                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                                  3

     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).
                                                                                       4

     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
                                                                                        5

      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;
                                                                                       6

      (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).
                                                                                  8

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
                                                                                  9

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.
