U n i t e d S t a t e s G o v e r n m e n t

M e m o r a n d u m

FORM 0 -1 1SI (1-12)

R a i l r o a d R e t i r e m e n t b o a r d

TO

L -9 6 -5

John Baer

Acting Director of Survivor Benefits 

Through: B. V. Ferguson

Director of Programs

FEB 151996

FROM Steven A. B arth o lo w £ ^ % ^ zVz ^ ^ 5 7 

Deputy General‘G^uns^l 

Through: Catherine C. C o o l y ,

General Counsel H \

SUBJECT : Process of Applying for Benefits under the Railroad

Retirement Act

This is in response to your memorandum dated December 1 1 ,1 9 9 5 , wherein you ask 

a series of questions about the application process with respect to benefits under the 

Railroad Retirement Act.

Before responding to your specific questions, a brief general discussion may be 

helpful. With regard to the first part of your inquiry, as to whether the Board may use 

an electronic application to establish entitlement under the Act, section 2 of the Act 

requires that an application be filed in order to establish entitlement to an annuity. As 

you note in your memorandum, section 5(b) of the Act provides in pertinent part that 

"An application for any payment under this Act shall be made and filed in such 

manner and form as the Board may prescribe." The Board has, by regulation, defined 

an application as "generally one that is filed on a form set up by the Board for that 

purpose...." 20 CFR 217.6(a). In my view, the statute would not preclude the Board 

from providing by regulation for the filing of an electronic form in order to establish 

entitlement to benefits.

The second part of your inquiry involves two issues. First, there is a question as to 

w hether the hearsay rule would preclude the use of a computer record rather than the 

docum ent itself in litigation involving the Board. If it would, our ability to pursue a 

fraud claim against an annuitant might be jeopardized. Your inquiry also involves the 

value of the signed certification in making determinations regarding fault in causing 

an overpayment.
John Baer

Acting Director of Survivor Benefits

T h rou gh : B. V. Ferguson

Director of Programs

Hearsay evidence is often accepted. Various courts have, for example, accepted 

computer records of documents in lieu of the actual documents themselves. A 

criminal conviction for defrauding the Veterans' Administration was affirmed when 

computer printouts rather than the enrollment certificate forms themselves w ere used 

to establish that the defendant had enrolled more veterans than she was authorized 

to enroll. A Veterans' Administration employee testified as to the input procedures, 

the accuracy of those input procedures, and the fact that the computer was tested 

for internal programming errors on a monthly basis, moreover, the employee testified 

that the printouts relied upon were maintained and used by the Veterans' 

Administration in the ordinary course of business. The Court held that "[u]nder the 

circumstance, we believe that a sufficient showing of the reliability of the printouts 

was made to warrant their admission into evidence...." United States of America v. 

W eatherspoon.581 F. 2d 595,598 (7th Cir. 1978). In other criminal cases, involving 

various agencies, convictions were upheld based on computer records. S e e , e.g. 

United States of America v. Bowers. 920 F.2d 220 (4th Cir. 1990); United States of 

America v. Hernandez. 913 F.2d 1506 (10th Cir. 1990); United States v. Orozco. 

590 F.2d 789 (9th Cir. 1979) cert. den. 439 US 1049, 58 L.Ed. 2d 709, 99 S. Ct. 

728; and United States v. Young Bros. Inc.. 728 F.2d. 682 (5th Cir. 1984).

Based on the above cited decisions, it is my opinion that the Board may legally base 

its decisions on computer records maintained in the ordinary course of business rather 

than on the various source documents themselves; in my opinion, such records would 

constitute substantial evidence to support such decisions. Moreover, such records 

would be admissible in criminal proceedings for fraudulent benefit claims. Of course, 

if the documents themselves are retained they might have to be produced. It should 

be noted that the Board already relies on the Form G-91 as the proof of age, marriage, 

divorce or death of an individual rather than the actual source document.

However, just because courts are becoming more receptive to accepting computer 

records in lieu of the source documents does not mean that there is no utility in 

retaining the original. This is particularly true with respect to the certification form as 

will be discussed in response to question number four.

I will now respond to each of your specific questions, restating the question before 

responding thereto.
John Baer

Acting Director of Survivor Benefits

T h rough: B . V. Ferguson

Director of Programs

1. Since the statute allows the Board to prescribe the manner and form of the 

application procedure, is there any legal bar to eliminating the paper application 

form, as long as the information is collected and maintained in an electronic 

medium as a regular business practice?

As stated above, it is my opinion that the Board by regulation could provide that an 

electronic application is adequate to establish entitlement to an annuity. In addition, 

the electronic record that an application had been filed and the data contained in that 

application retained in an electronic format would generally constitute sufficient 

evidence to support Board actions with respect to the application.

2. Is it legally necessary to have an applicant sign an application form?

There is no requirement in the Act that an application form be signed. Section 217.2 

of the Board's regulations (20 CFR 217.2) provides as follows "apply or file means to 

sign a form or statement that the Railroad Retirement Board accepts as an 

application." This regulation would have to be modified to permit dispensing with a 

signature.

3. Must all the information collected in the application process be permanently 

retained?

No, although it should be retained, either in hard copy format or electronically, at least 

1 year after the last action on the claim in case of any legal challenge to the action. 

The RRB's Record Disposition Handbook contains the present schedule of retention.

4. Can an appropriately worded certification form containing four general 

statements (1. Knowing that making false statements to get benefits is a crime 

under federal law, 2. Acknowledging receipt of a booklet and the responsibility 

for reporting events explained in the booklet, 3. Certifying that the information 

given in the application process is true, 4. Agreeing to notify the RRB of any 

of several enumerated events) legally take the place of our current application 

and certification forms?
John Baer

Acting Director of Survivor Benefits

T h rou gh : B. V. Ferguson

Director of Programs

Initially, there is no requirement in the Act for a certification form. As a matter of 

policy, the Board has required a certification as part of the application process. As 

noted above, there is no legal requirement for a paper application. It would follow 

then that there is no legal requirement for a paper certification form signed by the 

applicant. However, in my opinion, a certification form such as you describe, which 

is quite similar to the current certification form used in connection with paper 

applications, is desirable.

Certification forms can be used to impress upon an applicant his or her 

responsibilities. In addition, a certification form is very effective in making and 

supporting fault determinations and in establishing fraud. From the standpoint of 

administration, the benefits derived from certification forms must be balanced against 

the costs associated with retaining the forms.

5. When the receipt of a signed certification form (as described above) is recorded 

on-line by an RRB representative as having been received, may it be discarded 

as a normal business practice? Does the computer record of receipt provide 

sufficient protection for the RRB's right to recover erroneous payments and 

prosecute fraudulent claims?

As noted above, criminal convictions have been upheld based on computer records 

maintained in the ordinary course of business. However, I would be hesitant, at this 

point, to encourage destruction of the original certification. As noted earlier, the 

certification form can provide unequivocal evidence of fault in erroneous payment 

determinations. It is much more difficult to challenge a signature on a certification 

that it is a computer record indicating that a certification w as received. With respect 

to criminal prosecutions for fraud, the original certification is even more crucial since 

an United States Attorney may be hesitant to prosecute a fraud where the only 

evidence available of knowledge and intent are computer records as opposed to a 

form signed by the defendant.

6. Would it be advisable to establish regulations to withhold payments until such 

certification form is signed by the applicant and returned to the agency? Is 

such a regulation an unnecessary bar to receipt of benefits?

This question presupposes that the application is deemed filed when the information 

is entered into the computer, rather than when the certification is received. However, 

if the certification is desirable, it would seem reasonable to consider the electronic 

application as "not filed" until the signed certification is received. If the electronic
5

John Baer

Acting Director of Survivor Benefits

T h rou gh: B. V. Ferguson

Director of Programs

application is deemed filed as it is entered, then a regulation to require submission of 

a certification signed by the applicant before payment could be issued will be 

necessary. In my opinion, the requirement of a certification is not an unnecessary bar 

to payment since the Board must assure itself that the applicant was aware of his 

responsibilities before payments are begun.

cc: Director of Retirement and Survivor Programs

Supervisor, RRA Users Section

AAArfi 

C. 296 

APPL2

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