The opinion of the court was delivered by: Will, District Judge.
This is a pro se action apparently brought against the Railroad
Retirement Board*fn1 to review a decision of a referee of the
Board's Office of Hearings and Appeals, an intermediate appellate
unit within the Board, who held that plaintiff was not entitled
to a greater annuity under the Railroad Retirement Act,
45 U.S.C. § 228a-228z-1 than that which he is currently receiving. The
plaintiff contends that the offset provision contained
in Section 1 of Public Law 91-377, which was approved August 12,
1970, and which amended Section 3(a) of the Railroad Retirement
Act, 45 U.S.C. § 228c(a), is an unconstitutional ex post facto
law. This provision, applicable where an individual is entitled
to both railroad retirement and social security benefits,
increases an individual's railroad retirement annuity by 15 per
cent but requires that such increase be offset by the amount of
the increase in the individual's social security benefits
resulting from the Social Security Amendments of 1969.*fn2 The
defendant moves to dismiss the complaint on the ground that this
Court does not have jurisdiction to review a decision of the
Railroad Retirement Board and that the complaint otherwise fails
to state a cause of action.
Section 11 of the Railroad Retirement Act, 45 U.S.C. § 228k,
provides that judicial review of actions determining the rights
of any person under the Act shall be afforded in the same manner
as is afforded by the Railroad Unemployment Insurance Act,
45 U.S.C. § 351-367. Section 5 of that Act, 45 U.S.C. § 355,
provides that judicial review shall only be had "in the United
States Court of Appeals for the Circuit in which the claimant or
other party resides or will have had his principal place of
business or principal executive office, or in the United States
Court of Appeals for the Seventh Circuit or in the United States
Court of Appeals for the District of Columbia." 45 U.S.C. § 355(f).
Section 355(g) provides that all findings of fact and
conclusions of law made by the Board shall be final and not
subject to review except in the manner specified in Section
It is clear from the foregoing provisions that jurisdiction to
review decisions of the Board under the Railroad Retirement Act
is now vested exclusively in the United States Court of Appeals,
and that a United States District Court has no jurisdiction to
review any such decision. Cassidy v. Railroad Retirement Board,
Civil Action No. 49 C 1052 (N.D.Ill. 1949); Crane v. Railroad
Retirement Board, Civil Action No. 2583 (N.D.Ga. 1947).
Even assuming that this complaint is not seeking review of
agency action, but is purely an attack on the constitutionality
of the statute over which we do have jurisdiction, there would
appear to be considerable doubt that plaintiff has stated facts
upon which relief could be granted. The offset provision of the
Railroad Retirement Act is a prima facie valid exercise of
Congressional authority and does not involve an ex post facto law
as contended by the plaintiff. The offset provision merely grants
an increase in annuity benefits subject to limitations contained
in the very section granting the increase. It is obvious that
Congress may grant, increase, or decrease benefits subject to the
due process limitations against patently arbitrary action,
utterly lacking in rational justification. Flemming v. Nestor,
363 U.S. 603, 610-611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Cf.,
Stouper v. Jones, 109 U.S.App.D.C. 106, 284 F.2d 240 (1960);
Price v. Flemming, 280 F.2d 956 (3rd Cir. 1960), cert. denied,
365 U.S. 817, 81 S.Ct. 698, 5 L.Ed.2d 695 (1961); Ruhl v.
Railroad Retirement Board, 342 F.2d 662, 666 (7th Cir. 1965).
Unless it could be established that Congress' action deprives
participants of otherwise vested rights, which plaintiff does not
contend, we do not believe that the challenged Congressional
action may be so classified.
An order will enter dismissing the plaintiff's complaint for
lack of jurisdiction and for failure to state a claim ...