This Widow Does Not Meet the Legal Definition of ‘Widow’ for Federal Retirement Purposes

The widow of an FBI employee is ruled not eligible for a FERS annuity survivor’s benefit since the length of her marriage was less than 9 months at the time of her husband’s death.

In Becker v Office of Personnel Management (US CAFC No. 2016-1365, 4/7/17), the issue involved a surviving spouse who had been married to her husband less than the required amount of time for her to be eligible for a survivor annuity under the Federal Employees Retirement System (FERS). In this precedential decision, the federal appeals court sustained the decision of the Merit Systems Protection Board (MSPB), which had upheld the ruling by the Office of Personnel Management (OPM) that the widow would not receive survivor benefits.

Todd Mayberry worked for the Federal Bureau of Investigation (FBI) and was covered by the FERS retirement program. He made the necessary election for his new wife to receive benefits in the event of his death. As it happens when Mr. Mayberry died, the marriage was less than 9 months duration. (The decision does not mention how long they were married, presumably because it really does not matter as long as it was less than the 9 months.) Ms. Becker, the surviving spouse, applied to OPM for survivor benefits but was turned down. Under 5 USC section 8441(1) a widow is defined as having been married to the covered decedent for at least 9 months preceding his death, or is the mother of children resulting from the marriage. Ms. Becker met neither test; therefore OPM ruled her ineligible for a survivor annuity. (Opinion p. 2)

On appeal to the MSPB, Ms. Becker tried to get discovery as to whether OPM had ever waived the 9-month marriage requirement, and whether anyone explained this requirement to her late husband. The law judge denied these discovery requests and issued a decision upholding OPM’s determination. (p. 3)

Ms. Becker took her case to the appeals court, arguing that the law’s definition of “widow” was unconstitutional, and that MSPB erred in denying her discovery requests.

In its decision, the court notes that Ms. Becker does not contest she does not meet the definition of a widow under the law. As for her argument that the legal definition violates the 5th Amendment of the Constitution because “it interferes with the exercise of her fundamental rights to marry and procreate, and that it arbitrarily discriminates against widows who do not satisfy the nine-month requirement or the child-bearing requirement…” the court states, “We disagree.” (pp. 3-4) The court holds that the challenged legal provision “does not violate the Constitution.” (p. 4)

The court then rejects her argument that her discovery requests should have been granted by the MSPB, finding that without proof that there was an abuse of discretion that caused substantial harm affecting the outcome of her case. (p. 6) The court points out that Ms. Becker really did not have a basis for asking about prior waivers of the 9-month marriage rule, and even if there were any such instances, OPM is nevertheless required by law to apply the statutory mandate in reviewing Ms. Becker’s request.

Finally, the court found that whether Mr. Mayberry was sufficiently informed about the 9-month requirement “does not a basis for waiving those requirements.” (p. 7)

In short Ms. Becker will not receive a FERS survivor annuity.

Becker v. OPM 2016-1365

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.