Adriena Sarvasova v. Office of Personnel Management

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
04-3314
ADRIENA SARVASOVA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: March 23, 2005
___________________________
Before SCHALL, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
Adriena Sarvasova (“Ms. Sarvasova”) seeks review of the Merit Systems
Protection Board (“Board”) decision affirming the ruling of the Office of Personnel
Management (“OPM”) that denied her claim for a survivor annuity. Sarvasova v. Office
of Pers. Mgmt., SF-0831-03-0422-I-1 (M.S.P.B. July 22, 2003) (Initial Decision). We
have considered Ms. Sarvasova’s constitutional claim and find it without merit. We
therefore affirm the judgment of the Board.

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BACKGROUND
Orion H. Pettengill (“Mr. Pettengill”) retired from the federal service, effective
September 4, 1993, with the right to an immediate lifetime annuity under the Civil
Service Retirement System (“CSRS”). On December 10, 2002, he and petitioner,
Ms. Sarvasova, married. In a letter dated November 29, 2002, and mailed December
19, 2002, Mr. Pettengill sent notice to OPM that he wished to provide Ms. Sarvasova
with a survivor annuity. He died from cardiopulmonary arrest the next day, December
20, 2002.
After Mr. Pettengill’s death, Ms. Sarvasova filed a claim with OPM for survivor
annuity benefits under the CSRS. On February 27, 2003, Ms. Sarvasova’s claim was
denied because she did not satisfy one of the conditions required by 5 C.F.R § 831.642
(2005) – specifically, that she was married to the annuitant, Mr. Pettengill, for less than
nine months prior to his death. Ms. Sarvasova sought reconsideration of OPM’s initial
determination. Upon reconsideration, on April 30, 2003, OPM in its final decision found
that “[e]ven if your spouse had made the election [of survivor benefits], you had not
been married for the minimum 9 months required by Federal statute.” On May 15,
2003, Ms. Sarvasova appealed OPM’s final decision to the Board, seeking review of the
determination that she was not entitled to a survivor annuity under 5 U.S.C. § 8341
(2000).
In the Board’s initial decision on July 22, 2003, after reviewing the evidence in
the record, including Ms. Sarvasova’s hearing testimony where she conceded that she
had not been married to her husband for at least nine months before his death, the
administrative judge (“AJ”) affirmed the final decision of OPM. Specifically, the AJ found
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that Ms. Sarvasova did not meet the statutory definition of “widow” that would entitle her
to a survivor annuity because she failed to be married to Mr. Pettengill “for at least nine
months immediately before his death.” See 5 U.S.C. § 8341(a)(1)(A). Additionally, the
AJ determined that Ms. Sarvasova’s arguments challenging as unfair the application of
the statute because it would leave her in “dire financial straits” were without merit. The
AJ, citing to Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 434 (1990), stated it
would be improper to apply equitable estoppel to prevent the government from
enforcing a statutory provision governing a claimant’s eligibility for public funds. The
decision of the Board became final March 23, 2004, when the Board denied Ms.
Sarvasova’s petition for review. Ms. Sarvasova timely appealed to this court and we
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless we determine that it is (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence. See 28 U.S.C. § 7703(c) (2000); Killeen v.
Office of Pers. Management, 382 F.3d 1316, 1320 (Fed. Cir. 2004).
On appeal, Ms. Sarvasova is not challenging the Board’s determination of the
denial of her survivor annuity claim; instead, she seeks to strike from 5 U.S.C.
§ 8341(a)(1) the nine month condition of marriage because it violates her constitutional
rights guaranteed under the Fifth Amendment. Specifically, she argues for the first time
that Ҥ 8341(a)(1) is unconstitutional in that it deprives [her] of her right to due process
and equal protection of the laws through invidious discrimination by excluding her from
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eligibility for [a] survivor annuity benefit.” Ordinarily this court will not consider questions
not raised before the Board, but in this instance, Ms. Sarvasova will not be precluded
from raising her constitutional challenge. See Beard v. Gen. Servs. Admin., 801 F.2d
1318, 1321 (Fed. Cir. 1986) (allowing the merits of a constitutional claim to be
addressed despite failing to raise the argument before the Board).
In asserting 5 U.S.C. § 8341(a)(1)’s unconstitutionality, Ms. Sarvasova argues
that the definition of “widow” sets out two arbitrary categories with no apparent rational
basis. See 28 U.S.C. § 8341 (defining widow to mean a “surviving wife of an employee
who was married [to an employee or Member] for at least nine months immediately
before his death” or “the mother of issue by that marriage”). Ms. Sarvasova claims that
the overall statutory scheme provided in § 8341 does not define a reasonable
classification because it allows a mother of issue to be eligible to receive a survivor
annuity regardless of the length of time she was married to the decedent, while a
surviving wife without issue is not eligible for a survivor annuity benefit unless the
marriage lasted at least nine months immediately before the decedent’s death. Ms.
Sarvasova argues that it is arbitrary and without a rational basis to exclude “those
widows who have less than a nine month marriage where there are no other competing
spouses, divorced wives or mothers.”
Additionally, Ms. Sarvasova argues that the classification has no legitimate
governmental purpose. Because Ms. Sarvasova believes the intent of the statute is “to
provide for those spouses who have become dependent on the decedent, she asserts
that there is no rational distinction between a marriage of one month, four months, five
months, or nine months.” Specifically, Ms. Sarvasova maintains that “a nine month
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waiting period . . . does not add to [the] need for support from the deceased to survive
nor does it insure against other possible competing spouses.” Despite Ms. Sarvasova’s
arguments to the contrary, § 8341(a)(1) does not establish two arbitrary categories nor
does it fail to have a legitimate governmental purpose.
Section 8341, a statutory provision that provides for governmental payments of
monetary benefits, is entitled to a strong presumption of constitutionality. See Mathews
v. Castro, 429 U.S. 181, 185 (1976). “Governmental decisions to spend money to
improve the general public welfare in one way and not another are ‘not confided to the
courts. The discretion belongs to Congress, unless the choice is clearly wrong, a
display of arbitrary power, not an exercise of judgment.’” Id. (citing Helvering v. Davis,
301 U.S. 619, 640 (1937)). Moreover, equal protection is not denied “merely because
the classification made by [Congress’] laws are imperfect. If the classification has some
‘reasonable basis,’ it does not offend the Constitution simply because the classification
‘is not made with mathematical nicety or because in practice it results in some
inequality.’” Dandridge v. Williams, 397 U.S. 471, 485 (1970) (quoting Lindsley v. Nat’l
Carbonic Gas Co., 220 U.S. 61, 78 (1911)). Thus, to overcome a constitutional attack,
it is only necessary to show “any reasonably conceivable state of facts that could
provide a rational basis for the classification.” Fed. Communications Comm’n v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993). Accordingly, for a successful
constitutional attack of § 8341, Ms. Sarvasova must demonstrate that the nine month
classification in the statute has no rational basis.
Ms. Sarvasova has not shown that the classification is without a reasonable
basis. While the nine month classification in practice results in some inequality, the
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legislative history shows that Congress’ decision to enact a length of marriage
requirement for annuity eligibility stemmed from efforts to protect the CSRS “against so-
called deathbed marriages.” H.R. Rep. No. 93-882 (1974), reprinted in 1974
U.S.C.C.A.N. 2868, 2869. Congress’ intent to prevent surviving spouses married less
than nine months from financial windfalls provides a rational basis for the nine month
classification. Because a rational basis exists, Ms. Sarvasova’s constitutional claim is
without merit. Ms. Sarvasova has not rebutted § 8341’s strong presumption of
constitutionality nor has she demonstrated that the nine month classification is “clearly
wrong, a display of arbitrary power, not an exercise of judgment.”
CONCLUSION
We find that the Board’s decision affirming the denial of Ms. Sarvasova’s claim
for a survivor annuity is supported by substantial evidence. The Board’s decision was
not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law. Because Ms. Sarvasova did not meet her burden in challenging the
constitutionality of 5 U.S.C. § 8341(a)(1), we affirm.
No costs.
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