what are your arse my pleasure to be here today on behalf of mr kite i think what we have in this case is kind of a st class bait and switch unfortunately for mr kinds and all dual status technicians and nine hundred and sixty eight congress created passed the national guard text machines act which created this what they call the civilian employee that are dual status technicians they serve in the military support role they help train they help support maintain and repair supplies used by the active duty and it basically federalized these technicians that were prior to this employees of the state government brought them into uniform system of benefits and uniform benefits as well requirements to be a dual status technicians were to be a member of the national guard for the component that they worked with they had to hold the military grade specified by the secretary of the army or air force who designated the adjutant general a military position as their employer they had to meet military security standards they had to wear  military uniform they had to maintain physical fitness standards for the military and kind of an odd little situation they had to maintain hygiene hair and facial issues as well they could grow a full beard like myself here today you know like it was murphy present position was too military in nature that the military had a right to discipline him and terminate him eventual as a result of your want him wanting to grow facial hair during his monday through friday job before he got to the guard classification  what was his monday through friday you know i'm not sure exactly what he did in the peterson case they worked on airplanes they they repaired airplanes and things of that nature i would imagine that he did some of the similar stuff for the army repaired vehicles and maintained vehicles and maintained weapons and things like that was that in his role as was he a civilian in the congress specified that the dual technicians were civilian employees so this was his monday through friday job he was doing that and then he had a saturday sunday job that was that was the guard i was the national guard i was the army national guard what it would be to do weekends military yeah the one week in the month but i think it's two weeks in the in the summer time where they have to do military drills and things of that nature they were also of course subject to being called to active duty which actually happened mr coates in two thousand and five as a member of the national guard he was called to active duty which took him out of doing was national guard position it was a c was a civil was he paid by the national guard or by some other agency by some other federal agency who paid him for his weekend work the secretary of the army i think in this case would have paid th e statute requires that payment be based whole wholly on service as a member of the uniformed services explain to me why the monday  civilian work that's paid by a non military and it is only on service as a member well i think that service the exception specifically says holy earned as a member of uniform service  and everything about this position and including being denied basic civilian rights to file for title seven complaints in that section one hundred eighty three dollars complaints every circuit court having occasion to review these civilian or civil service act greve their terminations that they were termed so military in nature that they couldn't bring these basic claims were available to other civilian technicians why did congress use the word holy and payment our argument is that his his quote unquote monday through friday job is so military in nature that regardless of what congress said and various other courts have found that to be kind of a defunct designation it's kind of would be if it walks like a duck and talks assume the same facts we have here your argument is that his avionics repair job within its whole is based wholly on service in the military job could he do that would not place him in the same same category well there are plenty of there are some there are some missions that do not require membership in the national guard component ok so every member of the national guard that does what mr cutts does is excluded and assurance of a question every member of the national guard then would be  not considered a dual service technician unless unless they are poor it is a dual status technician if i'm just a national guard member of an example i just i want you to clarify the statute for me and well  guard i don't wear my military uniform on at seven hundred and eleven so what makes his monday through friday job military the military aspects of the job in itself the fact that it's to wear uniform that he's not does have the rights and the civilian civil service reform  act he doesn't have the right to bring typical claims that civilian employees would be able to make that are there are non dual studies technicians that could bring claims for discrimination and injuries at work and disciplinary greve their disciplinary actions in the civil service act they don't have those rights and number of courts across various circuits have found that their service the work they performed monday through friday is so military in nature that you can't separate the two there are two on point circuit  commissioner's determination was entitled chevron deference we're not acknowledging that here at all in fact i don't think it even has skidmore deference i think that the th circuit also somehow finds that the legislative history is not helpful but also finds the commissioner's reasoning somehow persuasive and i think that gets to one of the issues that one do they have does the commissioner have a delegation of authority to interpret who is a member of the uniform service because that's really what we're here to determine and that definition of uniform service that congress decided to make part of this windfall of nation provision exception that was specific language they pulled out of a different statute that script that so screwed ministration that adopted into this provision which the levin court found was and even then you have good rationale to it i don't understand in looking at the martin decision how they can find that the legislative history is is not helpful  and seek to define basic terms like service and as and they focus on this were wholly ignoring the other ten words in that provision this is an eleven word provision and they the commission wants you to focus entirely on the holy instead of earned as a member of the uniform service in the circuit and that decision they focused on the word as and they said well it was performed by someone who's uniform service but not as someone who is in a uniform service and not every job that a national guard person does monday through friday would be covered under the assumption it's the military aspects of this position which bring them under this provision in the opinion of of us you also have a situation where the most recent statute was in one thousand nine hundred and four that brought about this uniform service exception this is a very specific exception a very specific statute that when the commissioner tries to argue about general you know things are going lower  workers and things of that nature this is a specific statute versus a very general one that they're trying to and focus upon in the peterson case they found that the work was based wholly on the service a three to two thousand and thirteen there but over forty bills are resolutions considered by congress to be the repeal or amend or replace the windfall nation for vision because they realize that this reduction of forty percent  completely arbitrary that statute was passed in the st place relative to people who are moonlighting or had a very short time in coverage employment that's not what we have here they've taken this one little provision and exploded it to he doesn't earn that civilian pension if he's not st a member of the national guard and it's not just that it's all these other military requirements as well that are in there overs we look at we look at the job that he performed or do we look at act that he or you know war uniform and subject to some obligations military discipline i think they're kind of hand in hand the job is essentially military in nature he trains military people he repairs military equipment he h ad ministers military in a support role and congress recognized his his job is as a as an engineer technician at this correct doesn't you know he could work on nonmilitary aircraft good that would not be military in nature would correct the point is that he did he chose this job because our government went to them and we say we need you people to work in roles that support the military and for that purpose we're going to provide uniform benefits and we're going to take care of you and instead they get kicked to the curb every time they try to mention a civil claim that they are otherwise would be entitled to which i'm sure they didn't know when they took the job and by the time they were part where the tires are getting two three thousand four hundred dollars less per month and that acknowledged that chevron difference was appropriate the court relied upon skidmore's persuasive authority for their ruling despite the fact that they found a legislative history wasn't particularly helpful in determining what the it go beyond that didn't the court say use of the uniform services exception for that military retired pay which means that it does not reduce his social security benefits even though some of it was not covered employment he also get the civil service retirement system pension that's at issue here that is based on is his work as a dual status technician from one thousand nine hundred and eighty eight to two thousand and seven and also on fifteen months in civilian civil service employment as i believe it was called electronics mechanic so those two things are the basis for his civil service pension and he does not get the exception for that and in that respect  is in exactly the same position as every other member of the civil service who served when he did and was also in the national guard on the weekends is treated exactly the same so what he is arguing is that he should be treated differently because he views his job as a dual status technician as essential a military but in fact there are concrete and meaningful differences between the two jobs that go beyond the fact that he performed the dual status technician job during the work week and he did his national guard service on the weekends and his field training fifteen days in the summer of the statute only requires service as a member of uniform service i e the national guard isn't a fall within the statutory language so he is a member of the national guard  he isn't a member of that he isn't acting in his capacity as a member of the national guard all the time he's serving in his capacity as member of the national guard when he's doing his service is active duty or is an active duty training on the weekends or in the summer why does the statute require that he be acting in the capacity of relook at the language over the way that this statute the provision reads that the uniform services exception applies to a payment based wholly on service as a member of a uniform service so he is a member of a uniform service when he worked as a dual status technician he was not working as a member of uniform service so here are some differences between those jobs these are important differences that go beyond who pays his pension and who pays his wages although your honor is correct his wages for as a tool status technician were civil service wages according to the g s a scale paid by he was an he was an employee of the department of the army and the united states by law national guard wages were military wages and they were paid out by the kansas army national guard that's the state entity using federal funds but it was it a state employer and then two entirely separate retirement systems so as a national guard so as a dual status technician for instance they're allowed to unionize they can join a union and they can and they operate under a collective bargaining agreement you can't do that in the national guard they get comp time if their hours are set by the secretary and in this case the secretary of the army and if it's needed for them to work i'm speaking generally to but a lot of the dual status technicians are so are your are you saying no but he was eligible for your point yes you will status technicians can unionize so  not absolutely everything about being a dual status technician is subject to being bargained over there some cases to say you can't bargain over the uniform requirements that's part of the statute but a whole lot of other things are so  comp time national guard if they need you when you're on active duty or in active duty for training they need you to work extra hours they can work you two hundred and forty seven and they don't have to give you come time personal injury if you get injured on the job as a dual status technician you get federal employee compensation act or worker's comp you get injured on the job as a national guard they do a special type of military report in the ideas to get you i believe eventually some type of military disability pay nationally the dual status technicians get an annual performance evaluation like other civil servants there are so many meaningful concrete differences between these two fairest cases the cases about intra military immunity to the ones he's referring to those are getting at a completely different question they are about just dish ability should the courts and should they consider these claims usually they are state torts or federal tort claims act or discrimination suit cases that service members bring against their superiors or their colleagues in some cases and the question is should the courts address these cases which implicate very difficult questions and concerns about military discipline and military structure and those cases have nothing to say to the question of how the social security administration should account for particular types of employment in awarding retirement benefits wholly on service as a member of the millet of the uniformed services the different question so the plaintiff seems to be suggesting that when he was working as a dual status technician he was simultaneously working in his capacity as a member of a uniform service but we know that that is not actually possible because the supreme court has said in purpose  department of defense that someone who serves the national guard has three hats the civilian hat the state militia national guard hat and then in this case it would be the active army had when you're activated call to active duty and the supreme court said you can only wear one hat at a time meaning if you are called to active duty in your active army you are not acting in your capacity the national guard and what that means is if you are working in your capacity as national guard you are not working in your capacity as a civilian and this is consistent with with the statute which says that if any civil servant just mr times wants to take wants to do his summer fifteen days of training during the time when he would normally be working his nine to five job has to take special leave under five u s c you cannot do both of those jobs at the exact same moment the statutes aren't set up that way you can't get military pay for doing your civilian work and you can't get civilian pay for doing your military work in this case as plaintiff counsel mentioned congress created this position in order to make it more attractive these dual stead to make the dual status technician position a civilian civil service position that supports a national guard unit but the way it made it the central way it made those positions attractive to people was by giving people the availability of this the civil service retirement system because that has a very generous p why does it have a generous pension because people in that system did not pay into social security and therefore the pension was designed to replace the private sector pension and social security you got something that approximated both so mr kinds when he took the dual status technician position he didn't pay into social security and the pension that he gets is very generous for that reason but like all other civil servants who work for hyder d o j and were in the national guard on the weekend some of whom were also deployed they are in the exact same position they are all they do not get the benefit of the uniform services exception and they their civil service pension their retirement pension not their military retired pay their civil service retirement system pension does operate to reduce their social security benefits and that's exactly the way congress one of those to operate i'm happy to if circuit disagrees with you what's the flaw  n its reasoning the th circuit reasoning was as follows that mr peterson was a member of a uniform service that he worked in the national guard and therefore he was working as a member of a uniformed service and of reasoning they did not look at whether he was working but what wholly meant was he working wholly in that capacity they didn't look at as as what was he working in his capacity as a uniformed member they relied very heavily on the fact that he wore the uniform and had to be a member of the national guard however those are of employment they are prerequisites for getting the job they're not the job itself what did he get paid for what did he get his civilian wages for working as an electronics mechanic i make him different than employees wanted this to be not wholly civilian and not wholly military so it is a unique position but it is within the civil service and the whole idea as i said was to give people this special pension which comes from the civil service retirement system so if the if were when one does as the th circuit dead when one says well it's all part of one system it's all part of the military that negates what congress was trying to do to give them th special benefit it was the position was created for that reason so you can we can now say well it's really military it's not really military the whole point of it is to get this to put them in the civil brief that the commissioners interpretations get should get chevron i mean should get skidmore deference your honor and that is what the martin court found and like to clarify any other questions that the court might have it's a difficult statute and if the court has no further questions or the questions counsel thank you for your comment we have some rebuttal time thank you we asked the court to affirm the decision the guard into the grievance process and they told him no you didn't get that right your honor you think he could but his rights are extremely limited he wouldn't get the rights that a typical unit would get by doing that just like his at other was that this these eleven words mean something they're the most recent pronouncement by congress there's a specific exception for uniform service members and the military aspect of the work that peterson did makes him military in nature not civilian in nature despite this general pronouncement by congress fifty years ago that just about every circuit court has since discounted and you know they don't want to they want you to ignore all these various stockton cases but they mean something these are very real rights that civilian employees have access to that these missions or do not have because of the military aspect of the work that they perform that's a huge thing that i think this court has to take into consideration when determining if there are military in nature or civilian in nature regardless of the pronounce my congress