Petition for Writ of Certiorari — Manfredo M. Salinas, Petitioner v. United States Railroad Retirement Board

Supreme Court briefAug 15, 2019

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No.

In the Supreme Court of the United States

MANFREDO SALINAS, PETITIONER

UNITED STATES RAILROAD RETIREMENT BOARD,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LISA S. BLATT

Counsel of Record

CHARLES L. MCCLOUD

ROBERT BELDEN

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

lblatt@wc.com

QUESTION PRESENTED

Whether, under section 5(f) of the Railroad Unemployment Insurance Act, 45 U.S.C. § 355(f), and section 8

of the Railroad Retirement Act, 45 U.S.C. § 231g, the Railroad Retirement Board’s denial of a request to reopen a

prior benefits determination is a “final decision” subject

to judicial review.

(I)

TABLE OF CONTENTS

Page

OPINIONS BELOW ..................................................................... 1

JURISDICTION ............................................................................ 1

STATUTORY AND REGULATORY PROVISIONS

INVOLVED.............................................................................. 1

STATEMENT ................................................................................ 3

A. Statutory and Regulatory Framework .......................... 5

B. Factual and Procedural Background............................ 10

REASONS FOR GRANTING THE PETITION ................... 16

A. The Decision Below Entrenches A Circuit Split Over

Whether Congress Provided for Judicial Review of

Board Decisions Denying Reopening ........................... 16

B. The Question Presented Is Important and Squarely

Presented .......................................................................... 20

C. The Decision Below Is Wrong ....................................... 22

CONCLUSION ............................................................................ 27

TABLE OF AUTHORITIES

Cases:

Abbruzzese v. R.R. Ret. Bd.,

63 F.3d 972 (10th Cir. 1995) ..................................... 18, 19

Alton R.R. Co. v. R.R. Ret. Bd.,

16 F. Supp. 955 (D.D.C. 1936) .......................................... 5

Bowen v. Michigan Acad. of Family Physicians,

476 U.S. 667 (1986) .................................................... 26, 27

Califano v. Sanders, 430 U.S. 99 (1976) .....................passim

Clifford v. R.R. Ret. Bd.,

3 F.3d 536 (1st Cir. 1993) ................................................ 19

Cunningham v. R.R. Ret. Bd.,

392 F.3d 567 (3d Cir. 2004) ........................... 18, 19, 23, 26

(II)

Cases—continued:

Dig. Realty Tr., Inc. v. Somers,

138 S. Ct. 767 (2018) ........................................................ 24

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .......................................................... 26

Gutierrez v. R.R. Ret. Bd.,

918 F.2d 567 (6th Cir. 1990) ........................................... 19

Harris v. R.R. Ret. Bd.,

198 F.3d 139 (4th Cir. 1999) ............................... 18, 19, 23

R.R. Ret. Bd. v. Alton R. Co., 295 U.S. 330 (1935) ............... 5

Rivera v. R.R. Ret. Bd.,

262 F.3d 1005 (9th Cir. 2001) ......................................... 19

Roberts v. R.R. Ret. Bd.,

346 F.3d 139 (5th Cir. 2003) ...................................passim

Sones v. R.R. Ret. Bd., 933 F.2d 636 (8th Cir. 1991) ......... 17

Steebe v. R.R. Ret. Bd.,

708 F.2d 250 (7th Cir. 1983) ..................................... 17, 23

Stovic v. Railroad Retirement Board,

826 F.3d 500 (D.C. Cir. 2016) .................................passim

Szostak v. R.R. Ret. Bd., 370 F.2d 253 (2d Cir. 1966) ....... 17

Statutes and Regulations:

Administrative Procedure Act, Pub. L. No. 79-404,

ch. 324, 60 Stat. 237 ................................................... 17, 26

5 U.S.C. § 551(1)(E) ............................................................ 27

Railroad Retirement Act of 1974, Pub. L. No. 75-162,

ch. 382, part I, 50 Stat. 307 .....................................passim

45 U.S.C. § 231(a)(1) ............................................................. 7

45 U.S.C. § 231(b)(1) ............................................................. 6

45 U.S.C. § 231f ...........................................................passim

45 U.S.C. § 231f(a) .......................................................... 6, 27

45 U.S.C. § 231f(b)(3) ................................................... 6, 7, 8

45 U.S.C. § 231g ..........................................................passim

Railroad Unemployment Insurance Act, Pub. L. No.

75-722, ch. 680, § 1, 52 Stat. 1094 ...........................passim

45 U.S.C. § 351(n) ................................................................. 8

45 U.S.C. § 355(b) ................................................................. 8

(III)

Statutes and Regulations—continued:

45 U.S.C. § 355(c)(1) ............................................................. 8

45 U.S.C. § 355(c)(5) ....................................................... 7, 24

45 U.S.C. § 355(f) ....................................................... passim

45 U.S.C. § 362 ...................................................................... 6

Social Security Act, 42 U.S.C. 301 et seq........... 17, 18, 22, 25

28 U.S.C. § 1254(1) ................................................................... 1

20 C.F.R. § 200.10(a) ................................................................ 8

20 C.F.R. § 260.3(d).................................................................. 7

20 C.F.R. § 260.5(a) .............................................................. 7. 8

20 C.F.R. § 260.9(a) .................................................................. 8

20 C.F.R. § 260.9(b).................................................................. 8

20 C.F.R. § 261.1(a) .............................................................. 8, 9

20 C.F.R. § 261.1(b).................................................................. 8

20 C.F.R. § 261.1(c) .................................................................. 9

20 C.F.R. § 320.12 .................................................................... 7

20 C.F.R. § 320.38 .................................................................... 8

20 C.F.R. § 320.39(a) ................................................................ 8

20 C.F.R. § 345.405(b).............................................................. 8

20 C.F.R. § 349.1(a) .............................................................. 8, 9

Miscellaneous:

18 Fed. Proc. Forms § 67 (2019) .......................................... 20

Bureau of Labor Statistics, Dep’t of Labor, National

Industry-Specific Occupational Employment and

Wage Estimates – NAICS 482100 – Rail

Transportation ................................................................. 21

Aaron Nielson, D.C. Circuit Review – Reviewed: A

Flamingo in the Shadows, Yale J. on Reg.: Notice & Comment (June 25, 2016) ............................. 19, 20

Case Law Update, 6 Tex. Tech. J. Tex. Admin. L. 3

(2005) ................................................................................. 20

Steven L. Willborn, Advising the Elderly Client

(Kimberley Dayton et al. eds., 2019) ............................. 19

U.S. Gov’t Accountability Off., GAO-18-111SP, The

Nation’s Retirement System: A Comprehensive

Reevaluation Is Needed to Better Promote

Future Retirement Security (2017) ................................ 5

(IV)

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-4a) is unreported and is available at 765 F. App’x 79. The decisions

of the United States Railroad Retirement Board (App. 5a8a) and the Bureau of Hearings and Appeals (App. 9a-17a)

are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 17, 2019. On May 20, 2019, Justice Alito extended

the time to file a petition for a writ of certiorari to August

15, 2019. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 5(f) of the Railroad Unemployment Insurance

Act, 45 U.S.C. § 355(f), provides in pertinent part:

Any claimant, or any railway labor organization

. . . , of which claimant is a member, or any baseyear employer of the claimant, or any other party

aggrieved by a final decision under subsection (c)

of this section, may, only after all administrative

remedies . . . have been . . . exhausted, obtain a

review of any final decision of the Board . . . .

Section 5(c) of the Railroad Unemployment Insurance Act, 45 U.S.C. § 355(c), provides in pertinent part:

(1) Each qualified employee whose claim for benefits has been denied in whole or in part upon an

initial determination with respect thereto upon a

basis other than one which is reviewable pursuant

to one of the succeeding paragraphs of this subsection shall be granted an opportunity for a fair

(1)

hearing thereon before a referee or such other reviewing body as the Board may establish . . . .

(5) Final decision of the Board in the cases provided for in the preceding three paragraphs shall

be communicated to the claimant and to the other

interested parties within fifteen days after it is

made. Any properly interested party . . . may obtain a review of any such decision by which he

claims to be aggrieved or the determination of

any issue therein in the manner provided in subsection (f) of this section with respect to the review of the Board’s decisions upon claims for benefits and subject to all provisions of law applicable

to the review of such decisions. Subject only to

such review, the decision of the Board upon all issues determined in such decision shall be final

and conclusive for all purposes and shall conclusively establish all rights and obligations, arising

under this Act, of every party . . . .

Section 8 of the Railroad Retirement Act, 45 U.S.C.

§ 231g, provides in pertinent part:

Decisions of the Board determining the rights or

liabilities of any person under this Act shall be

subject to judicial review in the same manner,

subject to the same limitations, and all provisions

of law shall apply in the same manner as though

the decision were a determination of corresponding rights or liabilities under the Railroad Unemployment Insurance Act . . . .

Section 5 of the Railroad Unemployment Insurance

Act, 45 U.S.C. § 355; section 7 of the Railroad Retirement

Act, 45 U.S.C. § 231f; and section 8 of the Railroad Retirement Act, 45 U.S.C. § 231g, are set forth in their entirety

in the appendix. App. 18a-41a.

STATEMENT

This case is the ideal vehicle for resolving a deep and

acknowledged circuit conflict over the reviewability of decisions of the Railroad Retirement Board. The nation’s

railroad workers often face uniquely hazardous on-the-job

conditions. Congress enacted the Railroad Retirement

Act (“RRA”) and the Railroad Unemployment Insurance

Act (“RUIA”) at the height of the Great Depression to

give these workers disability, retirement, sickness, and

unemployment benefits. Every year, the Board—a threemember independent agency charged with administering

those benefits programs—adjudicates thousands of

claims from American railroad workers and their families.

Section 5(f) of the RUIA, 45 U.S.C. § 355(f), subjects

“any final decision of the Board” to judicial review in federal courts of appeals. And section 8 of the RRA, 45

U.S.C. § 231g, prescribes the “same manner” of judicial

review for “[d]ecisions of the Board determining the

rights or liabilities of any person under this Act.”

Courts of appeals have sharply divided over whether

Board decisions denying requests to reopen earlier proceedings are eligible for judicial review under those statutory provisions. This circuit conflict has left Board decisions denying reopening reviewable in some parts of the

country, but not others. Within the Second, Eighth, and

D.C. Circuits, federal courts of appeals review Board denials of requests to reopen prior proceedings. The Second

and Eighth Circuits have long embraced this rule. And in

Stovic v. Railroad Retirement Board, 826 F.3d 500 (D.C.

Cir. 2016), then-Judge Kavanaugh, writing for the D.C.

Circuit, explained that Congress meant what it said in authorizing federal courts of appeals to review “any final decision” of the Board. Because the Board’s decisions denying requests to reopen prior proceedings are final decisions, they are just as reviewable as any other final Board

decision. Id. at 506.

But within the Third, Fourth, Fifth, Seventh, and

Tenth Circuits, such decisions are not subject to any judicial review. Those courts instead hold that a different provision, 45 U.S.C. § 355(c), which governs the parties who

may seek judicial review, also limits the types of Board

decisions subject to judicial review and excludes review of

decisions denying reopening. In those circuits, the

Board’s decision denying reopening is the end of the line.

This 5-3 split is deep, widely acknowledged, and entrenched. Numerous courts of appeals, including the

Fifth Circuit in the decision below, have recognized this

division of authority. The split was outcome determinative in this case. Only this Court can create uniformity

and break the logjam on an important and recurring issue

under a longstanding federal program.

This Court should act now, because this conflict is too

important to ignore. The statutory text unambiguously

grants federal courts of appeals jurisdiction over the

Board’s reopening decisions. Abdicating this jurisdiction

turns the presumption in favor of judicial review on its

head, and leaves no one to check the legality of these decisions of an unusually independent agency.

That dereliction of judicial duty is particularly troubling because the Board’s decisions carry life-changing

consequences for thousands of railroad workers who depend on disability benefits for financial support. Whether

the Board denies an application on the merits or rejects a

request to reopen a prior benefits determination, the

stakes are the same: Railroad workers do not receive

money that could transform their quality of life.

In sum, this case presents an ideal opportunity to resolve an intractable circuit conflict on a significant but

straightforward question of federal law. Only this Court’s

intervention can resolve the split and bring uniformity to

an important nationwide program.

Statutory and Regulatory Framework

During the Great Depression, railroad employees

called on Congress to protect the private railroad pension

systems that had been in place since 1874. See U.S. Gov’t

Accountability Off., GAO-18-111SP, The Nation’s Retirement System: A Comprehensive Reevaluation Is Needed

to Better Promote Future Retirement Security, at 114,

116 (2017). Congress first tried to create a federal program administering railroad employee pensions in 1934,

but this Court struck that version down. R.R. Ret. Bd. v.

Alton R. Co., 295 U.S. 330 (1935). The 1935 replacement

faced additional legal challenges. See Alton R.R. Co. v.

R.R. Ret. Bd., 16 F. Supp. 955 (D.D.C. 1936). But the third

version—the Railroad Retirement Act of 1937—survived.

See Railroad Retirement Act of 1937, Pub. L. No. 75-162,

ch. 382, part I, 50 Stat. 307 (“RRA”). Shortly thereafter,

Congress supplemented the benefits available to railroad

workers by enacting the Railroad Unemployment Insurance Act, Pub. L. No. 75-722, ch. 680, § 1, 52 Stat. 1094

(1938) (“RUIA”).

1. The Board—“an independent agency in the executive branch”—administers retirement and disability

benefits available to railroad employees under the RRA,

45 U.S.C. § 231f(a), along with unemployment and sickness benefits available under the RUIA, 45 U.S.C. § 362.1

Congress vested in the Board “all the duties and powers necessary to administer” the statutory scheme and

empowered the Board to “take such steps as may be necessary to enforce [the Act] and make awards and certify

payments.” Id. § 231f(b)(1). Congress further directed

the Board to “establish and promulgate rules and regulations to provide for the adjustment of all controversial

matters arising in the administration of [the Act].” Id.

§ 231f(b)(5).

The Board consists of three members, each of whom

serves a staggered, five-year term. Id. § 231f(a). While

each is “appointed by the President, by and with the advice and consent of the Senate,” section 231f(a) strictly

limits the President’s choice of candidates. The Labor

Member of the Board “shall be appointed from recommendations made by representatives of the employees.”

Id. The President therefore must wait for employee representatives to present a list of options from which the

President must then choose. Likewise, the Employer

Member of the Board “shall be appointed from recommendations made by representatives of employers.” The

President need not heed employees’ or employers’ recommendations for the third member, the Board’s Chairman.

Id. But section 231f(a) still cabins the President’s choices

“[A]ny individual in the service of one or more employers for compensation” is an employee. 45 U.S.C. § 231(b)(1). An “employer” includes “any carrier by railroad subject to the jurisdiction of the Surface Transportation Board” and “any railway labor organization, national in scope, which has been or may be organized in accordance

with the Railway Labor Act.”

Id. §§ 231(a)(1)(i), (v); id.

§§ 231(a)(1)(ii)–(iv) (additional employers), 231(a)(2) (exceptions).

for Chairman to individuals who “shall not be in the employment of or be pecuniarily or otherwise interested in

any employer or organization of employees.” Id.

Further, Congress requires the Board to submit all of

its budget requests, legislative recommendations, prepared congressional testimony, and internal views on legislation straight to Congress, without any Executive

Branch review beforehand. Id. § 231f(f). Congress prohibits any “officer or agency of the United States” from

“requi[ring] the Board” to submit such materials for Executive Branch review before Congress sees them. Id.

2. The Board follows a multi-step process in issuing

benefits determinations and adjudicating any ensuing appeals of those determinations.

a. To obtain benefits, claimants must first file an “application for annuities” or a “claim for benefits” with the

Board. 45 U.S.C. §§ 231a(a)(1), 355. The application goes

to the division of the Board that renders initial decisions

on applications for that type of benefit (i.e., retirement,

unemployment, disability, or sickness). Once that division

renders its initial decision, the Board must normally notify the applicant of the outcome within 30 days. 45 U.S.C.

§§ 231f(b)(3), 355(c)(5). An applicant must submit a request for reconsideration within 60 days of the mailing of

the initial decision, unless “good cause” excuses a late filing. 20 C.F.R. §§ 260.3(d)(1)-(6); see id. §§ 320.10(a), (d),

(e).

b. If the relevant division denies reconsideration, the

applicant can appeal the decision further up the chain

within the Board. The first step is an appeal to the Bureau

of Hearings and Appeals. 20 C.F.R. §§ 260.5(a), 320.12.

The applicant has 60 days from when the Board mails its

denial of the reconsideration request to file an appeal, although that deadline again can be excused for good cause.

Id. §§ 260.5(b), (c); see id. §§ 320.12(a), (b). The Bureau

then appoints a hearing officer to adjudicate the appeal.

Id. §§ 260.5(e)-(l), 320.18. The hearing officer’s decision

becomes the agency’s “final decision” absent a further appeal. See 45 U.S.C. §§ 231f(b)(3), 355(d); 20 C.F.R.

§ 261.1(b).

Finally, applicants “have a right to a final appeal” to

the three-member Board itself. 20 C.F.R. §§ 260.9(a),

320.38; 45 U.S.C. § 231f(b)(3) (guaranteeing “any person

aggrieved by a decision on his application for an annuity

or other benefit . . . the right to appeal to the Board”).

Again, applicants have 60 days from the date when the

hearing officer mails the notice of that decision to file this

appeal, subject to a further good-cause exception. 20

C.F.R. §§ 260.9(b), (c), 320.39(a). The Board’s decisions

qualify as “final decision[s]” under the Board’s regulations. See id. §§ 261.1(b), 320.42.

c. The employee is not the only party who can participate in the Board’s benefits determination and review

process. For example, a claimant’s “base-year employer,”

i.e., the company that employed the claimant for the year

preceding the benefits claim, 45 U.S.C. § 351(n), has a

statutory right to “submit information relevant to the

claim before” the Board “mak[es] an initial determination

on the claim.” 45 U.S.C. § 355(b). That employer also has

the power to appeal the grant or denial of benefits. Id.

§§ 355(c)(1), (3); 20 C.F.R. § 345.405(b). Moreover, in the

event of an appeal, any “parties properly interested” in

the Board’s decision, such as a claimant’s employer or a

union representative, has the right to “participate in the

proceeding,” see, e.g., 45 U.S.C. § 355(c)(1); 20 C.F.R.

200.10(a)(1)-(3).

3. Of particular importance here, the Board’s procedures expressly provide that prior “decisions of the

agency may be reopened and revised.” 20 C.F.R.

§§ 261.1(a), 349.1(a). The Board can make determinations

regarding reopening in several ways. The Board personnel who rendered the prior decision (for instance, the relevant division that issued the initial decision, or the hearing officer in an ensuing administrative appeal) can decide

to reopen it either upon request or sua sponte. 20 C.F.R.

§§ 261.1(a), 349.1(a). Alternatively, any “other entity at a

higher level” within the Board may decide to reopen the

proceeding. 20 C.F.R. §§ 261.1(a), 349.1(a).

Board regulations set forth criteria for reopening its

prior decisions. First, the Board may reopen a decision

“within 12 months” of its issuance “for any reason,” again

either upon request or sua sponte. Id. §§ 261.2(a),

349.2(a). Second, the Board may reopen a decision “within

four years” of its issuance if the request is based upon

“new and material evidence” or an “adjudicative error not

consistent with the evidence of record at the time of the

adjudication.” Id. §§ 261.2(b), 349.2(a). Third, the Board

may reopen a decision at “any time” if the basis for reopening satisfies specified conditions that vary slightly depending on whether the reopening request pertains to

benefits available under the RRA or the RUIA. See id.

§§ 261.1(c)(1)-(10) (listing ten conditions for reopening

RRA benefits decisions); see also id. §§ 349.2(c)(1)–(3)

(listing the three conditions under which RUIA benefits

decisions may be reopened at “any time”). Finally, the

three-member Board can order the reopening of any prior

decision, even if any otherwise applicable regulatory requirements are not met. Id. §§ 261.11, 349.8.

4. Section 5(f) of the RUIA, 45 U.S.C. § 355(f), provides that “[a]ny claimant”—as well as any other listed

entities—“may, only after all administrative remedies

within the Board will have been availed of and exhausted,

obtain a review of any final decision of the Board by filing

a petition for review” in specified federal courts of appeals. 45 U.S.C. § 355(f) (emphasis added). Parties must

seek such review “within [90] days after the mailing of notice of such decision to the claimant or other party, or

within such further time as the Board may allow.” Id.

§ 355(f). And parties must seek such review in the D.C.

Circuit, the Seventh Circuit (where the Board is headquartered), or in the circuit where the claimant resides.

Id. Those courts of appeals have “exclusive jurisdiction of

the proceeding and of the question determined therein.”

Id.

Congress prescribed the same scope of review for

Board decisions arising under the RRA. The RRA mandates that “[d]ecisions of the Board determining the

rights or liabilities of any person” under that Act “shall be

subject to judicial review in the same manner” as Board

decisions under 45 U.S.C. § 355(f), except with respect to

filing deadlines. Id. § 231g. Parties may seek “review of

a decision with respect to an annuity, supplemental annuity, or lump-sum benefit” under the RRA within one year

of the Board communicating the decision to the claimant,

id., rather than the 90-day window for decisions arising

under the RUIA. Congress thus prescribed a uniform

rule for all Board decisions under either the RUIA or

RRA: any claimant, after exhausting administrative remedies, may seek judicial review of “any final decision.”

Factual and Procedural Background

1. Petitioner Manfredo Salinas is a 63-year-old former railroad employee who has long resided in Laredo,

Texas. AR-020 to 21. His primary language is Spanish;

he has difficulties fully understanding English. AR-255.

He never completed high school, though he eventually obtained his GED. AR-038, AR-104 .

After serving in the U.S. Army, AR-263, AR-310, AR418, in 1979 Mr. Salinas embarked on his career for Union

Pacific Railroad, where he worked until 1994, AR-141. He

began as a Bridge and Building Helper, advanced to a

Bridge and Building Carpenter, and ultimately rose to a

Bridge and Building Assistant Foreman. AR-044, AR-46.

The work was arduous. Mr. Salinas built and dismantled

wooden bridges, often climbing high in the air to access

hard-to-reach areas. AR-044 to 45, AR-263, AR-478. He

routinely lifted heavy objects, from jackhammers and 50pound hydraulic jacks to railroad ties and concrete blocks.

AR-478; AR-045.

In May 1989, a twelve-pound sledgehammer fell from

a bridge, landing on Mr. Salinas’s hardhat. AR-067. An

initial emergency-room trip ruled out immediate surgery.

But as the weeks went on, Mr. Salinas experienced ongoing neck pain and numbness in his limbs, forcing him to

miss work. AR-398. By 1991, Mr. Salinas required spine

surgery. AR-133, AR-398.

Mr. Salinas resumed work post-surgery. But in August 1993, a heavy piece of timber fell from a truck and

struck him. AR-132. He blacked out and initially could

not move. AR-398. Numbness and pain in his limbs and

neck returned, ultimately requiring another spinal fusion

surgery. AR-290, AR-398. The pain never went away, and

it brought enormous further stress. AR-035. Mr. Salinas

was prescribed various medications to ease the pain and

to treat his anxiety and depression, AR-399, AR-416, AR341; AR-73, AR-99, AR-445, but nothing fully worked,

AR-398.

Nonetheless, Mr. Salinas continued trying to work

and to help his wife with raising their six children. He

stopped working for Union Pacific in 1994 but continued

working as a self-employed carpenter as long as he could.

In 1997, ongoing numbness in his neck and limbs

prompted him to stop working altogether. AR-478.

2. With his wife’s aid, Mr. Salinas reached out to the

Board for assistance by applying for disability annuities.

See, e.g., AR-034 (March 1992), AR-086 (April 1994). The

Board acknowledged his limitations due to his injuries but

denied the applications he filed in 1992 and 1994 because

it believed his condition was “not severe enough to prevent performance of any regular and substantial work”

given his age. AR-059, AR-126.

Because the pain and anxiety continued after he

stopped working, Mr. Salinas applied for a disability annuity again in February 2006. AR-158. The Disability

Benefits Division found that his condition was “so severe

that it has lasted or is expected to last for at least 12

months, or it is expected to result in death,” and found

that he was “not able to do past relevant work.” AR-181

to 182. A psychiatric examination confirmed his “mental

impairment is severe.” AR-199. But in August 2006, the

Division denied his application, again stating that his condition was “not severe enough to prevent performance of

any regular and substantial work.” AR-205. The Board

informed him that “[a]lthough you do have severe impairments, you are not considered totally and permanently

disabled for all work in the national economy.” Id.

Mr. Salinas requested reconsideration of this decision

in November 2006. AR-207. Though the request was untimely, he asked to be excused for missing the deadline for

good cause, namely his limited English proficiency, his depression, and a delay in acquiring medical records and

getting an appointment for an MRI. AR-207. The Board’s

Reconsideration Section denied the request as untimely.

While the denial informed Mr. Salinas that he could request reconsideration of this decision, AR-208, the Board

also stated: “No further action can be taken on the application you filed on February 28, 2006.” AR-208. Mr. Salinas took no further action on this application.

3. In December 2013, Mr. Salinas, by then 58 years

old, applied again for a disability annuity. AR-277. He

again recounted his 1989 sledgehammer injury, his 1993

injury from being struck by heavy timber, and his two spinal fusion surgeries. AR-290. This time, the Board

granted the annuity application, reasoning that once Mr.

Salinas reached age 55, he was no longer able to adjust his

work and find employment that would not have required

him to lift over 20 pounds. AR-300. The Board awarded

him a monthly disability annuity of $1,624.35 from October 1, 2012, through September 30, 2013, and a monthly

disability annuity of $1,647.33 from October 1, 2013 forward. AR-310.

On September 17, 2014, Mr. Salinas timely requested

reconsideration of the Board’s decision, arguing that the

Board erred in setting October 1, 2012, as the first day on

which he would be entitled to disability benefits. He contended that the proper date was instead his 55th birthday,

October 9, 2010, because that was the point at which the

Board determined he could no longer work any job. AR323. The Board’s Reconsideration Section denied that reconsideration request, AR-324 to 325, and Mr. Salinas appealed to the Bureau for review of the start date of the

annuity awarded to him on his 2013 application, AR-326 to

332.

In connection with this appeal, Mr. Salinas also requested the “reopening of all prior applications[.]” AR332. Specifically, he requested a reopening of his 2006 application, which the Reconsideration Section had ultimately denied after refusing to excuse the untimeliness of

his request to reconsider the initial denial of that application. Mr. Salinas contended that “good cause” excused

the untimeliness of that reconsideration request and entitled him to continue exhausting his administrative remedies on the 2006 application because of his mental condition, his limited English proficiency, his pro se status, and

the Board’s lack of assistance in aiding him in securing

medical records from the Veterans Administration to support his application. AR-408-09, 462–64. If “good cause”

excused the untimeliness, then Mr. Salinas could keep litigating whether the Board properly denied his 2006 application and might obtain a disability annuity with an earlier

start date.

The hearing officer considering Mr. Salinas’s request

for reopening accepted additional evidence from him, including the VA medical records, AR-410 to 412, and held

a hearing to resolve factual issues relating to whether

“good cause” existed for his untimely reconsideration request in 2006. AR-408. The hearing officer denied this

reopening request, reasoning that the 2006 decision was

“more than four years ago,” and so “new and material evidence or administrative error [could not] be considered,”

and that Mr. Salinas’s grounds for reopening “d[id] not

fall into any category outlined in §261.2(c) of the Agency’s

regulations.” App. 14a. The hearing officer also denied

Mr. Salinas’s challenge to the beginning date for the disability annuity the Board had awarded him on his 2013 application. App. 14a-15a.

Mr. Salinas timely appealed to the three-member

Board, arguing that the hearing officer erred by not reopening the 2006 decision. App. 5a. But the Board declined

to reopen the 2006 denial, reasoning that Mr. Salinas’s

“limited English proficiency and mental impairments

were presented to the RRB in 2006” and did not constitute

“good cause” excusing his failure timely to request reconsideration of that 2006 denial. App. 7a-8a. The Board further held that even if Mr. Salinas’s VA records constituted

new and material evidence, that evidence would not justify reopening the denial of his 2006 application for disability benefits because more than four years had passed

since that decision. See id. The Board thus did not address whether the new evidence Mr. Salinas presented

would have changed the outcome of his 2006 application.

When transmitting its decision denying reopening to

Mr. Salinas, the Board advised that he could “seek judicial

review of the Board’s opinion by filing a petition for review with an appropriate United States court of appeals

within one year from the date of the Board’s decision.”

AR-487.

4. Mr. Salinas, appearing pro se, timely sought review

of the Board’s decision denying reopening in the Fifth

Circuit. His petition acknowledged the Fifth Circuit’s decision in Roberts v. Railroad Retirement Board, 346 F.3d

139 (5th Cir. 2003), which held that 45 U.S.C. § 355(f) restricts the courts of appeals’ jurisdiction “to the review of

Board decisions on the merits of a claim for benefits.” Id.

at 140. But the petition urged the court to instead follow

the D.C. Circuit’s recent opinion in Stovic v. R.R. Retirement Board, 826 F.3d 500 (D.C. Cir. 2016), which held that

45 U.S.C. § 355(f) “grants [courts of appeals] jurisdiction

to review Board decisions denying requests to reopen initial benefits determinations.” Id. at 506.

The Fifth Circuit dismissed Mr. Salinas’s petition in a

three-page, per curiam opinion. App. 1a-4a. The court

conceded that it had previously “acknowledged a circuit

split on this issue.” App. 3a. The court cited the “divergent conclusions” of courts of appeals’ decisions—namely,

that the Fourth, Sixth, Seventh, and Tenth Circuits, like

the Fifth Circuit, hold that courts of appeals lack jurisdiction over reopening decisions, whereas the Second and

Eighth Circuits find jurisdiction. Id. The Fifth Circuit

further conceded that the D.C. Circuit’s Stovic decision

had deepened that circuit split. Id. But the court of appeals concluded that the “rule of orderliness prevent[ed]

[it] from reconsidering [Roberts].” App. 4a.

REASONS FOR GRANTING THE PETITION

The division of authority on the question presented is

clear and acknowledged. Eight circuits have squarely addressed whether 45 U.S.C. §§ 231g and 355(f) provide for

judicial review of the Board’s denial of a request to reopen

a final decision of the Board. Three have answered in the

affirmative; five have answered in the negative. This deep

and persistent split thwarts uniform application of a federal law that serves as a critical safety net for retired railroad workers, and removes an essential judicial check on

important decisions of an independent agency. This

Court’s review is warranted to resolve the intractable division of circuit court authority and to correct a deeply erroneous interpretation of a significant federal statute.

The Decision Below Entrenches A Circuit Split

Over Whether Congress Provided for Judicial Review of Board Decisions Denying Reopening

1. As the decision below recognized, three courts of

appeals have concluded that Congress conferred jurisdiction to review Board decisions denying requests to reopen

initial benefits determinations. App. 3a.

Start with the D.C. Circuit, which most recently addressed the question presented. In Stovic v. Railroad Retirement Board, 826 F.3d 500 (D.C. Cir. 2016), the D.C.

Circuit engaged in a textual analysis of 45 U.S.C. § 355(f),

the critical jurisdiction-conferring provision of the RUIA

that also determines the reviewability of decisions pursuant to the RRA. Id. at 502. Then-Judge Kavanaugh emphasized that the statute broadly “provides for judicial review of ‘any final decision of the Board.’” Id. (quoting 45

U.S.C. § 355(f)). A Board decision denying a request to

reopen is both “final” and a “decision of the Board.” See

id. Thus, under the plain language of 45 U.S.C. § 355(f), a

Board decision denying a request to reopen an initial benefits determination is subject to judicial review. Id.

Like the D.C. Circuit, the Second Circuit has held

that it had jurisdiction to review the Board’s denial of a

request to reopen a claim for prior benefits. Szostak v.

R.R. Ret. Bd., 370 F.2d 253, 254-55 (2d Cir. 1966). But

unlike the D.C. Circuit, which focused on the statutory

text of section 355(f), the Second Circuit grounded its jurisdiction under the Administrative Procedure Act

(“APA”), or if the APA was inapplicable, then in federal

common law. Szostak, 370 F.2d at 254-55. Relying on the

Second Circuit’s decision in Szostak, the Eighth Circuit

likewise found “jurisdiction to review” a Board decision

denying a request to reopen. Sones v. R.R. Ret. Bd., 933

F.2d 636, 638 (8th Cir. 1991).

2. In stark contrast, five circuits have held that a

Board decision declining to reopen a case is not judicially

reviewable—an approach that the Fifth Circuit reaffirmed in the decision below.

Take, for instance, the Seventh Circuit. In Steebe v.

R.R. Ret. Bd., 708 F.2d 250 (7th Cir. 1983), the court read

into 45 U.S.C. § 355(f) a limitation on the kinds of Board

decisions that are judicially reviewable. Id. at 253-55. The

Seventh Circuit held that only final initial benefit determinations made under 45 U.S.C. § 355(c) are reviewable.

Because decisions on a request to reopen do not fall within

section 355(c), the Court reasoned, they are not reviewable under section 355(f).

In reaching this conclusion, the Seventh Circuit relied

on this Court’s decision in Califano v. Sanders, 430 U.S.

99 (1976). Sanders held that section 205(g) of the Social

Security Act, 42 U.S.C. § 405(g), did not grant courts jurisdiction to review the denial of a claimant’s application

to reopen a claim. 430 U.S. at 107-08. That section provides that “[a]ny individual, after any final decision of the

Secretary made after a hearing to which he was a

party . . . may obtain review of such decision.” Id. at 108

(quoting 42 U.S.C. § 405(g)). This Court explained that

the Social Security Act limited judicial review to a particular kind of administrative action: a “final decision of the

Secretary made after a hearing.” Id. Because a request

to reopen could be denied without a hearing, the Court

concluded that such a decision was not the kind of administrative action reviewable under the Social Security Act.

Id.

The Third, Fourth, Fifth, and Tenth Circuits have all

followed the Seventh Circuit’s lead and held that Board

decisions denying reopening are not subject to judicial review. See, e.g., Cunningham v. R.R. Ret. Bd., 392 F.3d

567, 571-73 & n.5 (3d Cir. 2004) (finding Sanders “persuasive” and deciding that 45 U.S.C. § 355(c) defines the

kinds of decisions “suitable for review”); Harris v. R.R.

Ret. Bd., 198 F.3d 139, 142 (4th Cir. 1999) (supporting the

Tenth and Seventh Circuits’ application of Sanders to

Board reopening cases and limiting judicial review to final

decisions under 45 U.S.C. § 355(c)); Roberts v. R.R. Ret.

Bd., 346 F.3d 139, 141 (5th Cir. 2003) (noting the similar

“limitation on judicial review” in the Social Security Act

and cabining review to final decisions under 45 U.S.C.

§ 355(c)); Abbruzzese v. R.R. Ret. Bd., 63 F.3d 972, 974

(10th Cir. 1995) (agreeing with the Seventh Circuit’s ap-

plication of Sanders and thereby restricting review to “final decisions of the Board regarding the initial denial of

an employee’s claim for benefits”).2

3. The enduring divide among the circuits over this

question has not gone unnoticed. Numerous courts—including the Fifth Circuit below—have “acknowledged a

circuit split” on the question presented. App. 3a; see also,

e.g., Harris, 198 F.3d at 141 (“The circuits that have addressed this issue are in disagreement.”); Stovic, 826 F.3d

at 502, 504 n.2 (stating “[t]he courts of appeals are divided” on the question presented); Cunningham, 392

F.3d at 572-75 (cataloguing the disagreement); Roberts,

346 F.3d at 141 (same); Rivera, 262 F.3d at 1010 (same);

Abbruzzese, 63 F.3d at 973-74 (same); Clifford v. R.R. Ret.

Bd., 3 F.3d 536, 538 (1st Cir. 1993) (same).

Commentators as well have highlighted the division

among the courts “as to the reviewability of a refusal to

reopen an earlier claim denial.” William S. Jordan III,

News from the Circuits, 29 Admin. & Reg. L. News, Winter 2004, at 22 (noting that the Fifth Circuit “join[ed] the

Fourth, Sixth, Seventh, and Tenth Circuits, contrast[ing]

with the position of the Second and Eighth Circuit”); accord Steven L. Willborn, Advising the Elderly Client

§ 20:115 & n.2 (Kimberley Dayton et al. eds., 2019); Aaron

In addition, the Ninth Circuit held in Rivera v. R. R. Ret. Bd., 262

F.3d 1005, 1009-1010 (9th Cir. 2001), that it lacked jurisdiction to review the Board’s decision not to extend the time for filing an untimely

challenge. The Ninth Circuit “agree[d] with the Fourth Circuit’s view

in Harris” and reasoned that the “Board’s dismissal of [the petitioner’s] appeal as untimely is not a ‘final decision’ under § 355(c) because it did not decide the case ‘on the merits.’” Id. at 1010 (citation

omitted); see also Gutierrez v. R.R. Ret. Bd., 918 F.2d 567, 570 (6th

Cir. 1990) (asserting that “a final decision under 45 U.S.C. § 355(c)” is

necessary for judicial review).

Nielson, D.C. Circuit Review – Reviewed: A Flamingo in

the Shadows, Yale J. on Reg.: Notice & Comment (June

25, 2016), available at https://yalejreg.com/nc/d-c-circuitreview-reviewed-a-flamingo-in-the-shadows-by-aaronnielson/; see also Case Law Update, 6 Tex. Tech. J. Tex.

Admin. L. 3, 13-14 (2005); 18 Fed. Proc. Forms § 67:74

(2019).

The division over whether the courts of appeals have

jurisdiction to review the Board’s denial of a prior benefits

claim is stark, deep, and longstanding. The two sides of

the split apply the same statutory language in 45 U.S.C.

§§ 231g and 355(f) in irreconcilably different ways. Similarly situated workers and other interested parties entitled to seek reopening of the Board’s decisions face opposing outcomes in courts of appeals depending on the happenstance of where they file their petition for review.

Only this Court can break the impasse to ensure equal

treatment across the country.

The Question Presented

Squarely Presented

Important

and

1. Whether Board decisions on reopening requests

are subject to judicial review is a question of substantial

importance to the hundreds of thousands of individuals

around the country who rely upon the Board’s decisions

for retirement, disability, unemployment, and sickness

benefits. In 2017 alone, the Board paid at least some benefits to some 574,000 beneficiaries, of whom nearly 28,000

receive some type of disability annuities. See United

States Railroad Retirement Board, Annual Report, at 1,

18 (2018). That same year, the Board awarded claimants

1,600 disability annuities—700 for total disability averaging $2,029 per month, and 900 for occupational disability

averaging $3,259 per month. See id. at 17.

That amount of money can make a critical difference

to railroad employees and their families. It is almost half

of the average annual wage across all employees in the rail

transportation industry ($66,810); more than half of the

average annual wage for “Carpenters” in the rail transportation industry ($55,430); and more than 80 percent of

the average annual wage for “Helpers” in the “Construction Trades” in the rail transportation industry ($36,860).3

Even that comparison understates the impact that the annuity can have for those disabled individuals, such as Mr.

Salinas, who are unable to work and for whom the annuity

is often their only source of income.

There is obviously much at stake for railroad employees and other potential beneficiaries under the Act when

they seek an annuity. They have a deep interest in the

quality of the Board’s decisions as to whether they will receive this transformative amount of money. Though not

all interested parties will request that their prior applications be reopened, the availability of judicial review for

those who do is a key backstop to ensure that the Board’s

decisions are accurate and fair. See, e.g., Stovic, 826 F.3d

at 505 (“It makes sense to provide for judicial review of

potentially arbitrary and mistaken Board decisions denying requests to reopen. Judicial review helps ensure accuracy and fairness.”). The benefit of judicial review of

denied reopening requests is amplified where, as here, the

often-pro se applicants must file lengthy and complex

forms and make their way through a complex administrative apparatus before securing the right to judicial review.

See Bureau of Labor Statistics, Dep’t of Labor, National Industry-Specific Occupational Employment and Wage Estimates – NAICS

482100

–

Rail

Transportation,

available

https://www.bls.gov/oes/current/naics4_482100.htm#00-0000

(last

accessed Aug. 14, 2019).

See supra pp. 7-10. And railroad workers are not the only

people affected. Because employers and other interested

parties can also request reopening, supra p. 8, they too

cannot vindicate their interests in accurate Board decisions when courts of appeals close their doors to review of

the Board’s denial of requests to reopen.

2. This case is an ideal vehicle to resolve the conflict

in the circuits. The question presented is outcome-determinative. Had Mr. Salinas filed in the D.C., Second, or

Eighth Circuits, he would have obtained judicial review of

his reopening claim; because he filed in the Fifth Circuit,

he did not. There are no vehicle or procedural issues that

would bar this Court’s review. Whether 45 U.S.C. §§ 231g

and 355(f) authorize judicial review of the Board’s decisions denying reopening was squarely presented to the

Fifth Circuit, which reaffirmed its prior precedent holding that no such jurisdiction exists. App. 1a-4a. And the

court of appeals did this despite recognizing that the D.C.

Circuit had recently reached a contrary result. Further

percolation would do no good, and would squander a clean

opportunity for this Court to address a question that has

divided the lower courts for decades. The Court should

grant the petition to resolve the deep and longstanding division on this important issue.

The Decision Below Is Wrong

The Fifth Circuit’s decision flouts the text of 45

U.S.C. §§ 231g and 355(f) by reading in an implicit limitation on the kinds of Board decisions that are judicially reviewable. The decision below reaffirmed prior Fifth Circuit precedent that mistakenly relied on the very different

text of Social Security Act without parsing the actual text

applicable to decisions of the Railroad Retirement Board.

This misguided precedent undermines accuracy, fairness,

and the presumption of judicial review of administrative

actions. This Court should correct this serious misinterpretation of federal law.

1. Section 355(f) broadly makes “any final decision of

the Board” under the RUIA reviewable by an appellate

court. 45 U.S.C. § 355(f) (emphasis added). Section 231g

incorporates this broad reviewability provision and extends it to final decisions of the Board with respect to disability benefits under the RRA. Taken together, these

two provisions apply the same judicial-review rule to all

Board decisions.

Despite the plain meaning of the statutes, the Fifth

Circuit and several of its sister circuits have stripped

themselves of jurisdiction, deciding that only final decisions on initial benefits determinations are subject to judicial review. See, e.g., Cunningham, 392 F.3d at 572;

Roberts, 346 F.3d at 141; Harris, 198 F.3d at 142; Steebe,

708 F.2d at 254-55.

By doing so, these courts have conflated the categories of petitioners eligible to seek judicial review with the

kinds of final decisions that are subject to review. The

term “final decision” appears twice in section 355(f). The

first reference to “final decision” is in a sentence describing claimants, “any other party aggrieved by a final decision under [45 U.S.C. § 355(c)],” and others as the parties

who can seek judicial review of Board decisions. 45 U.S.C.

§ 355(f) (emphasis added). That reference thus establishes “one of the four categories of petitioners who may

seek judicial review.” Stovic, 826 F.3d at 503. Courts that

have refused to review decisions denying the reopening of

prior claims have honed in on the language “aggrieved by

a final decision under [45 U.S.C. § 355(c)]” to restrict reviewability to only those decisions made under 45 U.S.C.

§ 355(c). See, e.g., Roberts, 346 F.3d at 141; Harris, 198

F.3d at 142; Steebe, 708 F.2d at 254-55.

Significantly, however, these courts ignore 45 U.S.C.

§ 355(f)’s second reference to a “final decision,” which

“defin[es] the kinds of decisions subject to review for all

the categories of eligible petitioners.” Stovic, 826 F.3d at

503. Again, that critical provision states in relevant part:

“Any claimant, . . . or any other party aggrieved by a final

decision under [45 U.S.C. § 355(c)] . . . , may . . . obtain a

review of any final decision of the Board.” 45 U.S.C.

§ 355(f) (emphases added)). The text of section 355(f)

plainly provides for judicial review of “any final decision

of the Board”—not just those “final decisions under subsection [45 U.S.C. § 355](c).” Courts that have nevertheless applied those limitations and abdicated their jurisdiction over Board decisions on reopening requests are mistaken.

“When Congress includes particular language in one

section of a statute but omits it in another, this Court presumes that Congress intended a difference in meaning.”

Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 777 (2018)

(alterations omitted) (quoting Loughrin v. United States,

573 U.S. 351, 358 (2014)). As the D.C. Circuit has explained: “Had Congress intended to limit judicial review

in [45 U.S.C. § 355(f)] to initial benefits determinations, it

could have easily done so by employing the phrase ‘under

subsection [45 U.S.C. § 355](c)’ when setting out the kinds

of decisions subject to judicial review.” Stovic, 826 F.3d

at 503. Congress did precisely this in other parts of 45

U.S.C. § 355 by attaching qualifying language to statutory

terms. See, e.g., 45 U.S.C. § 355(c)(5) (stating that, for

“[f]inal decision[s] of the Board in the cases provided for

in the preceding three paragraphs,” parties “may obtain

a review of any such decision” through 45 U.S.C. § 355(f)

(emphasis added)); id. (providing that “the decision of the

Board upon all issues determined in such decision” is final

(emphasis added)). But Congress did not impose any such

limitations in 45 U.S.C. § 355(f), electing instead to make

“any final decision of the Board” reviewable. See 45

U.S.C. § 355(f). So the enacted text could not be clearer:

decisions denying requests to reopen are “final decisions”

and therefore subject to judicial review.

2. The Fifth Circuit—like several other circuits that

refuse to review the Board’s denials of requests to reopen

a case—relied on this Court’s decision in Sanders. But

“reliance on Sanders disregards the critical textual difference between” the judicial review provisions in the Social

Security Act and the RUIA. Stovic, 826 F.3d at 504.

Section 205(g) of the Social Security Act, 42 U.S.C. §

405(g), at issue in Sanders, limits judicial review to “review of such decision[s].” 42 U.S.C. § 405(g) (emphasis

added). The term “such” refers back to a subcategory of

decisions: “any final decision of the Secretary made after

a hearing.” Id. And under the Social Security Act, the

Secretary may deny a petition to reopen a prior final decision without a hearing. Sanders, 430 U.S. at 108 (citing

42 U.S.C. § 405(b)). Thus, relying on the qualifying language in 42 U.S.C. § 405(g)—“made after a hearing”—this

Court held that the Social Security Act prohibits review

of agency denials of requests to reopen. 430 U.S. at 108.

In contrast, 45 U.S.C. § 355(f) contains no such qualifying language on the kinds of decisions that can be reviewed. Instead, section 355(f) plainly permits review of

“any final decision of the Board.” 45 U.S.C. § 355(f) (emphasis added); Stovic, 826 F.3d at 504. For that reason,

“the result reached by the Sanders Court, which was

based primarily on the text of [42 U.S.C. §405(g)], does

not apply to the differently and more broadly worded text

of [45 U.S.C. § 355(f)].” Id.

Neither the Fifth Circuit below nor any of the circuits

that have relied on Sanders have mentioned, “much less

grappled with,” the key difference between the text of section 42 U.S.C. § 405(g) and that of 45 U.S.C. § 355(f).

Stovic, 826 F.3d at 505. They have instead suggested that

a finding of jurisdiction over reopening decisions under

the RRA would similarly “frustrate the goal of ensuring

finality of [Board] decisions on the merits of claims for

benefits.” Cunningham, 392 F.3d at 574; see also Roberts,

346 F.3d at 141. But as the D.C. Circuit recognized,

“[i]nvocations of a general interest in finality cannot overcome the only congressional purpose of which we can be

sure—the purpose stated in the text of [45 U.S.C. §

355(f)].” Stovic, 826 F.3d at 505.

3. The Fifth Circuit’s interpretation is also inconsistent with “the strong presumption that Congress intends judicial review of administrative action.” Bowen v.

Michigan Acad. of Family Physicians, 476 U.S. 667, 670

(1986). That presumption is especially important where,

as here, the agency in question appears to be exempt from

the Administrative Procedure Act.

See 5 U.S.C.

§ 551(1)(E) (exempting “agencies composed of representatives of the parties or of representatives of the organizations of the parties to the disputes determined by them”).

Not only that, the Board “enjoy[s] an independence expressly designed to insulate [it], to a degree, from “‘the

exercise of political oversight.’” F.C.C. v. Fox Television

Stations, Inc., 556 U.S. 502, 547 (2009) (Breyer, J., dissenting) (quoting Freytag v. Commissioner, 501 U.S. 868,

916 (1991) (Scalia, J., concurring in part and concurring in

judgment)). Such insulation includes requiring the President to select two of the Board’s members from lists chosen by representatives of employees and of management,

restricting the qualifications for the Board’s Chairman,

and barring Executive Branch supervision of the Board’s

budgetary and legislative proposals.

§§ 231f(a), (f); supra p. 6.

See 45 U.S.C.

The Fifth Circuit’s interpretation flunks the core test

of whether Congress intended to overcome the presumption of judicial review: There is no “clear and convincing

evidence” that Congress wanted to strip courts of appeals

of jurisdiction to review the Board’s denial of reopening

requests. See Bowen, 476 U.S. at 671. If anything, by

making “any final decision of the Board” reviewable, Congress manifested its intent to grant judicial review. That

result is both consistent with the statutory text and eminently reasonable. Had Congress intended to prohibit

such review, it could have easily said so. The dearth of

any “clear and convincing” textual support for the Fifth

Circuit’s restrictive, anti-review interpretation is yet another reason to reject it.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,