New Valley Corp. v. Gilliam

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 1999 Decided October 12, 1999

No. 98-1369

New Valley Corporation,
Petitioner

v.

Doretha Gilliam, Widow of Leonard Gilliam,
Respondent

and

Director, Office of Workers' Compensation Programs,
U.S. Department of Labor

On Petition for Review of an Order of the
Benefits Review Board, U.S. Department of Labor

Michael D. Dobbs argued the cause and was on the brief
for petitioner New Valley Corporation.

 Judy L. Woodall argued the cause and was on the brief for
respondent Doretha Gilliam. Janet R. Dunlop, Counsel, U.S.
Department of Labor, entered an appearance.

Before: Wald, Silberman and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: In 1970, Leonard Gilliam injured his
back when he slipped and fell while delivering a candygram
for his employer, Western Union Telegraph Company, now
known as Petitioner New Valley Corporation. As a result, he
suffered a permanent and total disability, for which he re-
ceived workers' compensation until his death in 1995. New
Valley challenges the award of death benefits to his surviving
wife, arguing that she does not meet the statutory definition
of "widow" because, following his desertion of her and their
ten children, she rebuffed his attempts to return to the
marital home. Finding this argument meritless, we deny the
petition for review.

I.

This case turns on the definition of "widow" in the federal
Longshore and Harbor Workers' Compensation Act
("LHWCA"), 33 U.S.C. ss 901 et seq. (1982). Section 902(16)
of the LHWCA defines "widow or widower" as "only the
decedent's wife or husband living with or dependent for
support upon him or her at the time of his or her death; or
living apart for justifiable cause or by reason of his or her
desertion at such time." 33 U.S.C. s 902(16). The LHWCA
was made applicable to the District of Columbia by the 1928
District of Columbia Workers' Compensation Act, former
D.C. Code ss 36-501 et seq. (repealed 1979). Though now
repealed, the 1928 D.C. Act and the federal LHWCA still
govern claims arising from injuries that occurred before July
26, 1982. See Evans Financial Corp. v. Director, Office of
Workers' Compensation Programs, 161 F.3d 30, 32 n.1 (D.C.
Cir. 1998).

The Supreme Court first addressed the LHWCA's defini-
tion of widow in Thompson v. Lawson, 347 U.S. 334 (1954),

holding that legal marriage alone is insufficient to confer
eligibility for survivor benefits. Instead of "assessing the
marital conduct of the parties" under state domestic relations
law, courts must examine the facts of the relationship to
determine if there "is a conjugal nexus between the claimant
and the decedent subsisting at the time of the latter's death."
Id. at 336. Thompson affirmed the denial of benefits to the
claimant because, although legally married to the decedent at
the time of his death, she had made a "conscious choice to
terminate her prior conjugal relationship by embarking on
another permanent relationship." Id. at 337. The claimant's
conduct, the Court said, "severed the bond which was the
basis of her right to claim a death benefit as [decedent's]
statutory dependent." Id. Reasoning that "[t]he very prac-
tical considerations of this Compensation Act should not be
subordinated to the empty abstraction that once a wife has
been deserted, she always remains a deserted wife, no matter
what," the Court concluded that a conjugal nexus between the
decedent and his surviving spouse is a necessary prerequisite
to an award of death benefits under the Act.

Shortly after Thompson, this court, in Liberty Mutual
Insurance Co. v. Donovan, 218 F.2d 860 (D.C. Cir. 1955),
explained the conjugal nexus test as follows:

[T]he rule is now settled that to be entitled to an award
as a widow a woman must have continued to live as the
deserted wife of an employee who has deserted her;
there must be a bond in reality between husband and
wife in their relation to one another. The essential
ingredient in her claim is her real status, speaking
factually, in respect to the deceased, not the existing
legal formalities of the relationship.

Id. at 862.

With this legal framework in mind, we turn to the marriage
between Leonard and Doretha Gilliam. The parties do not
dispute that at the time of her husband's death, Mrs. Gilliam
was legally married to him but neither living with him nor
financially dependent upon him. Under the Act's definition of
widow, her eligibility for benefits therefore turns on whether

their estrangement at the time of her husband's death was
"for justifiable cause" or "by reason of his ... desertion." 33
U.S.C. s 902(16).

Following an evidentiary hearing, the Administrative Law
Judge made the following findings of fact, which the parties
do not dispute. Wed on October 31, 1949, the Gilliams
remained legally married until the husband's death some 46
years later. The couple had ten children. They lived in
Washington, D.C.

The ALJ found that shortly after Mr. Gilliam became
permanently disabled as a result of his 1970 work-related
injury, he chose to leave the marital home. Mrs. Gilliam
remained in the marital home, where she has resided ever
since. Mr. Gilliam provided no support for his wife and their
ten children despite her attempts to collect child support
through court proceedings. In 1977, Mr. Gilliam was award-
ed permanent total disability compensation plus moving ex-
penses. He moved to California but returned to Washington
some four years later.

Attempting to return to the marital home, Mr. Gilliam
contacted his wife for the first time in nearly a decade,
repeatedly saying "he wanted his home back." Never indicat-
ing that he wanted to continue the marriage, Mr. Gilliam
intended to reclaim property, not to reconcile the relationship.
Because she considered him a controlling husband and feared
him "to some extent," Mrs. Gilliam refused to allow him to
return. She twice tried to divorce him. She discontinued the
first divorce proceeding at his request and lacked the finan-
cial resources to complete the second. In the years leading
up to her husband's death, Mrs. Gilliam sometimes cooked
meals for him, and the couple continued to see each other
socially on family occasions. She never entered into another
relationship.

Finding that at the time her husband died Mrs. Gilliam was
living apart from him "for justifiable cause" (the statute's
requirement) and that she had not severed the "conjugal
nexus" (Thomspon's requirement), the ALJ awarded her
death benefits of roughly $300 a month. New Valley appeal-

ed to the Department of Labor's Benefits Review Board,
which affirmed the ALJ's decision. In this petition for re-
view, the company challenges the ALJ's findings of a conjugal
nexus and justifiable cause for separation as contrary to law.

II.

We "may reverse a [Benefits Review] Board ruling only for
errors of law or when the Board has exceeded the scope of its
authority in its review of the ALJ." Brown v. I.T.T. Baking
Co., 921 F.2d 289, 292 (D.C. Cir. 1990). The ALJ's findings of
fact "shall be conclusive if supported by substantial evidence
in the record considered as a whole." 33 U.S.C. s 921(b)(3).
Highly deferential to the factfinder, this substantial evidence
test requires only that the ALJ's findings be supported by
"more than a 'scintilla,' but less than a preponderance of the
evidence." Evans Financial, 161 F.3d at 34. In conducting
our review, we must take account of the statute's presumption
in favor of claimants: "In any proceeding for the enforcement
of a claim for compensation under this chapter it shall be
presumed, in the absence of substantial evidence to the
contrary, that the claim comes within the provisions of this
chapter...." 33 U.S.C. s 920(a). Demonstrating the Act's
"beneficent purposes and humanitarian nature," this pre-
sumption requires that we "resolve doubtful questions ... in
favor of the claimants," Burns v. Director, Office of Workers'
Compensation Programs, 41 F.3d 1555, 1562 (D.C. Cir. 1994)
(internal quotation marks omitted), and "construe the Act
liberally" to "avoid[ ] harsh and incongruous results." Ste-
venson v. Linens of the Week, 688 F.2d 93, 98 (D.C. Cir.
1982).

New Valley, seeking to avoid this "limited and highly
deferential" substantial evidence standard, Cadbury Beverag-
es Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998) (internal
quotation marks omitted), and conceding that it has no quar-
rel with the ALJ's fact-finding, attempts to frame its petition
in terms of legal issues. It begins by challenging the ALJ's
conjugal nexus finding, claiming that as in Thompson the
conjugal nexus between the Gilliams had been severed. The

company points out that Mrs. Gilliam repeatedly rebuffed her
husband's attempts to return to the marital home, twice
began divorce proceedings, "had no further conjugal relations
with her husband" despite his return to the Washington area,
and "did not intend to resume the marital relationship." All
of this, according to New Valley, leads to the inescapable
conclusion that Mrs. Gilliam, like the claimant in Thompson,
"made a conscious decision to sever the conjugal nexus with
her husband and she persisted in her intentions up to the
time of Mr. Gilliam's death."

The ALJ reached a different conclusion, finding that under
all of the circumstances of this case the couple's conjugal
nexus had not been terminated: "The Act does not require
Mrs. Gilliam to condone or forgive the years of desertion and
non-support she endured. Nor must she cohabit with her
husband when he decides to return years later." Not only
does nothing in Thompson require a different result--unlike
the claimant there, Mrs. Gilliam never entered into another
relationship--but the ALJ's conclusion is perfectly consistent
with Matthews v. Walter, 512 F.2d 941 (D.C. Cir. 1975), which
upheld a benefits award to a surviving widow despite her
failure to resume living with the decedent once the cause of
their initial separation ceased. As we explained, "[t]his com-
ports with human realities and avoids working undue hard-
ships upon individuals by forcing either the forfeiture of
benefits or the abandonment of a life style to which they had
become accustomed following the justified separation." Id. at
944.

New Valley urges us to adopt a new legal standard for
conjugal nexus. It argues that a deserted wife can preserve
her right to benefits only by taking her husband back when-
ever he decides to return. According to the company, Mrs.
Gilliam terminated their conjugal nexus by refusing to allow
her husband to return home even though he had left her with
ten children, had given them no support, wished to return
only to reclaim his property, and was "a controlling husband"
feared by his wife. We find nothing in the statute or cases to
require such a Dickensian result. Indeed, the company's

position conflicts with the Act's "beneficent" and "humane"
purposes.

Despite New Valley's repeated attempts in its brief and at
oral argument to frame its argument as a legal issue, it
cannot escape the basic proposition that conjugal nexus is a
question of fact and that in this case the ALJ's decision finds
ample support in the record. The ALJ found that Mrs.
Gilliam remained in the marital home for more than 35 years;
that she neither entered into another relationship nor
changed her married name; and that she maintained a rela-
tionship with her husband through their children, spent holi-
days with him, and occasionally even cooked meals for him.
The ALJ also found Mrs. Gilliam's initiation of divorce pro-
ceedings insufficient to break the conjugal nexus because she
abandoned the first attempt at her husband's behest and
never completed the second due to a lack of financial re-
sources. We find nothing in either fact or law to question the
ALJ's ultimate conclusion that the conjugal nexus between
the couple still existed at the time of Mr. Gilliam's death.

New Valley next alleges that the ALJ ignored the relevant
time period fixed by the Act for ascertaining the existence of
"justifiable cause." According to the company, the husband's
desertion of his family in the early seventies cannot possibly
constitute justifiable cause for Mrs. Gilliam to be living apart
from him at the time of his death almost twenty-five years
later. If desertion by itself automatically constitutes justifi-
able cause, the company argues, the statute would not treat
desertion and justifiable cause separately, nor would courts
bother to consider the conduct of the parties following the
desertion to determine if a conjugal nexus remained at the
time of death.

No one disagrees with the proposition that the statute fixes
the decedent's death as the proper time for inquiring into the
reasons for a couple's separation. See Matthews, 512 F.2d at
944. Nor does anyone disagree that desertion does not
always amount to justifiable cause for a couple to be living
apart, perhaps years later, at the time of the decedent's
death. See Thompson, 347 U.S. at 337. It does not follow,

however, that desertion alone could never constitute justifi-
able cause. We know this because the Supreme Court has
described the LHWCA's definition of "widow" as including a
claimant living apart from her spouse "because of desertion
or other justifiable cause." Ingalls Shipbuilding, Inc. v.
Director, Office of Workers' Compensation Programs, 519
U.S. 248, 257 (1997) (emphasis added).

In this case, however, the ALJ did not rely solely on the
husband's desertion. Instead he found that the desertion,
"coupled with Decedent's non-support for the ten children
and his controlling behavior, constitutes justifiable cause for
living apart." (Emphasis added.) In other words, the hus-
band's post-desertion behavior contributed to the ALJ's con-
clusion that there was justifiable cause for the couple's contin-
ued separation. Moreover, nothing in the ALJ's decision
suggests that his justifiable cause conclusion rested on cir-
cumstances other than those existing at the time of the
husband's death.

New Valley challenges the ALJ's justifiable cause finding
on a second ground. "Controlling behavior," New Valley
claims, cannot be equated with alcoholism, adultery, severe
mental problems, or physical abuse--the conditions support-
ing justifiable cause findings in several cases cited by the
company. Courts of Appeals and the Benefits Review Board,
however, have affirmed findings of justifiable cause on less
serious grounds, including grounds less severe than the hus-
band's behavior here. See, e.g., Henderson v. Avondale Ma-
rine Ways, Inc., 204 F.2d 178 (5th Cir. 1953) (finding justifi-
able cause where mother-in-law objected to claimant and cut
up her clothes); Kennedy v. Container Stevedoring Co., 23
BRBS 33 (1989) (rejecting the notion that justifiable cause is
limited to temporary separations or situations in which a
spouse is fearful of an infectious disease or bodily injury, and
finding justifiable cause where claimant and decedent agreed
to separate because they could not live together amicably);
Denton v. Northrop Corp., 21 BRBS 37 (1988) (finding justifi-
able cause where couple lived apart because of job require-
ments).

 Notwithstanding these decisions, New Valley insists that in
this circuit serious misconduct rising to the level of a "matri-
monial offense" is needed to sustain a finding of justifiable
cause. In support, New Valley cites Matthews for the propo-
sition that Congress fashioned the justifiable cause provision
based on the law of divorce and separation and that the
phrase is therefore "substantially equivalent to a 'matrimonial
offense.' " New Valley seriously misreads Matthews. The
"matrimonial offense" language in Matthews came from an
earlier case, Weeks v. Behrend, 135 F.2d 258 (D.C. Cir. 1943).
Explicitly rejecting Weeks' "narrow construction of 'justifiable
cause,' " Matthews instead looked to "a broader and more
straightforward interpretation" found in other cases. Mat-
thews, 512 F.2d at 944. Matthews explained:

We read Thompson as undermining the narrow construc-
tion of "justifiable cause" offered in Weeks. The Court
stated in Thompson that it would not assess "the marital
conduct of the parties. That is an inquiry which may be
relevant to legal issues arising under State domestic
relations law. Our concern is with the proper interpreta-
tion of the Federal Longshoremen's Act."

Id. (citation omitted).

In a last-ditch effort to unearth a legal issue in this case,
New Valley urged for the first time at oral argument that in
addition to "conjugal nexus" and "justifiable cause," LHWCA
death benefits turn on whether the surviving spouse had a
reasonable expectation of support from the decedent. Even
were we to consider arguments not raised in the briefs, we
would reject this one. Nothing in either the statute or case
law supports a "reasonable expectation" test. Indeed, under
questioning at oral argument, counsel conceded that there
could be situations in which a widow, although lacking any
expectation of support, might nonetheless be entitled to death
benefits.

III.

In the end, the ALJ's justifiable cause and conjugal nexus
findings are factual determinations reviewable only pursuant

to the highly deferential substantial evidence standard. Even
where "the facts permit the drawing of diverse inferences,"
the finder of fact "alone is charged with the duty of initially
selecting the inference which seems most reasonable and his
choice, if otherwise sustainable, may not be disturbed by a
reviewing court." O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359, 361-62 (1965) (quoting Cardillo
v. Liberty Mutual Ins. Co., 330 U.S. 469, 478 (1947)). New
Valley does not argue that the ALJ's findings were unsup-
ported by the record, only that we should reinterpret the
evidence to support the opposite conclusion. But as we have
said many times, "[a]n agency's conclusion may be supported
by substantial evidence even though a plausible alternative
interpretation of the evidence would support a contrary view."
Secretary of Labor, Mine Safety and Health Admin. v.
Federal Mine Safety and Health Review Comm'n, 111 F.3d
913, 918 (D.C. Cir. 1997) (internal quotation marks omitted).
Finding ample support for the ALJ's determination that Mrs.
Gilliam qualifies as a widow under the LHWCA, we deny the
petition.

So ordered.