Rivera v. R.R. Retirement Bd.
Decision Date | 28 August 2001 |
Docket Number | No. 99-71278,99-71278 |
Citation | 262 F.3d 1005 |
Parties | (9th Cir. 2001) CLETO RIVERA, JR., PETITIONER v. RAILROAD RETIREMENT BOARD, RESPONDENT |
Court | U.S. Court of Appeals — Ninth Circuit |
Counsel: Willie M.J. Curtis, Dean, Melissa Berren, Chris Jenks, Janine Letellier, and Ernest Skinner, Law Students, The University of Arizona, James E. Rogers College of Law, Pro Bono Appellate Project, Tucson, Arizona, Pro Bono, for the petitioner.
Kelli Johnson, Esq., Railroad Retirement Board, Chicago, Illinois, for the respondent.
Appeal from the Railroad Retirement Board RRB No. WCA-701-03-3081
Before: Frank J. Magill,* M. Margaret McKeown, and Raymond C. Fisher, Circuit Judges.
OPINION
The Railroad Retirement Board's Bureau of Hearings and Appeals upheld the termination of Appellant Cleto Rivera's disabled child's annuity under the Railroad Retirement Act (the "Act"). The Railroad Retirement Board (the "Board") dismissed Rivera's subsequent appeal as untimely. We dismiss for lack of jurisdiction.
The government began providing Rivera with a disabled child's annuity effective July 1, 1985. The Act provides an annuity to a surviving disabled child of a railroad employee covered by the Act. 45 U.S.C. §§ 231a(d)(1)(iii) (2000). A survivor receives an annuity if he becomes disabled before the age of twenty-two and is unable to engage in any regular employment. Id.; id. at §§ 231a(d)(3). Rivera, the son of a deceased railroad worker, suffers from multiple medical impairments, including cerebral palsy, which began before he turned twenty-two years old.
In October 1994, the Board's Bureau of Disability and Medicare Operations Director (the "Director") informed Rivera that, effective January 1, 1990, he no longer was eligible for an annuity because his job with the Oxnard School District constituted "substantial gainful activity." 20 C.F.R. §§ 220.140 (2001) (). The Oxnard School District had hired Rivera as a part-time food service worker in 1984. Rivera asserts that he was given preferential treatment in the hiring process and is unable to perform many of his job's tasks, such as lifting heavy objects and standing for long periods of time.
After the Director rejected Rivera's request for reconsideration, Rivera appealed to the Board's Bureau of Hearings and Appeals. On May 15, 1997, a Bureau of Hearings and Appeals Hearings Officer (the "Hearings Officer") held that although Oxnard partially subsidized Rivera's job responsibilities, Rivera's entitlement to an annuity ended on March 31, 1991. The Hearings Officer sent copies of her decision and the Board's appellate procedures to Rivera and his attorney, noting that Rivera had sixty days from May 15 to file his appeal with the Board.
On July 14, 1997, the deadline for filing his appeal, Rivera sent the Board a letter requesting additional time to file his appeal. Rivera claimed that he needed more time because he: (1) had problems with his employment, including a sexual harassment claim; (2) was unable "to concentrate on the appeal process until very recently"; and (3) lived about thirty miles from his attorney's office and was unable to get transportation to her office until July 14, 1997. The Board eventually received Rivera's appeal on July 24, 1997. In his appeal, Rivera stated that he intended to file additional evidence with the Board concerning "[t]he true percentage of subsidization Mr. Rivera receives and his actual income."
On October 3, 1997, the Secretary to the Board sent a letter to Rivera, advising him that the Board The Secretary also quoted §§ 260.9(d) of the Board's regulations, which relates to the submission of additional evidence, and informed Rivera that "admission of new evidence on appeal to the Board is discretionary with the Board, and you should explain why submission of such evidence was not possible at an earlier stage of adjudication." Rivera did not supply the Board with additional evidence.
On November 19, 1998, the Board dismissed Rivera's appeal as untimely, with one member dissenting. The Board noted that its regulations require a claimant filing a late appeal to show that circumstances beyond his control caused the late filing, and concluded that "the reasons presented by Mr. Rivera for late filing do not constitute good cause. " See 20 C.F.R. §§ 260.9(c) (); id. at §§ 260.3(d) ( ). The dissent stated:
[T]he Board's agreement to hold the record open was an implicit waiver of the late filing. It does not make sense to make an offer to accept additional evidence and then to dismiss the appeal for a procedural deficiency. Moreover, the decision of the majority seems particularly unbalanced and unfair, since it refuses to consider the merits of Mr. Rivera's appeal for missing the filing deadline by 10 days in an opinion issued more than 12 months after that filing.
In a December 8, 1998 letter, Rivera requested reconsideration of the Board's decision, stating that his attorney was the cause of his untimely appeal. The Board rejected Rivera's request, and this appeal ensued.
The Board argues that we lack jurisdiction to review its November 19, 1998 decision. The Supreme Court has instructed lower courts to resolve jurisdictional issues before reaching the merits of a case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ( ); accord United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir. 2000). The Steel Court explained that " " 523 U.S. at 94 ). Accordingly, we turn to examine whether we have jurisdiction to entertain Rivera's appeal.
Section 231g of the Act incorporates the judicial review provisions of the Railroad Unemployment Insurance Act, which provides: "Any claimant . . . may, only after all administrative remedies within the Board will have been availed of and exhausted, obtain a review of any final decision of the Board . . . in the United States court of appeals for the circuit in which the claimant . . . resides . . . ." 45 U.S.C. §§ 355(f) (2000). Thus, to qualify for review in this court, Rivera must show that the Board's dismissal of his claim constitutes a "final decision of the Board" We hold that it does not, because it was not a "final decision of the Board " on the merits of Rivera's claim.
The Board's regulations provide for a series of administrative steps a claimant may take to challenge an adverse decision by the Director. First, the claimant has sixty days after the date on which notice of the initial decision is mailed to him to request reconsideration. 20 C.F.R. §§ 260.3(a)-(b). Second, if the Director affirms his initial decision, then the claimant has sixty days to file an appeal with the Bureau of Hearings and Appeals. Id. at §§ 260.5(a)-(b). Finally, a claimant who wishes to challenge an adverse Bureau of Hearings and Appeals decision must file an appeal "with the Board within 60 days from the date upon which notice of the decision of the hearings officer is mailed to the appellant." Id. at §§ 260.9(b). If the claimant fails to file a timely appeal at any stage of the process, the prior decision becomes final. See id. at §§ 261.1(b) ( ).
In this case, the Hearings Officer issued her decision on May 15, 1997, giving Rivera until July 14 to file an appeal with the Board. When Rivera failed to appeal to the Board by July 14, the Hearings Officer's decision became final and Rivera lost his right to further review. See id. at §§ 260.9(c) (). Thus, the Board's dismissal of Rivera's claim is not a"final decision" on the merits of that claim.
We find support for our conclusion in case law analyzing the ability to appeal an administrative decision not to reopen a "final decision." In this case, Rivera's late appeal requested an extension of time. Since the Hearings Officer's decision had become final, Rivera's request essentially asked the Board to reopen a "final decision." See Matlock v. Sullivan, 908 F.2d 492, 494 (9th Cir. 1990) ( ).
The Supreme Court, interpreting the Social Security Act, has held that courts do not have jurisdiction to review an agency decision not to reopen a "final decision. " Califano v. Sanders, 430 U.S. 99, 108 (1977).1 In Sanders, the Court examined a claim for disability benefits. Id. at 100. In 1964, an administrative law judge (the "ALJ") denied the claimant's request for benefits. Id. at 102. The claimant filed essentially the same...
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