Page:BNSF Railway Company v. Michael D. Loos.pdf/25

8 of calculating the plaintiff’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 misconduct. 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 administrative 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