Argument analysis: Justices debate power of courts to review requests to reopen railroad benefits decisions
on Nov 3, 2020 at 3:58 pm
The Supreme Court heard telephonic argument on Monday in Salinas v. U.S. Railroad Retirement Board. The case presents a narrow question about the Railroad Retirement Act and the Railroad Unemployment Insurance Act, two federal statutes that govern pensions, unemployment benefits and sickness benefits for the nation’s railworkers. The question is: When the agency responsible for administering those statutes denies benefits to a claimant, and then later refuses to reopen its denial, is that refusal subject to judicial review?
The case arises from a series of benefit requests filed by Manfredo Salinas, a former railroad employee who, after suffering serious on-the-job injuries, filed multiple disability claims under the Retirement Act. The agency responsible for awarding and denying benefits, known as the Railroad Retirement Board, initially denied Salinas’ claims, but later reversed course on one of them. At that point, Salinas asked the board to reopen another of his previously denied claims, citing new evidence that he was disabled at the time of that earlier claim. But the agency refused to reopen its decision. And when Salinas asked the U.S. Court of Appeals for the 5th Circuit to review that refusal, the court dismissed his challenge on the ground that denials of reopening are not reviewable under the judicial-review provisions of the Retirement Act and the Unemployment Insurance Act.
One of the notable features of this case is that, although Salinas had sought benefits under the Retirement Act, both Salinas and the government devoted most of their briefing to provisions governing judicial review under the other railroad law — the Unemployment Insurance Act. They did so because the Retirement Act’s judicial-review provision (Section 231g) expressly cross-references the Unemployment Insurance Act: Section 231g states that “[d]ecisions of the Board determining the rights or liabilities of any person” under the Retirement Act can be reviewed by courts “as though the decision were a determination of corresponding rights or liabilities under” Section 355 of the Unemployment Insurance Act. The parties thus focused primarily on whether a denial of reopening would be judicially reviewable under Section 355 — a thorny interpretive question tied in part to whether the “rule of the last antecedent” applies to that provision’s multi-item list of parties authorized to seek judicial review.
Sarah Harris argued on behalf of Salinas. In line with the parties’ briefing, Harris emphasized that Section 355 broadly authorizes judicial review of “any” final decision of the Railroad Retirement Board. That language, Harris said, is “certainly capacious enough to include [a] reopening” request based on new evidence like the one Salinas had made. Harris also returned repeatedly to the general presumption favoring judicial review of agency decisions — a presumption she described as “an important safeguard to keep the agency accountable.”
The justices, however, devoted relatively little of their questioning to either of Harris’ core arguments. Chief Justice John Roberts began by asking why the parties had turned immediately to Section 355 without first asking whether Section 231g was itself sufficient to answer the question presented. He pressed Harris on how a discretionary denial of reopening could qualify under Section 231g as a judicially reviewable “decision of the Board determining … rights or liabilities,” given that Salinas’ entitlement to benefits had already been determined when the board initially denied his claim. Harris responded by pointing to other language in Section 231g indicating that the phrase “rights and liabilities” must extend beyond initial benefits determinations, and she reiterated that if the court instead construed the phrase as excluding agency denials of reopening, it would upend the longstanding tradition of treating such denials as reviewable.
But Harris’ responses to the chief justice did not stop several of the other justices — including Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — from returning frequently to Section 231g. These justices seemed inclined to believe that, whatever the Unemployment Insurance Act says, the text of Section 231g alone might foreclose review of Salinas’ claim. Alito was especially keen to understand why the parties had both chosen to frame their disagreement around the Unemployment Insurance Act. He asked whether it was because the parties anticipated that anomalies might arise if the court were to rest its decision solely on the Retirement Act, without also considering the scope of judicial review under the other law.
Thomas and Gorsuch expressed skepticism about Harris’ other main argument, regarding the presumption in favor of judicial review. Both questioned whether such a presumption was appropriate here, given that neither railroad-benefit law expressly authorizes the board to reconsider its benefits decisions; as Gorsuch put it, reopening is merely a matter of “regulatory grace.” Harris responded that Congress had nevertheless given the board broad responsibility to administer the railroad statutes. Under that delegation, she explained, the board for nearly a century had authorized parties to request reopening, demonstrating that reopening (at least as of now) is an integral part of the statutory scheme. Justice Brett Kavanaugh appeared to agree with Harris, later noting that a contrary “greater includes the lesser” argument — i.e., the notion that because the statute does not require the agency to grant reopening at all, the agency’s decision to deny reopening is not reviewable by courts — is “not usually how administrative law works.”
Assistant to the Solicitor General Austin Raynor, who took up the cause on behalf of the United States, embraced the justices’ suggestion that Section 231g was his ally. He explained that the government viewed Section 231g as “strongly confirmatory” of its primary argument regarding Section 355. But Alito was not fully satisfied by this all-of-the-above response, instead wondering whether the government’s decision not to prioritize Section 231g reflected deeper concerns about how the statute would operate if the court decided the case under the Retirement Act alone. Along the same lines, Justice Sonia Sotomayor said that the government’s reticence gave her “great pause” about deciding the case solely under Section 231g, asking Raynor whether he was “absolutely sure” that such a decision would not create unforeseen problems.
Section 231g was not the justices’ only concern, however. Justices Stephen Breyer and Elena Kagan returned to the parties’ primary arguments rooted in Section 355 of the Unemployment Insurance Act. Breyer asked both sides how best to resolve the apparent conflict between (on the one hand) language in several of the court’s decisions disfavoring judicial review of an agency’s discretionary refusal to reconsider a prior decision, and (on the other hand) the railroad statutes’ lack of express language cutting off judicial review of such decisions. Kagan was the only justice to press Harris primarily on her interpretation of the Unemployment Insurance Act — again, the main focus of the parties’ briefs. Kagan wanted to know where in the statutory text Harris found her proposed distinction between an applicant’s request merely to “rehash” arguments previously rejected by the agency, and a request like Salinas’ to reconsider a prior denial in light of new evidence. Picking up on that theme, Raynor disputed that Harris’ proposed distinction was tenable, noting that nothing in the text of the railroad statutes distinguished among types of reopening requests. He argued that adopting Harris’ logic would thus permit judicial review even of mere “rehashes.” And if that were true, he explained, it would give claimants an end-run around the statute of limitations: A railworker who missed the opportunity for judicial review could simply renew his or her benefits request, just to restart the clock — a result that Congress could not have intended.
Seemingly alone among his colleagues, Kavanaugh expressed approval of Salinas’ reading of the relevant statutes. In what he termed a “favorable” question, he recounted his understanding of the “the history of this issue and case law,” which he viewed as telling a story of lower courts reading too much into a Supreme Court decision foreclosing judicial review under the Social Security Act. Kavanaugh, along with Kagan, also seemed inclined to resist the other justices’ primary focus on Section 231g of the Retirement Act: both found it notable that, in this case and in prior cases involving this same issue, the government had never argued that Section 231g foreclosed judicial review outright.
Barrett, on her first day of oral arguments as a Supreme Court justice, showed that in the six days following her confirmation she had dug deeply into the briefs and grappled with the complex statutory and regulatory scheme at issue. Like several of her colleagues, Barrett homed in on Section 231g and the apparent difficulties it created for Salinas’ position. She also asked Harris whether, even assuming that some denials of reopening based on new evidence might determine “rights and benefits” for purposes of that provision, the particular facts of Salinas’ request fit the bill.
Monday’s low-temperature argument confirmed that the decision in Salinas’ case is unlikely to ignite fireworks. But Gorsuch’s questioning perhaps exposed a thread to watch in future cases involving judicial review of agency decisions — a frequently discussed topic at the Supreme Court. Picking up on his colleagues’ questions about whether the government’s position excluded judicial review even for constitutional challenges to board decisions, Gorsuch asked Raynor to explain where that “special exception for constitutional challenges come[s] from.” That phrasing may suggest skepticism by Gorsuch about the longstanding principle that statutes generally should not be read to prevent parties from challenging agency actions as unconstitutional.