Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
We have before us two petitions for review. In Case No. 10467 we are asked to review a decision of the Appeals Council of the Railroad Retirement Board (hereinafter called Board), denying petitioner's claim for a survivor's annuity. In Case No. 10468 petitioner seeks a review of the decision of the Board which denied her petition for an annuity under the Railroad Retirement Act, 45 U.S.C.A. § 228a et seq. (hereinafter called the Act).
Petitioner is the widow of Joseph David Mahoney, who died April 28, 1939. He had been employed by the Chicago and North Western Railway Company as station agent at Lake Geneva, Wisconsin. Petitioner had likewise been employed by said railroad as a telegrapher at Lake Geneva.
On October 28, 1938, Mahoney filed with the Board an executed Form AA-11, "Designation or Change of Beneficiary." This form pertained to benefits under Sec. 5 of the Act. The Division of Retirement Claims, at that time the initial adjudicating unit of the Board, by its decision dated December 15, 1941, determined that petitioner was entitled only to a death benefit under Sec. 5 of the Act, in the sum of $158.47, being four percentum of the earnings of her deceased husband after December 31, 1936. The decision pointed out that a widow would be entitled to receive a survivor's annuity under Sec. 4 of the Act only if the deceased husband had made a valid election of a joint and survivor annuity, and had filed a written application with the Board and had become eligible for an annuity before his death. The decision was that Mahoney was not eligible to receive an annuity at the time of his death, and that petitioner was not entitled to a survivor's annuity.
Petitioner prosecuted an appeal to the Appeals Council. Hearings were twice scheduled and then postponed on the request of petitioner. Finally a decision of the Appeals Council was rendered on January 20, 1944, finding that Mahoney had never filed an application for and had never been awarded an annuity under the Act; that he had never made and filed with the Board an election of joint and survivor annuity; that no survivor annuity was, or could be, payable to petitioner by reason of the death of Joseph David Mahoney; that no annuities could have accrued to him during his lifetime, and thus be payable to the petitioner as his beneficiary; and that the sum of $158.47 awarded to petitioner by the decision of the Division of Retirement Claims as the benefit due her under Sec. 5 of the Act was the only benefit to which she was entitled; and the Council affirmed the decision of the Division of Retirement Claims.
The decision of the Appeals Council was mailed to petitioner's then attorney on January 20, 1944. On September 23, 1949, more than 5 1/2 years after the date of the decision, petitioner addressed a written request to the Board that it review the Appeals Council decision, acknowledging however that the time within which to protest the decision had expired. The request was denied on the ground that the Board's regulation, 20 C.F.R., 1949 Ed., Sec. 260.3(b), limited to 4 months the time within which an appeal from a decision of the Appeals Council could be filed.
An examination of the record before us discloses that officials and employees of the Board from time to time have written a number of letters to petitioner setting forth the provisions of the Act and explaining why she was not entitled to a survivor's annuity. However, petitioner at all times has persisted in her claim that because of the condition of her husband's health, he should have been excused from making and filing the necessary application, election or other papers. While it is clear that under Sec. 4 of the Act, 45 U.S.C.A. § 228d, no survivor's annuity could be paid since Mahoney died before an annuity began to accrue to him and since he not only had not been granted an annuity but had not applied for one, it is not our province to rule on the merits, because we must dispose of the petition before us on other grounds.
The Appeals Council is only an intermediate appellate body created by the Board. Rpovision*fn1 was made for an appeal from a decision of said Council to the Board, but petitioner did not attempt to appeal until long after the period for so doing had expired. Petitioner failed to timely exhaust her administrative remedies.
The Act provides, 45 U.S.C.A. § 228k, "Decisions of the Board determining the rights or liabilities of any person under this Act shall be subject to judicial review in the same manner, 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 except that the time within which proceedings for the review of a decision with respect to an annuity, pension, or lump-sum benefit may be commenced shall be one year after the decision will have been entered upon the records of the Board and communicated to the claimant." The record discloses petitioner was promptly advised of the decision of the Appeals Council. Thus, even should we indulge in the assumption that the decision of the Appeals Council was a final decision of the Board, which it is not,*fn2 petitioner failed to file a petition for judicial review within the one year period. Furthermore, Sec. 11 of the Act, 45 U.S.C.A. § 228k, incorporates by reference Sec. 5 of the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 355, which in turn provides that a judicial review of the decision of the Board may be obtained "only after all administrative remedies within the Board will have been availed of and exhausted". It follows that this court is without jurisdiction to review the decision of the Appeals Council, and that the petition for its review must be dismissed.
The Railroad Retirement Board denied petitioner's application for an annuity under the Railroad Retirement Act based upon her own services as a telegrapher. The Act provides that persons who on August 29, 1935, the date of the enactment of the Act, were "employees" as specifically defined in the statute, of certain railroad and other employers, and who were qualified as to length of service, and age or physical disability, are entitled to annuities. Petitioner filed an application for an annuity on February 8, 1949, in which she stated that she had worked as a telegrapher for the Chicago and North Western Railway Company from October, 1918, to December 21, 1932; that she was applying for an annuity based on physical disability which was not total and permanent for regular employment for hire, but disability for work in her regular occupation, the disability being "enlarged heart - overweight - arthritis"; and that in the period 1940 to September, 1947, she had worked as field manager for Crowell Collier Publishing Company.
From petitioner's own statement it appears that the last service which she rendered to the railway company was before November, 1932, in whch month the last of a series of leaves of absence granted to her by the railway company expired. She also admits she has not received any compensation from the railway company since 1931. Petitioner contends, however, that she ...