                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                          F I L E D
               IN THE UNITED STATES COURT OF APPEALS                     November 8, 2006

                           FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                               Clerk
                            _____________________

                                 No. 06-60529
                               Summary Calendar
                            _____________________



      CHRISTOPHER FANCHER,

                                                         Petitioner,

                                      versus

      UNITED STATES RAILROAD RETIREMENT BOARD,

                                                         Respondent.

          __________________________________________________

                      Petition for Review from an Order
                 of the United States Railroad Retirement Board
                        Docket No. WCA-456-12-0156
          __________________________________________________

Before REAVLEY, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Petitioner Christopher Fancher (“Fancher”) appeals from a decision of the


      *
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
United States Railroad Retirement Board (“the Board”) limiting his annuity as a

disabled child to six months prior to the month of his application. The Court will

uphold the Board’s findings of facts as long as they are supported by substantial

evidence, but reviews any construction of law de novo. McCoy v. R.R. Retirement

Bd., 935 F.2d 87, 88 (5th Cir. 1991). We affirm for the following reasons:

1. Fancher contends that the statute which entitles him to an annuity also entitles

him to receive back benefits from the date of his qualification. In support of his

argument, he refers to 45 U.S.C.A. § 231d, which provides, in pertinent part:

      . . . A child whose entitlement to an annuity under paragraph (iii) of
      section 231a(d)(1) of this title terminated with the month preceding the
      month in which he or she attained age 18, or with a subsequent month,
      may again become entitled to such an annuity (providing no event to
      disqualify the child has occurred) beginning with the first month
      thereafter in which he or she meets the qualifications set forth in clause
      (B) or (C) of such paragraph (iii), if he or she has filed an application
      for such reentitlement.

45 U.S.C.A. § 231d(c)(7) (West 2002).

      Fancher asserts that the phrase “beginning with the first month thereafter in

which he or she meets the qualifications. . .” means that the entitled child must

receive benefits beginning from the date that they qualified for the annuity. The

Board, which does not dispute the application of Section 231d(c)(7) to Fancher’s

case, argues that this part of the statute must be read in conjunction with Section


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231d(a) of the Act, which provides:

      Subject to the limitations set forth below, an annuity under section
      231a of this title shall begin with the month in which eligibility therefor
      was otherwise acquired, but–. . .(iii) in the case of an applicant
      otherwise entitled to an annuity under section. . .231a(d) of this title...
      not earlier than the latest of (A) the first day of the sixth month before
      the month in which the application therefor was filed. . .
45 U.S.C.A. § 231d(a) (West 2002).

      According to the Board’s interpretation, this provision requires that Fancher’s

annuity begin, at the earliest, on the first day of the sixth month before the month in

which he filed his application. Fancher asserts that reading the statute in this way

renders it meaningless. He contends that the specific provision of section

231d(c)(7) conflicts with the more general provision of section 231d(a), and that the

canons of statutory construction provide that the specific provision should govern in

such a case. Edmond v. United States, 520 U.S. 651, 656, 117 S. Ct. 1573, 1578

(1997).1

      We find that the two provisions are not irreconcilable. Words in a statute are



      1
        Fancher also notes that Section 231d(c)(7) contains a sentence providing that
children who cease to be disabled, but become disabled again, “. . . may become
reentitled to an annuity on the basis of such disability upon his or her application for
such reentitlement,” and argues that this different language requires that the two
sentences be interpreted differently. Despite the different wording, we find that the
unambiguous meaning of the two sentences is the same: to be re-entitled to an
annuity, a child must file an application.

                                           3
generally interpreted to bear their common, ordinary meaning. Walters v. Metro.

Educ. Enters., Inc., 519 U.S. 202, 207, 117 S. Ct. 660, 664 (1997). Section

231d(c)(7) simply provides that, if he or she files an application, an applicant may

become entitled to an annuity when they meet one of the statute’s requirements.

Section 231d(a) limits that entitlement to six months before the disabled child files

the application. Thus, as the statute states, Fancher’s annuity should date from the

first day of the sixth month before he filed his application.

2.   Fancher also argues that because no one on the Board suggested to him or his

mother that he might qualify for benefits as a disabled child, the Board deterred him

from applying from an annuity. Federal regulations provide the definition of a

person deterred from filing:

             A person who telephones or visits a Board office stating that he
      or she wishes to file for an annuity or lump sum, but puts off filing
      because of an action or lack of action by an employee of the Board,
      can establish a filing date based on that oral notice if the following
      conditions are met:
             (a) There is evidence which establishes that the employee of the
      Board failed to--
             (1) Tell the person that it was necessary to file an application on
      the proper form; or
             (2) Tell the person that a written statement could protect the
      filing date; or
             (3) Give the person the proper application form; or
             (4) Correctly inform the person of his or her eligibility.
20 C.F.R. § 217.21 (2006).


                                        4
      Fancher does not allege that he attempted to file for an annuity after he

was disqualified for graduating from high school. Instead, he contends that

the Board representatives should have noticed his condition and then

informed his mother that she could apply for an annuity. However, the text of

the regulation states that it applies to those who state “that he or she wishes

to file for annuity or lump sum. . .” Id. The regulation does not place a

burden on Board representatives to recognize a disabled person when he has

not actually applied for a disabled child annuity, even if the representatives

should have known that Fancher was disabled. Fancher applied for and

successfully received one annuity. According to the terms of the regulation,

Fancher needed to state that he wished to file for another annuity before he

could be deterred from filing.

AFFIRMED.




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