Silverio G. Perez v. NANCY A. BERRYHILL, Commissioner of Social Security

NOT FOR PUBLICATION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

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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

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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.

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