the morning before we begin this morning we have a motion through entertaining but where thank you very much on this rainy overcast good to have some happy business to attend to before we get to our busy schedule this morning i'd like to move the admission to the bar of the court of my three law clerks and i will do each of them right in order i first i move the admissions of erica nicole anderson who was a member of the bar good standing of the highest court of virginia and julie endo there was a member of the band in good standing the highest court of illinois and christopher are now the think it was a member of the board of good standing of the highest courts of new york and the district of columbia have knowledge of their credentials and i'm satisfied that they possess the necessary qualifications those early official talk that the scuffs the idea that when congress especially aware of annexing executive agencies interpretation of a certain provision and it's carrying out that provision in a certain manner that subsequent attempts that failed attempt people that already have at least one that's true but that would that goes to as i was saying earlier about the idea that in the end one of our arguments was always that it would seem that congress if they were going to grant a benefit would try to be more constraints have always been a consideration by congress and that was set forth in the senate report in the most recent legislation introduced by senator nelson the let me show me how many people are affected by the statute at room i don't know the exact number you honor but i do know last time i spoke to members of the part of the fence finance and accounting service that they believe that the back pay will be at this point about six million dollars i do not know what the that one per year but  think it six million dollars with the back pay with the number of people be eligible now what goes forward in front pay i don't know if i calculated and i also know many other individuals will be applying for the better figure out what it let me issue though i think that should be considered is that the appellant's made a point about the two thousand and two legislation that did not pass in that legislation congress specifically noted that survivor benefit a new would be was the benefit that they were considering when survivor benefit passage which do you will i think it's reasonable conclude saying that there's something else that must be out there and in fact the use the very general term that brings benefit that's the find in title thirty two know we have not been in mind where the veteran can be found in any place and title ten and therefore congress by inserting the term veteran must have been considering some other you know the more general broad term that person must have been considering that there had to be a benefit that was out there that would be affected and finally tonight when they did ask the veterans benefit act section two of that act also said that if there are any repeals by this department defense finance accounting service might have looked at that and there might be something in one of the congressional budget reports and if the court would like some additional one we were just really curious because you made a point in your readers are saying on what consumable policy could congress have had in mind to group of surviving spouses to encourage them to remarry well i think the language that the swans were just passing the point your point that it discriminates against people below a certain age when i mean you congress can rationally draw  line i think that they were doing it as an incentive what they were trying to do though is say we're not going to penalize you if you do use it i think that language pennell it as a we're not penalize you for you for marriage but you know i don't think they plaintiffs the benefit is the survivors benefit plan that's and keep in mind the payments on those plans are the result of insurance payments taken out of the pay of their husbands who gave their lives and we disabled in the course of duty and why that's important to the disposition of this appeal is the language of section thirteen eleven which is the language study three language issue  status and then we take that right on so first of all under any common sense interpretation survivor's benefits to surviving spouses based on pay someone in the military has then retired is status of and i think by any reasonable reading that definition is plainly met your mid section one hundred one to title thirty seven veteran means a person who served in the active military and it was discharged or released their from and does being a veteran status as a veteran have to be the only thing that causes you to be entitled to benefits and the answer to that is obviously not there's no benefit on the stat that there's no statute on the books including the c we're just being a veteran alone and how does your to benefit so it can't be just being surviving as a veteran because that means again the ridiculous result that nobody would ever be entitled to it the question is that one of the of the aspects of it and it clearly it is because veteran status or retiree will always be a veteran so terms of the plaintext i think it's a compass easily they're on top of that you have the use of that in section thirteen of eleven of the statement under and another provision of law in the middle of the statute who is eligible for benefits under another provision of law and it doesn't limit it to under another provision of law in this tight and into other locations within the same subsection of thirty one of them when they want to be clear that they're limiting something to the title they just put the words in the title and it would it would been so easy to do that the that the absence of that and the fact we have the concession from the government that there be there is no statute in the world that this would a fact and that well this language and all the time that everybody spent on it was a total waste time that it's cover it's interesting background that that wasn't the terms of the percent precise age that changed over the course of the bills in terms of the category you know i think we just have a legislative history and i don't think that sheds more light than the fact that it was an incremental step again that unders existing longstanding supreme court precedent there's a canon this is the king supreme court case that provisions for benefits to members of the armed forces are to be construed in the beneficiaries favor the government i don't think has ever genuinely then it would seem that you would work to find one consistent with a number of canons giving every statute in effect but also the cannon that benefits to veterans are to be true liberally  in the government's brief one point this is without a trace in legislative history terms of our of our position in the hundred seventh congress a bill with virtually identical language thirteen eleven it was presented and in that legislative history the government said point blank that the the point of that language they tied to that one to the predecessor to thirteen eleven government's point is that date changed so that would make some kind of difference when the bill was reintroduced in the fall in congress in one hundred eight congress the initial bill did not have an analogue to search because it wasn't present on the floor debate thirteen eleven it was added back again and so they didn't go back in amend the committee report that it was months months old it was a national on the floor six where the court states supreme court states surely an interpretation placed by the sponsor of the bill on the very language subsequently enacted by congress cannot be dismissed dismissed out of hand as the dissent w simply because the interpretation was given two years earlier to the same effect is that ossman which is a federal circuit case two sixty three a third thirteen forty one point blank and then amun v merit protection board ninety one half second twelve forty seven well those down for the proposition now when there's a committee report in one congress and the language that's being interpreted introduced in the next congress the fact of that changing congress does not reduce the problem value of the committee report and it would be loser patients who were not smarter than you or a group right this is these are cases that were responsive to the reply argument that attempted to belittle the committee report  this is a chart twenty two forty three in the current congress and as you heard the government based on the question for the government view this isn't attempting dan to repeal the offset in toto  and and mr mickel i think was pretty pretty candid straightforward about that if you look at that statute specifically section two  do it proposed add a new section which uses the exact same language that's in thirteen eleven e the same language that we're debating here and everybody agrees even the government it seems that that would actually have the and they mimic the language that's in thirteen eleven and everybody including the government agrees that would have the effect so it seems to me that that's just an outright cleanse yourself i should quote it's time if there's any other questions of course i'd be happy to address them again thank you your honor i like to make three points if i may and the first point is we agree that the language by reason of the status is important and the reason it's important is because while a military retiree may elect to enter to enter into the survivor benefit program one that's not an automatic the person has to affirmatively elect and also the clarify a point if there is an offset as judge mayor did  would like i can provide that information  a veteran who is not a retired could not go to the pentagon or fort myer and submit an application for survivor benefit plan payments just by that status alone so so major mcgovern decides well i'm sure she's going to stay for twenty your hope we thirty year career she gets out of the military tomorrow she would be a veteran who served honorably but the next day if she walked into her personnel shop and said i'd like to apply for the survivor benefit payment plan based upon my status by reason of my status as a veteran they would say thank you for your service major mcgovern but you're not entitled to the survivor benefit plan based upon your status of as a better you have to be a military retiree who was elected to participate in the program the military retiree is of necessity of better what that is true but that we saw in the military retiree a tremendous amount of evidence emphasis in the two thousand and two legislation it failed because it's similar language the same language and in two thousand and two they specifically mention the survivor benefit plan we think though that's more persuasive for our argument because if in fact congress knew that that was the benefit that they were trying to reach why didn't they say that in two thousand and three there is no mention of the survivor benefit plan in two thousand and three where subsequent to two thousand and three and any legislative material they do mention it in the military update and we provided cases why that wasn't persuasive we also stated though if you find the military up they persuasive then look to some of the comments where that where the were public law that talks about how any types of express for peals are limited to title thirty eight that's never been addressed and finally if let's let's even assume that the language prior to two thousand and three role certainly the language in two thousand and nine when this issue was clearly before congress everyone knows about the trial courts case the you know it's was published the sponsors have spoken clear what we were there are several pieces of legislation that would make this problem go away the one piece i was talking about where mr rana said was a concession was primarily argue to and three regarding the absurd result because that one piece of legislation would not just clearly make apply across the board and one last word  that would be what they're saying is not we would say that they're trying to get the they're trying to go across the board and that there hasn't been a partial repeal yet and we know that there has been a partial repeal specifically in two thousand and eight when this when the full repeal was in it before the house and we discussed that about the special survivor annuity and ok thank you very much