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 “compensation” to include remuneration “for services rendered,” but with the further instruction that this included compensation “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 Retirement Bd., 736 F. 2d 34, 39–40 (CA2 1984); Grant v. Railroad Retirement Bd., 173 F. 2d 385, 386–387 (CA10 1949). Congress itself seemed to agree, explaining in 1946 that remuneration for “time lost” 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 captured the damages here cannot be easily ignored.
Yet BNSF would have us do exactly that. On its account, the RRTA’s discussions about compensation for time lost and personal injuries only ever served to illustrate 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 Congress deliberately removed on the assumption they were never really needed in the first place. As I see it, that is
