NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILVERIO G. PEREZ, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 17-15278 

D.C. No. 3:15-cv-03012-WHA 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Submitted December 18, 2017**

Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

Silverio G. Perez appeals pro se from the district court’s orders denying his 

motions for reconsideration of an order granting summary judgment and affirming 

the Commissioner of Social Security’s calculation of the amount of his retirement 

insurance benefits under Title II of the Social Security Act. We affirm.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

DEC 21 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-15278

We have jurisdiction only to review the district court’s orders denying 

Perez’s three post-judgment motions. Perez did not file a notice of appeal within 

60 days of the district court’s judgment. See 28 U.S.C. § 2107(b) (setting forth 60-

day time limit); Fed. R. App. P. 4(a)(1)(B). His first, untimely motion for 

reconsideration, filed more than 28 days after entry of judgment, did not toll the 

time for appeal from the judgment. See Fed. R. App. P. 4(a)(4)(A)(iv) & (vi). The 

notice of appeal also was not filed within 60 days of the district court’s order 

denying the first motion for reconsideration, but the second motion for 

reconsideration tolled the time within which to file a notice of appeal from that 

first post-judgment order. See Fed. R. App. P. 4(a)(1)(B); Swimmer v. Internal 

Revenue Serv., 811 F.2d 1343, 1344 (9th Cir. 1987) (holding that second motion 

for reconsideration tolled time to appeal from denial of first post-judgment 

motion). The notice of appeal was timely filed within 60 days of the district 

court’s orders denying Perez’s second and third post-judgment motions. See Fed. 

R. App. P. 4(a)(1)(B).

The district court did not abuse its discretion in denying post-judgment relief

because Perez’s retirement benefit amount was properly offset by his foreign 

pension. See Kerr v. Jewell, 836 F.3d 1048, 1053 (9th Cir. 2016) (setting forth 

standard of review), cert. denied, 137 S. Ct. 1365 (2017); United States v. Kim, 806 

F.3d 1161, 1177 (9th Cir. 2015). The administrative law judge correctly applied 
3 17-15278

the Social Security Act’s Windfall Elimination Provision, 42 U.S.C. § 415(a)(7), 

which reduces a Social Security retirement benefit when a claimant is 

simultaneously receiving another similar benefit, and Perez was not denied a 

meaningful opportunity to be heard. See Dexter v. Colvin, 731 F.3d 977, 980 (9th 

Cir. 2013) (holding that due process entitles a Social Security claimant to a 

meaningful opportunity to be heard or to seek reconsideration of an adverse 

benefits determination); Das v. Dep’t of Health & Human Servs., 17 F.3d 1250, 

1255-56 (9th Cir. 1994) (holding that Windfall Elimination Provision comports 

with due process).

AFFIRMED.