                    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.
                                     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 “§ 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




04-3314                                      3
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




04-3314                                        4
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




04-3314                                       5
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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