Opinion

Robert L. Britton v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Mar 4, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT L. BRITTON, DOCKET NUMBER

Appellant, AT-831M-21-0233-B-1

OFFICE OF PERSONNEL DATE: March 4, 2026

MANAGEMENT,

Agency,

and

MARIA L. BRITTON,

Intervenor.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Robert L. Britton , Lady Lake, Florida, pro se.

Michael Shipley and Jo Antonette Bell , Washington, D.C., for the agency.

Maria L. Britton , Summerfield, Florida, pro se.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

FINAL ORDER

The appellant has filed a petition for review of the remand initial decision,

which affirmed the reconsideration decision by the Office of Personnel

Management (OPM) finding that he had been overpaid $12,736.00 in retirement

annuity benefits. For the reasons discussed below, we GRANT the appellant’s

petition for review, AFFIRM the initial decision’s finding that OPM overpaid the

appellant $12,736.00 in retirement annuity benefits, but REVERSE the initial

decision’s finding that the appellant is not entitled to a waiver of the collection of

the overpayment.

BACKGROUND

The appellant is a former Federal employee who retired under the Civil

Service Retirement System (CSRS) in January 1995. Britton v. Office of

Personnel Management, MSPB Docket No. AT-831M-21-0233-B-1, Remand File

(RF), Tab 5 at 150. At the time of his retirement, the appellant elected a reduced

annuity with maximum survivor annuity for his then-wife. Id. Subsequently, the

appellant and his former wife divorced, and on May 12, 2015, a Final Dissolution

of Marriage was entered by a Florida circuit court dividing the parties’ assets. Id.

at 46-58. The divorce decree required the appellant to continue his reduced

annuity with maximum survivor annuity, with his former wife as the beneficiary.

Id. at 50-51. However, shortly thereafter, the appellant’s former wife filed a

motion to reconsider and/or vacate the divorce decree, and, on July 6, 2015, the

court entered an order amending the divorce decree, which, among other things,

granted the former wife’s “request to terminate her survivor benefit in exchange

for the [appellant’s] payment of $258.00 per month directly to the [f]ormer

[w]ife.” Id. at 59, 63.

Consequently, the appellant began directly paying his former wife $258.00

per month and submitted a copy of the amended divorce decree to OPM,

requesting that OPM terminate his election of a survivor annuity consistent with

the order. Id. at 18-20. OPM granted the appellant’s request, and thus, the

appellant began receiving a higher monthly annuity. 2 Id. at 20. However, on

February 27, 2019, OPM issued an amended determination letter, advising the

appellant that it should not have honored the amended divorce decree because it

was a modification prohibited by statute, and that, as a result, he had been

overpaid and his annuity would be reduced to recover the overpayment. Id.

at 20-21. The appellant requested reconsideration of the amended determination,

and on March 9, 2020, OPM issued a decision affirming the finding of

overpayment, but rescinding the previous decision because it had erred in its

calculation of the amount of overpayment. Id. at 9-11. Subsequently, OPM

issued a January 10, 2021 amended award letter advising the appellant that,

because it had improperly eliminated deductions from his annuity consistent with

his election of a survivor annuity, he had received an overpayment of $12,736.00

in annuity benefits, which OPM would recover in 254 monthly installments of

$50.00 with a final installment of $36.00. Britton v. Office of Personnel

Management, MSPB Docket No. AT-831M-21-0233-I-1, Initial Appeal File

(IAF), Tab 13 at 5-6.

The appellant filed a Board appeal challenging OPM’s January 10, 2021

decision, and during the pendency of that appeal, the parties entered into a

negotiated settlement agreement in which OPM allowed the appellant to pay a

total of $12,736.00 in 254 monthly installments of $50.00, with a final

The appellant’s former wife was also entitled to 50% of his CSRS plan accrued from

the date of marriage to his retirement, i.e., December 28, 1990, to January 2, 1995. RF,

Tab 5 at 62. Therefore, the appellant paid his former wife an additional $191.00 per

month to account for her share of his CSRS plan. Id. at 18-19. However, in its

amended determination letter, dated February 27, 2019, OPM advised the appellant that

the appropriate apportionment share was, in fact, $178.18. Id. at 20. Nevertheless,

while it appears that the appellant overpaid his former wife for her share of his

retirement plan, because OPM was not involved in the collection or distribution of this

payment, such issue is not before the Board. See Morin v. Office of Personnel

Management, 107 M.S.P.R. 534, ¶ 8 (2007) (finding that the Board has jurisdiction over

OPM determinations affecting the appellant’s rights or interests under CSRS), aff’d,

287 F. App’x. 864 (Fed. Cir. 2008).

installment of $36.00, in exchange for the appellant withdrawing his appeal and

waiving his right to request a waiver of overpayment. IAF, Tab 16 at 4. The

administrative judge dismissed the appeal as settled, and the appellant filed a

petition for review. Britton v. Office of Personnel Management, MSPB Docket

No. AT-831M-21-0233-I-1, Petition for Review File, Tab 1. Subsequently, the

Board issued a remand order vacating the initial decision, finding that the parties’

settlement agreement lacked consideration and thus, was unenforceable.

Britton v. Office of Personnel Management, MSPB Docket No. AT-831M-21-

0233-I-1, Remand Order at 2, 4-5 (Apr. 2, 2024). Accordingly, the Board

remanded the appeal to the regional office for further adjudication. Id. at 2, 5.

After the appellant withdrew his hearing request, the administrative judge

issued a remand initial decision affirming OPM’s reconsideration decision. RF,

Tab 13, Remand Initial Decision (RID). Specifically, the administrative judge

found that the agency proved that overpayment existed because, per the plain

language of its governing regulations, OPM should not have honored the amended

divorce decree eliminating the appellant’s election of a survivor annuity. RID

at 4-5. He also found that OPM proved the amount of overpayment, i.e.,

$12,736.00, noting that the appellant did not dispute the calculation. RID at 5.

Next, the administrative judge found that the appellant was not entitled to a

waiver of overpayment because he was not without fault for the creation of the

overpayment because he had submitted the amended divorce decree. RID at 5-6.

Finally, finding that the appellant presented no evidence that OPM’s collection

schedule would impose a financial hardship, the administrative judge concluded

that the appellant did not prove that the overpayment should be waived or

modified. RID at 6.

The appellant has filed a petition for review arguing that the overpayment

debt is OPM’s fault, reiterating that he directly paid his former wife $258.00 per

month, and claiming that recovery of overpayment would result in extreme

financial hardship. Britton v. Office of Personnel Management, MSPB Docket

No. AT-831M-21-0233-B-1, Remand Petition for Review (RPFR) File, Tab 1

at 4-6. The agency filed a response to the appellant’s petition for review. RPFR

File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

Per 5 U.S.C. § 8341(h)(4), a modification of a divorce decree or

court-approved property settlement is not effective if it is made after the

employee’s retirement or death and involves an annuity. Warren v. Office of

Personnel Management, 407 F.3d 1309, 1315 (Fed. Cir. 2005). Under OPM’s

regulations, for purposes of eliminating a former spouse survivor annuity, a court

order must be issued on a day prior to the date of retirement or death of the

employee or be the first court order dividing marital property. 5 C.F.R.

§ 838.806(b). A court order that fails to meet either of these requirements is not

acceptable for processing by OPM. 5 C.F.R. § 838.806(a); see Walley v. Office of

Personnel Management, 114 M.S.P.R. 198, ¶ 9 (2010). The U.S. Court of

Appeals for the Federal Circuit and the Board have accepted OPM’s interpretation

of the statute and have held that a subsequent state court order purporting to

modify the original division of marital property in a divorce will not qualify as an

acceptable court order eliminating a survivor annuity. See Warren, 407 F.3d

at 1316; Walley, 114 M.S.P.R. 198, ¶ 9.

In this case, it is undisputed that the amended divorce decree eliminating

the appellant’s election of a survivor annuity is a state court order modifying the

original division of marital property in a divorce. RF, Tab 5 at 59, 63, 150.

Accordingly, pursuant to the well-established interpretation of the applicable

statute and regulations, the amended divorce decree does not qualify as an

acceptable court order. However, because OPM erroneously accepted the

amended divorce decree and modified the appellant’s election of a survivor

annuity, it overpaid the appellant. Therefore, we discern no basis to disturb the

administrative judge’s finding that OPM proved that it overpaid the appellant by

$12,736.00. RID at 4-5; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,

106 (1997) (explaining that the Board will not disturb an administrative judge’s

findings when he considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions); Broughton v. Department of Health

and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

The appellant does not dispute either that an overpayment occurred or the

amount of overpayment. Accordingly, we focus on the issue in dispute, namely,

whether the appellant established that he is entitled to a waiver of recovery of the

overpayment. To establish entitlement to a waiver of an annuity overpayment, an

appellant must show by substantial evidence that (1) he is without fault in

connection with the overpayment; and (2) recovery of the overpayment would be

against equity and good conscience. 5 U.S.C. § 8346(b). As explained in detail

below, we find that the appellant is without fault in connection with the

overpayment and recovery would be unconscionable considering the

circumstances. Thus, we find that the appellant has proven that he is entitled to a

waiver of the recovery of the overpayment.

The appellant is without fault in connection with the overpayment.

The administrative judge found that, although the appellant did not know

that the amended divorce decree could not direct the modification of his election

of a survivor annuity consistent with the first court order, he still bore “some

responsibility” for the creation of the overpayment debt because he submitted the

amended divorce decree to OPM. RID at 5-6. On review, the appellant

reiterates that the overpayment is OPM’s fault. RPFR File, Tab 1 at 4-5.

A recipient of an overpayment is without fault if he has performed no act of

commission or omission that resulted in overpayment. 5 C.F.R. § 831.1402. The

pertinent considerations in finding fault are as follows: (1) whether payment

resulted from the individual’s incorrect but not necessarily fraudulent statement,

which he should have known to be incorrect; (2) whether the payment resulted

from the individual’s failure to disclose material facts in his possession which he

should have known to be material; or (3) whether he accepted a payment which he

knew or should have known to be erroneous. 5 C.F.R. § 831.1402(a); see

Fearon v. Office of Personnel Management, 107 M.S.P.R. 122, ¶ 8 (2007),

modified on other grounds by Alexander v. Office of Personnel Management ,

114 M.S.P.R. 122, ¶ 12 (2010).

We discern no circumstances that would support the conclusion that the

appellant is at fault for the overpayment debt. As the administrative judge

acknowledges, the extent of the appellant’s role in creating the overpayment is

the submission of the amended divorce decree to OPM. 3 RID at 5-6. However,

the mere submission of a document is not sufficient to establish that the appellant

bears responsibility for the creation of the overpayment. The Board in Fearon

addressed a similar situation and found that an appellant was not at fault for

creating an overpayment merely because she submitted an earned income report

evidencing that she had been restored to earning capacity, when there was no

evidence that she made incorrect statements or omitted material facts.

107 M.S.P.R. 122, ¶¶ 9-10. Applying similar reasoning here, there is no evidence

that the appellant made incorrect statements, omitted material facts, or otherwise

knew that the amended divorce decree could not modify his election of a survivor

annuity. Therefore, regarding the issue of fault, we find that it is irrelevant that

the appellant submitted the amended divorce decree; it is OPM’s responsibility to

properly apply its governing regulations and its failure to do so is solely

responsible for the creation of this overpayment. See Fearon, 107 M.S.P.R. 122,

¶ 10 (finding that the appellant was not at fault for creating an overpayment when

it was OPM’s responsibility to determine her continued entitlement payments

Although the appellant submitted the amended divorce decree to OPM, it appears that

it was his former spouse, and not the appellant, who requested the court amend the

divorce decree to eliminate the survivor annuity. RF, Tab 5 at 63.

based upon her earned income report). Therefore, we find that the appellant

proved by substantial evidence that he was not at fault for the overpayment debt.

Recovery of the overpayment debt would be unconscionable.

Because the administrative judge found that the appellant was not without

fault for the creation of the overpayment, he did not consider whether recovery

would be against equity and good conscience. RID at 5-6; see 5 U.S.C. § 8346(b)

(setting forth the standard for establishing an entitlement to a waiver of

overpayment). Recovery is against equity and good conscience when (1) it would

cause financial hardship to the person from whom it is sought; (2) the recipient of

the overpayment can show (regardless of his financial circumstances), that due to

the notice of such payment or because of the incorrect payment, he relinquished a

valuable right or changed positions for the worse; or (3) recovery would be

unconscionable under the circumstances. Tabakman v. Office of Personnel

Management, 2024 MSPB 9, ¶ 12; see 5 C.F.R. § 831.1403.

We find that recovery would be unconscionable under the circumstances of

this case. Under exceptional circumstances, gross or egregious errors or delays

by OPM may lead to a finding that it is inequitable to recover an overpayment.

Tabakman, 2024 MSPB 9, ¶ 15. Granting a waiver under these circumstances

requires a determination that OPM’s handling of a case was so offensive—so

monstrously harsh and shocking to the conscience—that one’s sense of equity

forbids recovery. Id. The Board considers all relevant factors using a

totality-of-the-circumstances approach in order to determine whether recovery of

an annuity overpayment is unconscionable in a given case. Id. (citation and

quotations omitted). Those circumstances 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; or (4) OPM was

otherwise grossly negligent in handling the case. Vojas v. Office of Personnel

Management, 115 M.S.P.R. 502, ¶ 22 (2011).

We find that OPM was grossly negligent in handling the appellant’s case

when it accepted the 2015 amended divorce decree. The issue presented to OPM

by the amended divorce decree was not a difficult or nuanced issue. Per OPM’s

own interpretation of its governing regulations, a subsequent state court order

purporting to modify the original division of marital property in a divorce will not

quality as an acceptable court order eliminating a survivor annuity. See 5 C.F.R.

§ 838.806(a), (b); Walley, 114 M.S.P.R. 198, ¶ 9. The appellant’s amended

divorce decree, which was issued 20 years after his retirement, clearly states that

it is modifying a previous order regarding the distribution of marital assets. RF,

Tab 5 at 59, 150. Accordingly, OPM should have promptly advised the appellant

that the order was a modification prohibited by law. Instead, OPM “honored” the

amended divorce decree for over 3 1/2 years. Id. at 20. Then, when OPM finally

acknowledged that it had made an error, it proceeded to issue several confusing

reconsideration decisions, altering its position regarding the status and amount of

the overpayment. Id. at 9-11, 20-21; IAF, Tab 13 at 5-6.

Further, OPM’s gross negligence has resulted in significant consequences

for the appellant. The appellant made monthly payments of $258.00 to his former

wife directly in lieu of having OPM reduce his annuity to provide for the survivor

annuity benefit. RF, Tab 5 at 18-19, 76-91; RPFR File, Tab 1 at 4-6. Therefore,

although the appellant should not have received the additional $12,736.00 in

annuity benefits, under the circumstances of this case, the appellant will have

lost, at least, an additional $11,610 from making payments directly to his former

wife. 4 Had OPM rejected the amended divorce decree as it should have, the

appellant could have sought to have the court order corrected, made other

This is an approximation of the total amount the appellant paid to his former wife for

the survivor annuity benefit, i.e., $258.00 multiplied by 45 months, which is the total

number of months the appellant asserts he made payments. RF File, Tab 5 at 19.

arrangements with his former wife, or otherwise resolved the issue. Now,

however, the appellant has no avenue to recoup the payments he made to his

former wife, especially given that she resides in a different country and he has no

way to contact her. RPFR File, Tab 1 at 4-6.

In conclusion, because OPM egregiously misapplied its governing

regulations, the appellant will suffer a monetary loss well beyond the amount of

the overpayment. Accordingly, in light of the described circumstances, we find

that recovery would be against equity and good conscience. Thus, the appellant

has established that he is entitled to a waiver of the collection of overpayment.

ORDER

We ORDER OPM to waive the collection of overpayment of the appellant’s

retirement annuity in the amount of $12,736.00. OPM must complete this action

no later than 20 days after the date of this decision.

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).

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).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 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.

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.

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.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file 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

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing 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

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

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 must file

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:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

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 must file 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 must file

with the EEOC no later 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 is:

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:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal 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)(i), (B), (C), or (D),” then you may file 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. 6 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).

The original statutory provision that provided for judicial review of certain

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

MSPB decisions 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.

If you submit a 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