USCA1 Opinion
January 31, 1995
[NOT FOR PUBLICATION]
UNTED STATES OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1851
CLIFFORD H. TIVEY AND ANNE KATHLEEN TIVEY,
Petitioners,
v.
RAILROAD RETIREMENT BOARD,
Respondent.
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ON PETITION TO REVIEW A DECISION OF
THE U.S. RAILROAD RETIREMENT BOARD
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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John J. Ford on brief for petitioners.
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Catherine C. Cook, General Counsel, Steven A. Bartholow, Deputy
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General Counsel, Thomas W. Sadler, Assistant General Counsel, and
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Patricia A. Marshall, General Attorney, on brief for respondent.
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Per Curiam. Petitioner Clifford H. Tivey appeals the
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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
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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
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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
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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
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1. We also assume arguendo that we have jurisdiction over a
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Board's refusal to reopen a case. See Clifford v. U.S. R.R.
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Retirement Bd., 3 F.3d 536, 538 (1st Cir. 1993) (assuming but
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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
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Clifford v. U.S. R.R. Retirement Bd., 3 F.3d 536, 538-39 (1st
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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.
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