determining the rights or liabilities of any person under the act now board determinations the act is just chock full of them there they're determining substantive things like who's eligible for how much money who's eligible for new it what are the benefits for spouses where does the money come from nothing like a decision about whether to reopen the so should we look at that under the r r a in determining whether or reviewable even if you're right about rights or liabilities the rights are liabilities under the m and a and the reopening right isn't under the act it's under regulation but is that i think the court when we had a discussion here where congress was pretty clear that it was delegating the board a lot of power to me well but that's like that's like saying just because congress has delegated authority under the constitution to statutes that every violation of a tradition of judicial review for reopening denials especially when they involve new evidence like the case here and that reason is that when you have something where a litigant is for instance asking for reopening on the basis of new evidence or new circumstances that doesn't make the claim different and makes it something that possible for course to review and a way that's different from maybe a pure rehash so brotherhood of locomotive engineers for instance the court distinguish between those two things and said it would be fundamentally unfair to deny someone the opportunity to present new evidence that the agency hadn't considered before and that also i think distinguishes sander's which did involve that kind of rehashing claim and the court has thus considered the rehashing type claim is potentially committed to agency discretion and has always allowed us to visual review of denials of reopening this one that are based on  th sixty's or nineteen seventies and since then we cases are gone the other way in the lower courts you would make a kind of hash of the statute of limitations otherwise you have a presumption of judicial review in your favor as you have serious questions about why it was ever considered a final decision and there are so many contexts in which it is considered a final decision on including countless immigration decisions and also the interstate commerce retirement act and the railroad unemployment insurance act this is a case under the former is there any reason why we can't decide it simply by looking at the language of that provision liabilities of any person under the subchapter shall be subject to judicial review that tells us what is subject to judicial review then it goes on to say in the same men are subject to the same limitations centra and it would be very strange to think that that language alone would be for closing judicial review of other decisions when there is no sort of expressed well what takes me aback in approaching the case in this way is that both you and the government who are more immersed in this than we are i have spent a lot of time debating judicial review under the provisions of the r considering or deciding to review question under the employment insurance nd because my my time is is going to expire let me fold in one other question how often does a review occur under these two and fifty five dollars the but the are a doesn't actually even mention employer determination as something out of the statute it just says the definition of an employer is the same under both statute but just as sort of back up and think controlling throughout this email are a would at least attached significance to all the types of decisions that are being listed and i would also question the definition of an initial determination with respect  go to the initial determination of rights or viability so that a person is basically saying this kind of employer is liable for not liable to you that's a clear determination of rights or liabilities under the a it still would be subject to judicial review but harkening back to what justice thomas to be sent home services we thought of or could think of and i understand it was because of the regulatory scheme that a motion to reopen was not a new determination of rights or benefits that it was a decision not to reconsider the question so why should we think of it that way here because if you thought of it that way i think you have to override a really long tradition of judicial review in cases like could china versus holder and brotherhood of locomotive engineers holds a contrary and says denials of reopening that are based on new evidence are judicially reviewable because they're finally agency action and or the situation in which they are in the sense that there is a rehash there is no new evidence presented that was that opinion is all about well yeah it might not be a final determination under their regulation issue but it is still a judicial review able and the court said no based on jurisdiction stripping language of the medicare statute and you're making between new evidence claims and rehash claims and this really goes back to justice briar's question i wasn't quite sure i understood your answer to him because he said well i understand the decision you're make the distinction you're making and where do we get that distinction from the statutory language why is one determining rights and liabilities and the other is not so the distinction i think comes from the idea that they are both final decisions that denied someone a benefit or denied someone whatever they're asking on the reopening claim the reason why the new evidence for a change circumstances claim is where viewable and has long been reviewable and multiple contacts and that it is not something that is on a major blow for courts to figure out it's not committed to agency discretion but it was and the reason is you can figure out that there's something that hasn't been presented to the agency before that might change the outcome and it would it's sort of a combination of the sense of what is a final decision but also the other step of is that kind of final decision words and view in a meaningful sense and that i think is the distinction and again that brotherhood of locomotive wouldn't be overcome there st of all if the government will write i don't think congress would have let all of the parties challenge any final decision on britain presumably say those parties could challenge such a final decision because it's strange had any final distinction which makes me wonder what about three hundred and fifty five g which as you know suggests that the findings of fact and conclusions of law by the ord in their determination of claims are final and conclusive on all persons and let you know it makes me wonder whether congress ever anticipated the idea of reopening decisions or even authorized them and if congress didn't authorize them certainly have patience enough to include reopening and one so that that might be the case is that the delegation to the forward with what let's put that aside for the moment let's say i just disagree with you on that then was that i think it will be looking at the  them just so that this is a purely a matter of regulatory grace and it isn't it isn't contemplated required or maybe even authorised by statute but it's something the good morning ms harris i want to take up something just as prior brought up about the history of this issue in case law because my understanding is very different from his and i just wanted to get that out there and you can respond so here's my understanding of what's happened on this issue over the years one hundred and sixty six judge friendly issued an opinion for the nd circuit that said there was judicial review of these kinds of reopening and that's been that long the nd circuit judicial review there and then the courts of appeals essentially pick up on colophon no in this context without paying attention in my view to deliver to the language difference in colophon you see the th circuit and the in all these cases no you go back and look at the briefs and it's just not been part of it presumably because they've long understood the railroad board at least as long understood that denials of reopening just like grants of reopening and from the are you a way to exclude i also reopening their position is those are just code words for decisions under three hundred and fifty five c and that doesn't seem like a plausible view and the government as you know have also inception has always thought that reopening was something that the board could and indeed should do in certain circumstances and so i do think it would be extraordinary to think that when there is such a long history of the his depression and anxiety that would have affected the course the board understanding of whether it should find a good cause to a use is a filing in that truth of two thousand and six claims so that's really in the heartland of the kind of new evidence type claim to be looking for this new evidence that bears on his motion to reopen not on the underlying determination of it's in title meant to benefit right well i think it was on both here that it appears on st of all why he was not allowed to pursue his two thousand and six claim which was the board said we're not going to excuse you for not proceeding further when he failed to file on a timely fashion to continue with it getting it and he said i'm really sorry i wasn't able to file within the sixty day period and i have a pretty serious depression and at that time he was able to get the new medical evidence that would have allowed him to prevent that argument to the board  would have both constitute a good cause an obviously for not underlying claim let me expand it beyond mr slant his motion heritage what i'm getting at is even if you could consider some grounds for not reopening a determination of rights or liabilities i'm not sure that's true of all for example what if it's just flatly that somebody came forward beyond the four years permitted and two hundred and sixty one two b and they just said sorry it's late that's not really doesn't fit neatly into the definition determination of rights or liabilities well you think if you thought that a terminations that raises new avenues in general is about your rights and liabilities because there's a denial of your benefits claim and you're to being denied an opportunity to prevent  evidence that question was going to be is that regulation as applied in a circumstance arbitrary and cutting that off and the other piece of it is the board obviously have the discretion to say that yes you know even though four years have passed you presented new evidence and we're willing to consider that here and the question is always going to be was the board acting reasonably in excusing that are not so i think we kind of end up in the same place which is maybe this all just underscores  to some of the point when respect to why is this different from your home and sanders and i think it is really critical to think about that because the ender's for so long has been it really is focused on a very different final decision after a hearing and then in four if i ask the asses you can't have any other kind of decision review to accept her through four or five g and that's the kind of sealing off of review that is actually missing every tool of statutory interpretation indicates that the answer to that question is no st as the text section three hundred and fifty five that of the ru i a provides for judicial review only of the stations made under subsection s s structure confirms this reading r u i s exhaustion traditional review and review exclusivity provisions all work together to ensure that the most important board decisions receive internal and judicial review through the mechanism specified in subsection f those provisions are interlocking and each covers the same basic category of course substantive determinations and human rated under subsection eight lastly the government's rating also accords with the policies underlying  mr raynor i don't think i heard you mention two hundred and thirty one gee maybe i i missed it but if you don't get to it in the argument section of your brief intil thirteen pages into it the question is i e but you have to go through its discussion of what decisions are in to determination of rights or liabilities that have to be under the act do you need a decision that covers three  to decide this case no your honor i agree with you that the determination of right to liabilities language and section to thirty one g is a gating mechanism and if you didn't think that a reopening denial qualified as a determination of rights  liability which in our view would be correct under your home and judicial review would not be available under the r r a is there is there some problem in terms of the practical administrat n having arguably or perhaps different standards or different scope of review ability under one act rather than the other i don't think there would be huge practical problems or honor and in fact our position is that th fissions made under subsection are substantive determinations of rights reliability and so that language into thirty one she interpreted according to its plain meaning would pick up the decisions under subsection fifty so even if you wanted to go if it's purely discretionary i think the hardest connection for me to make is how do you get a discretionary decision with respect to reopening to the underlying issue of and re adjudicate the merits that would be a different matter but that's not at issue here so that would be a final decision and i think the other side of that argument would be the decision not to reopen with the denial of cases where there is a just a rehash of the underlying evidence as opposed to the cases as compared to the cases or distinguished from the cases involving strong presumption of judicial review both briefs make good arguments on three hundred and fifty five c and i bet when i read judge henry henry friendly it's a pretty good argument and  i guess you could interpret right in law abilities i mean there is language certainly in your favor in your home case but you might interpret it as being a final decision in respect to rights and liabilities because he wants the rights preclude a ph review some of then you get back to my point which is that love if there is any ambiguity here or any significant ambiguity go with the normal presumption  in cases like yours you see it doesn't say no review correct your honor although in cases like eric anka the court has held that you can there can be structural negative implications that preclude other forms of review and our position is that the statute here precludes other forms of review as to your presumption question and both your home and sanders support the client to mention the across the board presumption and in both of those cases that theory opening with a matter of agency grace and it makes sense in a large benefit program where reopening is a matter of agency grace to be the could withdraw at will not to apply the presumption in the same way at the fight in other contexts and in particular reopening by  definition it's attempting to reopen a prior decision that the claimant will have had an opportunity to see judicial review of and so there's not the same pressing need for judicial review here as there would be if we were talking about a case involving primary fausti therefore i assume there is a reason why you led off with the argument based on the railroad unemployment insurance act rather than just the provision of a relative retirement act  is if the answer that you really think that it would be a mistake it would be it would be wrong as a matter of law or it would create anomalies yes we were to decide a case based guarantee there aren't are you absolutely sure your honor again our position is that language determination of rights or liabilities tracks the kind of decisions that are made under subsection c so you've answered my question counsel you argue that we need not decide at least in your brief whether a dropping your interpretation would foreclose challenges to the denial of reopening on constitutional gro but in the brief he submitted injuring his administrative appeals salinas appeared to make sort of a due process argument claiming he lacked the mental capacity to understand the procedures for requesting review least i think the constitutional claim would have to be substantial drive for example left open the possibility of extraordinary cases and it wouldn't be sufficient for a petition or just to require their eyes a run of the nobody opening denial as  kagan mr rader has the government ever before made an argument of the kind that you are hearing here that this is resolvable only on two hundred and thirty one session and not by reference to three  traditional argument could i ask you about how this cross reference really works because it's quite confusing to me you know it says decisions of the board determining rights and liabilities and then it gets you over to three fifty five because it says as though the decision were a determination of corresponding right so liabilities under the are you i a but the are you i ain't never uses this language of rights so liabilities so how do you exactly know what decisions are reviewable you know what that was how the are you why a treaty decisions of rights are liabilities when the are you why a uses the term final decision your honor in many cases there's going to be a direct parallel between decisions under the two x for example there is reopening under the r u r e a there's also reopening under the r h s for the translation princip inquiry about constitutional challenges page one thousand five hundred and sixteen dollars the brief you say for closing garden variety reopening motions like the one here would not raise any distinct issue of a rare case in any reopening decision where does this special exception for constitutional challenges come from and how do we know what a good one garden variety one is compared to a really the merits would determine jurisdiction i guess i'm just curious how all that follows your honor in standard the court articulated did the presumption in favor of traditional and us stronger or constitutional claims and i have to stay i understand that can some talk about the statue can you help me collateral to the agency's mission and one doctrinal way to approach this would be to say it is anshul constitutional claim or collateral to the agency's mission and is not covered by three hundred and fifty five dollars g b but again he's not pressing that here and so we can just cut off all judicial review of it what's your response to that that or the special thing about reopening here is that unlike other discretionary decisions for example and hok it this is something interrupted but it's important right so the did it is possible that the room reopening petition the board will mistakenly deny reopening and the will of the railroad workers should have been should receive benefits  d so i don't know about saying it's above and beyond in that case the ward worker should have gotten the benefits did not and you're saying no judicial review your honor in any reopening case the claimant could rehash there is new evidence that shows that the initial determination was wrong and you're saying even if the board makes a mistake on the we opening this evaluates the new evidence no judicial review forget about it that's correct and there's nothing surprising about that from the perspective of congressional intent because now that's possible i understand your larger point on that you said earlier that there was no and you just reiterated i guess no pressing need for judicial review here  side not sure about that given the example i just gave is on the flip side the burden on the courts seems to be almost nil in the d c circuit at least in the last five years trouble finding any case that involves judicial review of the denied reopening in this context the floodgates concern does not seem to be a real one but you can correct me if that's wrong your honor i agree that the absolute number of reopening petitions is low and we're not really pushing the floodgates argument i think the correct sneak one last one and on to thirty one gee i don't understand your answer to justice kagan to be actually that's right the government is never argued before in the many decades of this that you could resolve this on to thirty one g alone indeed to thirty one she did not really appear in a lot of the government's position in arguing these cases over the decades that i don't know that it would be a practical problem so much as sort of counterintuitive from the perspective of congressional intent in that world for example a claimant could obtain judicial review of reopening under the are you are you wouldn't be able to obtain judicial well as all the action they are a contract your honor most of these cases the rise in the r r a context is far far greater number of beneficiaries i don't know the precise number of cases that pertain to the time for additional questioning mr raynor if any members of the court have questions they'd like to ask i want to just reiterate that there's no basis in the statute for that distinction and anderson you're don't distinguish between new evidence and rehash cases and even on the facts of this cave a titian argued below that there was error on the face of the record that was his basis reopening in the th circuit and the reason for that is that there is a four year limitations period on raising new evidence and so his reopening application is effectively dead in the water if he's attempting to raise new evidence because he filed the reopening motion or more than four years after the original determination which the court ended up going that route and making that distinction remained would be appropriate to determine whether this actually is new evidence and if it is whether here at all both of those presumptions have diminished force and are easily overcome instead of focusing on the presumption this court should focus on the text and structure section two hundred and thirty one dollars chief says that only determinations of rights or liabilities are review partition or focuses on interpret in certain words and phrases in isolation we have no explanation for how the different provisions fit together in a sensible or coherent way the government's interpretation and contrast harmonizes the different provisions have a final decision will under the r u i and it would be really progress to do so if you had a situation where short term beneficiaries under the are you i am entitled to reopening yet long term beneficiaries under these are a where in the law it really would sort of take the statutory scheme of say down because it is the long term beneficiaries where the ones who are most in need of a check after that initial definition of an employer is a steam across a statute and so i take the government's position to be well perhaps you know all final decisions under the are you i a are you a bill that employers could get reopening with respect