Lead Opinion
Dissenting opinion filed by Circuit Judge O’Malley.
Appellant New York and Presbyterian Hospital (“the Hospital”)
The Hospital appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We reverse and remand.
Background
I, The Relevant Statutory and Regulatory Framework
Pursuant to the Federal Insurance Contributions Act (“FICA”), I.R.C. §§ 3101-3128, employees and employers each pay taxes based on wages paid to employees. See id. §§ 3101 (Tax on Employees), 3111 (Tax on Employers). Generally, the employee’s FICA taxes are “collected by the employer of the taxpayer[] by deducting the amount of the tax -from the wages as and when paid.” Id. § 3102(a). The subsection at issue on appeal, § 3102(b), further provides that “[e]very employer required so to deduct the tax shall be liable for the payment of such tax, and shall be indemnified against the claims and demands of any person for the amount.of any such payment made by such employer.”
There are certain exceptións to' the FICA tax. Relevant here, under the student exception, FICA taxes do not apply to wages for “service performed in the employ of ... a school, college, or university ... if such service is performed by a student who is enrolled and regularly attending classes at such school, college, or university.” Id. § 3121(b)(l0). Although the Internal Revenue Service (“IRS”) determined that “medical residents were not eligible for the student exception and required hospitals employing medical residents to withhold the employee share of FICA taxes from residents’ paychecks and pay the withheld amounts and the employer share to the [Gjovernment,” the scope of the student exception became subject to litigation. N.Y. & Presbyterian Hosp.,
In 2004, the IRS implemented a regulation excluding medical residents from the student exception for services provided after April 1, 2005. N.Y. & Presbyterian Hosp.,
II. The District Court Litigation
In August 2013, former medical residents (“the District Court Plaintiffs”) sued the Hospital in the District Court, alleging that the Hospital had not filed protective refund claims between January 1995 and June 2001, and asserting claims of fraud, constructive fraud, breach of fiduciary duty, negligent misrepresentation, negligence, breach of contract, and unjust enrichment. See Childers v. N.Y. & Presbyterian Hosp.,
After the District Court declined the Hospital’s request to certify its denial of the Hospital’s Motion to Dismiss for immediate appeal, see id. at 315, the Hospital petitioned for writs of mandamus, e.g., J.A. 117, each of which the U.S. Court of Appeals for the Second Circuit denied, J.A. 157. The Hospital decided to pursue settlement and, in November 2015, the Hospital and the District Court Plaintiffs entered into a settlement agreement, whereby the Hospital agreed to pay the District Court Plaintiffs $6,632,000. See J.A. 346, 348; see also J.A. 261. Relevant here, the Settlement Agreement provides that the settlement award “can be appropriately characterized as a refund for the amount of FICA taxes previously withheld by the Hospital.” J.A. 275. Upon approving the the Settlement Agreement, the District Court dismissed the District Court Plaintiffs’ claims. See J.A. 358.
III. The Court of Federal Claims Litigation
In April 2016, the Hospital filed its Complaint in the Court of Federal Claims,
Discussion
I. Standard of Review and Legal Standard
We review the Court of Federal Claims’ dismissal of an action for lack of subject matter jurisdiction de novo, Coast Prof'l, Inc. v. United States,
Pursuant to the Tucker Act, the Court of Federal Claims has jurisdiction
to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1). The Tucker Act is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. ... [T]he Act merely confers jurisdiction upon [the Court of Federal Claims] whenever the substantive right exists.” United States v. Testan,
Although the waiver of sovereign immunity must be unequivocal, see United States v. White Mountain Apache Tribe,
This fair interpretation rule demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity. ... It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim' will not be lightly inferred, a fair inference will do.
White Mountain,
II. The Court of Federal Claims Erred in Concluding • that It Lacked ‘Subject ■. ■ Matter Jurisdiction over the Hospital’s Complaint
The sole issue on appeal is whether § 3102(b)’s “shall • be indemnified” language is a money-mandating source of substantive law.
A. The Plain Language of § 3102(b)
We begin with the plain language of § 3102(b). See BedRoc Ltd. v. United States,
Three contemporaneous dictionaries support the conclusion that the plain meaning of “indemnified” includes monetary compensation.
Second, both the 1917 and 1942 editions of Webster’s New International Dictionary of the English Language defined “indemnify” similarly, with the 1917 version defining the term to mean: “1. To save harmless; to secure against loss or damage. ... 2. To make restitution or compensation to, as- for a loss, damage, etc.; to make whole; to reimburse; to compensate; also, to make good (a loss).” Indemnify, Webster’s New Int’l Dictionary of-the English Language (1st ed. 1917); see Indemnify, Webster’s New Int’l Dictionary of the English Language (2d ed. 1942) (similar); see also Indemnification, Webster’s New Int’l Dictionary of the English Language (1st ed. 1917) (defining “indemnification” to mean, inter alia, a “process of indemnifying, preserving, or securing against loss, damage, or penalty; reimbursement of. loss, damage, or penalty; the state of being indemnified” and defining “indemnity” to mean, inter alia, “^Indemnification, compensation, or remuneration for loss, damage, or injury sustained”); Indemnification, Webster’s New Int’l Dictionary of the English Language (2d ed. 1942) (similar).
Third, and finally, the 1933 version of Black’s Law Dictionary defined “indemnify” to mean: “To save harmless; to secure against loss or damage; to give security for the reimbursement of a person in case of an anticipated loss falling upon him. ... Also to make good; to compensate; to make reimbursement to one of a loss already incurred by him.” Indemnify, Black’s Law Dictionary (3d ed. 1933); see Indemnity, Black’s Law Dictionary (3d ed. 1933) (stating that “indemnity” “is also used to denote a compensation given to make the person whole from a loss already sustained”).
Based on a review of these three contemporaneous dictionaries, the plain meaning of “indemnify” included monetary compensation at the time of § 3102(b)’s enactment. Not only do all three dictionaries include “to compensate” in their definitions, Indemnify, Webster’s New Int’l Dictionary of the English Language (1st ed. 1917); see also Indemnify, Webster’s New Int’l Dictionary of the English Language (2d ed. 1942); Indemnify, The Oxford English Dictionary (1st ed. 1933); Indemnify, Black’s Law Dictionary (3d ed. 1933), two discuss reimbursement, Indemnify, Webster’s New Int’l Dictionary of the English Language (1st ed. 1917); see also Indemnify, Webster’s New Int’l Dictionary of the English Language (2d ed. 1942); Indemnify, Black’s Law Dictionary (3d ed. 1933), the very relief that the Hospital seeks here.
The Government’s counterarguments are unpersuasive. Echoing the Court of Federal Claims’ erroneous reasoning, the Government argues that “dictionaries during the time of enactment of ... § 3102(b) consistently defined the terms ‘indemnify’ and ‘indemnity,’ in the first definition or sense of the word, to mean immunity from liability.” Appellee’s Br. 30 (emphasis added); see N.Y. & Presbyterian Hosp.,
The Government also avers that “the Hospital’s reading of § 3102(b) as a reimbursement provision cannot be squared with the first clause of the statute” because
it would make little sense to read the very next clause of the statute as authorizing employers who have so collected and paid FICA taxes to the IRS to turn around and, at their own whim, pay the “claims” and “demands” of their employees ..., and then be entitled to full reimbursement from the United States for doing so.
Appellee’s Br. 32-33. Although it is true that “[statutes should be interpreted to avoid ... unreasonable results whenever possible,” Am. Tobacco Co. v. Patterson,
• -In sum, we conclude that, at the time of § 3102(b)’s enactment, “indemnify” was commonly understood to mean “to compensate” and “to reimburse,” thereby supporting the conclusion that § 3102(b) is reasonably amenable to an interpretation that it is money-mandating.
B, Section 3102(b)’s Relationship to Other Provisions of the Internal Revenue Code
Other provisions of the Internal Revenue Code also may inform our interpretation of § 3102(b). See Davis v. Mich. Dep’t of the Treasury,
First, both § 3202(b), which is the counterpart to § 3102 for railroad employers and employees,
Second, § 7422 provides that taxpayers “may bring ‘[n]o suit’ in ‘any court’ to recover ‘any internal revenue tax’ or ‘any sum’ alleged to have been wrongfully collected ‘in any manner,’ ” United States v. Clintwood Elkhorn Mining Co.,
C. Legislative History
Courts also may rely on legislative history to inform their interpretation of statutes. See Thunder Basin Coal Co. v. Reich,
The only relevant legislative history identified by either the parties or this court is the House Report on § 802(a) of the Social Security Act, § 3102(b)’s predecessor. See Appellant’s Br. 29-30; Appel-lee’s Br. 33-34. The-House Report states that, “[t]o protect the employer, he is in-damnified against any claims and demands with respect to that part of the wages of the employee which he withheld, up to the correct amount withheld and paid to the United States.” H.R. Rep. No. 74-615, at 30 (1985). By providing for indemnification up to the “correct amount,” the House Report indicates that Congress understood “indemnification” to contemplate the payment of money. If read otherwise, it would allow an employer to sue for more than the correct amount. Thus, we hold that § 3102(b) is a money-mandating provision, in light of the statute’s text, structure, and legislative history.
Conclusion
We have considered the parties’ remaining arguments and find them unpersuasive. Accordingly, the Final Judgment of the Court of Federal Claims is
REVERSED AND REMANDED
Costs
Costs to the Hospital.
Notes
, ■ The Hospital is the successor of two entities that merged in 1998: The Society of The New York Hospital and The Presbyterian Hospital. J.A. 30. For ease of reference, we refer to all three entities, individually and collectively, as the Hospital.
. The parties do not contest the Court of Federal Claims' recitation of the relevant facts, see Appellant's Br. 3-17; Appellee’s Br. 3-17, which it properly derived from the Hospital’s complaint, see N.Y. & Presbyterian Hosp.,
. Following the denial of certification for immediate appeal, the Hospital filed a third-party complaint in the District Court that listed the Government as a third-party defendant, J.A. 158-67; however, the District Court later dismissed the Third-Party Complaint without prejudice at the Hospital's request, N.Y. & Presbyterian Hosp.,
. While the Court of Federal Claims articulated the fair interpretation standard, N.Y. & Presbyterian Hosp.,
. Section 3102(b) provides, in its entirely, that "[e]very employer required so to deduct the tax shall be liable for the payment of such tax, and shall be indemnified against the claims and demands of any person for the amount of any such payment made by such employer.”
. , Although we hold that § 3102(b) is "reasonably amenable” to this interpretation in accordance with the Supreme Court's standard, White Mountain, 537 U.S, at 472-73,
.' Of the phrase "shall be indemnified,” only the term "indemnified” requires ’interpretation. It is undisputed that § 3102(b)'s use of "shall” mandates indemnification. See Appellant’s Br. 27-40; Appellee’s Br. 24-44; see also Kingdomwdre Techs., Inc. v. United States, — U.S. -,
. Section 3102(b) originally was enacted in 1935 as § 802(a) of the Social Security Act. See Social Security Act, ch. 531, tit. VIII, § 802(a), 49 Stat 620, 636 (1935) (stating, in relevant part, that ”[e]veiy employer ... is hereby indemnified”); see also-Internal Revenue Code, ch. 9A, § 1401(b), 53 Stat. 1, 175 (1939) (codifying the-current "shall be indemnified” language). We focus our- analysis on the dictionaries contemporaneous- to § 3102(b)'s enactment in 1935, see Sandifer,
. This definition also comports with the common law definition of ''indemnify” contemporaneous with § 3102(b)’s enactment. See Restatement (First) of Restitution § 80 (Am. Law Inst. 1937) ("A person who ... is entitled to indemnity ... is entitled to reimbursement....”)
. Indeed, in an opinion issued by the Department of Justice’s Office of Legal Counsel, the Government has acknowledged that "§ 3102(b) might be read as a promise to compensate employers for their liability arising out of the FICA tax collection process rather than as a legal exemption from liability in the first instance.” Prejudgment Interest Under the Back Pay Act for Refunds of Fed. Ins. Contributions Act Overpayments,
. To support this erroneous analysis, the Government cites Muscarello v. United States,
. The Government further contends that ‘‘[t]he Hospital's position that § 3102(b) provides for reimbursement also cannot be reconciled with the numerous cases holding that FICA does not create a private cause of action for employees to sue their employers over the withholding and payment of FICA taxes.” Appellee's Br. 41; see id. at 41-44 (discussing, inter alia, Umland v. PLANCO Fin. Servs., Inc.,
. . Section 3202(b) is entitled "Indemnification of employer,” and the Court of Federal Claims held that "[§ ] 3202(b) uses both ‘indemnified’ and 'not ... liable’ in the same provision to mean the same thing.” N.Y. & Presbyterian Hosp., 128 Fed.CL at 372. For the reasons outlined herein, we hold that the Court of Federal Claims erroneously equated "indemnified” and "not ... liable.”'Moreover, as the Government concedes, see Appel-lee's Br. 49, the Internal Revenue Code explicitly provides that its titles have no legal effect, see I.R.C. '§ 7806(b) ("No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title .... ”); see also United States v. Reorganized CF & I Fabricators of Utah, Inc.,
. When originally enacted, both §§ 3202(b) and 3403 provided that the employer is “hereby indemnified,” Carriers and Employees Tax Act of 1935, Pub. L. No. 74-400, ch. 813, § 3(a), 49 Stat, 974, 975 (predecessor to § 3202(b)); Revenue Act of 1916, ch. 463, § 9(b), 39 Stat. 756, 764 (predecessor to § 3403), but Congress later replaced that language with the current “shall hot be liable” language. Revenue Act of 1942, ch. 619, § 467(b), 56 Stat. 798, 891 (predecessor to § 3403); Internal Revenue. Code of 1939, ch. 9B, § 1501(b), 53 Stat. 1, 179 (predecessor to § 3202(b)). To the extent these subsequent amendments may inform Congressional intent, we find instructive Congress's decision not to amend § 802(a) of the Social Security Act, § 3102(b)’s predecessor, despite the statutes' similar wordings arid purposes. See Haig v. Agee,
. The Government argues that, "if the Hospital’s reading of § 3102(b) as a reimbursement provision were correct, then there would be no need for employees to file refund claims with the IRS, so long as their employers were willing to pay their claims and obtain reimbursement from the United States," Appellee’s Br, 37, which would render § 7422 "virtually a dead letter," id. (internal quotation marks and citation omitted), and allow "employees and employers [to] easily circumvent” the Internal Revenue Code’s refund scheme, id. at' 38; see id. at 35-41. We need not decide whether § 3102(b) is inconsistent with § 7422’s refund scheme because "[t]he role of this [c]ourt is to apply the statute as it is written—even if we think some other approach might accord' with good policy.” San-difer,
Dissenting Opinion
dissenting.
I agree with the majority that a statute is money-mandating for the purposes of Tucker Act jurisdiction if it “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.” United States v. White Mountain Apache Tribe,
I.
The threshold question in this case is how we are to determine whether a statute is money-mandating. The governing test originates in United States v. Testan,
The Court returned to this question in White Mountain. In a 5-4 decision, the Court held again that “a statute creates a right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it ‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’”
Four justices dissented, suggesting that the Court had loosened the relevant test and “engage[d] in a new inquiry, asking whether common-law trust principles permit a ‘fair inference’ that money damages are available, that finds no support in existing law.” Id. at 482,
Before White Mountain, our precedent suggested a two-step inquiry where, “for purposes of satisfying the jurisdictional requirement that a money-mandating statute or regulation is before the court, the plaintiff need only make a non-frivolous allegation that the statute or regulation may be interpreted as money-mandating.” Fisher,
In Fisher, we overruled this line of cases. Id. at 1172-73. We held instead that:
When a complaint is filed alleging a Tucker Act claim based on a Constitutional provision, statute, or regulation, the trial court at the outset shall determine, either in response to a motion by the Government or sua sponte (the court is always responsible for its own jurisdiction), whether -the Constitutional provision, statute, or regulation is one that is money-mandating. ... For purposes of the case before the trial court, the determination that the source is money-mandating shall be determinative both as to the question of the court’s jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.
Id. at 1173.
It is not readily apparent how we are to reconcile the “reasonably amenable” language in White Mountain with our discussion in Fisher, which postdated White Mountain. The majority concludes that White Mountain set forth an apparently permissive test, where, if a statute is “reasonably amenable” to a money-mandating reading, the jurisdictional requirement is satisfied, even if, upon further inquiry, a thorough review of the statutory scheme at issue would lead to a contrary conclusion.
Soon after we issued our opinion in Fisher, the Court of Federal Claims grappled with this problem in Contreras v. United States,
To read “fair inference” to mean any-, thing, less than the normal, inference used in interpreting a statute ... would make little- sense, particularly in light of [Fisher’s] elimination of the “two-step process.” The meaning of a statute when this Court determines if a case is within its jurisdiction is the same as its meaning when the Court determines the merits of the case.. How could it be that a, statute would require the government to pay money, damages merely because it arguably can be read to require the government to pay. money damages? To ■be close to something is not the same as being it. Surely, “good enough for government liability” is not the measure of our Court’s jurisdiction.
Id. at 592 (citing Fisher,
In short, Contreras held—and the government argues here—that the test is not whether a money-mandating interpretation of a statute is reasonable, but whether it is correct. The government argues that a statute can only be “fairly interpreted” via application of all traditional principles of statutory interpretation, leading to the single, most correct, reading. That is, admittedly, a somewhat strained reading of the Supreme Court’s phrasing in White Mountain; a statute may well be “amenable” to multiple reasonable interpretations. See White Mountain,
But'that approach is not compatible with Fisher. And I do not believe it is compelled by White Mountain. The majority’s conclusion would mean that the Supreme Court did intend to change the law in White Mountain. But, if we are to determine in a single step and for all purposes whether a statute is money-mandating, we have no choice but to decide the most correct interpretation of the purportedly money-mandating statute , in that one step—i.e., the truly “fair” interpretation of it. It cannot be that a statute mandates that the government must pay monetary compensation on a set of claims merely if the statute could be read to permit it. At most, I read Testan, Mitchell, White Mountain, and Fisher to instruct courts to construe statutes liberally in determining whether they are money-mandating.
II.
The majority holds repeatedly that' “§ 3102(b) is reasonably amenable to an interpretation that it is money-mandating.” Maj. Op. at 886, 887. It does not, however, engage with what the words “reasonably amenable” mean in light of Fisher. This oversight leads the majority to the wrong result.
A.
The majority starts, as it must, with the plain language of § 3102(b). Id. at 882. In relevant part, § 3102(b) provides that every employer required, to deduct -FICA taxes “shall be liable for the payment of such tax, .and shall be indemnified against the claims and demands of any person for the amount of any such payment made by such employer.”
The majority finds, understandably, that the plain meaning of the word “indemnified” encompasses monetary compensation. Maj. Op. at 882-84. But the majority errs in its response to the government’s argument that, at. the time the statutory language was drafted, the word “indemnified” primarily referred to immunity from liability. The majority contends that “the fair interpretation standard used to determine whether a statute is money-mandating does not require courts to evaluate whether the ‘first’ or ‘primary’ meaning of the statute mandates compensation.” Id. at 884-85. “In'stead,” the majority holds, the standard ’ “requires courts to evaluate whether the statute is ‘reasonably amenable to the reading that it mandates a right of recovery in damages.’ ” Id. (alteration in original) (quoting White. Mountain,
The majority asks whether the word “indemnified” can mean a right to reimbursement. White Mountain and Fisher, however, require us to decide whether “indemnified” does confer a right to reimbursement, or at least can fairly be interpreted that way. In effect, the majority determines whether a money-mandating interpretation of § 3102(b) is permissible under Chevron, not whether it is fair under White Mountain and Fisher. In the context of the statutory scheme, I would find that it is not.
When the similarly phrased predecessor to § 3102(b) was enacted,
The majority is correct that the “plain meaning of ‘indemnify included monetary compensation.” Maj. Op. at 883 (emphasis added). As the majority notes, several contemporaneous dictionaries also defined the word to refer to a right to reimbursement. Id. at 883-84. At the very least, however, the term is ambiguous. And, because we must determine whether the statute is money-mandating, we are obligated to resolve the ambiguity, even if, in doing so, we are to construe the statute liberally.
“[T]he words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury,
The “expansive reach” of § 7422 ensures “that taxpayers seeking refunds of unlawfully assessed taxes must comply with the Code’s refund scheme before bringing suit, including the requirement to file a timely administrative claim.” United States v. Clintwood Elkhorn Min. Co.,
Given this framework, it would make no sense for § 3102(b) to give the employer a right of reimbursement against “claims or demands ... for the amount of’ FICA taxes paid. The statutory scheme directs taxpayers’ refund claims first towards the administrative process and then to suits against the government. No part of this process involves the employer. It is implausible that Congress created a reimbursement provision applicable solely to a procedural avenue that it explicitly precluded. And it hardly seems “fair” to interpret the statutory scheme as one which permits the employer, at its whim, to pay tax refunds to its own employees and then turn around and demand reimbursement from the government.
B.
The majority also points to other provisions of the tax code that eschew the “shall be indemnified” language of § 3102(b) in favor of the clearer statement that the “employer ... shall not be liable” for the amount of taxes deducted. 26 U.S.C. §§ 3202(b), 3403. The former should be interpreted differently from the latter, the majority posits, in light of the canon of construction that Congress intends different phrases in the same law to have different meanings. Maj. Op. at 886-87 (citing Sebelius v. Cloer,
That principle applies with substantially less force to legislative activity like this, where the statutes in question were enacted piecemeal over the course of decades. Indeed, as the majority observes, the predecessor statutes to §§ 3202(b) and 3403 originally provided that the employer was “hereby indemnified” against demands for taxes paid. Carriers and Employees Tax Act of 1935, Pub. L. No. 74-400, § 3(a), 49 Stat. 974, 975 (predecessor to § 3202(b)); Revenue Act of 1916, Pub. L. No. 64-271, § 9(b), 39 Stat. 756, 764 (predecessor to § 3403). These statutes were later amended to say that the employer “shall not be liable” for such demands. Internal Revenue Code of 1939, Pub. L. No. 76-1, § 1501(b), 53 Stat. 1, 179 (1939) (predecessor to § 3202(b)); Revenue Act of 1942, Pub. L. No. 77-753, § 467(b), 56 Stat. 798, 891 (predecessor to § 3403).
The majority also finds that “§ 7422 demonstrates that Congress knew how to craft an immunity provision when it so desired.” Maj. Op. at 887. But § 7422, unlike §§ 3202(b) and 3403, is not primarily an immunity provision for employers. Section 7422(f) provides that a tax refund suit “may be maintained only against the United States and not against any officer or employee of the United States (or former officer or employee) or his personal representative.” Although the first clause of § 7422(f) implicitly confers immunity on employers by requiring claimants to bring suit against the United States instead, the' remainder of the provision makes clear that its principal goal is to immunize officers or employees of the United States from suit. And, to the extent § 7422 renders § 3102(b) redundant if the latter is read as an immunity provision, the same is true with regard to §§ 3202(b) and 3403. Faced with the choice to read a statute as either redundant or nonsensical, we have no choice but to take the former route. Cf. Chickasaw Nation v. United States,
C.
The majority finally notes that the legislative history of § 3102(b) indicates that the provision indemnifies employers “against any claims and demands with respect to that part of the wages of the employee which he withheld, up to the correct amount withheld and paid to the United States.” H.R. Rep. 'No. 74-615, at 30 (1935) (emphasis added). The emphasized language, the majority contends, “indicates that Congress understood ‘indemnification’ to contemplate the payment of money.” Maj. Op. at 887.
The reference to the “amount” paid does not imply that § 3102(b) contemplates reimbursement. As enacted, § 3102(b) provides that the employer “shall be indemnified .... for the’ amount, of’ taxes paid. Sections 3202(b) and 3403, which are undoubtedly immunity provisions, similarly specify that the employer “shall not be liable ... for the amount of’ taxes paid. Section 3102(b) should be read the same way.
III.
For the reasons above, I would affirm the thoughtful decision of the Court of Federal Claims. I respectfully dissent.
,. It is unclear-how the liberal- construction, mandate relating to remedial statutes applies in these circumstances. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 364-66 (2012) (discussing, and criticizing, the rule that remedial statutes should be liberally construed).
. The majority indicates in a footnote that it also "believe[s]” that the money-mandating interpretation of § 3102(b) is "the only reasonable” one. Op. at 882 n.6. Obviously, I disagree with that proposition. I note, moreover, that the majority's analysis focuses solely on whether its interpretation is reasonable and not, as Fisher requires, on whether the money-mandating interpretation is better than the alternative.
. As the majority notes, § 3102(b) "originally was enacted in 1935 as § 802(a) of the Social Security Act,” and "neither party contends that [any subsequent] amendments to the language affect our analysis.” Maj. Op. at 883 n.8 (citing Social Security Act, ch. 531, tit. VIII, § 802(a), 49 Stat. 620, 636 (1935)).
. Like the majority, I do not find the ordering of the definitions in these dictionaries particularly significant.
. The majority appears to recognize that its interpretation of § 3102(b) would lead to unreasonable results, but it holds nevertheless that § 3102(b) is money-mandating because "the plain language of § 3102(b) is reasonably amenable to an interpretation that it mandates reimbursement.” Maj. Op. at 885.
. In fact, when Congress amended the predecessor to § 3202(b) in 1939 to include the "shall not be liable” language, it also inserted the heading "[¡Indemnification of employer.” § 1501(b),