Nielsen v. Department of the Interior

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
2006-3176
LUCILLE B. NIELSEN,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
__________________________
DECIDED: September 8, 2006
__________________________
Before NEWMAN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and SCHALL, Circuit
Judge.
NEWMAN, Circuit Judge.
Lucille B. Nielsen petitions for review of the decision of the Merit Systems Protection
Board, Docket No. SF0839050355-I-1, denying her relief under the Federal Erroneous
Retirement Coverage Corrections Act (FERCCA), 5 U.S.C. §8331 note. We affirm the
decision of the Board.
BACKGROUND
Ms. Nielsen began employment with the United States Government in 1968. The
first twenty years of this employment were in positions covered by the Civil Service
Retirement System (CSRS). In 1988 there was a break in Ms. Nielson's federal service
during which she raised her family, followed by a return to employment with the U.S. Postal
Service in 1995. Her employment with the Postal Service was covered by Social Security,
but neither CSRS nor the Federal Employees Retirement System (FERS). She then
accepted a term appointment with the Department of Agriculture in 2000. As a term
appointee, Ms. Nielsen was not eligible for coverage under CSRS. On December 19, 2000,
Ms. Nielsen signed an election of coverage form (SF 3109) electing to transfer her
retirement coverage to FERS. She subsequently entered a career conditional appointment
with the agency, which she held at the time of her appeal to the MSPB.
Subsequently, Ms. Nielsen filed a request for relief with OPM under the FERCCA,
seeking to convert her retirement coverage to CSRS offset. OPM determined that her
transfer to FERS in 2000 was not in error and could not be corrected under the FERCCA.
On appeal to the Board the OPM decision was sustained, and this appeal followed.
DISCUSSION
The Civil Service Retirement System was established in 1920 and covered most
federal employees hired before 1984. It provided a retirement system that was
independent of the Social Security System, and CSRS-covered employees did not pay
Social Security Old Age Survivor's and Disability Insurance (OASDI) taxes. The lack of
Social Security benefits was to the disadvantage of employees transferring from federal
service to non-government employment. In 1986, Congress created the Federal
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Employees' Retirement System, which was designed to work in conjunction with Social
Security. Employees covered under FERS also participate in the Social Security
Retirement System, paying OASDI taxes and receiving both the Social Security and FERS
retirement benefits to which they may be entitled upon retirement. Employees that were
covered under CSRS were given the opportunity to convert to FERS during two open
seasons in 1987-88 and 1998.
When Congress created FERS, it also created CSRS-Offset, which covers certain
employees who had significant CSRS-covered employment followed by a break in service
of more than one year. CSRS-Offset employees continue to make CSRS contribution to
the retirement fund, but those contributions are "offset" by the OASDI Social Security taxes.
Upon retirement, the CSRS benefits are reduced by any eligible Social Security benefits.
Employees rehired after the end of 1983 and after such a break in service, as was Ms.
Nielsen, were eligible to elect either CSRS-Offset or FERS. When Ms. Nielsen was rehired
by the Department of Agriculture, she signed a form 3109 electing FERS coverage. Under
the rules for making this election it was not revokable, and the form Ms. Nielsen signed
clearly so stated.
Ms. Nielsen argues that the election she made was a mistake and should be
corrected by the FERCCA. However, as the Board found, a plain reading of the Act and its
implementing regulations shows that it provides relief only for employees who were
incorrectly assigned to a retirement system for which they were not eligible. See 5 C.F.R.
§839.201, 102. There is no dispute that, upon returning to federal employment, Ms.
Nielsen was eligible to participate in FERS, so her election of that system, whether or not a
2006-3176 3
mistake on her part, was not an error that can be corrected under the FERCCA. The Board
correctly found that relief under the FERCCA was not available to Ms. Nielsen.
Ms. Nielsen argues that, upon her return to federal employment, she was incorrectly
told that her only choice was to convert to FERS coverage. She states that the error she
made was the result of incorrect information provided by an employment specialist at the
Department of Agriculture. In general, erroneous advice or information provided by an
agency does not entitle an employee to benefits that are not available as a matter of law.
See OPM v. Richmond, 496 U.S. 414 (1990) ("'[T]he United States is neither bound nor
estopped by acts of its officers or agents in entering into an arrangement or agreement to
do or cause to be done what the law does not sanction or permit.'") (quoting Utah Power &
Light Co. v. United States, 243 U.S. 389, 408-409 (1917)). Although relief has been
accorded in egregious cases of mismanagement or incompetence, this is not such a case.
See McCrary v. OPM, ___ F.3d ___, 2006 WL 2355961, *5 (Fed. Cir. 2006 ) ("[W]e hold
that when an employee, at the time of an election, asks for information regarding the
amount of the military deposit or the consequences of failing to make the deposit, the
government commits administrative error under 5 C.F.R. §831.2107(a)(1) if its response
either misrepresents the dollar amounts in question or is so indirect, inaccurate, or
incomplete as to confuse or mislead the employee as to the amount of the deposit or the
effect of any failure to make the deposit on the annuity recalculation."). It has not been
established that she received egregiously erroneous instructions. The decision of the
Board must be affirmed.
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