Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
SILVERIO G. PEREZ, Plaintiff-Appellant, v. NANCY A. BERRYHILL, Commissioner of Social Security, Defendant-Appellee.
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, 137 S. Ct. 1365 (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, 1255-56 (9th Cir. 1994) (holding that Windfall Elimination Provision comports with due process).
AFFIRMED.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. 17-15278
Decided: December 21, 2017
Court: United States Court of Appeals, Ninth Circuit.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)