                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2004

Cunningham v. RRRB
Precedential or Non-Precedential: Precedential

Docket No. 02-2866




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                                              PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                           No. 02-2866


             JANET BELCZYK CUNNINGHAM

                            Petitioner

                                v.

            RAILROAD RETIREMENT BOARD




                    On Petition to Review
                       a Decision of the
                  Railroad Retirement Board
                  (Agency No. 02-AP-0035


                 Argued September 28, 2004

 Before: RENDELL, FUENTES, and SMITH, Circuit Judges.

                 (Filed: December 15, 2004 )

Michael A. Pavlick
Jamie Bishop
Meghan L. Daugherty (Argued)
Kirkpatrick & Lockhart, LLP
535 Smithfield Street
Pittsburgh, PA 15203

ATTORNEYS FOR PETITIONER

Steven A. Bartholow
Michael C. Litt (Argued)
Railroad Retirement Board
844 North Rush Street
Chicago, IL 60611

ATTORNEYS FOR RESPONDENT




                   OPINION OF THE COURT




FUENTES, Circuit Judge.

        Petitioner Janet B. Cunningham appeals a decision of the
Railroad Retirement Board (“RRB”) denying her motion to reopen
her claim for unemployment and sickness insurance benefits
following her failure to pursue a timely administrative appeal of a
partial denial of benefits. The novel issue for this Court is whether
we may review a decision of the RRB refusing to reopen a prior
claim for benefits after the time for administrative appeal has
expired. Because a decision of the RRB refusing to reopen a prior
claim is not a final decision within the meaning of 45 U.S.C.
§ 355(f), which governs judicial review of decisions of the RRB,
we conclude that we have no jurisdiction to review the RRB’s
decision. Accordingly, we will dismiss the petition.

                       I. BACKGROUND

       After being laid off by Conrail, Cunningham commenced an
action pro se with the RRB seeking unemployment and sickness
insurance benefits under the Railroad Retirement Act (“RRA”) and
the Railroad Unemployment Insurance Act (“RUIA”), 45 U.S.C.
§ 231 et. seq.1 An adjudicating officer awarded Cunningham



       1
        Cunningham sought sickness insurance benefits for
complications arising from her pregnancy, which led to her
hospitalization and treatment for severe heart disorder. In addition,
Cunningham sought unemployment benefits after being laid off

                                 2
unemployment benefits for the period M ay 30 through July 26,
1999, but denied unemployment benefits thereafter based on her
unavailability for work. Cunningham was also awarded sickness
insurance benefits for the period November 19, 1999 through April
20, 2000, but was denied sickness insurance benefits for the period
prior to November 19, 1999, based on lack of proof of infirmity.
Seeking relief from the denial of these benefits and pursuant to
RRB administrative procedures, Cunningham filed two requests for
reconsideration with the adjudicating officer, both of which were
denied on March 7, 2000.

       Cunningham thereafter filed an appeal of the
reconsideration decisions to the RRB’s Bureau of Hearings and
Appeals (the “Bureau”). On October 2, 2000, the Bureau denied
Cunningham’s appeal and affirmed the adjudicating officer’s
denial of benefits. The Bureau also informed Petitioner that she
had 60 days in which to appeal the Bureau’s decision to the three-
member board (the “Board”) that heads the RRB.

       Cunningham did not file an appeal to the Board within the
60-day period and, accordingly, the Bureau’s decision became the
final decision of the RRB. See 45 U.S.C. § 355(d); see also 20
C.F.R. § 320.39. On May 29, 2001, well after the time to appeal
had expired, Cunningham sent a letter to Robert A. Scardelletti, her
union president, requesting his assistance in obtaining
unemployment benefits. That same day, Scardelletti wrote a letter
to V.M. Speakman, Jr., the labor representative on the Board,
forwarding Cunningham’s letter and asking for assistance on her
behalf. A few weeks later, Speakman replied to Scardelletti,
explaining that the time to appeal had long expired because
Cunningham had not pursued her right to appeal within the 60-day
period.2


from Conrail.
       2
         In her brief to this Court, Cunningham asserts that the three
letters discussed above–the Cunningham letter, the Scardelletti
letter, and the Speakman letter–are not properly before this Court.
We note that the letters are part of the Certified Administrative
Record filed with this Court on August 1, 2002, pursuant to Federal

                                  3
        On January 21, 2002, some 14 months after the expiration
of the 60-day appeals period, Cunningham filed an appeal with the
Board, which was treated as a request to reopen her claim in view
of the Bureau’s October 2, 2000 final decision. Still acting pro se,
Cunningham argued that good cause existed to waive the 60-day
appeal period because she was prevented from timely appealing the
Bureau’s decision within the prescribed period because of her
medical condition, her separation from her husband, and because
she had no one to act on her behalf during that period.3 On April
23, 2002, the Board, in a brief decision, denied her request to
reopen, finding that she had failed to meet the good cause standard
necessary to waive the time requirement. The Board relied on the
May 29, 2001 letter Cunningham wrote to her union requesting
assistance as evidence that she could have filed an appeal on that
date, and that her subsequent delay of another eight months was
unexplained.

       Thereafter, Cunningham filed a petition for review with this
Court arguing that she was entitled to benefits under the RUIA and
that the Board’s determination that she had failed to show good
cause to reopen her case following her untimely appeal was not
supported by substantial evidence in the record.

                      II. JURISDICTION

       The parties dispute whether this Court has jurisdiction over
Cunningham’s petition for review. We must resolve the threshold
jurisdictional issue before reaching the merits of Cunningham’s
petition. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998); see also Soc’y Hill Towers Owners’ Ass’n v. Rendell,


Rules of Appellate Procedure 16 and 17. However, because we
decide this case on jurisdictional grounds and do not rely on the
letters in making our determination, we need not decide whether
the letters are properly before us.
       3
        Pursuant to 20 C.F.R. § 320.39, the Board may waive the
60-day period if in the judgment of the Board “the reasons given
establish that the party has good cause for not filing the appeal
form within the time limit prescribed.” (emphasis added).

                                 4
210 F.3d 168, 175 (3d Cir. 2000). As the Supreme Court stated in
Steel Co.: “[W]ithout jurisdiction the court cannot proceed at all in
any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the case.” Steel Co., 523 U.S.
at 94 (quoting Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868)). We exercise plenary authority to determine whether we
have jurisdiction over the RRB’s decision denying Cunningham’s
request to reopen her claim. See Grand Union Supermarkets of the
Virgin Islands, Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408,
410 (3d Cir. 2003).

       In response to the RRB’s jurisdictional challenge,
Cunningham contends that this Court has jurisdiction over her
petition for review on the grounds that the Board’s denial of her
request to reopen was a final decision within the meaning of 45
U.S.C. § 355(f), and that in any event federal common law
provides a general right of judicial review in the absence of express
statutory jurisdiction. In the alternative, Cunningham raises several
other bases for this Court’s jurisdiction, including: (1) that the
Board’s denial of her request to reopen raises a colorable
constitutional due process claim; (2) that § 702 of the
Administrative Procedure Act provides an independent basis for
judicial review in this matter; and (3) that the RRB waived its
jurisdictional arguments in this matter. Each of these arguments
will be addressed in turn.

       A.     Statutory Jurisdiction under the RRA and RUIA

              1.      Finality of the RRB’s decision

        Judicial review of decisions of the RRB is governed by
§ 5(f) of the RUIA, which states in pertinent part that “[a]ny
claimant . . . aggrieved by a final decision under subsection (c) of
this section, may, only after all administrative remedies within the
Board will have been availed of and exhausted, obtain a review of
any final decision of the Board by filing a petition for review . . .
in the United States court of appeals.” 45 U.S.C. § 355(f). In turn,
subsection (c) of § 355 refers to several types of decisions of the



                                 5
RRB on the merits of a claim for benefits. See 45 U.S.C. § 355(c). 4



       4
           45 U.S.C. § 355(c) provides in pertinent part:

       (2)       Any claimant whose claim for benefits has been
                 denied in an initial determination with respect
                 thereto upon the basis of his not being a qualified
                 employee, and any claimant who contends that under
                 an initial determination of his claim he has been
                 awarded benefits at less than the proper rate, may
                 appeal to the Board for the review of such
                 determination. * * *

       (3)       Any base-year employer of a claimant whose claim
                 for benefits has been granted in whole or in part,
                 either in an initial determination with respect thereto
                 or in a determination after a hearing pursuant to
                 paragraph (1), and who contends that the
                 determination is erroneous for a reason or reasons
                 other than a reason that is reviewable under
                 paragraph (4), may appeal to the Board for review of
                 such determination. * * *

       (4)       In any case in which benefits are awarded to a
                 claimant in whole or in part upon the basis of pay
                 earned in the service of a person or company found
                 by the Board to be an employer as defined in this
                 chapter but which denies that it is such an employer,
                 such benefits awarded on such basis shall be paid to
                 such claimant subject to a right of recovery of such
                 benefits. The Board shall thereupon designate one of
                 its officers or employees to receive evidence and to
                 report to the Board on whether such benefits should
                 be repaid. * * *

       (5)       * * * Any properly interested party notified, as
                 hereinabove provided, of his right to participate in
                 the proceedings may obtain a review of any such
                 decision by which he claims to be aggrieved or the

                                    6
Thus, under the plain language of § 355(f), this Court has
jurisdiction to review final decisions of the RRB on the merits of
a claim for benefits only after administrative remedies have been
exhausted. As a further limitation on our review of RRB decisions,
§ 355(g) provides that “[f]indings of fact and conclusions of law of
the Board in the determination of any claim for benefits . . . shall
not be subject to review in any manner other than that set forth in
subsection (f) of this section.” There is no provision in the statute
allowing the Board to reopen a prior claim for benefits following
an untimely appeal, nor is there a provision permitting for judicial
review of such a decision. To the contrary, the Board’s authority
to reopen prior claims for benefits upon a showing of good cause
stems solely from the RRB’s own regulation. See 20 C.F.R.
§ 260.5(c).

       Thus, for this Court to have jurisdiction to review the
Board’s decision in this matter, Cunningham must show that the
Board’s decision not to reopen her prior claim for benefits was a
final decision of the Board issued on the merits of her claim after
she exhausted her administrative remedies within the meaning of
§ 355(f). However, Cunningham here has not exhausted her
administrative remedies before the RRB because she failed to
timely appeal the decision of the Bureau affirming the denial of
benefits to the Board within the 60-day time period. Moreover, the
Board’s decision refusing to reopen Cunningham’s prior claim for
benefits was not a final decision of the Board on the merits of the
claim within the meaning of § 355(c). The only final decision in
this matter was the Bureau’s October 2, 2000 decision affirming
the denial of Cunningham’s motion to reconsider the adjudicating
officer’s decision, which became final following the closing of the
60-day appeal window. See 45 U.S.C. § 355(d); see also 20 C.F.R.
§§ 260.1, 260.9, and 261.1(b). That decision is not properly before
this Court. Accordingly, in light of the plain language of § 355(f),



              determination of any issue therein in the manner
              provided in subsection (f) of this section with respect
              to the review of the Board's decisions upon claims
              for benefits and subject to all provisions of law
              applicable to the review of such decisions. * * *

                                 7
we lack jurisdiction under the RUIA to review Cunningham’s
petition.5

       We note that the majority of the circuits that have
considered these provisions have reached the same conclusion as
we do, that decisions of the RRB not to reopen prior claims are not
subject to review under the RUIA. See Roberts v. R.R. Ret. Bd.,
346 F.3d 139 (5th Cir. 2003); Rivera v. R.R. Ret. Bd., 262 F.3d
1005 (9th Cir. 2001); Harris v. R.R. Ret. Bd., 198 F.3d 139 (4th
Cir. 1999); Abbruzzese v. R.R. Ret. Bd., 63 F.3d 972 (10th Cir.
1995); Gutierrez v. R.R. Ret. Bd., 918 F.2d 567 (6th Cir. 1990);
Steebe v. R.R. Ret. Bd., 708 F.2d 250 (7th Cir. 1983). 6

      Each of these courts found the Supreme Court’s decision in
Califano v. Sanders, 430 U.S. 99 (1977), persuasive in analyzing


       5
         At oral argument, counsel for Cunningham argued that a
reading of the phrase “aggrieved by a final decision under
subsection (c)” in § 355(f), to mean that § 355(c) contains the
exclusive list of final decisions subject to judicial review under the
statute, would render § 355(d) superfluous and unnecessary. We
disagree. Section 355(f) clearly states its intention to incorporate
the types of decisions listed in § 355(c) as being suitable for review
by the courts of appeals. In contrast, § 355(d) concerns itself with
the procedures the RRB is to use in arriving at such a final
decision. Contrary to counsel’s suggestion, our reading of the
statutory scheme in these three provisions is consistent.
       6
        Although these courts have concluded that decisions of the
RRB not to reopen prior claims following untimely appeals are not
subject to review, our sister circuits have used differing rationales
for their decisions. The Sixth Circuit in Gutierrez assumed for the
sake of argument that such a decision would be a “final decision,”
but found that the lack of a timely appeal constituted a failure to
exhaust administrative remedies within the meaning of § 355(c)
and § 355(f). Gutierrez, 918 F.2d at 570. In contrast, the Fourth,
Seventh, Ninth, and Tenth Circuits held that such a Board decision
was not a “final decision” within the meaning of those provisions.
See Rivera, 262 F.3d at 1009; Harris, 198 F.3d at 142; Abbruzzese,
63 F.3d at 974; Steebe, 708 F.2d at 254-55.

                                  8
the relevant jurisdictional provisions of the RUIA. In Sanders, the
Supreme Court held that the Social Security Act did not grant
jurisdiction to the federal courts to review a decision of the
Secretary of Health, Education, and Welfare not to reopen a claim
for Social Security benefits. 430 U.S. at 107-08. The Supreme
Court rested its decision in part on § 205(g) of the Social Security
Act, which limits judicial review to only “final decisions” of the
Secretary. Id. at 108. As other courts have noted, the jurisdictional
language of the Social Security Act, and in particular § 205(g), 42
U.S.C. § 405(g),7 is similar to 45 U.S.C. § 355(f). See, e.g.,
Roberts, 346 F.3d at 141; Abbruzzese, 63 F.3d at 974. Moreover,
because of the similarities between the Social Security Act and the
RRA and RUIA, it is “accepted practice to use social security cases
as precedent for railroad retirement cases.” See, e.g., Abbruzzese,
63 F.3d at 974 n.3 (internal quotation omitted); Harris, 198 F.3d at
142 n.4. Accordingly, we find Sanders to be persuasive that
judicial review of the RRB decision in this matter, as a matter of
statutory interpretation, is not appropriate.

        We have previously applied Sanders in interpreting the
jurisdictional provision of the Social Security Act, 42 U.S.C.
§ 405(g), and have held that decisions by the social security
Appeals Council refusing to reopen a prior claim for benefits are
not final decisions. See Bacon v. Sullivan, 969 F.2d 1517, 1520
(3d Cir. 1992). In Bacon, the claimant, after being denied certain
social security disability benefits, filed an appeal with the Appeals
Council one day too late after the expiration of the 60-day appeal
period. Id. at 1518. Although Bacon argued that her late filing was
due “to an inadvertent and inexplicable oversight in the mailroom”
of her attorney, the Appeals Council dismissed the appeal, finding
that no good cause existed to extend her time for filing a request
for review. Id. (internal quotations omitted). On appeal, this Court
was presented with the question of whether the decision of the



       7
         42 U.S.C. § 405(g) provided: “Any individual, after any
final decision of the Secretary made after a hearing to which he
was a party, irrespective of the amount in controversy, may obtain
a review of such decision by a civil action commenced within sixty
days . . . .”

                                 9
Appeals Council not to consider claimant’s late appeal was a
reviewable final order within the meaning of 42 U.S.C. § 405(g).
Id. Construing § 405(g) and the administrative provisions of the
Appeals Council, we concluded that a decision not to consider an
untimely appeal was not a final decision within the meaning of the
statute and held that we lacked jurisdiction to hear the petition. Id.
at 1520-21.

        Cunningham argues that she did receive a final decision in
this matter and otherwise exhausted her administrative remedies
because she filed a motion to reopen for good cause with the
Board, which was denied, and now has essentially nowhere else to
go except to this Court. We disagree. As we stated in Bacon, “a
‘final decision’ is a particular type of agency action, and not all
agency determinations are final decisions.” Bacon, 969 F.2d at
1519-20 (citing Sanders, 430 U.S. at 107-08). As noted above, the
only final decision Cunningham received in this matter was the
Bureau’s October 2, 2000 decision affirming the denial of
Cunningham’s motions for reconsideration which became final
following the expiration of the 60-day appeal window; that
decision is not before this Court. It is simply not the case that the
Board’s April 23, 2002 decision refusing to reopen her claim for
benefits is rendered a final decision because Cunningham has no
other procedural remedies available within the RRB. Moreover,
Cunningham’s position, if adopted, would frustrate the goal of
ensuring finality of RRB decisions on the merits of claims for
benefits. See Sanders, 430 U.S. at 108 (noting that “an
interpretation that would allow a claimant judicial review simply
by filing and being denied a petition to reopen his claim would
frustrate the congressional purpose . . . to impose a 60-day
limitation upon judicial review of the Secretary’s final decision on
the initial claim for benefits”). Here, Cunningham filed her motion
to reopen some 14 months after the expiration of her 60-day appeal
period, but under the reasoning of her position, there would be no
bar to judicial review of a denial of a motion to reopen filed many
years after the expiration of the 60-day appeal period.

              2.      Federal common law

       Conceding that the majority of the circuits have adopted the

                                 10
view that we do now, Cunningham argues that fairness concerns
warrant that this Court reject the majority approach and instead
find a right of review over the Board’s decision in the federal
common law. Petitioner relies on the decisions of the Second and
Eighth Circuits in Szostak v. R.R. Ret. Bd., 370 F.2d 253 (2d Cir.
1966), and Sones v. R.R. Ret. Bd., 933 F.2d 636 (8th Cir. 1991). In
Szostak, the Second Circuit held that a decision of the RRB
refusing to reopen a claim following an untimely appeal could be
reviewed for abuse of discretion either under the Administrative
Procedure Act (“APA”), or if the APA was inapplicable, then
under the federal common law. Szostak, 370 F.2d at 254-55. The
Eighth Circuit in Sones relied on Szostak to hold that it also could
review the refusal of the RRB to reopen a claim under an abuse of
discretion standard. See Sones, 933 F.2d at 638.

       We decline to follow either case. Szostak was decided
before the Supreme Court construed the jurisdictional provisions
of the Social Security Act in Sanders, and Sones does not appear
to consider Sanders.8 Moreover, it is not entirely clear whether
Szostak remains viable after the Sanders decision. In addition to
holding that decisions under the Social Security Act not to reopen
untimely claims were not subject to judicial review, the Supreme
Court in Sanders resolved a circuit split at the time by rejecting the
notion that the APA provided an implied grant of subject matter
jurisdiction to review agency action in the absence of an alternative
express grant of statutory jurisdiction. 430 U.S. at 105.9 Szostak,
however, appeared to rely on the implied grant of jurisdiction from
the APA to review agency decisions not to reopen, an implication


       8
         It is unclear why the Sones court did not consider Sanders,
considering that previously the Eighth Circuit had stated that “[t]he
standards and rules for determining disability under the Railroad
Retirement Act are identical to those under the more frequently
litigated Social Security Act, and it is the accepted practice to use
social security cases as precedent for railroad retirement cases.”
See Burleson v. R.R. Ret. Bd., 711 F.2d 861, 862 (8th Cir. 1983).
       9
        We note that this APA argument is not the one that
Cunningham advances in her brief. That argument is discussed in
Part II.C of this opinion.

                                 11
which Sanders subsequently rejected. The federal common law
issue was raised in Szostak only as a backup or alternative basis for
jurisdiction after the Court noted that the RRB (as discussed below)
may be exempt from the APA. Szostak, 370 F.2d at 254-55. Thus,
we are in doubt whether Szostak, with its primary reasoning relying
on the APA undercut by Sanders, is still persuasive authority for
the proposition that federal common law provides a basis for
review of the Board’s refusal to reopen. See Abbruzzese, 63 F.3d
at 974 (noting that Sanders served to overrule Szostak).10

       In any event, we do not believe that resort to the federal
common law to review the Board’s decision in this matter is
appropriate. A federal court has the power “to declare, as a matter
of common law or ‘judicial legislation,’ rules which may be
necessary to fill in interstitially or otherwise effectuate the statutory
patterns enacted in the large by Congress.” United States v. Little
Lake Misere Land Co., 412 U.S. 580, 593 (1973); see also
Gulfstream III Assoc., Inc. v. Gulfstream Aerospace Corp., 995
F.2d 425, 438 (3d Cir. 1993) (noting that “federal courts have the
power to create so-called ‘interstitial’ federal common law to



       10
         Szostak cited an earlier decision of the Second Circuit in
Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir. 1966), for the
principle that the APA would provide jurisdiction for review of an
agency action refusing to reopen under an abuse of discretion
standard. See Szostak, 370 F.2d at 254. In Cappadora, the Second
Circuit held that the refusal to reopen the denial of benefits was
reviewable under § 10 of the APA under an abuse of discretion
standard. 356 F.2d at 5-6. However, in Sanders, the Supreme
Court specifically rejected the notion that § 10 of the APA
provided what amounted to an implied grant of subject matter
jurisdiction for judicial review of agency action in the absence of
other express statutory authorization. See 430 U.S. at 107. We
note that the Second Circuit itself shied away from the Cappadora
decision shortly before the Supreme Court decided Sanders. See
S. Windsor Convalescent Home, Inc. v. M athews, 541 F.2d 910,
913 n.3 (2d Cir. 1976) (noting that the Second Circuit has avoided
addressing the question of implied APA jurisdiction since the
Cappadora decision).

                                   12
govern issues closely interwoven with a broad scheme of federal
statutory regulation”) (internal citation and quotation omitted).
However, in light of the provisions regarding judicial review in the
RUIA, the RRB’s regulations concerning the finality of its
decisions, and the Sanders Court’s denial of review of similar
decisions in the Social Security context, it seems clear that judicial
review of a decision by the RRB not to reopen a claim, absent
constitutional issues, is in no way necessary to fill gaps in the
RUIA or effectuate Congress’ purpose in enacting the statute.
Accordingly, we decline to adopt a federal common law right of
review of the Board’s refusal to reopen a claim for benefits.

       B.     Constitutional Claim

       Petitioner next attempts to invoke an exception to the
statutory bar on judicial review recognized in Sanders and the
approach of the majority of circuits. The so-called Sanders
exception provides that a court may review an administrative
refusal to reopen when that refusal raises a colorable constitutional
issue. See Sanders, 430 U.S. at 109; Harris, 198 F.3d at 142-43;
Abbruzzese, 63 F.3d at 974; Steebe, 708 F.2d at 256. We have
previously recognized the Sanders exception, noting that because
“[c]onstitutional questions obviously are unsuited to resolution in
administrative hearing procedures . . .[,] access to the courts is
essential to the decision of such questions.” Penner v. Schweiker,
701 F.2d 256, 260 (3d Cir. 1983); see also Bacon, 969 F.2d at
1521.

        Cunningham argues that her Fifth Amendment procedural
due process rights were violated when the Board failed to provide
her with an oral hearing in connection with its denial of her motion
to reopen. Cunningham asserts that the Board’s exclusive reliance
on written submissions was unfair and prone to error because pro
se claimants, like herself, are otherwise unable to argue
persuasively and present evidence in favor of their good cause
explanations. Undoubtedly, it is true that an oral hearing would
assist a pro se petitioner such as Cunningham to make a more
complete presentation on the issue of good cause. However, the
issue before the Court is whether the Constitution requires such a
hearing for pro se claimants as a matter of due process.

                                 13
        We do not find Cunningham’s argument persuasive. As an
initial matter, we note that Cunningham has not cited any authority
to this Court under which an oral hearing in connection with the
evaluation of a motion to reopen a claim for benefits was found to
be constitutionally required as a matter of due process.11 To the
contrary, in Bacon, the claimant received no hearing in connection
with her good cause written submission, and although she did not
raise a constitutional claim as Cunningham does in this case, we
did note in Bacon that the claimant “received all the process due to
her.” 969 F.2d at 1522.

       In support of her due process argument, Cunningham cites
the Supreme Court’s decision in Mathews v. Eldridge, 424 U.S.
319 (1976). Mathews held that, although due process requires that
an individual receive “an opportunity to be heard at a meaningful
time and in a meaningful manner,” id. at 333 (internal quotation
omitted), Social Security disability benefits may be terminated
without a pre-deprivation hearing. Id.; see also Goldberg v. Kelly,
397 U.S. 254 (1970) (requiring that an oral hearing be given prior
to discontinuing welfare benefits). Cunningham seizes on the
language in Mathews that “some form of a hearing is required”
before deprivation of a property interest as well as the Supreme
Court’s statement that in Goldberg it found that “written
submissions were an inadequate substitute for oral presentations.”
Mathews, 424 U.S. at 333, 345. As an initial matter, we note that
the Mathews Court, in a context much more analogous to this case
than the welfare context, found that the nature of the inquiry and
the lack of dire need of the claimants (as compared to welfare
recipients) diminished the necessity for oral hearings. Id. at 340-
41, 343-44. More important, however, is the fact that Cunningham
did receive an oral (telephone) hearing in this case with the hearing
officer who conducted the Bureau appeal, at which point she was
allowed to, and did, testify. The decisions in Goldberg and
Mathews cannot stand for the broad proposition that administrative



       11
         From Cunningham’s brief, it appears that she did not
request a hearing before the Board. However, she now argues that,
notwithstanding her lack of request, the Board was constitutionally
required to offer her one.

                                 14
agencies, when revoking property interests, must provide oral
hearings to claimants at every step of the review process regardless
of whether requests for such hearings were made.

        In addition, our decision in Penner, the only case in which
this Court has found a due process violation with regard to a
motion to reopen, weighs against finding a similar violation in this
case. 701 F.2d at 258. In Penner, a claimant with severe mental
deficiencies filed pro se for disability benefits with the Secretary
of Health and Human Services. After his initial benefits claim was
denied, the claimant retained counsel, who proceeded to request
reconsideration of the ALJ’s decision and instructed the Secretary,
pursuant to agency regulations, that all further mailings and notices
be sent to counsel as well, as the claimant was no longer in a
position to act on his own behalf. Id. After the request for
reconsideration was denied, however, the Secretary inexplicably
and in violation of its own regulations mailed a copy of the denial
only to the claimant, and not to counsel, such that counsel was
unable to request a hearing within the 60-day period. Id. When
counsel learned of the denial some several months later, he filed for
a hearing, which was denied as untimely, and no good cause was
found to reopen the matter. Id. The claimant filed an appeal to the
district court, which dismissed the action for lack of jurisdiction
under Sanders. Id. at 259. This Court reversed, finding that a
colorable constitutional claim had been properly stated where
claimant had alleged that his mental incapacity did not permit him
to timely file for a hearing and pursue his administrative remedies;
the Court ordered a remand to the agency to gather additional
evidence on the issue of the mental infirmity. Id. at 261. Penner
hinged on the fact that the claimant alleged a due process violation
on account of the prejudicial conduct of the agency which failed to
properly notify claimant, through his counsel, of his right to a
hearing, despite previously having agreed to do so. Id. at 260.

       In contrast, in this matter, the RRB did not in any way
prejudice Cunningham’s attempt to invoke the good cause
exception to the timeliness requirement.          As Cunningham
concedes, her error was that she “did not realize this was a
proceeding where persuasive writing and evidence were
necessary,” (Br. of Petitioner at 21), and she seeks an oral hearing

                                 15
in retrospect only as an opportunity to develop further her good
cause explanation. Therefore, in light of Penner, Petitioner’s
allegation of a due process violation is unsustainable.

       In addition, we are troubled by the implication of
Cunningham’s position, which would require the Board to provide
an oral hearing each time a pro se claimant sought to show good
cause to reopen an untimely appeal. Such hearings would be a
significant strain on the RRB’s resources, yet it is not entirely clear
from Cunningham what additional value would be gained by
imposing such an obligation on the Board when written
submissions, properly crafted, would be sufficient. See Mathews,
424 U.S. at 347 (noting that “the administrative burden” must be
considered when “striking the appropriate due process balance”).
There may be situations where an evidentiary hearing in connection
with a motion to reopen a prior claim for benefits could be
constitutionally required, but we are not persuaded that this is such
a case. Accordingly, we do not find that Cunningham has stated a
colorable constitutional claim for violation of her due process
rights. See Harris, 198 F.3d at 142-43 (holding that Sanders
exception is not applicable where claimant failed to show any
constitutional deprivation as a result of RRB’s decision that good
cause did not exist for late filing); Steebe, 708 F.2d at 256 n.5.

       C.      Administrative Procedure Act

       Cunningham next argues that § 702 of the APA provides for
a general right of review over RRB decisions not to reopen prior
claims following untimely appeals and serves to provide
jurisdiction in this matter. Section 702 states that a “person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.” 5 U.S.C.
§ 702.

       However, it is unclear whether the RRB is subject to the
APA by virtue of an exemption to the definition of “agency”
contained in the APA for agencies which are “composed of
representatives of the parties or of representatives of organizations
of the parties to the disputes determined by them.” 5 U.S.C.

                                  16
§ 551(1)(E). The three-member Board consists of one member
appointed based on the recommendation of rail labor, one member
appointed based on the recommendation of rail management, and
one member–the Chairman–appointed to represent the public. See
45 U.S.C. § 231f(a); see also H.R. Rep. No. 1980, at 19 (79th Con.
2d Sess. 1946) (noting that the exemption at 5 U.S.C. § 551(1)
excludes “such agencies as the National Railroad Adjustment
Board and the Railroad Retirement Board”) (emphasis added).

       However, we need not decide whether the RRB is exempt
from the APA. We follow the approach of the Seventh Circuit in
Steebe, which held that § 355(g) of the RUIA, 45 U.S.C. § 355(g),
which states that Board decisions “shall not be subject to review in
any other manner other than that set forth in subsection (f) [45
U.S.C. § 355(f)] of this section,” precluded jurisdiction from
separately arising under the APA. Steebe, 708 F.2d at 254 (citing
Sanders, 430 U.S. 99, and Ry. Express Agency v. Kennedy, 189
F.2d 801, 804 (7th Cir. 1951)). We agree and accordingly hold that
we may not review a decision of the RRB to reopen a prior claim
for benefits under the APA.

       D.     Waiver of Jurisdictional Objections

        Finally, Cunningham argues that the RRB waived its
exhaustion of administrative remedies argument and rendered the
April 23, 2002 decision a final decision when it mailed a cover
letter, along with a copy of the Board’s April 23, 2003 decision,
inadvertently advising Cunningham that she “may seek judicial
review of the Board’s opinion by filing a petition for review with
an appropriate United States court of appeals.” Petitioner relies
heavily on two cases in support of her waiver argument: Sipple v.
Califano, 455 F. Supp. 528 (S.D.W. Va. 1978), and Funderburk v.
Califano, 432 F. Supp. 657 (W.D.N.C. 1977).

       In Funderburk, the claimant had sought disability benefits
but had been denied such benefits by an administrative law judge.
The decision was upheld by the Appeals Council on September 15,
1976. 432 F. Supp. at 658. By regulation, the claimant had 60
days, until November 19, 1976, in which to file a petition for
review with a district court. Id. Several days before the expiration

                                17
of the 60-day period, the Legal Aid Society assumed representation
of claimant and requested that the Appeals Council keep open
claimant’s file pending submission of additional evidence. Id. In
a letter dated November 16, 1976, just three days before the
expiration of the 60-day judicial review period, the Appeals
Council agreed. Id. The claimant, represented by new counsel,
proceeded to submit new evidence to the Appeals Council, which
nonetheless eventually denied the claim again. Id. Petitioner
thereafter initiated suit on February 25, 1977 in district court, well
outside the 60-day period from the September 15, 1976 decision,
and the government argued that this barred judicial review. Id.
The district court disagreed and found that the 60-day period had
been waived when the government placed the claimant in a “Catch-
22”: The government “should not be entitled to assert the statute
here where the Appeals Council invited plaintiff to submit
additional evidence three days before the time limit for filing suit
expired, forcing plaintiff to choose whether to pursue additional
administrative channels or to institute a possibly needless civil
action.” Id. at 659.

        Similarly, in Sipple, after his denial of benefits was affirmed
by the Appeals Council, the claimant, through his counsel,
requested that his claim be reopened to consider additional
evidence and that he be granted an extension of the 60-day period
in which to file a petition for review in district court. 455 F. Supp.
at 529. After failing to respond to several earlier requests, the
Appeals Council, in a letter dated only 10 days prior to the
expiration of the 60-day period, agreed to consider additional
evidence submitted by claimant. In subsequent litigation, the
district court found that the government had waived the 60-day
period by placing the claimant in the impossible position of having
to decide whether to submit new evidence to the Appeals Council
in the remaining 10 days at the risk of missing the deadline to file
suit in federal court, or appeal to the district court immediately,
thereby foregoing the invitation to submit additional evidence. Id.
at 530 (citing Funderburk).

       This case is unlike either Sipple or Funderburk. Although,
as we discussed above, the jurisdictional provision of the Social
Security Act, 42 U.S.C. § 405(g), at issue in Sipple and Funderburk

                                  18
is similar to 45 U.S.C. § 355(f), they differ in one important
respect. Whereas 45 U.S.C. § 355(f) contains express language
requiring that “all administrative remedies within the Board will
have been availed of and exhausted,” no similar language appears
in § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Thus,
although courts have been willing to read in and allow waiver of an
exhaustion requirement under the Social Security Act in certain
circumstances, see, e.g., Bacon, 969 F.2d at 1522, we note that the
exhaustion requirement under the RUIA is itself jurisdictional,
defining the terms under which this Court may sit in review of
decisions of the RRB. Because Cunningham has not exhausted her
administrative remedies before the RRB, we are not in a position
to ignore the jurisdictional prerequisite of 45 U.S.C. § 355(f) on
account of the cover letter mailed by the RRB.12

        In addition, we find Sipple and Funderburk distinguishable
to the extent that Cunningham had not been placed in any “Catch-
22” situation where she was forced to choose between pursuing
additional administrative remedies or seeking an immediate appeal



       12
          At oral argument, counsel for the RRB stated that it was
the Board’s position that the exhaustion requirement of 45 U.S.C.
§ 355(f) was in fact waivable. The Board was concerned that a
ruling that exhaustion was not waivable could serve to undermine
the administrative scheme by which the Board permits claimants to
file late appeals on motions to reopen upon a showing of good
cause, even though such claimants had failed to exhaust their
administrative remedies by filing a timely appeal in the first place.

         We need not decide in this case whether the Board’s
administrative scheme excusing untimely appeals for good cause
is consistent with 45 U.S.C. § 355(f). We note, however, that this
provision governs the jurisdiction of the courts of appeals over
decisions of the RRB, and not the scope of authority of the RRB to
set its internal review procedures. In holding that exhaustion is a
non-waivable jurisdictional element, we only acknowledge the
limits on our power of review imposed by Congress, which is
distinct and separate from the ability of the RRB to reopen a prior
final decision.

                                 19
to this Court. To the contrary, after the Board issued its April 23,
2003 decision finding no good cause to reopen, Cunningham no
longer had any further administrative remedies before the RRB and
had simply run out of options. While the RRB’s erroneous cover
letter to Cunningham may have created a false sense of hope in her
right to appeal, it did not in any way force her to choose between
two unenviable options or otherwise prejudice her administrative
or judicial remedies. The standard form cover letter, which was
prepared by the secretary to the Board as part of her ministerial
duties, did not request additional information or evidence as the
agency had done in Sipple and Funderburk. Its purpose was solely
to inform Cunningham of the deadline for filing with the Court.
We thus find no waiver.

                      III. CONCLUSION

       For the reasons discussed above, we find that we lack
jurisdiction over this matter and accordingly will dismiss the
petition for review.
