Colin S. Watanabe v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COLIN S. WATANABE,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2023-1752
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-21-0264-I-1.
______________________
Decided: October 4, 2023
______________________
COLIN S. WATANABE , Honolulu, HI, pro se.
I OANA C. M EYER , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, STEVEN J OHN G ILLINGHAM , P ATRICIA M.
MCCARTHY .
______________________
Before L OURIE, P ROST , and CHEN, Circuit Judges.
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WATANABE v. ARMY 2
P ER CURIAM .
Former Department of the Army (“the Army”) em-
ployee Colin Watanabe appeals a decision of the Merit Sys-
tems Protection Board (“the Board”) sustaining his removal
for conduct unbecoming a supervisor. Watanabe v. Dep’t of
the Army, No. SF-0752-21-0264-I-1, 2021 WL 5994229
(M.S.P.B. Dec. 17, 2021) (“Decision”), Pet. Br. 4–28. For the
following reasons, we affirm.
BACKGROUND
Watanabe was employed by the Army as a Supervisory
General Engineer, GS-0801-14, at Schofield Barracks,
Honolulu, Hawaii. Id. at 6. In August 2020, the Army be-
gan investigating allegations that he had improperly used
his position of authority to encourage hiring specific appli-
cants and that he had improperly used government prop-
erty for personal storage. Id. at 8. In February 2021, the
Army removed Watanabe for conduct unbecoming a super-
visor based on charges of unfair personnel practices and
misuse of government property. Id. at 6–7. Watanabe ap-
pealed his removal to the Board and requested a hearing.
Id. The case was assigned to an administrative judge (“an
AJ”) of the Board. Id. at 6.
One of the charges reviewed by the AJ involved
Watanabe and his subordinates’ actions during the hiring
of S.P., the son-in-law of Schofield Barracks’ Deputy Direc-
tor. Id. at 8–11. The Army investigator interviewed Ca-
dina, a member of the S.P. hiring panel. Id. at 9–10.
Cadina’s direct supervisor was Akeo, and Akeo’s direct su-
pervisor was Watanabe. Id. at 9. Cadina initially told the
investigator that Akeo did not pressure the panel to select
S.P. Id. at 10. Cadina later went back and told the inves-
tigator that “Akeo had told him to hire S.P. to please the
boss,” and absent that pressure, S.P. would not have been
hired. Id.
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WATANABE v. ARMY 3
At the hearing, Cadina admitted to initially lying to the
investigator about S.P.’s hiring. Id. He explained that
Akeo was outside the room during his initial interview with
the investigator and that he was afraid Akeo would retali-
ate against him if he told the truth. Id. Cadina testified
that, after the interview, Watanabe waved Cadina into his
office and repeatedly thanked him for “what you’re doing
for [Akeo],” which Cadina understood as Watanabe thank-
ing him for lying to the investigator. Id. Cadina memori-
alized this conversation with Watanabe and provided it to
the investigator. Id.
Watanabe testified to the event differently. Id. at 11.
In his retelling, he explained that he called Cadina into his
office because he was concerned that Cadina seemed like
he was in a “fragile state.” Id. Watanabe testified that
Cadina told him that “‘[Akeo] owes me big time,’ and that
he was going to call the investigator and ‘tell the truth.’”
Id. Watanabe testified that he responded by thanking Ca-
dina for telling the truth. Id. The AJ evaluated both par-
ties’ testimony and found Cadina to be more credible
despite initially lying to the investigator. Id.
The AJ reviewed an additional charge of improper hir-
ing practices and a charge of misuse of government prop-
erty. Id. at 8–9, 12–15. For the improper hiring practices
charge, two witnesses testified that Watanabe pressured
one of them to promote a subordinate. Id. at 8–9. And for
the misuse of government property charge, witnesses tes-
tified that Watanabe requested key access to various loca-
tions, had a freezer turned on in an unused facility, was
storing large quantities of personal food in these locations,
and abandoned his car on the property. Id. at 12–14. The
investigator inspected each location and found the personal
items stored there. Id. at 13. The AJ found the testimony
of each witness more credible than Watanabe’s and held
that the Army proved all three charges by preponderant
evidence. Id. at 11, 15. The AJ thus issued an Initial De-
cision affirming Watanabe’s removal by the Army.
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WATANABE v. ARMY 4
Watanabe filed a petition for review of the Initial Decision
by the full Board, which was denied on February 9, 2023.
The AJ’s Initial Decision accordingly became the Final De-
cision of the Board. 5 C.F.R. § 1201.113(b). Watanabe
timely appealed, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
A Board decision may only be set aside if it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). The petitioner “bears the burden of establishing
error in the Board’s decision.” Harris v. Dep’t of Veterans
Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).
Watanabe makes two arguments on appeal: (1) that
the AJ applied the wrong law when it assessed witness
credibility; and (2) that the AJ incorrectly found a witness’s
testimony more credible than his own because the AJ “ig-
nored the fact that the Agency witness admitted to lying in
an official investigation.” Pet. Br. at 2. To support his ar-
guments, Watanabe cites the portions of the decision and
his petition for review discussing the witness Cadina. Id.
(citing Pet. Br. at 10, 44).
We first address the argument that the AJ applied the
wrong law when assessing witness credibility. When mak-
ing credibility determinations an AJ should consider:
(1) [t]he witness’s opportunity and capacity to ob-
serve the event or act in question; (2) the witness’s
character; (3) any prior inconsistent statement by
the witness; (4) a witness’s bias, or lack of bias;
(5) the contradiction of the witness’s version of
events by other evidence or its consistency with
other evidence; (6) the inherent improbability of
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WATANABE v. ARMY 5
the witness’s version of events; and (7) the wit-
ness’s demeanor.
Hillen v. Dep’t of the Army, 35 M.S.P.R. 453, 458 (M.S.P.B.
1987). The AJ did exactly that when it found Cadina’s tes-
timony more credible than Watanabe’s.
The AJ considered that “both men had the same oppor-
tunity and capacity to observe their conversation” but
found that Cadina’s version of events was more plausible
considering his concern over lying to the investigator. Pet.
Br. at 11. The AJ further found that “Cadina’s testimony
was also consistent with the earlier memorandum he pro-
vided [to the investigator]” and that “his demeanor was
candid and forthright” regarding the pressure he felt from
Akeo and Watanabe to “cover-up” for Akeo. Id. And finally,
the AJ found that “Cadina was an unbiased witness, as he
had nothing to gain by admitting to an investigator, and to
the Board, that he had lied to an investigator.” Id. (citing
Hillen, 35 M.S.P.R. at 458). Comparatively, the AJ found
that Watanabe’s testimony was “biased, self-serving, and
implausible.” Id. The AJ therefore applied the correct law
by considering the Hillen factors when evaluating the cred-
ibility of Cadina’s and Watanabe’s testimony.
We next address the argument that the AJ incorrectly
found Cadina’s testimony more credible than Watanabe’s.
“To the extent that the petitioner’s claim is based upon a
challenge to the presiding official’s credibility determina-
tions, we reiterate our previous holdings that these deter-
minations are virtually unreviewable.” Hambsch v. Dep’t
of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986) (collecting
cases). Having found that the AJ applied the correct legal
standard, Watanabe failed to establish any error with the
decision; we therefore find nothing to justify rejecting the
AJ’s determinations as to witness credibility. We therefore
affirm the Board’s decision.
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WATANABE v. ARMY 6
CONCLUSION
We have considered Watanabe’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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