Opinion

Robert Britton v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
Apr 2, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 15.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT L. BRITTON, DOCKET NUMBER

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

v.

OFFICE OF PERSONNEL DATE: April 2, 2024

MANAGEMENT,

Agency,

and

MARIA L. BRITTON,

Intervenor

THIS ORDER IS NONPRECEDENTIAL 1

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

Michael Shipley , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

dismissed the appeal of the reconsideration decision issued by the Office of

Personnel Management (OPM) as settled. For the reasons discussed below, we

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

GRANT the appellant’s petition for review, VACATE the initial decision, and

REMAND the case to the Atlanta Regional Office for further adjudication in

accordance with this Remand Order.

BACKGROUND

The appellant was a former Federal employee who retired on January 3,

1995, under the Civil Service Retirement System (CSRS). Initial Appeal File

(IAF), Tab 13 at 12, Tab 1 at 2. After his retirement, the appellant and his wife

divorced. IAF, Tab 13 at 100-12. The Final Dissolution of Marriage, entered on

May 12, 2015, provided that the appellant would continue to fund a survivor

annuity through a deduction of his monthly annuity with his former wife as the

beneficiary. Id. at 100, 104-05. However, an amended order was entered on

July 5, 2015, in which the former wife agreed to terminate her right to survivor

benefits in exchange for monthly payments of $258.00 from the appellant. 2 Id.

at 113, 117, 119. Accordingly, in July 2015, the appellant requested OPM

terminate the survivor benefits, and as a result he began receiving an unreduced

annuity. Id. at 15. He also started paying his former spouse $258.00 per month.

Id. at 10-11.

On February 27, 2019, OPM issued an amended determination letter to the

appellant, notifying him that it had erroneously terminated the survivor benefits

and that it would be reducing his annuity and withholding money to recover the

overpayment. Id. at 15. The appellant requested reconsideration and OPM

responded, explaining that, per regulations, it should not have honored the

amended court order because it was not the first order dividing marital property

for the retiree and his spouse. Id. at 10-13. Thus, because it should not have

terminated the survivor benefit, the appellant had been improperly receiving an

unreduced annuity resulting in an overpayment. Id. at 14. While OPM confirmed

2

The divorce decree also awarded the appellant’s former spouse 50% of the appellant’s

CSRS plan accrued from December 28, 1990, to January 3, 1995, i.e., the date of their

marriage to the date of the appellant’s retirement.

3

the overpayment issue, it rescinded the initial decision because the overpayment

calculation was incorrect. Id. On January 10, 2021, OPM issued an amended

award letter, stating that it overpaid the appellant a total of $12,736.00 for the

period between June 1, 2015, and July 30, 2020, and that it would be collecting

the amount over 254 monthly installments of $50.00, with a final withholding of

$36.00. Id. at 5.

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

decision. 3 IAF, Tab 1. While the case was pending in front of the administrative

judge, the agency filed a settlement agreement signed by both parties. IAF,

Tab 16 at 4. Per the agreement, in exchange for OPM allowing the appellant to

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

installment of $36.00, the appellant agreed to withdraw his appeal and waive his

right to request either a full or partial waiver of overpayment. Id. The

administrative judge approved the settlement and entered it into the record,

dismissing the appeal as settled. IAF, Tab 17, Initial Decision (ID) at 1-2.

The appellant filed a petition for review arguing that OPM’s decision failed

to comply with the court order and that OPM had failed to identify the

overpayment for 4 years or respond to his requests for information. Petition for

Review (PFR) File, Tab 1 at 2-3. OPM responded in opposition, and the

appellant replied, disputing the legitimacy of the settlement agreement and stating

that he only signed the settlement agreement because OPM’s representative

threatened to invoke a “devastating penalty” against him if he did not sign the

agreement and return it within 3 days. PFR File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

A settlement agreement is a contract, and the enforcement and

interpretation of its terms is a question of contract law. Greco v. Department of

the Army, 852 F.2d 558, 560 (Fed. Cir. 1988). Under the law of contracts, an

3

The January 10, 2021 amended award letter notified the appellant of his right to

appeal the decision to the Board. IAF, Tab 13 at 6.

4

enforceable contract does not exist unless it is based on a bargained-for exchange

known as “consideration.” Pappas v. Office of Personnel Management,

76 M.S.P.R. 152, 158 (1997), aff’d, 155 F.3d 565 (Fed. Cir. 1998). Consideration

under the law of contracts, however, is not measured in dollars and cents alone.

Id. A very small consideration can support an enforceable contract; convenience,

avoidance of troublesome details and efforts, and forbearance to institute

proceedings against the other party, for example, can be proper elements of

consideration. Id.

In this appeal, the parties’ settlement agreement is not an enforceable

contract because there was no consideration given to the appellant. The terms of

the settlement agreement are the exact terms contained within OPM’s January 10,

2021 amended award letter, i.e., an overpayment totaling $12,736.00, to be paid

in 254 monthly installments of $50.00 with a final installment of $36.00.

Compare IAF, Tab 16 at 4, with Tab 13 at 5. The appellant derives nothing of

value from the settlement, but agreed to withdraw his Board appeal and forego his

right to a waiver of the overpayment or an adjustment to the collection schedule.

IAF, Tab 16 at 4.

Because this settlement agreement is unsupported by consideration, it is

unenforceable. Therefore, we order the settlement agreement to be set aside, and

the parties to be restored to the status quo ante, releasing them from their duties

under the agreement and returning them to the conditions prevailing at the time of

the appeal. 4 Brady v. Department of the Navy, 95 M.S.P.R. 619, ¶ 11 (2004).

4

During the processing of the appeal, the administrative judge determined that the

appellant’s former spouse had a right to be involved in the case, and issued an order

notifying her of her right to intervene in the litigation. IAF, Tab 10 at 1-2. The order

was sent to the former spouse via mail, but was returned to the Board as undeliverable.

IAF, Tab 11. While the appellant offered to contact his former wife and provide her

with the order, there is nothing in the record confirming he notified her, nor is there any

pleading filed by the former wife indicating her interest in intervening. IAF, Tab 12

at 1. On remand, the administrative judge should direct both parties to provide their

last known address for the former spouse, as well as any other addresses where she

could be contacted, and should serve an appropriate order on her.

5

ORDER

For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.