BNSF R. Co. v. Loos

Summary

A railroad’s payment to an employee for working time lost due to an on-the-job injury is taxable “compensation” under the Railroad Retirement Tax Act.

Text

1 (Slip Opinion) OCTOBER TERM, 2018 
Syllabus 
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been 
prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 
SUPREME COURT OF THE UNITED STATES 
Syllabus 
BNSF RAILWAY CO. v. LOOS 
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE EIGHTH CIRCUIT 
No. 17–1042. Argued November 6, 2018—Decided March 4, 2019 
Respondent Michael Loos sued petitioner BNSF Railway Company un-
der the Federal Employers’ Liability  Act (FELA) for injuries he re-
ceived while working at BNSF’s railyard. A jury awarded him 
$126,212.78, ascribing $30,000 of that  amount to wages lost during 
the time Loos was unable to work. BNSF asserted that the lost wages 
constituted “compensation” taxable under the Railroad Retirement 
Tax Act (RRTA) and asked to withhold $3,765 of the $30,000 to cover 
Loos’s share of the RRTA taxes. The District Court and the Eighth 
Circuit rejected the requested offs et, holding that an award of dam-
ages compensating an injured railr oad worker for lost wages is not 
taxable under the RRTA. 
Held: A railroad’s payment to an employee for working time lost due to 
an on-the-job injury is taxable “compensation” under the RRTA. 
Pp. 2–14.
(a) In 1937, Congress created a self-sustaining retirement benefits 
system for railroad workers.  The RRTA funds the program by impos-
ing a payroll tax on both railroads and their employees, referring to
the railroad’s contribution as an “excise” tax, 26 U. S. C. §3221, and 
the employee’s share as an “income”  tax, §3201.  The Railroad Re-
tirement Act (RRA) entitles railroad workers to various benefits. 
Taxes under the RRTA and benefits under the RRA are measured by
the employee’s “compensat ion,” which both statutes define as “any 
form of money remuneration paid to an individual for services ren-
dered as an employee.”  §3231(e)(1); 45 U. S. C. §231(h)(1). 
The statutory foundation of the railroad retirement system mirrors
that of the Social Security system.  The Federal Insurance Contribu -
tions Act (FICA) taxes employers an d employees to fund benefits dis-
tributed pursuant to the Social Security Act (SSA).  Tax and benefit

2 BNSF R. CO. v. LOOS 
Syllabus 
amounts are determined by the worker ’s “wages,” the Social Security 
equivalent to “compensation.”  Both the FICA and the SSA define 
“wages” employing language resembling the RRTA and the RRA def -
initions of “compensation.”  The term “wages” means “all remunera -
tion” for “any service, of whatever  nature, performed . . . by an em-
ployee.”  26 U. S. C. §3121(a)–(b)  (FICA); see 42 U. S. C. §§409(a), 
410(a) (SSA).  Pp. 2–4.
(b) Given the textual similarity between the definitions of “compen-
sation” and “wages,” the decision s on the meaning of “wages” in So-
cial Security Bd. v. Nierotko, 327 U. S. 358, and United States  v. 
Quality Stores, Inc., 572 U. S. 141, inform this Court’s comprehension 
of the RRTA term “compensation.”  In Nierotko, the Court held that 
“wages” embraced pay for active service as well as pay received for 
periods of absence from active service, 327 U. S., at 366, and conclud-
ed that backpay for time lost due to “the employer’s  wrong” counted 
as “wages,” id., at 364.  In Quality Stores, the Court held that sever -
ance payments qualified as “wages” taxable under the FICA.  572 
U. S., at 146–147.  In line with these decisions, the Court holds that 
“compensation” under the RRTA encompasses not simply pay for ac -
tive service but also pay for period s of absence from active service—
provided that the remuneration in  question stems from the “employ -
er-employee relationship.”  Nierotko, 327 U. S., at 366. 
Damages awarded under the FELA for lost wages fit comfortably
within this definition. See BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___. 
If a railroad negligently fails to ma intain a safe railyard and a work -
er is injured as a result, the FELA  requires the railroad to compen-
sate the injured worker for working time lost due to the employer’s 
wrongdoing. FELA damages for lost wages, like backpay, are “com-
pensation” taxable under the RRTA.  Pp. 4–7.
(c) The Eighth Circuit construed “compensation” for RRTA purpos -
es to mean only pay for active serv ice, but this reading cannot be rec-
onciled with Nierotko and Quality Stores.  In addition, the RRTA’s 
pinpointed exclusions for certain ty pes of payments for time lost sig -
nal that nonexcluded pay for time lost remains RRTA-taxable “com-
pensation.”  Pp. 7–10.
(d) Loos contends that “compens ation” does not include payments 
made to compensate for an injury.  This reading, however, is at odds 
with Nierotko, which held that “wages” included backpay awarded to 
redress “the loss of wages” occasioned by “the employer’s wrong.”  327 
U. S., at 364. 
Loos also argues that the excl usion of personal injury damages 
from “gross income” for federal income tax purposes, see 26 U. S. C. 
§104(a)(2), should carry over to the RRTA’s tax on the “income” of 
railroad workers. The RRTA, howeve r, uses the term “income” mere-

3 Cite as: 586 U. S. ____ (2019) 
Syllabus 
ly to distinguish the “income” tax on an employee from the matching 
“excise” tax on a railroad. Furthe r, Congress specified not “gross in -
come” but employee “compensation” as the tax base for RRTA taxes. 
Congress did not exclude personal injury damages from “compensa-
tion.”  Pp. 10–14. 
865 F. 3d 1106, reversed and remanded. 
G
INSBURG, J., delivered the opinion of the Court, in which R OBERTS, 
C. J., and B REYER, A LITO, S OTOMAYOR, K AGAN, and KAVANAUGH, JJ., 
joined. G ORSUCH, J., filed a dissenting opinion, in which T HOMAS, J., 
joined.

_________________ 
_________________ 
1 Cite as: 586 U. S. ____ (2019) 
Opinion of the Court 
NOTICE: This opinion is subject to formal revision before publication in 
the preliminary print of the United States Reports. Readers are requested 
to notify the Reporter of Decisions, Supreme Court of the United States, 
Washington, D. C. 20543, of any typographical or other formal errors, in 
order that corrections may be made before the preliminary print goes to 
press. 
SUPREME COURT OF THE UNITED STATES 
No. 17–1042 
BNSF RAILWAY COMPANY, PETITIONER v. 
MICHAEL D. LOOS 
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT 
[March 4, 2019] 
JUSTICE GINSBURG delivered the opinion of the Court. 
Respondent Michael Loos was injured while working at 
petitioner BNSF Railway Company’s railyard.  Loos sued 
BNSF under the Federal Empl oyers’ Liability Act (FELA), 
35 Stat. 65, as amended, 45 U. S. C. §51 et seq., and gained 
a $126,212.78 jury verdict.  Of that amount the jury as -
cribed $30,000 to wages lost during the time Loos was
unable to work.  BNSF moved for an offset against the 
judgment. The lost wages awarded Loos, BNSF asserted, 
constituted “compensation” taxable under the Railroad 
Retirement Tax Act (RRTA), 26 U. S. C. §3201 et seq . 
Therefore, BNSF urged, the railway was required to with-
hold a portion of the $30,000 attributable to lost wages to
cover Loos’s share of RRTA taxes, which came to $3,765. 
The District Court and the Court of Appeals for the Eighth
Circuit rejected the requested offset, holding that an
award of damages compensating an injured railroad worker
for lost wages is not taxable under the RRTA.
The question presented: Is a railroad’s payment to an 
employee for working time lost due to an on-the-job injury 
taxable “compensation” under the RRTA, 26 U. S. C.

2 BNSF R. CO. v. LOOS 
Opinion of the Court 
§3231(e)(1)? We granted review to resolve a division of 
opinion on the answer to that question. 584 U. S. ___ 
(2018). Compare  Hance v. Norfolk S. R. Co., 571 F. 3d 
511, 523 (CA6 2009) (“compensation” includes pay for time 
lost); Phillips v. Chicago Central & Pacific R. Co. , 853 
N. W. 2d 636, 650–651 (Iowa 2014) (agency reasonably 
interpreted “compensation” as including pay for time lost); 
Heckman v. Burlington N. Santa Fe R. Co. , 286 Neb. 453, 
463, 837 N. W. 2d 532, 540 (2013) (“compensation” in-
cludes pay for time lost), with 865 F. 3d 1106, 1117–1118 
(CA8 2017) (case below) (“compensation” does not include 
pay for time lost); Mickey v. BNSF R. Co., 437 S. W. 3d 
207, 218 (Mo. 2014) (“compensation” does not include 
FELA damages for lost wages).  We now hold that an 
award compensating for lost wages is subject to taxation 
under the RRTA. 
I 
In 1937, Congress created a self-sustaining retirement 
benefits system for railroad workers.  The system provides 
generous pensions as well as benefits “correspon[ding] . . . 
to those an employee would expect to receive were he 
covered by the Social Security Act.”  Hisquierdo v. His -
quierdo, 439 U. S. 572, 575 (1979). 
Two statutes operate in concert to ensure that retired 
railroad workers receive their allotted pensions and bene-
fits. The first, the RRTA, funds the program by imposing 
a payroll tax on both railroads and their employees. The 
RRTA refers to the railroad’s contribution as an “excise” 
tax, 26 U. S. C. §3221, and describes the employee’s share 
as an “income” tax, §3201. Congress assigned to the In-
ternal Revenue Service (IRS) responsibility for collecting 
both taxes.  §§3501, 7801.
1  The second statute, the Rail-
—————— 
1 The railroad remits both taxes to the IRS.  As to the income tax, the

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Opinion of the Court 
road Retirement Act (RRA), 50 Stat. 307, as restated and 
amended, 45 U. S. C. §231 et seq., entitles railroad work-
ers to various benefits and prescribes eligibility require-
ments. The RRA is administered by the Railroad Retire-
ment Board. See §231f(a). 
Taxes under the RRTA and benefits under the RRA are 
measured by the employee’s “compensation.”  26 U. S. C. 
§§3201, 3221; 45 U. S. C. §231b.  The RRTA and RRA 
separately define “compensation,” but both statutes state 
that the term means “any form of money remuneration 
paid to an individual for services rendered as an employee.” 
26 U. S. C. §3231(e)(1); 45 U. S. C. §231(h)(1).  This 
language has remained basically unchanged since the 
RRTA’s enactment in 1937. See Carriers Taxing Act of 
1937 (1937 RRTA), §1(e), 50 Stat. 436 (defining “compen -
sation” as “any form of money remuneration earned by an 
individual for services rendered as an employee”).  The 
RRTA excludes from “compensation” certain types of sick 
pay and disability pay.  See 26 U. S. C. §3231(e)(1), (4)(A). 
The IRS’s reading of the word “compensation” as it 
appears in the RRTA has remained constant.  One year 
after the RRTA’s adoption, the IRS stated that “compensa-
tion” is not limited to pay for active service but reaches, as 
well, pay for periods of absence.  See 26 CFR §410.5 
(1938). This understanding has governed for more than 
eight decades.  As restated in the current IRS regulations, 
“[t]he term compensation  is not confined to amounts paid 
for active service, but includes amounts paid for an identi -
fiable period during which the employee is absent from the 
active service of the employer.”  §31.3231(e)–1(a)(3) (2017). 
—————— 
railroad deducts the amount owed by  the employee from her earnings 
and then forwards that amount to the IRS.  See Tr. of Oral Arg. 22–23. 
See also 26 U. S. C. §3402(a)(1) (employers must “deduct and withhold” 
income taxes from earnings).

4 BNSF R. CO. v. LOOS 
Opinion of the Court 
In 1994, the IRS added, specifically, that “compensation” 
includes “pay for time lost.” §31.3231(e)–1(a)(4); see 59 
Fed. Reg. 66188 (1994). 
Congress created both the railroad retirement system
and the Social Security system during the Great Depres-
sion primarily to ensure the financial security of members 
of the workforce when they reach old age.  See Wisconsin 
Central Ltd. v. United States , 585 U. S. ___, ___ (2018) 
(slip op., at 1); Helvering v. Davis, 301 U. S. 619, 641 
(1937). Given the similarities in timing and purpose of the 
two programs, it is hardly su rprising that their statutory
foundations mirror each other. Regarding Social Security,
the Federal Insurance Contributions Act (FICA), 26
U. S. C. §3101 et seq., taxes employers and employees to 
fund benefits, which are distributed pursuant to the Social
Security Act (SSA), 49 Stat. 620, as amended, 42 U. S. C. 
§301 et seq. Tax and benefit amounts are determined by
the worker’s “wages,” the Social Security equivalent to 
“compensation.” See Davis, 301 U. S., at 635–636.  Both 
the FICA and the SSA define “wages” employing language
resembling the RRTA and the RRA definitions of “compen -
sation.” “Wages” under the FICA and the SSA mean “all
remuneration for employment,” and “employment,” in
turn, means “any service, of  whatever nature, performed 
. . . by an employee.” 26 U. S. C. §3121(a)–(b) (FICA); see 
42 U. S. C. §§409(a), 410(a) (SSA).  Reading these pre-
scriptions together, the term “wages” encompasses “all
remuneration” for “any service, of whatever nature, per-
formed . . . by an employee.” Ibid. 
II 
A 
To determine whether RRTA-qualifying “compensation” 
includes an award of damages for lost wages, we begin

5 Cite as: 586 U. S. ____ (2019) 
Opinion of the Court 
with the statutory text. 2  The RRTA defines “compensa-
tion” as “remuneration paid to  an individual for services 
rendered as an employee.” 26 U. S. C. §3231(e)(1).  This 
definition, as just noted, is materially indistinguishable 
from the FICA’s definition of “wages” to include “remuner-
ation” for “any service, of w hatever nature, performed . . . 
by an employee.” §3121. 
Given the textual similarity between the definitions of 
“compensation” for railroad retirement purposes and 
“wages” for Social Security pu rposes, our decisions on the 
meaning of “wages” in Social Security Bd. v. Nierotko, 327 
U. S. 358 (1946), and United States v. Quality Stores, Inc. , 
572 U. S. 141 (2014), inform our comprehension of the 
RRTA term “compensation.” In Nierotko , the National 
Labor Relations Board found that an employee had been 
“wrongfully discharged for union activity” and awarded 
him backpay. 327 U. S., at 359.  The Social Security 
Board refused to credit the backpay award in calculating 
the employee’s benefits.  Id., at 365–366.  In the Board’s 
view, “wages” covered only pay for active service.  Ibid. 
We disagreed. Emphasizing that the phrase “any service 
. . . performed” denotes “breadth of coverage,” we held that 
“wages” means remuneration for “the entire employer-
employee relationship”; in other words, “wages” embraced 
pay for active service plus pay received for periods of 
absence from active service.  Id., at 366. Backpay, we 
—————— 
2 Before turning to the language of  the RRTA, the dissent endeavors 
to unearth the reason why BNSF has pursued this case.  The railroad’s 
“gambit,” the dissent surmises, is to increase pressure on injured 
workers to settle their claims.  Post, at 3.  Contrast with the dissent’s 
conjecture, BNSF’s entirely plausibl e account of a railroad’s stake in 
this dispute.  Because the RRA credits lost wages toward an employee’s 
benefits, see 45 U. S. C. §231(h)(1), BNSF posits that immunizing those 
payments from RRTA taxes would expo se the system to “a long-term 
risk of insolvency.”  Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14.

6 BNSF R. CO. v. LOOS 
Opinion of the Court 
reasoned, counts as “wages” because it compensates for 
“the loss of wages which the employee suffered from the 
employer’s wrong.” Id., at 364. 
In Quality Stores , we again trained on the meaning of 
“wages,” reiterating that “Congress chose to define wages 
. . . broadly.” 572 U. S., at 146 (internal quotation marks 
omitted). Guided by Nierotko, Quality Stores  held that 
severance payments qualified as “wages” taxable under
the FICA. “[C]ommon sense,” we observed, “dictates that 
employees receive th[ose] payments ‘for employment.’ ”  
572 U. S., at 146.  Severance payments, the Court spelled 
out, “are made to employees only,” “are made in considera-
tion for employment,” and are calculated “according to the
function and seniority of the [terminated] employee.” Id., 
at 146–147. 
In line with Nierotko, Quality Stores, and the IRS’s long 
held construction, we hold that “compensation” under the
RRTA encompasses not simply pay for active service but, 
in addition, pay for periods of absence from active ser-
vice—provided that the remuneration in question stems
from the “employer-employee relationship.”  Nierotko, 327 
U. S., at 366. 
B 
Damages awarded under the FELA for lost wages fit 
comfortably within this definition. The FELA “makes 
railroads liable in money damages to their employees for 
on-the-job injuries.”  BNSF R. Co. v. Tyrrell, 581 U. S. ___, 
___ (2017) (slip op., at 1); see 45 U. S. C. §51.  If a railroad 
negligently fails to maintain a safe railyard and a worker 
is injured as a result, the FELA requires the railroad to 
compensate the injured worker for, inter alia , working 
time lost due to the employ er’s wrongdoing.  FELA dam-
ages for lost wages, then, are functionally equivalent to an 
award of backpay, which compensates an employee “for a 
period of time during which” the employee is “wrongfully

7 Cite as: 586 U. S. ____ (2019) 
Opinion of the Court 
separated from his job.”  Nierotko, 327 U. S., at 364.  Just 
as Nierotko held that backpay falls within the definition of 
“wages,” ibid., we conclude that FELA damages for lost 
wages qualify as “compensation” and are therefore taxable 
under the RRTA. 
III 
A 
The Eighth Circuit construed “compensation” for RRTA 
purposes to mean only pay for “services that an employee 
actually renders,” in other words, pay for active service. 
Consequently, the court held that “compensation” within 
the RRTA’s compass did not reach pay for periods of ab -
sence. 865 F. 3d, at 1117.  In so ruling, the Court of Ap-
peals attempted to distinguish Nierotko and Quality 
Stores. The Social Security decisions, the court said, were 
inapposite because the FICA “taxes payment for ‘employ-
ment,’” whereas the RRTA “tax[es] payment for ‘services.’ ”  
865 F. 3d, at 1117.  As noted, however, supra, at 3–4, the 
FICA defines “employment” in language resembling the 
RRTA in all relevant respects. Compare 26 U. S. C. 
§3121(b) (FICA) (“any service, of whatever nature, per-
formed . . . by an employee”) with §3231(e)(1) (RRTA) 
(“services rendered as an employee”).  Construing RRTA 
“compensation” as less embracive than “wages” covered by 
the FICA would introduce an unwarranted disparity 
between terms Congress appeared to regard as equiva-
lents. The reasoning of Nierotko and Quality Stores, as we 
see it, resists the Eighth Circuit’s swift writeoff.
3
 Nierotko and Quality Stores  apart, we would in any
event conclude that the RRTA term “compensation” covers 
—————— 
3 The dissent’s reduction of Nierotko’s significance fares no better. 
Nierotko, the dissent urges, is distingu ishable because it involved “a 
different factual context.” Post, at 7. But as just explained, supra, at 
6–7, the facts in Nierotko resemble those here in all material respects.

8 BNSF R. CO. v. LOOS 
Opinion of the Court 
pay for time lost. Restricting “compensation” to pay for
active service, the Court of Appeals relied on statutory
history and, in particular, the eventual deletion of two
references to pay for time lo st contained in early rendi-
tions of the RRTA.  See also post, at 6–7 (presenting the
Eighth Circuit’s statutory hi story argument).  To under-
stand the Eighth Circuit’s position, and why, in our judg-
ment, that position does not withstand scrutiny, some
context is in order. 
On enactment of the RRTA in 1937, Congress made 
“compensation” taxable at the time it was earned and 
provided specific guidance on when pay for time lost 
should be “deemed earned.” Congress instructed: “The
term ‘compensation’ means any form of money remunera-
tion earned by  an individual for services rendered as an 
employee . . . , including remuneration paid for time lost
as an employee, but [such] remuneration . . . shall be 
deemed earned  in the month in which such time is lost.” 
1937 RRTA, §1(e), 50 Stat. 436 (emphasis added).  In 
1946, Congress clarified that the phrase “pa[y] for time
lost” meant payment for “an identifiable period of absence
from the active service of the employer, including absence
on account of personal injury.”  Act of July 31, 1946 (1946 
Act), §2, 60 Stat. 722.
Thus, originally, the RRTA stated that “compensation” 
included pay for time lost, and the language added in 1946
presupposed the same.  In subsequent amendments, how-
ever, Congress removed the references to pay for time lost.
First, in 1975, Congress made “compensation” taxable
when paid rather than when earned.  Congress simultane-
ously removed the 1937 language that both referred to pay 
for time lost and specified when such pay should be
“deemed earned.”  So amended, the definitional sentence, 
in its current form, reads: “The term ‘compensation’ means
any form of money remuneration paid to an individual for 
services rendered as an employee . . . .” Act of Aug. 9,

Cite as: 586 U. S. ____ (2019) 9 
Opinion of the Court 
1975 (1975 Act), §204, 89 Stat. 466 (emphasis added). 
Second, in 1983, Congress shifted the wage base for 
RRTA taxes from monthly “compensation” to annual
“compensation.” See Railroad Retirement Solvency Act of
1983 (1983 Act), §225, 97 Stat. 424–425. Because the 
“monthly wage bases for railroad retirement taxes [were 
being] changed to annual amounts,” the House Report
explained, the RRTA required “[s]everal technical and
conforming amendments.” H. R. Rep. No. 98–30, pt. 2, 
p. 29 (1983). In a section of the 1983 Act titled “Technical 
Amendments,” Congress struck the subsection containing,
among other provisions, the 1946 Act’s clarification of pay 
for time lost.  1983 Act, §225, 97 Stat. 424–425.  In lieu of 
the deleted subsection, Congress inserted detailed instruc-
tions concerning the new annual wage base.
As the Court of Appeals and the dissent see it, the 1975
and 1983 deletions show that “compensation” no longer 
includes pay for time lost. 865 F. 3d, at 1119; see post, at 
6–7. We are not so sure. The 1975 Act left unaltered the 
language at issue here, “remuneration . . . for services 
rendered as an employee.” That Act also left intact the 
1946 Act’s description of pay for time lost.  Continuing
after the 1975 Act, then, such pay remained RRTA-taxable 
“compensation.” The 1983 Act, as billed by Congress,
effected only “[t]echnical [a]mendments” relating to the 
change from monthly to annual computation of “compen-
sation.” Concerning the 1975 and 1983 alterations, the 
IRS concluded that Congress re vealed no “inten[tion] to 
exclude payments for time lost from compensation.” 59 
Fed. Reg. 66188 (1994).  We credit the IRS reading.  It 
would be passing strange for Congress to restrict substan-
tially what counts as “compensation” in a manner so
oblique.
Moreover, the text of the RRTA continues to indicate 
that “compensation” encompasse s pay for time lost.  The 
RRTA excludes from “compensation” a limited subset of

10 BNSF R. CO. v. LOOS 
Opinion of the Court 
payments for time lost, notably certain types of sick pay
and disability pay.  See 26 U. S. C. §3231(e)(1), (4). These 
enumerated exclusions would be entirely superfluous if, as 
the Court of Appeals held, the RRTA broadly excludes 
from “compensation” any and all pay received for time lost. 
In justification of its confinement of RRTA-taxable
receipts to pay for active service, the Court of Appeals also
referred to the RRA.  The RRA, like the RRTA as enacted 
in 1937, states that “compensation” “includ[es] remunera-
tion paid for time lost as an employee” and specifies that 
such pay “shall be deemed earned in the month in which 
such time is lost.” 45 U. S. C. §231(h)(1).  Pointing to the
discrepancy between the RRA and the amended RRTA,
which no longer contains the above-quoted language, the
Court of Appeals concluded that Congress intended the
RRA, but not the RRTA, to include pay for time lost.
Accord post, at 7.  Although “ ‘[w]e usually presume differ-
ences in language . . . convey differences in meaning,’ ” 
Wisconsin Central , 585 U. S., at ___ (slip op., at 4), Con-
gress’ failure to reconcile the RRA and the amended RRTA 
is inconsequential. As just explained, the RRTA’s 
pinpointed exclusions from RRTA taxation signal that 
nonexcluded pay for time lost remains RRTA-taxable 
“compensation.” 
B 
Instead of adopting lockstep the Court of Appeals’ inter-
pretation, Loos takes a different approach. In his view, 
echoed by the dissent, “remuneration . . . for services 
rendered” means the “package  of benefits” an employer 
pays “to retain the employee.”  Brief for Respondent 37; 
post, at 3–4. He therefore agrees with BNSF that benefits 
like sick pay and vacation pay are taxable “compensation.” 
He contends, however, that FELA damages for lost wages 
are of a different order. They are not part of an employee’s 
“package of benefits,” he observes, and therefore should

11 Cite as: 586 U. S. ____ (2019) 
Opinion of the Court 
not count as “compensation.” Such damages, Loos urges, 
“compensate for an injury” rather than for services ren-
dered. Brief for Respondent 20; post, at 3–4. Loos argues 
in the alternative that even if voluntary settlements qualify 
as “compensation,” “involuntary payment[s]” in the form 
of damages do not. Brief for Respondent 33. 
Our decision in Nierotko  undermines Loos’s argument 
that, unlike sick pay and vacation pay, payments “com-
pensat[ing] for an injury,” Brief for Respondent 20, are not 
taxable under the RRTA. We held in Nierotko  that an 
award of backpay compensating an employee for his 
wrongful discharge ranked as “wages” under the SSA. 
That was so, we explained, because the backpay there 
awarded to the employee redressed “the loss of wages” 
occasioned by “the employer’s wrong.”  327 U. S., at 364; 
see supra, at 5.  Applying that reasoning here, there 
should be no dispositive difference between a payment 
voluntarily made and one required by law.
4
 Nor does  United States  v. Cleveland Indians Baseball 
Co., 532 U. S. 200 (2001), aid Loos’s argument, repeated 
by the dissent. See post, at 8. Indeed, Cleveland Indians 
reasserted Nierotko’s holding that “backpay for a time in 
—————— 
4 The dissent, building on Loos’s argument, tenders an inapt analogy 
between passengers and employees.  If BNSF were ordered to pay
damages for lost wages to an injured passenger, the dissent asserts, one
would not say the passenger had been compensated “for services 
rendered.” There is no reason, the dissent concludes, to “reach a 
different result here simply because the victim of BNSF’s negligence 
happened to be one of its own workers.” Post, at 5. Under the RRTA, 
however, this distinction is of cour se critical.  The passenger’s damages
for lost wages are not taxable under the RRTA, for she has no employ-
ment relationship with the railroad. In contrast, FELA damages for 
lost wages are taxable because they ar e paid only if the injured person 
previously “rendered [services] as an employee,” 26 U. S. C. §3231(e)(1),
and, indeed, was working for the railr oad when the injury occurred, see
45 U. S. C. §51.

12 BNSF R. CO. v. LOOS 
Opinion of the Court 
which the employee was not on the job” counts as pay for 
services, and therefore ranks as wages.  532 U. S., at 210. 
Cleveland Indians  then took up a discrete, “secondary 
issue” Nierotko presented, one not in contention here, i.e., 
whether for taxation purposes backpay is allocable to the 
tax period when paid rather than an earlier time-earned 
period. 532 U. S., at 211, 213–214, 219–220.  Moreover, 
Quality Stores, which postdated Cleveland Indians, left no 
doubt that what qualifies under Nierotko as “wages” for 
benefit purposes also qualifies as such for taxation pur-
poses. 572 U. S., at 146–147. 
C 
Loos presses a final reason why he should not owe
RRTA taxes on his lost wages award. Loos argues, and 
the District Court held, that the RRTA’s tax on employees 
does not apply to personal in jury damages.  He observes 
that the RRTA taxes “the income of each employee.”  26 
U. S. C. §3201(a)–(b) (emphasis added).  He then cites a 
provision of the Internal Revenue Code, 26 U. S. C. 
§104(a)(2).  This provision exempts “damages . . . received 
. . . on account of personal physical injuries” from federal
income taxation by excluding such damages from “gross 
income.” Loos urges that the exclusion of personal
injury damages from “gross income” should carry over
to the RRTA’s tax on the “income” of railroad workers, 
§3201(a)–(b).
The argument is unconvincing.  As the Government 
points out, the District Court, echoed by Loos, conflated
“the distinct concepts of ‘gross income,’ [a prime compo-
nent of] the tax base on which income tax is collected, and 
‘compensation,’ the separately  defined category of pay-
ments that are taxable under the RRTA.” Brief for United 
States as Amicus Curiae 15. Blending tax bases that 
Congress kept discrete, the District Court and Loos proffer
a scheme in which employees pay no tax on damages

13 Cite as: 586 U. S. ____ (2019) 
Opinion of the Court 
compensating for personal injuries; railroads pay the full
excise tax on such compensation; and employees receive
full credit for the compensation in determining their re -
tirement benefits. That scheme, however, is not plausibly 
attributable to Congress.
For federal income tax pu rposes, “gross income” means 
“all income” “[e]xcept as otherwise provided.”  26 U. S. C. 
§61; see §§1, 63 (imposing a tax on “taxable income,” de-
fined as “gross income minus . . . deductions”). Congress
provided detailed prescriptions on the scope of “gross 
income,” excluding from its reach numerous items, among
them, personal injury damages. See §§101–140.  Conspic-
uously absent from the RRTA, however, is any reference to
“gross income.”  As employed in the RRTA, the word “in-
come” merely distinguishes the tax on the employee, an
“income . . . tax,” §3201, from the matching tax on the
railroad, called an “excise tax.”  §§3201, 3221.  See also 
1937 RRTA, §§2–3 (establishing an “income tax on em -
ployees” and an “excise tax on employers”); S. Rep. No. 
818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA 
imposes an “income tax on employees” and an “excise tax 
on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 
6 (1937) (same).
Congress, we reiterate, specified not “gross income” but
employee “compensation” as the tax base for the RRTA’s 
income and excise taxes. §§3201, 3221.  Congress then
excepted certain payments from the calculation of “com-
pensation.” See §3231(e); supra, at 9. Congress adopted
by cross-reference particular Internal Revenue Code ex-
clusions from “gross income,” thereby carving out those 
specified items from RRTA coverage.  See §3231(e)(5)–(6),
(9)–(11). Tellingly, Congre ss did not adopt for RRTA 
purposes the exclusion of personal injury damages from 
federal income taxation set out in §104(a)(2).  We note, 
furthermore, that if RRTA taxes were based on “income” 
or “gross income” rather than “compensation,” the RRTA

14 BNSF R. CO. v. LOOS 
Opinion of the Court 
tax base would sweep in nonrailroad income, including, 
for example, dividends, inte rest accruals, even lottery 
winnings. Shifting from “compensation” to “income” as the 
RRTA tax base would thus saddle railroad workers with 
more RRTA taxes. 
Given the multiple flaws in Loos’s last ditch argument,
we conclude that §104(a)(2) does not exempt FELA dam-
ages from the RRTA’s income and excise taxes. 
* * * 
In harmony with this Court’s decisions in Nierotko and 
Quality Stores , we hold that “compensation” for RRTA 
purposes includes an employer’s payments to an employee
for active service and for peri ods of absence from active 
service. It is immaterial whether the employer chooses to
make the payment or is legally required to do so.  Either 
way, the payment is remitted to the recipient because of 
his status as a service-rendering employee. See 26 
U. S. C. §3231(e)(1); 45 U. S. C. §231(h)(1). 
For the reasons stated, FELA damages for lost wages
qualify as RRTA-taxable “compensation.”  The judgment of
the Court of Appeals for the Eighth Circuit is accordingly
reversed, and the case is remanded for proceedings con-
sistent with this opinion. 
It is so ordered.

_________________ 
_________________ 
1 Cite as: 586 U. S. ____ (2019) 
GORSUCH, J., dissenting 
SUPREME COURT OF THE UNITED STATES 
No. 17–1042 
BNSF RAILWAY COMPANY, PETITIONER v. 
MICHAEL D. LOOS 
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT 
[March 4, 2019] 
JUSTICE GORSUCH, with whom J USTICE THOMAS  joins, 
dissenting. 
BNSF Railway’s negligence caused one of its employees
a serious injury.  After a trial, a court ordered the 
company to pay damages.  But instead of sending the full 
amount to the employee, BNSF asserted that it had to 
divert a portion to the Internal  R e v e n u e  S e r v i c e .   W h y ?
BNSF said the money represented taxable “compensation”
for “services rendered as an employee.”  26 U. S. C. 
§3231(e)(1).  Today, the Court agrees with the company.
Respectfully, I do not. When an employee suffers a
physical injury due to his employer’s negligence and has to
sue in court to recover damages, it seems more natural to
me to describe the final judg ment as compensation for his 
injury than for services (never) rendered. 
The Court does not lay out the facts of the case, but they
are relevant to my analysis and straightforward enough.
Years ago, Michael Loos was working for BNSF in a train
yard when he fell into a hidden drainage grate and injured
his knee. He missed work for many months, and upon his 
return he had a series of absences, many of which he 
attributed to knee-injury flareups. When the company 
moved to fire him for allege dly violating its attendance
policies, Mr. Loos sued.  Among other things, Mr. Loos 
sought damages for BNSF’s ne gligence in maintaining the

2 BNSF R. CO. v. LOOS 
  
GORSUCH, J., dissenting 
 
train yard.  He brought his claim under the Federal 
Employers’ Liability Act (FELA), an analogue to 
traditional state-law tort suits that makes an interstate 
railroad “liable in damages to any person suffering injury 
while he is employed” by the railroad “for such injury . . . 
resulting in whole or in part from the [railroad’s] 
negligence.”  45 U. S. C. §51.  Ultimately, and again much 
like in any other tort suit, the jury awarded damages in 
three categories: $85,000 in pain and suffering, $11,212.78 
in medical expenses, and $30,000 in lost wages—the final 
category representing the amount Mr. Loos was unable to 
earn because of the injury BNSF’s negligence caused. 
 Then a strange thing happened.  BNSF argued that the 
lost wages portion of Mr. Loos’s judgment represented 
“compensation” to him “for services rendered as an 
employee” and was thus taxable income under the 
Railroad Retirement Tax Act (RRTA).  26 U. S. C. §3201 
et seq.  In much the same way the Social Security Act 
taxes other citizens’ incomes to fund their retirement 
benefits, the RRTA taxes railroad employees’ earnings to 
pay for their public pensions.  And BNSF took the view 
that, because Mr. Loos owed the IRS taxes on the lost 
wages portion of his judgment, it had to withhold an 
appropriate sum and redirect it to the government.  The 
company took this position even though it meant BNSF 
would owe corresponding excise taxes.  See 26 U. S. C. 
§3221.  It took this position, too, even though no one has 
identified for us a single case where the IRS has sought to 
collect RRTA taxes on a FELA judgment in the 80 years 
the two statutes have coexisted.  The company even 
persisted in its view after, fi rst, the district court and, 
then, the Eighth Circuit ruled that Mr. Loos’s award 
wasn’t subject to RRTA taxes.  Even after all that, BNSF 
went to the trouble of seeking review in this Court to win 
the right to pay the IRS. 
 What’s the reason for BNSF’s tireless campaign?  Is the

3 Cite as: 586 U. S. ____ (2019) 
GORSUCH, J., dissenting 
company really moved by a se lfless desire to protect a
federal program from “a long-t erm risk of insolvency”? 
See ante, at 5, n. 2.  Several amici offer a more prosaic
possibility. Under the rule BNSF seeks and wins today,
RRTA taxes will be due on (but only on) the portion of a 
FELA settlement or judgment designated as lost wages. 
Taxes will not attach to other amounts attributed to, say,
pain and suffering or medical co sts.  At trial, of course, a 
plaintiff ’s damages are what they are, and often juries
will attribute a significant portion of damages to lost 
wages. But with the help of the asymmetric tax treatment
they secure today, railroads like BSNF can now sweeten 
their settlement offers while offering less money.  Forgo
trial and accept a lower settlement, they will tell injured 
workers, and in return we will designate a small fraction
(maybe even none) of the payments as taxable lost wages.
In this way, the Court’s decision today may do precisely
nothing to increase the government’s tax collections or 
protect the solvency of any federal program.  Instead, it 
may only mean that employees will pay a tax for going to 
trial—and railroads will succeed in buying cheaper 
settlements in the future at the bargain basement price of
a few thousand dollars in excise taxes in one case today.
See Brief for American Association for Justice as Amicus 
Curiae 34–36; Brief for SMART et al. as Amici Curiae 5–7. 
Whatever the reason for BNSF’s gambit, the problems 
with it start for me at the first step of the statutory
interpretation analysis—with the text of the law itself. 
The RRTA taxes an employee’s “compensation,” which it 
defines as “money remuneration . . . for services rendered 
as an employee to one or more employers.”  26 U. S. C. 
§3231(e)(1).  A “service” refers to “duty or labor . . . by one 
person . . . bound to submit his will to the direction and 
control of [another].”  Black’s Law Dictionary 1607 (3d ed. 
1933). And “remuneration” means “a quid pro quo,” “rec-
ompense” or “reward” for such services.  Id., at 1528. So

4 BNSF R. CO. v. LOOS 
GORSUCH, J., dissenting 
the words “remuneration for services rendered” naturally
cover things like an employee’s salary or hourly wage. 
Nor do they stop there, as the Court correctly notes. 
Rather, and contrary to the court of appeals’ view, those 
words also fairly encompass benefits like sick or disability 
pay.  After all, an employer offers those benefits to attract
and keep employees working on its behalf.  In that way, 
these benefits form part of the “ quid pro quo ” (compensa-
tion) the employer pays to secure the “duty or labor” (ser -
vices) the employee renders.  Cf. United States v. Quality 
Stores, Inc., 572 U. S. 141, 146 (2014).
But damages for negligence are different.  No one would 
describe a dangerous fall or the wrenching of a knee as a 
“service rendered” to the party who negligently caused the
accident. BNSF hardly directed Mr. Loos to fall or offered
to pay him for doing so. In fa ct, BNSF didn’t even pay Mr. 
Loos voluntarily; he had to wrest a judgment from the 
railroad at the end of a legal battle.  So Mr. Loos’s FELA 
judgment seems to me, as it did to every judge in the
proceedings below, unconnected to any service Mr. Loos
rendered to BNSF. Instead of being “compensation” for 
“services rendered as an employee,” it seems more natural 
to say that the negligence damages BNSF paid are “com-
pensation” to Mr. Loos for his injury.  That’s exactly how 
we usually understand tort damages—as “compensation” 
for an “injury” caused by “the unlawful act or omission or 
negligence of another.” Black’s Law Dictionary 314 (2d ed. 
1910).  And that’s exactly how FELA describes the damages
it provides—stating that it  renders a railroad “liable” 
not for services rendered but for any “injury” caused by 
the defendant’s “negligence.” 45 U. S. C. §51; see also New 
York Central R. Co. v. Winfield, 244 U. S. 147, 164 (1917) 
(Brandeis, J., dissenting) (FELA liability is “a penalty for 
wrong doing,” a “remedy” that “mak[es] the wrongdoer
indemnify him whom he has wronged”).
Of course, BNSF isn’t without a reply. Time and again

5 Cite as: 586 U. S. ____ (2019) 
GORSUCH, J., dissenting 
it highlights the fact that the district court measured the 
lost wages portion of Mr. L oos’s award by reference to 
what he could have earned but for his injury. But if 
BNSF’s negligence had injured a passenger on a train
instead of an employee in a train yard, a jury could have 
measured the passenger’s tort damages in exactly the 
same way, taking account of the wages she could have 
earned from her own employer but for the railroad’s negli-
gence. Vicksburg & Meridian R. Co.  v. Putnam, 118 U. S. 
545, 554 (1886).  In those circumstances, I doubt any of us 
would say the passenger’s damages award represented 
compensation for “services rendered” to her employer
rather than compensation for her injury.  And I don’t see 
why we would reach a different result here simply because 
the victim of BNSF’s negligence happened to be one of its 
own workers.  Of course, as the Court points out, ante, at 
11, n. 5, FELA suits may be brought only by railroad 
employees against their employers.  But in cases like ours 
a FELA suit simply serves in the interstate railroad in-
dustry as a federalized substi tute for a traditional state 
negligence tort claim of the sort that could be brought by 
anyone the railroad injured, employee or not. Inescapably,
“the basis of liability under [FELA] is and remains negli-
gence.” Wilkerson v. McCarthy, 336 U. S. 53, 69 (1949) 
(Douglas, J., concurring).
Looking beyond the statute’ s text to its history only
compounds BNSF’s problems.  To be clear, the statutory
history I have in mind here isn’t the sort of unenacted 
legislative history that often is neither truly legislative
(having failed to survive bicameralism and presentment)
nor truly historical (consisting of advocacy aimed at win-
ning in future litigation what couldn’t be won in past
statutes). Instead, I mean here the record of enacted 
changes Congress made to the relevant statutory text over
time, the sort of textual evidence everyone agrees can 
sometimes shed light on meaning.  See United States  v.

6 BNSF R. CO. v. LOOS 
GORSUCH, J., dissenting 
Wong Kim Ark, 169 U. S. 649, 653–654 (1898).
The RRTA’s statutory history is long and instructive.
Beginning in 1937, the statute defined taxable “compensa-
tion” to include remuneration “for services rendered,” but 
with the further instruction that this included compensa-
tion “for time lost.” Carriers Taxing Act of 1937, §1(e), 50 
Stat. 436. Courts applying the RRTA’s sister statute, the 
Railroad Retirement Act (RRA), understood this language 
to capture settlement payments for personal injury claims
that would not otherwise qualify as “remuneration . . . for 
services rendered.” See, e.g., Jacques v. Railroad Retire-
ment Bd., 736 F. 2d 34, 39–40 (CA2 1984); Grant v. Rail-
road Retirement Bd., 173 F. 2d 385, 386–387 (CA10 1949).
Congress itself seemed to agree, explaining in 1946 that 
remuneration for “time los t” includes payments made 
“with respect to an . . . absence on account of personal
injury.” §3(f), 60 Stat. 725.  But then Congress reversed
field. In 1975, it removed payments “for time lost” from
the RRTA’s definition of “compensation.” §204, 89 Stat.
466. And in 1983, Congress overwrote the last remaining 
reference to payments “for time lost” in a nearby section.
§225, 97 Stat. 424–426.  To my mind, Congress’s decision 
to remove the only language that could have fairly cap-
tured the damages here cannot be easily ignored. 
Yet BNSF would have us do exactly that.  On its ac-
count, the RRTA’s discussions about compensation for
time lost and personal injuries only ever served to illus-
trate what has qualified all along as remuneration for 
“services rendered.” So, on its view, when Congress first 
added and then removed language about time lost and 
personal injuries, it quite literally wasted its time because 
none of its additions and subtractions altered the statute’s 
meaning. Put another way, BNSF asks us to read back 
into the law words (time lost , personal injury) that Con-
gress deliberately removed on the assumption they were 
never really needed in the first place. As I see it, that is

7 Cite as: 586 U. S. ____ (2019) 
GORSUCH, J., dissenting 
less “ ‘a construction of a statute [than] an enlargement of 
it by the court, so that what was omitted, [BNSF] pre-
sum[es] by inadvertence, may be included within its scope.
To supply omissions [like that] transcends the judicial
function.’”  West Virginia Univ. Hospitals, Inc.  v. Casey , 
499 U. S. 83, 101 (1991) (quoting Iselin v. United States , 
270 U. S. 245, 251 (1926) (Brandeis, J.)).
Looking beyond the text and history of this statute to
compare it with others confirms the conclusion. Where 
the RRTA directs the taxation of railroad employee income
to fund retirement benefits , the RRA controls the calcula-
tion of those benefits. And, unlike the RRTA, that statute 
continues to include “pay for time lost” in the definition of 
“compensation” it uses to calculate benefits. 45 U. S. C.
§231(h)(1). Normally, when Congress chooses to exclude
terms in one statute while introducing or retaining them 
in another closely related law, we give effect to rather
than pass a blind eye over the difference. Nor is there any
question that Congress knows ex actly how to tax a favor-
able tort judgment when it wants.  See, e.g., 26 U. S. C. 
§104(a)(2) (punitive damages are not deductible). Its 
failure to offer any comparably clear command here 
should, once more, tell us something. 
With so much in the statute’s text, history, and sur-
roundings now pointing for Mr. Loos, BNSF is left to lean 
heavily on case law. The company says we must rule its 
way primarily because of Social Security Bd.  v. Nierotko , 
327 U. S. 358 (1946).  But I do not see anything in that
case dictating a victory for BNSF.  Nierotko concerned a 
different statute, a different legal claim, and a different 
factual context.  There, the plaintiff brought a wrongful 
termination claim before the National Labor Relations 
Board, claiming that his empl oyer fired him in retaliation
for union activity. The NL RB ordered the employee rein-
stated to his former job and paid as if he had never left. 
Under those circumstances, this Court held that for pur-

8 BNSF R. CO. v. LOOS 
GORSUCH, J., dissenting 
poses of calculating the plai ntiff ’s Social Security Act
benefits, his “wages” should include his backpay award, 
allocated to the period when he would have been working
but for the employer’s miscon duct.  Since then, however, 
the Court has suggested that at least one of Nierotko’s 
holdings was likely motivated more by a policy concern
with protecting the employee’s full retirement to Social
Security benefits than by a careful reading of the Social 
Security Act.  See United States  v. Cleveland Indians 
Baseball Co. , 532 U. S. 200, 212–213 (2001); id., at 220– 
221 (Scalia, J., concurring in judgment). Besides, in this 
case we’re simply not faced with a wrongful termination
claim, an award of backpay, or the interpretation of the 
Social Security Act—let alone reason to worry that ruling 
for Mr. Loos would inequitably shortchange an employee.
So whatever light Nierotko might continue to shed on the 
question it faced, and whatever superficial similarities one 
might point to here, that decision simply doesn’t dictate an
answer to the question whether a tort victim’s damages for 
a physical injury qualify as “compensation for services
rendered” under the RRTA. 
By this point BNSF is left with only one argument, 
which it treats as no more than a last resort: Chevron 
deference. In the past, the briefs and oral argument in
this case likely would have centered on whether we should 
defer to the IRS’s administra tive interpretation of the
RRTA.  After all, the IRS (at least today) agrees with
BNSF’s interpretation that “compensation . . . for services 
rendered” includes damages for personal injuries. And the 
Chevron doctrine, if it retains any force, would seem to 
allow BNSF to parlay any statutory ambiguity into a
colorable argument for judicial deference to the IRS’s view,
regardless of the Court’s best independent understanding 
of the law.  See Chevron U. S. A. Inc. v. Natural Resources 
Defense Council, Inc., 467 U. S. 837 (1984).  Of course, any 
Chevron analysis here would be complicated by the gov -

9 Cite as: 586 U. S. ____ (2019) 
GORSUCH, J., dissenting 
ernment’s change of heart. For if Nierotko is as relevant 
as BNSF contends, then it must also be relevant that, 
back when Nierotko was decided, the IRS took the view 
that the term “wages” in the Social Security Act did not 
include backpay awards for wrongful termination.  See 
327 U. S., at 366–367.  And if “wages” don’t include back-
pay awards for wrongful terminations, it’s hard to see how 
“compensation . . . for services rendered” might include
damages for an act of negligence. Still, even with the 
complications that follow from  executive agencies’ pench- 
ant for changing their views about the law’s meaning
almost as often as they change administrations, a plea for
deference surely would have enjoyed pride of place in
BNSF’s submission not long ago. 
But nothing like that happened here.  BNSF devoted 
scarcely any of its briefing to Chevron. At oral argument,
BNSF’s lawyer didn’t even mention the case until the final 
seconds—and even then “hate[d] to cite” it.  Tr. of Oral 
Arg. 58. No doubt, BNSF proceeded this way well aware
of the mounting criticism of Chevron deference.  See, e.g., 
Pereira v. Sessions , 585 U. S. ___, ___–___ (2018) (Kenne-
dy, J., concurring). And no doubt, too, this is all to the 
good. Instead of throwing up our hands and letting an
interested party—the federal government’s executive 
branch, no less—dictate an inferior interpretation of the
law that may be more the product of politics than a scru-
pulous reading of the statute, the Court today buckles 
down to its job of saying what the law is in light of its text, 
its context, and our precedent.  Though I may disagree 
with the result the Court reaches, my colleagues rightly
afford the parties before us an independent judicial inter -
pretation of the law. They deserve no less.

Retrieval chunks

• #1

  1 (Slip Opinion) OCTOBER TERM, 2018 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the…

• #2

  amounts are determined by the worker ’s “wages,” the Social Security equivalent to “compensation.” Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA def - initions of “compensation.” The term “wages” means “all remunera - tion” for “any service, of whatever nature, perf…

• #3

  with Nierotko, which held that “wages” included backpay awarded to redress “the loss of wages” occasioned by “the employer’s wrong.” 327 U. S., at 364. Loos also argues that the excl usion of personal injury damages from “gross income” for federal income tax purposes, see 26 U. S. C. §104(a)(2), should carry ove…

• #4

  The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on…

• #5

  ments. The RRA is administered by the Railroad Retire- ment Board. See §231f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U. S. C. §§3201, 3221; 45 U. S. C. §231b. The RRTA and RRA separately define “compensation,” but both statutes state that the term m…

• #6

  the Federal Insurance Contributions Act (FICA), 26 U. S. C. §3101 et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), 49 Stat. 620, as amended, 42 U. S. C. §301 et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social …

• #7

  pay for active service plus pay received for periods of absence from active service. Id., at 366. Backpay, we —————— 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure o…

• #8

  ages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully 7 Cite as: 586 U. S. ____ (2019) Opinion of the Court separated from his job.” Nierotko, 327 U. S., at 364. Just as Nierotko held that bac…

• #9

  stand the Eighth Circuit’s position, and why, in our judg- ment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.…

• #10

  tions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time lost. 865 F. 3d, at 1119; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration . . …

• #11

  pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ inter- pretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration . . . for services rendered” means the…

• #12

  however, this distinction is of cour se critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employ- ment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they ar e paid only if the injured person previously “rendered [services…

• #13

  excise tax on such compensation; and employees receive full credit for the compensation in determining their re - tirement benefits. That scheme, however, is not plausibly attributable to Congress. For federal income tax pu rposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U. S. C. …

• #14

  Quality Stores , we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for peri ods of absence from active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the payment is remitted …

• #15

  Employers’ Liability Act (FELA), an analogue to traditional state-law tort suits that makes an interstate railroad “liable in damages to any person suffering injury while he is employed” by the railroad “for such injury . . . resulting in whole or in part from the [railroad’s] negligence.” 45 U. S. C. §51. Ulti…

• #16

  plaintiff ’s damages are what they are, and often juries will attribute a significant portion of damages to lost wages. But with the help of the asymmetric tax treatment they secure today, railroads like BSNF can now sweeten their settlement offers while offering less money. Forgo trial and accept a lower settle…

• #17

  accident. BNSF hardly directed Mr. Loos to fall or offered to pay him for doing so. In fa ct, BNSF didn’t even pay Mr. Loos voluntarily; he had to wrest a judgment from the railroad at the end of a legal battle. So Mr. Loos’s FELA judgment seems to me, as it did to every judge in the proceedings below, unconnect…

• #18

  negligence tort claim of the sort that could be brought by anyone the railroad injured, employee or not. Inescapably, “the basis of liability under [FELA] is and remains negli- gence.” Wilkerson v. McCarthy, 336 U. S. 53, 69 (1949) (Douglas, J., concurring). Looking beyond the statute’ s text to its history only …

• #19

  trate what has qualified all along as remuneration for “services rendered.” So, on its view, when Congress first added and then removed language about time lost and personal injuries, it quite literally wasted its time because none of its additions and subtractions altered the statute’s meaning. Put another way, …

• #20

  for union activity. The NL RB ordered the employee rein- stated to his former job and paid as if he had never left. Under those circumstances, this Court held that for pur- 8 BNSF R. CO. v. LOOS GORSUCH, J., dissenting poses of calculating the plai ntiff ’s Social Security Act benefits, his “wages” should includ…

• #21

  back when Nierotko was decided, the IRS took the view that the term “wages” in the Social Security Act did not include backpay awards for wrongful termination. See 327 U. S., at 366–367. And if “wages” don’t include back- pay awards for wrongful terminations, it’s hard to see how “compensation . . . for service…