very clear on this point in saying that when a supreme court decision has completely undermined or undercut the theory and reasoning of an earlier panel precedent the subsequent panel and even a district court for that matter is no longer bound by the pres obligated to i tried that once i said circuit city was an opinion or a court and it was gigantic waste the time it ended up in an bank anyway where you are others have already blazed the trail for you because at least two other panels have have in light of land graf itself have essentially said we're not going to follow the logic of an earlier panel decision we're going to decide for yourself whether or not the statute is being given retroactive effect it turns out and in the northern telecom case they discrimination three things have to be true one is the pregnancy discrimination act as all through the legality of it earlier legal decision second a pregnancy just anation i can this is probably the clearest evidence for why this is retroactive application the pregnancy discrimination act is effectively saying you could use those korean achmet decisions without legal liability up to the date of the p t a it took effect after the p t a takes effect that exact same reliance on those decisions is now on lawful in the way they had those rules prior to the t v that's a very interesting labeling problem it seems to me for your argument to prevail we have to be prepared are correct that it is discriminatory it was discriminatory but not illegal or unlawful is that your position that's correct your honor and that makes perfect sense discrimination is an english word in english argument and you can't it can't be unlawful to now rely on a previously lawful decision unless the pregnancy discrimination act operated to render that earlier decision unlawful and if i could point to that to this court's decision and there's a really very big difference doesn't mean that i would or might not support reconsidering pounced in bank but i don't understand how this handle and just say  you follow me and my argument for why this is necessarily entailed a retroactive enforcement of the p d f then the military gammy makes clear that since the reasoning to reach that result has been undermined by land graph that decision is not binding o rely on a previously lawful service credit calculation can now be deemed an act of discrimination and and there's no way around i submit the conclusion that you cannot reach that decision without implicitly looking at the present act of discrimination but the reality of what he did even skillfully is to say when you rely on a korean act with decision that was lawful it's no longer lawful today and if you do that you are giving retroactive effect and if the terminations the supreme court said well no no you're my age discrimination would happen when you were denied tenure this is the fact that you've been lost your job a year later that's just an effect from that early decision but it's not a new act of discrimination and if that's what  on hand graph and morgan in particular have completely undercut palace i think that's clearly not the case then graf it does definitely refine and clarify some of the standards for retroactivity analysis but my graph itself does not apply in this case the type of statute it was in in the fact and challenge in that case clearly involved conduct that all was completed and predated the statute in this eighty eight was one that had very specifically and explicitly authorized a form of discrimination against employees who were hired after they were age sixteen and could be excluded from a plan regardless of how this quarter the issue congress itself had some serious questions about bill burton obviously you know the supreme court had to stay on gilbert but we would also say that this case is more like savvy than it is by like but we're not relying on the fact that unlawful after the an act of title seven or when title seven became effective to public employers in one thousand seven hundred two by the fact that it was incorporated into and effectively re interrupted and became part of the test operating in the year two thousand but same type of pension benefits determination is made in all of those cases whether or not there is a discrete new program it was a question of eligibility for a particular retirement program but in each of these cases it's not a question of eligibility for anything it's simply a question of how you calculate preexisting retirement benefits although when or perhaps in one or another case that may have come up sooner than they would otherwise have expected because of the opportunity for which they qualif is the claim for discrimination in that in the provision of retirement benefits is not right or even ready for education until the time that the individual employee retires a lot of things can change between the time and employees first hired in the one nine hundred sixty s their work history of the individual is very much parsed and relevant to the final determination the determination isn't final are binding until the time that that same salary structure that resulted from that pre title seven discrimination carried over into the salary structure post title seven in a similar way it was it was built into and  used as part of the compensation determinations that were made as to the employees who had been in the segregated units up to that point so and the supreme court in base more held that the employer in that case the public employer the holding base more and we would submit that that case in addition to the fact land graft spank and the other cases on which the defendant relies did not completely undercut five man got full one to one seniority and service credits they worked the year they got two years of certain credit service and the seniority and women on the got a one to twelve if they were two years they only got one month of credit service credit and seniority one hundred sixty five the company abolishes that old rule in order to conform with the title seven and has a new rule that has no sex discrimination  it continues to rely on the service takes that people have under the old system ok now year later two people who work for this company for thirty five years apply to retire and the man can retire because he has thirty five years of credit service and seniority and the woman can't because she only has four years despite having worked thirty five years what what what base more say if you can't continue after into compliance with  say go back and rejoining your complete salary calculations for the last twenty years they said you cannot longer rely on the salaries that people have when the law changed that's true but i and i think the that the if you think that the merits are on the table now i think we've got a very different problem i'm trying to show why what i agree with you that right yes passes right because you've got you've got to balance think unlocking with regions hospital where congress in eighty six changed how future four and the court said there's that's not retroactive because you're not changing what these people are going to get reimbursed for in eighty four you're changing what they're going to get reimbursed for later on they in eighty four it's true to use the same rules when the real audited but that wasn't essential to the decision because congress was changing the rules for future years if your hypothetical is correct going back to the moment of your hypothetical is there ever a statute that statute ever have retroactive effect and i'm trying to say yes that if you were going back if you were asking if you were making your say race a different kind of issue a job the civic jobs i didn't get my thank your honor at the risk of violating a cardinal rule of law and advocacy i would just like to read from from miller vs gammy because the court there said that were the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of exactly that in spain q had the employer had excluded years of service for somebody who would join the workforce over the age of sixty congress passed a statute and said henceforth that is illegal and this court said if you have to go back and make up and add in service for the print years that's retroactive and then the supreme court said this statute does not apply retroactively it's prospect of only and therefore there can't be liability for your failure to have to that seniority credit as a form of compensation that was completely equalized what's at issue here is whether you have to go back and make up the difference in green ackman years based more did not require that land graph and it have to do here and that somehow based more compounds that result that's wrong based more seems to say if you were doing something wrong in the past based on current standards and you're going to continue doing it in any way that carries that forward  is still stuck in the buckets based on what happened before the p t a and every time you you tell us something based on the past practice you're doing to us again isn't that what based more trying to get  if you have to go back and include lawfully excluded green ackman service years under its statute you were applying that statute retroactively nothing in base more suggests that commercial activity is required under title seven or any