This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. 32.1 and 10th Cir.

R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

September 23, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD A. JOHNSON; IDA

JOHNSON; JOHN AND JANE DOES

1-100, 

 Plaintiffs-Appellants,

v.

CYNTHIA A. POMEROY, Director,

Wyoming Department of Employment;

GARY W. CHILD, Administrator,

Wyoming Workers’ Safety and

Compensation Division; PEGGY

ELGIN, Assistant Administrator,

Wyoming Workers’ Safety and

Compensation Division; KELLI

SMITH, Claims Manager, Wyoming

Workers’ Safety and Compensation

Division; BARBARA BRAZZALE,

Claims Analyst, Wyoming Workers’

Safety and Compensation Division;

JOHN AND JANE DOES A-Z,

 Defendants-Appellees.

No. 07-8016

(District of Wyoming) 

(D.C. No. 06-CV-194-J)

ORDER AND JUDGMENT

*

Before KELLY and TYMKOVICH, Circuit Judges, and FRIZZELL, District
 Hon. Gregory K. Frizzell, United States District Judge for the Northern **

District of Oklahoma, sitting by designation.

- 2 -

Judge.**

The question presented in this appeal is whether the denial of extended

workers’ compensation disability benefits to Richard Johnson based on his

spouse’s income impermissibly interferes with the Johnsons’ exercise of their

constitutional rights to associate with one’s family and to marry. The district

court held that the consideration of spousal income has only an incidental burden

on the Johnsons’ marital relationship and did not constitute a violation of their

constitutional rights. For the reasons set forth below, we AFFIRM.

I. Allegations and Procedural Background

Appellants Richard and Ida Johnson were married on July 7, 1979. 

Complaint, Aplt. App. at 6. In 1981 and 1984, Mr. Johnson was injured while

working as an oilfield roughneck. Id. As a result of those injuries, Mr. Johnson

became permanently and totally disabled from performing any work for which he

was reasonably suited by experience and training. Id. 

In 1993, Mr. Johnson received an award of permanent total disability

(“PTD”) benefits under the Wyoming Workers’ Compensation Act. Id. In each

of the next few years, Mr. Johnson applied for and received extended PTD

benefits. In 1997, however, the Wyoming Workers’ Safety and Compensation
- 3 -

Division denied his claim for extended benefits. Id. at 6-7. The Division advised

Mr. Johnson that, because of his wife’s income, he was no longer eligible for such

benefits. Id. at 7. The Division relied upon Wyo. Stat. § 27-14-403(g)(i)(C),

which provided that, in determining entitlement to benefits, the hearing examiner

“shall consider income of the employee from all sources including active or

passive income, household income and any monthly amount from any other

governmental agency[.]” Id. In denying Mr. Johnson’s claim, the Division

considered Ida Johnson’s earnings as “household income.” Id. 

Wyo. Stat. § 27-14-403(g)(i)(C) was enacted in 1986. The Johnsons allege

that, from the time of the statute’s enactment until 1997, the Division had not

considered spousal income in determining entitlement to extended PTD benefits. 

Aplt. App. at 7-8. In August of 1997, the Division promulgated a proposed rule

which would allow consideration of spousal income in determining entitlement to

extended disability benefits. Id. After a public hearing on the proposed rule in

October of 1997, and in response to public criticism, the Division retracted the

proposed rule. Id. at 8. During the following legislative session in 1998, the

Wyoming Legislature amended Wyo. Stat. § 27-14-403(g)(i)(C), to provide that

household income is not to be considered in determining eligibility for extended

benefits. The amended statute is silent as to its retroactive effect. However, the

preamble to the session law in which the Wyoming Legislature adopted the

changes specified the law’s purpose as “clarifying which household income may
1

 Under Wyoming State Workers’ Compensation law, “the substantive law

in effect at the time of the injury governs the receipt of benefits.” Ottema v. State

ex rel., Wyoming Worker’s Comp. Div., 968 P.2d 41, 44 (Wyo. 1998) (citing

Wyo. Stat. § 27-14-602(b)). For purposes of determining claims for extended

benefits, the injury is deemed to have occurred when the claimant was found to be

permanently disabled. Id. at 44-45; see also In re Claim of Prasad, 11 P.3d 344,

346 (Wyo. 2000); Rodgers v. State ex rel., Worker’s Comp. Div., 939 P.2d 246,

- 4 -

and may not be used in calculating extended benefits.” 1998 Wyo. Sess. Laws,

Ch. 117. 

After a contested case hearing in 1998, Mr. Johnson was awarded

retroactive extended PTD benefits. Id. He continued to receive extended PTD

benefits until September 27, 2005, when the Division issued a final determination

denying his claim on the basis that the Johnsons’ combined household income

exceeded their combined household expenses. Id. at 8-9. The primary reason for

denying extended PTD benefits was the amount of income earned by Ida Johnson. 

Id. at 9.

Mr. Johnson objected to the September 2005 determination and requested a

contested case hearing. Id. On July 3, 2006, the hearing officer entered Findings

of Fact and Conclusions of Law denying Mr. Johnson’s claim. Id. In the order,

the hearing officer found that Mr. Johnson would have been entitled to an award

of the maximum amount of extended PTD benefits if Ida Johnson’s income had

not been considered. Id. at 9-10. However, the hearing officer denied the claim

because the law in effect in 1993 – when Mr. Johnson was first awarded PTD

benefits – allowed consideration of spousal income. Id. at 10. 

1
249 (Wyo. 1997). The hearing officer concluded that the law in effect in 1993,

when Wyoming determined that Johnson was permanently and totally disabled,

governed his entitlement to benefits. The hearing officer noted Johnson’s

argument that the 1998 statutory amendment should be given retroactive effect.

 The named defendants include: (i) Cynthia Pomeroy, Director, Wyoming 2

Department of Employment; (ii) Gary Child, Administrator, Wyoming Workers’

Safety and Compensation Division; (iii) Peggy Elgin, Assistant Administrator,

Wyoming Workers’ Safety and Compensation Division; (iv) Kelli Smith, Claims

Manager, Wyoming Workers’ Safety and Compensation Division; and (v) Barbara

Brazzale. Brazzale is alleged to have acted under the supervision and direction of

Pomeroy, Child, Elgin and Smith. 

- 5 -

Mr. Johnson appealed the administrative denial of his claim for benefits to

state district court. The Johnsons also brought a federal civil rights action,

pursuant to 42 U.S.C. § 1983, in the United States District Court for the District

of Wyoming, against Barbara Brazzale, Mr. Johnson’s Claims Analyst in the

Division, and Brazzale’s supervisors (collectively the “Employees”). The 2

Johnsons allege that the denial of extended PTD benefits to Mr. Johnson based on

Ida Johnson’s income infringes upon their constitutional rights to associate with

one’s family and to marry.

The Employees moved to dismiss the Johnsons’ federal claims pursuant to

Fed. R. Civ. P. 12(b)(l) and 12(b)(6), arguing that no fundamental constitutional

rights have been violated. The Employees contend that their denial of workers’

compensation benefits had, at best, an indirect burden on the exercise of the right

to marry or associate with family, and did not impermissibly interfere with those

fundamental rights. 
 Because the district court concluded there was no constitutional violation, 3

it did not address defendants’ other arguments raised in the motion to dismiss,

including a qualified immunity defense. 

 The Johnsons allege that Wyo. Stat. § 27-14-403(g)(i)(C) is 4

unconstitutional both on its face and as applied by the Employees. As a result of

the Wyoming Supreme Court’s decision that the statute as it existed in 1993 did

not allow for consideration of spousal income, the Johnsons’ claim that the statute

is unconstitutional is moot. The issue remains as to whether the Employees’

denial of workers’ compensation benefits based upon Ida Johnson’s income

impermissibly impinged upon the Johnsons’ constitutional rights. 

- 6 -

 The federal district court dismissed the Johnsons’ claims, concluding that

Wyoming’s administrative regulations and corresponding determinations as to Mr.

Johnson’s entitlement to receive extended Workers’ Compensation disability

benefits did not constitute an impermissible interference with the Johnsons’

fundamental constitutional rights.3

Shortly after the federal district court’s decision, the state district court

reversed the decision of the hearing officer in the workers’ compensation case. 

The state district court held that the Wyoming statute in effect in 1993 did not

permit consideration of spousal income in determining entitlement to permanent

disability benefits. On June 2, 2008, following oral argument on this appeal, the

Wyoming Supreme Court affirmed the state district court’s order and remanded

the matter to the district court for remand to the Division for a new decision

consistent with the opinion. State ex rel. Wyoming Workers’ Safety and

Compensation Div. v. Johnson, 185 P.3d 16 (Wyo. 2008). In affirming the state 4

district court, the Wyoming Supreme Court noted that the Wyoming legislature
- 7 -

characterized its 1998 statutory amendment as a clarification of existing law

regarding household income rather than a change in the status quo. Id. at 19. 

Therefore, the Wyoming Court concluded, “[t]he necessary inference is that the

income of other household members has always been excluded from

consideration.”

II. Discussion 

 We have jurisdiction of this appeal under 28 U.S.C. § 1291. As the

sufficiency of a complaint is a question of law, we review de novo a district

court’s grant of a motion to dismiss pursuant to Rule 12(b)(6). Alvarado v.

KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). “We must accept all the

well-pleaded allegations of the complaint as true and must construe them in the

light most favorable to the plaintiff.” David v. City & County of Denver, 101

F.3d 1344, 1352 (10th Cir. 1996). In reviewing the complaint, we require “only

enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic

Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007);

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

“Title 42 U.S.C. § 1983 provides a remedy for deprivations of rights

secured by the Constitution and laws of the United States when that deprivation

takes place ‘under color of any statute, ordinance, regulation, custom, or usage, of

any State or Territory . . . .’” Lugar v. Edmondson Oil Co., 457 U.S. 922, 924,

102 S.Ct. 2744, 2747, 73 L.Ed.2d 482 (1982) (quoting § 1983). A civil rights
- 8 -

plaintiff proceeding under § 1983 must allege that some person has deprived him

of a federally protected right. Houston v. Reich, 932 F.2d 883, 890 (10th Cir.

1991). Section 1983 does not provide a remedy for abuses that do not violate

federal law. Collins v. City of Harker Heights, 503 U.S. 115, 119, 112 S.Ct.

1061, 1065, 117 L.Ed.2d 261 (1992). It does not provide a basis for redressing

violations of state law. Jones v. City and County of Denver, 854 F.2d 1206, 1209

(10th Cir. 1988). 

The Due Process Clause of the Fourteenth Amendment provides that no

state shall deprive any person of liberty without due process of law. The liberty

protected thereunder includes the right to marry. Meyer v. Nebraska, 262 U.S.

390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Cleveland Bd. of Educ. v.

LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974). The

United States Supreme Court has recognized marriage as “the most important

relation in life,” Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed.

654 (1888), “fundamental to [our] very existence and survival,” Skinner v. Okla.

ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655

(1942), and “one of the vital personal rights essential to the orderly pursuit of

happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12, 1287 S.Ct. 1817,

1824, 18 L.Ed.2d 1010 (1967). 

In addition to a liberty interest in the right to marry, the Fourteenth

Amendment protects a liberty interest in the right of familial association. The
- 9 -

freedom of intimate association is “an intrinsic element of personal liberty.” 

Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20, 104 S.Ct. 3244, 3251, 82 L.Ed.2d

462 (1984); see also Trujillo v. Bd. of County Comm’rs, 768 F.2d 1186, 1188-89

(10th Cir. 1985). In Roberts, the Supreme Court held that application of the

Minnesota Human Rights Act to compel the Jaycees to accept women as regular

members did not abridge the male members’ freedom of intimate association or

their freedom of expressive association. In describing the right of intimate

association, the Court distinguished between family relationships and other types

of personal relationships – such as those between members of the Jaycees – which

are less likely to give rise to this constitutional protection. The Court recognized

that “choices to enter into and maintain certain intimate human relationships must

be secured against undue intrusion by the State . . . .” Id. at 617-18, 104 S.Ct. at

3249. Among those intimate human relationships are “[f]amily relationships,

[which] by their nature, involve deep attachments and commitments to the

necessarily few other individuals with whom one shares not only a special

community of thoughts, experiences, and beliefs but also distinctively personal

aspects of one’s life.” Id. at 619-20, 104 S.Ct. at 3250. 

In this case, Richard and Ida Johnson have constitutionally protected liberty

interests in their marriage and in their familial association. We now consider

whether the Johnsons have stated a claim for deprivation of their liberty interests

so as to support a cause of action under § 1983.
- 10 -

In Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977), the

Supreme Court considered a challenge to a Social Security Act provision that

discontinued benefits to a disabled dependent child upon marrying a person who

was ineligible to receive social security benefits. The Court noted that “there can

be no question about the validity of the assumption that a married person is less

likely to be dependent on his parents for support than one who is unmarried.” Id.

at 53, 98 S.Ct. at 99. Therefore, “it was rational for Congress to assume that

marital status is a relevant test of probable dependancy,” and that termination of a

child’s benefits upon marriage satisfied the constitutional test. The Court stated

that the general rule terminating benefits upon marriage “is not rendered invalid

simply because some persons who might otherwise have married were deterred by

the rule or because some who did marry were burdened thereby.” Id. at 54, 98

S.Ct. at 99. Upon review of the statutory classifications, the Court concluded

that they were “legitimate exercises of Congress’ power to decide who will share

in the benefits of the [social security] trust fund”, id. at 58, 98 S.Ct. at 102, and

that the favored treatment of marriages between secondary social security

beneficiaries did not violate the principle of equality embodied in the Due Process

Clause of the Fifth Amendment. 

Two months after Jobst, the Supreme Court decided Zablocki v. Redhail,

434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). Zablocki involved the

constitutionality of a statute prohibiting any Wisconsin resident “having minor
- 11 -

issue not in his custody and which he is under obligation to support by any court

order or judgment” from marrying without first obtaining a court order granting

permission to marry. Id. at 375, 98 S.Ct. at 675. Court approval could not be

granted absent a showing that the support obligation had been met and the

children were not likely to become public charges. Id. 

The Milwaukee County Clerk, Zablocki, denied Redhail’s application for a

marriage license because Redhail had not obtained the statutorily required court

order granting him permission to marry. Although Redhail did not petition the

court for permission to marry, it was undisputed that he would not have been able

to satisfy either of the statutory prerequisites for an order granting permission to

marry. Id. at 378, 98 S.Ct. at 677. 

The Supreme Court determined that the Wisconsin statute directly and

substantially interfered with the right to marry. Id. at 387, 98 S.Ct. at 681. In

reaffirming the fundamental character of the right to marry, the Court explained: 

[W]e do not mean to suggest that every state regulation which relates

in any way to the incidents of or prerequisites for marriage must be

subjected to rigorous scrutiny. To the contrary, reasonable

regulations that do not significantly interfere with decisions to enter

into the marital relationship may legitimately be imposed. 

Id. at 386, 98 S.Ct. at 681. As an example of reasonable state regulation, the

Court cited Jobst, supra, where

the rule terminating benefits upon marriage was not ‘an attempt to

interfere with the individual’s freedom to make a decision as

important as marriage.’ 434 U.S., at 54, 98 S.Ct., at 99. The Social
- 12 -

Security provisions placed no direct legal obstacle in the path of

persons desiring to get married, and . . . there was no evidence that

the laws significantly discouraged, let alone made ‘practically

impossible,’ any marriages. 

Id. at 387, n. 12; 98 S.Ct. at 681, n. 12.

Courts have subsequently applied the Jobst/Zablocki analysis to cases

involving claims of impermissible interference with the right to marry. Following

the Tax Reform Act of 1969, many two wage-earner married couples were

subjected to the “marriage penalty,” where their combined tax burden, whether

they chose to file jointly or separately, was greater than it would have been if

they had remained single and filed as single taxpayers. In Druker v.

Commissoner of Internal Revenue, 697 F.2d 46 (2d Cir. 1982), cert. denied, 461

U.S. 957, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983), the plaintiff taxpayers alleged

that the “marriage penalty” was unconstitutional. The Second Circuit had no

doubt that the “marriage penalty” had some adverse effect on marriage, but

concluded that the adverse effect, “like the effect of the termination of social

security benefits in Jobst, is merely ‘indirect’; while it may to some extent weight

the choice whether to marry, it leaves the ultimate decision to the individual.” Id.

at 50. The challenged tax rate structure placed no direct legal obstacle in the path

of persons desiring to get married, it did not absolutely prevent anyone from

getting married, and it did not attempt to interfere with the individuals’ freedom

to marry. The Second Circuit concluded that the “marriage penalty” did not
- 13 -

deprive the Drukers of a constitutional right. Id. at 51.

Similarly, in Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978), cert.

denied, 439 U.S. 1046, 99 S.Ct. 722, 58 L.Ed.2d 705 (1978), the United States

Court of Claims held that the tax rates resulting in the “marriage penalty” were

constitutional. 

The additional tax liability suffered by two-income couples who

cannot avail themselves of the rates for single persons is an indirect

burden on the exercise of the right to marry. It is suffered not for

marrying but for marrying one in a particular income group. This

does not rise to the level of an ‘impermissible’ interference with the

enjoyment of a fundamental right.

576 F.2d at 901. “[T]he elevated tax burden might in fact dissuade some couples

from entering into matrimony, but does not present an insuperable barrier to

marriage.” Id. Strict scrutiny is appropriate only where the obstacle to marriage

“operates to preclude the marriage entirely for a certain class of people.” Id. 

We have previously considered and rejected a claim similar to the

Johnsons’. In Martin v. Bergland, 639 F.2d 647 (10th Cir. 1981), the appellants,

husband and wife, challenged a regulation promulgated by the Secretary of

Agriculture that defined a husband and wife as a single person for purposes of a

statute limiting farm subsidy payments to $20,000 per person. In 1973, Congress

directed the Secretary to define the term “person” in order to limit farm subsidy

payments to farmers who kept their land idle. Appellants argued that the

Secretary’s refusal to pay farm subsidy payments to both of them solely because
 The Johnsons urge us to distinguish Druker, Jobst, Zablocki, and Martin. 5

Those cases, they argue, involve social and economic legislation, whereas this

matter involves a workers’ compensation insurance fund authorized by the

Wyoming Constitution to which covered employers make contributions. We

decline to draw the suggested distinction. The analysis set forth in those cases

- 14 -

of their marriage denied them equal protection of the laws under the Fifth

Amendment. Using the principles outlined in Jobst and Zablocki, we determined

that the regulation was not such a direct and substantial burden on the freedom to

marry that it should be strictly scrutinized. Id. at 649. We upheld the regulation

under the rational basis test, finding that the husband-wife rule rationally furthers

Congress’ interest in limiting farm subsidy payments. Id. at 650.

We agree with the district court that the Johnsons have not established an

impermissible interference with the right to marry or associate with family. Like

the “marriage penalty” discussed in Druker and Mapes, and the farm subsidy

regulation considered in Martin, the Employees’ interpretation and application of

the Wyoming statute did not present a direct legal obstacle in the path of persons

desiring to get married. Nor did it absolutely prohibit a class of persons from

getting married. Moreover, there is no plausible indiction that the denial of Mr.

Johnson’s claim for extended PTD benefits was an attempt to interfere with the

Johnsons’ freedom to make a decision as important as marriage. While the

Johnsons may have suffered an indirect burden on their marriage, there was no

direct and substantial burden on their freedoms to marry and to associate with

family.5
applies here, as in other cases where a citizen alleges that state action

impermissibly interferes with the exercise of the constitutionally protected rights

of familial association and marriage.

 Any rights the Johnsons may have for the violation of state law are not 6

enforceable under section 1983. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct.

- 15 -

Because strict scrutiny does not apply, the Johnsons bear the “substantial

burden of showing that there is no rational basis” for the challenged

classification. Martin, 639 F.2d at 650. The extreme deference given under the

rational basis test “suggests that it takes no special talent to come up with a

rational basis for any scheme; the difficult task is to formulate a plan for which

there is no rational basis.” Id. (citations omitted). Nonetheless, the standard by

which actions such as this must be judged “is not a toothless one.” Id. (citations

omitted). With these standards in mind, we conclude that the Employees’

interpretation and application of the Wyoming statute bore a rational relationship

to a legitimate state interest. Specifically, the Division’s consideration of an

employee’s total household income, including the income of the employee’s

spouse, was rationally related to the state’s legitimate interest in allocating

limited workers’ compensation funds to individuals most in need. 

As previously discussed, the Wyoming Supreme Court recently concluded

that the Wyoming statute at issue did not permit consideration of spousal income

in determining entitlement to extended PTD benefits. The Employees’

interpretation and application of the statute was therefore erroneous. The fact 6
2689, 61 L.Ed.2d 433 (1979) (remedy for violation of state tort law must be

sought in state court); Benn v. Universal Health Sys., Inc., 371 F.3d 165, 174 (3rd

Cir. 2004) (“Section 1983 does not provide a cause of action for violations of

state statutes.”); Romero v. Bd. of County Comm’rs, 60 F.3d 702, 705 (10th Cir.

1995); Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994) (violation of state law

does not give rise to a federal cause of action under § 1983). 

- 16 -

that benefits were withheld in violation of Wyoming law does not alter the

Fourteenth Amendment analysis set forth above. No federal constitutional rights

were violated. 

We therefore agree with the district court’s conclusion that the Johnsons

were not deprived of liberty interests secured under the United States Constitution

and that the Johnsons do not state a cognizable claim under § 1983.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s order granting

the motion to dismiss.

ENTERED FOR THE COURT

Gregory K. Frizzell

District Judge