                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                     REVISED OCTOBER 28, 2003             September 11, 2003
              IN THE UNITED STATES COURT OF APPEALS
                                                        Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                     Clerk
                      _____________________

                           No. 03-60038
                      _____________________

ARTHUR R. ROBERTS,

                                                         Petitioner,

                              versus

UNITED STATES RAILROAD RETIREMENT BOARD,

                                                         Respondent.

__________________________________________________________________

              Petition for Review of an Order of the
                    Railroad Retirement Board
_________________________________________________________________

Before JOLLY, SMITH, and EMILIO M. GARZA , Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Arthur R. Roberts seeks review of the Railroad Retirement

Board’s refusal to reopen the denial of his first application for

a disability annuity. Because we find that we have no jurisdiction

to review the Board’s refusal to reopen prior claims for benefits,

we dismiss this appeal.

                                 I.

     Pursuant to the Railroad Retirement Act (RRA) and the Railroad

Unemployment Insurance Act (RUIA), Roberts filed an application for

a disability annuity on October 30, 1996.       His application was

initially denied on April 1, 1997.     Reconsideration was denied on
July 22, 1997.      Roberts appealed that decision to the Bureau of

Hearings and Appeals. His appeal was denied on September 21, 1998.

Roberts appealed the hearing officer’s decision to the Board.               The

Board denied his appeal on April 6, 1999.              Roberts did not appeal

that decision to any court, and the decision became final.

     Roberts filed a second application for a disability annuity on

May 5, 2000. His application was initially denied and denied again

on reconsideration.          He once again appealed to the Bureau of

Hearings and Appeals.        The hearing officer found that Roberts was

entitled to a disability annuity effective October 1, 1999, but

denied Roberts a period of disability and refused to reopen the

original 1996 claim as Roberts had requested.                  Roberts appealed

this decision to the Board.           The Board affirmed the decision.

Roberts seeks review of the Board’s decision refusing to reopen his

1996 claim.

                                      II.

     This case presents for the first time in this Circuit the

question of whether a decision of the Board refusing to reopen a

prior claim is reviewable by this court.               The RUIA provides for

review   in   the   courts    of   appeals   of   “a   final    decision   under

subsection (c) of this section . . . after all administrative

remedies within the Board will have been availed of and exhausted.”

45 U.S.C. § 355(f).     Subsection (c) refers only to decisions of the

Board on the merits of a claim for benefits.             45 U.S.C. § 355(c).

Further, the RRA provides that Board decisions “shall be subject to

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judicial review in the same manner . . . and all provisions of law

shall apply in the same manner as [under the RUIA]” except that

appeals must be started within a year after a Board decision with

respect to, inter alia, an annuity such as the one at issue here.

45 U.S.C. § 231g (incorporating the RUIA, 45 U.S.C. § 351 et seq.,

by reference).

     Roberts asserts that the Board’s decision not to reopen his

1996 claim is a final decision under subsection (c).              We disagree

and join several of our sister circuits in determining that we have

no jurisdiction to review the Board’s decision not to reopen a

prior claim for benefits.

     Under the plain language of § 355(f), the jurisdiction of the

federal courts of appeals is limited to the review of Board

decisions   on     the   merits   of       a   claim   for    benefits   after

administrative appeals have been exhausted.              The claimant must

appeal the Board’s decision on the merits within the prescribed

time period.     There is no provision in the RRA or the RUIA allowing

the Board to reopen a prior claim for benefits.              Likewise there is

no provision providing for federal court review of such a decision.

The possibility of reopening a prior application is available only

because of the Board’s own regulations.           20 C.F.R. § 260.5(c).

     Reviewing these provisions, the Fourth, Sixth, Seventh, and

Tenth Circuits held that courts of appeals lack jurisdiction to

review the Board’s decision not to reopen a prior claim.             Harris v.

R.R. Retirement Bd., 198 F.3d 139, 142 (4th Cir. 1999); Abbruzzese

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v. R.R. Retirement Bd., 63 F.3d 972, 974 (10th Cir. 1995); Gutierrez

v. R.R. Retirement Bd., 918 F.2d 567, 570 (6th Cir. 1990); Steebe

v. R.R. Retirement Bd., 708 F.2d 250, 254-55 (7th Cir. 1983).

However, the Second and Eighth Circuits did not reach the same

conclusion.   Each has found such a decision reviewable under the

abuse of discretion standard.   Sones v. R.R. Retirement Bd., 933

F.2d 636, 638 (8th Cir. 1991); Szostak v. R.R. Retirement Bd., 370

F.2d 253, 254-55 (2nd Cir. 1966).

     We find the reasoning of the Fourth, Sixth, Seventh and Tenth

Circuits persuasive.   Each of those courts found the rationale of

the Supreme Court in Califano v. Sanders, 430 U.S. 99 (1977), to be

applicable to a Board decision not to reopen a prior application.

In Sanders, the Court held that the Social Security Act (SSA) did

not grant federal courts jurisdiction to review a decision not to

reopen a claim for Social Security benefits.    Id. at 107-08.   The

Court reviewed § 205(g) of the SSA and held that:

     We also agree that § 205(g) cannot be read to authorize
     judicial review of alleged abuses of agency discretion in
     refusing to reopen claims for social security benefits.

     The pertinent part of § 205(g) provides:

          “Any individual, after any final decision of
          the Secretary made after a hearing to which he
          was a party, irrespective of the amount in
          controversy, may obtain a review of such
          decision by a civil action commenced within
          sixty days . . . ." (Emphasis supplied.)

     This provision clearly limits judicial review to a
     particular type of agency action, a "final decision of
     the Secretary made after a hearing" . . . . Indeed, the


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     opportunity to reopen final decisions and any hearing
     convened to determine the propriety of such action are
     afforded by the Secretary's regulations and not by the
     Social Security Act. Moreover, an interpretation that
     would allow a claimant judicial review simply by filing
     and being denied a petition to reopen his claim would
     frustrate the congressional purpose, plainly evidenced in
     § 205(g), to impose a 60-day limitation upon judicial
     review of the Secretary's final decision on the initial
     claim for benefits. 20 CFR § 404.951 (1976). Congress'
     determination so to limit judicial review to the original
     decision denying benefits is a policy choice obviously
     designed to forestall repetitive or belated litigation of
     stale eligibility claims. Our duty, of course, is to
     respect that choice.

Sanders, 438 U.S. at 107-08.

     The limitation on judicial review in the SSA is similar to the

limitation in § 355(f).    Federal courts may only review final

decisions on the merits of a claim as described in § 355(c) after

all administrative remedies have been exhausted and only when the

claimant makes a timely appeal.    Judicial review of decisions not

to reopen old claims for benefits would eviscerate the statutory

limit on the time to appeal decisions on the merits explicitly

imposed by Congress.

     As was the case in Sanders, neither the RRA nor the RUIA

provides for the reopening of final decisions.       It is a regulation

of the Board that provides for that possibility.          As the Fourth

Circuit held, “[a]llowing judicial review of an agency action not

specifically provided for by the statute would impermissibly expand

the jurisdiction of this court.”       Harris, 198 F.3d at 142.   Roberts

has not pointed to and we cannot find any independent basis for



                                   5
jurisdiction to review the Board’s decision not to reopen his 1996

claim.

     For the foregoing reasons, Roberts’ petition for review is

                                                       DISMISSED.




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