Case: 24-2348
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`FORM 5. Petition for Review/Notice of Appeal of an Order or Decision of an Agency, Board,
`Commission, Office, Bureau, or the US Court of Federal Claims (vaccine appeals only))
`
`Form 5
`March 2023
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`PETITION FOR REVIEW/NOTICE OF APPEAL
`
`Notice is hereby given that the petitioner(s)/appellant(s) listed below hereby
`appeal(s) the below-noted case to the United States Court of Appeals for the Federal
`Circuit.
`
`Originating Tribunal (Name ofAgency, Board, Commission, Office, Bureau, or Court
`whose decision is being appealed):
`MSPB & OPM
`
`Case numberbeing appealed:
`
`3
`
`-12..
`
`Case title being appealed:
`
`Cambra L Lucas v Office of Personnel Mgmt.
`
`Date of final decision or order being appealed:
`
`08/22/2024
`
`Date decision or order wasreceived:
`
`08/23/2024
`
`(=) I have attached a copy of the decision or order being appealed.
`
`List all Petitioners/Appellants (List each party filing this appeal. Do not use “et
`al.” or other abbreviations. Attach continuation pages if necessary.)
`
`CambraL Lucas, Appellant
`Matthew G Lucasfor the Appellant
`
`RECEIVED
`
`SEP 16 2024
`
`United States Court of Appeals
`For the Federal Circuit
`
`
`
`
`
`
`
`Date: 09/04/2024 Sigtinture:Coenhyghar’
`
`Name: Cambra L Lucas
`
`Address: 321 Osbourne ct.
`
`Ripon CA 95366
`
`Phone Number: 209-599-3447
`
`Email Address: cambralucas@charter.net
`
`

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`UNITED STATES OF AMERICA
`MERIT SYSTEMS PROTECTION BOARD
`
`CAMBRAL. LUCAS,
`Appellant,
`
`DOCKET NUMBER
`SF-0845-13-0413-C-1
`
`Vv.
`
`OFFICE OF PERSONNEL
`MANAGEMENT,
`Agency.
`
`DATE: August 22, 2024
`
`THIS FINAL ORDER IS NONPRECEDENTIAL'
`
`Matthew G. Lucas, Ripon, California, for the appellant.
`
`Karla W. Yeakle, Washington, D.C., for the agency.
`
`BEFORE
`
`Cathy A. Harris, Chairman
`Raymond A. Limon, Vice Chairman
`Henry J. Kerner, Member
`
`FINAL ORDER
`
`ql
`
`The appellant has filed a petition for review of the compliance initial
`
`decision, which denied the appellant’s petition for enforcement. On petition for
`
`review,
`
`the appellant argues that
`
`the administrative judge did not properly
`
`consider her argument regarding a statute of limitations and alleged due process
`
`violations by the Office of Personnel Management
`
`(OPM) and the Board.
`
`the Board has determined does not add
`is one that
`' A nonprecedential order
`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).
`
`

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`Generally, we grant petitions
`
`such as
`
`this one only in
`
`the
`
`following
`
`circumstances: the initial decision contains erroneous findings of material fact;
`
`the initial decision is based on an erroneousinterpretation of statute or regulation
`
`or the erroneous application of the law to the facts of the case; the administrative
`
`judge’s rulings during either the course of the appeal or the initial decision
`
`were not consistent with required procedures or involved an abuse of discretion,
`
`and the resulting error affected the outcome of the case; or new and material
`
`evidence or
`
`legal argument
`
`is available that, despite the petitioner’s due
`
`diligence, was not available when the record closed. Title 5 of the Code of
`
`Federal Regulations,
`
`section 1201.115 (5 C.F.R.
`
`§ 1201.115).
`
`After
`
`fully
`
`considering the filings in this appeal, we conclude that the petitioner has not
`
`established any basis under section 1201.115 for granting the petition for review.’
`
`Therefore, we DENY thepetition for review and AFFIRM the compliance initial
`
`decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).°
`
`> In the appellant’s compliance petition for review, she argues that OPM’s attempt to
`collect an overpayment is barred by the statute of limitations on administrative offset
`set forth in a prior version of 31 U.S.C. § 3716(e). Compliance Petition for Review
`(CPFR) File, Tab 1 at 5-11. Subsection 3716(e)(1) was amended in 2008 to eliminate
`the 10-year statute of limitations period. See Food, Conservation, and Energy Act of
`2008, Pub. L. No. 110-246, 122 Stat. 1651 (June 18, 2008).
`In amending this provision,
`Congress explicitly stated that the amendment “shall apply to any debt outstanding on
`or after the date of the enactment of this Act.” See 31 U.S.C. § 3716(b)(1) (2008),
`122 Stat. 1651, 2245. The appellant’s overpayment debt began to accrue in 2007 and
`was, therefore, in existence at the time of the 2008 amendment to 31 U.S.C. § 3716(e)
`(1). Lucas v. Office of Personnel Management, MSPB Docket No. SF-0845-13-0413-I-
`1, Initial Appeal File (IAF), Tab 10 at 4. According to Congress’s express intent, the
`amendment eliminating the statute of limitations on collection of the overpayment
`applies to the appellant. Further, the appellant has not adequately explained why any
`alleged delay on the part of OPM in enacting implementing regulations would impact
`the application of the 2008 statutory amendment. CPFR File, Tab | at 7-8.
`In any
`event, even if the 10-year statute of limitations did apply to the appellant,
`the debt
`began to accrue in 2007, and OPM began its attempt to recover the overpayment as
`early as July 2010.
`IAF, Tab 10 at 14-17.
`Thus, OPM sought recovery of the
`overpayment within 3 years of its existence, well before the running of a 10-year statute
`of limitations. Based on the foregoing, the appellant has not shown that OPM is barred
`from recovering the overpayment.
`
`

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`NOTICE OF APPEAL RIGHTS‘
`
`5 U.S.C. § 7703(a)(1). By
`You may obtain review ofthis final decision.
`the nature of your claims determines the time limit for seeking such
`statute,
`review and the appropriate forum with which to file.
`5S U.S.C. § 7703(b).
`Although we offer the following summary of available appeal rights, the Merit
`Systems Protection Board does not provide legal advice on which option is most
`appropriate for your situation and the rights described below do not represent a
`statement of how courts will
`rule regarding which cases fall within their
`jurisdiction.
`If you wish to seek review of this final decision, you should
`immediately review the law applicable to your claims and carefully follow all
`filing time limits and requirements. Failure to file within the applicable time
`limit may result in the dismissal of your case by your chosen forum.
`Please read carefully each of the three main possible choices of review
`below to decide which one applies to your particular case.
`If you have questions
`
`about whether a particular forum is the appropriate one to review your case, you
`
`should contact that forum for more information.
`
`> Prior to the close of record on review, the appellant submitted a motion for leave to
`file additional information. CPFR File, Tab 5.
`In that motion, she explains that she
`wished to file a motion for OPM to “Cease and Desist” the overpaymentcollection.
`/d.
`at 4. Under 5 C.F.R. § 1201.114(a)(5), an appellant may only submit an additional
`pleading if she explains the nature and need for the pleading. As such, we must
`determine if the proffered filing is necessary. Normally, OPM will not commence
`collection until
`the administrative review process of 5 C.F.R.
`§ 845.204 has been
`completed, i.e., until OPM has issued a final decision and the Board has acted on any
`appeal of that decision. Campbell v. Office of Personnel Management, 123 M.S.P.R.
`240, § 5 (2016); 5 C.F.R. § 845.205(d)(1). The merits of the overpayment have been
`litigated and are final. The instant matter before the Board concerns only the question
`of compliance and whether OPM complied with the Board’s February 2023 Remand
`Order. Therefore, the general principle set forth above does not apply. Given that our
`findings regarding the merits of the overpayment are final and cannot be changed
`pursuant to the law of the case, we find that the appellant has not shown that an
`additional pleading is necessary. Accordingly, the appellant’s motion is denied.
`* Since the issuance of the initial decision in this matter, the Board may have updated
`the notice of review rights included in final decisions. As indicated in the notice, the
`Board cannot advise which option is most appropriate in any matter.
`
`

`

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`(1) Judicial review in general. As a general rule, an appellant seeking
`
`judicial review of a final Board order mustfile a petition for review with the U.S.
`
`Court of Appeals for the Federal Circuit, which must be received by the court
`
`within 60 calendar days of the date of issuance of this decision.
`
`5 U.S.C.
`
`§ 7703(b)(1)(A).
`
`If you submit a petition for review to the U.S. Court of Appeals for the
`
`Federal Circuit, you must
`
`submit your petition to
`
`the
`
`court
`
`at
`
`the
`
`following address:
`
`U.S. Court of Appeals
`for the Federal Circuit
`717 Madison Place, N.W.
`Washington, D.C. 20439
`
`Additional
`
`information about the U.S. Court of Appeals for the Federal
`
`Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
`
`relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
`
`contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
`
`If you are interested in securing pro bono representation for an appeal to
`
`the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
`
`http://www.mspb.gov/probono for information regarding pro bono representation
`
`for Merit Systems Protection Board appellants before the Federal Circuit. The
`
`Board neither endorses the services provided by any attorney nor warrants that
`
`any attorney will accept representation in a given case.
`
`(2) Judicial
`
`_or EEOC review of
`
`cases
`
`involving
`
`a
`
`claim of
`
`discrimination. This option applies to you only if you have claimed that you
`
`were affected by an action that is appealable to the Board and that such action
`
`wasbased, in whole orin part, on unlawful discrimination. If so, you may obtain
`
`judicial review of this decision—including a disposition of your discrimination
`
`claims—byfiling a civil action with an appropriate U.S. district court (not the
`
`U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
`
`

`

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`see Perry v. Merit Systems
`§ 7703(b)(2);
`5 U.S.C.
`receive this decision.
`
`Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
`and your representative receives this decision before you do, then you mustfile
`with the district court no later than 30 calendar days after your representative
`receives this decision.
`If the action involves a claim of discrimination based on
`race, color, religion, sex, national origin, or a disabling condition, you may be
`entitled to representation by a court-appointed lawyer and to waiver of any
`requirement of prepayment of fees, costs, or other security.
`See 42 U.S.C.
`§ 2000e-5(f) and 29 U.S.C. § 794a.
`Contact information for U.S. district courts can be found at their respective
`
`websites, which can be accessed through the link below:
`
`Alternatively, you may request
`review by the Equal Employment
`Opportunity Commission (EEOC) of your discrimination claims only, excluding
`all other issues.
`5 U.S.C. § 7702(b)(1). You mustfile any such request with the
`EEOC’s Office of Federal Operations within 30 calendar days after you receive
`this decision.
`5 U.S.C. § 7702(b)(1).
`If you have a representative in this case,
`and your representative receives this decision before you do, then you mustfile
`with the EEOC nolater than 30 calendar days after your representative receives
`
`this decision.
`If you submit a request for review to the EEOC by regular U.S. mail, the
`address of the EEOC 1s:
`
`Office of Federal Operations
`Equal Employment Opportunity Commission
`P.O. Box 77960
`Washington, D.C. 20013
`
`If you submit a request for review to the EEOC via commercial delivery or
`by a method requiring a signature, it must be addressed to:
`
`

`

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`Office of Federal Operations
`Equal Employment Opportunity Commission
`131 M Street, N.E.
`Suite 5SW12G
`Washington, D.C. 20507
`
`the Whistleblower Protection
`to
`review pursuant
`(3) Judicial
`Enhancement Act of 2012. This option applies to you only if you have raised
`claims ofreprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
`other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
`If so, and your judicial petition for review “raises no challenge to the Board’s
`disposition of allegations of a prohibited personnel practice described in section
`2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(Q),
`(B), (C), or (D),” then you mayfile a petition for judicial review either with the
`U.S. Court of Appeals for the Federal Circuit or any court of appeals of
`competent jurisdiction.” The court of appeals must receive your petition for
`review within 60 days of the date of issuance of this decision.
`5 U.S.C.
`
`§ 7703(b)(1)(B).
`If you submita petition for judicial review to the U.S. Court of Appeals for
`the Federal Circuit, you must
`submit your petition to the court at
`the
`
`following address:
`
`U.S. Court of Appeals
`for the Federal Circuit
`717 Madison Place, N.W.
`Washington, D.C. 20439
`
`review of certain
`judicial
`statutory provision that provided for
`° The original
`whistleblower claims by any court of appeals of competent jurisdiction expired on
`December 27, 2017. The All Circuit Review Act, signed into law by the President on
`July 7, 2018, permanently allows appellants to file petitions for judicial review of
`MSPBdecisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
`for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
`The All Circuit Review Act is retroactive to November 26, 2017. Pub.L. No. 115-195,
`132 Stat. 1510.
`
`

`

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`
`Additional
`
`information about the U.S. Court of Appeals for the Federal
`
`Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
`
`relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
`
`contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
`
`If you are interested in securing pro bono representation for an appeal to
`the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
`http://www.mspb.gov/probono for information regarding pro bono representation
`for Merit Systems Protection Board appellants before the Federal Circuit. The
`Board neither endorses the services provided by any attorney nor warrants that
`
`any attorney will accept representation in a given case.
`Contact
`information for
`the courts of appeals can be found at
`
`their
`
`respective websites, which can be accessed throughthe link below:
`http://www.uscourts.gov/Court Locator/CourtWebsites.aspx.
`
`FOR THE BOARD:
`
`Washington, D.C.
`
`Gina K. Grippande
`
`Gina K. Grippando
`Clerk of the Board
`
`

`

`Lucas
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`
`
`CERTIFIED MAIL’
`
`
`U.S. Court 3 oS Appeals
`Lor
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`Ci ¥CuUur 4.
`53589 0710 S270 170b 75649 40 Ain Wadison Place, 1.
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