AMANDA E. BECKER, Petitioner
OFFICE OF PERSONNEL MANAGEMENT, Respondent
for review of the Merit Systems Protection Board in No.
A. Napp, Flood Law PLLC, Royal Oak, MI, argued 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.
MlZER, ROBERT E. Kirschman, Jr., Allison Kidd-Miller.
Taranto, Linn, and Chen, Circuit Judges.
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.
Mr. Mayberry's tenure with the FBI, he elected 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
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
"surviving 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 then appealed to the Board, which referred 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.
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).
affirm a decision of the Board unless it is arbitrary,
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