Silverio Perez v. Nancy A. Berryhill

707 F. App'x 490

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2017
• Docket: 17-15278
• Status: Unpublished

Opinion

MEMORANDUM **

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.

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, — U.S. -, 137 S.Ct 1365, 197 L.Ed.2d 518 (2017); United States v. Kim, 806 F.3d 1161, 1177 (9th Cir. 2015). The administrative law judge correctly applied 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, 1256-56 (9th Cir. 1994) (holding that Windfall Elimination Provision comports with due process).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.