Reviewing Administrative Action: Salinas v. RR Retirement Board

The U.S. Railroad Retirement Board said, “we refuse to reconsider our decision to deny a railroad worker disability benefits.” The Supreme Court replied, “Fine. Federal courts can review your refusal.” The vote was 5:4. The majority’s decision is another win for those—like me—who generally favor judicial review of administrative action. But the win is a shaky one; the Justices disagreed about how to interpret a single clause in an Act of Congress, and both interpretations are intrinsically valid.

Manfredo Salinas worked on railroads for fifteen years. His gains did not come without pain; Salinas was twice struck in the head by falling objects, first in 1989 by a sledgehammer and then in 1993 by a railroad tie. Salinas underwent two spinal surgeries. After retiring, he sought disability benefits under the 1974 Railroad Retirement Act (RRA). The RRA augments an earlier statute, the Railroad Unemployment Insurance Act (RUIA).

Per the RRA, Salinas petitioned the U.S. Railroad Retirement Board for disability benefits. After denying Salinas’ first three petitions, the Board granted his fourth. But the start date and amount of benefits were not to Salinas’ liking. So, Salinas asked the Board to “reopen” one of his earlier applications. The Board declined. Salinas then asked a federal court—the Fifth Circuit Court of Appeals—to review the Board’s refusal to reopen, relying on a provision of the RRA (45 U.S.C. §231(g)) that authorizes judicial review of the Board’s actions in certain circumstances. But the Fifth Circuit said no. Applying circuit precedent, it held that a refusal to reopen a benefits claim is not a decision subject to judicial review under §231(g). In so holding, the Fifth Circuit cemented a circuit split. Four other circuit courts have also held that §231(g) does not allow federal courts to review a Board’s refusal to reopen a benefits determination. Three circuit courts have held oppositely.

Salinas appealed to the Supreme Court, asking the Justices to decide whether §231(g) permits federal courts to review the Board’s refusal to reopen a benefits claim. By five votes to four, the Court sided with Salinas. Justice Sotomayor penned the majority opinion, where she was joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh. Justice Thomas dissented with Justices Alito, Gorsuch, and Barrett.

The RRA’s judicial review statute, as relevant, reads:

“Decisions of the Board determining the rights . . . 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 . . . under the [RUIA].”

45 U.S.C. §231(g)

There are several important clauses in §231(g). Three clauses concern the manner in which a court must review a decision of the Board. First, courts must review decisions under the RRA “in the same manner” as they would under the RUIA. Next, they must observe the “same limitations” as they would in an RUIA review, such as applying the same standard of review, the same limitations periods, and the like. Third, they must ensure that they apply all other “provisions of law” just as they would under the RUIA.

But the very first clause contains an important domain restriction: the kinds of cases a court may review. Judicial review is limited to decisions of the Board that (1) “determin[e] the rights . . . of any person under” the RRA and (2) can determine a “corresponding right[] . . . under” the RUIA. Thus, any inquiry must begin by identifying the railroad worker’s right that the Board’s decision determined. Only if it does so can the court then try to identify an analogous right under the RUIA. If the court passes both hurdles, it then can move to the three clauses governing the manner in which it conducts its review. Once there, the court would review the Board’s decision effectively under the RUIA’s provisions, not the RRA’s.

Let’s return to Salinas’ case. The starting inquiry is whether the Board’s refusal to reopen one of Salinas’ cases “determin[e]d [a] right[]” of Salinas under the RRA.

This is where the majority and dissent disagree. Justice Thomas, dissenting, says it did not. The Board’s decision was “ultimately discretionary,” he wrote. Nowhere in the RRA or the RUIA does Congress give Salinas the right to the reopening of his closed cases. Sure, Salinas has the right to request reopening, but the decision whether to grant his request is left to the Board. Indeed, per the Board’s regulations, the Board has plenary power to direct that “any decision, which is otherwise subject to reopening under this part, shall not be reopened” (20 CFR §261.11).

Justice Sotomayor, for the majority, concluded that the Board’s refusal to reopen did determine a right of Salinas under the RRA. Oddly, however, she did not support that conclusion or argue for it—at least not expressly. Her opinion didn’t identify which right, precisely, that refusal determined. On the whole, she appeared to gloss over §231(g)’s limit on the kinds of Board decisions subject to review and instead seized on §231(g)’s limits on the manner in which Board decisions are reviewed.

Her most discernible argument came later in her opinion, albeit in a different context. She noted that the Board has defined “reopening” as “a conscious determination . . . to reconsider an otherwise final decision for purposes of revising that decision” (20 CFR §261.1(c)) (emphasis added). What follows, she argued, is that if the Board grants reopening, it demonstrates an intent to “substantive[ly] change[]” the “benefits” afforded a railroad worker under the RRA. Since those benefits are a “right” under the RRA, a reopening is a “determin[ation]” of a railroad worker’s RRA right, and the rest of her opinion is valid. And for what it’s worth, Salinas also presented the argument that the Board’s refusal to reopen his case amounted to a “determin[ation]” of his underlying right to disability benefits.

Thomas disagreed. He first noted that the Board’s refusal did not address the merits of Salinas’ actual benefits claim. Rather, it merely explained why Salinas did not meet the procedural requirements for reopening. But this objection doesn’t pack much punch. While this may be true of the Board’s denial of Salinas’ reopening specifically, Thomas’ assertion doesn’t address the nature of the Board’s denial of reopening in general.

As an alternative, Thomas cited Your Home Visiting Nurse Services, Inc. v. Shalala (1999) and supplied a different take on the nature of reopening. Under Your Home, the Board’s refusal to reopen is not a new determination of Salinas’ rights but a “refusal to make a new determination” (emphasis in original). If so, it follows that a reopening denial is not a “determin[ation]” of any of Salinas’ rights under the RRA.

We are thus presented with a classic case of multiple valid interpretations of a statute. For good measure, I can supply a third. If the Board reopens a case, a railroad worker receives the opportunity to present “new and material evidence” (20 CFR §261.2(b)), among other things. Therefore, if the Board denies a request to reopen, it “determin[es] the right[] . . . of any person under [20 CFR §261.2(b)]” to present “new and material evidence.”

This is often where extra-textual arguments carry the day, as I suspect was the case with Justice Sotomayor. Some jurists support judicial review of agency action in general, and if so, may rely on that tendency to decide the case in favor of Salinas. Indeed, an entire section of Sotomayor’s opinion champions the “strong presumption favoring judicial review of administrative action” (Mach Mining, LLC v. EEOC (2015)).

Whether or not one shares that tendency, Salinas‘ result means yet another agency action is subject to review by Article III courts. The scope of Salinas is quite limited, however. Since the Board’s reopening decisions are discretionary, courts may review them only for abuse of discretion (see 5 U.S.C. §706(2)(A)). Salinas of course said nothing about about whether courts can review the Board’s baseline determinations about railroad workers’ RRA benefits (though I presume they can under Sotomayor’s line of reasoning). And Congress can put an end to this entire discussion by providing clearer instructions about judicial review in the Railroad Retirement Act.

Photo Credits: U.S. Railroad Retirement Board (2019)

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