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

.BACKGROUND The Federal Employees' Retirement Syst em Act of 1986, Pub. L. No. 99-335, 100 Stat. 514, created a new retirement syst em for federal employees. Generally, employees hired after December 31, 1983, are automatically covered by FERS. Certain rehired employees with five y ears of prior civil service have the option of electing FERS or maintaining CSRS, CSRS-Offs et, 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 m onths 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 fo rm. 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 pr ovided a few exceptions to the six-month election period rule, allowing rehi red employees to make belated elections under certain circumstances. One of those exceptions provided employees a one-time opportunity to correct an agency’s administrat ive mistake that erroneously prevented the employee from being offe red 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 di d not realize that the empl oyee 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

05-3374 2at 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-mont h election period rule, allowing employees a one-time opportunity to correct an agency’s adm inistrative mistake that erroneously prevented the employee from bei ng offered the usual election period at the start of his reemployment. Section 2133 of FERCCA, how ever, explicitly provides that an employee who already had an opportunity to co rrect a particular agency error was not entitled to a second opportunity th rough 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 I n 1995 he transferred to a position with the D epartment of Treasur y. In 1996 he transferred back to the GAO, at which ti me the GAO discovered an error in Mr. Tekeley’s retirement coverage. Alt hough Mr. Tekeley should have been placed in CSRS-Offset and given a six -m onth period in which to choose retirement coverage when he reentered federal serv ice in 1990, he was instead placed automatically in FERS. Pursuant to the then-relevant regul ation, 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 receiv ing the notice, decline to be deemed to have transferred to FERS.”

1 Section 846.204(b)(2) was subs tantially changed in 2001 to implement FERCCA. Corrections of Retirement Cove rage Errors Under the Federal Erroneous Retirement Coverage Corrections Act, 66 F ed. 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.

05-3374 3The GAO asserts that it sent the requir ed written notification to Mr. Tekeley in 1996, and that a series of communica tions 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 le tter, dated November 4, 1996, in which the agency in formed 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 initiat ed by Mr. Tekeley after he received the notification letter, in which Mr. Tekele y requested information about his coverage options. The affidavits and supporting doc uments—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-Offs et to FERS, you have been provided with a variety of estimated annuity estimates.” Mr. Tekeley maintains that he never received any notific ation regarding his retirement options in 1996. Instead, he clai ms that he first learned of the agency error in 2004, when he was deciding whether to retire from the agen cy 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 li ttle evidence in the record regarding Mr. Tekeley’s pre1985 civil service, he asserts, and the GAO does not dispute, that he had at least five

05-3374 4he spoke with OPM and GAO employees duri ng the 1996-1997 timeframe, he asserts that the conversations focused on dis ability benefits and that he never discussed retirement coverage at that time. In suppor t of his assertion that he never received the letters GAO claims to have sent him, Mr. Tekeley offered statem ents 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 adm inistrative judge credited t he agency’s evidence that Mr. Tekeley received notification of the retire ment coverage error in 1996 and therefore affirmed the agency’s decision. The full board denied Mr. Tekeley’s pe tition for review, and Mr. Tekeley now appeals that final judgment. DISCUSSION Although Mr. Tekeley fashions his appeal th rough the lens of va rious regulatory, statutory, constitutional, and equitable ar guments, each of thos e arguments hinges on the question whether he received proper notic e in 1996 of the agency’s error and of his right to decline FERS coverage. If he receiv ed 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.

05-3374 5Mr. 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 receiv ing 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 cont ention that it provided Mr. Tekeley with the required written notice and that Mr. Tekeley received that notice. The Merit Systems Protection Board credi ted the agency’s evidence, and we see no error in that regard. Mr. Tekeley next argues that when t he agency discovered the retirement coverage error, proper notice of the error r equired 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 th is 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 agr ee. The agency’s evidence shows that Mr. Tekeley had actual notice of his election right s in 1996. Therefore, the agency’s failure to comply with the documentation requirement s 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) requi res notice to be sent by r egistered or certified mail, failure to comply with the requirement is ex cused 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

05-3374 6F.2d 745, 747-48 (10th Cir. 1987) (a ctual notice of a subcontract or'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) (t he purpose of 26 U.S.C. § 6212(a) was accomplished when the taxpayer received act ual 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 el ection period because the May 6, 1997, letter from GAO—in whic h GAO provided Mr. Tekeley with information about the ramifications of his two retirem ent coverage options—shows that his election period was still open well after that 60-day period. That argum ent, however, has no bearing on whether Mr. Tekeley received proper notification of the re tirement 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 agen cy did so in this case in order to accommodate Mr. Tekeley’s requests for info rmation, 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 FE RS coverage, Mr. Tekeley’s claim runs aground on section 2133 of FERCCA. 3 That statute and t he corresponding regulation

3 Contrary to Mr. Tekeley’s assert ion, 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 ma ke a belated election in order to correct erroneous retirement coverage. Thus, prio r to FERCCA Mr. Tekeley would have been

05-3374 7make clear that an employee who was giv en an opportunity to correct a retirement coverage error prior to FERCCA is not entit led to a second opportunity because of the enactment of FERCCA. Section 2133 provi des that FERCCA’s provision allowing employees to correct a retirement cover age 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 t he effective date of this title.” Section 839.221 of the regulations prov ides 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 Retire ment Coverage Corrections Act, 66 Fed. Reg. 15,606, 15,607 (Mar. 19, 2001) (“Those w ho 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 cove rage 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 wa s previously afforded by 5 C.F.R. § 846.204(b)(2). Mr. Tekeley’s current clai m 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 ma intaining the prohibition on second chances, a prohibition that existed prior to the enactment of FERCCA.

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