officer and that was the section that was in effect when the petitioners were nearly killed in the terrorist attacks of september eleventh this is what the statute as if we are fro pj's determination that mr with it was not a public safety officer everything else is moot isn't everything out well there are two issues here one is if you see a public safety opposite her and it was the ambulance crew upon on which he was serving instrumentality none of the new york apart apartment were contending that he was both a public safety officer under the plain definition of the statute and also that the ambulance crew said both case where the state of california had contracted out to the firm a mr graef worked for and he was paid by that firm and he was under their orders at all time and it says right in the opinion that he was working in the end of independent capacity at all times when he was killed in the midst of a theist case and soon as the call came in from the new york fire department that morning he was within he was taking orders from the new york fire department under life and death conditions he was taking orders from them but he was still working to ask why he was working for them and the distinction that i want to make here and i think it's clear in the statute is the statute covers not just people who are employed by a public agency but also people who are serving a public agency and that's a that's an important distinction and i think the way the regulation of the few thousand six regulation is written it is much much too narrow and if i was i was five blocks away when when the planes hit yes it serving as a honor i don't think but again he didn't have that choice if if if his if his employer had had pulled him out that would be a different situation altogether but he didn't have a choice once he was there he had to do what he was told and was willing to do it and he almost got killed as a result and the question is how narrowly can the agency repeat that definition there have been approved in the past under different circumstances but it virtually requires the person to be employed by the public agency me actuators it is that it has to be authorized recognises or designates them and they have to be functionally a part of the later is where are you reading from this is if this is cited in the government's brief age thirteen the definition that was and again this is a definition that the agency problem gated in two thousand and six five years after the fact they are given the right to do this under under the da long act right retroactive regulations but again i think the court needs to look very closely at that language because it appears to virtually eliminate anybody who isn't actually employee i think is a there carving out volunteer members of volunteer fire companies but if you read that language it eliminate it basically rewrites the statute so that the statute becomes must be employed by the public agency or  rather than just serving a public agency so the court would have to treat examining the scope of rafter case we would also ask the court to look at the word instrument nearest fire department that morning they were taking orders from the new york fire department again under battlefield conditions and so i i think if we construe the true term instrumentality i think it clearly covers that wiring i'm sorry what is the statutory language that you think the directors reading of the regulation would rather come back while they were defining the term of official fishel cassady right you're defining the term official capacity in the two where congress left a gap they actually came out in defined term public safety officer and then they said it is somebody who is serving a public agency or serving in instrumentality of a public agency and as a member of an ambulance crew and i think that that congress made it clear that in just taking traditional termed tools of statutory construction that you would find that congress intended to cover the sort of situation that arose on nine i haven't thought i'd i'm not sure that would be the case it was a public or private hospital i think you it would be some discrimination problems here but i'm not i haven't really examine the problem sorry  can i ask you a i think this is an issue nobody has raised but so maybe it's a really easy answer e u few public well what else seven thirty seven as falling under the public safety officer benefits act or separate and apart and the reason i asked is that it might make a difference whether for whether this court actually has jurisdiction certain p s o benefits well part of that then you're in the right place for that claim right i think you have two separate lines right here well there and but but if if the one of the seven thirty seven claim is not part of the p s o director was right about the os at issue is there anything if true the other issues here matter the director i think had a footnote i forget whether it's in both decisions or at least in the roberts  says there might be some educational or survivor benefits that my rights be unaffected by the offset but neither of the briefs made it obvious to me why how these issues relate to each  other well on the onset good because they are the offset they both received from the victims compensation fund more than that to fifty available here by the way the agency is trying to apply the opposite i believe our client's case we get wiped out statutory language of the so called offset provision it says may be due and that's huge you conditional tense they're trying to extend that any benefits you have been paid in the past but if the actual language of the statute says that we're not going to we're going to disregard benefits that may be due but then it doesn't say anything about the past benefits so i was thinking a little bit about that and tell tell me if and  actually know whether there is an offset right and you're saying in the case where they actually know the separation wouldn't apply but where they're still uncertain because the other process hasn't reached a conclusion would apply that seems odd it does seem odd i think it may be a case of just bad stretch statutory drafting that they should have said if that was the intention of conversation you said may be due or that back that you're going to have cases where the applications are going to be pending at basically the same time that they're going to that both the justice department in the the the truth victims compensation fund are going to be deciding are going to have th same coordinated applications in front of them and so these are these are cases where they could where they could apply the yob set in there will be a quite a few cases like that with that would come through the system so you could  r but there was not a public safety officer within the meaning of the act i like your honor was was downtown on that day in manhattan and i understands the circumstances that person presumably could share side i've had enough i'm leaving this week i was working for an organization that had a contract that said you're kind of obliged to here and also going to the question of whether or not the offset would the questions of whether mr details public safety officer would in the case and i know the footnote that you brought sixty three in the director's determination and i another we have not examined it i have no reason to believe that the characterizations extract in the spouse and children might be eligible for educational benefits i think th we got the agency regards reading of may be due as an insured reading really matters here that may be due was the language the congress chose to use and if they did well you're you're familiar with at least some principle that of these nine eleven claims are working their way through the system right now and this is not in my brief but there that is there's a lot of these claims are still pending both in front of the victims compensation fund agency and the bureau of justice assistance and they're going to be considered at roughly the same time on roughly the same grounds so the good there will be some the upset could apply in these maybe do situations where we  were both both claims are on the same time so i think we can get over the absurdity hurdle in that in that particular now particular case i think there are other matters that reasons why this court should be sending the case back to the agency in two thousand and seventeen last year the congress mates major major changes in the program two of the changes that should be applied in this case are that the agency weight to any of the findings made by another government agency and in this case would be the new fire commissioner the social security administration and other agencies were dealt with the case and they're also expected to adopt a well founded findings of our other government agencies whether or not they did or did not do that we don't know how so at the very least i believe the court needs to send m