
USCA1 Opinion

	




          January 31, 1995                                [NOT FOR PUBLICATION]                               UNTED STATES OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1851                      CLIFFORD H. TIVEY AND ANNE KATHLEEN TIVEY,                                     Petitioners,                                          v.                              RAILROAD RETIREMENT BOARD,                                     Respondent.                                 ____________________                         ON PETITION TO REVIEW A DECISION OF                                  THE U.S. RAILROAD RETIREMENT BOARD                                  ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            John J. Ford on brief for petitioners.            ____________            Catherine C.  Cook, General Counsel,  Steven A. Bartholow,  Deputy            __________________                    ___________________        General  Counsel, Thomas  W.  Sadler, Assistant  General Counsel,  and                          __________________        Patricia A. Marshall, General Attorney, on brief for respondent.        ____________________                                 ____________________                                 ____________________                 Per Curiam.   Petitioner  Clifford H. Tivey  appeals the                 __________            decision of the Railroad Retirement Board [the Board] that he            was  entitled  only to  a  retirement  annuity beginning  six            months before the date of his application filed November  12,            1986.   See 45 U.S.C.   231d(a) (iii) (limiting the beginning                    ___            of an annuity to "the first day of the sixth month before the            month in which the application was filed").  We affirm.                 We have reviewed carefully the  record in this case  and            the briefs of the parties.  Essentially for the reasons given            in the decision of the hearing officer, dated April 13, 1992,            we  find  that  substantial  evidence  supports  the  Board's            determination that Tivey  did not file an  application for an            annuity under  the Railroad Retirement Act  prior to November            12, 1986.  See  Andrews v. Railroad Retirement Bd.,  595 F.2d                       ___  _______    ______________________            676, 681 (D.C. Cir.  1978) (findings of Board must  be upheld            if supported by substantial evidence).                   Moreover, even if we assume arguendo that Tivey did file                                             ________            an application for an  annuity in 1978,  we find no abuse  of            discretion  in   the  Board's  refusal  to   reopen  in  this            instance.1   The record indicates that  subsequent to Tivey's            filing in 1978 and  his learning that the Board  had declared            him ineligible for an annuity, Tivey waited until 1990 before                                            ____________________            1.  We also assume arguendo that we have jurisdiction  over a                               ________            Board's  refusal to reopen a case.  See Clifford v. U.S. R.R.                                                ___ ________    _________            Retirement Bd., 3 F.3d 536, 538 (1st Cir. 1993) (assuming but            _____________            not deciding that the court has jurisdiction over the Board's            refusal to reopen a case)            filing documents which  supported his  claim of  eligibility.            In  the  absence   of  due  diligence  on  Tivey's   part  in            prosecuting  his claim, we find no abuse of discretion in the            Board's  failure  to  reopen his  case  back  to  1978.   See                                                                      ___            Clifford v. U.S. R.R. Retirement Bd., 3 F.3d 536, 538-39 (1st            ________    _______________________            Cir. 1993).                    Finally, we find no error in the Board's decision not to            grant Tivey a  hearing to  establish the filing  date of  his            application for an annuity.                   Affirmed.                 ________                                         -3-
