Petersen v. Office of Personnel Management , 180 F. App'x 153 ( 2006 )

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
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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
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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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