AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 1 of 12

2101 Provisions of Regulations Part 349 and Part 320

Part 349

Part 349 of the Railroad Retirement Board’s (RRB) Regulations pertains to the 

“Finality of Decisions Regarding Unemployment and Sickness Insurance 

Benefits”. These regulations contain the time limits for reopening similar to Part 

261 of the Board’s regulations on reopening of decisions under the Railroad 

Retirement Act.

Certain determinations to recover benefits are set forth in Sections 2(f), 4(a-1)(ii), 

and 12(o) of the Railroad Unemployment Insurance Act (RUIA). Determinations 

of claims to which those sections of the Act are not applicable are to be reopened 

only in the circumstances set forth in Part 349.

Part 320

Part 320 of the RRB’s regulations pertains to “Initial Determinations Under the 

Railroad Unemployment Insurance Act and Reviews of and Appeals from such 

Determinations”. These regulations explain which units of the RRB are 

authorized to make initial determinations with respect to entitlement to benefits 

and waiver of recovery of overpayments under the RUIA. It also explains how 

notice of such determination is to be communicated to the claimant and to his or 

her base-year employer(s) and how these determinations may be appealed.

2102 Definitions

2102.01 Reopening

A conscious determination on the part of the agency to reconsider an otherwise 

final decision for purposes of revising that decision.

2102.02 Final Decision

Any decision made with respect to each claim for unemployment or sickness 

benefits by the appropriate adjudicating office where the time limit for review, as 

set forth in Part 320 or in the RUIA has expired.

2102.03 New and material evidence

Evidence which was unavailable to the agency at the time the decision was 

made, which would have been likely to influence the outcome of the decision, 

and which the claimant could not reasonably have been expected to have 

submitted at that time.
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 2 of 12

2102.04 Diligently Pursued

In view of the facts and circumstances of a particular case, the necessary action 

was undertaken and carried out as promptly as the circumstances permitted. 

Diligent pursuit is presumed to have been met if the investigation is concluded 

and, if necessary, the decision is revised within 6 months from the date the 

investigation began.

If the investigation is not diligently pursued to its conclusion, the decision will be 

revised if a revision is applicable, and if it is favorable to the claimant. It will not 

be revised if it is unfavorable to the claimant.

2103 Authority to Reopen Determinations

Field offices are authorized to reopen determinations, which they have made 

denying claims. But, are not authorized to reopen determinations, which they 

have made allowing claims. Field Service (FS) is authorized to reopen 

determinations, both those allowing and denying claims, which were made by the 

field offices. The Sickness and Unemployment Benefits Section (SUBS) is 

authorized to reopen any determination but will generally reopen only such 

determinations as were initially made in the division. The authority to reopen 

determinations is delegated to the Chief of SUBS and to such employees of the 

division, GS-7 and over, as he or she may select, and to field employees, GS-7 

and over, as he or she may select.

2104 Circumstances for Reopening

2104.01 Within 12 Months

A final decision may be reopened within 12 months of the date of notice of such 

decision for any reason. 

2104.02 Within 4 years of the date of notice:

a. if there is new and material evidence or

b. if the decision is not reasonably consistent with the evidence of record at 

the time of adjudication.

2104.03 At any time:

a. if the decision was obtained by fraud or similar fault or

b. if the decision was that the employee was not a qualified employee and he 

or she is now qualified because compensation was credited to the 

employee’s record of compensation in accordance with Part 211 of the 

Regulations
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 3 of 12

1. to correct errors apparent on the face of the compensation record;

2. to enter items transferred by the SSA which were credited under 

the SSA when they should have been credited to the employee’s 

railroad retirement record; or

3. to correct errors made in the allocation of earnings to individuals or 

periods which would have made him or her a qualified employee at 

the time of the decision if the earnings had been credited to his or 

her earnings at that time.

c. If the decision was wholly or partially unfavorable to the claimant, but only 

to correct a clerical error or an error that appears on the face of the 

evidence that was considered when the decision was made.

2104.04 Discretion of the three member Board to reopen or not to reopen a 

final decision

Whether a final decision is reopened or not reopened is solely within the 

discretion of the Board, except where reopening is required by sections 2(f), 4(a1)(ii), or 12(o).

2105 No Basis for Reopening

If a decision now known to be erroneous cannot be reopened under Part 349, the 

benefit payment is final and should not be considered for recovery.

2106 Provisions of the Act Requiring Recovery

2106.01 General

Sections of the Act described below require recovery of benefits in specified 

circumstances. Recovery under these provisions of law is made in accordance 

with instructions in articles of the AIM specifically concerned with those 

provisions. The provisions of this article regarding reopening are not ordinarily 

applicable except as indicated in the paragraphs below.

2106.02 Section 2(f)

When pay for time lost or a protective payment is found to be payable for a 

period including days for which unemployment benefits were paid, the employer 

ordinarily withholds from the payment and remits to the RRB an amount 

determined by the RRB to be recoverable. If recovery is not thus affected, the 

adjudicating office should decide whether there is a basis for reopening with a 

view to recovering from the claimant the amount that should have been paid to 

the RRB under Section 2(f).
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 4 of 12

a. If the failure to affect recovery from the employer is due to a mistake by 

the adjudicating office, the determination allowing benefits may be 

reopened within 4 years to affect recovery from the claimant because “the 

decision was not reasonably consistent with the evidence of record at the 

time of adjudication”.

b. If the failure to affect recovery from the employer was induced by fraud or 

similar fault of the claimant, benefits are recoverable from the claimant “at 

any time”. For example, a claimant falsely states to an RRB 

representative that he or she has not claimed time lost, so amounts due 

under Section 2(f) are not recovered from the employer. A further 

example: a claimant receives a protective payment from which the 

employer made no deduction for benefits paid and the claimant knew or 

should have known that some or all of the payment should have been 

withheld for the RRB.

2106.03 Section 4(a-1)(ii)

Adjustments (dollar-for-dollar) of benefit payments under Section 4(a-1)(ii) of the 

Act are to made in accordance with instructions in AIM-17; such adjustments are 

not subject to the provisions of this article. In contrast, unemployment, maternity, 

or sickness payments under another law are excepted from the adjustment 

provisions of Section 4(a-1)(ii). RUIA benefits paid to a claimant for days for 

which he or she also received such other unemployment insurance payments are 

recoverable if the RUIA benefits were paid erroneously within the meaning of this 

instruction. 

2106.04 Section 12(o)

Benefit payments to which Section 12(o) is found to be applicable are to be 

adjusted in accordance with the instructions in AIM-30, Title II. The provisions of 

the present article are not applicable with respect to any payment affected by the 

provisions of Section 12(o). 

2107 Old Board Order 75-8

Prior to the establishment of Part 349, this Board Order authorized the reopening 

of determinations of claims for benefits under the RUIA. This Board Order stated 

that a reopening was appropriate if the initial determination was:

1. made on the basis of a clear and obvious mistake of fact;

2. based on evidence, as of the date of determination, which did not 

reasonably support the determination;

3. made on the basis of a clear and obvious mistake of law; or
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 5 of 12

4. even though made on the basis of reasonable evidence and laws, induced 

by fraud or other fault of the claimant.

Part 349 superseded Board Order 75-8 effective November 6, 2000.

2108 Reopening after time limits

A decision may be re-opened after the one-year and the four-year time limits if 

the Board:

a. has begun an investigation into whether to revise the decision before the 

applicable time period expires and 

b. the agency diligently pursues the investigation to the conclusion. 

The investigation may be based on a request by a claimant or on action of the 

Board.

2109 Notice to Claimant

2109.01 Erroneous Payment

When a redetermination cancels or reduces a previous allowance of claimed 

days of sickness or unemployment and there is an erroneous payment, the 

claimant shall be notified. The claimant shall be requested to make repayment 

unless it is concluded that full recovery will be made by offset. The notice shall 

be sent to their last known address and state the basis and effect of the decision. 

The notice will also inform the parties of their right to review. 

2109.02 Determination Affirmed

When a redetermination affirms a previous determination denying benefits, the 

claimant shall be notified.

2109.03 Benefits Payable

When a redetermination allows benefits, or increases a previous allowance, the 

claimant need not be advised by letter of the redetermination.

2109.04 Hearings Officer/Board Revision

If a hearings officer or the three member Board proposes to revise a decision, 

and the revision would be based only on evidence included in the record on 

which the prior decision was based, all parties will be notified in writing of the 

proposed action. If the revised decision is issued by a hearings officer, any party 

may request that it be reviewed by the three member Board, or the three member 

Board may review the decision on its own initiative.
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 6 of 12

2110 Record of Reopening

Each redetermination shall be recorded. Where reopening a claim results in 

payment, examiner remarks on the claim redetermination input detail will be a 

sufficient record. Where reopening reduces benefits, a Statement of 

Determination is to be prepared. 

2111 Effect of Revised Decision

A revised decision is binding unless:

• the revised decision is being reconsidered or appealed under Part 320 of 

the regulations.

• the three member Board reviews the revised decision.

• the revised decision is further revised consistent with this part.

2112 Time and place to request a review and/or hearing on 

revised decision

A party to a revised decision may request further review of the decision under 

Part 320 “Initial Determinations Under the Railroad Unemployment Insurance 

Act and Reviews of and Appeals from such Determinations”. 

2113 of record at the time of adjudication

Evidence of record means evidence the adjudicating office possesses when it 

makes the determination. It also includes information in the possession of other 

offices of the Board that they could reasonably be expected to use in the normal 

course of adjudication 

2114 Change of legal interpretation /opinion

A change of legal interpretation or administrative ruling upon which a decision is 

based does not render a decision erroneous, and is not a basis for reopening. 

For example, an opinion of Policy and Systems advising that it does not concur in 

a determination of an adjudicating office allowing benefits may serve as a 

precedent with respect to subsequent cases. However, the Policy and Systems 

opinion does not constitute grounds for reopening the determination, if the 

evidence available as of the date of determination reasonably supported the 

determination awarding benefits.

2115 Fraud or similar fault of claimant

The decision may be reopened at any time if obtained by fraud or similar fault.
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 7 of 12

2115.01 Fraud

A determination induced by fraud of the claimant is one which would have been 

rendered to the contrary if the claimant had not knowingly made a false 

statement or claim for the purpose of causing benefits to be paid. The payments 

induced by fraud, as well as payments for the 75-day period of disqualification, 

are erroneous.

2115.02 Fault similar to fraud

A determination is considered to have been induced by fault similar to fraud if 

available evidence which a claimant knew or ought to have known was material 

to the case and which would have necessitated a different determination, was 

concealed or not furnished and the claimant should have furnished such 

evidence. In deciding whether a claimant knew or ought to have known that 

certain information was material to the case, consideration must be given to all 

the facts relating to the claimant’s knowledge and understanding of the pertinent 

requirements, and to the conditions under which he/she failed to furnish 

information or furnished incorrect information. The following matters are among 

those which should be considered:

a. The claimant’s education, literacy, and general level of intelligence.

b. The claimant’s understanding of the pertinent requirements as 

demonstrated in the past. 

c. Specific explanations that Board employees made to him or her and the 

circumstances of such explanations.

d. The claimant’s explanation of his or her failure to furnish information or his 

or her failure to furnish correct information.

e. The claimant’s diligence using information booklets furnished to him or 

her.

f. The reasonableness of the claimant’s misunderstanding or 

misinterpretation of terms or instructions.

g. The claimant’s diligence in reporting, at the earliest possible moment, any 

change in his or her circumstances affecting his or her claim.

2116 Guidelines for Reopening in Selected Cases

This section gives some examples of circumstances in which reopening applies. 

This is not a definitive listing.
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 8 of 12

2116.01 Remuneration

If remuneration and benefits are attributable to the same days, the determination 

allowing benefits should ordinarily be reopened. Fraud or similar fault of the 

claimant is the most likely reason for reopening; therefore, the decision could be 

reopened at any time. In some situations it may be assumed, without 

investigation, that the determination was induced by fault (similar to fraud) of the 

claimant because in the given circumstances any claimant would be expected to 

know that benefits were not payable. Such an assumption may be made, for 

instance, when a day for which benefits were paid is:

a. a day on which the claimant worked for an employer (railroad or nonrailroad) and for which he received an identifiable amount of remuneration, 

or

b. a day in a vacation period for which the claimant received pay for vacation 

(rather than pay in lieu of vacation).

2116.02 Availability for work

A finding that a claimant was not available for work on days for which 

unemployment benefits were paid may require reopening of the determination. 

The finding can be reopened within one-year for any reason.

Benefits are occasionally paid to a claimant, through oversight, after he or she 

has been held to be not available for work. If there is evidence as to the 

claimant's unavailability on the days for which benefits were paid, it must be 

concluded that the decision is not reasonably consistent with the evidence of 

record at the time of adjudication, hence the payment is erroneous. The decision 

can be reopened within four years of that date.

It is seldom found that payment of benefits for a period of unavailability was 

induced by any type of claimant fault. A claimant's statement that he or she is 

willing to perform some work, irrespective how trivial, and that he or she is in a 

position to perform such work is not inconsistent with his or her certification on 

Form UI-3 that he or she is available for work. However, where a claimant states 

that he or she is not willing to accept any work, or that he or she is not in a 

position to perform such work under any condition, the claimant should be asked 

to reconcile either of these statements with his or her certification on Form UI-3 

that he or she is available for work.

2116.03 Ability - inability to work

Consideration should be given to reopening a determination of a claim allowing 

unemployment benefits if medical evidence is received clearly establishing that 

the claimant was not able to work. (Example: a claimant applies for sickness 

benefits shortly after exhausting unemployment benefits and the statement of 
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 9 of 12

sickness shows that he became unable to work in the period for which 

unemployment benefits were paid.) Similarly, consideration must be given to 

reopening a determination of a claim allowing sickness benefits if it is established 

that the claimant was able to work during the period covered by the claim. Such 

determinations shall be reopened for reduction or cancellation of the allowance of 

benefits if the time limits required for reopening are found. 

However, a determination allowing benefits may be reopened without 

investigation in any case in which the benefits to which the claimant is found not 

entitled may readily be recovered by offset against other benefits for the same 

days. That is, unemployment benefits to which the claimant was not entitled can 

be recovered by offset against sickness benefits or sickness benefits can be 

recovered by offset against unemployment benefits.

2116.04 Separation allowance disqualification

If it is found that benefits have been paid for days in a disqualification period 

established because of an employee's receipt of a separation allowance, the 

question of reopening the determination allowing benefits must be considered. 

The time limits set forth in this article are, of course, applicable. It may generally 

be assumed that payment of benefits was not induced by fraud or other fault of 

the claimant if the claim or claims were made before the separation allowance 

was paid. It may be considered, without investigation, that claims were made 

before the allowance was paid if the last day for which benefits were paid is no 

more than two weeks after the reported date of separation from service. In other 

cases, information should be obtained from the claimant or the employer as to:

(a) the date on which the claimant signed a paper accepting the separation 

allowance,

(b) the date stated in the paper as the date of separation from service, and

(c) the date on which the separation allowance was paid.

Appendices

Regulations Part 349 Supersedes Board Order 61-146

Effective November 6, 2000.

Board Order 61-146

1. Ruling With Respect To Reopening Determinations Of Claims For 

Benefits Under The Railroad Unemployment Insurance Act And 

Delegation Of Authority To Reopen Such Determinations In Certain 

Cases
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 10 of 12

The reopening of determinations of claims for benefits under the Railroad 

Unemployment Insurance Act shall be governed by the following provisions:

A. Authority to reopen claims under the provisions of this order, subject to 

the limitations in C below, is hereby delegated to the director of 

unemployment and sickness insurance, to the regional directors, and 

to such employees, grades GS-7 and over, as are selected by the 

director of unemployment and sickness insurance and the regional 

directors respectively.

B. The opinion and conclusions of the general counsel, contained in his 

memorandum of August 16, 1939 (L-39-527), on reopening by the 

Board of final decisions on claims for benefits under Railroad 

Retirement Act, shall, to the extent that they are applicable, govern 

reopening of determinations made upon the Railroad Unemployment 

Insurance Act. The applications of these conclusions as set forth in 

the general counsel's memorandums of March 18, 1942 (L-42-177) 

and October 4, 1945 (L-45-650) is hereby continued in effect.

C. No reopening shall extend to:

(1) Any issue settled by the decision of a referee or other 

reviewing body, or of the Board; or

(2) Any issue not affected by circumstances constituting grounds 

for reopening under the specific provisions of this order.

D. When a determination is reopened, a new determination shall be made 

affirming, modifying, or reversing the previous determination.

E. A determination allowing a claim in whole or in part shall be reopened 

for reduction or cancellation of the allowance upon a finding that the 

determination:

(1) Was made on the basis of a clear and obvious mistake of fact;

(2) Was based on evidence, as of the date of determination, which 

did not reasonably support the determination;

(3) Was made on the basis of a clear and obvious mistake of law; 

or

(4) Was, even though made on the basis of reasonable evidence 

and law, induced by fraud or other fault of the claimant.

F. If reopening results in the reduction or cancellation of the allowance of 

claimed days of unemployment or sickness in a registration period, the 

amount by which benefits were increased by including such days as 
AIM 21

AIM Art_21 Reopening and Redetermination Revised September 7, 2021 Page 11 of 12

days of unemployment or sickness in the registration period shall be 

recoverable by the Board, unless recovery is waived under section 2(d) 

of the Act.

G. If a claim is reopened upon a finding that section 4(a-1)(i) of the Act is 

applicable with respect to the registration period, the amount by which 

benefits were increased by including any of the seventy-five days 

beginning with the first day of the registration period as days of 

unemployment or sickness in any registration period shall be 

recoverable, and claims with respect to registration periods including 

such days shall be reopened.

H. Under no other circumstances may a determination allowing a claim in 

whole or in part be reopened for reduction or cancellation.

I. A determination denying a claim for benefits in whole or in part shall be 

reopened for an allowance or an increase of the allowance upon a 

finding that the denial:

(1) Was made on the basis of a clear and obvious mistake of fact;

(2) Was based on evidence, as of the date of determination, which 

did not reasonably support the determination; or

(3) Was made on the basis of a clear and obvious mistake of law.

J. A determination denying a claim for benefits in whole or in part may be 

reopened when new and material evidence is submitted provided there 

is no conflicting evidence or a previous conflict is satisfactorily 

explained.