 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 14, 2016                    Decided June 24, 2016

                          No. 14-1251

                         CHRIS STOVIC,
                          PETITIONER

                               v.

   RAILROAD RETIREMENT BOARD AND SOCIAL SECURITY
                  ADMINISTRATION,
                   RESPONDENTS


    On Petition for Review of a Decision of 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: HENDERSON, ROGERS, and KAVANAUGH, Circuit
Judges.

    Opinion    for   the   Court   filed   by   Circuit   Judge
KAVANAUGH.

     KAVANAUGH, Circuit Judge: In 1995, after 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 workers, that Act’s benefits system in essence
substitutes for the Social Security benefits program.

     The distribution of retirement 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 confirming 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 retirement
benefits. Board regulations allow the Board to reopen initial
benefits determinations at any time, under certain
circumstances. In this case, the Board promptly denied
Stovic’s request to reopen.

     Stovic has petitioned this Court to review the Board’s
denial of his request to reopen the 1999 benefits
determination. The Board responds first that this Court lacks
jurisdiction over Stovic’s petition for review. In particular,
                               3
the Board argues that the Railroad Retirement Act does not
provide for judicial review of Board decisions denying
requests to reopen initial benefits determinations. 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 the
Court jurisdiction to review Board decisions denying requests
to reopen initial benefits determinations. However, the
Board’s decision to deny Stovic’s request to reopen was
reasonable. Therefore, we 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 benefits determination.
The courts of appeals are divided on that question. We
conclude that the relevant statutory provisions provide for
judicial review of Board denials 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 Insurance Act sets forth the
following conditions on judicial review: “Any claimant, or
any railway labor organization organized in accordance with
the provisions of the Railway Labor Act [45 U.S.C. 151 et
seq.], of which claimant is a member, or any base-year

    1
      The Court appointed amicus curiae to present arguments in
support of petitioner’s position. Amicus has ably discharged his
responsibilities.
                               4
employer of the claimant, or any other party aggrieved by 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) (emphases 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 Corps 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 decisionmaking process” and
determines legal “rights or obligations”) (quoting Bennett v.
Spear, 520 U.S. 154, 177-78 (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.

     The Board attempts to end-run that straightforward
interpretation of Section 5(f) by reading into the statute an
implicit limitation on the kinds of Board decisions that are
judicially reviewable.      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 of initial benefits determinations,
                                5
not of denied requests to reopen, because Section 5(c) of the
Railroad    Unemployment       Insurance    Act    primarily
encompasses initial benefits determinations. Section 5(c)
does not encompass Board decisions denying requests to
reopen initial benefits 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). None
warrants 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 categories of eligible petitioners. See id. § 355(f) (“any
other party aggrieved by a final decision under subsection (c)
of this section, may . . . obtain a review of any final decision
of the Board”) (emphases 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
omits 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 subsection
                               6
of Section 5. Had Congress intended to limit judicial review
in Section 5(f) to initial benefits determinations, 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 right
to benefits.” 45 U.S.C. § 355(b). Yet Congress declined to
place a limit on what final Board decisions are reviewable.
That further suggests that Congress wanted courts to review
final decisions flowing from the 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 the Social Security Act provides for judicial review
of certain Social Security 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) (emphases added). Note that Section 205(g)
does not provide for judicial review of “any final decision of
the Secretary,” but only of “any final decision 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.

    The Supreme Court has interpreted Section 205(g) to
prohibit judicial review of agency refusals to reopen initial
determinations of Social Security benefits. See Califano v.
Sanders, 430 U.S. 99, 107-08 (1977). In reaching that
conclusion, the Sanders Court emphasized the text of Section
                                7
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 held that denials 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-day
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 decision 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, 573 (3d Cir. 2004); Harris
v. Railroad Retirement Board, 198 F.3d 139, 142 (4th Cir.
1999); Roberts v. Railroad Retirement Board, 346 F.3d 139,
141 (5th Cir. 2003); Steebe v. Railroad Retirement Board, 708
F.2d 250, 255 (7th Cir. 1983); Rivera v. Railroad Retirement
Board, 262 F.3d 1005, 1009 (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 Board decisions denying requests to
reopen initial benefits 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 the word “such” in Section
205(g) refers back to a limited category of decisions: “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). As explained, a Board
decision denying a request to reopen falls easily within 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 textual
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 would similarly “frustrate the goal of ensuring finality
of [Board] decisions.” Cunningham, 392 F.3d at 574; see
also Roberts, 346 F.3d at 141.

     But the 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 in
                                 9
finality would have controlled in Sanders if the Social
Security Act had provided without qualification for judicial
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
Mertens 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 concern about finality as
an absurdity argument. In the Board’s view, it would be
absurd if claimants like Stovic could circumvent 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 – initiated 15


    3
      In any event, judicial review of denials of requests to reopen
serves one key purpose 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.

     Departure 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 an outcome “so bizarre,” “illogical,” or
“glaringly unjust” that “Congress could not plausibly have
intended” that outcome. Demarest v. Manspeaker, 498 U.S.
184, 191 (1991); Conroy v. Aniskoff, 507 U.S. 511, 516
(1993); Ingalls Shipbuilding, Inc. v. Director, Office of
Workers’ Compensation Programs, Department of Labor, 519
U.S. 248, 261 (1997); Mohamad v. Palestinian Authority, 132
S. Ct. 1702, 1707 (2012); see 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 provision to the case, would be so
monstrous, that all mankind would, without hesitation, unite
in rejecting the application”).

     Here, it is not absurd – indeed, not even close to absurd –
to read Section 5(f) to allow judicial review of denied requests
to reopen. It 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, 1373 (2012) (APA
“creates 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 its job when it considers
requests to reopen, that added burden seems quite
                              11
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
occurred in those circuits. Of course, if the added litigation
turns 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 of Section 5(f) grants this Court
jurisdiction to review Board decisions denying requests to
reopen initial benefits determinations. 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 circumscribed. We may
overturn the Board’s denial of a request to reopen only if the
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
supported 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 at
issue was “reasonable and reasonably 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 rather 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 his case, the Board interpreted
Stovic’s letter primarily as a request to reopen pursuant to the
sixth and seventh conditions of its reopener regulation.
Condition six of the regulation provides for reopener to make
certain corrections 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
evidence that was considered when the determination or
decision was made.” Id. § 261.2(c)(7).

     The Board reasonably concluded and explained that
reopener here was inappropriate under either condition.
Stovic did not seek to reopen a decision that he “did not 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 status at the time of the decision. And
Stovic provided little to no explanation of how his initial
decision contained a “clerical error or an error that appears on
                             13
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 denials of requests to reopen
initial benefits determinations. But the scope of judicial
review in such cases is narrow. Here, the Board did not act
unreasonably in denying Stovic’s request to reopen. We
therefore deny Stovic’s petition for review.

                                                 So ordered.
