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 t he Board found that Mr. Petersen’s former wife, Sharon Igarashi, is entit led to a cost of living adjus tment (“COLA”) in connection with her share of Mr. Peters en’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 di vorced in September 1982, after 18 years of marriage. In the divorce order, the Califor nia Superior Court awar ded a portion of Mr. Petersen’s CSRS annuity to Ms. Igarashi: one-hal f of the total “community interest” in Mr. Petersen’s federal retirement benefits. T he “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 f ederal government and elected to receive his CSRS retirement benefits in monthly insta llments. OPM notified Mr. Petersen that it had granted Ms. Igarashi’s applic ation 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. Peters en then appealed to the Board, which also affirmed. On review, this court upheld t he 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. OP M thus found that it should have withheld $58,687.98 between October 1, 1997 and Sept ember 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 2OPM, the pertinent regulati on, 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 reconsiderati on. 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 calculati ons. Mr. Petersen also claimed that he was entitled to interest on the $264.99. In July 2003, OPM issued its reconsiderat ion decision. OPM affirmed its initial decision and explained that an audi t 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 Sept ember 30, 2001, and that Mr. Petersen was t herefore due $179.20, not $199.12. Because at that point OPM had already paid $199.70 to Mr. Peters en 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 t he case found that OPM understood and properly applied the California court’s 1983 divo rce order. Acknowledgi ng that the order did not specify that Ms. I garashi 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 monthl y annuity on a percentage or fr action basis, COLA’s will be included unless the order specifically provides otherwise.” Finding that the order “did

06-3011 3not specify that COLA’s were excepted fr om 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. Pe tersen’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 suffi cient to support a finding of discrimination.” The full Board denied Mr. Petersen’s petiti on, but reopened the case to correct an error in the calculation of Ms. Igarash i’s share of the annuity . The Board explained that OPM had erroneously translated Mr. Peters en’s period of 40 year s and 8 months of federal service as 40.8 years. The Board t herefore recalculated Mr. Petersen’s years of service as 40.6667 and concluded that Ms. Igaras hi is entitled to 22.13 percent of Mr. Petersen’s annuity. As a result, the Boar d found that OPM had underpaid Ms. Igarashi (i.e. underwithheld from Mr. Petersen’s monthl y annuity) in the amount of $33.84 for the period between October 1997 and September 2001. The Boar d therefore ordered OPM to adjust her portion of the annuity payments accordingly. DISCUSSION This court reverses a decision of the Boar d only if it is arbi trary and capricious, obtained without procedures requir ed 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, t he 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 41151, 1153 (Fed. Cir. 1991); Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 141 (Fed. Cir. 1986). Mr. Petersen argues that the Board err ed in concluding that Ms. Igarashi is entitled to COLAs because the 1983 divorc e order makes no mention of such adjustments. The administrat ive judge explained that, in circumstances in which the divorce order provides a former spouse wit h 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.” Accordi ngly, 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 OP M prior to January 1, 1993. Section 838.101(c)(1) of the same title provides t hat 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 t he relevant date. Thus, the regulation applicable to th is case is 5 C.F.R. § 838.1017. See 5 C.F.R. § 838.101(c)(2) (applying subpart J to court or ders received by OPM before January 1, 1993). This, however, does not mandate a differ ent result. Section 838.1017 provides: “In cases where the court order apportions a percentage of the em ployee retirement benefit . . . [the initially determined] amount will be increased by future cost-of-living increases unless the court dire cts otherwise.” Thus, there is no substantive difference between the two regulations with regard to COLA increases. Like the regulation relied

06-3011 5upon 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. Igaras hi 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 re medy, 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 fo r dismissals without prejudice due to scheduling conflicts. In any event, this c ourt’s authority to grant relief on appeals from the Board is limited to “se t[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 dem and 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 imm unity 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)). Moreov er, 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 ther e is no amount on which interest could

06-3011 6accrue. Because Mr. Petersen has not pres ented evidence that cont radicts the Board’s calculations, we find no basis for grant ing 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 formu la 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 fracti on 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 num ber 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). Becaus e none of those exceptions apply here, the law of the case doctrine bars Mr. Petersen fr om relitigating that issue.

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