Burns v. U.S. R.R. Retirement Bd., 81-2293

• Citation: 701 F.2d 189
• Decision Date: 25 February 1983
• Docket Number: No. 81-2293,81-2293
• Parties: Alberta E. BURNS, on behalf of herself and all others similarly situated, Petitioner, v. UNITED STATES RAILROAD RETIREMENT BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 189

701 F.2d 189

226 U.S.App.D.C. 178

Alberta E. BURNS, on behalf of herself and all others

similarly situated, Petitioner, v. UNITED STATES RAILROAD RETIREMENT BOARD.

No. 81-2293.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 24, 1982.

Decided Feb. 25, 1983.

On Motion for Class Certification.

Gil Deford, Los Angeles, Cal., for petitioner.

Thomas W. Sadler, Gen. Atty., Railroad Retirement Bd., Chicago, Ill., with whom Dale G. Zimmerman, Gen. Counsel, and Edward S. Hintzke, Asst. Gen. Counsel, Railroad Retirement Bd., Chicago, Ill., were on the brief, for respondent.

Before MacKINNON and GINSBURG, Circuit Judges, and BAZELON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Petitioner Burns seeks to proceed on behalf of a class in this challenge to a Railroad Retirement Board ("Board") decision. She would represent

[a]ll persons who are receiving or who will receive both Social Security benefits and Railroad Retirement benefits and who have been or will be denied the right to retain 50% of their excess earnings pursuant to the actions of the Social Security Administration and the Railroad Retirement Board.

Motion of Petitioner for an Order Certifying the Class at 1, filed February 12, 1982. ¹ Petitioner concedes the novelty of this application. She has not identified, nor have we found, any federal or state precedent for inauguration of a class proceeding in an appellate forum. The Board has moved to dismiss the class element of the petition. Institutional impediments to the certification and supervision of a class proceeding by a court of appeals compel us to grant the Board's motion. ²

Petitioner claims that the relevant statutes ³ should be interpreted to allow recipients of benefits separately administered by the Social Security Administration and the Railroad Retirement Board to retain fifty percent of their excess employment earnings. She asserts a conflict with the Constitution's equal protection principle if those statutes are read to require a one hundred percent offset of excess earnings. Her complaint might well have been considered appropriate for class adjudication had judicial review properly commenced in a court of first instance. See Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) (challenge to Social Security Administration overpayment recoupment practices may proceed in district court as a nationwide class action); Pope v. Railroad Retirement Board, 672 F.2d 972 (D.C.Cir.1982) (similar nationwide class challenge to Railroad Retirement Board overpayment recoupment practices). See also, e.g., Liberty Alliance of the Blind v. Califano, 568 F.2d 333, 344-47 (3d Cir.1977) (SSI benefits); Jimenez v. Weinberger, 523 F.2d 689, 694-97 (7th Cir.1975), cert. denied sub nom. Mathews v. Jimenez, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976) (Social Security benefits); Westcott v. Califano, 460 F.Supp. 737, 743-46 (D.Mass.1978), aff'd, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) (AFDC benefits--class for which certification sought and granted limited to Massachusetts residents). ⁴ But see Denberg v. United States Railroad Retirement Board, 696 F.2d 1193 (7th Cir.1983) (2-1 decision) (district court lacks subject matter competence over Railroad Retirement Act claims; court of appeals is exclusive forum for judicial review of such claims).

In contrast, petitioner's alternate claim is not of a class character. She maintains that even if the one hundred percent offset is authorized by statute and is compatible with the Constitution, recovery of the overpayment should be waived in this instance, based on circumstances particular to her individual situation. A district court empowered to entertain a case such as this one, accordingly, might designate a class with respect to the statutory interpretation and constitutional issues "common to the class as a whole," ⁵ and reserve the waiver claim for individual adjudication in the event that the class claims failed.

Congress did not have in mind a design to preclude class actions when it provided for direct review in courts of appeals of decisions under the Railroad Retirement Act. Prior to 1946, first instance judicial review of administrative decisions under that Act, like first instance judicial review of administrative decisions under the Social Security Act then and now, ⁶ occurred in district courts. But judicial review of decisions under the Railroad Unemployment Insurance Act, 45 U.S.C. Sec. 351 et seq., occurred from the start in courts of appeals. Congress recognized that, frequently, the same issue required adjudication under both Railroad Acts. In the interest of economy and uniformity, Congress wished to assure that a case involving both Railroad Acts would be resolved "in a single consolidated proceeding with a single court review." S.Rep. No. 1710, part 2, 79th Cong., 2d Sess. 21 (1946), U.S.Code Cong.Serv. 1946, p. 1316. Congress understood that the "scope of review" under the two Railroad Acts was "substantially the same"; it selected the Unemployment Insurance Act scheme to govern court review under both Railroad Acts because the procedure set out in the Unemployment Insurance Act was "more definite and specific." Id. at 20. ⁷

Had Congress selected the Railroad Retirement Act pre-1946 judicial review route for both Railroad Acts, uniformity would have been complete. Combined claims under both Railroad Acts would have been heard in district courts, and the less frequent instance of a combined Social Security Act and Railroad Act claim would have been referred to district courts as well. The class action question before us, then, would have been presented to a forum equipped to administer class proceedings. But our court of review is not situated, as is a district court, to supervise class actions.

We do not rule against petitioner on class action certification simply because the Federal Rules of Appellate Procedure and our Local Rules contain no provision analogous to the rule governing class actions in district courts, Rule 23 of the Federal Rules of Civil Procedure. See Fed.R.App.P. 47 (in cases not provided for by rule, courts of appeals may regulate their practice in any manner not inconsistent with legislation and appellate rules). ⁸ Rather, we decline to fashion a class action vehicle because our appellate mode of proceeding is not compatible with designation and management of a class. We hear cases in three-judge panels and generally schedule a single argument session. Our province is the law; we do not hold hearings to explore fact questions. Class action certification, however, entails continuing court activity, and multiple decisions, some of them fact-based.

Initially, precise delineation of a class may require discovery or other preliminary procedures. ⁹ The original definition and certification, which should occur "as soon as practicable," may require alteration or amendment as the case unfolds. See Fed.R.Civ.P. 23(c)(1). Moreover, even when notice to class members is not mandatory, notice may be shaped and ordered when appropriate, see Fed.R.Civ.P. 23(d), as it would be in a case of this character should petitioner prevail on the merits of a class claim. See Pope v. Railroad Retirement Board, supra, 672 F.2d at 976 (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). Without significant change in our mode of proceeding, change of the kind that should be made, if at all, only after careful study by the full court, and perhaps only if adopted for all courts of appeals, we cannot engage in the close and continuing direction and supervision a motion for class action certification invites. ¹⁰

We express no view, because the parties have not thoroughly briefed and argued the point, whether resort might have been had to a district court in this very case. ¹¹ We note, however, a conflict in court of appeals opinions on this question. Compare Denberg v. United States Railroad Retirement Board, supra (Railroad Retirement Act claimant must go from Board to court of appeals and may not proceed in district court), with Finnerty v. Cowen, 508 F.2d 979 (2d Cir.1974) (Railroad Retirement Act annuitant who challenges, as does petitioner here, "double deduction" of excess earnings may proceed in district court). ¹² A panel of this court, without discussion, assumed district court subject matter competence over a complaint concerning the notice due Railroad Retirement annuitants alleged to have received overpayments; the panel directed the district court to certify a class as defined in the panel's opinion. Pope v. Railroad Retirement Board, supra.

In sum, while we appreciate the irony petitioner highlights--a congressional measure directed to rationalizing procedure under the Railroad Acts has created an anomaly for the claimant whose case arises under a Social Security Act provision and a Railroad Retirement Act incorporation of that provision--we are not equipped to devise and implement a class action framework for her case. Therefore we deny the motion for an order certifying the class, and grant the motion to dismiss the class element of the petition. ¹³

Motion to dismiss class element of petition granted.

1 The motion was made some two months after the petition for review was filed. Cf. D.D.C. Local Rule 1-13(b) (plaintiff shall move for certification within 90 days after filing the complaint).

2 Accord, Gebbie v. United States Railroad Retirement Bd., 631 F.2d 512, 516 n. 9 (7th Cir.1980) (appellate tribunal is "not an appropriate forum" for a class action).

3 42 U.S.C. Sec. 403(f) (Social Security benefits subject to reduction of $1 for each $2 of excess earnings), incorporated by reference in 45 U.S.C. Sec. 231a(g)(2) ...