we just have two people here in a few spectators so good morning to everybody miss you we have the the panel has three cases before at the small earning two which are being submitted on the briefs without o argument i will just note those two cases for the record the first one is number two zero zero eight dash three two eight seven bomb versus the marriage systems protection board and the second one is number two zero zero eight dash seven four said i'm sorry seven one four one win said versus the department of veterans affairs again those two cases are being submitted without oral argument the one case in which we'll hear oral argument the smarting is number two zero zero eight three one three three cart versus office of personnel management mr schwartz and i just want to confirm you've reserved five minutes for your rebuttal that's correct a child ok so you can start whenever you read it thank you good morning one actually the date which is somewhat part of the settlement where she was going are often than taken back off the rolls again so not the metaphysical context first retired until february twenty eighth two thousand and one she had to repay i believe it was two hundred sixty nine dollars a month and those are contribution that she would have made for and what that means is that you get less money in your immunity as long as you're alive and then when you die this fast gets fifty five percent of your narrative so actuarily it all works out at the same but in order to make sure the government lost nothing fact that it lives it's a bunch of legal fictions but when you get to the cases cases are very clear you can't have a double recover you can't get one fault and that makes sense you can't because you're in a new and him have an advantage  the income streams but this didn't happen in this case and it is you pointed out of touch more under the government's theory she receives nothing she doesn't receive the annuity the chip paid money into care of her entire federal career and she doesn't receive any salary because under the settlement agreement is the policy finders fee and the government's argument is that the settlement agreement would be contrary to law and therefore open to him doesn't have to accept it and i understand your response we know it's not contrary to law because the statute says it's this can still be done if she's a non pay status right is there's two parts to the that's only the first part of my argument the second part of my argument if until parker opium cannot interfere with the settlement and into an under the statutory authority of the agencies to settle their cases including the post office and under the  turns a statute saying you cannot pay somebody then in fact if you should if a clear statutory bar did that then i would agree i would agree with you but but that but that's as far shouldn't be bound by the settlement agreement that's only post park that's one way in which you would win because the sprit parker wants is not retroactive the other way in which it would it seems to me is just saying even under parker this one is not contrary to law because she was in  left in haste that is two twenty eight zero one so what's to be done about that because while we may all agree she didn't receive any pay technically the i r s says something different it indicates her to be in pay status bit but her settlement reman didn't say that they did that's why i was hesitating when you use the phrase in pay status because in fact the settlement agreement said she would not receive anything them but we don't have binding precedent on this point nonetheless two of our predecessor panels one of which i was on indicated that the clerical error has to be fixed by the employee by going to the agency rather sometimes these are the plum trees it that you get into what because of government regulations and how things are done and so this takes us to the way of working because congress said look if through the let me ask you right off the bat here is there any the government is the government contending that during the period from nineteen ninety nine through two thousand and one getting well there isn't there is another element and it's something that i think it's a sugar is mistaken about his reply and one of the things petitioner says in his reply is that receive that the that this cartlidge received no salary or benefits just i don't sound no salary but i don't think that is necessarily the end of the question but there was no she didn't receive any salary during this period correct you know only money she was getting from the government was the was the annuity no that's that's why your honor that's why i referred to the benefits issue because part of what the settlement agreement also provided and it is that the final sentence and paragraph one of the settlement agreement that appendix record but we believe that the reason why it says that she was in haste that this was because if you are a non pace that is for more than a year you cannot get the health and life insurance benefits so she would have had to been paying for those  if she was truly if you know have you did you know what she was getting we do not know whether she held the health insurance or life insurance calculation actually work but there's no evidence that she was paying anything to the government during that time in other words the opening a meeting for what purpose for the hope and life insurance rep's of the settlement agreement provides that during this night what happens is when they when  based on those that in the record believes i'm not very good unless you get the evidence to support it where is that in the record shown that particular issue treated not a little bit our answer would be that it is it is included in the the calculation of the overpayment the settlement agreement makes this calculation actual half the refund two hundred sixty nine dollars per month and there's no contention  benefit and her election of the new alternative form in lump sum in two thousand and one wrote but all we're saying is that the settlement agreement did not require her to refund additional money for request for over overpayment or requests for reimbursement does that reflect that it's talking about insurance but no it doesn't and to that extent the o p m arguably erred in his cart which is figure on that note your kno is that that sum be repaid in full like us i guess i'm not i'm a little confused because i'm getting the sense that you're saying it might be the case that she also got benefits right without your saying you don't know that she got some additional benefit it's not been offered any evidentiary proof there's nothing in the record that shows that she was receiving something during these two years you're saying she might well there is there's a reason why the settlement agreement provides a choose to continue receiving or that the settlement or that the the non police that it shall not affect her health and life insurance benefits because i assume otherwise would not normally the way this would work is person gets the right to o p m to reject at least that's what i understand your argument to be but yet you're saying she must have been receiving something and i see not prove that i want you to point me to a penny in the pen dix that demonstrates that she in fact it were any evidence at all that you have  non pay status as a regular employee and then at a later date you make a retirement election and that retirement election that is retroactive to the date your pace uses and the government's position is that  agency and the position are to not use that part of the statute retroactively and the support for that contention is found at five asserts is somehow inapplicable but that regulation covers the cancellation of retirements by judicial or administrative authority and include settlement agreements between a retired and in the employment here during this period so what's the ok the overpayment is that in one nine hundred ninety nine she was ineligible for the new alternative form annuity that she elected in two thousand and one because the alternative form annuity requires that you be terminally ill at the time of the election and so what this effectively did was retroactively gave her an alternative form an annuity beginning in one thousand nine hundred nine when she was ineligible for that and moreover had already made an irrevocable decision not to provide a m or when the u s p s allowed her to pick a new retirement date and make a new election that voided the first retirement date and makes the retirement annuity that was received based on the first retirement point and that was this course holding in gratis now i am honest honest enough to say that it didn't cover that particular part of the statute deposition or is relying on about pacing but that's out attention is that the pacing is nearly the normal way system you are asking for no salary and be paid during that time period and you're saying that any of that and nobody payments which you have been made even though they have been obvious that for the cost of the survivor would be blunted by the fact that the result of the settlement agreement allowed her to select a new we knew it beginning in two thousand and one with survivorship benefits and that is something that she had previously of analysing vida shot benefits are significantly diminished because of the recover an unjust overpayment and there's no question about that that o p m should be able to recover where there is an overpayment that's contrary to statute or regulation or both but share in that case was simply not entitle to the money by law and moreover in that case because you'd also receive some sort of salary it would have been a windfall but the finding of an overpayment is not conditioned upon the but that would be the result of the settlement agreement is that from one thousand nine hundred nine to two thousand and one she will have received an alternative form of annuity for that two years under the settlement agreement if it's a sure wins she gets that effect if we have an alternative form of assume for the moment i put really if when she retired her new t was a thousand dollars a month and during that time period that she was receiving that then she decided to have less of the annuity because of the survivor benefit which let's assume was two hundred dollars a month so she would have had to go back and pay the two hundred dollars a month the norther the vest the survivor benefit to her husband and she only received eight hundred of them so she was receiving a reduced a month during that time period is that correct i don't loose sight she did not elect survivorship vested i don't i don't understand that to be the case i'm not quite sure about the best thing argument i believe the reason why it went retroactive to ninety ninety nine had nothing to do with that's thing but just that was the settlement that period of time otherwise as i have a benefit is not a vested unless it's fully paid up i don't know your honor or pianist and do not know i think you should take a look at that because i think that's part of the problem the issue also becomes one in which a vesting requirement is made by the regulations and if in fact the vesting requirement is not met then the surviving cannot receive any of the benefits unless there's a particular period of time in which the survivor benefit requirement was in play just like the issue regarding the payments of life insurance and benefits the record is very unclear as to whether or not she didn't receive in the the benefits i'm s will say that the record was not very properly made by the government in this regard to support you but but the other problem is that if petitioner is correct i don't know what to share with do with that side of c f r eight three seven ceasing argument in particular i believe was you know that that is what makes the agreement not unlawful i mean the opening brief assumes that if partner applies we're on to overpayment waiver and so in the reply brief the response is as it's not unlawful because of the annuity commencement provision that is that petition relies on relating to pay c s and our response to that is that that would conflict with that view of the statu point twenty one the government makes an argument that i can either don't understand or just text me it's a very strange that says because the settlement agreement says two hundred sixty nine dollars a month for a concrete number of months some agreement says approximately two hundred sixty nine dollars a month the government then says thereby placing the cartridges on notice opium production any hope or comment so that the settlement agreement accounts for exactly seven thousand dollars approximately seven thousand two hundred sixty three dollars and is this really the government's attempt to say seventy two thousand three hundred seventy two seventy dollars is approximately seven thousand and because they say that approximately to sixty nine a month she should have somehow been on notice the government was going to collect seventy we're trying to demand seventy two thousand dollars from our no your honor i think the only point we were trying to make was that to the extent the settlement agreement provides that the  ty alternative form annuity and lump sum would be subject to o p s approval and if that were if the court viewed there were two possibilities that that was just simply inherently irreconcilable with the calculation of the approximate calculation government's argument or fork in their rationale is that it requires that the election of the new annuity with second statute and the o p m didn't say that in fact they could of they could have said no we would not recognize a survivorship annuity that is in violation of the statute but they didn't say that because that was consistent with the settlement agreement and they accepted the several of them remained only because the election was retroactive that's correct but that under the government's theory and they to the extent go back and forth on this then the government's theory that was in violation of statute and that's why after parker they had a right to deal with this issue and it just not accept this whole entire settlement agreement in terms of the health insurance when you retirement on an annuity if you continue the government health insurance and it gets deducted and if you go with your spouse's health insurance and it doesn't get to ducted so the benefits really help and if it's really aren't involved in this case at all as i understand it finally in terms of the regulation although the government did not make this argument it here  pay act was what that regulation was responding to and if in fact they get stopped then they always have the way from in and i want those through the waiver i made that argument twice i think i probably made enough clause recovered from the back page just met well it did it with circumstances for which there is a a restoration of duty under under the back pay act you know and it also requires although it doesn't say it