                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         DEC 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SILVERIO G. PEREZ,                              No.    17-15278

                Plaintiff-Appellant,            D.C. No. 3:15-cv-03012-WHA

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    William Alsup, District Judge, Presiding

                          Submitted December 18, 2017**

Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Silverio G. Perez appeals pro se from the district court’s orders denying his

motions for reconsideration of an order granting summary judgment and affirming

the Commissioner of Social Security’s calculation of the amount of his retirement

insurance benefits under Title II of the Social Security Act. We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We have jurisdiction only to review the district court’s orders denying

Perez’s three post-judgment motions. Perez did not file a notice of appeal within

60 days of the district court’s judgment. See 28 U.S.C. § 2107(b) (setting forth 60-

day time limit); Fed. R. App. P. 4(a)(1)(B). His first, untimely motion for

reconsideration, filed more than 28 days after entry of judgment, did not toll the

time for appeal from the judgment. See Fed. R. App. P. 4(a)(4)(A)(iv) & (vi). The

notice of appeal also was not filed within 60 days of the district court’s order

denying the first motion for reconsideration, but the second motion for

reconsideration tolled the time within which to file a notice of appeal from that

first post-judgment order. See Fed. R. App. P. 4(a)(1)(B); Swimmer v. Internal

Revenue Serv., 811 F.2d 1343, 1344 (9th Cir. 1987) (holding that second motion

for reconsideration tolled time to appeal from denial of first post-judgment

motion). The notice of appeal was timely filed within 60 days of the district

court’s orders denying Perez’s second and third post-judgment motions. See Fed.

R. App. P. 4(a)(1)(B).

      The district court did not abuse its discretion in denying post-judgment relief

because Perez’s retirement benefit amount was properly offset by his foreign

pension. See Kerr v. Jewell, 836 F.3d 1048, 1053 (9th Cir. 2016) (setting forth

standard of review), cert. denied, 137 S. Ct. 1365 (2017); United States v. Kim, 806

F.3d 1161, 1177 (9th Cir. 2015). The administrative law judge correctly applied


                                          2                                     17-15278
the Social Security Act’s Windfall Elimination Provision, 42 U.S.C. § 415(a)(7),

which reduces a Social Security retirement benefit when a claimant is

simultaneously receiving another similar benefit, and Perez was not denied a

meaningful opportunity to be heard. See Dexter v. Colvin, 731 F.3d 977, 980 (9th

Cir. 2013) (holding that due process entitles a Social Security claimant to a

meaningful opportunity to be heard or to seek reconsideration of an adverse

benefits determination); Das v. Dep’t of Health & Human Servs., 17 F.3d 1250,

1255-56 (9th Cir. 1994) (holding that Windfall Elimination Provision comports

with due process).

      AFFIRMED.




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