the nature of the workings change they did you wrong that's not the same thing as saying but what happened your honor was when the when the hearing examiner did his examination he found that in fact during the entire work period that mr separate worked for r p i he had been sefton was directed by c s x but we're not going to consider this period that's four years prior to him actually saying something when they truncated that claim they simply cut that off from any of their considerations and what i'm saying is that if you follow the line of what the examiner said he said during the entire period so what what what the what the board is asking us to do is to assume that this must mean that during the period when it was truncated from made of eighty seven through november of ninety seven that kerry i think this really was correct while there was no absence of finding your honor what what the finding was is that because of the four year statute of limitations this is in part of my hearing had made he had made the determination beforehand that he wasn't going to consider those periods right and my point on this is if you look at to eleven sixteen this should have even if this was good faith that that for your period should've been set aside they they should have gone back and made that honor and what they what the examiner found when he examined that was my client was in fact being directed by c s x and that is on one tenet administrative record that's his finding he there was no difference between these two companies know that either this is one of my problems with this this is a creaky old statute it's creepy and i actually saw a court call it that said it's a creaky old statute i see nothing where they have to tell you you're not under the r think that would be an assumption and it's not an unfair assumption i would hope that they would tell him how does their pay stubs show what their pay stubs show whether but when i have your honor i don't my question is how did this how did they get noticed and that's my question to this is why  they didn't direct his work and who wanted the examiner find about that the examiner found that they were absolutely in fact under that he was under the direct control of c s x but i mean about the truthfulness that he said that it because he couldn't find a science or of the social security administration of the iris definition of fraud which which is almost a criminal standard and i use mccarthy versus payne stewart which is science or is eliminated fraud is any kind of fraud was destructive fraud in fact under mccarthy painting under that line of cases i can make the argument that their payment of his of his benefits or is his benefits for his benefit makes it not so sure the construct of fraud what is there about his relationship with them that they created to produce shiri duty this isn't like a traditional thing and i think that your honour's can find it if there is a if this is a discretionary stand over the they basically breach that i think you're honest in overturning whether it was race or not but the fact of the matter is i don't think the board has any real direction on what fraud is they're using an ira standard that's almost beyond a reasonable doubt and asking a bunch of really rude guys that drive that they drive engines and make tracks to prove that someone five billion dollar corporation they actually directed his work and i i look i took a look at that counsel's letter from from one thousand nine hundred and five to ninety six period homes all over it completely counters what they said there at it i don't see how it could possibly do that because because your honor it was a reconsideration of the earlier decision basically in re res under the same kinds right and what he said was at the very beginning i'm going to eliminate from four years prior to when he said something by doing that by definition and by by the effect of the order itself simply cut those years off from consideration there's no finding at all there's no that he fell under that what he said there or that is in the regulation requires a finding and you're turning that into the regulation being triggered by the absence of finding your honor i would say that the regulation requires that the employer was not covered under the rubric carmen act i think that i think basically the guidelines that that is missing here is when is this particular provision either that or fraud because i think there's a need for i'm sorry and i know it's a tough thing to say but let's stick with the fighting  that that what the board needs is its guidance it seems to be wrapped around the axle basically saying that we can't it would be the rarest of occasions when we can go beyond forty years when you have a record where it is very evident that c s x was not wholly truthful with them because they directed his work and so what were what i'm missing here is when what is fraud is it as defined by the i r s code i don't think it is i think when you have a federal said we're at work you can't prove fraud and i would say that would be almost nine on impossible in my store and i'm stunned that doesn't up to that doesn't help your position because you've still think they need to prove fraud i think that they can't prove fraud is to find a science or element as defined under the us code for basically tax fraud i think that when you're saying they have to basically prove tax fraud to prove fraud when the tax fraud statute is completely actually met tell me what front you section nine of that act those records are conclusive unless any error is called the board's in action within four years of the date that the railroads are required to report it to the board in this case because the board reasonably found that none of the regulatory exceptions to that say record sex right number of times and i have pages that is reasonable reliance doesn't matter we cannot decide merely because it finds an inequitable yes it isn't isn't the th exception to the time period and an equitable one i believe it is your honor in this case that was just wrong when they said they couldn't exercise and i quit which is me in light of those seven circuits decision and weyerhaeuser where the board did go is roman at four still a valid exception we believe it is it wasn't raised in this case in any point particularly ok but the vision i get i mean that's that's an important point if i take that to the what do i do with the fact that the board as part of its explanation for its decision in this case said we can't make a judgment based on equitable considerations so at least it was a thought it had the argument before it the this is unfair and i was reasonably reliant he was making back when he arguments to them and he was pro se and so they thought they were being asked to make an adjustment on equity grounds i know you're saying it wasn't raised but the argument seems have been presented otherwise i don't know why that language is in the decision and they had a rule isn't that a problem with their decision they have a rule that says they can do exactly what they said they couldn't do and so to the extent that that regulation is at issue stage of the board cannot the boards regulations mind the board as well and the board cannot ignore its own regulations merely because it finds them an equitable under the circumstance of the state of this case in the absence of fraud right we can't do defined it we have no power to provide a remedy in this case that's how are we can tell me if i read it wrong and i would like to understand that that's hard read that page of the decision and that just seems flatly wrong under the regulations and the best indication the most compelling indication i can point to that the board did not reconsider its ninety seven decision is when the board made the initial decision on mr sets going here in two thousand and seventeen the labor member of the board wrote a separate concurring agree with that determination and yet still said i agreed that the four your limit applies to mr seth's case and agreed with the result in this case and so if mr seth council is correct that the ninety seven decision was reconsider purposes that or your limit robert pires intentional wrongdoing on the part of the employer with the specific intent to alter the employer's obligations under the act you're claiming deference to that interpretation in this case yes  that a different definition of fraud was being advanced in that case the decision here doesn't acknowledge the change and does change him interpretation by the board so can we give in deference the don't you to get deference have to you may change your minds if it's reasonable but you have to acknowledge a change in position given how central wire houser was to your your your case here it was just curious why the board didn't acknowledge acts as the employer were provided an opportunity to comment on the report to provide exceptions to objects of the definition of fraud happens all the time a notice and comment rule making but the supreme court has said the agencies have to have knowledge of their changing positions they can and they just have to acknowledge and address any reliance interests and explain recently their new position but that didn't happen here correct your honor the regulation itself for employer's duty to pay the taxes on behalf of the employee but when they pay taxes to social security here they're there for handing over the employees money they're doing that on behalf of the employee i'm just  just curious about this today is it just purely a contractual relationship or do they have some imagine not what happened here some company says i'd rather keep that for myself and so just is that not a breach of  and on that narrow question as to payment of my taxes for me i don't believe that duty here ok great thank you very much at that decision you see they just automatically gover that to basically they're what they're doing is they're they're putting their entire and this is on that one particular section if they're not reading hardwire i'm irish on that side that exception you didn't argue this before and i did not but if you but it does it does feed into what my argument is what they're doing is you didn't argue this before yes or no no no but your honor it shows what they're doing house are basically won't allow them under any circumstances other than fraud that's the only reason that they're not saying that i mean the case was argued on the basis of the two exceptions mention their entire emphasis is on that particular part of that exception nothing else that equity i don't think that this has been used at all even though that could be used as a grounds there's no doubt about it there's no doubt about giving your honour's you