
USCA1 Opinion

	




          May 17, 1994          [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-2299                                                 FIDEL PAGAN,                                Plaintiff, Appellant,                                          v.                       SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ___________________               Paul Ramos Morales on brief for appellant.               __________________               Guillermo Gill, United States Attorney, Jose Vazquez Garcia,               ______________                          ___________________          Assistant  United States  Attorney,  Randolph W.  Gaines,  Acting                                               ___________________          Chief Counsel for Social Security,  A. George Lowe, Deputy  Chief                                              ______________          Counsel for  Disability Litigation,  and  Richard Fox,  Attorney,                                                    ___________          Office  of  the   General  Counsel,  Social  Security   Division,          Department of Health and Human Services, on brief for appellee.                                  __________________                                  __________________                 Per Curiam.  Appellant  acknowledges that the sole issue                 __________            involved in the instant appeal was addressed by this court in            Rodriguez  v. Secretary of HHS, 856 F.2d 338 (1st Cir. 1988).            _________     ________________            Noting  that  four circuit  courts  have  reached a  contrary            conclusion,  he   requests  that  our  Rodriguez  holding  be                                                   _________            "revisited."  Yet it  is "black-letter law that, in  a multi-            panel  circuit,  newly  constituted   panels  are,  with  few            exceptions  ..., bound  by prior  panel decisions  closely in            point."  Doughty v.  Underwriters at Lloyd's, London, 6  F.3d                     _______     _______________________________            856, 861 (1st Cir. 1993).                 Appellant  has advanced  no reason  to depart  from this            rule,  and we  perceive  none.   It cannot  be said  that our            Rodriguez   decision  has   been  "undercut   by  controlling            _________            authority, subsequently announced, such  as an opinion of the            Supreme Court, an en banc opinion of the circuit court,  or a            statutory  overruling."  Metcalf &  Eddy, Inc. v. Puerto Rico                                     _____________________    ___________            Aqueduct  & Sewer  Auth., 945  F.2d 10,  12 (1st  Cir. 1991),            ________________________            rev'd  on  other  grounds, 113  S.  Ct.  684  (1993).   While            _________________________            subsequent amendments to  42 U.S.C.     406(a) & 423(h)  have            tangential  relevance to the issue, see Akers v. Secretary of                                                ___ _____    ____________            HHS,  966 F.2d 205, 206  (6th Cir. 1992),  they fall short of            ___            dictating  a  construction of  section 406(b)  different from            that  reached in Rodriguez.  Likewise, it cannot be said that                             _________            collateral   authority  has   since  emerged   of  sufficient            persuasiveness  to offer  "a convincing reason  for believing                                         -2-            that the earlier panel ... would change its course."  Metcalf                                                                  _______            & Eddy,  Inc.,  943 F.2d  at  12.   The  court in  Condon  v.            _____________                                      ______            Secretary  of  HHS,  853  F.2d   66  (2d  Cir.  1988),  fully            __________________            explicated  the reasons  for  adopting a  contrary view;  the            ensuing  cases   largely  echo   that  rationale.     And  we            specifically  rejected   the  Condon  court's   reasoning  in                                          ______            Rodriguez.            _________                 Affirmed.                   _________                                         -3-
