Rogers v. Office of Personnel Management, 95-3497

• Decision Date: 25 June 1996
• Docket Number: No. 95-3497,95-3497
• Parties: Luvenia D. ROGERS, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent, and Aggie Rogers, Intervenor.
• Court: U.S. Court of Appeals — Federal Circuit

Page 471

87 F.3d 471

Luvenia D. ROGERS, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent and Aggie Rogers, Intervenor.

No. 95-3497.

United States Court of Appeals Federal Circuit.

June 25, 1996.

Rehearing Denied; Suggestion for Rehearing In Banc Declined

Aug. 13, 1996.

Edward L. Pina, Karam, Kruger, Mery & Pina, San Antonio, Texas, argued, for petitioner. With him on the brief was Janis Hillman.

Hillary A. Stern, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued, for respondent. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Kirk Manhardt, Assistant Director.

Edith U. Fierst, Fierst & Moss, P.C., Washington, DC, argued, for intervenor. With her on the brief was Anne E. Moss, Alhambra, CA.

Before PLAGER, RADER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Luvenia D. Rogers ("Luvenia") appeals the March 30, 1995 final decision of the Merit Systems Protection Board ("Board") in Docket No. AT-0831-93-0042-I-1. In its decision, the Board reversed the initial decision

of the Administrative Judge ("AJ") that sustained the reconsideration decision of the Office of Personnel Management ("OPM") awarding a civil service survivor annuity to Luvenia as the widow of Girard Rogers ("Girard"), a deceased federal employee. OPM awarded the annuity to Luvenia over the competing claim of Aggie Rogers ("Aggie"), who also had been married to Girard. The Board awarded the annuity to Aggie as the widow of Girard. Because we hold that, under applicable state law, Aggie is barred by the doctrine of laches from challenging the presumptively valid later marriage of Luvenia and Girard, we reverse, and remand with the instruction that the annuity be awarded to Luvenia.

BACKGROUND

We note at the outset that the scope of our review in an appeal of a Board decision is limited. We must affirm the decision unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1994). In this case, the Board accepted the AJ's findings of fact even though it reversed her initial decision. Supporting the AJ's findings are her credibility determinations, which are "virtually unreviewable." Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986). Since none of the parties have shown that the AJ's findings are not supported by substantial evidence, those findings are controlling. They are as follows:

I.

Aggie and Girard were married in Mobile, Alabama, on January 26, 1950, and lived together there. Luvenia also resided in Mobile. At the time, Girard was employed in the federal civil service by the Air Force at Brookley Air Force Base. In March 1950, Luvenia gave birth to Girard's child, Argie. Three months later, Aggie gave birth to Girard's child, Jimmie. In May 1951, Luvenia gave birth to her and Girard's second child, Frang. Two months later, Aggie gave birth to her and Girard's second child, Girard, Jr. Aggie knew that Girard was having an extramarital affair during this time, even though Girard denied it when she asked him.

Luvenia refused to marry Girard until he divorced Aggie. In 1952, Girard told Luvenia that he and Aggie were divorced, and Luvenia believed him. In fact, however, Girard never divorced Aggie. Luvenia and Girard were married in a ceremony held in Pascagoula, Mississippi, on April 4, 1952.

Beginning in 1952, Luvenia and Girard lived together in Mobile with their children. Aggie also continued to live in Mobile with her and Girard's children. Luvenia and Girard had three more children together: Kennith, born in 1953; Michael, born in 1955; and Willie, born in 1960. Girard came home every night, and the family attended church together in Mobile, where Girard was a deacon. Luvenia and Girard filed income tax returns as husband and wife each year from 1952 until Girard's death.

After Luvenia and Girard married, Girard continued to support the children that he had with Aggie. Luvenia knew of this support. In addition, Aggie gave birth to her and Girard's third child, Bernard, in October 1953. Some of Aggie's children by Girard and some of Luvenia's children by Girard went to high school together in Mobile.

In 1967, Girard was transferred to Kelly Air Force Base in San Antonio, Texas. Luvenia and the children remained in Mobile until August 1968 so that Argie and Frang could finish high school there. After Girard and Luvenia moved to San Antonio, Girard occasionally visited Mobile, and at least one of Aggie and Girard's children visited Luvenia and Girard at their home in San Antonio on several occasions. In June 1968, Aggie gave birth to her and Girard's fourth child, Shylda. Luvenia knew that Shylda was Girard's child.

In 1977, Girard purchased a house in Mobile for Aggie and his children by Aggie. The deed to the house listed Girard and Aggie as "husband and wife." Luvenia knew that Girard had purchased the house for Aggie and her children, but did not know about the "husband and wife" language.

Girard retired from government service in 1981, and died in 1987. In his will, he left his

entire estate to Luvenia. In addition, he designated Luvenia as the beneficiary of his civil service survivor annuity.

II.

Aggie and Luvenia each sought, as Girard's widow, a survivor annuity from OPM. Finding that only one person can receive a deceased employee's survivor annuity, OPM sought to resolve the conflicting claims. OPM initially awarded the annuity to Luvenia. Aggie requested a reconsideration of OPM's initial decision and, on November 10, 1988, OPM issued a reconsideration decision awarding the annuity to Aggie.

Luvenia appealed OPM's reconsideration decision to the Board. Aggie intervened, claiming that Luvenia's appeal was untimely. In an initial decision dated November 8, 1989, an AJ held Luvenia's appeal timely, reversed OPM's reconsideration decision, and awarded the annuity to Luvenia. The AJ found that Aggie, knowing of Girard's marriage to Luvenia, had failed to protect her position as Girard's spouse.

Aggie filed a petition for review of the AJ's initial decision. She argued, in part, that the AJ had erred in holding Luvenia's appeal timely. The Board vacated the AJ's decision on August 8, 1990, and remanded the case for a determination on the timeliness issue. On remand, the AJ held that Luvenia's appeal had been untimely filed, and dismissed her appeal. Luvenia filed a petition for review, which was denied on April 17, 1991. Luvenia then filed an appeal with this court. On February 6, 1992, we affirmed the Board's decision in an unpublished opinion. Rogers v. Office of Personnel Management, 956 F.2d 1172 (Fed.Cir.1992) (table).

On July 21, 1992, OPM issued sua sponte a new reconsideration decision (the "1992 reconsideration decision"), reversing its earlier reconsideration and awarding the annuity to Luvenia. In so doing, OPM stated that it was persuaded by the AJ's November 8, 1989 initial decision on the merits that had been vacated by the Board.

Aggie appealed the 1992 reconsideration decision to the Board. Luvenia intervened and raised against Aggie's annuity claim the affirmative defense of laches. The AJ rendered an initial decision on February 11, 1993. As a preliminary matter, the AJ rejected Aggie's arguments that OPM was barred by the doctrine of res judicata from reversing its prior decision in favor of Aggie and that the 1992 reconsideration decision was untimely. On the merits, after holding an evidentiary hearing, the AJ ruled in favor of Luvenia.

5 U.S.C § 8341 (1994) governs survivor annuities of federal civil service employees. The statute provides that the "widow" of an employee is entitled, subject to some exceptions not at issue here, to a survivor annuity. See 5 U.S.C. §§ 8341(b), (d). Section 8341(a) defines "widow" as "the surviving wife of an employee ... who (A) was married to him for at least 9 months immediately before his death; or (B) is the mother of issue by that marriage." Both Aggie and Luvenia meet parts (A) and (B) of § 8341(a). Thus, in deciding whether Aggie or Luvenia was the proper recipient of the survivor annuity, the task before the Board was to determine whether Aggie or Luvenia was Girard's "surviving wife." Legal and equitable principles of applicable state law are used to determine who is the "surviving wife" under § 8341. See Money v. Office of Personnel Management, 811 F.2d 1474, 1478-79 (Fed.Cir.1987).

Applying the law of Texas, where Girard was domiciled at the time of his death, the AJ noted that Texas law recognizes a presumption of validity in favor of the latest marriage (in this case, Luvenia and Girard's marriage). See Texas Fam.Code § 2.01 (1996); Rodriguez v. Avalos, 567 S.W.2d 85, 87 (Tex.Civ.App.1978) (section 2.01 of the Texas Family Code codified well-established Texas law). The AJ also noted that this presumption may be overcome by a conclusive demonstration of no divorce dissolving a previous marriage. See Schacht v. Schacht, 435 S.W.2d 197, 201 (Tex.Civ.App.1968). The AJ stated that Aggie had presented evidence to overcome the presumption in favor of the validity of Luvenia's marriage to Girard with proof that she (Aggie) and Girard had never been divorced. The AJ noted, however, that, under Texas law, a previous spouse may be Aggie petitioned for review. The Board determined that the petition did not meet the criteria for review set forth in 5 C.F.R. § 1201.115 (1994), but reopened the appeal on its own motion.

                barred from challenging the validity of a later marriage if, after gaining knowledge sufficient to support an action to protect her position, she unreasonably delays in taking such action to the detriment of the legal rights of the later spouse.  See Simpson v. Simpson, 380 S.W.2d 855, 861

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