Salinas v. U.S. Railroad Retirement Board

Oral argument transcript · No. 19-199 · October Term 2020 · argued November 2, 2020 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Sarah M. Harris, Washington, D.C., for the petitioner
• Austin Raynor, Assistant to the Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 19-199, Salinas versus United States Railroad Retirement Board. Ms. Harris. ORAL ARGUMENT OF SARAH M. HARRIS ON BEHALF OF THE PETITIONER

Sarah M. Harris: Mr. Chief Justice, and may it please the Court: Because Congress, in Section 355(f), subjected any final decision of the Railroad Retirement Board to judicial review, all final decisions, including reopening denials, are reviewable. The government is incorrect that 355(f) limits review only to decisions under 355(c). First, the government reads 355(f) to say parties aggrieved by any final decision under 355(c) may challenge any such final decision. That impermissibly adds the word "such." 355(f) says any final decision, full stop. Any final decision tracks the broad language of Section 231g, the RRA's parallel 1 judicial review provisions governing claims like Mr. Salinas's. Second, only our reading makes sense of both the RUIA and the RRA. Section 355(c) mandates hearings or Board appeals for specific RUIA decisions. If Congress wanted to limit judicial review across both statutes, the RRA should parallel 355(c). But it doesn't. The RRA doesn't mandate any hearings. The RRA mandates Board appeals for different decisions than 355(c). And Section 231g extends judicial review beyond decisions entitled to Board appeal. It's not plausible that Congress can find judicial review under both statutes to decisions with no similar significance under the RRA, which applies to 96 percent of beneficiaries. And, third, limiting judicial review to decisions under 355(c) would foreclose review of all other decisions, like refusals to modify or terminate benefits. To avoid that result, the government tries to bend 355(c) to fit most of these decisions. But, if the text is that broad, 1 there's no principled basis for excluding reopening denials from 355(c).

Chief Justice Roberts: Counsel, let's begin with 231g since this is an RRA case, and it says that what's subject to judicial review are "decisions of the Board determining the rights or liabilities of any person under the Act." Now Board determinations -- the Act is just chock full of them. They're -- they're determining substantive things like who's eligible for how much money, who's eligible for annuity, what are the benefits for spouses, where does the money come from. Nothing like a decision about whether to reopen. So shouldn't we look at that under the RRA in determining whether or not such procedural questions are subject to judicial review?

Sarah M. Harris: Well, no. I think the text of 231g and its use of the phrase "determining the rights or liabilities of any person" is more than capacious enough to fit a decision like a denial of reopening, which is the agency's last word in denying the claim for 1 benefits.

Chief Justice Roberts: So maybe in the -- maybe in the abstract, you can say, well, this is a determination of a right. But the phrase "determinations of the Board," it's almost a term of art in the statute. They're -- and they're talking about rights and liabilities in a substantive way.

Sarah M. Harris: Well, I think the rest of 231g actually refutes an interpretation that is limited to the initial substantive benefits determination, because, if you look at the "except" clause of 231g, it says "except at the time within which proceedings for review of a decision with respect to an annuity or other listed benefits may be commenced." So that phrase is clearly narrower than the phrase "decisions determining rights or liabilities," which signals that things like reopening denials would certainly fit within the first clause.

Chief Justice Roberts: Well, the only type of determinations that are reviewable are, even if you're right about rights or liabilities, the rights or liabilities under the 1 Act. And the reopening right isn't under the Act. It's under a regulation.

Sarah M. Harris: But, as I think the Court noted in Kucana versus Holder, the word "under" is a bit of a chameleon and it depends on context. And it would be strange to think that the RRA only means under the statute and not under the different regulations that the Board might promulgate when we have a statute here where Congress was pretty clear that it was delegating to the Board a lot of power to make --

Chief Justice Roberts: Well, but that's like --

Sarah M. Harris: -- those decisions.

Chief Justice Roberts: -- that's like saying just because Congress has delegated authority under the Constitution to enact statutes, that every violation of a statute is a constitutional violation. And that doesn't make sense.

Sarah M. Harris: Well, I think there's also a problem then. If you -- if you think that it has to be under the statute only, then you also have a weird asymmetry with the RUIA 1 because there are some decisions that are mentioned in the text of the RUIA but not under the text of the RRA, like --

Chief Justice Roberts: Thank you, counsel. Justice Thomas. Justice Thomas.

Justice Thomas: Thank you, Mr. Chief Justice. Ms. Harris, what is the statutory or regulatory basis for the reopening? Do you -- and what I'm getting at is whether or not you have a stated right to a reopening.

Sarah M. Harris: There is a regulatory basis for reopening in, for instance, 20 C.F.R. 261, and it's something that the Board understood as early as 1939 would always be part and parcel of its decisionmaking because of the importance of checking errors and preventing arbitrariness in a complex benefits scheme.

Justice Thomas: So why is it when a -- an agency -- the agency decides not to reopen a case, it's simply deciding not to decide that again or to reconsider it, as opposed to again deciding sort of indirectly the underlying substantive issue?

Sarah M. Harris: So I think there's a key distinction that underlies a lot of this Court's cases and explains why there's such a strong tradition of judicial review for reopening denials, especially when they involve new evidence, like the case here. And that reason is, when you have something where a litigant is, for instance, asking for reopening on the basis of new evidence or new circumstances, that does make the claim different and makes it something that's possible for courts to review in a way that's different from maybe a pure rehash. So, in Brotherhood of Locomotive Engineers, for instance, the Court distinguished between those two things and said it would be fundamentally unfair to deny someone the opportunity to present new evidence that the agency hadn't considered before. And that also, I think, distinguishes Sanders, which did involve that kind of rehashing claim. And the Court has thus considered the rehashing-type claim as potentially committed to agency discretion but has always allowed judicial review of denials of reopening like 1 this one that are based on new evidence. And I think that reflects that it's such an important safeguard to keep the agency accountable in this context.

Justice Thomas: But how far do you go with that, Ms. Harris? The -- what if we denied cert or denied petition for rehearing of cert in a case that totally involves state law? Are you saying that we actually -- that we went back or that we reached a state law issue simply by denying cert or by denying the petition for rehearing?

Sarah M. Harris: No, I'm definitely not saying that. What I'm saying is those types of decisions might constitute final agency action in a technical sense, but those would involve a rehashing of the same record that was always before the Court in your -- in your sort of parallel hypothetical, unlike a situation here, where there is new evidence. And I think that's why Brotherhood of Locomotive Engineers actually used the rehearing en banc hypothetical to distinguish and illustrate the distinction between new evidence, reopening-type claims, which are judicially 1 reviewable, and rehashing claims, which are generally committed to agency discretion.

Justice Thomas: Thank you.

Chief Justice Roberts: Justice Breyer.

Justice Breyer: Well, my question was basically the same as the Chief Justice's, and it seems to me on that question you have going against you, first, the language of it, of rights and liabilities, read in light of what we said in two cases. It's both Your Home Visiting Nurse and also Califano v. Sanders. Then you have the fact that nobody -- no lower court decided in your favor, I think -- maybe there was an exception, I don't know -- since the 1960s or 1970s, and since then, the cases have gone the other way in the lower courts, and it would make a kind of hash of the statute of limitations. Otherwise, you have the presumption of judicial review in your favor. So I want to see if there's anything you want to add on the negative part.

Sarah M. Harris: Sure. I'd like to take Your Home and Califano first, because I think that Your Home, when it said that there is a 1 sort of -- that reopening seemed like a refusal --

Justice Breyer: Yeah.

Sarah M. Harris: -- to make another decision, Your Home, again, is sort of talking about the situation where there's a rehash claim. And if you took Your Home to be foreclosing judicial review of all sorts of reopening claims based on new evidence, that would be a sea change in the way the Court has considered them. Now Califano --

Justice Breyer: Well, what I don't see is how we can do the one without the other. We have language here that the Chief cited. How -- how do we do that? How do we get to that point in your view?

Sarah M. Harris: Well, I think, if you thought that a reopening denial was never a decision that determined rights or liabilities, you'd have serious questions about why it was ever considered a final decision. And there are so many contexts in which it is considered a final decision, including countless immigration decisions and also the interstate commerce 1 context. And I think Califano, which you mentioned, actually shows exactly why the statutory language is so much in our favor. The language in Califano involved a statute, it's Section 405(g), that says judicial review is confined to final decisions made after a hearing. And in Smith versus Berryhill, the Court emphasized that while reopening could be a final decision, it certainly wasn't one made after a hearing in that context. The other part of Califano that's important is that statute also had an express provision saying there is no judicial review of other provisions unless herein provided in 405(g). So, if you didn't involve a hearing, no review under the statute. And, here, you have the opposite. You have no express language barring judicial review of decisions like reopening, and it would be extraordinary to say that that alone was sufficient to overcome the presumption of review, especially given the long tradition of reviewing denials of reopening that do present 1 new evidence. And on your final point, there is -- obviously, the D.C. Circuit held in 2016 that denials of reopening in the Railroad Retirement Act context and RUIA are judicially reviewable. And the -- the D.C. Circuit in that case noted that courts have been reviewing these decisions for some 50 years. There's no flood of -- no flood of abuse of litigation and no apparent circumvention of the limitations period because these are new types of decisions that aren't simply rehashes of what happened before.

Justice Breyer: Thank you.

Chief Justice Roberts: Justice Alito.

Justice Alito: I'm interested in the interplay between the Railroad Retirement Act and the Railroad Unemployment Insurance Act. This is a case under the former. Is there any reason why we can't decide it simply by looking at the language of that provision, Section 231g?

Sarah M. Harris: Well, you could -- you could do it that way, but, of course, that language then says that -- it does tie judicial 1 review to the RUIA itself. So I think that means that you should at least consider whether there would be anomalies created between, you know, circumscribing review under one statute versus the other.

Justice Alito: Well, is that true under the language of the provision? It says: "Decisions of the Board determining the rights or liabilities of any person under this subchapter shall be subject to judicial review." That tells us what is subject to judicial review. But then it goes on to say, in the same manner, subject to the same limitations, et cetera, as the RUIA. That tells us how the review takes place. Why do you think that specifies what is reviewable?

Sarah M. Harris: I think you could read the corresponding rights and liabilities language as suggesting that. But, in all events, if you just wanted to look at 231g, reopening denials do determine rights or liabilities of any person because they are a denial of someone's entitlement to benefits. 1 And it would be very strange to think that that language alone would be foreclosing judicial review of other decisions when there's no sort of express bar to reviewability in there.

Justice Alito: Well, what takes me aback in approaching the case in this way is that both you and the government, who are more immersed in this than we are, have spent a lot of time debating judicial review under the provisions of the Railroad Unemployment Insurance Act. So do you think that unacceptable anomalies would occur if we were to decide the review question here without considering or deciding the review question under the Railroad Unemployment Insurance Act? And because my -- my time is -- is going to expire, let me fold in one other question. How often does review occur under these two different acts? Is there a big difference in the number of cases?

Sarah M. Harris: There isn't a lot of difference in the number of cases. It both does -- it's pretty rare to get review under -- a 1 reopening under both. And I think the only anomaly that would happen with respect to the two statutes is probably the employer coverage determination. So there are some questions that are common in the two schemes, and so there could potentially be anomalies with respect to those but not with respect to the particular case here.

Justice Alito: Thank you.

Chief Justice Roberts: Justice Sotomayor.

Justice Sotomayor: I'd like to continue with Justice Alito's question because, yes, there might be differences, but you haven't explained to me why those differences are important. You just mentioned the employer determination. But wouldn't that basically be a determination, an initial determination, of entitlement to -- to benefits?

Sarah M. Harris: So why is it important -- well, it could be under 355(c), but the RRA doesn't actually even mention employer determinations as something under the statute. It just says the definition of an employer is 1 the same under both statutes. But just to sort of back up and think through why would it be very strange to superimpose, say, the limitation of 355(c) across the whole statute, 355(c) is a pretty specific rule under the RUIA that pertains to who is entitled to appeals or hearings under that particular short-term benefits statute. And it really doesn't have any counterpart in the RRA in toto. The only thing the RR -- RRA provides is that in Section 231f(c)(3), someone can obtain a right of appeal to the Board based on a decision on their application for an annuity. So you would expect that if 355 -- that if 355(c) were sort of controlling throughout that scheme, the RRA would at least attach significance to all the types of decisions that were being listed. And I would also push on the definition of an initial determination with respect to, you know, what -- what exactly you can fit into it.

Justice Sotomayor: I -- I -- I guess I'm still a little troubled, and I'm sorry for 1 my denseness, but it seems to me that all of those questions under 355 that you speak about go to the initial determination of rights or liabilities of any person. It's basically saying this kind of employer is liable or not liable to you. That's a clear determination of rights or liabilities under the Act, and so it still would be subject to judicial review. But hearkening back to what Justice Thomas said, at least in Home Services, we thought of or could think of -- and I understand it was because of the regulatory scheme -- that a motion to reopen was not a new determination of rights or benefits, that it was a decision not to reconsider that question. So why shouldn't we think of it that way here?

Sarah M. Harris: Because, if you thought of it that way, I think you'd have to override a really long tradition of judicial review in cases like Kucana versus Holder and Brotherhood of Locomotive Engineers that holds the contrary and says denials of reopening that are based on new evidence are judicially reviewable because they're final agency actions. 1 And the situations in which there is a sense that there is a rehash, that there is no new evidence presented, that was also the case in Your Home. So Your Home actually cites Brotherhood of Locomotive Engineers at the end, and the case would make not very much sense if you thought, you know, denials of reopening can never be final decisions, can never be reviewable, because the second half of that opinion is all about, well, yeah, it might not be a final determination under the regulation at issue, but is it still judicially reviewable? And the Court said no based on the jurisdiction-stripping language of the Medicare statute and also cited Brotherhood of Locomotive Engineers and said this is just the kind of rehash claim that we don't generally review.

Justice Sotomayor: Counsel, I've well run out of my time, so -- but thank you.

Chief Justice Roberts: Justice Kagan.

Justice Kagan: Ms. Harris, could I ask you a little bit more about this distinction you're making between new evidence claims and rehashed claims? And this really goes back to Justice Breyer's question. 1 And I wasn't quite sure I understood your answer to him, because he said, well, I understand the distinction you're making -- the distinction you're making and -- and -- and -- but where do we get that distinction from the statutory language? Why is one determining rights and liabilities and the other is not?

Sarah M. Harris: So the distinction, I think, comes from the idea that they are both final decisions that deny someone benefits or deny someone whatever they're asking on a reopening claim. The reason why the new evidence or changed circumstances claim is reviewable and has long been reviewable in multiple contexts is that it is not something that is unmanageable for courts to figure out. It's not committed to agency discretion by law. And the reason is you can figure out that there's something that hasn't been presented to the agency before that might change the outcome, and it would be inequitable not to let someone litigate that and get judicial review of that type of decision, whereas the rehash type of claim does, as in Sanders, raise 1 potential concerns about circumvention of the limitations period. So it's sort of a combination of the sense of what is a final decision, but also the other step of is it the kind of final decision that courts can review in a meaningful sense? And that, I think, is the distinction, again, that Brotherhood of Locomotive Engineers mostly drew.

Justice Kagan: Okay. Can I ask you a question about 355, go back to where you started? I guess I don't quite understand your argument there. If I could just sort of simplify 355, it would read like this: Any claimant, any railway labor organization, any base-year employer, or any other party aggrieved by a final decision under subsection (c). Why wouldn't the "under subsection (c)" language apply to each of those three identified and one catch-all party?

Sarah M. Harris: So I think there are three reasons why the last-antecedent rule remains the default and wouldn't be overcome there. 1 First of all, if the government were right, I don't think Congress would have let all of the parties challenge any final decision. Congress would presumably say those parties could challenge such final decision, because it's strange to have "any final decision," full stop, if there's no one who could challenge anything else. And, second of all, I think there's contextual reasons why "other" in that phrase is a word that's differentiating between meaningful classes of litigants. The first three listed parties -- claimants, labor organizations, and base-year employers -- are very differently situated for purposes of the RUIA than the residual parties. And what I mean by that is the first three parties can be aggrieved by all kinds of decisions, whether or not they're listed in 355(c). But the residual parties are people who are described in 355(c) itself who can only be aggrieved by decisions that are described in 355(c). And one example of that would be the non-base-year employers under the RUIA. They're mentioned --

Justice Kagan: Thank you, Ms. Harris.

Chief Justice Roberts: Justice Gorsuch.

Justice Gorsuch: Good morning, Ms. Harris. Let me pick up right there. Let -- let -- let's suppose for the purposes of this question that I agree with you that under 355(f), reopening petitions could be reviewed under the RUIA. But let's also suppose that the language in 231g suggests that reopening petitions under the RRA cannot. And that -- that leads to kind of an anomaly, I think we'd all agree, and I'm not sure I could understand the rational reason for the distinction, which makes me wonder what about 355(g), which, as you know, suggests that findings of fact and conclusions of law by the Board in their determination of claims are final and conclusive on all persons? And let -- you know, it makes me wonder whether Congress ever anticipated the idea of reopening decisions or even authorized them. And if Congress didn't authorize them, if they were never anticipated, if they just simply 1 weren't permitted under 355(g), what should that tell us about both (f) -- 355(f) and 231g?

Sarah M. Harris: Well, a couple of points on that. First of all, with respect to the text of 355(g), that is a review exclusivity provision under the RUIA, and it says -- it is talking about the determination of any claim for benefits or refunds. And our argument in the first instance is that's certainly capacious enough to include reopening. And one clue that that might be the case is that the delegation to the Board with respect --

Justice Gorsuch: Well, let -- let -- let's put that aside for the moment. Let's say I just disagree with you on that. Then what?

Sarah M. Harris: Then I think you'd still be looking at the broad delegation of power that Congress gave to the Board and said in the delegation of power that the Board was supposed to create regulations for "all controversial matters under the Act," which is extremely broad. The other things I'd point you to are 1 the fact that reopening, since 1939, in -- in the view of the Board is something that the Court thought that it absolutely had to do. And so I think there is -- there's a good reason the government hasn't argued that reopening simply isn't authorized under the statute. Its --

Justice Gorsuch: Why doesn't it suggest, though, that this is purely a matter of regulatory grace and it isn't -- it isn't contemplated, required, or maybe even authorized by statute, but it's something the executive can do and -- and that we really have no role in? It can only benefit a claimant to have a reopening. It can't harm a claimant. And at that point, we have nothing to say on the matter.

Sarah M. Harris: Well, two points there. I mean, first of all, the idea that discretionary determinations that only help claimants are -- would be immune from judicial review on that basis would be a sea change in all the other contexts, like, for instance, immigration, where reopening for about 80 years only stood --

Justice Gorsuch: Well, let's stick to 1 the Railroad Retirement Act and -- and -- and maybe even the RUIA. What -- what -- what harm would there be in that?

Sarah M. Harris: What harm would there be in not having judicial review of reopenings?

Justice Gorsuch: Right.

Sarah M. Harris: I think there would be massive harm here. I mean, it's a critical safety valve that ensures reasoned decisionmaking for decisions that can have life-changing consequences for people. And judicial review really has a strong in forum effect in this context for agencies to keep them accountable. And, you know, I think that it would be extraordinary to think that there's a situation where the agency is -- you know, you have to explain the benefits of judicial review, the -- the reason for the presumption is --

Justice Gorsuch: Counsel, thank you. My -- my time's expired.

Chief Justice Roberts: Justice Kavanaugh.

Justice Kavanaugh: Good morning, Ms. Harris. 1 I want to pick up on something Justice Breyer brought up about the history of this issue and case law, because my understanding's very different from his, and I just wanted to get that out there, and you can respond. So here's my understanding of what's happened on this issue over the years: In 1966, Judge Friendly issued an opinion for the Second Circuit that said there was judicial review of these kinds of reopenings, and that's been the law in the Second Circuit for 54 years now. It's in a "but see" in the government's brief, but that's been the law in -- in the Second Circuit. Then along comes Califano in 1977, dealing, of course, with a different act with different language, and says no judicial review there. And then the courts of appeals essentially pick up on Califano in this context without paying attention, in my view, to the -- to the language difference in Califano, and you see the Seventh Circuit and the Fifth, Fourth, and Third all kind of go on the call -- Califano road, also a little bit with the greater 1 includes the lesser point. And Califano doesn't work, as I think the government itself was going to have to acknowledge here, and so they're back-filling with textual arguments on 355(f), which you've answered, and then 231g. And I just would point out -- I think this is right, but you tell me if I'm wrong -- the government has never argued in this way the 231g point in all these cases. You know, you go back and look at the briefs and it's just not been part of that, presumably, because they've long understood, the Railroad Board at least, has long understood that denials of reopening, just like grants of reopening, obviously change your benefits if it's a grant of reopening, and so a denial too determines your rights and liabilities. So I think that I guess my understanding of the history of this is quite a bit different in terms of the case law in going back to Judge Friendly's opinion and what Justice Breyer said. And you can -- I mean, that's a favorable question to you, obviously. But, if you want to fill in any gaps there, go ahead.

Sarah M. Harris: Sure. I mean, I -- I obviously agree with the recount of the history, and I also think that your account of the government's position is spot on. The government's brief at pages 14 and 29, their position has never been that 231g's determining rights or liabilities language, if you untethered it from the RUIA, would exclude denials of reopening. Their position is those are just code words for decisions under 355(c). And that doesn't seem like a plausible view. And the government, as you know, has also agreed that the Railroad Retirement Board from its inception has always thought that reopening was something that the Board could and, indeed, should do in certain circumstances. And so I do think it would be extraordinary to think that when there's such a long history of the Board understanding its own powers to include reopening, and when there's language that is certainly at least capacious enough to plausibly include this type of decision, you would read in some sort of exclusion of review when there is no express bar 1 in the statute saying there's no review of other decisions, which, again, distinguishes this case from Califano and the Social Security statute.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett.

Justice Barrett: Good morning, Ms. Harris. So, in thinking about the 231g question and whether the denial of a motion to reopen determines rights or liabilities, I think, when you look at 261.2 and the regulations, if you're thinking about 261.2(b), you know, if a denial is essentially a conclusion that there was no new or material evidence of error, then I can see how that might qualify as a determination of a right or a liability. But what about in Mr. Salinas's case? I mean, is it fair to -- to characterize his motion here as a motion to reconsider the denial of his motion to reopen (b)(4)?

Sarah M. Harris: Yes, I think it would be absolutely fair, and, indeed, that is the provision the Board mentioned below when it's 1 thinking about it. And that's at pages 7A to 8A of the petition appendix. And the reason is Mr. Salinas's claim is that he wanted to present and was not able to present important medical evidence in 2006 about his depression and anxiety that would have affected the -- the Board's understanding of whether it should find good cause to excuse his late filing in that 2000 -- 2006 claim. So that's really in the heartland of the kind of new evidence type claim to be looking for.

Justice Barrett: But it's new evidence that bears on his motion to reopen, not on the underlying determination of his entitlement to benefits, right?

Sarah M. Harris: Well, I think it bears on both here. The -- the -- it bears on, first of all, why he was not allowed to pursue his 2006 claim, which was the Board said we're not going to excuse you for not proceeding further when he failed to file in a timely fashion to continue litigating it. And he said, I'm really sorry. I wasn't able to file within the 60-day period. I have pretty serious depression. And at that 1 time, he wasn't able to get the new medical evidence that would have allowed him to present that argument to the Board and would have both constituted good cause and obviously borne on the underlying claim.

Justice Barrett: Let me expand it beyond Mr. Salinas's motion here, because what I'm getting at is, even if you could consider some grounds for not reopening a determination of rights or liabilities, I'm not sure that's true of all. So, for example, what if it's just flatly that somebody came forward beyond the four years permitted in 261.2(b) and they just said, sorry, it's late? That's not really -- it doesn't fit neatly into the definition determination of rights or liabilities.

Sarah M. Harris: Well, I think, if you thought that a determination that raises new evidence in general is about your rights and liabilities because there's a denial of your benefits claim and you're being denied an opportunity to present that new evidence, the question would sort of be, is that regulation as applied in this circumstance arbitrary in 1 cutting that off? And the other piece of it is the Board obviously has the discretion to say that, yes, you know, even though four years have passed, you presented new evidence and we're willing to consider that here. And the question is always going to be, was the Board acting reasonably in excusing that or not? So I think we kind of end up in the same place, which is maybe this all just underscores why denials of reopening that present new evidence have for so long in so many contexts been considered judicially reviewable.

Justice Barrett: Thank you. My time's expired.

Chief Justice Roberts: A minute to wrap up, Ms. Harris.

Sarah M. Harris: Thanks, Chief Justice. Thanks, Chief Justice. I just want to circle back on some of the points with respect to why is this different from Your Home and Sanders, and I think it is really critical to think about that because Sanders for so long had been -- it really is focused on a very different text about the 1 Social Security Act, and I think that's a classic case of, if Congress, in the Railroad Retirement Act or the RUIA, had intended to preclude judicial review and seal it off, it would have -- it would have chosen a structure like this. You have 26 U.S.C. 405(b) that says, in the Social Security context only, you know, here's what you have to do to get a hearing. You have 405(g) that then says there's only judicial review of final decisions made after a hearing. And then, in 405(f), the Act says you can't have any other kind of decision reviewed except for through 405(g). And that's the kind of sealing off of review that is actually missing here. Even if you had questions with respect to whether 231g does or does not plausibly encompass denials of reopening and in what context, there is nothing that takes away judicial review under the RRA. And so --

Chief Justice Roberts: Thank you, Ms. Harris. Mr. Raynor. 36 ORAL ARGUMENT OF AUSTIN RAYNOR ON BEHALF OF THE RESPONDENT

Austin Raynor: Thank you, Mr. Chief Justice, and may it please the Court: This case is about a narrow issue, whether the Railroad Retirement Board's refusal to reopen a prior benefits determination is judicially reviewable. Every tool of statutory interpretation indicates that the answer to that question is no. First is the text. Section 355(f) of the RUIA provides for judicial review only of those decisions made under subsection (c). Subsection (c) is the RUIA's exhaustion provision, and it provides for internal review of certain particularly significant Board decisions. Reopening determinations are not listed in subsection (c) and, therefore, are not judicially reviewable. The RUIA's structure confirms this reading. The RUIA's exhaustion, judicial review, and review exclusivity provisions all work together to ensure that the most important Board decisions receive internal and judicial review through the mechanisms specified in 1 subsection (f). Those provisions are interlocking, and each covers the same basic category of core substantive determinations enumerated under subsection (c). Lastly, the government's reading also accords with the policies underlying the relevant statute. Congress chose not to require reopening at all, much less judicial review of reopening. The agency's decision in its discretion to offer reopening does not entitle a claimant to yet another opportunity for judicial review. Petitioner reaches a contrary conclusion only by dismissing context and reading certain words and phrases in the statute in isolation. His interpretation would cause dislocations throughout the statutory scheme. The Court should reject that interpretation and affirm the judgment below.

Chief Justice Roberts: Mr. Raynor, I don't think I heard you mention 231g. Maybe I -- I missed it. But you don't get to it in the arguments section of your brief until 13 pages into it. 1 The -- the question is judicial review under the RRA. There is a provision in the RRA that talks about judicial review. Why -- why don't -- why are you so shy about that one?

Austin Raynor: Your Honor, the way that we think the statute works is that 231g makes decisions under the RRA reviewable to the same extent a court's bonding decision under the RUIA would be reviewable.

Chief Justice Roberts: Well, it limits --

Austin Raynor: And that --

Chief Justice Roberts: -- it -- it makes some decisions reviewable to the same extent as under the RUIA, but you have to go through its discussion of what decisions are. It's determination of rights or liabilities. They have to be under the Act. Do you need a decision that covers 355(f) to decide this case?

Austin Raynor: No, Your Honor. I agree with you that the determination of rights or liabilities language in Section 231g is a gating mechanism. And if you didn't think that a 1 reopening denial qualified as a determination of rights or liabilities, which, in our view, would be correct under Your Home, then judicial review would not be available under the RRA.

Chief Justice Roberts: Is there -- is there some problem in terms of the practical administration having arguably or perhaps different standards or different scope of reviewability under one Act rather than the other?

Austin Raynor: I don't think there would be huge practical problems, Your Honor. And, in fact, our position is that the -- the types of decisions made under subsection (c) are substantive determinations of rights or liabilities. And so that language in 231g, interpreted according to its plain meaning, would pick up the decisions under subsection (c.). So even if you wanted to go just on the basis of a plain meaning approach to determinations of rights or liabilities, that would allow conformity between 231g and Section 355.

Chief Justice Roberts: Well, you say 1 just a plain meaning approach with, it sounds, a little bit of disdain, but why -- the -- the RRA program is the vast majority of rail -- railroad benefits, right? I mean, the RUIA is just a tail on the dog, right?

Austin Raynor: That's correct.

Chief Justice Roberts: Okay. Thank you, counsel. Justice Thomas.

Justice Thomas: Thank you, Mr. Chief Justice. Mr. Raynor, the -- I, with the Chief -- I agree with the Chief Justice in wondering why you're so reluctant to argue 231g, but let me ask you this: The -- could the agency do away with the whole process of reopening?

Austin Raynor: Yes, Your Honor. And I don't -- the Petitioner doesn't dispute that. Reopening is clearly a matter of grace. The statute doesn't require it, and the agency could repeal its reopening regulations tomorrow.

Justice Thomas: If that's the case, how could it be then that it's a final decision if it's purely discretionary? I think the hard connection for me to make is, how do you get 1 from a discretionary decision with respect to reopening to the underlying issue of benefits?

Austin Raynor: Yes, Your Honor. So we certainly agree with you that a mere denial of reopening doesn't determine benefits. It doesn't determine rights or liabilities. Of course, if the agency reopens the decision and readjudicates the merits, that would be a different matter. But that's not at issue here.

Justice Thomas: So that would be a final decision. And I think the other side of that argument, though, would be the decision not to reopen would be a denial of the benefit, even if you don't reconsider or hear more evidence. What -- what do you make of Ms. Harris's distinction between rehearing or reopening petitions in cases of -- where there's just a rehash of the underlying evidence, as opposed to the cases -- or as compared to the cases or distinguished from the cases involving additional evidence?

Austin Raynor: Your Honor, it wasn't clear to me if counsel for Petitioner was conceding that mere rehash cases would not be 1 reviewable. If so, we certainly agree with that. Our fallback position here is that the Locomotive Engineers background rule of "committed to agency discretion by law" would at the very least foreclose mere rehash cases. But, as Justice Breyer pointed out with respect to the text of 355 and 231g, the statute doesn't make any such distinction. And so the question here is, across the board, are reopening deniables -- denials reviewable or not? And so, to the extent that Petitioner is conceding that rehashed cases allow circumvention of the statute of limitations, ruling in Petitioner -- Petitioner's favor in this case would, of -- of course, open up that can of worms.

Justice Thomas: Thank you.

Chief Justice Roberts: Justice Breyer.

Justice Breyer: Thank you. It -- it doesn't say there isn't review. There is a very, very strong presumption of judicial review. Both briefs make good arguments on 355(c). And I bet when I 1 read Judge Henry -- Henry Friendly, it's a pretty good argument. And I guess you could interpret rights and liabilities -- I mean, there is language certainly in your favor in that Your Home case. But you might interpret it as being a final decision in respect to rights and liabilities because he wants the rights and liabilities rule changed because of dah-dah-dah. Okay. So why isn't there enough ambiguity and no forbidding of it that you just get under regular judicial review? The APA. Final decision, unlawful, dah-dah.

Austin Raynor: Your Honor, Petitioner has not asserted that review under the APA would be permissible here. He's never attempted to proceed under the APA.

Justice Breyer: Maybe. But why isn't it?

Austin Raynor: (g) is what would preclude APA review under case --

Justice Breyer: But then you get back to my point, which is that, look, if there is any ambiguity here or any significant ambiguity, go with the normal presumption.

Austin Raynor: In -- in cases like Your Home --

Justice Breyer: It doesn't say -- it doesn't say no review.

Austin Raynor: Correct, Your Honor, although, in cases like Erika, Inc., the Court has held that you can -- there can be structural negative implications that preclude other forms of review. And our position is that the statute here precludes other forms of review. As to your presumption question, in both Your Home and Sanders, the Court declined to mention the across-the-board presumption. And in both of those cases, as here, reopening was a matter of agency grace. And it makes sense in a large benefits program, where reopening is a matter of agency grace that the agency could withdraw at will, not to apply the presumption in the same way it's applied in other contexts. And, in particular, reopening, by definition, is attempting to reopen a prior decision that the claimant will have had an opportunity to seek judicial review of. And so there's not the same pressing need for judicial 1 review here that there would be if we were talking about a case involving primary exhaustion of a benefits claim.

Justice Breyer: Thank you.

Chief Justice Roberts: Justice Alito.

Justice Alito: There are people in the government who understand these schemes very well, and, therefore, I assume there is a reason why you led off with the argument based on the Railroad Unemployment Insurance Act rather than just the provision of the Railroad Retirement Act. What is that?

Austin Raynor: Again, Your Honor, the reason is that 231g makes determinations of rights or liabilities under the RRA subject to judicial review only to the same extent as corresponding rights or liabilities under the RUIA and subject to the same limitations under the RUIA. So that's why we started with the RUIA. But just to be clear, we're not running away from 231g. We think 231g is strongly confirmatory of our interpretation of 355. And, as the Chief Justice pointed out, the "determination of rights or liabilities" 1 language alone could preclude review in this case.

Justice Alito: Well, I'm not sure I understand the answer. Is -- is the answer that you really think that it would be a mistake -- it would be -- it would be wrong as a matter of law or it would create anomalies if we were to decide the case based solely on 231g?

Austin Raynor: I don't think that it would be wrong as a matter of law, Your Honor, and I don't think that it would create serious anomalies. That being said, the government's view is that the best reading of these statutes is that 231g effectively piggybacks on 355 and is designed to pick up the same kind of decisions under 355(c) that would be reviewable under 355(f). So the government does read the two statutes together in that respect.

Justice Alito: All right. Thank you.

Chief Justice Roberts: Justice Sotomayor.

Justice Sotomayor: Counsel, your answer gives me great pause. I'm loath often to go off on grounds that the parties haven't 1 really defended or argued. And you say you don't think there will be serious anomalies. Can you guarantee there aren't? Are you absolutely sure?

Austin Raynor: Your Honor, again, our position is that that language, "determination of rights or liabilities," tracks the kind of decisions that are made under subsection (c), so --

Justice Sotomayor: So you've answered my question, counsel. You argue that we need not decide, at least in your brief, whether adopting your interpretation would foreclose challenges to the denial of reopening on constitutional grounds. But, in the brief he submitted during his administrative appeal, Salinas appeared to make sort of a due process argument, claiming he lacked the mental capacity to understand the procedures for requesting review. Let's say we found Salinas's claim to be colorable. Would there be jurisdiction for judicial review?

Austin Raynor: No, Your Honor, for two reasons. 1 First, he -- he forfeited that argument. That's not something that he's raised here. And, second, at the very least, I think the constitutional claim would have to be substantial. Tyryv, for example, left open the possibility of extraordinary cases. And it wouldn't be sufficient for a petitioner just to recharacterize a run-of-the-mill reopening denial as a due process violation.

Justice Sotomayor: Thank you, counsel.

Chief Justice Roberts: Justice Kagan.

Justice Kagan: Mr. Raynor, has the government ever before made an argument of the kind that you're hearing here, that this is resolvable only on the 231 section and not by reference to 355?

Austin Raynor: Your Honor, the government's traditional argument that Justice Kavanaugh pointed out has been based on 355(c). And as our briefing reflects, that -- that remains our primary argument in this case, and we view 231g as confirmatory of that traditional argument.

Justice Kagan: Okay. Could I ask you about how this cross-reference really works? Because it's quite confusing to me. You know, it says "decisions of the Board determining rights and liabilities." And then it, you know, gets you over to 355 because it says, "as though the decision were a determination of corresponding rights or liabilities under the RUIA." But the RUIA never uses this language of "rights or liabilities." So how do you exactly know what decisions are reviewable -- you know, what -- what -- how the RUIA treats decisions of rights or liabilities when the RUIA uses the term "final decision"?

Austin Raynor: Your Honor, in many cases, there's going to be a direct parallel between decisions under the two acts. For example, there's reopening under the RUIA. There's also reopening under the RRA. So the translation principle won't be very difficult to apply in those sorts of cases. And in looking at --

Justice Kagan: So is that to say, Mr. Raynor, that you're reading this as essentially 1 just a synonym for the final decision language in 355? In other words, that you would say as though the decision were a determination of corresponding rights or liabilities under the RUIA means the same thing as -- as though the decision were a final decision under the RUIA?

Austin Raynor: Not quite, Your Honor. We -- we're saying that "determinations of rights or liabilities" is effectively a synonym for final decisions under subsection (c) under the RUIA.

Justice Kagan: Okay. That's all. Thank you very much.

Chief Justice Roberts: Justice Gorsuch.

Justice Gorsuch: Good morning, counsel. I want to follow up on Justice Sotomayor's inquiry about constitutional challenges. Page 15 and 16 of the brief, you say, foreclosing garden-variety reopening motions like the one here would not raise any distinct issue of a rare case in which the denial of reopening might be challenged on constitutional grounds. 1 If we were to adopt your view either on 231 or 355(c), there would be -- appear to be no statutory basis to allow judicial review of any reopening decision. Where does this special exception for constitutional challenges come from and how do we know what a good one -- a garden-variety one is compared to a really -- the merits would determine our jurisdiction? I guess I'm just curious how all that follows.

Austin Raynor: Your Honor, in Sanders, the Court articulated that the presumption in favor of judicial review is stronger for constitutional claims. And so it could be --

Justice Gorsuch: Yeah, I understand -- I understand that, counsel. I'm talking about the statute. Can you help me there?

Austin Raynor: Yes. So 355(g) is the preclusion provision here. And in Thunder Basin, the Court said that a preclusion provision like this might not bar other forms of review for issues that were truly collateral to the agency's mission. And so one doctrinal way to approach this would be to say that a substantial constitutional claim is collateral to the 1 agency's mission and is not covered by 355(g). But, again, he's not pressing that here. And, as in Tyryv, the Court could simply leave that open for a future case.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh.

Justice Kavanaugh: Thank you. Thank you, Mr. Raynor. On the greater includes the lesser argument that I understand you to be making in part, namely, that the government's -- they're not required to grant reopening, so if they -- if they allow reopening, they can deny judicial review, I mean, that's not usually how administrative law works. You know, yes, you have discretion whether to provide this particular kind of avenue for relief, but I -- I'm not aware of examples like this where, but, if we do so, we can just cut off all judicial review of it. What's your response to that?

Austin Raynor: Your Honor, the special thing about reopening here is that unlike other discretionary decisions, for example, in Hawkes, 1 this -- this is something that's a free benefit above and beyond the main exhaustion process, the substantive entitlement to benefits. And the Court has recognized this graves principle in both Sanders and Your Home, which are the most on --

Justice Kavanaugh: Let me --

Austin Raynor: -- point precedent --

Justice Kavanaugh: I'm sorry -- sorry to interrupt, but it -- but it's important, right? So it is possible that the reopening petition, the Board will mistakenly deny reopening, and the rail -- the railroad worker should then -- should have received benefits. And so I don't know about saying it's above and beyond. In that case, the worker should have gotten the benefits, did not, and you're saying no judicial review?

Austin Raynor: Your Honor, in any reopening case, the -- the claimant could have exhausted his original claim and sought judicial review at that time. And that's all that the statute --

Justice Kavanaugh: But the whole point -- sorry to interrupt, but the whole point 1 of these is that there is often new evidence that could not have been presented at the time. That's the point. It's not a rehash. There's new evidence that shows that the initial determination was wrong. And you're saying even if the Board makes a mistake on the reopening, mis-evaluates the new evidence, no judicial review, forget about it?

Austin Raynor: That's correct. And there's nothing surprising about that from the perspective of congressional intent because --

Justice Kavanaugh: No, that's -- I -- I understand your larger point on that. You said earlier that there was no -- and you've just reiterated, I guess -- no pressing need for judicial review here. I guess I'm not sure about that, given the example I just gave. But, on the flip side, the burden on the courts seems to be almost nil. In the D.C. Circuit, at least, in the last five years, trouble finding any case that involved judicial review of a denied reopening in this context. The floodgates concern does not seem 1 to be a -- a real one, but you can correct me if that's wrong.

Austin Raynor: Your Honor, I agree that the absolute number of reopening petitions is low, and we're not really pushing the floodgates argument. I think --

Justice Kavanaugh: Okay. Let's --

Austin Raynor: -- it's a practical problem.

Justice Kavanaugh: -- sneak one last one in. On 231g, I understood your answer to Justice Kagan to be actually that's right, the government has never argued before in the many decades of this that you could resolve this on 231g alone. Indeed, 231g did not really appear in a lot of the government's position in arguing these cases over the decades. Is that accurate?

Austin Raynor: I agree, Your Honor, that the Board has not traditionally interpreted 231g in isolation.

Justice Kavanaugh: Okay. Very helpful, Mr. Raynor. Thank you very much.

Chief Justice Roberts: Justice Barrett.

Justice Barrett: Thank you. So, counsel, when the Chief Justice asked you if there would be a practical problem in having a different scope of review under the RRA and the RUIA, you said: Well, it would be conforming to our view of 355. So, in other words, if we interpret 355 the way you would like us to to cover review only of claims under 355(c), then it's the exact same for both. But what if we disagree with you? What if we say no, review under 355 is of any final decision, and so then there may be a different scope. What practical problems might arise then?

Austin Raynor: Your Honor, I don't know that it would be a practical problem so much as sort of counterintuitive from the perspective of congressional intent. And in that world, for example, a claimant could obtain judicial review of reopening under the RUIA but wouldn't be able to obtain judicial review of reopening under the RRA. And that's an anomaly that might be surprising to think that Congress intended that, 1 but it probably wouldn't be a practical problem per se.

Justice Barrett: Have there been many cases in which courts -- I mean, I'm aware of one -- but have courts ever held that motions for reopening are reviewable as opposed to are not reviewable under the RUIA?

Austin Raynor: Under the R --

Justice Barrett: Or was all -- was all the action in the RRA context?

Austin Raynor: Your Honor, most of these cases arise in the RRA context. There's a far greater number of beneficiaries. I don't know the precise number of cases that pertain to the RUIA specifically. And, of course, under the government's approach, there's really no difference in the analysis under either statute.

Justice Barrett: Is the reason why the government would prefer for us to decide this under 355 is that it then takes care of narrowing -- making sure that the scope is the same and the narrow one that you proposed for purposes of both the RUIA and the RRA, as opposed to using 231g, which narrows only RRA 1 claims?

Austin Raynor: Certainly, we would agree that interpreting the statutes in harmony and creating symmetry between the two provisions is the most plausible understanding of congressional intent. Again, as a practical matter, the RRA, there's a far greater number of beneficiaries under the RRA.

Justice Barrett: Thank you.

Chief Justice Roberts: We have time for additional questioning of Mr. Raynor if any members of the Court have questions they'd like to ask. If not, Mr. Raynor, why don't you take a couple of minutes for wrapping up.

Austin Raynor: Thank you, Mr. Chief Justice. One thing I would just like to touch on is counsel for Petitioner's point that this is a new evidence case rather than a rehash case. I want to just reiterate that there's no basis in the statute for that distinction. And Sanders and Your Home don't distinguish between new evidence and rehash 1 cases. And even on the facts of this case, Petitioner argued below that there was an error on the face of the record. That was his basis for reopening in the Fifth Circuit. And the reason for that is that there's a four-year limitations period on raising new evidence. And so his reopening application is effectively dead in the water if he's attempting to raise new evidence because he filed the reopening motion far more than four years after the original determination. So, if the Court ended up going down that route and making that distinction, remand would be appropriate to determine whether this actually is new evidence and, if it is, whether reopening is appropriate. In closing, I would just like to note that at the end of the day, Petitioner's argument boils down to two presumptions: the last-antecedent rule and the presumption in favor of judicial review. And to the extent they apply here at all, both of those presumptions have diminished force and are easily overcome. Instead of focusing on the 1 presumptions, this Court should focus on the text and structure. Section 231g says that only determinations of rights or liabilities are reviewable. That language tracks 355, which only allows review of decisions under subsection (c), which, again, are substantive determinations about a party's entitlement to rights or benefits or coverage under the statutes. Petitioner focuses on interpreting certain words and phrases in isolation. He has no explanation for how the different provisions fit together in a sensible or coherent way. The government's interpretation, in contrast, harmonizes the different provisions and reflects the orderly review scheme that Congress intended. This Court should affirm the judgment below. Thank you.

Chief Justice Roberts: Thank you, counsel. Ms. Harris, three minutes for rebuttal. 25 1 REBUTTAL ARGUMENT OF SARAH M. HARRIS ON BEHALF OF THE PETITIONER

Sarah M. Harris: Thank you, Mr. Chief Justice. Three points. First of all, there is absolutely no reason to go out on a limb that is fairly untested and that I take the government is not fully comfortable with with respect to 231g, which is to treat rights and liabilities as narrower than what it might mean to have all final decisions reviewable under the RUIA. And it would be really perverse to do so. If you had a situation where short-term beneficiaries under the RUIA were entitled to reopening, yet long-term beneficiaries under the RRA were not, it really would sort of put -- it takes the statutory scheme upside down because it is the long-term beneficiaries who are the ones who are most in need of a check after that initial denial or grant of benefits on changed circumstances. They are the people who have these benefits for potentially a long time or need them for a long time. And while the government doesn't seem to see any anomalies in this 1 scheme, I do think there are at least some because the definition of an employer is the same across the statutes. And so I take the government's position to be, well, perhaps if all final decisions under the RUIA are reviewable, then employers could get reopening with respect to whether or not they are covered by the RUIA. For instance, if they could show that an initial coverage determination was wrong for some reason or they had new evidence about -- that wasn't considered, or changed circumstances. But yet they somehow couldn't do that under the RRA, even though that's the scheme that tends to take the most -- tends to -- tends to bear the heaviest burden on employers. Again, that would be hugely perverse. And if you thought that reopening isn't a right or liability under the RRA because it's not a change from the status quo, you'd also have real concerns about other determinations that suddenly wouldn't seem to be reviewable either under that scheme, for instance, denials of modifications of benefits 1 or terminations of benefits, where, for instance, let's say the employer found fraud and wanted to reopen a long-term annuity decision and alert the Board to it. That wouldn't be subject to reopening either, or where someone has a much graver disability and wants to modify their benefits on that basis. Second of all, with respect to discretionary determinations, the agency brief point, I think, fails. I do think this is the same as Hawkes, where the Court said there's no count your blessing of principle. There was no obligation under the statute and no mention in the Clean Water Act of stand-alone jurisdictional determinations, but they were still reviewable once the agency did them. And, third, the government has no explanation for why reopening denials would ever be reviewable. And we know they are reviewable in so many contexts, including the immigration context, for nearly a century. And our explanation, I think, explains standards in Your Home which is that, while the reopening denials in those cases might have been final decisions, they are not ones that the 1 agency has manageable standards for reviewing.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:16 p.m., the case was submitted.)