U n i t e d S t a t e s G o v e r n m e n t FORM 0-1151 (1-52)

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

L-e6-25 <

JUN171996

TO The Board

FROM Catherine C. Cook 

General Counsel

SUBJECT Payment of Tier I Benefits to Certain Non-Resident Aliens

We received a memorandum from a hearings officer in the Bureau of Hearings and 

Appeals seeking advice with respect to the payment of tier I benefits to persons who 

would not receive a benefit under the Social Security Act by reason of section 202(t) 

of that Act (42 U.S.C. § 402(t)). Section 202(t) of the Social Security Act provides 

for the non-payment of benefits to certain persons who are not residents in the United 

States and do not meet certain other requirements. There is no comparable provision

in the Railroad Retirement Act. However, in Legal Opinion L-83-176, the then General 

Counsel determined that since the tier I annuity component of a railroad retirement 

annuity is computed as the amount that would be payable under the Social Security 

Act, where no social security benefit would be payable by reason of section 202(t), 

the annuitant's tier I benefit would be zero. The hearings officer asks whether this 

is still the agency's policy.

The rationale for the non-payment of a tier I benefit to a non-resident alien who would 

not receive a social security benefit because of section 202(t) of the Social Security 

Act is the same rationale that formed the basis of not paying tier I benefits to 

incarcerated felons. In connection with the appeal of Matthew McGuire, B. O. 95-7, 

the Board revised agency policy with respect to incarcerated felons and determined 

to pay tier I benefits to such claimants. The Board's decision in B. 0 . 95-7 w as 

based on the decisions in Costello v. United States Railroad Retirement Board. 780 

F. 2d 1352 (8th Cir. 1985), Claudette Johnson v. United States Railroad Retirement 

Board. 925 F. 2d 1374 (11th Cir. 1991) and Nancv Johnson v. United States Railroad 

Retirement Board. 969 F. 2d 1082 (D.C. Cir. 1992). These decisions uniformly held 

that the Railroad Retirement Board could not apply a non-payment provision applicable 

to spouses and widow(er)s with a child between the ages of 16-18 in the care of the 

spouse or widow(er) contained in the Social Security Act to the tier I annuity 

component under the Railroad Retirement Act unless that non-payment provision is 

specifically added to the Railroad Retirement Act.
The Board

I see no basis for distinguishing the policy with respect to the payment of tier I 

benefits to non-resident aliens from the policy with respect to the payment of such 

benefits to incarcerated felons. Accordingly, I recommend that the Board issue an 

order revising the policy expressed in Legal Opinion L-83-176 and directing that tier 

I benefits no longer be suspended for non-resident aliens and that such benefits be 

reinstated prospectively for persons whose benefits have been suspended previously. 

Attached is a draft Board Order.

Attachment
BOARD ORDER 96-

The Board hereby orders that the policy with respect to the non-payment of tier I 

benefits to certain non-resident aliens based on Legal Opinion L-83-176 shall no longer 

be followed. Tier I benefits shall not be terminated based on that legal opinion and 

such benefits suspended previously shall be reinstated on a prospective basis.
Un ited St a tes Go v er n m en t

M e m o r a n d u m

FORM 0-11 if (1-M)

R a ilr o a d R e tire m e n t B o a rd 

September 6, 1996

TO Catherine C . Cook

General Counsel

FROM : Beatrice Bzerski (FOR THE BOARD) ^

Secretary to the Board

SUBJECT: Payment of Tier 1 Benefits to Certain Non-Resident

Aliens

A majority of the Board, Labor Member Speakman dissenting, does not

approve the proposed Board Order, submitted with your memorandum of

June 17, 1996, respecting the Board's policy on payment of tier 1

benefits to non-resident aliens.

cc: Mr. Bower

Mr . Kever

Mr . Speakman

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