NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MANJEET S. KHALSA,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent,

AND

UNITED STATES POSTAL SERVICE,

Intervenor.

______________________ 

2014-3009

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF0353110870-I-2.

______________________ 

Decided: April 10, 2014

______________________ 

MANJEET S. KHALSA, of Union City, California, pro se.

MICHAEL A. CARNEY, General Attorney, Office of General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief was 

BRYAN G. POLISUK, General Counsel.
2 KHALSA v. MSPB

ALEXANDER O. CANIZARES, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With 

him on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and 

DEBORAH A. BYNUM, Assistant Director. 

______________________ 

Before REYNA, WALLACH, and HUGHES, Circuit Judges.

PER CURIAM. 

Manjeet S. Khalsa appeals from a decision of the Merit Systems Protection Board dismissing his appeal of the 

United States Postal Service’s denial of restoration rights 

for lack of jurisdiction. Khalsa v. U.S. Postal Serv., No. 

SF-0353-11-0870-I-2 (M.S.P.B. Aug. 7, 2013). Because the 

Board’s conclusion is in accordance with the law and 

supported by substantial evidence, we affirm. 

I.

In 1990, Mr. Khalsa suffered an on-the-job, compensable injury to his back while working as a letter sorting 

machine clerk at a Postal Service facility in California. 

He partially recovered, with medical restrictions on his 

ability to lift, bend, or stand for prolonged periods.

To accommodate his medical restrictions, the Postal 

Service assigned Mr. Khalsa to various modified positions 

at the San Francisco Postal and Distribution Center. In 

2008, Mr. Khalsa received a bid position (a regular, 

funded position with a set position description on which 

people bid) as a mail processing clerk. The physical 

requirements of the bid position, however, exceeded 

Mr. Khalsa’s medical restrictions. Thus, Mr. Khalsa

continued to work in modified positions instead of assuming the bid position’s duties. 
KHALSA v. MSPB 3

In January 2009, Mr. Khalsa was informed that, pursuant to the Postal Service’s National Reassessment 

Process, all modified positions in the San Francisco area 

would be reassessed to determine whether the positions 

were still needed. On September 24, 2009, Mr. Khalsa’s 

supervisor, Gustavo Ortega, informed Mr. Khalsa that his 

modified position would be eliminated and that the Postal 

Service was unable to find any jobs for him within the 

local commuting area that could accommodate his medical 

restrictions. Mr. Ortega also presented Mr. Khalsa a 

letter informing him that his modified position would be 

eliminated. In response, Mr. Khalsa asserted that the 

Postal Service never allowed him to work in his bid position as a mail processing clerk. Even though the bid 

position’s requirements exceeded Mr. Khalsa’s medical 

restrictions, the Postal Service allowed Mr. Khalsa to 

perform those duties on a trial basis.

On September 28, 2009, Mr. Khalsa reported to work 

and completed a four-hour shift in the bid position. 

According to Mr. Ortega, Mr. Khalsa complained the next 

day that he could not perform his duties because the 

duties hurt his back. Mr. Ortega then issued a letter 

stating that Mr. Khalsa’s modified position would be 

eliminated. The letter also instructed Mr. Khalsa not to 

report back for duty unless the Postal Service identified 

necessary work meeting his medical restrictions.1

Mr. Khalsa appealed the Postal Service’s action to the 

Board, alleging that the Postal Service improperly denied 

restoration of his duties. The Administrative Judge

dismissed Mr. Khalsa’s appeal for lack of jurisdiction 

because Mr. Khalsa failed to show that the Postal Service’s decision to deny his request for restoration was 

1 Mr. Khalsa ultimately received a position in December 2010 as a Bulk Mail Unit clerk.

 
4 KHALSA v. MSPB

arbitrary and capricious. On petition for review, the 

Board affirmed the dismissal and made it final. 

Mr. Khalsa appeals the Board’s final decision. We 

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

II. 

We must affirm the Board’s decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law, obtained without procedures 

required by law, rule, or regulation having been followed, 

or unsupported by substantial evidence. 5 U.S.C. 

§ 7703(c). We review the Board’s jurisdictional decisions 

de novo and its findings of fact for substantial evidence. 

Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097, 1101 (Fed. 

Cir. 2011). 

The Federal Employees’ Compensation Act, 5 U.S.C. 

§ 8101 et seq., and its related regulations provide that 

federal employees who suffer on-the-job compensable 

injuries have limited rights to be restored to their previous positions. Under 5 C.F.R. § 353.301(d), an agency

must “make every effort to restore in the local commuting 

area, according to the circumstances in each case, an 

individual who has partially recovered from a compensable injury and who is able to return to limited duty.” If 

the agency denies restoration, the individual may appeal 

to the Board. 5 C.F.R. § 353.304(c). To establish the 

Board’s jurisdiction over an appeal under § 353.304(c), 

however, the individual must prove by a preponderance of 

the evidence that, among other things, the denial of 

restoration was arbitrary and capricious. Bledsoe, 659 

F.3d at 1104; Latham v. U.S. Postal Serv., 117 M.S.P.R. 

400, 409 n.9 (2012). 

The Administrative Judge found that the Postal Service searched unsuccessfully for available work within 

Mr. Khalsa’s medical restrictions in his “local commuting 

area . . . of a 50-mile radius, . . . both inside and outside 
KHALSA v. MSPB 5

[his] craft and regular tour of duty.” I.A 21. Following 

these findings and based on its consideration of the record, the Administrative Judge determined—and the 

Board affirmed the determination—that Mr. Khalsa did 

not establish the Board’s jurisdiction. That is, the Administrative Judge and the Board determined that the agency 

did not act arbitrarily or capriciously in denying restoration.

On appeal to this Court, Mr. Khalsa presents essentially the same arguments he made to the Board. The 

Administrative Judge and the Board addressed all of his 

arguments, and both found that the Postal Service did not 

act arbitrarily or capriciously in denying restoration. We 

agree with the Board.

Mr. Khalsa argues that the Board erred by not discrediting Mr. Ortega’s testimony that Mr. Khalsa complained after the four-hour trial. But the Administrative 

Judge evaluated and “credit[ed] Mr. Ortega’s consistent 

account that [Mr. Khalsa] told him his back hurt and he 

could not perform the job over [Mr. Khalsa’s] conflicting 

statements about whether his back hurt.” I.A. 26. 

“[S]uch evaluations are ‘virtually unreviewable’ on appeal.” King v. Dep’t of Health & Human Servs., 133 F.3d 

1450, 1453 (Fed. Cir. 1998) (quoting Clark v. Dep’t of the 

Army, 997 F.2d 1466, 1473 (Fed. Cir. 1993)). 

Moreover, the Board heard and rejected Mr. Khalsa’s 

argument that his supervisor’s alleged failure to file an 

injury report in September 2009 shows Mr. Khalsa never 

complained of his back hurting after his four-hour trial in 

the bid position. The Board found that Mr. Khalsa raised 

the argument for the first time on petition for review and 

thus, it is not in the record. Additionally, the Board 

determined that Mr. Khalsa did not show why he could 

not have made the argument before close of the record. 

See 5 C.F.R. § 1201.115(a)(2). Consequently, the Board 

properly declined to consider this argument.
6 KHALSA v. MSPB

In any event, the Board properly concluded that the 

physical requirements of the bid position exceeded 

Mr. Khalsa’s medical limitations. Mr. Ortega’s unrebutted testimony demonstrated that the bid position required 

employees to push containers of mail in excess of 80 

pounds, well in excess of Mr. Khalsa’s 50-pound limitation.

In light of the foregoing, we find that the Board correctly concluded that Mr. Khalsa did not show that the 

Postal Service acted arbitrarily and capriciously in denying him restoration, and that the Board lacked jurisdiction to hear Mr. Khalsa’s case under 5 C.F.R. § 353.304(c).

III. 

We have considered Mr. Khalsa’s remaining arguments and find them unpersuasive. Because the Board 

correctly dismissed Mr. Khalsa’s claims, we affirm.

AFFIRMED

COSTS

No costs.