Case: 22-1023 Document: 29 Page: 1 Filed: 05/12/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHELLE R. CARSON-POTTER,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1023
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2883, Judge William S. Green-
berg.
______________________
Decided: May 12, 2022
______________________
MAXWELL DOUGLAS KINMAN, Alexander, Webb, and
Kinman, Mason, OH, for claimant-appellant.
CATHARINE PARNELL, Civil Division, Commercial Liti-
gation Branch, United States Department of Justice,
Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
PATRICIA M. MCCARTHY; Y. KEN LEE, DEREK SCADDEN,
Case: 22-1023 Document: 29 Page: 2 Filed: 05/12/2022
2 CARSON-POTTER v. MCDONOUGH
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, DYK and PROST, Circuit
Judges.
MOORE, Chief Judge.
Michelle R. Carson-Potter appeals a memorandum de-
cision of the United States Court of Appeals for Veterans
Claims, which affirmed a Board of Veterans’ Appeals deci-
sion not to reinstate Mrs. Carson-Potter’s dependency and
indemnity compensation (DIC) benefits. Carson-Potter v.
McDonough, No. 20-2883, 2021 WL 3822020 (Vet. App.
Aug. 27, 2021). Because the Veterans Court’s decision is
not contrary to Mrs. Carson-Potter’s asserted equal protec-
tion rights under the Fifth Amendment, we affirm.
BACKGROUND
Mrs. Carson-Potter married Michael David Carson in
July 1985. Mr. Carson served in the Marine Corps from
July 1984 through April 1996. He died on June 19, 2018,
and had a 100 percent disability rating for at least the 10
years preceding his death. The Department of Veterans
Affairs (VA) then granted Mrs. Carson-Potter DIC benefits
as a surviving spouse. Mrs. Carson-Potter remarried at
age 49 on October 8, 2018. Consistent with 38 U.S.C.
§§ 101(3) and 103(d)(2)(B), the VA terminated her DIC ben-
efits because she remarried before age 57.
Mrs. Carson-Potter filed a notice of disagreement alleg-
ing that the VA’s termination of benefits discriminated
against her based on age. The VA upheld its termination
of DIC benefits, reasoning that Mrs. Carson-Potter was 49
when she remarried and was thus ineligible for DIC bene-
fits.
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CARSON-POTTER v. MCDONOUGH 3
Mrs. Carson-Potter appealed to the Board, which de-
nied the reinstatement of her DIC benefits. The Veterans
Court affirmed. Mrs. Carson-Potter appeals, arguing that
the statutory framework governing DIC benefits violates
her equal protection rights under the Fifth Amendment be-
cause it discriminates based on age. 1 We have jurisdiction
under 38 U.S.C. § 7292(c).
DISCUSSION
Under 38 U.S.C. § 7292(a), we may review a decision
by the Veterans Court with respect to “the validity of . . .
any statute or regulation . . . or any interpretation thereof
. . . that was relied on by the [Veterans] Court in making
the decision.” Except to the extent an appeal presents a
constitutional issue, we may not review the Veterans
Court’s application of law to the facts of a particular case.
38 U.S.C. § 7292(d)(2).
A veteran’s “surviving spouse” shall receive DIC bene-
fits. 38 U.S.C. § 1311(a)(1). In general, a person who re-
marries is not a “surviving spouse.” 38 U.S.C. § 101(3).
However, “remarriage after age 57 of [a] surviving spouse
of a veteran shall not bar the furnishing of [DIC] benefits.”
38 U.S.C. § 103(d)(2)(B).
The parties agree that because Mrs. Carson-Potter
challenges this statutory framework as unconstitutionally
discriminating based on age, rational-basis review applies.
Appellant’s Opening Br. 14–15; Respondent’s Br. 8–10.
Under rational-basis review, “a classification must be up-
held against [an] equal protection challenge if there is any
1 While there is no equal protection provision in the
Fifth Amendment, the Supreme Court’s “approach to Fifth
Amendment equal protection claims has always been pre-
cisely the same as to equal protection claims under the
Fourteenth Amendment.” Weinberger v. Wiesenfeld, 420
U.S. 636, 638 n.2 (1975).
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4 CARSON-POTTER v. MCDONOUGH
reasonably conceivable state of facts that could provide a
rational basis for the classification.” Almond Bros. Lumber
Co. v. United States, 721 F.3d 1320, 1328 (Fed. Cir. 2013)
(quoting Heller v. Doe, 509 U.S. 312, 320 (1993)). The chal-
lenger bears the burden of refuting every conceivable basis,
regardless of whether that basis is in the record. Id. We
will not set aside the government’s “distinctions among
classes of beneficiaries” to allocate funds “unless [it] is
clearly wrong” and “a display of arbitrary power,” “not an
exercise of judgment.” Bowen v. Owens, 476 U.S. 340, 345
(1986) (quoting Mathews v. De Castro, 429 U.S. 181, 185
(1976)).
Congress had a rational basis for allowing DIC benefits
to continue when a veteran’s spouse remarries after age 57.
First, as the government contends, older widows face
greater challenges to remaining in the work force and,
thus, are particularly dependent on DIC benefits to main-
tain their standard of living. See Respondent’s Br. 13
(quoting H.R. Rep. No. 107-472, at 9 (2002)). Thus, the
specter of losing DIC benefits would disproportionately dis-
incentivize older widows from remarrying. See id. at 12
(quoting 149 Cong. Rec. 24,327 (2003)). Second, at the time
Congress added the after-57 exception, the DIC benefits
program was the last federal survivorship benefits pro-
gram to not allow older widows to remarry and retain sur-
vivorship benefits. See H.R. Rep. No. 108-211, at 11–12
(2003). Finally, Congress drew the line at age 57 to balance
its limited resources and its objective of removing disincen-
tives to remarrying that disproportionately impact older
widows. Indeed, an earlier draft of the statute drew the
line at age 65 due to budgetary constraints, and committee
members acknowledged they preferred to draw the line at
55 but “could not do more at th[at] time.” See 148 Cong.
Rec. 8219 (2002); H.R. Rep. No. 107-472, at 19 (2002). To-
gether, these reasons provide a rational basis for the after-
57 exception to the termination of DIC benefits upon re-
marriage. See, e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S.
Case: 22-1023 Document: 29 Page: 5 Filed: 05/12/2022
CARSON-POTTER v. MCDONOUGH 5
307, 316 (1976) (rejecting argument that mandatory retire-
ment for police at 50 violates equal protection clause).
Mrs. Carson-Potter does not refute these bases. She
instead argues that there is no meaningful difference be-
tween a widow who remarries after 57 and one who remar-
ries before. See Appellant’s Opening Br. 16–17. But it is
not for us to reweigh Congress’ choices. Congress had a
rational basis for the line it drew to strike a balance be-
tween providing benefits and controlling its budget. See
Schweiker v. Wilson, 450 U.S. 221, 238 (1981) (“Congress
should have discretion in deciding how to expend neces-
sarily limited resources.”). Even if “the line drawn by Con-
gress [is] imperfect, it is nevertheless the rule that in a case
like this ‘perfection is by no means required.’” Vance v.
Bradley, 440 U.S. 93, 108 (1979) (quoting Phillips Chem.
Co. v. Dumas Sch. Dist., 361 U.S. 376, 385 (1960)) (holding
that mandatory retirement at 60 did not violate equal pro-
tection). Congress had a rational basis for allowing DIC
benefits to continue when a surviving spouse remarries af-
ter age 57 to the exclusion of others, thus we affirm.
AFFIRMED
COSTS
The parties shall bear their own costs.