"Offices of the Board. The main office established by the Board is located in the District of Columbia. The only other offices established by the Board are Regional Offices located at New York, New York; Cleveland, Ohio; Chicago, Illinois; Atlanta, Georgia; Minneapolis, Minnesota; Kansas City, Missouri; Dallas, Texas; Denver, Colorado; Seattle, Washington; and San Francisco, California. (Offices of district managers or of any other field forces are not offices within the meaning of this section.)" (Sec. 262.15 of the Regulations under the Railroad Retirement Act of 1937, 5 Fed.Reg. 3392, August 29, 1940)
By Section 262.16(f) of the Regulations, 5 Fed.Reg. 772, February 27, 1940, it is set forth that no officer, agent, or employe of the Board is authorized to accept or receive service of subpoenas, summons or other judicial process addressed to the Board except as the Board may from time to time delegate such authority by power of attorney. The regulation declares that the Board has issued such power of attorney to its General Counsel and to no one else. The regulation further provides that process issued from a District Court located in a District where the Board has established an office will be accepted if forwarded by registered mail to the General Counsel at the headquarters of the Board.
The regulations of the Board are authorized by the statute which created it and have the force of law. By them no office was established in the Western District of Pennsylvania, and the employe upon whom the summons was served was not authorized to accept or receive it. Therefore the requirements of the statute for review of the decisions of the Board have not been met, and the failure must lead to the dismissal of the Complaint.
As a matter of fact, the instant Complaint does not seek a review of a decision of the Board, but of a finding by an intermediate body within the Board. The Board, pursuant to Sections 10(b) (4) and 10(b) (5) of the Act of 1937, 45 U.S.C.A. § 228j (b) (4, 5) prescribed in Section 260 of its Regulations (4 Fed.Register, 1477, April 7, 1939) the procedure for appeals of its agencies, among them appeals from the Appeals Council to the entire Board. The Acts creating the Board authorized review of the judgments of the Board, not judgments of its intermediate agencies, and the failure to obtain the final judgment of the Board is in itself fatal to the Complaint.
The fourth defense, that the Complaint does not set forth facts sufficient to show that the decision is arbitrary, or capricious or unsupported by the evidence, verges into the fifth defense, which is, in effect, that the decision of the Appeals Council was correct. The Complainant has asserted that he was then and at the time of his application for annuity, an employe of the Railroad of more than thirty years' standing. This statement, if true, would have justified the annuity order sought. The Board, however, in pursuance of its statutory power, investigated the statements made to it. It requested and received a report from the alleged Railroad employer as to the status of the petitioner. That report disclosed that the Complainant had been discharged as an employe of the Railroad prior to the approval of the Railroad Retirement Act of 1935.
Council for the Complainant has stressed the fact that no formal hearing preceded the judgment of the Appeals Council as ground for a judgment in favor of Complainant. The real dispute existed before the Board in respect to facts. The Complainant did not deny that he had been discharged by the Railroad prior to the Retirement Act becoming a law, but asserted that he had never been formally notified of the discharge, and therefore he considered himself still an employe. That he knew of his discharge is plain. In the letter of an attorney written to the Board in his behalf it is said: "No formal notice of his dismissal from service was ever given. The only thing that was done was that his relief was stopped."
The fact that no formal hearing preceded the judgment of the Appeals Council was due to the Complainant, not the Board. He was notified that he might appear in person and by counsel prior to the hearing before the Council, but did not claim the right.
In holding that Complainant did not have the status of an employe when the Retirement Act was approved, the Council followed the Act.An employment relation under the Act of 1937 requires a finding that the applicant for annuity, on or after August 29, 1935, was on furlough, subject to recall for service and willing and ready to serve, or on leave of absence, or absent on account of sickness or disability; all in accordance with the rules and practices of the employer. The Complainant herein did not come within the statutory definition of the employment relation. He had been totally disabled and had performed no service for the railroad subsequent to 1932, and, as stated supra, had been discharged from the service on February 9, 1933. This was the situation prior to the approval of the Railroad Retirement Act of 1935 and at the time of Complainant's application for an annuity; and under it no judgment was possible other than that rendered by the Appeals Council.
The Complaint must be dismissed.
And now, to wit, October 15, 1942, the foregoing cause having come on to be heard, upon consideration thereof it is ordered and adjudged that the Complaint of Joseph Anthony Bruno, Jr., be, and the same hereby is, dismissed.
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