Edward J. Simpkins v. Office of Personnel Management

N OTE: This disposition is nonprecedential.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
______________________
2024-1921
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0842-20-0541-I-2.
______________________
Decided: June 24, 2025
______________________
EDWARD J. SIMPKINS , Greenbelt, MD, pro se.
CHRISTOPHER B ERRIDGE , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. B OYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY .
______________________
Before D YK, STOLL , and STARK, Circuit Judges.
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SIMPKINS v. OPM 2
P ER CURIAM .
Edward J. Simpkins seeks review of a final decision of
the Merit Systems Protection Board, which affirmed the
Office of Personnel Management’s determination that
Mr. Simpkins’s refunded retirement contributions are not
creditable in his annuity computation under the Federal
Employees’ Retirement System and he was not eligible to
redeposit the previously refunded retirement contribu-
tions. For the following reasons, we affirm.
BACKGROUND
Mr. Simpkins, who is also a military veteran, was a
federal employee during two relevant periods. Mr. Simp-
kins was first employed with the United States Postal Ser-
vice from at least September 26, 1987, to February 9, 1996,
when he resigned. He applied for a refund of his retirement
contributions from that period, which he received, minus
the amount used to offset a government debt he owed. In
order to receive the refund, Mr. Simpkins acknowledged
“that payment of a refund will result in permanent forfei-
ture of any retirement rights that are based on the pe-
riod(s) of Federal Employees Retirement System [(FERS)]
service which the refund covers.” SAppx341 (emphasis
omitted).
Mr. Simpkins returned to federal service with the De-
partment of Labor (DOL) in July 2000. He was removed
for cause in early 2009, but later that year his removal was
changed to a resignation pursuant to a settlement agree-
ment between himself and the DOL. The agreement spec-
ified an effective resignation date of April 16, 2009.
Mr. Simpkins later applied to the Office of Personnel
Management (OPM) for a deferred annuity for his service.
1 “SAppx” refers to the Supplemental Appendix sub-
mitted by the Government at ECF No. 11.
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SIMPKINS v. OPM 3
Relevant here, OPM administers civil service retirement
laws. OPM determined that Mr. Simpkins’s period of ser-
vice from September 26, 1987, to February 9, 1996, was
“not creditable in the annuity computation under the Fed-
eral Employees’ Retirement System” because when
Mr. Simpkins “applied for and received a refund of [his]
FERS retirement deductions, [he] . . . voided all annuity
rights for the service on which that refund is based.”
SAppx48, 50. Moreover, OPM explained that Mr. Simp-
kins was not eligible to redeposit the refunded amount be-
cause only individuals who worked for the Federal
Government on or after October 28, 2009, can pay a rede-
posit, and Mr. Simpkins was not a covered individual. Had
Mr. Simpkins been eligible to redeposit his retirement con-
tributions and had he actually done so, that period of ser-
vice would have properly been used in the computation of
the FERS annuity.
I
Mr. Simpkins appealed OPM’s determination to the
Merit Systems Protection Board. Relevant to this appeal,
Mr. Simpkins raised two arguments to the administrative
judge: (1) that he qualified to make a redeposit because he
did not resign until on or after October 28, 2009; and
(2) that the DOL and OPM breached the settlement agree-
ment. The administrative judge rejected each argument in
her initial decision.
First, the administrative judge found Mr. Simpkins
retroactively resigned such that “the record shows that
[Mr. Simpkins] ‘resigned’ from his position with the DOL
on April 16, 2009.” SAppx32 (citation omitted). The ad-
ministrative judge also relied on the SF-50 notification of
personnel action form in Mr. Simpkins’s file, which reflects
he resigned from his position with the DOL effective
April 16, 2009.
The administrative judge also considered Mr. Simp-
kins’s argument that “the last required DOL signature for
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SIMPKINS v. OPM 4
[his] resignation was not signed until on or after Octo-
ber 28, 2009,” but concluded this did “not . . . change[] the
effective date of his resignation, when the language of the
Settlement Agreement specifically required that he resign
‘no later than April 16, 2009.’” Id. (citation omitted).
Second, the administrative judge determined that
Mr. Simpkins could not “unilaterally determine that the
agency breached the Settlement Agreement, that the
breach was material, that the terms of the agreement no
longer apply, and that his resignation date is consequently
changed from the previous April 16, 2009 date.” SAppx33.
The administrative judge explained that Mr. Simpkins
would have to pursue a breach of settlement agreement ac-
tion against the agency in an appropriate forum because
the Board does “not have the authority in this appeal . . . to
make a determination as to whether the Settlement Agree-
ment at issue was breached, or of any potential changes to
his resignation date, as a result of such a finding.” Id.
Because he had not proven he was still employed by the
Federal Government on or after October 28, 2009, the ad-
ministrative judge concluded that Mr. Simpkins failed to
prove he was eligible to redeposit his contributions. And
because he had applied for and received a refund of his re-
tirement contributions, he had voided all annuity rights for
the service on which that refund was based.
II
Mr. Simpkins then sought review of the administrative
judge’s initial decision by the Board. The Board denied the
petition for review and affirmed the initial decision because
it “conclude[d] that [Mr. Simpkins] ha[d] not established
any basis under section 1201.115 for granting the petition
for review.” SAppx6.
The Board agreed with the initial decision and OPM’s
reasoning regarding Mr. Simpkins’s resignation: that he
“separated from service prior to October 28, 2009, and,
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SIMPKINS v. OPM 5
thus, he was not eligible to redeposit any refunded retire-
ment contribution amounts.” SAppx10–11. The Board em-
phasized that Mr. Simpkins had “provided no support for
the proposition that the date the agreement was fully exe-
cuted affects the agreed-upon effective date” of his resigna-
tion. SAppx10. Thus, the administrative judge’s initial
decision became the Board’s final decision pursuant to
5 C.F.R. § 1201.113(b).
Mr. Simpkins sought leave to submit additional evi-
dence after the close of the record: emails he alleged “he
[had] recently received” from his union representative that
“prove[d] he [was] allowed to repay” his previously re-
funded contributions. SAppx7–8 n.2 (internal quotation
marks and citation omitted). He explained that “he was
not able to locate these emails until now.” Id. (internal quo-
tation marks and citation omitted). The Board found that
Mr. Simpkins’s “vague assertions do not provide a basis for
accepting additional evidence into the record” and denied
the motion. Id. (citing 5 C.F.R. §§ 1201.114(k),
1201.115(d)).
Mr. Simpkins petitions for review. We have jurisdic-
tion under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
On appeal, Mr. Simpkins argues: (1) he should be al-
lowed to redeposit refunded contributions because he was
employed by the Federal Government on or after Octo-
ber 28, 2009; (2) that the Board “failed to consider [his]
prior EEOC activity settlement agreement, union griev-
ances, court cases against the DOL and OPM (retaliation
and reprisal)”; and (3) the Board “failed to consider the
DOL and OPM tried to also deny [him his] right to deposit
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SIMPKINS v. OPM 6
[his] (military) service time.” Pet. Informal Br. 1–3.2 We
address each issue in turn.
Our review of the Board’s decision is limited. We must
affirm the Board’s decision unless we find that it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Shapiro v. Social Sec. Admin., 800 F.3d
1332, 1336 (Fed. Cir. 2015) (citation omitted).
To support his contention that he was employed by the
Government on or after October 28, 2009, Mr. Simpkins
first points to emails that “prove[] [Office of Participant As-
sistance Employee Benefits Security Administration] Di-
rector Watson refused to sign the settlement until after”
October 28, 2009. Pet. Informal Br. 2. After reviewing this
evidence, we conclude that substantial evidence supports
2 Mr. Simpkins’s informal reply brief raises two ad-
ditional issues: (1) that the settlement agreement between
himself and the DOL is void because “the DOL and OPM
both publicly mentioned” his “termination” despite agree-
ing to allow him to resign; and (2) that the DOL and OPM
discriminated against him “from the beginning of his em-
ployment until the ending and there after too.” Pet. Infor-
mal Reply Br. 2–4. But a reply brief “is not the appropriate
place to raise, for the first time, an issue for appellate re-
view.” Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (in-
ternal quotation marks and citation omitted). And
“[a]rguments raised for the first time in a reply brief are
not properly before this court.” Norman v. United States,
429 F.3d 1081, 1091 n.5 (Fed. Cir. 2005). Given these is-
sues were not properly raised in Mr. Simpkins’s informal
opening brief, we decline to consider them.
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SIMPKINS v. OPM 7
the Board’s finding that “the record shows that [Mr. Simp-
kins] resigned from his position with the DOL on April 16,
2009.” SAppx32 (internal quotation marks omitted). As
the Board recognized, regardless of the date on which the
settlement agreement was executed, Mr. Simpkins re-
signed effective April 16, 2009, because the settlement
agreement undisputedly required him to “resign effective
no later than April 16, 2009.” Pet. Informal Br. 26. Accord-
ingly, the Board reasonably found that the execution date
did not “change[] the effective date of his resignation” be-
cause “the Settlement Agreement specifically required that
he resign no later than April 16, 2009.” SAppx32 (internal
quotation marks and citation omitted).
To the extent Mr. Simpkins challenges the Board’s ex-
clusion of his untimely evidence (including emails from his
union representative), we defer to “the sound discretion of
the board and its officials” regarding “[p]rocedural matters
relative to discovery and evidentiary issues” and “will not
overturn the board on such matters unless an abuse of dis-
cretion is clear and is harmful.” Curtin v. Off. of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988); Azarkhish
v. Off. of Pers. Mgmt., 915 F.2d 675, 679 (Fed. Cir. 1990)
(finding no abuse of discretion “[b]ecause petitioner has
failed to make a showing of due diligence and prior una-
vailability of the reports”). Here, the Board explained that
Mr. Simpkins’s “vague assertions do not provide a basis for
accepting additional evidence into the record” and rejected
his argument “that he was not able to locate these emails
until now.” SAppx7–8 n.2 (internal quotation marks and
citation omitted). We cannot conclude that the Board
abused its discretion in this regard because “[i]n the ab-
sence of an explanation for the delay in obtaining the evi-
dence in question, the appellant has not shown that he
exercised due diligence or ordinary prudence to obtain the
evidence.” Brenneman v. Off. of Pers. Mgmt., 439 F.3d
1325, 1328 (Fed. Cir. 2006) (internal quotation marks and
citations omitted).
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SIMPKINS v. OPM 8
Mr. Simpkins also contends that, under the Federal
Arbitration Act (FAA), his removal from DOL was stayed
until his arbitration occurred, which he alleges was after
October 28, 2009. But Mr. Simpkins fails to advance an
argument explaining why the FAA would alter the outcome
in this case. “[T]he central or primary purpose of the FAA
is to ensure that private agreements to arbitrate are en-
forced according to their terms.” Stolt-Nielsen S.A. v. Ani-
malFeeds Int’l Corp., 559 U.S. 662, 682 (2010) (internal
quotation marks and citation omitted). Mr. Simpkins does
not attempt to explain how a statute ensuring enforcement
of private agreements to arbitrate would bear on his resig-
nation date. A party forfeits an argument when it fails “to
present anything more than a conclusory, skeletal argu-
ment.” In re Killian, 45 F.4th 1373, 1386 (Fed. Cir. 2022);
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1320 (Fed. Cir. 2006) (holding arguments insufficiently de-
veloped in briefing are not preserved).
As to Mr. Simpkins’s contentions that the Board “failed
to consider [his] prior EEOC activity settlement agree-
ment, union grievances, court cases against the DOL and
OPM (retaliation and reprisal),” he fails to articulate why
these facts are related to his retirement benefits or provide
any explanation of why the Board should have considered
this prior activity. Pet. Informal Br. 2. We decline to ad-
dress this underdeveloped argument. See, e.g., In re
Killian, 45 F.4th at 1386.
Finally, we are unpersuaded by Mr. Simpkins’ allega-
tion that the Board “failed to consider [that] [] DOL and
OPM tried to also deny [him his] right to deposit [his] (mil-
itary) service time.” Pet. Informal Br. 3. His military ser-
vice time was explicitly included in the calculation of his
annuity. OPM explained that “[his] military time does not
give title towards a [Civil Service Retirement System
(CSRS)] component. Therefore, [his] military service de-
posit was computed at the lower FERS rate and included
in [his] FERS annuity.” SAppx50 (emphasis added). Given
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SIMPKINS v. OPM 9
that OPM considered his military service for the FERS cal-
culation, and Mr. Simpkins provides no additional argu-
ment on how the Board allegedly failed to consider it for
that purpose, we see no error in the Board’s failure to con-
sider it for a CSRS calculation, a calculation that Mr. Simp-
kins does not seek in this appeal.
CONCLUSION
We have considered Mr. Simpkins’s remaining argu-
ments and are not persuaded. For the foregoing reasons,
we affirm the decision of the Board.
AFFIRMED
COSTS
No costs.
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