
USCA1 Opinion

	




                            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).                                         -2-          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 .  . .                                         -3-          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;                                         -4-          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").                                           -5-          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).                  _______    _____                                         -6-          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                                         -7-          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.                    ________                                         -8-
