John Ryan v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN RYAN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-1814
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-22-0147-I-1.
______________________
Decided: February 19, 2026
______________________
J AMES N OWOGROCKI, Summers Compton Wells LLC,
St. Louis, MO, argued for petitioner.
D OUGLAS G LENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by BRIAN M. B OYNTON, ALBERT S. I AROSSI, P ATRICIA
M. MCCARTHY ; D ANE ROBERT R OPER, Office of General
Counsel, United States Department of Veterans Affairs, St.
Louis, MO.
______________________
Case: 24-1814 Document: 60 Page: 1 Filed: 02/19/2026

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RYAN v. DVA 2
Before L OURIE, P ROST , and T ARANTO, Circuit Judges.
T ARANTO, Circuit Judge.
In 2022, the Veterans Health Administration of the De-
partment of Veterans Affairs (agency) terminated the em-
ployment of John Ryan, a clinical social worker, for careless
performance and inappropriate conduct. Both charges re-
lated to Mr. Ryan’s actions or inaction involving a veteran
under his care who was identified as presenting a high risk
for suicide. The Merit Systems Protection Board sustained
Mr. Ryan’s removal. See Ryan v. Department of Veterans
Affairs, No. CH-0752-22-0147-I-1, 2024 WL 1232093
(M.S.P.B. Mar. 21, 2024) (Final Board Decision); J.A. 1–7.
We now affirm the Board’s decision.
I
Mr. Ryan began working as a clinical social worker at
the agency in 2007, and during the time relevant here, he
was assigned to the Post-Traumatic Stress Disorder Clinic.
Mr. Ryan received training on suicide screenings, evalua-
tions, and assessments as well as on requirements for doc-
umenting clinical encounters. See J.A. 839–40, 1301. He
was responsible for providing psychotherapy to approxi-
mately 60 to 70 veteran patients.
Patient No. 7918 (“the patient”), who was identified as
presenting a high risk for suicide, was under Mr. Ryan’s
care. Mr. Ryan met with the patient monthly. On several
occasions, the patient reported to Mr. Ryan his suicidal ide-
ations and the method of suicide he contemplated.
Pain management was a significant issue for the pa-
tient. He had received acupuncture treatment for pain
management, and Mr. Ryan several times communicated
to the patient about securing continued acupuncture treat-
ment from the agency. See J.A. 632, 658, 673, 946–48. The
communications conflicted with the agency’s acupuncture
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RYAN v. DVA 3
plan for the patient, and other providers opined that the
communications created confusion and unrealistic expecta-
tions for the patient, increasing his suicide risk. See, e.g.,
J.A. 947–48.
In March 2021, the patient called Mr. Ryan’s tele-
phone, which answered with a recorded message stating
that Mr. Ryan would be out of the office until six days later
and providing alternative numbers for emergency aid. J.A.
658. The patient left a voicemail stating that “[the agency
had] only authorized [him] 8 visits of acupuncture . . . . I
can’t pay it . . . . I don’t know [w]hat to do,” and that he
would “probably be dead” before Mr. Ryan returned his
call. Id. Mr. Ryan called the patient six days later, who
said to Mr. Ryan that he was not suicidal, and the patient
remained under Mr. Ryan’s care. J.A. 868, 1185. Critically
for the present case, Mr. Ryan never completed the “suicide
behavior and overdose report” required by the agency to
document this incident. J.A. 1254.
In October 2021, the head of the agency’s St. Louis
mental health unit informed Mr. Ryan of his proposed re-
moval under 5 U.S.C. §§ 7512, 7513. J.A. 388–402. The
notice stated two charges relating to Mr. Ryan’s conduct
with the patient. The first charge alleged careless perfor-
mance. In support, the agency stated twenty-seven speci-
fications of instances of Mr. Ryan’s alleged failure to
comply with agency patient-care and clinical-documenta-
tion policies. J.A. 388–97. The second charge alleged in-
appropriate conduct. In support, the agency stated six
specifications of instances of Mr. Ryan’s allegedly provid-
ing advice about acupuncture to the patient that was out-
side his scope of practice as a social worker and
unauthorized by the agency. J.A. 397–98. The proposing
official reviewed each of the factors recited in Douglas
v. Veterans Administration, 5 M.S.P.R. 280 (1981), for con-
sideration of the appropriate penalty, J.A. 406–08, and
stated that Mr. Ryan’s pattern of careless and
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RYAN v. DVA 4
inappropriate conduct would be treated as an aggravating
factor in the penalty analysis, J.A. 398–99.
On January 3, 2022, the deciding official, who was the
Medical Center Director of the agency’s St. Louis
Healthcare System, sustained both charges and concluded
that Mr. Ryan should be removed because the charges were
“of such gravity that mitigation of the proposed penalty is
not warranted, and that the penalty of removal is appro-
priate and within the range of reasonableness.” J.A. 153;
see J.A. 153–55. The deciding official explained that he had
reviewed the proposing official’s analysis of aggravating
factors and also considered other factors. J.A. 153; see also
J.A. 1171 (deciding official’s testimony that he considered
and agreed with the proposing official’s analysis of the
proper application of the Douglas factors). Mr. Ryan was
removed effective January 15, 2022, and he timely ap-
pealed to the Board.
The Board-assigned administrative judge (AJ) held a
hearing in August 2024. The AJ then sustained both
charges against Mr. Ryan, determining that the agency
had proven fourteen of the careless-performance specifica-
tions and each inappropriate-conduct specification. Ryan
v. Department of Veterans Affairs, No. CH-0752-22-0147-I-
1, 2022 WL 3578143 (Aug. 18, 2022) (Initial Board Deci-
sion); J.A. 8–51.1 The AJ explained that “[p]roof of one or
more, but not all, of the supporting specifications is suffi-
cient to sustain a charge.” Id. at 26 (citing Burroughs
v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990)). The AJ found that the required connection to effi-
ciency of service was established as it was “self-evident
that careless performance of [Mr. Ryan’s] Social Worker
duties impedes satisfactory accomplishment of those du-
ties, particularly as regards patient safety,” and that the
1 For the Initial Board Decision, we cite the native
page numbers (1–44) on the document found at J.A. 8–51.
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RYAN v. DVA 5
“sustained charge[ ] of inappropriate conduct [is] inher-
ently connected to the efficiency of the service.” Initial
Board Decision, at 32–33. The AJ then determined that
removal was reasonable, crediting the deciding official’s
judgment that the “serious and repeated nature of [Mr.
Ryan’s] misconduct” was not sufficiently mitigated by his
“fifteen years of service, lack of prior discipline, and fully
successful (albeit ‘lackluster’) performance appraisals.” Id.
at 35.
Mr. Ryan sought review by the Board. The Board
adopted the AJ’s opinion as its final decision on March 21,
2024, denying Mr. Ryan’s petition for review. Final Board
Decision, at *1. Mr. Ryan then appealed to this court. ECF
No. 1. We have jurisdiction to hear Mr. Ryan’s appeal un-
der 28 U.S.C. § 1295(a)(9).
II
We may set aside the decision of the Board only if 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). We review the Board’s factual findings
for substantial-evidence support, which is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion,” Consolidated Edison Co. v. National
Labor Relations Board, 305 U.S. 197, 229 (1938), even if an
opposite conclusion might also be supportable, Consolo
v. Federal Maritime Commission, 383 U.S. 607, 619–20
(1966).
Mr. Ryan presents two arguments on appeal. First,
Mr. Ryan contends that substantial evidence does not sup-
port the Board’s decision, specifically challenging the
weight the Board gave to certain evidence addressing sev-
eral specifications of both charges. Petitioner’s Opening
Br. at 13–33. Our standard of review does not permit us to
reweigh the evidence examined by the Board. Jones
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RYAN v. DVA 6
v. Department of Health and Human Services, 834 F.3d
1361, 1369 (Fed. Cir. 2016). Second, regarding the penalty
of removal, Mr. Ryan takes issue with the Board’s applica-
tion of several Douglas factors, primarily arguing that, un-
der factor 9, he lacked prior notice of his inappropriate
conduct or careless performance. Petitioner’s Opening Br.
at 33–36.
A
We conclude that substantial evidence supports the
Board’s finding that the agency proved both charges
against Mr. Ryan by a preponderance of the evidence.
Regarding the careless-performance charge, the Board
recited considerable evidence, including testimony from
several doctors at the agency, that Mr. Ryan failed to pro-
vide certain required care to the patient (e.g., suicide
screenings and psychotherapy) and that he also failed to
comply with the agency’s clinical-documentation policies
on several occasions in 2020 and 2021. Initial Board Deci-
sion, at 7–10, 13–25. Mr. Ryan contends that, even if he
did not document that he conducted certain screenings,
evaluations, and assessments, there is not “substantial ev-
idence that [he] actually failed to perform his duties.” Pe-
titioner Reply Br. at 6. But the Board could reasonably
credit the testimony of the Specialty Mental Health Pro-
grams Manager that, as said in “an adage well-known
within the[ ] medical facility: ‘If it isn’t documented, it
didn’t happen.’” Initial Board Decision, at 3; see also J.A.
1642 (Mr. Ryan’s 2020 email stating: “As you know, if it’s
not in the record it didn’t happen.”); J.A. 1341 (Mr. Ryan’s
testimony to the same effect). Moreover, failure to comply
with the agency’s documentation policies is itself a wrong
identified in many of the careless-performance specifica-
tions. Such documentation deficiencies (whether by omis-
sion or by use of unauthorized acronyms to identify clinical
care performed, see J.A. 656) could leave patient records
inaccurate or unintelligible, impairing continuity of care
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RYAN v. DVA 7
(especially if multiple providers in a team are providing
care or individual providers change over time). See Initial
Board Decision, at 19, 23; J.A. 1157.
Similarly, substantial evidence supports the Board’s
finding that Mr. Ryan engaged in inappropriate conduct
when advising the patient about acupuncture. Other pro-
viders at the agency established through their testimony,
which the AJ reasonably credited, that such advice was
outside the scope of Mr. Ryan’s clinical practice and was
not authorized by agency policy. Initial Board Decision,
at 28. The record sufficiently shows that Mr. Ryan repeat-
edly informed the patient that he could continue to receive
acupuncture despite acupuncture having been identified as
a stressor for the patient connected to his suicidal ideation,
J.A. 397, and despite Mr. Ryan having been warned by
other providers to stay in his clinical-role lane—which did
not include acupuncture, see J.A. 1614. Initial Board Deci-
sion, at 26–28, 35.
B
The Board did not err in upholding Mr. Ryan’s removal
as a reasonable penalty. Where, as here, all charges
(though not all specifications) are upheld, the Board’s role
regarding the remedy is limited. It is to “assure that the
agency did conscientiously consider the relevant [Douglas]
factors and did strike a responsible balance within [the] tol-
erable limits of reasonableness.” Norris v. Securities & Ex-
change Commission, 675 F.3d 1349, 1355 (Fed. Cir. 2012)
(internal citation and quotation marks omitted). The
Board did that, with its discussion justifiably short because
the agency’s review of the Douglas factors was so clear. In-
itial Board Decision, at 35–36. In particular, Mr. Ryan ar-
gues chiefly about Douglas factor 9, concerning whether he
had or lacked notice that his behavior would constitute
misconduct. This argument lacks merit.
As to the careless-performance charge, the Board ob-
served that Mr. Ryan received training on the agency’s
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RYAN v. DVA 8
treatment-documentation requirements, with which he
failed to comply. Initial Board Decision, at 7–9, 13–14, 17–
21, 24, 34–35; see J.A. 839–40 (Specialty Mental Health
Programs Manager’s testimony to the AJ); J.A. 1271, 1615
(Mr. Ryan’s acknowledgements of the agency’s documenta-
tion policy). Mr. Ryan points to no case, and we are not
aware of any, in which we have held that an employee
lacked notice of his misconduct, despite that employee hav-
ing received training on the agency’s expectations for his
conduct, merely because the agency did not also provide
him with a specific notice after the fact of the same. As to
the inappropriateness of his communications about acu-
puncture, the evidence establishes that Mr. Ryan was in-
formed on multiple occasions that his acupuncture advice
to the patient exceeded his scope of practice as a social
worker and was unauthorized. See Initial Board Decision,
at 33–34; J.A. 1616 (notice in 2020); J.A. 1205 (Staff Psy-
chiatrist’s testimony); J.A. 1614 (Mr. Ryan’s August 2021
acknowledgement of the same).
Mr. Ryan’s remaining arguments concerning the
Board’s application of the Douglas factors amount to re-
quests for the court to reweigh the evidence, which we may
not do. See Jones, 834 F.3d at 1369. We thus agree with
the Board that Mr. Ryan’s removal was “within tolerable
limits of reasonableness,” Norris, 675 F.3d at 1352. See In-
itial Board Decision, at 36–37.
III
For the foregoing reasons, we conclude that the Board’s
decision is supported by substantial evidence and that Mr.
Ryan has failed to show that the decision is arbitrary, ca-
pricious, or contrary to any law or regulation. We affirm.
The parties shall bear their own costs.
AFFIRMED
Case: 24-1814 Document: 60 Page: 8 Filed: 02/19/2026

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