Manfredo Salinas v. RRRB ( 2019 )

Case: 18-60702 Document: 00514920754 Page: 1 Date Filed: 04/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60702 FILED
Summary Calendar April 17, 2019
Lyle W. Cayce
Clerk
MANFREDO M. SALINAS,
Petitioner
v.
UNITED STATES RAILROAD RETIREMENT BOARD,
Respondent
Petition for Review from an Order of the
United States Railroad Retirement Board
Agency No. 16-AP-0038
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
Petitioner Manfredo Salinas (“Salinas”) seeks review of a decision by the
United States Railroad Retirement Board (“Board”) refusing to reopen the
denial of his previous application for a disability annuity under the Railroad
Retirement Act, 45 U.S.C. § 231 et seq. Under our circuit precedent, we lack
jurisdiction to review the Board’s decision not to reopen Salinas’ prior case.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-60702 Document: 00514920754 Page: 2 Date Filed: 04/17/2019
No. 18-60702
On February 28, 2006, Salinas applied for a disability annuity under 45
U.S.C. § 231a(a)(1), which was denied by the Board’s Disability Benefits
Division on August 28, 2006. On November 30, 2006, Salinas untimely sought
reconsideration, which the Board’s Reconsideration Section denied, concluding
Salinas had not shown good cause for the untimely filing. Salinas did not
pursue further administrative appeal, and the denial became a final decision
of the Board for reopening purposes on February 9, 2007.
On December 26, 2013, Salinas filed a new application for a disability
annuity. The Board granted him an annuity, but Salinas appealed the
annuity’s beginning date and amount. On February 15, 2015, during that
appeal, Salinas asked the Board to reopen all its decisions on his prior
applications, including the decision denying his February 28, 2006 application.
A Board hearing officer conducted an oral hearing and concluded that Salinas’
2006 application was beyond the four-year timeframe for reopening based on
new and material evidence or administrative error under the Board’s
regulations. See 20 C.F.R. § 261.2. Salinas now petitions this court to review
the Board’s decision not to reopen his 2006 application. 1
Under the Railroad Retirement Act and the Railroad Unemployment
Insurance Act, 45 U.S.C. § 355(f), a petitioner may obtain review of certain
final Board decisions in federal circuit courts. “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.” Roberts v. R.R. Retirement Bd., 346 F.3d 139,
140 (5th Cir. 2003). Salinas argues that the Board’s decision not to reopen his
1Salinas fails to brief whether the Board erred in determining his annuity’s beginning
date and amount. He has therefore abandoned any appeal of those issues. See Milligan v.
Erath Cty., Tex., 95 F.3d 52 (5th Cir. 1996).
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No. 18-60702
2006 application qualifies as a final, reviewable decision under section 355(f).
He acknowledges, however, that this argument is precluded by our 2003
decision in Roberts v. U.S. Railroad Retirement Board. In Roberts, we “joined
several of our sister circuits in determining that we have no jurisdiction [under
section 355(f)] to review the Board’s decision not to reopen a prior claim for
benefits.” Id. at 140; see also id. at 141 (joining Harris v. R.R. Retirement Bd.,
198 F.3d 139, 142 (4th Cir. 1999); Abbruzzese 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)). We acknowledged a circuit split on this issue. See Roberts, 346 F.3d at
141 (recognizing divergent conclusions in Sones v. R.R. Retirement Bd., 933
F.2d 636, 638 (8th Cir. 1991), and Szostak v. R.R. Retirement Bd., 370 F.2d
253, 254–55 (2nd Cir. 1966)). But we sided with the majority of circuits that
had found no jurisdiction to review a Board decision declining to reopen a prior
benefits claim. Roberts, 346 F.3d at 141 (“find[ing] the reasoning of the Fourth,
Sixth, Seventh and Tenth circuits persuasive” in light of Califano v. Sanders,
430 U.S. 99 (1977)).
Despite Roberts, Salinas invites us to follow the D.C. Circuit’s recent
decision in Stovic v. Railroad Retirement Board, 826 F.3d 500 (D.C. Cir. 2016).
Stovic joined the minority of circuits in holding that “the Railroad Retirement
Act grants the [circuit] Court jurisdiction to review Board decisions denying
requests to reopen initial benefits determinations.” Id. at 502; see also id. at
504 (disagreeing with majority of circuits, including Roberts). We are not at
liberty to accept Salinas’ invitation to ignore Roberts, which established our
circuit’s controlling precedent on this issue. The rule of orderliness prevents
this panel from reconsidering that decision. See, e.g., Vaughan v. Anderson
Reg’l Med. Ctr., 849 F.3d 588, 591 (5th Cir.), cert. denied, 138 S. Ct. 101 (2017).
The petition is DISMISSED.
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