for three reasons payment by an employer to an employee for lost wages under field is compensation under section thirty two thirty one one of the railroad retirement tax act or  hammer sure i mean although the respondent argues the employer is subject on his fall back but generally to answer your question the employer cares because under a system that would credit all lost wages feel awards to retirement benefits but without n d any tax burden has a long term risk of insolvency or instability to the system so there's a short term savings to be sure and generally people don't like to pay taxes for the sake of taxes but the entire purpose of this tax act is to fund the retirement benefits for railroad employees and pensions are good for the railroads so that's the answer they could get to the three reasons first award but did you in fact pay anything any federal taxes before him yes so all nine thousand has been paid the six thousand portion of the employer share was paid and three thousand was withheld from the payment of the filo award to account for the employee share and the railroad and the reason why the dispute came up is the railroad wants an offset for the three thousand that should have been withheld from their own employee so you get to the  statutory text and the first reason is the statutory texan structure make clear that such a payment is for services rendered and that employees need not be an active service to pay for services rendered second a payment for lost wages is no different from the workers compensation sickness and disability pay that responded agrees count as compensation and third taxing a payment for lost wages under field furthers the r t s purpose to fund benefits under the robert retirement act there are a first a payment for lost wages under feel is remuneration paid for services rendered as an employee under subsection a one a payment for lost wages under feel a compensates the employee because he rendered services but until the time of injury indeed by definition an employee cannot recover lost wages under field unless he had been rendering services at the time of injury additionally this court in iraq go and quality stores interpreted virtually identical language under the social security act and fica there this court interpreted the phrase respond to the short respond that argues that it's discredited under cleveland indians for the very last portion of iraq which has nothing to do with the question here so the very last two paragraphs of iraq go said that you credit the amount of lost wages in the in the period for which there aren't and then cleveland indians came along and the i r s said yeah we know that but we want to credit fica in the period paid and so in the opinion for the court cleveland indian said we recognize that the two should go in tandem but we're going to defer to the i r s irises allocation and here there's a much more substantive distinction because the employer wants all the benefits under the benefit statute but not of the ability but i think your other question went to the discredited this i think you mean somehow in one thousand nine hundred six the court wasn't reading the text i think that's their argument i think that's their argument i think it's certainly wrong we fit the plain language because the employee rendered services and nothing in the text says that you can't be paid for periods of time when you're not in active services because you rendered services but the court purported to be interpreted in the phrase services performed and you can say pragmatically but i think it's also textually that when you have an employment relationship and you compensate the employee that's generally for services performed well close to what i think of the wages for services performed and maybe it's too simplistic but i doubt it we'll see i think of it is the compensation that a an employer voluntarily gives the employee so not just the hourly wage but the sick time vacation time might be included as part of the package for the services when you are present include the payment i think of the judgment of a court for negligence get awarded in voluntarily against the employer's consent is something very different what's wrong with it ok i don't want called simplistic but i do think it's wrong go ahead ok here's why i mean there's absolutely nothing in the statute that makes anything that you said relevant it just has to be a payment for services rendered and nothing in the statu distinguishes between a legal obligation arising under your contract well but see that's not services rendered is that it's payment for a judgment of a court right and you can have a disability payment that comes in the form of judgment he concedes that worker compensation is covered the judgment or bad pay award in iraq go was a judgment based on a wrongful discharge by violation of a statute but there's just nothing in that in the sense of the payment that it says it has to be either from at think  concede settlements count so i don't know why it's a different than a court ordered the payment i mean there's there's really no basis i guess there's a tough line drawing problem here and i have some questions for the other side on that but if you just in isolation deal with the feel of judgment compared with say sick and vacation time sure i think maybe you're going to fall versus a no fault scheme and nothing in the statute says there has to be fault or no fault it's just like worker's compensation  he concedes as payment for services rendered you just don't have to prove negligence but if you suing to get maternity leave you have to prove you're pregnant if you're suing to get disability leave you have to prove that you're disabled if you're suing for worker's compensation you have to prove that it was service connected the injury so i think what you're saying is if you have to sue you can't be paid for services rendered but if the employer pays it voluntarily that definitely is a textual as a practical matter going back to a part of justice course which is question in most state law verdicts there is just a payment it's a general verdict how are you going to figure out which part of the your ward to subject to expenses so we know the amounts under feeling but we may not know them in general for of course i mean his argument more purchase a new situation no because under the railroad retirement act section two thirty one age two this is been around since one thousand nine hundred six there's a presumption that a personal injury ward the entire amount is treated for last time and let me just point you to the j on seventy eight board gives you sort of the the current the way they treat this but let me go back to the statute the statute says all of it counts for last time however the parties can take out any amount that they want to allocate for reasons other than last time so the parties are free to say whatever they want they can say that ten dollars was last time they can say all of that was last time so in a general verdict situation you know i think what the rb would say is we're going to count it all as last time unless there's an allocation made now what we're spondon tries to say is well somehow there's some shenanigans going on because you know there might be a reason to attribute it last to last time on the taxing side but let me tell you what's going to happen if we lose because of h two if we lose a employee can take an entire judgment no matter what was devoted to last time and get full credit and pay zero tax and the incentive will be there's no downside to doing that so you would take all of it and get your credit and pay absolutely no taxes and that's just h two in the statute there's the our guidance on it  estes office can you know confirm all this but that's just the way this is been treated now in the state cases that have addressed the issue have said that we'll use the same allocation scheme on the taxing side so all three at least state supreme courts to addressed it the employer if they were forced and i don't know this because of the employer's wrongdoing i mean that's just an alternative way of looking at it you don't have to look at it that way but if you are right about that theory why wouldn't the pain and suffering component also count well  because the pain and suffering is not payment for services rendered in the same way a loss wage a war it is and if i understood your theory it was something like it happened while he was on the job and therefore what follows is is  is can be understood as services rendered you know and the pain and suffering as well as well you were injured on the job and that's why you had this pain and suffering sure it's not payment for services rendered in the same way because the amount of lost wages is directly tied to the salary for services rendered and pain and suffering amount has nothing to do with your salary or employment or anything else about the employment relationship plus there's a strong textual argument you don't have to take my analysis congress has already distinguished between last time pay and other factors associated with the personal injury award so congress has said the parties are free to only count as a personal injury award just a lost wages so congress was debating this back in one thousand forty six these all these issues about what to do with things that were associated with other lost time and they settled on this we're going to presume it's all counted but we'll let you take out anything that's not related to lost wages  of the court of appeals relied heavily on the fact that congress and seventy five ninety three took out the reference to payment for time loss short so i mean let's start again with for the first principles under that view that takes out everything the vacation the holiday everything so that's fine and i think that respondent doesn't concedes that away and doesn't defend it for good reason and that's because  the rule against superfluity has the provisions in the one in the four that are time lost payments for workers compensation sickness and disability and those exceptions wouldn't be in there and less they were otherwise included within the operative definition but just as cavanagh let's look at the timing and i think that this is pretty dispositive as well congress added the sickness worker's compensation and disability payments in one thousand nine hundred seven and then amended them in  hundred one so that was after congress took out the including ration paid for services rendered seventy five and then when congress took out in one thousand nine hundred three i'm sorry in seventy five when congress took out the phrase then they added the exceptions later they also left in seven references to time lost in personal injury and two so we know that congress continued to think that time lost payments were covered now comes one thousand nine hundred three and congress takes out too but it didn't change the operative definition anyone and it left in all the exceptions for workers compensation sickness and disability that presuppose time lost is covered so i do think that definition i'm going to briefly go over the want to for argument if i could just putting this is the argument that respondent makes is a back up that because personal injury wards are excluded from gross income under  and an employee is taxed on his or her income you should take out gross income and i'm not going to have to explain it past that point but that's the beginning of his argument the problem with that is first of all thirty two a one the tax the statute that taxes on income does not use the word gross income it just says income and no matter what word you use we think it just describes the source of the tax and if you just look at the language the employees income has no bearing on it that the tax base or the amount of tax is just describing the source and that tax base is identically defined for the employer in section thirty two twenty one so it is a textural matter it can't be different and finally congress incorporated nine express exclusion from gross income into the definition of compensation showing congress knew how to incorporate gross exclusions when they wanted to and section one to force not one of them and if i could reserve the remainder of my time thank justice and may please the court as respondent now concedes the eighth circuit misconstrued the r t a when it's held that compensation includes only payments for hours when the employee is an active service to the employer the holding that would exclude sick leave make ation pay and severance there are three main sources that each stablished instead compensation includes employer payments for hours when an employee is absent from active service including time lost starting with text the r t a contains limited exclusions for workers compensation benefits and for certain types of sickness and disability benefits those exclusions would be superfluous if the term compensation only reached payments for periods of active service as to precedent since one thousand nine hundred forty six this court has construed parallel language in the social security act to reach all payments arising out of the employer employee relationship including time lost and justice kavanagh to your question about whether that continues to be good law this court reaffirmed that precedent of it applied it in quality stores just in two thousand and fourteen and those decisions support also construing in the or to reach time last and  this interpretation appropriately reflects the interlocking structure of the or r t a and the parallel benefit statute known as the r r a time lost payments count as compensation under the r and a and are credited towards an employee's retirement benefits interpretive you are th definition to cover those payments create symmetry between interrelated tax and benefit provisions and if i could start by just turning to just justice course which is a question about why it's not different that this payment is essentially a statutorily mandated payment there were the results from a judgment at the end of the day we think there are two main sources that show that the fact that it's a legal obligation doesn't make a difference the first is in the statutory text the workers compensation carve out is really appropriate is really important because it shows that it could be that's where i get stuck to i got some questions about that if your friend on the other side what's your other one the other one is in iraq which also involves essentially judgment what we should be the fact that the i r s doesn't appear you might correct me since nine hundred eighty at least to bring in foresman actions to assess penalties or back taxes to a railroad employee who has did not withhold a portion of the feel of judgment so we don't think that's exactly correct just sort of my or so i think to understand the i r s his position the most relevant  pay the employees share and then it pays but shares i would be curious your answer to just to sort of lawyer and justice kagan is questions earlier so what do we do about a general verdict where there is no allocation between what might be later thought by some to be compensation for lost services and other other things what we do about the pain and suffering which might be classified as compensation for lost time as well what's the government's view on those complications ye material by this in the jail there is sort of detailed guidance on allocation from the r r b but i think if there is no allocation the presumption is it's going to be treated as time last i think there are be says nonetheless the employer and the who contemplates that when you have a judgment it's going to contain in part taxable payments for time lost and also other kinds of damages and that you're going to need to divide those two things up to figure out you know what's compensation and we think there's a common sense reason for treating pain and suffering as different which is lost last time payments are a substitute for something that's taxable there are substitute for wages that the employee would have been taxed on  and they're getting credited to your benefits on the or b side in contrast opinion suffering judgment is essentially putting you in the place you would be if you had lost some sort of psychic or physical wellbeing that wouldn't have been taxed so we think it's understandable that congress in making those reflected in the history to come to one of the things that strikes me is a little bit about an award like this fitting into the services rendered language is that unlike most kinds of compensation that you can think of  you could get this if you were injured your first hour on the job without having worked at all without having rendered and these services so what about that well i think there are a number of forms of compensation that operate like that you know just such so one example that in iraq who gave us something that would be compensation and that it was thinking of is like payment for when you're required to be paid for jury service i mean that's a benefit you would be entitled to on day one is necessarily correlate areas you work but it's a benefit you get as an employee another example be like maternity leave certain kinds of circumstances i think there are a whole bunch of benefits that you get as part of your sort of employee compensation that don't exactly correlate to individual hours that you work and even setting aside all of these you know textual and presidential indicators you know we know that this is been the position of the agency since the statute was enacted nine hundred thirty seven congress has amended the statute many times against that backdrop and it hasn't chosen to change that it is the interpretation so i think this is your interpretation that's informed what congress has done its added exclusions that don't really make sense unless time lost is covered without changing the agency's interpretation so under principles of acquiescence and chevron deference if there were ambiguity i think the agencies interpretation would control position is that the plain language controls and that the statute now in effect does not contain all the words an extra provisions that get you to a place where services rendered means not services rendered which is the core of the other side's position services rendered has a very plain meaning it is providing work under the supervision of the other person when mr los was injured here he was unable to provide services to the payments that he received was that he couldn't work and it was the railroads negligence it's not just somebody off the street who couldn't work it was an employee who couldn't work and he was an employee because he had rendered services right but he hadn't rendered the services that's the whole point he was unable to render the services because he was hurt so let me explain a little bit about how day call works in a union hall here mr lowe's was subject under the union terms to be in a union hall and if he's called into a crew he makes money he gets paid for that day if he's unable to make it to the union hall because he's injured it's considered nothing he doesn't get paid for that he doesn't accrue any vacation pay for that and the whole point of the f e l a judgment here was that because he was insured he was unable to be in the union hall at the time the railroad called for people to serve on their crews so if you were to suppose that mr low's was walking along at the time he was injured and he was with a non railroad employee and suppose that non railroad employee was worth the coal company and they both fell into the drainage part pit because of the negligence of the railroad you wouldn't say that the past wages or the lost wages that the coal company employee suffered by the railroads negligence was quote for services rendered you wouldn't say that at all there would be no basis for saying that and so it's odd to suppose simply because mr lowe's is capable subject to being called into duty status for the crew the she differently a lot of these kinds of arguments were made and neurotic go on and the court rejected those in the admittedly in the context of the social security act but why not follow the same interpretation here well what the cordon iraq code did was it it construed the benefit statute and what cleveland indians says and is absolutely clear is that you do not construe the tax statute the same as the benefit statute the the case of his the cleveland indians was about the allocation time period it wasn't about the main holding of iraq go in terms of how it departed from morocco it's not right but the interpret method that the court of poor did was different in the storeroom but the precedent on point interprets says the time lost is part of services rendered or services performed in the context of the social security act so why not hear that same interpretation in this context because this court to my knowledge has not ever said that you construe taxing statutes by looking at benefit statues and that is what exactly what craig cleveland indians holds that's also what the case of his care holds his care was directly on point for the railroad retirement tax act the other side has no discussion about the language in that opinion which says that r r t a taxes are to be construed differently than the that it wasn't required to pay a refund yes in fact the railroad didn't pay the tax until the cases on appeal in the eighth circuit it did not pay the tax you know at the time of the judgment it waited as a means presumably to enhance the persuasiveness of its argument on appeal now justice course if you want to address your worker's compensation i was going to ask you if you didn't volunteer yes they're there let me begin by giving a little bit of history if i could the f e l a was enacted prior to most states in acting workers compensation statutes and it has been held by this court to preempt the f e l a to preempt workers compensation statutes so the only time where there is actually an overlap is where you have a purely purely in trust state railroad thought a follow all of that and your footnote nine was excellent explaining that but my question still remains  judgment of an administrative agency in a state setting even a minimal interest state accident is you would concede i believe compensation for wages than what why wouldn't a federal interstate feel a judge would workers compensation has always been treated differently in the sense that ensure the employees in the employer contributes to an insurance fund it's no fault insurance and for that reason it is up i think appropriately deemed to be an additional payment that is for services rendered in the same way that sick pay accumulates over time it in the appropriate circumstances it didn't for mr lowe's but a vacation pay if you're a federal employee you have a forty hour pay stub in a shows a certain number of hours that you've accrued for vacation pay those are all for the services that you rendered as an employee now with respect to workers compensation because it's an insurance scheme that is no fault it operates in and a very different way in terms of how it is funded there's no prefunding on the part of the railroad for f t l a damages the whole point of the f e l a is to impose a duty  care on the industry soon that workers are not being injured as a result of the railroads negligence and that's why the justice brandeis in the winfield case in the early one nine hundred twenty s made very clear that judgment is a penalty for the breach of a duty of due care and justice scalia in his separate writing in cleveland indians said in his view the question is different as to whether or not it is a court ordered judgment that is not the way you ordinarily think of wages paid which is the way that the phrase is used under fica so if you look at these textual differences the line drawing i think just discourse which is actually pretty straightforward you ask the question is the work in the pay here the compensation for services rendered and if it's not which clearly it couldn't be here because mr low's was an able to render services and it is our side the realm of the or put an awful lot of weight on that but i can easily imagine an employer explaining how we work in this company we work in this company is that we pay you for services rendered by the way services rendered include christmas day so you are not here by the way it includes when you have a cold or sicker if you say that we have that we count all that is from payment for services rendered that person is speaking english so their first  is at least it's ambiguous their second argument is go look at all these changes that happened in the statute over those years you know what they were arguing about they were arguing about what the a tax it at the time you would have worked or you tax it when you get it after the judgment now they never thought you didn't get it at all and the argument about the two statutes is it's a plus we're not saying it's necessary but it's a plus to treat the taxing statute symmetrical within their final argument is that the hate eighty years is a long time justice blackmun used to complain about all these changes and indeed eighty years congress has done nothing ok you've responded to some i just want to be sure you get a chance to respond to all well if i don't get them all in this response just as prior please feel free to interrupt me but on the history point the other side notwithstanding our challenge cannot give you one instance not one where the i r s issued a deficiency notice because there had been a failure to pay our taxes for an appeal a judgment if you look at the federal judicial center's website there's been something like seventy one thousand f e l suits filed just since one nine hundred seventy now surely if this had been the way the taxing service had been construing the statute there be at least one dollar deposited from the treasury as a result of an f judgment and a deficiency notice for a failure to do that this is all a new argument and the reason why the railroad has come up with this new argument is simply to change the settlement dynamics that are going on and  by changing those settlement dynamics they are seeking to impose the interim threat of a taxation on the employee at the time when there's a negotiation explain that to me sure it would are they going to do what they do when there is a settlement negotiations just to sort of mine or the question is will you will we pay you now for your range of damages or will you run the risk of going to court and is part of that favor in terms of considering i've been asked to settle the case there's a settlement under feel action x amount of money it has to be attributed to something correct or you know it doesn't actually they're there i don't understand their textual argument for that at all because what they're asking for you to do is to accept the idea that the railroad retirement board somehow has the administrative authority to construe a taxing statute and that's never been the case where you have a benefit agency construing the taxing statute the taxing statute is construed by the i r s now if you look at the sources in error footnotes two three and four in arab brief they make very clear that the i r s in a in interpretations that post date the sources that they're talking about here say that when  personal injury award it is not subject to income tax and in the first one the citation that is on footnote two of our brief the i r s specifically mentions that this would apply in the railroad retirement tax act concert context as well that i think is on page thirteen or fourteen of that particular reference they hang their hat on this nine hundred eighty  don't like this the so called tam but i'd like to point out that the under the code section sixty one ten k three of title twenty six congress has said unless the secretary otherwise establishes by regulations a written determination may not be used or cited as precedent which is probably why that technical advice memorandum isn't cited i solicitor general's brief although counsel today has invoked that as supposed authority but i would point out secondly that this tam this one nine hundred eighty reference concerns a version of the statute that no longer exists it was part of the stack it was construing a statute that was in effect up until my nine hundred seventy five and justice cavanagh you're correct at that time that's when the time lost language was taken out of the stand that nine hundred eighty tam was construing the previous version of the statute that doesn't exist anymore so for purposes of understanding where there has been consistency or inconsistency there has been rank inconsistency because the i r s has has said different things in different means that are entitled to different levels of respect and so i mean why do you think the language really take it in i think there  i it's actually a good question justice ginsburg the intimation in the railroads brief here is that the railroad thought it would be easier to administer a without having that language but there is no there are no statements or legislative history  suggest exactly why one theory could be that the reason why the time lost language had been added was to implement what was called the washington agreement a late thirty's and the washington agreement was a deal struck between rail labor and the railroads with the idea of treating other what was going on at the time in the industry of a lot of unsettlement settlement where workers who had been working for a one way all road were part of who got caught up in the mergers they lost the ability to maintain higher paying jobs and the washington agreement was to deal with what were called displacement allowances these displacement allowances w to be time lost in that era and it could very well have been that by the one nine hundred seventy s this whole reason for that concept had was no longer in effect now the issue in that nine hundred eighty technical is a change didn't affect what was being taxed which was services rendered so whether you time or stand that bit of change you didn't need the way in which anymore is what is the argument right the time lost language anymore because the the allocation of changed well that's the argument their argument goes beyond that just as kavanagh and that's when they are saying that the words including time lost somehow make services rendered mean not services rendered because time lost is somehow an example or an illustration of the concept of services rendered as a matter of plain english that makes absolutely no sense and we've given a bunch of statutory examples in our brief  congress would use the word including to be additive like in the longshore act where the situs requirement is imposed on the navigable waters including piers now i don't think anybody in this room today would think that appear navigable water but yet that's how congress chose to express itself and i would submit that the idea of time lost under no reasonable understanding of the english language would be services rendered either so what you're left with here is what the eighth circuit deemed to be a very clear stance you where the taxation that was sought to be imposed here was on a an f e l a judgment rather than on what services rendered and one other note about the circuit panel this court in wisconsin central just last term construed the earlier part of that provision the money remuneration the eight circuit panel that decided this case also had decided a case called union pacific which handled the exact question at issue in wisconsin central and decided it correctly as his court opined it was the same panel that handled both issues and this court sided with approval the union pacific decision i wanted a key move in the eighth circuit decision was interpreted in iraq oh and then it's we recently determined that that definition can't be imported into the r r t a because the fica taxes payment for unemployment which is to find a broad word when in fact morocco does go to services performed which is equivalent to the argument as to services rendered so how do you respond to that part when you rely on the it circuit so specifically that sentence jumps out at me well the in can it goes to the difference between benefits and taxes and the asymmetry there if you were to that's not what they were relying on well no what but what they were what i think that what they were actually relying on the fact that there is an asymmetry between benefits and taxation and if you take that asymmetry let's let's just play this out a little bit if you're a real worker and you were for four years and eleven months you paid your r t a taxes you do not qualify for benefits under the railroad retirement act because you haven't hit the first five year threshold so it is clear from that example that there is an asymmetry between the taxing provision on the one hand and the benefits provision on the other hand justice kagan you mentioned the idea of just starting out imagine the system as it was existed in one thousand thirty seven where you had literally thousands of rail men who were retiring or unable to work and they were now all of a sudden getting benefits but there were no tax revenues at that time that was sufficient to pay the benefits so there is always been an asymmetry between the taxing provision and the benefits provision and what they are seeking to do is to bootstrap the i word that are in the benefits provision that no longer exist in the taxing provision and to give those words meaning where congress intentionally he deleted those words now if i could talk for a moment just to sort of more about administer ability problem there absolutely is a problem with the general verdict because in many states there are general verdict forms and this award would be for all manner of things but the administer bill of the problems actually go a little bit further than that because in the case of norfolk and western versus the lie of pelt which we cite in our brief but the other side does not this court held that juries are required to give be given instructions that the awards that they give under the f e l are not subject to income tax why is that important the railroad asked for that instruction in the live pill case because he didn't want juries inflating awards because the jury would understand that if  a cache of money was being paid out to the worker it would be subject to tax and that was leading the railroad to assert that these awards are being inflated improperly because juries thought that these were going to be taxable awards this instruction is given in error in most every case that i'm aware of and it was given in this one it's in the joint appendix of page ninety one that instruction given to the jury is that the f e l a a ward here is not going to be subject to income tax so you want to talk about a ministry ability problems not only do you have a problem with the general verdict but you have a problem with what would be colliding opinions of this court if you were to accept what the railroad is arguing for here on the one hand the jury is told your damages verdict is not going to be subject to income tax but if you award some part for past earnings a loss that will be subject to the r t a tax so the jury is somehow supposed to figure out on the basis of these conflicting and in instructions how much to inflate the award to cover the retirement tax part of it but wait it gets more complicated the math because there are two different tax rates for the railroad retirement tax there are still one which are more or less equivalent to the kind of social security taxes that we're familiar with under fica but there is tier two tier two or more like private pensions and the rate of tax changes on that every year based on the assets that have accumulated under the control of the railroad retirement board so not only are you going to be asking juries to try to figure out somehow what tax rate to apply to cover this little sliver of lost wage earnings but you're going to have to impose on retirement benefit the point justice ginsburg in this is where i think looking again at the this court's decision in norfolk and western reeses leipold is instructive because there are if the if this is fair game then why would it be possible for the workers lawyer to say now this one part of it's going to be subject to tax and ask for an instruction that the jury give the after tax amount that would equate to the last earnings portion of the judgment and baron why is the rug justice ginsburg because if the lawyers are going to be debating about how the jury is instructed it surely is fair game for the jury to understand exactly what the law  idea came up five years ago when the n s f railroad asked the railroad retirement board for gratuitous advice about whether or not these awards could be taxed and then they started up a process of if you look at all the reported decisions they all arise in the last couple of years notwithstanding the fact that for seventy five years from the inception of the railroad retirement system there were this was not an money and i sort of think a lot of people think what they spend money on has to be paid for and many people think the tax is a good way to do it so other things being equal and there are a lot of other things to make these statutes work in harmony so you tax what you're going to get later paid for is a virtue no congress suddenly changed the practice in your view because it had been there for this one hundred thirty seven by amending the statute so we have a slight virtue on one side which raises a question why just prior let me answer your question in this way we're not here saying that mr lowe's is entitle the benefits that he hasn't paid for he doesn't want to know i understand that you also understand the asymmetry argument and i know there are other asymmetries of course i'm is being quiet about it by the way nobody saying a word wrote and it being nearly years and years and years of the other thing and then they suddenly changed it and in your view what i think the reason is that it had very little practical effect because taxes were not being generated on these awards and there was no real question about the benefits that were there were crewing in most instances the only time when the benefits side actually matters for these awards is when you can allocate dollars for a few months in order to get beyond the twenty year threshold or the thirty year threshold that doesn't happen very often and when it does happen a practice has developed where the worker actually pays for those topped up months so take for instance a worker who's got one thousand years and ten months of service he gets hurt on the job it see it's the railroads fault he gets his f a a judgement what that  eighty tax memorandum was talking about the employees forward and said i'm willing to pay my taxes i'd like to get credit for two months so that i can get my twenty years for my service and the ira said that's ok and that had been the way the statute was worded between one thousand nine hundred six and one nine hundred seventy five now i understand that since nine hundred seventy five this informal practice has continued it's not used very often but we're not talking about a situation where you've got workers that are out there getting benefits based on these judgments because the judgments typically don't allocate to particular months and if you do not allocate the backpay award to particular months then the railroad retirement board doesn't have a basis for saying how you counted up toward the the the creditable service and because the way the benefits work it doesn't typically ben you two have eighteen years of service or seventeen years of service you've got to get to twenty years and no order to get to a new threshold this matter is a practical thing just as prior simply was not deemed to be so significant has to affect things i would further point out as the board the railroad tarmon board the latest in your report indicates the bridge time and system is going to be solvent for the next twenty nine years you've got to ask the question what difference does it make whether or not you impose the tax except as a means of altering the bargaining leverage between the railroads and their workers when the railroads have breached the duty of due care and caused injury black thank you mr chief justice the man pleased the court justice ginsburg on your jury instruction point i don't think there's anything in the history of american jurisprudence that you get a instruction under fica that you get to tell the jury to grow up so i just don't know where in law they think you'd be even entitle to that instruction second justice kavanaugh in terms of the quality stores was a was the fica side and also just as justice justice scalia signed quality stores i do think that that gander if someone wants to argue that no court has bought it but i think the reason why lie peled is because there was like a five hundred percent increase or inflation because taxes make up like thirty forty percent and so the court said you're entitled to this reason why the railroad so interested in this is to increase its leverage in settlement negotiations where the parties can allocate awards and you're arguing a pretty strong to say that they shouldn't be able to to railroads are very concerned that the rates are going to go up if there's a mismatch there directly you know they pay two thirds of any rate increase but on the settlement leverage whatever you think happens about allocation and this goes to you justice sotomayor regardless of what you do in this case two thirty one for the benefit side requires allocation in every case for personal injury judgment now if we prevail whatever happens in terms of allocation on the taxing side it is treated with parity on the benefits side and that is to say if employees are under reporting their taxes they're going to get an under reporting in benefits if they win there is no downside and the law allows them to allocate an entire award to the benefit side without any tax burden so i think we win in terms of the dynamic to the benefit on treasury if you're worried about settlement dynamics i mean that is because of the h h two h two us into thirty one allows employees to allocate the third thing i do want to defend the government here because about this one thousand nine hundred one tam the reason probably the government didn't cite it is because it wasn't told to read brief that made all this huge thing about oh eighty years and eighty years i mean the government wasn't aware it was going to be accused of any of this when they had a regulation on point that said in the amounts paid for time lost so we cited it in our brief and also on the time  the bottom line and where i want to end i mean the problem for the other side whatever he wants to say about the language he concedes time lost payments are covered i mean one part of his argument he thought it another party argument has to concede it because he concedes that vacation pay sickness and whether or not he wants to admit it you don't work on christmas day and that's considered time lost and you that's for services rendered so the only thing with his case comes down to is whether negligence judgment is somehow different from the type of payments that he concedes and we don't think there's any textual or purposeful and you know in any event i hate to cite it but i will and was chevron i mean he has to win under the plain language for you to affirm thank you thank you his counsel the case is submitted