Retirement Benefits

A federal appeals court has taken a broader view than the Office of Personnel Management or the Merit Systems Protection Board as to what type of school work keeps children eligible for survivor annuity benefits.

The case before the U.S. Court of Appeals for the Federal Circuit (No. 04-3068) involved the widow of a federal employee who was under the FERS system when he died and their two sons. She applied for survivor benefits upon his death but did not receive benefits on behalf of the sons because they were eligible for a Social Security benefit that was higher. When their eligibility for the Social Security benefit ended, she reapplied and was denied.


At issue was the law providing benefits to a “unmarried dependent child between 18 and 22 years of age who is a student regularly pursuing a full-time course of study or training in residence in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution.” OPM ruled, and the MSPB agreed, that the sons did not qualify as “in residence” because their schooling involved only six hours of classwork a week, even though they also were working 34 hours a week as apprentices.

But the court held that the academic institution has set the “residence” requirement for the full-time course of study and stipulated that the course of study also include a non-classroom, or “nonresident” component. “If an academic institution concludes that only a certain amount of physical presence in the institution is necessary to satisfy the requirements of its otherwise qualifying full-time course of study, what rational explanation is there for OPM to demand a greater amount of physical presence in the school in order for the child to be considered in residence under FERS?” the court wrote.

“The amount of time a student spends away from the classroom is irrelevant to the statute, as long as the student in question meets the ‘in residence’ requirements of an otherwise qualifying full-time course of study,” the opinion said in ruling the sons qualified for benefits.