Petition for Review Railroad Retirement Board RRB No. D394313
Before Hunter, Higginbotham and Sloviter, Circuit Judges.
Mary Ann Kelly petitions this court to review a final decision of the Railroad Retirement Board.*fn1 The Board denied her application for a disabled child's annuity under the Railroad Retirement Act, 45 U.S.C. § 231a(d)(1)(iii) (C) (1976).*fn2 Kelly was not found to be disabled. 45 U.S.C. § 231a(d)(3) (1976).*fn3 This court has jurisdiction to review the Board's decision. 45 U.S.C. § 231g (1976).*fn4 Kelly presses two grounds for reversal: (1) that the agency violated her 5th amendment right to due process in that it committed serious procedural errors in its internal appeals procedures; (2) that the agency decision, finding her not under a disability, is not supported by substantial evidence on the record. We agree with both of Kelly's contentions. The decision of the Board will be reversed.
Kelly applied for a disabled child's annuity under the Railroad Retirement Act. 45 U.S.C. § 231a(d)(1)(iii)(C) (1976). She filed her application more than a month before her twenty-second birthday. To be eligible for a disabled child's annuity, the applicant, irrespective of age at time of application, must suffer from a disability which began before the age of twenty-two. Kelly claimed that she was under a mental disability, severe depression.
At the administrative hearing Kelly testified that she began to suffer from anxiety, insomnia and depression during high school. Unable to sleep for several days on end, she could not concentrate on her studies. Catching up on lost sleep caused her to miss school frequently. Her insomnia interrupted her class attendance to the extent that she was denied a diploma at graduation because she failed to meet the school attendance requirement.
After high school, Kelly enrolled in college, but continued to suffer from the same symptoms. She consulted the psychiatrist in residence at the college who prescribed medication, an antidepressant. Its use produced no improvement. On the advice of the school psychiatrist, Kelly withdrew from school. Because she terminated her student status, she was ineligible to continue treatment under the school psychiatrist's care. Kelly then sought professional treatment at the Rutgers Community Mental Health Center as an indigent. At Rutgers she consulted four psychiatrists and one psychologist, each of whom submitted a report to the Railroad Retirement Board evaluating Kelly's mental condition.
Meanwhile, Kelly obtained a series of clerical jobs. She lasted a few days at each. The same symptoms continued: her insomnia prevented punctual appearance at work. She complained that anxiety, produced by the presence of co-workers, interfered with her task performance.
On June 10, 1975, Kelly applied to the Railroad Retirement Board for a child's disability annuity, based on the earnings of her father, a deceased railroad worker. 45 U.S.C. § 231a(d)(1)(iii)(C) (1976). For the purpose of the Act, a child is under disability if his permanent physical or mental condition prevents him from engaging in any regular employment. Id. at § 231a(d)(3).*fn5
In March 1979, more than three years, nine months after Kelly filed her application, the Railroad Retirement Board issued its final decision finding her ineligible. The Board found that "it has not been established that Appellant is unable to engage in any regular employment by a disability which began before the age 22."
This court may "enter a decree affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for rehearing." 45 U.S.C. § 355(f) (1976).*fn6 Appellant urges reversal of the Board decision, challenging the sufficiency of the procedure and substantability of the evidence on which the decision is based.
Kelly urges that the administrative procedure that determined her ineligible to receive a child's disability annuity failed to comply with due process. The threshold question is whether a claimant initially denied benefits has a sufficient property interest in the benefits to be protected by the fifth amendment guarantee of Due Process. See generally, Board of Regents v. Roth, 408 U.S. 564, 576-79, 92 S. Ct. 2701, 2708-2710, 33 L. Ed. 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 599-603, 92 S. Ct. 2694, 2698-2700, 33 L. Ed. 2d 570 (1972). We conclude that he does.
"To have a property interest in a benefit, a person . . . must . . . have a legitimate claim of entitlement to it." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709. "Such benefits are a matter of statutory entitlement for persons qualified to receive them." Goldberg v. Kelly, 397 U.S. 254, 262, 90 S. Ct. 1011, 1017, 25 L. Ed. 2d 287 (1970) (discussing welfare benefits). The welfare claimants in Goldberg "had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709. Nevertheless, the Supreme Court required the administrative process determining eligibility to comply with due process. Goldberg v. Kelly, supra, 397 U.S. at 260-266, 90 S. Ct. at 1016-1019; Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709 (discussing Goldberg ). See also, Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S. Ct. 752, 755-756, 1 L. Ed. 2d 796 (1957) ...