i will or you have you that i i think the main issue here is whether a chain gal resumed her employment with the federal government and that's what the statute says eighty one fifty one a an individual who resumes employment the federal government is entitled to certain benefits under the federal workers compensation statute now this callus been fighting now for eleven years to correct what she views as an injustice because she was placed at the bottom of the air traffic controller a scam when she when she was cured from her injury that she suffered and had she been separated and she received benefits and also recovered correct on your principle argument that she was in fact somebody that's covered by anyone fifty one a because she was resumed federal employment even though she never left the federal employee but it reaches the question that to me  critical to the second half of your case which is whether what benefits she's entitle to a has a set of benefits b one has a set of benefits that are specific to people who return within one i your argument seems to suggest to me that the one and a are essentially coextensive i would like you to explain what you get under the one which gives you you get treated exactly the way you would have been had you stayed and what you get under way which presumably at least the way the statute is drafted seems to suggest fewer benefits one of the difference well first of all under you wanted to recover within the year you're entitled to your old job when all of the rebel progress aeration we know but i'm looking at the benefits very specifically the language of the one which says that difference between the difference obviously under b one that's a much broader they include promotion include things like tenure under under under a the benefits are primarily based upon l o testified at the hearing when in one thousand ninety eight when this new pay system came into effect those air traffic controllers who were converted over into it were placed in the pay band based upon their seniority based callow would have been placed in the middle of the of the band and then assuming that the promotion occurred in august of two thousand when it actually did she would have been placed much higher in the band now regret for there was something a lot of discussion in the  service credit upon return one and what's what's really key here what's always to me about this case is that you know that there was a lot of debate at the at the hearing about whether misc our received priority consideration or not  pretty clear from the testimony of the f a a witnesses that there were really they didn't have a priority consideration procedure and that they didn't really even do anything like that but they didn't really employ miss gallo in an air traffic position and m the usual person who's breaks their arm they're out for six weeks they come back and they get what you get under be one but i saw no explanation in the legislative history for why there's a difference and what the difference between a and b one and there is entirely different language and if you have knowledge of that at the beginning a is clearly less beneficial than the one and yet you're arguing based on the regulation that she gets effectively be  tenure and it's the same as retention rights right and for all practical purposes that's what ten years for it you would tenure could be a lot of things i mean to be competitive competitive service or excepted service  benefits that are associated with that the particular position which would be true of for example a police officer hurst an f b i agent who have special benefits that are not common to the federal workforce so the question is do upon how long they had served as air traffic controllers which is a even though it's the positions that said that they were working for the government and breadth that gets us back to the first question i resume the narrow reading that the government u this is a notification of personal energy and i understand when this gallows ceased to be the air traffic controller because of her injury on the job and she moved over to the other one yes so what my question is was find i'm looking at the language in three fifty three one of the true persons covered which is probably just first place we should start because if you're not covered we'll be out a lot to help us work with technical language for you know more about this than i do the position was the center the air traffic controller specialist air traffic control specialist what speed is that the position description i'm sorry i'm looking i'm block seven on page sixty five that's what i have he did that's a specific position description that defines a particular job it's my understanding and then to position is a different position description which does not have as i understand it medical qualifications so so what you're saying i take it is that this as a fifty indicates that she went from one position i e want to point to a different appointment that's correct she was separated from her appointment but not separated from the government service she was not separate obviously she continued to write programs there was weeks of what she did she received a new job a new appointment she saw herself and then when happened to jane gallo is that she was separated from her initial air traffic appointment that we had medical qualifications and went to a different position that did not have medical qualifications with a different position description with a whole different pay system raised by the government is the language not so much language resumes as resume with the federal government which suggests that you have to be resuming with the federal government something that you work with the federal government before that's that's the language problem for me and protecting the statute we have in the regulation some language has talked about receiving a lower grade position where you don't have families that's when we have all the cases that talk about not leaving actually leaving the government so it seems that there's an was congress what did what is the explanation for why congress added the preppers ishall phrase with the federal government if not to cover people who were had been with the federal government all along in other words when you resumed service with the federal government that the quick lay reading of that would be well let somebody who is as not then with the federal government why is that one part what actually explanation for why congress w that language the way i think your honor because of the federal workers compensation statute that applies to the federal government as opposed to private sector or state or local government i think are trying to make it clear we're talking about the federal government come back to the federal government this covers and of course you have here where this is all in the context of restoration so i mean we already are talking about a class of people who are being restored that's the only reason you get the benefits as you if you are restored and she was restored so america after then  federal government means a position in the federal government she's she's brought back and it's a different kind of job that she couldn't do before there's some kind of fundamental change ok well we'll save you time federal government do you think the regulatory language at three fifty three point three zero one the at the end of that section is invalid then one you read it to it says a sub part applies when an injured employee exceptional lower graded position in lieu of separation and subsequently fully recovers is is it your position that o p m slang which is just simply invalid because it's inconsistent with the statute i don't believe it's inconsistent with statute your honor because it covers a situation where someone was facing a separation and they were instead of completely leaving the federal government they allowed them to take a lower graded positions they've been made worse off but i think i don't understand why that person the way very understanding eighty one fifty one a would be somebody who quote resumes employment with the federal government why isn't that person exactly like miss gallagher with the ms gallo actually did have a lower grade well it would be the same position as ms gallo but with a lower grade of yellow beauty understand the point i'm making his i may not be articulate very clearly but it seems to me you've got a problem in that there is a potential inconsistency between saying that resumes employment with the federal government means coming from a non federal position into a federal position when you're restored when the regulation specifically adverse to somebody who's coming from a federal position in and restored to and another federal position on his appeal before am i making myself clear i understand your point there are why isn't doesn't this regulation either impeach your understanding of the regs of the statute or why isn't it invalid it's got to be one of those two it seems to me what i think the point is your honor that under the general you know that the g s scale system as it existed when the law was enacted if you were transferred to a position at the same grave there were no rights that were lost to eighty one fifty one aix remember eighty one fifty one a only provides for benefits based upon length of service and if you were at a g s fourteen level position and you transferred to another g s fourteen level position there are no rights that were lost its only the special rights as your honor referred to them that could be covered under eighty one fifty one b one which is the recovery within a year that would be subject to any change here in eighty one fifty one a if you transferred to a position and you remained in the government at a similarly graded position there's no loss of a there's no loss of any any benefit  move how do you hope how do you deal with the language in the person's cover three fifty three one hundred well three sixty one three zero one three fifty three one zero three i'm sorry one of the three persons cove furloughed from an appointment without time and now that's a different language from the notion of separated from the government altogether right that would appear to cover it's got when you agree she was separated provides services reemployment and she was not separated from the federal government she was not reemployed she was really lawyers no traffic control it was when she was going she was returned to the position of the appointment from which she had been removed correct your honor however the steps because specter the statute which provides only for employment with the federal government for the benefits in eighty one fifty one a so there may be other continue your  position when you make sure i understand your position your position is a good one fifty one a has no up billet to someone who even at a lower paid graded position stayed with the federal government is that correct when they come back to the federal government they have to have come back from a non federal government position that suggests the position you took in the briefs and that's the position the amnesty to you are you continuing to take all you could do so if you're in the lower rated federal position you're not covered by any one fifty one day that correct of say you went home if that's your position i don't see how it can also be a position that anyone fifty one a covers you if you had a central job at a lower grade which is that is your position my position is eighty one fifty one doesn't apply if you took a lower graded position because it only provides the rates and benefits based upon length of service and if you use remained within the federal government you don't need that protection even though you were at a lower grade no other portions like eighty one fifty one b one could be relevant if you recovered within a year and you took a lower graded position because of your your injury so  fifty one a doesn't apply to someone who is with otherwise who is with the federal government but that seems to me inconsistent with the language of the regulations which say not this doesn't matter but rather that they just sort of person regulatory language that we've been focusing on at the end of thirty three proverbs two three one fully recovered after one year of clive's only to bring a person with the and b to not to bring a person within a one hour a day and i believe i believe that's correct your honor because again the benefits based on length of service if you were if you had not separated at all from the government you wouldn't need a provision the benefits of subsection a which provide benefits based upon length of service because you had no interruption in your  the federal personal manual was around was agencies were encouraged to keep employees on their rolls during the time that they were away from their job due to disability be b two would be irrelevant because b to provide for priority placement in a new position and if you haven't been separated you're still your position still exists and you just return to your position without having the need for any time expended or not you still retain the rights and benefits based on length of service your service was not interrupted with the federal government so if you were for example if you had two years seniority with the government and you went on leave without pay for two years when you came back at four years they take your vacation pay based on four years seniority and you get four years in your eighty for other purposes with within great increases and the other benefits and rights based on l she continued to receive and so down there on voice throughout the us and she has the benefits based upon length of service which she doesn't have are the specific benefits that were attributable only to air traffic controllers during the period that she was in the other position of service as if she never left me what would happen if the if the air traffic control system had converted to a different system while she was then there wouldn't be anything she would have transferred back as well she actually was promoted and she was there's testimony in the it's in the appendix that prior to the conversion of the air traffic control system the position that she now occupies was a g s fifteen in a sense i suppose the problem is does she get either a what she got by virtue of not having left the federal government out of you you it or and if you view a is only giving her the rights that federal employees generally get the court's position yes reversed versus does she get the treat me exactly as i would have been treated had i stated been there every day which is the one that n fifty one broadly you talk about the want to be two is trying to confer two different substantive rights other words the right to get your job back absolutely on the one and then on the to the right to just priority can we we understand the difference that's that's an obvious difference but what i'm focusing on the difference between the benefits of the one and the benefits of that and my my contention your honor as once if you're p two and kind of that we believe jane gallo had here because when she was separated from her first air traffic control position with medical requirements into an airway facilities job then came back to an air traffic control position with a medical requirements she was then entitle to be to be to if she never laughed well but that's that's what she would have gotten under be one if she'd come back in three hundred sixty three days but why did i get that and i'd repeat i think that the reason she gets that under b two is because the o p m regulation be fifty three point  well maybe not you you you tell me what do you think this is a distinction between a and b one but suppose that during the period that the employee is away at the would somebody get that bonus if they were under the one but not under a do you think they might get it under be one but they certainly would not get it  of service so i think we could we could look at a very specific situation and mike twenty point here is those people and those people who were converted in one thousand nine hundred eighty in fact had their salary set because of those benefits generally not air traffic control benefits but within great increases promotions that came along and their general employment rights and then they came in based on seniority in a contract in a pay system that was negotiated with the union and then applied to the supervisors by administrative action of the of the f a a with the placement initial placement in ninety eight of curves based upon length of service and that's our key point and i would i would also point out that this statute should be read with this creation of this new pay system with great discretion given to the f a a you have you have a very different circumstance in it and you can't actually fit this this whole regulation exactly into it you have to say well what would have no additional compensation critical regulations is that when you look at section three fifty three three zero one in the language about part time it says and that is not a problem he says because that really only applies position or are part time employment but still in titles you took benefits under the worker's compensation laws and you obviously don't have to separate but he doesn't want a course this is predicated on the government's and the m s two where it's not clear i think the language is put in there to make it to make it clear that you don't have to completely separate from the sceptical service to write but he says that's only true for purposes of be two in other words the language of the day which talks about whether you're separate completely or not has no application to the question of the application have trouble i have trouble actually drawing that distinction when i look at a resume employee with the federal government and then i look at the two read together and i say well if you if you are a means you have to separate then why would why would the regulation say well you don't you're entitled a priority consideration even if you don't actually fully recovered after isn't that a correct reading of the r i think it would be if that's the case then this regulation that was in balance says you do not need to be completely separate it does or i think it does say that you do not need to be i think to to you and i think the question on the floor would be speak for him is that this is all about restoration this is all about the one and the two and that does not speak to whether a person in the b two category fully entitled to restoration even if that person has been working at a lower grade but nonetheless doesn't get any specific benefits from a was then she should get the pay that she would have come out you know and injured and she was injured at work thank you thank you