                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CAMBRA L. LUCAS,                                DOCKET NUMBER
                  Appellant,                         SF-0845-13-0413-M-1

                  v.

     OFFICE OF PERSONNEL                             DATE: December 1, 2015
       MANAGEMENT,
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Matthew G. Lucas, Ripon, California, for the appellant.

           Karla W. Yeakle, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         This appeal is before the Board on remand from the U.S. Court of Appeals
     for the Federal Circuit (Federal Circuit), which vacated the Board’s May 21, 2014
     decision and remanded for limited further proceedings. For the reasons set forth
     below, we REMAND the appeal to the regional office for further adjudication.


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                    2

                                       DISCUSSION
¶2         In March 2007, the Office of Personnel Management (OPM) approved the
     appellant’s application for disability retirement under the Federal Employees’
     Retirement System. Lucas v. Office of Personnel Management, MSPB Docket
     No. SF-0845-13-0413-I-1, Initial Appeal File (IAF), Tab 10 at 21. At that time,
     her application had not yet been fully processed, but OPM began providing
     interim payments. Id. at 21-22.
¶3         In July 2010, OPM notified the appellant that her interim payments had
     exceeded that which she actually was due by nearly $90,000. Id. at 14. OPM
     attributed the overpayment to the appellant’s monthly annuity not being reduced
     by her health insurance premiums, life insurance premiums, and award of Social
     Security Administration (SSA) disability benefits.   Id. at 9-10.   The appellant
     immediately requested reconsideration and waiver of the overpayment.          Id.
     at 19-20.   More than 2½ years later, OPM issued its reconsideration decision,
     making a minor adjustment to the overpayment total and acknowledging that the
     appellant was not at fault, but otherwise affirming its overpayment decision and
     denying waiver. Id. at 6-11.
¶4         The appellant sought Board review of OPM’s reconsideration decision.
     IAF, Tab 1. The administrative judge found that the appellant was overpaid by
     $89,636, and she was not entitled to a waiver of that overpayment. IAF, Tab 15,
     Initial Decision at 2-11.
¶5         On petition for review, the Board affirmed the initial decision. Lucas v.
     Office of Personnel Management, MSPB Docket No. SF-0845-13-0413-I-1, Final
     Order (May 21, 2014). The appellant then appealed the Board’s decision to the
     Federal Circuit. Lucas v. Office of Personnel Management, MSPB Docket No.
     SF-0845-13-0413-L-1, Litigation File, Tab 1.
¶6         The Federal Circuit found that a document submitted for the first time
     during the petition for review process constituted new and material evidence that
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     the Board should have considered. 2 Lucas v. Office of Personnel Management,
     614 F. App’x 491, 495 (Fed. Cir. 2015) (referencing Lucas v. Office of Personnel
     Management, MSPB Docket No. SF-0845-13-0413-I-1, Petition for Review File,
     Tab 4 at 6). It further found that the new and material evidence could warrant a
     different outcome in her case. Id. Therefore, the court remanded the matter for
     proceedings “limited to the Board’s consideration of whether new and material
     evidence in the form of [the appellant’s] SSA Response Screen document would
     render recovery unconscionable under the circumstances.” Id.
¶7         On remand, the administrative judge should permit the parties to conduct
     additional discovery and submit new evidence and argument on the limited issue
     identified by the Federal Circuit.     See generally Vojas v. Office of Personnel
     Management, 115 M.S.P.R. 502, ¶ 22 (2011) (explaining that circumstances that
     may warrant a finding of unconscionability include, but are not limited to, cases
     in which: (1) there has been an exceptionally lengthy delay by OPM in adjusting
     an annuity; (2) OPM failed to respond within a reasonable length of time to an
     annuitant’s   inquiries   regarding   an   overpayment;    (3) OPM     failed   to   act
     expeditiously to adjust an annuity in the face of specific notice; or (4) OPM was
     otherwise grossly negligent in handling the case). If necessary, the administrative
     judge’s decision must specify how much of the overpayment is to be waived. See
     generally Fearon v. Office of Personnel Management, 109 M.S.P.R. 606, ¶ 5
     (2008) (observing that if the appellant is without fault and recovery of some
     portion, but not all, of the overpayment would be against equity and good
     conscience, a partial waiver is warranted).

     2
       While initially pending before the administrative judge, OPM submitted evidence that
     included an SSA Response Screen pertaining to an individual other than the appellant.
     IAF, Tab 10 at 25 (SSA Response Screen for annuitant D.P.). It appears that the
     erroneous submission of that document remained unnoticed until the appellant pointed
     it out in her petition for review of the initial decision. Lucas v. Office of Personnel
     Management, MSPB Docket No. SF-0845-13-0413-I-1, Petition for Review (PFR) File,
     Tab 1 at 7. Thereafter, when OPM responded to the appellant’s petition, it attached an
     October 2008 SSA Response Screen pertaining to the appellant. PFR File, Tab 4 at 6.
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                                          ORDER
¶8        For the reasons discussed above, we REMAND this case to the
     administrative judge for further adjudication in accordance with this order.




     FOR THE BOARD:                            ______________________________
                                               William D. Spencer
                                               Clerk of the Board
     Washington, D.C.
