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      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit



No. 98-1566

                         KAREN A. POISSON
                     FOR NICHOLAS D. POISSON,

                      Plaintiff, Appellant,

                                v.

          COMMISSIONER, SOCIAL SECURITY ADMINISTRATION,

                       Defendant, Appellee.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]



                              Before

                     Selya, Stahl and Lynch,
                        Circuit Judges.
                                
                                
                                
                                
     Matthew B. Cox and Burns, Bryant, Hinchey, Cox & Rockefeller,
P.A. on brief for appellant.
     Paul M. Gagnon, United States Attorney, Arthur J. Fried,
General Counsel, Charlotte J. Hardnett, Principal Deputy General
Counsel, John M. Sacchetti, Associate General Counsel, and Karen J.
Aviles, Attorney, Office of the General Counsel, on brief for
appellee.





December 11, 1998



                                
                                
      Per Curiam.  In this action for a retroactive award of
  child's insurance benefits, claimant Karen Poisson, on behalf
  of her son Nicholas, appeals from a judgment dismissing the
  suit for lack of jurisdiction.  The district court based its
  decision on Califano v. Sanders, 430 U.S. 99, 107-09 (1977),
  which held that the Commissioner's denial of a request to
  reopen an earlier claim is ordinarily not subject to judicial
  review.  While this rule is not without exception, claimant has
  advanced no reason why it should not apply here.  We therefore
  affirm. 
      On July 1, 1989, several weeks after claimant became
  pregnant, her boyfriend Daniel Gagne was tragically killed in
  a motorcycle accident (without learning of the pregnancy). 
  Nicholas was born on March 15, 1990.  Soon thereafter, claimant
  applied for child's benefits but was unable to prove Gagne's
  paternity.  Her claim was thus denied both initially (on May 6,
  1990) and on reconsideration (four months later); no further
  review was sought.  Instead, allegedly heeding advice given to
  her by agency personnel, claimant turned to state court in an
  attempt to obtain a paternity decree.  On November 8, 1994, a
  settlement was reached with Gagne's parents (and approved by
  the court) acknowledging that Gagne was Nicholas' father.
      Armed with this new evidence, claimant filed a second
  application for child's benefits on November 10, 1994--only to
  discover that she had missed, by some six months, the four-year
  deadline for reopening her first claim.  See 20 C.F.R. �
  404.988(b) (permitting reopening for "good cause" within four
  years of date of notice of initial determination); id. �
  404.989(a)(1) (defining good cause to include "new and material
  evidence").  As a result, she was successful only in part.  The
  agency agreed to award benefits on a prospective basis
  (commencing in May 1994), but refused to reopen the first
  application so that benefits could be awarded retroactively to
  1990.  Claimant sought review of this latter ruling, first
  before an Administrative Law Judge (ALJ) and then before the
  Appeals Council, but to no avail.  Her ensuing federal court
  action, as mentioned, was dismissed for lack of jurisdiction. 
  Claimant now appeals from this determination.
      In contending that the district court had jurisdiction to
  entertain her suit, claimant advances a pair of contentions. 
  First, she argues that she has satisfied the exception
  recognized by the Sanders Court for claims involving a
  colorable constitutional issue.  See 430 U.S. at 109.  Yet the
  constitutional claim she attempted to articulate below--that
  the Commissioner effectively requires that illegitimate
  children establish paternity solely by way of a court order, in
  contravention of due process and equal protection--is factually
  belied by the record.  And the separate claim she appears to be
  advancing on appeal--that the immutable nature of paternity
  renders the denial of retroactive benefits in this context
  arbitrary and irrational--was not raised below, is
  unaccompanied by developed argumentation, and appears dubious. 
  Cf. Shepherd ex rel. Shepherd v. Chater, 932 F. Supp. 1314,
  1317-18 (D. Utah 1996) (upholding statutory twelve-month limit
  on retroactive child's benefits against constitutional attack).
      Alternatively, claimant asserts that because the 1990 and
  1994 applications both hinged on the issue of paternity, the
  Commissioner "constructively" reopened the former when he
  favorably addressed the latter.  And to that extent, claimant
  argues, the decision is subject to review.  See, e.g., McGowen
  v. Harris, 666 F.2d 60, 65-66 (4th Cir. 1981).  Admittedly, it
  is difficult to dispute that "[t]he ALJ of necessity
  reconsidered the merits of the earlier claim when granting the
  later one, because the claims were identical."  Bolden ex rel.
  Bolden v. Bowen, 868 F.2d 916, 918 (7th Cir. 1989); accord
  Whitlock v. Chater, 959 F. Supp. 324, 331 (W.D. Va. 1997).  As
  a result, if a reopening were possible here, it might well be
  appropriate to conclude that a de facto reopening had occurred
  (despite the ALJ's specific language to the contrary).  Cf.
  Taylor ex rel. Peck v. Heckler, 738 F.2d 1112, 1114-15 (10th
  Cir. 1984) (finding de facto reopening where first and second
  claim, filed three years apart, were each rejected for
  insufficient proof of paternity).
      Yet we need not decide that issue, inasmuch as a reopening
  was not authorized here.  Claimant did not satisfy any of the
  criteria in 20 C.F.R. � 404.988(c) permitting reopening "at any
  time."  See, e.g., Robinson v. Heckler, 783 F.2d 1144, 1146 n.3
  (4th Cir. 1986).  And as mentioned, she missed the four-year
  deadline that governs reopenings for "good cause."  It is well
  settled that the Commissioner lacks discretion to reopen a
  claim, whether on a de facto basis or otherwise, except as
  permitted by regulation.  See, e.g., King v. Chater, 90 F.3d
  323, 325 (8th Cir. 1996); Boock v. Shalala, 48 F.3d 348, 352
  (8th Cir. 1995) (Campbell, J., sitting by designation, for the
  court); Coates ex rel. Coates v. Bowen, 875 F.2d 97, 102 (7th
  Cir. 1989).  And in circumstances similar to those here, courts
  have relied on this same rationale to withhold retroactive
  child's benefits where paternity (or dependency) was only
  established in a subsequent claim filed more than four years
  after the first.  See, e.g., Hall v. Chater, 52 F.3d 518, 520-
  21 (4th Cir. 1995); Bolden, 868 F.2d at 917-19; Robinson, 783
  F.2d at 1146; Whitlock, 959 F. Supp. at 332.
      Such a result is admittedly harsh.  We note, for example,
  that claimant has acted with reasonable diligence throughout. 
  More important, as she emphasizes, the fact of paternity cannot
  change over time.  Nonetheless, the administration of social
  welfare programs requires prophylactic rules, which unavoidably
  will often fit only roughly when applied to individual
  situations.  See, e.g., Weinberger v. Salfi, 422 U.S. 749, 769
  (1975).  Because the applicable rules prohibit a reopening
  here, we conclude that no de facto reopening occurred.  We
  therefore agree that the district court was without
  jurisdiction in light of the Sanders decision.
      Affirmed.
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