number two thousand and twelve three zero nine four jenny against o morning and i do believe the course my name is richard swix i represent the fish in this case sherry any missed any retired from her job as an f b i agent in you think those words mean if they don't mean she actually had what what it means is what or what do we mean by availability pay in other words if it's describing the pay that involved received by is not a limitation it's a description you know for example you could have someone who was very young a paralegal in some agency in the agency thinks you know we need to have you you available more than just you know forty hours a week we're going to pay you more to be available i think it happens people that are driving trucks may be in they're going to call it availability pay and then when it comes time to determine the basic pay they add receive availability pay so there must have been some reason she didn't certify that she was a billboard during that and she had limitations on her and i think that's why she ends up going part time but they would not the f b i won't let you work forty hours a week  do you have to work you have to have this availability pay if you're not able to do that then will you be an f b i agent the receipt so she continued to work she only part time which you work part time they don't like they don't like that people go part time and i don't know i'm just thinking that if if we if we have a a finding here based on the three months when she didn't actually get it when you know ninety nine point nine percent of the expense you get it we half time doubling it her rages left her lead her to the point that her actual salary was greater for those three years then it would have been or  part time multiplied by two or whatever the factor was she'd just go back to the three which is the previous number but in fact she was making more but not as much more and she would if you added the a pay more than what the annuity pension is calculated to be i mean i'm wondering if they used the wrong three years you're saying availability paychecks your salary up because it's making yourself available to work and so i'm wondering is she getting more money by using whatever hourly rate she was paid as a part time employee time full time then she would others you would use the last three years when she was full time with the availability five percent that's the point and so i guess my question to you is so she receipt is receiving this amount it's calculated based on the largest hourly rate she's ever in all of her years of federal service and i don't mean just the hourly rate i mean even if you take into account the hourly rate she was getting in two thousand and one with the addition of the availability pay she's not getting the highest possible and any that she's never made more money in her federal service than she is getting through this pension by using these high three years so why are you really asking for a windfall you're saying give us her present day highest hourly rate plus the availability pay even though she wasn't getting any available a during this time you're asking for an hourly rate is higher than anything she ever got during her federal service ever every front row going gets the when they get their high three years yes yes they deal with how you how you him a part time today and how you handle it as you progress it and you get you get your your pension calculator on on the hard three that you would have gotten if your full time and so and if you just forget about to be a building you know the the the question you're asking would be the same question the but there are three that you would have gotten if you're working full time and that's the third can forget about availability pay because the militarist and how it's taken care of your asking for her highest power the right which is something she got as a part time employees when she was not earning availability pay and then you want to add in the availability pay on top of it so that would make her hundred  twenty five percent of her highest ever of it which is what she would have gotten if she'd been working full time and then she never did work full time and get that amount of money so you're asking for an amount of money for her pension that she never ever heard of another look at this way the way it's done the way it's done and she gets nothing nothing for the time that she she got to be able to pay what she would have if for eighteen years is only three months out of eighteen years like she did let's let's go back if we could to the language of the statute and i'm i have a couple of questions if you're  looking at g one a you started with the critical language and i agree that it does seem to be the kind of language that should be determined by using the annual rate of basic pay that would be payable for full time service focusing on the words for full time service why doesn't that mean the basic g s scale that you get for  being a forty hour week employee as opposed to calling full time service service plus premium pay well it's in the definition of basic well it is in the definition of basic pay but is it that doesn't necessarily mean that the annual rate of basic pay that would be payable for full time service means the same y actually so so why in the world would that employee who i just described hypothetically why should that employee get as an annuity  worked fifty hours a year one forty hours all the rest those years you add up the time she actually worked that that's your numerator you add up the time she couldn't work that you denominator so you're going to pastor you pick a high three year yes so if if in my hypothetical there was one year with a person with full time and got availability pay and then a thirty year part time career you would still be arguing or at least your interpretation  the statute would result in a saying well the high for years is a three part ten years but we've got to add on the availability well twenty five percent and i wouldn't be saying that but if you knew you would come in here and argue that the problem is you're no i was i would whole career at forty hours and then just twenty hours the last seven years she gets same effect pension she's getting now nothing for the a t p congress can attended that the programming fix p now when they can collect the contributions for the pension fund they collected against the basic pact and that includes the a t p that's why when they pay the pension the huge benefit she gets from going from twenty hours to in effect being treated to work no no no what i'm saying is you wouldn't need to do that you just would make the basic pay you know you you would rate and well let's suppose there were no availability pay at issue and that's going to be the great majority of these kinds of cases are so the benefit i take it to her is that to a person in her position who isn't eligible for availability pay and was never allowed to bill for availability pay is that if she's working say her last three years at a higher g s level then she had before but is only working part time she gets treated as if she was full time at that g s level and therefore those three years even though part time are going to be or high free after a full service up correct yes right so that's that that's the real benefit of the statutes for the vast majority that are on police work part time she's in a very peculiar sort of small niche in which she's gotten the major part of them the one i just described but is saying i didn't get the full benefit because i'm being treated as if i am only getting eighty percent of my of my full time so  rate out by perforating the part time thing you get rid of you get rid of her getting paid on duly for the for the pay but if you don't do it this way there's a penalty because she gets no credit for her for her for the eighteen years that she worked that she worked fifty hours a week and i think it's a simple thing you notice that these last these last seven years she's go good morning honors maybe because the court did he it's way to illustrate that and then he is in fact looking for a windfall and is not being prejudiced by the fact that she works part time for the end of her career is to look at respondents appendix page four which if you look at that chart you can see that two thousand one was the last year that is then he worked full time and received availability the next year she went part time and her salary dropped now this chart by the way is the full time salary what she would have earned if it's a g s right but the years that she got ability pay it includes x that for example in two thousand and one she was a g s thirteen step seven and she was getting ninety nine thousand seven hundred and sixteen if that's not strong enough but something like fifty five dollars  in two thousand and two i'm sorry that was her last year right getting the elderly pay and working full time then she switched in february of two thousand and one to part time she was still a g s thirteen that's seven the full time salary for g s thirteen step seven without availability pay was seventy nine thousand eight hundred twenty dollars around two thousand and four five actually is the year that the  salary for her grade and step she was working part time but the full time salary for that grade and that without availability pay exceeded what she'd been making with availability pay but not by as much as it would it if you credited her for the available right but it but if it exceeded the next three years now just why we're here because right side are arguing about the what wrong my point is that if she your honor if she had retired in two three because they were higher than what she was earning in the last three years when she was part time so they went to use those part time years she wasn't being punished when working she worked so many years part time that eventually live this time very or she would actually receive an annuity based on a salary if any will tell me that's higher than anything she ever got during her government that's exactly right they're exactly right and  again if she had retired two years earlier then her hind three would have included would have been based on salary rate that included availability pay and so she wasn't that really proves that she's not being punished for working part time at the end of her career because that would give  availability pay as you know that she would have had a different type three right that can't marry her theory is based on the idea that availability pay is is automatic and that everyone that works full time is automatically entitled to availability pay this court i believe in craven's court already explore that question and said they'll go the pay is not automatic and the statute itself the language of the statute itself and certainly the implementing regulations make it clear that automatic in the sense that actually under every conditions everyone yes it but rather whether it is basic pay such that it is something that is taken into account when you look treated better than someone who worked full time their entire career but didn't get a bail ability pay during their high three they wouldn't somehow have it thrown back in there when they weren't actually getting him there's nothing in the statute that says and if you're not getting it during your high three years will throw it back in so if a court time person is someone who works full time their entire career and especially during their high three work full time but didn't happen to be getting availability paid during those years for whatever reason they wouldn't have included in their basic pay for retirement purposes why shouldn't jenny somehow because she was working part time habit assume that if she was working full time she would have gotten availability pay well the  agree but if it were the case that availability pay was automatically given to anyone who works full time and never given to anyone that works part time and this case would be easy she would win correct whether she received it or not i would say it was only much easier case if it was automatic would be like locality pay everybody gets look ality pay if as long as they live in that area and so as long as she was living in that is the supervisor to the supervisor and the employee makes a certification for the upcoming fiscal years that the way it works that is the way it works and sub certification says that the individual has been and is expected to continue to work  available for the number of hours that's required by the statute however if there are that certification can be suspended in the middle of an peers that the individual actually isn't available and working the hours that  supervisor makes his or her certification i'm not really sure exactly how much in advance actually is for the year to come that it may have been and are expected to continue to be however not only is the does the certification work then because the supervisor can't say has been and is expected to write the supervisor that situation just say is expected i i believe so and i remember whe versus someone that had already been getting available the pay and the continuity oh yes actually it insists supervisory managerial certification initial this certifies that over the next twelve months i expect to call this get on  imputed to her by virtue of the fact that you're part time that that a full time employee who is retiring after and whose highs three felt when that individual wasn't getting availability pay would not get that there's no reason for ms any to be getting preferential treatment she was in fact not certified not receiving availability pay and that would be the same way that any even a full time criminal investigator with the tree that and nothing about eighty four fifteen eighty four of the team was created i think the court understand have a couple points i want to make to the craven case the council refer to really isn't a political here because the the employee in craven was not a long forstmann employee that it's just the way this got to work and that's that's what we need to do here we need to just do what the statute provides and i mean you're in that hypothetical she would have actually earned the g s fifteen salary for those three years and the problem is when we make a difference so if you considered these first twenty seven years as part time work because she's really a need to know levon who supposedly working fifty hours a week and she's been allowed to work forty you cou treat with it that way but the example the other is the example you get where you just get promoted at the end which a lot of people get promoted you know towards in their career they end up having your salary based on a lot more than what it was for most of their career