straightforward federal statute twenty six u s c thirty one has to be that mandates indemnification not just immunity exemption or some other form of equitable relief in the event that an employer who has collected could reasonably be characterized as seeking a tax represent refund but rather quote simply resided the hospital's own assertions regarding the proper characterization of the of the claims do you contest any of the factual findings or any of the government's other factual statements on this appeal this determination is reviewed to novell and the government itself has withdrawn its request that the court reached the merits based arguments submit that the court recognized that the claims that were brought by the residents were claims for tax refunds and that that was one of the reasons that the settlement was reasonable on the plaintiff's side because they settled for for pennies on the have to be revisited so if we are faced with the on bond decision and correct yes and mr main clear that that we need to look at more than just whether or not there's a non frivolous allegation as it relates to jurisdiction right since fisher you have mitchell and you have light not an apache trial you know white mountain was decided before fish fischer actually cited white males ok but in terms of what you have what you need to decide for jurisdiction at colleges have the order wrong you only need to determine that this statute is reasonably amenable to an interpretation it's money be a lot more than you would normally be looking at if you were if you were saying is there for instance a non frivolous allegations that get you past a motion to dismiss right what you what you would do is what the  court recognized for example in the indian harbor case in all the cases of statutory construction you would start with the plain unambiguous terms of the statute if they are on in big us you don't need to look any further if the language is clear it is here if the word indemnification is unambiguous that should that's the beginning and end of the court's i mean how can we say that the word indemnity indemnify is unambiguous given the the the fact that that that statutory scheme separately equates indemnification with the absence of liability and that there are two different potential definitions for that term i mean is is clearly an m b a he was term  i would submit that that reasoning may have the cart before the horse because the term itself indemnification under every single dictionary that that either party has cited has a compensatory meaning to  would urge the prosecutor full not to confuse the tatts for tucker actors stiction with the test for an in it for an initial waiver of sovereign immunity which would would we would agree would allow ambiguities to be resolved in favor of the government in the case of tougher act jurisdiction all that has to be shown is that the statute the fairly amenable to an interpretation that money mandating got to do the interpreted right right and in that it doesn't it doesn't say that that is long as one side says it can be interpreted one way that that's another right and we're not submitting that we're saying that on the plain language the court is required to interpret terms according to their common ordinary and contemporary meaning that's the test again in the indian harbor case which your honor authored it to the extent there is there is in any ambiguity it would it would be appropriate to look to other sources but we would suggest that that meaning of indemnify nation which is universally been recognized to apply to involve compensation is sufficient to show it's fairly amenable to an inter history i would suggest that the that the reference something rest and and the rest of the statutory scheme they all support the interpretation of this provision as meaning compensation in money damages and there well again you would start with each provision and you could look to the whole scheme but you would also accept that when congress uses certain words in certain provisions in an integrated scheme and not in other provisions that it acts intentionally that's sebelius case and what the court did here was it ignored that that cardinal rule and it said in other instances congress has used the language shall not be liable that the same thing when  a liberty that violates basic rules of statutory construction so we start with it ignore the plain meaning under every dictionary it ignored the case law that universally recognizes the word done to fight to be compensated by money damages it improperly looked to legislative history of other statutes put did not give proper weight to the only relevant legislative history which was which was of thirty one zero to be itself because that that w involves claims under the indian tucker and the supreme court's analysis under the two statutes doesn't seem to differ from your own actually suggesting we can't rely on cases have and that trust relationship gave rise to obligations that were enforceable through a remedy of money damages note the government in that case argued as to the government in this case that the sole remedy was injunctive and the supreme court made clear that that would not be dictated by the by the law and would not make the tribe whole nor would it deter the government because there are only three parties in that transaction the in the employer the employee and the government with the district court nonetheless this is an argument on the other side did not simply refund the they paid  was asked to participate in the mandamus refused to participate i mean at this point the hospital is out trysting in the wind all by itself thing in the end but i mean the allegations you're twisting in the wind because you didn't you didn't make a you did it for your other residents you just chose not to do it for these people again that he knew how to do it and again there was no obligation to do that and if but that still would that still is disguise refund claim that should have been preempted under seventy four twenty two the government admits that and also was covered by thirty one zero to be the government and it's that and i think your ferry then the government would have to indemnify you regardless of what you choose to pay and regardless of what the theory was i mean these were these were tort derrius they had nothing to do with that tax refund they sent that you actually and gauged in in a charade to reduce your own printed under several point to feel that that's right and there was a judgment made when the hospital left without the support of the government facing millions of millions of dollars in classified damages told by the district court to attend a settlement conference managed to reduce its liability to a fraction of what it would have been this is a not for profit institution that doesn't have the funds the funds are in the coffers of the government it made the rational decision after consulting inviting the government to participate to settle to mitigate damages but if there if that is a defense to indemnification there are many whether it's notice whether it's the reason less of of the settlement those can be heard given to the united states you're saying nonetheless the united states can keep this wrongful exaction your honor the reason the statute is not identified in time the tour is because congress in fact isn't it doesn't modify the term indemnified in the statute i'm talking about the legislative history yes and it was an act that the the actual language it was an act of doesn't say up to the correct amount instead it's  language similar to what we have here that well i thought you saw every question isn't it that if we resolve the principle of what and e g the statute intended to provide the indemnification indemnified against the claims and demands of any person for the amount of the word the term amount is modifying claims and demands so so the employer is indemnified is immune against the claims and demands of an employee for the at the time the congress and act of the statute your position really is not that it unambiguously provides for immunity it's that that the ambiguity can be reasonably resolved that's correct  through when it's place in context of the of the entire code before this cave and the cases that have held that there is no private cause of action for an employee to sue with some foyer for collecting fica taxes i do want to go back to were originally enacted used the same term indemnified the fact that subsequent congresses and later years modify that way which perhaps with updated that language with more modern language doesn't impact what the amount withheld and paid to the united states the right i interpret that legislative history to be providing protection for the employers against any claims or demands of their employees by providing immunity make these claims or or you know you've got the cases don't even go into in much detail there's nothing else out there i mean we've cited the district court cases and the circuit court cases from the front all i'm saying is that it's very sparse case law i would only two circuits and one of them didn't say much so my question is isn't there has not been more development on this issue not that i'm aware  of and again reading the provision as a reimbursement provision would be inconsistent with the holdings in those cases that there is no private cause of action for an employer or ploy to assume its employer i do want to come back to the standard be fairly interpreted to mean to include a right of reimbursement rather the first step is to decide what rights and duties are in fact imposed under the statute and then the fair interpretation rule applies in breach of the rights or duties that imposes but the preliminary question as to what rights or duties are actually created by the statute what does indemnification mean that must be based on a correct interpretation of the statute itself and that's the pattern that the supreme court has followed and its decisions in the mitchell cases it first decided what to do shiria obligations were created by the relevant statutes and after had defined those obligations only it reach the fair interpretation analysis to decide whether given those obligations the statute could be fairly interpretive to require damages as a result of a breach of those obligations that were i so the court should construe the word indemnified not with a definite ready standard using standard statutory is right construct from cannons but there are some awfully good arguments southerland  the statute itself that that confirmed that it is solely an immunity provision for example the statute says shall be indemnified against the claims that would be awkward wording if what congress an was that they will be reimbursed for claims use of the use of the word against makes that awkward also the thrust of the statute is to make employers liable for the payment  that's used is against in the other context you lose your honor it's just it's in dish that's contained in this statute of congress intent like i said you know the thrust of the statute also is that employers shall be liable for the payment of the tax so if we read the very next clause to allow them to pay claims and demands of their employees and then turn around to be entitled the reimbursement from the united states it undermines the thrust of the statute itself and again as the court of federal claims held the low reading the statute as a reimbursement provision is inconsistent with the refund scheme established by the code which requires employees seeking a and its entire context the statute the surrounding statutory language as well as its context within the internal revenue in telling me that the use of the word against is a strong tendency of what i said was that it would united states in this case but it's beneficial for employers in general because it provides them with a more valuable tool of immunity which is a more valuable tool to protect employers that are reimbursement for the reimbursement provision places mentioned that when when the hospital approached it certainly did in fact the united states went on record when it moved to dismiss the hospital's third party complaint the united states went on record that its interpretation of the statute was that it was an immunity provision and that's contained in the united states motion to dismiss as well as of the reply brief which has a greater detail discussion of the united states position that the statute was and then the unity provision the court must construe terms based on the cordillera of contemporary meaning of the turns and at that time as we've illustrated aware that the government interpreted this statute to be an immunity provision instead they never they never raise it but they later settled the employee of the medical residents claims but the government had gone on record in its papers filed in connection with this motion to dismiss that this was an immunity provision and yet being aware that the hospital still went to have never raised immunity as a defense in the district court litigation but instead settled the medical residen but the court can take judicial notice of those no questions you mr christie thank you mr christians government specifically argued that thirty window to be did not apply and protect the hospital and i would refer your honour's to the government's reply brief which of which alleging wrongful collection of fica taxes there's a sick there quote it does not protect the hospital from common law claims based on its independent tortious conduct against former employees that's at page four of the reply brief well that's i mean that's that well there isn't a final ruling but yes that's true i will say that the government has it in on before the court of claims reversed its position after the hospital was out of pocket and then said that thirty one  to be would apply to these claims and that the government should at the hospital should have asserted the thirty one zero two b as an immunity although when in the district court the government took the position that thirty these claims and that seventy four twenty two should have preempted them which would regardless of how they were styled before the court a court below which is the cracked interpretation because that's that's what clint would help with words again with the southern districts ruling in the child case in fact the district court below i'm sorry the court of claims below expressly disagreed with the district court you had the right and again if that private employers are equally immunized under seventy four twenty two from taxpayer claims it's true that the government here you know what they could not have been to do food they could not have been asked  circumstances failed to properly enforced seventy four twenty two leaving the private employer exposed to these classified damages and we submitted it for that specific but obviously rare instance that  indemnification under thirty two b thirty one zero two b exists now the on lyndon mcdonald cases which found a private right of action they merely say that there isn't a private private right of action that's true we agree but that doesn't mean that the extra protection for employers in the rare case a court like the case goes through vanishes and we have very commonly indemnification statutes for directors and officers the underlying claims may be frivolous the fact that indemnification exist does is not a basis to allow a frivolous claim to proceed but the converse is not true just because there is a frivolous play and should be stopped at the doorstop of the court doesn't deprive the employer director or officer of indemnification if and when such a frivolous claim proceeds that's what happened here everybody agrees the government agreed the co it was a disguised refund claim then that it could not go forward under thirty one o two but it did not say we disagree with this before whether it was a disguised refund claim if a court actually did believe the dischord did not have jurisdiction because of seventy four twenty two and it chose not to follow the child or as decisions so i would respectfully submit that the court did expressly for disagree with the district court for the hospital complied with its obligations it is out of pocket if this is not enforced as written the government will will have no incentive to intervene in these types of cases to ensure that seventy four twenty two preemption is properly applied by the courts and the private employer who is out who is out of funds will be left exposed to huge cla