UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARILYN TERRY, Petitioner,

v. RAILROAD RETIREMENT BOARD, Respondent. No. 11-9563 (No. 10-AP-0051) (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, McKAY and LUCERO , Circuit Judges.
Petitioner Marilyn Terry appeals pro se the decision of the Railroad Retirement Board (Board) adopting the decisi on of a hearing officer that she did not have good cause for filing a la te appeal. The order pet itioner attempted to appeal denied reconsideration of her request for benefits. “This cour t has jurisdiction to review decisions of the [Boa rd] under 45 U.S.C. § 231g.” Gatewood v. R.R. Ret. Bd. , 88 F.3d 886, 888 (10th Cir. 1996). This c ourt is without jurisdiction, however, to

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 21, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - review the Board’s refusal to reopen the case due to pe titioner’s untimely attempt to appeal. Therefore, this matt er is dismissed. Petitioner’s request to proceed on appeal in forma pauperis (IFP) is granted. Background In 2009, petitioner filed an applicati on for a disabled widow’s annuity under the Railroad Retirement Act, 45 U.S.C. § 231a . After her application was denied, she filed a request for reconsideration. R econsideration was denied on September 24, 2009. Petitioner was entitled to app eal the reconsideration decision. See 20 C.F.R. § 260.5(a). Her appeal was due to the Bureau of Hearings and Appeals within 60 days after the denial, see id. § 260.5(b), but she did not mail her appeal until January 28, 2010, well after the N ovember 23, 2009, deadline. The deadline for filing an appeal may be excused for good cause. Id. § 260.5(c). Accordingly, the hearing office r informed Ms. Terry that her appeal was late, but that she had 30 days from February 17, 2010, to provide information to show good cause for the late filing. When this information was not received by March 22, 2010, the hearing officer deni ed the appeal as untimely. But on March 22, the Board received the information from petitioner, so it reopene d the hearing officer’s decision. The hearing officer held a telephoni c hearing at which petitioner presented evidence as to why her appeal was late. Following the h earing, the hearing officer kept the record open for another two w eeks to give petitioner time to submit- 3 - additional evidence. When th is evidence was not received, the hearing officer denied the appeal based on his finding that petiti oner had not shown good cause for failing to timely appeal the September 24, 2009, deni al of reconsideration. Petitioner filed a timely appeal to the three-member Board, which affirmed the hearing officer’s decision. Petitioner now seek s review from this court. Discussion Because petitioner is pro ceeding pro se, her brief is entitled to a liberal construction. Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam). She contends that her evidence was suffi cient to show good cause for her late appeal. Abbruzzese v. Railroad Retirement Board , 63 F.3d 972 (10th Cir. 1995), is dispositive. The petitioner in Abbruzzese , like the petitioner in this case, sought relief even though he did not timely appeal the initial orde r of the hearing officer. See id. at 973. Although we recognized that judicial review is specifically available “of final decisions of the Board regarding the initial denial of an employee’s claim for benefits,” pursuant to 45 U.S.C. § 355 (f), we held that “the statute does not provide for judicial review of the Board’s denial of a request to reopen a case.” Id. at 974. Unless the petitioner raises a cons titutional question relativ e to the refusal to reopen, “we are without subject matter juri sdiction to review a decision by the Board not to reopen a case.” Id. Petitioner’s appellate brief does not assert any constitutional claims. Therefor e, we must dismiss her peti tion for review for lack of subject matter jurisdiction. Id.- 4 - Conclusion The petition for review is DISMISSED. Petitioner’s motion to proceed IFP is
GRANTED.

Entered for the Court
Mary Beck Briscoe Chief Judge