# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2016 Decided June 24, 2016

No. 14

- 1251

C HRIS S TOVIC
, P ETITIONER

v.

R AILROAD R ETIREMENT B OARD AND S OCIAL S ECURITY

A DMINISTRATION
, R ESPONDENTS

On Petition for Review of a Decision o f the Railroad

Retirement Board

Burden H. Walker , appointed by the court, argued the

cause as amicus curiae for petitioner. With him on the briefs

were Jonathan D. Hacker and Jason Zarrow

.

Chris Stovic , pro se, filed the briefs for petitioner.

Debra Chesnin , General Attorney, Railroad Retirement Board, argued the cause for respondents. With her on the brief were Alisa B. Klein , Attorney, U.S. Department of Justice, Robert D. Kamenshine , Attorney , and Karl T. Blank

, General Counsel, Railroad Retirement Board. Dana J. Martin , Attorney, U.S. Department of Justice, entered an

appearance.2

Before: H ENDERSON
, R OGERS
, and K AVANAUGH
, Circuit Judges

.
Opinion for the Court filed by Circuit Judge
K AVANAUGH

.

K AVANAUGH
, Circuit Judge : In 1995, a fter working in the railroad industry for more than 30 years, Chris Stovic retired. Upon his retirement, Stovic was entitled to retirement benefits under the Railroad Retirement Act

. For covered railroad w orkers, that Act’s benefits system in essence substitute s for the Social Security benefits program.

The distribution of r etirement benefits under the Act is overseen by the Railroad Retirement Board , a federal government agency within the Executive Branch

. In 1996, the Board initially calculated the amount of Stovic’s retirement benefits

. Not satisfied with that calculation, Stovic pursued a series of administrative appeals

. In 1999, the Board issued a final decision confi rming its initial calculation. Stovic did not seek judicial review of the Board’s 1999 decision within the Act’s one

- year statute of limitations.

In March 2014, Stovic requested that the Board reopen its 1999 decision concerning the calculation of his ret irement benefits. Board regulations allow the Board to reopen initial benefits determination s at any time

, under certain circumstances

. In this case, t he Board promptly denied Stovic’s request to reopen

. Stovic has petitioned this Court to review the Boa rd’s denial of his request to reopen the 1999 benefits determination

. The Board responds first that this Court lack s jurisdiction over Stovic’s petition for review . In particular,3

t he Board argues that the Railroad Retirement Act does not provide for jud icial review of Board decisions denying request s to reopen initial benefits determination s . In the alternative, the Board argues on the merits that its decision not to reopen Stovic’s initial benefits determination was reasonable

.

We conclude that the Railroad Retirement Act grants th e Court jurisdiction to review Board decisions denying requests to reopen initial benefits determination s. However, the Board’s decision to deny Stovic’s request to reopen was reasonable. Therefore, w e deny Stovic’s petition for review.

I

We must first decide whether this Court possesses jurisdiction over Stovic’s petition for review. 1 The Board argues that this Court lacks jurisdiction to review the Board’s denial of a request to reopen an initial b enefits determination

. The courts of appeals are divided on that question. W e conclude that the relevant statutory provisions provide for judicial review of Board denial s of requests to reopen

.
Under the Railroad Retirement Act, courts review decisions of the Board “in the same manner” as they would review Board decisions under the Railroad Unemployment Insurance Act. 45 U.S.C. § 231g

. In turn, Section 5(f) of the Railroad Unemployment Insuranc e Act sets forth the following conditions on judicial review: “ Any claimant , or any railway labor organization organized in accordance with the provisions of th e Railway Labor Act [45 U.S.C. 151 et seq.], of which claimant is a member, or any base

- year

1 T he Court appointed amicus curiae to present arguments in support of petitioner’s position . Amicus has ab ly discharged his responsibilities

.4
employer of the claimant, or any other party aggrieved b y 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

. . . .” Id. § 355(f) (emphas e s added)

.

The Board does not dispute that Stovic is a “claimant” who has exhausted “all administrative remedies within the Board .”

The key question in this case is whether Stovic is seeking “review of any final decision of the Board.” Id. The Board says no. But the Board’s position does not square with the

text of the statute . Section 5(f) provides for judicial review of

“ any final decision of the Board.” Id. (emphasis added). The Board’s denial of Stovic’s request to reopen is a “decision of the Board.” And that decision is “final. ” See Army C orps of Engineers v. Hawkes Co.

, 136 S. Ct

. 1807, 1813 , slip op. at 5 (2016) ( agency action “final” when it marks “the consummation of the agency’s decision making process” and determi nes legal “ rights or obligations”) (quoting Bennett v. Spear , 520 U.S. 154, 17 7

- 7 8 (1997))

. Therefore , the text of Section 5(f) provides for this Court ’s review of the Board’s denial of Stovic’s request to reopen the Board’s 1999 benefits determination

.

T he Board attempts to end

- run that straightforward interpretation of Section 5(f) by reading in to the statute an implicit limitation on the kinds of Board decisions that are judicially revie wable. According to the Board

, when Congress wrote that any “claimant” may “ obtain a review of any final decision of the Board ,” Congress meant to limit judicial review to only final decisions made “under subsection (c) of this section.” Here, the Board’s interpretation would allow judicial review only o f initial benefits determinations

,5

not of denied requests to reopen , because Section 5(c) of the Railroad Unemployment Insurance Act primarily

encompa sses initial benefits determination s

. Section 5(c) does not encompass Board decisions denying requests to reopen initial benefit s determinations

. See 45 U.S.C. § 355(c).

The Board offers three justifications for tacking that implicit limitation onto the text of Section 5(f). N one warrant s departure from Section 5(f)’s text

.

First , the Board points out that Section 5(f) uses the term “final decision” twice

– first in setting out one of the four categories of petitioners who may seek judicial review

, and second in defining the kinds of decisions subject to review for all the categor ies of eligible petitioners

. See id. § 355(f) (“ a ny other party aggrieved by a final decision under subs ection (c) of this section, may

. . . obtain a review of any final decision of the Board ”) (emphas e s added). According to the Board, because Section 5 ( f

) limits one of the four categories of eligible petitioners to parties “ aggrieved by a final decision under subsection (c) of this section

, ” the statute’s subsequent use of the term “final decision”

– which describes the kinds of decisions that may be appealed by any eligible petitioner

– must be similarly limited.

But the Board has it backwards

. It is an established principle of statutory interpretation that, when “ Congress includes particular language in one section of a statute but omit s it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. ” Russello v. United States

, 464 U.S. 16, 23 (1983)

. That presumption applies with special force in this case given that the term “final decision” is qualified differently within the same subsection6

of Section 5

. Had Congress intended to limit judicial review in Section 5(f) to initial benefits determination s, it could have easily done so by employing the phrase “under subsection (c)” when setting out the kinds of decisions subject to judicial review. But Congress did not do so.

Moreover, Congress granted the Board the power “to establish, by regulations or otherwise, such procedures as it may deem necessary or proper for the determination of a r ight to benefits.” 45 U.S.C. § 355(b). Ye t Congress declined to place a limit on what final Board decisions are reviewable. That further suggests that Congress wanted courts to re view final decisions flowing from t he Board

- created procedures.

Second , the Board argues that Section 5(f) should be interpreted in the same way as a separate judicial review provision in the Social Security Act

, Section 205(g) . That section of th e Soci al Security Act provides for judicial review of certain S ocial S ecurity benefits determinations: “Any individual, after any final decision of the Secretary made after a hearing to which he was a party , irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days .

. . .” 42 U.S.C. § 405(g) (1976) (emphas e s added)

. Note that Section 205(g) does not provide for judicial review of “any final decision of the Secretary ,” but only of “ any final d ecision of the Secretary made after a hearing to which he was a party .” As we will explain, that text is critical to understanding why the Board’s reliance on Section 205(g) is misplaced

.

T he Supreme Court has interpreted Section 205(g) to prohibit judici al review of agency refusals to reopen initial determinations of S ocial S ecurity benefits

. See Califano v. Sanders , 430 U.S. 99, 107

- 08 (1977). In reaching that conclusion, t he Sanders Court emphasized the text of Section7
205(g) . The Court reasoned that Section 205(g) “clearly limits judicial review to a particular type of agency action, a ‘final decision of the Secretary made after a hearing.’ ” Id. at 108. Because the Social Security Act does not require a hearing for requests to reopen , the Court hel d that denial s of requests to reopen were not reviewable under Section 205(g). Id

. The Court went on to note that judicial review of denials of requests to reopen “would frustrate the congressional purpose, plainly evidenced in § 205(g), to impose a 60

- d ay limitation upon judicial review of the Secretary ’s final decision on the initial claim for benefits.” Id.

Based on the similar purposes of the Social Security Act and the Railroad Retirement Act, the Board here contends that the Supreme Court’s deci sion in Sanders applies equally to Section 5(f)

. As the Board points out, many courts of appeals have agreed with the Board’s interpretation of Section 5(f) largely because of Sanders

. See Cunningham v. Railroad Retirement Board , 392 F.3d 567, 57 3 (3d Cir. 2004); Harris v. Railroad Retirement Board , 198 F.3d 139, 14 2 (4th Cir. 1999); Roberts v. Railroad Retirement Board , 346 F.3d 139, 14 1 (5th Cir. 2003); Steebe v. Railroad Retirement Board , 708 F.2d 250, 255 (7th Cir. 1983); Rivera v. Railroad Ret irement Board , 262 F.3d 1005, 100 9 (9th Cir. 2001); Abbruzzese v. Railroad Retirement Board , 63 F.3d 972, 974 (10th Cir. 1995). 2

In our view, however, reliance on Sanders disregards the critical textual difference between (i) Section 205(g) of the Social Security Act at issue in Sanders and (ii) Section 5 (f) of

2 The Second and Eighth Circuits have held that Section 5(f) provides for judicial review of B oard decisions denyin g requests to reopen initial benefit s determinations. See Sones v. Railroad Retirement Board , 933 F.2d 636, 638 (8th Cir. 1991); Szostak v. Railroad Retirement Board , 370 F. 2d 253, 254

- 55 (2d Cir. 1966).8
the Railroad Unemployment Insurance Act at issue here

. Section 205(g) of the Social Security Act confines judicial review to “review of such decision[s]. ” 42 U.S.C. § 405(g) (1976) (emphasis added). And t he word “such” in Section 205(g) refers back to a limited category of decision s : “any final decision of the Secretary made after a hearing.” Id. The Sanders Court relied heavily on the qualifying language in Section 205(g)

– “made after a hearing”

– in concluding that the statute precludes judicial review of the Secretary’s denials of requests to reopen. Sanders , 430 U.S. at 108.

By contrast, the text of Section 5 (f) of the Railroad Unemployment Insurance Act provides for judicial review of

“ any final decision of the Board ,” without qualification. 45 U.S.C. § 355(f) (emphasis added). A s explained, a Board decision denying a request to reopen fall s easily w ithin that broad category. So the result reached by the Sanders Court, which was based primarily on the text of Section 205(g), does not apply to the differently and more broadly worded text of Section 5(f).

None of the courts of appeals that have relied on Sanders has noted , much less grappled with, that key textua l difference between Section 205(g) and Section 5(f)

. Instead, those courts

– relying on the Supreme Court’s description of the purpose of Section 205(g)

– have reasoned that allowing for judicial review of denials of requests to reopen in this

context wo uld similarly “fr ustrate the goal of ensuring finality of [Board] decisions.” Cunningham , 392 F.3d at 574; see also Roberts , 346 F.3d at 141.

But t he Sanders Court appealed to the interest in finality only after consulting the text of Section 205(g) , and then only in order to point out that the text was consistent with one of the statute’s purposes

. We highly doubt that the interest in9
finality would have controlled in Sanders if the Social Security Act had provided without qualification for judicia l review of “ any final decision ” of the Secretary

. After all, as the Supreme Court has repeatedly stated, “[v]ague notions of a statute’s ‘basic purpose’ are inadequate to overcome the words of its text regarding the specific issue under consideration.” Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan , 136 S. Ct. 651, 661, slip op. at 13 (2016) (ellipsis omitted) (quoting
M ertens v. Hewitt Associates , 508 U.S. 248, 261 (1993)).

In this case , the text of Section 5(f) speaks precisely to the issue under consideration: A claimant who has exhausted administrative remedies may seek judicial review of “any final decision of the Board. ” 45 U.S.C. § 355(f). A denial of a request to reopen is a final decision of the Board. Invocations of a general interest in finality cannot overcome the only congressional purpose of which we can be sure

– the
purpose stated in the text of Section 5(f)

. 3

In short, the result in Sanders does not control this case for the simple reason that the statute at issue in Sanders differs in critical respects from the statute at issue here

.

Third

, the Board repackages its c oncern about finality as an absurdity argument. In the Board’s view, it would be absurd if claimants like Stovic could circumven t the Railroad Retirement Act’s one

- year statute of limitations simply by filing a request to reopen a prior benefits determination , and then obtaining judicial review of the denied request to reopen

. The Board points to Stovic’s current appeal

– initiate d 15

3 In any event, judicial review of denials of reque sts to reopen serves one key p u rpose underlying Section 5(f): improving the accuracy of benefits determinations.10
years after the Board’s initial benefits determination

– as a poster child of this potential for vexatious litigation.

D eparture from statutory text may be warranted if adherence to the text would lead to a truly absurd outcome. But absurdity is a high bar. The Supreme Court has equated

an absurdity with a n outcome “so bizarre,” “illogical,” or “glaringly unjust” that “Congress could not plausibly have intended” th at outcome

. Demarest v. Manspeaker , 498 U.S. 184, 191 (1991) ; Conroy v. Aniskoff , 50 7 U.S. 511, 516 (1993) ; In galls Shipbuilding, Inc. v. Director , Office of Workers’ Compensation Programs, Departmen t of Labor , 519 U.S. 248, 261 (1997) ; Mohamad v. Palestinian Authority , 132 S. Ct. 1702, 1707 (2012); s ee also Sturges v. Crowninshield

, 17 U .S. 122, 202

- 03 (1819) (Marshall, C.J.) ( text of statute not disregarded unless case is “one in which the absurdity and injustice of applying the provi sion to the case, would be so monstrous , that all mankind would, without hesitation, unite in rejecting t he application”).

Here, i t is not absurd

– indeed, not even close to absurd

– to read Section 5(f) to allow judicial review of denied requests to reopen

. I t makes sense to provide for judicial review of potentially arbitrary and mistaken Board decisions denying requests to reopen

. Judicial review helps ensure accuracy and fairness. Moreover, the usual presumption is in favor of judicial review of agency action. See 5 U.S.C. § 701(a)(1); see also Sackett v. EPA , 132 S. Ct. 1367 , 13 73 (2012) (APA “creat es a presumption favoring judicial review of administrative action”) (internal quotation marks omitted).

To be sure, allowing judicial review in these kinds of

reopener cases might generate some additional litigation. But assuming that the Board does it s job when it considers requests to reopen, that added burden seems quite11
manageable. Indeed, the Second and Eighth Circuits have long allowed judicial review of denied requests to reopen. The Board has not suggested that any deluge of litigation has

occ urred in those circuits. Of course, if the added litigation

t urns out to be significant , Congress can always amend the statute to make it read like Section 205(g) of the Social Security Act

– the statutory provision at issue in Sanders

.

In sum , the text o f Section 5(f) grants this Court jurisdiction to review Board decisions denying request s to reopen i nitial benefit s determination s

. When “ the terms of a statute are unambiguous, judicial inquiry is complete.” Adams Fruit Co. v. Barrett , 494 U.S. 638, 642 (1990). So it is here.

II

Although the Railroad Retirement Act provides for judicial review of Board denials of requests to reopen , the scope of this Court’s review is circumscrib ed. We may overturn the Board’s denial of a request to reopen only if th e denial is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

, ” or if it is “unsupported by substantial evidence.” 5 U.S.C. § 706 (2) ; see also 45 U.S.C. § 355 (f) (“The findings of the Board as to the facts, if support ed by evidence .

. . shall be conclusive.”).

Stovic argues that the Board’s denial was arbitrary and capricious. The arbitrary and capricious standard usually boils down to the question of whether the agency action a t issue was “ reasonable and reason ably explained. ” Communities for a Better Environment v. EPA , 748 F.3d 333, 335 (D.C. Cir. 2014)

. Here, we conclude that the Board reasonably denied Stovic’s request to reopen

.12

In 2014, Stovic submitted a letter requesting that the Board reopen its 1999 decision calculating the amount of Stovic’s retirement benefits

. Board regulations provide that a “final decision may be reopened” at “any time” under any of 10 conditions. 20 C.F.R. § 261.2(c). Because Stovic was asking the Board to reopen his case rat her than challenging an initial benefits determination directly , Stovic had to present evidence establishing that one of those 10 reopener conditions was satisfied.

Although Stovic did not clearly identify which of the 10 conditions justified reopening h is case , the Board interpreted Stovic’s letter primarily as a request to reopen pursuant to the sixth and seventh condition s of its reopener regulation

. Condition six of the regulation provides for reopener to make certain correction s to a decision that determined “the claimant did not have an insured status.” Id. § 261.2(c)(6). A final decision, for example, could be reopened to “correct an error made in the allocation of earnings to an individual which , if properly allocated, would have given him or her an insured status at the time of the decision.” Id. § 261.2(c)(6)(ii). Condition seven of the regulation provides for reopener “to correct clerical error or an error that appears on the face of the evi dence that was considered when the determination or decision was made.” Id. § 261.2 (c) (7).

T he Board reasonably concluded and explained that

reopener here was inappropriate under either condition. Stovic did not see k to reopen a decision that he “did n ot have an insured status.” Id. § 261.2(c)(6). It was therefore reasonable for the Board to conclude that there were no errors in the allocation of Stovic’s earnings that, if corrected, would have given him insured stat us at the time of the decision. An d Stovic provided little to no explanation of how his initial decision contained a “ clerical error or an error that appears on13

the face of the evidence.” Id. § 261.2(c)(7). Under the circumstances here

, the Board ’s denial of Stovic’s request to
reopen was eminently reasonable

.

* * *

The Railroad Retirement Act grants this Court jurisdiction to review Board denial s of request s to reopen initial benefits determination s

. But the scope of judicial review in such cases is narrow. Here , the Board did not a ct unreasonably in denying Stovic’s request to reopen

. We therefore deny Stovic’s petition for review.

So ordered.