[00:00:03] Speaker 01: All rise. [00:00:08] Speaker 02: The United States Court of Appeals to the Federal Circuit is now open in our session. [00:00:13] Speaker 02: I'll take the United States in our report. [00:00:15] Speaker 03: Please be seated. [00:00:18] Speaker 03: We have four cases today. [00:00:20] Speaker 03: And we will begin with number 161365, Becker against OPM. [00:00:32] Speaker 03: Is that? [00:00:34] Speaker 02: Yes, you're on it. [00:00:37] Speaker 02: May I begin? [00:00:38] Speaker 03: Yes, please. [00:00:39] Speaker 02: May it please the court? [00:00:40] Speaker 02: Janet Knapp appearing on behalf of Amanda Becker. [00:00:42] Speaker 02: We are petitioner in this matter. [00:00:44] Speaker 02: I will be speaking for 13 minutes and reserve two minutes for rebuttal. [00:00:49] Speaker 02: The standard of review here is deferential. [00:00:52] Speaker 02: Petitioner understands that. [00:00:53] Speaker 02: The court must affirm the decision of the Merit Systems Protection Board unless it was arbitrary, capricious, and an abuse of discretion or otherwise not in accordance with the law, [00:01:04] Speaker 02: if it was obtained without appropriately following the requisite procedures, or if it's unsupported by substantial evidence. [00:01:12] Speaker 02: Petitioner here believes that the decision was arbitrary, capricious, and an abuse of discretion in that the court failed to consider an important aspect of the case, which, as I will indicate later and as indicated in my pleadings, is the United States Supreme Court decision in overfill. [00:01:32] Speaker 03: I don't know if it makes any difference. [00:01:34] Speaker 03: I guess I had understood your argument to be that not so much arbitrary and capricious or abusive discretion, but contrary to law, namely the Fifth Amendment, which the administrative judge said, I don't get to decide that because as an agency, we don't get to declare a statute unconstitutional. [00:01:55] Speaker 03: So you're making your constitutional argument here in court for the first time. [00:02:00] Speaker 02: That is true. [00:02:01] Speaker 02: That is true. [00:02:02] Speaker 02: And I guess that is part of the fail to consider an important aspect of the case. [00:02:07] Speaker 02: And that is that she was denied, that petition was denied her constitutional rights because the court refused to rule on the statute. [00:02:15] Speaker 02: But I understand that the court acted within its authority, within its jurisdiction. [00:02:21] Speaker 02: Because had the court been able to rule [00:02:25] Speaker 03: The administrative, the board you mean? [00:02:27] Speaker 02: Yeah, had Judge Brandenburg been able to rule on this issue, I think she would have. [00:02:33] Speaker 00: The testimony... The MSP didn't fail to consider it, it just didn't have that authority. [00:02:40] Speaker 00: Yes, that's what... So let's hear your argument on the constitutional issue. [00:02:44] Speaker 02: Okay. [00:02:46] Speaker 02: Every law is based on a reason or alleged reason for its passage. [00:02:51] Speaker 02: The nine month rule was passed to prevent sham marriages. [00:02:55] Speaker 02: So you can either have to marry nine months, have to have a child in common, or you have to have an accident in order to supplant the rule. [00:03:04] Speaker 02: We don't have an accident here because his death, while accidental and in the course of an experimental treatment, or an aggressive treatment actually, was more so, it was an accident that he was not expected to die, but was considered an accident under the law. [00:03:20] Speaker 00: The government says that the statute that's in question here didn't impede either the right to marry or not marry or the right to procreate or not procreate and therefore those fundamental rights are not impacted. [00:03:36] Speaker 00: The statute simply addresses the financial consequences of a status of marriage. [00:03:45] Speaker 00: What's wrong with that argument? [00:03:47] Speaker 02: Well the statute when [00:03:50] Speaker 02: It does not impair, it does not prevent marriages like the same-sex marriages that were allowed in Oberfeld. [00:04:00] Speaker 02: That's clear. [00:04:00] Speaker 02: It doesn't force someone to procreate or not procreate. [00:04:04] Speaker 02: Our position is that it infringes on the right because Oberfeld, when you read the basis for Oberfeld, it's not based on procreation because in a same-sex couple you're not going to have [00:04:20] Speaker 02: genetic material from both people in creating a child. [00:04:25] Speaker 03: Can I frame the question this way? [00:04:28] Speaker 03: Go back to, is it 1975, Weinberger against Salfi is on its facts closer than anything else. [00:04:38] Speaker 03: And the court there said, admittedly things have happened since 1975, but the court there [00:04:46] Speaker 03: addressed essentially the same nine month rule with a kind of exception for, for children and said, even though we have said in various cases, Stanley against Illinois, Lafleur, that there are fundamental rights kind of in the picture here having to do with marriage and family matters. [00:05:07] Speaker 03: When the question is congressional definition of [00:05:12] Speaker 03: the circumstances in which government money would be paid out. [00:05:18] Speaker 03: We're not going to do a kind of strict scrutiny fundamental rights analysis. [00:05:24] Speaker 03: And then it proceeded to explain why, even though admittedly the categories, the nine month rule and children were admittedly imprecise in both directions as to sham marriages and so on, nevertheless, [00:05:41] Speaker 03: This is a kind of insurance scheme, and insurance uses imprecise rules. [00:05:47] Speaker 03: So why is this different from that? [00:05:50] Speaker 03: Is the standard of review different, so we no longer get to do a kind of rational basis review, or what? [00:05:57] Speaker 02: The standard review is the same. [00:06:00] Speaker 02: It is a deferential standard of review. [00:06:03] Speaker 02: It's a lenient standard of review, and it is the rational basis test. [00:06:07] Speaker 02: Quite honestly, we would not have brought this issue without the decision in Oberfeld versus Hodges. [00:06:15] Speaker 02: And the reason for that is that case recognized that it's not just procreation, that it's also about a safety net, and it's about security. [00:06:28] Speaker 02: And that's part of the social order. [00:06:30] Speaker 02: That is the underlying basis for bringing this case. [00:06:34] Speaker 02: As to the rational basis test, [00:06:38] Speaker 02: In 1974, I believe it was, well, pre April 9th of 1974, it was two years. [00:06:45] Speaker 02: And then it went to one year after 4974. [00:06:48] Speaker 02: And then, and I think it was 85, 5785, it went to nine months. [00:06:55] Speaker 02: There is nothing that, it's arbitrary. [00:06:59] Speaker 03: Well, arbitrary in the sense in which picking any single number is going to be arbitrary. [00:07:04] Speaker 03: But not arbitrary in the sense that it is arbitrary to pick a given number. [00:07:11] Speaker 03: And the Supreme Court expressly talked about that in Salafi and said, there are going to be sham marriages that are longer than nine months. [00:07:20] Speaker 03: There are going to be perfectly non sham marriages that are less than nine months. [00:07:24] Speaker 03: But the alternative to a kind of nine month rule is administratively costly inquiry into [00:07:34] Speaker 03: the bona fides of particular marriages. [00:07:36] Speaker 03: And in this world, proxy rules that are undisputedly imprecise are reasonable. [00:07:46] Speaker 02: I understand what the Court is saying. [00:07:48] Speaker 02: But here, when you look at the language that was used in Oberfeld, it talks about the safety net, and it talks about [00:08:04] Speaker 02: It talks about financial security and the benefits of marriage in regard to financial security, and that people marry for reasons other than to procreate. [00:08:16] Speaker 02: They marry to protect themselves. [00:08:19] Speaker 02: They marry to get tax benefits. [00:08:21] Speaker 02: There are a myriad of benefits that the state offers and the federal government offers, and a lot of those are based on marriage. [00:08:28] Speaker 02: And that, I think, is the differentiation. [00:08:31] Speaker 02: It is a different day [00:08:33] Speaker 02: Because of the decision in Oberfeld, that is basically our position. [00:08:40] Speaker 02: And because of that, everything needs to be reexamined. [00:08:43] Speaker 02: Because there is no... I understand that the legislators can pick a number out of the sky, and I understand that. [00:08:56] Speaker 02: But Oberfeld specifically looks at finances and safety [00:09:02] Speaker 02: and creating a financial safety net for someone that another person loves and wants to be with. [00:09:11] Speaker 02: And that way, this does impair the marriage. [00:09:16] Speaker 02: The last thing Todd Mayberry wanted to do was die at 41. [00:09:22] Speaker 02: Last thing in the world. [00:09:22] Speaker 02: He married the love of his life. [00:09:25] Speaker 02: And he married her. [00:09:26] Speaker 02: He could have married her sooner. [00:09:29] Speaker 02: He married her when his test results came back good. [00:09:32] Speaker 02: So he wouldn't burden her. [00:09:37] Speaker 02: He wanted to provide for her. [00:09:39] Speaker 02: It was important for him as her husband to provide for her. [00:09:43] Speaker 02: Their marriage wasn't a sham. [00:09:47] Speaker 02: I understand what the court is saying, but their marriage was not a sham. [00:09:52] Speaker 03: All I'm doing is describing what Weinberger against Salfi explained at considerable [00:09:59] Speaker 03: length, and unless we had a basis for saying that's no longer the governing rule, it's a little hard to see what the difference is between that case and this one. [00:10:09] Speaker 02: The only basis I have is the decision in Oberfeld. [00:10:12] Speaker 02: Because I think a new leaf has turned. [00:10:16] Speaker 02: I think we're going to start seeing a lot of litigation over matters like that because of that decision. [00:10:23] Speaker 02: Because, again, marriage is more than just appropriation. [00:10:27] Speaker 03: Can I ask you a [00:10:28] Speaker 03: question about the discovery issue, and forgive me if I should remember this from the brief, but when you sought discovery from OPM about whether OPM had waived the nine month rule in other circumstances, did you have some evidentiary basis that you presented to think that OPM had in fact done so, or was it a [00:10:58] Speaker 03: Kind of an open-ended request we would like to know. [00:11:00] Speaker 03: We don't have a reason to think you have, but we would like to know. [00:11:05] Speaker 02: Well, we had no inside information that they had such information. [00:11:11] Speaker 02: But the individual who did the hearing believed that it had been done. [00:11:21] Speaker 02: But he had heard that it had been done in the past. [00:11:27] Speaker 02: But it wasn't something that we could verify. [00:11:29] Speaker 00: When you say he had heard, who were you referring to? [00:11:32] Speaker 02: I'm sorry. [00:11:33] Speaker 02: Todd Flood is the managing partner. [00:11:34] Speaker 02: Todd Flood did the hearing in Chicago with Judge Brandenburg. [00:11:39] Speaker 03: Ms. [00:11:39] Speaker 03: Becker's counsel. [00:11:40] Speaker 02: Yes. [00:11:41] Speaker 02: He is the managing partner of my firm. [00:11:43] Speaker 02: And at that point, he was Ms. [00:11:44] Speaker 02: Becker's counsel. [00:11:47] Speaker 00: But he did not have any evidence that there had been sort of discriminatory application of this statute. [00:11:55] Speaker 02: We were trying to get evidence. [00:11:56] Speaker 02: But we did not have any evidence to show that we could get that evidence, other than what we had been sort of told, just told by others. [00:12:11] Speaker 03: Would you like to reserve your rebuttal? [00:12:14] Speaker 03: I will. [00:12:14] Speaker 03: Thank you. [00:12:22] Speaker 03: Can you pronounce your name now? [00:12:24] Speaker 03: It's Onyema. [00:12:25] Speaker 03: Onyema. [00:12:26] Speaker 03: Please. [00:12:27] Speaker 01: May it please the court. [00:12:29] Speaker 01: A petitioner raises several constitutional challenges to the duration requirement and the exception for children. [00:12:34] Speaker 01: However, the Supreme Court in Salfi and this court in several decisions has considered and rejected similar challenges. [00:12:42] Speaker 01: Now, Ms. [00:12:42] Speaker 01: Becker challenges the duration requirement, arguing that it violates the due process clause of the Fifth Amendment. [00:12:48] Speaker 01: However, under Salfi, the court was clear that there is no heightened scrutiny that applies to the legislator or Congress's decision. [00:12:56] Speaker 01: of whether or not to subsidize the exercise of a fundamental right. [00:13:00] Speaker 01: And Oberfeld does not change that result. [00:13:03] Speaker 01: It does not involve federal subsidies. [00:13:07] Speaker 01: Instead, it questions whether or not same sex couples have the right to marry. [00:13:10] Speaker 01: The court did discuss a number of reasons why a same sex couple would want to get married and did note that there are sometimes benefits that attach. [00:13:18] Speaker 01: However, ultimately, that is a separate question as to why a couple may choose to marry. [00:13:24] Speaker 01: It's separate and distinct from whether or not Congress would have a legitimate basis or a legitimate interest in trying to ferret out sham marriages for purposes of who should be able to receive federal subsidies or not. [00:13:38] Speaker 01: And the Supreme Court over time has made that clear in other cases, for example, the Reagan case as well, noting that they're not required to subsidize the exercise of a fundamental right [00:13:49] Speaker 01: And that requirement is not subject to strict scrutiny. [00:13:53] Speaker 03: Selfie talked about the non-contractual nature of the benefit. [00:14:02] Speaker 03: What to make of that for purposes of applying to this case? [00:14:08] Speaker 01: Certainly. [00:14:09] Speaker 01: Well, the Supreme Court in Selfie is essentially stating that it is subject to a due process review, as opposed to, for example, a breach of contract claim. [00:14:18] Speaker 01: I know the petitioner had raised [00:14:20] Speaker 01: in terms of trying to distinguish SELFIE, noting that I believe there is the McNeil case where that distinguished between non-contractual benefits and contractual benefits, and that was a jurisdictional question as to whether the court or federal claims could consider the denial of benefits or whether that was a constitutional issue. [00:14:37] Speaker 01: So SELFIE simply states in that context that if an individual is denied a benefit [00:14:43] Speaker 01: then it is a due process analysis. [00:14:45] Speaker 01: However, without there being an infringement on a fundamental right or without it involving a classification across suspect lines, the analysis is conducted under a rational basis review. [00:14:57] Speaker 03: If I'm remembering right, the post-Selfie case in a different context, Ling against somebody or other, said we're going to stick with rational basis if, even though it was money, [00:15:13] Speaker 03: right, government benefit. [00:15:15] Speaker 03: If we don't see any reasonable likelihood of a direct and substantial impairment of the underlying fundamental right there, kind of right of association, here would be other rights. [00:15:32] Speaker 03: How do we determine in this case whether the denial of the survivor benefits has a direct or substantial effect? [00:15:41] Speaker 03: on the choice to marry, choice whether to have children. [00:15:45] Speaker 01: Certainly, Your Honor. [00:15:46] Speaker 01: And I think the Ling case is very similar to the Sablaki decision as well, where they're the Wisconsin legislator prohibited individuals who had not paid child support to get married without getting court approval first. [00:15:58] Speaker 01: And so I think the question becomes, is there enough of an impairment or a curtailment of the ability to actually exercise the right? [00:16:07] Speaker 01: So are there a number of loopholes, for example, [00:16:10] Speaker 01: petitioner must jump through before they can actually exercise their right to marry. [00:16:15] Speaker 01: And that could be a potential infringement on the right. [00:16:18] Speaker 01: However, here the petitioner and others that are similarly situated are free to choose whether or not they want to get married. [00:16:24] Speaker 01: They're free to choose whether they want to procreate. [00:16:26] Speaker 01: The only question is whether, on the back end, the federal government is going to be subsidizing their ability to exercise that right. [00:16:33] Speaker 01: So there would need to be some sort of infringement on the actual underlying right, which has not occurred here. [00:16:40] Speaker 01: Briefly as well, Ms. [00:16:42] Speaker 01: Becker challenges the exception for children. [00:16:47] Speaker 01: And the legislator hasn't provided any explanation for why there is that exception. [00:16:53] Speaker 01: However, in selfie, the Supreme Court noted that there could be a conceivable basis for having that exception. [00:17:00] Speaker 01: And that would be the indication that a couple would be more likely to not engage in a sham marriage if they were willing to have children. [00:17:09] Speaker 01: And so here again, [00:17:10] Speaker 01: The petitioner cannot meet her burden to show that the statute is invalid, applying a rational basis analysis. [00:17:17] Speaker 00: That exception really doesn't apply here. [00:17:19] Speaker 00: There are no children involved. [00:17:21] Speaker 01: That's correct. [00:17:22] Speaker 01: The petitioner argues that it doesn't apply, but she does argue that there are distinctions that are being made between couples that choose to have children and don't, and that it creates a due process issue. [00:17:34] Speaker 01: But I would agree that it's not relevant for the court's analysis. [00:17:38] Speaker 03: If OPM had been engaged in a practice of disregarding, waiving this rule, would that be a basis for a claim here? [00:17:54] Speaker 01: Respectfully, it would not, Your Honor. [00:17:56] Speaker 01: Because ultimately, the board is required to determine whether or not OPM followed the statute. [00:18:02] Speaker 01: And there seems to be no dispute that Ms. [00:18:04] Speaker 01: Becker did not meet the statutory requirements [00:18:07] Speaker 01: So the fact that OPM may have failed to follow the statute in other instances would not serve as some sort of basis for allowing Ms. [00:18:18] Speaker 01: Becker to claim that she should be able to get the annuity in this case. [00:18:23] Speaker 00: Wouldn't it provide a basis for her to argue that the agency is applying the law arbitrarily? [00:18:30] Speaker 01: Well, in terms of the jurisdiction of the board, I mean, the board could consider whether or not the application of a statute is done in a constitutional manner. [00:18:39] Speaker 01: But the board itself still is bound by what the statute says and ensuring that it's being applied in a constitutional manner. [00:18:47] Speaker 01: So I would say that that would not be the case. [00:18:52] Speaker 01: If the court has no further questions, we respectfully request that the court affirm. [00:18:56] Speaker 01: Thank you. [00:18:57] Speaker 01: Thank you. [00:19:06] Speaker 02: I'll be very brief, if you're honest. [00:19:10] Speaker 02: I think there was a direct and substantial impairment when you look at the language in Overfell. [00:19:14] Speaker 02: Because again, Overfell talks about the financial security and marriage as a financial security safety net for people. [00:19:24] Speaker 02: And that's what happened here. [00:19:26] Speaker 02: As to the issue of children in common, there is a right not to procreate. [00:19:36] Speaker 02: as well as a right to procreate. [00:19:38] Speaker 02: And in essence, Ms. [00:19:39] Speaker 02: Becker is being punished for not procreating. [00:19:44] Speaker 02: I will say that the record shows that Mr. Mayberry had talked to the doctor, Dr. Mary Volpel, about whether he should harvest his sperm so he could perhaps give Ms. [00:20:01] Speaker 02: Becker a child. [00:20:04] Speaker 02: But he thought he was going to live. [00:20:07] Speaker 02: Bottom line is he thought he was going to live. [00:20:11] Speaker 02: As to the discovery issue, if OPM isn't following their mandate, that's not a case that would in all likelihood get to the Merit System Protection Board. [00:20:25] Speaker 02: If OPM does not file their mandate, then they are violating their responsibility to apply the statute in an even-handed manner. [00:20:37] Speaker 02: And that is something that we should be able to challenge if we had access to that information. [00:20:42] Speaker 02: And that would be presented. [00:20:44] Speaker 02: And then we would be arguing, probably arguing again before this court, because the administrative court would follow the statute, as is its responsibility. [00:20:53] Speaker 02: And we would again be challenging it before this court. [00:20:56] Speaker 02: Thank you. [00:20:57] Speaker 02: Thank you very much. [00:20:59] Speaker 02: The case is submitted.