                 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

                                         05-3257

                                VALERIE M. BUSBY,

                                                     Petitioner,

                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                     Respondent.


                          __________________________

                          DECIDED: November 17, 2005
                          __________________________

Before CLEVENGER, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

      Valerie M. Busby (“Busby”) petitions for review of the decision of the Merit

Systems Protection Board (“MSPB” or “Board”) that affirmed the reconsideration

decision of the Office of Personnel Management (“OPM”) terminating her survivor

annuity benefits. Busby v. Office of Pers. Mgmt., No. AT831M050294-I-1 (M.S.P.B.

May 23, 2005) (“Decision”). We affirm.

                                  I. BACKGROUND

      Busby was married to Benny L. McGlamery for twenty-one years from October 1,

1982 until his death on November 4, 2003. Decision, slip op. at 2. Under the Civil
Service Retirement System (“CSRS”), Busby then received survivor annuity benefits as

the widow of a CSRS annuitant. Id.

          On June 17, 2004, Busby married her current spouse and so advised OPM. Id.

On October 25, 2005, OPM found that Busby no longer qualified for survivor annuity

benefits as of her date of marriage because she had remarried before the age of fifty-

five. Id. Busby requested reconsideration of the initial decision, but OPM affirmed its

initial decision on January 12, 2005.            Id.       Thereafter, Busby appealed OPM’s

reconsideration decision to the Board. Id. On May 23, 2005, the administrative judge

affirmed OPM’s reconsideration decision.             Id.   The administrative judge noted that

Busby challenged the constitutionality of the federal statute, but concluded that the

Board lacked authority to consider this argument. Id., slip op. at 2-3. The administrative

judge held instead that OPM correctly terminated Busby’s survivor annuity benefits

because Busby remarried before age fifty-five and was not married to her first husband

for at least thirty years. Id., slip op. at 3.

          Because Busby failed to petition the full Board for review of the administrative

judge’s decision, the administrative judge’s decision became the final decision of the

Board on June 27, 2005. Busby appeals the Board’s decision to this court. We have

jurisdiction to hear appeals from final decisions of the Board under 28 U.S.C. § 1295

(a)(9).

                                        II. DISCUSSION

                                 A. STANDARD OF REVIEW

          We review a decision of the Board deferentially. We must affirm the Board’s

decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise




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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 (2005); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.

1998).

                           B. SURVIVOR ANNUITY BENEFITS

         Busby petitions for review of the Board’s decision with regard to the termination

of her survivor annuity benefits. Her threshold argument is based upon the Board’s

“lack of authority or jurisdiction to determine consideration to correct an unfair, unjust,

unconstitutional existing law – discriminating age, discriminating marriage duration, and

failure to insure equal benefits for surviving spouse be same as employee.” Although

she appears to concede that the Board correctly construed the relevant statute as

requiring termination of her survivor annuity benefits since she remarried prior to

reaching the age of fifty-five, she argues that the Board should have “adjusted” the law

so that OPM could continue her benefits regardless. As support, she first maintains that

OPM “overlooked or ignored” her request to revisit and revise 5 U.S.C. §§

8341(b)(3)(B), (k)(1) and 5 C.F.R. § 831.644(a)(2), instead dismissing her case as “the

law is the law.” Further, Busby argues that the Board wrongly failed to consider her

constitutional arguments based upon “[t]heir lack of authority or jurisdiction.” She asks

that this court “take immediate action on my case due to current discrimination and

unfairness” and states that her “purpose for this petition is to change the law.” Finally,

Busby argues that the Board’s decision was wrong due to “[n]egligence” since OPM did

not have the law “adjusted to a reasonable mandate for their employees and their




05-3257                                      3
spouses before it became effective.” Busby requests that we give her immediate relief

and “obtain Congress/Senate assistance in changing this unfair law.”

       OPM responds that the administrative judge’s findings are well-supported by

substantial evidence and should be upheld. OPM argues that Busby failed to establish

in her petition that the Board overlooked her arguments, and indeed, that the Board did

understand and consider her arguments, and simply concluded that OPM reached the

correct decision. Second, OPM responds that neither the Board nor this court has the

authority to change the law. Finally, OPM responds that Busby failed to prove or indeed

offer any support at all for her contention that the Board’s decision was negligent.

       Section 8341(b)(3)(B) of Title 5 of the United States Code provides that except

for widows or widowers who were married for at least thirty years as provided under

§ 8341(k)(1) of the same title, the survivor annuity benefits terminate on the last day of

the month before the widow or widower “remarries before becoming 55 years of age.”

The regulatory language relevant to the statutory provision in 5 C.F.R. § 831.644(a)(2)

is essentially identical to that set forth in the statute. In this case, Busby remarried

before age fifty-five and was not married to her first husband for at least thirty years.

Therefore, we first find that the administrative judge did not err in holding that under the

relevant statutory and regulatory provisions, OPM properly terminated Busby’s survivor

annuity benefits as of the date of her remarriage.

       Second, because the Board lacks authority to change a federal statute, we reject

Busby’s argument that the Board erred in failing to “correct an unfair, unjust,

unconstitutional existing law.” Further, like OPM and the Board, this court lacks the

power and authority to modify a federal statute. Busby’s arguments that the law should




05-3257                                      4
be changed “must be directed to Congress, not to the courts.” Briggs v. MSPB, 331

F.3d 1307, 1318 (Fed. Cir. 2003); Fed. Commc’n Comm’n v. Beach Commc’n, 508 U.S.

307, 313-314 (1993).

       Finally, in regard to Busby’s argument that the administrative judge erred in

concluding that it lacked authority to determine the constitutionality of federal statutes,

we recognize “the Board’s consistent refusal to pass on the constitutionality of

legislation.”   Briggs, 331 F.3d at 1312; see, e.g., Bayly v. Office of Pers. Mgmt., 42

M.S.P.R. 524, 525-26 (1990); Malone v. Dep’t of Justice, 14 M.S.P.R. 403, 406 (1983)

(citing Montana Chapter of Ass’n of Civilian Technicians, Inc. v. Young, 514 F.2d 1165,

1167 (9th Cir. 1975) in support of its finding that “it is well settled that administrative

agencies are without authority to determine the constitutionality of statutes”). We thus

decline to overturn the Board’s decision on solely this basis.

       Moreover, to the extent that Busby is raising the same issue in her petition for

review to this court, we reject her arguments here. Busby appears to claim the statute

is unconstitutional because it discriminates against her on the basis of age, marriage

duration, and being the surviving spouse instead of the employee. First, “age is not a

suspect classification under the Equal Protection Clause;” Gregory v. Ashcroft, 501 U.S.

452, 470 (1991), neither is marriage duration nor spousal survivorship. As “[h]eightened

scrutiny is only applicable when the law’s classification is drawn along suspect or quasi-

suspect lines, such as race, or when the law impinges on a fundamental right,” we apply

rational basis review in this case. Briggs, 331 F.3d at 1317. “On a rational basis

review, a classification bears a strong presumption of validity, and the burden of

persuasion is on a challenger to show the absence of a rational basis.” Id. at 1318.




05-3257                                      5
       Here, Busby has failed to show that the relevant statute does not rest on a

rational basis.   Indeed, Busby appears to rest her claim solely on the unsupported

accusations that the statute is “unjust,” “unfair,” and “discriminat[ory]”. We instead find

that the lines drawn by Congress based upon the age of the surviving spouse and the

duration of the marriage have a conceivable rational basis. “In our rational basis inquiry

we may look beyond the evidence and empirical data and rationally speculate what

might have motivated Congress to make the choices it made.” Id.

       We find that the Board’s decision affirming the OPM decision terminating Busby’s

survival annuity benefits was in accordance with law and accordingly, the order of the

Board is affirmed.




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