Edward Randolph Tekeley v. Government Accountability Office

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3374
EDWARD RANDOLPH TEKELEY,
Petitioner,
v.
GOVERNMENT ACCOUNTABILITY OFFICE,
Respondent.
___________________________
DECIDED: March 10, 2006
___________________________
Before MICHEL, Chief Judge, MAYER, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Edward Randolph Tekeley appeals from a decision of the Merit Systems
Protection Board, Docket No. DC-0839-05-0059-I-1, affirming a decision of the Office of
Personnel Management (“OPM”) that denied his request to transfer from the Federal
Employees’ Retirement System (“FERS”) to the Civil Service Retirement System
(“CSRS”). We affirm.

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BACKGROUND
The Federal Employees' Retirement System Act of 1986, Pub. L. No. 99-335,
100 Stat. 514, created a new retirement system for federal employees. Generally,
employees hired after December 31, 1983, are automatically covered by FERS. Certain
rehired employees with five years of prior civil service have the option of electing FERS
or maintaining CSRS, CSRS-Offset, or Social Security only coverage. Those rehired
employees ordinarily have a one-time opportunity to make an election among those
options during the first six months of their reemployment. The employing agency must
provide those employees with an election form prepared by OPM and must document
the employees’ receipt of that election form. 5 C.F.R. § 846.203. Other rehired
employees (e.g., those without five years of prior civil service) are automatically covered
by FERS.
Between 1993 and 2000, 5 C.F.R. § 846.204 provided a few exceptions to the
six-month election period rule, allowing rehired employees to make belated elections
under certain circumstances. One of those exceptions provided employees a one-time
opportunity to correct an agency’s administrative mistake that erroneously prevented
the employee from being offered the usual election period at the start of his
reemployment. As OPM has explained, such a mistake might arise on reemployment,
for example, if “the agency did not realize that the employee had 5 years of previous
civilian service.” Deemed Elections of Coverage Under the Federal Employees
Retirement System, 58 Fed. Reg. 47,821, 47,821 (Sept. 13, 1993).
In 2000, Congress enacted the Federal Erroneous Retirement Coverage
Corrections Act (“FERCCA”), Pub. L. No. 106-265, Title II, 114 Stat. 762, 770 (codified
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at 5 U.S.C. 8331 note).1 Just as 5 C.F.R. § 846.204(b)(2) did before 2000, FERCCA
provides a limited exception to the six-month election period rule, allowing employees a
one-time opportunity to correct an agency’s administrative mistake that erroneously
prevented the employee from being offered the usual election period at the start of his
reemployment. Section 2133 of FERCCA, however, explicitly provides that an
employee who already had an opportunity to correct a particular agency error was not
entitled to a second opportunity through the operation of FERCCA.
In January 1990 Mr. Tekeley began working for the Government Accountability
Office (“GAO”) after having left a previous federal employment position in 1985.2 In
1995 he transferred to a position with the Department of Treasury. In 1996 he
transferred back to the GAO, at which time the GAO discovered an error in Mr.
Tekeley’s retirement coverage. Although Mr. Tekeley should have been placed in
CSRS-Offset and given a six-month period in which to choose retirement coverage
when he reentered federal service in 1990, he was instead placed automatically in
FERS. Pursuant to the then-relevant regulation, 5 C.F.R. § 846.204(b)(2)(ii)(A) (1996),
the GAO was required to “provide written notice” of the error to Mr. Tekeley, notifying
him that he “may, within 60 days after receiving the notice, decline to be deemed to
have transferred to FERS.”
1 Section 846.204(b)(2) was substantially changed in 2001 to implement
FERCCA. Corrections of Retirement Coverage Errors Under the Federal Erroneous
Retirement Coverage Corrections Act, 66 Fed. Reg. 15,606 (Mar. 19, 2001). Certain
other retirement coverage regulations were also changed during the time period
relevant to this case. When necessary to avoid confusion, this opinion notes the
pertinent date of regulatory provisions when referring to those provisions.
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The GAO asserts that it sent the required written notification to Mr. Tekeley in
1996, and that a series of communications ensued between the agency and Mr.
Tekeley regarding whether Mr. Tekeley wished to decline FERS coverage. In support
of that assertion the agency provided a copy of the notification letter, dated November
4, 1996, in which the agency informed Mr. Tekeley of the agency’s error and that he had
60 days to decline FERS coverage. Attached to that letter was an election form. The
agency also presented affidavits from several OPM and GAO employees. The affidavits
describe a series of conversations initiated by Mr. Tekeley after he received the
notification letter, in which Mr. Tekeley requested information about his coverage
options. The affidavits and supporting documents—including annuity worksheets and a
handwritten note prepared by a GAO employee pursuant to conversations with Mr.
Tekeley—also show that GAO provided detailed responses to Mr. Tekeley’s inquiries
about his coverage options. The record also contains a May 6, 1997, letter from GAO,
addressed to Mr. Tekeley, which states that, “in order to assist you in making your
decision whether to transfer from CSRS-Offset to FERS, you have been provided with a
variety of estimated annuity estimates.”
Mr. Tekeley maintains that he never received any notification regarding his
retirement options in 1996. Instead, he claims that he first learned of the agency error
in 2004, when he was deciding whether to retire from the agency under a voluntary
early retirement program. At that time, Mr. Tekeley asked the agency to retroactively
place him in CSRS-Offset instead of FERS. Although Mr. Tekeley acknowledges that
2 Although there is little evidence in the record regarding Mr. Tekeley’s pre-
1985 civil service, he asserts, and the GAO does not dispute, that he had at least five
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he spoke with OPM and GAO employees during the 1996-1997 timeframe, he asserts
that the conversations focused on disability benefits and that he never discussed
retirement coverage at that time. In support of his assertion that he never received the
letters GAO claims to have sent him, Mr. Tekeley offered statements from the manager
of his apartment building that mail can be misdelivered at the building, and from a
coworker who did not receive mail allegedly mailed to him by the GAO.
Whether Mr. Tekeley received proper notification in 1996 is the central dispute in
this case. The agency determined that Mr. Tekeley had been given an opportunity to
decline FERS coverage in 1996, and so denied his request for retroactive transfer to
CSRS-Offset in 2004. Mr. Tekeley appealed that decision to the Merit Systems
Protection Board. An administrative judge credited the agency’s evidence that Mr.
Tekeley received notification of the retirement coverage error in 1996 and therefore
affirmed the agency’s decision. The full board denied Mr. Tekeley’s petition for review,
and Mr. Tekeley now appeals that final judgment.
DISCUSSION
Although Mr. Tekeley fashions his appeal through the lens of various regulatory,
statutory, constitutional, and equitable arguments, each of those arguments hinges on
the question whether he received proper notice in 1996 of the agency’s error and of his
right to decline FERS coverage. If he received proper notice in 1996, he is not entitled
to a second opportunity to correct the retirement coverage error. See FERCCA § 2133;
5 C.F.R. 839.221 (2005); 5 C.F.R. 846.204(b)(2) (1996).
years of creditable civil service prior to 1985.
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Mr. Tekeley first argues that he did not receive any notification in 1996 of the
retirement coverage error or of his right to decline FERS coverage. Mr. Tekeley is
correct that the GAO was required to provide him “written notice” of the error, notifying
him that he “may, within 60 days after receiving the notice, decline to be deemed to
have transferred to FERS.” 5 C.F.R. § 846.204(b)(2)(ii)(A) (1996). However,
substantial evidence supports the GAO’s contention that it provided Mr. Tekeley with
the required written notice and that Mr. Tekeley received that notice. The Merit
Systems Protection Board credited the agency’s evidence, and we see no error in that
regard.
Mr. Tekeley next argues that when the agency discovered the retirement
coverage error, proper notice of the error required the agency to document his receipt of
an election form, pursuant to 5 C.F.R. § 846.203. The GAO does not dispute that the
documentation requirements of 5 C.F.R. § 846.203 apply in this case. However, the
GAO contends that its failure to document Mr. Tekeley’s receipt of the election form was
harmless, and therefore that Mr. Tekeley is not entitled to a second opportunity to
correct his retirement coverage. We agree. The agency’s evidence shows that Mr.
Tekeley had actual notice of his election rights in 1996. Therefore, the agency’s failure
to comply with the documentation requirements of 5 C.F.R. § 846.203 did not prejudice
him. Cf. Pipkin v. United States Postal Serv., 951 F.2d 272, 274 (10th Cir. 1991)
(although 28 U.S.C. § 2401(b) requires notice to be sent by registered or certified mail,
failure to comply with the requirement is excused where the plaintiff receives actual
notice, because in such a case the plaintiff “was not prejudiced by the agency's failure
to [use] registered or certified mail”); United States ex rel. Moody v. Am. Ins. Co., 835
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F.2d 745, 747-48 (10th Cir. 1987) (actual notice of a subcontractor's claim governed by
the Miller Act, 40 U.S.C. § 270b, was sufficient even though the subcontractor failed to
send notice by registered mail as required by statute); Balkissoon v. Comm’r of Internal
Revenue, 995 F.2d 525, 528-29 (4th Cir. 1993) (the purpose of 26 U.S.C. § 6212(a)
was accomplished when the taxpayer received actual notice in sufficient time to petition
the tax court despite the agency’s failure to use registered mail); Boren v. Riddell, 241
F.2d 670, 672-74 (9th Cir. 1957) (same).
Mr. Tekeley also argues that the November 4, 1996, letter notifying him of the
retirement coverage error could not have triggered the 60-day election period because
the May 6, 1997, letter from GAO—in which GAO provided Mr. Tekeley with information
about the ramifications of his two retirement coverage options—shows that his election
period was still open well after that 60-day period. That argument, however, has no
bearing on whether Mr. Tekeley received proper notification of the retirement coverage
error. Under 5 C.F.R. § 846.204(b)(2)(ii)(C) the agency has discretion to extend the 60-
day election period. It appears that the agency did so in this case in order to
accommodate Mr. Tekeley’s requests for information, and that the extension of the
election period did not have any adverse consequences for Mr. Tekeley.
In light of the Board’s finding that Mr. Tekeley received notice in 1996 of the
agency’s error and of his right to decline FERS coverage, Mr. Tekeley’s claim runs
aground on section 2133 of FERCCA.3 That statute and the corresponding regulation
3 Contrary to Mr. Tekeley’s assertion, this does not constitute retroactive
application of FERCCA. Prior to FERCCA, 5 C.F.R. § 846.204(b)(2) provided a limited,
one-time exception allowing employees to make a belated election in order to correct
erroneous retirement coverage. Thus, prior to FERCCA Mr. Tekeley would have been
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make clear that an employee who was given an opportunity to correct a retirement
coverage error prior to FERCCA is not entitled to a second opportunity because of the
enactment of FERCCA. Section 2133 provides that FERCCA’s provision allowing
employees to correct a retirement coverage error “shall not apply to individuals who
made or were deemed to have made elections similar to those provided in [FERCCA]
under regulations prescribed by the Office before the effective date of this title.” Section
839.221 of the regulations provides that an employee who had an opportunity to correct
a retirement coverage error under section 846.204(b)(2) is not entitled to a second
election opportunity under FERCCA. See also Corrections of Retirement Coverage
Errors Under the Federal Erroneous Retirement Coverage Corrections Act, 66 Fed.
Reg. 15,606, 15,607 (Mar. 19, 2001) (“Those who had the opportunity to elect coverage
under OPM’s existing regulations at § 846.204(b)(2) may not have another election
opportunity based on the same retirement coverage error.”). Accordingly, we uphold
the Board’s decision that Mr. Tekeley was not improperly denied his right to elect a
retirement option other than FERS.
entitled to a single opportunity to correct the error, but not a second opportunity.
Section 2132 of FERCCA was essentially a statutory enactment of the one-time
opportunity to correct an error, which was previously afforded by 5 C.F.R.
§ 846.204(b)(2). Mr. Tekeley’s current claim is based on FERCCA, and his argument is
that FERCCA affords him an opportunity to correct erroneous retirement coverage.
Section 2133, however, has the effect of maintaining the prohibition on second chances,
a prohibition that existed prior to the enactment of FERCCA.
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