we will hear argument next and the number fifteen thirty one sixty grover versus office of personnel management think in by at least by trying to focus you on what is at least in the forefront of my mind and then you can explain either the answer or why it shouldn't be in the forefront of my mind we issued an order produced some letters because we were focusing on aspects of the board's opinion and o p m submissions o p m scree firies your brief and came into focus particularly after the letters and what seems like a factual question how much money in the relevant years two thousand and six two thousand and seven two thousand and eight did mr grover actually receive  what was he paid and this is my current understanding of the record efrem everything in the record before the board there are a couple of these documents the individual retirement records that are let's call them schizo phrenic about the question the right hand column says he got set some at least seventeen five in overtime the deduction figures arithmetically imply he didn't what are we supposed to do about that and but most basically you had something in the record where you either you or an expert or something said based on the got the seventeen five we don't have that in the record so how did what are we to make of the possible facts and the record let's start with the possible facts what is the basis for your no you made reference to the page stubs in the form of a letter counsel then counsel for mr jackson and written a letter saying this is how you properly compute and referring to pay stubs that a question of whether or not he received the full seventeen thousand five hundred for his high three years could be if it's not already in the record i believed it was but i haven't seen the  record could be submitted because my information from my client who worked thirty two plus years for the government was that he knew full well that he had received he had worked far more than the seventeen thousand five hundred that was  limit you couldn't play more and so we never considered that to be a problem it's not been disputed that he had seventeen thousand five hundred to be included in his hi three well you know way i think if it has been i mean i think really the government has presented a number of different arguments which i think have shifted over time and that is a principle argument that in fact i'd say the main argument in the red brief was a legal argument which i basically take their letter or their more recent letter to a bank in which is that they're not they don't have to count that money even if he got it because there was or there weren't deductions taken from him that at the time i think their principal position now is he just didn't get the money and and the reason for that is that the only dock the mint in the record is perfectly in equity poise about whether he got the money and it was your assuming that they took the doctrines for everything they were supposed to which means what are they supposed to do it's your birth that's why you have burdens of proof to resolve matters that the record doesn't resolve and it's kind of impossible question it get the money the record now looks like there is just this this these i r s basically join appendix page forty nine forty forty one they all say the same thing right hand column says we didn't he did the actual calculations rest on the premise that he didn't buy the money i mean at least seventy five just so we're clear not not you know a trivial amount of it but at least seventy five and in there and the question i think they agree is that the rest of the same document indicates he didn't which means if you have the burden you haven't proved you haven't proved which of the two columns to simplify is is correct and even if the idea one and if you don't have a question is  what are we to do so one one possibility is that if you stand here and you say i have seen the documents that show that he got the seven hundred five maybe the board didn't actually really focus on that question maybe they should have another you should have another opportunity to to to ask them to now consider material not in the record and they can decide whether you forfeit it by  doing it in a timely fashion i'm not quite sure but but there doesn't any longer seem to be a dispute about the law only a simple fact did you get the money i think when they come a three year number by using the name of the doctor then reverse mathematics to get an actual pay you're saying that's the only yes right so i'm saying if you're right on that you were right so just assume for purposes of army you lose on nothing like yes i do have one note on it from a client saying as you can see there's no way to tell if overtime was taxed on i but since it is added to my basic pay amount with service comp date which is obvious or the pay and grade level of the individual which you'll find but whether the doctrines are taken from over time they don't break it out they just list it the employee has no way of knowing pay that the individual retirement record indicates he did get this pay period six point seven five hours it gives the number for the year that they have thirty seven hours thirty eight hours i'm sorry the overtime pay for this pay period being five hundred dollars or so he's already had twenty five hundred dollars in overtime pay and that oh yes he has twenty eight hundred ninety seven in overtime and it's the forced pay period in the us ok you have any reason to believe that the document that you have would there be other documents for other pay period there should or could have been let me not let me not put a burden on our boy is not here i thought that it was in the record that i never saw the whole record because at one tell from the five hundred page record that we got from the m s p b this is not in there this idea on what we asked one question going to where you mentioned that there we do know that there were more than one a during an appeal of the previous case o p m rescinded his final decision on the case was dismissed o p m petitioner was forced to file yet another appeal on march twenty second eleven so i think it was separate i believe i represented him in the second one and the previous lawyer represented him on the first and it may be that the board only submitted this court the five hundred pages that were in the second submission in the second case he in fact received more than the seven hundred five and over time but deductions were not taken from that though they should have been so they were mistakenly not taken that the seven hundred five has to be included in the high three calculation law the only possible way to compute this is through the directions and the only proof of the deductions is on the documents that the agency creatures that's what you're saying right no your honor not not through the deductions that limitation we is found them in the early well again you're out of that the open and s p v as well as o p m as well as this court have consistently held that there is no jurisdiction based on o p m zone interpretation of its regulation five c f r eight thirty one one the non presidential but in thomas vs office of personnel management there are two other cases with the same result that the thomas case as the most similar facts here in that case mrs thomas was receiving an annuity for fifteen years that she raised no complain with and then after fifteen years said wait a second i looked at this and my choose my paste and all these other documents indicate that i actually got more she brought that to the m s p be produced  produced e mails from the employee agency that said yes you're right you got more than this i are indicating the board still said o p m has interpreted this regulation and found that it's bound by the ira and the i r s says otherwise and we can't touch that did any of those cases involve i r s that it seems to me like the one here it seems to me are perfectly janice faced about what the choices it doesn't distinction where there is some conflicting evidence here however the it's here is not only that the most convincing evidence is that it duction amounts and not only that but o p m has a longstanding practice as we've stated in our letter of using that eduction amount is perfectly consistent with statute and regulation and that's entitle to deference and so using those procedures in addition to the fact that those are listed in a part of the i r that's clearer than some notes in the remarks column that don't even have explicit again in theory it could be because it's listing the statutory maximum it could be referring to something else entirely in fact the only reference to copra pay is on a different page of the i r at the very bottom where it states cooperate yes with an asterisk which is the typical it would appear based on the handbook that o p m puts out should be noted every time there's a reference to focus and wasn't done here but at any rate o p m did what it always does and it does consistently not for this one individual the this court is even held in the rain own case that there would be a cause of action under the privacy act five u s c section five fifty two a for mr grover to have taken the employment agency to district court if they refuse to change the information based on what yes we could have gotten them to correct the records in that venue but not through o p m not through the m s b process and not through this court to the extent that he's saying what's on my arse is incorrect and i know you've cited a presidential fact it did receive the overtime again right how does everything go haywire well it's not that mr grover or any similar situated individual would be left without recourse it's just that there recourse is not through that procedure but through the the to the customs and border protection individual what their response would be but o p m would not reject any new certified i r r from customs and border protection if they received such an i r r that contains certified information reflecting that the pay was received whether or not the retirement adoptions were taken they would in fact change the annuity and retroactively as well retroactively to what is if the two thousand and eight return date that's correct your honor now in terms of special attention i will note that i mentioned that the district court proceedings that there may be essential imitations issued there with doing that at this point but that would have been the reports at the time but that's all assuming that customs and border protection refuses to change the iraq in fact they've already changed it wants the record does reflect that more lou it's o p m has changed the calculation several times n f c has changed the certified information actually right around a more than once because the initial i r s were deficient in that they did not have the two different rates of deductions listed they corrected that issue and then after the issue was raised at the m s b by mr grover an f c c certified new retirement options information were factually different from the previously certified deductions and it's on those deductions which appear in the record that o p m bases its current calculation so when i look at the board decision and the administrative judge's decision what i take away from the this is that the order didn't actually make a finding that on this record she did not receive the seven hundred five instead and the a more or less made a contrary finding it not clear but it points in that direction and the reason for the rejection of the claim was not that they thought that the record did not establish th consistent with the board's precedent and that was up held in this quirk in the not percentage of cases that i cited that they basically didn't seem to as you state your honor really engage with what the actual fact was they applied the rule that they've consistently applied which is that o p m is entitle to rely on that iraq and whatever is on that i or are basically whether it's right or not that's what opium is bound to and in fact if you look at problems of course is that whatever is on the i r is deeply ambiguous in this it is to some extent ambiguous to the extent that the remarks can be read to indicate that there was a greater amount of copra overtime pay paid to mr grover than that that's reflected in that retirement deductions but the retirement deductions not only are the more  convincing and more concrete piece of evidence but consistent with o p m so long standing practice and the reason for that is to make sure that they capture all of the pay that in regular pay situations that vary from paper to paper to make sure that they capture that they do it with reference to the deductions which are statutorily required to be taken moreover it's important to note that the deduction deductions were taken for some amount of hope for overtime pay and the reason that's important is it shows that customs and border protection didn't just forget the difference i would only also might add is that the difference is a little larger than what's represented our letter i did that that way to be conservative but that's that the minimum difference for even the final year at which of course there are several names or your letter was inaccurate the base pay not reasonably close to the base plate base pay plus seven thousand five that's is from quite far forward toward that end of the spectrum it's closer to the base pay than to the combination of the two yes ron and this system of has looked at it on a new number of creators the social o p m as presumably it i don't have independent knowledge of this your honor but presumably has looked at their regulations continuously as part of their duty under our system of government to continually  take note of what their regulations are i'm not aware of any efforts or public notices put out of proposed changes or anything of that nature leave  like the court to focus with just a minute on the deduction issue because if for some reason this case were sent back to the m s p being the question of the deduction issue in order to determine the amount of pay really needs to be decided before that i think because without the deduction issue being decided we could be right back here with the same question about whether seventeen five should be included i think i feel that if i were trying to decide this myself i'd read the statute the statute as i don't think i need to repeat it assigns page two of my brief you determine the time of the new ly based on the average pay in effect at the time so that the graden pay level of our client if it was on a list could easily be compared with the public information as to  that the calculation by way of using the doctrines is proper wrong to the statute i'm not sure there's a lot to be gained by amery man we're talking about one and a half percent of certain numbers and if the calculation itself is allowed i don't think that's enough i'm sorry if the deductions are allowed a little bit but i guess said it seems to me that that  there isn't a kind of a single unitary question may o p m use a deduction inversion method really it could be yes it may unless there is evidence that the starting point for the deduction number is incorrect ok and you it seems to me your entire case depends on the assertion that in fact the starting point for the deduction and version number calculation is incorrect look at the right hand the correct one in which case there's nothing in their regulations that say you must use a deduction inversion calculation that starts with an incorrect deduction number and there's also the possibility that because the board and a j were really focused on the question how much money did you actually get that maybe the board would find it within its discretion to