we believe that it does include sufficient language to meet the requirements of office of personnel management interests on regulations and their respect its the office of personnel management regulations are clear that magic words are not required for the awarding of a survivor into it rather than waiting to be any argument about it being satisfactory or meeting the requirements for a survivor and nobody to question is whether if turned his decision on his conclusion that it only provided for your retirement survivor benefits we belong to believe that that is incorrect for let me ask you if there's not a retirement survivor in which there is not found it was pretty clear but not absolutely one hundred percent which i think you would have to concede we're here all of these arguments not that can't be one hundred percent it a minimum wouldn't your case have to go back so that the judge could consider the surrounding circumstances in the strings of evidence we believe that there is one possible scenario but we don't believe that it's it's necessary in this case because we believe yes it's true that the administrative judge did prevent the petitioner from presenting evidence in that regard and i think that it's conceded i think that there was an error but i think that the court order in question here contained sufficient having a hard time seeing because it seems that in fox they kind of create three categories one where it's ambiguous the other extreme where it's crystal clear and i think the language in fox which would you concede  your language is no clearer than the language in the fox case they said it's sort of kind of clear on its face but we still have to look at surrounding circumstances to determine my cure language is clear or less ambiguous  some respects your honor i think it was in the fire escapes i think that it is in the fox case i believe that the issue turned on whether the referenced survivor benefits actually met the civil service retirement niger shall not be reduced abated or terminated as a result of the death of mr rubb now if the this constitutes a statement that the parties are an indication that the parties intended mr nader receive a lifetime benefit for her entire life including the period after mr ruff ailsa's away the office of personnel management in its brief has conceded that this sentence really only applies can only apply after m if mr ruff dies after he's retired because neither mr ruff enormous neither will be receiving any benefits until he has retired so since since office of personnel management now recognizes there i think we move on to the next conclusion that the administrative judge is holding in this case that the survivor annuity only put provides for pre retirement survivor benefits cannot be upheld  because if this first sentence is giving consideration as to the intent of the parties then back inclusion by the administrative judge just doesn't pan out what do we make of the second sentence in that paragraph  your i think that there is apparently some sort of nominal one some benefit that is paid if the employee dies preretirement and i think that it was intended that there be granted but the lifetime benefit is through former spouse survivor annuity and have it this statement  agreement the divorce agreement itself expressly says preretirement surviving spouse pension benefits and then says nothing about post retirement survivor benefits how how do we get past the clear language that it's used in the agreement your honor it's our position that the two sentences have to be read separately and that there are they say i'd dispute over whether language provided for the former spouse survivor and they had a spreadsheet language that a three retirement survivor benefits would be paid husband in the perry case made the argument that this court order talks about pre retirement benefits but it doesn't provide expressly for the death occurs after the date of retirement and so i think that perry is significant with respect to the issue and she did this in this is obviously a form book documents of some kind don't you suppose you have any idea what the origin of that awkward document happens to be him why the people in wisconsin happen to be using it we believe that this document was drafted by mr ruff's attorney we presented evidence at the still alive mr ruff is alive yes and is his view of what this document means relevant to the case in any form as you view it your after the other spouse ex husband or her husband or wife dot and they're seeking to get their money out of a pm this is almost like an advisory opinion so i mean it's not clear which of the two spouses is going to the other i mean it's not entirely clear is it that they'll ever be a claiming for these three or five or and you look at all right i mean it's contingent upon a lot of things happening in the future which may or may not happen right it saying that this is the final order if you want to appeal this you feel this to the merit system protection work and so there is a high level of concern on our part that waiting for the death of the pardons would constitute a noctis let's pick up point where judge approached left us that is it strikes me that at a minimum there couple of remedies that mr knight or may be entitled to one of them is she may be entitled to her to her viber benefit based on the terms of the document or at a minimum a remain and under the fox case or there's a third possibility which is that she may be entitled to have a remain and directing the government to undo everything it's done to this point because nothing that they've done to this point is anything other than an advisory opinion and she should not be bell but that advisory opinion in tolly issue actually becomes relevant what's your reaction to any one of those three options ok your honor may please the court with regard to the last possibility the question of is there currently standing is this this issue right i know the issue came up in a previous appeal and i have to confess i don't  testimony but under fox if the document may be understood to have expressed we provided then you go into all this so ministry a judge must have thought this was a fox case otherwise why would the ministry of judge take all that testimony well perhaps he thought that during the proceeding by c kilt the rule that he thought the court was clear and unambiguous there was no need to get that sort of test but i think the important point is that if the court concludes that it is necessary or appropriate to get  k evidence that evidence is in the record mr snyder service snyder and mr ruff testified with regard to their understanding as to what the court order was to provide me up with the administrative judges not on record in terms of his view of that then to decide this case on the record that are using the fox analysis if we disagree with the administrative judge's view that this is a category three clear wrong you think the regulation is clearly applicable that's critically issue and i guess i want to just try to figure out why how you think that because the regulation and addition to allowing for similar word gives examples of words and one of those examples is death benefits so how we survive are benefits different than death toll in other words if the regulation frankly in my view if the regulation just said you have to work use the word survivor and you would because and you would really mean something then i could understand how you would say even though you survivor benefits it's not the same thing but the regulation seems so much broader than that because it specifically allows exactly no i mean so i said the regulation applies what i'm what i'm asking about is in the heading of that section it says premium tyrant surviving spouse pension benefit and or other survivor benefits so why isn't that reference to other survivor benefits sufficient to meet the second test and that regulations about using that other term ok several reasons are first of all other survivor benefits his not clear it's not specific where the word always had less specific than death benefits if it's well and if it said angle made i'm sorry i'm unsure let me ask the question if it said and or other death benefits would you say then that the regulation that it it comes within the regulation that's a lot of it within the no your honor i would not i'm saying that the phrase other survivor benefits is not sufficiently specific in contrast to the first pacific term return to survive but more importantly the phrase other survivor benefits is introduced by the phrase and slash or  that's a very tentative phrase it doesn't convey any specific intent to provide anything it's basically merely calling out the possibility that the parties were other survivor benefits but see my problem as i'm looking at the regulation and it says you're right that we have i agree with you that the first part comes with then this will continue but the second part it says but does not use charms it doesn't specify exactly exactly how their views not a and or because you can't have both if it was pre retirement and post retirement obviously you're either going to going to die pretty tired or post retirement can't buy in both contexts so to me just reading english it seems that and or is the appropriate introduction if they mean post retirement surviving well i would respond to that your honor by saying that i think the grieving could convey the right to both types and then the question would be which one does the recipient act so i don't think it's in any way to appropriate to say and if that's what the parties intent i don't think that you know what's wrong with or you say and as appropriate correct and new so what makes this problem again what the why of why is this the use about two different things it talks about the retirement surviving spouse benefits and these other survivor benefits i think you need to take into account the role played by the head in section six as opposed to the text section six it's the text of section six where the p of the regulation correct case because the regulation call there's sort of two sets of phrases addressed in the regulation in the first set the identify several different phrases which fail to provide a survivor benefit and those phrases i think are completely consistent the standard is in opiates regulation right but that's why you need i agree i mean i see that absolutely that you can't that first sentence is exactly what the reg is saying is insufficient so that the reg says but if you have some other term that makes it ok so that's why i'm asking why this other crap in the heading survivor benefits is it comparable to death benefits or similar terms well again i would say because it's introduced by the phrase and slash and then the cash the question is does she actually get the benefit as a matter of law she could get them both could carry she could be provided both benefits in this agreement but she could collectibles and indeed it's not guaranteed that she would collect on any of these benefits because if she sees this truck she would not get any that gets us into all other problems the end or problem council is a classic example of why no one should ever write a legal document with and slash war head for those lawsuits who may be thinking about that they ought to think about it twice now lawyers may also think about it putting that aside i think the general understanding of a and slash  your is a infinitely ambiguous and b what it does mean at least is that you can use either the a and or the or because the document doesn't specify which it is so using judge approaches analysis if we can use the a and the heading then does provide for both pre and post retirement benefits i want to tried a little different tack with you a minute the  with eight thirty eight seven twenty three c which provides that o p m will do that when they receive such a court order the government then  retired under the under eight thirty eight seven twenty three zero pm has a duty to inform a person to submit such an order that the order isn't satisfactory and explains why according to your own regulations government failed to do that finally mr ruff retires which under your rules now freezes the document and it's only into later that the government scratches its collective heads and says oh my this really won't quite do but there were some intermediate letters affirming that it would do even before that why isn't the government simply a stopped  from at this point turning around and saying sorry it's too late to fix it and we've changed our minds well your honor richmond doesn't apply we would all agree to that so we don't have to worry  about the richmond cases stopping in a stop why isn't this such a clear case of the stop all that the government should have conceded this whole thing and saved us the pain of having to go through it when your honor it's well established that you were to apply a stop one this is what four years now this is seven years seven years after this document was first submitted o p m seven years later rush retires and o p m sends another letter and that other letter says everything's fine at what point does it is miss knight are supposed to figure out that the government is getting ready to really do her in but your honor again i just would have to repeat that the binding precedent of this circuit says that you honest error cannot possibly constitutes conduct i would like to address one point that was brought up answered by misfires attorney was a question raised do we have any knowledge with regard now the first sentence of section six ended up in  court where mr rove testified with regard to how that language got there mr ruff occupied unusual position where he was employed by the federal government he was both an employee of the federal government an employee of the state government so he two and so mr ruff testified that when the parties were dividing marital assets the attorneys first addressed his state pension rights and they drafted a separate document it's not in the record which addressed how his state pension benefits w we have more than four minutes remaining the with respect to the issue of misconduct ministry judge made some comments on the record at the end of the hearing that are i think helpful in addressing that question the administrative judge recognize the unfairness of the situation to miss niner and he concluded that the conduct of office of personnel management was inexcusable and that it was unfair to miss niger and that was bad and i think the words he used were that it was really really really bad i think that this conclusion leads us to believe that the you for that question i did search the case law for a good definition of misconduct and unfortunately i didn't come across one misconduct is not very well defined the cases  as to what is required by the circuits that requires conduct for a finding to stop i think that misconduct is something short of fraudulent or intentional conduct i think that when an administrative agency breaches a fundamental duty that has very important consequences for someone like this night or they act breach of duty constitutes misconduct this was not a mere mistake this was a situation where office of personnel management changed its opinion on how it interpreted the stock attempted to make that change at a point when this night are no longer could go back into the state  court get the matter perec to whereas if it acted anywhere any time earlier in those seven years that passed she could have done i suppose we treat our children's bad conduct as this kind i suppose we could treat the governments the same way is that your argument in this case i think that there would be appropriate isn't that a problem though if we open that door to every time the government messes something up which has been heard to happen on occasion if we then to stop the government from correcting its own errors haven't we created even bigger problems i can just see a roomful of plaintiffs up here now your honor it's our position that there comes a point when the government reaches the point of no return and that happening in this case they waited seven years to inform this night of the change and they waited until roughly six weeks after mr ruff retired to form now its own regulations require office of personnel management to review these court orders when they come in from the divorce court we have these custom drafted orders coming in from all over the country and they're supposed to review these and render a decision as to whether they say i was file the office personnel management's regulations and if they don't if there's some glitch or some problems are supposed to notify the attorneys so that they can go back anything in the record miss denison explaining why the government if the seven years dug this one out of the files and said what do you have any is there anything that you know of in the record that would explain why this happened you honor there to the best my knowledge there's no evidence in the record is what the same chord section is followed by the next section eight thirty eight point seven twenty our next case is merriment a versus the postal service