                 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 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




05-3374                                     2
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.




05-3374                                    3
      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



05-3374                                    4
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.


05-3374                                       5
       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




05-3374                                    6
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


05-3374                                    7
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.


05-3374                                      8
