  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                   KATHRYN KING,
                      Petitioner,

                           v.

     OFFICE OF PERSONNEL MANAGEMENT,
                 Respondent,

                          AND

                   DIANA M. KING,
                       Intervenor.
                 ______________________

                       2012-3061
                 ______________________

     Petition for review of the Merit Systems Protec-
tion Board in No. DE831M090077-B-1.
                  ______________________

              Decided: September 13, 2013
                ______________________

   MATTHEW J. DOWD, Wiley Rein LLP, of Washington,
DC, argued for Petitioner. With him on the brief was
FLOYD B. CHAPMAN.

    NICHOLAS J. JABBOUR, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
2                                                KING   v. OPM

ent. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and TODD M. HUGHES, Deputy Director. Of
counsel on the brief was JESSICA S. JOHNSON, Attorney
Advisor, Office of General Counsel, Office of Personnel
Management, of Washington, DC.

    DIANA M. KING, of Meridian, Idaho, pro se.
                ______________________

Before RADER, Chief Judge, O’MALLEY, and REYNA, Circuit
                        Judges.
REYNA, Circuit Judge.
     Kathryn King (“Kathryn”) appeals the November 10,
2011 final order of the Merit Systems Protection Board
(“Board”) that she was not entitled to a waiver of recovery
of survivor annuity benefits. We reverse the Board’s
decision denying a waiver of recovery because the Board
failed to credit substantial evidence demonstrating, in
accordance with 5 C.F.R. § 831.1403, that Kathryn detri-
mentally relied on the overpayment of survivor annuity
funds.
                        BACKGROUND
    This appeal is bound up with the marital history of
former United States Forest Service employee Don King
(“Don”) with two separate women, both of whom claimed
to be his wife, and both of whom claimed federal survivor
benefits upon his death. Don first married Diana King
(“Diana”) in 1967. Don and Diana later divorced in 1980
and remarried in 1981. A year and a half later, their
second marriage again ended in divorce, but Don and
Diana continued their relationship and shared a home
with their two children. Although Don and Diana filed
separate tax returns and listed their marital status as
“single,” they held themselves out to the community as
husband and wife, including sharing household duties,
KING   v. OPM                                            3
maintaining joint credit card accounts, and celebrating
anniversaries of their original marriage.
    In 2002, Don moved out of the home he shared with
Diana and married the appellant, Kathryn, in a civil
ceremony. During Don’s marriage to Kathryn, he was
treated for cancer, and Kathryn incurred the costs for
Don’s medical bills and end-of-life treatment. Don passed
away from cancer on May 26, 2004, but prior to his death
he designated Kathryn to receive his lump-sum accrued
federal annuity.
     Kathryn and Diana both claimed to be Don’s legal
wife at the time of his death. Specifically, Kathryn be-
lieved she had married Don in a civil ceremony in 2002.
Diana maintained that she was the common law wife of
Don at the time he married Kathryn. Prior to Don’s
death, Diana had initiated legal proceedings in the Mon-
tana Twenty-First Judicial District Court (“the Montana
court”) to dissolve her common law marriage to Don.
After Don’s death, the case in the Montana court evolved
into extensive litigation over the division of Don’s estate
including, as relevant here, the allocation of his federal
annuity from the Civil Service Retirement and Disability
Fund. In August 2004, Kathryn became a party to the
litigation and moved to dismiss Diana’s petition for disso-
lution of a common law marriage on the basis that
Kathryn was Don’s legal wife.
    On June 15, 2004, with the marriage issue still unre-
solved, Kathryn and Diana executed a handwritten set-
tlement agreement (“the 2004 Settlement Agreement”) in
which Kathryn stipulated to Diana’s claim that Diana and
Don had a common law marriage and further agreed to
assign to Diana any rights Kathryn had in Don’s retire-
ment and insurance policies. J.A. 68. Specifically, para-
graph 4 stated: “If Kathy should receive any retirement
disbursements from Don’s retirement, then such pay-
ments shall be the property of Diana or returned to the
4                                             KING   v. OPM
government for disbursement to Diana.” Id. (emphasis
added). In turn, Diana agreed to pay Kathryn $50,000
and to assume Don’s outstanding medical and funeral
expenses. Id.; J.A. 216.
    After signing the 2004 Settlement Agreement,
Kathryn changed her mind and requested that the Mon-
tana court vacate the agreement as unconscionable and
unenforceable. Diana responded by seeking to enforce the
agreement and seeking damages for breach of contract.
During the pendency of the litigation over the 2004 Set-
tlement Agreement, Kathryn filed an application with the
Office of Personal Management (“OPM”) for survivor
annuity funds as Don’s lawful wife. OPM commenced
payment of the survivor annuity funds to Kathryn for a
period beginning on May 27, 2004, and continued to make
these payments until late February 2007.
    In July 2005, the Montana court ruled that the 2004
Settlement Agreement was a valid and enforceable con-
tract that deprived Kathryn of a right to contest the
common law marriage of Don and Diana. In November
2006, Diana filed for survivor annuity funds from OPM,
attaching to her application an affidavit attesting to the
validity of her common law marriage to Don, a copy of the
2004 Settlement Agreement, and a copy of the Montana
court’s determination that the agreement was valid and
enforceable. Based on Diana’s filings, OPM revoked
payment of survivor annuity funds to Kathryn and
awarded the benefits to Diana.
    Thereafter, Kathryn and Diana entered into a second
settlement agreement on February 1, 2008 (“the 2008
Settlement Agreement”). Under the terms of the 2008
Settlement Agreement, Kathryn released any claim to
any payment due to her under the 2004 Settlement
Agreement—including reimbursement for the cost of
Don’s medical and funeral expenses—and similarly
waived any claim for reimbursement of payments made
KING   v. OPM                                             5
by Kathryn to Diana, including Don’s pension benefits or
insurance proceeds. J.A. 72. Diana also waived certain
rights, including all claims for attorneys’ fees from the
earlier proceedings and “all claims to any future pension
payment that Kathryn King may receive from the U.S.
Government.” Id.
     To determine whether Kathryn or Diana were entitled
to Don’s survivor annuity benefits, OPM requested a
declaration from the Montana court on Don’s marital
status at the time of his death. On February 7, 2008,
pursuant to stipulated findings of fact, the Montana court
decreed that Diana was “the lawful common law wife of
Donald C. King . . . from approximately 1984 to the time
of his death on May 26, 2004.” J.A. 188. The Montana
court declared that Don’s marriage to Kathryn was “void
as a matter of law,” and found that Diana was entitled “to
all rights, benefits, and privileges commensurate with her
status as Don’s lawful spouse.” Id. On April 13, 2009, the
Montana court dismissed the action between Kathryn and
Diana with prejudice.
    Upon receiving the Montana decree, OPM made a fi-
nal determination that Diana was eligible for the survivor
annuity benefits and it paid Diana the full annuity
amount (less taxes). 1 By then, Kathryn had transferred
to Diana the survivor annuity funds that she received
from OPM, believing this to be in accordance with the
provisions in the 2004 Settlement Agreement and the
2005 ruling of the Montana court. Specifically, between
January 2005 and March 2007, Kathryn deposited a total
of $42,442.29 into a trust account for the benefit of Diana.
J.A. 321-27.


   1   OPM paid Diana $48,303.27 for the retroactive
period of May 27, 2004, to February 28, 2007, and
$22,297.82 for the period of June 1, 2007, to December 1,
2008.
6                                             KING   v. OPM
                  PROCEDURAL HISTORY
    Based on the 2008 Montana decree, OPM determined
that Diana was Don’s survivor and that the money paid to
Kathryn was an overpayment. As a result, it sought to
recover $41,939.13 from Kathryn.
    Kathryn, through her representative, did not dispute
that she received annuity payments, but she challenged
OPM’s effort to recover the money on the basis that she
had transferred the monies received to Diana. Kathryn
submitted court documents in support of her assertion
that the transfer of funds occurred pursuant to court
order, and she argued that OPM should seek refund of the
overpayment from Diana. After treating Kathryn’s sub-
missions as a request for reconsideration, OPM affirmed
its overpayment decision and further determined that
collection of the $41,939.13 would not cause Kathryn
financial hardship.
    Kathryn appealed OPM’s decision to the Board. On
March 24, 2009, an Administrative Judge issued an initial
decision affirming OPM’s findings regarding the over-
payment because Kathryn did not meet the definition of
the term “widow” under the Civil Service Retirement Act,
5 U.S.C. § 8341(A)(1), and had not proved by substantial
evidence that she was entitled to waiver for the overpay-
ment. The Administrative Judge acknowledged that
Kathryn was without fault in causing the overpayment,
but was not satisfied that recovery would be against
equity and good conscience. In denying waiver of the
overpayment, the Administrative Judge rejected both a
theory of detrimental reliance and unconscionability.
     The full Board reviewed the Administrative Judge’s
initial decision and reopened the appeal on its own motion
to consider the newly-augmented record. 2 See King v.

    2  The Board had accepted additional evidence that
included copies of the settlement agreements as well as
KING    v. OPM                                            7
Office of Pers. Mgmt., 114 M.S.P.R. 181, 187 (2010). The
Board remanded the case for the Administrative Judge to
evaluate whether supplemental evidence demonstrated
that the money Kathryn paid into trust for Diana repre-
sented the funds Kathryn received from OPM for the time
period at issue, and whether exceptional circumstances
warranted waiver of repayment. See id. at 191-92.
    On remand, the Administrative Judge conducted an
accounting of the survivor annuity funds OPM paid to
Kathryn and Diana. The Administrative Judge found
that Kathryn transferred to Diana $33,563.94 3 of the
$41,939.13 she received from OPM, which resulted in
Diana receiving both OPM survivor annuity funds and
additional monies paid to her by Kathryn. Notwithstand-
ing the transfer of funds to Diana, the Administrative
Judge ruled that Kathryn was not entitled to a waiver of
recovery of the overpayment because Kathryn had not
demonstrated that OPM’s recovery of the overpayment
would be against equity and good conscience as required
under 5 U.S.C. § 8470(b). See J.A. 29-31.
    The full Board evaluated Kathryn’s appeal a second
time and issued a final, split decision on November 10,
2011. See generally Office of Pers. Mgmt., DE-831M-09-
0077-B-1 (M.S.P.B. Nov. 10, 2011). The two member
majority affirmed the denial of waiver, finding that
Kathryn’s repayment of the survivor annuity funds to
OPM was not unconscionable or manifestly unfair in light
of the “settlement agreements and litigation history.”
J.A. 6. In support of its ruling, the majority read the 2004

financial documents such as tax records that related to
the transfer of funds from Kathryn to Diana.
    3   The Administrative Judge found that Kathryn de-
posited a total of $42,442.29 into Diana’s trust account, of
which $33,563.94 represented annuity funds and the
remainder consisted of life insurance proceeds.
8                                                 KING   v. OPM
Settlement Agreement as obligating Kathryn to reim-
burse the government because paragraph 4 recites: “If
Kathy should receive any retirement disbursements from
Don’s retirement, then such payments shall be the prop-
erty of Diana and shall be turned over to Diana or turned
to the government for disbursement to Diana.” J.A. 68.
    In dissent, Vice Chairman Wagner disagreed with the
majority’s reading of the 2004 Settlement agreement. In
her view, the parties never intended that Kathryn would
be required to pay Don’s retirement disbursements to
Diana and to refund the same amounts to OPM. Rather,
given the “unusual situation” presented in this case and
the disjunctive “or” employed in the actual agreement,
Kathryn’s transfer of funds to Diana should negate recov-
ery by OPM: “[t]he use of the disjunctive ‘or’ . . . clearly
shows that the parties’ unambiguous intent was that, in
the event [Kathryn] received any federal retirement
benefit based on Mr. King’s service, she would pay either
[Diana] or return the funds to OPM to pay the interven-
er.” J.A. 15 (emphasis added). The dissent rejected the
suggestion that either settlement agreement showed that
Kathryn assumed full liability for any overpayment of
survivor annuity benefits, and weighed the equities to
conclude that there was justification for waiving
Kathryn’s repayment to OPM. J.A. 17−18.
   An appeal to this court followed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
                   STANDARD OF REVIEW
    This court may reverse a decision of the Board only if
the decision is (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c); Hernandez v. Office of Pers.
Mgmt., 450 F.3d 1332, 1334 (Fed. Cir. 2006); Hayes v.
Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
KING   v. OPM                                           9
                       DISCUSSION
    OPM administers the payment of survivor annuities
from the Civil Service Retirement and Disability Fund,
and may recover an overpayment made to an individual
who is not entitled to the benefits. 4 See 5 U.S.C. §§
8347(a), 8348(a); 31 U.S.C. § 3711(a)(1). In certain cir-
cumstances, recovery of an overpayment may be waived
when the individual is without fault and recovery would
be “against equity and good conscience.” 5 U.S.C. §
8470(b); 5 C.F.R. § 831.1401. The OPM regulations
specify that recovering the overpayment is “against equity
and good conscience” when:
   a) It would cause financial hardship to the per-
      son from whom it is sought;
   b) The recipient of the overpayment can show
      (regardless of his or her financial circum-
      stances) that due to the notice that such pay-
      ment would be made or because of the
      incorrect payment either he/she has relin-
      quished a valuable right or has changed po-
      sitions for the worse; or
   c)    Recovery could be unconscionable under the
         circumstances.
5 C.F.R. § 831.1403; see also Spinelli v. Office of Pers.
Mgmt., 109 M.S.P.R. 185, 188 (2008).
   In its OPM Policy Guidelines on the Disposition of
Overpayment Under the Civil Service Retirement System


   4    In general, survivor annuity benefits are paid to
the widow of a qualifying federal employee as defined in 5
U.S.C. § 8341(a)(1). This court has defined “widow” under
the statute as “the surviving wife who was married to the
employee when he died.” Money v. Office of Pers. Mgmt.,
811 F.2d 1474, 1477 (Fed. Cir. 1987) (citing statute).
10                                             KING    v. OPM
and Federal Employees’ Retirement System (“OPM Over-
payment Guidelines”), OPM clarifies the appropriate
burden shifting that must occur to waive recovery of
overpayment. 5 First, OPM bears the burden of proving
an annuity overpayment by a preponderance of the evi-
dence. 5 C.F.R. § 831.1407(a); OPM Overpayment Guide-
lines § I.G.1. The burden then shifts to the recipient of
the overpayment to prove, by substantial evidence, that
waiver is appropriate. 6 5 C.F.R. § 831.1407(b); OPM
Overpayment Guidelines § I.G.2. OPM then has an oppor-
tunity to counter that the waiver is not supported by
substantial evidence. OPM Overpayment Guidelines §
I.G.2.
         A. Findings Regarding the Recipient’s Fault
    We begin by assessing whether Kathryn carried her
burden in establishing entitlement to waiver of recovery.
As an initial step, we note that the record supports the
Administrative Judge’s finding that Kathryn was not at
fault. J.A. 55. In particular, OPM paid the survivor
annuity funds to Kathryn from May 2004 until February
2007, yet it was not until February 2008 that the Mon-

     5  The Board endorses the OPM Overpayment
Guidelines as reasonable, proper, and entitled to great
deference.   See Aguon v. Office of Pers. Mgmt., 42
M.S.P.R. 540, 546−47 (1989); Kimsey v. Dep’t of the Interi-
or, 24 M.S.P.R. 528, 532 (1984) (affording deference to an
administrative agency’s interpretation of its own regula-
tion unless the interpretation is plainly erroneous or
inconsistent with the applicable statute or regulation).
     6  Substantial evidence is defined as the degree of
relevant evidence that a reasonable person, considering
the record as a whole, might accept as adequate to sup-
port a conclusion, even though other reasonable persons
might disagree. Hunter, 109 M.S.P.R. at 518 (citing 5
C.F.R. § 1201.56(c)(1)).
KING   v. OPM                                         11
tana court ruled on the validity of her marriage to Don.
Thus, Kathryn received the survivor annuity funds during
a period when she believed she was the widow of Don
King. OPM does not contradict the sequence of these
events and we conclude that the Administrative Judge
was correct in concluding that Kathryn was without fault
in causing the overpayment.
    We next turn to the Board’s determination that recov-
ery of the overpayment from Kathryn would not be
“against equity and good conscience.”
                B. Detrimental Reliance
    The Administrative Judge expressly rejected
Kathryn’s detrimental reliance arguments, stating that
there was “no evidence that [Kathryn] changed positions
or relinquished a valuable right based on either the
incorrect payment or OPM’s notice that payments would
be made.” J.A. 56. The Board chose not to address the
Administrative Judge’s findings on detrimental reliance,
but it fully considered the March 24, 2009, and October
19, 2010, decisions and found that “the administrative
judge made no error in law or regulation that affects the
outcome.” J.A. 11; see also J.A. 47. We disagree.
    Kathryn contends that the Administrative Judge and
the Board overlooked record evidence establishing that
she changed positions for the worse because, had she not
received the survivor annuity funds, she would not have
set aside and transferred those monies to Diana. Kathryn
maintains that the transfers to Diana were material and
irrevocable under the settlement agreements, and that
she presented substantial evidence that after receiving
the survivor annuity funds, she detrimentally relied on
the overpayment.
    OPM asserts that detrimental reliance is not applica-
ble because Kathryn was “on notice” that “OPM might
retract [the survivor annuity funds] and require her to
12                                              KING   v. OPM
repay.” Appellee Br. 30 (quoting the Board’s Final Deci-
sion). OPM maintains that because Kathryn acknowl-
edged in the 2004 Settlement Agreement that she was not
Don’s wife, the transfer of funds to Diana was caused by
Kathryn’s own uninformed decision, not the overpayment
from OPM. OPM also presents a secondary argument
that Kathryn’s change in position is not irrevocable
because she still has the opportunity to pursue legal
action in state court to recover the annuity payments from
Diana.
     To establish detrimental reliance of an overpayment,
the recipient must show that “due to the notice that such
payment would be made or because of the incorrect pay-
ment he or she either has relinquished a valuable right or
has changed positions for the worse.” 5 C.F.R. §
845.303(b). The financial circumstances of the recipient—
i.e., the ability to repay the overpayment debt—are not
relevant to a detrimental reliance determination. See id.;
5 C.F.R. § 831.1403(a)(2). In evaluating detrimental
reliance claims, the Board has applied criteria from
section I.E.3 of the OPM Overpayment Guidelines. OPM
advises that waiver is justified when the change in posi-
tion or loss of a valuable rights is:
     a) directly caused by the overpayment or notice
        that such payment would be made (i.e., loss or
        change would not have otherwise occurred);
     b) detrimental to the overpayment recipient;
     c)   material (i.e., significant enough to warrant
          the waiver); and
     d) irrevocable (i.e., the forfeited right cannot be
        recovered, the change in position cannot be
        reversed).
OPM Overpayment Guidelines § I.E.3; see also Hunter,
109 M.S.P.R. at 519 (citing Alexander v. Office of Pers.
Mgmt., 58 M.S.P.R. 358, 364−65 (1993)). Contrary to the
KING   v. OPM                                           13
Board’s determination that detrimental reliance was not
supported by substantial evidence, the record evidence
demonstrates substantial evidence supporting each
element of detrimental reliance and that waiver of recov-
ery for the annuity overpayment is warranted.
                1. Change in Position for the Worse
   Kathryn has demonstrated that receipt of the over-
payment was detrimental because, without a finding of
waiver, Kathryn would be in a worse financial position
than if she had never accepted the survivor annuity
funds. The record bears out her net loss:
   •     From May 2004 until late February 2007,
         OPM paid Kathryn $41,939.13 in survivor an-
         nuity funds.
   •     Pursuant to a court decree and settlement
         agreement requiring Kathryn to transfer to
         Diana any annuity funds or return them to
         OPM, Kathryn paid Diana $33,563.94 of the
         $41,939.13.
   •     OPM now seeks to recover the full $41,939.13
         from Kathryn without taking into account the
         funds she remitted to Diana.
    If Kathryn were required to return the full amount of
survivor annuity funds to OPM, she would suffer a net
loss of $33,563.94. The record on this point is undisputed.
Because returning the annuity funds to OPM would
ultimately place Kathryn in a worse financial position
than if she had never received the funds, the first element
of detrimental reliance is supported by substantial evi-
dence.
                           2. Causation
    Kathryn argues that her change in position was di-
rectly caused by the overpayment because, if not for the
overpayment, she would not have transferred any money
14                                            KING   v. OPM
to Diana. Kathryn explains that the transfer of funds to
Diana was an acknowledgement that she might have
received Don’s retirement benefits in error, and she
relinquished those benefits to the individual ultimately
named as the lawful beneficiary by the Montana court.
Under this theory, Kathryn’s changed position was direct-
ly caused by the overpayment; that is, had Kathryn not
received the OPM funds, she would not have assumed an
obligation under the 2004 Settlement Agreement and the
2005 decree from the Montana court, and remitted the
$33,563.94 to Diana.
    OPM asserts that the transfer to Diana represents
payment of debts or obligations arising from the 2004 or
2008 Settlement Agreements.         OPM contends that
Kathryn transferred the funds because she believed she
was obligated to pay off an outstanding debt as considera-
tion to end of the litigation and not as a result of the
overpayment or notice thereof. Hence, OPM reasons that
because payment of existing debts or obligations is not
detrimental, Kathryn failed to satisfy the elements of
detrimental reliance. The Board, while not expressly
analyzing a theory of detrimental reliance, agreed with
OPM that Kathryn’s transfer to Diana should be viewed
as payments meant to settle debts arising from the litiga-
tion in the Montana court. We find the Board’s reasoning
erroneous.
    The record before us is unclear as to why Kathryn
transferred the overpayment to Diana, but there is no
dispute that such a transfer did occur. Under the correct
legal framework, Kathryn needed only to show that it was
reasonable to conclude, based on the timeline and record
evidence, that the funds transferred to Diana were the
overpayment funds she received from OPM. 7 Crawford v.

     7 The OPM Overpayment Guidelines advise that
proof of detrimental reliance, including whether the
overpayment directly caused the recipient to change
KING   v. OPM                                            15
Dep’t of the Army, 718 F.3d 1361, 1365 (Fed. Cir. 2013)
(“Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’”) (internal citation omitted).
     We find Kathryn’s explanation for the transfer of
funds to Diana to be reasonable and supported by sub-
stantial evidence. On April 10, 2008, Kathryn sent OPM
documentation illustrating that she transferred funds
representing Don’s retirement benefits pursuant to court
order. See J.A. 86. She reiterated this position in a follow
up letter to OPM, in which Kathryn stated that “payment
of the full amount due [of overpaid survivor benefits] had
already been remitted to Diana King.” J.A. 85. Kathryn’s
2008 correspondence with OPM is consistent with the
timeline of events, language of the settlement agree-
ments, tax filings, and modest income levels, 8 indicating
that the overpayment was the direct cause of her loss.
                      3. Materiality
    We also agree with Kathryn that the transfer of funds
to Diana was material. Kathryn’s limited financial re-
sources are illustrated in her individual tax returns. From


positions for the worse, should be provided in the form of
“facts, evidence, and reasonable explanations supporting
[the recipient’s] assertions.” OPM Overpayment Guide-
lines § I.E.7.
   8    Kathryn represents to this court that the mone-
tary transfer to Diana was “more than Kathryn’s annual
income for each of the years 2005 and 2006.” Appellant
Reply Br. 10 (citing J.A. 237−48). While detrimental
reliance does not account for the recipient’s financial
circumstances, the comparison between Kathryn’s annual
income and the amount transferred to Diana bears upon
the reasonableness of her contention that the change in
position was directly caused by the overpayment.
16                                                KING   v. OPM
the years 2005 through 2007, her adjusted gross annual
income never exceeded $22,000, yet during this period she
remitted to Diana funds that exceeded her annual income.
Because OPM does not contest that the transfer of funds
to Diana was material, we find that Kathryn has satisfied
the third element of detrimental reliance.
                      4. Irrevocability
    As with the first three elements of detrimental reli-
ance, the Board did not analyze whether Kathryn’s
change in position was irrevocable. OPM argues to the
court that, even if there was a change in position,
Kathryn is not entitled to a waiver because she can pur-
sue necessary relief in the Montana court by suing Diana
for recovery of the transferred funds. Kathryn argues
that her change in position is irrevocable because the
Montana court entered a final judgment and dismissed
the earlier litigation with prejudice (i.e., she is foreclosed
from seeking relief from Diana).
    Under the OPM Overpayment Guidelines, an irrevo-
cable position is a “change in position [that] cannot be
reversed.” OPM Overpayment Guidelines § I.E.3. OPM
claims that Kathryn’s loss can be reversed through addi-
tional litigation between Kathryn and Diana. We disa-
gree.
    This case involves two women with a shared, exten-
sive litigation history. After years of disputing the alloca-
tion of Don’s assets and sorting claims as to which woman
qualified as the lawful widow, the 2008 Settlement
Agreement fully settled all claims. Pursuant to Kathryn
and Diana’s joint stipulation, the state court dismissed
the action with prejudice. At oral argument, the parties
acknowledged that, in order for Kathryn to seek the relief
proposed by OPM, she would have to move under Rule
60(b) to set aside the settlement agreements and reopen
the litigation. See Fed. R. Civ. P. 60(b).
KING   v. OPM                                            17
     We have considered the uncertainty that would ac-
company an attempt to obtain relief under Rule 60(b)
under the circumstances and conclude that the transfer of
funds is irreversible for purpose of detrimental reliance.
It is improbable that the Montana court would grant a
request to reopen the settled case. In addition, the par-
ties would be encumbered with the burden and cost of
litigating an issue that is unlikely to yield actual relief.
The dismissal of the Montana action with prejudice and
the execution of a settlement agreement intended to end
all litigation between Kathryn and Diana render
Kathryn’s change in position irreversible. Having estab-
lished that the transferred survivor annuity funds cannot
feasibly be recovered from Diana, Kathryn has satisfied
the fourth detrimental reliance element.
                         *     *     *
    The record before this Court demonstrates substantial
evidence that Kathryn is entitled to a waiver of recovery
of the overpayment under 5 C.F.R. § 831.1403 and the
four criteria enumerated in the OPM Overpayment Guide-
lines. Because the Board failed to address the substantial
evidence demonstrating that recovery of the overpayment
to Kathryn was against equity and good conscience, we
reverse.
                       CONCLUSION
    For the foregoing reasons, the Board’s decision deny-
ing waiver of recovery of the overpayment is reversed.
Given that Kathryn is entitled to a waiver of recovery of
survivor annuity benefits based on detrimental reliance,
we need not address the other issues raised by the par-
ties.
                       REVERSED
                             COSTS
   Costs awarded to Petitioner.
