ELY, Circuit Judge (with whom CHAMBERS, KOELSCH, WRIGHT, TRASK, CHOY, GOODWIN and SNEED, JJ., concur):

Stuckey appeals from the District Court's dismissal, for lack of jurisdiction, of his complaint seeking review of an administrative determination denying reopening, in part, of his claims for disability insurance benefits. We affirm.

In 1954, Stuckey suffered a severe back injury. Shortly thereafter, in 1955, he filed a claim with the Social Security Administration ("SSA") for disability benefits. That claim was denied, both initially and upon reconsideration,1 because Stuckey failed sufficiently to demonstrate that he was disabled within the meaning of the Social Security Act.2 The denial of benefits was reaffirmed after a hearing conducted at Stuckey's request. The SSA Appeals Council declined to review the decision of the hearing officer. Having exhausted his administrative remedies, Stuckey filed an action in the District Court. That court remanded to the SSA, upon the agency's request, for further consideration because Stuckey, after filing, entered a hospital for further treatment of his back. Upon remand, the SSA conducted a supplemental hearing at which Stuckey testified and was represented by counsel. On the expanded record, the prior denial of benefits was affirmed by both a hearing officer and the Appeals Council. Their decision was approved by the District Court when Stuckey renewed his court action.

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In November, 1959, several months after the District Court's decision, Stuckey filed another claim for benefits. Two months after that, he filed a third. Both covered the same facts and were, in effect, identical to the first claim. Meeting a similar fate by the SSA,3 they were denied, both initially and upon reconsideration. The denial was affirmed by a hearing officer, and his decision became final when the Appeals Council declined Stuckey's request for review. The hearing examiner based his decision upon findings that res judicata4 precluded reconsideration of matters already decided by the District Court and that Stuckey's condition had not been materially changed since that decision was rendered.

In August, 1962, Stuckey filed yet another claim. This application, too, was denied initially and upon reconsideration. Local SSA officials declined to provide Stuckey the benefits he sought. The hearing examiner, reviewing the claim of Stuckey's request, affirmed the denial of benefits; he could find no justification for reopening the prior final decisions. After the Appeals Council declined to review the decision of the hearing officer, Stuckey sought judicial review. His suit was dismissed by the District Court.

Two more claims were filed in 1965. Both were denied by the SSA at the outset, and Stuckey did not seek review of those denials.

Finally, in 1966, Stuckey filed the application which, ultimately, led to this appeal. Like its numerous, virtually identical predecessors, this claim was denied in the first instance and, then, upon reconsideration. Stuckey then requested a hearing. At the hearing, the issue was different than it had been before. This time the question was whether Stuckey qualified for benefits under the terms of the Social Security Act as it had been amended in 1965. On the basis of the evidence adduced at the hearing,5 Stuckey was found to be disabled and entitled to benefits. The amount awarded was, however, severly restricted by the hearing officer. He ruled that under the amended provisions of the act, benefits could be awarded only from September, 1965. Further, he ruled that Stuckey's claim for benefits under the pre-1965 law was foreclosed by application of the principle of res judicata. See 42 U.S.C. Sec. 405(h); 20 C. F.R. Sec. 404.937. Dissatisfied with that limited victory, Stuckey sought review by the Appeals Council.

The Appeals Council modified the hearing officer's decision. It agreed that Stuckey was disabled and was entitled to benefits under the 1965 amendments, but it disagreed with the determination that Stuckey's pre-1965 claims could not be reopened. The Council applied an exception to the general policies of finality and res judicata (20 C.F.R. Secs. 404.956-404.958).6 Under that regulation, reopening was possible because Stuckey had presented "new and material evidence" within four years of the date when benefits were initially denied.7 It therefore reopened those of Stuckey's prior applications which fell within the four-year period and granted Stuckey part of the benefits he sought. The other claims were deemed not subject to reopening.8

Stuckey, still unsatisfied, then filed his latest suit in the District Court. The court held (1) it had no jurisdiction to review the decision that several of Stuckey's claims would not be reopened, and (2) the decision of the Secretary was correct insofar as it allowed reopening and modified the disposition of the more recent claims. Stuckey appealed and now contends that all of his prior claims should have been reopened.9

At the threshold, we have the question of the correctness of the District Court's determination that there is no jurisdiction to review the denial of reopening. The Social Security Act does allow judicial review in some situations. It is now settled, however, that the relevant section of the Act provides no basis for jurisdiction here. In a similar case, Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963), we held:

"[T]he orders made judicially reviewable by Subsection (g) of Section 405 are orders authorized by Subsection (b) of Section 405 which make findings of fact and decisions as to rights of applicants for payment, or which affirm, modify, or reverse such orders, and not orders which merely deny petitions to reopen proceedings in which such findings and decisions have been made." 319 F.2d at 445-446 (Emphasis added)

Stuckey does not challenge the correctness of the rule announced in Filice. Rather, he contends that there is another basis for jurisdiction. Citing Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), he argues that decisions not to reopen are reviewable, for abuses of discretion, under the Administrative Procedure Act ("APA") (5 U.S.C. Secs. 701-706). The APA authorizes judicial review of "final agency action for which there is no other adequate remedy in a court" (5 U.S.C. Sec. 704) except

"to the extent that-(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."

The Cappadora court determined that the Social Security Act neither precludes review nor wholly commits decisions regarding reopening to the discretion of the Secretary. Although we entertain immense respect for our Brothers of the Second Circuit, we can not fully accept their conclusions.10

"[W]e do not believe that Congress would have wished to close the doors of the courts to a plaintiff whose claim for social security benefits was denied because of an unreasonable or inappropriate agency rule on reopening or because of a truly arbitrary administrative decision . . .. Absent any evidence to the contrary, Congress may rather be presumed to have intended that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion and safeguarding the rights of the individual."

356 F.2d at 6. While we basically agree with these quoted principles, we reject the broad scope of the Cappadora decision since we perceive, in the Social Security Act, convincing evidence that Congress did intend to bar judicial review of SSA decisions in certain cases. Section 405(h) of the Act provides in part that "the findings and decisions of the Secretary after a hearing shall be binding upon all . . . who were parties to such hearing." The obvious purpose of that language is to declare that res judicata principles are applicable to the findings and decisions of the SSA made in certain procedural contexts.11 See, e. g., Leviner v. Richardson, 443 F.2d 1338, 1342-1343 (4th Cir. 1971); III K. Davis, Administrative Law Treatise Sec. 18.02 (1958 ed.; supp. 1971) [hereinafter cited as Davis]. We have concluded that the Congress intended, by this distinction, to commit irrevocably to agency discretion those decisions which are rendered after full and fair agency hearings and to which, accordingly, the application of the traditional concept of res judicata could not be fairly seen as unreasonable. Thus committed, these decisions are beyond the jurisdiction of the courts under both the Act and the APA.

We attribute this effect to Sec. 405(h) for two reasons. First, by its broad, unambiguous terms, finality is applicable, without reservation, to all procedurally correct decisions and findings of the Secretary. That, of course, cannot be interpreted literally. Even as to judicial decisions, the doctrine of finality does not have such a broad application, for there are clearly some of such decisions to which res judicata cannot be applied. See Davis Sec. 18.03; 1 Moore's Federal Practice p 0.405 (1965). Nevertheless, within the limits of the res judicata doctrine, Sec. 405(h) reflects the policy of strict finality. That Congressional policy is, we think, that, in the interests of administrative efficiency, every claimant seeking benefits under the Social Security Act should be given only one opportunity12 to obtain the benefits accruing from an administrative system that guarantees a full panoply of procedural rights. See Hobby v. Hodges, 215 F.2d 754, 759 (10th Cir. 1954). In light of the vast number of claims processed annually by the SSA, this limitation is wholly reasonable.13 The administrative costs of the procedures specified in Sec. 405 are undoubtedly great. Each claimant is entitled to have his claim reviewed three and possibly four times before he may appeal to the courts. If every claimant were free to utilize those excellent procedures repeatedly to relitigate the same claim, the fiscal stability of the SSA could be dangerously undermined by such escalating burdens as would be necessarily consequential.

Secondly, if the barrier to relitigation in Sec. 405 is to be effective, it must apply to judicial, as well as administrative, review. Otherwise, the courts would exercise review powers far beyond those anticipated in the statute. (See Sec. 405(g); see generally Leviner v. Richardson, supra.) Claimants seeking to resurrect stale claims would turn to the courts for relief if it were, by law, unavailable from the SSA. That, in turn, would frustrate the expressed policy of finality. Persistent claimants could relitigate claims numerous times in hopes of securing a favorable decision, at great cost to both the SSA and the courts. See Hobby v. Hodges, supra. Each petition for review would necessarily involve the agency, and ultimately the courts, in a reexamination and reevaluation of the evidence previously adduced to support the original claim for benefits.14 The restriction upon relitigation, prescribed in Sec. 405, would evaporate. There is the consideration, too, that the jurisdiction of the federal courts is supposed, in general, to be conferred by Congress. In a situation wherein Congress has not clearly conferred jurisdiction in respect to a particular type of controversy, the courts should exercise a discreet restraint, especially in these times, in assuming it.

Given the effect of Sec. 405, the critical issue becomes its scope: exactly which claims for review are beyond the courts' jurisdiction? The answer is derived from the res judicata doctrine, for its limits define the boundaries of the judicial power in cases like this. That doctrine is the vehicle Congress has employed to put some of the Secretary's decisions beyond review.

When applied to administrative decisions, the res judicata doctrine is not as rigid as it is with courts; there is much flexibility which is intended to adapt the doctrine to the unique problems of administrative justice. See III Davis Sec. 18.03. Nevertheless, the doctrine retains full force when applied to adjudications of "past facts, where the second proceeding involves the same claim or the same transaction." Id. In those situations, the findings and decisions are res judicata and "the question whether the (tribunal making the decision is) an agency or a court is immaterial." Id. There is, therefore, no jurisdiction in the courts to review denials of reopening when the basis for the petition for reopening is an allegedly erroneous factual determination.15 Reconsideration of those types of issues is barred by Sec. 405, if the Secretary denies reopening.

The regulations which allow reopening in cases presenting issues unrelated to res judicata (e. g., 20 C.F.R. Sec. 404.957(c)(8) allowing reopening to correct clerical errors) are a necessary aspect of the flexibility of the finality doctrine. See III Davis Sec. 18.03 at 559-60 n.3 (1958 ed.). Since the issues presented in cases arising under regulations of this kind are not factual ones, and thus are not subject to res judicata, such cases are subject to judicial review for the purpose of determining whether the SSA correctly applied the controlling regulation. In addition, of course, judicial review is available to determine the validity of the regulations themselves.

Regulations promulgated by the Secretary permit reopening in some circumstances, of prior, final factual determinations. See, e. g., 20 C.F.R. Sec. 404.957(b), allowing reopening for "good cause" in certain cases. Such regulations may not be fully consistent with strict res judicata principles, but, as we view them, they represent permissible action taken by the Secretary to insure that the SSA shall operate fairly, according to claimants all procedural rights except such as would, in his expert opinion, unreasonably burden the SSA's operation. See generally III Davis Sec. 18.03. They are per se reasonable under Sec. 405(a). The Secretary also has discretion in the application of these regulations. If, after reviewing a petition for reopening which seeks redetermination of an issue subject to res judicata, he concludes, for example, that "good cause" was not shown therein, and he denies reopening, that denial is final. Since the Secretary need not ever grant reopening of claims subject to res judicata, whether he does so in any given case is entirely a matter of administrative grace.

We turn to consider the nature of the issues underlying Stuckey's petition for reopening. As we read the record, Stuckey advances two arguments. First, he argues that the determinations of nondisability made prior to 1966 were patently erroneous, and, hence, reopening is proper because of this "error on the face of the evidence." (20 C.F.R. Secs. 404.957(c)(8), 404.958(c)). This, he suggests, is proved by the SSA's finding of disability in 1966. Next, he contends that the decisions rendered prior to 1966 were wrong because there was inadequate evidence that he was in fact employable and, hence, not disabled.

Neither of Stuckey's arguments is persuasive. It is readily apparent that both relate to factual issues which, through res judicata, were conclusively determined long ago. Stuckey could have sought judicial review when the decisions he challenges were originally rendered. Since he failed to do so, the administrative decisions and the District Court decision became binding upon him. It would be wrong for the courts to intrude simply because the Secretary, exercising his discretion, chose not to relieve Stuckey of the latter's neglect.16

MERRILL, Circuit Judge (with whom BROWNING, DUNIWAY, HUFSTEDLER and WALLACE, JJ., concur) concurring:

I concur in the result. The reasons advanced by Judge Ely for according respect to earlier administrative determinations on the basis of administrative res judicata provide ample grounds for affirming on the merits the decision of the Secretary to deny reopening.

However, I agree with the Second Circuit, for the reasons set forth in Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), that a limited area of judicial review has been afforded by the Administrative Procedure Act, and that the second sentence of 42 U.S.C. Sec. 405(h) should not be construed to preclude judicial review; that that sentence "simply forbids attempts to review final decisions on the merits by any route other than that provided in Sec. 405(g)." 356 F.2d at 5. (Emphasis supplied.) Proceeding to limited review of the Secretary's decision here, I would affirm that decision on the merits.