NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

JESSE VALENZUELA,

Petitioner

v.

DEPARTMENT OF THE TREASURY,

Respondent

______________________

2019-2069

______________________

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-18-0805-I-1.

______________________

Decided: April 1, 2020

______________________

JESSE VALENZUELA, Fresno, CA, pro se. 

 STEVEN C. HOUGH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOSEPH H.

HUNT, DEBORAH ANN BYNUM, ROBERT EDWARD 

KIRSCHMAN, JR. 

______________________

Before PROST, Chief Judge, BRYSON and WALLACH,

Circuit Judges.

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2 VALENZUELA v. TREASURY

PER CURIAM.

Jesse Valenzuela petitions for review of a Merit Systems Protection Board (“Board”) decision affirming the Department of the Treasury’s (“Agency”) removal of Mr. 

Valenzuela from his position as a Contact Service Representative. See Valenzuela v. Dep’t of the Treasury, No. SF0752-18-0805-I-1, 2019 WL 2121484 (M.S.P.B. May 7, 

2019) (“Decision”). We affirm.

I

Mr. Valenzuela worked as a Contact Service Representative with the Internal Revenue Service, a bureau of 

the Agency. The Agency removed him from his position because of his medical inability to perform the essential duties of a Contact Service Representative. Mr. Valenzuela 

appealed the Agency’s removal decision to the Board. An 

administrative judge, after reviewing undisputed and disputed facts, witness testimony, and various documents, determined that “the [A]gency ha[d] proven by preponderant 

evidence that [Mr. Valenzuela] was unable to perform the 

essential duties of his regular, assigned position, with or 

without accommodation, because of his medical limitations.” Decision, slip op. at 6. The administrative judge 

then determined that Mr. Valenzuela had “failed to prove 

his affirmative defense of disability discrimination.” Id. at 

7.1 Next, the administrative judge determined that the 

1 As the Government points out, Mr. Valenzuela’s 

Federal Circuit Rule 15(c) Statement indicates that he is 

not challenging the administrative judge’s affirmance of 

his disability discrimination defense. See Resp’t’s Br. 6. 

See also Valenzuela v. Dep’t of the Treasury, No. 19-2069, 

Statement Concerning Discrimination Pursuant to Fed. 

Cir. R. 15(c), ECF No. 19 (Sep. 19, 2019) (“No claim of discrimination by reason of . . . handicapped condition has 

been or will be made in this case.”).

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VALENZUELA v. TREASURY 3

Agency had established the requisite showing of nexus between the removal of Mr. Valenzuela and the Agency’s potential increased efficiency. The administrative judge then 

concluded that the Agency’s removal of Mr. Valenzuela was 

reasonable and appropriate and affirmed the Agency. 

The initial decision became the Board’s final decision 

and Mr. Valenzuela timely petitioned for our review. We 

have jurisdiction under 28 U.S.C. § 1295(a)(9).

II

The scope of our review in a petition for review of a decision of the Board is limited. We must affirm the Board’s 

decision unless it was: “(1) arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law; 

(2) obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). 

III

On petition for review Mr. Valenzuela argues that 

(1) the administrative judge should not have credited the 

testimony of Mr. Gumm or Ms. McElroy—two of the 

Agency’s witnesses; (2) the Agency failed to follow standard 

guidelines and protocol during his removal; (3) the 

Agency’s decision to remove him was illegal and violated 

all applicable federal laws; and (4) the Agency failed to consider his subsequent work restrictions. 

Mr. Valenzuela argues that the administrative judge 

erred in crediting the testimony of Mr. Gumm and Ms. 

McElroy. We disagree. The administrative judge found 

both of these witnesses credible, see Decision, slip op. at 6

n.3, 9, 10, and the administrative judge is the one in the 

best position to evaluate witness credibility, see Hubbard 

v. Department of Veterans Affairs, 51 F. App’x 8, 9 (Fed. 

Cir. Nov. 12, 2002) (declining to disturb an administrative 

judge’s witness credibility determination). “The evaluation 

of witness credibility is a matter within the discretion of 

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4 VALENZUELA v. TREASURY

the [administrative judge] and is virtually unreviewable.” 

Frey v. Dol, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (internal 

quotation marks omitted). Given the deference owed to 

these findings, we decline to reverse the administrative 

judge’s credibility findings in this case.

Mr. Valenzuela also contends that the Agency failed to 

follow those guidelines in the Human Resources management section under the Internal Revenue Manual and the 

Federal Employees Compensation Act. The administrative 

judge, however, found that the Agency followed the guidelines when it utilized its reasonable accommodation process to return Mr. Valenzuela to work. In reaching this 

conclusion the administrative judge credited the testimony 

of Ms. Melendez and Mr. Schoonmaker—testimony that

Mr. Valenzuela has not challenged. The administrative 

judge also determined that Ms. Melendez “went beyond 

what was required” in trying to find Mr. Valenzuela a reasonable accommodation and that Mr. Valenzuela failed to 

show that the agency had any duty beyond utilizing its reasonable accommodations process. Decision, slip op. at 11–

12. Mr. Valenzuela has not provided sufficient argument 

to overcome the administrative judge’s factual determinations. See Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 

(Fed. Cir. 1994) (providing that we will “not overturn [the 

Board’s] decision if it is supported by ‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” (quoting Consol. Edison Co. of New 

York v. NLRB, 305 U.S. 197, 229 (1938)). Accordingly, we 

conclude that substantial evidence supports the administrative judge’s conclusion that the Agency followed these 

guidelines.

We have considered the remaining arguments and find 

them either lacking sufficient detail or unpersuasive. For 

example, as to Mr. Valenzuela’s contention that the 

Agency’s removal decision violated federal law, Mr. Valenzuela has not identified which federal laws were violated. 

And as to Mr. Valenzuela’s argument that the Agency 

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VALENZUELA v. TREASURY 5

failed to consider his subsequent work restrictions, Mr. 

Valenzuela has not identified which work restrictions were 

not considered.2 As we have noted before, “it is not our 

duty to scour the record to find support for a petitioner’s 

allegations or arguments.” Hubbard, 51 F. App’x at 9. 

Nevertheless, we have “reviewed the record before us diligently, and we cannot discern any support” to reverse the 

administrative judge. Id.

We therefore conclude, on the record before us, that the 

administrative judge’s decision is supported by substantial 

evidence and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 

AFFIRMED

COSTS

The parties shall bear their own costs.

2 Upon a review of the Respondent’s Appendix, the 

only appendix submitted in this matter, we note that the 

Agency did consider a January 10, 2018 statement from 

Mr. Valenzuela’s health care provider, which appears to 

address his subsequent work restrictions. See Resp’t’s App. 

27.

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