Mims v. US RR Retirement Bd

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60331
Summary Calendar
MELVIN MIMS,
Petitioner,
versus
UNITED STATES RAILROAD RETIREMENT BOARD,
Respondent.
--------------------
On Petition for Review of an Order of the
U.S. Railroad Retirement Board
(A 436 88 0139)
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner Melvin Mims asks us to review a 2002 decision of
the three-member Board that heads the Railroad Retirement Board
(the “Board” or “government”), which dismissed Mims’s
administrative appeal from an earlier decision of his hearings
officer. As the Board decision at issue was a refusal to reopen
Mims’s case for failure timely to appeal the underlying hearings
officer decision, we have no jurisdiction to consider Mims’s
petition.

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1 Codified at 45 U.S.C. § 231a(a)(1)(v).
2 Mims did attempt to litigate in the United States District
Court for the Western District of Louisiana, but his case was
dismissed for lack of subject matter jurisdiction. See Melvin Mims
v. Railroad Retirement Board, No. 96-1261 (W.D. La., Aug. 15,
1996).
2
I. Facts and Proceedings
Mims injured his back in 1984. In July 1992, he filed an
application for a disability annuity under Section 2(a)(1)(v) of
the Railroad Retirement Act (the “Act”),1 asserting that he was
disabled for all work. He also applied for a “period of
disability” and early Medicare coverage under applicable sections
of the Social Security Act. When these applications were denied,
Mims pursued his administrative remedies, requesting
reconsideration and eventually filing an appeal to the Board
itself. The Board found that Mims was not totally disabled, a
decision that Mims did not appeal to this court.2
Years later, in July 1998, Mims filed a second application for
a disability annuity, and in a letter dated October 20th, 1998, the
Board’s Director of Operations notified him that this application
was denied. Mims requested reconsideration, and was informed by
letter dated December 10th, 1998, that his request had been denied.
Mims timely appealed that denial, and the hearings officer in his
case reversed the reconsideration determination in part and
affirmed it in part. In a decision issued August 30, 1999, the
hearing officer found that Mims was disabled from all work

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3 45 U.S.C. § 231g.
3
effective January 1, 1997, and that he was entitled to a monthly
disability annuity under the Railroad Retirement Act. The hearing
officer also determined, however, that Mims was ineligible for a
“period of disability” under the Social Security Act.
Mims was informed of that decision by a letter that was also
dated August 30, 1999. Then, by letter dated September 3, 1999,
the Office of Programs Operations notified Mims of his initial,
partial, annuity rate and initial retroactive payment. And in a
letter dated October 1, 1999, the Board’s Director of Operations
informed Mims of his final annuity amount and also of his second
retroactive payment.
On October 29, 2001, Mims appealed the hearing officer’s
August 1999 decision. Mims claimed that he should have received
payments retroactive to 1984, the year of his first disability
application. He also asserted that his annuity payment should be
increased to account for his (formerly) minor children. The Board
informed Mims by letter dated May 10th, 2002, that his appeal was
dismissed as untimely, and this appeal followed.
II. Analysis: Jurisdiction
45 U.S.C. § 231g gives us jurisdiction to review decisions of
the Board concerning the “rights or liabilities of any person under
[the Railroad Retirement Act].”3
A. Timeliness

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4 This is true with the exception of the 90-day appellate time
frame contained in § 355, as § 231g specifies the one-year limit
already noted.
5 45 U.S.C. § 231g.
4
Because Mims’s Petition for Review was filed within one year
after May 10th, 2002, the date of the decision at issue, it is
timely under 45 U.S.C. § 231g.
B. Subject Matter Jurisdiction
1. The Board’s Contentions
In addition to mandating a one-year appellate time frame, 45
U.S.C. § 231g incorporates by reference the appeals provisions of
the Railroad Unemployment Retirement Act (codified at 45 U.S.C. §
355(f))4:
Decisions of the Board ... shall be subject to judicial
review in the same manner, subject to the same
limitations, and all provisions of law shall apply in the
same manner as though the decision were a determination
of corresponding rights or liabilities under the Railroad
Unemployment Insurance Act ....5
As § 355(f) allows for appellate review by the court of appeals for
the circuit in which the appellant resides, and Mims resides in the
Fifth Circuit, the Board concedes that appeal to this court would
be proper if Mims has the right to appeal this issue. The Board
argues, however, that what Mims seeks to have reviewed —— a Board
refusal to reopen a prior denial of his claim —— is not an
appealable “final decision” of the Board as that phrase is used in
45 U.S.C. § 355.

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6 45 U.S.C. § 355(f).
7 45 U.S.C. § 355(c)(1).
8 45 U.S.C. § 355(c)(2).
9 45 U.S.C. § 355(c)(5).
10 20 C.F.R. 260.9(b) specifies that “[f]inal appeal from a
decision of a hearings officer .... must be filed with the Board
within 60 days.” 20 C.F.R. 260.9(c) allows that the Board “may
waive” the time requirement of paragraph (b) if “in the judgment of
the Board the reasons given establish that the appellant had good
cause” for his failure to timely appeal.
5
45 U.S.C. § 355(f), which governs this appeal, dictates that
a claimant “aggrieved by a final decision under subsection (c) of
this section” may seek appellate review of that decision “only
after all administrative remedies within the Board ... have been
availed of and exhausted ...”6 Subsection (c), in turn, sets out
the administrative review process for these types of claims.
Paragraph(1) of that subsection provides “an opportunity for a fair
hearing,”7 and paragraph(2) authorizes appeals to the Board, noting
that “[t]he Board shall prescribe regulations governing the appeals
provided for in this paragraph.”8 Paragraph (5) then allows for
appellate review “in the manner provided in subsection (f) of this
section.”9
In the instant case, the government contends that Mims failed
to follow the regulations established by the Board —— promulgated
under the authority of § 355(c)(2) —— which require appeals of
hearing officer decisions to be filed within 60 days.10 As a
result, according to the government (given that the Board found no

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11 2003 U.S. App. LEXIS 18908 (Sept. 11, 2003).
12 See Moon v. Bowen, 810 F.2d 472 (5th Cir. 1987); Harper v.
Bowen, 813 F.2d 737 (5th Cir. 1987); Thibodeaux v. Bowen, 819 F.2d
6
“good cause” excusing the delay), the hearings officer’s decision
became “final” and yet unappealable in this court because Mims did
not first appeal that decision administratively to the Board
itself. The government argues that Mims’s failure to take that
final administrative step means that he did not avail himself of
all administrative remedies before bringing his petition for review
to this court, as required by 45 U.S.C. § 355(f). The government
contends that the denial of Mims’s request to reopen his case ——
not a decision on the merits —— is thus not an appealable final
decision as that phrase is used in 45 U.S.C. § 355. According to
the government, the only appealable final decision in Mims’s case
would have been a final Board decision on his appeal, had he
followed the administrative appeals process to completion. Having
failed to do so, he deprived himself of the authority to appeal to
us.
2. Applicable Case Law
In Roberts v. United States Railroad Retirement Board,11 we
considered whether, under the Railroad Retirement Act, we have
jurisdiction to review a refusal to reopen a closed case, and held
that we do not. The concerns discussed in Roberts are present in
the instant case, just as they are when petitioners seek review of
refusals to reopen closed cases under the Social Security Act:12 If

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76 (5th Cir. 1987).
13 813 F.2d 737, 741 (5th Cir. 1987)(quoting Califano v.
Sanders, 430 U.S. 99, 108 (1977)).
14 As support, Mims notes that the September 3rd, 1999, letter
discusses only a partial annuity rate and indicates that
computation of the actual monthly rate “may possibly take 90 days
or more.” His reliance on that language is misplaced, however, as
he received notice of a final annuity rate (and a retroactive
payment of almost ten thousand dollars) within one month following
that letter, but still failed to appeal.
7
we were to sanction appeals of refusals to reopen closed cases, we
would undermine the ability of Congress to authorize the Board to
fashion meaningful regulations concerning the administrative
appeals process. As we noted in Harper v. Bowen, “[i]f courts were
able to review denials of requests to reopen long dormant claims,
a claimant could ‘frustrate the congressional purpose ... to impose
a 60-day limitation upon judicial review of the Secretary’s final
decision ....’”13 If we were to allow Mims to appeal in the instant
case, we would render meaningless both the 60-day limitation on
administrative appeals and § 355(f)’s exhaustion requirement.
Although we are sympathetic to pro se litigants navigating
unfamiliar legal waters, it is clear in this case that Mims slept
on his right of appeal. Although Mims states that he did not
appeal immediately because the Board was still endeavoring to
determine the proper amount of his annuity payments,14 the October
1st, 1999, letter informing him of his final annuity amount and
additional retroactive payment of $9,487 clearly states that any
request for reconsideration and appeal “must be received by the

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8
Railroad Retirement Board WITHIN 60 DAYS from the date of this
notice.” Mims did not act within that time; in fact, it appears
from the record that he did not raise any concerns about his
annuity award until an April 2000 phone call. Furthermore, he must
have been aware of the 60-day time limitation because he had
appealed numerous prior decisions in his case, and much of the
correspondence sent to him —— including letters in October and
December 1998 —— specified that limitation. Even though these
facts do not affect our jurisdictional analysis, we note them now
to demonstrate that, even as a pro se layman, Mims had ample notice
and opportunity to avoid the jurisdictional bar he now faces.
III. Conclusion
Mims failed timely to appeal the hearings officer decision in
his case. As the Board decision of which he now seeks review is a
decision not to reopen his case, we have no jurisdiction to
consider his petition. For lack of jurisdiction, Mims’s petition
for review is
DISMISSED.

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