The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA D. STUBBLEFIELD, DOCKET NUMBER
Appellant, SF-0831-15-0477-I-1
v.
OFFICE OF PERSONNEL DATE: June 20, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Pamela C. Stubblefield, Esquire, Oakland, California, for the appellant.
Karla W. Yeakle, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the decision of the Office of Personnel Management (OPM) that she
was not entitled to a lump-sum death benefit under the Civil Service Retirement
System (CSRS). Generally, we grant petitions such as this one only when: the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 Benjamin Whiteurst was a long-time employee of the U.S. Postal Service.
Initial Appeal File (IAF), Tab 7 at 56-60. On December 28, 2002, while
employed, he designated the appellant, his then-wife, as his beneficiary under the
CSRS. Id. at 17. They divorced in 2004, id. at 23-24, and on June 26, 2011,
Benjamin remarried. Id. at 45-46. His new wife had a daughter who had been
born on September 27, 1998. Id. at 47. Benjamin died in service on October 6,
2011. Id. at 50.
¶3 On October 15, 2011, Benjamin’s wife applied for death benefits based on
her status as a widow. Id. at 28-31. On October 17, 2011, the appellant applied
for death benefits as his designated beneficiary. Id. at 19-22. On January 30,
2012, OPM advised the widow of possible survivor benefits for her daughter, as
Benjamin’s stepdaughter, if it were shown that she was dependent on him, id.
at 32, but OPM denied the widow’s application for an annuity for herself on the
basis that she and Benjamin were not married for 9 months prior to his death, as
required by 5 U.S.C. § 8341(a)(1)(A), id. at 34. She then sought benefits on
behalf of her daughter, as Benjamin’s stepchild, id. at 37, responding to OPM’s
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request that she submit evidence in support of her claim, IAF, Tab 7 at 33, 38-44.
Based on that evidence, OPM issued an initial decision finding that the appellant
was not eligible for a lump-sum of Benjamin’s retirement contributions because
his stepdaughter was entitled to a survivor annuity. Id. at 11, 13. OPM upheld its
decision on reconsideration, notifying the appellant that she would become
eligible for the remaining lump-sum death benefit when the stepdaughter’s
survivor annuity terminated based on her age or other factors set forth at 5 U.S.C.
§ 8443(3)(b). Id. at 6-9.
¶4 On appeal, the appellant argued, as she did before OPM, that, since
Benjamin’s widow was deemed ineligible to receive any benefit because that
marriage was “not valid,” her child also should not be eligible for benefits, IAF,
Tab 1 at 3; that, because the marriage was so short, there was “simply not enough
time” for Benjamin and his stepdaughter to develop a parent-child relationship,
id. at 26; and that there was no proof that the stepdaughter was Benjamin’s
dependent, id. In response, OPM reiterated that it was paying Benjamin’s
surviving child in accordance with law and had therefore properly denied the
lump-sum death benefit to the appellant. 2 IAF, Tab 7 at 4-5.
¶5 In her initial decision, the administrative judge examined the sworn
statements submitted by OPM on behalf of Benjamin’s widow, and other evidence
that is a part of the record, and the appellant’s argument that the evidence
should not be considered. IAF, Tab 19, Initial Decision (ID) at 5-8. The
administrative judge concluded, however, that, based on evidence showing that
Benjamin and the stepdaughter lived together and that a parent-child relationship
2
Because her rights and interests might be affected, OPM requested that the
stepdaughter be notified, via her mother, of her right to intervene in this appeal. IAF,
Tab 7 at 5. The administrative judge afforded such notice, IAF, Tab 8, but there was no
response. As such, the stepdaughter is not a “party” to this appeal, see 5 C.F.R.
§ 1201.4(e), and the Board therefore lacks jurisdiction to make a finding on her
entitlement to survivor benefits, except to the extent that, it is necessary, as it is here, to
adjudicate the instant appeal. Cull v. Office of Personnel Management, 55 M.S.P.R.
476, 481 (1992).
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existed between them, ID at 8-12, the appellant did not show by preponderant
evidence that she is entitled to the lump-sum death benefits she seeks. ID at 12.
As such, the administrative judge affirmed OPM’s reconsideration decision. ID
at 1, 12.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 4.
¶7 A lump-sum benefit is to be paid, based on the service of a deceased
Federal employee, if that service does not entitle anyone to a survivor annuity at
the time of the decedent’s death. 5 U.S.C. §§ 8341, 8342(d); see also 5 U.S.C.
§ 8331(10), defining a “survivor.” Accordingly, the appellant is not entitled to a
lump-sum benefit if Benjamin’s stepdaughter was entitled to a survivor annuity.
¶8 If an employee dies and is survived by a spouse or a former spouse who is
the natural or adoptive parent of a surviving child of the annuitant, that child is
entitled to an annuity. See 5 U.S.C. § 8341(e)(2). A “child” is an unmarried
dependent child under 18 and includes a stepchild so long as the employee and
the stepchild lived in a “regular parent-child relationship.” A “dependent child”
is one who the employee was either living with or contributing to his or her
support, at the time of the employee’s death. 5 U.S.C. § 8341(a)(3).
¶9 On review, the appellant argues that the administrative judge failed to
follow Salazar v. Office of Personnel Management, 31 M.S.P.R. 248, 250-51
(1986), wherein, in the absence of a definition of a “stepchild” in 5 U.S.C.
§ 8341, the Board relied, inter alia, on guidance from the Social Security Act
(SSA), 42 U.S.C. § 401, et seq., to find that the annuitant lived with the appellant
in a parent-child relationship so as to entitle her to a survivor annuity as his
stepchild, even though he was not legally married to her mother. The appellant
urges that, here, the Board should follow “analogous Federal law” and rely on the
SSA to find that the child was not Benjamin’s stepdaughter because the SSA
specifically provides that a stepchild must have been such for 9 months. PFR
File, Tab 1 at 6-7. While under 5 U.S.C. § 8341, the status of a “widow” depends
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on the length of time she was married to the employee or annuitant, the status of a
“child” or a “dependent child” has no such time qualification. 5 U.S.C.
§ 8341(a)(1)(A), (3), (4). Imposing one where it clearly does not exist in the
operative statute, as the appellant urges, would violate, not promote, its purpose
of providing financial assistance to those most likely dependent on deceased
Federal employees. Salazar, 31 M.S.P.R. at 251.
¶10 The appellant also argues on review that the administrative judge erred in
not applying the “mandatory” elements set forth by the Board in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987), to the sworn statements
submitted by Benjamin’s widow to OPM in support of her claim for benefits for
her daughter. PFR File, Tab 1 at 7-11. Hillen provides factors to consider in
resolving credibility issues and is relied upon principally in cases where there has
been live testimony. In preparation for the requested hearing, the appellant
sought and was granted subpoenas for Benjamin’s widow, her daughter, and two
of the three individuals who had provided evidence in support of the widow’s
claim. IAF, Tabs 15-16. However, at the hearing, the appellant withdrew her
request for all her witnesses. Moreover, she did not testify herself; rather, the
parties presented only oral argument. IAF, Tab 18, Hearing Compact Disc;
ID at 3. Under the circumstances, we find that a Hillen analysis is neither
required nor appropriate.
¶11 Recognizing that the statements at issue constitute hearsay evidence,
however, the administrative judge properly and carefully weighed them against
the factors set forth by the Board as appropriate for the consideration of hearsay
evidence. ID at 8-12; Borninkhof v.Department of Justice, 5 M.S.P.R. 77, 87
(1981) (announcing that the following factors affect the weight to be accorded
hearsay evidence: (1) the availability of persons with firsthand knowledge to
testify at the hearing; (2) whether the statements of the out-of-court declarants
were signed or in affidavit form, and whether anyone witnessed the signing;
(3) the agency’s explanation for failing to obtain signed or sworn statements;
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(4) whether declarants were disinterested witnesses to the events, and whether the
statements were routinely made; (5) consistency of declarants’ accounts with
other information in the case, internal consistency, and their consistency with
each other; (6) whether corroboration for statements can otherwise be found in
the agency record; (7) the absence of contradictory evidence; and (8) the
credibility of declarant when he made the statement attributed to him). The
administrative judge found that the statements are consistent with each other as to
their recounting of the family living together and their description of the
interaction between Benjamin and the stepdaughter as constituting a parent-child
relationship. The administrative judge also noted that three of the statements
were submitted by individuals who had known Benjamin for decades and had no
interest in the outcome of the case. The administrative judge also addressed each
of the appellant’s specific arguments challenging certain features of the
statements, but found that the arguments provided no reason to discount the
statements. ID at 9-12. And, the administrative judge found that the statements
were generally responsive to OPM’s directions as to what information they should
include in addressing whether the stepdaughter lived with Benjamin in a regular
parent-child relationship. IAF, Tab 7 at 33; ID at 7-8.
¶12 Although the appellant disputes the administrative judge’s findings and
conclusions regarding the probative value of the statements, she bears the burden
of proof in this case. 5 C.F.R. § 1201.56(a)(2). However, she presented no
evidence in support of her position. The letter she wrote to OPM, purporting to
explain why she believes Benjamin never contributed towards the stepdaughter’s
support, is not sworn, which detracts from its probative value. ID at 9; Davis v.
Department of Defense, 105 M.S.P.R. 604, ¶ 8 (2007). And, as noted, the
appellant, without explanation, did not testify at the hearing she requested, and
her oral argument does not constitute evidence. Dunn v. Office of Personnel
Management, 60 M.S.P.R. 426, 435 (1994). The appellant’s attempt on review to
fault the administrative judge for relying on the statements of Benjamin’s widow
7
and the others who provided them because they “did not appear at the hearing,”
PFR File, Tab 1 at 8, overlooks the fact that it was the appellant herself who
failed to produce those witnesses for whom she was granted subpoenas.
¶13 The appellant otherwise repeats the arguments she raised below,
specifically, that the stepdaughter is the child of an “ineligible marriage” and
therefore not entitled to a survivor annuity, that Benjamin’s widow never
completed an actual application for benefits on her daughter’s behalf, and that the
record fails to show that the stepdaughter lived with Benjamin at the time of his
death, that a parent-child relationship existed between them, or that Benjamin
contributed to her support. Id. at 11-13. However, based on our review, we
discern no reason to reweigh the evidence or substitute our assessment of the
record for that of the administrative judge. 3 See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
3
In its response to the appellant’s petition for review, and in support of its position, the
agency has submitted copies of its “long standing policy” on when a stepchild is
eligible to receive a survivor annuity, specifically Integrated Management
System 211222.00, Stepchildren, and 211222.26, Meaning of “Living With.” PFR File,
Tab 4 at 6-7. Absent a showing that this evidence was unavailable before the record
closed below despite the agency’s due diligence, we have not considered it. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
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The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.