                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                     IN THE UNITED STATES COURT OF APPEALS        December 3, 2003
                             FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk
                                 No. 03-60331
                               Summary Calendar



MELVIN MIMS,

                                                               Petitioner,

versus


UNITED STATES RAILROAD RETIREMENT BOARD,

                                                               Respondent.

                          --------------------
               On Petition for Review of an Order of the
                     U.S. Railroad Retirement Board
                             (A 436 88 0139)
                          --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

       Petitioner Melvin Mims asks us to review a 2002 decision of

the three-member Board that heads the Railroad Retirement Board

(the       “Board”      or   “government”),   which   dismissed       Mims’s

administrative appeal from an earlier decision of his hearings

officer.      As the Board decision at issue was a refusal to reopen

Mims’s case for failure timely to appeal the underlying hearings

officer decision, we have no jurisdiction to consider Mims’s

petition.

       *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                              I. Facts and Proceedings

       Mims injured his back in 1984.                In July 1992, he filed an

application for a disability annuity under Section 2(a)(1)(v) of

the Railroad Retirement Act (the “Act”),1 asserting that he was

disabled      for     all    work.      He   also   applied   for   a   “period      of

disability” and early Medicare coverage under applicable sections

of the Social Security Act.               When these applications were denied,

Mims        pursued         his      administrative      remedies,         requesting

reconsideration and eventually filing an appeal to the Board

itself.       The Board found that Mims was not totally disabled, a

decision that Mims did not appeal to this court.2

       Years later, in July 1998, Mims filed a second application for

a disability annuity, and in a letter dated October 20th, 1998, the

Board’s Director of Operations notified him that this application

was denied.         Mims requested reconsideration, and was informed by

letter dated December 10th, 1998, that his request had been denied.

Mims timely appealed that denial, and the hearings officer in his

case       reversed    the    reconsideration       determination    in     part    and

affirmed it in part.              In a decision issued August 30, 1999, the

hearing      officer    found      that    Mims   was   disabled    from    all    work


       1
           Codified at 45 U.S.C. § 231a(a)(1)(v).
       2
       Mims did attempt to litigate               in the United States District
Court for the Western District of                  Louisiana, but his case was
dismissed for lack of subject matter              jurisdiction. See Melvin Mims
v. Railroad Retirement Board, No.                 96-1261 (W.D. La., Aug. 15,
1996).

                                             2
effective January 1, 1997, and that he was entitled to a monthly

disability annuity under the Railroad Retirement Act.     The hearing

officer also determined, however, that Mims was ineligible for a

“period of disability” under the Social Security Act.

     Mims was informed of that decision by a letter that was also

dated August 30, 1999.       Then, by letter dated September 3, 1999,

the Office of Programs Operations notified Mims of his initial,

partial, annuity rate and initial retroactive payment.      And in a

letter dated October 1, 1999, the Board’s Director of Operations

informed Mims of his final annuity amount and also of his second

retroactive payment.

     On October 29, 2001, Mims appealed the hearing officer’s

August 1999 decision.      Mims claimed that he should have received

payments retroactive to 1984, the year of his first disability

application.    He also asserted that his annuity payment should be

increased to account for his (formerly) minor children.     The Board

informed    Mims by letter dated May 10th, 2002, that his appeal was

dismissed as untimely, and this appeal followed.

                     II.     Analysis:   Jurisdiction

     45 U.S.C. § 231g gives us jurisdiction to review decisions of

the Board concerning the “rights or liabilities of any person under

[the Railroad Retirement Act].”3

A. Timeliness


     3
         45 U.S.C. § 231g.

                                     3
     Because Mims’s Petition for Review was filed within one year

after May 10th, 2002, the date of the decision at issue, it is

timely under 45 U.S.C. § 231g.

B. Subject Matter Jurisdiction

1.   The Board’s Contentions

     In addition to mandating a one-year appellate time frame, 45

U.S.C. § 231g incorporates by reference the appeals provisions of

the Railroad Unemployment Retirement Act (codified at 45 U.S.C. §

355(f))4:

     Decisions of the Board ... shall be subject to judicial
     review in the same manner, subject to the same
     limitations, and all provisions of law shall apply in the
     same manner as though the decision were a determination
     of corresponding rights or liabilities under the Railroad
     Unemployment Insurance Act ....5

As § 355(f) allows for appellate review by the court of appeals for

the circuit in which the appellant resides, and Mims resides in the

Fifth Circuit, the Board concedes that appeal to this court would

be proper if Mims has the right to appeal this issue.    The Board

argues, however, that what Mims seeks to have reviewed —— a Board

refusal to reopen a prior denial of his claim —— is not an

appealable “final decision” of the Board as that phrase is used in

45 U.S.C. § 355.




     4
      This is true with the exception of the 90-day appellate time
frame contained in § 355, as § 231g specifies the one-year limit
already noted.
     5
         45 U.S.C. § 231g.

                                 4
     45 U.S.C. § 355(f), which governs this appeal, dictates that

a claimant “aggrieved by a final decision under subsection (c) of

this section” may seek appellate review of that decision “only

after all administrative remedies within the Board ... have been

availed of and exhausted ...”6     Subsection (c), in turn, sets out

the administrative review process for these types of claims.

Paragraph(1) of that subsection provides “an opportunity for a fair

hearing,”7 and paragraph(2) authorizes appeals to the Board, noting

that “[t]he Board shall prescribe regulations governing the appeals

provided for in this paragraph.”8      Paragraph (5) then allows for

appellate review “in the manner provided in subsection (f) of this

section.”9

     In the instant case, the government contends that Mims failed

to follow the regulations established by the Board —— promulgated

under the authority of § 355(c)(2) —— which require appeals of

hearing officer decisions to be filed within 60 days.10        As a

result, according to the government (given that the Board found no


     6
          45 U.S.C. § 355(f).
     7
          45 U.S.C. § 355(c)(1).
     8
          45 U.S.C. § 355(c)(2).
     9
          45 U.S.C. § 355(c)(5).
     10
        20 C.F.R. 260.9(b) specifies that “[f]inal appeal from a
decision of a hearings officer .... must be filed with the Board
within 60 days.” 20 C.F.R. 260.9(c) allows that the Board “may
waive” the time requirement of paragraph (b) if “in the judgment of
the Board the reasons given establish that the appellant had good
cause” for his failure to timely appeal.

                                   5
“good cause” excusing the delay), the hearings officer’s decision

became “final” and yet unappealable in this court because Mims did

not first appeal that decision administratively to the Board

itself.      The government argues that Mims’s failure to take that

final administrative step means that he did not avail himself of

all administrative remedies before bringing his petition for review

to this court, as required by 45 U.S.C. § 355(f).         The government

contends that the denial of Mims’s request to reopen his case ——

not a decision on the merits —— is thus not an appealable final

decision as that phrase is used in 45 U.S.C. § 355.        According to

the government, the only appealable final decision in Mims’s case

would have been a final Board decision on his appeal, had he

followed the administrative appeals process to completion.       Having

failed to do so, he deprived himself of the authority to appeal to

us.

2.    Applicable Case Law

      In Roberts v. United States Railroad Retirement Board,11 we

considered whether, under the Railroad Retirement Act, we have

jurisdiction to review a refusal to reopen a closed case, and held

that we do not.     The concerns discussed in Roberts are present in

the instant case, just as they are when petitioners seek review of

refusals to reopen closed cases under the Social Security Act:12 If

      11
           2003 U.S. App. LEXIS 18908 (Sept. 11, 2003).
      12
       See Moon v. Bowen, 810 F.2d 472 (5th Cir. 1987); Harper v.
Bowen, 813 F.2d 737 (5th Cir. 1987); Thibodeaux v. Bowen, 819 F.2d

                                   6
we were to sanction appeals of refusals to reopen closed cases, we

would undermine the ability of Congress to authorize the Board to

fashion   meaningful   regulations       concerning   the   administrative

appeals process.    As we noted in Harper v. Bowen, “[i]f courts were

able to review denials of requests to reopen long dormant claims,

a claimant could ‘frustrate the congressional purpose ... to impose

a 60-day limitation upon judicial review of the Secretary’s final

decision ....’”13   If we were to allow Mims to appeal in the instant

case, we would render meaningless both the 60-day limitation on

administrative appeals and § 355(f)’s exhaustion requirement.

     Although we are sympathetic to pro se litigants navigating

unfamiliar legal waters, it is clear in this case that Mims slept

on his right of appeal.      Although Mims states that he did not

appeal immediately because the Board was still endeavoring to

determine the proper amount of his annuity payments,14 the October

1st, 1999, letter informing him of his final annuity amount and

additional retroactive payment of $9,487 clearly states that any

request for reconsideration and appeal “must be received by the


76 (5th Cir. 1987).
     13
        813 F.2d 737, 741 (5th Cir. 1987)(quoting Califano v.
Sanders, 430 U.S. 99, 108 (1977)).
     14
       As support, Mims notes that the September 3rd, 1999, letter
discusses only a partial annuity rate and indicates that
computation of the actual monthly rate “may possibly take 90 days
or more.” His reliance on that language is misplaced, however, as
he received notice of a final annuity rate (and a retroactive
payment of almost ten thousand dollars) within one month following
that letter, but still failed to appeal.

                                     7
Railroad Retirement Board WITHIN 60 DAYS from the date of this

notice.”     Mims did not act within that time; in fact, it appears

from the record that he did not raise any concerns about his

annuity award until an April 2000 phone call.   Furthermore, he must

have been aware of the 60-day time limitation because he had

appealed numerous prior decisions in his case, and much of the

correspondence sent to him —— including letters in October and

December 1998 —— specified that limitation.       Even though these

facts do not affect our jurisdictional analysis, we note them now

to demonstrate that, even as a pro se layman, Mims had ample notice

and opportunity to avoid the jurisdictional bar he now faces.

                           III.   Conclusion

     Mims failed timely to appeal the hearings officer decision in

his case.    As the Board decision of which he now seeks review is a

decision not to reopen his case, we have no jurisdiction to

consider his petition.    For lack of jurisdiction, Mims’s petition

for review is

DISMISSED.




                                   8
