* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 T H C IR

. R.

47.5.4.

1 UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-60733

Summary Calendar

____________

ARLENE C COKER; JAMIE E COKER,

Petitioners,

versus

UNITED STATES RAILROAD RETIREMENT BOARD,

Respondent.

Appeal from the United States Railroad

Retirement Board

(MA-721-10-9264)

May 19, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Mr. Jamie Coker and Ms. Arlene Coker (“the Cokers”) appeal pro

se the decisi ons of the United States Railroad Retirement Board

(“the Board”) that each was not entitled to waiver of the Board’s

recovery of alleged erroneous paymen ts made in their retirement

annuities. See 45 U.S.C. § 231i(c). We affirm.

Mr. Coker worked in the railroad industry for twenty three and1 In 1992, Mrs. Coker applied for and was awarded a spouse

annuity under t he 1974 Act, which provides for monthly annuities

for the spouses of retired railroad employees. S e e 45 U.S.C. §

231a(c)(1); 45 U.S.C. § 231c(a)(1) & (2). The Act provides that

“[t]he annuity of a spouse

. . . shall be in an amount equal to the

amount

. . . [of] th e husband’s insurance benefit to which such

spouse or divorced wife would have been entitled under the Social

Security Act if such individual’s service as an employee after

December 31, 1936, had been included in the term ‘employment’ as

defined in that Act.” 45 U.S.C. § 231c(a)(1) (internal citation

omitted).

2 one-half years and made contributions t o his retirement fund

pursuant to the Railroad Retirement Act of 1937 (“1937 Act”). S ee

45 U.S.C. § 228 et seq. (amended in 1974). Congress fundamentally

restructured the railroad retirement system with the enactment of

the Railroad Retirement Act of 1974 (“the Act” or “1974 Act”). S ee

Coker v. Gielow

, 806 F.2d 689, 694 (6th Cir. 1986) (discussing the

structure of the 1 974 Act and Mr. Coker’s earlier contentions

regarding the Act). This litigation stems from the Board’s

determination that Mr. Coker’s railroad retirement annuity had been

overpaid $367.99 and that Mrs. Coker’s annuity overpaid $7,010.28. 1

The Board determined t hat the overpayment to Mr. Coker resulted

from a clerical error, while the overpayment to Mrs. Coker resulted

from her failure to notify the Board that she was receiving social

security benefits, which must be deducted from her railroad annuity

under the 1974 Act. S ee 45 U.S.C. § 231c(i)(1). The Board further

determined that the Cokers’ failed to prove that the recovery of

t he overpayments was either against equity or good conscience or

contrary to th e purpose of the Act, s ee 45 U.S.C. § 231i(c),3

because the Cokers’ refused to provide the Board or its hearing

examiners with complete financial information. The Cokers’ appeal

the decisions of the Board.

The Railroad Retirement Act of 1974, 45 U.S.C. § 231g,

incorporates the judicial review provision of the Railroad

Unemployment Insurance Act which provides that “[t]he findings of

the Board as to the facts, if suppo rted by evidence and in the

absence of fraud, shall be conclusive.” 45 U.S.C. § 355(f). Our

well-established standard of review re quires that we affirm the

decisio n of the Board “if its finding of fact is supported by

substantial evidence and its decision is not based on an error of

law.” K urka v. United States R.R. Retirement Bd. , 615 F.2d 246,

249-50 (5th Cir. 1980). The Supreme Court defined substantial

evidence as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated Edison

Co. v. NLRB , 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L.Ed. 126

(1938); see also Richardson v. Perales

, 402 U.S. 389 , 401, 91 S.

Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

Mr. and Mrs. Coker first argue that they should not be made to

repay the Board because its decision was based on an error of law,

and consequ ently, that the Board has actually underpaid, rather

than overpaid, their annuities. The Cokers’ claim that the Board

has incorrectly applied 45 U.S.C. § 231b(f)(2) (“th e grandfather

clause”) in determining Mr. Coker’s annuity, and that he is2 The grandfather provision states, in pertinent part, that

If

. . . the annuity (before any reduction due

to such individual’s entitlement to a monthly

insurance benefit under the Social Security

Act)

. . . is less than the total amount which

would have been payable to such individual and

his spouse for such month, on the basis of the

indi vidual’s compensation and years of

service, under the provisions of the Railroad

Retirement Act of 1937 as in effect on

D ecember 31, 1974,

. . . the annuity of s uch

individual and the annuity of such spouse, if

any, shall be increased . . . proportionately

so as to equal such total amount.

45 U.S.C. § 231b(f)(2) (internal citations omitted).

4 entitled to a full railroad retirement annuity under the 1937 Act

with cost of living adjustments (“COLAs”) added for the years since

1974, and without any reduction for social security benefits. 2 As

the Board notes in its brief, Mr. Coker has litigated his

interpretation of the grandfather claus e at great length both in

the federal c ourts and before the Board. S ee, e.g., Coker v.

Gielow

, 806 F.2d 689, 694 (6th Cir. 1986) ( Coker I) (rejecting Mr.

Coker’s claim that he is entitled to payment under the 1937 Act

with accumulated cost of living increases and without reduction for

social security); see also Coker v. United States R.R. Retirement

Bd.

, 871 F.2 d 1149, 1989 WL 33666 (D.C. Cir. 1989) ( C oker II)

(unpublished opinion) (rejecting same claim); Coker v. Simon , No.

89-2791-G (W.D. Tenn. 1991) ( Coker III) (unpublished opinion)

(Freedom of Information Act claim). We agree with the D.C. Circuit5

and the Board that Mr. Coker is barred from relitigating his

interpretation of the grandfather clause. S ee Coker II, 1989 WL

33666, at *1 (“Coker is preclude d from relitigating his

interpretation of sections 231b(f)(2) and 231b(m).”).

In addition, we must briefly address Mrs. Coker’s claim that

her annuity has been incorrectly calculated because it is based on

the erroneous calculation of Mr. Coker’s annuity. See supra note

1. Assuming a rguendo that Mrs. Coker’s claim is not barred by

principles of issue preclusion, cf. W RIGHT

, M ILLER

, & C OOPER

, 18 F EDERAL

P RACT ICE & P ROCEDURE § 4416-26 (1981), we agree with the Sixth

Circuit’s rejection of the Cokers’ interpre tation of the

grandfather clause:

Claimant argues for an interpretation of the “grandfather

clause” which woul d allow for payment of not only the

1937 Act amount of $309.00 but accumulated cost of living

increases on this amount since 1974 plus his social

security benefits, for a total monthly benefit in excess

of $900.00. He contends that since this combined sum is

greater than his benefit amount under the new Act, he is

entitled to the larger amount under this clause.

With regard to the argument for accumulation of cost

of living increments, the clause specifically provides

that the computation be made under “the provisions of the

Railroad Retirement Act of 1937 as in effect on December

31, 1974. ” 45 U.S.C. § 231b(f)(2) (emphasis added). The

statutory language clearly restricts the computation to

that amount payable as of December 31, 1974, thereby

barring allowance for cost of living increases declared

subsequent to that date. Therefore, we find this

argument without support.

Coker I, 806 F.2d at 694. We agree that the grandfather clause

requires the Board to compare the claimant’s annuity under the

tiering system of the 1974 Act with the amount that the claimant6

would have been entitled to under the 1937 Act as of December 31,

1974, without the accumulated COLAs since that time. As the Sixth

Circuit correctly concluded, Mr. Coker’s annuity under the 1937 Act

(without COLA increases) was less than his applicable annuity rate

under the provision s of the 1974 Act; therefore, the Board

correctly determined Mr. Coker’s annuity under the 1974 Act. See

Coker

, 806 F.2d at 694. Thus, we reject Mrs. Coker’s argument that

the Board incorrectly interpreted th e grandfather clause in

calculating her and her husband’s annuities.

We similarly reject Mrs. Coker’s additional argument that the

Board is not authorized to deduct her social security benefits from

her spousal railroad annuity. The 1974 Act specifically states

that “[t]he annuity of any spouse or divorced wife

. . . shall

. .

. be reduced, but not below zero, by the amou nt of any insurance

benefit

. . . payable to su ch spouse or divorced wife for that

month und er Title II of the Social Security Act.” 45 U.S.C. §

231c(i)(1). An identical provision requires that the Board offset

Mr. Coker’s annuity by the amount of his social security benefits

.

See 45 U.S.C. § 231b(m) (“The annuity of any individual

. . . shall

. . . be reduced, but not below zero, by the amount of any monthly

benefit

. . . payable to that individual for that month under Title

II of the Social Security Act.”). The plain language of the Act

belies the Cokers’ contention that social security cannot be

deducted from their annuities.7

The next issue is whether the Cokers must repay the Board the

o verpayments they received. While the Railroad Retirement Act

authorizes the Board t o recover overpaid benefits, s ee 45 U.S.C.

231i(a), the Act limits the Board’s ability to recover such

overpayments as follows:

There shall be no recovery in any case in which more than

the correct amount of annuities or other benefits has

been paid under this subchapter to an individual or

payment has been made to an individual not entitled

thereto who, in the judgment of the Board, is without

fault when, in the judgment of the Board, recovery would

be contrary to the purpose of this subchapter and the

Railroad Unemployment Insurance Act or would be against

equity or good conscience.

45 U.S.C. § 231i(c). Thus, in order to waive repayment, the Board

must find that: (1) the annuitant was without fault, and (2)

recovery is either (a) aga inst the purposes of the Act or (b)

contrary to equity or good conscience. See Peterson v. United

States R.R. Retirement Bd.

, 780 F.2d 1361, 1363 (8th Cir. 1985)

(explaining that waiver of repayment requires satisfaction of “twopart” test). Recovery is against the purpose of the Act if

recovery deprives the beneficiary of the necessities of life. S ee

20 C.F.R. § 255.12(d). Recovery is against equity and good

conscience where the beneficiar y changed his or her position in

reliance on the overpayments to such an extent that recovery would

impose a severe hardship. See 20 C.F.R. § 255.12(e).

Here, the Board found that Mr. Coker satisfied the first prong

and was not at fault because the overpayment of $367.99 was the3 We note that the hearings officer below found Mrs. Coker

at fault for failing to disclose that she had be gun to receive

social security payments. The Board did not reach this issue

because it found that Mrs. Coker failed to satisfy the second

hardship prong of the test.

8 result of clerical error; the Board did not address the issue of

Mrs. Coker’s fault for the $7,010.28 overpayment. 3 The Board then

concluded that both Mr. and Mrs. Coker failed to satisfy the second

prong because they could not demonstrate that recovery was contrary

to the pu rpose of the Act or against equity or good conscience

because they refused to provide com plete financial information.

Our function on review is to determine whether the Board’s

determination is supported by substantial evidence. S ee Peterson,

780 F .2d at 1364-65. We can set aside the decision only if we

“cannot conscientiously find that the evidence su pporting that

decision is substantial, when viewed in the light that the record

in its entirety furnishes, including the b ody of the evidence

opposed to the [agency’s] view .” Id. (quoting Universal Camera

Corp. v. NLRB

, 340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L.Ed. 456

(1951)).

In the instant case, Mr. and Mrs. Coker provided minimal

evidence to show hardship. They averred that they lived mostly on

their railroad and social security benefits, and without disclosing

the amount, they acknowledged that they had income from “a few

C.D.s.” While Mr. Coker provided a rough listing of monthly

expenses and a partial tax return for 1993, he refused to provide4 The record shows that the Board’s hearing officer wrote

Mrs. Coker on November 6, 1995, advising of the need for financial

information. She wrote Mrs. Coker again on December 6, 1995, and

Mr. Coker on December 18, 1995, requesting financial information.

The hearings officer requested this information because

“[d]eterminations of credibility are for the hearing officer.”

Peppers v. Railroad Retirement Bd.

, 728 F.2d 404, 406 (7th Cir.

1984).

9 any addit ional information regarding income from other years or

other sources, family assets, debts, or more detaile d expenses.

When the Board requested that the Cokers complete Board Form G-423,

a form by which annuitants report monthly income from all sources,

monthly expenses by category, a list of indebtedness, outstanding

obligations, and a schedule o f assets, the Cokers refused to

comply. 4 Mr. Coker stated, “I have not submitted, nor do I intend

to submit a financial statement in order to have the $367.99

waived.” Mrs. Coker stated, “I purposefully decline to submit Form

G-423 based principally on my belief that the Board cannot legally

offset these funds.”

Although courts have reversed the Board’s fin ding of no

hardship where the reco rd presented complete and compelling

indication of hardship, the Cokers refused to provide such evidence

to the Board. Cf. Cooper v. United States R.R. Retirement Board,

13 F.3d 421, 1993 WL 515541, *1 (D.C. Cir. 1993) (unpublished

opinion) (reversing determination of the Board and concluding that

repayment would create hardship, based inter alia on cla imant’s

$25,000 outstanding mortgage, his daughter’s family of six moving10

in to help share expenses, his small savings of $2,900 being

earmarked as a burial fund for his wife, and his ser ious health

problems not being fully covered by insurance); Peterson, 780 F.2d

at 1364-65 (considering the plaintiff’s monthly income, his wife’s

income, the family’s monthly expenditures, and value of the

plaintiff’s home in determining that substantial evidence did not

support the Board’s finding of no hardship); Burns v. United States

R.R. Retirement Bd., 701 F.2d 193, 203 (D.C. Cir. 1983) (remanding

because the Board had not made a determination of hardship, and

noting that the age of the petitioner, her monthly living expenses,

and that she lived on a fixed income were “compelling”).

In contrast, on appeal, the Cokers state only that “[w]ithout

question, repayment of $7,010.28 by someone of Petitioner Arlene C.

Coker’s age, experience, educational background, and physical

abilities, or lack thereof, would create a severe and disabling

hardship to which this Court can take judicial notice.” The

Cokers, however, point to no evidence in the record nor information

before the Board that would support such a conclusion. The Cokers

also claim that they thought that submission of financial

information to demonstrate hardship “might be viewed as a waiver of

[their] legal issue.” Again, the Cokers’ provide no explanation

for this claim; we note that a licensed attorney accompanied the

Cokers to the meeting with t he hearing officer and subsequently

wrote a letter to the hearing officer on the Cokers’ behalf stating11

that the Board “should be receiving the disclosure statement

directly from the Cokers in the very near future.” Unfortunately,

the Cokers chose not to disclose their financial information.

The Cokers’ minimal evidence of hardship combined with their

overt intransigence in the face of repeated requests for more

complete financial information precludes us from finding that the

Board’s conclusion was not supported by substantial evi d ence.

Viewing the record in its entirety, we conclude that the decision

of the Board is based upon “such relevant evidence as a reasonable

mind might accept as adequate to support [the Board’s] conclusion.”

Richardson

, 402 U.S. at 401, 91 S. Ct. at 1427 (quoting

Consolidated Edison Co. v. NLRB

, 305 U.S. 197, 229, 59 S. Ct. 206,

217, 83 L.Ed. 126 (1938)). Accordingly, the decision of the Board

is hereby AFFIRMED.