of the alabama army national guard he word as a technician and all status and oversaw our work with personnel records of the alabama army  he was diagnosed with asthma and became non deployable and at that point in the summer of two thousand and four he was discharged from the alabama army national guard  we have to interpret he's entitled to he's entitled to come under the benefit of the uniform services exception if his income while the it was a dual status technician was based wholly and that's the key word holy i want to service as a member of the uniform service so do i mean you interpret ing this differently than the social security administration why do we have two reasonable interpretations of the statute very serious the flying one of the statute and read for what do we do with the word holy based holy on service as a member over uniform service and that term holy that is not defined in the statute as a  use the common definition or a dictionary definition did to determine what holy here is and that is considered entirely so yes i think that case that you can use that in absence to expire and i don't think there's a using that i don't think there's two different definitions of what way might mean or so you would you would have to argue that that his work is wholly of a military character order for him to obtain the benefit uniform services exception even though some of his work has characteristics can some of his work has military characteristics that's the problem that i'm having well th status technician wise a special accepted service which is recognized and as being military ability to count it to include the time that your interest you are you're working for which social security would not withheld and computing that your your the amount of entitlement under the one fall and then to create an exception to the when for all we get here so if you fall with an exception to the one fall if it gets passed down then you know then the military member would get it when fall fact you know not only is there a uniform services exception but there's also an exception based on far more that has a totality in agreement as well as road wor it he is doing that social security was after all the monday through friday portion of a job where he worked with personnel and  maybe i just haven't followed the arguments well as i should have but i thought that your argument tracking with the eighth circuit ruled in i think the cases called peterson was that the payment referred to in the statute is not the payment of salary but the payment of the pension and that pension is indeed based wholly on his military service because as a district court in the ail j both found his work was primarily military in nature yes isn't that the argument route and if you're not looking at whether his salary was wholly based on his military component you're looking at to see whether the pension was based wholly on his military component if then you say the answer that question is yes yes it is  it please the court sidney foster for the government your honour's congress enacted the windfall elimination provision in order to ensure that individuals like plaintive who are receiving retirement income based on work that was not subject to social security taxes do not get an unfair windfall in social security retirement benefits under the narrow uniform services exception that is at issue here payments that are based wholly on service as a member of a uniform service i do not trigger a reduction in social security retirement benefits that exception clearly applies to military pensions that are based on military service like active duty service in active duty service and so forth and plaintive actually gets the benefit of that exception with respect to a military pension that he is receiving that is based on precisely such service that exception does not however apply to the civil service annually that is at issue in this impression is that there are two reasonable interpretations of the statute so therefore we have to look to see whether or not the agency is interpretation part is a reasonable one and so  precluded the agency's interpretation i think that just cannot possibly be correct if you decided this on chevron step one i think there's there's no way of reading the statute to necessarily preclude the agency's interpretations i think the question is whether or not the interpretation is reasonable and i think it plainly is that it follows quite naturally from the text of the statute which as your own has noted in question my friend here provides that the only payments that are covered are payments that are based wholly on service as a member of a uniform service how hard there's a record contain any information about how it is that this civil service annuity portion is computed or calculated what goes into that i think there are no details about it i think everyone agrees that it is based on his work in his capacity as a dual status technician and i but what is the key fact but what does that mean well it means that he earned it because of that work that he getting credit i use the word credit loosely but if he's getting credit or not being overly penalize through the except the exclusion right for the military portion of his pension you said he was getting he's getting a military pension correct right i mean i know simple find this but he's getting a military pension correct and he's getting a civil service annuity payment too that's correct as i understand what is going on through this litigation he is not getting a deduction in social security benefits for the military portion of the pension correct the only thing that's at issue is the civil service annuity stuff exactly ok so he's at least if this if  security administration is not and a lot and alighting him for the military portion of it it recognizes that he did some work as a military service person correct correct so i mean at bottom technician work and we know that that has a civilian aspects to it we know that from ten u s c one zero two one six which refers to it as a civilian position three times and says that dual status technician should be accounted for as a separate category of civilian employees and we know that because when plaintiff was paid for his technician work he got civil service pay and he got as earned a civil service retirement and knew you that's the annuity that's at issue here so we certainly know that his technician work at least has some billion aspects to it it follows then that the civil service annuity based on that technician work cannot possibly be a new idea that is based wholly on service as a member of a uniform service and i think that's part of where th circuit went wrong not taking into account that were wholly and given that they decided that case at chevron step one they didn't then have occasion to look at other considerations that would be relevant if you don't think that that  statutory tax is ambiguous such as the legislative history which as we explained strongly supports the agency's position the legislative history here makes very clear that congress has spoken in an acting the uniform services exception was  military pensions that are based on military service like active duty and in active duty and specifically congress had a very narrow focus it was concerned about a very specific type of military pension the military pensions that are based on an active duty service performed during a specific thirty year timeframe congress wanted to ensure that those military pensions did not trigger a reduction under the when vollmann nation provision and it wanted to do so because no other type of military pension did trigger a reduction under th avoid that is to have a uniform national law i would just note in this particular context if you instead decide to agree with the eighth circuit that would actually cause more disruption nationally than if you instead affirm the district court here in rule for us and the reason for that is that after the circuit's decision in two thousand and eleven was issued the social security administration considered the question of whether it should go ahead in adopt that interpretation nationally and it decided it would not have decided it interpretation was the better interpretation of the statute and so issued a ruling which said that it was going to apply its interpretation of statute in every other circuit so since two thousand and eleven in all these seven years that we are afford that amended the relevant regulations right after right after the uniform services exception it was and acted that three ambled makes clear that as i say i understood that going to form services exception to have a very limited impact to affect these particular kinds of military pensions i was talking about before that are based on an active duty status during a particular thirty year time period and so those are the main places but that doesn't but that doesn't address the pacific circumstances of this case that's a much more general this is the purpose of this act sort of thing i think it does your honor it in a sense that has nothing to say in that document but only type of pension that's affected by this  new statutory provision are these particular types of pension these military pensions based on inactive as the preamble to what does the preamble to the rule that was amending the regulations that implement this provision if i can just say teach in flor that if that would be helpful we cited in our brief but it is a sixty federal register at pages five six five one one two one two and that was over that that was never codified into a rule it just appeared in the federal register as what the s s a was planning to do intending to do that's correct that's again that doesn't get chevron deference right generally speak that if she was presented here because not only do we went under skidmore but also plaintiff has throughout this litigation has assumed that the shotgun doctrine applies here you have a lot of times we don't want to assume something like that because later on someone's going to come up and say hey you guys you chevron deference in that circumstance and chevron deference is inappropriate and yet so we are for you not only about the result in a case but i framework doesn't apply and in the reply brief plaintiffs did not dispute that argument not only did he not argue that chevron doesn't apply but also didn't argue that he hadn't forfeited the argument so i think it be very easy for the court to not reach that question both because he's forfeited it also because we win even under the lesser standard in that in skidmore i want to just address one one other point here which is just to step back just a little bit and look at how plain being treated as compared to other kind of critical compared so you know one of the purposes of the national guard technicians act in creating that duals the position of a dual status technician was among other things to ensure that dual status technicians are getting the same are getting adequate retirement benefits and congress effectuated that purpose by giving dual status technicians civil service retirement benefits the same retirement benefits a clickable to civil service servants generally so it makes all the sense in the world for social security administration to treat plane of just like any other civil servant who's receiving an annuity like this based on uncovered work and that's all that we're doing and i also just know in a very critical respect that the social security administration is also treating plaintiffs on par with many members of the military service i mean specifically any members of the military service who performed military duty only on active duty status or on an active duty status outside of that thirty year window that we were talking about a little bit earlier and the reason for this and i think this gets in the questions you're asking judge higginbotham is that active duty military service i'm just simplifying by looking at hundred fifty seven and later but in those years active duty military service and in active duty military service except for that thirty year window were covered by social security and so folks who were doing that service were paying into social security so when their social security retirement benefits are calculated they're just calculated under the ordinary formula that applies generally to anyone who is doing work in covered employment now if we switch our focus to individuals like plaintive who did some of their work and not uncovered employment it makes sense that we should be applying that windfall elimination provision to them because if we don't they're getting this unfair windfall that makes their it gives them an unfair one ball as compared to this group a folks whose working only uncovered employment which includes folks who only work in active duty or in it and in active duty during that thirty year period so in that respect plain it is actually being treated on par with folks who work only in active duty or in active duty during that thirty year period court were to find that plaintiff is entitled to these extra benefits he would be getting something on top above and beyond but these folks who worked only in active duty or in in active duty during that thirty two year time period are what happens still me and what happens to those people those people there are there if you were only in active duty and i'm sorry because active and active are a little bit hard to get out but if you work only in active duty or in active duty that's outside of that thirty year time period you are working in employment that's covered by social security so when it comes time to compute your social security retirement benefits gives you that regular formula that applies to everyone else who because you've been paying because you've been paying taxes exactly so there's no need for an adjustment so they're just treated just like everyone else if for some reason plaintive does not if he is not subject to the windfall emanation provision then he's getting this extra windfall in benefits about them beyond what those other folks that i just described are getting provision was intended to eliminate and the very narrow exception that congress enacted for uniform services the uniform services exception was quite plainly meant to just target that limited group that i was talking about before who performed military service while on in active duty status during that narrow thirty year period there's no indication whatsoever that congress intended to cover folks like plaintive and statutory language especially its use of the word holy makes that quite of things that i would point out the national guard technician act is in thirty two u s c section seven zero nine that there is a portion of it that miss foster referred to in ten u s c section ten to sixteen but the provision now one of the things that miss foster said is that the legislative history think i think also in the regulations that the commissioner follows that also reference in my brief under four of four ten nineteen four zero four point thirteen thirty four zero four two one three they all track this member of a uniform service which is defined in the statute forty two u section fourteen and i think and i think that is important because it shows a consistency of what the met of what the definition is it shows that social security chooses to follow that and but a there are mister you know i don't think it is so much a question of an either or i think either i think that mr martin there is meet the definition of a member of a uniform service and therefore he should receive the