Eight cases involving the Railroad Retirement Board were resolved by the courts during fiscal year 2008, and two significant legal opinions were issued.

Court Cases

Three cases of various types involving petitions for review of decisions of the Railroad Retirement Board were pending in the courts at the beginning of fiscal year 2008, and six new cases were opened during the year. Eight cases were resolved during fiscal year 2008, and one case was pending at the end of the year.

Legal Opinions

The following Legal Opinions are presented here because of their special significance or interest.

Legal Opinion L-2008-03 a specific case led to a general rule for applying provisions of the Pension Protection Act of 2006. In the case submitted, the paperwork for a railroad employee’s retirement was complete and a divorce decree was properly submitted, but an error in processing resulted in the former spouse not being notified to turn in an “Agreement of Former Spouse” form. That form was not submitted within 90 days. After the 90 days expired, the railroad employee died and subsequent to the death, the former spouse did sign and turn in the required form. The Pension Protection Act of 2006 does allow for a court-ordered partition to remain payable to a former spouse after the death of the employee; however, previous interpretation of that provision did not authorize the Board to begin payment to the former spouse after the death of the employee.

This opinion found that a property partition of an employee annuity may begin to be paid to a former spouse when (1) the employee was in pay status at death, (2) the employee died after August 16, 2007, (3) the service and documentation requirements necessary to initiate deduction of the property award under Part 295 of the Board’s regulations were met prior to the employee’s death, but (4) the Board failed due to oversight or similar clerical error by a Board employee to deduct the property award from the employee’s annuity.

Legal Opinion L-2008-10 addressed the nuances between Last Pre-retirement Nonrailroad Employment (LPE) and seasonal employment, and superseded previous opinions. The Board’s General Counsel concluded that section 2(e)(3) of the Railroad Retirement Act allows for a seasonal employment exemption from LPE work deductions when the following conditions are satisfied: (1) the employee possesses no reemployment rights and must reapply each year for the position; (2) the employment relationship is terminated at the end of each period of employment; and (3) the employment relationship is terminated prior to the annuity beginning date for some reason not related to the application for an annuity under the Act.

Determinations as to whether a pattern of seasonal employment exists must be made on a case-by-case basis. The goal of the inquiry should be to confirm that the alleged seasonal employment is indeed seasonal, as opposed to an attempt to convert regular LPE to seasonal employment for the purpose of avoiding LPE work deductions. Where the evidence suggests that the employment terminated prior to the annuity beginning date for a reason related to the employee’s entitlement to an annuity under the Act, then the employment would be subject to LPE work deductions. However, where the evidence suggests a pattern of employment that terminated prior to the annuity beginning date at the end of a specific season, then the seasonal employment would be exempt from LPE work deductions.

To the extent that Legal Opinion 97-37 and any other legal opinion issued after 1988 suggest that an individual must be outside of a period of seasonal employment as of the individual’s annuity beginning date in order to apply the seasonal employment exception to LPE work deductions, those opinions are superseded by this opinion.

Amendments

The Board’s Office of General Counsel drafted and published amendments to 20 CFR 295, which are the regulations concerning partition of annuities pursuant to a court decree or court-approved property settlement. The purpose of the changes was to incorporate provisions of the Pension Protection Act of 2006. The amendments made corrections to the existing language of the regulation and updated the regulation to reflect changes in titles within the agency.

Appeals

Any claimant for benefits under the Railroad Retirement or Railroad Unemployment Insurance Acts may appeal a determination he or she feels is not justified. This appeal must be filed within certain time frames. Appeals are heard and decided by the Bureau of Hearings and Appeals. An appellant who is dissatisfied with the decision on his or her appeal may further appeal the case to the three-member Board within a prescribed period of time.

Railroad Retirement Act

During fiscal year 2008, 503 appeals were filed with the Bureau of Hearings and Appeals under the Railroad Retirement Act, and the Bureau rendered decisions in 512 appeals. The initial or reconsideration decision was sustained in 165 cases. In 347 appeals the decision was favorable to the claimant in whole or in part.

Sixty-three appeals were filed with the Board in fiscal year 2008, which, added to the 34 appeals carried over from the previous year, brought the total to be considered to 97. Of 67 decisions, 57 sustained previous rulings of the hearings officer, four were reversed, one was remanded to the Debt Recovery Division, two were remanded to the Bureau of Hearings and Appeals, and three were dismissed. At the end of the year, 30 appeals were pending before the Board.

Railroad Unemployment Insurance Act

During fiscal year 2008, 29 appeals were filed with the Bureau of Hearings and Appeals under the Railroad Unemployment Insurance Act, and the Bureau rendered decisions in 31 appeals. The initial or reconsideration decision was sustained in 18 cases. In 13 appeals the decision was favorable to the claimant in whole or in part.

Four appeals were filed with the Board in fiscal year 2008, which, added to the four carried over from the previous year, brought the total to be considered to eight. The Board rendered decisions in seven cases of appeals from the decision of the referee, affirming the decision in six cases and remanding one to the Debt Recovery Division. At the end of the year, one appeal was pending before the Board.