UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NEW VALLEY CORP

v.

OWCP


98-1369a

D.C. Cir. 1999


*	*	*


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


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 (repealed 1979).
Though now  repealed, the 1928 D.C. Act and the federal LHWCA still 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


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.


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."


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" 


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


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


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 


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-


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


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 


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 


So ordered.