By Sam Callahan and Allon Kedem
on February 5, 2021
at 12:09 pm
The Supreme Court appeared in November 2020 when Salinas v US Railroad Retirement Board was debated. (Katie Barlow)
On Wednesday, the Supreme Court issued its first 5-to-4 ruling in a 2020-21 dispute – albeit not in a hot-button constitutional case, but in a narrow legal dispute over jurisdiction. The Salinas v US Railroad Retirement Board question concerned the availability of judicial review of certain decisions by the Railroad Retirement Board, the independent agency responsible for granting and denying pensions, unemployment benefits and sick pay to the country’s railroad workers. In a split decision, the Supreme Court ruled that the rejection can be reviewed by a court if the board refuses to reopen a former railroad worker’s previous performance review. The ruling is another in a series of recent rulings that reject the agencies’ efforts to protect their decisions from judicial review.
The case arose out of a series of benefit claims from Manfredo Salinas, a former railroad employee who suffered serious workplace injuries and filed several disability claims under the Railroad Retirement Act. The board initially denied Salinas’ claims, but later reversed course on one of them. Salinas then asked the board to reopen another of his previously denied claims, citing fresh evidence that he had been disabled at the time of that request. The board declined to reopen its ruling and the U.S. Court of Appeals for the 5th Circuit denied its petition contesting that denial and joined the majority of circles to find that the denial of one Application for reopening by the Chamber is not subject to judicial review.
The majority opinion of Justice Sonia Sotomayor, along with Chief Justice John Roberts and Judges Stephen Breyer, Elena Kagan and Brett Kavanaugh, began with a proposal that both parties had agreed on: the availability of judicial review for Salina’s claim under the Retirement Act is based on the meaning of another Railway Act – the Railway Unemployment Insurance Act – to which the Pension Act refers. Sotomayor therefore initially turned to Section 355 (f) of the Unemployment Insurance Act, which enables the review of “every final decision” by the board of directors. This broad sentence, Sotomayor argued, signals that Congress has granted a judicial review of all decisions that meet the well-known two-part test for “agency final action” that is verifiable under the Administrative Procedure Act. As long as the agency’s decision marks the end of its decision-making process and affects rights or obligations, the decision can be checked.
In this context, explained Sotomayor, the rejection of a request for reopening by the Chamber is as follows: It is the “final event” in the Chamber’s review process, and it includes “significant changes” that relate to “Services and Obligations” the applicant’s retirement affect act. Sotomayor also pointed out that the board’s reopening decision – according to its “substantive nature” – is guided by “objective criteria” such as whether the petitioner has identified new evidence justifying a new look.
In defense of its contrary position that reopening requests are not verifiable, the government had put forward a number of textual arguments to show that the term “any final decision” should be understood more narrowly. Most prominently, the government had argued that section 355 (f) ‘s reference to another subsection of the same statute revealed the intention of Congress to limit the review solely to the agency’s decisions listed in that other subsection – refusal to reopen not among them. But Sotomayor rejected these arguments across the board, sticking to Salinas’ more extensive reading of the key term.
It also stated that any uncertainty about the breadth of section 355 (f) “must be resolved in Salinas’ s favor” under the often-cited “presumption favoring judicial review of administrative measures”. Sotomayor explained that the government had carried the burden of overcoming this assumption, and here the analysis of the legal text did not do so. Eventually, Sotomayor dismissed the government’s argument that it would effectively prevent the board from offering reopening if the parties could request judicial review of requests to reopen previous performance assessments. After all, no law requires the board of directors to allow the reopening in the first place. Echoing a recent decision that rejected a similar “count your blessings” argument, Sotomayor stated that the verifiability of his reopening decisions as soon as the board decides to offer a reopening, as it did, through the “plain text of § 355 (f). ”
Judge Clarence Thomas, disputed by Judges Samuel Alito, Neil Gorsuch, and Amy Coney Barrett, did not challenge the majority reading of Section 355 (f): he conceded that the majority “are those in the Railroad Unemployment Insurance Act. “However, in his view, the court could not turn to the Unemployment Insurance Act without first examining the provision that directly governs the judicial review of Salinas benefit entitlement – the Pension Act.
Thomas explained that while the Retirement Act provides for judicial review of board decisions “in the same way” as the Unemployment Insurance Act, the Retirement Act further restricts the type of board action affected by this review: it only covers “[d]Board decisions that determine an individual’s rights or duties. According to Thomas, rejections of the reopening do not determine the rights and obligations. The reopening of a previous refusal is at the sole discretion, without any law or regulation establishing a right to reopen the procedure. The clear reference by Congress to “rights and obligations” thus displaces any presumption favoring judicial review, and Thomas considered the presumption to be “further undercut” as Salinas undoubtedly had an opportunity for judicial review in 2006 after the board initially rejected his claim would have.
The sharply divided result in Salinas’s favor may come as a bit of a surprise after a hearing in which Kavanaugh – as our analysis found – stood solely for Salinas’ interpretation. Roberts, who ultimately cast a fifth vote for a majority in Sotomayor, was the first to delve into the language of the “rights and obligations” of the Pension Act, and signaled skepticism about whether that text covered discretionary refusals to reopen. But the Chief Justice ultimately refused to join Thomas in accepting this argument, perhaps because he believed the presumption in favor of judicial review broke the tie in Salina’s favor. The Chief Justice has made several key positions on cases where this presumption was used to deny the agencies’ attempts to preclude judicial review, including: US Army Board of Engineers v Hawkes Co. (prominent here in the majority) ; Department of Commerce versus New York (discontinuation of inclusion of a citizenship question in the census); and Free Enterprise Fund against PCAOB (mainly because of its separation of powers, but also because of the solution to important questions about verifiability). Nor are the bosses’ opinions in favor of review stand alone: with few exceptions, the court in recent years has generally interpreted judicial review laws to mean that agencies are held accountable by allowing the courts to do theirs Review decisions. Wednesday’s decision in favor of Salinas continues the trend.