Dunne v. Office of Personnel Management ( 2005 )


Menu:
  •                       NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    05-3271
    LEONORA N. DUNNE,
    Petitioner,
    v.
    OFFICE OF PERSONNEL MANAGEMENT,
    Respondent.
    ___________________________
    DECIDED: December 9, 2005
    ___________________________
    Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and DYK, Circuit
    Judge.
    PER CURIAM.
    Leonora N. Dunne (“Mrs. Dunne”) seeks review of the decision of the Merit
    Systems Protection Board (“Board”), upholding the decision of the Office of Personnel
    Management (“OPM”), denying her request for a survivor annuity. We affirm.
    BACKGROUND
    The facts of this case are undisputed. Mrs. Dunne married Brian Dunne (“Mr.
    Dunne”) on July 5, 2003. Mr. Dunne died of cancer thirty-eight days later, on August
    12, 2003. Mrs. Dunne applied for a survivor annuity from OPM based on Mr. Dunne’s
    thirty-four years of successful service under the Civil Service Retirement System
    (“CSRS”). OPM denied the annuity, finding that Mrs. Dunne’s thirty-eight-day marriage
    did not qualify her as a surviving widow under CSRS. OPM did, however, award Mrs.
    Dunne a one-time lump-sum payment of $97,057.30, representing the retirement
    contributions made to Mr. Dunne’s retirement fund. Mrs. Dunne appealed OPM’s denial
    of her annuity request to the Board.
    In an initial decision, the Administrative Judge (“AJ”) affirmed OPM’s decision to
    deny the survivor annuity.    The full Board denied review.      This petition for review
    followed. We have jurisdiction pursuant to 
    28 U.S.C. § 1295
    (a)(9).
    DISCUSSION
    We must affirm the Board’s decision unless it is arbitrary, capricious, an abuse of
    discretion, or otherwise not in accordance with law; obtained without procedures
    required by law, rule or regulation; or unsupported by substantial evidence. 
    5 U.S.C. § 7703
    (c) (2000); Butterbaugh v. Dep’t of Justice, 
    1336 F.3d 1332
    , 1336 (Fed. Cir. 2003).
    Mrs. Dunne does not dispute that under the “letter of the law,” she is not entitled
    to the survivor annuity. As the Board explained in its initial decision, 
    5 U.S.C. § 8341
    governs who is entitled to a survivor annuity. Under this statute, a spouse is entitled to
    a survivor annuity if she is a “widow” under section 8341(a)(1). To qualify as a “widow”
    under this section, the surviving spouse must have been married to the employee for “at
    least 9 months immediately before his death” or must be “the mother of issue by that
    marriage.” 
    5 U.S.C. § 8341
    (a)(1) (2000). The statute further provides that a surviving
    spouse will be deemed a “widow” under section 8341(a)(1) if the employee dies “within
    the applicable 9-month period” if “(1) the death of the employee or Member was
    accidental; or (2) the surviving spouse of such individual had been previously married to
    the individual and subsequently divorced, and the aggregate time married is at least 9
    months.” 
    5 U.S.C. § 8341
    (i) (2000). Mrs. Dunne does not qualify for the survivor
    annuity under any of these provisions: she was married to Mr. Dunne for under nine
    05-3271                                     2
    months; she and Mr. Dunne had no children; Mr. Dunne’s death does not qualify as
    “accidental” under the relevant regulation;1 and she was not previously married to Mr.
    Dunne. Accordingly, the Board, while sympathizing with Mrs. Dunne’s position, affirmed
    the OPM.
    Mrs. Dunne argues that this decision is unjust and not in accordance with the
    spirit of the law when one considers her relationship with Mr. Dunne. It is undisputed
    that she and Mr. Dunne were in a relationship for seven years prior to his death and that
    she “functioned as [Mr. Dunne’s] wife for many years prior to his death.” The Board
    found that Mrs. Dunne presented credible evidence that Mr. Dunne “intended for [her] to
    receive all of his benefits as a wife.” Nonetheless, the Board found that this was, at
    best, evidence of a common law marriage, and it was insufficient to qualify Mrs. Dunne
    for the survivor annuity under the statute. The Board correctly noted that although
    federal law controls the right to federal benefits resulting from familial relationships,
    state law applies to define such relationships. See Dickey v. Office of Pers. Mgmt., 
    419 F.3d 1336
    , 1339-40 (Fed. Cir. 2005); Payne v. Office of Pers. Mgmt., 
    42 M.S.P.R. 389
    ,
    393-94 (1989).    In this case, Maryland, the state where Mr. and Mrs. Dunne were
    domiciled, does not recognize common law marriages. Blaw-Knox Const. Equip. Co. v.
    Morris, 
    596 A.2d 679
    , 685 (Md. Ct. Spec. App. 1991) (citing Henderson v. Henderson,
    
    87 A.2d 403
     (Md. 1952)).       Accordingly, Mrs. Dunne does not qualify for a survivor
    1
    
    5 C.F.R. § 831.642
     describes the set of circumstances in which a death is
    considered accidental. The regulation specifically excludes death “[c]aused wholly or
    partially, directly, or indirectly, by disease or bodily or mental infirmity, or by medical or
    surgical treatment or diagnosis thereof.” 
    5 C.F.R. § 831.642
    (d)(1)(i) (2004).
    05-3271                                       3
    annuity based on the amount of time she was in a relationship with Mr. Dunne.
    Although the result here is harsh, we find no error in the Board’s decision.
    CONCLUSION
    For the foregoing reasons, the Board’s decision is affirmed.
    COSTS:
    No costs.
    05-3271                                     4
    

Document Info

Docket Number: 2005-3271

Judges: Michel, Friedman, Dyk

Filed Date: 12/9/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024