we will hear argument next in our fourth case eighteen two one zero two grover against office of personnel management mr jackman whenever you're ready you when this court found in the previous iteration of with case that when the a c f far differs from the statute o p m loses because example is not subject to retirement with holdings and therefore not creditable for retirement purposes but there's never been a statute in the history of this country that ever authorized the use of with the effort of o p m three disk not to allow certain money into the calculation when it was sent back the administrative judge have paved eight of the opinion previously heard this case and it was determined as i'm sure the court recalled that there was a potential inconsistency in parts of the retirement record and therefore o p m was required to resolve that inconsistency before determining conclusively the amount of specifically overtime pay that mr grover had received on remand o p m provided to the board the pay stubs that this court correctly identified we're well positioned to help resolve this apparent conflict and they did indeed do that the pay stubs demonstrates that mr grover contrary to his previous longstanding arguments did not receive anything close to the statutory maximum of seventeen thousand dollars and five hundred seventy thousand five hundred dollars of potentially include a full copra overtime in any of the relevant years and so what explains the large discrepancy is these other categories of compensation premium pay relocation allowances etc now the statutory scheme specifically provides as we've discussed in the last  eration that for a customs officer such as mr grover overtime pay is included will in retirement annuity calculations up to the half of the statutory maximum of that pay or seventeen thousand five hundred dollars that as we've now determined was never received in an amount approaching that statutory maximum it became clear from the record and the declaration from a senior member of the preparer of the i r s that the notation in the previous of seventeen thousand five hundred was designed only to put o p m on notice that some portion of that type of pay had been received and that that was the statutory maximum allowable to be included so that portion of the case has been resolved now mr grover has shifted gears and instead argues that all of his gross pay as is included will by dint of the fact that it was received and disagrees with the statutory regulatory basis there is of course as premium pay for vide for under this subsection may not be treated as overtime pay or compensation for any purpose so that portion of the pay which includes if you can read down the statute and read down mr grover's paystub you can see that matches up exactly sunday differential pay night differential pay and holiday pay those types of pay are all specifically by that statute and then by the regulation which in no way conflicts with that you but interprets it makes a little bit clear this is one thousand see a far twenty four sixteen makes it abundantly clear that premium pay is not included will for federal retirement benefit purposes so those portions of the pay  clear now mr grover's brief refers to some other statutes that also provide for premium pay and in some cases those may be included in a retirement into the calculation for certain types of employees none of th rate officer in particular in one circumstance yes the the one specifically relied on in mr grover's brief it applies only to law enforcement officers no allegation that mr brewer was a law enforcement officer of the statute defines what a law enforcement officer is in a way that makes it clear that mr berger was not one there is another provision in there that provides for the inclusion of pay when i say there i mean in five u s c eighty three thirty one which defines the components of basic pay which is essentially the operative term for the calculation of retirement annuity there is provision for inclusion of premium pay under five u s c scuse me section fifty five forty five c one that type of pay there's no allegation that that is the type of pay here that specifically applies to overtime or extra work that is a substantial part of which consists of remaining in a standby status rather than performing work no indication that mr grover received any type of this pay in we can tell from the amount of premium paid mr grover received that this is not the type of premium face he was paid because that type of pay a statutory limited to a bonus to a premium of twenty five percent whereas at least portions of the premium pay that mr grover received were up to fifty percent and that's allowable under cobra which is clearly the law under which mr grover was paid this premium but not under this other type of premium pay copra of course as i previously stated provides expressly that if an officer of customs officer is paid premium pay under that law they are not entitled to any premiums under any other law and that's in the statute at section two thousand and seven the statute under which that is paid is actually not abundantly clear from the record and i should make clear that in preparing for oral argument today it became clear that we should have also cited  brief two five u s c fifty seven fifty three which is another statute that provides authority to pay relocation bonuses that's correct your honor it's unclear from the record we tried to determine whether we could tell with certainty whether mr grover's relocation allowance which is reflected was paid under this five u s c fifty seven fifty three or whether it was under as mr grover alleges five u s c fifty seven twenty four eight in either case it's not include a bill for retirement i knew of the purposes fifty seven fifty three if that is the basis for mr grover's retiree relocation allowance that statute itself makes abundantly clear that quote a bonus under this section is not part of the basic say of an employee for any purpose the statute five us even if you just remind me everything has to come back into this term basic in order to qualify that's correct your honor so the statute five u s c eighty three thirty nine defines the calculation of the retirement annuity that statute uses the term average pay the definition statute five u s c eighty three thirty one defines average pay as basically basic  so then you go to basic pay and then the definition statute then goes on to describe what is included in basic pay what is not included in basic pay and many of the other statutes and regulations refer this is basic pay this is not basic pay and so to be five seventy five two zero nine provides expressly that a relocation incentive is not part of an employee's rate of basic pay for any purpose and this makes sense because the purpose of a relocation allowance of course is to recompense the employee for a one time cost of relocation and not to form a portion of their ongoing pay or ongoing compensation such that that should be then reflected in their retirement annuity and their high three over the course of their entire career the purpose of the calculation of the retirement to do it is to say how much was this person's overall total compensation for these high three years and then the retirement into it is calculated based they are on and so one off payments like relocation allowance or a premium pay are by statute or regulation not included in those calculations mr grover in his briefing today also refers again to five  section eight forty four as we say in our brief there's no indication that there's any reliance on this section at all of this section of the federal regulations applies to furs and not to c s r s so there's no indication that has any applicability language of the statute which i cited here today five u s c section fifty seven fifty three also so does the one thousand nine hundred four section twenty four to sixteen closely mirror the language and provide a little bit more clarity each of the elements that were actually the pace that they used the term paystubs you know what i mean you know due to identify under the very specific regulations and statutes that we just heard about  why certain elements of pay that were in fact received don't qualify for this final three average kalki i agree with what you said that makes sense to try to do that when it went bad it was never a raise that mr grover was not a law enforcement officer i found nothing in the entire record below of a specifically stated he was not a law enforcement but i'm human you'll remember more than i thought that the statute appreciate it very same statute tree plan for some officers and customs and border protection officers and two different some paragraphs that there are some pretty evidently distinct and that he's used to grover's very clearly the latter a customs and border protection officer once one does say relocation or sense if not included in base pay and another says explicitly excluding premium paid but these were not in compliance with the consequently i see no conflict between a law enforcement officer and a customs and border patrol official we've heard nothing but for the last several years how they're protecting our country from drug smugglers far as the calculation of their retirement because  specific issue of whether or not mr rover was a law enforcement official was never a low they simply use the regulations to manipulate the numbers and i think that the charts that i mentioned several times appendix sixty to sixty seven are clearly shows that they were what they used was the so called deduction method and the poor had previously found that there was not would not win when i didn't match the statute so i believe that they have failed to show anything below and if you read page eight of the judge's decision he relies on  see it was that have no statutory authority and differ from the statu