NOTE: This disposition is nonprecedential.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 no. DC844E110968-I-1.

______________________ 

Decided: March 8, 2013 

______________________ 

EDWARD J. SIMPKINS, Greenbelt, Maryland, pro se

JEFFREY D. KLINGMAN, Trial Attorney, Commercial 

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

him on the brief were STUART F. DELERY, Principal Assistant Attorney General, JEANNE E. DAVIDSON, Director, 

and REGINALD T. BLADES, JR., Assistant Director. EARL 

A. SANDERS, Attorney, Office of General Counsel, Office of 

Personnel Management, of Washington, DC. 
2 EDWARD SIMPKINS v. OPM

______________________ 

Before RADER, Chief Judge, O'MALLEY, and REYNA, Circuit 

Judges.

PER CURIAM. 

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 because 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 which point he was honorably 

discharged with disability severance pay. After his discharge, Mr. Simpkins began receiving disability pay from 

the Department of Veterans Affairs (“DVA”) for his service-connected condition of hypertension with left ventricular 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 Retirement 

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. Simpkins’ application for disability retirement under FERS. 

Mr. Simpkins appealed 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 matter to the AJ based 

on new evidence that in October 2009 the DVA had increased 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 decision. Mr. Simpkins submitted to the AJ various documents, including the DVA’s October 2009 rating decision, 

but the AJ found these documents insufficient to overcome the weight of the evidence. The AJ specifically 

noted Mr. Simpkins’ failure to produce the medical records on which the DVA had relied in establishing his new 

disability rating. The AJ again affirmed OPM’s original 

denial of Mr. Simpkins’ application for FERS 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, we affirmed the Board’s decision, 

finding no reversible error in the Board’s determination 

that the medical evidence of record supported a conclusion 

that Mr. Simpkins’ conditions were being managed 

through medication such that he could continue to perform his duties. Simpkins v. Office of Pers. Mgmt., 411 F. 

App’x 323, 326 (Fed. Cir. 2011). We noted the Board’s 

determination that, although Mr. Simpkins had not 

submitted the medical evidence underlying the DVA’s 

2009 rating decision, the DVA’s decision actually supported the finding that Mr. Simpkins’ medical conditions did 

not prevent useful and efficient service, and were being 

managed through medication. Id.

In March 2011, the DVA revised Mr. Simpkins’ service-connected disability rating to 100%. Based on the 

DVA’s adjustment of his disability rating, Mr. Simpkins 

again appealed to the Board from 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. The AJ determined that 

Mr. Simpkins had “previously filed an appeal of OPM’s 

denial of his application for disability retirement based on 
4 EDWARD SIMPKINS v. OPM

the same medical conditions at issue in this appeal, which 

was fully litigated and resulted in a final judgment on the 

merits.” The AJ considered the DVA’s March 2011 revised rating decision, but found 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 review. 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 recognized, 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 disability 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). 

STANDARD OF REVIEW

The scope of our review in an appeal from a decision 

of the Board is limited. In general, we can set aside the 

Board’s decision only if it was “(1) arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance 
 EDWARD SIMPKINS v. OPM 5

with law; (2) obtained without procedures required by 

law, rule, or regulation having been followed; or (3) unsupported 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. 

NLRB, 305 U.S. 197, 229 (1938). 

In the case of the denial of a request for disability retirement, our review is limited further. Pursuant to 5 

U.S.C. § 8461(d), we are precluded from reviewing the 

factual underpinnings of physical disability determinations, but may address whether there has been “a substantial departure from important procedural rights, a 

misconstruction of the governing legislation, or some like 

error ‘going to the heart of the administrative determination.’” 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)).

RES JUDICATA

To the extent Mr. Simpkins’ appeal represents a new 

challenge to OPM’s original 2009 denial of his application 

for disability retirement 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 preclusion,” serves to “relieve parties of the cost and vexation 

of multiple lawsuits, conserve judicial resources, and, by 

preventing inconsistent decisions, encourage 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). 
6 EDWARD SIMPKINS v. OPM

Here, all three criteria are satisfied. Mr. Simpkins 

pursued his prior appeal from OPM’s original 2009 decision first to the Board and then to our court. We affirmed 

the decision of the Board. Our affirmance of the Board’s 

decision was a final decision on the merits by a tribunal of 

competent jurisdiction. In his current appeal, Mr. Simpkins again challenges OPM’s original 2009 denial of his 

application for disability retirement under FERS. This is 

the same issue which the identical parties have already 

litigated in full. Accordingly, res judicata bars Mr. Simpkins’ appeal to the extent it represents a new appeal of 

OPM’s original denial of his application for disability 

retirement under FERS. 

REOPENING PRIOR APPEAL

We find further that the Board did not abuse its discretion in determining that the DVA’s March 2011 revised 

disability rating does not warrant reopening Mr. Simpkins’ previous appeal. We find the Board did not abuse its 

discretion for three reasons.

First, as the Board noted, different statutes and regulations govern service-connected disability determinations 

by the DVA. The DVA bases disability ratings on criteria 

different from those at issue in determining eligibility for 

retirement benefits under FERS. While we must consider 

an applicant’s established eligibility for other disability 

benefits, including underlying medical data, such eligibility 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 history that . . . determinations made by the Social Security 

Administration regarding award and continuation of 

Social Security disability benefits govern OPM’s admin-
 EDWARD SIMPKINS v. OPM 7

istration of FERS benefits.”); Furlong v. United States, 

153 Ct. Cl. 557 (1961) (“So far as the action of the Veterans Administration is concerned, we 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. Simpkins 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 

conditions 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 

this 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 the 
8 EDWARD SIMPKINS v. OPM

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

least on the date on which that decision became effective. 

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 decision, and the Board’s determination that the 

DVA’s decision did not warrant reopening Mr. Simpkins 

prior appeal was not arbitrary or capricious. The judgment of the Board is 

AFFIRMED

COSTS

Each party shall bear its own costs.