# Wilhelmina Pope v. Railroad Retirement Board Edwin Thrash v. Railroad Retirement Board

> Court of Appeals for the D.C. Circuit · March 12, 1982 · 672 F.2d 972

URL: https://www.frixlaw.com/law-library/cases/9468990

## Case

- **Full name:** Wilhelmina POPE, Et Al., Appellants, v. RAILROAD RETIREMENT BOARD, Et Al.; Edwin THRASH, Et Al., Appellants, v. RAILROAD RETIREMENT BOARD, Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 12, 1982
- **Citations:** 672 F.2d 972; 217 U.S. App. D.C. 410; 1982 U.S. App. LEXIS 21079
- **Precedential status:** Published
- **Opinion:** Dissent by Ginsburg
- **Judges:** MacKinnon, Ginsburg, Nichols, Claims
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468990

## How later opinions describe it (automated extraction)

- holding district court should certify proposed Fed.R.Civ.P. 23(b)(2) class, require notice to class members of their rights, settle addressees, timing, and language of notice, and consider de minimis exclusion for petty recoveries

## Opinion text

GINSBURG, Circuit Judge,
dissenting in part:
I agree that the district court erred in refusing to order any retroactive notice, but believe this court’s majority errs in the opposite direction. I would define less lavishly the class entitled to retroactive notice.
As the majority correctly notes, the dispute before us centers on two classes of annuitants: (1) those subjected to recoupment without receiving any notice of their rights to challenge the asserted overpayment or to request a waiver of recovery; and (2) those notified of these rights, but not furnished an oral hearing prior to the time recovery commenced. See Majority opinion at 974-975. Even at this late date retroactive notice may yield relief for individuals in the first of these groups. 1 Al *977 leged overpayment to annuitants in the first described category has been and, in many cases, continues to be recovered from them in the absence of any notification of these annuitants’ rights to question whether they were in fact overpaid or to seek a waiver of recoupment. Retroactive notice to this, group, fully informing its members of actions they may now take to terminate recoupment and to recover amounts already recouped, is clearly warranted.
However, as to the second group — annuitants notified they could contest an overpayment allegation or request a waiver, but not provided with the opportunity for a pre-recoupment oral hearing 2 — further notice at this juncture is a costly but ineffectual gesture. Such notice may confound or breed false hope, it cannot genuinely aid the recipients. As the majority recognizes, this group has “lost the right to a pre-recoupment hearing on waiver and no human tribunal can give it back.” Maj. op. at 976. But annuitants in the second group were notified that they had the right to contest the existence of an overpayment and/or to seek a waiver of recovery. Moreover, any annuitant in this category who pursued either or both these alternatives would have been accorded the opportunity to participate in an administrative oral hearing. See 20 C.F.R. § 260.2 (1978); 20 C.F.R. § 260.2 (e) (1977). It is true that this oral hearing may not have been scheduled until after recoupment began. However unfortunate that may be, no current cure is available. Notifying these annuitants now that they had the right to a pre-recoupment oral hearing is therefore a futile act to which I can not subscribe. See DeFunis v. Odegaard, 416 U.S. 312, 316-17 , 94 S.Ct. 1704, 1705-06 , 40 L.Ed.2d 164 (1974); North Carolina v. Rice, 404 U.S. 244, 246 , 92 S.Ct. 402, 404, 30 . L.Ed.2d 413 (1971).
. This group consists of (1) annuitants who received their overpayment recoupment notice prior to April 5,1978, at which time BRC Policy Decision No. 13 was fully implemented, see Maj. op. at 974; and (2) annuitants excluded from notification under the board’s final regula *977 tions, see Maj. op. at 974, because their alleged overpayment resulted from simultaneous entitlement to benefits under the Social Security Act and recovery from them might be effected by reducing an accrued retroactive payment due them. See 20 C.F.R. § 260.1 (d)(2) (1979), 43 Fed.Reg. 56891 (1979).
. Indeed, the overbreadth of the majority’s direction extends further. It appears that the majority has ordered retroactive notice encompassing many annuitants who were in fact accorded the right to an oral hearing prior to the time recovery began. See 20 C.F.R. § 260.2 (a) (1978), 43 Fed.Reg. 56891 (1978).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468990. Public record. Not legal advice.