Marcus v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

Decision Date28 December 1976
Docket NumberNo. 75-1629,75-1629
Citation179 U.S.App.D.C. 89,548 F.2d 1044
PartiesAlphonso MARCUS, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U. S. DEPARTMENT OF LABOR, et al., Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

Clement Theodore Cooper, Washington, D. C., for petitioner.

Joseph W. Pitterich, Washington, D. C., for respondents, Dickey's Dry Cleaners, Inc. and Home Indemnity Co.

Linda L. Carroll, Atty., Dept. of Labor, Washington, D. C., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of court, with whom George M. Lilly, Atty., Dept. of Labor, Washington, D. C., was on the brief for respondent, Director, Office of Workers' Compensation Programs.

Before TAMM, MacKINNON and WILKEY, Circuit Judges.

PER CURIAM:

Petitioner in this case, Alphonso Marcus, seeks our review 1 of an order of the Benefits Review Board of the United States Department of Labor, denying his claim for death benefits owing from the tragic shooting of his alleged common law wife during a robbery at her place of employment. 2 Petitioner's claim, filed pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. (Supp. V, 1975) (Act), as extended to the District of Columbia by its Workmen's Compensation Act, 3 D.C.Code § 36-501 (1973), was the subject of a formal hearing before an administrative law judge (ALJ). The ALJ concluded from the extensive evidence introduced during two days of hearings, and from his observations of the various witnesses, that petitioner in fact had never been the common law husband of the decedent and therefore was not entitled to the benefits claimed. Petitioner's Appendix, Document 2, at 6, 13. This decision was upheld by the Benefits Review Board on appeal, and the petition for review was then filed with this court. Petitioner now argues: (1) that the denial of his claim was arbitrary, capricious and unsupported by substantial evidence; and (2) that the ALJ was biased against him and his counsel and, consequently, should have been disqualified. Finding no merit in either of these contentions, we affirm.

I

On the issue concerning petitioner's entitlement to death benefits as the common law spouse of the decedent, there is little dispute over the applicable law. The Act defines the terms "widow or widower" to include:

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. § 902(16) (Supp. V, 1975). Since the statute does not further define "husband" for purposes of determining coverage, the local law of domestic relations must supply its meaning. 4 In the case before us, both petitioner and decedent were domiciliaries of the District of Columbia, and it was within this particular jurisdiction that a common law marriage 5 was supposedly contracted. The full meaning of "husband", as used in section 902(16), thus should be determined by reference to the local law of the District of Columbia.

The District of Columbia by judicial decision continues to recognize common law marriages, as all parties readily agree. 6 Meretricious cohabitation alone, however has never been sufficient to establish a valid common law marriage either in this or any other jurisdiction still recognizing such a relationship. 7 In the District of Columbia at least, a valid common law marriage only results when

a man and woman who are legally capable of entering into the marriage relation mutually agree, in words of the present tense, to be husband and wife, and consummate their agreement by cohabiting as husband and wife. . . .

U. S. Fidelity & Guaranty Co. v. Britton, 106 U.S.App.D.C. 58, 269 F.2d 249, 251 (1959). 8 The parties to this litigation do not dispute that a valid common law marriage cannot exist unless each of the foregoing elements is met; rather they disagree essentially over whether or not the evidence adduced was sufficient to sustain petitioner's burden of proving that he and the decedent had mutually agreed in words of the present tense 9 to enter into a permanent relationship as husband and wife. 10

Such an agreement may at times be proved by either direct or circumstantial evidence, but where available, 11 the testimony of the parties is naturally preferred. Id. at 252. Here petitioner was available and actually did testify, as did various relatives and acquaintances of the two individuals. Petitioner's testimony, however, even when viewed most favorably, could only be characterized as ambiguous, 12 and the ALJ specifically found that it was "sorely lacking in credibility" and that if any agreement at all "could possibly be found through his testimony, it would not be worthy of belief." Petitioner's Appendix, Document 2, at 10. The ALJ observed petitioner's demeanor at the hearing, as we did not, and it was for him to judge the credibility of any testimony and to weigh the evidence adduced therefrom. See National Union Fire Ins. Co. v. Britton, 187 F.Supp. 359, 364 (D.D.C.1960), aff'd 110 U.S.App.D.C. 77, 289 F.2d 454, cert. denied, 368 U.S. 832, 82 S.Ct. 54, 7 L.Ed.2d 34 (1961).

This brings us to the circumstantial evidence adduced by petitioner to establish that the requisite agreement in praesenti had been made. Various documents and the testimony of several witnesses were offered, none of which the ALJ credited with much probative weight. 13 On the other hand, respondents introduced considerable evidence to rebut any inference that there had been a valid common law marriage, which the ALJ deemed far more reliable and creditable. 14 Thus, carefully weighing all the evidence before him, he concluded that a common law marriage had never been properly contracted.

It is well established that in such a case as this our scope of review is limited. 15 We may only assure that the findings of fact are supported by substantial evidence in the record and that the decision itself is not inconsistent with applicable law. 16 Since we conclude, as the Board did, that the ALJ's decision is unassailable in both respects, we may not and do not disturb it.

II

Petitioner also claims that the ALJ "demonstrated personal bias, religious bias, and bias based upon the nativity of appellant in arriving at his decision," Petitioner's Brief at 18, specifying fifteen alleged occurrences substantiating his charge. No formal objection to perceived bias or prejudice was ever made during the hearing; the claim was first raised only on appeal to the Benefits Review Board which rejected it as untimely and "therefore" without merit. 17

A party's claim of bias must not be made lightly. Such a charge, unfairly made, not only impugns without warrant the integrity of the government official publicly entrusted with responsibility for properly deciding a given dispute, but it also unnecessarily tarnishes our beneficent traditions of legal due process. It is especially important, too, that a charge of bias or prejudice be raised at once, whenever a party concludes in good faith that the decision-maker should be disqualified from hearing the case. If the issue of bias is raised in a timely fashion, permitting more prompt attention to the matter, each party's rights to a fair and impartial tribunal 18 are better protected. On the other hand, when a party voices its misgivings in tardy or dilatory fashion, not only may time and effort be wasted in the event that disqualification is ultimately required, but the good faith of the claimant will quite naturally be placed in some doubt.

To help preserve the integrity and efficiency of the administrative process, the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. (1970) (APA), 19 provides that:

A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as a part of the record and decision in the case.

Id. § 556(b). Whereas disqualification is mandatory under section 554(d) of the APA, 5 U.S.C. § 554(d) (1970), whenever a government employee or official would otherwise combine both prosecutorial and adjudicatory functions, disqualification under section 556(b) is entirely voluntary, although a decision not to disqualify oneself may be subject to subsequent review by the agency. Id. § 556(b). Compare 28 U.S.C. § 144 (1970) (mandatory disqualification of federal district judges upon filing of a timely and sufficient affidavit of bias or prejudice).

Petitioner here, however, never filed an affidavit articulating the facts and reasons justifying his charge, but chose instead to wait until after the initial adverse decision to raise these allegations in his briefs to the Board and, subsequently, to this court. Thus, not only did petitioner fail to execute the affidavit required by section 556(b), when from the nature of his allegations he would clearly have had occasion to do so, but his claim of disqualifying prejudice also must fail for want of timeliness. The general rule governing disqualification, normally applicable to the federal judiciary and administrative agencies alike, 20 requires that such a claim be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist. 21 It will not do for a claimant to suppress his misgivings while waiting anxiously to see whether the decision goes in his favor. A contrary rule would only countenance and encourage unacceptable inefficiency in the administrative process. The APA-mandated procedures afford every party ample opportunity to enforce and preserve its due process rights. Under the present circumstances, however, petitioner must be deemed to have waived his claim.

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