Scott v. Railroad Retirement Board, 11532.

Decision Date30 November 1955
Docket NumberNo. 11532.,11532.
Citation227 F.2d 684
PartiesWilliam Mike SCOTT, Plaintiff, v. RAILROAD RETIREMENT BOARD, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Leonard B. Levy, New Orleans, La., for plaintiff.

Myles F. Gibbons, Chicago, Ill., David B. Schreiber, Associate Gen. Counsel, Railroad Retirement Board, Chicago, Ill., for defendant, Louis Turner, Ernest O. Eisenberg, Railroad Retirement Board, Chicago, Ill., of counsel.

Before MAJOR, FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

In this case we are asked to review a decision of the Railroad Retirement Board in which the Board found that the plaintiff, William Mike Scott, was not on August 29, 1935, an "employee" of an "employer" within the meaning of the Railroad Retirement Act of 1937, 45 U.S.C.A. § 228a et seq., as amended in 1946, as shown in 45 U.S.Code (1954 ed.), and 45 U.S.C.A., supra. In this case there was neither a claim by the plaintiff nor any evidence tending to show that on August 29, 1935, plaintiff was in the active service of an "employer."

The plaintiff's claim for an annuity was based solely on Section 1(d) (i) of the Railroad Retirement Act which provides:

"An individual shall be deemed to have been in the employment relation to an employer on the enactment date if (i) he was on that date on leave of absence from his employment, expressly granted to him by the employer by whom he was employed, or by a duly authorized representative of such employer, and the grant of such leave of absence will have been established to the satisfaction of the Board before July 1947 * * *." 45 U.S.C.A. § 228a(d).

The plaintiff, Scott, filed his application for an annuity under the Railroad Retirement Act on November 21, 1952. In this application he stated that he had been employed by the Texas & Pacific Railway Company, hereinafter referred to as the "Railway," as a clerk from September 12, 1917 to September 14, 1935, when he was discharged; that he had no rights to return to the service of the Railway; and that he claimed no service with the Railway nor with any other "employer" after that date. With his application Scott filed a Railroad Retirement Board form entitled "Employee's Statement of Compensated Service Rendered Prior to January 1, 1937," in which he indicated that on August 29, 1935, he was in the active compensated service of the Railway; but by a letter dated September 23, 1953, the plaintiff clearly and definitely stated that "on August 29, 1935, I was laying off account of being sick. I had worked up until August 1, 1935 * * *. I definitely had an `employment relation' on August 29, 1935, and the carrier will so advise you."

On June 25, 1942, the Railway filed with the Board for the plaintiff a "Record of Employee's Prior Service." This form was executed by David Wallace, the Chief Clerk to the Assistant Vice President of the Railway. This form stated that on August 29, 1935, plaintiff was not in the compensated service of the Railway. At the same time the Railway filed with the Board an "Employment Relation Questionnaire," Form No. ERR-8a, which was executed by the same official. This document stated that the plaintiff's last compensated service as a clerk for the Railway before August 29, 1935, was in July 1935 and that his first compensated service after August 29, 1935, was in September 1935; that on August 29, 1935, plaintiff's name was on the clerks' seniority roster, and that on that date the plaintiff was on a furlough but was ready and willing to return to service with the Railway; and that thereafter the plaintiff was restored to service pursuant to Rule 18 of the Agreement between the Railway and the Brotherhood of Railway Clerks.

On February 12, 1953, the Railway filed a second "Employment Relation Questionnaire" form in which the Railway again stated that the plaintiff last worked for it in July 1935 as a warehouse foreman; that in that month plaintiff was recorded as being on furlough on account of a reduction in force and was not recorded as being on leave of absence or absent on account of sickness or disability; and that he was recalled and reported for service in September 1935, but was discharged on September 14, 1935.

The Bureau of Retirement Claims, which first passed on plaintiff's claim, notified Scott that he was not entitled to an annuity based on service prior to January 1, 1937, because he was neither in the active service of, nor in an "employment relation" to, an employer on August 29, 1935.

Thereafter, on April 27, 1953, the Director of Personnel of the Railway wrote to the Board and stated that in one of the company's files there had been found a letter, dated August 28, 1935, which indicated that the plaintiff, instead of being off on furlough at that time on account of a reduction in force, was off due to his sickness. That letter stated that the Railway was "* * * unable to locate where the information that was shown on the prior Form ERR-8a was secured." This letter further stated that the company's files were being corrected to show that the plaintiff was off on account of sickness during the month of August 1935. The Railway with this letter submitted another "Employment Relation Questionnaire" which stated that on August 29, 1935, plaintiff was absent on account of sickness, and that he was recalled to duty on September 3, 1935, to a position of six months or more duration but was dismissed on September 14, 1935, for reasons other than disability.

Counsel for plaintiff in his brief in this court states that the sole issue involved in this case is a question of law...

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