filed as amended. : October 31, 1988.
Appeal from the Railroad Retirement Board, RRB Docket No. A-140-26-6020.
Mansmann, Hutchinson and Hunter, Circuit Judges.
HUTCHINSON, Circuit Judge.
Pro se petitioner Milan Cvikich (Cvikich) seeks to overturn a decision of respondent Railroad Retirement Board (Board). The Board had affirmed an Appeals Referee's order. The referee had in turn denied Cvikich's appeal from an administrative ruling rejecting his request for recalculation to increase his Railroad Retirement annuity. The Board had certified the annuity award as of November 1, 1974.
Cvikich's annuity falls under the disability provisions of the Railroad Retirement Act (RRA), codified at 45 U.S.C.A. §§ 231 et seq.*fn1 The amount of Cvikich's annuity has become less than he would currently receive if he were eligible for disability benefits under the Social Security Act (SSA) 45 U.S.C.A. § 402(d) (West Supp. 1987). He bases his claim for recalculation on the birth of a child in 1978, after the 1975 decision awarding him an annuity retroactive to November 1, 1974, and a longstanding proviso to RRA, referred to as the "special guaranty clause." That clause is intended to prevent certain RRA annuitants from receiving less than they would if they were eligible for similar benefits under SSA.
The "special guaranty's" poor draftsmanship, coupled with the RRA's confusing regulations and explanatory publications, easily could lead a worker and his family to believe that all RRA annuitants will always receive benefits at least equal to those provided by SSA. The text of the proviso, however, allows an upward recalculation of a finally determined RRA annuity for certain after-married spouses, but for no after-born children. Railroad retirees may find it difficult to understand the logic or equity of providing for after-married spouses, but not for after-born children. Nevertheless, since the statute so provides, the remedy lies with Congress. We must follow it and affirm the Board's decision.
The Board had jurisdiction pursuant to 45 U.S.C.A. §§ 355(b)-(e) (West 1986), after the Appeals Referee waived formality and timeliness on the claimant's administrative appeal. This Court has jurisdiction to review the Board's decision pursuant to 45 U.S.C.A. § 231g, incorporating 45 U.S.C.A. § 355(f) (West 1986). Since the question before us is one of statutory construction, our scope of review is plenary.
Cvikich was born on August 9, 1934. He worked for railroads from May 24, 1955, until May 7, 1974, when he became disabled with schizo-affective schizophrenia. He was awarded an employee annuity in 1975. It became final, retroactive to November 1, 1974, upon expiration of the statutory waiting period. See 45 U.S.C.A. § 231b(a)(2) (West Supp. 1987).
When Cvikich applied for his annuity he had been separated from his wife, Mary M. Christy Cvikich, for more than eight years, and their only child, Mary Catherine Cvikich, was 20 years old. On July 31, 1978, he became the father of Milan Christopher Cvikich Heggan (Milan). Milan's mother is Gloria Jean Heggan (Heggan). Heggan and Cvikich were not married.
Milan lived with Heggan until May 1982, when he went to live with Cvikich. Cvikich then made informal applications for an increased annuity, but was told that his son could not be considered since Milan had not yet been born in 1974 and Cvikich had not yet reached age 62 at the time of his informal application. In December 1982, Milan returned to Heggan. In February 1985, Cvikich again informally requested an increased annuity because of Milan. The Board informed him on April 26, 1985, that he was not eligible. He wrote back in July 1985 stating an intent to appeal. The Board did not inform him until January 31, 1986, that he could not appeal because he had made no formal request. Cvikich filed a formal appeal on April 1, 1986.
Despite the lack of a formal denial or reconsideration, an Appeals Referee elected to hear the appeal because "[r]equiring the appellant to file a claim in order to be denied at this point would exalt form over substance." She found that under the RRA, new, nondisabled children could not cause a recalculation of an annuity until the annuitant reached retirement age. She therefore denied Cvikich increased benefits. The Board affirmed the Referee's decision on April 6, 1987.
Cvikich timely filed a petition for review on September 15, 1987, within one year of the date the Board notified him of its affirmance. See 45 U.S.C.A. § 231g (West 1986). The petition for review was initially submitted for decision April 6, 1988, pursuant to Third Circuit Rule 12(b). It was held for ...