thank you had morning your honour's may please the court my name is bill bronson i represent mrs jackie or linda jackie larson who was the personal representative of the estate of mr kenneth larceny he was the original plaintiff appellant in this case unfortunately he passed away this summer with no objection by the commissioner mrs larsen as the personal representative was substituted in and in fact under the commissioner's regulations as well as federal statute she is the appropriate party to continue presenting this claim as indicated in our briefs what we are asking the court to do is find that the windfall elimination provision in the social security act does not apply to mr larson's retirement benefits we are arguing that he is included with an exception to the weapon that is under title forty two of the social security act more specifically we are asking the court to apply the reasoning of the  circuit court of appeals in the peterson versus aster case and reject the reasoning of the th circuit in the martin versus barry hill case that was handed down approximately one year ago and was the decision upon which the  in our case relied in making its decision the reason that we argued that peterson is the more persuasive precedent is simply because we believe the statute is unambiguous forty two u and seventy three simply provides that this weapon exclusion is not going to apply in the instance of those individuals who are receiving a payment based solely on their service as a member of the uniform service that fits or fit mr peterson it also fits mr larson to the uncontested facts of the case is curious how can you sort of claim that it's a lot languages on an big u s when you've got two different circuits that come to the one hundred and eighty d they're reading something into that provision of the statute that's not there they're looking at that words service before as a member of the uniform services and what they're essentially saying in agreement with the commissioner is that we can separate this out and look at a dual status technician like mr larson and say part of the week he's performing what they believe to be civilian duties and then another part of the week he's performing military duties in the word militar well that's correct and that's that's our understanding when we look at the statute we read it as it is and say it's unambiguous what does the holy mean i'm sorry what your honor there's a payment based holy run service is as we understand the statute your honor and is determined by the th circuit in this instance mr larson is receiving a civil service pension payment that's based solely on his service as a member of the uniform service well tell me this that this your client the seed that he received two different pensions based on his two different sources of padded usually one pension for a civil service and one for his military what happened your honor is that when he retired from the civil service before he reached his normal retirement age he then began receiving his civil service pension under the old version of the civil service retirement laws when he reached his retirement age for purposes of social security he wanted to apply for his social security retirement those benefits have been based by the monies that were put in when he was performing as part of his guard duties though he was receiving two different pensions that's correct and then i mean why then would i mean the whole idea of this windfall emanation provision was to prevent sort of double counting i gather and you're claiming what there's no double counting here well it's not so much the issue of whether there's double counting or not it's the question of back in  and ninety five when congress amended the social security act they specifically provided for this exemption that we're relying on in military service exams right to say that the one that the eight circuits relied on in its decision about nine hundred dollars a month when they applied the the web it was due to reduced it to about four one hundred dollars a month through a very complex formula write mission and look at the form that many people have said that and that's you know no attack on the commission again i'm just they're just trying to come up based on the based on the language actually in the social security act there's this complex formula when they're determining any of our social security retirement individuals who had only performed military service your honor based on my reading of the legislative history and i realize the th circuit disagrees with this but as i read the legislative history when this proposal originally started out in the house of representatives it appeared that they were talking about anybody who was in pelletier of service regardless senate passes a different version of the bill it goes to conference committee the conference committee tha looks at it in a centrally as i understand the record adopts the house version which based on my understanding of the history then at that point saying that anyone including people like mr larsen in their position would be entitle particular instance whether or not it makes a huge difference in the court's decision the record indicates that when mr larsen was performing his quote unquote civilian service he's working on aircraft maintenance of jets that are stationed at or our air guard facility he's doing ammunition in the nation's work and eventually toward the end of his career he rises to the rank of a chief master sergeant and he supervising other people so i think somewhat coextensive with a lot of a military type task even if they are performing civilian functions ok but i mean in the legislative history i don't recall anything where there was any dealing specifically with a dual service technician that would be my understanding to your honor i don't see those words used in there but i see that broad term about military reservists which when i go back through and congress would be we'd be presuming would be relying on their previous definitions that they've used that would include somebody like mr larson who would put everybody in the air national guard army national guard so fall that most reservists in the national guard are not dual service technician they're not also earning employment as a say in a civilian capacity i mean a separate pay for a civilian work there just have a normal job and then they do their two weeks a year on their weekend stuff and that's just totally separate here it's a little muddled right because you've got someone oh i would agree with that i would agree with that assessment your honor it's just that because it was so broad because they weren't excluding them the fact that somebody says they weren't included it's like well by the general definition it appears like you're including everybody in law should we give deference to the government's interpretation and so security administration's interpretation here skidmore deference if not chevron for well this is an interesting you know situation because as the court is aware when the peterson decision was handed down the commissioner made the decision which is his prerogative to acquiesce in that ruling in that particular district and so from that point in time when this issue has arisen in other circuits they're going back and relying primarily on their acquiesce nce ruling which even the commissioner acknowledges that it's not subject to notice and rule making an argument of presentation before hand much like an administrative role and the circuit as well as many other circuits have held that acquiescence rulings do not have the force of law so at that point if we're going to make the decision well is it persuasive that's what i think we look at justice jackson's statements in skidmore and say does it really have a lot of persuasive power and from our perspective again the legislative history with all due respect to the commissioner we don't think supports his interpretation but also when we look at the you know particular history of the statute when we look at the fact that when congress passed this exception in one hundred and ninety nine thousand four hundred and ninety five it didn't specifically direct the commission or to interpret or dark regulations with respect to that particular statute and that's why in our brief we've attempted to distinguish our case from those situations where congress has specifically authorized or delegated authority to the commission or to make sense out of the general policy pronouncements that congress wants in effect with respect to social security ok when you say the time for the balance you time for rebuttal and let's hear from them let's thank you your honor from the commission two retirement pensions for his work during roughly the same period the st one is his military retired pay we don't talk a lot about it in this case but that was based on his military wages which he earned from the point that he enlisted in the national guard in one thousand nine hundred and one until he retired in two thousand and six and under that system is military retired pay does get the benefit of the exception he actually is getting the uniform services exception for the military retired and that's because he fell within this pool of people this loophole that congress was trying to help and that was people who did in active duty training between nineteen after nine hundred and fifty six and before one thousand nine hundred and eight and those people because they were doing they were doing some active duty which was covered by social security and some in active duty training which was not covered by social security they had kind of they had both covered in uncovered employment and that would have brought them under the windfall limitation provision and would have triggered a reduction in the social security benefits but because the exception applied as congress intended his military retired pay did not reduce his social security so what we're talking about in this case is his other pension which he earned for his nine dollars to five dollars job which was a civil service retirement system pension a civil service pension and that pension he began it was based on his civil service earnings under a different wage scale it's not the military wages it's the civil service status technician and he retired from that job in two thousand and four so again even the the dates of employment don't quite line up so that did not qualify for the uniformed services exception because it is still it is a civil service pension payment with the sole source friends and wasn't there was no social security contribution of that was yes your honor that is exactly why this comes into play the people under the c s r s the civil service retirement system did not pay into social security and so what the system did was it gave them a more generous pension the pension was supposed to take the place of not only the private sector pension but also the social security that they were not going to get and for most people who were civil servants at the same time as mr larsen who worked one hundred percent of their time in the civil service that's what they got r s pension right nothing else but mr larson like a number of other people in say let's say someone in hotter d o j who is a civil servant at the same time but also was a national guard member on the weekends and then for field training in the summer mr larson is in exactly the same position as that person the uniform services exception does not apply to their civil service rd he did different no because of what that is so he had to be a member of the service be a military guy he had to be a member of the national guard room and he would and he had wear uniform and these were conditions of employment they were requirements in the same way that i have to maintain a bar license i have to pass the bar and i have to maintain my bar license to have my job but my job as a member of my uniformed services and let's take that apart each piece because each piece is why it also supports the the commissioner's interpretation let's start with holy because the martin th circuit the martin court said holy is really the critical piece right holy means entirely in its entirety which means that this payment which is the pension payment is uniform service which is defined in four hundred and ten m what's a member of uniform service a person who is appointed and listed inducted into the army or air force or reserve component and that's what he wa enlisted in the national guard and in his capacity as an enlisted guard servicemen he was either on active duty or in active duty for training right that's all you get you there's not some other status that applies when he finishes his weekend of in active duty training one weekend a month and he goes home he's not still on active duty training or in active duty training he's not anything he's at home and when he goes into work on monday as a civil service employee he's still not on in active duty training or active duty as a member of the uniform for it is but that's more like his status it's a member of uniformed service and you're saying as it's in the capacity of a member of the uniform service and when you're working as a member of uniform service like i said you're either on active duty or in active duty you cannot be on active or in active duty while you are in your civil service job working as a dual status technician in if you in your view the key word is uniform service well it's all of those each of those words member is important and they're talking about the purpose case perpetrates the department of defense it's a big national guard case in the supreme court and the supreme court had said when you're in the national guard you wear three hat you have three hats you have your civilian hat you have your national guard state militia hat and you have your in that case i think it was army active duty hat but you can't wear more than one hat at a time you can't be both civilian and national guard you can't be both national guard and army at the same time you're doing one thing at a time so when he would go to work and work at his job where he got his civil service wages he was a civil servant a suit he was a civilian employee of the federal government when he went on weekends he was working in the capacity of a member of the mill of the uniformed services and note he says he would he it's true he retired as a chief master sergeant in on the military side he didn't retire as a chief master sergeant from his dual status technician side he had a different he had a different job title he didn't have a rank these were actually different jobs and congress intended them to be congress created the dual status technician p specifically to do and maybe the most important thing was actually to give these individuals who previously were state employees to give them the benefits of the civil service retirement sr system pension because it was so generous up until that point the state employees the only retirement other fringe benefits they got were you know what vary from state to state or these people to maintain them you know good to maintain the garden to absolutely and to keep it strong and you know they needed them that's right they wanted to trust they wanted to attract the best qualified candidate right way to do that was to create this position that was dual status had aspects of both military and civilian but it's a civilian provision in the civilian civil service the federal civil service and it's got that great pension council do you agree that the staff through them big you with your are if we take all the different pieces apart to me it says this is who congress and congress did not intend to cover dual static technicians and this court could actually rule entirely based on the plain language of the statute oh you don't you don't think it it is a lot of plain lying we obviously have each other they've had a long discussion about what it means for the examples include it and you still think it's not ambiguous but your honor to the extent of course that this court believes that it is ambiguous the legislature asking you do i'm saying you can rule entirely based on the plain language i think in one of the many of these cases that i am briefing the other side has pointed out that the argument that the the point about there being no ambiguity in language is the only thing that both sides agree on except that we believe that it points in different direction exist so that classic example of ambiguity if different parties argue vigorously of different interpretations that to me smacks of ambiguity and obviously your honor the courts have reached different conclusions but we believe the th circuit reached the incorrect conclusion be why they did not actually focus on these individual words they said it's enough to that you know it's whol part of that is wholly part of the uniform service simply because he wore uniform mr peterson had to be a member of the national guard but that's not enough if it is ambiguous supporters are now with us to the legislative history your honor you take a look at the you look at a regulation today that the regular they properly interpret this is a reasonable interpretation of the statute under chevron because there's no there's no regulation here no regulations and there's this acquiescence roulette about that there is an acquiesce geisha position again your honor these are these are entitled to to i don't know the court looks at them to see to the extent that they are persuasive but you can also look at the fact that the secretary's position has been consistent and longstanding and well reasoned and it's been put forth since at least the peterson decision that's where we had to actually spell it out although the sorry the commissioner took this position before peterson it was just assumed that the exception simply did not apply to dual status technicians there was no point in putting it in a regulation because there was no reason to believe that they would be treated and what if it lay out that there's been all this litigation has there been any circuits within the next few weeks as well and briefing is continuing in the nd and in others so it's a live issue but the if i can get to legislative his yes i think would you would you turn to if so we can't place much ruling what is the what is your view of what the legislative history tells us with the legislative history plays in very nicely with actually if you look at the structure of the different statute at the time that the  employment and what you had left oh and in active duty training starting in one thousand nine hundred and eighty eight in active duty training is considered covered employment so you have a donut hole you have a little piece those military wages for that specific type of work just that narrow and discreet class of people that was what wasn't covered and those people's military pensions were the ones who were getting hit so then when you look at the legislative history that's what those house reports talk about that's all they talk about and they made to be talking about reservists but they were talking about a particular group of reservists who were receiving military pensions based on their wages for in active duty training in that narrow time period and that's what they wanted to fix because congress said in those reports this was inequitable nobody else receiving a military retirement pension was getting that hit so we want to make it equitable for that group of people and they did and that's why mr larson that's why his military retirement pay does not reduce his social security benefits this works exactly as congress intended but congress did not intend for it to then apply to mr larson civil service pension and civil service pensions of every other civil servant who is working at d o j or any other well they met there because they're probably not enrolled members of the military but if they were working at the national guard oh no but they have to be whole based wholly on the service as a member that's right and mr larson civil service payment is not based wholly on service as a member of a uniformed service either it's where it's based on his work nine to five civil service we have some time for yes thank you your honor i'm sorry about that going back to a statement that a counsel for the commissioner had just made about the legislative history you will note in the record in this case when the district court was attempting to decide which party had the correct position the court made an interesting statement it said that it reviewed the legislative history and it found it not helpful which i found particularly interesting because again when i re legislative history on behalf of mr larsen i found it to have enough information in there to support our position i certainly would acknowledge that the commissioner portions of that record and find statements in there which appear to support hers maybe that's what the district court met but this is part of the problem with this legislative history approach in this particular case relying strictly on the commissioner's view should this court conclude that the statute is ambiguous i would just urge the court to take a very long and careful look at that legislative history as part of its analysis and hopefully resolve that issue but to go back to our principle position and again i agree with the commissioner the one thing we probably agree on is that the statute is unambiguous we just have a different interpretation of it as i thought more about this i'm reminded sort of analogy going back to something yogi berra once said when he said if you see a fork in the road take it well in this particular case what i'm concerned is they're looking for a fork in the road and then taking it and then creating a problem for themselves with the how do you respond to her  argument as a member of a uniform service as defined in section fourteen and him the way we respond to that is the danger in trying to take the statute apart piece member of a uniform service so sure she said he really wasn't a member of the uniform of a uniform service our reading of the statute is that he gets as a member of the montana air national guard a component of the united states air force he's a member of uniform anyway because he was supporting and he was supporting a military mission and i would readily concede if he's on a drill then he's doing something no different than somebody who's just active duty military but even in his civilian work he's  sentially performing military type services that were supporting the ultimate military mission but i you know if you agree that he has yet he's not subject to the military exception for his you know active duty time or as i mean when he's actually it is drills and that's not an issue it's this summit ninety five civilian component that's the issue right as we understand the commissioners position yes we simply go back to the statute as a whole reading as a whole and then concluding in this particular case individuals like mr larsen should receive the benefit of the exception ok do you have anything else you want to say that it  you counsel we appreciate your arguments in this interesting case the matter is submitted at this time and that ends our session for today