                   United States Court of Appeals,

                            Fifth Circuit.

                             No. 93-9001.

              Gabriel G. TORRES, Plaintiff-Appellant,

                                    v.

    Donna E. SHALALA, Secretary of Health and Human Services,
Defendant-Appellee.

                            March 30, 1995.

Appeal from the United States District Court for the Northern
District of Texas.

Before JONES, DUHÉ and STEWART, Circuit Judges.

     DUHÉ, Circuit Judge:

     Gabriel Torres (Appellant), appeals from the district court's

dismissal of his action for judicial review of the Social Security

Administration's      (Secretary)    denial   of   his   request   for

reconsideration and for a hearing before an Administrative Law

Judge (ALJ) on his application for disability insurance benefits

(DIB).   We affirm.

                             I. BACKGROUND

     Appellant sustained gunshot wounds to his left hip and abdomen

in 1969, while serving in the United States Army during the Vietnam

conflict.   Immediately after he was wounded, he underwent a series

of operations. Appellant underwent additional hip surgery in 1975,

1979 and 1985.     Despite these surgeries, Appellant's left leg

remains approximately 3 cm shorter than his right leg, he has

restricted motion in his lumbar spine and left hip and continues to

suffer pain and discomfort.


                                    1
     Appellant was employed, for short periods of time, after

returning from Vietnam.      Appellant worked as a hospital orderly in

1973-74, and as a detailer for a car dealer in 1974-75.            Appellant

apparently left his job as a detailer in 1975 after sustaining a

fractured hip as a result of an on the job injury.1            There is no

dispute   that   Appellant   has   not   worked   since   1975,2   and   that

Appellant was last eligible for disability insurance benefits on

March 31, 1985.3      Therefore, Appellant must show that he was

disabled as of that date.      Appellant initially applied for social

security DIB in 1975.4    He was found to be disabled as of November

10, 1976.   Appellant received benefits until March 31, 1983, when,

after a review of recent medical evidence, the Secretary determined

Appellant was no longer disabled.         Appellant did not appeal this

determination.

     Appellant filed his second application for DIB in September

1986.    An ALJ held a hearing and determined that Appellant was not

     1
      The 1975 surgery was apparently necessitated by Appellant's
on the job injury. The record does not clearly disclose what
role Appellant's gunshot wounds played in the cause or extent of
this injury.
     2
      Appellant apparently enrolled in, but did not complete, a
training program for watch repair and a training program for lens
grinding.
     3
      Determination of eligibility for DIB has two primary
components. See 42 U.S.C. § 423. Appellant must meet the DIB
earnings requirement set out in 42 U.S.C. § 423(c)(1), and must
be under a disability as defined by 42 U.S.C. § 423(d).
     4
      Appellant seeks only Title II benefits (disability
insurance), under 42 U.S.C. § 401 et seq. Appellant apparently
does not seek Supplemental Security Income (SSI) benefits under
Title XVI because his veteran's disability benefits place him
above the financial cut-off for SSI.

                                     2
disabled    because   he    could    perform      sedentary   work    and     had   a

favorable vocational profile.5          The written decision of the ALJ

sets forth a detailed review of Appellant's extensive medical

history and complaints.          The ALJ concluded "claimant has the

residual functional capacity to perform the full range of sedentary

work....     [therefore,]      considering        the     claimant's        residual

functional capacity, age, education, and work experience, he is not

disabled."     After considering additional medical evidence, the

Appeals Council denied Appellant's request for review.                     Appellant

did not seek judicial review of the decision.

     Appellant filed his third application for DIB in December

1989, alleging      disability      onset    in   1975.     He   supported      this

application with new medical evidence, including reports from two

doctors delineating the progress of his disability since the 1988

decision.    However, as mentioned above, Appellant's insured status

expired on March 31, 1985 and therefore he was required to show

disability prior to that date.              Because his date of eligibility

preceded     his   second    application       for   DIB,     the    ALJ    treated

Appellant's application as a request for reopening of the 1988

decision.     The ALJ enlisted the aid of a medical expert, and

forwarded the exhibits from the 1988 record and the new exhibits to

him for evaluation.        After reviewing the expert's report, the ALJ

concluded that the new evidence "does not show considerable changes

or progression of the claimant's condition since it was reviewed in


     5
      The profile was based on Appellant's age, 37, and the fact
that he held a high school equivalency certificate (GED).

                                        3
1988.    Therefore, the new evidence is not material and does not

warrant any revision of" the 1988 decision.             The ALJ applied res

judicata and dismissed Appellant's request for a hearing.

     Appellant then sought judicial review and the matter was

referred to the magistrate judge who concluded the court lacked

jurisdiction because the Secretary denied benefits on res judicata

grounds,    and    Appellant    had    failed   to      raise    a   colorable

constitutional claim.      The district court adopted the findings,

conclusions and recommendations of the magistrate, and dismissed

the action without prejudice.         Appellant timely appealed to this

Court.

                            II. JURISDICTION

        The starting point in our analysis must be an examination of

the court's jurisdiction of an appeal from the Secretary's denial

of a request to reopen a denied application for DIB.             The statutory

scheme specifically provides for judicial review of the initial

administrative determination.         See Califano v. Sanders, 430 U.S.

99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).        However, the statute does

not provide for judicial review of the Secretary's denial of a

request to reopen a claim.            The Supreme Court has found no

independent    jurisdictional    foundation     which    would    provide   for

review of such denial.         See id. at 108-09, 97 S.Ct. at 985-86.

Thus, federal court review of the Secretary's denial of a motion to

reopen a claim lies only where a colorable constitutional question

is at issue.      Id. at 109, 97 S.Ct. at 986.

     Appellant raises three issues on appeal which he claims


                                      4
constitute colorable constitutional questions.             First, Appellant

claims that he was denied due process because the Secretary settled

a class action suit, but limited the application of the settlement

to residents of New York.      Second, Appellant contends that the

language of the denial notices he received in conjunction with his

second application violated his right to due process because they

implied that he would have the right to refile an application at

any time regardless of whether he appealed the Secretary's denial

of his application.    Finally, Appellant contends that the use of

res judicata violated his right to due process.            We shall address

these arguments seriatim.

                    III. THE STIEBERGER SETTLEMENT

     Appellant's first argument is that he was denied due process

because the Secretary has treated him differently than similarly

situated residents of New York.            This disparity in treatment

allegedly arose as a result of the Secretary's settlement of

Stieberger   v.   Sullivan.6    In       compromise   of    the   Stieberger

litigation, the Secretary agreed to reopen and review de novo the

previously denied applications for Social Security benefits of a

class defined as:

     All New York residents whose claims for benefits or
     continuation of benefits have been, or will be denied or
     terminated since October 1, 1981, based on a determination
     that they do not have a disability that prevents them from

     6
      The district court's decisions on motions for summary
judgment in this matter are reported at 615 F.Supp. 1315
(S.D.N.Y.1985) and 738 F.Supp. 716 (S.D.N.Y.1990). The
settlement agreement at issue is reported at 792 F.Supp. 1376
(S.D.N.Y.1992) and modified in part at 801 F.Supp. 1079
(S.D.N.Y.1992).

                                     5
     engaging in substantial gainful activity and whose benefits
     have not been granted or restored through subsequent appeals.

Stieberger, 792 F.Supp. at 1377.           Appellant alleges, and Appellee

conceded at     oral   argument,    that    Torres    satisfies     all    of   the

criteria for class membership except New York residency.

      It is long settled that although the Fifth Amendment does not

contain a counterpart to the Fourteenth Amendment's right to equal

protection, "equal protection" and "due process" are not mutually

exclusive.     Therefore, a discriminatory application of law by the

federal government, where unjustifiable, can constitute a denial of

due process.    See Bolling v. Sharpe, 347 U.S. 497, 498-99, 74 S.Ct.

693, 694, 98 L.Ed. 884 (1954);        United States R.R. Retirement Bd.

v. Fritz, 449 U.S. 166, 173 n. 8, 101 S.Ct. 453, 458 n. 8, 66

L.Ed.2d 368 (1980),

     Although "the Fifth Amendment contains no equal protection
     clause,   it  does   forbid   discrimination   that is   "so
     unjustifiable as to be violative of due process.' " Thus, if
     a federal statute is valid under the equal protection
     component of the Fifth Amendment, it is perforce valid under
     the Due Process Clause of that Amendment.

(citations omitted).       We employ the same test to evaluate the

alleged violation of the equal protection component of the Fifth

Amendment as we would to evaluate an alleged violation of the

Fourteenth Amendment's Equal Protection Clause. See e.g., Bowen v.

Gilliard, 483 U.S. 587, 598-601, 107 S.Ct. 3008, 3015-17, 97

L.Ed.2d 485 (1987). Generally, unless governmental classifications

affect a     fundamental   right,    they    need    only   "bear   a     rational

relation to a legitimate governmental purpose."                   See Regan v.

Taxation With Representation, 461 U.S. 540, 547, 103 S.Ct. 1997,


                                      6
2001, 76 L.Ed.2d 129 (1983).      The parameters of "rational basis"

review are well settled.

     In the area of economics and social welfare, a State does not
     violate the Equal Protection Clause merely because the
     classifications made by its laws are imperfect.        If the
     classification has some "reasonable basis," it does not offend
     the Constitution simply because the classification "is not
     made with mathematical nicety or because in practice it
     results in some inequality." "The problems of government are
     practical ones and may justify, if they do not require, rough
     accommodations—illogical, it may be, and unscientific." "A
     statutory discrimination will not be set aside if any state of
     facts reasonably may be conceived to justify it."

Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25

L.Ed.2d 491 (1970).

     In the present case, the rational basis for the settlement's

geographic limitation is clear.7       The settlement was intended to

recompense only those persons who had been harmed.      The Stieberger

plaintiffs contended they suffered harm from certain policies of

the Secretary.      However, actual harm occurred because of the way

those    policies    were   implemented.      Because   the   improper

implementation of the policies was geographically limited, the

settlement was also geographically limited.

     Specifically, the original Stieberger plaintiffs, Theresa


     7
      Appellant cites Califano v. Yamasaki, 442 U.S. 682, 99
S.Ct. 2545, 61 L.Ed.2d 176 (1979) for the proposition that class
actions involving governmental policy should be nationwide in
scope. We do not read Yamasaki for that proposition, and, in
fact, note that the Supreme Court advised federal courts to
exercise caution before certifying a nationwide class. See id.
at 702, 99 S.Ct. at 2558 ("[A] federal court when asked to
certify a nationwide class should take care to ensure that
nationwide relief is indeed appropriate in the case before it,
and that certification of such a class would not improperly
interfere with the litigation of similar issues in other judicial
districts.").

                                   7
Stieberger and the City of New York,

     challenge[d] two policies implemented by the United States
     Department of Health and Human Services ("HHS") and the Social
     Security Administration ("SSA"):      "non-acquiescence" and
     "Bellmon Review." "Non-acquiescence" is the agency's alleged
     policy of adjudicating claims without implementing the
     holdings in decisions of United States Court of Appeal.
     Bellmon review is the agency's policy pursuant to which the
     decisions of Administrative Law Judges ("ALJs"), who had
     rendered a high percentage of pro-claimant determinations in
     disability benefits cases, were subject to agency-initiated
     review.   Plaintiffs mov[ed] for full summary judgment but
     address[ed] only the non-acquiescence issue on the theory that
     they would be entitled to the same relief if they prevailed on
     one or both issues.

Stieberger   v.   Sullivan,   738     F.Supp.    at   722.      The   Stieberger

plaintiffs alleged non-acquiescence in thirteen Second Circuit

holdings.      The    district      court   found     that     the    policy   of

non-acquiescence was unlawful, but granted summary judgment in only

four of the thirteen claims.            Summary judgment on three other

claims was denied without prejudice, and summary judgment was

denied with prejudice on the final six claims.               See id. at 758-59.

The Secretary elected to settle the matter rather than proceeding

to trial on the remaining claims.

     As stated previously, the Stieberger class suffered harm as a

result of the implementation of the policies, not as a result of

the policies themselves.      In other words, the district court found

harm only    where   a   specific     Second    Circuit   precedent     was    not

applied.     The settlement agreement was intended to compensate

persons who were harmed because of the Secretary's failure to

correctly    apply   these   Second    Circuit    precedents.         Therefore,

assuming, ad arguendo, that non-acquiescence is unlawful, to prove

a violation of due process Appellant must show that he, like the

                                       8
Stieberger class, was harmed by the Secretary's failure to apply

Second Circuit precedent.   Because Second Circuit precedent is not

binding in this jurisdiction, Appellant can show no harm. In fact,

Appellant   fails   to   show   non-acquiescence   in   any   relevant

precedent,8 and therefore fails to show any due process violation

resulting from his exclusion from the settlement agreement.

     Appellant also argues that the scope of the settlement is

broader than the alleged harm because the right to reopen was not

specifically limited to those persons whose claims were denied as

a result of the Secretary's non-acquiescence. Therefore, Appellant

contends that the settlement lacks a rational relationship to the

harm alleged. Appellant's argument assumes too much. We must bear

in mind that, as stated by the district court, the settlement is a

compromise intended to establish

     "a reasonable balance, especially bearing in mind the length
     of time that would elapse, absent a settlement, before any
     concrete benefits could be delivered to any class member and
     the costs and complexity of implementing a settlement which
     followed literally the contours of the Court's liability
     determinations."

Stieberger v. Sullivan, 792 F.Supp. at 1377 (emphasis supplied).

While there may not be a one-to-one relationship between the harm

suffered and the relief provided, it cannot be said that the scope

of the settlement and the harm are not rationally related.

     The fact that the Secretary found it more efficient to offer

relief to a broad group of applicants rather than attempt to find


     8
      In our only case on point, we found the evidence
insufficient to show the Secretary was disregarding our
precedents. See Floyd v. Bowen, 833 F.2d 529 (5th Cir.1987).

                                   9
a method to discern which applicants had been actually harmed by

the Secretary's non-acquiescence is of no moment to our analysis.

The terms of the settlement agreement make clear that the purpose

behind reopening the applications is to ensure that the Secretary

properly    applied     Second   Circuit      precedent     in    evaluating    the

claims.9   In other words, unless the applicant was in fact harmed

by the failure to apply Second Circuit precedent, the Secretary

will conclude that benefits were properly denied, and the applicant

will gain absolutely no advantage from the relief provided by the

settlement agreement.         The terms of the settlement clearly bear a

rational relationship to the harm alleged.

      In summary, the plaintiffs in Stieberger demonstrated harm by

proving    to   the    satisfaction      of   the   district     court   that   the

Secretary had engaged in non-acquiescence as to certain Second

Circuit    precedents.        The   Secretary       chose   to    compromise    the

litigation rather than allowing the court to fashion a remedy.

Because the harm proved was limited geographically, so also were

the   terms     of    the   settlement    geographically         limited.10     The

geographic distinction is rationally based, and Appellant can show

no violation of due process.

                                    IV. NOTICE

      9
      This purpose is further evidenced by the fact that persons
whose claims have been judicially reviewed are not entitled to
have their claims reopened except in one limited circumstance.
See Stieberger v. Sullivan, 801 F.Supp. at 1089.
      10
      See Valtsakis v. Commissioner, 801 F.2d 622, 624 (2nd
Cir.1986) ("The existence of divergent results in different
circuits ... does not amount to a violation of equal
protection.").

                                         10
     Appellant next urges us to follow the Ninth Circuit's holding

in Gonzalez v. Sullivan.11      In Gonzalez, the court found that the

applicant had been denied his right to due process because of

certain language in the Secretary's notice of adverse decision.

Specifically, the notice stated,

          If you believe that this determination is not correct,
     you may request that your case be reexamined. If you want
     this reconsideration, you must request it not later than 60
     days from the date you receive this notice. You may make your
     request through any social security office. If additional
     evidence is available, you should submit it with your request.
     Please read the enclosed leaflet for a full explanation of
     your right to question the determination made on your claim.

          If you do not request reconsideration of your case within
     the prescribed time period, you still have the right to file
     another application at any time.

Id. at 1203 (emphasis added).      The Ninth Circuit determined that

the underscored language mislead the applicant because it did "not

clearly indicate that if no request for reconsideration is made,

the determination is final."      Id.   The court found that the notice

thereby violated the applicant's Fifth Amendment right to due

process.

     There is no dispute that, in conjunction with his second

application for DIB, Appellant received a total of four adverse

determination notices during various stages of the administrative

process.      The first two notices contained language identical to

that found unconstitutional in Gonzalez.            However, unlike the

applicant      in   Gonzalez,   Appellant    continued     through    the

administrative      process.    After   receiving   the   first   notice,


     11
          914 F.2d 1197 (9th Cir.1990).

                                   11
Appellant filed a request for reconsideration.    After the second

notice, Appellant again exercised his right to appeal and requested

a hearing on his application.

     After hearing, Plaintiff received the third notice of the

denial of his application.   This notice, however, did not contain

the language complained of in Gonzalez, but explicitly set out the

process by which Appellant could ask for discretionary review by

the Appeals Council.    Appellant followed this process.   Finally,

Appellant was notified of the Appeals Council's denial of his

request for review.     Again, the notice explicitly set out the

process by which Appellant could obtain judicial review of the

denial of his application, but contained none of the language found

unconstitutional in Gonzalez.

      Whether the language contained in the first two notices

violated due process is a matter of first impression in this

Circuit.   However, we need not reach this issue because we find

that Appellant lacks standing to raise the due process claim.    As

set out recently by the Tenth Circuit, to show standing to raise a

constitutional claim:

          First, the plaintiff must have suffered an invasion of a
     legally-protected    interest    that   is    "concrete    and
     particularized," and "actual or imminent," not "conjectural or
     hypothetical."   Second, there must be a causal connection
     between the injury and the complained of conduct; that is,
     the injury must be "fairly ... trace[able] to the challenged
     action of the defendant, and not ... th[e] result [of] the
     independent action of some third party not before the court.'
     "

Gilbert v. Shalala, 45 F.3d 1391, 1393 (10th Cir.1995) (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119


                                12
L.Ed.2d 351 (1992)). Appellant has not shown any causal connection

between the allegedly misleading language in the first two notices

and his subsequent failure to seek judicial review.                       Appellant

continued to appeal his denial of benefits, and did not stop until

he reached the end of the administrative process.

       To satisfy the causal connection requirement of Defenders of

Wildlife, Appellant must show that he relied on the challenged

language in the first two notices.             See Gilbert v. Shalala at 1394;

Day v. Shalala, 23 F.3d 1052, 1066 (6th Cir.1994);                 Burks-Marshall

v. Shalala, 7 F.3d 1346, 1349 (8th Cir.1993).                   Appellant's claim

that he may have sought judicial review but for the language in the

first two notices is simply too attenuated to satisfy the causal

connection requirement.        Appellant exercised his right to appeal

despite the language in the first two notices, and chose not to

seek    judicial    review    despite         the    fourth    notice's   detailed

instructions.            Appellant's      retrospective          speculation    is

insufficient to create standing.

                         V. SUFFICIENCY OF THE RECORD

       In his final constitutional claim, Appellant contends that

application of res judicata to his December 1989 application for

DIB violated       due   process   for   two        reasons.    First,    Appellant

contends that the 1989 application and the 1986 decision lack

factual identity.        Second, Appellant contends that the 1986 record

was constitutionally inadequate to support the application of res

judicata because the recording of the 1986 hearing was lost. These

arguments are easily disposed.


                                         13
        Appellant's first argument represents a misapprehension of

the doctrine of res judicata.                  If simply submitting new evidence

rendered a prior decision factually distinct, res judicata would

cease to exist, and the application process would continue ad

infinitum.           Appellant filed a new claim on the same medical

problems,       with     the      same    onset     date   and   alleging      the   same

disability.          The submission of additional medical reports to show

a degeneration of his condition does not transform the application

of res judicata into a violation of due process.12

            Appellant's second argument is equally misplaced.                    In the

primary       case    relied      on     by   the   Appellant,    the   Ninth   Circuit

determined that res judicata had been improperly applied where the

record was "patently inadequate to support the findings [of] the

ALJ." Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982).                        In

this    case,        there   is    no     claim     that   the   record   is    patently

inadequate.          Only the tape recording of the hearing was lost.                 The

ALJ had the full benefit of all of the exhibits from the previous

hearing, as well as new exhibits and testimony from the Appellant.

In this case, Appellant has not demonstrated that loss of the

recording affected the ability of the ALJ to render an informed

decision, and no violation of due process has been proven.13

       12
      In addition, as discussed above, Appellant's insured
status expired as of March 31, 1985. Evidence showing the
degeneration of his condition after that date was not relevant to
the Secretary's analysis.
       13
      See, e.g., Cottrell v. Sullivan, 987 F.2d 342, 345 (6th
Cir.1992) (per curiam) ("[T]here is no constitutional requirement
that the Appeals Council have a complete transcript before
deciding whether to grant an application to reopen.").

                                               14
                         VI. CONCLUSION

     Appellant has failed to raise a colorable constitutional

claim, and therefore we are without jurisdiction to address his

arguments on the merits of the denial to reopen.   The decision of

the district court is AFFIRMED.




                                  15
