Petition for Writ of Certiorari — Thomas v. Metropolitan Life Insurance

Supreme Court brief1997

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Supreme Court, U.S.

FILED

97.106 JUL 17 1997

RESice OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

MARY THOMAS and IVY THOMAS

Petitioners

VS.

METROPOLITAN LIFE INSURANCE COMPANY

and

DONNA POWELL-THOMAS

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Marvin Waldman,

Counsel of Record

Gary Diamond

Of Counsel

Waldman & Diamond, Chartered

2815 University Boulevard, West

Kensington, MD 20895

(301) 933-4500

Counsel for Petitioners

i

QUESTIONS PRESENTED

1. Was the "strict compliance" standard under 5

U.S.C. Section 8705(a) misapplied by the District and

Circuit Courts, where the insured prepared a beneficiary

designation in his own hand in the presence of two (2)

attesting witnesses, and the form was later accepted by

the employing office prior to his death?

a Does the "signed . . . writing" element of

5 U.S.C. Section 8705(a) require a marking in the

signature box, as held by the District Court, or were

Petitioners, as intended beneficiaries, entitled to

demonstrate that the designation was valid because the

decedent printed his name, and completed the form in

every other respect?

il

PARTIES TO THE PROCEEDING

Petitioners, Mary Thomas and Ivy Thomas a/k/a

Ivy Dotson were the Plaintiffs in the District Court and

Appellants in the Court of Appeals. Respondent

Metropolitan Life Insurance Company was a Defendant

in the District Court and Appellee in the Court of

Appeals. Respondent Donna Powell-Thomas was a

Plaintiff/Intervenor in the District Court and Appellee in

the Court of Appeals. Stewart Funeral Home, Inc. was

joined as a Plaintiff in the District Court. Stewart

Funeral Home, Inc. has not actively participated in the

proceedings.

a

iii

TABLE OF CONTENTS

Questions Presented .................- i

Parties to the Proceedings ............... li

. SS ee eee ili

ee eee eee eee Vv

CE a 2

a eas sas 4 ao 8 2

Legal Provisions Involved in the Case ........ 2

MPD ge ee 3

| Reasons for Granting the Writ ............. 6

I. The Courts Below Misapplied

the "Strict Compliance" Standard

Under 5 U.S.C. Section 8705(a),

Since There is No Requirement

| That an Insured Mark the Signature

Box to Satisfy the "Signed. . .

Writing" Element of the Statute ...... 9

4

?

Siemens

iV

II. The Decision Below Conflicts With

the Decision of the United States

Court for the Middle District of

Florida in a Factually Similar

Case Resulting in Different Criteria

for Validating Beneficiary Designations

of Federal Employees and Retirees ... 13

Conclusion 16

ABB Sac eer 5

Vv

TABLE OF AUTHORITIES

CASES

Adams v. Macy, 314 F. Supp. 399

fe Per ee ee

Burleson v. Burleson, 277 A.2d 647

(D.C. App. 1971) ...............

Carna v. Bessemor Cement Co..,

558 F. Supp. 706

(Wr ee es SO a ee ee en

Ex Parte Cardoza, 109 A. 93

FF ere eee ee ee

Fair v. Moore, 397 A.2d 976

Rs BE ea 5 We aie eee Aas

In re Estate of Hall, 328 F.

Supp. 1305 (D.D.C. 1971).........

Metropolitan Life Ins. Co. v. Trainor,

754 P.2d 427 (Colo. App. 1988) .....

Plemens v. Diddle-Glaser, Inc.,

224 A.2d 464 (Md. 1966) .........

Reidy v. Almich, 418 P.2d 390

(Asm. App. T9G6) 2... ce ee ecw es

Ut oe 10

vi

Sears v. Austin, 292 F.2d 690

(Sai oe. BE) hv esis Cae eee eee Y

State v. Schell, 224 N.E.2d 49

(let. 1968) 60 08 00S hee eee 12

United States v. Wexler,

657 F. Supp. 966

1 Re. rer ee A 11-12

Ward v. Stratton, 988 F.2d 65

(ae Cae. BSG e) ba bs ce a Oar eee 10

STATUTES AND REGULATIONS

1 U.S.C. Section 1 (1994) .......... 6-7, 8, 11

5 U.S.C. Section 8705(a)

(ISM) . 5 shee oa Sree ae eee passim

28 U Section 1254(1)

(T9598) . wc wanes eave ewe eee 2

28 U.S.C. Section 1291 (1994) .............. 6

28 U.S.C. Sections 1331 and 1332

(T99O) . ke wesbeeeeee. eeeeee 4

28 U.S.C. Section 1335 (TFS) oc cece cw wees 5

:

5

:

Vii

3 C.F.R. Section 870.901

ER ee ee ee ea nk. 7, 11

5 C.F.R. Section 870.902

GEE? a ee ae es ote 7, ¥1

We a SG ee ck en ee cee 5

LEGISLATIVE MATERIAL

S. Rep. No. 1064, 89th Cong.,

2d Sess. 2 (1966),

reprinted in 2 U.S.C.C.A.N.

I ee ee Y

ORDERS FROM OTHER CASES

Metropolitan Life Ins. Co. v.

Grant, et al.,

No. 96-136-Civ-Oc-10 |

(M.D. Fla. July 7, 1997) |

(Order Denying Summary |

Judgmemt) oo... eee. 7-8, 13, 14, 15 |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

MARY THOMAS and IVY THOMAS

Petitioners

VS.

METROPOLITAN LIFE INSURANCE COMPANY

and

DONNA POWELL-THOMAS

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, Mary Thomas and Ivy Thomas

respectfully request that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the District of Columbia entered in this case

on February 24, 1997.

2

OPINIONS BELOW

The Judgment of the Court of Appeals (App. D

at Sa-6a) is reported at 111 F.3d 963 (D.C. Cir. 1997).

[The foregoing citation is a table reference and is not an

opinion.] The Court of Appeals’ Orders denying the

Petition for Rehearing (App. A at la-2a) and Suggestion

for Rehearing In Banc (App. B at 3a) are not reported.

The Order of the District Court (App. F at 8a-10a) is

reported at 921 F. Supp. 810 (D.C. 1996).

JURISDICTION

The judgment of the United States Court of

Appeals for the District of Columbia was entered on

February 24, 1997. A Petition for Rehearing and a

Suggestion for Rehearing In Banc, filed on March 25,

1997, was denied on June 11, 1997. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. Section

1254(1) (1994).

LEGAL PROVISIONS INVOLVED IN THIS CASE

1 U.S.C. Section 1 (1994).

5 U.S.C. Section 8705(a) (1994).

5 C.F.R. Sections 870.901-.902 (1995).

These provisions are set forth in the Petitioner’s

Appendix (App. G-J at 12a-16a).

3

STATEMENT OF THE CASE

Decedent Gerald C. Thomas, Jr., an employee of

the District of Columbia Lottery and Charitable Games

Control Board, participated in the Federal Employees

Group Life Insurance (FEGLI) Program, which is

administered by Respondent Metropolitan Life Insurance

Company (Metlife). He insured his life for One

Hundred Ninety Seven Thousand Dollars 00/100

($197,000.00) under this program. On August 21,

1989, and April 7, 1993, Mr. Thomas namea his wife,

Respondent Donna Powell-Thomas, as the beneficiary of

death benefits under his policy.

In October 1993, Donna Powell-Thomas filed for

divorce against Gerald C. Thomas, Jr. in the Circuit

Court for Prince George’s County, Maryland. Mr. and

Mrs. Thomas were by that time living separate and

apart.

On October 13, 1993, the Decedent changed the

earlier beneficiary designation by naming his mother,

Mary Thomas, and his sister, Ivy Thomas, Petitioners

herein, as the only recipients of the FEGLI death

benefits. Mr. Thomas completed the document by

writing his name and address, and by checking the box

indicating "I have signed this form . . .". Two (2) co-

employees signed as attesting witnesses. However, he

made no marking within the signature box.

The employing office accepted and processed the

form, which was forwarded to the District of Columbia

4

Office of Payroll and Retirement for filing. After the

Office of Payroll and Retirement processed the form on

October 15, 1993, the duplicate copy was sent back to

Decedent’s employing office.

Gerald C. Thomas, Jr., died on February 2,

1994, before the divorce proceedings were concluded.

After his death, Mary Thomas and Ivy Thomas claimed

the proceeds of the FEGLI policy at the invitation of the

Decedent’s employer. Donna Powell-Thomas also filed

a claim for the FEGLI proceeds based on the previous

Designation of Beneficiary forms. Only during the

claims process did any issue arise about an irregularity

in the Designation of Beneficiary completed by the

decedent on October 13, 1993. Metlife thereafter

denied all claims to the proceeds.

Petitioners, Mary Thomas and Ivy Thomas, filed

this action against Metlife on August 31, 1994, in the

United States District Court for the District of

Columbia. Petitioners claimed entitlement to the

proceeds of the life insurance policy in the name of

Gerald Thomas, Jr. pursuant to the Designation of

Beneficiary form completed by him on October 13,

1993. Jurisdiction was asserted under 28 U.S.C.

Sections 1331 and 1332 (1994).

Respondent, Donna Powell-Thomas, filed a

Motion for Leave to Intervene and a Declaratory

Judgment. Respondent’s basis for the Motion was that

the Designation of Beneficiary form completed on

October 13, 1993 was invalid because the form lacked

5

a signature. She asserted the prior Designation of

Beneficiary forms completed on August 21, 1989, and

April 7, 1993, remained valid. Respondent’s Motion

for Leave to Intervene and to file a Declaratory

Judgment was granted.

Respondent, Metlife, deposited the policy

proceeds into the Registry of the District Court pursuant

to 28 U.S.C. Section 1335 and Federal Rules of Civil

Procedure, Rule 67. Upon the Motion of Metlife.

Stewart Funeral Home was added as a party Plaintiff,

but has not otherwise participated in this case.

The Petitioners moved for Summary Judgment

and requested a hearing. Some thirteen (13) months

later, the District Court entered an Order denying

Petitioners’ Motion for Summary Judgment and Request

for Hearing, and granting Respondent Donna Powell-

Thomas’ Motion for Declaratory Judgment (treated by

the Court as a Motion for Summary Judgment). No

hearing of any kind was ever conducted by the District

Court.

In its opinion, the District Court, relying on prior

case law requiring "strict compliance" with FEGLIA,

ruled that "the decedent’s acts of printing his name and

checking the box indicating that he had signed the form

are insufficient to constitute a signature as contemplated

by the statute". (App. F at 9a). Under the reasoning of

the District Court, since the form was not marked within

the signature box, Petitioners could not demonstrate a

valid change of beneficiary even considering the

)

Affidavits of the two (2) attesting witnesses.

The Petitioners, relying upon 28 U.S.C. Section

1291 (1994), appealed to the Court of Appeals for the

District of Columbia. They also filed a Motion to Stay

Judgment Pending Disposition of Appeal, which was

granted on January 31, 1996.

The Court of Appeals, despite Petitioners’ request

for a hearing, affirmed, without argument, the District

Court’s grant of Summary Judgment to Respondent

Donna Powell-Thomas. The panel determined an

opinion was not needed, and entered its per curiam

judgment on February 24, 1997. (App. D at Sa).

The Court of Appeals denied the Petitioners

Suggestion for Rehearing In Banc with Judge Garland

not participating. (App. B at 3a). The Petitioners’

Petition for Rehearing was also denied. However,

Judge Ginsburg of the original panel would have granted

the Petition for Rehearing. (App. A at la-2a).

REASONS FOR GRANTING THE PETITION

This is a case of first impression with significant

impact on 2.5 million icderal government employees in

every branch of government and 1.5 million federal

retirees. At issue is the proper method for designating

beneficiaries of a Federal Government Life Insurance

Policy. Both courts below have failed to apply the

definition of a "signature" found in 1 U.S.C. Section 1

|

7

(1994), and have instead focused on strict compliance

with the Designation of Beneficiary form itself; a form

that the Courts acknowledge is not even required by the

Federal Employees Group Life Insurance Act

(FEGLIA). (App. D at Sa and App. F at 9a-10a). This

approach exalted form over substance in a manner

wholly inconsistent with the statute.

The Court of Appeals affirmed the District Court

decision without oral argument, despite the record

showing that Petitioners’ Request for Hearing had been

denied in District Court. The District Court found as a

matter of law that where a standard form was used, the

insured was required to write his name in the signature

box. The Court of Appeals never addressed that

holding, but instead applied a "preponderance of the

evidence" standard in assessing Petitioners’ presentation

before the District Court. This affirmance implied that

Petitioners were afforded a trial in this matter.

However, no hearing of any type has been conducted at

the trial or appellate levels.

Additionally, this Court should grant certiorari

because of a different outcome in another Circuit on a

set of facts almost identical to this case. The United

States District Court for the Middle District of Florida

(The Honorable William Terrell Hodges), on July 7,

. 1997, ruled that "strict compliance" did not require a

marking within the signature box. Furthermore, the

Court found that since the insured printed his name,

there were conflicting inferences on the question of

intent to be weighed by the trier of fact. It denied

8

summary judgment as to all parties. Metropolitan Life

Ins. Co. v. Grant, et al., No. 96-136-Civ-Oc-10 (M.D.

Fla. July 7, 1997) (Order Denying Summary Judgment)

(App. K at 17a-26a). The approaches taken by the

District Court and the Court of Appeals in this case

were considered and specifically rejected by Judge

Hodges as "not persuasive . . ." (App. K at 22a).

No decisions listed under Title 1, Section 1 of the

United States Code Annotated indicate that this Court

has interpreted the signature definition of 1 U.S.C.

Section 1. Accordingly, this is an important question of

first impression of federal law that should be settled by

this Court under the facts and circumstances presented.

The millions of federal employees and retirees are

entitled to guidance and clarification of the procedures

utilized to carry out their intentions to change

beneficiaries as their life circumstances dictate. If

review is declined, the right of an insured to name a

beneficiary will be severely limited. That result would

clearly contradict the legislative intent of Section 8705(a)

of the FEGLIA statute. A decision which distorts the

law and underlying policy considerations should not

stand without this Court’s further review, especially

considering the summary proceedings below.

Ne rihanna AS sO AE RNY Bor al MPO RG WEN LS ae sk ft sith Og Ss SAI Tatts tees se Lee et sittin

9

ARGUMENT

I. THE COURTS BELOW MISAPPLIED THE

"STRICT COMPLIANCE" STANDARD UNDER 5

U.S.C. SECTION 8705(a), SINCE THERE IS NO

REQUIREMENT THAT AN INSURED MARK THE

SIGNATURE BOX TO SATISFY THE "SIGNED .. .

WRITING" ELEMENT OF THE STATUTE

The case sub judice concerns the proper method

for designating a beneficiary in accordance with 5

U.S.C. Section 8705(a). Congress amended the

FEGLIA statute in 1966 in reaction to a Ninth Circuit

decision validating a Designation of Beneficiary found

in a decedent’s Will. See Sears v. Austin, 292 F.2d 690

(9th Cir. 1961). Administrative uniformity would have

been lost in allowing an insured to change a beneficiary

by will or some other document without insisting on the

processing of the change by the appropriate agency.

Thus the amendment clarified the legislative intent that

the order of precedence set forth in the statute prevail

Over any extraneous document not received in the

employing office before an insured’s death. S. Rep.

No. 1064, 89th Cong., 2d Sess. 2 (1996), reprinted in

2 U.S.C.C.A.N. 2070, 2071. "Congress sought merely

to require official receipt of a designation and not to

further limit the right of an insured to name a

beneficiary". Fair v. Moore, 397 A.2d 976, 978 (D.C.

App. 1979).

The Courts below erred in holding the

Designation of Beneficiary invalid because the insured

10

made no mark in the signature box. The result is to

impose an impermissible restriction on the right to name

a beneficiary, such that the policy proceeds go to the

person whom the insured specifically wished to exclude.

Except for one explainable omission, the insured,

decedent Gerald C. Thomas, Jr., in all respects

completed the form in his own hand, and printed his

name after designating the Petitioners as beneficiaries.

This case does not involve an extraneous document, nor

is there anything in the text of the FEGLIA or its

legislative history to suggest that the signature must be

placed on a particular line or place on the Designation

of Beneficiary Form. A signature is valid without

regard to where it may appear on a document. E.g., Jn

Re Estate of Hall, 328 F. Supp. 1305, 1309 (D.D.C.

1971); Ex Parte Cardoza, 109 A. 93 (Md. 1919); Reidy

v. Almich, 418 P.2d 390 (Ariz. App. 1966).

Petitioners recognize that courts have consistently

required strict compliance with the FEGLIA statute.

See, e.g., Ward v. Stratton, 988 F.2d 65 (8th Cir. 1993)

(writing not witnessed or received in the employing

office before the date of death), Adams v. Macy, 314 F.

Supp. 399 (D. Md. 1970) (witness to the writing was

also a beneficiary in direct violation of 5 U.S.C. Section

8705(a), and 5 C.F.R. 870.902(c)); Metropolitan Life

Insurance Co. v. Trainor, 754 P.2d 427 (Colo. App.

1988) (writing to change beneficiary did not specify

FEGLI policy). This rule was recognized in the District

of Columbia in Burleson v. Burleson, 277 A.2d 647,

648 (D.C. App. 1% 1) where the District of Columbia

Court of Appeals stated "[L]iteral compliance with the

1]

Statute is required when designating or changing

beneficiaries . . ."

However, the effect of the District Court’s ruling

and the Court of Appeals’ judgment is to require strict

compliance with the form itself. The strict compliance

standard was formulated to serve the statutory purpose,

rather than to create artificial hurdles for validating

beneficiary designations. See Fair v. Moore, 397 A.2d

976 (D.C. App. 1979). Petitioners seek no departure

from the "strict compliance" standard, and request no

waiver of the signature requirement. However, due

process necessitates that they have an opportunity to

demonstrate the decedent’s purpose and intent in

preparing the document.

By mandating that the Designation of Beneficiary

be "signed," Congress provided that the document be

authentic, and that the insured affirm a present intention

to be bound by its contents. Section 8705(a) and its

related regulations do not define the term "signed". See

5 C.F.R. Sections 870.901-.902 (1995). The trial court

failed to look anywhere but to the form itself for a

definition of the term "signed". 1 U.S.C. Section 1

provides general meanings for certain words used in

Acts of Congress not otherwise defined. "Signature" is

defined as "includ[ing] a mark when a person making

the same intended it as such". U.S.C. Section 1 (1994).

The Courts below failed to recognize that courts

have permitted signatures to take many shapes and

forms. E.g., United States v. Wexler, 657 F. Supp. 966

12

(E.D. Pa. 1987); Carna v. Bessemer Ement Co., 558 F.

Supp. 706 (W.D. Pa. 1983); State v. Schell, 224 N.E.

2d 49 (1967); Plemens v. Diddle-Glaser, Inc. , 224 A.2d

464 (1966). The opinions of the District and Circuit

Courts are devoid of any analysis of the words "signed"

or "signature," nor do they contain any discussion of

relevant case law interpreting these terms.

The Court of Appeals based its affirmance on the

ground Petitioners "failed to prove by a preponderance

of the evidence that the insured in this case signed the

contested form". (App. D at Sa). Yet, the Court failed

to articulate what further proof would be needed.

Viewed in its entirety, this transaction constituted a

complete expression of decedent’s compliance with the

statute, including a signing of the document. The

decedent completed the form in his own hand, checked

the box with the notation "I have signed this form in the

presence of two (2) witnesses who have signed below",

and his personnel office filed the form with the

appropriate office. The two (2) witnesses believed the

form had been signed, as evidenced by the Affidavits

submitted with Petitioner’s Motion for Summary

Judgment and Request for Hearing in the District Court.

There can be no doubt of the decedent’s present

intention in preparing this form and printing his name.

Furthermore, the completed form was processed

by the employing office and the District of Columbia

Office of Payroll and Retirement. Neither office found

any defect in the Designation of Beneficiary form. The

decedent had no reason to believe the change in

13

beneficiary was not effective. A reasonable trier of fact

could conclude from this evidence that the decedent

intended his marks to constitute his signature.

The result urged by Petitioners falls within the

"strict compliance" standard enunciated by the courts.

This Court must not permit a distortion of that standard

to work an injustice in this case and to create further

uncertainty for the millions of affected federal

government employees and retirees.

Il. THE DECISION BELOW CONFLICTS WITH

THE DECISION OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT

OF FLORIDA IN A FACTUALLY SIMILAR CASE,

RESULTING IN DIFFERENT CRITERIA FOR

VALIDATING BENEFICIARY DESIGNATIONS OF

FEDERAL EMPLOYEES AND RETIREES

Review by this Court is further compelled by the

decision of the United States District Court for the

Middle District of Florida, in the case of Metropolitan

Life Insurance Company v. Grant, et al., Case Number

96-136-CIV-OC-10. (App. K at 17a). On July 7, 1997,

the Honorable William Terrell Hodges, United States

District Judge, issued an Order denying Motions for

Summary Judgment on the ground that the facts

surrounding the execution of the beneficiary form

permitted conflicting inferences that should be weighed

by the trier of fact. The facts of that case are

remarkably similar to the case sub judice, except that

14

unlike Mr. Thomas, the decedent in Grant failed to

check the box noting "I have signed this form in the

presence of two (2) witnesses who have signed below".

The Grant Court considered the decisions of the

District Court and the Court of Appeals in this case, and

observed as follows:

"While the Thomas approach is certainly

convenient and possesses _ superficial

appeal, it is not persuasive to me. To be

sure, FEGLIA requires strict compliance

with its beneficiary designation provisions

and deviations from those provisions will

render an attempted designation invalid.

(Internal citations omitted). However, this

is not a case in which a claimant requests

that partial compliance with the statute be

accepted, or that non-compliance be

excused. The statute does not define the

term "sign". The statute does not require

that a standard form be used and filled out

according to its terms in order to change a

beneficiary designation. In short, there is

no specific statutory requirement, with

which strict compliance could be required,

that Mr. Gayton ran afoul of in failing to

sign the designated signature line. The

issue in this case, therefore, is whether

Mr. Gayton signed the beneficiary

designation at all." (App. K at 22a).

15

The Grant Court, contrary to the District Court and

Court of Appeals in this case, stressed that the form

itself was not controlling nor was the insured’s usual

method of signing dispositive of the issue.

In Grant the Court did not grant Summary

Judgment because of the conflicting inferences created

from the underlying facts of the case. Therefore, the

parties will have their day in court. In contrast, the

decisions of the District Court and the Court of Appeals

in this case were delivered without the parties having the

opportunity for face to face discourse. Not only was the

Petitioners’ Request for Hearing at the District Court

level denied, but their opportunity to present argument

before the Court of Appeals was also denied. A

question of federal law affecting all federal employees

and retirees should not be decided without an

opportunity for an oral hearing to present a full

consideration of the facts and the law.

If this Court denies review, the right of Gerald C

Thomas, Jr. to contract for the payment of his life

insurance policy will have been frustrated, and affected

employees and retirees will be subject to different

standards for validating beneficiary designations.

16

CONCLUSION

For the reasons stated above, a Writ of Certiorari

should be granted to review the decision of the United

States Court of Appeals for the District of Columbia

Circuit.

Respectfully submitted,

Marvin Waldman,

Counsel of Record

Gary Diamond,

Of Counsel

Waldman & Diamond, Chartered

2815 University Boulevard, West

Kensington, MD 20895

(301) 933-4500

Attorney for Petitioner

Date: July 17, 1997

APPENDIX

APPENDICES

CONTENT OF APPENDICES

APPENDIX A

Order of the United States Court of Appeals for the

District of Columbia Circuit denying Petition for

eee

APPENDIX B

Order of the United States Court of Appeals for the

District of Columbia Circuit denying Suggestion for

Rehearing In Banc, June 11, 1997 ..................

APPENDIX C

Order of the United States Court of Appeals for the

District of Columbia Circuit granting Motion for Stay

of Mandate July 9, 1997 .................0...00000.

APPENDIX D

Judgment of the United States Court of Appeals for the

District of Columbia Circuit, February 24, 1997 .....

APPENDIX E

Order of the United States Court of Appeals for the

District of Columbia Circuit granting Motion to

Modify Record and Court’s own motion to dispose

of case without oral argument, February 10, 1997 ...

APPENDIX F

Order of the United States District Court for the

District of Columbia, January 22, 1996..............

Order of the United States District Court for the

District of Columbia, amending Order of January 22,

Ge rr ee

APPENDIX G

5 U.S.C. Section 8705(a) (1994) ......................

APPENDIX H

BS Wrote UD © CIID oo ook nc ccc dccccccscvecccn

la

3a

4a

Sa

7a

8a

APPENDIX I

$ CER. Section S7O.SO01 (1995) ......cccccsccccccccces l4a

APPENDIX J

5 CPR. SOR Goes CH oo cccesegacccssesess l6a

APPENDIX K

Metropolitan Life Ins. Co. v. Grant et al., No. 96-136-

Civ-Oc-10B (M.D.FLA. July 7, 1997) (Order

Denying Summary Judgment) ...................... 17a

APPENDIX A

Gnited States Court of Appeals

FoR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-7021 September Term, 1996

94cv01908

Mary Thomas and Ivy Thomas, a/k/a Ivy Dotson,

Appellants

Donna Powell-Thomas,

Appellee

V.

Metropolitan Life Insurance Company

and Stewart Funeral Home, Inc.,

Appellees

BEFORE: Ginsburg, Sentelle, and Henderson, Circuit Judges

ORDER

Upon consideration of the petition for rehearing, it is

ORDERED that the petition be denied. Appellants have failed

to demonstrate that rehearing is warranted. The court wishes to

clarify, however, that although it may appear from the judgment

filed February 24, 1997, that the court weighed the evidence and

decided the disputed issue, this court affirmed the judgment of the

district court because the evidence proffered in the summary

judgment pleadings failed to demonstrate the existence of sufficient

evidence from which a reasonable jury could conclude by a

preponderance that the insured in this case intended to sign the

contested form merely by printing his name in the informational

entries. Appellant would have had the burden at trial of

establishing that fact. See Rollins by Rollins v. Metropolitan Life

Ins. Co., Inc., 912 F.2d 911, 915 (7th Cir. 1990) (person claiming

entitlement to proceeds of FEGLI policy bears burden of proving

the contested fact by a preponderance of the evidence). “[W]here

the nonmoving party shoulders the burden of proof at trial, the

movant’s burden is met by a sufficient showing ‘that there is an

2a

absence of evidence to support the nonmoving party’s case.’”

Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C. Cir.

1988) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Further, “[t]he [Supreme] Court has said that summary judgment

should be granted where the evidence is such that it would require a

directed verdict for the moving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251 (1986) (internal quotations omitted). This

is such a case. The court thus determined that there are no

genuinely disputed issues of material fact.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /S/ ROBERT A. BONNER

Deputy Clerk

Circuit Judge Ginsburg would grant the petition for rehearing.

3a

APPENDIX B

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-7021 September Term, 1996

94cv01908

Mary Thomas and Ivy Thomas, a/k/a Ivy Dotson,

Appellants

Donna Powell-Thomas,

Appellee

¥.

Metropolitan Life Insurance Company

and Stewart Funeral Home, Inc.,

Appellees

BEFORE: Edwards, Chief Judge; Wald, Silberman, Williams,

Ginsburg, Sentelle, Henderson, Randolph, Rogers,

Tatel and Garland, Circuit Judges

ORDER

Upon consideration of appellants’ Suggestion for Rehearing In

Banc, and the absence of a request by any member of the court for a

vote, it is

ORDERED that the suggestion be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /S/ ROBERT A. BONNER

Robert A. Bonner

Deputy Clerk

Circuit Judge Garland did not participate in this matter.

4a

APPENDIX C

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-7021 September Term, 1996

94cv01908

Mary Thomas and Ivy Thomas, a/k/a Ivy Dotson,

Appellants

Donna Powell-Thomas,

Appellee

¥.

Metropolitan Life Insurance Company

and Stewart Funeral Home, Inc.,

Appellees

BEFORE: Ginsburg, Sentelle, and Henderson, Circuit Judges

ORDER

Upon consideration of appellants’ motion for stay of mandate

and of the response thereto, it is

ORDERED that the motion is granted. The Clerk is directed to

withhold issuance of the court’s mandate through July 18, 1997.

No extension of this stay will be granted.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /S/ ROBERT A. BONNER

Deputy Clerk

Sa

APPENDIX D

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-7021 September Term, 1996

94cv01908

Mary Thomas and Ivy Thomas, a/k/a Ivy Dotson,

Appellants

Donna Powell-Thomas,

Appellee

V.

Metropolitan Life Insurance Company

and Stewart Funeral Home, Inc.,

Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BEFORE: Ginsburg, Sentelle, and Henderson, Circuit Judges

JUDGMENT

This appeal was considered on the record from the United States

District Court for the District of Columbia and on the briefs filed by

the parties. The court has determined that the issues presented

occasion no need for an opinion. See D.C. Cir. Rule 36(b). It is

ORDERED and ADJUDGED that the district court’s order filed

January 22, 1996, be affirmed. Assuming arguendo that an insured

under a Federal Employees’ Group Life Insurance (“FEGLI”)

policy is not required, when using a standard designation of

beneficiary form, to use the space provided for the signature of the

insured, appellants nonetheless failed to prove by a preponderance

of the evidence that the insured in this case signed the contested

form. Given that the insured signed his name by writing it in

cursive on three of four designation of beneficiary forms in

6a

evidence, including one which assigned to appellants any unpaid

compensation owed to the insured and which was executed at the

same time as the contested FEGLI form, the evidence as a whole

does not support concluding that Thomas intended his name as

printed in the informational entries on the contested form to

constitute his signature.

The Clerk is directed to withhold issuance of the mandate herein

until seven days after disposition of any timely petition for

rehearing. See D.C. Cir. Rule 41.

Per Curiam

a ee ee ee en aes

7a

APPENDIX E

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 96-7021 September Term, 1996

94cv01908

Mary Thomas and Ivy Thomas, a/k/a Ivy Dotson,

Appellants

Donna Powell-Thomas,

Appellee

V.

Metropolitan Life Insurance Company

and Stewart Funeral Home, Inc.,

Appellees

BEFORE: Ginsburg, Sentelle, and Henderson, Circuit Judges

ORDER

Upon consideration of the motion to modify the record, the

opposition thereto, and the reply; and the briefs filed by the parties,

is it

ORDERED that the motion to modify the record be granted. It

is

FURTHER ORDERED, on the court’s own motion, that this

appeal be disposed of without oral argument on the basis of the

record and the presentations in the briefs. The court has determined

that oral argument will not assist the court in this case. See D.C.

Cir. Rule 34(j).

Per Curiam

8a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARY THOMAS

and

IVY THOMAS,

Plaintiffs,

and

DONNA POWELL-THOMAS,

Plaintiff-Intervenor,

¥.

METROPOLITAN LIFE

INSURANCE CoO.,

Defendant.

ORDER

Civil Action No. 94-1908

(HHG)

This case is currently before the Court on Plaintiff-Intervenor

Donna Powell-Thomas’s Motion for Declaratory Judgment! and

Plaintiffs Mary and Ivy Thomas’s Motion for Summary Judgment.

Upon consideration of these motions, the oppositions thereto, the

replies, and the entire record in this case, the Court finds that

Plaintiff-Intervenor’s motion should be granted and Plaintiffs’

motion should be denied.

This case involves a dispute over who is the beneficiary of

decedent Gerald C. Thomas’s life insurance policy. On August 21,

1989, decedent executed a beneficiary designation form (“Form 1”)

1. The Court will treat this motion as a motion for summary judgment.

See Mobles v. Metropolitan Life Ins. Co., 1995 WL 72825, *1 (D.D.C.

Nov. 29, 1995). Because the sole issue before the Court involves one of

statutory interpretation, see infra, the Court finds this case to be amenable

to disposition by summary judgment. See Fed. R. Civ. P. 56(c).

4

Pe eae ener

9a

naming his wife, Plaintiff-Intervenor Donna Powell-Thomas, as the

sole beneficiary of this Federal Employees’ Group Life Insurance

(“FEGLI’) policy. On April 7, 1993, he executed another such

form (“Form 2”), again naming Powell-Thomas as the sole

beneficiary of his FEGLI policy. On October 13, 1993, decedent

completed yet another form (“Form 3”),? this time naming

Plaintiffs Mary and Ivy Thomas as the beneficiaries of 35% and

65%, respectively, of the policy. Decedent filled out Form 3 by

hand, printing his name, address, and date of execution. He also

checked a box preceding the statement “I have signed this form in

the presence of two witnesses who have signed below.” The form

was duly signed by two witnesses. However, the box marked

“Signature of Insured” was left blank.

The Federal Employees’ Group Life Insurance Act (“FEGLIA”)

provides that a life insurance policy shall be paid “to the person or

persons surviving at the date of [the decedent’s] death, in the

following order of preference”:

First, to the beneficiary or beneficiaries designated by the

employee in a signed and witnessed writing received before

death in the employing office . . . . For this purpose, a

designation, change or cancellation of beneficiary in a will of

other document not so executed and filed has no force or

effect.

5 U.S.C. § 8705(a). The sole issue for the Court to resolve in the

present case is whether the form was properly “signed” as required

by the statute.

The Court finds that the decedent’s acts of printing his name and

checking the box indicating that he had signed the form are

insufficient to constitute a signature as contemplated by the statute.

Courts have consistently held that FEGLIA requires strict

compliance with its provisions. E.g., Ward v. Stratton, 988 F.2d 65,

67 (8th Cir. 1993); Adams v. Macy, 314 F. Supp. 399, 401 (D. Md.

1970); Metropolitan Life Ins. Co. v. Trainor, 754 P.2d 427, 428

(Colo. Ct. App. 1988); Burleson v. Burleson, 277 A.2d 647, 648

(D.C. 1971). Although there is no requirement that a designation of

2. Although as noted infra the form does not bear decedent's signature,

it is undisputed that he completed this form.

10a

beneficiary be submitted on any particular form, here the decedent

used a standard form which clearly indicated the proper place to

affix his signature. The box was glaring left blank. Strictly

construing the statute, the Court finds no basis for concluding that

the form was “signed” based on his handwritten name on the line

designated as the area to “Print or type name” and a checkmark in a

box. Decedent had previously completed such forms in a proper

manner, and thus he clearly knew how to do so. Furthermore, in

several places, the form tells the policy holder that it must be

signed. Because it was not signed in this case, Form 3 is invalid.

Thus, according to the statute, Form 2 is still in full force and

effect, and decedent’s wife is the proper and sole beneficiary of the

policy.

Accordingly, it is, on this 22d day of January, 1996, hereby

ORDERED that Plaintiff-Intervenor Donna Powell-Thomas’s

Motion for Declaratory Judgment (treated as a Motion for

Summary Judgment) be and is hereby GRANTED; and it is

FURTHER ORDERED that Plaintiff-Intervenor Donna Powell-

Thomas be and is hereby GRANTED a declaratory judgment that

she is the sole beneficiary to the FEGLI policy of decedent Gerald

C. Thomas, Jr.; and it is

FURTHER ORDERED that Plaintiffs Ivy and Mary Thomas’s

Motion for Summary Judgment and Request for a Hearing be and is

hereby DENIED; and it is

FURTHER ORDERED that the Joint Request for a Status

Conference be and is hereby DENIED; and it is

FURTHER ORDERED that judgment be entered in favor of

Plaintiff-Intervenor Donna Powell-Thomas; and it is

FURTHER ORDERED that the Clerk of this Court shall

forthwith disburse the policy proceeds deposited into the registry of

this Court to Plaintiff-Intervenor Donna Powell-Thomas.

/S/ HAROLD H. GREENE

HAROLD H. GREENE

United States District Judge

Sa ON et Mtn heat os ae tn ctl Oe MMT Nam

lla

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MARY THOMAS

and

IVY THOMAS,

Plaintiffs,

- | Civil Action No. 94-1908

DONNA POWELL-THOMAS, (HHG)

Plaintiff-Intervenor,

¥.

METROPOLITAN LIFE

INSURANCE CO.,

Defendant.

ORDER

It is this 31st day of January, 1996, hereby

ORDERED that this Court’s order of January 22, 1996, in the

above-captioned case be and is hereby amended to include the

award of all interest accrued on the policy proceeds held in the

registry of this Court to Plaintiff-Intervenor Donna Powell-Thomas.

/Si/ HAROLD H. GREENE

HAROLD H. GREENE

United States District Judge

12a

APPENDIX G

5 U.S.C. Section 8705(a) (1994).

Section 8705. Death claims; order of precedence; escheat

(a) The amount of group life insurance and group accidental

death insurance in force on an employee at the date of his death

shall be paid, on the establishment of a valid claim, to the person or

persons surviving at the date of his death, in the following order of

precedence:

First, to the beneficiary or beneficiaries designated by the

employee in a signed and witnessed writing received before death

in the employing office or, if insured because of receipt of annuity

or of benefits under subchapter I of chapter 81 of this title as

provided by section 8706(b) of this title, in the Office of Personnel

Management. For this purpose, a designation, change, or

cancellation of beneficiary in a will or other document not so

executed and filed has no force or effect.

Second, if there is no designated beneficiary, to the widow or

widower of the employee.

Third, if none of the above, to the child or children of the

employee and descendants of deceased children by representation.

Fourth, if none of the above, to the parents of the employee or

the survivor of them.

Fifth, if none of the above, to the duly appointed executor or

administrator of the estate of the employee.

Sixth, if none of the above, to the other next of kin of the

employee entitled under the laws of the domicile of the employee at

the date of his death.

13a

APPENDIX H

1 U.S.C. Section 1 (1994)

Section 1. Words denoting number, gender, and so forth

In determining the meaning of any Act of Congress, unless the

context indicates otherwise -

“signature” or “subscription” includes a mark when the person

making the same intended it as such;

l4a

APPENDIX I

5 C.F.R. Section 870.901 (1995).

Subpart I - Order of Precedence

and Designation of Beneficiary

Section 870.901 Order of precedence.

(a) Definitions. For the purpose of this part, the following terms

are defined as follows:

(1) Child means a legitimate child, an adopted child, or a

recognized natural child but does not include a stillborn child, a

stepchild , or a foster child. An individual who has attained the age

18 is considered to be an adult. However, if the age of majority in

the jurisdiction in which what individual is domiciled is set at a

lower age, he or she is considered to be an adult upon attaining the

age designated in that jurisdiction. An adopted child does not

inherit under the order of precedence specified in 5 U.S.C. 8705,

other than as a designated beneficiary, from his/her natural parents

but inherits from and through his or her adoptive parents.

However, a child who is adopted by the spouse of his or her natural

parent does inherit from that natural parent.

(2)(i) A recognized natural child, with respect to paternity, is

one for whom the father meets one of the following:

(A) Has acknowledged paternity in writing;

(B) Has been judicially ordered to provide support;

(C) Has, before his death, been judicially decreed to be the

father;

(D) Has been established as the father by a certified copy of the

public record of birth or church record of baptism if the insured was

the informant and so named himself as the father of the child; or

(E) Has established paternity on public records, such as school or

social welfare agencies, which show that with his knowledge the

insured was named as the father of the child.

(ii) Secondary evidence to support the alleged paternity, such as

evidence of eligibility as a recognized natural child under other

State or Federal programs or proof of inclusion of the child as a

lSa

recognized natural child on the insured’s income tax returns, may

also be considered in the determination process.

(3) Parent means the mother or father of a legitimate child or an

adopted child. The term parent includes the mother of a recognized

natural child and the father of recognized natural child but only if

the recognized natural child meets the definition provided in

paragraph (a)(2) of this section. An individual can not inherit from

a child who has been adopted by someone else. However, an

individual whose spouse adopted his or her child can inherit from

that child.

(4) Duly appointed representative of the insured’s estate means

an individual named in an order of a court having jurisdiction over

the estate of the insured which grants the individual the authority to

receive, or the right to possess, the property of the insured; and also

means, where the law of the domicile of the insured has provided

for the administration of estates through alternative procedures

which dispense with the need for a court order, an individual who

demonstrates that he or she is entitled to receive, or possess, the

property of the insured under the terms of those alternative

procedures.

(b) If an insured provided in a valid designation of beneficiary

that the proceeds of the insurance shall be payable to the insured’s

estate, or to the Executor, Administrator, or other representative of

the insured’s estate, or if the proceeds would otherwise be properly

payable to the duly appointed representative of the insured’s estate

under the order of precedence specified in 5 U.S.C. 8705(a),

payment of the proceeds to the duly appointed representative of the

insured’s estate will bar recovery by any other person.

l6a

APPENDIX J

5 C.F.R. Section 870.902 (1995)

Section 870.902 Designation of beneficiary.

(a) A designation of beneficiary shall be in writing, signed, and

witnessed by two people, and received in the employing office (or

in OPM, in the case of: (1) An annuitant or (2) a compensationer

whose basic life insurance is continued) before the death of the

insured.

(b) A change or cancellation of beneficiary in a last will or

testament, or in any other document not witnessed and filed as

required by this part, shall not have any force or effect.

(c) A witness to a designation of beneficiary is ineligible to

receive payment as a beneficiary.

(d) Any person, firm, corporation, or legal entity (except an

agency of the Federal or District of Columbia governments) may be

named as beneficiary.

(e) A change of beneficiary may be made at any time and without

the knowledge or consent of the previous beneficiary. This right

cannot be waived or restricted.

(f) A designation of beneficiary is automatically canceled 31

days after the employee stops being insured.

(g) If an insured person provides in a valid designation of

beneficiary that a designated beneficiary shall be entitled to the

proceeds of the insurance only if the beneficiary survives him/her

for a period of time (not more than 30 days) as specified by the

designator, no right to the insurance shall vest as to such

beneficiary during that period. In the event such beneficiary does

not survive the specified period, payment of the proceeds of the

insurance will be made as if the beneficiary had predeceased the

insured.

17a

APPENDIX K

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION p

METROPOLITAN LIFE

INSURANCE COMPANY,

Plaintiff,

-VS-

BETTYE J. GRANT,

EDYEMAE LARKINS - CASE NO. 96-136-Civ-Oc-10B

GAYTON and ESTHER

MALONE (named in error

as ESTELLE GAYTON), as

parent and natural guardian

of JESSICA L. GAYTON,

Defendants.

ORDER DENYING MOTIONS FOR

SUMMARY JUDGMENT AND

TRANSFERRING CASE

Presently before the Court are the parties’ cross-motions for

summary judgment. The issues have been thoroughly briefed and

the Court has heard oral argument.

The undisputed facts are these. At all material times until his

death, Mack Arthur Gayton was employed by the United States

Immigration and Naturalization Service (INS). As a federal

employee, Mr. Gayton was insured under a group life insurance

policy issued by the Plaintiff to the United States Office of

Personnel Management (OPM) pursuant to the Federal Employees

Group Life Insurance Act. 5 U.S.C. § 8701, et seq. Mr. Gayton

acquired both basic and additional coverage in a total amount of

$148,600.

~

18a

On June 27, 1988, Mr. Gayton used a standard form generated by

OPM to designate the beneficiaries of his life insurance policy.

Prepared by Mr. Gayton, in his own handwriting, the form specified

that the policy proceeds were to be paid to the Defendant Grant,

who was then Mr. Gayton’s fiancee, if she outlived him and, if not,

to June Shark, Mr. Gayton’s sister. The form was signed by two

witnesses. Mr. Gayton printed his name and address on the form

and signed it in a space designated for that purpose. The form was

received by INS on July 1, 1988.

On September 14, 1990, Mr. Gayton filled out a second standard

designation of beneficiary form. Like the first, this form was also

prepared in Mr. Gayton’s own handwriting and it listed his

daughter, Jessica Gayton, and his wife, the Defendant Edyemae

Gayton, as the beneficiaries of the policy, with each to take one-

half of the proceeds. This form was also signed by two witnesses

and Mr. Gayton had again printed his name and address on the

form. However, no marking was made in the space set aside for the

signature of the insured. Additionally, Mr. Gayton failed to check a

box next to the affirmation “I have signed this form in the presence

of the two witnesses who have signed below.” Despite these

deficiencies, the form was sent to INS where it was received on

October 12, 1990.

Mr. Gayton died on April 21, 1995. On April 25, Edyemae

Gayton filed with the Plaintiff a claim for death benefits under the

policy. The Plaintiff denied the claim reasoning that the second

designation of beneficiary form was ineffective because Mr.

Gayton failed to sign the form in the appropriate space. Ms.

Gayton subsequently retained counsel who advised the Plaintiff of

his intent to bring suit to recover Ms. Gayton’s share of the policy

proceeds pursuant to the second designation of beneficiary form. In

the interim, the Plaintiff contacted the Defendant Grant concerning

her potential entitlement to the insurance benefits. However, Ms.

Grant did not file a claim for benefits until more than one year had

elapsed after Mr. Gayton’s death.

On June 24, 1996, the Plaintiff filed its complaint for declaratory

judgment and interpleader (Doc. 1). The Plaintiff requested leave

to deposit the policy proceeds in the court registry; that the Court

enter a judgment declaring which of the claimants is entitled to the

19a

benefits of the policy; and, upon entry of such a judgment, that the

Plaintiff be discharged from any further liability arising out of any

conflicting claims to the proceeds of Mr. Gayton’s life insurance

policy. The litigation progressed in the usual course and all of the

Defendants filed motions for summary judgment asserting their

respective entitlements to the proceeds of the life insurance policy.

The entry of summary judgment is appropriate only when the

court is satisfied that “there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of

law.” FED.R.CIv.P. 56(c). In applying this standard, the court must

examine the pleadings, affidavits and other evidence in the record

“in the light most favorable to the non-moving party.” Samples on

Behalf of Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988).

The moving party bears the initial burden of establishing the

nonexistence of a triable fact issue. Celotex Corp. v. Catrett, 477

U.S. 317, 106 S.Ct. 2458, 91 L.Ed.2d 265 (1986). If the movant is

successful on this score, the burden of production shifts to the non-

moving party who must then come forward with sufficient evidence

of each and every element that he or she must prove.” Rollins v.

TechSOUTH, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). The non-

moving party may not simply rest on the pleadings, but must use

affidavits, depositions, answers to interrogatories or other evidence

to demonstrate that a material fact issue remains to be tried.

Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

The Federal Employees’ Group Life Insurance Act (FEGLIA)

establishes an order of precedence for determining who is entitled

to the proceeds of a policy issued pursuant to the Act. As it

pertains to this case, the Act provides that the proceeds of a life

insurance policy shall be paid “to the person or persons surviving at

the date of [the insured’s] death, in the following order of

precedence:

First, to the beneficiary or beneficiaries designated by the

employee in a signed and witnessed writing received before

death in the employing office.... For this purpose, a

designation, change, or cancellation of beneficiary in a will or

other document not so executed and filed has no force or

effect.

20a

Second, if there is no designated beneficiary, to the widow or

widower of the employee.”

5 U.S.C. 8705(a) (1996) (emphasis added). See also 5 C.F.R.

§ 870.902 (1996). The Act also provides that if a person entitled to

precedence under the statute fails to file a claim for payment within

one year after the death of the insured, payment may be made as if

that potential claimant had predeceased the insured. 5 U.S.C.

§ 8705(b).

The motions for summary judgment raise three issues under

these statutory provisions; whether Mr. Gayton’s failure to sign the

form in the space provided for that purpose renders the second

designation of beneficiaries invalid; if so, whether Ms. Grant’s

failure to file a claim within the one year period precludes her

entitlement to the proceeds; and if not, whether the second

designation, although invalid, operated to revoke the earlier

document naming Ms. Grant as the beneficiary under the policy.

A. The Signed Writing Requirement

The Plaintiff and the Defendant Grant argue that Mr. Gayton’s

failure to sign the second beneficiary designation form in the space

provided, and his failure to check the box affirming that he signed

the form before two witnesses, renders the attempted substitution of

beneficiaries ineffective. Thus, they claim, the designation of Ms.

Grant as the beneficiary remains valid and she is, accordingly,

entitled to the the policy funds as a matter of law. The Defendants

Gayton and Malone counter this argument by pointing to the

following facts: Mr. Gayton printed his name on the form; Mr.

Gayton dated the form in a space marked “Date of Execution;” the

form was signed by two witnesses in a space marked “Witness to

Signature;” and Mr. Gayton sent the form to INS where it was

received four and one-half years prior to his death. Given these

circumstances, the Defendants Gayton and Malone maintain that

appearance of Mr. Gayton’s name in print is sufficient to make the

form a signed writing within the meaning of § 8705(a).

The statute does not require the use of a standard form to

designate a beneficiary. Neither does the statute, nor do the

regulations interpreting it, define the word “signed.” Further, it

appears that there is only one published decision concerning

2la

whether a failure to make any marking on the signature line of a

preprinted designation form renders the attempted designation

invalid as a matter of law. Thomas v. Metropolitan Life Ins. Co.,

921 F.Supp. 810 (D.C. 1996), affirmed, 111 F.3d 963 (D.C. Cir.

1997). In Thomas, the insured attempted to change the designation

of his life insurance beneficiaries using a standard form. The form

was filled out in the insured’s own handwriting and was subscribed

by two witnesses. The insured also check the box affirming that he

signed the form in the presence of the witnesses but failed to make

any markings on the signature line.

The court held that the absence of any marking in the space set

aside for the insured’s signature deprived the designation form of

any legal effect. /d. at 811. Reasoning that Congress intended

strict compliance with the beneficiary designation provisions of

FEGLIA, the Court concluded that where an insured fails to sign in

the space provided on a preprinted form, the insured can not be said

to have complied with the signed writing requirement of the

statute.' Jd. at 811. The court noted that its approach was

particularly appropriate in light of the fact that the insured had, on

two prior occasions, signed the standard form in the appropriate

space. /d. at 812. :

1. The principle that strict compliance with § 8705(a) is required may

be considered a reaction to the Ninth Circuit decision in Sears v. Austin,

292 F.2d 690 (9th Cir. 1961), cert. denied, 368 U.S. 929, 82 S.Ct. 365,

7 L.Ed.2d 192 (1961), in which the court held that a life insurance

beneficiary designation in a holographic will was sufficient to entitle the

new beneficiary to the policy proceeds. Fearing that Sears, if followed,

would create severe complications in the administration of FEGLIA

policies, the Congress amended the statute to provide that beneficiary

designations not executed in the manner provided for by § 8705(a) are of

no force and effect. See Adams v. Macy, 314 F.Supp. 399, 400-01 (D.Md.

1970).

;

22a

While the Thomas approach is certainly convenient and

possesses superficial appeal, it is not persuasive to me.” To be sure,

FEGLIA requires strict compliance with its beneficiary designation

provisions and deviations from those provisions will render an

attempted designation invalid. E.g., Metropolitan Life Ins. Co. v.

Sullivan, 96 F.3d 18, 19-20 (2d Cir. 1996), cert. denied, _. US.

—_, 117 S.Ct. 972, 136 L.Ed.2d 836 (1997) (beneficiary

designation executed by third party acting under power of attorney

held invalid); Ward v. Stratton, 988 F.2d 65, 67-68 (letter

purporting to change beneficiary designation ineffective where it

was not witnessed). However, this is not a case in which a claimant

requests that partial compliance with the statute be accepted, or that

noncompliance be excused. The statute does not define the term

“sign.” The statute does not require that a standard form be used

and filled out according to its terms in order to change a beneficiary

designation. In short, there is no specific statutory requirement,

with which strict compliance would be required, that Mr. Gayton

ran afoul of in failing to sign the designated signature line. The

issue in this case, therefore, is whether Mr. Gayton signed the

beneficiary designation at all.

The Court concludes that a writing is signed as required by

FEGLIA when the insured has made some marking on the

document which he intends as his signature. The understanding

comports with the rules of construction for the United States Code.

§ 1 U.S.C. § 1 (1985) (“In determining the meaning of any Act of

Congress. . . ‘signature’. . . includes a mark when the person

making the same intended it as such”). In short, any mark intended

as a person’s signature becomes a signature. The fact—if it is a

fact—that the mark or writing differs in form or style from the

person’s usual method of signing his or her name is of no

2. Interestingly, in its unpublished opinion affirming the district

court’s entry of summary judgment, the Court of Appeals said: “Assuming

arguendo that an insured under a [FEGLI] policy is not required . . . to use

the space provided for the signature of the insured, appellants nonetheless

failed to prove by a preponderance of the evidence that the insured in this

case signed the contested form. .. [T]he evidence as a whole does not

support concluding that Thomas intended his name as printed . . . on the

contested form to constitute his signature.” Thomas v. Metropolitan Life

Ins. Co., 1997 WL 159428 (D.C. Cir. 1997).

23a

determinative legal consequence. Of course, such a difference

would be an item of evidence to be taken into account in deciding

whether the irregular mark or writing was intended as a valid

signature (and would usually give rise to a negative inference,

perhaps); but the irregularity alone is not conclusive of the issue.

Additionally, although the determination of whether the insured

intended a specific marking as his signature may be difficult to

make in some cases, it does provide a rule with which strict

compliance can be required, i.e., if no such marking exists, the

insured has failed to strictly comply with the terms of the statute

despite any evidence that the insured may have actually intended to

designate the beneficiary named in the writing.

It is hormbook law that questions concerning an individual’s

intent are intensely fact driven and rarely susceptible of disposition

by way of summary judgment. The Court is of the opinion that the

facts surrounding the execution of the second beneficiary

designation form permit conflicting inferences concerning the

markings made on the form—specifically Mr. Gayton’s printed

name—and Mr. Gayton’s intent in making them. As such, the

motions for summary judgment, as they relate to the question of

whether Mr. Gayton signed the form, should be denied.

B. Timely Filing of a Claim for Benefits

The Defendants Gayton and Malone argue that because the

Defendant Grant failed to file a claim for benefits under the policy

within one year of Mr. Gayton’s death, she is time barred from

asserting a claim in this action by operation of 5 U.S.C. § 8705(b).

That statute provides:

If, within 1 year after the death of the employee, no claim for

payment has been filed by a person entitled under the order of

precedence . . . payment may be made in the order of

precedence as if the person had predeceased the employee, and

__ payment bars recovery by any other person.

The argument is without merit and contrary to the unambiguous

language of the statute. The statute provides that payment may be

made to another claimant if a potential claimant entitled to

preference has not filed a claim for benefits within a year of the

insured’s death, not that such payment must be made. Further, the

24a

statute makes clear that it is not the passage of a year from the

insured’s death that bars recovery by a claimant; rather, it is the

payment of the proceeds to another claimant which does so.’ In

this case, although one year had elapsed from Mr. Gayton’s death

before the Defendant Grant filed her claim, the Plaintiff opted to

make no payments to either claimant and, instead, to seek a judicial

determination of the entitlement to the policy proceeds. Because no

payment has been made, Ms. Grant is not time barred from

pursuing her claim and Gayton and Malone’s motion for summary

judgment should be denied to this extent.

C. Cancellation of the First Designation

The Defendants Gayton and Malone next argue that, even if

ineffective to designate a new beneficiary, the second designation

does operate to cancel the first. The result of this claim, of course,

is that Ms. Gayton would take the proceeds as the next claimant in

the order of preference.

Again, however, the arugment is contrary to the clear statutory

language. 5 U.S.C. § 8705(a) provides that any writing purporting

to change a beneficiary designation under a life insurance policy

issued pursuant to FEGLIA that is not executed and filed as

required by the statute “has no force or effect.” 5 U.S.C. § 8705(a).

3. The authority cited by the Defendants Gayton and Malone is not to

the contrary. See Jacobs v. United States, 794 F.Supp. 509 (S.D.N.Y.

1992); Brown v. Wharton, 756 F.Supp. 223 (E.D.Pa. 1990). Both of these

cases involved determinations that a claimanet was time barred from

asserting a claim after the insurer had paid the benefits to another claimant

and neither decision suggests that the statute would bar recovery absent

payment of the proceeds. Hughes v. Goodwin, 860 F.Supp. 272 (D.Md.

1994), addressed whether a federal employee had waived life insurance

coverage under FEGLIA and is, therefore, inapposite.

25a

The argument made by Gayton and Malone assumes that the second

form was not executed as required by the statute and, given that

assumption, the statute demands the conclusion that the second

designation form was without effect, either in terms of changing the

beneficiaries or in terms of cancelling the prior designation.* The

motion for summary judgment should be denied.

4. Gayton and Malone maintain that the regulations interpreting the

Statute require that a document changing or cancelling a beneficiary, as

opposed to designating one in the first instance, need only be “witnessed

and filed,” and not signed by the insured as required by the statute. 5

C.F.R. § 870.902(b). They do not dispute, nor could they, that under the

Statute, taken alone, a signed writing is necessary to cancel a previous

beneficiary designation. The argument that the regulation requires

something less than the statute merits no serious consideration. The

statute would nonetheless trump the regulation as the definitive expression

of the will of Congress.

26a

CONCLUSION

At the hearing conducted on the summary judgment motions on

May 20, 1997, the parties stipulated that, should the motions for

summary judgment be denied, the balance of conveniences weighed

heavily in favor of holding the trial of this case in the District of

New Jersey and that venue is proper there. Having concluded that

this case cannot be appropriately disposed of on the motions for

summary judgment, the case will be so transferred pursuant to 28

U.S.C. § 1404(a).

Accordingly, upon due consideration,

(1) the Defendant Grant’s motion for summary judgment

(Doc. 16) is DENIED.

(2) The Defendants Gayton and Malone’s motion for

summary judgment (Doc. 28) is DENIED.

(3) This case is hereby TRANSFERRED, pursuant to 28

U.S.C. §1404(a), to the United states District Court for the

District of New Jersey. The Clerk is directed to take all steps

necessary to effectuate the transfer.

IT IS SO ORDERED.

DONE and ORDERED in Jacksonville, Florida, this 7th day of

July, 1997.

/s/ W. Terrell Hodges

UNITED STATES DISTRICT JUDGE

Copy to counsel of record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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