Funderburg v. RRRB ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM S. FUNDERBURG,
Petitioner,
v. No. 95-2155
U.S. RAILROAD RETIREMENT BOARD,
Respondent.
On Petition for Review of an Order
of the Railroad Retirement Board.
(A-000-00-5913)
Submitted: February 29, 1996
Decided: April 12, 1996
Before HAMILTON and LUTTIG, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William S. Funderburg, Petitioner Pro Se. Rachel Lopez Simmons,
UNITED STATES RAILROAD RETIREMENT BOARD, Chicago,
Illinois, for Respondent.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
William S. Funderburg appeals from the Railroad Retirement
Board's ("the Board") order affirming a hearing officer's determina-
tion that under the Railroad Retirement Act ("the Act"), Funderburg's
beginning annuity date is December 1, 1984. We affirm the Board's
decision because it is supported by substantial evidence in the record
and is not based on an error of law.
In May 1978 William S. Funderburg applied for a disability annu-
ity with the Board. In December 1981 the Board found that Funder-
burg was not totally and permanently disabled within the meaning of
the Act. Funderburg did not appeal that decision.
In April 1985 Funderburg applied for a retirement annuity under
the Act. The Board awarded Funderburg an annuity based on early
retirement beginning May 1, 1985. The Board subsequently reduced
Funderburg's annuity because the Board learned that the Social
Security Administration had awarded Funderburg social security dis-
ability benefits effective April 1977. Funderburg did not request a
reconsideration of the Board's determination.
In May 1990 Funderburg appealed to the Board's Bureau of Hear-
ings and Appeals. The hearing officer found that because Funderburg
had not appealed the Board's 1981 order denying his claim for dis-
ability benefits, the denial of his 1978 application was administra-
tively final. Funderburg appealed. In May 1992, the Board affirmed
the hearing officer's decision not to reopen the 1981 denial of Funder-
burg's 1978 application, but determined that the evidence warranted
reopening the reduced annuity awarded in 1985. The Board recertified
his entitlement to a disability annuity under § 2(a)(1)(v) of the Act,
45 U.S.C. § 231a(a)(1)(v) (1988),* with no reduction for age.
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*This portion of the Act provides annuities to "individuals whose per-
manent physical or mental condition is such that they are unable to
engage in any regular employment." § 231a(a)(1)(v).
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Funderburg appealed the Board's 1992 order seeking review of the
Board's decision not to reopen the denial of his 1978 application. This
court dismissed the petition for review for lack of subject matter juris-
diction. Funderburg v. U.S. R.R. Retirement Bd. , 93-1579 (4th Cir.)
(unpublished), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3420 (U.S.
Nov. 28, 1994) (No. 94-370).
Following the Board's decision to recertify his annuity as a full dis-
ability annuity, the Bureau of Disability and Medicare Operations
awarded Funderburg a disability annuity with an annuity beginning
date of June 1, 1985. On appeal, the hearings officer changed Funder-
burg's annuity beginning date to December 1, 1984. The Board
affirmed the hearing officer's decision in June 1994. Funderburg filed
a petition for review of the Board's 1994 order.
Funderburg claims that his annuity should begin from April 1977,
the effective date of his social security disability benefits. However,
we affirm the Board's 1994 order because it is supported by substan-
tial evidence in the record and not based on an error of law. Norton
v. Railroad Retirement Bd., 69 F.3d 282, 283 (8th Cir. 1995); Bowers
v. Railroad Retirement Bd., 977 F.2d 1485, 1488 (D.C. Cir. 1992)
(quoting Andrews v. Railroad Retirement Bd., 595 F.2d 676, 681 n.59
(D.C. Cir. 1978)); Martin v. Railroad Retirement Bd., 935 F.2d 230,
232-33 (11th Cir. 1991); Crenshaw v. U.S. R.R. Retirement Bd., 815
F.2d 1066, 1067 (6th Cir. 1987); Kurka v. U.S. R.R. Retirement Bd.,
615 F.2d 246, 249-50 (5th Cir. 1980).
Pursuant to § 2(e)(1) of the Act, 45 U.S.C.A.§ 231a(e)(1) (West
1988 & Supp. 1995), before its amendment in 1988, an employee had
to cease all compensated service in and out of the railroad industry
to be entitled to an annuity. "Compensation" is defined in 45 U.S.C.A.
§ 231(h)(1) (West 1988 & Supp. 1995), as "any form of money remu-
neration paid to an individual for services rendered as an employee
to one or more employers. . . ."
Funderburg stated in his 1985 application that he worked for R &
E Electronics, Inc. ("R & E") from January 1984 through November
30, 1984. Funderburg worked for R & E in a special environment
where he was afforded unique consideration in performing the work
in light of his disability. However, the restriction in § 231a(e)(1)
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applies to any compensated service. See Capovilla v. Railroad Retire-
ment Bd., 924 F.2d 885 (9th Cir. 1991). Because Funderburg was
engaged in compensated service for R & E until November 30, 1984,
the Board correctly found that Funderburg's annuity beginning date
is December 1, 1984.
Funderburg also alleges that the Board violated his due process
rights by refusing to reopen its 1981 order denying his 1978 applica-
tion for a disability annuity. However, as this court previously held,
this court lacks jurisdiction to review the Board's decision not to
reopen an earlier denial of his claim.
Therefore, we affirm the Board's order. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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