our third case this morning is number fifteen days thirty one fifty four fitzgerald versus v issue in this case it is whether the cancer benefits under the first why do a former customs inspector who's currently employed as a long force an instructor in the department of hot department of homeland security the facts really are disputed the petitioner worked for more than a dozen years in a primary covered under the statute she worked as an immigration inspector in the ins department and she worked as a customs inspector in the department of treasury she then was promoted and transferred to flats in the basic question here is whether the regulation is consistent with the statute is that is that before that's correct or on the phone why isn't th e regulation a reasonable interpretation of the statute we believe the petitioner meets that expressed language of the statute she worked in disputed lea in a primary cover position for more than three years with factual care for twelve so both her primary physician and her secondary position meet the statutory definitions the regulations that have been pulling implemented those statutes in certain intentional requirement that the not only has to be within the department of homeland security the secondary position but it has to be within effectively a sub agency and has to be within the c b p the customs and border protection agency that appears nowhere in the statute and in fact we think the agree that it can't be any supervisory administrative position in the department of homeland security right correct so it's ambiguous we don't believe that the implementing regulations to wait wait answer my question is it plain on its face or a it administrative position we think that those terms or well defined in the in the law we don't think there needs to be in implementing regulation if you look at the law enforcement officers they use the same language if you look at the firefighters they use the same language but the problem is the regulations are implementing that language differently so supervisory administrative is be it well  you said that it's ambiguous then that means because you're talking about the way these are the same language from the different alley of provisions are implemented by regulation so it seems to me you're conceding that they have to be defined by regulation you're just saying that the regulation here is a incorrect implementation we're saying that it's the differences among the implementing regulations defining that seem statutory language in three different ways is being applied inconsistently one that doesn't seem to me they are giving you made in your brief your argument or your brief or to this language that plane it's clearly not playing it requires implementation by if that's the case then we get to chaperone respectfully we don't think the supervisory or the ministry of language is what is being implemented by the regulations what's being implemented by the regulations is whether it's in the department of homeland security as the statute says or within some other agency in the department which i would have thought your argument was that the statute is indeed ambiguous  chevron but that the regulations construction is not a reasonable structure we certainly are saying that as well i think that's fair that the statute the statute as interpreted by the word we believe is incorrect nearly as the board has here we think it conflicts with the plain language of the statute and requirement of homeland security which are applied undoubtedly is if you interpret very narrowly where you're requiring some kind of prerequisite experience of customs and border patrol officer which didn't exist in two thousand when i was transferred to flexi then we think this part of this clearly referring to the  we think it should yes we agree with that but there's a law enforcement element of those positions the customs inspections positions so we have a client who in her primary position was undoubtedly covered under the act in her secondary having that specific level of specificity we agree but the general experience of the law enforcement aspects of a customs officer were absolutely approved prerequisite to purposes of that assertion that's not what the regulation require though you have to get us to find that the regulation it's unreasonable we believe that as interpreted it violates the stench to it like so if the what recent you can do you think the regulation that now the regulation just the language of it no we think it violates the language of the statute and we think it how does it violate the language of the statute don't talk about application in this case talk about how it's a done reasonable interpretation of the administrative positions of other agencies so she were a lot foresman officer she in the same exact position she is she's entitled to tell us five years ago about that because the legislative history talks about the point of this act the appropriations act was to cover customs officers the same way as law enforcement officers so we have a situation and to retain those officers within the department so if we don't if you say because customs officer and then a long foresman instructor she's not covered you have a situation where her primary position was covered her secondary position was covered up because you truth you think are secondary position let's cover but are secondary position is only instructor address in my question of if the idea is to retain people how does changing the regulation to allow any law enforcement experience prior if you don't promote the customs patrol officers to flexi there's going to be treat there's going to be a dearth of trainers who have experience in the customs and border patrol agents which is the niche that she is filling in fle so if she can get from only prevent sorry finish area and try to put her up to my apologies you know but if if if she's not covered when she gets that promotion the government will lose the department of homeland security will lose her talents as a and the statute it's plain that i think the statute is clearly not clear and you've said it's not playing today i think what you're saying is that that they are pretty the regulation is arbitrary and capricious when you compare it to the other regulation but i don't see that argument anywhere in your brief with a i think what we're trying to say is because she is in a position that is covered as a long foresman officer under the same statutory language and  it's not that i mean it's similar statutory language but it's a completely separate statute there's nothing that said that i'm still struggling with the fact that you have to get us to find the customs or the t h s interpretation of this statute and reasonable it's in the legislative history of the in the congress said that the goal of this was to treat the customs border officers the same as law and why isn't it the same in their view that if they were legislative history talks about the importance of retaining these people the cusp of the experience card of the problem is if you're asking i mean you're asking us to look at pretty scant legislative history to override what  p m in its regulations has defined what the second their positions are for firefighters and for law enforcement officers specifically this mandatory prerequisite requirement pretty much identically so although we have so let me ask you a few of those this is what troubles me about this case is that it sounds like she's working alongside instructors at this training academy who are l e o s as opposed to c b p officers and then they get  is what are the job duties and what are the prerequisite so for example there are instructors at flight c who teach basic law enforcement classes to all manner of federal law enforcement officers firearms physical conditioning arrest one requires a mandatory prerequisite experience with the activities related to those instructors would be considered secondary yes and so that's the that's i think what the reference that miss fitzgerald was referring to it in are the only thing i'm suggesting is i don't think that this internal had any expectation that she was going to receive enhanced benefits when she transferred to this position in two thousand so i think that the fairness issue that she's right but if she  correct so let me ask you though the l e o s of his very general this is a firefighter regulation says it has the same kind of very specific requirements that you either have to be a supervisor or firefighter or in a position which firefighting positions it's required or is it more generally oh yes that so the firefighter statute for the firefighter regulations eighty four i'm sorry eight hundred forty two point eight zero three  has the same kind of very specific requirement as this one does not just general well you know so if you were a firefighter and you transfer to this training center to a general elio position you also wouldn't be covered that's correct is there anything that would prevent o p m from an airplane a broader regulation that would allow people to qualify for secondary could coverage if they transferred any elio position from a firefighter or c b p position perhaps just that i'm not sure that there's a as explicit statutory requirement that would prohibit the pm from from making manager petition certainly the purpose of these types of enhanced retirement  in their specific field so yes if she had how would this work if she was a c b p officer and then she transferred to a direct elio position is there a translation there to she stay cover or this you have to start over i know i'm asking hypotheticals that are not addressed but it is it seems like there's this kind of general elio rela and then there's you know you also treat firefighters and c p officers more specifically i wonder if the experience is translatable the other way possibly an regulations and then finally to the extent that what was the position had been over twenty years i moved in i was i thought o p m in its firefighter and its law enforcement officer and i believe also in the nuclear materials courier position that these other specialized retirement structures has held has interpreted that supervisory and administrative positions language century language to have that mandatory prerequisite of the specific  u whether it's firefighting or law enforcement experience so that that that this interpretation of the statute by o p m that these secondary positions have to have a mandatory prerequisite is well standing and then finally to the extent that this is a narrow interpretation this is this is what this war his has said before in the law enforcement officer context use are specialized but retirement structures that are different than most other federal employees there are quite expensive quite frankly and they're there for a specific purpose but there's also some legislative history but at one point congress considered just shouting that c b p officers into the to create a separate system just like they did for the firefighters and with a very specific you know one with reference or very specific job series and also this this reference and so i think there was an intention to t benefit should be accorded to us we think that's consistent with the legislative history here we think that you think if you were an l e l a t h s and you transferred to a position ever acquired c v the experience but not illegal experience that you would be covered still if we don't really have a position on that well that's i mean that's think that is the position you're taking a clue that the position we're taking is what the regulations have done fire fight the or firefighter experience in this requires a c b p or c b p experience and the only your argument would suggest that if you're any any of those three categories if you transfer into any secondary position the creation of the department department of homeland security so to the extent you can find him into a prerequisite that she we're in a department that didn't know i understand that argue that evil but i mean you didn't point to any thing that suggested her position required the