Opposition Brief — Funderburg v. United States Railroad Retirement Board

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No. 94-370 - 4

—

In the Supreme Court of the United States

OCTOBER TERM, 1994

WILLIAM S. FUNDERBURG,. PETITIONER

.

UNITED STATES RAILROAD RETIREMENT B

HOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREWS. Days, III

Solicitor General

Dye partine vt of Ju: hice

Washington, PC. 20530

CATHERINE C. COOK 202) 514-2217

General Counsel

Railroad Retirement Board

Chicago, Ill. 60611-2092

AVAILABLE COPY

QUESTION PRESENTED

Whether the United States Railroad Retirement

Board’s decision not to reopen petitioner’s 1978 appli-

cation for disability benefits was judicially reviewable.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Aspros v. Railroad Retirement Bd., 904 F.2d 384

; isl ilbeisnedanensusvsanenseaseeee. 2

Bennett v. Tucker, 827 F.2d 63 (7th Cir. 1987) ............. 9, 10

Burleson v. Railroad Retirement Bd., 711 F.2d 861

i a oc cacltenebubseoesnctsenecsssecses 2

Califano v. Sanders, 430 U.S. 99 (1977) ............... 5, 6, 7, 8, 10

Interstate Commerce Commission v. Brotherhood of

Locomotive Engineers, 482 U.S. 270 (1987) ............. ~

Sones v. United States Railroad Retirement Bd., 933

I i ensanvnpnnonsaaceneensecconceces 4, 8-9, 10

Steebe v. United States Railroad Retirement Bd.,

708 F.2d 250 (7th Cir.), cert. denied, 464 USS.

a a cndaeancesaneventancersene 5, 7, 8, 9

Szostak v. Railroad Retirement Bd., 370 F.2d 253

i ini iareainsiinnsrbneeneabincnenstoces sicenscees 9

Statutes and regulations:

Railroad Retirement Act of 1974, 45 U.S.C. 231 et seq.:

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Railroad Unemployment Insurance Act, 45 U.S.C. 351

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45 U.S.C. 355(c) (1988 & Supp. IV 1992)..............0. 3, 7, 8

45 U.S.C. 355(f) (1988 & Supp. IV 1992).................. 3, 7, 8

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IV

Statutes and regulations—Continued: Page

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20 C.F.R.:

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In the Supreme Court of the Anited States

OCTOBER TERM, 1994

No. 94-370

WILLIAM S. FUNDERBURG, PETITIONER

Vv.

UNITED STATES RAILROAD RETIREMENT BOARD

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 20-23) is

unpublished, but the decision is noted at 23 F.3d 400

(Table). The decisions of the Railroad Retirement Board

(Pet. App. 40-43) and the Hearings Officer (Pet. App. 24-

39) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 4, 1994. A petition for rehearing was denied on May

31, 1994. Pet. App. 44-45. The petition for a writ of

certiorari was filed on August 29, 1994. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

1. Under the Railroad Retirement Act of 1974 (RRA),

45 U.S.C. 231 et seq., former railroad employees “whose

permanent physical or mental condition is such that they

are unable to engage in any regular employment” are

entitled to disability annuities. 45 U.S.C. 231la(a)(1)(v).

The Railroad Retirement Board (Board), which

administers the disability annuity program, has

promulgated regulations governing disability determin-

ations. The Board’s regulations are substantially

similar to those used by the Social Security Admini-

stration (SSA) to determine disability under the Social

Security Act.' The Board’s regulations provide, how-

ever, that “[djeterminations of the Social Security

- Administration or any other governmental or non-

governmental agency about whether or not a claimant is

disabled under the laws, regulations or standards

administered by that agency shall be considered by the

Board but are not binding on the Board.” 20 C.F.R. 220.3.

The SSA’s regulations similarly provide that “a deter-

mination made by another agency that you are- disabled

* * * is not binding on us.” 20 C.F.R. 404.1504.

Section 8 of the RRA, which governs judicial review of

Board decisions under the Act, provides as follows:

Decisions of the Board determining the rights or

liabilities of any person under this subchapter shall

be subject to judicial review in the same manner,

1 Prior to the codification of the Board’s current regulations,

the Board applied Social Security regulations in determining

disability under the Railroad Retirement Act. See, e.g., Aspros v.

United States Railroad Retirement Bd., 904 F.2d 384, 386 (7th Cir.

1990); Burleson v. Railroad Retirement Bd., 711 F.2d 861, 862-863

(8th Cir. 1983).

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subject to the same limitations, and all provisions of

law shall apply in the same manner as though the

decision were a determination of corresponding

rights or liabilities under the Railroad Unemploy-

ment Insurance Act [45 U.S.C. 351 et seq.] except

that the time within which proceedings for the

review of a decision with respect to an annuity,

supplemental annuity, or lump-sum benefit may be

commenced shall be one year after the decision will

have been entered upon the records of the Board and

communicated to the claimant.

45 U.S.C. 231g. The Board’s review of claims for benefits

under the Railroad Unemployment Insurance Act

(RUIA) is governed by 45 U.S.C. 355(c) (1988 & Supp. IV

1992). Judicial review is governed by 45 U.S.C. 355(f),

which permits a petition for review in the courts of

appeals to be brought by “{aJny claimant, or any railway

labor organization * * * of which claimant is a member,

or any other party aggrieved by a final decision under

subsection (c) of this section.” The exclusivity of this

provision is established by 45 U.S.C. 355(g), which states

that “[flindings of fact and conclusions of law of the

Board in the determination of any claim for benefits or

refund [and] the determination of any other matter

pursuant to subsection (c) of this section * * * shall not

be subject to review in any manner other than that set

forth in subsection (f) of this section.”

Neither the RRA nor the RUIA alludes to the

reopening of final decisions by the Board. However,

2 Similarly, 45 U.S.C. 355(c) (1988 & Supp. IV 1992) provides

that “[a]Jny issue determinable pursuant to this subsection and

subsection (f) of this section shall not be determined in any manner

other than pursuant to this subsection and subsection (f) of this

section.”

ies Bn En Og I N ry ea eee

4

Consolidated Board Order 75-5 provides that the Board

may reopen final decisions on claims for RRA benefits.

That Order states that the

[fjactors to be taken into consideration in

determining whether such a decision or certification

is to be reopened include, but are not limited to, the

following:

(1) The responsibility of the applicant in not

providing the new evidence, if any, upon which the

request for reopening is based, at the time the

original claim was made or at some other time prior

to the date of the request for reopening;

(2) The weight or probative value of any new

evidence; |

(3) The responsibility of the Railroad Retirement

Board in previously applying law or evaluating

evidence incorrectly.

Consolidated Board Order 75-5, { 17B (quoted in Sones v.

United States Railroad Retirement Bd., 933 F.2d 636,

637-638 (8th Cir. 1991)); see Pet. App. 63-64.

2. On May 22, 1978, petitioner William S. Funderburg

filed an application for a disability annuity under the

RRA. After receiving an initial decision denying his

claim, petitioner appealed the decision to an appeals

referee and then to the Board. On December 10, 1981, the

Board issued a final decision denying petitioner’s appeal.

Petitioner did not seek judicial review of that decision.

Petitioner’s application for Social Security disability

benefits was also denied. Petitioner did, however, seek

judicial review of the denial of his application for Social

Security disability benefits. Pet. App. 24; Pet. 4-5.

On April 24, 1985, petitioner applied for a reduced-age

retirement annuity under the RRA. He was awarded an

annuity beginning May 1, 1985, and he continued to

———

5

receive benefits for the next four years. In 1989 peti-

tioner’s RRA annuity was reduced after the Board was

informed that the Social Security Appeals Council, on

remand from the United States District Court, had

awarded petitioner Social Security disability benefits

retroactive to April 1, 1977. Pet. App. 24-25.’

Petitioner pursued administrative appeals of the

Board’s action reducing his RRA annuity, arguing, inter

alia, that his 1978 application for an RRA disability

annuity should be reopened. On May 14, 1992, the Board

“affirm[ed] the decision of the hearings officer not to

reopen the final decision with respect to the application

filed May 22, 1978.” Pet. App. 41. The Board did, how-

ever, reexamine petitioner’s 1985 application for a

reduced-age RRA annuity. “Based on its consideration

of the record in this case,” the Board determined that

petitioner was “entitled to a disability annuity under [45

U.S.C. 231a(a)(1)(v)] based on the application he filed on

April 24, 1985.” Pet. App. 41.

3. Petitioner then filed a petition for review in the

United States Court of Appeals for the Fourth Circuit,

challenging the Board’s refusal to reopen its denial of his

1978 application for a disability annuity. The court

dismissed the petition for review for lack of subject

matter jurisdiction. Pet. App. 20-23. Relying on Cali-

fano v. Sanders, 430 U.S. 99, 107-108 (1977), and Steebe v.

United States Railroad Retirement Bd., 708 F.2d 250,

254-255 (7th Cir.), cert. denied, 464 U.S. 997 (1983), the

court held that “[a]bsent extraordinary circumstances, a

decision of the Railroad Retirement Board not to reopen

an earlier denial of a claim is not subject to judicial

8 When an employee qualifies for benefits under both the RRA

and the Social Security Act, the RRA benefits must be reduced by

the amount of the Social Security benefits. 45 U.S.C. 231b(m).

6

review. * * * Therefore, since [petitioner] does not

challenge the constitutionality of the Board’s decision,

this Court lacks jurisdiction to review the Board’s

decision not to reopen the case.” Pet. App. 22-23.

ARGUMENT

The decision of the court of appeals is compelled by the

statutory provisions governing judicial review of Board

decisions, and by this Court’s ruling in Califano v.

Sanders, 430 U.S. 99 (1977). Although one court of

appeals has permitted judicial review of the Board’s

refusal to reopen its denial of RRA disability benefits,

we do not believe that the circuit conflict requires

resolution by this Court at the present time.

1. In Califano v. Sanders, this Court held that the

Social Security Act did not authorize judicial review of

the decision by the Secretary of Health, Education, and

Welfare not to reopen the denial of a claim for benefits

under the Act. The Court held that 42 U.S.C. 405(g),

which permitted judicial review of “any final decision of

the Secretary made after a hearing,” did not apply to the

Secretary’s refusal to reopen a prior decision. 430 U.S.

at 108. The Court rested its decision in part on the facts

that “a petition to reopen a prior final decision may be

denied without a hearing” and that “the opportunity to

reopen final decisions and any hearing convened to

determine the propriety of such action are afforded by

the Secretary’s regulations and not by the Social

Security Act.” Jbid. The Court noted as well that to

permit judicial review of refusals to reopen would

subvert the statutory time limit for challenging the

Secretary’s final decision on the initial claim for

benefits. Ibid. It stated: “Congress’ determination so to

limit judicial review to the original decision denying

benefits is a policy choice obviously designed to forestall

7

repetitive or belated litigation of stale eligibility claims.

Our duty, of course, is to respect that choice.” Ibid.‘

The statutory scheme governing judicial review of the

Board’s determinations is closely analogous to that

which was at issue in Sanders. See Steebe v. United

States Railroad Retirement Bd., 708 F.2d 250, 255 (7th

Cir.) (“Although Sanders addressed reopening under the

Social Security Act, the reasoning in Sanders is equally

applicable to the RRA.”), cert. denied, 464 U.S. 997

(1983). Like the Social Security provisions at issue in

Sanders (which authorized judicial review of “any final

decision of the Secretary made after a hearing,” 430 U.S.

at 108), the RRA and RUIA restrict judicial review to a

carefully defined category of Board decisions. A petition

for review may be filed by any person “aggrieved by a

final decision under subsection (c) of this section [45

U.S.C. 355(c)].”_ 45 U.S.C. 355(f) (1988 & Supp. IV 1992).

Like the Secretary’s refusal to reopen Social Security

claims, the Board decision that petitioner seeks to

challenge does not fall within the category of Board

decisions subject to judicial review. “A decision by the

Board not to reopen an application would not come within

the terms of subsection (c) of section 355 of the RUIA:

only an appeal from the original denial of the application

for benefits would fit within subsection (c).” Steebe, 708

F.2d at 254.°

4 The Court suggested, however, that judicial review might be

available in “those rare instances where the Secretary’s denial of a

petition to reopen is challenged on constitutional grounds.” 430

USS. at 109.

® The statute makes clear that no alternative avenue for judicial

review is available. See 45 U.S.C. 355(g) (“Findings of fact and

conclusions of law of the Board in the determination of any claim

for benefits or refund * * * shall not be subject to review in any

8

As with the Social Security scheme at issue in

Sanders, moreover, the Board’s authority to reopen the

prior denial of a claim rests on a Board regulation and

not on the governing statute. And as with the Social

Security Act, to permit judicial review of refusals to

reopen would subvert Congress’s effort “to forestall

repetitive or belated litigation of stale eligibility

claims.” Sanders, 430 U.S. at 108; see Steebe, 708 F.2d at

255. This Court’s decision in Sanders therefore compels

the conclusion that the Board’s refusal to reopen its

denial of petitioner’s 1978 application is not subject to

judicial review.°

2. Petitioner principally relies (Pet. 13-18) upon

Sones v. United States Railroad Retirement Bd., 933

F.2d 636 (8th Cir. 1991), in which the court of appeals

entertained a petition for review of the Board’s refusal to

reopen a prior denial of disability benefits under the

manner other than that set forth in subsection (f) of this

section.”).

6 Interstate Commerce Comm’n v. Brotherhood of Locomotive

Engineers, 482 U.S. 270 (1987), is not to the contrary. The Court

in Locomotive Engineers held that the ICC’s refusal to reopen a

prior decision was judicially reviewable (under an abuse of

discretion standard) “li]f the petition that was denied sought

reopening on the basis of new evidence or changed circumstances.”

482 U.S. at 284. In that case, however, the pertinent statute

authorized judicial review of any “final order” of the Commission,

see id. at 277; the Court noted as well that “[t]he Commission’s

authority to reopen and reconsider its prior actions stems from 49

U.S.C. § 10327(g).” 482 U.S. at 277. Here, by contrast, judicial

review is available only for “final decision[s] under subsection (c) of

this section [i.e., 45 U.S.C. 355(c)],” 45 U.S.C. 355(f) (1988 & Supp.

IV 1992); and the Board’s authority to reconsider its earlier rulings

is grounded in its own regulations rather than in the statute itself.

The present case is therefore controlled by Sanders rather than by

Locomotive Engineers.

9

RRA. The court held that the Board had abused its

discretion in declining to reopen the earlier decision in

light of the ruling of a Social Security ALJ that the

claimant was entitled to disability benefits under the

Social Security Act. Id. at 637-638. We acknowledge

that the Eighth Circuit’s reasoning in Sones cannot be

squared with that of the Fourth Circuit in the instant

case. For two reasons, however, we do not believe that

the conflict requires resolution by this Court at the

present time.

a. The Eighth Circuit in Sones did not discuss, or

even cite, the statutory provisions governing judicial

review of the Board’s decisions. It also did not cite

Sanders v. Califano, but relied exclusively on Szostak v.

Railroad Retirement Bd., 370 F.2d 253, 254-255 (2d Cir.

1966), a case that well predated Sanders. See 933 F.2d at

638. Given the Eighth Circuit’s failure to discuss the

most relevant authorities, we believe that other courts of

appeals are unlikely to find its analysis persuasive.’

’ The Eighth Circuit minimized the significance of Steebe,

asserting that “the Seventh Circuit has limited its own holding in

Steebe * * * to the specific facts of that case.” Sones, 933 F.2d at

638 n.2 (citing Bennett v. Tucker, 827 F.2d 63, 73 n.7 (7th Cir.

1987)). That statement is literally true but seriously misleading.

The defendant in Bennett relied upon Steebe for the broad

proposition that the State’s decision to “close” an individual’s

claims precluded a subsequent constitutional challenge to the

State’s action. 827 F.2d at 72-73. The court rejected that

contention, noting that Steebe “turned on [its] specific facts, and

thus ha[s] no relevance in this action. In Steebe, we held that

Congress had divested the federal courts of jurisdiction to review

the Railroad Retirement Board’s decision not to reopen a claim.”

827 F.2d at 73 n.7. Although the Bennett court thus “limited”

Steebe to the context of Board refusals to reopen, it did not suggest

that the unavailability of judicial review otherwise turned on the

peculiar facts at issue in Steebe.

10

b. The claimant in Sones received the final decision of

the Board, denying his claim for RRA disability benefits,

on May 30, 1989. 933 F.2d at 687. Less than five months

thereafter (on October 6, 1989), Sones requested that the

Board reopen its decision in light of the favorable Social

Security ruling. bid. Thus, at the time he requested

reopening, Sones had a live, appealable claim. See 45

U.S.C. 231g (establishing a one-year period for seeking

judicial review of Board decision with respect to an

annuity under the RRA). Although the Eighth Circuit

did not rely on that fact in explaining its decision to

exercise jurisdiction, it is clear that Sones’s petition for

review did not raise the same danger of “repetitive or

belated litigation of stale eligibility claims,” Sanders,

430 U.S. at 108, as did the petition for review in the

instant case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAYs, III

Solicitor General

CATHERINE C. COOK

General Counsel

Railroad Retirement Board

NOVEMBER 1994

TE, FAP EE BOR Pee TIS a IPERS Bay ee