PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOIS S. HARRIS,

Petitioner,

v.

No. 98-2335

UNITED STATES RAILROAD

RETIREMENT BOARD,

Respondent.

On Petition for Review of an Order

of the United States Railroad Retirement Board.

(97-AP-0142)

Argued: September 22, 1999

Decided: November 29, 1999

Before HAMILTON and TRAXLER, Circuit Judges, and

GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

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Petition for review dismissed by published opinion. Judge Goodwin

wrote the opinion, in which Judge Hamilton and Judge Traxler joined.

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COUNSEL

ARGUED: Robert M. Chandler, Jr., EARLY & CHANDLER, Rocky

Mount, North Carolina, for Petitioner. Karl Theodore Blank, III, General Attorney, RAILROAD RETIREMENT BOARD, Chicago, Illinois, for Respondent. ON BRIEF: Walter J. Early, EARLY &

CHANDLER, Rocky Mount, North Carolina, for Petitioner. Steven
A. Bartholow, Deputy General Counsel, RAILROAD RETIREMENT

BOARD, Chicago, Illinois, for Respondent.

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OPINION

GOODWIN, District Judge:

Petitioner Lois S. Harris petitions for review of the Railroad Retirement Board's (Board) decision refusing to reopen her case because

her appeal was untimely filed without good cause. We lack jurisdiction and dismiss the petition for review.

I.

On February 24, 1994, Harris applied for a total and permanent disability annuity under the Railroad Retirement Act (RRA). The Board

denied her application initially and upon reconsideration.

Under the relevant provisions of the Code of Federal Regulations,

Harris was required to file an appeal, if any, with the Bureau of Hearings and Appeals within sixty days of the Board's decision denying

her application on reconsideration. Harris did not file her appeal until

fourteen months after the decision. A hearings officer dismissed the

appeal as untimely without good cause, and the Board affirmed the

dismissal on September 11, 1997. This petition followed.

In their initial briefs, the parties extensively discussed the issue of

whether good cause existed for the late appellate filing with the

Board. In an affidavit accompanying the late appeal to the Board,

Harris's attorney explained that his client had timely signed the appellate documents and that the tardy filing was entirely his fault. Harris

urges the court to reverse the Board, arguing that her attorney's error

was sufficient cause to waive the timeliness requirement. The Board

disagrees, urging the court to affirm the Board's finding that these circumstances did not excuse the late filing.

On September 2, 1999, the court ordered the parties to submit supplemental briefs addressing whether the court has jurisdiction to

reverse the Board's determination pursuant to 45 U.S.C. § 355(f).

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II.

The Board has promulgated regulations that set forth administrative

steps that a claimant must follow to claim benefits and, if desired, to

receive internal review of decisions.1 At the first step, the Board's

Bureau of Disability and Medicare Operations decides a claim for disability benefits under the RRA. 20 C.F.R. § 260.1(a)(1). If the claim

is denied, a second step gives a claimant "the right to file a request

for reconsideration of an initial decision" of the Board within sixty

days after receiving notice of the decision. Id. § 260.3(a), (b). The

claimant may further appeal the decision upon reconsideration by filing an appeal with the Bureau of Hearings and Appeals within sixty

days after receiving notice of the reconsideration decision. Id.

§ 260.5(a), (b). Finally, the claimant has a right to a final appeal to

the Board from the decision of the hearings officer. Id. § 260.9.

If the claimant fails to file timely an appeal at any step in the

administrative process, the Board's decision becomes final. Id.

§ 261.1(b). Here, when Harris failed to file a timely appeal within

sixty days of the Board's decision denying her application on reconsideration, the decision denying benefits became final.

The hearings officer possessed the authority to waive the timeliness

requirement and reopen Harris's case if he found good cause for the

late filing of her appeal. Id. § 260.5(c). Section 260.3(d) sets forth the

applicable standards for good cause and provides as an example:

(5) An unusual or unavoidable circumstance existed which

demonstrates that the claimant would not have known

of the need to file timely or which prevented the claimant from filing in a timely manner.

Id. § 260.3(d).

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1 The RRA and the Railroad Unemployment Insurance Act (RUIA)

grant the Board authority to promulgate regulations specifying the procedure for pursuing administrative claims within the agency. 45 U.S.C.

§ 231f(b)(5); id. § 355(b). These regulations are codified at 20 C.F.R.

Part 260.

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Harris argues that her attorney's error is good cause to waive the

timeliness requirement because it was an unavoidable circumstance

that prevented her from filing in a timely manner.

III.

Although the Board's decision fails to take into account this circuit's general preference that a blameless party not be disadvantaged

by the procedural errors or neglect of her attorney, see, e.g., Augusta

Fiberglass Coatings, Inc. v. Fodor Contracting Corp. , 843 F.2d 808,

811 (4th Cir. 1988); see also Heyman v. M.L. Mktg. Co., 116 F.3d 91,

94 (4th Cir. 1997), we cannot reach or decide the issue. This court is

without jurisdiction to review the Board's determination not to reopen

Harris's case.

Section 8 of the RRA, 45 U.S.C. § 231(g), incorporates by reference the provisions pertaining to judicial review set forth in Section

355(f) of the RUIA, 45 U.S.C. § 355(f). Under 45 U.S.C. § 355(f),

courts may only review decisions of the Board that are "final decision[s] under subsection (c) [of 45 U.S.C.§ 355]" and "only after all

administrative remedies within the Board will have been availed of

and exhausted."2

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2 45 U.S.C. § 355(f) provides in pertinent part:

Any claimant, or any railway labor organization organized in

accordance with the provisions of the Railway Labor Act..., of

which claimant is a member or any base-year employer of the

claimant, or any other party aggrieved by a final decision under

subsection (c) of this section, 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 by

filing a petition for review within ninety days after the mailing

of notice of such decision to the claimant or other party, or

within such further time as the Board may allow, in the United

States court of appeals for the circuit in which the claimant or

other party resides or will have had his principal place of business or principal executive office, or in the United States Court

of Appeals for the Seventh Circuit or in the United States Court

of Appeals for the District of Columbia.

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Subsection (c) of 45 U.S.C. § 355 provides a detailed list of decisions that are reviewable by the courts of appeals, including a final

decision of the Board denying an employee's claim for benefits in

which the petitioner has exhausted her administrative remedies. Here,

Harris failed to exhaust her administrative remedies as required by

subsection (f).3 The question before us is whether the Board's decision declining to reopen Harris's case was a final decision on the merits of a claim under subsection (c). We find that it was not.

The circuits that have addressed this issue are in disagreement. The

Tenth, Sixth and Seventh Circuits have held that, absent a constitutional question raised by the refusal to reopen, the courts of appeals

lack jurisdiction to review the Board's decision not to reopen a case.

Abbruzzese v. Railroad Retirement Bd., 63 F.3d 972, 974 (10th Cir.

1995); Gutierrez v. Railroad Retirement Bd., 918 F.2d 567, 570 (6th

Cir. 1990); Steebe v. United States R.R. Retirement Bd., 708 F.2d 250,

254-55 (7th Cir.), cert. denied, 464 U.S. 997 (1983). The Eighth and

Second Circuits have held that a Board's decision not to reopen a case

is reviewable under an "abuse of discretion" standard of review. Sones

v. United States R.R. Retirement Bd., 933 F.2d 636, 638 (8th Cir.

1991); Szostak v. Railroad Retirement Bd., 370 F.2d 253, 254-55 (2d

Cir. 1966). The First Circuit declined to reach the issue, but assumed

arguendo that it possessed jurisdiction to review and found that the

Board did not abuse its discretion in failing to reopen the petitioner's

case. Clifford v. United States R.R. Retirement Bd., 3 F.3d 536, 538

(1st Cir. 1993).

We agree with the Tenth and Seventh Circuits, which have found

the United States Supreme Court's decisional rationale in Califano v.

Sanders, 430 U.S. 99 (1977), a social security case, to be applicable

to a Board decision not to reopen a case.4 See, e.g., Abbruzzese, 63

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3 See Gutierrez v. Railroad Retirement Bd., 918 F.2d 567, 570 (6th Cir.

1990). Harris forfeited her two remaining opportunities for administrative review by failing to timely file her appeal.

4 Because of similarities and overlapping authority between the Social

Security Act and the RRA, "it is the accepted practice to use social security cases as precedent for railroad retirement cases." Burleson v. Railroad

Retirement Bd., 711 F.2d 861, 862 (8th Cir. 1983); see Abbruzzese, 63

F.3d at 974.

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F.3d at 974; Steebe, 708 F.2d at 255. In Sanders, the Court held that

neither the Administrative Procedure Act nor Section 205(g) of the

Social Security Act grant federal courts subject matter jurisdiction to

review a decision not to reopen a claim for Social Security benefits.

Sanders, 430 U.S. at 107-08. With respect to the Social Security Act,

the Court reasoned:

[Section 205(g)] clearly limits judicial review to a particular

type of agency action, a "final decision of the Secretary

made after a hearing." But a petition to reopen a prior final

decision may be denied without a hearing... Indeed, the

opportunity to reopen final decisions and any hearing convened to determine the propriety of such actions are

afforded by the Secretary's regulations and not by the Social

Security Act. Moreover, an interpretation that would allow

a claimant judicial review simply by filing and being denied

a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in § 205(g), to impose a 60-

day limitation upon judicial review of the Secretary's final

decision on the initial claim for benefits... Congress' determination so to limit judicial review to the original decision

denying benefits is a policy choice obviously designed to

forestall repetitive or belated litigation of stale eligibility

claims.

Id. at 108.5

The Social Security Act limits judicial review to particular types of

agency action -- a final decision of the Secretary made after a hearing. Similarly, the RRA and the RUIA limit judicial review to particular types of agency action -- final decisions under 45 U.S.C. § 355(c)

in which the petitioner has exhausted administrative remedies.

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5 Interestingly, on August 14, 1997, the Social Security Administration

circulated a memorandum to all levels of adjudication that provided its

decision makers with an extensive definition of good cause, to be applied

in various situations, including "[w]henever a person does not meet a

specific time limit." Section (5) of the memorandum states that good

cause exists for not meeting a specific time limit when "[t]he individual

thought his/her representative had filed the appeal."

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As with the Social Security Act, the RRA and RUIA do not provide for the reopening of final decisions. The decision whether to

reopen a petitioner's case stems solely from the Board's regulation,

20 C.F.R. § 260.5(c). Allowing judicial review of an agency action

not specifically provided for by statute would impermissibly expand

the jurisdiction of this court. This court may not base its jurisdictional

predicate on the authority of an administrative agency instead of on

the authority of the United States Congress.

Finally, Harris is correct in noting that there is an exception to the

bar to judicial review that applies when the refusal to reopen is challenged by colorable constitutional claims. See Sanders, 430 U.S. at

109; Abbruzzese, 63 F.3d at 974. However, we find that the Sanders

exception is not applicable here because there was no constitutional

deprivation. See, e.g., Holloway v. Schweiker, 724 F.2d 1102, 1104

(4th Cir.) (finding no Sanders exception when social security claimant

failed to timely petition for reopening of his claim), cert. denied, 467

U.S. 1217 (1984).

IV.

For the foregoing reasons, we find that we lack jurisdiction to

review the Board's decision not to reopen Harris's case. The petition

for review is

DISMISSED.

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