N OTE : This disposition is nonprecedential.



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

______________________

EDWARD J. SIMPKINS, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

______________________

2012

- 3201

______________________

Petition for review of the Merit Systems Protection

Board in case n o. DC844E110968 -I- 1.

______________________

Decided: March 8, 2013

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E DWARD J. S IMPKINS , Greenbelt, Maryland, pro se

J EFFRE Y D. K LINGMAN , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With

h im on the brief were S TUART F. D ELERY

, Principal Assistant Attorney General, J EANNE E. D AVIDSON , Dir ector,
and R EGINALD T. B LADES

, J R

. , Assistant Director. E ARL A. S ANDERS , Attorney, Office of General Counsel, Office of Personnel Management, of Washington, DC.EDWARD SIMPKINS v. OPM 2

______________________ Before R ADER

, Chief Judge, O'M ALLEY

, and R EYNA

, Circuit Judges.

P ER C URIAM

. Edward Simpkins appeals from a final order of the Merit Systems Protection Board (“the Board”) denying his petition for review of an initial decision of the Board dismissing his appeal as barred by the doctrine of res judicata . Because the Board properly determined that res judicata barred a new claim by Mr. Simpkins, and b ecause the Board did not act arbitrarily in declining to reopen Mr. Simpkins’ prior claim, we affirm.

Mr. Simpkins served in the United States Navy from 1980 through 1986, at wh ich point he was honorably discharged with disability severance pay. After his di scharge, Mr. Simpkins began receiving disability pay from the Department of Veterans Affairs (“DVA”) for his se rvice

- connected condition of hypertension with left ventri cular hypertrophy. In July 2000, Mr. Simpkins began working as a Benefits Advisor with the Department of Labor. In October 2008, Mr. Simpkins applied to the Office of Personnel Management (“OPM”) for disability retirement under the Federal Employees Retiremen t System (“FERS”) based on the medical conditions of hypertension, mitral valve prolapse, and high cholesterol. In early 2009, Mr. Simpkins resigned from his Benefits Advisor position. In June 2009, OPM denied Mr. Sim pkins ’ application for disability ret irement under FERS. Mr. Simpkins ap pealed to the Board.

An administrative judge (“AJ”) of the Board denied Mr. Simpkins’ initial appeal. The full Board denied Mr. Simpkins’ petition for review of the AJ’s initial decision, but reopened and remanded the m atter to the AJ based

on new evidence that in October 2009 the DVA had i ncreased Mr. Simpkins’ disability rating. Simpkins v.EDWARD SIMPKINS v. OPM 3

Office of Pers. Mgmt. , DC

- 844E

- 09

- 0623 -I- 1, 2010 WL 958079 (M.S.P.B. Mar. 16, 2010)

. On remand, the AJ ordered Mr. Simpkins to submit any additional medical
evidence on which the DVA had relied in its rating dec ision. Mr. Simpkins submitted to the AJ various doc uments, including the DVA’s October 2009 rating decision,
but the AJ found these documents insufficient to ove rcome the weight of the evidence. The AJ specifically noted Mr. Simpkins’ failure to produce the medical re cords on which the DVA had relied in establishing his new disability rating. The AJ again af firmed OPM’s original denial of Mr. Simpkins’ application for FER S benefits

, and the full Board denied Mr. Simpkins’ petition for review. Mr. Simpkins petitioned our court for review of

the Board’s decision.

In February 2011, w e affirmed the Board’s decision, finding no reversible error in the Board’s determination

tha t the medical evidence of record supported a conclusion that Mr. Simpkins’ conditions were being managed through medication such that he could continue to pe rform his duties. Simpkins v. Office of Pers. Mgmt. , 411 F. App’ x 323, 326 (Fed. Cir. 2011). We n oted the Board’s determination that, although Mr. Simpkins had not
submit ted the medical evidence underlying the DVA’s

2009 rating decision, the DVA’s decision actually suppor ted the finding that Mr. Simpkins’ medical conditions did
not preve nt useful and efficient service, and were being

man aged through medication. Id.

In March 2011, the DVA revised Mr. Simpkins’ se rvice

- connected disability rating to 100%. Based on the DVA’s adjustment of his disability rating, Mr. Simpkins again appeal ed to the Board f rom OPM’s original denial

in 2009 of his application for disability retirement under
FERS . In December 2011, an AJ dismissed Mr. Simpkins’ appeal as barred by res judicata

. T he AJ determined that Mr. Simpkins had “previously filed an appeal of OPM’s

deni al of his application for disability retirement based onEDWARD SIMPKINS v. OPM 4

the same medical conditions at issue in this appeal, which was fully litigated and resulted in a final judg ment on the
merits.” The AJ considered the DVA’s March 2011 revised rating decision, but fo und that the DVA’s decision did not warrant reopening Mr. Simpkins’ original appeal. Mr. Simpkins petitioned the full Board for review.

The full Board denied Mr. Simpkins’ petition for r eview. The Board found that res judicata barred Mr. Simpkins’ appeal to the extent it represented a new appeal of OPM’s original 2009 decision. The Board reco gnized, however, that Mr. Simpkins presented previously unavailable evidence, that is, the DVA’s March 2011 decision to revise Mr. Simpkins’ disability rating to 100 %. The Board thus considered whether it should reopen Mr. Simpkins’ prior appeal.

The Board first noted that DVA disability ratings are
based on criteria different from those relevant to disabi lity benefits under FERS. Further, the Board determined that Mr. Simpkins’ submissions failed to show that the
DVA had increased his disability rating based on a change in any medical condition at issue in his prior appeal . Rather, the Board found, “the increased disability rating was based on new conditions not raised before OPM or the Board in the prior appeal.” The Board thus concluded that “the DVA’s new disability rating does not constitute strong evidence in favor of a different outcome for this appeal” and denied Mr. Simpkins’ request to reopen his prior appeal.

Mr. Simpkins appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

S TANDARD OF R EVIEW

The scope of our review in an appeal from a decision
of the Board is limited. In general , we can set asid e the
Board’s decision only if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordanceEDWARD SIMPKINS v. OPM 5

with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) u nsupported by substantial evidence.” 5 U.S.C. § 7703(c);

see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v.

N LRB , 305 U.S. 197, 229 (1938).

In the case of the denial of a request for disability r etirement, our review is limited further

. Pursuant to 5 U.S.C. § 8461(d), we are precluded from reviewing the factual underpinnings of physical disability determin atio ns, but may address whether there has been “a su bstantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error ‘going to the heart of the administrative determin ation.’” Anthony v. Office of Pers. Mgmt. , 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl v. Office of Pers. Mgmt.

, 470 U.S. 768, 791 (1985)).

R ES J UDICATA

To the extent Mr. Simpkins’ appeal represents a new challenge to OPM’s original 2009 denial of his application for disability retire ment under FERS, we agree with the Board that Mr. Simpkins’ appeal is barred by res judicata

.
The doctrine of res judicata , also known as “claim pr eclusion,” serves to “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resour ces, and, by preventing inconsistent decisions, enco urage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Res judicata applies if (1) the prior decision was rendered by a forum with competent jurisdiction; (2) the prior decision was a final decision on the merits; and (3) the same cause of action and the same parties or their privies

were involved in both cases. Carson v. Dep't of Energy

, 398 F.3d 1369, 1375 (Fed. Cir. 2005)

.EDWARD SIMPKINS v. OPM 6

Here, all three criteria are satisfied. Mr. Simpkins pursued his prior appeal from OPM’s original 2009 dec ision first to the Board and then to our court. We affirmed
the decision of the Board. O ur affirmance of the Board’s decision was a final decision on the merits by a tribunal of competent jurisdiction. In his current appeal, Mr. Sim pkins again challenges OPM’s original 2009 denial of his application for disability retirement under FERS. T hi s is

the same issue which the identical parties have already litigated in full. Accordingly

, res judicata bars Mr. Sim pkins’ appeal to the extent it represents a new appeal of OPM’s original denial of his application for disability

retirement under FERS

.

R EOPENING P RIOR A PPEAL

We find further that t he Board did not abuse its di scretion in determining that the DVA’s March 2011 revised disability rating does not warrant reopening Mr. Sim pkins’ previous appeal. We find the Board did not abuse its

discretio n for three reasons.

First, as the Board noted, different statutes and reg ulations govern service

- connected disability determination s by the DVA. The DVA bases disability ratings on criteria different from those at issue in determining eligibility for

ret irement benefits under FERS. While we must consider an applicant’s established eligibility for other disability benefits, including underlying medical data, such eligibi lity is not determinative of disability benefits under FERS. Dunbar v. Office of Pers. Mgmt. , 280 F. App'x 984, 985 (Fed. Cir. 2008) (“ Thus, while petitioner here had received

. . . VA disability ratings, these ratings did not bind OPM
to find him disabled under FERS. ”); cf. Trevan v. Office of Pers. Mgmt. , 69 F.3d 520, 526 (Fed. Cir. 1995 ) (“ There is no indication in either the statute or the legislative hist ory that

. . . determinations made by the Social Security Administration regarding award and continuation of Social Security disability benefits govern OPM’ s admi n-EDWARD SIMPKINS v. OPM 7

istration of FERS ben efits.”); Furlong v. United States

, 153 Ct. Cl. 557 (1961) (“ So far as the action of the Vete rans Administration is concerned, w e have many times
held that the basis for its action is different from the basis upon which a retiring board determines whether or not an officer is entitled to retirement for physical disability, and that a finding by the Veterans Administration, that a plaintiff is disabled, does not show that the finding of the Retiring Board, that he was not entitled to retirement for physical disability, is arbitrary or capricious or even

erroneous. After all, jurisdiction to determine a person's entitlement to retirement is vested by law in the Retiring Board, and not in the Veterans Administration.” (internal citations omitted)).

Second, the DVA’s March 2011 revised rating decision did not increase Mr. Simpkins’ disability rating due to any of the three medical conditions on which Mr. Sim pkins based his 2008 application for disability retirement
under FERS (that is, hypertension, mitral valve prolapse, or high cholesterol). “ OPM regulations ,” however, “ require the appellant to provide medical documentation supporting the claim for disability. ” Reilly v. Office of Pers. Mgmt. , 571 F.3d 1372, 1380 (Fed. Cir. 2009) . As the Board noted, the DVA ’s 2011 evaluation of Mr. Simpkins’ disability due to hypertension and mitral valve prolapse

remained the same as it had been when Mr. Simpkins
filed his previous appeal. The DVA, rather, based its

March 2011 revised disability rating on new medical

condi tions not raised before OPM or the Board in Mr. Simpkins’ prior appeal.

Third , as the AJ noted, the DVA in its March 2011 rating decision raised Mr. Simpkins’ service

- connected disability rating to 100% effective 1 February 2010. Yet

thi s effective date of February 2010 is nearly a year after Mr. Simpkins’ resignation from Federal employment on 16 April 2009. We therefore have reason to doubt theEDWARD SIMPKINS v. OPM 8

relevance of the DVA’s 2011 rating decision, based at

least on the date on which that decision became effect ive

.
For these reasons , we find that the Board did not abuse its discretion in declining to reopen Mr. Simpkins’ prior appeal based on the DVA’s 2011 disability rating decision. The Board fully considered the DVA’s revised rating deci sion, and the Board ’s determination that the DVA’s decision did not warrant reopening Mr. Simpkins prior appeal was not arbitrary or capricious. The jud gment of the Board is

AFFIRMED

C OSTS

Each party shall bear its own costs.