Pagan v. SHHS

USCA1 Opinion

          May 17, 1994          [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 93-2299

            


                                     FIDEL PAGAN,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                   [Hon. Gilberto Gierbolini, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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                                 ___________________

               Paul Ramos Morales on brief for appellant.
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               Guillermo Gill, United States Attorney, Jose Vazquez Garcia,
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          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.



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                 Per Curiam.  Appellant  acknowledges that the sole issue
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            involved in the instant appeal was addressed by this court in

            Rodriguez  v. Secretary of HHS, 856 F.2d 338 (1st Cir. 1988).
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            Noting  that  four circuit  courts  have  reached a  contrary

            conclusion,  he   requests  that  our  Rodriguez  holding  be
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            "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
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            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
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            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
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            Aqueduct  & Sewer  Auth., 945  F.2d 10,  12 (1st  Cir. 1991),
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            rev'd  on  other  grounds, 113  S.  Ct.  684  (1993).   While
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            subsequent amendments to  42 U.S.C.     406(a) & 423(h)  have

            tangential  relevance to the issue, see Akers v. Secretary of
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            HHS,  966 F.2d 205, 206  (6th Cir. 1992),  they fall short of
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            dictating  a  construction of  section 406(b)  different from

            that  reached in Rodriguez.  Likewise, it cannot be said that
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            collateral   authority  has   since  emerged   of  sufficient

            persuasiveness  to offer  "a convincing reason  for believing



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            that the earlier panel ... would change its course."  Metcalf
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            & Eddy,  Inc.,  943 F.2d  at  12.   The  court in  Condon  v.
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            Secretary  of  HHS,  853  F.2d   66  (2d  Cir.  1988),  fully
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            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
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            Rodriguez.
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                 Affirmed.  
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