UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICHARD LOUIS DAVIS,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0843-16-0360-I-1

DATE: November 21, 2016

THIS ORDER IS NONPRECEDENTIAL1

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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. ARK. CODE ANN. § 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); ARK. CODE 

ANN. § 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 hearing, 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 
6

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 doing 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 weigh 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 witnesses 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 late 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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board