control in validity of the regulation i have read every piece of paper of record and transfer you have just come away with the overwhelming sense of it that he she was never squarely presented to the district court in the office it was true your honor and i think that not only was the issue presented to the district court but on further review i think it was decided by the district court and i think that we were quick to from from all of the papers in the court below but certainly from art our pleadings are our motion papers and even the oral arguments that we that if you don't interpret the elapsed time regulation in a manner time regulation is invalid the court ruled that the last time regulation was valid i think the court clearly ruled that as a predicate to find that it wasn't violated by the defendant and i think in this quote we're entitled to  course they are to do to find the cause if you change the period for the year of service how are we going to define it is that the twelve month calendar year is the plan year is the anniversary date of a participants employment there's also a specific delegation to the with with the clear language of the statute you can't say that part time workers for example who are protected under the statute and seasonal workers who are protected on the statute have waived her right then full time workers working forty hours a week that would be in a rational decision get that is the decision that that experience in this case because the last time regulation that part time workers working twenty hours a week  for fifty weeks to get a year of credit and full time workers working forty hours a week for twenty six weeks get no credit it makes no sense given the clear understanding of the statute and if the statute were unclear then i think the legislative history  and i'd like to point out in the conference report there is further evidence that program the benefits for example are required at page two sixty nine of the conference report there for example if the plan required the plan much accrue benefits for last impled time service on at least a program of basis for example if the plan required two thousand hours of service for a full benefit of cruel fifteen weeks of age then the plan would have to accrue at least seventy five percent of a full benefit for purchase with fifteen hundred hours of service clearly congress intended that there be programed of benefits that there be no requirement that you serve a full year and section two or four on our crew benefit rules for example that it would not feel it would not be reasonable inconsistent credit if any employee services less than a thousand hours during calendar year so now obviously that's not me then a reasonable and consistent basis for contrapositive that requires that any employee who works more than a thousand hours  we say that congress exhausted the interests of seasonal workers and part time workers over their workers who work full time hours a week fifty two weeks a year as did the plaintiffs in this case i think center shows that he introduced an amendment to require the elapsed time rule and that that amendment was rejected so there is specific legislative history that congress considered and did not adopt so also i think the fact of the matter is that the thousand hour rule was a compromise from the senate version which sought to give credit for five months of service  most recently in great west after thirty years of allowing plans to suit her reimbursement participants failure to reimburse the plan the supreme court upheld this circuit and holding that there is no such right under  a number of things one is that the agency knew how to use terminations if they wanted to include all employment terminations under the immediate severance of service provision and elapsed time and it also shows under the way the courts  employment was permanently terminated as a result of the permanent closing of the phoenix plant which they work now there was no ambiguity at the time as to what was happening to the participants implying that gore used the word layoff that also used the words terminations severance and separation that provided severance pay it issued warn acknowledge this is to provide a job placement counseling so these participants could find employment elsewhere there is no dispute in this case that the employment relationship with time as to how that terminations would affect the appellant's rights under the benefit plan s p d and the plan itself is clear that service is calculated in preference to employment and if that wasn't clear enough would receive no contribution from the plane the year ending march thirty first and if they didn't have five or more years of service by the date of their terminations they would not be but i promise yes and indeed the decision in this matter w here now the appellants only arguments the plan administrator and their principal argument the district court proceeding was you are he meant that because gore used among other words the words layoff and describing their separation from service they should be entitled to an additional y east coast that the facility where the operations were moved from phoenix and incorporated into another plant in the east coast none of the participants in this case draw for that opportunity they were not offer so the plan administrator considered very carefully of the arguments raised by the appellants below and the plan the plan administrator and level where they were represented by counsel who represented the district court proceeding and faithfully follow requirement argument with respect to that and if i could back up just briefly and look at the procedural history here with respect to that argument the appellant's amended their complaint by starting to statutory accounts count one was under section ten fifty three which dealt with lasting count two with section ten fifty four which deals with benefit accrual count one brought up this and the alternative a thousand our claim count two only argued for enforcement of the elapsed time method regulation and i encourage the court to look very carefully at those two counts count one was withdrawn opposing counsel the argument here stems primarily from section ten fifty three which is the best in pr and not section ten fifty four which is that your participation participation section which your honor mentioned defines your purpose patient differently than section ten fifty three defines your service section ten fifty four defines the your participation and as a period of service as determined under regulations prescribed by the secretary which provides for the calculation of such period on a reasonable and consistent basis that position that that under the chevron analysis even if if the court goes there which i don't think the court needs to because section ten fifty three was withdrawn out of the complaint and the only complaint count left in the complaint the section ten fifty four but if the court looks at section ten fifty three we think it's in the u s for two reasons first as found by the coleman court it's altogether unclear whether what's required is a thousand hours and twelve months of employment or simply a thousand hours within any twelve month period of time whether the employee works those twelve months or not in addition that regulation is vague because hours of service are defined as a time of service determined under the regulations prescribed by the secretary so it's not even clear looking at the statute what a thousand hours of service are because that is relegated to the department of labor to determine now their argument the helen started it is that the elapsed time  regulation is somehow invalid because it leads to some situations where a participant who has worked a thousand hours is not given credit for a thousand hours but that same problem exists with the thousand hour regulations we pointed out unlike the very clear and simple elapsed time about the regulation in the thousand our regulations are very complex and contrary to what opposing counsel have the lead a thousand hours of service under that regulation may not actually be a thousand hours of actual work among other things there are these equivalencies that the regulations provides for a daily equivalency weekly by monthly monthly under those equivalents to a plan administrator made to assign an artificial time hours of work for a week or for a month by month they are day forty five hours a week for examples with weekly equivalency as we pointed out fifteenth thank quits on april sixteenth because she's been overworked that accountant has worked a thousand hours of service in the us that three month period however if her spot if the plan that she's a packaging court found the last time method regulation is generally more favorable to plan participants and the thousand hour method regulation and so in that sense it's certainly not manifestly contrary to the statute in addition one of the purposes of a risk is to protect participants encourage employees to develop plans and to avoid creating a system that's too complex elapsed time method regulation where all you look at is employment is much more clear and much more simple a method of calculating service and the thousand hour method ranks indeed it not only helps the plan administrator but it provides clarity and simplicity for pretty soon as well to determine their own what i provision in it where if you terminate employment let's say on january third the planned use is a calendar year and you come back and accept employment at the same employer and december fifteenth and remain in place you can remain in the calendar year even though you've only worked three weeks courts to do would be to invalidate that regulation to overrule nearly thirty years of the stablished president to ask the court to contradict the second seventh and eighth circuit every district court that's looked at this argument  our theory and the elapsed time theory creating a potential conflict of interest so at least through count one so they withdrew count one and not only that we relied on that agreed to class certification based on that position and lo and behold although that was out of the entirely clear to judge maria and when she asked opposing counsel if that's what they were proposing invalidity of the last time with the graduation i believe opposing counsel is very clear in saying that they were not arguing that the thousand hour method should apply and she tried to distinguish the arguments that they were making in this case from the arguments made in the jefferson called mind this way to case her argument was that it somehow should be used to inform interpretation of the last time with the regulation judge and if you have any questions i'd be happy to take those thank you company of accountants who work seventy hours a week and wouldn't be vested under the equivalent to use that are adopted it wouldn't be reasonable when it went be permitted under the regular hour service rules stowing that the elapsed time on i agree with you but the statutes very clear the system has to be based on hours of service that's what the secretary had regulation had a specific authority to develop regulations regarding hours of service and that a thousand hours than it is to count a year last year and it's a rational to say that someone who gets one hundred ninety hours of credit per month and therefore would have well over a thousand hours and six months would not have any credit whatsoever under the a laugh time or on less they completed a full year that's not rational and and thought are need to grant to promulgate regulations to implement the thousand hour rule and to define hours of