* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 95-10770

____________________

AGUSTIN OLIVA,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

____________________________________________

Appeal from the United States District Court

for the Northern District of Texas

( 5:94-CV-018-C )

____________________________________________

August 19, 1996

Before POLITZ, Chief Judge, JOLLY and BARKSDALE, Circuit Judges.

PER CURIAM:*

Agustin Oliva challenges the dismissal, for lack of

jurisdiction, of the administrative decision not to reopen. The

appeal is DISMISSED.

I.

This action concerns three applications for disability

insurance benefits (DIB) under Title II of the Social Security Act,
2

42 U.S.C. §§ 401-431; the last two also sought supplemental

security income (SSI) benefits, under Title XVI of the Act, 42

U.S.C. §§ 1381-1382(i). (All of the administrative action occurred

before transfer to the Commissioner of Social Security.)

In April 1986, Oliva filed his first application for DIB,

beginning a year earlier; it was initially denied, was denied again

in August 1987, after a hearing by an Administrative Law Judge, and

review was denied by the Appeals Council in February 1988. No

review was sought in district court.

In December 1988, Oliva filed a second application, this time

seeking DIB and SSI. It was denied in June 1989, and no further

action was taken. 

In March 1990, Oliva filed his third application. It is the

administrative action under review; it sought DIB beginning in

April 1985, and SSI only as of March 1990. That June, the SSI

claim was approved upon finding that Oliva was disabled beginning

on March 1, 1990; but, the DIB claim was denied upon finding that

he was not disabled on any date through December 1988, when he was

last insured for DIB. 

That September, Oliva’s request for reconsideration and

reopening of his prior applications was denied; but, pursuant to

his request, a de novo hearing was held before an ALJ in August

1991. The ALJ’s May 1992 decision stated:

The previous finding of disability on March 1,

1990, and subsequent allowance of Title XVI
3

[SSI] as of March 26, 1990, has provided

[Oliva] all the benefits to which he is

eligible. There is not sufficient evidence to

support the reopening of the prior final and

binding decision and determinations of ...

1987 and ... 1989. 

Accordingly, the ALJ concluded that Oliva was not entitled to DIB,

but was entitled to the SSI which had been granted. 

Oliva filed for review in district court. It held that res

judicata applied to the first two administrative actions, and,

therefore, dismissed for lack of jurisdiction.

II.

Concerning jurisdiction vel non, “federal court review of the

Secretary’s denial of a motion to reopen a claim lies only where a

colorable constitutional question is at issue.” Torres v. Shalala,

48 F.3d 887, 890 (5th Cir. 1995). If the challenge is not on

constitutional grounds, the Social Security Act “does not afford

subject-matter jurisdiction” for such review. Califano v. Sanders,

430 U.S. 99, 109 (1977). Restated, “a federal court does not have

jurisdiction to review the non-constitutional bases of the

Secretary’s decision on a petition to reopen.” Thibodeaux by

Thibodeaux v. Bowen, 819 F.2d 76, 80 (5th Cir. 1987). Therefore,

to determine jurisdiction, we must answer two inquiries: whether

the Secretary denied reopening; and whether a colorable

constitutional question is at issue.

A.
4

Oliva claims that, despite the ALJ’s stating that there was

insufficient evidence to support reopening, his claim was reopened

constructively because the ALJ reconsidered on the merits the prior

administrative decisions. This contention fails for the following

reasons. 

Oliva requested a hearing on his concurrent DIB and SSI

applications; as a result, the ALJ’s decision addressed both.

“[R]eceiv[ing] a hearing on [a] petition to reopen does not convert

the denial of [a] request for a hearing on the merits of [a] claim

into a reviewable decision.” Thibodeaux, 819 F.2d at 80. 

The ALJ’s analysis was necessary for deciding Oliva’s SSI

application. The ALJ’s discussion of evidence offered to support

reopening Oliva’s DIB application was a “threshold inquiry”; this

does not constitute a reconsideration on the merits. Triplett v.

Heckler, 767 F.2d 210, 213 (5th Cir. 1985), cert. denied, 474 U.S.

1104 (1986). 

Moreover, the “reopened constructively” contention is rebutted

directly by the ALJ’s statement that the application was not

reopened because of insufficient evidence to justify it. Because

the application was not reopened, the prior decisions have

preclusive effect; we can review this latest/final decision on the

earlier applications only if a colorable constitutional question is

raised. 

B.
5

In June 1989, Oliva’s second application was denied. He did

not take further action on it. He claims that the notice he

received for that denial violated his right to due process because

it did not indicate that if he did not appeal, the determination

would be final and he might lose benefits. As in Torres, 48 F.3d

at 893, we need not reach whether the language in the notice

violated due process, because we conclude that Oliva lacks standing

to present this claim. 

Torres adopted the Tenth Circuit’s requirement in Gilbert v.

Shalala, 45 F.3d 1391, 1393 (10th Cir.), cert. denied, 116 S. Ct.

49 (1995)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992)), that, “to show standing to raise a constitutional claim

... [, the a]ppellant [must show a] causal connection between the

allegedly misleading language in the ... notice[] and his

subsequent failure to seek judicial review.” Torres, 48 F.3d at

893. Torres’ three DIB applications were denied, id. at 889-90; in

conjunction with his second, he received four adverse determination

notices at different stages in the administrative process, id. at

893. He challenged the language in the first two (the language in

the third and fourth was more detailed) on due process grounds,

claiming, as does Oliva, that our court should follow the Ninth

Circuit and find the language unconstitutional because it misled

him and “did ‘not clearly indicate that if no request for

reconsideration is made, the determination is final.’” Id.
6

(quoting Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.

1990)). 

Instead, our court followed the Tenth Circuit’s decision in

Gilbert. Noting that Torres “exercised his right to appeal despite

the language in the first two notices, and chose not to seek

judicial review despite the fourth notice’s detailed instructions”,

our court held that he had not relied upon the allegedly inadequate

notice and thus lacked standing. 48 F.3d at 893. It reasoned that

“[t]o satisfy the causal connection requirement of Defenders of

Wildlife, [Torres] must show that he relied on the challenged

language in the ... notices.” Id. 

Oliva asserts that, under Gonzalez, he has a constitutional

claim that the notice he received for his second application was

defective and that inadequate notice is a due process violation per

se. But, on the other hand, he conceded at oral argument that,

under Torres, he has no inadequate notice claim for his first

application because he took administrative appeals. He urges,

however, that he does have a claim under Torres for the second

application notice, because he did not appeal that denial. Most

significantly, however, Oliva does not assert that the second

application notice language affected his decision not to seek

review.

Indeed, such an argument would be far-fetched. The notice

after denial of the second application was identical to that for
7

the first. Because Oliva sought review of that first denial,

despite the language in its notice, he cannot claim that language

in the identical notice kept him from doing so the second time

around. 

In short, Oliva has not shown any causal connection between

the claimed inadequate notice and his failure to seek review of his

second application denial. Accordingly, he lacks standing to raise

this constitutional claim.

III.

Because the Secretary declined to reopen Oliva’s case and he

has not raised a colorable constitutional claim, we have no

jurisdiction over this appeal. Accordingly, we do not reach any of

the other issues presented by Oliva. The appeal is 

DISMISSED.