N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ MANJEET S. KHALSA, Petitioner,

v.

MERIT SYSTEMS PROTEC TION 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

______________________

M ANJEET S. K HALSA , of Union City, California, pro se.

M ICHAEL A. C ARNEY , General Attorney, Office of Ge neral Counsel, Merit Systems Protection Board, of Was hington, DC, for respondent. With him on the brief was B RYAN G. P OLISUK , General Counsel.KHALSA v. MSPB 2

A LEXANDER O. C ANIZARES , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for intervenor. With him on the brief were S TUART F. D ELERY , Assistant Atto rney General, B RYANT G. S NEE , Acting Director

, and D EBORAH A. B YNUM , Assistant Director.

______________________

Before R EYNA , W ALLACH , and H UGHES , Circuit Judges.

P ER C URIAM

. Manjeet S. Khalsa appeals from a decision of the Me rit Systems Protection Board dismissing h is appe al 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 , compe nsable in jury to his back while working as a letter sorting machine clerk at a Postal Servic e 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 as signed Mr. Khalsa to various modified positions at the San Francisco Postal and Distribution Center. I n 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 position s instead of assu ming the bid position’s duties

.KHALSA v. MSPB 3

In January 2009, Mr. Khalsa was informed that , pu rsuant to the Postal Service’s National Reassessment Proc ess, 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 elimina ted 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 pos ition 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 becau se the duties hurt his back. Mr. Ortega then issue d a letter stating that Mr. Khalsa ’s modified position would be eliminated . The letter also instruct ed Mr. Khalsa not to report back for duty unless the Postal Service identified necessary work meeting hi s 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 . T he Administrative Judge dismissed Mr. Khalsa ’s appeal for lack of jurisdiction because Mr. Khalsa failed to show that the Postal Se rvice’s decision to deny his request for restoration was

1 Mr. Khalsa ultimately received a position in D ece m ber 2010 as a Bulk Mail Unit clerk.KHALSA v. MSPB 4

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 h ave jurisdiction und er 28 U.S.C. § 1295(a)(9)

. II.

We must affirm the Board’s decision unless it is arb itrary, capricious, an abuse of discretion, or otherw ise not in accordance with law, obtained without procedures required by law, rule, or regula tion hav ing been followed,

or unsupported by substantial evidence

. 5 U.S.C. § 7703(c)

. We review the Bo ard’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 prev ious 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 compens able injury and who is able to retur n to limited duty.” If the agency denies restoration, t he individua l may appeal to the Board

. 5 C.F.R. § 353.304(c). To establish the Board’s jurisdiction over a n appeal under § 353.30 4(c)

, however, t he individual must prov e by a preponderance of the ev idence that , among other things, the denial of restoration was arbitrary and capricious. Bledsoe , 659 F.3d at 110 4 ; Latham v. U.S. Postal Serv. , 117 M.S.P.R. 400, 409 n.9 (2012)

. T he Administrative Judge found that the Postal Se rvice searched unsuccessfully for available work within Mr. Khalsa ’s medical restrictions in his “local commuting

area

. . . of a 50

- mile radius,

. . . both inside and outsideKHALSA v. MSPB 5

[his] craft and regular tour of duty.” I.A 21. Following these findings and bas ed on its consideration of the re cord, the Administrative Judge determined— and the Board affirmed the determination

— that Mr. Khalsa did
not establish the Board’s jurisdic tion. That is, the Admi nistrative Judge and the Board determined that the agency did not act arbitrarily or capriciously in denying restor ation.
On appeal to this Court, Mr. Khalsa presents esse ntially the same arguments he made to the Board. The Administrative Judge and the Board addressed all of his arguments, and both found that the Po stal Service did not act arbitrarily or capriciously in denying restoration. We agree with the Board.

Mr. Khalsa argues that the Board erred by not di screditing Mr. Ortega’s testimony that Mr. Khalsa co mplain ed after the four

- hour trial . But the Administ rative 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 a ppeal.” 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 peti tion for review and thus, it is not in the record. Additionally, t he 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.KHALSA v. MSPB 6

In any event, the Board properly concluded that the physical requirements of the bid position exceeded Mr. Khalsa ’s medical limitations. Mr. Ortega ’s unrebu tted 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 limit ation.
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 caprici ously in den ying him restoration , and that the Board lacked jurisdi ction to hear Mr. Khalsa ’s case under 5 C.F.R. § 353.304(c).

III.

We have considered Mr. Khalsa ’s remaining arg uments and find them unpersuasive. Because the Board correctly dismissed Mr. Khalsa ’s claims , we affirm.

AFFIRMED

C OSTS

No costs.