Becker v. Office of Personnel Management

United States Court of Appeals

for the Federal Circuit

______________________

AMANDA E. BECKER,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________

2016-1365

______________________

Petition for review of the Merit Systems Protection

Board in No. CH-0831-15-0280-I-1.

______________________

Decided: April 7, 2017

______________________

JANET A. NAPP, Flood Law PLLC, Royal Oak, MI, ar-

gued for petitioner. Also represented by TODD F. FLOOD.

VERONICA NICOLE ONYEMA, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, argued for respondent. Also

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., ALLISON KIDD-MILLER.

______________________

Before TARANTO, LINN, and CHEN, Circuit Judges.

2 BECKER v. OPM

CHEN, Circuit Judge.

Amanda Becker appeals a decision from the Merit

Systems Protection Board (Board) affirming the Office of

Personnel Management’s (OPM) determination that she

was ineligible to receive survivor benefits upon the death

of her late husband, Todd Mayberry, under the Federal

Employees Retirement System (FERS). Throughout the

marriage, Mr. Mayberry was employed by the Federal

Bureau of Investigation (FBI) and was covered by FERS.

OPM had denied her benefits because she had been

married to Mr. Mayberry for less than nine months,

which is the statutory minimum for a widow to receive

survivor benefits as a result of the death of a civilian

federal employee who has at least eighteen months of

creditable service under 5 U.S.C. § 8442(b) (2012). Ms.

Becker primarily challenges the constitutionality of the

provision on appeal. In light of controlling precedent, we

affirm the Board’s decision.

BACKGROUND

During Mr. Mayberry’s tenure with the FBI, he elect-

ed Ms. Becker to receive survivor benefits in the event of

his death. They were married for less than nine months

and had no children together, when Mr. Mayberry passed

away due to cancer complications.

Ms. Becker applied for survivor benefits with OPM,

but OPM denied her application on the ground that she

did not meet the definition of a “widow” under 5 U.S.C.

§ 8441(1). That definition identifies a widow as a “surviv-

ing wife” who: (1) “was married to [the covered decedent]

for at least [nine] months immediately before his death”

(hereinafter, nine-month requirement); or (2) “is the

mother of issue by that marriage” (hereinafter, child-

bearing requirement). Id. § 8441(1)(A)–(B). She sought

reconsideration of that decision, but OPM affirmed its

initial decision.

BECKER v. OPM 3

Ms. Becker then appealed to the Board, which re-

ferred the appeal to an administrative judge. In the

course of her appeal, she attempted to seek discovery.

She requested information regarding, inter alia, whether

OPM had ever waived the nine-month requirement for

prior applicants, and whether OPM had ever sufficiently

explained the nine-month requirement to Mr. Mayberry.

The administrative judge denied these requests and

issued an initial decision, rejecting Ms. Becker’s appeal

and reiterating OPM’s rationale for denying Ms. Becker’s

application in the first instance. That decision became

the final decision of the Board.

Ms. Becker now appeals to us, arguing that:

(1) 5 U.S.C. § 8441(1) is unconstitutional; and (2) the

Board improperly denied her discovery requests. We have

jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).

DISCUSSION

We must affirm a decision of the Board unless it is ar-

bitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law; obtained without procedures

required by law, rule, or regulation having been followed;

or unsupported by substantial evidence. 5 U.S.C. §

7703(c) (2012). We review “the Board’s determinations of

law for correctness, without deference to the Board’s

decision.” Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,

1311 (Fed. Cir. 2003) (quoting King v. Dep’t of Navy, 130

F.3d 1031, 1033 (Fed. Cir. 1997)).

A. Constitutionality

Ms. Becker does not dispute that she does not meet

the definition of a “widow” under 5 U.S.C. § 8441(1).

Rather, she challenges the constitutionality of the provi-

sion under the Fifth Amendment, arguing that it inter-

feres with the exercise of her fundamental rights to marry

and procreate, and that it arbitrarily discriminates

4 BECKER v. OPM

against widows who do not satisfy the nine-month re-

quirement or the child-bearing requirement. We disagree.

At the outset, we note that Ms. Becker appears to con-

cede that the challenged provision is subject to rational

basis review as opposed to the strict scrutiny test. See

Reply at 5; Appellant Br. at 19. Even without this appar-

ent concession, however, we hold that heightened scrutiny

of § 8441(1) is inappropriate here.

In Weinberger v. Salfi, the Supreme Court applied ra-

tional basis review to a materially identical statutory

provision that determined social security insurance

benefits for a widow based on, among other criteria,

whether the widow had been married to her late husband

for at least nine months or whether the widow was a

mother of a child to her late husband. See 422 U.S. 749,

753–54, 754 n.2, 767–85 (1975). In that case, a widow

filed a claim for insurance benefits with the Social Securi-

ty Administration, but was denied because she had not

been married to her late husband for at least nine

months. See id. at 753–54. The widow challenged the

constitutionality of the provision. See id. at 753. Despite

recognizing the distinctive constitutional status of choices

about marriage and family life, the Court determined that

rational basis review of the provision was appropriate as

the case involved the receipt of public funds under a

noncontractual claim. Id. at 771, 772. In applying

rational basis review, the Court explained that

[T]he question raised is not whether a statutory

provision precisely filters out those, and only

those, who are in the factual position which gen-

erated the congressional concern reflected in the

statute. Such a rule would ban all prophylactic

provisions . . . . Nor is the question whether the

provision filters out a substantial part of the class

which caused congressional concern, or whether it

filters out more members of the class than non-

BECKER v. OPM 5

members. The question is whether Congress, its

concern having been reasonably aroused by the

possibility of an abuse which it legitimately de-

sired to avoid, could rationally have concluded

both that a particular limitation or qualification

would protect against its occurrence, and that the

expense and other difficulties of individual deter-

minations justified the inherent imprecision of a

prophylactic rule.

Id. at 777. The Court then concluded that there was a

rational basis for the statutory requirements for a widow

to receive social security benefits, reasoning that

The common denominator of these disjunctive re-

quirements appears . . . to be the assumption of

responsibilities normally associated with mar-

riage, and . . . Congress has treated them as al-

ternative indicia of the fact that the marriage was

entered into for a reason other than the desire to

shortly acquire benefits.

Id. at 781.

Salfi applies here, even though Ms. Becker’s claim for

survivor benefits has its roots in a federal employment

relationship and even if these benefits could be considered

protected as a vested portion of compensation for complet-

ed work—that is, her claim is arguably contractual in

some sense, but not in others. 1 See Chu v. United States,

773 F.2d 1226, 1229 (Fed. Cir. 1985) (well-settled law that

“public employment does not[] give rise to a contractual

relationship in the conventional sense” (ellipses omitted)

(quoting Shaw v. United States, 640 F.2d 1254, 1260 (Ct.

1 We note that there was no change of criteria here

as the definitions for a “widow” under § 8441(1) were in

place and have not changed since Mr. Mayberry began his

federal employment.

6 BECKER v. OPM

Cl. 1981))); see also Schism v. United States, 316 F.3d

1259, 1274–75 (Fed. Cir. 2002). Ms. Becker has not

supplied any persuasive reason to depart from Salfi. The

concern about the spending of public funds is present, and

so the rationale for permitting Congress to use an impre-

cise set of criteria as a proxy for “the assumption of re-

sponsibilities normally associated with marriage” carries

the day. 422 U.S. at 781.

In light of Salfi, Ms. Becker acknowledged at oral ar-

gument that her constitutional challenge to § 8441(1) fails

unless the Supreme Court displaced this precedent when

it recently held that the Constitution precludes states

from denying same-sex couples the right to marry in

Obergefell v. Hodges, __ U.S. __, 135 S. Ct. 2584, 2604–05

(2015). We see no such displacement. Nothing in Oberge-

fell changes the required approach to evaluating the kind

of line-drawing for eligibility for public funds that is

presented here. Obergefell did not involve such a meas-

ure; it involved state bans on recognition of same-sex

marriages. We cannot take Obergefell as altering the

applicability of Salfi. Accordingly, we hold that 5 U.S.C.

§ 8441(1) does not violate the Constitution.

B. Discovery

We next turn to Ms. Becker’s discovery arguments.

“Procedural matters relative to discovery and eviden-

tiary issues fall within the sound discretion of the [B]oard

and its officials.” Curtin v. Office of Pers. Mgmt., 846 F.2d

1373, 1378 (Fed. Cir. 1988). We cannot overturn their

decisions “on such matters unless an abuse of discretion is

clear and is harmful.” Id. “If an abuse of discretion did

occur with respect to the discovery and evidentiary rul-

ings,” then there must be proof of an error that “caused

substantial harm or prejudice” such that the outcome of

the case could have been affected. Id. at 1379.

BECKER v. OPM 7

According to Ms. Becker, the Board improperly re-

fused her discovery into instances in which OPM may

have waived the nine-month requirement under

§ 8441(1)—instances she hoped would supply a predicate

for a claim of arbitrary enforcement. But Ms. Becker had

no basis to request this discovery as she had no reasona-

ble belief that any such instances occurred. See Oral

Argument at 10:28–12:11, http://oralarguments.cafc.

uscourts.gov/default.aspx?fl=2016-1365.mp3 (only “heard”

that OPM had waived nine-month requirement in the

past, but had “no inside information” and it “[was not]

something that [she] could verify”). Moreover, even if

OPM had provided survivor benefits in other instances

where the statute barred it from doing so, OPM was still

required to follow the statutory requirements when

reviewing Ms. Becker’s application. See Office of Pers.

Mgmt. v. Richmond, 496 U.S. 414, 424–26 (1990) (explain-

ing that equitable doctrine of estoppel cannot be used to

access funds that Congress has not authorized). We see

no abuse of discretion in denying this discovery request.

Finally, Ms. Becker claims that the Board also im-

properly denied her discovery as to whether OPM suffi-

ciently informed Mr. Mayberry about the nine-month

requirement. We fail to see any error in denying this

discovery, especially where Ms. Becker “stipulated that

Mr. Mayberry submitted all of the proper elections to

ensure that [she] received survivor benefits.” J.A. at 6.

Mr. Mayberry’s potential unfamiliarity with the statutory

requirements contained in the election forms he signed

does not provide a basis for waiving those requirements.

Ms. Becker’s reliance on Simpson v. Office of Person-

nel Management, 347 F.3d 1361 (Fed. Cir. 2003), is mis-

placed. Simpson involved the sufficiency of OPM’s annual

annuity notices sent pursuant to 5 U.S.C. § 8339 (2000),

which assigns OPM the duty to provide each eligible

employee an annuity notice annually. See Simpson, 347

F.3d at 1364. No such comparable notice provision for

8 BECKER v. OPM

explaining the requirements of § 8441(1) for survivor

benefits exists under FERS. Therefore, Ms. Becker has

not demonstrated that the Board abused its discretion.

CONCLUSION

For the preceding reasons, we affirm the decision of

the Board.

COSTS

No costs.