appears to distinguish between a proper command, which he implicitly 

concedes his coworker gave him, and a “conflicting order[],” which he is now 

asserting his coworker gave him privately. Id. We do not find the appellant’s 

stated distinction between orders and commands to be a reason for failing to 

exercise the basic due diligence of raising this argument below or giving a 

complete version of what occurred in June or July 2012 during his testimony. 

Further, we observe that the appellant is, in essence, attempting to impeach his 

coworker’s credibility, and such evidence is not a basis for granting review. 

Bucci v. Department of Education, 42 M.S.P.R. 47, 55 (1989) (explaining that 

evidence offered merely to impeach a witness’s credibility is not generally 

considered new and material). Accordingly, we find that the appellant failed to 

prove that he reasonably believed his fellow officer deliberately embarrassed him 

in violation of AI 30. 

The appellant failed to prove that his disclosure about the August 2012 incident 

was protected.

¶22 Unlike the one discussed above, the second incident recounted in the 

appellant’s January 4, 2013 memorandum, which he alleged occurred in Maryland

on August 28, 2012, did involve physical touching. RF, Tab 21 at 12. For the 

following reasons, we also agree with the administrative judge that the appellant 

failed to establish that he reasonably believed that he disclosed conduct that 

comprised an assault.9 RID at 11. The appellant testified that the other officer 

pushed him, knocked him off balance, and told him to “get out of the way.” HT 

 

9

The appellant alleged in his disclosure concerning this incident that he believed, based 

on his coworker’s behavior, that he was a “habitual drunkard,” which he characterized 

as “conduct unbecoming.” RF, Tab 21 at 12. In his hearing testimony, the appellant 

corrected this statement, indicating that he meant to allege that his coworker had a 

drinking problem. HT at 17, 76-77, 80-83 (testimony of the appellant). The appellant 

restates his belief that his coworker had a drinking problem on review. PFR File, Tab 1 

at 10, 26. However, he does not appear to have argued below or on review that he made 

a protected disclosure as to the other officer’s alleged drinking problem. RID at 12-13 

n.4; PFR File, Tab 1 at 26. 
13

at 8-9, 70 (testimony of the appellant). The appellant explained that if he had not 

retreated, “sooner or later I would have toppled over,” but he went on to assert 

that, “because I was standing on a hill and I had a good footing to begin with,” he 

did not fall. Id. at 74-75. The administrative judge found that “some manner of 

physical contact occurred.”

10

 RID at 10. However, he did not credit the 

appellant’s assertion that he believed his coworker’s conduct amounted to an 

assault. RID at 11. In so finding, the administrative judge considered, among 

other factors, the appellant’s history of making unfounded accusations against his 

coworkers. Id. 

¶23 On review, the appellant argues that this consideration was improper. We 

disagree. Evidence of a witness’s character, particularly as to his veracity, is an 

appropriate consideration for credibility determinations. Smith v. Department of 

Veterans Affairs, 93 M.S.P.R. 424, ¶ 18 (2003); Hillen v. Department of the 

Army, 35 M.S.P.R. 453, 458 (1987). The appellant also offers information in 

support of his prior claims of coworker misconduct. PFR File, Tab 1 at 12-13. 

We decline to consider this information on review. See Avansino v. U.S. Postal 

Service, 3 M.S.P.R. 211, 214 (1980) (explaining that, under 5 C.F.R. 

section 1201.115, the Board generally will not consider evidence submitted for 

the first time with the petition for review absent a showing that it was unavailable 

before the record was closed despite the party’s due diligence). 

¶24 The appellant further argues that the administrative judge failed to apply 

Maryland law when determining that the appellant did not reasonably believe his 

coworker assaulted him. PFR File, Tab 1 at 9-10. Second-degree or 

misdemeanor assault in Maryland includes the intent-to-frighten if (1) the 

defendant commits an act with the intent to place a victim in fear of immediate 

 

10 The appellant argues that the administrative judge should have credited his sworn 

statement that his coworker touched him over his coworker’s denial. PFR File, Tab 1 

at 7-8; RID at 9-10; HT at 8-9; RF, Tab 21 at 101, Tab 37 at 22-23. Because the 

administrative judge found that the alleged physical contact occurred, we discern no 

basis to disturb his finding. 
14

physical harm; (2) the defendant has the apparent ability, at the time, to bring 

about the physical harm; and (3) the victim is aware of the impending physical 

harm.11 Jones v. State, 103 A.3d 586, 589 (Md. 2014) (internal quotations and 

citations omitted); see Md. Code Ann., Criminal Law § 3-203 (prohibiting 

second-degree assault and identifying it as a misdemeanor). 

¶25 Even applying this definition, we find no error in the administrative judge’s 

finding that the appellant did not reasonably believe that the incident in question 

amounted to criminal assault. RID at 11. The administrative judge found that the 

appellant’s claim of assault was not credible because the incident allegedly 

occurred in front of fellow officers and the appellant claimed he responded only 

by stating “don’t do that” and did not report the incident until 6 months later. 

RID at 10-11; RF, Tab 62 at 12-13. Further, the appellant denied that his fellow 

officer was angry but rather asserted that he was “[h]aughty,” “[c]ondescending,”

and “[s]uperior.” RF, Tab 62 at 32; RID at 11. Thus, the appellant’s behavior 

during and after the incident, and his characterization of his coworker’s frame of 

mind, support the administrative judge’s finding that the appellant did not 

reasonably believe his coworker intended to cause him immediate physical 

harm.

12

 RID at 11. 

¶26 The appellant also argues that his fellow officer committed the 

misdemeanor of “simple assault” because the appellant responded to his fellow 

officer’s actions by telling “him not to do it.” PFR File, Tab 1 at 10; HT at 9

 

11 First-degree assault involves an intentional “cause or attempt to cause serious 

physical injury.” Md. Code Ann., Criminal Law § 3-202. Because the burden to prove 

first-degree assault is higher, we will focus on the lower burden of proving 

second-degree assault. 

12 As to both the August 28, 2012 and April 5, 2013 incidents, the appellant observed 

that the other officer had an agency firearm in his possession during the alleged assault. 

0434 IAF, Tab 10 at 5; HT at 8-9 (testimony of the appellant). The appellant and his 

coworker were both police officers and were required to carry guns as part of their jobs. 

We are not persuaded that a disinterested observer in the appellant’s position would 

have found his coworker’s possession of a firearm unusual or, without more, 

threatening. 
15

(testimony of the appellant). It is unclear on what the appellant bases his belief 

that his warning converted his coworker’s actions into an assault. In any event, 

the appellant has cited to no legal authority for his claim, and we are unable to 

locate any.

¶27 On review, the appellant also questions the administrative judge’s reliance 

on his 6-month delay in reporting the incident as a factor in determining the 

reasonableness of his belief that he was assaulted. PFR File, Tab 1 at 9. The 

Board has found, in the context of a chapter 75 adverse action, that in deciding 

whether an agency has proven that an employee made a threat, it applies the 

reasonable person standard, considering the listeners’ reactions, the listeners’

apprehension of harm, the speaker’s intent, any conditional nature of the 

statements, and any attendant circumstances. Metz v. Department of the 

Treasury, 780 F.2d 1001 (Fed. Cir. 1986); Rose v. U.S. Postal Service, 

109 M.S.P.R. 31, ¶ 8 (2007). As in a chapter 75 action, we find that the 

administrative judge’s consideration of the appellant’s response to his coworker’s 

actions, including his delay in reporting them, was appropriate. In addition, we 

agree that the appellant’s delay in reporting the incident undermines his claim 

that a reasonable person in his position would have found that his fellow officer’s 

behavior evidenced an intent to cause physical harm.

¶28 The appellant also argues that agency officials essentially believed him 

because they started an investigation into his allegations of assault and did not 

accuse him of making a false statement. PFR File, Tab 1 at 11. We decline to 

infer that the appellant reasonably believed he was assaulted because the agency 

started an investigation based on his then-unchallenged allegations. RF, Tab 37 

at 21-23; see Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)

(explaining that an employee’s “purely subjective perspective” is insufficient to 

establish the reasonableness of his belief of Government wrongdoing “even if 

shared by other employees”). Nor do we view the agency’s decision not to take 

action for alleged false statements as undermining the administrative judge’s 
16

finding that a reasonable person would not have viewed the incident as an assault. 

RID at 11. 

The appellant failed to prove that his disclosure about the January 2013 incident 

was protected.

¶29 The third incident set forth in the appellant’s January 4, 2013 letter

occurred in Virginia on the same day. RF, Tab 21 at 12-13; 0434 IAF, Tab 10 at 

5; RID at 16. It began with a disagreement between the appellant and his fellow 

officer regarding the volume of a car radio. RF, Tab 21 at 12. About 30 minutes 

later, while the appellant was removing his equipment from the rear of the 

vehicle, he alleged that his fellow officer “intentionally made unnecessary 

physical contact with the right side of his body to the left side of [the appellant’s]

body (assault) as if [the appellant] was not standing there and started to laugh 

(taunt) with a smirk on his face.” RF, Tab 21 at 12, Tab 62 at 5. The appellant 

described his coworker’s contact as a “nudge.” RF, Tab 62 at 6. 

¶30 The appellant also asserted that he responded to the nudge by asking, “Did 

you see me standing there?” RF, Tab 21 at 12; HT at 10 (testimony of the 

appellant). Apparently referring to the earlier dispute over the radio, the fellow 

officer then stated “leave that alone or you’ll get smacked,” which the appellant 

testified that he interpreted as a threat. RF, Tab 21 at 12; PFR File, Tab 1 at 7-8; 

HT at 70-71 (testimony of the appellant). During the resulting agency

investigation, the appellant indicated that he responded to his coworker’s conduct 

by laughing. RF, Tab 6 at 5. The administrative judge found that the evidence 

suggested that any contact during the episode was inadvertent on the other 

officer’s part, and he found that the appellant’s own reactions undermined his 

assertion that the other officer had intimidated him. RID at 15. Instead, the 

appellant’s description of the incident indicated that he was a participant, not a 

victim. For example, he claimed in his testimony that he and his coworker 

essentially “locked horns.” HT at 70 (testimony of the appellant); RID at 12-16.
17

¶31 The appellant disputes the administrative judge’s conclusion that his fellow 

officer’s contact was likely inadvertent. PFR File, Tab 1 at 16-17; RID at 14. 

When, as here, an administrative judge’s findings are “intertwined with issues of 

credibility and an analysis of [the appellant’s] demeanor at trial,” the Board 

affords them “special deference.” Purifoy v. Department of Veterans Affairs, 

838 F.3d 1367, 1373 (Fed. Cir. 2016); HT at 140, 143-44 (testimony of the 

accused officer). The Board may overturn such determinations only when it has 

“sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. The 

appellant’s arguments simply reweigh the various factors relevant to credibility 

determinations. PFR File, Tab 1 at 16-17; see Hillen, 35 M.S.P.R. at 458

(identifying the factors an administrative judge must consider in resolving 

credibility issues). We are not persuaded by the appellant’s assertions, which 

include giving weight to his own unsubstantiated testimony that his coworker 

“does not like white people.” PFR File, Tab 1 at 16-17; HT at 72 (testimony of 

the appellant).

¶32 Under Virginia law, an assault is “an attempt with force and violence, to do 

some bodily hurt to another, whether from wantonness or malice, by means 

calculated to produce the end.” United States v. Carthorne, 726 F.3d 503, 512 

(4th Cir. 2013) (quoting Montague v. Commonwealth, 684 S.E.2d 583, 588

(Va. 2009)). The appellant’s conclusory statement on review that the other 

officer’s actions were “unwanted, offensive, physical contact” again falls short of 

conduct that a reasonable person would view as an assault. PFR File, Tab 1 at 16. 

In addition, his characterization of his laugh as “incredulous” does not undermine 

the administrative judge’s finding that the appellant’s laughter and other behavior 

following the incident undermined his claim that he felt intimidated. Id. at 19-20; 

RID at 15. In fact, as the administrative judge observed, the appellant indicated 

that his immediate response of asking if his coworker saw him was to attempt to 

obtain an “incriminating statement” from his coworker in front of their superiors. 

RID at 15-16; HT at 10-11 (testimony of the appellant). On review, the appellant 
18

defends this behavior as “a common law enforcement tactic.” PFR File, Tab 1 

at 21. We therefore agree with the administrative judge that the appellant’s 

response did not reflect surprise or alarm. RID at 15; PFR File, Tab 1 at 21. We 

further agree that the appellant failed to establish that he reasonably believed that 

he was disclosing an assault. RID at 16. 

¶33 The appellant also argues that the reasonableness of his belief that he was 

assaulted is supported by the fact that a Virginia magistrate judge charged the 

other officer with a crime based on that officer’s “own written statement 

containing his admission of making a threatening statement to me.” 13 PFR File, 

Tab 1 at 11-12. The documents that the appellant cites in support of this claim

involve: (1) the Citizen’s Criminal Complaint that he initiated in Virginia 

General District Court, in which he alleged that the other officer had assaulted 

him; and (2) an email from the other officer to an agency investigator, in which 

that officer recounts his version of the incident. RF, Tab 33 at 5-11. The 

documents also show that the judge who heard the case found the other officer not 

guilty of assault. Id. at 4-5. The appellant’s claim that the magistrate judge 

believed any particular fact is without support in the record, and the appellant’s 

allegations in his Citizen’s Criminal Complaint are similar to the nonfrivolous 

allegations for which the Board found that the appellant established jurisdiction 

over his claim and remanded it for adjudication. Remand Order, ¶¶ 3, 14-16. 

Nevertheless, in order to establish his claim, the appellant must show by 

preponderant evidence that a reasonable person would have believed that he 

disclosed conduct that amounted to an assault. E.g., Langer, 265 F.3d at 1265 

(finding that in an IRA appeal, “[t]he standard for establishing subject matter 

jurisdiction and the right to a hearing is assertion of a nonfrivolous claim,” while 

“the standard for establishing a prima facie case is preponderant evidence ”). We 

 

13 Although not entirely clear, it appears that this argument concerns the Janua ry 4, 

2013 incident because the statement the appellant references concerned that incident. 

PFR File, Tab 1 at 11-12; RF, Tab 33 at 11. 
19

are not persuaded that the fact that a magistrate allowed the appellant’s complaint 

to proceed is relevant to our determination on this issue.

¶34 Finally, the appellant argues that the administrative judge should have 

granted his request for the testimony of two agency employees who determined 

that the appellant’s description of the January 4, 2013 incident was sufficient to 

open an agency investigation. PFR File, Tab 1 at 17. However, the appellant did 

not offer these witnesses for that purpose. RF, Tab 27 at 36. Further, the 

witnesses’ perception of the appellant’s belief as to his fellow officer’s intention, 

based on the appellant’s own description of the event to those witnesses, has little 

probative value. Under the circumstances, we decline to find that the 

administrative judge abused his discretion in finding that their testimony was not 

relevant. RF, Tab 59 at 3; see Lee v. Environmental Protection Agency, 

115 M.S.P.R. 533, ¶¶ 16-17 (2010) (finding that an administrative judge did not 

abuse her broad discretion by excluding a witness who supervised the appellant 

during a period that ended more than a year prior to the performance 

improvement period at issue in his removal).

The appellant failed to prove that his disclosure about the April 2013 incident 

was protected.

¶35 As to the fourth incident, the appellant alleged that on April 5, 2013, his 

fellow officer looked at him with scorn, resentment, or anger while on duty and in 

possession of his agency firearm. 0434 IAF, Tab 10 at 5. The administrative 

judge found that no reasonable person could perceive his coworker’s look as an 

assault. RID at 18. The appellant argues that he provided a sworn statement to 

OPR that his coworker “tr[ied] to intimidate [him] with physical force” on April 

5, 2013. PFR File, Tab 1 at 22-25. He asserts that because the only statement 

rebutting his account is unsworn, the administrative judge erred in failing to 

credit his version of the incident. Id. at 22-23, 25. We are not persuaded. 

Contrary to the appellant’s claim on review, his statement is also unsworn. 0434 

IAF, Tab 10 at 5. In any event, the administrative judge did not rely on the 
20

description of the incident provided by the agency. RID at 18; RF, Tab 67 at 4-5. 

Rather, in finding no reasonable person could have perceived an assault, he 

assumed the appellant’s statement was true. RID at 18. We decline to disturb 

this finding.

¶36 The appellant next argues that the administrative judge should have 

analyzed whether the appellant proved that his disclosures were contributing 

factors in the agency’s actions. PFR File, Tab 1 at 29. We disagree. Because 

the administrative judge properly determined that the appellant failed to pro ve he 

made a protected disclosure, he was not required to conduct such an analysis. 

See Fisher v. Department of the Interior, 2023 MSPB 11, ¶¶ 8-10 (finding that 

an appellant failed to prove that his protected activity was a contributing factor 

in his separation as the result of a reduction-in-force, and therefore it was 

unnecessary to make further findings regarding his whistleblower reprisal claim).

¶37 Finally, the appellant attaches a one-page log that his supervisor completed 

of his performance in June and July 2015. PFR File, Tab 1 at 31. He does not 

explain the significance of the document, or why he could not have offered it 

during the proceedings below. We decline to consider it, as it is not relevant to 

the issue of whether the appellant made protected disclosures in 2012 and 2013. 

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the 

Board generally will not grant a petition for review based on new evidence absent 

a showing that it is of sufficient weight to warrant an outcome different from that 

of the initial decision); Avansino, 3 M.S.P.R. at 214.

¶38 Accordingly, we affirm the administrative judge’s decision to deny 

corrective action.14

 

14 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal.
21

NOTICE OF APPEAL RIGHTS15

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

15 Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
22

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 
23

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
24

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.16 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

 

16 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
25

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board