[00:00:03] Speaker 00:
Case number 14-1251, Chris Stovick, petitioner versus Railroad Retirement Board at L. Mr. Walker for the, excuse me, Emma Kiss-Currie.

[00:00:12] Speaker 00:
Ms.

[00:00:12] Speaker 00:
Cheston for the respondents.

[00:00:41] Speaker 03:
Mr. Walker.

[00:00:44] Speaker 01:
Good morning and may it please the court, Burton Walker, amicus curiae appointed by the court to make arguments in favor of petitioner Chris Stovick.

[00:00:52] Speaker 01:
The Railroad Retirement Act generally provides that beneficiaries may, after exhausting all available administrative remedies, obtain judicial review of, quote, any final decision, unquote, of the Railroad Retirement Board.

[00:01:08] Speaker 01:
The board here no longer contests that petitioner Chris Stovick exhausted all the administrative remedies that were available to him before seeking this court's review of the board's April 3, 2014 letter denying Mr. Stovick's request to reopen his retirement benefits determination.

[00:01:25] Speaker 01:
And understandably so, as a quick review of the board's own regulations make clear that no administrative remedies are available to those whose requests to reopen have been denied by the three-member board.

[00:01:37] Speaker 03:
But he did ask for that to be reconsidered, didn't he?

[00:01:40] Speaker 03:
Later in the year?

[00:01:42] Speaker 01:
I'm sorry.

[00:01:42] Speaker 01:
I'm sorry, Judge.

[00:01:43] Speaker 01:
Under what?

[00:01:44] Speaker 03:
Wasn't there a letter later letter from the letter board saying yes, we met what we said in April.

[00:01:50] Speaker 01:
Yes, Mr Stovick mistakenly tried to appeal the board's April 3rd 2014 decision filing an H one a form with the board

[00:01:59] Speaker 01:
The board replied to him in October 2014 merely reaffirming and standing by his earlier decision.

[00:02:06] Speaker 01:
So the decision before that he's requesting review of before this court is actually the April 3rd, 2014 letter.

[00:02:13] Speaker 01:
And in my opinion, the only remaining

[00:02:16] Speaker 01:
barrier then to this court passing on the merits of Mr. Stovak's petition is deciding whether that April 3rd, 2014 letter constitutes, quote, any final decision of the board.

[00:02:27] Speaker 01:
And in the context of the statute and under settled principles of administrative law, I think that the board's decision fits comfortably within the statutory definition.

[00:02:37] Speaker 01:
The board's decision marked, to paraphrase the Supreme Court in benefit sphere, the consummation of the agency's decision-making process and carried with it the full weight of the authority of the highest authority within the board, within the agency, that is, the three-member board itself.

[00:02:54] Speaker 01:
Now, the board comes before this court and argues that decisions denying requests to reopen are categorically insulated from judicial review.

[00:03:04] Speaker 01:
And I'd like to spend the rest of my time this morning talking about the essentially three justifications the board offers in support of its position and discuss why each of those justifications are misplaced.

[00:03:15] Speaker 01:
First, the board relies heavily on the Supreme Court's 1977 decision, California v. Sanders, in which the court decided that decisions denying requests to reopen under the Social Security Act are not reviewable under that statute.

[00:03:33] Speaker 01:
And instead of actually confirming the board's position, the textual differences between the Social Security Act and the judicial review provision at issue here actually confirm Mr. Stovak's position and that the board's decision is reviewable.

[00:03:48] Speaker 04:
So let me ask you.

[00:03:49] Speaker 04:
You say that the board is conflating who

[00:03:55] Speaker 04:
may seek review with the decision that may be reviewed.

[00:04:00] Speaker 04:
That's arguably one way to read the statute.

[00:04:02] Speaker 04:
But another way to read it is that, since there's that reference back to subsection C, that the statute does have different language than the Social Security Act.

[00:04:17] Speaker 04:
But essentially, it's setting up the same type of procedure.

[00:04:22] Speaker 04:
Now, warranted that the statute of limitations is different, but justice to the other part of your argument about conflating.

[00:04:30] Speaker 01:
Sure, Judge Rogers.

[00:04:31] Speaker 01:
So I think that it would be a very odd way for Congress to have written this statute.

[00:04:36] Speaker 01:
to use the phrase any final decision to refer back to the subsection C qualification that Your Honor is referring to.

[00:04:43] Speaker 01:
And we know from just looking at 45 USC 355 itself that Congress knew how to use the term such as they did in the Social Security Act to refer back to a subset of final decisions in numerous subsections under in 355 itself

[00:04:59] Speaker 04:
Congress uses the term such to qualify its reference back to earlier decisions in subsection C5, in subsection D, in subsection E. Could have, but does the failure to do so necessarily require us to adopt your conflation argument?

[00:05:15] Speaker 04:
That's what I'm getting at.

[00:05:15] Speaker 01:
Sure, Judge Rogers.

[00:05:16] Speaker 01:
And I think that the answer is it doesn't necessarily require the court to adopt my interpretation, but given the strong presumption in favor of judicial review of administrative action, recognized most recently in the El Paso case by this court, in Cucana V. Holder by the Supreme Court in 2009, which requires clear and convincing evidence that Congress meant to preclude judicial review,

[00:05:38] Speaker 01:
It seems that if there is any doubt on the court's part as to which interpretation is the correct one, the tie should go to reviewability and to this court passing on the merits of Mr. Stowe's petition.

[00:05:48] Speaker 04:
And even where the matter to be reviewed is a matter created by agency regulation.

[00:05:54] Speaker 01:
all the more so, in fact, where the matter being reviewed is created by agency regulation.

[00:06:01] Speaker 01:
In fact, in Cucana V. Holder, the court ended by noting the separation of powers concerns that should caution courts, and I'm quoting, from reading legislation absent clear statement to place an executive hands authority

[00:06:14] Speaker 01:
to remove cases from the judiciary's domain.

[00:06:18] Speaker 01:
And no one is arguing, by the way, that the Railroad Retirement Board has to give Mr. Stovak the right to reopen his benefits determination.

[00:06:26] Speaker 01:
But having given him that, it would be quite odd, I think, to suggest that the board's actions, giving itself the power to do so, would insulate those decisions from judicial review.

[00:06:38] Speaker 01:
And I'd like to take a step back, because as your honors have noted, the board's

[00:06:42] Speaker 01:
position is that this subsection C language is kind of determinative here and I'd like to offer a different view of the 355 of section 355 and what Congress was trying to accomplish.

[00:06:54] Speaker 01:
So if you look at kind of go through 355 the board sets up the board kind of bread and butter business is

[00:07:00] Speaker 01:
And the Congress in subsection B of 355 gives the board broad powers to create such processes as it seems proper and necessary to fulfill that duty.

[00:07:17] Speaker 01:
In subsection C, it discusses the kind of

[00:07:20] Speaker 01:
initial claim for benefits that trigger the entire process.

[00:07:26] Speaker 01:
When an applicant comes to the board and says, I deserve an unemployment benefit or a sickness benefit or under the Railroad Retirement Act, an annuity, it describes the minimum due process requirements of the statute for those processes.

[00:07:38] Speaker 01:
And then in the judicial review provision then in subsection F, Congress was trying to say,

[00:07:45] Speaker 01:
We, in writing the statute back in 1937, having given the railroad retirement board these broad powers, cannot

[00:07:55] Speaker 01:
cannot predict all the processes and ancillary decisions that the board might need to require or to create processes that the board might need to create ex ante and decide which of these, we can't predict which processes the board will create.

[00:08:11] Speaker 01:
So we're going to allow the people that are, we know the universal potential claimants in board decisions, that is the people that claim benefits,

[00:08:20] Speaker 01:
as defined in the beginning clause of 355-F.

[00:08:23] Speaker 01:
We're going to allow them, if they exhaust all the administrative remedies available to them, to obtain judicial review of any final decision.

[00:08:30] Speaker 01:
That is, of the final decisions that the board itself sees as necessary to administer and distribute the benefits that it's charged with administering.

[00:08:39] Speaker 03:
What is the end point?

[00:08:42] Speaker 03:
not only the railroad board, but this court could be reviewing Mr. Stovak's tenth denial of a motion to reopen.

[00:08:56] Speaker 01:
Sure.

[00:08:56] Speaker 01:
A couple of responses, Judge Henderson.

[00:08:58] Speaker 01:
First of all, the statute of limitations obviously still apply, so the one-year bar would bar any requests after a final decision.

[00:09:06] Speaker 01:
But moreover, claims of repeated or frivolous litigation are certainly no stranger to this court.

[00:09:15] Speaker 01:
The courts, as well as the administrative agencies, have ways of dealing with them.

[00:09:19] Speaker 01:
I submit that rule 38 could be invoked if there were a case where a litigant was repeatedly making frivolous arguments before both the board and before this court.

[00:09:28] Speaker 01:
And the board, of course, has full authority to try and cabin those things itself.

[00:09:32] Speaker 03:
Well, I'm not talking about this same litigant.

[00:09:34] Speaker 03:
I'm talking about you say it's a small group of people, but 25 a year or something like that that we would be reviewing.

[00:09:43] Speaker 01:
I'm sorry.

[00:09:44] Speaker 01:
I couldn't hear the last part.

[00:09:45] Speaker 03:
I'm not talking about the same litigant doing it over and over again.

[00:09:48] Speaker 03:
I'm talking about 25 refusals to reopen a year that the board rejects and then we have to review.

[00:09:58] Speaker 01:
Sure.

[00:10:01] Speaker 01:
The board itself notes that the potential universe in its brief on page, I think it's 25, notes that the potential universe for claimants is actually quite small.

[00:10:12] Speaker 01:
So I don't think that that's a particularly large concern.

[00:10:16] Speaker 01:
And, of course, the board itself can cabin its ability to reopen in any way it so chooses.

[00:10:23] Speaker 01:
As I said before, the board doesn't have to offer this benefit.

[00:10:29] Speaker 01:
It has given itself this power.

[00:10:32] Speaker 01:
because to ensure greater accuracy of benefit determinations.

[00:10:35] Speaker 01:
In fact, if you look at 20 CFR 260.2 at the list of criteria it uses for deciding whether or not to reopen a benefits determination, most of them are actually geared towards reducing a claimant's benefit.

[00:10:47] Speaker 01:
And so I don't think that the board should be able to escape the judicial review just because some people are complaining that they have done their job inaccurately.

[00:10:54] Speaker 02:
How do you explain the fairly consistent view of the other courts of appeals on this?

[00:11:00] Speaker 01:
Sure.

[00:11:02] Speaker 01:
You know, I would say that none of those courts, if you look through the seven, and I believe it's seven, court of appeals that have decided the question and suggested no reviewability, have done the close textual analysis necessary to understand exactly what Congress was doing here.

[00:11:16] Speaker 01:
Most of them have, like the board before you today, relied almost exclusively on the Supreme Court's Califano decision, which, as I said earlier, is inapplicable because of the clear textual differences.

[00:11:26] Speaker 01:
between the two statutes, or relied on this subsection C language, which is, as I argue, qualifies the class of petitioners at most, but certainly doesn't qualify.

[00:11:36] Speaker 01:
Does it qualify, by the way, all the class of petitioners?

[00:11:38] Speaker 01:
I think that's an open question, Your Honor.

[00:11:40] Speaker 01:
I think, as I said, the best way to look at what Congress is doing in the beginning of 355F is trying to use a shorthand to broadly describe the total universe of claimants that could bring a claim.

[00:11:56] Speaker 01:
To be honest with you, I actually think it might be a null set.

[00:12:00] Speaker 01:
I'm not even sure who and other party under subsection C would be beyond the ones that are actually specifically identified claimants, or employers, railroad, labor organizations.

[00:12:09] Speaker 02:
So you know what I'm asking, does it grieve to modify all the other?

[00:12:14] Speaker 02:
So my final decision under subsection C, I guess it's a rule of the last and a seed.

[00:12:20] Speaker 01:
Right.

[00:12:20] Speaker 01:
Right.

[00:12:22] Speaker 01:
So I think that it doesn't necessarily it does.

[00:12:25] Speaker 01:
Sorry.

[00:12:25] Speaker 01:
Excuse me.

[00:12:26] Speaker 01:
It does not qualify all the preceding categories.

[00:12:29] Speaker 01:
I think that

[00:12:31] Speaker 01:
what Congress was going for when it was talking about other parties agree, was merely trying to describe and get at most broadly the universe of potential claimants.

[00:12:41] Speaker 01:
And it did that by looking at the kinds of decisions it knew the board was going to make, that is regarding the initial claim for benefits.

[00:12:50] Speaker 01:
And so in doing that, it was really just you trying to get at a cash haul to make sure that everyone was included.

[00:12:55] Speaker 01:
That said, Your Honor, Mr. Sebeck is clearly a party aggrieved by a decision under Subsection 6C because of the decisions that he's trying to get reopened are in fact Subsection C decisions.

[00:13:06] Speaker 04:
So let me ask you, in your reply brief, you say the board's position would preclude the review of revised decisions as well.

[00:13:15] Speaker 04:
Why is that so?

[00:13:16] Speaker 04:
In other words, if they grant

[00:13:19] Speaker 04:
and change his benefits to a different figure, a different amount.

[00:13:24] Speaker 04:
And he wants to challenge that.

[00:13:27] Speaker 04:
Why doesn't that come under the discussion?

[00:13:31] Speaker 04:
subsection C that we've been talking about.

[00:13:33] Speaker 01:
Because, Your Honor, as I read subsection C, it pertains merely to claims for benefits.

[00:13:38] Speaker 01:
That is, the initial claim brought by the applicant.

[00:13:42] Speaker 01:
That's the title as every subsection refers to the claim.

[00:13:46] Speaker 01:
A reopening decision doesn't necessarily hinge on any claim at all.

[00:13:49] Speaker 01:
In fact, as I said earlier, most of the time, most of the criteria the board uses to decide whether to reopen are for the board to

[00:13:56] Speaker 01:
to initiate the reopening itself without any claim or applicant being brought or a claim being brought before it.

[00:14:03] Speaker 01:
So it's very hard for me to understand how, if the board is correct, that a reopening decision is not a subsection C decision, how a revised decision would be when neither.

[00:14:14] Speaker 04:
Sort of a no pro toke.

[00:14:16] Speaker 01:
Right, exactly.

[00:14:17] Speaker 01:
Exactly, Your Honor.

[00:14:19] Speaker 01:
And that said, the board offers a

[00:14:23] Speaker 01:
different definition of what it considered to be subsection C decisions.

[00:14:26] Speaker 01:
If you look at page, I think it's 27 of the red brief, they refer to their own regulation, 20 CFR 260.1, which tries to define the list of subsection C decisions, but that regulation

[00:14:41] Speaker 01:
only defines it as, that defines those decisions as those concerning, for example, a withdrawal or modification of a benefit.

[00:14:50] Speaker 01:
If that's the definition, I think all of these are subsection C decisions, and we can all agree that under any interpretation, Mr. Suffolk's petition would be reviewable.

[00:14:59] Speaker 01:
If there are no further questions, I'll reserve them right here, my time.

[00:15:02] Speaker 03:
All right, thank you.

[00:15:06] Speaker 03:
Ms.

[00:15:06] Speaker 03:
Chesley.

[00:15:20] Speaker 05:
Contrary to Amicus's interpretation, the language of the Retirement and Insurance Acts does not allow this court jurisdiction to review the board's denial of reopening Mr. Stovak's 17-year-old case, because it is not a final decision on the merits of an initial benefits ruling.

[00:15:38] Speaker 05:
Now, to directly respond to something that Demikis was just discussing, the board would consider a case in which the board reopens and revises benefits to actually become another initial benefits ruling.

[00:15:53] Speaker 05:
Because in that case, it would have to be remanded back down to the initial benefits level.

[00:15:58] Speaker 05:
And then full appeal rights would attach to the revised decision.

[00:16:02] Speaker 05:
And I believe that is actually something that Demikis stated in his opening brief and then in his reply brief.

[00:16:08] Speaker 05:
actually changed it.

[00:16:11] Speaker 05:
So any time the board revises ruling a final decision, full appeal rights attached to that, and then goes to the initial, the reconsideration, the hearings level, and then again, a case could be brought in the Court of Appeals.

[00:16:27] Speaker 05:
But that is not the case in Mr. Sovik's particular situation.

[00:16:37] Speaker 05:
Plain language of the acts, when taken in context of the entire statute, show that a final decision is a particular type of agency action, and not every agency determination is a final decision.

[00:16:50] Speaker 05:
The phrase any final decision is defined by the earlier phrase in the statute, final decisions under subsection C. That's not a definition, the prior, the earlier use.

[00:17:01] Speaker 02:
It's not it is doesn't say final decision means the means the following or something.

[00:17:07] Speaker 02:
It doesn't say that.

[00:17:08] Speaker 05:
No, but it reduces the category of

[00:17:12] Speaker 05:
any final decision actually makes it somewhat smaller than two final decisions under subsection C. But shouldn't the word such appear there then?

[00:17:22] Speaker 02:
Any such final decision like it did in California versus Sanders and many other decisions, many other statutes, you'll see any other such

[00:17:34] Speaker 05:
It certainly could have appeared there.

[00:17:36] Speaker 05:
However, it didn't.

[00:17:37] Speaker 05:
And however, Congress's intent is clear that it was providing a review for only final decisions of initial benefits determinations.

[00:17:48] Speaker 05:
Because in fact, the ability of the board to reopen someone's case is not in the Railroad Retirement Act at all.

[00:17:54] Speaker 05:
And it has never been in the Railroad Retirement Act.

[00:17:56] Speaker 02:
But you don't dispute it's a final decision.

[00:17:58] Speaker 05:
I would say it's not a final decision as a term of art.

[00:18:02] Speaker 05:
It's not a final, it's not a reviewable final decision.

[00:18:04] Speaker 02:
Right, but you agree it's a final decision.

[00:18:07] Speaker 05:
I agree that in sort of common parlance, yes, it's a decision.

[00:18:11] Speaker 05:
I mean, he could keep asking for it over and over again, so then there would be other decisions on the same topic.

[00:18:16] Speaker 05:
But as it is not reviewable, it is not reviewable under the Railroad Retirement Act.

[00:18:23] Speaker 05:
Now, it does not make sense that Congress would specifically write the Railroad Retirement Act to provide judicial review of something which is not in the act, which is reopening.

[00:18:32] Speaker 05:
Reopening is simply a construct of the Railroad Retirement Board regulations.

[00:18:37] Speaker 02:
And similar to... When you say it would not make sense, you're saying it would be absurd?

[00:18:41] Speaker 02:
Or what are you saying?

[00:18:42] Speaker 05:
I'm not saying it's not absurd in the terms of, you know, the

[00:18:48] Speaker 05:
So if it's not a case where the jail is on fire and then if the inmate escapes then they're put to death because I'm just saying it's illogical basically.

[00:19:00] Speaker 05:
That you need to look at the entire context of the statute.

[00:19:05] Speaker 02:
Why would it be illogical for Congress to provide for judicial review of decisions like these?

[00:19:12] Speaker 05:
I'm saying that it's illogical to think that Congress intended specifically by its language to provide for judicial review of these decisions.

[00:19:19] Speaker 02:
Well, let me disaggregate the language from congressional intent.

[00:19:21] Speaker 02:
You said it would be illogical.

[00:19:23] Speaker 02:
Just as an abstract matter, why would it be illogical for Congress to provide for judicial review?

[00:19:28] Speaker 05:
I think if you look at the History of the Railroad Retirement Act, you can see that the statute of limitations is there from the very first day the act was written.

[00:19:35] Speaker 05:
Whereas reopening is not there.

[00:19:37] Speaker 05:
It's never been there.

[00:19:38] Speaker 05:
Congress was specifically concerned about finality.

[00:19:41] Speaker 05:
And if you look at Sanders versus Califano's, which is actually basically you have to step back and look at the two statutes, the Social Security Act and the Railroad Retirement Act.

[00:19:53] Speaker 05:
Social Security Act provides for initial review, reconsideration, hearings,

[00:20:01] Speaker 05:
the appeals council review, and then review in the district court.

[00:20:04] Speaker 05:
The Railroad Retirement Act provides for initial review, reconsideration, a hearing, and then a board decision, and then appeal to the court of appeals.

[00:20:15] Speaker 05:
So the language in Sanders, which talks about any decision after a hearing,

[00:20:24] Speaker 05:
is actually sort of similar to the language in the Railroad Retirement Act, which talks about administrative exhaustion.

[00:20:30] Speaker 05:
Administrative exhaustion includes a hearing step.

[00:20:33] Speaker 05:
So even though it doesn't say hearing, it basically is incorporating the concept of a hearing.

[00:20:38] Speaker 02:
It's a key word that's different.

[00:20:40] Speaker 02:
Such.

[00:20:41] Speaker 05:
Such.

[00:20:42] Speaker 02:
Yes.

[00:20:42] Speaker 02:
Is in the Social Security Act and not here.

[00:20:45] Speaker 05:
Well, but I think that you just step back and look at both of them are talking about a particular type of decision, a final decision after administrative exhaustion of all the level C. Initial, the reconsideration, the hearings, the board or the appeals council review, and then straight to the court.

[00:21:05] Speaker 05:
These are exactly the same.

[00:21:07] Speaker 05:
This is why the other seven circuits have

[00:21:13] Speaker 05:
found that Sanders is persuasive.

[00:21:16] Speaker 05:
And no circuit has found Amicus's interpretation to be persuasive.

[00:21:24] Speaker 05:
Even the two circuits that found jurisdiction did not use the interpretation of Amicus.

[00:21:31] Speaker 02:
That doesn't mean it's wrong.

[00:21:35] Speaker 02:
We pay close attention to the text and the text of the two statutes is different and I'm not sure it's completely illogical to have judicial review of arbitrary denials of motions to reopen.

[00:21:49] Speaker 05:
Well, there's definitely been no evidence that the board's decision is arbitrary.

[00:21:53] Speaker 02:
Exactly.

[00:21:54] Speaker 02:
And that's on the merits, though.

[00:21:55] Speaker 02:
The question here is whether we even get to look at that question.

[00:21:59] Speaker 02:
Your theory, again, would allow completely arbitrary denial of a motion to reopen to evade judicial review, correct?

[00:22:07] Speaker 02:
Is that correct?

[00:22:09] Speaker 05:
That is correct.

[00:22:09] Speaker 05:
But that is Congress's choice.

[00:22:11] Speaker 05:
That's Congress's intent.

[00:22:12] Speaker 05:
You have to look at the language of the statute in the entire context, similar to the recent Supreme Court decision in King versus Burwell.

[00:22:21] Speaker 05:
You cannot just cherry pick the language of any final decision.

[00:22:24] Speaker 05:
You have to look at it in the context of the entire statute.

[00:22:26] Speaker 05:
It's a final decision under subsection C, which is initial benefits rulings.

[00:22:31] Speaker 02:
And I would say that although, of course, King, I mean, that's cited frequently now for propositions like that.

[00:22:37] Speaker 02:
But the idea there was the statute just wouldn't function as designed.

[00:22:43] Speaker 05:
And I think the statute, as designed, as I said, the one-year statute of limitations was in there.

[00:22:51] Speaker 05:
That was in the 1937 Act.

[00:22:52] Speaker 05:
It has never been changed.

[00:22:54] Speaker 05:
The entire Railroad Retirement Act was completely rewritten in 1974.

[00:22:58] Speaker 05:
And that was never changed.

[00:23:00] Speaker 05:
has never, ever put in the option for reopening.

[00:23:04] Speaker 05:
That is simply something that the board put in in a measure of equity.

[00:23:07] Speaker 05:
But Congress was concerned about finality.

[00:23:10] Speaker 02:
Well, so play that out.

[00:23:12] Speaker 02:
You're talking about practical concerns.

[00:23:14] Speaker 02:
What's the sky is falling?

[00:23:16] Speaker 02:
What's going to happen if

[00:23:18] Speaker 02:
their positions accepted here.

[00:23:20] Speaker 05:
Well, for example, let's take a look at Mr. Stovak.

[00:23:23] Speaker 05:
This is his third court of appeals case that he's brought.

[00:23:27] Speaker 05:
He just had this exact same issue dismissed for lack of jurisdiction in the Third Circuit.

[00:23:34] Speaker 05:
Once he's done here, he could also then go to the Seventh Circuit and bring this same case again.

[00:23:40] Speaker 02:
But isn't it easy enough, assuming this is true in particular cases, to say that the particular claimant's motion reopens

[00:23:48] Speaker 02:
got no merit.

[00:23:50] Speaker 05:
It is, but the Congress did not intend for applicants to be able to file a motion for reopening, have it be denied, and then bring it to

[00:24:04] Speaker 05:
come to the Court of Appeals, in this case 17 years later, based on that denial, and then do it again.

[00:24:09] Speaker 05:
Come back next week, file a motion for reopening, have it be denied, and then come back again.

[00:24:14] Speaker 05:
And he can do this over and over and over again.

[00:24:16] Speaker 05:
That eviscerates the statute of limitation.

[00:24:19] Speaker 05:
That eviscerates Congress' intent for finality and judicial economy.

[00:24:24] Speaker 05:
And in this case,

[00:24:27] Speaker 05:
case.

[00:24:31] Speaker 05:
This is actually his third Court of Appeals case over a period of almost 20 years.

[00:24:38] Speaker 05:
There has been no evidence anywhere that his benefits were incorrectly calculated.

[00:24:44] Speaker 05:
In fact, what he's arguing about is actually he doesn't like the method that the railroad retirement benefits have been calculated since 1974.

[00:24:54] Speaker 05:
He even admits that he has no new evidence in his case.

[00:25:02] Speaker 05:
And he's strictly arguing about

[00:25:06] Speaker 05:
the law isn't like the way that the law has been written.

[00:25:09] Speaker 05:
And I think if you look at California versus Sanders, the Supreme Court basically showed that Congress, that there did not need to be a presumption of judicial review in the social security context, which is similar for the right of retirement benefits.

[00:25:30] Speaker 05:
The presumption was not needed to enforce congressional design in enacting the statute, because the congressional design was designed for finality.

[00:25:41] Speaker 05:
So therefore, the presumption of judicial review is needed to enforce congressional intention.

[00:25:46] Speaker 05:
But here, it's not needed, because it's clear that congressional intention was just to have review of initial benefits decisions.

[00:25:57] Speaker 05:
And the Railroad Retirement Act itself has multiple layers of administrative review and up to one year to appeal, which is actually more generous than Social Security, which only has 60 days.

[00:26:10] Speaker 05:
And yet Congress has upheld in standards the fact that there is no judicial review option for Social Security recipients, which I may say that's actually 59 million Americans.

[00:26:22] Speaker 02:
Why does the board allow reopening motions?

[00:26:26] Speaker 05:
pardon me.

[00:26:26] Speaker 02:
Why does the board allow reopening motions?

[00:26:30] Speaker 05:
Why did the board?

[00:26:32] Speaker 02:
Why does it as a general matter have a regulation for purposes of equity?

[00:26:38] Speaker 02:
Because decisions, original decisions, could be wrong.

[00:26:41] Speaker 05:
Right.

[00:26:42] Speaker 05:
It could be wrong.

[00:26:42] Speaker 05:
It has various regulations.

[00:26:45] Speaker 05:
If you have new evidence, it sort of mirrors the social security regulations.

[00:26:49] Speaker 05:
If within one year you can reopen it at any time, that's basically the same amount of time you would have to appeal it.

[00:26:57] Speaker 05:
appeal it or you could try to get a reopen.

[00:26:59] Speaker 05:
Sometimes a claimant will try to get a reopen.

[00:27:02] Speaker 05:
It's still within the one year.

[00:27:03] Speaker 05:
Maybe it's denied.

[00:27:04] Speaker 05:
Then they just still go and appeal it to the court of appeals because it's still within that one period.

[00:27:10] Speaker 05:
Within four years, you have various levels of review.

[00:27:14] Speaker 05:
You have new evidence or clear errors on the face.

[00:27:16] Speaker 02:
But the point is that finality is not the end all and be all because the board itself allows reopening.

[00:27:24] Speaker 05:
The board allows reopening as a matter of equity.

[00:27:27] Speaker 05:
However, Congress was extremely concerned about finality.

[00:27:31] Speaker 05:
As I said, from 1937, that statute of limitations was put in the act.

[00:27:37] Speaker 05:
It has never been changed.

[00:27:38] Speaker 05:
It was never amended.

[00:27:39] Speaker 05:
And similarly, Congress rewrote the entire Railroad Retirement Act in 1974, never put in anything about reopening.

[00:27:49] Speaker 05:
It's simply a creation of the board's regulations.

[00:27:53] Speaker 04:
So the equity concern rises in part that many of these are carprose benefit recipients who may not understand what's going on and need some additional explanation?

[00:28:07] Speaker 03:
I thought it was because these are subject to continual recalculation and recomputation as his was.

[00:28:14] Speaker 03:
They increased his social security and that reduced his railroad.

[00:28:21] Speaker 03:
I mean, I'm asking the same question, I think, as Judge Rogers.

[00:28:24] Speaker 03:
What is the equity involved?

[00:28:27] Speaker 03:
Is it because there is this cyclical changing of benefits?

[00:28:35] Speaker 05:
The retirement board is run by a three-member board.

[00:28:40] Speaker 05:
There's a labor member, a management member, and a sort of neutral

[00:28:44] Speaker 05:
chairman.

[00:28:45] Speaker 05:
So therefore, and it's an industry-specific organization, so all the laws are partially created by its own industry.

[00:28:55] Speaker 05:
So it wants to make sure, you know, the rare return where it's extremely.

[00:29:00] Speaker 03:
I thought it was tied to the social security benefits.

[00:29:03] Speaker 05:
We also pay social security benefits.

[00:29:06] Speaker 03:
But you don't determine the social security benefits.

[00:29:08] Speaker 03:
We don't determine the social security benefits.

[00:29:10] Speaker 03:
So isn't that what happened with this fellow?

[00:29:13] Speaker 05:
No.

[00:29:13] Speaker 05:
It is confusing, but basically what happens is if you work for a railroad and you work for a non-railroad organization, we take the Social Security money and we attach it, we add it to your railroad money and we pay you

[00:29:32] Speaker 05:
the money.

[00:29:32] Speaker 05:
And you usually get it earlier because you can retire earlier under railroad retirement.

[00:29:37] Speaker 05:
Then when you come into the Social Security benefit, you get a letter from Social Security saying, oh, here's your Social Security money.

[00:29:44] Speaker 05:
But you've already been getting it.

[00:29:45] Speaker 05:
You've been getting it the whole time.

[00:29:46] Speaker 05:
And so we say, well,

[00:29:49] Speaker 05:
Basically, we're going to deduct that extra money that Social Security is now giving you because you already are getting it.

[00:29:57] Speaker 05:
But what happens with a lot of the claimants is they see the letter from Social Security and they think, oh, I'm going to get an extra $500.

[00:30:04] Speaker 05:
They don't realize they've already been getting that extra $500 for several years, which is actually one reason people get more money out of the rear of retirement than under Social Security.

[00:30:13] Speaker 03:
Let me ask this then.

[00:30:15] Speaker 03:
With someone like Stovak,

[00:30:17] Speaker 03:
Does his Social Security payment change as other Social Security recipients' payments change?

[00:30:24] Speaker 05:
Like cost of living increases?

[00:30:26] Speaker 05:
Yes.

[00:30:27] Speaker 05:
And he can appeal every cost of living increase.

[00:30:30] Speaker 05:
Every time there's a new cost of living increase, that's a new initial benefits determination.

[00:30:34] Speaker 05:
He could appeal that.

[00:30:34] Speaker 05:
But he's still trying to appeal his initial benefits determination from 17 years ago.

[00:30:41] Speaker 04:
So let me just be clear, your response to Judge Henderson was that once you start receiving social security benefits, then that amount is deducted.

[00:30:58] Speaker 04:
That is a new initial determination, and therefore you get judicial review.

[00:31:08] Speaker 05:
I believe, yes, I believe that would be a new judicial determination.

[00:31:12] Speaker 05:
Because I believe that that was his 99 days.

[00:31:16] Speaker 05:
The 99 board decision was based on the receipt of the Social Security benefits.

[00:31:20] Speaker 05:
He had an earlier board decision, which I think was in 1996, which he also didn't appeal.

[00:31:26] Speaker 05:
And that was really just based on the vested dual benefit, which I discussed a little bit in our brief, which is really confusing.

[00:31:32] Speaker 05:
The 1990 case, I believe, was his receipt of the Social Security bonus.

[00:31:37] Speaker 05:
But he already was receiving them.

[00:31:38] Speaker 04:
He just didn't realize it.

[00:31:39] Speaker 04:
So railroad retirement, is there a cost of living, or is it an initial sum that isn't?

[00:31:45] Speaker 05:
There is initial settlement that you get cost of living, just like Social Security.

[00:31:50] Speaker 05:
I mean, basically, it is.

[00:31:51] Speaker 04:
It's Social Security plus the pension.

[00:31:53] Speaker 04:
So let me just be clear.

[00:31:54] Speaker 04:
Every time there's a change in the amount of money he receives because of a cost of living adjustment, whether it's under the Railroad Act or the Social Security Act, that is a new initial determination?

[00:32:11] Speaker 05:
Yes, but just as far as the cost of living increase.

[00:32:14] Speaker 05:
And that's the same with social security.

[00:32:17] Speaker 04:
So let me just be clear.

[00:32:18] Speaker 04:
If I was receiving $1,000 a month, and then cost of living kicks in, and I'm receiving $700 a month, even though those are just automatic calculations, arithmetic calculations, that $700 determination is viewed by the board as an initial decision?

[00:32:43] Speaker 04:
Yes.

[00:32:45] Speaker 05:
The cost of living increase, yes.

[00:32:50] Speaker 04:
We just want to be clear about that.

[00:32:54] Speaker 04:
So Mr. Stovak can keep coming back, keep coming back, keep coming back.

[00:32:58] Speaker 04:
Only about the cost of living increase.

[00:33:00] Speaker 04:
I don't understand what that means when you say only.

[00:33:03] Speaker 04:
I'm receiving $700 and the board says that's because of a 2% cost of living adjustment.

[00:33:12] Speaker 04:
So what can he appeal?

[00:33:14] Speaker 05:
It would be more like you were receiving, say, $700, and you'd get an extra $30 because of the cost of living adjustments.

[00:33:21] Speaker 05:
Now you're getting $730.

[00:33:22] Speaker 05:
And we'll clearly say that in the information you would get.

[00:33:26] Speaker 05:
Then you can appeal the $30.

[00:33:27] Speaker 05:
You can say, well, I don't think that's correct.

[00:33:30] Speaker 05:
I think it should be $32.

[00:33:32] Speaker 05:
That becomes another initial benefit.

[00:33:34] Speaker 03:
But then that gets deducted from the railroad for somebody who's grandfather gets a boat.

[00:33:42] Speaker 05:
The grandfather is a totally separate issue from the deduction of the social security.

[00:33:49] Speaker 05:
That's the best of dual benefits.

[00:33:51] Speaker 05:
The deduction of the social security is really just a procedural issue because they're already getting the social security.

[00:33:57] Speaker 05:
So they can't get it twice.

[00:33:59] Speaker 05:
That's the thing.

[00:34:00] Speaker 05:
And it's just sort of the way the system is.

[00:34:04] Speaker 05:
is that it's sometimes difficult to understand that.

[00:34:07] Speaker 04:
Well, you should have quoted Amicus's brief, where he says, calculating Stovak's benefits under the RRA is incredibly complicated.

[00:34:15] Speaker 04:
It is.

[00:34:15] Speaker 05:
And Amicus and I actually have discussed it.

[00:34:19] Speaker 05:
We both were trying to make sure that his benefits were correctly calculated, which they are.

[00:34:25] Speaker 05:
But if the court has no further questions.

[00:34:27] Speaker 03:
All right, thank you.

[00:34:28] Speaker 03:
Does Mr. Walker have any time to?

[00:34:32] Speaker 03:
Why don't you take two minutes?

[00:34:34] Speaker 03:
if you do.

[00:34:35] Speaker 01:
Thank you, Your Honor.

[00:34:36] Speaker 01:
I'll just make a couple quick points in response.

[00:34:40] Speaker 01:
First, counsel argued that it doesn't make any sense for Congress to have allowed for judicial review of any final decision beyond the initial benefits determination, in particular invoking Congress's concern for finality.

[00:34:54] Speaker 01:
I don't think that's true in a world

[00:34:56] Speaker 01:
as here where Congress has provided that the board may create such procedures and hearings as is necessary to administer the act.

[00:35:08] Speaker 01:
Congress was, in its infinite wisdom, not new.

[00:35:11] Speaker 01:
They couldn't predict what kinds of procedures the board would find necessary.

[00:35:15] Speaker 01:
the court to read into it.

[00:35:26] Speaker 01:
Second, the board council of the board reference the previous 3rd Circuit.

[00:35:33] Speaker 01:
Decisions.

[00:35:34] Speaker 01:
This is, to be clear, Mr. Stovick's first request for a reopening.

[00:35:39] Speaker 01:
The previous Third Circuit decisions were, one, he in 1999 prematurely sought review before he had exhausted his administrative appeals of the revised decision.

[00:35:51] Speaker 01:
And then a couple of years ago in 2013, when the board, at least in Mr. Stovick's mind, was not adequately responding to his request for information, tried to go to the Third Circuit.

[00:36:02] Speaker 01:
They dismissed again for lack of jurisdiction because he again had not administrative exhausted his options.

[00:36:08] Speaker 01:
But they this was, as I said, his first request for reopening.

[00:36:12] Speaker 01:
The board does not dispute that.

[00:36:13] Speaker 01:
And lastly, I just want to make a point about King B. Burwell.

[00:36:16] Speaker 01:
In King B. Burwell, the court used context

[00:36:19] Speaker 01:
to kind of undermine or, I shouldn't say undermine, but change or alter the otherwise plain meaning of a phrase in a statute.

[00:36:26] Speaker 01:
Here, the board is trying to use context.

[00:36:28] Speaker 01:
Well, here, the context actually confirms the plain meaning of the statute, which is that any final decision of the board here, the denial of Mr. Sobich's request, is reviewable.

[00:36:39] Speaker 01:
Thank you.

[00:36:40] Speaker 03:
All right, Mr. Walker, you were appointed by the court to represent Mr. Stovak, and I'm sure you didn't realize you needed to be an accountant as well, but we thank you very much for your parietal assistance.

[00:36:50] Speaker 03:
Thank you, Judge Henderson.