UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1146
PETER R. CLIFFORD,
Petitioner,
v.
UNITED STATES OF AMERICA
RAILROAD RETIREMENT BOARD,
Respondent.
ON PETITION FOR REVIEW OF DECISION OF
THE RAILROAD RETIREMENT BOARD
Before
Torruella, Selya and Boudin,
Circuit Judges.
James B. Smith, with whom Smith & O'Toole, was on brief for
petitioner.
Stanley Jay Shuman, General Attorney, with whom Catherine C.
Cook, General Counsel, Steven A. Bartholow, Deputy General
Counsel, and Thomas W. Sadler, Assistant General Counsel,
Railroad Retirement Board, were on brief for respondent.
September 9, 1993
TORRUELLA, Circuit Judge. Appellant Peter Clifford
seeks annuities allegedly due his mother, Dorothy Clifford, under
the Railroad Retirement Act ("Act"). The Railroad Retirement
Board ("Board") awarded Mrs. Clifford annuities in 1977, but,
according to appellant, mistakenly failed to credit several years
of eligibility. Appellant petitioned the Board in 1990 to reopen
the case, but the Board refused. We affirm the Board's decision
not to reopen the case and thus do not address the merits of his
claim to enhanced benefits.
Under the railroad retirement system, a retired
railroad employee with more than ten years of service, who files
a proper application, qualifies for an annuity.1 45 U.S.C.
231a(a)(1). The annuity may be retroactive for up to one year.
Id. 231d(a) (ii)(B). That is, a retired employee may receive
annuity payments on a monthly basis upon filing an application,
plus up to twelve payments to cover the year prior to
application, if the employee was eligible for benefits during
that year.
Mrs. Clifford was a railroad employee with more than
ten years of service who filed an application for benefits
directly with the Board in April, 1977. The Board granted her
benefits beginning that month, with retroactive payments for one
year. The Board sent Mrs. Clifford a notice to this effect, and
informed her that she could contest the award in an
1 A railroad annuity is "a monthly sum which is payable on the
first day of each calendar month for the accrual during the
preceding calendar month." 45 U.S.C. 231(p).
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administrative procedure at any time within the year. Mrs.
Clifford did not appeal or otherwise contest the award.
Although the present appeal concerns the award of
benefits in 1977, the root of the appeal extends back to 1969,
when Mrs. Clifford filed a claim for Social Security benefits.
As retirees are not allowed to collect social security benefits
based on railroad employment, the Social Security Administration
("Administration") requested information on her railroad
employment from the Board. The Board duly notified the
Administration of Mrs. Clifford's railroad employment history,
and the Administration granted the appropriate benefits for her
non-railroad employment.
After receiving the award of annuities in 1977,
Mrs. Clifford contacted the Administration by letter to request
that it take some action to use her 1969 filing as a protective
filing for railroad benefits. In response, the Administration
instructed her to contact the Board "as soon as possible."
Mrs. Clifford did not do so, however, and she received the
annuity established in April 1977 without complaint until she
passed away some ten years later.
Appellant claims, not without some force, that the 1969
social security filing served as a de facto application for
railroad benefits, binding on the Board in its consideration of
an annuities award. In making this claim, appellant relies on a
1969 Board regulation providing, in part, that "a claim or
application filed with the Social Security Administration . . .
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shall be considered an application for an annuity duly filed with
the Board." Appellant learned the substance of this regulation
when, in the course of his employment at the Administration, he
reviewed a social security manual. Appellant alleges that Mrs.
Clifford was due an annuity retroactively back to 1969. As such,
appellant petitioned the Board to reopen his mother's file,
because he was due a lump sum payment of annuities covering the
years of 1969 to 1976.2 The Board refused because the failure
to appeal was not justified by good cause, and in any event the
amount of the award was correct. This appeal followed.
The reopening procedure stems solely from the Board's
own regulations, not from the Act. See 20 C.F.R. 260.3(d)
(outlining standard for reopening a case).3 As such, some
2 The Railroad Retirement Act provides that survivors of
deceased railroad employee may receive, as a lump sum, any
benefits unpaid at death. 45 U.S.C. 231e(a)(1).
3 The regulation reads:
In determining whether the claimant has
good cause for failure to file a timely
request for reconsideration the bureau
director shall consider the circumstances
which kept the claimant from filing the
request on time and if any action by the
Board misled the claimant. Examples of
circumstances where good cause may exist
include, but are not limited to:
(1) A serious illness which prevented the
claimant from contacting the Board in person,
in writing, or through a friend, relative or
other person;
(2) A death or serious illness in the
claimant's immediate family which prevented
him or her from filing;
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courts have held that they do not possess jurisdiction to review
a Board decision not to reopen a case. See Guti rrez v. Railroad
Retirement Board, 918 F.2d 567, 569 (6th Cir. 1990) (no
jurisdiction to review an appeal filed with the Board late);
Steebe v. United States Railroad Retirement Board, 708 F.2d 250,
255 (7th Cir. 1983) ("this court lacks jurisdiction to review the
Board's decision not to reopen"). These courts reason that the
Act permits judicial review over certain Board actions defined in
the Act, including final board decisions and those made after
exhausting all administrative channels.4 As denial of a
petition to reopen a case is not a final Board determination on
the merits of a claim as contemplated by the Act or the result of
an exhausted administrative process defined in the Act, these
courts conclude that the decision is unreviewable. Guti rrez,
918 F.2d at 570 (finding no exhaustion and expressing doubt over
(3) The destruction of important and
relevant records;
(4) A failure to be notified of a
decision; or
(5) An unusual or unavoidable circumstance
existed which demonstrates that the claimant
would not have known of the need to file
timely or which prevented the claimant from
filing in a timely manner.
4 See 45 U.S.C. 231g (judicial review of annuities
determinations governed by judicial review provisions of Railroad
Unemployment Insurance Act, which requires administrative
exhaustion, 45 U.S.C. 355(f)); see also Steebe 708 F.2d at 254;
Szostak v. Railroad Retirement Board, 370 F.2d 253, 254 (2d Cir.
1966); cf. Frock v. United States Railroad Retirement Board, 685
F.2d 1041, 1044-45 (7th Cir. 1982) (allowing appeal when
exhaustion would have been a "futile gesture" and "purposes of
exhaustion would not be served").
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finality of determination); Steebe 708 F.2d at 254-55 (no
finality).
Other courts have held that a Board decision not to
reopen a case is reviewable under an abuse of discretion
standard. See Sones v. United States Railroad Retirement Board,
933 F.2d 636, 638 (8th Cir. 1991); Szostak v. Railroad Retirement
Board, 370 F.2d 253, 254-55 (2d Cir. 1966). The court in Szostak
did not decide whether the Act authorized such review, but
concluded such review would be "governed by the common law rather
than the statute" in any event. 370 F.2d at 255. Sones relies
solely on Szostak to find jurisdiction.
We need not decide which approach to follow. Even
assuming that we have jurisdiction over the Board's refusal to
reopen the case, which is not at all clear, we can find no abuse
of discretion in the Board's action.5 The Board will only
reopen a case upon a showing of good cause to do so, see supra
note 3, and appellant has made no such showing. A good cause
showing entails some demonstration of why a timely administrative
appeal was not pursued. We take it from the list of available
excuses that a dissatisfied recipient of benefits must show that
some hardship or unusual circumstance prevented him from
complying with the constraints of the ordinary course of review.
5 It is settled that an appellate court, confronted by a
difficult jurisdictional question may forgo its resolution if the
merits of the appeal are, as here, straightforward and easily
resolved in favor of the party to whose benefit the objection to
jurisdiction would redound. See Norton v. Mathews, 427 U.S. 524,
532 (1976); Secretary of the Navy v. Avrech, 418 U.S. 676, 677-78
(1974); Lambert v. Kysar, 983 F.2d 1110, 1119 (1st Cir. 1993).
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In essence, the regulation allows the Board to reopen a case when
the employee, through no fault of his own and in an extraordinary
circumstance, was prevented from filing a timely appeal.
This case does not raise any such concern. To the
contrary, the record reveals a complete failure by Mrs. Clifford
and her son to exercise due diligence in pursuing this claim.
Mrs. Clifford, when presented a notice apprising her of her right
to appeal with the Board, did nothing. Although appellant
asserts that his mother spoke with a Board employee, who told her
that the 1969 social security filing did not qualify as a filing
for railroad benefits, no record of a conversation with the
unnamed employee exists. We are hesitant to accord this rather
flimsy excuse sufficient weight to qualify as good cause for a
thirteen-year delay.
Our conclusion holds true even with the added weight of
Mrs. Clifford's request that the Administration take some action
to use her 1969 filing as a protective filing for railroad
benefits. In effect, she was informed by the Administration for
a second time that redress lay with the Board. Mrs. Clifford
never acted on the Administration's instruction to contact the
Board "as soon as possible," however. She merely accepted the
annuity award granted by the Board at that point. Had she
pressed her claim, chances are good that she would have learned
of the regulation concerning the use of social security filings
as railroad retirement benefits filings.
In short, we decline to overturn the Board's decision
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not to reopen the case when the exercise of due diligence would
have revealed the grounds for a timely appeal. Appellant has not
advanced a good cause to overcome this failure.
Affirmed.
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