Case: 23-1012 Document: 18 Page: 1 Filed: 05/03/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDWARD J. SIMPKINS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1012
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-22-0190-I-1.
______________________
Decided: May 3, 2023
______________________
EDWARD J. SIMPKINS, Greenbelt, MD, pro se.
ELIZABETH W. FLETCHER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON JANE
BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before PROST, REYNA, and STARK, Circuit Judges.
PER CURIAM.
Case: 23-1012 Document: 18 Page: 2 Filed: 05/03/2023
2 SIMPKINS v. MSPB
Edward J. Simpkins appeals a decision of the Merit
Systems Protection Board (“Board”) dismissing his appeal
for lack of subject matter jurisdiction. Because the Board
properly dismissed Mr. Simpkins’s appeal, we affirm.
BACKGROUND
Mr. Simpkins was removed from his position as a ben-
efits specialist at the Department of Labor (“DOL”) for
cause in early 2009. See S.A. 46. 1 Later that year,
Mr. Simpkins and DOL entered into a settlement agree-
ment, changing his removal to a resignation. S.A. 46.
Mr. Simpkins then submitted his resignation. However,
because of the settlement’s timing, Mr. Simpkins’s final
pay card from DOL—submitted on January 15, 2009—
identifies his status as “removed” instead of “resigned.” See
S.A. 31–32.
On January 20, 2022, Mr. Simpkins filed an appeal
with the Board. S.A. 24, 28. He asserted that an Office of
Personnel Management (“OPM”) action taken on Janu-
ary 6, 2022, constituted (1) a negative suitability determi-
nation; (2) an improper employment practice; or (3) a
failure to reinstate or reemploy. S.A. 25. Based on the
date, the purported OPM action is a response letter from
OPM to Senator Van Hollen, who had contacted OPM at
Mr. Simpkins’s request. See S.A. 31–32. According to that
letter, Mr. Simpkins was seeking correction of his final
DOL pay card to list his status as “resigned” instead of “re-
moved.” See S.A. 31. 2 OPM acknowledged that
1 We cite to the supplemental appendix attached to
Respondent’s brief (“S.A.”) for ease of reference because
Mr. Simpkins’s appendix is not paginated.
2 Mr. Simpkins’s final notification of personnel ac-
tion—retroactively dated to April 16, 2009, per the settle-
ment agreement—correctly reports Mr. Simpkins’s
resignation. See S.A. 44; S.A. 31–32; S.A. 46.
Case: 23-1012 Document: 18 Page: 3 Filed: 05/03/2023
SIMPKINS v. MSPB 3
Mr. Simpkins’s final pay card lists Mr. Simpkins as re-
moved but clarified that that was “because it was com-
pleted before [Mr. Simpkins] resigned”—i.e., after
Mr. Simpkins’s removal but before the settlement agree-
ment. S.A. 32. OPM noted that “OPM cannot make any
changes to” that final pay card because Mr. Simpkins did
not retire with OPM; only DOL can change Mr. Simpkins’s
final pay card to reflect his resignation. S.A. 31–32.
The Board dismissed Mr. Simpkins’s appeal of the Jan-
uary 2022 OPM letter for lack of jurisdiction. S.A. 1. The
Board determined that Mr. Simpkins “failed to present a
nonfrivolous allegation that he was subject to any [1] suit-
ability action, [2] employment practice violation, or [3] fail-
ure to reinstate or reemploy following compensable injury.”
S.A. 4; see S.A. 4–6.
Mr. Simpkins appeals, and we have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We review the Board’s determination that it lacked ju-
risdiction without deference. Mouton-Miller v. MSPB,
985 F.3d 864, 868 (Fed. Cir. 2021). Because the Board
properly concluded that Mr. Simpkins failed to allege facts
sufficient to support Board jurisdiction, we affirm.
The Board has limited jurisdiction, but, as relevant
here, it can review: (1) “a suitability action against a per-
son,” see 5 C.F.R. § 731.501(a); (2) an “employment prac-
tice . . . violat[ion]” of 5 C.F.R. § 300.103, see id.
§ 300.104(a); and (3) “an agency’s failure to restore . . . an
employee following a leave of absence” after recovering
from a compensable injury, see id. §§ 353.304(a),
1201.3(a)(4). The Board properly determined that
Mr. Simpkins did not allege facts that, if proven, could es-
tablish jurisdiction by the Board under any of these three
grounds.
Case: 23-1012 Document: 18 Page: 4 Filed: 05/03/2023
4 SIMPKINS v. MSPB
First, the Board properly concluded that Mr. Simpkins
failed to allege sufficient facts to show that the OPM letter
could constitute an appealable suitability action. Appeala-
ble suitability actions are defined in § 731.203(a) as cancel-
lation of eligibility, removal, cancellation of reinstatement
eligibility, and debarment. Id. § 731.203(a); see Ricci v.
MSPB, 953 F.3d 753, 757 (Fed. Cir. 2020) (citing 5 C.F.R.
§ 731.203(a)). Mr. Simpkins asserts that he hasn’t been
able to obtain employment because his final DOL pay card
shows “removed” instead of “resigned” and that, as a result,
he has been de facto debarred from federal employment.
See S.A. 5–6. But as the Board correctly noted, it does not
have jurisdiction over such de facto suitability action
claims. Ricci, 953 F.3d at 758; see S.A. 5.
Second, the Board properly determined that Mr. Simp-
kins failed to allege sufficient facts that the OPM letter
could constitute a violation of the requirements set forth in
5 C.F.R. § 300.103. Mr. Simpkins did not provide any ex-
planation as to what the alleged employment violation by
OPM was. Indeed, it appears that the object of Mr. Simp-
kins’s complaint has nothing to do with OPM. We under-
stand Mr. Simpkins’s appeal to concern DOL’s failure to
retroactively correct Mr. Simpkins’s final pay card to re-
flect that, as an official matter, Mr. Simpkins resigned.
And finally, the Board properly concluded that
Mr. Simpkins failed to allege sufficient facts that the OPM
letter could constitute a failure to restore Mr. Simpkins to
federal employment following recovery from a compensable
injury. 5 C.F.R. §§ 353.304, 1201.3(a)(4). Mr. Simpkins
does not allege that he suffered any kind of compensable
injury. Injury, as defined by 5 C.F.R. § 353.102 and
5 U.S.C. § 8101(5), includes, “in addition to injury by acci-
dent, a disease proximately caused by the employment, and
damage to or destruction of” certain medical devices.
5 U.S.C. § 8101(5) (emphasis added); see 5 C.F.R. § 353.102
(defining injury with reference to 5 U.S.C. § 8101(5)).
Mr. Simpkins notes that he is a disabled veteran and
Case: 23-1012 Document: 18 Page: 5 Filed: 05/03/2023
SIMPKINS v. MSPB 5
cancer survivor, but he does not allege that those facts re-
late to his prior employment as a benefits specialist at
DOL.
We are not unsympathetic to Mr. Simpkins’s concerns
about his final pay card, but, as OPM has informed
Mr. Simpkins, “[i]f [Mr. Simpkins] would like his final [pay
card] corrected to reflect” his resignation, “then [Mr. Simp-
kins] must contact his former agency”—DOL—for the relief
he seeks. See S.A. 32.
CONCLUSION
We have considered Mr. Simpkins’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.