Respondents Brief — Manfredo M. Salinas, Petitioner v. United States Railroad Retirement Board

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No. 19-199

In the Supreme Court of the United States

MANFREDO M. SALINAS, PETITIONER

UNITED STATES RAILROAD RETIREMENT BOARD

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT

ANA M. KOCUR

General Counsel

MARGUERITE P. DADABO

Assistant General Counsel

PETER J. ORLOWICZ

General Attorney

U.S. Railroad Retirement

Board

Chicago, Ill. 60611

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

JOSEPH H. HUNT

Assistant Attorney General

AUSTIN L. RAYNOR

Assistant to the Solicitor

General

CHARLES W. SCARBOROUGH

SONIA M. CARSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the United States Railroad Retirement

Board’s denial of a request to reopen a prior benefits

determination is subject to judicial review under 45

U.S.C. 231g and 355(f ).

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provisions involved ...................................................... 2

Statement:

A. Legal framework ........................................................ 2

B. Procedural history ...................................................... 8

Summary of argument ............................................................... 12

Argument..................................................................................... 16

I. Reopening decisions are not subject to judicial

review ............................................................................... 17

A. Section 355(f ) is limited to f inal decisions under

Section 355(c) ............................................................ 17

1. The text of Section 355(f ) limits judicial

review to f inal decisions under Section 355(c) .... 17

2. The structure of Section 355 confirms that

review is limited to Section 355(c)

determinations ..................................................... 20

3. Petitioner’s counterarguments lack merit ........ 24

B. Section 231g reinforces that reopening

decisions are not judicially reviewable ................... 29

C. Additional structural features of both statutes

conf irm this interpretation ...................................... 34

1. Reopening is a matter of agency grace ............. 34

2. Judicial review of reopening denials would

undermine other statutory constraints ............. 39

II. Petitioner’s remaining counterarguments lack

merit ................................................................................. 41

A. The presumption of judicial review does not

dictate a contrary conclusion ................................... 41

B. The government’s interpretation does not

broadly foreclose review of other Board

determinations .......................................................... 43

C. The Board has not conceded that reopening

denials are subject to judicial review ...................... 47

(III)

Table of Contents—Continued:

Page

Conclusion ................................................................................... 49

Appendix — Statutory provisions ........................................... 1a

TABLE OF AUTHORITIES

Cases:

Abbruzzese v. Railroad Ret. Bd., 63 F.3d 972

(10th Cir. 1995) .................................................................... 48

BNSF Ry. Co. v. Loos, 139 S. Ct. 893 (2019) ...................... 20

Bennett v. Spear, 520 U.S. 154 (1997).................................. 33

Block v. Community Nutrition Inst., 467 U.S. 340

(1984) .................................................................................... 42

Bowen v. Michigan Acad. of Family Physicians,

476 U.S. 667 (1986)........................................................ 41, 42

Califano v. Sanders, 430 U.S. 99 (1977) ..................... passim

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) ..................................................... 31

Cunningham v. Railroad Ret. Bd., 392 F.3d 567

(3d Cir. 2004) ....................................................................... 48

Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131

(2016) .................................................................................... 42

Dada v. Mukasey, 554 U.S. 1 (2008) .................................... 37

Department of Homeland Sec. v. MacLean,

574 U.S. 383 (2015).............................................................. 28

Elgin v. Department of Treasury, 567 U.S. 1 (2012) ......... 46

Federal Mar. Comm’n v. Seatrain Lines, Inc.,

411 U.S. 726 (1973).............................................................. 26

Harris v. United States R.R. Ret. Bd., 198 F.3d 139

(4th Cir. 1999) ...................................................................... 48

ICC v. Brotherhood of Locomotive Eng’rs,

482 U.S. 270 (1987)........................................................ 36, 42

Kucana v. Holder, 558 U.S. 233 (2010) ............................... 37

Cases—Continued:

Page

Lockhart v. United States, 136 S. Ct. 958 (2016) .......... 24, 25

Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015) ...... 41, 43

Paroline v. United States, 572 U.S. 434

(2014) .................................................................. 18, 25, 26, 27

Porto Rico Ry., Light & Power Co. v. Mor,

253 U.S. 345 (1920).............................................................. 26

Rimini St., Inc. v. Oracle USA, Inc.,

139 S. Ct. 873 (2019) ........................................................... 27

Roberts v. United States R.R. Ret. Bd.,

346 F.3d 139 (5th Cir. 2003) ................................... 11, 12, 48

SEC v. Louisiana Pub. Serv. Comm’n, 353 U.S. 368

(1957) .................................................................................... 32

Smith v. Berryhill, 139 S. Ct. 1765 (2019) .............. 30, 36, 38

Sones v. United States R.R. Ret. Bd., 933 F.2d 636

(8th Cir. 1991) ...................................................................... 48

Steebe v. United States R.R. Ret. Bd., 708 F.2d 250

(7th Cir.), cert. denied, 464 U.S. 997 (1983) ..................... 48

Stovic v. Railroad Ret. Bd., 826 F.3d 500 (D.C. Cir.),

cert. denied, 137 S. Ct. 399 (2016) ..................................... 48

Szostak v. Railroad Ret. Bd., 370 F.2d 253

(2d Cir. 1966) ....................................................................... 48

Taylor v. United States, 136 S. Ct. 2074 (2016) .................. 18

Thryv, Inc. v. Click-to-Call Techs., LP,

140 S. Ct. 1367 (2020) ......................................................... 47

United States v. Bass, 404 U.S. 336 (1971) ......................... 26

United States v. Standard Brewery, Inc.,

251 U.S. 210 (1920).............................................................. 26

United States v. United Verde Copper Co.,

196 U.S. 207 (1905).............................................................. 26

United States Army Corps of Eng’rs v. Hawkes Co.,

136 S. Ct. 1807 (2016) ................................................... 33, 38

Cases—Continued:

Page

Webster v. Doe, 486 U.S. 592 (1988) ..................................... 46

Your Home Visiting Nurse Servs., Inc. v. Shalala,

525 U.S. 449 (1999)..................................................... passim

Statutes and regulations:

Act of July 31, 1946, ch. 709, Divs. II, III,

§§ 215, 311, 60 Stat. 735, 738 .............................................. 34

§ 215, 60 Stat. 735 ............................................................ 47

Administrative Procedure Act, 5 U.S.C. 701 et seq............ 33

5 U.S.C. 704 ...................................................................... 33

Clean Water Act, 33 U.S.C. 1251 et seq. .............................. 38

Railroad Retirement Act of 1937:

45 U.S.C. 228k (1940) ................................................ 47, 48

Railroad Retirement Act of 1974, 45 U.S.C. 231

et seq. ...................................................................................... 2

45 U.S.C. 231a .................................................................... 3

45 U.S.C. 231a(a) ............................................................... 4

45 U.S.C. 231a(a)(1) ........................................................... 3

45 U.S.C. 231a(a)(1)(i) ....................................................... 3

45 U.S.C. 231a(a)(1)(v) ...................................................... 3

45 U.S.C. 231f(a) .......................................................... 2, 1a

45 U.S.C. 231f(b)(3) ....................................................... 3, 4

45 U.S.C. 231f(b)(5) ..................................................... 3, 3a

45 U.S.C. 231g..................................................passim, 17a

45 U.S.C. 231h.................................................................. 45

Railroad Unemployment Insurance Act, 45 U.S.C.

351 et seq. ............................................................................... 3

45 U.S.C. 351(n) ................................................................. 5

45 U.S.C. 352 (2020) .......................................................... 3

45 U.S.C. 352(c)(1)(A) ....................................................... 3

45 U.S.C. 355 ............................... 13, 17, 20, 23, 29, 34, 18a

VII

Statutes and regulations—Continued:

Page

45 U.S.C. 355(b)-(c) ........................................................... 6

45 U.S.C. 355(c) ...............................................passim, 19a

45 U.S.C. 355(c)(1) ....................................5, 21, 44, 45, 19a

45 U.S.C. 355(c)(1)-(4) ......................................... 21, 30, 44

45 U.S.C. 355(c)(2) ......................................... 5, 44, 45, 19a

45 U.S.C. 355(c)(2)-(4) ..................................................... 21

45 U.S.C. 355(c)(3) ............................................... 5, 45, 20a

45 U.S.C. 355(c)(4) ......................................... 5, 33, 45, 20a

45 U.S.C. 355(c)(5) ........................................21, 30, 45, 21a

45 U.S.C. 355(d) ................................................... 6, 21, 22a

45 U.S.C. 355(f ) ...............................................passim, 23a

45 U.S.C. 355(g) ...............................................passim, 25a

45 U.S.C. 358 ...................................................................... 5

Railway Labor Act, 45 U.S.C. 151 et seq. ............................ 17

Social Security Act, 42 U.S.C. 301 et seq. ............................ 31

42 U.S.C. 405(g) (1976) ............................................. 12, 20

42 U.S.C. 1395oo(a)(1)(A)(i)............................................ 31

18 U.S.C. 2252(b)(2) ............................................................... 25

18 U.S.C. 2259(b)(3)(F) (2012) ........................................ 25, 26

31 U.S.C. 3526 ........................................................................ 23

31 U.S.C. 3530 ........................................................................ 23

20 C.F.R.:

Pt. 216 ............................................................................. 3, 4

Pt. 260:

Section 260.1(a) ............................................................ 4

Section 260.1(a)(4) ..................................................... 44

Section 260.3(a)-(c) ...................................................... 4

Section 260.3(d) ............................................................ 4

Section 260.5(a)-(c) ...................................................... 4

Section 260.9(a) ............................................................ 4

Section 260.9(b)-(c) ...................................................... 4

VIII

Regulations—Continued:

Page

Pt. 261 ............................................................................... 35

Section 261.1(a) ............................................................ 4

Section 261.1(b) ............................................................ 4

Section 261.2......................................................... 10, 11

Section 261.2(a) ............................................................ 4

Section 261.2(b) ...................................................... 5, 10

Section 261.2(c) .......................................................... 10

Section 261.2(c)(1) ........................................................ 5

Section 261.2(c)(7) .................................................. 5, 40

Section 261.11......................................................... 5, 30

Pt. 320 ................................................................................. 6

Section 320.6(a) .......................................................... 44

Section 320.38............................................................. 21

Pt. 325:

Section 325.4(b) ............................................................ 3

Pt. 349 ........................................................................... 6, 35

Section 349.1(a) ............................................................ 6

Section 349.2................................................................. 6

Section 349.8................................................................. 6

Miscellaneous:

Railroad Retirement: Hearings on H.R. 1362

Before the House Comm. on Interstate and

Foreign Commerce, 79th Cong., 1st Sess. Pt. 1

(1945) .................................................................................... 34

Jeremy L. Ross, A Rule of Last Resort: A History of

the Doctrine of the Last Antecedent in the United

States Supreme Court, 39 Sw. L. Rev. 325 (2009) ........... 24

U.S. R.R. Ret. Bd. Gen. Counsel, Legal Op.:

No. 39-527 (Aug. 16, 1939) .............................................. 35

No. 42-673 (Dec. 15, 1942) .............................................. 47

In the Supreme Court of the United States

No. 19-199

MANFREDO M. SALINAS, PETITIONER

UNITED STATES RAILROAD RETIREMENT BOARD

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a)

is not published in the Federal Reporter but is reprinted at 765 Fed. Appx. 79. The decisions of the

United States Railroad Retirement Board (Board) (Pet.

App. 5a-8a) and the Board’s Bureau of Hearings and

Appeals (Pet. 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 within which to file a petition for a writ of certiorari to and including August 15, 2019, and the petition

was filed on that date. The petition for a writ of certiorari was granted on January 10, 2020. The jurisdiction

of this Court rests on 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the

appendix to this brief. App., infra, 1a-26a.

STATEMENT

This case involves the availability of judicial review

for decisions of the United States Railroad Retirement

Board (Board) denying reopening of prior benefits determinations. Petitioner applied for disability benefits

in 2006, and the agency denied his claim in an initial determination. Pet. App. 12a. Petitioner filed an untimely

motion for reconsideration, which the agency also denied, concluding that petitioner had failed to establish

good cause for his late filing. Ibid. Nearly a decade

later, petitioner moved to reopen the prior benefits denial, see Administrative Record (A.R.) 332, but the

Board determined that the case did not warrant reopening under its regulations. Pet. App. 8a. Petitioner subsequently filed a petition for review, and the Fifth Circuit dismissed for lack of jurisdiction on the ground that

the relevant statutes limit judicial review to a discrete

class of Board determinations, which does not include

denials of reopening. Id. at 1a-4a.

A. Legal Framework

1. The Board is an “independent agency in the executive branch” composed of three presidentially appointed members. 45 U.S.C. 231f(a). The Board administers two statutes providing separate, but related, systems of benefits for railroad employees.

The first statute—the one directly at issue here—is

the Railroad Retirement Act of 1974 (RRA), 45 U.S.C.

231 et seq., which establishes a system of disability and

retirement benefits. The RRA covers various categories of former railroad employees, including those “who

have attained retirement age,” 45 U.S.C. 231a(a)(1)(i),

and those “whose permanent physical or mental condition is such that they are unable to engage in any regular employment.” 45 U.S.C. 231a(a)(1)(v). To obtain

benefits, an applicant must submit evidence demonstrating his eligibility.

See generally 45 U.S.C.

231a(a)(1); 20 C.F.R. Pt. 216. Benefits under the RRA

typically take the form of long-term annuities. See

45 U.S.C. 231a.

The second statute is the Railroad Unemployment

Insurance Act (RUIA), 45 U.S.C. 351 et seq. The RUIA

offers per-day benefits for work missed as a result of

unemployment or sickness. See generally 45 U.S.C. 352

(2020). Unlike annuities in the RRA context, benefits

under the RUIA are short-term, and claimants must reapply every two weeks as long as their unemployment

persists. See 20 C.F.R. 325.4(b); see also 45 U.S.C.

352(c)(1)(A) (capping maximum benefit days in a single

year at 130).

2. The RUIA and the RRA and their respective implementing regulations set forth largely parallel processes for claim application and exhaustion.

a. The RRA authorizes the Board to delegate the

power to make initial benefits determinations to subordinate officials, but guarantees a “right to appeal to the

Board” for “any person aggrieved by a decision on his

application for an annuity or other benefit.” 45 U.S.C.

231f(b)(3). The statute otherwise leaves it to the Board

to flesh out the procedures for administrative review,

conferring the power to “establish and promulgate rules

and regulations to provide for the adjustment of all controversial matters arising in the administration of [the

RRA].” 45 U.S.C. 231f(b)(5).

Pursuant to this grant of authority, the Board has

adopted regulations specifying a multistep review process. First, an individual seeking benefits must file a

claim with the Board demonstrating his eligibility, see

45 U.S.C. 231a(a); 20 C.F.R. Pt. 216, and a claims examiner then issues an “initial decision” on the claim. 20

C.F.R. 260.1(a). A claimant who receives an adverse initial determination may request reconsideration from

the Reconsideration Section within 60 days, unless the

claimant shows that there is “good cause” to excuse the

delay. 20 C.F.R. 260.3(a)-(c). The regulations provide

a nonexclusive list of circumstances that establish good

cause, such as a serious illness affecting the claimant or

the claimant’s immediate family member. 20 C.F.R.

260.3(d). If the Reconsideration Section rejects the request, the claimant may seek further review in the Bureau of Hearings and Appeals (Bureau) within 60 days,

again unless the claimant shows “good cause.”

20 C.F.R. 260.5(a)-(c). Lastly, if the Bureau rules

against the claimant, he may then pursue a “final appeal” to the Board. 20 C.F.R. 260.9(a); see 45 U.S.C.

231f(b)(3). Absent good cause, the claimant must file

the appeal within 60 days. 20 C.F.R. 260.9(b)-(c).

Although the RRA does not include a provision for

reopening of final agency decisions, the Board has provided for reopening by regulation. See 20 C.F.R.

261.1(b). A final decision may “be reopened and revised” by the agency entity that issued the original decision or by “a higher level” of the agency. 20 C.F.R.

261.1(a). A final decision may be reopened within 12

months “for any reason.” 20 C.F.R. 261.2(a). Reopening is permissible within four years “if there is new and

material evidence or there was adjudicative error not

consistent with the evidence of record at the time of adjudication.” 20 C.F.R. 261.2(b). And finally, a decision

may be reopened at any time for certain specified reasons, such as if the decision was “obtained by fraud” or

“to correct clerical error.” 20 C.F.R. 261.2(c)(1) and (7).

Ultimately, despite these general rules, the threemember Board retains plenary discretion over reopening. 20 C.F.R. 261.11 (“[T]he Board may direct that any

decision, which is otherwise subject to reopening under

this part, shall not be reopened or direct that any decision, which is otherwise not subject to reopening under

this part, shall be reopened.”).

b. A separate set of statutory and regulatory provisions governs administrative review under the RUIA.

Like the RRA, the RUIA permits the Board to delegate

decision-making power to subordinate officials, but

guarantees administrative review of initial benefits decisions and other key substantive determinations,

45 U.S.C. 355(c). Specifically, Section 355(c) requires

the Board to provide internal review for four basic categories of decisions: a denial of benefits on the ground

that the claimant is not a “qualified employee” or a

grant of benefits at less than the proper rate, 45 U.S.C.

355(c)(2); a denial of benefits on any other ground,

45 U.S.C. 355(c)(1); a determination of whether a company qualifies as a covered employer, 45 U.S.C.

355(c)(4); and a grant of benefits when the base-year

employer objects for any reason other than that it is not

a covered employer, 45 U.S.C. 355(c)(3). 1 Section 355(c)

also provides for notice to, and participation by, various

A base-year employer is the company that employed the claimant in the year preceding the benefits claim. See 45 U.S.C. 351(n).

Base-year employers are interested parties because a grant of benefits may affect their contribution rate. See 45 U.S.C. 358.

interested parties other than the claimant himself, such

as the claimant’s base-year employer. 45 U.S.C. 355(b)(c). And it states that “[a]ny properly interested party

notified * * * of his right to participate in the proceedings 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 ).”

45 U.S.C. 355(c); see pp. 6-7, infra (discussing Section

355(f )).

The RUIA also authorizes the Board to promulgate

regulations further delineating the administrative review process. See 45 U.S.C. 355(d) (“The Board shall

prescribe regulations governing the filing of cases with

and the decision of cases by reviewing bodies, and the

review of such decisions.”). Pursuant to this grant of

authority, the Board has adopted a review scheme that

largely parallels the RRA framework and provides multiple internal levels of review, including reconsideration, intermediate appeal, and final appeal. See generally 20 C.F.R. Pt. 320. In addition, although the RUIA

does not mention reopening, the Board has also provided for reopening of final RUIA determinations. See

generally 20 C.F.R. Pt. 349. As under the RRA, the

Board’s RUIA regulations specify various circumstances permitting reopening, 20 C.F.R. 349.2, but the

decision remains “solely within the discretion of the

Board,” 20 C.F.R. 349.1(a); see also 20 C.F.R. 349.8 (retaining discretion of three-member Board to direct reopening of any decision).

3. Both the RUIA and the RRA provide for judicial

review following exhaustion of administrative remedies.

The RUIA establishes the basic framework. Section

355(f ) identifies four different categories of parties eligible to seek judicial review: “[a]ny claimant,” “any

railway labor organization” satisfying certain criteria,

“any base-year employer of the claimant,” and “any

other party aggrieved by a final decision under subsection (c) of this section.” 45 U.S.C. 355(f ). Any such

party may, after exhausting administrative remedies,

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

filing a petition for review” in the Court of Appeals for

the D.C. Circuit, the Seventh Circuit, or the circuit in

which the petitioner resides or maintains his or her

principal place of business “within ninety days after the

mailing of notice of such decision to the claimant or

other party.” Ibid. On review, “[t]he findings of the

Board as to the facts, if supported by evidence and in

the absence of fraud, shall be conclusive.” Ibid.

Section 355(g), in turn, governs the “[f ]inality of

Board decisions” under the RUIA and makes clear that

Section 355(f ) is the exclusive path to judicial review.

45 U.S.C. 355(g) (emphasis omitted). It provides that

the Board’s “determination of any claim for benefits or

refund, the determination of any other matter pursuant

to subsection (c) of this section, and the determination

of the Board that the unexpended funds in the account

are available for the payment of any claim for benefits

or refund” are “binding and conclusive for all purposes

and upon all persons,” “except as provided in subsection

(f ).” Ibid.; see p. 22 n.4, infra (discussing “unexpended

funds” clause). And to reinforce the point, it states that

such determinations “shall not be subject to review in

any manner other than that set forth in subsection (f ).”

45 U.S.C. 355(g).

The RRA incorporates the RUIA framework for judicial review, with minor exceptions. Section 231g provides that Board decisions “determining the rights or

liabilities of any person under [the RRA] 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” RUIA. 45 U.S.C. 231g. The RRA modifies the

RUIA statute of limitations for a particular subset of

decisions, stating that the limitations period for “review

of a decision with respect to an annuity, supplemental

annuity, or lump-sum benefit * * * shall be one year”

after notice of the decision is provided to the claimant.

Ibid.

B. Procedural History

1. Petitioner is a former railroad employee who has

filed four applications for disability benefits. Pet. App.

9a-12a. Petitioner filed his first application on March 3,

1992. Id. at 11a-12a. The agency issued an initial determination denying the application after petitioner’s

spouse informed the Board that petitioner had returned

to work, finding that he was not disabled for all regular

work. Id. at 12a. Petitioner did not seek administrative

review of that decision. Ibid.

On April 20, 1994, petitioner filed a second application. The agency again issued an initial determination

denying the claim because petitioner had failed to show

that he was disabled such that he could not maintain any

regular employment. Pet. App. 12a. Again, petitioner

did not seek administrative review of that decision.

Ibid.

On February 28, 2006, petitioner filed a third application. Pet. App. 12a. On August 28, 2006, a claims examiner denied petitioner’s request for a “total and permanent” disability annuity, again on the ground that pe-

titioner had failed to show that he was unable to maintain any regular employment. A.R. 205. Based on medical records, the examiner concluded that petitioner had

a “normal range of motion, muscle strength and sensation in [his] shoulders, arms, left hand, legs, knees and

feet,” though he had “some decreased grip strength in

[his] right hand.” Ibid. The examiner further observed

that “[a] psychiatric examination revealed some depression, however, [petitioner] performed well on mental

status and concentration testing.” Ibid. The examiner

also denied an occupational disability annuity on the

ground that petitioner had not attained the age of 60 or

240 months of service. Ibid.

With the assistance of counsel, petitioner submitted

an untimely request for reconsideration on November

30, 2006, urging the agency to excuse the late filing due

to his limited English proficiency, inability to obtain

medical records, and mental-health issues. A.R. 207.

The Reconsideration Section denied petitioner’s request, explaining that “[l]ate filing is allowed only in situations where good cause for the delay is evident, such

as serious illness which prevented the annuitant from

contacting the Board, a death or serious illness in the

annuitant’s immediate family, the destruction of important and relevant records, or the failure to be notified of a decision.” A.R. 208. The denial notice informed

petitioner that although no further action could be

taken on his application for benefits, he could seek reconsideration of the timeliness determination itself

within 60 days. Ibid. Petitioner did not seek further

review. Pet. App. 12a.

In December 2013, petitioner filed a fourth application for disability benefits. Pet. App. 9a. This time, the

agency granted the application. Id. at 6a. The claims

examiner concluded that petitioner was disabled and

unable to maintain regular employment as of October 9,

2010, and was eligible to begin receiving annuity payments as of December 1, 2012. Id. at 9a. Petitioner unsuccessfully sought reconsideration of the annuity start

date calculated by the claims examiner, and then appealed. Ibid. On appeal, in addition to challenging the

annuity start date, petitioner sought to reopen the

agency’s August 28, 2006 denial of his benefits application, arguing that reopening was warranted because he

“lacked the mental capacity to understand the procedures for requesting review” of that decision due to “a

language barrier, depression, anxiety and agoraphobia.” Id. at 13a. 2

On August 26, 2016, the hearings officer affirmed the

start date calculated by the claims examiner and declined to reopen the agency’s 2006 decision. Pet. App.

9a-17a. Applying the Board’s regulations governing reopening, see 20 C.F.R. 261.2, the hearings officer explained that the 2006 decision could not be reopened

based on new evidence or administrative error because

the decision was more than four years old, see 20 C.F.R.

261.2(b). And the officer further observed that petitioner had not satisfied any of the conditions permitting

reopening without regard to the time elapsed. See 20

C.F.R. 261.2(c). Pet. App. 14a.

Petitioner filed a timely appeal to the Board, which

affirmed both the annuity start date and the denial of

reopening. Pet. App. 5a-8a. As to reopening, the Board

“place[d] particular importance on [petitioner’s] untimely request for reconsideration,” which evidenced

Petitioner initially sought to reopen the 1992 and 1994 determinations as well, but has since abandoned that request. See Pet. 1213.

both that he “received the August 28, 2006 denial letter”

and that his arguments “that he was unable to understand his appeal rights in 2006 due to limited English

proficiency and mental impairments were presented to

the RRB in 2006.” Id. at 8a. The Board noted that the

Reconsideration Section “considered these arguments

at the time and determined that [petitioner] had not

shown good cause for filing an untimely request for reconsideration.” Ibid. The Board further observed that

petitioner did not file any appeal of the reconsideration

decision, though his filing of the reconsideration motion

itself demonstrated his ability to pursue exhaustion and

the reconsideration notice expressly informed him of

his right to seek further review. Ibid. The Board accordingly concluded that the 2006 decision was not subject to reopening under 20 C.F.R. 261.2. Pet. App. 8a.

2. Petitioner sought judicial review of the Board’s

reopening denial in the Fifth Circuit, see 45 U.S.C.

355(f ) (permitting suit in “the circuit in which the claimant * * * resides”), which dismissed for lack of jurisdiction. Pet. App. 1a-4a. Acknowledging a circuit split

on the question of reviewability, the court ruled that it

was bound by its decision in Roberts v. United States

Railroad Retirement Board, 346 F.3d 139 (5th Cir.

2003), in which the court had “sided with the majority

of circuits” in holding that the Board’s refusal to reopen

a benefits claim was not subject to review under Sections 231g and 355(f ). Pet. App. 3a.

The Roberts court explained that the text of Section

355(f ) “provide[s] for review in the courts of appeals of

‘a final decision under subsection (c),’ ” and that Section

355(c) in turn is limited to “Board decisions on the

merits of a claim for benefits after administrative appeals have been exhausted.” 346 F.3d at 140 (quoting

45 U.S.C. 355(f )). Reopening decisions, it noted, do not

fall within that category. Ibid. The court observed that

“[t]here is no provision in the RRA or the RUIA allowing the Board to reopen a prior claim for benefits,” and

“[l]ikewise there is no provision providing for federal

court review of such a decision.” Id. at 140-141.

Roberts found further support for its holding in Califano v. Sanders, 430 U.S. 99 (1977), which held that a

similar provision authorizing judicial review of any “final decision * * * made after a hearing” by the Social

Security Administration, 42 U.S.C. 405(g) (1976), did

not permit review of the agency’s discretionary refusal

to reopen a prior benefits decision. 430 U.S. at 107-108.

The Roberts court explained that, as in Sanders, reopening was available under the RRA and RUIA only as

a matter of agency grace pursuant to regulation, and judicial review of reopening denials would “eviscerate”

the “statutory limit on the time to appeal decisions on

the merits.” 346 F.3d at 141.

SUMMARY OF ARGUMENT

Judicial review under the RRA is based on the judicial review provision of the RUIA, 45 U.S.C. 355(f ),

which permits any “claimant,” certain “railway labor organization[s]” or “employer[s],” “or any other party aggrieved by a final decision under subsection (c) of this

section” to obtain review of a “final decision” of the

Board after exhausting administrative remedies. The

RRA, in 45 U.S.C. 231g, imports this framework by

providing for judicial review of determinations of

“rights or liabilities of any person under [the RRA]” to

the same extent as “determination[s] of corresponding

rights or liabilities under the [RUIA].” Under this

framework, Board decisions denying motions to reopen

prior benefits determinations are not subject to judicial

review.

I. The plain text of Section 355(f ) forecloses judicial

review of reopening decisions. In specifying the parties

who may seek judicial review, the provision includes a

residual clause covering “any other party aggrieved by

a final decision under subsection (c).” 45 U.S.C. 355(f )

(emphasis added). That language is naturally read to

qualify each of the prior list items, with the consequence

that only parties aggrieved by a decision under Section

355(c) may seek review. Because reopening decisions

do not fall within Section 355(c), they are not subject to

judicial review.

The statutory structure confirms this interpretation.

Section 355 contemplates a cohesive review scheme:

Section 355(c) establishes mandatory exhaustion procedures for a certain category of core substantive agency

determinations; Section 355(f ) provides for judicial review of those determinations; and Section 355(g) makes

Section 355(f ) the exclusive path to judicial review for

those determinations. See 45 U.S.C. 355(c), (f ), and (g).

These sub-provisions are thus aligned such that each covers the same basic category of decisions. Petitioner’s

interpretation, in contrast, would lead to haphazard results. In his view, Section 355(c) encompasses one set

of Board determinations, Section 355(f ) encompasses a

different set, and Section 355(g) encompasses yet a

third set. There is no indication Congress intended

such a scheme.

Petitioner contends that the phrase “aggrieved by a

final decision under subsection (c),” 45 U.S.C. 355(f ),

applies only to the final listed party, rather than all

listed parties, and thus does not limit the availability for

other listed parties of judicial review of Board determinations made outside Section 355(c). In support of this

construction, he invokes the last-antecedent rule. But

this Court has repeatedly held that Congress’s use of

the word “other” to set off a residual clause evinces its

intent for the entire list to be governed by the clause.

Section 231g reinforces the conclusion that reopening decisions are not subject to judicial review. In referencing determinations of “rights or liabilities,” Section 231g makes clear that not all final determinations

by the Board are subject to review under the RUIA and

RRA. 45 U.S.C. 231g. Instead, this language is consistent with the proposition that review under Section

355(f ) is limited to determinations under Section 355(c),

each of which speaks directly to a party’s substantive

obligations and entitlements under the statute and thus

determines “rights or liabilities.” Ibid. Section 231g’s

reference to “rights or liabilities” serves to distill and

summarize the kinds of decisions reviewable under Section 355(f ), and make those same kinds of decisions reviewable under Section 231g. A denial of reopening

does not determine “rights or liabilities,” but is instead

a “refusal to make a new determination.” Your Home

Visiting Nurse Servs., Inc. v. Shalala, 525 U.S. 449, 453

(1999).

Other key structural features of the two statutes further support this conclusion. Neither the RUIA nor the

RRA expressly provides for reopening. And when an

agency chooses to offer reopening as an additional opportunity beyond the mandatory exhaustion process—

which itself culminates in judicial review—there is no

good reason to afford the claimant yet another opportunity for court review. Doing so would create disincentives for the agency to offer reopening in the first place.

Indeed, in denying review in both Califano v. Sanders,

430 U.S. 99 (1977), and Your Home, this Court emphasized that “[t]he right of a [claimant] to seek reopening

exists only by grace of the [agency].” Your Home,

525 U.S. at 454; see Sanders, 430 U.S. at 108. In addition, permitting judicial review of reopening denials

would enable claimants—through the simple mechanism of filing a motion for reopening and then seeking

judicial review of the agency’s denial—to circumvent

the limitations period and the exhaustion requirement

imposed by Congress on review of primary benefits determinations.

II. Petitioner’s remaining counterarguments lack

merit. Petitioner invokes the presumption in favor of

judicial review, but in Sanders, Your Home, and similar

decisions addressing reopening, this Court has declined

to apply or (in some cases) even to mention the presumption. That makes sense, as a claimant seeking reopening will, by definition, have already had access to

judicial review upon exhausting the primary claim.

Even if the presumption did apply, however, it would be

overcome here, where the statutory text and structure

amply evidence Congress’s intent to foreclose judicial

review.

Petitioner also argues that the government’s interpretation would foreclose review for a broad range of

Board decisions, thus upsetting past practice. But a

critical basis for nonreviewability of reopening denials

is that the party had a prior opportunity for judicial review of the primary decision, and that analysis would

not render unreviewable many (if any) of petitioner’s

examples. And foreclosing review of garden-variety reopening motions like the one here would not raise any

distinct issue of a rare case in which a denial of reopening might be challenged on constitutional grounds.

Lastly, petitioner argues the Board has taken an inconsistent position on the question presented, citing a

Board opinion from 1942 purportedly suggesting that

reopening denials were judicially reviewable. That

opinion, however, concerned a materially broader review provision that is no longer in effect. The Board has

argued for decades that reopening denials are not subject to judicial review, and this Court should affirm that

longstanding interpretation of the RRA and RUIA.

ARGUMENT

The RRA and RUIA establish highly reticulated

benefits schemes and set forth frameworks governing

the filing of an application for benefits, exhaustion of

administrative procedures, and judicial review of the

agency’s final determination. Each statute includes express provisions ensuring thorough agency and judicial

review of the key substantive determinations made as

part of the primary application process. In recognition

of the possibility of agency error and out of solicitude

for the population it serves, however, the Board has

chosen—as a matter of agency discretion—to offer a reopening mechanism above and beyond the review process for primary benefits determinations. This Court

should reject petitioner’s attempt to leverage the

agency’s act of generosity into a second bite at the apple

in court.

I. REOPENING DECISIONS ARE NOT SUBJECT TO JUDICIAL REVIEW

The plain text of the RUIA and RRA establishes that

Board reopening decisions are not subject to judicial review, and multiple structural features of the two statutes confirm this interpretation.

A. Section 355(f ) Is Limited To Final Decisions Under Section 355(c)

By its terms, Section 355(f ) limits review to Board

determinations made under Section 355(c). This interpretation also harmonizes Section 355’s various subsections, rendering the same set of Board decisions subject

to exhaustion in Section 355(c), judicial review in Section 355(f ), and review exclusivity in Section 355(g). See

45 U.S.C. 355(c), (f ), and (g). Petitioner does not contest

that reopening decisions fall outside Section 355(c), and

they are accordingly not subject to judicial review.

1. The text of Section 355(f) limits judicial review to

final decisions under Section 355(c)

The plain text of Section 355(f ) of the RUIA authorizes judicial review only for Board determinations made

under Section 355(c). 45 U.S.C. 355(c) and (f ). Section

355(f ) provides, in relevant part:

Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway Labor Act [45 U.S.C. 151 et seq.], of which claimant is a member, or any base-year 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 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 within ninety 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, in [certain courts of appeals]. * * * Upon the

filing of such petition the court * * * shall have

power to enter a decree affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for rehearing.

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

This provision identifies four sets of parties that may

seek review: “[a]ny claimant,” a qualifying “railway labor organization,” any “base-year employer of the

claimant,” or “any other party aggrieved by a final decision under subsection (c).” 45 U.S.C. 355(f ). By referring to “any other party aggrieved by a final decision

under subsection (c),” the text makes clear that all of

the preceding listed parties share the same critical

characteristic, namely, they are “aggrieved by a final

decision under” Section 355(c). Ibid. The statute thus

employs a commonplace structure for delineating the

scope of a particular category: it specifically enumerates salient members of that category, and then includes a residual clause to sweep in the remaining members. See, e.g., Taylor v. United States, 136 S. Ct. 2074,

2079 (2016) (addressing a similar statutory structure);

Paroline v. United States, 572 U.S. 434, 446 (2014)

(same).

This interpretation furnishes a coherent reading of

the rest of the provision, which specifies a straightforward process by which a party aggrieved by a determination “under subsection (c)” may exhaust administrative procedures and then obtain judicial review of that

same decision. 45 U.S.C. 355(f ). Section 355(f ) provides that a party aggrieved by an initial determination

under Section 355(c) must first “exhaust[]” all “administrative remedies within the Board.” Ibid. The Board

then issues a “final decision” and mails “notice of such

decision to the claimant or other party”—i.e., the same

“claimant” or “other party” mentioned at the outset of

the provision, who is aggrieved by a decision “under

subsection (c).” Ibid. The party may, in turn, “obtain a

review” of that final decision by “filing a petition for review within ninety days.” Ibid. And the court shall

“have power to enter a decree affirming, modifying, or

reversing the decision.” Ibid. In short, Section 355(f )

consistently refers to the same “decision” and “party”

throughout.

Petitioner’s reading, in contrast, breaks the link between the provision’s various uses of the term “decision” and deletes any aggrievement requirement whatsoever for the first three listed parties. Although petitioner protests (Br. 33) that under his reading, “no mismatch exists between who can sue and what types of decisions they can challenge,” that is sheer ipse dixit. Under the logic of his position, “claimant[s],” “railway labor organization[s],” and “base-year employer[s]” may

sue to challenge any final decision, whether it aggrieves

them or not. 45 U.S.C. 355(f ). And “any other party

aggrieved by a final decision under subsection (c),”

ibid., may also presumably sue to challenge any final

decision, whether under Section 355(c) or otherwise.

Petitioner offers no plausible explanation for why Congress might have intended such a regime. And as explained below, see pp. 23-24, infra, petitioner’s interpretation also causes dislocations in the statutory

framework beyond Section 355(f ).

This Court addressed a review provision with a

structure parallel to Section 355(f ) in Califano v. Sanders, 430 U.S. 99 (1977). There, the applicant sought judicial review of the Social Security Administration’s refusal to reopen its prior decision denying a claim for

benefits. Id. at 102-104. The relevant statutory provision “authorize[d] federal judicial review of ‘any

final decision of the Secretary made after a hearing to

which [the claimant] was a party.’ ” Id. at 102 (quoting

42 U.S.C. 405(g) (1976)) (brackets in original). The

Court found that “[t]his provision clearly limits judicial

review to a particular type of agency action, a ‘final decision of the Secretary made after a hearing.’ ” Id. at

108. The Court ruled that the statute did not authorize

judicial review of reopening decisions because, among

other reasons, see pp. 35, 39-40, infra, petitions for reopening could “be denied without a hearing” and thus

fell outside the category of claims the statute subjected

to review. Sanders, 430 U.S. at 108. The structure of

the relevant statutory provisions here is the same: Section 355(f ) authorizes review only as to those determinations under Section 355(c), which do not include

reopening decisions. See BNSF Ry. Co. v. Loos, 139 S.

Ct. 893, 898 (2019) (observing that “Congress created

both the railroad retirement system and the Social Security system” during the same period, and the programs’ “statutory foundations mirror each other”).

2. The structure of Section 355 confirms that review is

limited to Section 355(c) determinations

Limiting judicial review to those determinations provided for in Section 355(c) respects the interlocking

structure of Section 355’s various subsections by rendering the same set of Board decisions subject to exhaustion in Section 355(c), judicial review in Section

355(f ), and review exclusivity in Section 355(g). Read in

this fashion, the three provisions work in tandem to ensure that the most important Board determinations receive thorough agency and judicial review, without requiring the same burdensome processes for any and all

Board decisions.

Section 355(c) establishes an exhaustion procedure

that requires the Board to afford internal review for key

substantive determinations regarding a party’s entitlements or obligations under the RUIA, such as benefits

denials. 45 U.S.C. 355(c)(1)-(4). Section 355(c) then

provides that notice of any final decision made by the

Board “shall be communicated to the claimant and to

the other interested parties within fifteen days after it

is made,” 3 and that “[a]ny properly interested party notified, as hereinabove provided, of his right to participate in the proceedings 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.” 45 U.S.C. 355(c)(5).

Section 355(c) thus feeds directly into Section 355(f ),

which permits a party “aggrieved by a final decision under subsection (c) of this section” to obtain review of

that decision. 45 U.S.C. 355(f ). Section 355(f) requires,

Section 355(c)(5) provides for notice of decisions under the “preceding three paragraphs,” i.e., Section 355(c)(2)-(4). 45 U.S.C.

355(c). Decisions under those provisions are made by the Board,

whereas decisions under the remaining subsection—Section

355(c)(1)—may be made by an intermediate reviewing body. Section 355(c)(1) determinations are subject to appeal to the Board and

become final upon completion of the appeal or expiration of the time

limits for taking the appeal. See 20 C.F.R. 320.38; 45 U.S.C. 355(d).

Once exhausted, those decisions may be reviewed in court under

Section 355(f ) along with all other Section 355(c) determinations.

however, that prior to judicial review, “all administrative remedies within the Board”—namely, those contained in Section 355(c) and its implementing regulations—

must “have been availed of and exhausted.” Ibid. An

aggrieved party must file a “petition for review within

ninety days after the mailing of notice of such decision

to the claimant or other party”—again, the same notice

required by Section 355(c). Ibid.

Finally, Section 355(g) provides that “[f ]indings of

fact and conclusions of law of the Board in the determination of any claim for benefits or refund, [or] the determination of any other matter pursuant to subsection

any manner other than that set forth in subsection (f )

of this section.” 45 U.S.C. 355(g). As with Section

355(f ), see p. 18, supra, Section 355(g)’s residual reference to “any other matter pursuant to subsection (c),”

45 U.S.C. 355(g) (emphasis added), demonstrates that

Congress intended the qualifying phrase “pursuant to

subsection (c)” to apply to both preceding list items.

The provision is thus limited to decisions under Section

355(c), and its reference to “[f ]indings of fact and conclusions of law”—but not discretionary determinations—

reinforces that it does not encompass reopening denials.

Ibid. Section 355(g) accordingly confirms that Section

355(c) determinations are reviewable under Section

355(f ), and further establishes that Section 355(f ) provides the exclusive avenue for review of those determinations. 4

As petitioner notes (Br. 35), Section 355(g) also refers to “determination[s] of the Board that the unexpended funds in the account

are available for the payment of any claim for benefits or refund

under this chapter.” 45 U.S.C. 355(g). But the purpose of this reference is simply to insulate such determinations from review by the

In short, the government’s interpretation accords

the various sub-provisions of Section 355 a logical interrelationship. Taken as a whole, Section 355 contemplates exhaustion of an adverse decision under Section

355(c), followed by exclusive judicial review of that same

decision under Section 355(f ) and (g). Petitioner’s interpretation, in contrast, is haphazard. In his view, Section 355(c) encompasses one set of Board determinations, Section 355(f ) encompasses a different set, and

Section 355(g) encompasses yet a third set. See, e.g.,

Pet. Br. 35 (arguing that Section 355(g) “covers many

decisions that section 355(c) does not”); id. at 36 (arguing that the category of Board decisions reviewable under Section 355(f ) includes “many final decisions that do

not fall within either section 355(c) or section 355(g)”).

There is no logic to that purported scheme, and petitioner does not explain why Congress would have

adopted such a mismatched framework for exhaustion,

judicial review, and review exclusivity.

Petitioner’s interpretation would also produce bizarre results. Because in his view the category of reviewable decisions is broader than the category of decisions covered by Section 355(g)’s exclusivity mandate,

it would seem that there exists some undefined category

of decisions that is reviewable outside the Section 355(f )

framework. But even petitioner is unwilling to endorse

that result, conceding (Br. 38) that Section 355(f ) “appears to be the only means of mounting challenges to

“Comptroller General,” ibid., who would otherwise have authority

to review this kind of decision, see, e.g., 31 U.S.C. 3526, 3530. These

determinations fall outside Section 355(c) and, as discussed below,

nothing in Section 355(g) independently provides for judicial review.

See pp. 28-29, infra. Thus, as to the category of judicially reviewable decisions, Section 355(g) is congruent with Section 355(f ).

statutory provisions or regulations,” and noting that

“[c]ourts have held that section 355(g) prescribes judicial review under section 355(f ) as the exclusive channel

for judicial review.” He thus has no coherent explanation for what function Section 355(g) serves in relation

to Section 355(f ). On the government’s view, in contrast, the two provisions match precisely: for all decisions subject to judicial review under the RUIA, Section

355(g) makes Section 355(f ) the exclusive avenue for review.

3. Petitioner’s counterarguments lack merit

Petitioner’s principal response to the above analysis

is to invoke (Br. 31) the “last-antecedent rule,” according to which “ ‘a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that

it immediately follows.’ ” Lockhart v. United States,

136 S. Ct. 958, 962-963 (2016) (ellipsis and citation omitted). He contends (Br. 30-32) that the last-antecedent

rule requires construing the phrase “aggrieved by a final decision under subsection (c)” in Section 355(f ) to

apply only to the fourth listed party—“any other

party”—and not the first three listed parties. See

45 U.S.C. 355(f ). As petitioner concedes (Br. 31) and

this Court has emphasized, however, the rule “can assuredly be overcome by other indicia of meaning.”

Lockhart, 136 S. Ct. at 963 (citation omitted); see Jeremy L. Ross, A Rule of Last Resort: A History of the

Doctrine of the Last Antecedent in the United States

Supreme Court, 39 Sw. L. Rev. 325, 337 (2009) (noting

frequent departures from the rule). Here, the statutory

text and structure plainly overcome whatever weak inference the rule might otherwise provide.

Petitioner’s main source for the last-antecedent rule

is Lockhart, which interpreted the phrase “aggravated

sexual abuse, sexual abuse, or abusive sexual conduct

involving a minor or ward” and held that the modifier

“involving a minor or ward” limited only the third list

item (“abusive sexual conduct”), not the first two (“aggravated sexual abuse, sexual abuse”). 136 S. Ct. at 961

(quoting 18 U.S.C. 2252(b)(2)). Unlike the statute at issue in Lockhart, however, the final list item here is set

off by the word “other.” Specifically, Section 355(f ) authorizes a “claimant,” “railway labor organization,”

“employer,” or “any other party aggrieved by a final decision under subsection (c)” to seek judicial review.

45 U.S.C. 355(f ) (emphasis added). As a matter of plain

English, the word “other” signals that the prior list

items share the same specified characteristic as the final list item. To take an example: a grocery store manager who orders “fruit, vegetables, or any other fresh

produce” would be dissatisfied to receive prunes or kale

chips. In short, all four list items together enumerate

different members of a single category—parties “aggrieved by a final decision under subsection (c)”—and

the final list item functions as a catchall within that category. Ibid.

Consistent with common usage, this Court has repeatedly recognized that the presence of the word

“other” preceding a final list item defeats the lastantecedent rule. For example, in Paroline, the Court

construed a statute “enumerat[ing] six categories of

covered losses” (like medical expenses), including “a final catchall category for ‘any other losses suffered by

the victim as a proximate result of the offense.’ ” 572 U.S.

at 446 (quoting 18 U.S.C. 2259(b)(3)(F) (2012)) (emphasis added). In holding that each of the six enumerated

categories of losses had to be suffered “ ‘as a proximate

result of the offense,’ ” the Court reasoned that the final

“category is most naturally understood as a summary of

the type of losses covered” and that it is a “ ‘familiar

canon of statutory construction that [catchall] clauses

are to be read as bringing within a statute categories

similar in type to those specifically enumerated.’ ” Id.

at 447 (quoting 18 U.S.C. 2259(b)(3)(F) (2012) and Federal Mar. Comm’n v. Seatrain Lines, Inc., 411 U.S. 726,

734 (1973)) (brackets in original). Other cases recognize

the same principle of construction. See, e.g., United

States v. Standard Brewery, Inc., 251 U.S. 210, 218

(1920) (construing a statute that covered “ ‘beer, wine,

or other intoxicating malt or vinous liquors’ ” and finding “it clear that the framers of the statute intentionally

used the phrase ‘other intoxicating’ as relating to and

defining the immediately preceding designation of beer

and wine”); United States v. United Verde Copper Co.,

196 U.S. 207, 213-214 (1905) (rejecting argument “that

the word ‘other’ should be * * * eliminated from the

statute”).

Even apart from the word “other,” this Court has

recognized that “[w]hen several words are followed by

a clause which is applicable as much to the first and

other words as to the last, the natural construction of

the language demands that the clause be read as applicable to all.” Paroline, 572 U.S. at 447 (quoting Porto

Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348

(1920)); see United States v. Bass, 404 U.S. 336, 339-340

(1971) (“Since ‘in commerce or affecting commerce’ undeniably applies to at least one antecedent, and since it

makes sense with all three, the more plausible construction here is that it in fact applies to all three.”). Here,

the phrase “aggrieved by a final decision under subsection (c)” plainly may be sensibly applied to the first

three listed parties, 45 U.S.C. 355(f ), and petitioner

does not contend otherwise. Indeed, applying the modifier across the entire list produces a far more sensible

interpretation of the provision as a whole. See pp. 1819, supra.

Petitioner responds (Br. 32) that, had Congress

wished to apply the modifier across the entire list, it

could have “simply said that ‘any party aggrieved by a

decision under section 355(c)’ can sue.” But Congress

may have wished to specifically identify the parties it

was most concerned should have access to judicial

review—to rebut, for example, any inference that only

certain aggrieved parties (like benefits claimants)

would be able to appeal adverse decisions under Section

355(f ). The Court made precisely this point in Paroline,

where “the victim argue[d] that the first five categories

of losses enumerated in [the statute] would be superfluous if all were governed by a proximate-cause requirement.” 572 U.S. at 447. The Court deemed that argument “unpersuasive,” reasoning that “[t]he first five

categories provide guidance to district courts as to the

specific types of losses Congress thought would often be

the proximate result of [an] offense and could as a general matter be included in an award of restitution.” Id.

at 448. Nor was Paroline an outlier: delineating a category by enumerating salient members of that category

and then adding a residual clause is common in statutory drafting. See p. 18, supra.

Petitioner’s remaining textual arguments also lack

merit. Petitioner emphasizes (Br. 19) that Section

355(f ) permits review of “any” final decision, but that

merely begs the question whether the agency action he

challenges is a “final decision” within the scope of that

provision. See Rimini St., Inc. v. Oracle USA, Inc., 139

S. Ct. 873, 878 (2019) (observing that the term “ ‘full’ ”

denotes “quantity or amount,” and simply “means the

complete measure of the noun it modifies”) (citation

omitted). The government agrees that Section 355(f )

permits review of “any” final decision under Section

355(c). Petitioner also asserts that “[e]lsewhere in section 355(f ), Congress used clear qualifiers to single out

specific subcategories of final decisions for special

treatment,” Pet. Br. 19-20, and notes that when “Congress ‘uses particular language in one section of a statute but omits it in another,’ this Court presumes that

choice was deliberate,” id. at 20 (quoting Department of

Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015));

see also id. at 34-35. This argument also assumes the

conclusion. There is no dispute that Section 355(f ) “single[s] out” “decision[s] under subsection (c),” 45 U.S.C.

355(f ), for “special treatment.” Pet. Br. 20. The only

question is whether that qualifier is limited to the final

list item, or instead qualifies the provision more generally. Petitioner’s canon sheds no light on that question.

Petitioner also proffers a structural argument, contending that the government’s interpretation is “incompatible with section 355(g),” which he asserts “identifies

various categories of decisions that are reviewable under section 355(f )—many of which are not decisions under section 355(c).” Pet. Br. 17 (emphasis omitted). As

explained, see pp. 23-24, supra, it is petitioner’s interpretation, not the government’s, that drives a wedge between Section 355(f ) and (g). Petitioner’s argument

also rests on the mistaken assumption that all decisions

listed in Section 355(g) are automatically subject to judicial review. The provision’s plain text belies that view:

it states only that certain Board determinations “shall

not be subject to review in any manner other than that

set forth in subsection (f ).” 45 U.S.C. 355(g). In other

words, Section 355(g) simply provides that if those determinations are subject to judicial review, Section

355(f ) provides the exclusive mechanism.

B. Section 231g Reinforces That Reopening Decisions Are

Not Judicially Reviewable

Section 231g, which incorporates into the RRA the

judicial review framework of the RUIA, reinforces the

conclusion that reopening decisions are not subject to

judicial review. It authorizes review only of Board determinations of “rights or liabilities,” 45 U.S.C. 231g—

language that describes the same general category of

decisions enumerated in Section 355(c). A reopening

denial does not determine “rights or liabilities,” ibid.,

but is instead a “refusal to make a new determination,”

Your Home Visiting Nurse Servs., Inc. v. Shalala, 525

U.S. 449, 453 (1999).

1. Section 355 is located within the RUIA and does

not directly govern judicial review of RRA determinations. Instead, Section 231g imports the Section 355

framework, mutatis mutandis, into the RRA. 45 U.S.C.

231g. Section 231g states, in relevant part:

Decisions of the Board determining the rights or liabilities of any person under [the RRA] 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.

Ibid.

Notably, Section 231g does not authorize judicial review of all “final decisions” of the Board. Pet. Br. 14.

Instead, it provides for review only of those decisions

that determine “rights or liabilities * * * under [the

RRA].” 45 U.S.C. 231g. And with its reference to “corresponding rights or liabilities under the [RUIA],” it reinforces the conclusion that the RUIA does not provide

for judicial review of all “final decisions,” either. Ibid.

Indeed, this language confirms that review under the

RUIA is limited to determinations under Section 355(c).

Although Section 355(c) covers a diverse array of Board

determinations, all of them determine rights or liabilities under the statute, i.e., all have a direct effect on a

party’s entitlements or obligations under the Act. See

45 U.S.C. 355(c)(1)-(4) (describing various categories of

decisions); see also 45 U.S.C. 355(c)(5) (providing that

determinations under subsection (c) “shall conclusively

establish all rights and obligations”). Section 231g’s

reference to “rights or liabilities” thus serves to distill

and summarize the kinds of decisions reviewable under

Section 355(c), and provides that the same subset of

Board decisions is reviewable under the RRA.

A reopening denial does not determine “rights or liabilities * * * under [the RRA].” 45 U.S.C. 231g. Because reopening is not provided by statute, it could

hardly qualify as a statutory entitlement “under” the

RRA in the first place. Cf. Smith v. Berryhill, 139 S. Ct.

1765, 1775 (2019) (observing that, in contrast to reopening, “the claimant’s access to [a] first bite at the apple is

indeed a matter of legislative right”). Even under the

regulations, a claimant has no “right” to reopening,

which is purely discretionary. See 20 C.F.R. 261.11.

Moreover, the net effect of a reopening denial is to leave

the Board’s original decision intact: it does not alter the

amount of benefits awarded, the date when benefits will

start, or any other substantive aspect of the claimant’s

benefits entitlement. It simply precludes a claimant

from relitigating a prior claim for benefits. In short,

there is no new determination of “rights or liabilities.”

45 U.S.C. 231g.

The Court’s precedents confirm this interpretation.

In Your Home, the Court considered a provision of the

Social Security Act (SSA), 42 U.S.C. 301 et seq., addressing reimbursement of healthcare providers for

services rendered to Medicare beneficiaries. 525 U.S.

at 450-451. The statute provided for an initial determination by a fiscal intermediary. Id. at 451. If the provider was dissatisfied with the intermediary’s determination, it could obtain a hearing before a review board

of “a final determination * * * as to the amount of total

program reimbursement due the provider.” 42 U.S.C.

1395oo(a)(1)(A)(i); see Your Home, 525 U.S. at 451, 453.

The board’s determination was subject to judicial review. Your Home, 525 U.S. at 451. By regulation, a

provider could also ask the intermediary to reopen a reimbursement determination. Ibid. In this Court, the

government argued that the board lacked jurisdiction

over a reopening denial on the ground that such a denial

was not “a final determination * * * as to the amount

of total program reimbursement due the provider,”

42 U.S.C. 1395oo(a)(1)(A)(i), “but rather the refusal to

make a new determination.” Your Home, 525 U.S. at

453. The Court agreed, noting that the government’s

“reading * * * frankly seems to us the more natural,”

and ultimately deferring to that reading under Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842 (1984). Your Home, 525 U.S. at 453.

Petitioner contends (Br. 23) that Your Home did not

involve “judicial review of the final agency action,” as

opposed to one “administrative entity’s appellate jurisdiction over another.” But the plain consequence of the

Court’s holding that the review board lacked jurisdiction over the intermediary’s reopening decision was

that judicial review of the merits of that decision was

also unavailable. See Your Home, 525 U.S. at 452, 456.

And although petitioner observes (Br. 23-24) that the

Court in Your Home ultimately deferred to the government’s interpretation under Chevron, he does not contest the fact that it expressly approved that interpretation as the more natural reading of the text. See Your

Home, 525 U.S. at 453.

The Court took a similar approach in SEC v. Louisiana Public Service Commission, 353 U.S. 368 (1957)

(per curiam), where it considered the reviewability of an

SEC decision denying reopening of a divestment order.

The statute in that case expressly authorized reopening, providing that “[t]he Commission may by order revoke or modify any order previously made under this

subsection,” and further stating that “[a]ny order made

under this subsection shall be subject to judicial review.” Id. at 371 (citation omitted). The Court nevertheless held that judicial review was unavailable. It reasoned that “the orders made judicially reviewable by

the quoted language [were] the directory orders mentioned in, and authorized by, [the relevant subsection],

and orders which may ‘revoke or modify’ any such order

previously made under that subsection,” but did “not include an order merely denying a petition to reopen * * *

proceedings.” Ibid. The same logic applies here, where

a denial of reopening does not determine any “rights or

liabilities” but simply leaves a prior determination intact. 45 U.S.C. 231g.

2. Petitioner’s arguments to the contrary are unpersuasive. He asserts that Section 231g’s reference to de-

cisions determining “rights or liabilities” is merely “another way of saying ‘any final decision.’ ” Pet. Br. 21

(citation omitted). But the only support he cites for this

assertion is United States Army Corps of Engineers v.

Hawkes Co., 136 S. Ct. 1807 (2016), which defines a “final agency action” for purposes of the Administrative

Procedure Act (APA), 5 U.S.C. 701 et seq.; see 5 U.S.C.

704, in relevant part, as “one by which rights or obligations have been determined, or from which legal consequences will flow.” 136 S. Ct. at 1813 (quoting Bennett

v. Spear, 520 U.S. 154, 178 (1997)) (emphasis added).

That definition supports the government’s position. It

is phrased in the disjunctive, and only the first prong

even arguably corresponds to Section 231g’s reference

to “rights or liabilities.” See id. at 1814 (finding existence of final decision based on “legal consequences”

alone). Thus, to the extent the APA definition is relevant at all, it confirms that Section 231g provides for review of a narrower category of decisions than all “final

decisions.”

Petitioner also observes (Br. 21) that Section 231g

singles out decisions respecting “an annuity, supplemental annuity, or lump-sum benefit” by applying a

longer limitations period to them. 45 U.S.C. 231g. He

notes (Br. 21) that these three categories of decisions

necessarily represent a subset of the broader universe

of reviewable decisions under the RRA. But that fact

alone sheds no light on the interpretive question presented here. Even under the government’s interpretation, there remain Board decisions subject to judicial review beyond the three categories of decisions governed

by the extended limitations period in Section 231g. For

example, determinations of employer status are covered by Section 355(c)(4) and therefore reviewable

under Section 355(f ), but do not directly respect an

“annuity, supplemental annuity, or lump-sum benefit.”

45 U.S.C. 231g.

C. Additional Structural Features Of Both Statutes Confirm This Interpretation

Two additional structural features of the RRA and

RUIA further confirm that reopening denials are not

reviewable. Under this Court’s decisions in Sanders

and Your Home, Congress’s choice to afford the agency

the latitude to offer reopening as a matter of discretion—

rather than codifying it in either the RUIA or RRA—

suggests that Congress did not intend to subject such

decisions to judicial review. In addition, permitting judicial review of reopening would enable plaintiffs to circumvent the statutory limitations period and exhaustion requirement imposed by Congress.

1. Reopening is a matter of agency grace

Nothing in the RUIA or the RRA requires the Board

to afford parties the opportunity to seek reopening of

final agency determinations. Congress expressly considered providing for reopening at the same time it was

adopting (in large part) the modern versions of the judicial review provisions in Sections 231g and 355, see

Act of July 31, 1946 (1946 Act), ch. 709, Divs. II, III,

§§ 215, 311, 60 Stat. 735, 738, but it declined to do so,

instead “leav[ing] [reopening] rules to be prescribed by

Railroad Retirement Board regulations,” Railroad Retirement: Hearings on H.R. 1362 Before the House

Comm. on Interstate and Foreign Commerce, 79th

Cong., 1st Sess. Pt. 1, at 23 (1945) (statement of David

B. Robertson, Committee Chairman, Railway Labor

Executives’ Association). The agency has nevertheless

chosen to grant parties a procedural mechanism above

and beyond what the statute requires by authorizing reopening in the agency’s discretion. See 20 C.F.R. Pt.

261 (RRA); 20 C.F.R. Pt. 349 (RUIA). Because parties

lack any statutory entitlement to reopening, the agency

is free to rescind that provision if it determines that doing so would best advance its administration of the two

Acts. 5

In both Sanders and Your Home, this Court invoked

the fact that the respective statutory schemes did not

require an opportunity for reopening to support its conclusion that the statutes similarly did not require judicial review of reopening decisions. The Sanders Court,

in finding the statute at issue there did not afford jurisdiction, observed that “the opportunity to reopen final

decisions and any hearing convened to determine

the propriety of such action are afforded by the Secretary’s regulations and not by the Social Security Act.”

430 U.S. at 108.

Then, in Your Home, the Court cited Sanders to support its conclusion that there was no review of a reopening denial, reasoning that “[t]he right of a provider to

seek reopening exists only by grace of the Secretary.”

525 U.S. at 454. And in rejecting petitioner’s argument

Citing a Board legal opinion from 1939, petitioner contends (Br.

27) that “the Board from its inception believed that Congress implicitly required it to reopen prior determinations to prevent arbitrary and capricious decision-making.” But the cited opinion

acknowledges that, as relevant here, no “provision appears in the

Act for revision of claims once adjudicated,” although “[e]xpress

provisions are common where it is sought to reserve power in the

administrative agency to revise awards.” U.S. R.R. Ret. Bd. Gen.

Counsel, Legal Op. No. 39-527, at 18 (Aug. 16, 1939). The mere fact

that the Board viewed (and continues to view) reopening as consonant with the purposes of the RRA and RUIA, ibid., does not suggest the Board has ever believed reopening to be mandatory.

that the agency’s position ran afoul of the separate statutory requirement that it provide “for the making of

suitable retroactive corrective adjustments” to reimbursement determinations, ibid. (citation omitted), the

Court noted that the statute already guaranteed a right

to review of an initial determination and that the

reopening regulation did no more than “generously

give[ ] [providers] a second chance to get the decision

changed.” Id. at 455. The Court deemed that overall

scheme a “ ‘suitable’ procedure,” “especially in light of

the traditional rule of administrative law that an

agency’s refusal to reopen a closed case is generally

‘committed to agency discretion by law’ and therefore

exempt from judicial review.” Ibid. (quoting ICC v.

Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282

(1987)). 6 Petitioner’s contention (Br. 42) that Sanders’s

logic is “statute-specific” cannot be squared with Your

Home’s reaffirmation of that logic in a different statutory context. See 525 U.S. at 454.

Under Sanders and Your Home, Congress’s omission of a statutory provision for reopening indicates that

it did not intend to afford judicial review for any

reopening decisions the agency decides to make in its

discretion. Here, as in those cases, the RUIA and RRA

ensure the claimant’s right to judicial review of his

“first bite at the apple,” Smith, 139 S. Ct. at 1775, and

Locomotive Engineers reaffirmed the traditional rule that,

when a claimant seeks reopening on the ground that the prior decision contains material error (as opposed to on the basis of new evidence), the agency’s denial of that request is committed to agency

discretion by law and thus nonreviewable. 482 U.S. at 278-280.

Here, even if the Court disagrees that reopening decisions categorically fall outside Section 355(f ), it should at the least make clear

that this traditional rule applies to the RRA and RUIA.

the Board has further decided, in solicitude of affected

parties, to permit a motion to reopen after the mandatory exhaustion process has been completed. But this

opportunity simply serves as a check on an earlier process that includes both agency and judicial review, and

there is no reason to allow a claimant to leverage the

agency’s generosity into a second court proceeding.

Petitioner stresses (Br. 28-29) the importance to

claimants of the Board’s benefits determinations and

the potential for error in processing a large number of

claims. But given that, under the statute, the benefits

scheme could be administered without reopening at all,

there is no reason to conclude that Congress believed

judicial review of reopening decisions was necessary to

avoid error. And the possibility for error is no greater

here than it was in Sanders, under the SSA. Requiring

judicial review in this context could also have the perverse consequence of discouraging the agency from offering reopening in the first place. 7

Petitioner also attacks (Br. 42) a straw man, disputing the existence of any “blanket rule that agency-created

procedures are immune from judicial review just because Congress gave the agency the discretion to establish them.” The government asserts no such blanket

rule. There is a critical difference between the reopen-

The availability of judicial review for immigration reopening decisions is not to the contrary. Review in that context rests on a variety of unique considerations not present here, including that

“[f ]ederal-court review of administrative decisions denying motions

to reopen removal proceedings dates back to at least 1916.” Kucana

v. Holder, 558 U.S. 233, 240 n.5, 242 (2010); see also Dada v.

Mukasey, 554 U.S. 1, 12-15 (2008) (discussing distinctive history of

reopening in immigration cases, including its codification as a “statutory form of relief ”).

ing regulations here, which simply offer claimants a discretionary opportunity outside the mandatory exhaustion process, and regulations that constrict a claimant’s

ability to claim a statutory entitlement. All of petitioner’s examples fall in the second bucket.

Petitioner first points to Smith, but the claimant

there was “not seeking a second look at an already-final

denial; he argue[d] that he was wrongly prevented from

continuing to pursue his primary claim for benefits,”

which “is indeed a matter of statutory entitlement.”

139 S. Ct. at 1778. Petitioner also invokes Hawkes,

which involved the Army Corps of Engineers’ jurisdictional determinations as to whether certain bodies of

water fell within the scope of the Clean Water Act,

33 U.S.C. 1251 et seq. 136 S. Ct. at 1811. A party could

discharge pollutants into covered waters only if it first

obtained a permit. Id. at 1812. The only question in

that case, however, was whether jurisdictional determinations were reviewable on a standalone basis or at the

conclusion of the statutory permitting process. Id. at

1816. The agency conceded that such determinations,

which were a threshold issue in the permitting process,

could be challenged upon completion of that process.

Ibid. The determinations at issue in Hawkes thus bore

no resemblance to reopening decisions, which are a matter of agency grace and take place entirely outside the

process for exhausting a claim for benefits. Finally, petitioner suggests (Br. 43) that the government’s rule

would exempt from review “modifications of benefits,

which exist by virtue of regulations.” But modifications

(unlike reopening denials) directly affect a claimant’s

statutory entitlement to benefits and are reviewable under the government’s interpretation. See p. 44, infra.

2. Judicial review of reopening denials would undermine other statutory constraints

Allowing claimants to seek judicial review of the

Board’s refusals to reopen would also thwart the statutory limitations period and exhaustion requirement for

challenging primary benefits determinations.

a. Section 355(f ) requires a claimant to file a petition

for review of a Board decision under Section 355(c)

“within ninety days after the mailing of notice of such

decision to the claimant or other party.” 45 U.S.C.

355(f ). Section 231g imports this rule to the RRA, with

the exception “that the time within which proceedings

for the review of a decision with respect to an annuity,

supplemental annuity, or lump-sum benefit may be

commenced shall be one year after the decision will

have been entered upon the records of the Board and

communicated to the claimant.” 45 U.S.C. 231g. Permitting claimants to seek reopening, and then obtain judicial review, years after the Board’s disposition of a

benefits claim would undermine these limitations and

subvert congressional intent.

This Court recognized as much in Sanders, where it

held that “an interpretation that would allow a claimant

judicial review simply by filing—and being denied—a

petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [Section] 205 (g), to

impose a 60-day limitation upon judicial review.” 430

U.S. at 108. The Court properly recognized that “Congress’ determination so to limit judicial review to the

original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims,” and that “[the Court’s]

duty, of course, is to respect that choice.” Ibid. Then,

in Your Home, the Court reiterated that any statutory

limitations period “would be frustrated by permitting

requests to reopen to be reviewed indefinitely.” 525 U.S.

at 454.

Petitioner has no real response to this point, asserting (Br. 44) only that, in light of Congress’s decision to

specify a one-year limitations period for a subset of

RRA determinations, “one might infer that Congress

did not mind drawn-out litigation in some cases.” This

suggestion is implausible. Nothing about the statutory

scheme remotely suggests that Congress contemplated

that certain decisions would, as a practical matter, be

subject to no limitations period at all. To the contrary,

Congress’s determination that a precise subcategory of

decisions warranted a distinctive statute of limitations

indicates that it paid careful attention to this particular

issue, and provides all the more reason “to respect

[Congress’s] choice.” Sanders, 430 U.S. at 108.

b. Judicial review of reopening decisions would also

enable claimants to circumvent the statutorily required

exhaustion process. See 45 U.S.C. 355(f ). This case illustrates the problem. Petitioner failed to exhaust administrative remedies for the agency’s denial of both his

2006 benefits application and his untimely reconsideration motion. See p. 9, supra. Nevertheless, he now

seeks to reopen those prior denials on the ground that

“an error * * * appears on the face of the evidence that

was considered when the determination or decision was

made.” Pet. C.A. Br. 8 (quoting 20 C.F.R. 261.2(c)(7)).

The current suit thus effectively seeks judicial review of

a 14-year-old agency determination that petitioner

failed to exhaust, raising arguments that petitioner

could have raised in 2006. The Court should not countenance that result.

II. PETITIONER’S REMAINING COUNTERARGUMENTS

LACK MERIT

Petitioner advances three additional arguments in

support of reviewability: he invokes the presumption

favoring judicial review; argues that the government’s

position would upset longstanding practice; and claims

the Board has taken inconsistent positions on the question presented. These arguments are wrong on their

own terms and could not support ignoring the plain import of the statutory text and structure.

A. The Presumption Of Judicial Review Does Not Dictate

A Contrary Conclusion

Petitioner invokes the “presumption favoring judicial review of administrative action,” which he claims

can be overcome only by “clear and convincing evidence.” Pet. Br. 24-26 (quoting Mach Mining, LLC v.

EEOC, 575 U.S. 480, 486 (2015); Bowen v. Michigan

Acad. of Family Physicians, 476 U.S. 667, 671 (1986)).

That presumption has little force here. No one disputes

that a claimant is fully entitled to judicial review of a

Board decision on the merits of his benefits claim. The

only question is whether he is entitled to a second round

of review following his unsuccessful attempt to reopen

a prior final decision pursuant to Board regulations. As

explained above, see pp. 35-37, supra, the more natural

inference in a large benefits program like that here and

the Social Security program in Sanders is that Congress does not intend to afford judicial review when it

leaves the availability of reopening entirely to agency

discretion.

Indeed, in this Court’s seminal cases assessing—and

rejecting—the reviewability of reopening decisions in

similar contexts, the Court declined even to mention

the general presumption that petitioner invokes, despite arguments from the affected parties and other Justices that it applied. See Sanders, 430 U.S. at 109 (noting

presumption in favor of review of constitutional questions only); Resp. Br. at 8, Sanders, supra (No. 75-1443)

(“[T]he presumption of review should prevail.”) (emphasis omitted); Your Home, 525 U.S. at 453-454 (denying

review without referencing presumption); Pet. Br. at 11,

Your Home, supra (No. 97-1489) (“[T]he Secretary’s interpretation of the statute (which would allow her to cut

off all judicial review of refusals to reopen) is inconsistent with the presumption of judicial review.”); see

also Locomotive Eng’rs, 482 U.S. at 280 (denying review

without referencing presumption); Locomotive Eng’rs,

482 U.S. at 293 (Stevens, J., concurring in the judgment) (Congress should “be presumed to have intended

that the courts should fulfill their traditional role of defining and maintaining the proper bounds of administrative discretion”) (citation omitted). These decisions

cannot be squared with petitioner’s assertion that a

“ ‘strong presumption’ ” applies and resolves “any

doubts” in his favor. Pet. Br. 24 (citation omitted).

Even if the presumption did apply in this context, it

would be overcome here. This Court “has never applied

the clear and convincing evidence standard in the strict

evidentiary sense.” Bowen, 476 U.S. at 672 n.3 (citation

and internal quotation marks omitted); see, e.g., Cuozzo

Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016).

To the contrary, “the Court has found the standard met,

and the presumption favoring judicial review overcome,

whenever the congressional intent to preclude judicial

review is fairly discernible in the statutory scheme.”

Block v. Community Nutrition Inst., 467 U.S. 340, 351

(1984) (citation and internal quotation marks omitted);

see Mach Mining, LLC, 575 U.S. at 486 (explaining that

the presumption “fails when a statute’s language or

structure demonstrates that Congress wanted an agency

to police its own conduct”). Here, the statutory text and

structure, reinforced by cases like Sanders and Your

Home, amply evidence Congress’s intention to limit judicial review under Section 355(f ) to determinations under Section 355(c), and not to afford a right to judicial

review where a claimant “seeks only an additional opportunity to establish that he satisfies the [RRA’s]

eligibility standards for disability benefits.” Sanders,

430 U.S. at 109.

B. The Government’s Interpretation Does Not Broadly

Foreclose Review Of Other Board Determinations

Petitioner claims (Br. 35-36) that the government’s

interpretation would foreclose review of a broad range

of Board decisions. In support, he identifies a handful

of Board decisions that various lower courts have reviewed in the past but that, he contends, fall outside

Section 355(c). The Court need not wade into the question of whether Board determinations far afield from

the reopening denial at issue here are subject to judicial

review. This Court has never addressed the decisions

on which petitioner relies, and caution in reaching beyond the question presented is especially prudent in

this context. The RUIA and RRA benefits schemes are

highly reticulated, and many of the agency decisions petitioner highlights are potentially subject to review in

certain postures but not others. In any event, because

those decisions likely are reviewable to a significant extent under the government’s approach, petitioner’s argument should not give the Court pause. Given the

breadth of Sections 231g and 355(c), the universe of

nonreviewable Board decisions is narrow.

Petitioner’s principal example (Br. 35) consists of

“[d]ecisions terminating or modifying benefits.” He

contends that these decisions fall outside Section 355(c)

because “they are not ‘initial determination[s].’ ” Ibid.

(quoting 45 U.S.C. 355(c)(1) and (2)) (brackets in original). This argument rests on a misunderstanding of the

phrase “initial determination,” which petitioner appears to read as limited to the Board’s original disposition of a claim for benefits. Instead, the phrase refers

to the first determination on a particular issue in the hierarchical agency review process. Context supports

this interpretation: because Section 355(c) is an exhaustion provision authorizing aggrieved parties to appeal

to a higher authority within the agency, see 45 U.S.C.

355(c)(1)-(4), it makes sense to read “initial determination” to mean the decision by the lowest-level agency

adjudicator. The Board’s implementing regulations reflect the same understanding. See, e.g., 20 C.F.R.

320.6(a) (“The term ‘adjudicating office’ means any subordinate office of the Board which is authorized to make

initial determinations.”). “Initial determinations” under Section 355(c) (and corresponding determinations

under the RRA) become judicially reviewable when

they ripen into final agency decisions upon exhaustion.

In short, nothing about this language excludes termination or modification decisions from review. See 20

C.F.R. 260.1(a)(4) (defining “initial decisions” in the

RRA context to include “termination”).

Next, petitioner notes (Br. 36) that “the Board often

decides whether to grant or deny credit to claimants for

service or compensation that was not reflected in their

railroad employer’s records,” and that these determinations have a direct effect on benefits eligibility. He

points out that the RRA generally requires claimants to

“challenge any errors in [compensation] determinations

within four years,” and worries that this period could

expire “long before the employee seeks benefits.” Ibid.

(citing, e.g., 45 U.S.C. 231h). The structure of the statute suggests that even credit determinations made in

advance of a benefits claim should be reviewable, given

the logical priority of credit determinations to benefits

decisions under Section 355(c) and the time limitation

on challenging those determinations. Cf. 45 U.S.C.

355(c)(5) (providing for judicial review of a final decision

“or the determination of any issue therein”).

Finally, petitioner points (Br. 36) to “Board orders

requiring beneficiaries to repay erroneous payments.”

But at least a subset of these decisions are explicitly

covered by Section 355(c). See 45 U.S.C. 355(c)(3) (“The

Board shall take such action as is appropriate to recover

the amount of such benefits.”); 45 U.S.C. 355(c)(4)

(providing for payment “subject to a right of recovery”).

And any recovery of overpayments that directly deprives a claimant of benefits would likely fall under Section 355(c)(1) and (2), which govern the denial of benefits claims. 45 U.S.C. 355(c)(1) and (2). Petitioner’s argument to the contrary again depends on his erroneous

view that Board determinations post-dating the original

resolution of a benefits claim do not qualify as “initial

determination[s].” Ibid.; see Pet. Br. 37 (arguing that

“overpayment recovery involves developments after the

initial grant of benefits”).

On the basis of his incorrect assumption (Pet. Br. 39)

that the government’s interpretation would “seal[ ] off

many of the Board’s critical decisions from executive or

judicial accountability,” petitioner argues (Br. 37-40)

that precluding judicial review of reopening decisions

would raise separation-of-powers concerns. Even setting aside the mistaken premise, petitioner does not actually contend that excluding denials of reopening from

judicial review would violate the Constitution.

Regardless, petitioner fails to muster any real-world

support for his rhetoric that the government’s position

would subject railroad workers “to the mercy of an unchecked bureaucracy” (Br. 38) and transform the Board

into “a law unto itself ” (Br. 40). He fails to cite a single

reopening decision or regulation in the Board’s entire

nearly 85-year history even remotely resembling his

far-fetched hypotheticals (Br. 38) about decisions “limiting reopening to redheaded claimants” or “terminating all annuities granted in leap years.” Nor, contrary

to petitioner’s assertion (Br. 39), does the Board’s unusual composition have any bearing on the suitability or

availability of judicial review of reopening denials in a

large benefits program like this.

Petitioner does not challenge the denial of his

reopening request on constitutional grounds. See

Sanders, 430 U.S. at 109 (“This is not one of those rare

instances where the Secretary’s denial of a petition to

reopen is challenged on constitutional grounds.”). The

Court therefore need not decide whether judicial review

would be available in some manner where a substantial

constitutional challenge was raised, including the applicability of this Court’s decisions stating that a

“heightened showing” is required if “Congress intends

to preclude judicial review of constitutional claims” altogether. Elgin v. Department of Treasury, 567 U.S. 1,

9 (2012) (quoting Webster v. Doe, 486 U.S. 592, 603

(1988)). The Court also need “not decide whether mandamus would be available in an extraordinary case.”

Thryv, Inc. v. Click-to-Call Techs., LP, 140 S. Ct. 1367,

1374 n.6 (2020).

C. The Board Has Not Conceded That Reopening Denials

Are Subject To Judicial Review

Lastly, petitioner asserts the Board has changed positions on the question presented, pointing (Br. 27-28)

to a legal opinion issued in 1942 by the Board’s General

Counsel. The General Counsel there urged the Board

to reopen a prior final decision in light of a subsequent

court decision rejecting the Board’s reasoning in a different case presenting the same issue. U.S. R.R. Ret.

Bd. Gen. Counsel, Legal Op. No. 42-673, at 2-3 (Dec. 15,

1942) (Legal Op.). The General Counsel advised that

“[a]ny action by the Board refusing to reopen” the decision “could not, in [his] opinion, be successfully sustained in court, particularly in view of the very clear

mandate of the Circuit Court.” Id. at 4. Petitioner argues (Br. 27) that this opinion shows “the Board understood as early as 1942 that denials of reopening were

subject to judicial review.”

Petitioner’s reliance on the opinion is misplaced.

Prior to 1946, Section 355(f ) (which is part of the RUIA)

was not applicable to claims under the RRA. See 1946

Act § 215, 60 Stat. 735. At the time of the General Counsel’s opinion, the RRA had its own, separate judicial review provision, which provided that “[a]n employee or

other person aggrieved may” seek judicial review “to

compel” the Board “to set aside an action or decision of

the Board” or “to take action or to make a decision.” 45

U.S.C. 228k (1940). It is against this backdrop that the

General Counsel advised that the Board’s “action * * *

refusing to reopen” the prior decision could not be “sustained in court.” Legal Op. 4. That 78-year-old discussion of a materially different statute is irrelevant to the

question presented here. If anything, it suggests that

reopening decisions are not reviewable under the current framework, given the General Counsel’s characterization of reopening denial as an “action,” which, unlike

a “decision,” is not subject to review under Sections

231g or 355(f ). See 45 U.S.C. 228k (1940) (subjecting

both “action[s]” and “decision[s]” to review).

Petitioner thus points to no indication that the Board

has ever considered reopening denials to be judicially

reviewable under Sections 231g or 355(f ). To the contrary, the Board has argued for decades that its denial

of a reopening motion is not reviewable, and the majority of the courts of appeals that have considered the

question have agreed. See Cunningham v. Railroad

Ret. Bd., 392 F.3d 567, 571-573 & n.5 (3d Cir. 2004);

Harris v. United States R.R. Ret. Bd., 198 F.3d 139, 142

(4th Cir. 1999); Roberts v. United States R.R. Ret. Bd.,

346 F.3d 139, 141 (5th Cir. 2003); Steebe v. United States

R.R. Ret. Bd., 708 F.2d 250, 254-255 (7th Cir.), cert. denied, 464 U.S. 997 (1983); Abbruzzese v. Railroad Ret.

Bd., 63 F.3d 972, 974 (10th Cir. 1995); but see also Stovic

v. Railroad Ret. Bd., 826 F.3d 500, 505-506 (D.C. Cir.)

(Kavanaugh, J.), cert. denied, 137 S. Ct. 399 (2016);

Sones v. United States R.R. Ret. Bd., 933 F.2d 636, 638

(8th Cir. 1991); Szostak v. Railroad Ret. Bd., 370 F.2d

253, 254-255 (2d Cir. 1966). This Court should so hold

as well.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

ANA M. KOCUR

General Counsel

MARGUERITE P. DADABO

Assistant General Counsel

P ETER J. ORLOWICZ

General Attorney

U.S. Railroad Retirement

Board

JUNE 2020

NOEL J. FRANCISCO

Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

JOSEPH H. HUNT

Assistant Attorney General

AUSTIN L. RAYNOR

Assistant to the Solicitor

General

CHARLES W. SCARBOROUGH

SONIA M. CARSON

Attorneys

APPENDIX

45 U.S.C. 231f provides:

Railroad Retirement Board

(a)

Administration

This subchapter shall be administered by the Railroad Retirement Board established by the Railroad Retirement Act of 1937 [45 U.S.C. 228a et seq.] as an independent agency in the executive branch of the Government and composed of three members appointed by the

President, by and with the advice and consent of the

Senate. Each member shall hold office for a term of

five years, except that any member appointed to fill a

vacancy occurring prior to the expiration of the term for

which his predecessor was appointed shall be appointed

for the remainder of the term and any member holding

office pursuant to appointment under the Railroad Retirement Act of 1937 when this subchapter becomes effective shall hold office until the term for which he was

appointed under such Railroad Retirement Act of 1937

expires. One member shall be appointed from recommendations made by representatives of the employees

and one member shall be appointed from recommendations made by representatives of employers as defined

in paragraph (i) of section 231(a)(1) of this title, in both

cases as the President shall direct, so as to provide representation on the Board satisfactory to the largest

number, respectively, of employees and employers concerned. One member, who shall be the chairman of the

Board, shall be appointed without recommendation by

either employers or employees and shall not be in the

employment of or be pecuniarily or otherwise interested

(1a)

in any employer or organization of employees. Vacancies in the Board shall not impair the powers or affect

the duties of the Board or of the remaining members of

the Board, of whom a majority of those in office shall

constitute a quorum for the transaction of business.

Upon the expiration of his term of office a member shall

continue to serve until his successor is appointed and

shall have qualified.

(b)

Powers and duties

(1) The Board shall have and exercise all the duties

and powers necessary to administer this subchapter.

The Board shall take such steps as may be necessary to

enforce such subchapter and make awards and certify

payments. Decisions by the Board upon issues of law

and fact relating to annuities or death benefits shall not

be subject to review by any other administrative or accounting officer, agent, or employee of the United States.

(2) In the case of—

(A) an individual who will have completed ten

years of service (or five or more years of service, all

of which accrues after December 31, 1995) creditable

under this subchapter,

(B) the wife or divorced wife or husband of such

an individual,

survivor is entitled, or could upon application become

entitled, to an annuity under section 231a of this title,

and

(D) any other person entitled to benefits under

title II of the Social Security Act [42 U.S.C. 401 et

seq.] on the basis of the wages and self-employment

income of such an individual (except a survivor of

such an individual where such individual did not have

a current connection with the railroad industry at the

time of his death);

the Board shall provide for the payment on behalf of the

Managing Trustee of the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability

Insurance Trust Fund of monthly benefits payable

under title II of the Social Security Act [42 U.S.C. 401

et seq.] which are certified by the Secretary to it for payment under the provisions of title II of the Social Security Act.

(3) If the Board finds that an applicant is entitled to

an annuity or death benefit under the provisions of this

subchapter then the Board shall make an award fixing

the amount of the annuity or benefit, as the case may be,

and shall certify the payment thereof as hereinafter provided; otherwise the application shall be denied. For

purposes of this section, the Board shall have and exercise such of the powers, duties and remedies provided in

subsections (a), (b), (d), and (n) of section 12 of the Railroad Unemployment Insurance Act [45 U.S.C. 362] as

are not inconsistent with the express provisions of this

subchapter. The Board is authorized to delegate to

any member, officer, or employee of the Board any of

the powers conferred upon the Board by this subchapter, excluding only the power to prescribe rules and regulations, including the power to make decisions on applications for annuities or other benefits: Provided, however, That any person aggrieved by a decision on his application for an annuity or other benefit shall have the

right to appeal to the Board. Notice of a decision of the

Board, or of an employee thereof, shall be communicated to the applicant in writing within thirty days after

such decision shall have been made.

(4)(A) The Secretary of the Treasury shall serve as

the disbursing agent for benefits payable under this

subchapter, under such rules and regulations as the Secretary may in the Secretary’s discretion prescribe.

(B) The Board shall from time to time certify—

(i)

to the Secretary of the Treasury the amounts

required to be transferred from the Social Security

Equivalent Benefit Account and the Dual Benefits

Payments Account to the disbursing agent to make

payments of benefits and the Secretary of the Treasury shall transfer those amounts;

(ii) to the Board of Trustees of the National

Railroad Retirement Investment Trust the amounts

required to be transferred from the National Railroad Retirement Investment Trust to the disbursing

agent to make payments of benefits and the Board of

Trustees shall transfer those amounts; and

(iii) to the disbursing agent the name and address of each individual entitled to receive a payment,

the amount of such payment, and the time at which

the payment should be made.

(5) The Board shall establish and promulgate rules

and regulations to provide for the adjustment of all controversial matters arising in the administration of this

subchapter. All rules, regulations, or decisions of the

Board shall require the approval of at least two members, and they shall be entered upon the records of the

Board, which shall be a public record.

(6) The Board shall gather, keep, compile, and publish in convenient form such records and data as may be

necessary to assure proper administration of this subchapter, including subdivision (2) of this subsection.

The Board shall have power to require all employers and

employees and any officer, board, commission, or other

agency of the United States to furnish such information

and records as shall be necessary for the administration

of this subchapter, including subdivision (2) of this subsection. The several district courts of the United

States shall have jurisdiction upon suit by the Board to

compel obedience to any order of the Board issued pursuant to this section. The orders, writs, and processes

of the United States District Court for the District of

Columbia in such suits may run and be served anywhere

in the United States. Witnesses summoned before the

Board shall be paid the same fees and mileage that are

paid witnesses in the district courts of the United States.

The Board shall make an annual report to the President

of the United States to be submitted to Congress.

(7) Notwithstanding any other provision of law, the

Secretary of Health and Human Services shall furnish

the Board certified reports of wages, self-employment

income, and periods of service and of other records in

his possession, or which he may secure, pertinent to the

administration of this subchapter, the Railroad Unemployment Insurance Act [45 U.S.C. 351 et seq.],, 1 the

Milwaukee Railroad Restructuring Act [45 U.S.C. 901 et

seq.], and the Rock Island Railroad Transition and Employee Assistance Act [45 U.S.C. 1001 et seq.]..1 The

Board shall furnish the Secretary of Health and Human

Services certified reports of records of compensation

So in original.

and periods of service reported to it pursuant to section

231h of this title, of determinations under section 231a

of this title, and of other records in its possession, or

which it may secure, pertinent to subsection (c) of this

section or to the administration of the Social Security

Act [42 U.S.C. 301 et seq.] as affected by section 231q of

this title. Such certified reports shall be conclusive in

adjudication as to the matters covered therein: Provided, however, That if the Board or the Secretary of

Health and Human Services receives evidence inconsistent with a certified report and the application involved is still in course of adjudication or otherwise open

for such evidence such recertification of such report

shall be made as, in the judgment of the Board or the

Secretary of Health and Human Services, whichever

made the original certification, the evidence warrants.

Such recertification and any subsequent recertification

shall be treated in the same manner and be subject to

the same conditions as an original certification.

(8) Any department or agency of the United States

maintaining records of military service, at the request

of the Board, shall certify to the Board, with respect to

any individual, the number of months of military service

which such department or agency finds the individual to

have had during any period or periods with respect to

which the Board’s request is made, the date and manner

of entry into such military service, and the conditions

under which such service was continued. Any department or agency of the United States which is authorized

to make awards of pensions, disability compensation, or

any other gratuitous benefits or allowances payable, on

the periodic basis or otherwise, under any other Act of

Congress on the basis of military service, at the request

of the Board, shall certify to the Board, with respect to

any individual, the calendar months for all or part of

which any such pension, compensation, benefit, or allowance is payable to, or with respect to, the individual, the

amounts of any such pension, compensation, benefit, or

allowance, and the military service on which such pension, compensation, benefit, or allowance is based. Any

certification made pursuant to the provisions of this subdivision shall be conclusive on the Board: Provided,

however, That if evidence inconsistent with any such

certification is submitted, and the claim is in the course

of adjudication or is otherwise open for such evidence,

the Board shall refer such evidence to the department

or agency which made the original certification and such

department or agency shall make such recertification as

in its judgment the evidence warrants. Such recertification, and any subsequent recertification, shall be conclusive, made in the same manner, and subject to the

same conditions as an original certification.

(9) The Board shall maintain such offices, provide

such equipment, furnishings, supplies, services, and facilities, and employ such individuals and provide for their

compensation and expenses as may be necessary for the

proper discharge of its functions. All positions to which

such individuals are appointed, except one administrative assistant to each member of the Board, shall be in

and under the competitive civil service and shall not be

removed or excepted therefrom. In the employment of

such individuals under the civil service laws and rules

the Board shall give preference over all others to individuals who have had experience in railroad service, if,

in the judgment of the Board, they possess the qualifications necessary for the proper discharge of the duties

of the positions to which they are to be appointed. For

purposes of its administration of this subchapter or the

Railroad Unemployment Insurance Act [45 U.S.C. 351

et seq.], or both, the Board may place, without regard to

the numerical limitations contained in section

5108(c)(9) 2 of title 5, four positions in grade GS-16 of the

General Schedule established by that Act, four positions

in grade GS-17 of such schedule, and one position in

grade GS-18 of such schedule.

(c)

Sources of payments; adjustments

(1) Benefit payments determined by the Board to be

payable under this subchapter shall be made by the disbursing agent under subsection (b)(4) from money transferred to it from the National Railroad Retirement Investment Trust or the Social Security Equivalent Benefit Account, as the case may be, except that payments of

annuity amounts made under sections 231b(h), 231c(e),

and 231c(h) of this title and under sections 204(a)(3),

204(a)(4), 206(3), and 207(3) of Public Law 93-445 shall

be made by the disbursing agent under subsection (b)(4)

from money transferred to it from the Dual Benefits

Payments Account. In any fiscal year, the total amounts

paid under such sections shall not exceed the total sums

appropriated to the Dual Benefits Payments Account

for that fiscal year. The Board shall prescribe regulations for allocation of annuity amounts which would

without regard to such regulations be payable under sections 231b(h), 231c(e), and 231c(h) of this title and sections 204(a)(3), 204(a)(4), 206(3), and 207(3) of Public

Law 93-445 so that the sums appropriated to the Dual

Benefits Payments Account for a fiscal year so far as

practicable, are expended in equal monthly installments

throughout such fiscal year, and are distributed so that

See References in Text note below.

recipients are paid annuity amounts which bear the

same ratio to the annuity amounts such recipients would

have received but for such regulations as the ratio of the

total sums appropriated to pay such annuity amounts

bear to the total sums necessary to pay such annuity

amounts without regard to such regulations. Notwithstanding any other provision of law, the entitlement of

an individual to an annuity amount under section 231b(h),

231c(e), or 231c(h) of this title or section 204(a)(3),

204(a)(4), 206(3), or 207(3) of Public Law 93-445 for any

month in which the amount payable to such individual is

allocated under the regulations prescribed by the Board

under this subsection shall not exceed the amount so allocated for that month to such individual.

(2) At the close of the fiscal year ending June 30,

1975, and each fiscal year thereafter, the Board and the

Secretary of Health and Human Services shall determine the amounts, if any, which if added to or subtracted

from the Federal Old-Age and Survivors Insurance

Trust Fund, the Federal Disability Insurance Trust

Fund, and the Federal Hospital Insurance Trust Fund

would place each such Trust Fund in the same position

in which it would have been if (A) service as an employee

after December 31, 1936, had been included in the term

“employment” as defined in the Social Security Act

[42 U.S.C. 301 et seq.] and in the Federal Insurance

Contributions Act [26 U.S.C. 3101 et seq.] and (B) this

subchapter had not been enacted. Such determination

with respect to each such Trust Fund shall be made no

later than June 15 following the close of the fiscal year.

If, pursuant to any such determination, any amount is to

be added to any such Trust Fund, the Board shall, within

ten days after the determination, certify such amount to

10a

the Secretary of the Treasury for transfer from the Railroad Retirement Account to such Trust Fund. If, pursuant to any such determination, any amount is to be

subtracted from any such Trust Fund, the Secretary of

Health and Human Services shall, within ten days after

the determination, certify such amount to the Secretary

of the Treasury for transfer from such Trust Fund to

the Railroad Retirement Account. Any amounts so

certified shall further include interest (at the rate determined in subdivision (3) for the fiscal year under consideration) payable from the close of such fiscal year until

the date of certification. The Secretary of the Treasury is authorized and directed to transfer to the Railroad Retirement Account from the Federal Old-Age and

Survivors Insurance Trust Fund, the Federal Disability

Insurance Trust Fund, or the Federal Hospital Insurance Trust Fund or to any such Trust Fund from the

Railroad Retirement Account, as the case may be, such

amounts as, from time to time, may be determined by

the Board and the Secretary of Health and Human Services pursuant to the provisions of this subdivision and

certified by the Board or the Secretary of Health and

Human Services for transfer from any such Trust Fund

or from the Railroad Retirement Account.

(3) For purposes of subdivision (2), for any fiscal

year, the rate of interest to be used shall be equal to the

average rate of interest, computed as of May 31 preceding the close of such fiscal year, borne by all interestbearing obligations of the United States then forming a

part of the public debt; except that where such average

rate is not a multiple of one-eighth of 1 per centum, the

rate of interest shall be the multiple of one-eighth of 1

per centum next lower than such average rate.

11a

(4) After the end of each month beginning with the

month of October 1983, the Board shall determine the

net amount, if any, which if added to or subtracted from

the Federal Old-Age and Survivors Insurance Trust

Fund, the Federal Disability Insurance Trust Fund, and

the Federal Hospital Insurance Trust Fund would, with

respect to such month, place those Trust Funds, taken

as a whole, in the same position in which they would have

been if (A) service as an employee after December 31,

1936, had been included in the term “employment” as

defined in the Social Security Act [42 U.S.C. 301 et seq.]

and in the Federal Insurance Contributions Act [26

U.S.C. 3101 et seq.], and (B) this subchapter had not

been enacted. If for any month the net amount so determined would be subtracted from those Trust Funds,

the Board shall, within ten days after the end of such

month, report such amount to the Secretary of the

Treasury for transfer from the general fund to the Railroad Retirement Account. Any amount so reported

shall further include interest (at an annual rate equal to

the rate of interest borne by a special obligation issued

to the Railroad Retirement Account in the month in

which the transfer is made to the Account) payable from

the close of the month for which the transfer is made

until the date of transfer. The Secretary of the Treasury is authorized and directed to transfer to the Railroad Retirement Account from the general fund such

amounts as, from time to time, may be determined by

the Board pursuant to the provisions of this subdivision

and reported by the Board for transfer. For such purpose the Secretary of the Treasury is authorized to use

as a public debt transaction the proceeds of the sale of

any securities issued after August 12, 1983, under section 3102 of title 31, and the purpose for which securities

12a

may be issued under section 3102 of title 31 are extended

to include such purpose. Each such transfer shall be

made by the Secretary of the Treasury within five days

after a report of the amount to be transferred is received. Not later than December 31 following the close

of each fiscal year beginning with the fiscal year ending

September 30, 1984, the Board shall certify to the Secretary of the Treasury the total of all amounts transferred pursuant to the provisions of this subdivision for

months in such fiscal year. Within ten days after a

transfer, or transfers, pursuant to subdivision (2) for a

particular fiscal year, the Board shall request the Secretary of the Treasury to retransfer from the Railroad Retirement Account to the general fund an amount equal

to (A) the total of all amounts, exclusive of interest,

transferred to such Account pursuant to the provisions

of this subdivision for months in such fiscal year, plus

(B) interest (at the rate determined in subdivision (3) for

such fiscal year) payable with respect to each amount

transferred for a month during such fiscal year from the

close of the month for which the transfer of the amount

was made until the date of retransfer of such amount.

The Secretary of the Treasury is authorized and directed to retransfer from the Railroad Retirement Account to the general fund such amounts as, from time to

time, may be determined by the Board pursuant to the

provisions of the preceding sentence of this subdivision

and reported by the Board for retransfer.

13a

(d)

Hospital insurance benefits; certified beneficiaries;

disability insurance benefits; services in Canada;

exchange of information

(1) The Board shall, for purposes of this subsection,

have the same authority to determine the rights of individuals described in subdivision (2) to have payments

made on their behalf for hospital insurance benefits consisting of inpatient hospital services, posthospital extended care services, home health services, hospice care,

and outpatient hospital diagnostic services (all hereinafter referred to as “services”) under section 226 [42 U.S.C.

426], and parts A and E of title XVIII [42 U.S.C. 1395c

et seq., 1395x et seq.], of the Social Security Act as the

Secretary of Health and Human Services has under such

section and such parts with respect to individuals to

whom such sections and such parts apply. For purposes of section 231g of this title, a determination with

respect to the rights of an individual under this subsection shall, except in the case of a provider of services, be

considered to be a decision with respect to an annuity.

(2) Except as otherwise provided in this subsection,

every person who—

(i) has attained age 65 and (A) is entitled to an

annuity under this subchapter or (B) would be entitled to such an annuity had he ceased compensated

service and, in the case of a spouse or divorced wife,

had such spouse’s husband or wife ceased compensated service or (C) bears a relationship to an employee which, by reason of section 231b(f )(2) of this

title, has been, or would be, taken into account in calculating the amount of the annuity of such employee;

14a

(ii) has not attained age 65 and (A) has been entitled to an annuity under section 231a of this title, or

under the Railroad Retirement Act of 1937 [45 U.S.C.

228a et seq.] and section 231a of this title, or could

have been includible in the computation of an annuity

under section 231b(f )(2) of this title, for not less than

24 months and (B) could have been entitled for 24 calendar months, and could currently be entitled, to

monthly insurance benefits under section 223 of the

Social Security Act [42 U.S.C. 423] or under section

202 of that Act [42 U.S.C. 402] on the basis of disability if service as an employee after December 31, 1936,

had been included in the term “employment” as defined in that Act and if an application for disability

benefits had been filed,

shall be certified to the Secretary of Health and Human

Services as a qualified railroad retirement beneficiary

under section 226 of the Social Security Act [42 U.S.C.

426].

(3) If an individual entitled to an annuity under paragraph (iv) or (v) of section 231a(a)(1) of this title would

have been insured for disability insurance benefits as

determined under section 223(c)(1) of the Social Security Act [42 U.S.C. 423(c)(1)] at the time such annuity

began, he shall be deemed, solely for purposes of paragraph (ii) of subdivision (2), to be entitled to a disability

insurance benefit under section 223 of the Social Security Act for each month, and beginning with the first

month, in which he would meet the requirements for entitlement to such a benefit, other than the requirement

of being insured for disability insurance benefits, if service as an employee after December 31, 1936, had been

15a

included in the term “employment” as defined in the Social Security Act [42 U.S.C. 301 et seq.] and if an application for disability benefits had been filed.

(4) The rights of individuals described in subdivision (2) of this subsection to have payment made on their

behalf for the services referred to in subdivision (1) but

provided in Canada shall be the same as those of individuals to whom section 226 [42 U.S.C. 426] and part A

of title XVIII [42 U.S.C. 1395c et seq.] of the Social Security Act apply, and this subdivision shall be administered by the Board as if the provisions of section 226 and

part A of title XVIII of the Social Security Act were applicable, as if references to the Secretary of Health

and Human Services were to the Board, as if references

to the Federal Hospital Insurance Trust Fund were

to the Railroad Retirement Account, as if references to

the United States or a State included Canada or a subdivision thereof, and as if the provisions of sections

1862(a)(4), 1863, 1864, 1868, 1869, 1874(b), and 1875

[42 U.S.C. 1395y(a)(4), 1395z, 1395aa, 1395ee, 1395ff,

1395kk(b), 1395ll] were not included in such title. The

payments for services herein provided for in Canada

shall be made from the Railroad Retirement Account (in

accordance with, and subject to, the conditions applicable under subsection (b) of this section, in making payment of other benefits) to the hospital, extended care facility, or home health agency providing such services in

Canada to individuals to whom subdivision (2) of this

subsection applies, but only to the extent that the amount

of payments for services otherwise hereunder provided

for an individual exceeds the amount payable for like

services provided pursuant to the law in effect in the

place in Canada where such services are furnished.

16a

For the purposes of section 231i of this title, any overpayment under this subdivision shall be treated as if it

were an overpayment of an annuity.

(5) The Board and the Secretary of Health and Human Services shall furnish each other with such information, records, and documents as may be considered

necessary to the administration of this subsection or

section 226 [42 U.S.C. 426], and part A of title XVIII

[42 U.S.C. 1395c et seq.], of the Social Security Act.

(e)

Acceptance of gifts and bequests

The Board is authorized to accept on behalf of the

United States money gifts and bequests made unconditionally to the Railroad Retirement Account, to the Railroad Retirement Supplemental Account, or to the Railroad Unemployment Insurance Account, or to the Board,

or any member, officer, or employee thereof, for the benefit of such accounts or any activity financed through

such accounts. Any such gift accepted pursuant to the

authority granted in this subsection shall be deposited

in the specific account designated by the donor or, if the

donor has made no such specific designation, in the Railroad Retirement Account.

(f )

Congressional copies of documents submitted or

transmitted to President or Office of Management

and Budget

Whenever the Board submits or transmits any budget estimate, budget request, supplemental budget estimate, or other budget information, legislative recommendation, prepared testimony for congressional hearings, or comment on legislation to the President or to

the Office of Management and Budget, it shall concur-

17a

rently transmit a copy thereof to the Congress. No officer or agency of the United States shall have any authority to require the Board to submit its budget requests or estimates, legislative recommendations, prepared testimony for congressional hearings, or comments on legislation to any officer or agency of the

United States for approval, comments, or review, prior

to the submission of such recommendations, testimony,

or comments to the Congress.

45 U.S.C. 231g provides:

Court jurisdiction

Decisions of the Board determining the rights or liabilities of any person under this subchapter 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 [45 U.S.C. 351

et seq.] except that the time within which proceedings

for the review of a decision with respect to an annuity,

supplemental annuity, or lump-sum benefit may be commenced shall be one year after the decision will have

been entered upon the records of the Board and communicated to the claimant.

18a

45 U.S.C. 355 provides:

Claims for benefits

(a)

Publication of Board’s regulations

Claims for benefits and appeals from determinations

with respect thereto shall be made in accordance with

such regulations as the Board shall prescribe. Each

employer shall post and maintain, in places readily accessible to employees in his service, such printed statements concerning such regulations as the Board supplies to him for such purpose, and shall keep available to

his employees copies of such printed statements. Such

printed statements shall be supplied by the Board to

each employer without cost to him.

(b)

Findings, hearings, investigations, etc., by Board

The Board is authorized and directed to make findings of fact with respect to any claim for benefits and to

make decisions as to the right of any claimant to benefits. The Board is further authorized to hold such hearings, to conduct such investigations and other proceedings, and to establish, by regulations or otherwise, such

procedures as it may deem necessary or proper for the

determination of a right to benefits. When a claim for

benefits is filed with the Board, the Board shall provide

notice of such claim to the claimant’s base-year employer

or employers and afford such employer or employers an

opportunity to submit information relevant to the claim

before making an initial determination on the claim.

When the Board initially determines to pay benefits to a

claimant under this chapter, the Board shall provide notice of such determination to the claimant’s base-year

employer or employers.

19a

(c)

Hearing and review of decisions on claims

(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 hearing thereon before a referee or such other reviewing body as the Board may establish or assign thereto. In any such case the Board

or the person or reviewing body so established or assigned shall, by publication or otherwise, notify all parties properly interested of their right to participate in

the hearing and of the time and place of the hearing.

(2) Any claimant whose claim for benefits has been

denied in an initial determination with respect thereto

upon the basis of his not being a qualified employee, and

any claimant who contends that under an initial determination of his claim he has been awarded benefits at

less than the proper rate, may appeal to the Board for

the review of such determination. Thereupon the Board

shall review the determination and for such review may

designate one of its officers or employees to receive evidence and to report to the Board thereon together with

recommendations. In any such case the Board or the

person so designated shall, by publication or otherwise,

notify all parties properly interested of their right to

participate in the proceeding and, if a hearing is to be

held, of the time and place of the hearing. At the request of any party properly interested the Board shall

provide for a hearing, and may provide for a hearing on

its own motion. The Board shall prescribe regulations

governing the appeals provided for in this paragraph

and for decisions upon such appeal.

20a

(3) Any base-year employer of a claimant whose

claim for benefits has been granted in whole or in part,

either in an initial determination with respect thereto or

in a determination after a hearing pursuant to paragraph

(1), and who contends that the determination is erroneous for a reason or reasons other than a reason that is

reviewable under paragraph (4), may appeal to the

Board for review of such determination. Despite such

an appeal, the benefits awarded shall be paid to such

claimant, subject to recovery by the Board if and to the

extent found on the appeal to have been erroneously

awarded. The Board shall take such action as is appropriate to recover the amount of such benefits including

if feasible adjustment in subsequent payments pursuant

to the first two paragraphs of section 352(d) of this title.

Upon an appeal, the Board shall review the determination appealed from and for such review may designate

one of its officers or employees to receive evidence and

report to the Board thereof together with recommendations. In any such case the Board or the person so designated shall, by publication or otherwise, notify all parties properly interested of their right to participate in

the proceeding and, if a hearing is to be held, of the time

and place of the hearing. At the request of any party

properly interested the Board shall provide for a hearing, and may provide for a hearing on its own motion.

The Board shall prescribe regulations governing the appeals provided for in this paragraph and for decisions

upon such appeal.

(4) In any case in which benefits are awarded to a

claimant in whole or in part upon the basis of pay earned

in the service of a person or company found by the Board

to be an employer as defined in this chapter but which

denies that it is such an employer, such benefits awarded

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on such basis shall be paid to such claimant subject to a

right of recovery of such benefits. The Board shall thereupon designate one of its officers or employees to receive

evidence and to report to the Board on whether such

benefits should be repaid. The Board may also designate one of its officers or employees to receive evidence

and report to the Board whether or not any person or

company is entitled to a refund of contributions or

should be required to pay contributions under this chapter, regardless of whether or not any claims for benefits

will have been filed upon the basis of service in the employ of such person or company, and shall follow such

procedure if contributions are assessed and payment is

refused or payment is made and a refund claimed upon

the basis that such person or company is or will not have

been liable for such contributions. In any such case the

Board or the person so designated shall, by publication

or otherwise, notify all parties properly interested of

their right to participate in the proceeding and, if a hearing is to be held, of the time and place of the hearing.

At the request of any party properly interested the

Board shall provide for a hearing, and may provide for a

hearing on its own motion. The Board shall prescribe

regulations governing the proceedings provided for in

this paragraph and for decisions upon such proceedings.

(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 notified, as hereinabove provided, of

his right to participate in the proceedings 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

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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 chapter, of

every party notified as hereinabove provided of his right

to participate in the proceedings.

(6) For purposes of this subsection and subsections

(d) and (f ), any base-year employer of the claimant is a

properly interested party.

(7) Any issue determinable pursuant to this subsection and subsection (f ) of this section shall not be determined in any manner other than pursuant to this subsection and subsection (f ).

(d)

Decisions of reviewing bodies; review and finality

The Board shall prescribe regulations governing the

filing of cases with and the decision of cases by reviewing bodies, and the review of such decisions. The

Board may provide for intermediate reviews of such decisions by such bodies as the Board may establish or assign thereto. The Board may (i) on its own motion review a decision of an intermediate reviewing body on the

basis of the evidence previously submitted in such case,

and may direct the taking of additional evidence, or (ii)

permit such parties as it finds properly interested in the

proceedings to take appeals to the Board. Unless a review or an appeal is had pursuant to this subsection,

the decision of an intermediate reviewing body shall,

subject to such regulations as the Board may prescribe,

be deemed to be the final decision of the Board.

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(e)

Application of rules of evidence in law and equity;

notice of findings

In any proceeding other than a court proceeding, the

rules of evidence prevailing in courts of law or equity

shall not be controlling, but a full and complete record

shall be kept of all proceedings and testimony, and the

Board’s final determination, together with its findings of

fact and conclusions of law in connection therewith, shall

be communicated to the parties within fifteen days after

the date of such final determination.

(f )

Review of final decision of Board by Courts of

Appeals; costs

Any claimant, or any railway labor organization organized in accordance with the provisions of the Railway

Labor Act [45 U.S.C. 151 et seq.], of which claimant is a

member, or any base-year 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 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 within ninety

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, in the United States court of appeals for the circuit in which the claimant or other party

resides or will have had his principal place of business

or principal executive office, or in the United States

Court of Appeals for the Seventh Circuit or in the United

States Court of Appeals for the District of Columbia.

A copy of such petition, together with initial process,

shall forth-with be served upon the Board or any officer

designated by it for such purpose. A copy of such petition also shall forthwith be served upon any other properly

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interested party, and such party shall be a party to the

review proceeding. Service may be made upon the

Board by registered mail addressed to the Chairman.

Within thirty days after receipt of service, or within

such additional time as the court may allow, the Board

shall file with the court in which such petition has been

filed the record upon which the findings and decision

complained of are based, as provided in section 2112 of

title 28. Upon the filing of such petition the court shall

have exclusive jurisdiction of the proceeding and of the

question determined therein. It shall have power to

enter a decree affirming, modifying, or reversing the decision of the Board, with or without remanding the cause

for rehearing. The findings of the Board as to the facts,

if supported by evidence and in the absence of fraud,

shall be conclusive. No additional evidence shall be received by the court but the court may order additional

evidence to be taken before the Board, and the Board

may, after hearing such additional evidence, modify its

findings of fact and conclusions and file such additional

or modified findings and conclusions with the court, and

the Board shall file with the court the additional record.

The judgment and decree of the court shall be final, subject to review as in equity cases.

An applicant for review of a final decision of the

Board concerning a claim for benefits shall not be liable

for costs, including costs of service, or costs of printing

records, except that costs may be assessed by the court

against such applicant if the court determines that the

proceedings for such review have been instituted or continued without reasonable ground.

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(g)

Finality of Board decisions

Findings of fact and conclusions of law of the Board

in the determination of any claim for benefits or refund,

the determination of any other matter pursuant to subsection (c) of this section, and the determination of the

Board that the unexpended funds in the account are

available for the payment of any claim for benefits or

refund under this chapter, shall be, except as provided

in subsection (f ) of this section, binding and conclusive

for all purposes and upon all persons, including the Comptroller General and any other administrative or accounting

officer, employee, or agent of the United States, and shall

not be subject to review in any manner other than that

set forth in subsection (f ) of this section.

(h)

Benefits payable prior to final decision of Board

Except as may be otherwise prescribed by regulations of the Board, benefits payable with respect to any

period prior to the date of a final decision of the Board

with respect to a claim therefor, shall be paid only after

such final decision.

(i)

Fees for presenting claims; penalties

No claimant or other properly interested person

claiming benefits shall be charged fees of any kind by

the Board, its employees or representatives, with respect to such claim. Any such claimant or other properly

interested person may be represented by counsel or

other duly authorized agent, in any proceeding before

the Board or its representatives or a court, but no such

counsel or agent for a claimant shall either charge or receive for such services more than an amount approved

by the Board or by the court before whom the proceed-

26a

ings of the Board are reviewed. Any person who violates any provision of this subsection shall be punished

by a fine of not more than $10,000 or by imprisonment

not exceeding one year.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.