     Case: 09-60609     Document: 00511063269          Page: 1    Date Filed: 03/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 26, 2010

                                     No. 09-60609                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JAMES L. SMITH,

                                                   Petitioner
v.

UNITED STATES RAILROAD RETIREMENT BOARD,

                                                   Respondent




                      Petition for Review from an Order of the
                      United States Railroad Retirement Board
                                 No. A-XXX-XX-5595


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Petitioner James L. Smith, appearing pro se and in forma pauperis,
appeals the decision of Respondent Railroad Retirement Board (“Retirement
Board”) in which the Retirement Board rejected Petitioner’s contention that his
annual Cost of Living Adjustment (COLA), which was applied to his monthly
Railroad Retirement Annuity under the Railroad Retirement Act, was
incorrectly calculated.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 09-60609   Document: 00511063269      Page: 2   Date Filed: 03/26/2010

                                   No. 09-60609



                                  I. Background
        Petitioner was formerly employed by the Railroad Commission as a
switchman and has received a monthly Railroad Retirement Annuity since at
least 1985. In December 2008, Petitioner’s annuity was adjusted according to the
annual Cost of Living Adjustment authorized by 45 U.S.C. § 231b et seq. Shortly
thereafter, Petitioner sent a letter to the Railroad Retirement Commission
arguing that his COLA was incorrectly calculated and requesting                     a
reconsideration of the calculation. In a letter dated February 24, 2009, a
Reconsideration Specialist found that Petitioner’s Tier I and Tier II annuity
payments under the Railroad Retirement Act were correctly adjusted by
applying the 2009 COLA of 5.8% to Tier I and 1.9% to Tier II. Petitioner
appealed this decision to the Bureau of Hearings and Appeals. The hearings
officer affirmed the findings of the Reconsideration Specialist. Petitioner filed
a reconsideration appeal with a three member panel of the Retirement Board,
again asserting that his COLA was incorrectly calculated. In a written decision
dated June 29, 2009, the Retirement Board denied Petitioner’s appeal. Petitioner
timely appealed to this Court.
                                   II. Analysis
A.      Standard of Review
        This Court will not set aside the Retirement Board’s decision if its factual
findings are supported by substantial evidence and its decision is not based on
an error of law. Kurka v. U.S. Railroad Retirement Board, 615 F.2d 246, 249–50
(5th Cir. 1980). “Substantial evidence” is defined as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
B.      Analysis



                                          2
   Case: 09-60609      Document: 00511063269   Page: 3   Date Filed: 03/26/2010

                                  No. 09-60609

      Petitioner appeals the Retirement Board’s determination that his 2009
COLA was properly calculated. Retirement annuity consists of two tiers, Tier I
and Tier II. The Tier I amount is “equal to the amount . . . of the old-age
insurance benefit or disability insurance benefit to which such individual would
have been entitled under the Social Security Act.” 45 U.S.C. § 231b(a)(1). The
Tier II amount is based on a statutory schedule based on “years of service” and
“average monthly compensation.” 45 U.S.C. § 231b(b)(1). In the years that social
security benefits are adjusted for changes in the cost of living, Tier I of the
annuity is adjusted accordingly. 45 U.S.C. § 231b(a)(1). Tier II of the annuity is
increased by 32.5% of the COLA percentage applied to Tier I of the annuity. 45
U.S.C. § 231b(g)(1).
      In 2008, Petitioner’s Tier I and Tier II monthly annuity payments totaled
$1,404.30. The Tier I of that amount increased by 5.8% for the 2009 year, and,
as a result, the Tier II amount increased by 1.9%. This increased Petitioner’s
2009 monthly annuity payments to $1,486.75, an overall increase of $82.45 from
2008. The Retirement Board found that this was the proper COLA for Petitioner.
      Petitioner argues that his COLA should have increased by a total of
$92.00, not $82.45, and that the Agency owes him the monthly difference of
$9.55. Petitioner bases this contention on a United Transportation Union (UTU)
Alumni Newsletter published in November 2008 which details the COLA
percentages for the 2009 year and states that “the average regular Railroad
Retirement employee annuity will increase $92 a month to $2,101 . . . .”
Petitioner misconstrues the definition of “average.” Although each retiree’s Tier
I COLA percentage rate is the same, the actual dollar amount that each receives
depends on the individual retiree’s annuity amount. No evidence exists that
Petitioner’s 2009 COLA was incorrectly calculated.




                                        3
Case: 09-60609   Document: 00511063269   Page: 4   Date Filed: 03/26/2010

                             No. 09-60609

                           III. Conclusion
   For the foregoing reasons, the Retirement Board’s decision is AFFIRMED.




                                  4
