Adonis Berle Whitby v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ADONIS BERLE WHITBY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2014-3057
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0842-13-0500-I-1.
______________________
Decided: May 12, 2014
______________________
ADONIS BERLE WHITBY , of Laurel, Maryland, pro se.
WILLIAM P. RAYEL , Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. D ELERY , Acting Assistant Attor-
ney General, BRYANT G. SNEE, Acting Director, and
D EBORAH A. BYNUM , Assistant Director.
______________________

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WHITBY v. OPM 2
Before L OURIE, L INN, and P ROST , Circuit Judges.
P ER CURIAM .
Adonis Berle Whitby (“Whitby”) appeals from the final
order of the Merit Systems Protection Board (“Board”),
following the initial decision of the administrative judge
(“AJ”), dismissing Whitby’s appeal as barred by the doc-
trine of res judicata. Opinion, Adonis Berle Whitby v.
Office of Pers. Mgmt., Dkt. No. DC-0842-13-0500-I-1
(M.S.P.B. December 30, 2013) (“Opinion”). For the rea-
sons that follow, we affirm.
I. BACKGROUND
Whitby served in the military from June 4, 1967, to
January 26, 1970, and again from October 5, 1976, to
October 4, 1980. Whitby v. Office of Pers. Mgmt., 417 Fed.
App’x. 967, 969 (Fed. Cir. 2011). Whitby paid the neces-
sary deposit for an annuity for his military service into
the Federal Employees Retirement System (“FERS”). Id.
He later served as a federal civilian employee under
FERS from March 19, 1984, through April 9, 1993, and
again from September 8, 2002, through December 20,
2007. Id.
Whitby has received treatment for post-traumatic
stress disorder (“PTSD”) since at least 2007. J.A. 44. A
2007 Veterans Affairs’ (“VA”) examination found that
Whitby’s PTSD symptoms “caused clinically significant
distress or impairment in social, occupational, or other
important areas of functioning.” Id. at 46. A second VA
examination in 2009 determined that Whitby’s PTSD
symptoms had been present since his service in the Vi-
etnam War and that the symptoms were “daily and se-
vere.” Id. at 47. On December 19, 2011, the VA’s Board
of Veterans Appeals granted Whitby a 100 percent disa-
bility rating due to his PTSD. Id. at 50.
In January 2008, Whitby applied for retirement under
FERS, but the Office of Personnel Management (“OPM”)

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WHITBY v. OPM 3
denied that application on March 26, 2010. Opinion at 2.
The OPM denied the application because retirement for
the applicable time period was deemed to have been
forfeited because in April 1993, Whitby submitted an
application for a refund of his military deposit and his
FERS annuity contributions up to that date. Whitby, 417
Fed. App’x. at 969. Payment of the refund results in
“permanent forfeiture of any retirement rights that are
based on the period(s) of service which the refund co-
vers . . . .” Id. Whitby argued that his refund application
was void due to errors in the application, that he did not
understand that the refund was for his retirement annui-
ty, and that he never received the refund check because
he listed an incorrect street address on his request. Id. at
970–72. The OPM and the Board rejected each argument,
and this court affirmed. Id. Whitby filed requests in
November 2012 and April 2013 to reopen his Board
appeal. The Board denied both requests. Opinion at 17.
On April 17, 2013, Whitby again appealed to the
board. Opinion at 3. The AJ issued an order to show
cause why the appeal should not be dismissed pursuant to
res judicata. Whitby responded that the 2013 appeal was
not based on the same cause of action and transactional
facts as the earlier appeal because of new evidence that
was not available at the time of his hearing. J.A. 35–36.
Specifically, he argued that the AJ’s credibility determi-
nation, concerning Whitby’s contention that he did not
receive the 1993 refund, should not have been made
without the benefit of evidence of Whitby’s PTSD and
alleged OMP mistakes in 2013. J.A. 37–41. The AJ and
the Board rejected Whitby’s arguments, concluding that
Whitby’s arguments merely disputed the accuracy of the
prior determination of the claim on the merits, rather
than stating a new claim or demonstrating that the prior
decision was not decided on the merits. Opinion at 4.
Whitby timely appealed to this court, where for the
first time he argues that he was mentally incompetent in

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WHITBY v. OPM 4
1993 due to his PTSD and therefore that his refund
application was null and void. Whitby also argues that
the AJ’s prior initial decision was made without
knowledge of Whitby’s PTSD or OPM’s mistakes in 2012–
13, and he further contends that the evidence of his PTSD
and its effects on his mental state is new, was not availa-
ble at the time of that hearing, and rendered him “men-
tally incompetent” to make an informed decision on his
refund request. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
II. D ISCUSSION
Our review of a decision by the Board is limited by
statute. We must affirm the Board’s decision unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance 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); Kewley v. Dep’t of Health &
Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). A
decision is supported by “substantial evidence,” where
there is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Hath-
away v. Merit Sys. Prot. Bd., 981 F.2d 1237, 1240 (Fed.
Cir. 1992) (quoting Bradley v. Veterans Admin., 900 F.2d
233, 234 (Fed. Cir. 1990)). Questions of law, however, are
reviewed de novo. Delong v. Dep’t of Health and Human
Servs., 264 F.3d 1334, 1338 (Fed. Cir. 2001).
The Board’s decision to dismiss Whitby’s appeal was
based on the doctrine of res judicata, in which “a judg-
ment on the merits in a prior suit bars a second suit
involving the same parties or their privies based on the
same cause of action.” Jet, Inc. v. Sewage Aeration Sys.,
223 F.3d 1360, 1362 (Fed. Cir. 2000) (quoting Parklane
Hosier Co. v. Shore, 439 U.S. 322, 326 n.5 (1979)). In
effect, an earlier judgment forecloses litigation of a matter
that never has been litigated if the claim should have

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WHITBY v. OPM 5
been raised in the earlier suit. Id. (quoting Migra v.
Warren City Sch. Dist. Bd. Of Educ., 465 U.S. 75, 77 n.1
(1984)). Thus, a subsequent suit will be barred by res
judicata if: “(1) there is identity of parties (or their priv-
ies); (2) there has been an earlier final judgment on the
merits of a claim; and (3) the second claim is based on the
same set of transactional facts as the first.” Those factors
notwithstanding, however, the doctrine applies only if the
litigant had a “full and fair opportunity” to litigate his
case. Poyner v. Murray, 508 U.S. 931, 933 (1993).
Though there is no dispute that Whitby’s prior appeal
concerned the same parties and that there was an earlier
final judgment on the merits of a claim regarding Whit-
by’s application for retirement under FERS, Whitby
disputes that the instant claim is based on the same
transactional facts as the first. He argues that the AJ’s
credibility determination in the prior appeal should not
have been made without knowledge of his PTSD in 1993
or without knowledge that the OPM is capable of making
payment mistakes, such as those he alleges to have been
made in 2012–13. Specifically, Whitby previously con-
tended that though he made the refund request, he never
received it. The AJ found that contention not credible
because he did not inform the OPM of the alleged mistake
until 2008, he had “detailed memory” of other checks he
received from the government in the same time frame,
and he generally had a “high level of sophistication.”
Whitby, 417 Fed. App’x. at 969–70. He argues that evi-
dence of his PTSD and the OPM mistakes are new trans-
actional facts that undermine the AJ’s decision. He also
argues to this court, for the first time, that his 1993
refund request was null and void because the effects of his
PTSD rendered him mentally incompetent and therefore
unable to make informed decisions.
Res judicata “forecloses matters that, although never
litigated or even raised, could have been advanced in an
earlier suit.” Carson v. Dep’t of Energy, 398 F.3d 1369,

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WHITBY v. OPM 6
1375 n.8 (Fed. Cir. 2005) (citing Migra, 465 U.S. 77 n.1).
Evidence of Whitby’s PTSD and its effects was available
while the record was open during his prior appeal.
Whitby has known since at least 2007 that his PTSD
causes “significant distress” in “important areas of func-
tioning.” J.A. 44. He has known since at least 2009 that
his PTSD symptoms had been present since his service in
the Vietnam War, and thus would have existed in 1993,
and that the symptoms were “daily and severe.” J.A. 47.
At the July 8, 2010 hearing during the initial appeal, the
AJ agreed to leave open the record until July 15, 2010,
“for the parties to submit additional documentary evi-
dence.” J.A. 21 n.1. Whitby could have submitted evi-
dence concerning his PTSD during that time but did not.
Though he was not rated 100% disabled by the VA until
2011, that rating itself is immaterial here because it
reflected his condition in 2011 rather than 1993 when he
submitted the refund application. The evidence relevant
to his current argument, whether his PSTD rendered him
mentally incompetent in 1993, was known and available
to him during the time the record in the prior appeal was
open.
Whitby cites to Litton Indus., Inc. v. Litronix, Inc., 577
F.2d 709, 711 (C.C.P.A. 1978), for the proposition that
“res judicata and collateral estoppel are not applicable
where ‘it is apparent that all the questions of fact and law
involved . . . (in the second proceeding) were not deter-
mined in the previous proceedings.’” (quoting Universal
Overall Co. v. Stonecutter Mills Corp., 310 F.2d 952, 956
(C.C.P.A. 1962)). The “questions of fact and law” refer-
enced by Litton, however, are the relevant transactional
facts and the underlying claim. Litton does not hold that
res judicata is avoided by simply raising new factual
issues. Here, Whitby’s current claim, that he is entitled
to FERS retirement for the period covered by the refund
that he requested, is the same as the claim that previous-
ly was adjudicated on the merits. To the extent Whitby is

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WHITBY v. OPM 7
attempting to argue a new claim that his refund request
should be considered “voidable” based on “mental incom-
petence” related to his PTSD, that argument was not
raised before the Board and will not be considered on
appeal. We generally do not consider issues that were not
raised in the proceedings below. Oshiver v. Office of Pers.
Mgt., 896 F.2d 540, 542 (Fed. Cir. 1990) (quoting Rockwell
v. Dep’t of Transp., 789 F.2d 908, 913 (Fed. Cir. 1986)
(“Our precedent clearly establishes the impropriety of
seeking a reversal of the board's decision on the basis of
assertions never presented to the presiding official or to
the board.”). Moreover, the argument and evidence could
have and should have been raised during the prior appeal.
Whitby also contends that the Board should have reo-
pened his 2010 appeal based on evidence of OPM’s mis-
handling in 2012 of his retirement annuity. However, to
justify reopening an appeal under Section 1201.115(d),
the evidence must not only be “new,” it must also be
“material.” New evidence is material only if it “‘is of
sufficient weight to warrant an outcome different from
that of the initial decision.’” Wright v. U.S. Postal Serv.,
183 F.3d 1328, 1332 (Fed. Cir. 1999) (quoting Bucci v.
Dep’t of Educ., 42 M.S.R.P 47, 55 (1989)). The Board has
“broad discretion” in deciding whether to reopen an ap-
peal. Schaffer v. Merit Sys. Prot. Bd., 751 F.2d 1250, 1254
(Fed. Cir. 1985). We cannot find an abuse of that discre-
tion here. Any mistakes OPM might have made in 2012
are not necessarily determinative of whether Whitby
received his requested refund in 1993.
Whitby also contends that the Board has denied him
due process in the prior appeal by conducting a hearing
not longer than 15 minutes and by making credibility
determinations without considering evidence of his PSTD
or its effect on his mental capacity. Due process requires
“a fair hearing on the merits” of a claim. Cushman v.
Shinseki, 576 F.3d 1290, 1299 (Fed. Cir. 2009). Though
he indicates that he believes the hearing was too short, he

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WHITBY v. OPM 8
does not contend that he was prevented from presenting
any argument or evidence he desired to make. Signifi-
cantly, Whitby made no attempt to raise the PTSD issue
he now asserts at the hearing or afterward during the
time that the AJ left open the record. On this record,
there is no merit to Whitby’s claim that the Board denied
him due process.
III. CONCLUSION
For the forgoing reasons, this court affirms the
Board’s dismissal of Whitby’s appeal.
AFFIRMED
IV. COSTS
Each party shall bear its own costs.

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