NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SUSAN G. HIRSCHFIELD,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2017-2607
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0845-17-0035-I-1.
______________________
Decided: February 12, 2018
______________________
SUSAN G. HIRSCHFIELD, Leominster, MA, pro se.
VERONICA NICOLE ONYEMA, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
CLAUDIA BURKE.
______________________
Before NEWMAN, MAYER, and STOLL, Circuit Judges.
2 HIRSCHFIELD v. OPM
PER CURIAM.
Susan G. Hirschfield appeals the final decision of the
Merit Systems Protection Board (“board”) which affirmed
an annuity overpayment calculation by the Office of
Personnel Management (“OPM”). See Hirschfield v. OPM,
No. PH-0845-17-0035-I-1, 2017 MSPB LEXIS 2853 (June
28, 2017) (“Board Decision”). We affirm.
I. BACKGROUND
Hirschfield was unmarried at the time of her retire-
ment from federal service in January 2012. On May 5,
2015, she married Jean Roberta Rizzo, and on February
17, 2016, she elected a partial survivor annuity payable to
Rizzo in the event of Hirschfield’s death.
In April 2016, OPM informed Hirschfield that it had
approved her survivor annuity request, but that her own
gross annuity payment would be reduced to reflect the
fact that she had elected a survivor annuity. OPM ex-
plained that Hirschfield’s annuity payment should have
been reduced as of March 2016, but erroneously had not
been reduced until April 2016. It further explained that
because the reduction in Hirschfield’s annuity had been
delayed for a month, she had received an overpayment of
$240.00. Although OPM stated that it planned to with-
hold the overpayment from Hirschfield’s July 2016 annui-
ty payment, it informed her that she had the right to
request reconsideration of its decision.
On April 27, 2016, Hirschfield sought reconsideration
from OPM. She did not specifically contest the alleged
overpayment of $240.00, but instead argued that OPM
should have omitted the months between January 2012
and June 2013 when it calculated the actuarial reduction
used to pay for her survivor annuity deposit. According to
Hirschfield, OPM should not have included the period
between January 2012 and June 2013 when calculating
her required deposit because prior to United States v.
HIRSCHFIELD v. OPM 3
Windsor, 570 U.S. 744, 133 S. Ct. 2676, 2691–96 (2013)
(“Windsor”), a federal employee could not elect a survivor
annuity for a same sex partner. On September 20, 2016,
OPM denied Hirschfield’s request for reconsideration,
stating that “[a]lthough [Windsor] ruled the Defense of
Marriage Act was unconstitutional, there is no provision
in law that allows OPM to omit the period of January 1,
2012 to June 25, 2013 from the computation of [an] elect-
ed survivor benefit.”
Hirschfield then appealed to the board. She asserted
that because same sex marriage was not recognized for
federal benefits purposes until June 2013, OPM’s decision
to include the months between January 2012 and June
2013 in calculating her required survivor annuity deposit
was “unjust, illegal, erroneous, and discriminatory.”
Board Decision, 2017 MSPB LEXIS 2853, at *9. On June
28, 2017, an administrative judge issued an initial deci-
sion concluding that OPM did not err when calculating
the actuarial reduction owed by Hirschfield as a result of
her survivor annuity election. Id. at *10–15. The admin-
istrative judge asserted that “if the period between
[Hirschfield’s] retirement and the Windsor decision [were]
excluded from calculation of the deposit . . . [she] would
receive a windfall at the expense of the retirement fund.”
Id. at *14.
Because Hirschfield did not petition the board for re-
view of the administrative judge’s decision, it became the
final decision of the board. See 5 C.F.R. § 1201.113.
Hirschfield then filed a timely appeal with this court. We
subsequently issued an order inviting the parties to
submit responses regarding whether this court could
properly exercise jurisdiction over Hirschfield’s appeal.
4 HIRSCHFIELD v. OPM
II. DISCUSSION
A. Jurisdiction
“Federal courts are not courts of general jurisdiction;
they have only the power that is authorized by Article III
of the Constitution and the statutes enacted by Congress
pursuant thereto.” Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986). Although the parties do
not contest our authority to consider this appeal, “every
federal appellate court has a special obligation to satisfy
itself . . . of its own jurisdiction.” Id. (citations and inter-
nal quotation marks omitted); see Diggs v. HUD, 670 F.3d
1353, 1355 (Fed. Cir. 2011) (explaining that “subject
matter jurisdiction cannot be conferred by waiver, estop-
pel, or consent”).
Our jurisdiction over appeals from the board is cir-
cumscribed by statute. See 5 U.S.C. § 7703(b); see also id.
§ 7702(a)(1). When an employee complains of a personnel
action appealable to the board and asserts that the action
was prompted, in whole or part, by sex discrimination
prohibited by 42 U.S.C. § 2000e-16, he or she must appeal
an adverse board decision to a federal district court rather
than this court. See Perry v. Merit Sys. Prot. Bd., – U.S. –,
137 S. Ct. 1975, 1988 (2017); Kloeckner v. Solis, 568 U.S.
41, 46–50 (2012).
Here, however, Hirschfield’s pro se filings are most
reasonably read not to assert a claim of unlawful sex
discrimination, but instead to assert that 5 U.S.C. § 8418,
the statute governing the calculation of a federal retiree’s
survivor annuity deposit, is unconstitutional because it
treats persons in same sex unions differently than per-
sons in opposite sex unions. Hirschfield’s argument is
predicated on Windsor, which held that a provision in the
Defense of Marriage Act (“DOMA”), defining a “‘mar-
riage’” as “a legal union between one man and one wom-
an,” 1 U.S.C. § 7, was unconstitutional because it
“violate[d] basic due process and equal protection princi-
HIRSCHFIELD v. OPM 5
ples applicable to the Federal Government.” 133 S. Ct. at
2693. Hirschfield’s argument before the board was that
OPM’s application of section 8418 did not “promote[]
equal rights” because when it calculated her required
survivor annuity deposit it included months when she
could not elect a survivor annuity for a same sex partner.
Gov’t App. 77; see also id. 78–80. In essence, Hirschfield’s
claim is that section 8418 is unconstitutional because it is
inconsistent with Windsor and violates the equal protec-
tion rights of federal retirees in same sex unions. See id.
70, 79–80.
We have authority to consider Hirschfield’s claim that
section 8418 is unconstitutional. See Elgin v. Dep’t of
Treasury, 567 U.S. 1, 17 (2012) (stating that “the Federal
Circuit, an Article III court,” was “fully competent to
adjudicate” a claim that the Military Selective Service
Act, 50 U.S.C. § 453, was unconstitutional because it
treats men and women differently); Becker v. OPM, 853
F.3d 1311, 1313 (Fed. Cir. 2017) (reviewing a petitioner’s
claim that a federal survivor benefits statute was uncon-
stitutional); Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,
1312 (Fed. Cir. 2003) (reviewing a federal employee’s
claim that the Hatch Act, which prohibits federal employ-
ees from running for elected office, “denied the constitu-
tional guarantee of equal protection”). We therefore turn
to the merits of Hirschfield’s appeal.
B. Equal Protection
The Due Process Clause of the Fifth Amendment in-
cludes equal protection components, and Fifth Amend-
ment equal protection claims are treated the same as
Fourteenth Amendment equal protection claims. See
Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)
(“While the Fifth Amendment contains no equal protec-
tion clause, it does forbid discrimination that is so unjus-
tifiable as to be violative of due process. This Court’s
approach to Fifth Amendment equal protection claims has
6 HIRSCHFIELD v. OPM
always been precisely the same as to equal protection
claims under the Fourteenth Amendment.” (citations and
internal quotation marks omitted)). “The liberty protect-
ed by the Fifth Amendment’s Due Process Clause contains
within it the prohibition against denying to any person
the equal protection of the laws.” Windsor, 133 S. Ct. at
2695.
A concern for unequal benefits and burdens animated
the Supreme Court’s decision in Windsor. The Court
focused on the fact that “[u]nder DOMA, same-sex mar-
ried couples have their lives burdened, by reason of gov-
ernment decree, in visible and public ways.” Id. at 2694.
For example, because DOMA defined a “‘marriage’” as “a
legal union between one man and one woman,” 1 U.S.C.
§ 7, it prevented persons in same sex unions from utilizing
the federal estate tax exemption for surviving spouses.
Windsor, 133 S. Ct. at 2683–84. It also prohibited persons
in same sex unions “from obtaining government
healthcare benefits they would otherwise receive” and
prevented “them from being buried together in veterans’
cemeteries.” Id. at 2694.
Here, however, Hirschfield fails to show that section
8418—the statute governing the calculation of the deposit
required when a federal employee enters into a post-
retirement marriage and elects a survivor annuity—
imposes unequal burdens on same sex couples. In perti-
nent part the statute provides:
An individual who makes [a survivor annuity
election for a post-retirement marriage] . . . shall
deposit into the [Retirement] Fund an amount de-
termined by [OPM] (as nearly as may be adminis-
tratively feasible) to reflect the amount by which
the annuity of such individual would have been
reduced if the election had been in effect since the
date of retirement.
5 U.S.C. § 8418(a)(1).
HIRSCHFIELD v. OPM 7
By its plain terms, section 8418 mandates that when
a federal employee enters into a post-retirement marriage
and elects a survivor benefit, he or she must pay a “depos-
it” equal to the amount that the employee’s own annuity
payments would have been reduced if the election had
been made at the time of retirement. This deposit is
calculated in the same way regardless of whether a retir-
ee elects a survivor benefit for a same sex spouse or an
opposite sex spouse. See id; see also id. § 8419(a)(1).
Hirschfield fails to show that she has suffered any
prejudice, in terms of the amount that she is required to
pay for the survivor benefit she elected for her spouse, by
virtue of the fact that DOMA prohibited the election of
survivor benefits for same sex partners in the period
between when she retired from the federal service and
when Windsor was decided. It is true that if Windsor had
been decided prior to Hirschfield’s retirement, she could
have elected a survivor benefit for a same sex spouse at
the time of her retirement. Importantly, however, if she
had made such an election, her own annuity payment
would have been reduced significantly. See 5 C.F.R.
§ 842.606. In this scenario, she would not have had to pay
a “deposit” under section 8418 because she would have
been receiving a reduced annuity payment every month
following her retirement. As it was, however, Hirschfield
collected an unreduced annuity payment in the months
following her retirement, and she therefore must now pay
a survivor benefit deposit “reflect[ing] the amount by
which [her] annuity . . . would have been reduced if the
election had been in effect since the date of retirement.” 5
U.S.C. § 8418(a)(1).
Hirschfield’s claim that she was somehow financially
penalized for her inability to elect a survivor annuity for a
same sex spouse prior to June 2013 ignores the “actuarial
realities” of the statutory scheme for federal survivor
benefits. Board Decision, 2017 MSPB LEXIS 2853, at
*14. She is required to pay a survivor benefit deposit now
8 HIRSCHFIELD v. OPM
not because section 8418 treats opposite sex couples
differently than same sex couples, but because she collect-
ed unreduced annuity payments after her retirement. See
id. (explaining that the purpose of the survivor annuity
deposit is “to compensate the retirement fund for the
period during which [a federal retiree] collected an unre-
duced annuity,” and that “if the period between [Hirsch-
field’s] retirement and the Windsor decision [were]
excluded from calculation of the deposit . . . [she] would
receive a windfall at the expense of the retirement fund”).
We reject, therefore, Hirschfield’s claim that section 8418
abridges her constitutional equal protection guarantee.
III. CONCLUSION
Accordingly, the decision of the Merit Systems Protec-
tion Board is affirmed.
AFFIRMED
COSTS
No costs.