                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       June 26, 2009
                     UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                     Clerk of Court



    JUDY ANDERSON FLEMING,

                Petitioner,

    v.                                                    No. 08-9581
                                                      (Petition for Review)
    RAILROAD RETIREMENT BOARD,

                Respondent.


                              ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         Judy Anderson Fleming, proceeding pro se, petitions for review of the

decision of the Railroad Retirement Board (“the Board”) denying her application

for survivor benefits under the Railroad Retirement Act (“RRA”). 1 We have

jurisdiction over the petition for review pursuant to 45 U.S.C. § 231(g), which


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      At the time of her initial application, petitioner identified herself as
Judy I. Anderson. She now identifies herself as Judy Anderson Fleming.
incorporates by reference the provisions pertaining to judicial review from the

Railroad Unemployment Insurance Act set forth at 45 U.S.C. § 355(f). See

Gatewood v. R.R. Ret. Bd., 88 F.3d 886, 888 (10th Cir. 1996). We affirm.

                                     Discussion

      On review of Ms. Fleming’s petition, we must uphold the Board’s decision

if “the Board’s factual findings are supported by substantial evidence and its

decision is not based on an error of law[.]” Id.

      Ms. Fleming filed an application for a widow’s annuity under the RRA on

August 11, 2004, based on the service record of Percy J. Fleming. Ms. Fleming’s

claim for a survivor’s benefit was based on her alleged common law marriage to

Mr. Fleming. In her initial application, Ms. Fleming stated that she and

Mr. Fleming had lived together in three states: California, Nevada, and Nebraska.

Her claim was denied initially because she and Mr. Fleming did not enter into a

union in a state which recognizes common law marriages.

      Ms. Fleming moved for reconsideration and her request was denied.

She appealed that denial to the Bureau of Hearings and Appeals. A telephonic

hearing took place in January 2007. At the hearing, Ms. Fleming testified that

while she and Mr. Fleming were living in Nebraska, they were also living in

Kansas, a state which does recognize common law marriage. The Hearings

Officer denied Ms. Fleming’s claim for benefits, concluding that Ms. Fleming had

failed to meet the requirements to establish a common law marriage in Kansas.

                                         -2-
Ms. Fleming then appealed the Hearings Officer’s decision. The Board agreed

with the Hearings Officer that Ms. Fleming “ha[d] not submitted any credible

evidence to support the claim that she and Mr. Fleming lived as husband and wife

in the state of Kansas[.]” Admin. R. at 4-5.

      On appeal, Ms. Fleming argues generally that the Board erred in concluding

that she was not the common law wife of Mr. Fleming, but she does not offer any

argument with supporting legal authority or record evidence to show how the

Board erred in its determination. After careful review of the certified

administrative record and the parties’ briefs, we conclude that substantial

evidence supports the Board’s factual findings and that its decision is not legally

erroneous. Accordingly, we affirm the Board’s decision for substantially the

same reasons contained in its opinion dated November 27, 2007.

                                     Conclusion

      The petition for review is DENIED. Ms. Fleming’s motion to proceed in

forma pauperis is also DENIED because Ms. Fleming has not presented “a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997). Ms. Fleming must pay the full appellate filing fee within twenty days

from the date of this order.

                                                    Entered for the Court


                                                    John C. Porfilio
                                                    Circuit Judge

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