Terry v. Railroad Retirement Board

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 21, 2012
Elisabeth A. Shumaker
Clerk of Court
MARILYN TERRY,
Petitioner,
v. No. 11-9563
(No. 10-AP-0051)
RAILROAD RETIREMENT BOARD, (Petition for Review)
Respondent.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.
Petitioner Marilyn Terry appeals pro se the decision of the Railroad
Retirement Board (Board) adopting the decision of a hearing officer that she did not
have good cause for filing a late appeal. The order petitioner attempted to appeal
denied reconsideration of her request for benefits. “This court has jurisdiction to
review decisions of the [Board] under 45 U.S.C. § 231g.” Gatewood v. R.R. Ret. Bd.,
88 F.3d 886, 888 (10th Cir. 1996). This court is without jurisdiction, however, to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
review the Board’s refusal to reopen the case due to petitioner’s untimely attempt to
appeal. Therefore, this matter is dismissed. Petitioner’s request to proceed on appeal
in forma pauperis (IFP) is granted.
Background
In 2009, petitioner filed an application for a disabled widow’s annuity under
the Railroad Retirement Act, 45 U.S.C. § 231a. After her application was denied, she
filed a request for reconsideration. Reconsideration was denied on September 24,
2009. Petitioner was entitled to appeal the reconsideration decision. See 20 C.F.R.
§ 260.5(a). Her appeal was due to the Bureau of Hearings and Appeals within
60 days after the denial, see id. § 260.5(b), but she did not mail her appeal until
January 28, 2010, well after the November 23, 2009, deadline.
The deadline for filing an appeal may be excused for good cause. Id.
§ 260.5(c). Accordingly, the hearing officer informed Ms. Terry that her appeal was
late, but that she had 30 days from February 17, 2010, to provide information to show
good cause for the late filing. When this information was not received by March 22,
2010, the hearing officer denied the appeal as untimely. But on March 22, the Board
received the information from petitioner, so it reopened the hearing officer’s
decision.
The hearing officer held a telephonic hearing at which petitioner presented
evidence as to why her appeal was late. Following the hearing, the hearing officer
kept the record open for another two weeks to give petitioner time to submit
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additional evidence. When this evidence was not received, the hearing officer denied
the appeal based on his finding that petitioner had not shown good cause for failing
to timely appeal the September 24, 2009, denial of reconsideration. Petitioner filed a
timely appeal to the three-member Board, which affirmed the hearing officer’s
decision. Petitioner now seeks review from this court.
Discussion
Because petitioner is proceeding pro se, her brief is entitled to a liberal
construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). She contends
that her evidence was sufficient to show good cause for her late appeal.
Abbruzzese v. Railroad Retirement Board, 63 F.3d 972 (10th Cir. 1995), is
dispositive. The petitioner in Abbruzzese, like the petitioner in this case, sought
relief even though he did not timely appeal the initial order of the hearing officer.
See id. at 973. Although we recognized that judicial review is specifically available
“of final decisions of the Board regarding the initial denial of an employee’s claim
for benefits,” pursuant to 45 U.S.C. § 355(f), we held that “the statute does not
provide for judicial review of the Board’s denial of a request to reopen a case.” Id.
at 974. Unless the petitioner raises a constitutional question relative to the refusal to
reopen, “we are without subject matter jurisdiction to review a decision by the Board
not to reopen a case.” Id. Petitioner’s appellate brief does not assert any
constitutional claims. Therefore, we must dismiss her petition for review for lack of
subject matter jurisdiction. Id.
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Conclusion
The petition for review is DISMISSED. Petitioner’s motion to proceed IFP is
GRANTED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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