Andre Watson v. Department of the Treasury

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDRE WATSON,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2023-2435
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-20-0450-I-2.
______________________
Decided: November 22, 2024
______________________
ANDRE WATSON, Martinez, GA, pro se.
L IRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by REGINALD
T HOMAS BLADES , J R., BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY .
______________________
Before D YK, CLEVENGER , and HUGHES , Circuit Judges.
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WATSON v. TREASURY 2
P ER CURIAM
Andre Watson (“Watson”) seeks review of the final de-
cision of the Merit Systems Protection Board (“Board”),
which sustained the decision of the United States Depart-
ment of the Treasury (“agency”) to remove him from his po-
sition as Police Officer with the agency’s United States
Mint facility at Ft. Knox, Kentucky. Watson v. Dep’t of the
Treasury, No. CH-0752-20-0450-I-2 (M.S.P.B. Aug. 15,
2023) (“Final Order”). For the reasons set forth below, we
affirm the Board’s final decision.
BACKGROUND
This case involves a scheme in which a private investi-
gator was hired to gather information on the personal lives
of two U.S. Mint officials and an investigation by the
agency’s Office of Inspector General (“OIG”) of the scheme.
Watson was charged with participating in the scheme and
with making false statements to the OIG during its inves-
tigation. Effective June 8, 2020, Watson was removed from
his position based on charges of Conduct Unbecoming a
Federal Officer and Lack of Candor in an Official Investi-
gation.
A
Watson began his employment with the agency’s Ft.
Knox facility in 2017. During the summer and fall of 2019,
when he was a Sergeant, Watson unsuccessfully applied for
promotion to Lieutenant.1 The application process involved
a written test and an oral interview. Inspector Kathi Posey
(“Posey”), the second in command at the Ft. Knox facility,
was a member of the promotion panel. Watson had previ-
ously named Posey as a responsible management official in
1 After his unsuccessful promotion attempt, Watson
voluntarily accepted appointment to the lower ranked po-
sition of Police Officer.
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WATSON v. TREASURY 3
his Equal Employment Opportunity (“EEO”) complaints al-
leging agency discrimination against him based on his race
(Black). Watson questioned the accuracy of his test results
because they were lower than what he had achieved on pre-
vious practice tests. He attributed his low test scores to
Posey and thought she should have recused herself from
his interview. Watson mentioned his concerns to Sergeant
Jeffrey Fay (“Fay”), a fellow officer who also failed the pro-
motion examination, saying he was considering hiring
someone to look into the integrity of the promotion process.
During the same time period, fellow Police Officer
Christine Ferguson (“Ferguson”) at the Ft. Knox facility
approached Watson and told him that she was considering
hiring a private investigator to surveil the personal rela-
tionship of Posey and Lieutenant Audrey Boykin
(“Boykin”). Ferguson suspected a close personal relation-
ship between Posey and Boykin and believed that Posey
thus favored Boykin concerning workplace disputes be-
tween Ferguson and Boykin. Watson mentioned Fergu-
son’s plan to Fay, and both laughed at her idea of hiring an
investigator.
A few months later, on December 10, 2019, Watson,
Fay, and Ferguson were all working in the same room at
the facility’s Police Command Center (“PCC”). When Fer-
guson spoke with Watson, she again told Watson of her
plan. Watson asked, “How much is this going to cost you?”
When Ferguson replied that the investigation would cost
her $300, Watson asked why she would want to spend so
much money just to establish whether the two individuals
were having a relationship outside of work. Later that
working session, Ferguson showed Fay a text message on
her phone indicating her intent to hire an investigator. At
2:42 p.m. on the same day, Watson sent a text message to
Fay stating: “The investigator has been hired. If you want
to help with this and make it a three way split, then you’ll
owe $100.” Fay immediately responded, sending a photo-
graph of Peter Falk, the lead actor in the television
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WATSON v. TREASURY 4
detective show Columbo, and writing: “The only investiga-
tor I will agree to is Columbo! I will get back to you, sir! I
was just informed Columbo died in 2011[.]”
On either Thursday, December 12 or Friday, December
13, Fay went to Posey’s office and reported to her that Wat-
son and Ferguson had hired an investigator to follow her
off duty. Fay told Posey that he was 100% certain that both
Watson and Ferguson were involved. On December 16,
Posey sent an email to her immediate headquarters super-
visor that an investigator had been hired to follow her off
duty, expressing alarm for her personal safety and wellbe-
ing as well as that of her family. Posey also reported the
matter to Field Chief Lee Booth (“Booth”). Fay reported his
beliefs to Booth, and in doing so, he referred to the message
that Ferguson showed him in the PCC and the text mes-
sage that he received from Watson, though Fay did not
show Booth Watson’s text message.2
On December 18, Booth summoned Ferguson to his of-
fice. She was accompanied by Police Officer Jimmy Shirley
(“Shirley”), the President of the local union. While Fergu-
son and Shirley were waiting for Booth to appear, Shirley
asked Ferguson if she knew about the scheme and if she
was involved, and she replied “yes” to both questions.
Shirley then asked her if Watson was involved, and she re-
sponded “no.” When Booth entered the room and
2 Fay provided the OIG with the initial part of the text
message from Watson to him, but according to Fay, he did
not include his response messages because he had deleted
the full text thread of his conversation with Watson as part
of his regular practice of deleting text messages, and when
he used iCloud to retrieve the text messages, only Watson’s
initial message was retrievable. The full text message
thread was later supplied to the agency by Watson as part
of his response to the agency’s removal proposal.
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WATSON v. TREASURY 5
questioned Ferguson, he only asked her whether she was
involved in hiring a private investigator, and when she re-
sponded “yes,” he relieved her of duty. As Ferguson was be-
ing escorted off the property by Shirley, they overheard a
radio transmission stating that Watson was summoned to
Booth’s office, and Ferguson asked “why are they calling,
calling Andre? He has nothing to do with it, with this.”
When Watson entered Booth’s office, Booth asked Watson,
who was accompanied by Shirley, whether he was involved
in the scheme, to which Watson answered “no.” Neverthe-
less, Booth relieved Watson of duty based on the infor-
mation received from Fay.
At evening time on the same day, Watson called Fergu-
son on the phone, and Watson secretly recorded the call.3
The call began:
Ferguson: Hello?
Watson: Hey, Christine, it’s Andre.
Ferguson: Hey, Andre.
Watson: Listen. First and foremost, don’t talk to
anybody without Jimmy. That’s number one.
Ferguson: Yes. Well, I’m going to hire a lawyer.
And I talked to the investigator, I’m like, I don’t
know how the hell they found out. Because I can
tell you right now, you and I never spoke in front of
anybody.
Watson: No.
3 Watson provided his secretly recorded telephone con-
versation to the agency as part of his response to the notice
of proposed removal.
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WATSON v. TREASURY 6
Ferguson: Anybody. They must’ve been – either
tapped our emails or my emails, or there’s a tap in
that control room.
Watson: Don’t know, but –
Ferguson: I think there’s some – I think it’s going
to come out that they have – that there’s a miscon-
duct on their end too.
Watson: Well, listen, I’m not even worried about it
because number one, okay, they don’t have any-
thing. . . .
During the call, the parties discussed what evidence
management might have against them. Watson did not tell
Ferguson about his December 10 text message to Fay. Fer-
guson, however, reminded Watson that she had sent an
email to him about hiring a private investigator. The par-
ties also discussed their interviews with Booth:
Ferguson: I told him that I did it.
Watson: You told them that you did it?
Ferguson: Yeah. They asked me if I hired an inves-
tigator, and I said yes. And they asked me if you
knew about it, and I said, no, not until after the
fact. I did it on my own. I need to let you know what
I said.
Watson: Okay. Well, I respect that.
Ferguson: They really, – they really fricking – I
mean, I just – first of all, I hate lying.
Watson: Right.
When Ferguson tried to apologize to Watson, saying:
“Well, Andre, I’m – you know what, I apol- – I am so sorry
I got you—,” Watson replied: ‘No, no, no, no, no. Stop. . . .
Nobody’s mixed up[.]”
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WATSON v. TREASURY 7
Following Watson’s call to Ferguson, Watson called
Shirley on the telephone. Watson asked Shirley why he was
called into Booth’s office if Ferguson had already told him
that Watson had nothing to do with the scheme. Shirley
corrected Watson by informing him that Ferguson had said
nothing to Booth about Watson’s involvement in the
scheme. Shirley then called Ferguson on the telephone and
told her that she had lied to Watson when she told him that
she had exonerated him in front of Booth.
The matter was referred to the OIG, which interviewed
Ferguson, Fay, and Watson on January 6 and 7, 2020. Prior
to Watson’s OIG hearing, Shirley asked Watson if there
was anything Shirley should know, and Watson replied
“no.” After the OIG hearing, when Shirley told Watson that
the investigators had a text message from Watson to Fay,
Watson showed Shirley the entire text message thread.
Shirley said that he was surprised that Watson had not
told him before the OIG interview about the text message,
given he was Watson’s representative and had asked before
the session whether there was anything he should know
from Watson.
Before their OIG testimony, Ferguson and Watson
were given and signed a “Kalkines warning.”4
Based on sworn testimony from Ferguson and Fay that
Watson was aware of and participated in hiring and paying
the private investigator, and notwithstanding Watson’s
4 A Kalkines warning is issued pursuant to Kalkines v.
United States, 473 F.2d 1391 (Ct. Cl. 1973), and advises a
witness of the duty to disclose information in the person’s
possession and the consequence of disciplinary action up to,
and including, dismissal, for failure to do so. See id. at
1393. The warning also provides the witness with immun-
ity from criminal prosecution for statements made or any
information obtained as a result of statements. See id.
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WATSON v. TREASURY 8
sworn denial that he had participated in hiring the private
investigator, the OIG concluded that Watson was involved
in the scheme. The proposing and deciding officials at the
agency relied on the full record of the agency and the OIG
investigations—including the complete text message chain
from Watson to Fay and the secretly recorded telephone
call—to conclude that the evidence provided by Ferguson
and Fay showed Watson’s involvement in the scheme and
that his involvement warranted his removal from service.
B
Watson appealed the removal action to the Board. His
appeal challenged the agency’s removal action and alleged
violation of his Fifth Amendment due process rights based
on the agency’s failure to give him a Miranda warning dur-
ing its interviews with him. He also raised affirmative de-
fenses that his removal was based on his race and was
motivated by agency retaliation for his previously filed
EEO complaint activity. His case was assigned to an Ad-
ministrative Judge (“AJ”), who conducted a two-day Zoom
hearing during which the AJ heard live testimony from
several witnesses.
During the hearing, Ferguson testified that it was her
idea to hire the private investigator, and that she paid $300
and received some results from the investigator’s surveil-
lance. She testified that Watson agreed to participate in
the plan to hire the private investigator and that Watson
paid her $150 at the Ft. Knox facility. She acknowledged
that she had been untruthful to Watson and to Shirley
when she initially informally claimed that Watson was not
involved in the scheme, stating that she “told a white lie
because I was trying to protect him” because she knew
Watson had been disciplined previously for misconduct.
She testified that after being informed by Shirley that she
would be under oath when testifying before the OIG and
could lose her job if she were untruthful to the OIG, she
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WATSON v. TREASURY 9
told the truth when testifying to the OIG that Watson was
involved in the scheme.
Fay testified that he and Watson had discussed Fergu-
son’s plan to hire a private investigator, that he had seen
Watson and Ferguson whispering to each other in the PCC,
and that Watson sent him the text message confirming the
hiring of the investigator and Watson’s involvement and
asking him to join the scheme and share its cost. Fay ad-
mitted that he and Watson had a joking relationship in pre-
vious text messages between them and that his text
response that he would participate only if Columbo was
hired was his joking way of saying he wanted no part of the
scheme. Fay also testified that he did not treat Watson’s
text message offer as a joke, as proved by the fact that Wat-
son’s text message prompted him to disclose the scheme to
his superiors.
Watson testified that he had been aware of Ferguson’s
plan, which he treated as a joke. He however adamantly
denied that he participated in the plan by agreement to it
and by paying any money to the investigator. Watson tes-
tified that his text message to Fay was just a joke, as evi-
denced by Fay’s responses.
In her decision following the hearing, the AJ recog-
nized that the varying versions of who was involved in ex-
ecution of the scheme required credibility determinations
regarding the three key witnesses. Watson v. Dep’t of the
Treasury, No. CH-0752-20-0450-I-2, at 7 (M.S.P.B. Sept. 9,
2021) (“Initial Decision”). The AJ found Fay’s testimony not
credible for several reasons, including Fay’s difficulty re-
calling specific facts and dates. Id. at 8. The AJ doubted
Fay’s testimony that he only was able to retrieve the first
part of the December 10 text message and faulted Fay for
not having alerted Booth to his lighthearted response to
the first part of the text message. Id. at 8-9. The AJ con-
cluded that Fay’s testimony was not credible because the
full text message thread possibly implicated Fay in the
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WATSON v. TREASURY 10
scheme, and, thus, Fay had a motive to avoid any appear-
ance that he had anything to do with the scheme. Id. at 9.
The AJ found Fay’s demeanor at the hearing “uncomforta-
ble” when relating his version of Watson’s involvement in
the scheme. Id. at 11.
The AJ found Ferguson’s testimony not credible “in
great part because, at various times, she has both denied
and affirmed the appellant’s involvement in her plan.” Id.
at 12. The AJ found that Ferguson had a motive to spread
culpability for her plan to Watson because she knew that
Watson was under investigation as a possible accomplice,
rejecting as implausible Ferguson’s claim that she told
“white lies” to Watson and Shirley just to protect Watson,
but that she told the truth about Watson’s involvement to
the OIG because she could lose her job if she was not truth-
ful to the OIG. Id. at 14-15. In addition, the AJ noted that
Ferguson’s face turned bright red as she tried to justify tell-
ing two versions of Watson’s involvement, indicating to the
AJ that Ferguson was uncomfortable with her testimony
given under oath at the hearing. Id. at 14.
Regarding Watson’s testimony at the hearing, the AJ
found that his demeanor was “calm and professional.” Id.
at 16. The AJ credited Watson for having consistently and
steadfastly denied involvement in hiring and paying the
private investigator throughout the agency’s investigations
and the hearing. Id. at 16. Contrary to the assessment of
Ferguson’s credibility, as to Watson the AJ concluded that
“[t]here is no indication that [Watson] ha[d] previously lied
or ha[d] a propensity not to tell the truth.” Id. at 16.
The AJ concluded that Watson “is more truthful than
the agency’s two principal witnesses[,]” and, therefore, she
credited Watson’s testimony over that of the other two wit-
nesses. Id. at 16-17. In relying on Watson’s version of the
facts, the AJ agreed with Watson’s testimony that his De-
cember 10 text message to Fay was entirely a joke and thus
not relevant to the question of Watson’s credibility. The AJ
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WATSON v. TREASURY 11
also found no basis for doubting Watson’s credibility based
on his telephone call to Ferguson the evening of the day
when both of them had given statements to Booth.
Upon rejecting the testimony of the agency’s two prin-
cipal witnesses and crediting Watson’s testimony, the AJ
concluded that the “the agency failed to prove by prepon-
derant evidence that the appellant was involved” in the
scheme. Id. at 16-17. Thus, the agency failed to sustain its
charge of Conduct Unbecoming a Federal Officer. Id. at 17.
Because the agency’s case on the charge of Lack of Candor
in an Official Investigation depended on the same evidence
as the other charge, the AJ likewise found that the agency
failed to sustain that charge. Id. at 17-18.
As to Watson’s other arguments, the AJ rejected Wat-
son’s argument that the agency violated his due process
rights by failing to give him a Miranda warning. Id.at 18.
Because the OIG session was not a custodial interrogation,
the AJ found the agency was not required to give Watson a
Miranda warning. Id. at 19. The AJ also noted that Watson
was given a Kalkines warning before his OIG testimony,
which effectively granted him immunity from his state-
ments being used against him in a criminal prosecution. Id.
at 18-19. The AJ also found that Watson failed on the facts
to sustain his two affirmative defenses. Id. at 19-20.
The AJ ordered the agency in the interim to cancel
Watson’s removal and to restore him to duty with appro-
priate back pay and benefits.
C
The agency filed a petition with the Board challenging
the AJ’s credibility findings. Watson, represented by coun-
sel, filed a response that did not address the merits of the
agency’s petition but instead moved to dismiss the petition
on the grounds of the agency’s failure to comply with the
interim relief obligations ordered by the AJ. The Board’s
decision first rejected Watson’s motion to dismiss, finding
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WATSON v. TREASURY 12
agency compliance notwithstanding the agency’s failure to
include with its petition a certification that it had satisfied
its interim obligations. Final Order at ¶ 9. The Board’s de-
cision then turned to the merits of the agency’s petition.
The Board recognized that the AJ’s decision turned on
credibility findings and acknowledged that the AJ made
demeanor-based credibility findings. Id. at ¶ 11. The Board
noted it normally defers to demeanor-based credibility
findings of an AJ and is authorized to overturn such find-
ings only if the record as a whole provides sufficiently
sound reasons to do so. Id. at ¶ 11 (citing Haebe v. Dep’t of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)). On review of
the record, the Board found sound reasons to overturn the
AJ’s credibility determinations.
With regard to Watson, the Board pointed to evidence
casting doubt on Watson’s credibility, which the AJ had not
considered in finding Watson’s testimony entirely credible.
In particular, the Board noted that Watson testified under
oath to the OIG that he did not know why Ferguson would
want to hire an investigator. Final Order at ¶ 12. The
Board also pointed to the OIG’s question to Watson
whether he knew of any phone calls or text messages indi-
cating that anyone else knew about Officer Ferguson’s
plan, and Watson’s denial of any such knowledge. Id. at ¶
12. Because the record showed that Watson knew the rea-
son why Officer Ferguson hired the investigator and knew
from his telephone calls and text message that others knew
about the scheme, the Board faulted the AJ’s credibility de-
terminations for failure to take account of the grounds for
doubting Watson’s credibility. Id. at ¶¶ 13-15.
The Board also faulted the AJ’s assessment of Fergu-
son’s credibility. The Board noted that the AJ’s determina-
tion was largely based on the fact that Ferguson told two
versions of Watson’s involvement, first lying to Shirley and
Watson that she had exonerated Watson and then testify-
ing under oath before the AJ that Watson was involved in
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WATSON v. TREASURY 13
the scheme. Id. at ¶ 16. Ferguson’s claim that she had lied
initially to protect Watson but told the truth under oath
was deemed implausible and thus not credible by the AJ.
The Board found the AJ’s finding insufficient, stating that
“[i]t is entirely plausible that Officer [Ferguson] would ini-
tially attempt to cover up the appellant’s involvement in
her plan during informal discussions but admit the truth
when faced with an official OIG interview or hearing testi-
mony under oath.” Id. at ¶ 17. The Board also faulted the
AJ’s credibility assessment of Ferguson when the AJ found
without explanation or citation to any evidence that Fergu-
son had a motive to spread the culpability for her plan to
Watson. Id. at ¶ 18.
Finally, the Board determined that some of the reasons
cited by the AJ in assessing Fay’s testimony as not credible
were not well reasoned, citing Fay’s inability to recall spe-
cific timing of events as usual given the passage of time
between events and the hearing and thus not a sufficient
ground for undermining credibility. Id. at ¶¶ 19-20.
Given the AJ’s failure to consider the record-based
grounds for doubting the credibility of Watson and aspects
of error in assessing the credibility of Ferguson and Fay,
the Board determined that it had sufficiently sound rea-
sons to reject the credibility determinations made by the
AJ. Id. at ¶ 11. Having found sufficiently sound reasons to
reject the demeanor-based credibility determinations by
the AJ, the Board is empowered to make its own credibility
assessments. Upon review of the full record, the Board
made its own determination regarding the credibility of the
witnesses, declining to credit Watson’s testimony, and ac-
cepting the testimony of the two agency witnesses, thus
finding that “the agency’s witnesses’ version of events is
more likely than the appellant’s version of events.” Id. at ¶
22. The Board sustained the agency’s removal action and
affirmed the AJ’s findings that Watson failed to prove his
affirmative defenses of discrimination and retaliation and
his allegation of violation of his due process rights.
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WATSON v. TREASURY 14
Watson timely petitioned this court for review of the
Board’s final decision. We have jurisdiction under 28
U.S.C. § 1295(a).
D ISCUSSION
Our review of a final Board decision is governed by 5
U.S.C. § 7703(c): we set aside findings or conclusions of the
Board only if such findings or conclusions are “arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; obtained without procedures required
by law, rule or regulation having been followed; or unsup-
ported by substantial evidence.” Substantial evidence is
“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Consol. Edison Co. v.
NLRB, 305 U.S. 197, 217 (1938). The Board accepts de-
meanor-based credibility findings by an AJ, unless suffi-
ciently sound reasons exist in the record to reject such
determinations. See Haebe, 288 F.3d at 1301. The question
of whether a Board decision states sufficiently sound rea-
sons to reject an AJ’s demeanor-based credibility determi-
nations is reviewed for substantial evidence. Id.
Watson appears before this court pro se. His informal
brief challenges the Board’s final decision by arguing gen-
erally that the AJ correctly assessed the credibility of the
relevant witnesses. He does not address the question of
whether the Board stated sufficient reasons to reject the
AJ’s credibility determinations. Second, he argues that the
Board failed to consider that “the [a]gency, when deciding
to terminate me, utilized information obtained after the
close of the investigation to formulate their decision.” Ap-
pellant’s Informal Br. at 2. Third, Watson faults the Board
for failure properly to apply Giglio v. United States, 405
U.S. 150 (1972) to his case. Fourth, he argues that the
Board erred “because of several due process violations,”
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WATSON v. TREASURY 15
citing only the agency’s failure to give him a Miranda
warning.”5 See Appellant’s Informal Br. at 2.
A
When a case is decided by an AJ, the AJ’s decision is
“an initial (or recommended) decision.” Connolly v. U.S.
Dep’t of Justice, 766 F.2d 507, 512 (Fed. Cir. 1985) (citing 5
C.F.R. § 1201.111). If an initial AJ decision is appealed to
the Board, as in this case, the Board assumes plenary au-
thority over the case and may affirm, reverse, remand,
modify, or vacate the decision of the AJ in whole or in part.
Id. The Board is free to substitute its judgment for that of
the AJ, even as to credibility determinations that are not
based on observations of the demeanor of a testifying wit-
ness. Haebe, 288 F.3d at 1302. But where credibility deter-
minations are demeanor-based, as in this case, the Board
must find sufficiently sound record-based reasons to reject
an AJ’s demeanor-based credibility determinations before
the Board may make its own credibility determinations. Id.
at 1301. Sufficiently sound reasons include circumstances
when an AJ’s findings are incomplete, inconsistent with
the weight of the evidence, or do not reflect the record as a
whole. Faucher v. Dep’t of the Air Force, 96 M.S.P.R. 203 ¶
8 (2004); Wallace v. Dep’t of Com., 106 M.S.P.R. 23 ¶¶ 14-
16 (2007).
5 Although Watson’s informal brief refers to his affirm-
ative defense of race discrimination, that issue is not before
us. In his Federal Rule 15(c) Statement Concerning Dis-
crimination, Watson certified that he wishes to abandon
his discrimination claim, “and only pursue civil service
claims in the Federal Circuit.” Fed. Cir. R. 15(c) Statement
Concerning Discrimination at 3, Watson v. Dep’t of the
Treasury, No. 2023-2435 (Fed. Cir. Nov. 6, 2023), ECF No.
6.
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WATSON v. TREASURY 16
By arguing that the AJ’s credibility determinations
were correct, we treat Watson as arguing that the Board
erred in substituting its own credibility determinations for
those of the AJ, thus raising the question of whether the
Board had sufficiently sound reasons, supported by sub-
stantial evidence, to reject the AJ’s credibility determina-
tions and exercise its plenary authority to credit the
testimony of the two agency witnesses and discredit Wat-
son’s testimony. See Haebe, 288 F.3d at 1301.
Substantial evidence supports the Board’s determina-
tion of sound reason to reject the AJ’s credibility determi-
nations. Most significantly, in giving Watson full
credibility, the AJ overlooked that the record demonstrated
inconsistencies between Watson’s OIG testimony and rec-
ord evidence. During his OIG testimony, Watson testified
that he did not ask anybody else about the scheme and that
he did not send any text messages to or have phone calls
with anyone about the scheme. However, Watson’s own tes-
timony in front of the AJ acknowledged that he sent Fay a
text message and called Ferguson about the scheme. Initial
Decision at 5. Watson also testified during his OIG testi-
mony that he did not know why Ferguson was hiring the
private investigator, but again, Watson’s own testimony in
front of the AJ contradicted his earlier statements. Id. at 4.
The AJ also overlooked that Watson had not been forth-
right with Shirley by withholding information about his
text message with Fay. Thus, in measuring Watson’s cred-
ibility, the AJ failed to balance factors supporting Watson’s
credibility with factors giving rise for doubt as to his credi-
bility.
With regard to Ferguson, the Board found no record-
based support for the AJ’s statement that Officer Ferguson
had a motive to spread the culpability of her plan to Wat-
son. Final Order at ¶ 18. The Board also found that the AJ
had no sound reason to reject as implausible Ferguson’s ex-
planation about why she initially sought to exonerate
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WATSON v. TREASURY 17
Watson but later testified under oath that he was indeed
involved in execution of her scheme. Id. at ¶ 17. As for Fay,
the Board faulted the AJ insofar as Fay’s testimony was
not credible because he could not remember the specifics of
events and times. Id. at ¶ 20.
Having found sound reasons to fault the AJ’s credibil-
ity determinations, the Board was free to make its inde-
pendent assessment of the record, including which of the
witnesses to find more truthful than others. The Board par-
ticularly disagreed with the AJ’s assessment that the text
message from Watson to Fay on December 10 was entirely
a joke and thus of no consequence to determination of
which parties were involved in execution of Ferguson’s
scheme. Although Fay’s response was joking in nature, the
Board found the first part of the text to be clear evidence of
Watson’s involvement in the scheme. The Board also disa-
greed with the AJ’s decision to not count the content of
Watson’s telephone call to Ferguson as bearing negatively
on Watson’s credibility. Instead, the Board found that the
transcript of the telephone call contradicted Watson’s ver-
sion of the events that he was not involved and that he
thought Ferguson had been joking about hiring an investi-
gator. The transcript also corroborated Ferguson’s testi-
mony that the scheme was her idea, that she felt bad about
getting Watson involved, and that she initially tried to pro-
tect him. The Board thus found the AJ’s credibility deter-
minations contrary to the weight of the evidence, given the
testimony of the two agency witnesses, the December 10
text message, and the transcript of the December 18 tele-
phone call.
On substantial evidence review, we see no error in the
Board’s determination that sufficiently sound record-based
evidence permitted it to reject the AJ’s demeanor-based
credibility determinations.
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WATSON v. TREASURY 18
B
Watson’s argument that the Board failed to consider
that the agency used information obtained after the close
of the investigation to formulate its decision to terminate
him did not identify the information to which he referred.
But from review of the full record, we surmise that the in-
formation to which he refers is the part of the text message
containing Fay’s response to Watson’s offer in the first part
of the December 10 text message. As noted above, it is true
that Fay gave the OIG investigators only the first part of
the text message thread, and that the full text was given to
the agency by Watson in his attorney’s response to the
agency’s proposed removal action. Watson’s response to the
proposed removal argued that the full text message thread
proved that the whole message was a joke and thus was not
evidence of Watson’s complicity in the scheme.
Watson’s argument is misplaced. The Board did not fail
to consider the manner in which the text message was di-
vulged. The agency’s deciding officials had the full text
message and heard Watson’s argument that the whole
message was merely a joke and not evidence of Watson’s
participation in the scheme. At the hearing, Watson relied
on Fay’s responses, arguing that it proved that the whole
message was no more than a joke. The AJ agreed with Wat-
son, but the Board, as noted above, correctly disagreed and
found the text message proof of Watson’s involvement in
the scheme. We see no basis for error in the Board’s final
decision based on the fact that only the first part of the text
message was initially given to the OIG by Fay.
C
Watson’s argument that the Board failed properly to
apply Giglio v. United States is also misplaced. Giglio co-
vers a fact situation in which the government knows that
there is clear reason to fault the credibility of one of its wit-
nesses but fails to disclose that information to a criminal
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WATSON v. TREASURY 19
defendant and allows the case to go to judgment. 405 U.S.
at 151-53. That situation results in a violation of due pro-
cess and the requirement for a new trial. Id. at 154-55.
Watson’s argument states that Giglio should be ap-
plied to Ferguson and Fay. But Watson points to no infor-
mation in the agency’s hands that gave the agency clear
reason to doubt the credibility of either agency witness.
That the AJ made post-hearing determinations that the
agency witnesses were not credible does not demonstrate
that the agency had clear reason to suspect the truth of its
two witnesses before they testified. The Board properly de-
termined that the AJ’s assessment of the two witnesses’
credibility is incorrect, meaning the agency did not have
any information adverse to the agency’s witnesses’ credi-
bility that would trigger a violation of due process under
Giglio. Further, Giglio related to due process violation in
the criminal prosecution setting. Because there is no basis
for application of that case to this case, we need not decide
if Giglio also applies in non-criminal settings.
D
Finally, Watson argues that his due process rights
were violated by the failure of the agency to give him a Mi-
randa warning before his OIG interview. The AJ and the
Board rejected Watson’s claim, as do we. In Miranda v. Ar-
izona, the Supreme Court required that before any ques-
tioning of a persons suspected or accused of committing a
crime, “the person must be warned that he has a right to
remain silent, that any statement that he does make may
be used as evidence against him, and that he has right to
the presence of an attorney, either retained or appointed.”
384 U.S. 436, 444, 467 (1966). The need for Miranda warn-
ings arises in custodial interrogations, id. at 444, and one
is in custody for Miranda purposes when “there is a ‘formal
arrest or restraint on freedom of movement’ of the degree
associated with a formal arrest.” California v. Beheler, 463
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WATSON v. TREASURY 20
U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429
U.S. 492, 495 (1977)).
Nothing in the record indicates that Watson was in cus-
tody. The AJ correctly noted that Watson was never ar-
rested, never compelled to answer questions, and was free
to leave during his interviews with Booth and the OIG. In-
itial Decision at 19. Further, he was given the Kalkines
warning before his OIG testimony, which insulated him
from criminal prosecution. For these reasons, we agree that
Watson fails to show a violation of his due process rights.
CONCLUSION
For the reasons set forth above, we conclude that the
sufficiently sound record-based reasons identified by the
Board support its rejection of the AJ’s credibility determi-
nations. Consequently, the Board was free to make its own
credibility determinations, which support the agency’s re-
moval action against Watson. We therefore affirm the final
decision of the Board.
AFFIRMED
COSTS
No costs.
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