UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOHN WAGUESPACK,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-22-0284-I-1

DATE: April 4, 2024

THIS ORDER IS NONPRECEDENTIAL1

John Waguespack, McCalla, Alabama, pro se.

Karla W. Yeakle, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the final decision of the Office of Personnel Management (OPM)

denying the appellant’s application for payment of the decedent Joan Hines’

lump-sum death benefit under the Civil Service Retirement System (CSRS). For

the reasons discussed below, we GRANT the appellant’s petition for review,

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to OPM for a new final

decision. 

BACKGROUND

The appellant is the son of Ms. Hines, a former Federal employee covered

under the CSRS. Initial Appeal File (IAF), Tab 1 at 9, Tab 5 at 16. Ms. Hines

retired effective August 1988, having designated her then-husband, Howard

Hines, as her sole beneficiary. IAF, Tab 5 at 19, 21, 41. According to OPM,

Ms. Hines divorced Mr. Hines in September 1995. 2 Id. at 5. Ms. Hines died on

December 21, 2021. Id. at 16. Her Certificate of Death, issued by the State of

Louisiana, states that at the time of her death she was widowed. Id.

On or about February 23, 2022, the appellant filed an application with

OPM indicating that he was Ms. Hines’s designated beneficiary and was seeking

payment of any lump-sum death benefit. IAF, Tab 5 at 12-15. OPM denied the

appellant’s claim in a March 16, 2022 final decision, finding that the appellant

was not entitled to a share of the lump-sum death benefit because he was not the

designated beneficiary. Id. at 10. 

The appellant filed this appeal of OPM’s final decision to the Board but did

not request a hearing. IAF, Tab 1 at 1. The administrative judge issued an order

advising the parties that he would close the record. IAF, Tab 6. The parties did

not make any additional submissions following the order. After the record

closed, the administrative judge issued an initial decision. IAF, Tab 8, Initial

Decision (ID) at 1. He affirmed OPM’s determination that Mr. Hines was

Ms. Hines’s designated beneficiary and was entitled to the lump-sum death

benefit. ID at 3. 

2

 OPM has not provided any supporting documentation for this assertion, but the

appellant also has alleged his mother divorced Mr. Hines in September 1995. Petition

for Review File, Tab 1 at 1. Therefore, for purposes of our discussion here, we assume

the parties’ assertion is true.
3

On review, the appellant reasserts that he is the only surviving child of

Ms. Hines. Petition for Review (PFR) File, Tab 1 at 1. He also argues for the

first time that Mr. Hines died on July 18, 1999. Id. He has provided a March

2022 Judgment of Possession in which a Louisiana court judge determined the

appellant was Ms. Hines’s “sole and universal legatee” and was entitled to

possession of her entire estate. Id. at 2. OPM has responded to the petition for

review. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

Because the administrative judge did not advise the appellant regarding his

burden, we consider his new argument and evidence.

The Board requires an administrative judge to explain the burdens and

methods of proof for any claim as to which the appellant has some or all of the

burden of proof in an appeal. MSPB Judges’ Handbook, Ch. 9, § 7. He must

fulfill this requirement even if an appellant could have inferred such knowledge

from other sources. Harless v. Office of Personnel Management, 71 M.S.P.R.

110, 113 (1996). This obligation is particularly significant when, as here, an

appellant is pro se. Id.; IAF, Tab 1 at 6. Below, the administrative judge advised

the appellant only that he bore the burden of proving by preponderant evidence

that he was entitled to the retirement benefit he was seeking. IAF, Tab 7 at 1-2

(citing Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140-41

(Fed. Cir. 1986)). However, the administrative judge provided no additional

information to the appellant as to how to prove his claim until issuing the initial

decision. IAF, Tabs 2, 6-7; ID at 2-3. 

Further, it appears likely this error prejudiced the appellant in the

adjudication of this matter. Under 5 U.S.C. § 8342(c), 3 a CSRS lump-sum death

3

 In his initial decision, the administrative judge cited to 5 U.S.C. § 8424(d), which is

the lump-sum death benefit provision under the Federal Employees’ Retirement System

(FERS). ID at 2-3. We find that this citation error did not affect the outcome of the

appeal, and is thus harmless, because the order of precedence under CSRS and FERS is

the same. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(stating that an adjudicatory error that is not prejudicial to a party’s substantive rights
4

benefit is to be paid, as relevant here, 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 in a signed and witnessed writing

received by OPM before the employee’s death; (2) to the widow or widower of

the employee; and (3) if none of the above, to the child or children of the

employee and descendants of deceased children by representation. 

The appellant asserts for the first time on review that Mr. Hines

predeceased Ms. Hines. PFR File, Tab 1 at 1. He provides the Louisiana court

judgment that he is the “sole and universal legatee” of Ms. Hines. Id. at 2-3. The

appellant was not apprised in OPM’s final decision, its response to the appeal, or

the administrative judge’s orders of the potential significance of the death of Mr.

Hines, whom Ms. Hines designated as her beneficiary in 1975. IAF, Tab 5

at 4-11, 19, Tabs 6-7. It appears likely that he submitted this evidence, and

argued Mr. Hines had died, in response to the initial decision. Specifically, the

administrative judge advised the appellant for the first time in the initial decision

of the order of precedence, and also that lump-sum benefits are made to

individuals who survive the annuitant and are alive when title to the payment

arises. ID at 2-3. Therefore, in the interest of justice, and so that the appellant is

not fighting a fog of generality, we address the appellant’s new argument here.

See Harless, 71 M.S.P.R. at 113 (remanding an appeal to the regional office

because the administrative judge did not issue a written order explaining to the

appellant that he should submit additional evidence to support his claim of

financial hardship in connection with a repayment schedule). 

We remand the matter to OPM for further explanation of its determination and

consideration of the appellant’s new evidence.

The appellant’s new evidence that he is Ms. Hines’s “legatee” may support

his claim that Mr. Hines was not alive at Ms. Hines’s death. Mr. and Ms. Hines

resided together, and Ms. Hines resided at the time of her death and died, in

provides no basis for reversal of an initial decision). 
5

Louisiana. IAF, Tab 5 at 16, 19. The Board has applied substantive state law to

determine the proper recipient of a lump-sum benefit when necessary to identify a

member of the statutory class in the order of precedence. Wengel v. Office of

Personnel Management, 100 M.S.P.R. 11, ¶ 8 (2005); see Alvarez v. Office of

Personnel Management, 64 M.S.P.R. 534, 536-38 (1994) (applying the law of the

Philippines to presume that a decedent’s widow had passed away, thus entitling

the appellant to a lump-sum death benefit). Louisiana law defines a legatee as

someone who is a successor as the result of a valid will. La. Civ. Code Ann. arts.

874, 876. The determination that the appellant is the sole successor named in Ms.

Hines’s will does not prove it is more likely than not that Mr. Hines predeceased

Ms. Hines. Ms. Hines may not have named Mr. Hines in her will for a number of

reasons, including that they were divorced 26 years before her death. 4 

Further, we observe that OPM has not stated whether Ms. Hines cancelled

her designation of Mr. Hines as her beneficiary in a signed and witnessed writing

received by OPM before her death. IAF, Tab 5 at 19; see 5 U.S.C. § 8342(c). No

designation, change, or cancellation of a beneficiary in a will, divorce decree, or

other document has any force or effect if it is not so executed and filed. 5 C.F.R.

§ 831.2005(b); see Mackey v. Office of Personnel Management, 54 M.S.P.R. 158,

162 (1992) (finding no evidence that a decedent filed with OPM a copy of his

divorce decree, which allegedly cancelled his designation of beneficiary, and thus

the requirements of 5 U.S.C. § 8342(c) were not satisfied). Because OPM is most

likely to have evidence relating to any change in beneficiary, it should clearly

4

 An obituary available online for Ms. Hines indicates that Ms. Hines was survived by

the appellant and seven grandchildren, as well as that Mr. Hines predeceased Ms. Hines.

Obituary for Joan Mary Schulz, Times-Picayune (Dec. 27-28, 2021),

https://obits.nola.com/us/obituaries/nola/name/joan-schulz-obituary?id=32005395 (last

visited Apr. 3, 2024). We do not express an opinion here as to what weight to give this

obituary or its impact on the appellant’s benefit claim. See 5 U.S.C. § 8342(c)

(providing that not only children, but also “descendants of deceased children by

representation” are third in the order of precedence for a lump-sum death benefit);

5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters of

common knowledge); 
6

resolve this question in a new reconsideration decision so that the Board can

make findings on a complete record.

In a case similar to the instant appeal, the Board held that when OPM

issued a final decision denying an application for lump-sum death benefits

without resolving the dispositive issue of the validity of a designation of

beneficiary, the appropriate disposition was to remand the case to OPM for

reconsideration of the matter. Stubblefield v. Office of Personnel Management,

60 M.S.P.R. 455, 457, 460 (1994). Based on the record before us, we find that

OPM must address whether the appellant is eligible to receive all or a portion of

the lump-sum benefit due to the alleged 1999 death of Mr. Hines and whether Ms.

Hines made a valid change in her beneficiary designation. Because OPM did not

address these dispositive issues in its final decision, we remand to OPM for a new

final decision.5 IAF, Tab 5 at 10-11; see Stubblefield, 60 M.S.P.R. at 460. 

ORDER

For the reasons discussed above, we remand this case to OPM for further

adjudication in accordance with this Remand Order.

OPM shall issue a new reconsideration decision addressing the appellant’s

new evidence and any evidence relating to any change in the decedent’s

beneficiary. OPM shall issue the new reconsideration decision within 60 days of

the date of this Order and advise the appellant of his right to file an appeal with

the Board if he disagrees with that new decision.

We further ORDER OPM to tell the appellant promptly in writing when it

believes it has fully carried out the Board’s Order and of the actions it has taken

to carry out the Board’s Order. We ORDER the appellant to provide all necessary

5

 In light of our decision to remand this matter to OPM, we need not address the

appellant’s argument that he was not contacted by the administrative judge for the close

of record conference. PFR File, Tab 1 at 1; see Karapinka v. Department of Energy,

6 M.S.P.R. 124, 127 (1981) (finding that an administrative judge’s procedural error is

of no legal consequence unless it is shown to have adversely affected a party’s

substantive rights).
7

information OPM requests to help it carry out the Board’s Order. The appellant,

if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after OPM tells the appellant that it has fully carried

out the Board’s Order, the appellant may file a petition for enforcement with the

office that issued the initial decision on this appeal if the appellant believes that

OPM did not fully carry out the Board’s Order. The petition should contain

specific reasons why the appellant believes that OPM has not fully carried out the

Board’s Order, and should include the dates and results of any communications

with OPM. 5 C.F.R. § 1201.182(a).

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.