Appeal from the Merit Systems Protection Board.
Nies, Chief Judge, Archer and Clevenger, Circuit Judges.
Philip B. Springer seeks review of the final decision of the Merit Systems Protection Board, Docket No. DC08468910266, January 16, 1990, affirming the decision of the Office of Personnel Management which denied Mr. Springer's request to rescind his transfer into the Federal Employees Retirement System (FERS) from the Civil Service Retirement System. We affirm.
The pertinent portion of the Federal Employees' Retirement System Act of 1986 with which we are concerned states:
(c) EFFECTIVE DATE; IRREVOCABILITY. -- An election made under this section --
(1) shall take effect beginning with the first pay period beginning after the date of the election; and
(2) shall be irrevocable.
Pub. L. No. 99-335, § 301(c), 100 Stat. 514, 600 (1986) (5 U.S.C. § 8331 note (1988)).
On December 30, 1987, Mr. Springer submitted a signed "Election of Coverage" form (OPM Form 1555) on which he clearly indicated his election of FERS coverage. He effected that election by placing his initials in a box next to text stating in pertinent part: "I elect FERS coverage. . . . I understand that this decision is irrevocable." Thereafter, in July 1988, Mr. Springer began a pursuit to rescind his election when he came to realize that the effect of his election under FERS (according to Mr. Springer) was to reduce his retirement benefits and the survivor benefits to his wife. Mr. Springer has been denied the rescission he seeks by OPM, and we must agree with the administrative judge (AJ) that the OPM was correct in doing so.
Each of Mr. Springer's arguments is addressed in the AJ's well reasoned opinion of July 12, 1989 which became the board's final decision. We agree with that analysis except in one respect. The AJ indicated that a possible circumstance for invalidating an otherwise irrevocable election would be if the election were based on erroneous information supplied by the government. However, the AJ held, as a matter of fact, that no misinformation was given to Mr. Springer.
In essence, Mr. Springer's argument revolving around the alleged misinformation from the government is that the government should be estopped to deny the revocation of his election to receive FERS benefits. A very recent decision of the Supreme Court has been handed down which is dispositive of this issue. In Office of Personnel Management v. Charles Richmond, 496 U.S. 414, 58 U.S.L.W. 4771, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (U.S. June 11, 1990) the Supreme Court rejected a similar argument of estoppel by reason of a claimant's reliance on misinformation received from an agency, stating:
We cannot accept the suggestion . . . that the terms of a statute should be ignored based on the facts of individual cases. Here the relevant statute by its terms excludes ...