                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 05 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



BENJAMIN R. NELSON,                              No. 11-72201

               Petitioner,                       RRB No. 10-AP-0021

  v.
                                                 MEMORANDUM *
U. S. RAILROAD RETIREMENT
BOARD,

               Respondent.



                     On Petition for Review of a Decision of the
                             Railroad Retirement Board

                             Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Benjamin R. Nelson petitions pro se for review of the Railroad Retirement

Board’s (the “Board”) decision affirming, under the Railroad Retirement Act of

1974, the reduction of Nelson’s railroad retirement annuity by the amount of his

widower’s social security disability benefits. We have jurisdiction under 45 U.S.C.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 231g, and we deny the petition.

      We uphold the Board’s decision affirming the reduction of Nelson’s railroad

retirement annuity because it “‘is supported by substantial evidence, is not

arbitrary, and has a reasonable basis in the law.’” Calderon v. U.S. R.R. Ret. Bd.,

780 F.2d 812, 813 (9th Cir. 1986) (citations omitted); see also 45 U.S.C.

§ 231b(h)(6) (prohibiting dual railroad retirement and spousal social security

benefits unless entitlement to spousal benefits was determined before August 13,

1981); id. § 231b(m) (railroad retirement annuity “shall” be reduced by the amount

of any monthly benefit under the Social Security Act); U.S. R.R. Ret. Bd. v. Fritz,

449 U.S. 166, 168 (1980) (to maintain solvency in the railroad retirement and

social security systems, railroad employees who did not qualify for retirement

benefits as of January 1, 1975 do not receive dual or “windfall” benefits).

      Issues raised for the first time in Nelson’s reply brief regarding the Board’s

alleged fraud in calculating the taxable portions of Nelson’s annuity are deemed

waived. See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam).

      Nelson’s contentions regarding alleged discrimination resulting from the

potential award of greater retirement benefits to couples where both spouses

worked for the railroad, and the allegedly retroactive misapplication of the

Railroad Retirement Act of 1974, are unpersuasive.


                                          2                                      11-72201
      We treat Nelson’s letter submitted on May 14, 2012 as a request for

extension of time to file his reply brief, and grant the request. The Clerk shall file

Nelson’s reply brief, submitted on February 10, 2012.

      Nelson’s request for appointment of counsel, submitted on July 20, 2012, is

denied. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (discussing the

“exceptional circumstances” requirement for appointment of counsel).

      PETITION FOR REVIEW DENIED.




                                           3                                     11-72201
