The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAMBRA L. LUCAS, DOCKET NUMBER
Appellant, SF-0845-13-0413-B-1
v.
OFFICE OF PERSONNEL DATE: February 8, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Cambra L. Lucas, Ripon, California, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which affirmed the determination of the Office of Personnel Management (OPM)
that the appellant received an overpayment and that she was not entitled to a
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
waiver. For the reasons discussed below, we GRANT the appellant’s petition for
review, AFFIRM the remand initial decision in part, REVERSE it in part, and
REMAND the matter to OPM for recalculation of the appellant’s overpayment
and issuance of a new reconsideration decision.
¶2 In March 2007, OPM approved the appellant’s application for disability
retirement under the Federal Employees’ Retirement System (FERS). 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. OPM issued its reconsideration decision in April 2013, 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. IAF, Tab 15, Initial Decision (ID) at 2-5. Of the $89,636 overpayment,
the administrative judge found that $47,736 was caused by the failure to account
for the appellant’s SSA benefits, while the remaining $41,900 was caused by a
mistake from her employer in reporting the date her pay ceased, OPM’s failure to
make deductions for insurance premiums during the period of interim annuity
payments, and OPM’s failure to reduce the interim payments after the first
12 months as required by a change in formula. ID at 6-7. The administrative
judge concluded that the appellant was not entitled to waiver for any portion of
3
the overpayment. ID at 6-11. On 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 U.S. Court of Appeals for the Federal Circuit. Lucas v. Office of
Personnel Management, MSPB Docket No. SF-0845-13-0413-L-1, Litigation
File, Tab 1.
¶5 The Federal Circuit found that a document OPM submitted for the first time
during the petition for review process constituted new and material evidence that
the Board should have considered. 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 (PFR)
File, Tab 4 at 6). 2 The court 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.
Accordingly, we remanded the matter to the administrative judge for further
adjudication on the limited issue identified by the Federal Circuit. Lucas v.
Office of Personnel Management, MSPB Docket No. SF-0845-13-0413-M-1,
Remand Order, ¶ 7 (Dec. 1, 2015).
¶6 On remand, the administrative judge permitted the parties to conduct
additional discovery and submit argument and evidence. See Lucas v. Office of
Personnel Management, MSPB Docket No. SF-0845-13-0413-B-1, Remand File
(RF), Tabs 3, 7-8. After doing so, the administrative judge found that the
appellant did not meet her burden of establishing that she was entitled to a waiver
2
The new evidence was an SSA Response Screen pertaining to the appellant, which
suggested that OPM was aware of the appellant’s receipt of SSA benefits as early as
October 2008. PFR File, Tab 4 at 6; see Lucas, 614 F. App’x at 494-95.
4
of any portion of her overpayment. RF, Tab 26, Remand Initial Decision (RID)
at 4-10. Therefore, she affirmed OPM’s reconsideration decision. RID at 11.
The appellant has filed a petition for review. Lucas v. Office of Personnel
Management, MSPB Docket No. SF-0845-13-0413-B-1, Remand Petition for
Review (RPFR) File, Tab 4. OPM has filed a response. RPFR File, Tab 7.
¶7 In her petition, the appellant first suggests that the administrative judge
improperly limited the scope of her appeal. RPFR File, Tab 4 at 5. We disagree.
The Federal Circuit specified that it was “remand[ing] 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.” Lucas, 614 F. App’x at 495. The
administrative judge properly recognized those instructions and adjudicat ed the
remanded appeal accordingly, focusing on the portion of the overpayment
attributable to the SSA benefits, $47,736, and the October 2008 SSA Response
Screen. RF, Tab 8 at 1-2; RID at 2-3 n.2; see 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).
¶8 The appellant also argues, generally, that the administrative judge erred by
denying her motion to compel discovery. RPFR File, Tab 4 at 17 -18. Again, we
disagree. An administrative judge has wide discretion over matters relating to
discovery, and the Board will not reverse rulings on discovery matters absent an
abuse of discretion. Parker v. Department of Housing and Urban Development,
106 M.S.P.R. 329, ¶ 9 (2007). Here, the administrative judge properly denied the
appellant’s first motion to compel because she had not complied with the Board’s
regulations, which require that a motion to compel include “[a] statement that the
moving party has discussed or attempted to discuss the anticipated motion with
the nonmoving party or nonparty and made a good faith effort to resolve the
discovery dispute and narrow the areas of disagreement.” 5 C.F.R.
5
§ 1201.73(c)(1)(iii); see Salerno v. Department of the Interior, 123 M.S.P.R. 230,
¶ 16 (2016); compare RF, Tab 9 at 4, with RF, Tab 15 at 1.
¶9 Subsequently, the appellant filed a second motion to compel, which the
administrative judge granted in large part. RF, Tabs 17, 19. The administrative
judge did deny the appellant’s requests to depose several OPM employees,
finding that she had not shown that the individuals in question would have
relevant and material information. RF, Tab 19 at 1 (referencing RF, Tab 17 at 7,
24); see, e.g., Lee v. Environmental Protection Agency, 115 M.S.P.R. 533,
¶¶ 9-10 (2010) (finding no abuse of discretion when an administrative judge
denied a motion to compel depositions because they would not have provided
information reasonably calculated to lead to admissible evidence). She also
denied the motion to compel documents regarding systems accesses and contacts
over a nearly 10-year period, finding the request overbroad. RF, Tab 19 at 2 -3
(referencing RF, Tab 17 at 6, 21-22); see, e.g., 5 C.F.R. § 1201.72(a) (recognizing
that, for purposes of discovery, “[r]elevant information includes information that
appears reasonably calculated to lead to the discovery of ad missible evidence”).
Although the appellant generally argues that the administrative judge erred, she
has failed to establish that the administrative judge’s discovery rulings were an
abuse of discretion. RPFR File, Tab 4 at 17-18. 3
¶10 Turning to the merits, the appellant disputes the administrative judge’s
finding that recovery of the overpayment would not be unconscionable. Id.
3
The appellant points out that OPM was untimely in submitting responses to her
discovery, as required by the administrative judge’s ruling on the motion to compel.
RPFR File, Tab 4 at 17; compare RF, Tab 19 (granting the appellant’s motion to
compel, in part, and requiring that OPM respond by April 29, 2016), with RF, Tab 20
(the appellant’s request for sanctions because OPM did not meet the April 29, 2016
deadline), and RF, Tab 23 (OPM’s untimely response to discovery, submitted on May 5,
2016). To the extent that the appellant is once again suggesting that OPM should be
subject to sanctions for its untimeliness, we disagree. See Pecard v. Department of
Agriculture, 115 M.S.P.R. 31, ¶ 18 (2010) (recognizing that the denial of sanctions is
subject to the abuse of discretion standard of review).
6
at 4-32; see RID at 5-9. She also disputes the administrative judge’s alternative
findings concerning the set-aside rule. RPFR File, Tab 4 at 23-24; see RID
at 9-10. For the reasons described below, we find that the appellant is entitled to
a waiver of a portion of her overpayment, the portion attributable to OPM’s
21-month delay in adjusting the appellant’s annuity to account for her SSA
benefits after getting specific notice of the same. The administrative judge erred
in concluding otherwise.
¶11 As recognized throughout this appeal, the appellant bears the burden of
establishing entitlement to a waiver of an overpayment by substantial evidence.
Boone v. Office of Personnel Management, 119 M.S.P.R. 53, ¶ 5 (2012).
Generally, the recovery of a FERS overpayment should be waived if the recipient
is without fault and recovery would be against equity and good conscience. Id.;
see 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301. Recovery is against equity and good
conscience when, as alleged here, recovery would be unconscionable under the
circumstances. Boone, 119 M.S.P.R. 53, ¶ 5; 5 C.F.R. § 845.303(c).
¶12 The Board has found that the unconscionability criterion is a high standard
justifying waiver only under exceptional circumstances. Boone, 119 M.S.P.R. 53,
¶ 9. Because the concept of unconscionability is ordinarily defined in terms of
broad equitable considerations, the Board will consider all relevant factors using
a totality-of-the-circumstances approach to determine whether recovery of an
annuity overpayment is unconscionable in a given case. Id. The Board has found
that circumstances of unconscionability may 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; 4 or (4) OPM was
4
In its remand decision, the Federal Circuit noted that, if OPM received notice of the
appellant’s SSA benefits in 2008, as suggested by the October 2008 SSA Response
7
otherwise grossly negligent in handling the case. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 22 (2011).
¶13 Utilizing the aforementioned standards, the administrative judge concluded
that the totality of the circumstances did not render recovery of the overpayment
unconscionable. RID at 5-9. Among other things, she found that OPM first
approved the appellant’s annuity in March 2007, SSA awarded her disability
benefits that same month with payments starting in May 2007, and OPM became
aware of the SSA benefits in October 2008, but OPM failed to adjust the
appellant’s annuity payment, recognize the corresponding overpayment, and
finalize the appellant’s retirement annuity, until July 2010. RID at 5-7. In
addition to those unexplained delays, the administrative judge also considered the
subsequent unexplained delay of more than 2 1/2 years before OPM issued its
final ruling on the appellant’s request for a waiver. 5 RID at 7. She further
considered OPM’s prior misrepresentations in this appeal, concerning when it
first learned of the appellant’s SSA benefits. Id. Nevertheless, the administrative
judge determined that the totality of the circumstances did not warrant waiver.
RID at 5-10.
¶14 On review, the appellant again argues that OPM’s actions were
unconscionable, or even criminal. RPFR File, Tab 4 at 6 -32. In large part, she
does so by reasserting that OPM’s information technology systems should have
alerted OPM of her SSA benefits in April 2007, long before the October 2008
Screen, but failed to implement a corresponding reduction in her annuity payments until
2010, then OPM did not act expeditiously, thereby “undermin[ing] one basis for the
Board’s conclusion that the delay was not unconscionable.” Lucas, 614 F. App’x
at 495. OPM has since acknowledged that the October 2008 SSA Response Screen
demonstrates that it first became aware of the appellant’s approval for SSA benefits at
that time. RF, Tab 16 at 4.
5
While considering this delay, the administrative judge mistakenly identified the dates
as August 2007 and April 2010. RID at 7. The proper dates were August 2010 and
April 2013. IAF, Tab 10 at 6.
8
date recognized by the administrative judge. Id. at 9-16. Like the administrative
judge, we found no evidence that OPM actually did know of the appellant’s SSA
benefits prior to October 2008. 6 See RID at 6-7; compare PFR File, Tab 4 at 6
(SSA Response Screen dated October 16, 2008, verifying that the appellant was
receiving SSA disability), and RF, Tab 16 at 4 (OPM’s admission that it learned
of the appellant’s SSA benefits on October 16, 2008), with RF, Tab 22 at 9 (SSA
Response Screen dated April 2, 2007, with no information concerning SSA
benefits). Accordingly, the record supports only a delay of approximately
21 months between OPM learning of the portion of the overpayment attributable
to the appellant’s SSA benefits and OPM taking action. PFR File, Tab 4 at 6; RF,
Tab 16 at 4; IAF, Tab 10 at 14.
¶15 The appellant’s point about the delay between her SSA benefit award, in
March 2007, and the date on which we have evidence of OPM learning of those
benefits, in October 2008, is well taken, nonetheless. OPM has acknowledged
that it receives reports from SSA regarding the award of SSA benefits on a
monthly basis and that those reports are compared with OPM’s list of annuitants
each month. RF, Tab 17 at 12. We have no indication, though, that this monthly
comparison captured the appellant’s SSA award between March 2007 and
October 2008.
¶16 The appellant next suggests that OPM’s initial misrepresentations
concerning when it learned of her SSA benefits were intentional. E.g., RPFR
File, Tab 4 at 26-27. But, we have no basis for concluding that OPM’s prior
misrepresentation was anything other than an inadvertent mistake, which OPM
did eventually remedy by providing relevant evidence . Supra ¶ 5 n.2; PFR File,
Tab 1 at 7, Tab 4 at 6. Even so, this was another error on the part of OPM with
6
We recognize the appellant’s assertion that she mailed OPM a copy of her SSA award
letter. E.g., RPFR File, Tab 4 at 20. It appears, though, that neither the appellant nor
OPM have any evidence of OPM receiving the same.
9
respect to the appellant and her annuity. We also find it noteworthy that OPM
provided the evidence demonstrating its earlier mistake, unceremoniously, as if
the evidence was inconsequential, when the opposite was true. Compare IAF,
Hearing Recording (testimony of OPM official, indicating that OPM did not learn
of the appellant’s SSA benefits until July 2010), with PFR File, Tab 4 at 5-6
(OPM’s submission of evidence that suggested OPM had notice of those benefits
as of at least October 2008, without any comment about its significance or the
accuracy of OPM’s prior representations); RF, Tab 16 at 4 (OPM implicitly
acknowledging it had previously misrepresented when it learned of the
appellant’s SSA benefits).
¶17 The appellant also reasserts that other matters, such as the significant health
issues she experienced during her initial disability retirement, are further reason s
to waive the overpayment. RPFR File, Tab 4 at 19-22. The Board has recognized
that an annuitant’s health may be relevant under the totality-of-the-circumstances
approach for determining whether recovery of an overpayment would be
unconscionable. See Aguon v. Office of Personnel Management, 42 M.S.P.R.
540, 550-51 (1989) (remanding an overpayment appeal for an appellant to submit
argument and evidence regarding whether his medical condition was sufficient,
either alone or in combination with other factors, to justify a finding that recovery
would be unconscionable); see also Boone, 119 M.S.P.R. 53, ¶ 9 (finding that, in
deciding whether recovery of an overpayment was unconscionable, it was
appropriate for the Board to consider whether collection of the overpayment
would have a negative impact on the appellant because of her medical conditions,
or that those medical conditions required expenditure of a portion of the
installment amount). Accordingly, the appellant’s treatment for stage 4 cancer,
which then triggered severe depression, is relevant to our disposition. RPFR File,
Tab 4 at 19, 22; IAF, Tab 7 at 5-7.
¶18 To sum up and reiterate the circumstances at hand, OPM approved the
appellant’s disability annuity and SSA approved her application for disability
10
benefits in the same month, March 2007. IAF, Tab 7 at 26-27, Tab 10 at 21.
OPM received specific notice that the appellant was receiving SSA benefits in
October 2008. RF, Tab 16 at 4, Tab 17 at 12. However, OPM did not act to
adjust the appellant’s annuity payments to stop overpaying her until July 2010.
IAF, Tab 7 at 43-44, Tab 10 at 14. At that point, the appellant requested a
waiver, but it took OPM years to issue its final denial. IAF, Tab 10 at 6.
Subsequently, the appellant filed the instant Board appeal, in which OPM
erroneously claimed that it learned of the overpayment in July 2010, then
unceremoniously provided a document proving otherwise after the administrative
judge had already ruled in OPM’s favor. PFR File, Tab 4 at 5-6. For the most
part, these mistakes and delays on the part of OPM have been unexplained. And
they all occurred with the backdrop of the appellant struggling with sudden,
unexpected, and grave health challenges—the ones that caused her to apply for a
FERS disability annuity and SSA benefits in the first place . E.g., IAF, Tab 7
at 5-7.
¶19 Given the totality of the circumstances, we find that the appellant has
proven by substantial evidence that recovery would be unconscionable regarding
the portion of overpayment attributable to OPM’s failure to account for her SSA
benefits when it had documented notice of the same—between October 2008 and
July 2010. For that portion of the overpayment, the appellant is without fault and
recovery would be against equity and good conscience. The remainder of the
overpayment is unfortunate, but the high standard necessary for waiver is not met.
¶20 We recognize, as the administrative judge did, that individuals who know or
suspect that they are receiving overpayments are expected to s et aside the amount
overpaid pending recoupment and recovery is not against equity and good
conscience in the absence of exceptional circumstances, such as extremely
egregious errors or delays by OPM. Boone, 119 M.S.P.R. 53, ¶ 6. But, we
disagree with the administrative judge’s conclusion that this set -aside rule is
another basis for denying the appellant a waiver. See RID at 9-10.
11
¶21 The record shows that the appellant suspected OPM owed her more money,
not less. In its initial correspondence, OPM did warn the appellant that her
annuity would have to be reduced if she were granted SSA bene fits, but it also
informed her that its interim payments would be substantially reduced to avoid
any overpayment as OPM further processed her annuity. IAF, Tab 7 at 28-30, 32.
These letters from OPM indicated that the interim payments “should be less” than
her actual annuity, while also describing it as “rare” that an individual such as the
appellant would be overpaid with the interim payments. Id. at 30, 32. Not
expecting hers to be that “rare case,” the appellant mistakenly believed that she
was being underpaid. She, therefore, was awaiting a lump sum payment from
OPM to account for the difference between her interim annuity payments and her
final annuity calculation. Id. at 8-9; RF, Tab 21 at 11, 14. The appellant sought
help from her local Congressman for the same. IAF, Tab 7 at 9, 42. Plus, even if
the appellant had known or suspected that she was being overpaid, we find that
this is a case of exceptional circumstances, for the reasons previously discussed.
Supra ¶¶ 18, 20.
¶22 To conclude, we find that recovery of a portion of the overpayment—the
portion attributable to OPM failing to adjust the appellant’s annuity to account
for her SSA benefits during the 21-month span of October 2008 to July 2010
when it had specific notice of the same—would be against equity and good
conscience due to OPM’s numerous, extensive, and largely unexplained errors or
delays. Accordingly, we hereby remand the matter to OPM for issuance of a new
reconsideration decision consistent with this decision. 7
7
We leave it to OPM to calculate the precise amount of the appellant’s overpayment
after accounting for the partial waiver. But, we note that the applicable guidelines
indicate that this amount will be 60% of the appellant’s SSA benefits for that period
because the overpayment accrued more than a year after the appellant’s annuity first
commenced. 5 U.S.C. § 8452(a)(2)(A); Cebzanov v. Office of Personnel Management,
96 M.S.P.R. 562, ¶ 5 (2004); 5 C.F.R. § 844.302(c)(2); IAF, Tab 10 at 7-10.
12
ORDER
¶23 On remand, OPM shall issue a new reconsideration decision that waives the
portion of overpayment described above. OPM shall issue the new
reconsideration decision within 60 calendar days from the date of this Order and
shall advise the appellant of her right to appeal to the Board if she disagrees with
that new decision. See, e.g., Stephenson v. Office of Personnel Management,
119 M.S.P.R. 457, ¶¶ 5-6 (2013).
¶24 We also ORDER OPM to tell the appellant promptly in writing when it
believes it has fully carried out the Board’s Order and of the actions it has taken
to carry out the Board’s Order. We ORDER the appellant to provide all necessary
information OPM requests to help it carry out the Board’s Order. The appellant,
if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).
¶25 No later than 30 days after OPM tells the appellant it has fully carried out
the Board’s Order, the appellant may file a petition for enforcement with the
office that issued the initial decision on this appeal if the appellant believes that
OPM did not fully carry out the Board’s Order. The petition should contain
specific reasons why the appellant believes OPM has not fully carried out the
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.