fact congress displayed its intent that section six hundred fifty eight not apply by subsequent amendments of clarifying legislation in the that is a veteran veterans benefits improvement act which then acted in october of two thousand and eight we also continue our honor of the alternative laid that mr ball wins claims under you sierra fit in to the as otherwise provided by law exception found specifically within section six hundred fifty eight we also contend your honor that as a matter of law mr baldwin should have his claims told specifics of mr ball this case i would like to make one point clear and i also like to apologize to the court for my voice i have a head and chest call right now so i apologize about how i may sound to you  liberally construed in favor of benefit of the veteran i would suggest to the court that that liberal construction for the benefit of the veteran would also apply to the any interpretation of any statute that  his his right his claim it strikes me as the rather conception of us that you take it to the extent that it precludes him from bring his claim forward it acts as to to present to to strengthen those claims to protect our service members because we need those service members how do we get to looking at the legislative history if the statute is clear and i contend it is not clear your honor counsel i would suggest to the court that the middleton middleton versus middleton case and its progeny there are a number of cases missed the point of jones versus r r donnelley in the mi reads jones fully jones says specifically the court noted that the arising under languages sextant section section six hundred fifty eight was ambiguous and therefore it required the court to examine congress's intent which must be ascertained by looking beyond the sections bare text to the context in which he was enacted and the purpose it was designed to accomplish the cases the rose under employment laws from a nation cases and other cases that were clogging the courts that was the primary purpose according to jones with which section six hundred fifty eight would apply and the jones the jones court actually was analyzing the the section six hundred fifty eight as application to a nine hundred eighty one playing that is a claim that had been traditionally they find the statute to be ambiguous and therefore you must look at congress's intent which must be ascertained by looking beyond the sections they are taxed to the context in which it was in acted and the purpose it was designed to  limitations be applied by an act in the v r a which specifically said no state statute limitations that was at a time when there were no federal statute imitations that applied to those  that mean all of your argument is you know as assuming i agree with all that you're saying that congress didn't want a statute of limitations to apply and so we need to look at the legislative history congress could have clearly put in the legislative history or in the statute itself that the statute was to apply that the amendments were to apply retroactively and they limitations it didn't say and i regret you didn't saying you sirrah that no federal statute patient should apply because they pulled the same language from from the v r a but what i would suggest to the court is appears to me that it would reach an absurd result to say the that you sirrah was intended to create a statue limitations defense for you sirrah defendants because that you see it was not to declare fy simplify and when necessary strengthen existing veterans employment reemployment rights cases how do we how do we get there counsel if you're suggesting that the absence of any language addressing a federal statute of limitations creates an ambiguity foreigners that's yes your honor so the mere fact that it doesn't address something all by that all by itself creates the ambiguity allows you that sounds like a novel position to made to suggest that we can read into congress the silence of congress on an issue ambiguity i don't think congress has been ambiguous about its intent that that or an employment reemployment rights strongest argument that there is is that congress was unaware that there was ambiguity in how section six hundred fifty eight was read by the courts and that there didn't get it to congress and told february of two thousand and eight congress in eight months and then acted the v b ira which clarified their position that no stache limitation should be applied to this i think that speaks to congressional intent as much as anything your honor and what's your explanation for progress this year to make that explicit i have no explanation other than a note that congress i think can display their statute of limitations in this case section sixteen fifty eight is the one we contend in the court below agreed bars the usera claim asserted by the plaintiff in this matter and that that claim was barred prior to the time that the it was and acted about seven months later after that in october of two thousand and eight the plaintiff left the cd in january of two thousand and three so it's over six years later that this lawsuit was filed course we have contended and submitted in our record that he knew as early as august of two thousand and two that his rights and as an employee who could be called up by the military or infringed when harassment he contends was commenced coworker and his first act was to file a claim of the department of labor and that was almost four years later and was one much bad for your statute of limitations and sixteen section sixteen fifty eight that was closed at his request a year later and it was closed because the department had informed him that he didn't have a claim on another ground it was based on a releasing execute the revenue for one month a year and nine months later in december of two thousand and eight and then again at his request with w is claim with the department of labor and nine months later the instant action which was over a year after the v d i was an act so by march of two thousand and eight not counting the time he was on active duty and had his painting department of labor claims his case had already aged four years and that was months again before the v p i was now we have cited in our brief the cases which are legion circuit as well as an additional circuit the six and four other district courts have also specifically hailed and it's of recent then it's that section six in sixteen fifty eight applies to claims that expired but for the i was enacted but were filed after its enactment which is the case here the only contrary case that we could find was out of the eastern district of tennessee and that was the case  the james case which my colleague has already brought to the attention of the court and while that case does clarify the law with regard to section sixteen fifty eight again  the seminal case for that is land graft almost a decade earlier more than a decade earlier in which the court set up the retroactivity analysis which has been applied with regard to section six hundred fifty eight and otherwise ever since for the past twenty years this would be sort of super retroactivity would it because it would revive a claim that it was clearly barred yes or that that is the case and i guess the statutes of limitations curtail rights well i don't know if i would engage in some banks with regard to that it set to say that at some point statutes of limitations allow claims to judicially die and once they had they cannot be resurrected you cannot breathe new life into it and under the land graft analysis to courts questions earlier a war well first as a statute itself is the same whether or not it will have retroactive application it doesn't and so you go to the second part of the land graph analysis which is then does the application of a couple of decades earlier grafted new rights in several respects and that was allowing one to bring a claim where instead of the sole motivating factor just a motivating court applies the law in existence at the time it makes its decision so had this case been pending on appeal would we have been obliged to give effect in that limited damages that were added after section sixteen fifty eight was enacted so finally under language you have the recourse to legislative history and to my knowledge the only legislative history that was noted especially in the middleton case which is probably our best case i believe from the circuit court is that like the old statute the r r a that state statute of limitations would not have any role with regard to any of the statutes calls the federal jurisprudence have developed a distaste for for borrowing but that was the extent of their comment on it so that being the case with that silence i think the land craft test was not  courts that we have already referred to in our brief and here today and the rort case i believe that's from a separate district in tennessee but at this point in time it seems that tennessee and the six are fairly well in line with regard to the consonance applying section six hundred fifty eight to the facts of this case with regard to expiration of the plaintiff's claim as your research  think we have those in one form or another in our brief and if we haven't i'm confident my colleague did in his own again with with the retroactivity analysis we say that land  graft squarely with these other courts including the fourth circuit that that analysis is not met the statute of limitations has intervened there's simply no evidence that the b v i was intended by congress to be retroactive and liberal construction a statute does not trump or over rule land graph analysis in our opinion there's simply no there in either statute of equal with there is an argument of equitable totaling as well that my colleague may address by way of response just ten hyssop eight that we have not attempted to count the time while the separate claims before the department they were handing against the plaintiff under the statute we do continue and that there is no law that would support polling for the time between those two claims each of which would withdrawn at the plaintiff's request and that there's no rhyme or reason for that to occur the plaintiff is seeking a towing i think from two thousand and six three two thousand and nine which would encompass the time from the filing the first claim to withdraw and the second claim it was about a two year period there in between when the file was closed at the plaintiff's request and again that was because the department of labor told him that they didn't think you had a claim based on the really see it executed which is not relevant to their argument that somehow a statement was made by the defendant in response to that claim which should equitably call the statute of limitations the statement in the record before the court simply noted that he was not recalled active duty until january of two thousand and three that is correct now he was certainly telling people it's as early as six months before they thought he would be called up but that didn't happen his orders didn't get cut until january twenty three  maybe twenty two thousand and three and so it's our position that that statement was accurate and there wasn't any kind of misrepresentation that would warrant an organ of polling especially when the department of labor against us i suggest to the court though that they are the factors that the court should consider when they evaluate this is first examined you sears stated reasons nachman and those actually both in the legislative history and within the statute itself you see it was an act to strengthen improve veterans employment and reemployment rights statutes that that section six hundred fifty eight was enacted primarily to address borrowing statutes in the excess claims that were in these courts not the type of legislation that mr ball when these claims fall under not that are injury employment rights claims which congress had consistently held such claims shouldn't be subject to a statue limitations third prior to the v b i amendments ambiguity did result exist as to whether or necessarily indicate the previous version was the opposite of the amended version i would suggest that that the legislative history of veterans employment reemployment i would suggest this court has the ability to effect congress's intent when you sirrah was was put in was an act in put in play and that their intent as displayed by the v was that these type of claims should not be subject to a statue limitations defense i can i i would suggest the court when the court if the court considers these type of claims broadly as this court the supreme court has suggested better and benefits claims be evaluated i suggest that this court is compelled to find that there was never congress's intent and to apply