GRANTED: April 22, 2009 
CBCA 1073 
OCWEN LOAN SERVICING, LLC, 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Gregory S. Jacobs, James P. Gallatin, Jr., and Lawrence S. Sher of Reed Smith LLP, 
Washington, DC, counsel for Appellant. 
Dennis Foley, William Korth, Phil Kauffman, and Phillipa L. Anderson, Office of 
General Counsel, Department of Veterans Affairs, Washington, DC, counsel for 
Respondent. 
Before Board Judges DANIELS (Chairman), HYATT, and DRUMMOND . 
DANIELS , Board Judge. 
Once again, the Board has thrown the respondent in this case, the Department of 
Veterans Affairs (VA), a lifeline, and the agency has used that rope to hang itself.  The 
appeal is granted because, in response to the Board’s request for a definition and explanation 
of the portion of the government claim which survives, VA has provided no definition or 
explanation whatsoever. 

     
  
  
  
 
 
 
     
  
  
   
 
 
  
  
           
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Background 
The contract at issue here is for the performance of services involving the sale of real 
estate which comes into VA’s possession through foreclosures on VA-guaranteed loans.  The 
claim is for penalties which the contract specifies are to be calculated with reference to 
Return on Sale (ROS).  A key component of ROS is the foreclosure appraisal values used by 
VA for the properties in question.  VA refused to produce foreclosure appraisals for the vast 
majority of the properties -- first in response to discovery requests made by the contractor, 
Ocwen Loan Servicing, LLC (Ocwen), and later in response to an order by the Board.  In an 
earlier decision, the Board concluded that without the appraisals, the agency could not 
demonstrate that the penalties were reasonably premised as to these properties.  We 
consequently granted the appeal as to that portion of the claim involving the properties. 
We allowed the case to proceed as to the properties for which VA had produced 
foreclosure appraisals.  In doing so, however, we stated: 
We are not certain . . . whether the agency can, without reference to the great 
bulk of appraisals, establish that any penalties may fairly be imposed on the 
contractor. The contract requires that an ROS be based on all properties sold 
during a particular period, and it is not clear whether, by eliminating properties 
from the universe from which an ROS might be calculated, it is possible to 
calculate an ROS. We therefore hold in abeyance a ruling on the remainder of 
Ocwen’s motion [to grant the appeal].  VA is directed to provide to the Board 
and the contractor, within two weeks from the date of this decision -- by 
Thursday, April 2, 2009 [--] a proffer of the portion of the claim (if any) it 
believes survives the decision. If the proffer is that some of the claim survives, 
the proffer shall include a detailed explanation of how that amount is 
calculated and a complete list of the evidence which may be relied upon to 
support the amount.  After reviewing this proffer, and considering Ocwen’s 
comments on it, we will rule on the part of the motion as to which we have 
now held in abeyance. 
Ocwen Loan Servicing LLC v. Department of Veterans Affairs , CBCA 1073 (Mar. 19, 2009), 
slip op. at 12. 
VA filed on April 2 a statement it called “Respondent’s Proffer and Request to Set 
Aside Sanctions and Motion for Protective Order.”  Notwithstanding the title, as Ocwen 
points out, this statement is not the proffer that the Board directed the agency to file.  The 
statement does not include a definition of the portion of the claim VA believes survives our 
March 19 decision. Indeed, it does not cite a single dollar figure. Nor does the statement 

  
   
  
 
 
  
     
 
  
 
 
    
 
 
    
  
 
         
  
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include a detailed explanation of how an amount is calculated.  With the exception of a brief 
apology (for what is not made clear), the statement consists almost entirely of a request for 
reconsideration of the March 19 decision.  The request argues that VA is “not obliged to 
retain or to provide pre-foreclosure appraisals” and that “Ocwen was contractually obliged 
to provide the . . . appraisals.”  Respondent’s Proffer at 2, 3.  Additionally, “Respondent 
protests it is being compelled to proffer its entire case for Board decision before any evidence 
is properly taken and before discovery is completed.”  Id. at 6. 
Discussion 
In issuing the interlocutory decision on March 19, the Board was uncertain whether 
any of the Government’s claim survived our rejection of most of it. We sought assistance, 
in understanding the dimensions of the remainder of the case, from the party which had made 
the claim.  Our order was a commonplace direction in litigation: an effort to determine, from 
the party bearing the burden of proof, how the claim was constructed and whether any 
support for it existed.  In response, VA has declined to provide any information at all. 
Because the party making the claim has failed to establish a prima facie case for going 
forward, we have no alternative but to conclude that the penalties are without foundation. 
The appeal is therefore granted, to the extent that it remained open on March 19. 
The request for reconsideration is not well taken.  VA still does not seem to 
understand that foreclosure appraisals must be produced to demonstrate that penalties based 
in large part on them are reasonably premised.  Thus, our decision was reached not because 
VA disobeyed discovery orders (which it did), but rather, because the agency failed to meet 
its obligation to demonstrate that it had sufficient basis to support its claim.  Some of the 
arguments made in the motion were previously made and rejected, and others could have 
been made on the basis of documents in the record but were not.  Neither variety of argument 
is appropriately put before us now.  Board Rule 26(a) (48 CFR 6101.26(a) (2008)) 
(“Arguments already made and reinterpretations of old evidence are not sufficient grounds 
for granting reconsideration”); Watson v. United States , 281 F. App’x 970, 971 (Fed. Cir. 
2008) (“a new legal argument cannot be raised in a motion for reconsideration under RCFC 
[Rules of the Court of Federal Claims] 59(a)(1) when the plaintiff knew of the facts giving 
rise to the argument during the pendency of the case”); National Westminster Bank, PLC v. 
United States , 512 F.3d 1347, 1352, 1363 (Fed. Cir. 2008) (argument made on 
reconsideration but not presented during briefing stage held to have been waived). 
Ocwen has presented an elaborate explanation showing that no penalties can be 
justified under the contract with regard to the properties for which VA has produced 
foreclosure appraisals.  Appellant’s Comments Regarding Respondent’s Proffer at 4-8 & 
Attachment A.  Because the penalties are a Government claim and VA has made no effort, 

  
 
 
    
     
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in response to our March 19 order, to satisfy its burden of demonstrating that there is 
justification for them, we have no need to analyze whether Ocwen’s explanation is valid. 
Similarly, because we have rejected VA’s request for reconsideration, we do not analyze the 
agency’s brand new -- and quite surprising, in light of the history of the case -- argument that 
Ocwen, not VA, was responsible for creating the foreclosure appraisals. 
Decision 
To the extent that this appeal was not resolved in the Board’s decision of March 19, 
2009, the appeal is now GRANTED .  The appeal is consequently granted in its entirety.  VA 
may not impose on Ocwen any of the penalties encompassed in the claim which is the subject 
of this case. 
_________________________ 
STEPHEN M. DANIELS 
Board Judge 
We concur: 
_________________________ _________________________ 
CATHERINE B. HYATT JEROME M. DRUMMOND 
Board Judge Board Judge