Dunne v. Office of Personnel Management

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. § 8341governs 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.
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