                 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


                                        06-3011

                                LARRY L. PETERSEN,

                                                Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                Respondent.

                           ___________________________

                               DECIDED: April 5, 2006
                           ___________________________


Before RADER, BRYSON, and GAJARSA, Circuit Judges.

PER CURIAM.

                                       DECISION

      Larry Petersen petitions for review of a decision of the Merit Systems Protection

Board, No. SF-0831-03-0493-I-4, in which the Board found that Mr. Petersen’s former

wife, Sharon Igarashi, is entitled to a cost of living adjustment (“COLA”) in connection

with her share of Mr. Petersen’s monthly Civil Service Retirement System (“CSRS”)

annuity, and that any excess withholding by the Office of Personnel Management

(“OPM”) has since been paid or corrected.         Because we find no legal basis for

overturning the Board’s decision, we affirm.
                                    BACKGROUND

      Mr. Petersen and Ms. Igarashi were divorced in September 1982, after 18 years

of marriage. In the divorce order, the California Superior Court awarded a portion of Mr.

Petersen’s CSRS annuity to Ms. Igarashi: one-half of the total “community interest” in

Mr. Petersen’s federal retirement benefits. The “community interest” was calculated by

dividing the number of years the two were married by the number of years that Mr.

Petersen had been a participant in CSRS at the time of his retirement.

      In 1997, Mr. Petersen retired from the federal government and elected to receive

his CSRS retirement benefits in monthly installments. OPM notified Mr. Petersen that it

had granted Ms. Igarashi’s application for a portion of those benefits. Mr. Petersen

requested reconsideration, asking that OPM terminate or reduce Ms. Igarashi’s share,

but OPM affirmed its decision. Mr. Petersen then appealed to the Board, which also

affirmed.   On review, this court upheld the Board’s decision on all but one issue.

Petersen v. Office of Pers. Mgmt., 243 F.3d 566 (Fed. Cir. 2000). Finding that OPM

should have calculated Mr. Petersen’s period of service in years and months, rather

than in whole years, we remanded for further proceedings.

      In 2001, OPM issued a new initial decision, finding that Ms. Igarashi was entitled

to 22.05 percent of Mr. Petersen’s annuity. OPM thus found that it should have withheld

$58,687.98 between October 1, 1997 and September 30, 2001.               Because it had

withheld $58,887.10 during that period, OPM concluded that Mr. Petersen was due

$199.12. In that decision, OPM also responded to a contrary claim by Mr. Petersen and

concluded that Ms. Igarashi was entitled to COLA increases because she had been

awarded a percentage of monthly payments in the 1983 divorce order. As explained by




06-3011                                 2
OPM, the pertinent regulation, 5 C.F.R. § 838.622(b)(1), provides that a former

spouse’s share of an annuity will be adjusted accordingly when a court awards the

former spouse a portion of the annuity based on a percentage, fraction, or formula.

      Mr. Petersen again requested reconsideration. He argued that Ms. Igarashi was

not entitled to COLAs and that OPM owed him $264.99, based on a 22.50 percent rate,

not the 22.05 percent used in OPM’s calculations. Mr. Petersen also claimed that he

was entitled to interest on the $264.99.

      In July 2003, OPM issued its reconsideration decision. OPM affirmed its initial

decision and explained that an audit of Mr. Petersen’s file revealed that retroactive

COLA allowances had increased his monthly annuity. As a result, OPM found that it

should have withheld $58,707.90 between October 1, 1997, and September 30, 2001,

and that Mr. Petersen was therefore due $179.20, not $199.12. Because at that point

OPM had already paid $199.70 to Mr. Petersen over two payments, OPM concluded

that it had overpaid Mr. Petersen $20.50.       OPM waived its right to recover the

overpayment. OPM also concluded that no interest was payable on the amount Mr.

Petersen had received and that Ms. Igarashi was entitled to COLAs in accordance with

5 C.F.R. § 838.622(b)(1)(ii). Mr. Petersen appealed to the Board.

      The administrative judge assigned to the case found that OPM understood and

properly applied the California court’s 1983 divorce order. Acknowledging that the order

did not specify that Ms. Igarashi would receive COLA increases, the administrative

judge explained that “5 C.F.R. § 838.622(b)(1)(ii) provides that, where a former spouse

is given a portion of monthly annuity on a percentage or fraction basis, COLA’s will be

included unless the order specifically provides otherwise.” Finding that the order “did




06-3011                                    3
not specify that COLA’s were excepted from the formula,” the administrative judge

concluded that Ms. Igarashi is entitled to an adjustment. The administrative judge also

found that OPM’s calculation of the amount overwithheld ($179.20) was correct and that

there was no authority that entitled Mr. Petersen to interest on that amount.             The

administrative judge further addressed Mr. Petersen’s newly raised claims of age and

sex discrimination by OPM and concluded that OPM’s alleged failure to respond to Mr.

Petersen’s letters “would not by itself be sufficient to support a finding of discrimination.”

       The full Board denied Mr. Petersen’s petition, but reopened the case to correct

an error in the calculation of Ms. Igarashi’s share of the annuity. The Board explained

that OPM had erroneously translated Mr. Petersen’s period of 40 years and 8 months of

federal service as 40.8 years. The Board therefore recalculated Mr. Petersen’s years of

service as 40.6667 and concluded that Ms. Igarashi is entitled to 22.13 percent of Mr.

Petersen’s annuity. As a result, the Board found that OPM had underpaid Ms. Igarashi

(i.e. underwithheld from Mr. Petersen’s monthly annuity) in the amount of $33.84 for the

period between October 1997 and September 2001. The Board therefore ordered OPM

to adjust her portion of the annuity payments accordingly.

                                       DISCUSSION

       This court reverses a decision of the Board only if it is arbitrary and capricious,

obtained without procedures required by law, or unsupported by substantial evidence. 5

U.S.C. § 7703(c); see also Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir.

1998). In a claim for benefits under CSRS, the burden of proof is on the claimant to

show he is entitled to the benefits he seeks. True v. Office of Pers. Mgmt., 926 F.2d




06-3011                                   4
1151, 1153 (Fed. Cir. 1991); Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141

(Fed. Cir. 1986).

         Mr. Petersen argues that the Board erred in concluding that Ms. Igarashi is

entitled to COLAs because the 1983 divorce order makes no mention of such

adjustments. The administrative judge explained that, in circumstances in which the

divorce order provides a former spouse with a portion of the monthly annuity on a

percentage basis, 5 C.F.R. § 838.622(b)(1)(ii) provides that COLAs will be included

“unless the order specifically provides otherwise.” Accordingly, the administrative judge

concluded that an explicit provision regarding COLAs need not be included within the

divorce order for Ms. Igarashi to be so entitled.

         As the government points out in its response, however, 5 C.F.R. § 838.622 does

not apply to court orders received by OPM prior to January 1, 1993.               Section

838.101(c)(1) of the same title provides that subparts A through I, of which section

838.622 is a part, “apply only to court orders received by OPM on or after January 1,

1993.” The California court’s 1983 divorce order was received before the relevant date.

Thus, the regulation applicable to this case is 5 C.F.R. § 838.1017. See 5 C.F.R.

§ 838.101(c)(2) (applying subpart J to court orders received by OPM before January 1,

1993).

         This, however, does not mandate a different result. Section 838.1017 provides:

“In cases where the court order apportions a percentage of the employee retirement

benefit . . . [the initially determined] amount will be increased by future cost-of-living

increases unless the court directs otherwise.” Thus, there is no substantive difference

between the two regulations with regard to COLA increases. Like the regulation relied




06-3011                                   5
upon by the Board, section 838.1017 does not require an explicit provision in the

divorce decree in order for the former spouse to be entitled to COLAs. We therefore

uphold the Board’s conclusion that Ms. Igarashi is entitled to COLA increases in

connection with her share of Mr. Petersen’s monthly CSRS annuity.

      Mr. Petersen also contends that OPM has failed to respond to his letters and has

delayed in addressing his complaint. As a remedy, Mr. Petersen asks that a fine be

imposed against OPM and paid to him. In response, the government contends that

OPM has addressed Mr. Petersen’s contentions in detail, both in its initial decision and

its reconsideration decision. Moreover, according to the government, the protracted

nature of the proceedings is in part attributable to Mr. Petersen’s premature appeals to

the Board and his four granted requests for dismissals without prejudice due to

scheduling conflicts. In any event, this court’s authority to grant relief on appeals from

the Board is limited to “set[ting] aside any agency action, findings, or conclusions.” See

5 U.S.C. § 7703(c). We have no authority to levy fines against an agency, and we

therefore decline to award the type of relief requested here.

      Mr. Petersen also reiterates his demand for interest on the amount that he

alleges has been “illegally” withheld. As this court explained in Lichtman v. United

States, however, “[i]n the absence of express congressional consent to the award of

interest separate from a general waiver of immunity to suit, the United States is immune

from an interest award.” 835 F.2d 1427, 1428 (Fed. Cir. 1988) (quoting Library of

Congress v. Shaw, 478 U.S. 310, 311 (1986)). Moreover, the full Board concluded that,

due to an error in calculation, OPM withheld a lesser amount than it should have. As a

result, Mr. Petersen was not underpaid and there is no amount on which interest could




06-3011                                  6
accrue. Because Mr. Petersen has not presented evidence that contradicts the Board’s

calculations, we find no basis for granting Mr. Petersen’s request for interest.

       Mr. Petersen contends that the divorce order is not a “qualifying court order”

under 5 C.F.R. 838.1004(b) because it allegedly contains a formula that is “not readily

ascertainable.” However, we addressed and rejected that argument in Mr. Petersen’s

prior appeal. See Petersen v. Office of Pers. Mgmt., 243 F.3d 566 (Fed. Cir. 2000). As

we explained there, the fraction contained in the divorce order is readily ascertainable

because “[t]he number of years of Mr. Petersen's accredited service can be determined

from OPM files, and the number of years that he was married is undisputed.” Id. Under

the law of the case doctrine, we do not revisit an issue decided in a prior appeal in the

same case unless one of three exceptional circumstances exist: (1) the evidence in a

subsequent trial is substantially different; (2) controlling authority has since made a

contrary decision of the law applicable to the issues; or (3) the earlier ruling was clearly

erroneous and would work a manifest injustice. Gould, Inc. v. United States, 67 F.3d

925, 930 (Fed. Cir. 1995). Because none of those exceptions apply here, the law of the

case doctrine bars Mr. Petersen from relitigating that issue.




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