If you are a surviving spouse of a civilian federal employee and your child was denied pension benefits after Social Security ended, keep reading.
OPM is misinterpreting the law!
The governing statute is 5 U.S.C. §8443(a), which states: (a) (1) If an employee or Member dies after completing at least 18 months of civilian service which is creditable under section 8411, or an annuitant dies, each surviving child is, for any month entitled to an annuity equal to – (A) the amount by which the applicable amount under paragraph (2) for such month exceeds the applicable amount under paragraph (3) for such month, divided by (B) the number of children entitled to a payment under this section for such month.
(2) The applicable amount under this paragraph for any month is the total amount to which the surviving child or children (as the case may be) of the annuitant, employee or Member would be entitled for such month under subchapter III of chapter 83 (including any adjustment based on section 8340) based on the service of such annuitant, employee, or Member, if the service of such annuitant, employee, or Member were creditable under such subchapter. (3) The applicable amount under this paragraph for any month is the total amount of child’s insurance benefits which are payable (or would on proper application be payable) under title II of the Social Security Act for such month based on the wages and self-employment income of such annuitant, employee, or Member.
Ruling: In 5 U.S.C. §8443(a)(2) Congress referred to “child or children.” In paragraph (a)(3), Congress only referred to a singular “child’s” benefits. If Congress had intended for child to be plural in paragraph (a)(3) as it was in (a)(2), it would have stated “child’s or “children’s” benefits. Instead, Congress only referenced one child when discussing the amount of SSA benefits to be subtracted from the potential FERS award.
OPM’s implementing regulation changed paragraph (a)(3) to “all children” which is erroneously canceling out pension benefits for older children as they age out of SSA. I have tried to bring this injustice to both my congressman and senator on numerous occasions.
If you are a surviving spouse – fight OPM! It is illegal for you to use SSA benefits in the name of one child for the benefit of another child. OPM’s calculation of including younger children’s SSA benefits to offset older children’s pension benefit violates SSA. It is also discriminating against the older child as they will not qualify for the same benefits as a younger child using OPM’s current calculation.
Insist OPM obey the statute as written when calculating your benefits.