construe state court that dispositions contrary to their intended affect the case but since bach seems to show a continuing failure by o p m that they are continuing to construe stake or disposition contrary to their intended effect clearly entitles your client to get a well i don't think it's it's clear your honor but it does have a separate provision for but for the amount of of  the retired employees live in survivor that after they've already died and that's what is the problem for you is that this quarter has just indicated an intent for her to get survivor benefits after her former died is good that right yes certainly does talk about i guess you know it talks about a paragraph in the paragraph about her getting three hundred sixty eight three hundred thirty eight sixty to understand what they're talking about you can look at the one hundred eighty seven order that the only reason they sought a modification of that was because o p m said this wasn't sufficient to establish survivor duty that's the whole reason they went back to seek the internet and water and that while there are two things one that she received at that period of thirty eight dollars for life to understand by itself as for is not sufficient language however there's also the the added paragraph that states that were garlands of isn't is it crystal clear that you should look at the expense of material from the nine hundred eighty seven in order to see what the original intent was before they pare that language down to try to make it acceptable o p m and additionally looking at that election day you could see of three hundred and thirty eight dollars per month and then the following paragraph seventy that added that's about surviving spouse and ms smith still having those right i believe that that's the same as the language  the of the survivor benefit not counting what the surviving second wife would get so that she would get continue to get the same amount that she was getting as a portion of and you have believe that the goal of the order you opium when they you know i guess what i'm getting at is the survivor benefit is really reduced three sixty eight could end up being fifty seventy five percent survival but that might seem to be contrary that  hughes mentioned a moment ago would apply and yourself said that the amount she receives might be less depending on the on the survivor knew of the so i think they're saying she should receive thirty three thirty eight  however it might be less depending on how the career civil service retirement program worked but their retirement plans generally do require the employee to make certain designations but i thought that your position is that the terms of the court orders would dominate whatever else but for that subject to the retirement plan term plan doesn't necessarily mean w they have looked at the language of the order o p m looked at the language of the one nine hundred ninety nine order and said that it was not sufficient to create a survivor annuity that's why it wasn't acceptable for processing o p m uses the term acceptable for processing i mean because they thought it fell into the gaps where most of them do that they're submitted after retirement and they are all correct but if you look at if you look at page eight thirty three that's where o p m engages and they say that the december twenty first one thousand nine hundred ninety order is not a qualifying court order as stated in our july twenty fourth two thousand and four decision to you and they all then they cite with we want to look back at wells o p m it's granted authority by the relevant statutory scheme to implement state court orders to the extent that they comply with federal retirement law reason that the court shouldn't reach the question now well it's it's interesting because i would think that even though we might well have authority to do what we want to do that the government would typically be advocating that we be sending that because the board  certainly o p m has more expertise in terms of an understanding and appreciating how the government process these these claims under these judgments where as we get one every four or five years so imo a little surprising to me that the government would rather have us do it in the first instance rather than the board but having said that when we look at the order the ninety nine order paragraph seven  anything other than her getting a portion of the order actually your honor we believe that that paragraph clearly is intended to except for those allocated to arlene mark well if arlene marshall had no one title meant to survival benefits than this this isn't mean this is ridiculous  that's not actually the case yonder so you look at the order as a whole it reflects a fundamental misunderstanding on the part of the parties and presumably they support it's well that an employee annuity and they share the  continue after the employees that that was a problem that o p m has no difference in for borders which is why it in one thousand nine hundred two issues regulations stating that if an order provided that employer knew with these could continue after the death of employee the order became unacceptable for a product that was a problem because an employee and unity is not the same as a survivor annuity not just at a formality but as a substantive matter the judge hughes observed earlier survivor annuity the total pot of benefit to fail to go to all to arrive or annuity is fifty five percent of what's available for the employer annuity it's much smaller which means if the parties understand that they may not want to make the same amount available out of the survivor annuity that they would have the full employee annuity and then this is if you look at this order as a whole it's clear that and in particular even if you look at paragraph seven g that paragraph provides that marshall will be mr marshall surviving spouse for all pension and retirement benefits available to a surviving spouse a pension benefit not available to a surviving spouse to always put that why would just because do who knows what it might or might marshall the lawyer and said would you please agree to that because we need to enter a new court order and that mordor was never entered this language if this language was trying to be used by the other w than one reasonable result in the interpretation of this language or fifth relief that it would benefit from the expertise of o p m o p m and the board on remand and certainly remand is what would be appropriate we do not disagree with that we simply believe that the language of the court order simply so clearly fails to award a survivor annuity and it's not necessary for a man but in the circumstances that you describe or most appropriate finally i'd just like to point out returning to the fact that it is our belief that this this order is intended to award a portion of the employee annuity and that it impermissibly continue after the death of mr marshal the court explicitly says twice in this order that its purpose the purpose of this order is in at the beginning of paragraph seven to allow both arlene marshall quote to retain a vested interest in the defendant pension and quote and pair up seventy that the court quote intends to provide plaintiff ms marshall with ms smith now with three hundred thirty eight dollars and sixty cents per month the defendant's retirement benefit pension and retirement benefits under o p m regulations both mean employee annuity furthermore paragraph seven g says that after mr marshall's death ms marshall is to receive pension retirement benefits except for those benefits allocated to the plaintiffs in paragraph one which is paragraph seven b and as the court has already observed that paragraph refers quite clearly to a refers to this second survivor as a matter of law your honor actually the question is not what his intent was the question is what the courts the state  that's that wasn't what i meant what i meant was that the order is the only evidence that we have of the state courts intent and o p m construction of the order says that the state court did not clearly did not expressly provide for survivor considered only if o p m were first defined based on the language of the court order that there was a there was a provision or furring to a survivor annuity annuity and that provision could fairly be construed as awarding hundred two when it amended its regulations to make clear that it's necessary to look when awarding a survivor nudie to distinguish between the employee annuity and the survivor annuity which this order fails to do now if the court believes that the court order here is so in the us that the consideration of extrinsic evidence is appropriate as was the case in balk and certainly remain and would be appropriate because the board would need to evidence should be considered which we don't believe as a matter of law that it needs to be if the court were to make that determination then it would be appropriate for the board to consider that evidence in the first instance especially because the court does not have of flip flopped in this case i want to know for the court that both o p m and pressure board had gone back and forth many times about the case it's not like the the order was all the orders were always considered  that they had chosen but i believe it was the nine hundred ninety nine modification which she received a letter in two thousand and six that this is acceptable for processing and then surely she got a reversal when there was not a cup of processing similarly