Khalsa v. Merit Systems Protection Board , 561 F. App'x 955 ( 2014 )

NOTE: This disposition is nonprecedential.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 Gen-
eral Counsel, Merit Systems Protection Board, of Wash-
ington, 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 Depart-
ment of Justice, of Washington, DC, for intervenor. With
him on the brief were STUART F. DELERY, Assistant Attor-
ney 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 Mer-
it 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, compen-
sable 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 assum-
ing the bid position’s duties.
KHALSA v. MSPB 3
In January 2009, Mr. Khalsa was informed that, pur-
suant 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 posi-
tion 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 Ser-
vice’s decision to deny his request for restoration was
1 Mr. Khalsa ultimately received a position in De-
cember 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 arbi-
trary, 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 previ-
ous 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 compensa-
ble 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 Ser-
vice 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 rec-
ord, the Administrative Judge determined—and the
Board affirmed the determination—that Mr. Khalsa did
not establish the Board’s jurisdiction. That is, the Admin-
istrative Judge and the Board determined that the agency
did not act arbitrarily or capriciously in denying restora-
tion.
On appeal to this Court, Mr. Khalsa presents essen-
tially 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 dis-
crediting Mr. Ortega’s testimony that Mr. Khalsa com-
plained 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 ap-
peal.” 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 unrebut-
ted 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 limita-
tion.
In light of the foregoing, we find that the Board cor-
rectly concluded that Mr. Khalsa did not show that the
Postal Service acted arbitrarily and capriciously in deny-
ing him restoration, and that the Board lacked jurisdic-
tion to hear Mr. Khalsa’s case under 5 C.F.R. § 353.304(c).
III.
We have considered Mr. Khalsa’s remaining argu-
ments and find them unpersuasive. Because the Board
correctly dismissed Mr. Khalsa’s claims, we affirm.
AFFIRMED
COSTS
No costs.