PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOIS S. HARRIS,
Petitioner,

v.
                                                                        No. 98-2335
UNITED STATES RAILROAD
RETIREMENT BOARD,
Respondent.

On Petition for Review of an Order
of the United States Railroad Retirement Board.
(97-AP-0142)

Argued: September 22, 1999

Decided: November 29, 1999

Before HAMILTON and TRAXLER, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Petition for review dismissed by published opinion. Judge Goodwin
wrote the opinion, in which Judge Hamilton and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Robert M. Chandler, Jr., EARLY & CHANDLER, Rocky
Mount, North Carolina, for Petitioner. Karl Theodore Blank, III, Gen-
eral Attorney, RAILROAD RETIREMENT BOARD, Chicago, Illi-
nois, for Respondent. ON BRIEF: Walter J. Early, EARLY &
CHANDLER, Rocky Mount, North Carolina, for Petitioner. Steven
A. Bartholow, Deputy General Counsel, RAILROAD RETIREMENT
BOARD, Chicago, Illinois, for Respondent.

_________________________________________________________________

OPINION

GOODWIN, District Judge:

Petitioner Lois S. Harris petitions for review of the Railroad Retire-
ment Board's (Board) decision refusing to reopen her case because
her appeal was untimely filed without good cause. We lack jurisdic-
tion and dismiss the petition for review.

I.

On February 24, 1994, Harris applied for a total and permanent dis-
ability annuity under the Railroad Retirement Act (RRA). The Board
denied her application initially and upon reconsideration.

Under the relevant provisions of the Code of Federal Regulations,
Harris was required to file an appeal, if any, with the Bureau of Hear-
ings and Appeals within sixty days of the Board's decision denying
her application on reconsideration. Harris did not file her appeal until
fourteen months after the decision. A hearings officer dismissed the
appeal as untimely without good cause, and the Board affirmed the
dismissal on September 11, 1997. This petition followed.

In their initial briefs, the parties extensively discussed the issue of
whether good cause existed for the late appellate filing with the
Board. In an affidavit accompanying the late appeal to the Board,
Harris's attorney explained that his client had timely signed the appel-
late documents and that the tardy filing was entirely his fault. Harris
urges the court to reverse the Board, arguing that her attorney's error
was sufficient cause to waive the timeliness requirement. The Board
disagrees, urging the court to affirm the Board's finding that these cir-
cumstances did not excuse the late filing.

On September 2, 1999, the court ordered the parties to submit sup-
plemental briefs addressing whether the court has jurisdiction to
reverse the Board's determination pursuant to 45 U.S.C. § 355(f).

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II.

The Board has promulgated regulations that set forth administrative
steps that a claimant must follow to claim benefits and, if desired, to
receive internal review of decisions.1 At the first step, the Board's
Bureau of Disability and Medicare Operations decides a claim for dis-
ability benefits under the RRA. 20 C.F.R. § 260.1(a)(1). If the claim
is denied, a second step gives a claimant "the right to file a request
for reconsideration of an initial decision" of the Board within sixty
days after receiving notice of the decision. Id. § 260.3(a), (b). The
claimant may further appeal the decision upon reconsideration by fil-
ing an appeal with the Bureau of Hearings and Appeals within sixty
days after receiving notice of the reconsideration decision. Id.
§ 260.5(a), (b). Finally, the claimant has a right to a final appeal to
the Board from the decision of the hearings officer. Id. § 260.9.

If the claimant fails to file timely an appeal at any step in the
administrative process, the Board's decision becomes final. Id.
§ 261.1(b). Here, when Harris failed to file a timely appeal within
sixty days of the Board's decision denying her application on recon-
sideration, the decision denying benefits became final.

The hearings officer possessed the authority to waive the timeliness
requirement and reopen Harris's case if he found good cause for the
late filing of her appeal. Id. § 260.5(c). Section 260.3(d) sets forth the
applicable standards for good cause and provides as an example:

          (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 claim-
          ant from filing in a timely manner.

Id. § 260.3(d).
_________________________________________________________________
1 The RRA and the Railroad Unemployment Insurance Act (RUIA)
grant the Board authority to promulgate regulations specifying the proce-
dure for pursuing administrative claims within the agency. 45 U.S.C.
§ 231f(b)(5); id. § 355(b). These regulations are codified at 20 C.F.R.
Part 260.

                     3
Harris argues that her attorney's error is good cause to waive the
timeliness requirement because it was an unavoidable circumstance
that prevented her from filing in a timely manner.

III.

Although the Board's decision fails to take into account this cir-
cuit's general preference that a blameless party not be disadvantaged
by the procedural errors or neglect of her attorney, see, e.g., Augusta
Fiberglass Coatings, Inc. v. Fodor Contracting Corp. , 843 F.2d 808,
811 (4th Cir. 1988); see also Heyman v. M.L. Mktg. Co., 116 F.3d 91,
94 (4th Cir. 1997), we cannot reach or decide the issue. This court is
without jurisdiction to review the Board's determination not to reopen
Harris's case.

Section 8 of the RRA, 45 U.S.C. § 231(g), incorporates by refer-
ence the provisions pertaining to judicial review set forth in Section
355(f) of the RUIA, 45 U.S.C. § 355(f). Under 45 U.S.C. § 355(f),
courts may only review decisions of the Board that are "final deci-
sion[s] under subsection (c) [of 45 U.S.C.§ 355]" and "only after all
administrative remedies within the Board will have been availed of
and exhausted."2
_________________________________________________________________
2 45 U.S.C. § 355(f) provides in pertinent part:

          Any claimant, or any railway labor organization organized in
          accordance with the provisions of the Railway Labor Act..., of
          which claimant is a member or any base-year employer of the
          claimant, or any other party 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 within ninety days after the mailing
          of notice of such decision to the claimant or other party, or
          within such further time as the Board may allow, in the United
          States court of appeals for the circuit in which the claimant or
          other party resides or will have had his principal place of busi-
          ness or principal executive office, or in the United States Court
          of Appeals for the Seventh Circuit or in the United States Court
          of Appeals for the District of Columbia.

                    4
Subsection (c) of 45 U.S.C. § 355 provides a detailed list of deci-
sions that are reviewable by the courts of appeals, including a final
decision of the Board denying an employee's claim for benefits in
which the petitioner has exhausted her administrative remedies. Here,
Harris failed to exhaust her administrative remedies as required by
subsection (f).3 The question before us is whether the Board's deci-
sion declining to reopen Harris's case was a final decision on the mer-
its of a claim under subsection (c). We find that it was not.

The circuits that have addressed this issue are in disagreement. The
Tenth, Sixth and Seventh Circuits have held that, absent a constitu-
tional question raised by the refusal to reopen, the courts of appeals
lack jurisdiction to review the Board's decision not to reopen a case.
Abbruzzese v. Railroad Retirement Bd., 63 F.3d 972, 974 (10th Cir.
1995); Gutierrez v. Railroad Retirement Bd., 918 F.2d 567, 570 (6th
Cir. 1990); Steebe v. United States R.R. Retirement Bd., 708 F.2d 250,
254-55 (7th Cir.), cert. denied, 464 U.S. 997 (1983). The Eighth and
Second Circuits have held that a Board's decision not to reopen a case
is reviewable under an "abuse of discretion" standard of review. Sones
v. United States R.R. Retirement Bd., 933 F.2d 636, 638 (8th Cir.
1991); Szostak v. Railroad Retirement Bd., 370 F.2d 253, 254-55 (2d
Cir. 1966). The First Circuit declined to reach the issue, but assumed
arguendo that it possessed jurisdiction to review and found that the
Board did not abuse its discretion in failing to reopen the petitioner's
case. Clifford v. United States R.R. Retirement Bd., 3 F.3d 536, 538
(1st Cir. 1993).

We agree with the Tenth and Seventh Circuits, which have found
the United States Supreme Court's decisional rationale in Califano v.
Sanders, 430 U.S. 99 (1977), a social security case, to be applicable
to a Board decision not to reopen a case.4 See, e.g., Abbruzzese, 63
_________________________________________________________________
3 See Gutierrez v. Railroad Retirement Bd., 918 F.2d 567, 570 (6th Cir.
1990). Harris forfeited her two remaining opportunities for administra-
tive review by failing to timely file her appeal.
4 Because of similarities and overlapping authority between the Social
Security Act and the RRA, "it is the accepted practice to use social secur-
ity cases as precedent for railroad retirement cases." Burleson v. Railroad
Retirement Bd., 711 F.2d 861, 862 (8th Cir. 1983); see Abbruzzese, 63
F.3d at 974.

                    5
F.3d at 974; Steebe, 708 F.2d at 255. In Sanders, the Court held that
neither the Administrative Procedure Act nor Section 205(g) of the
Social Security Act grant federal courts subject matter jurisdiction to
review a decision not to reopen a claim for Social Security benefits.
Sanders, 430 U.S. at 107-08. With respect to the Social Security Act,
the Court reasoned:

          [Section 205(g)] clearly limits judicial review to a particular
          type of agency action, a "final decision of the Secretary
          made after a hearing." But a petition to reopen a prior final
          decision may be denied without a hearing... Indeed, the
          opportunity to reopen final decisions and any hearing con-
          vened to determine the propriety of such actions are
          afforded by the Secretary's regulations and not by the Social
          Security Act. Moreover, an interpretation that would allow
          a claimant judicial review simply by filing and being denied
          a petition to reopen his claim would frustrate the congressio-
          nal purpose, plainly evidenced in § 205(g), to impose a 60-
          day limitation upon judicial review of the Secretary's final
          decision on the initial claim for benefits... Congress' deter-
          mination so to limit judicial review to the original decision
          denying benefits is a policy choice obviously designed to
          forestall repetitive or belated litigation of stale eligibility
          claims.

Id. at 108.5

The Social Security Act limits judicial review to particular types of
agency action -- a final decision of the Secretary made after a hear-
ing. Similarly, the RRA and the RUIA limit judicial review to particu-
lar types of agency action -- final decisions under 45 U.S.C. § 355(c)
in which the petitioner has exhausted administrative remedies.
_________________________________________________________________
5 Interestingly, on August 14, 1997, the Social Security Administration
circulated a memorandum to all levels of adjudication that provided its
decision makers with an extensive definition of good cause, to be applied
in various situations, including "[w]henever a person does not meet a
specific time limit." Section (5) of the memorandum states that good
cause exists for not meeting a specific time limit when "[t]he individual
thought his/her representative had filed the appeal."

                    6
As with the Social Security Act, the RRA and RUIA do not pro-
vide for the reopening of final decisions. The decision whether to
reopen a petitioner's case stems solely from the Board's regulation,
20 C.F.R. § 260.5(c). Allowing judicial review of an agency action
not specifically provided for by statute would impermissibly expand
the jurisdiction of this court. This court may not base its jurisdictional
predicate on the authority of an administrative agency instead of on
the authority of the United States Congress.

Finally, Harris is correct in noting that there is an exception to the
bar to judicial review that applies when the refusal to reopen is chal-
lenged by colorable constitutional claims. See Sanders, 430 U.S. at
109; Abbruzzese, 63 F.3d at 974. However, we find that the Sanders
exception is not applicable here because there was no constitutional
deprivation. See, e.g., Holloway v. Schweiker, 724 F.2d 1102, 1104
(4th Cir.) (finding no Sanders exception when social security claimant
failed to timely petition for reopening of his claim), cert. denied, 467
U.S. 1217 (1984).

IV.

For the foregoing reasons, we find that we lack jurisdiction to
review the Board's decision not to reopen Harris's case. The petition
for review is

DISMISSED.

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