Case: 19-2069    Document: 40     Page: 1   Filed: 04/01/2020




        NOTE: This disposition is nonprecedential.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, Wash-
 ington, 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 Sys-
 tems Protection Board (“Board”) decision affirming the De-
 partment of the Treasury’s (“Agency”) removal of Mr.
 Valenzuela from his position as a Contact Service Repre-
 sentative. See Valenzuela v. Dep’t of the Treasury, No. SF-
 0752-18-0805-I-1, 2019 WL 2121484 (M.S.P.B. May 7,
 2019) (“Decision”). We affirm.
                               I
      Mr. Valenzuela worked as a Contact Service Repre-
 sentative with the Internal Revenue Service, a bureau of
 the Agency. The Agency removed him from his position be-
 cause of his medical inability to perform the essential du-
 ties of a Contact Service Representative. Mr. Valenzuela
 appealed the Agency’s removal decision to the Board. An
 administrative judge, after reviewing undisputed and dis-
 puted facts, witness testimony, and various documents, de-
 termined 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 limita-
 tions.” 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 dis-
 crimination 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 be-
 tween the removal of Mr. Valenzuela and the Agency’s po-
 tential 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 de-
 cision 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 sub-
 stantial 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 con-
 sider 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 manage-
 ment section under the Internal Revenue Manual and the
 Federal Employees Compensation Act. The administrative
 judge, however, found that the Agency followed the guide-
 lines when it utilized its reasonable accommodation pro-
 cess 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 rea-
 sonable accommodation and that Mr. Valenzuela failed to
 show that the agency had any duty beyond utilizing its rea-
 sonable accommodations process. Decision, slip op. at 11–
 12. Mr. Valenzuela has not provided sufficient argument
 to overcome the administrative judge’s factual determina-
 tions. 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 evi-
 dence 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 adminis-
 trative 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. Valen-
 zuela 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 dili-
 gently, 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 dis-
 cretion, 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.
