M e m o r a n d u m

U n it e d Sta t e s Go v e r n m e n t FORM G.11W (1-92)

Ra il r o a d Re t ir e m e n t Board

April 25,2002

L-2002-06

TO Robert E. Bergeron 

Assistant to the Labor Member

FROM Steven A. Bar 

General Cou

SUBJECT : Application Deeming Provision of Section 103(f) of Public Law 

107-90

This is in response to your memorandum dated April 3,2002 on the above 

subject. Section 103(f) of the Railroad Retirement and Survivors' Improvement 

Act of 2001, P.L. 107-90, amended section 5(b) of the Railroad Retirement Act 

(45 U.S.C. § 231 d(b)) to provide that the application filed with the Railroad 

Retirement Board for an employee, spouse, or divorced spouse annuity based 

on an employment record of less than 10 years of service is deemed to be an 

application for a benefit under the Social Security Act. Your memorandum asks 

whether an individual entitled to an annuity based on more than ten years of 

service and that individual’s spouse entitled based on less than ten years of 

service may waive the payment of the social security benefit that they are 

deemed to have filed for.

Section 103(f) of P.L. 107-90 provides that an application for an employee, 

spouse, or divorced spouse annuity based on an employment record of less 

than 10 years of service is deemed to be an application for a benefit under the 

Social Security Act. A person who has filed an application for benefits under the 

Social Security Act may waive entitlement to that benefit for months "which 

occur before the month in which such individual files application for such 

benefit” . Section 2020) (3) of the Social Security Act (42 U.S.C. § 402(j)(3)). Since 

in accord with section 103(f) of P.L. 107-90, the individual with less than 10 years
of service is deemed to have filed an application for a social security benefit at 

the same time as the application for a railroad retirement benefit is filed, there 

can be no waiver of entitlement under the Social Security Act after that filing 

date.

There is no provision of the Social Security Act that permits an individual to waive 

entitlement to a social security benefit after the month in which the application 

is filed.1 The Social Security Administration does permit a person to withdraw an 

application for a benefit. The effect of that withdrawal is the same as if the 

application had never been filed. See 20 CFR 404.640. However, due to the 

deem ed filing created by section 103(f) there can be no withdrawal of the 

application for a social security benefit unless the application for a railroad 

retirement annuity is also cancelled.

The conclusion that the employee and the spouse entitled on less than 10 years 

of service may not waive entitlement to the social security benefit for months 

after the month of filing is further buttressed by the reenactment of the now third 

sentence of section 5(b) of the Railroad Retirement Act. That sentence permits a 

person who files an application for benefits under the Railroad Retirement Act 

based on an earnings record containing at least 10 years of railroad service to 

have the option of having the application filed under the Railroad Retirement 

Act to be considered an application under the Social Security Act. The 

language of section 5(b), as amended clearly means that individuals applying 

based on less than 10 years of service have no option to the deem ed filing of an 

application for a benefit under the Social Security Act. They may not waive any 

entitlement under the Social Security Act based on that application.

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1 Waiver of entitlement to a social security benefit should not be confused with waiver of

benefits payable. See Legal Opinion L-94-51, which held that the RRB should recognize waiver

of a social security benefit for purposes of computing an employee tier 1 and a spouse tier 1. L94-51 cited the Social Security Administration's POMS as authority for waiver of benefits payable.