                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RICHARD LOUIS DAVIS,                            DOCKET NUMBER
                   Appellant,                        AT-0843-16-0360-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: November 21, 2016
       MANAGEMENT,
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Richard Louis Davis, Huntsville, Alabama, pro se.

           Sarah Murray, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the final decision by the Office of Personnel Management (OPM)
     denying his request for payment of a lump sum death benefit under the Federal
     Employees’ Retirement System (FERS).          For the reasons discussed below, we


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     GRANT the appellant’s petition for review, VACATE the initial decision, and
     REMAND the case to the regional office for further adjudication in accordance
     with this Remand Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant’s brother (the decedent), a former Federal employee covered
     under FERS, passed away on January 28, 2013. Initial Appeal File (IAF), Tab 6
     at 11, 33-36. On or about September 28, 2014, the appellant filed an application
     with OPM seeking payment of the decedent’s lump sum death benefit.               Id.
     at 7-10. In the application, the appellant indicated that he and his other living
     siblings were the decedent’s only heirs. Id. at 9. According to a March 24, 2015
     report of telephone contact written by an OPM employee, however, “[the
     appellant] stated that [the decedent] had a biological son but [the family does] not
     know where he is.       They have tried to reach him, but they have been
     unsuccessful.”   Id. at 25.   On June 11, 2015, OPM issued an initial decision
     finding the appellant ineligible to receive the decedent’s lump sum death benefit
     because the decedent may have had a biological son who would be entitled to the
     benefit pursuant to the statutory order of precedence. Id. at 20. Thereafter, the
     appellant submitted affidavits attesting, among other things, that the decedent
     “never presented any child or children to our late mother during her lifetime nor
     did he acknowledge or present any child or children to any of us during [his]
     lifetime.” Id. at 13, 15, 19. The appellant also attested that the decedent did not
     adopt his stepdaughters, L.S. and C.S.     Id. at 13. In a January 27, 2016 final
     decision, OPM again found that the appellant was not eligible for a share of the
     decedent’s lump sum death benefit pursuant to the order of precedence. Id. at 5.
¶3        The appellant appealed OPM’s final decision to the Board and requested a
     hearing. IAF, Tab 1. The administrative judge informed the appellant of his
     burden to establish his entitlement to the decedent’s lump sum death benefit by
     showing that he and his siblings were eligible to receive the benefit in accordance
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     with the statutory order of precedence.     IAF, Tab 10 at 1-4. Specifically, the
     administrative judge informed the appellant that he must prove that the decedent
     did not have a biological son and that L.S. and C.S. were not the decedent’s
     natural or adopted children. Id. at 4. The appellant responded that he was not
     aware that the decedent ever fathered any children and submitted additional
     affidavits from three of his siblings attesting that they were not aware that the
     decedent had any biological children. IAF, Tab 9 at 4, Tab 14 at 2‑4. At the
     telephonic hearing, the appellant testified that the decedent never conveyed to
     him, his siblings, or their mother that he had any biological children.         IAF,
     Tab 16, Hearing Compact Disc (HCD). When the agency representative asked
     him why he initially told the OPM employee that the decedent had a biological
     son, the appellant responded that he had only heard a rumor that the decedent may
     have had a biological son and that he was “trying to do the right thing” by telling
     OPM about the possible son.        Id.   The appellant explained that the family
     searched Facebook and an online personnel system, but they were unable to find
     anyone who could be the decedent’s son. Id. Thus, he testified that he believed
     that the decedent did not have any biological children. Id.
¶4          After the hearing, the administrative judge issued an initial decision finding
     that the appellant established that L.S. and C.S. were not the decedent’s natural or
     adopted children under Arkansas law, but that the decedent may have a biological
     son.    IAF, Tab 18, Initial Decision (ID).        Due to this potential son, the
     administrative judge concluded that the appellant and his siblings were not
     entitled to the decedent’s lump sum death benefit and affirmed OPM’s final
     decision. ID at 6. The appellant has timely filed a petition for review of the
     initial decision. Petition for Review (PFR) File, Tab 1.
¶5          Under FERS, a lump sum annuity benefit is paid to the individual or
     individuals surviving the employee and alive at the date title to the payment
     arises in the following order: (1) to the designated beneficiary or beneficiaries;
     (2) to the widow or widower of the employee; (3) to the child or children of the
                                                                                      4

     employee and descendants of deceased children by representation; (4) to the
     parents of the employee or the survivor of them; (5) to the executor or
     administrator of the estate; and (6) to other next of kin of the employee as OPM
     determines to be entitled under the laws of the domicile of the employee at the
     date of his death.   5 U.S.C. § 8424(d).    “For the purpose of this subsection,
     ‘child’ includes a natural child and an adopted child, but does not include a
     stepchild.” Id. The intestate succession laws of Arkansas, the state in which the
     decedent was domiciled when he died, provide that siblings of an intestate
     decedent may be entitled to an inheritance from the decedent’s estate if there is
     no surviving descendant, spouse, or parent. A RK . C ODE A NN . § 28‑9‑214 (2016);
     IAF, Tab 6 at 11.
¶6        Here, the parties do not contend, nor is there any evidence to suggest, that
     the decedent designated a beneficiary prior to his death, that he had a surviving
     spouse or surviving parent at the time of his death, or that there was any executor
     or administrator of his estate. E.g., IAF, Tabs 6, 14. Thus, pursuant to the order
     of precedence and the inheritance laws of Arkansas, the decedent’s siblings are
     eligible to receive the lump sum death benefit if they can show that the decedent
     did not have any natural or adopted children. See 5 U.S.C. § 8424(d); A RK. C ODE
     A NN . § 28‑9‑214 (2016). The appellant, as the applicant for benefits, has the
     burden to establish, by a preponderance of the evidence, that he is entitled to the
     benefits sought. See 5 C.F.R. § 1201.56(b)(2)(ii).
¶7        As noted above, the administrative judge found that the appellant
     established that the decedent did not legally adopt his stepdaughters, L.S. and
     C.S., under the laws of Arkansas and, therefore, that L.S. and C.S. do not take
     precedence over the appellant’s entitlement to the lump sum death benefit.
     Neither party challenges this finding on review, and we discern no basis to
     disturb it. On review, however, the appellant argues that the administrative judge
     erred in finding that he and his siblings are not entitled to the lump sum death
                                                                                        5

     benefit because the decedent may have a biological son. PFR File, Tab 1 at 4‑5.
     Specifically, he argues that the affidavits submitted below attesting that the
     decedent never presented or disclosed a biological son to any of the siblings or
     their late mother should be sufficient to establish the siblings’ entitlement to the
     decedent’s lump sum death benefit. Id. at 5; IAF, Tab 6 at 13, 15, 19, Tab 14
     at 2-4.   He further asserts that the Metropolitan Life Insurance Company
     (MetLife), which carried the decedent’s Federal Employees’ Group Life
     Insurance (FEGLI) policy, paid the decedent’s siblings on December 1, 2015,
     after performing it’s “due diligence” to locate an heir. PFR File, Tab 1 at 4; IAF,
     Tab 9 at 4.
¶8         In finding that the decedent may have had a biological son, the
     administrative judge relied primarily on the appellant’s alleged statements during
     a March 24, 2015 telephone conversation with an OPM employee, as written by
     the OPM employee in the report of contact discussed above. ID at 6; IAF, Tab 6
     at 25. Specifically, according to the OPM employee’s report of contact, “[the
     appellant] stated that [the decedent] had a biological son but [the family does] not
     know where he is.       They have tried to reach him, but they have been
     unsuccessful.” IAF, Tab 6 at 25. In the initial decision, the administrative judge
     observed that “the appellant's initial statement to OPM that the decedent had a
     biological son is directly at odds with his later statements and testimony that [the
     decedent] had no biological children.” ID at 6. The administrative judge noted
     that, when questioned regarding this disparity at the h earing, the appellant
     testified that, “because his brother never presented his family with a biological
     son, he concluded none existed.” Id. The administrative judge thus concluded
     that, “[b]ased on the conflicting evidence,” the appellant’s initial statement to
     OPM was more credible than his subsequent testimony.          Id. (citing Hillen v.
     Department of the Army, 35 M.S.P.R. 453, 458 (1987)).
¶9         In Hillen, the Board held that, in resolving credibility issues, the trier of
     fact must identify the factual questions in dispute, summarize the evidence on
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      each disputed question, state which version he believes, and explain in detail why
      he found the chosen version more credible, considering such factors as: (1) the
      witness’s opportunity and capacity to observe the event or act in question; ( 2) the
      witness’s character; (3) any prior inconsistent statement by the witness; (4) a
      witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of
      events by other evidence or its consistency with other evidence; (6) the inherent
      improbability of the witness’s version of events; and (7) the witness’s demeanor.
      Hillen, 35 M.S.P.R. at 458. The Board must defer to an administrative judge’s
      credibility determinations when they are based, explicitly or implicitly, on
      observing the demeanor of witnesses testifying at a hearing, and may overturn
      such determinations only when it has “sufficiently sound” reasons for d oing so.
      Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Thus, the
      Board may overturn demeanor‑based credibility determinations when the
      administrative judge’s findings are incomplete, inconsistent with the weight of
      the evidence, and do not reflect the record as a whole.         Rapp v. Office of
      Personnel Management, 108 M.S.P.R. 674, ¶ 13 (2008).
¶10        Here, although the administrative judge cited Hillen, he did not articulate
      any basis for crediting the appellant’s alleged statement to the OPM employee
      that the decedent had a biological son, over his subsequent statements, affidavits,
      and hearing testimony denying any knowledge of a son fathered by the decedent .
      ID at 6; compare IAF, Tab 6 at 25, with id. at 13, 15, 19, 21 and HCD. The
      administrative judge also did not mention or appear to consider the inconsistency
      of the appellant’s alleged initial statement to OPM with other evidence—namely,
      the affidavits submitted by the appellant’s siblings denying any knowledge of the
      existence of a biological son.     ID at 6; IAF, Tab 14 at 2-4.        Instead, the
      administrative judge noted that the appellant’s initial statement to the OPM
      employee conflicted with his later statements and testimony and concluded that
      the appellant’s initial statement that he was “aware the decedent had a biological
      son” was the more credible statement.       ID at 6.   Because the administrative
                                                                                           7

      judge’s credibility determination does not identify or discuss any factors relevant
      to a Hillen determination, it is incomplete and we need not defer to it. See Rapp,
      108 M.S.P.R. 674, ¶ 13; Hillen, 35 M.S.P.R. at 458.
¶11            In addition, the administrative judge failed to properly weig h the
      testimonial and documentary evidence of record. For example, the administrative
      judge relied heavily on the report of contact written by the OPM employee, who
      did not testify at the hearing, to make his credibility determination. ID at 6; IAF,
      Tab 6 at 25.     Although hearsay evidence is admissible in Board proceedings,
      assessment of the probative value of hearsay evidence necessarily depends on the
      circumstances of each case. Adamsen v. Department of Agriculture, 116 M.S.P.R.
      331, ¶ 16 (2011); Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-84
      (1981). The Board generally evaluates the probative value of hearsay evidence
      by considering various factors that include the availability of persons with
      firsthand knowledge to testify at the hearing, whether the out-of-court statements
      were sworn, whether the declarants were disinterested witnes ses to the events and
      whether their statements were routinely made, the consistency of the out -of-court
      statements with other statements and evidence, whether there is corroboration or
      contradiction in the record, and the credibility of the out-of-court declarant.
      Adamsen, 116 M.S.P.R. 331, ¶ 16. Here, however, the administrative judge failed
      to consider any of these factors in crediting the report’s description of the
      appellant’s alleged out-of-court statement. ID at 6.
¶12            We further note that the report of contact itself does not unambiguously
      reflect that the appellant stated that he “was aware” that the decedent had a
      biological son, as construed by the administrative judge. ID at 6; IAF, Tab 6
      at 25.     Specifically, although the report of contact notes that “[the appellant]
      stated that [the decedent] had a biological son,” it also notes that a “possible child
      exists.” IAF, Tab 6 at 25. The reference to a “possible child” appears to support
      the appellant’s contention that he informed the OPM employee that he had heard
      that the decedent may have had a biological son, not that he knew of a biological
                                                                                        8

      son.    Id.; HCD.    The administrative judge, however, did not consider this
      discrepancy in relying on or interpreting the report of contact. ID at 6.
¶13          Additionally, we find that the administrative judge failed to accord the
      appropriate weight to the affidavits submitted by the appellant. The Board has
      long held that an unrebutted affidavit or declaration under penalty of perjury may
      prove the facts it asserts. Adamsen, 116 M.S.P.R. 331, ¶ 15; see Schaefer v. U.S.
      Postal Service, 42 M.S.P.R. 592, 595 (1989); Woodall v. Federal Energy
      Regulatory Commission, 30 M.S.P.R. 271, 273 (1986).            Here, the appellant
      submitted two affidavits to OPM attesting that the decedent “died without any
      progeny (children)” and that he “never presented any child or children to our late
      mother during her lifetime nor did he acknowledge or present any child or
      children to any of us during [his] lifetime. Had [the decedent] fathered a child or
      children, he would have so introduced the child to our lat e mother during our late
      mother’s lifetime.” IAF, Tab 6 at 13, 15, 19. During the proceedings below, he
      submitted affidavits executed by each of his three siblings, which contain
      identical language to that set forth above from the appellant’s affidavits, and
      additionally state that “no child or children presented him or herself to our late
      mother or to me to indicate that he or she was/is the child or children of [the
      decedent].” IAF, Tab 14 at 2-4. Each of these five affidavits is notarized and
      signed under penalty of perjury pursuant to 28 U.S.C. § 1746. Id.; IAF, Tab 6
      at 13, 15, 19. The administrative judge, however, did not discuss or weigh these
      affidavits in deciding that the appellant’s alleged initial statement to the OPM
      employee was the most credible statement. ID at 6.
¶14          Lastly, it does not appear that the administrative judge appropriately
      considered or weighed the appellant’s hearing testimony.            Generally, live
      testimony is more probative than an out-of-court statement.         Social Security
      Administration v. Whittlesey, 59 M.S.P.R. 684, 692 (1993), aff’d, 39 F.3d 1197
      (Fed. Cir. 1994) (Table); Dubiel v. U.S. Postal Service, 54 M.S.P.R. 428, 432
      (1992) (stating that the probative value of unsworn hearsay statements regarding
                                                                                             9

      facts at issue is generally reduced when contradicted by live testimony regarding
      the same matter); Robinson v. Department of Health & Human Services,
      39 M.S.P.R. 110, 115 (1988) (finding that hearsay evidence may not be
      sufficiently probative, in light of contradictory live testimony, to sustain an
      agency’s burden by preponderant evidence). Notwithstanding the fact that the
      report of contact was written in the normal course of business, the administrative
      judge should have considered whether the appellant’s live testimony, subject to
      cross examination, was more probative than the unsworn out-of-court statements
      written by the OPM employee, who did not testify at the hearing.              See, e.g.,
      Whittlesey, 59 M.S.P.R. at 692.      Additionally, the administrative judge should
      have considered the appellant’s hearing testimony regarding his and his family’s
      efforts to find the possible biological child. ID; HCD.
¶15         In light of the foregoing, we find that remand is necessary. On remand, the
      administrative judge should further develop the record regarding the appellant’s
      belief that the decedent had a biological son and, in his discretion, hold a
      supplemental hearing to take additional testimony. 2 The administrative judge,
      moreover, should issue a show cause order directing the parties to submit
      evidence concerning the payment of life insurance benefits by the decedent’s
      FEGLI policy and MetLife’s efforts to determine the beneficiary or beneficiaries. 3
      The administrative judge then should explore the issues identified above,

      2
         In particular, the administrative judge should solicit evidence and testimony
      regarding: where and when the appellant and/or his siblings heard a “rumor” that the
      decedent had a biological son; what precisely the source or sources told the appellant
      and/or his siblings about the decedent’s possible biological son; whether the source or
      sources of the information were credible; and the specific efforts taken by the family to
      locate the possible son.
      3
        The appellant should specifically be directed to produce the claim form submitted to
      MetLife after the decedent’s death and any letters or correspondence pertaining to
      payment of the life insurance benefit. Although the appellant bears the burden of proof
      in this case, OPM also should be specifically directed to produce any relevant
      information it may possess regarding the payment of life insurance benefits and efforts
      made to determine the beneficiary.
                                                                              10

determine the appropriate weight that each type of evidence is due, and issue a
new initial decision fully addressing all of the record evidence .

                                      ORDER
      For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this remand order.




FOR THE BOARD:                             ______________________________
                                           Jennifer Everling
                                           Acting Clerk of the Board
Washington, D.C.
