Dickey v. Office of Personnel Management , 419 F.3d 1336 ( 2005 )

United States Court of Appeals for the Federal Circuit
04-3391
YVONNE J. DICKEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Karl W. Carter, Jr., of Washington, DC, argued for petitioner.
William K. Olivier, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
Brian M. Simkin, Assistant Director. Of counsel on the brief was Earl A. Sanders,
Special Counsel, Office of General Counsel, Office of Personnel Management, of
Washington, DC.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
04-3391
YVONNE J. DICKEY,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
________________________
DECIDED: August 17, 2005
________________________
Before MAYER, GAJARSA, and DYK, Circuit Judges.
GAJARSA, Circuit Judge.
Yvonne J. Dickey ("Ms. Dickey") appeals the final decision of the Merit Systems
Protection Board ("MSPB") affirming the Office of Personnel Management's ("OPM")
decision denying her claim to a spousal survivor annuity. Ms. Dickey asserts that since
she is the common-law widow of James L. Dickey ("Mr. Dickey"), a former government
employee, she is entitled to survivor annuity benefits as Mr. Dickey's surviving spouse.
OPM denied Ms. Dickey's claim based on its finding that she had failed to establish that
she was married to Mr. Dickey. Dickey v. Office of Pers. Mgmt., No. DC-0831-04-0230-
I-1 (May 12, 2004). Because the MSPB committed legal error in relying on the alleged
separation of Mr. and Ms. Dickey to reach its determination that the two were not
married at the time of Mr. Dickey's death, we vacate and remand the case to the MSPB
for the application of the appropriate legal standard consistent with this opinion.
BACKGROUND
A. Facts
Mr. Dickey, a former employee of Voice of America, United States Information
Agency, Broadcasting Board of Governors, died without a will in the District of Columbia
on February 3, 2001. Mr. Dickey was employed by the federal government at the time
of his death.
Ms. Dickey alleges that she and Mr. Dickey were common-law husband and wife
from late April 1984, when they began living together at 71 G Street SW, Washington,
D.C., to the time of his death in February 2001.
Ms. Dickey provided various amount of evidence in support of her claim. First
she submitted affidavits and testimony from her cousin Rachel Dorsey, her friend Isaiah
Lewis, and her sister Annett Carmon (the "witnesses"). The witnesses attested to their
understanding that the couple lived together as husband and wife. In their affidavits,
dated April 2001, the witnesses stated that it was their understanding that Ms. Dickey
and Mr. Dickey had commenced living together as husband and wife in 1984, but that
the couple had separated in 1987.
Ms. Dickey testified that she rented a second residence, at 905 6th Street SW,
Washington, D.C., in late 1987, so that her son, who was returning home from college,
could live with her. She claimed that the 71 G Street residence in which she and
Mr. Dickey had been living together was not big enough to accommodate both them and
her son, so she rented another apartment. She stated that she, Mr. Dickey, and her son
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stayed at 905 6th Street during the week, and that she and Mr. Dickey stayed at 71 G
Street on weekends, when her son was not with them.
Ms. Dickey's testimony concerning the nature of her relationship with Mr. Dickey
after she rented the 6th Street apartment was called into question by the affidavits of
her witnesses. In 2001, the witnesses stated in their affidavits that the couple had
separated in 1987. However, at the hearing before the Administrative Judge ("AJ"), all
three witnesses recanted their testimony that the couple had separated in 1987, and
asserted that the leasing of a second residence was precipitated by Ms. Dickey's son
coming to live with her and the need for more space. The AJ found that this convenient
change of stories undermined the credibility of these witnesses.
To further demonstrate that she was the common-law wife of Mr. Dickey,
Ms. Dickey also provided her income tax returns for the years 1999 through 2001; she
filed as "married, filing separately" in 1999 and 2000, and as "single" in 2001, after
Mr. Dickey's death.
Ms. Dickey also provided copies of Mr. Dickey's health plan enrollment form for
1994, on which he enrolled Ms. Dickey as his wife. This is the only document in the
record on which Mr. Dickey indicated that Ms. Dickey was his wife. It is worth noting,
however, that in this document Mr. Dickey also declared himself to be unmarried.
Finally, Ms. Dickey provided a copy of a settlement agreement she reached with
Mr. Dickey's daughter, Nakilah, during a 2003 suit in federal district court to establish
her entitlement as his widow to Mr. Dickey's federal life insurance proceeds. Pursuant
to the agreement, Nakilah received the bulk of Mr. Dickey's life insurance proceeds and
waived her right to any of his survivor annuity benefits.
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B. The Proceedings Below
Ms. Dickey applied to OPM for death benefits as Mr. Dickey's surviving widow,
and her claim was initially accepted and processed by OPM. In addition, Ms. Dickey
applied for and received Mr. Dickey's unpaid compensation from his employing agency
based on her status as Mr. Dickey's common-law widow. In acknowledging Ms. Dickey
as the common-law widow of Mr. Dickey, the Deputy General Counsel of the
Broadcasting Board of Governors stated that the agency was persuaded by the
settlement agreement Ms. Dickey reached with Nakilah and by the three affidavits
provided by Ms. Dickey attesting to the Dickeys' common-law marriage.
OPM subsequently suspended its payment of benefits to Ms. Dickey based on
information that indicated that she was not Mr. Dickey's common-law wife at the time of
his death. In its reconsideration decision, OPM noted that in December of 1986, when
Ms. Dickey filled out an application for retirement from federal service effective February
1, 1987, she stated that she was not married. She also listed her name as Yvonne
Jean Robinson, gave her address as 5609 Suitland Road, Suitland, MD, and elected a
life annuity rather than a reduced annuity that would have provided a survivor annuity
for her spouse. The AJ found this to be the most probative evidence concerning
Ms. Dickey's marital status because the document was prepared before Mr. Dickey's
death and not in anticipation of litigation. The AJ also noted that had Ms. Dickey
declared herself to be married, she would have been required to either select a reduced
annuity for her husband or provide a signed waiver from Mr. Dickey authorizing her to
elect a life-only annuity.
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The AJ was also influenced by the fact that Ms. Dickey had not provided any of
the documentary evidence that OPM had requested and that could, in OPM's view,
corroborate cohabitation as husband and wife. Specifically, Ms. Dickey did not
demonstrate joint property ownership, joint bank accounts, joint leases, joint loans, joint
utility bills, joint insurance policies, joint credit cards, or the like, despite the fact that
Ms. Dickey alleges that she had lived with Mr. Dickey for seventeen years.
On the basis of this evidence, the AJ found that Ms. Dickey had failed to
establish that she was the common-law widow of Mr. Dickey. Ms. Dickey did not file a
petition of review of the initial decision of the AJ. Therefore, after 35 days, the initial
decision became the final decision of the MSPB pursuant to 5 C.F.R. § 1201.113.
Ms. Dickey now petitions this court for review. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) (2000).
DISCUSSION
A. Standard of Review
Congress has expressly limited the scope of our review in an appeal from the
MSPB. Specifically, we must affirm a decision of the MSPB unless it was "(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." 5 U.S.C. § 7703(c) (2000). Hairston v. Office
of Pers. Mgmt., 318 F.3d 1127, 1130 (Fed. Cir. 2003). "Substantial evidence" is defined
as "such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
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B. Common-law Marriage Under the Law of the District of Columbia
In determining whether a common-law marriage existed, we must apply the laws
of the state where the government employee had a permanent home when he or she
died, in this case, the District of Columbia. The District of Columbia has long
recognized common-law marriages. Hoage v. Murch Bros. Constr. Co., 50 F.2d 983(D.C. Cir. 1931). The elements of common-law marriage in the District of Columbia are
an express mutual agreement, which must be in words of the present tense, followed by
cohabitation as husband and wife. East v. East, 536 A.2d 1103, 1105 (D.C. 1988). The
burden is on the proponent to prove, by a preponderance of the evidence, all of the
essential elements of a common-law marriage. United States Fid. & Guar. Co. v.
Britton, 269 F.2d 249, 252 (D.C. Cir. 1959).
Courts view with caution claims of common-law marriage. "Since ceremonial
marriage is readily available and provides unequivocal proof that the parties are
husband and wife, claims of common-law marriage should be closely scrutinized,
especially where one of the purported spouses is deceased and the survivor is
asserting such a claim to promote his financial interest." Coates v. Watts, 622 A.2d 25,
27 (D.C. 1993).
In order to constitute a common-law marriage, both spouses must intend and
expressly covenant to enter into a permanent relationship of husband and wife.
Cohabitation, even though continued and prolonged, without an express agreement to
enter into a permanent married state does not result in a common-law marriage,
irrespective of reputation. A couple's expressions to each other that they are husband
and wife can constitute mutual consent. See Nat'l Union Fire Ins. Co. v. Britton, 187
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F. Supp. 359, 363-64 (D.D.C. 1960) (finding that expressions that the decedent was the
husband of the plaintiff, and she his wife, constituted mutual agreement in words of the
present tense to be husband and wife). Although "the best evidence of the exchange of
marriage consent between the parties would come from those who were personally
present when they mutually agreed to take each other as husband and wife . . . a legal
marriage may be established . . . by what is called habit or repute." Travers v.
Reinhardt, 205 U.S. 423, 436 (1907). Thus, like any other fact, existence of the
agreement to become husband and wife may be established by either direct or
circumstantial evidence. Nat'l Union Fire Ins., 187 F. Supp. at 363. However, an
inference of common-law marriage may be rebutted by direct evidence that there was
no present agreement. Marcus v. Dir., Office of Workers' Comp. Programs, U.S. Dep't
of Labor, 548 F.2d 1044, 1048 n.9 (D.C. Cir. 1976).
In Marcus, the United States Court of Appeals for the District of Columbia found
no common-law marriage between Joan Hawker and Alphonso Marcus where Marcus
presented only circumstantial evidence of a mutual agreement to marry. The evidence
included: a "congratulations card" sent to friends and signed as "Joan and Fonso,"
unsolicited letters addressed to "Joan Marcus" and a promissory note signed by "Joan
Hawker Marcus." Id. at 1049 n.13. The evidence rebutting the inference of marriage
consisted of testimony by witnesses that while living, Joan had referred to Marcus as
her "boyfriend," never acknowledged their marriage to relatives or employers, continued
to date other men, and even contemplated marriage with another man. Id. at 1049
n.14. Further evidence rebutting the inference of marriage included the facts that all of
her employment records had been in her maiden name. Id. Similarly, her INS card,
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death certificate, and statement of burial expenses referred only to her maiden name.
Id.In cases where one party is available as a witness, courts have typically required
more direct evidence of consent. The United States Court of Appeals for the District of
Columbia Circuit has held that "when one of the parties to the alleged marriage asserts
its existence but either denies or fails to say there was mutual consent or agreement,
then mere cohabitation, even though followed by reputation, will not justify an inference
of mutual consent or agreement to be married." United States Fid. & Guar. Co., 269
F.2d at 252. This holding has been interpreted to stand for the rather unremarkable
proposition that "[i]f at least one of the parties to the alleged marriage is available as a
witness," the living party must assert that there was mutual consent to be married.
Jackson v. Bowen, 690 F. Supp. 58, 59 (D.D.C. 1988).
Although formation of a common-law marriage is notoriously simple under the
laws of the District of Columbia, dissolution is relatively difficult. Once a common-law
marriage has been established, it can only be terminated by death or by a divorce
decree. Lee v. Lee, 201 A.2d 873, 875 (D.C. 1964).
C. Existence of a Common-law Marriage
In finding that Ms. Dickey had not established the existence of a common-law
marriage the AJ relied primarily on two determinations: (1) the evidence showed that
the Dickeys were no longer cohabiting after 1987; and (2) the testimony of the
witnesses and Ms. Dickey regarding the Dickeys' living arrangements after 1987 was
not credible. Neither of these determinations, however, addresses whether or not the
Dickeys entered into a common-law marriage in 1984.
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The AJ concluded that the witnesses' affidavits established that Mr. and Ms.
Dickey separated at some point in 1987. This circumstance is irrelevant to determining
whether Mr. and Ms. Dickey were married under the common-law. A separation does
not preclude the prior formation of a common-law marriage. Nat'l Union Fire Ins., 187
F. Supp. at 364 ("The fact that a married couple separates obviously does not affect the
validity of the prior marriage."). Once such a union has been formed, it is not nullified by
mere physical separation. The formalities and strictures of a formal divorce proceeding
are required to dissolve the marriage.
In light of the AJ’s heavy reliance on the 1987 separation throughout the opinion,
it seems clear that the AJ misapplied the legal standard of common-law marriage in the
District of Columbia. Disregarding the separation in 1987 and the Dickeys’ subsequent
living arrangements, the legal question before us is whether Mr. and Ms. Dickey entered
into a common-law marriage in 1984.
There is significant evidence in the record to support a finding of common-law
marriage. Ms. Dickey was available and testified to the mutual consent to her marriage
to Mr. Dickey. Both her testimony and the statements of the witnesses are evidence
that the couple began living together in April of 1984; that they lived together for a
period of three years, until Ms. Dickey acquired a second residence; that they
considered each other to be husband and wife; and that they held themselves out as
such in their community. These circumstances are sufficient to establish the formation
of a common-law marriage under the laws of the District of Columbia. Further,
Ms. Dickey twice filed federal income tax returns indicating that she was married. False
returns are subject to the penalty of perjury. 26 U.S.C. § 7207 (2000).
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However, there is also sufficient evidence to support a contrary finding. The AJ
concluded that the witnesses' testimony regarding the Dickeys' behavior in the period
post 1987 was not credible. The AJ further disbelieved Ms. Dickey regarding the
formation of a common-law marriage in 1984 on the basis that Ms. Dickey filled out her
Civil Service Retirement Death Benefits form in the name of Yvonne Jean Robinson in
1986. Additionally, the administrative judge could rely on the facts that Ms. Dickey kept
her previous name, that she elected a life-annuity for herself to the exclusion of a
survivor annuity for Mr. Dickey in 1986, and that Mr. Dickey neither designated her as a
beneficiary nor engaged in any joint enterprises with her.
Although we may not necessarily agree with the weight given to these findings,
the AJ was entitled to entirely disbelieve the witnesses in light of the fact that they
contradicted themselves. Similarly, the AJ was entitled to disbelieve Ms. Dickey
because her testimony contradicted her statement in the 1986 retirement application
that she was not married at the time. Ms. Dickey's 1986 statement creates an issue of
fact that must be resolved by the MSPB. See Checkpoint Sys., Inc. v. All-Tag Sec.
S.A., No. 04-1395, slip op. at 11 (Fed. Cir. June 20, 2005).
The AJ's holding that "any marriage-like relationship formed in 1984 ended in
1987," Dickey, slip op. 11, is clear legal error. As explained above, a common-law
marriage, if it existed, cannot be terminated merely by separation. The AJ’s heavy
reliance on the 1987 separation throughout the opinion, causing a misapplication of the
common-law marriage rule, requires the decision to be vacated and remanded.
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CONCLUSION
For the reasons stated above, we conclude that although there was substantial
evidence that could support a finding of common-law marriage, the evidence could also
support a contrary finding. Consequently, we remand this case to the Board to
determine whether there was a common-law marriage in 1984 by applying the correct
legal standard.
Accordingly, the decision of the MSPB is
VACATED AND REMANDED.
COSTS
Each party shall bear its own costs.
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