Szostak v. Railroad Retirement Board
| Decision Date | 02 December 1966 |
| Docket Number | No. 139,Docket 30569.,139 |
| Parties | Alexander SZOSTAK, Petitioner, v. RAILROAD RETIREMENT BOARD, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Alexander Szostak, pro se.
Dale Zimmerman, Chicago, Ill. (Myles F. Gibbons, Gen. Counsel, David B. Schreiber, Associate Gen. Counsel, Railroad Retirement Board, Chicago, Ill.) (Louis Turner, Chicago, Ill., of Counsel), for respondent.
Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.
On October 31, 1962, petitioner Alexander Szostak, then a 46 year old mental patient in the Central Islip State Hospital on Long Island, applied to the Railroad Retirement Board for the insurance annuity payable by statute to the child of a covered employee; he asserted he had permanent mental and physical impairments, beginning before he attained the age of 18, "such that he is unable to engage in any regular employment." 45 U.S.C. § 228e(c) and l(1) (ii). The Bureau of Retirement Claims sent him a Notice of Insurance Annuity Award at the hospital on March 26, 1963. The Notice stated that he had been awarded an annuity of $28.90 a month, two-thirds of his father's "basic amount," starting October 1, 1961. The annuity began at that date rather than the earlier date, September 1, 1954, when coverage was extended to him, 68 Stat. 1039 (1954), because 45 U.S.C. § 228e(j) provides that an annuity "shall begin with the month in which eligibility therefor was otherwise acquired, but not earlier than the first day of the twelfth month before the month in which the application was filed." The Notice included a statement that Szostak could appeal to the Board's Appeals Council but that this must be filed within a year from the date shown thereon. Although Szostak wrote a number of letters about his annuity during the one-year period, including an acknowledgment of receipt of the Notice of Award, he did not file an appeal until February 1965; he then asserted that he had never seen the Notice of March 26, 1963, a point on which he was corroborated by a letter from the Director of the Hospital stating that the Notice had been held in the business office, and that he had been unaware of his right to an administrative appeal. The Appeals Council denied the appeal as untimely. On further appeal the Board sustained the Council but also held that failure to reopen the claim would not result in any wrongful denial of benefits since it had no authority to consider the application of a mental incompetent as having been filed at the earliest date permitted by law or to recompute the annuity on the basis of present-day wage rates as Szostak asked. This petition to review followed.
The final decision of the Board is the only order before us. The relevant section of the Railroad Retirement Act, 45 U.S.C. § 228k, provides, with an exception not here material, that judicial review shall be "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 Unemployment Insurance Act," and that Act, 45 U.S.C. § 355(f), limits review to final decisions of the Board made "after all administrative remedies within the Board have been availed of and exhausted." This proposition, rather obvious from mere reading of the statute, is confirmed by the case law. Shelley v. Railroad Retirement Board, 185 F.2d 239 (9 Cir. 1950); Mahoney v. Railroad Retirement Board, 194 F.2d 752, 754 (7 Cir. 1952); Gregory v. Railroad Retirement Board, 201 F.2d 52 (6 Cir. 1952).1
We are by no means certain that if the issue were squarely presented, we would hold invalid an ironclad bar of intra-agency appeals not taken within a year. There would be particular question whether such a regulation should be held invalid as here applied to a...
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...therefore subject to reversal only for abuse of discretion. See 20 C.F.R. § 261.11 ; Stovic , 826 F.3d at 506 ; Szostak v. Railroad Retirement Bd. , 370 F.2d 253, 254 (CA2 1966) (Friendly, J., for the court). Most decisions will be upheld under this deferential standard. See ICC v. Locomoti......
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Cunningham v. Railroad Retirement Bd.
...Board's decision in the federal common law. Petitioner relies on the decisions of the Second and Eighth Circuits in Szostak v. R.R. Ret. Bd., 370 F.2d 253 (2d Cir.1966), and Sones v. R.R. Ret. Bd., 933 F.2d 636 (8th Cir.1991). In Szostak, the Second Circuit held that a decision of the RRB r......
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Stovic v. R.R. Ret. Bd. & Soc. Sec. Admin.
...determinations. See Sones v. Railroad Retirement Board , 933 F.2d 636, 638 (8th Cir. 1991) ; Szostak v. Railroad Retirement Board , 370 F.2d 253, 254–55 (2d Cir. 1966).3 In any event, judicial review of denials of requests to reopen serves one key purpose underlying Section 5(f): improving ......
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Steebe v. U.S. R.R. Retirement Bd., 82-1689
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