Opinion

Allan R Baldwin v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Dec 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.5%

calculating change in financial position in terms of net loss

How later courts described this case

calculating change in financial position in terms of net loss

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALLAN R. BALDWIN, DOCKET NUMBER

Appellant, AT-0845-21-0302-I-1

OFFICE OF PERSONNEL DATE: December 23, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Allan R. Baldwin , The Villages, Florida, pro se.

Alison Pastor , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed an Office of Personnel Management (OPM) reconsideration decision

finding him ineligible for a waiver of a $56,932 overpayment in retirement

benefits. On petition for review, the appellant claims he was inadequately

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

represented in his appeal, OPM provided misinformation about the computation

of his annuity, he detrimentally relied on the overpayment, and recovery of the

overpayment would be unconscionable. 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 erroneous

interpretation 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. 2 Therefore, we DENY the petition for review. Except as expressly

MODIFIED to clarify the administrative judge’s analysis of the issue of waiver

based on detrimental reliance, we AFFIRM the initial decision.

The appellant argued on appeal that he was entitled to a waiver of recovery

of the overpayments due to his detrimental reliance on OPM’s advice and

omissions. Initial Appeal File (IAF), Tab 19 at 11-13. He asserted that, had he

been made aware that his annuity would be reduced at age 62 when he became

eligible for Social Security Administration (SSA) benefits, either through OPM

In his reply to the agency’s response to the petition for review, the appellant argues

that allowance should be made for Federal taxes withheld from his annuity in the

calculation of his overpayment. Petition for Review (PFR) File, Tab 6 at 4. OPM is

required by law to withhold Federal income taxes from the benefit it pays and to remit

that amount to the Internal Revenue Service (IRS). Cebzanov v. Office of Personnel

Management, 96 M.S.P.R. 562, ¶ 11 (2004). To the extent that an adjustment to the

appellant’s benefits and any resulting overpayment affect his tax liability for past years,

he must seek a remedy from the IRS. Id. OPM is thus not required to adjust its

overpayment calculations to account for taxes remitted to the IRS.

advice or a timely annuity adjustment, he would have applied for SSA benefits at

age 62 to make up for the difference in his annuity. IAF, Tab 11 at 14, Tab 19

at 12. He claims that, instead, he has “sacrificed” 4 years of SSA payments.

IAF, Tab 11 at 14. The administrative judge failed to fully analyze this

argument, and accordingly we do so now.

To justify waiver of an overpayment due to detrimental reliance, the

recipient must show that “due to the notice that such payment would be made or

because of the incorrect payment” he has “relinquished a valuable right or

changed positions for the worse.” 5 C.F.R. § 831.1403(a)(2). In evaluating

detrimental reliance claims, the Board has applied section I.E.3 of the OPM

Policy Guidelines on the Disposition of Overpayments under the Civil Service

Retirement System and the Federal Employees’ Retirement System , which states

that to justify waiver, this “loss of a right or a change of position” must be:

(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;

(d) irrevocable (i.e., the forfeited right cannot be recovered, the

change in position cannot be reversed).

IAF, Tab 9 at 113; see Hunter v. Office of Personnel Management,

109 M.S.P.R. 514, ¶ 12 (2008).

After review, we find that the appellant failed to establish, at the least, the

second and third criteria, i.e., detriment and materiality. The appellant’s

argument overlooks the fact that delaying receipt of SSA benefits until age 66

substantially increased his monthly SSA benefits, and may yield him a higher

total sum of such benefits over his lifetime than if he began drawing those

benefits at age 62. IAF, Tab 20 at 22-25. Accordingly, because there is no means

of determining the appellant’s net financial change, he failed to carry his burden

of showing that any change to his financial position was detrimental or material.

King v. Office of Personnel Management, 730 F.3d 1342, 1349 (Fed. Cir. 2013)

(calculating change in financial position in terms of net loss). The appellant has

therefore failed to justify waiver of recovery of his overpayment due to

detrimental reliance. 3

NOTICE OF APPEAL RIGHTS 4

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.

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.

The appellant’s claims of inadequate representation also fail to establish any basis for

granting the petition for review. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670

(1981) (the appellant is responsible for the errors of his chosen representative).

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.

(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. 5 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 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 address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.