after the parties have filed their opening briefs this court decided the case of johnson versus buckley and that case i think resolves the question of whether the statute means a thousand hours as a applies to all three of the alternatives set forth in the statute and that case resolve that issue the question is raised by johnson is whether the secretary of the treasury's internal revenue code regulation on the question of elapsed time can be validly applied to this particular pension plan method for determining hours of service for benefit of cruel purposes on page one hundred fourteen of the excerpts of record we have no notations from the pension plan that m five grand of your point eight three three years of service in which you work one thousand six hundred eleven and one thousand three hundred eighty two hours respectively i noted that in the i think the plan that was in effect when she months in calculating restored time the entire calendar year in which your regular credited service started if you work one thousand or more hours in that calendar year and so on in the bottom you receive a full year over with a credited service for each year you worked at least one thousand hours that changed some point in the methodology of calculation under these plans and subsequent plans well the plan is certainly never explained that that was one of the points that ms decide i argued in her own personal appeal of the pension plan trying to obtain benefits who they have changed to a calendar year basis at some point they're permitted to do that even under johnson the sinkers that's correct they are permitted to make that change credo so she gets credit for the our early methodology as clear that it is the size and title to an additional year of service if she was laid off it was and johnson confirms that a temporary layoff you get the tail end you get the one year of additional service so because she was laid off she's entitled to the she's entitled to the tale that's the the balancing a fact of the elapsed time method is that if an employee is let go on a temporary basis they can get up to an additional year of service unless they quit or affirmatively discharge the plant never have in the in the record in this case any evidence that she was ever permanently discharged from any position with what i did argue well i did i didn't make that particular argument that's true but what i did argue was that this letter constitutes a construction of plan it's an interpretation of plant that reason why i think you and makes valid  eighty three letter was simply the result of somebody mis adding time rather than constituting an interpretation of what hours of service matter what  well the significance of that document your honor is that it's sets forth that contrary to the last time that the departmental can actually tell that each and every hour and each and every hour made a difference and if you didn't hand over eighteen hundred to eighty two through eighty two what is the significance of point eight three three and point nine one seven hundred seventy four seventy five under the la calendar year the calendar year adds up to less than ten years of service to him the abuse of discretion standard is interpreted by her to be not entitled not vested in not entitled to benefit  are one one four and you are one one five were considered in depth by the board itself mr kasi i was not a member of the board and these interpretations are not were the work of the board itself in determining had an error in calculating her time of service well i think that probably in the end of this month here on her an error in calculating the service would be an error and an error in interpreting the plan would would be a separate  laid off it right you certainly wouldn't think so your honor but the but the point is just in her category of being under ten years and over five years and having someone make that determination enough you know people are fired or laid off he was sending out these letters of course i don't know what the board knew but what the board met and considered this case several times and looked at a very closely and reason for it to come to the board's attention why would miss the start having them told she was getting benefits have any reason to go to the board if she had been tonight benefits at that point she could have gone  treasure she was told she had been with us she comes along sixteen years later and the borg now have an empowered itself with discretion and decides that in the exercise is that question i'm not convinced would make your review do novo because the plan i think has as amended reflects the interpretation of the plan of the as a must be as it was for nine years before her case came before the board so and again i i say that the board i think intended to act reasonably in this case it would have looked at every vote given the evidence and whether it was reasonable we don't know anything all we know that that's the provision states a separate from provision for people who hired were hired after a before a certain date and makes the condition that those people can vest within five years and the board interpreted that to mean they were and the court the only meaning of that could be that those people will not have the opportunity to continue working again the chain years and therefore this condition would be put into effect when they reach the farther out i think you have you have to look at the language in the context of the of the plan and what it would be doing is saying you need ten years but if you're hired before nine hundred eighty you only need five years and they're wrong well there it seems to me  benefits of those people who are hired before that time with no with no basis no discernible reason why that that should make a difference wording early you know rewarding employees who have been with the company along with companies make done here well i think that as it was you would have to assume that the plan was intending to award early people who were hired at a certain point in time and were a certain age and i don't know that the plan would intend to do that the plan wants to reward people who have worked for the company for periods of time and measured in calendar years and the only reason i think the board's interpretation and of course interpretation were correct the only reason for having this five year period is to  be able to give benefits to these people who were hired at a certain time but the cause of their age we're not going to be entitled to work at the time that they reached sixty five they wouldn't have been entitled to get the ten years again so you know i think that's very wording would be in there is nearly unfortunate that it didn't say i'm still working but i think that it would if you read it as just getting some people five years and some people ten years and basing it only upon a data met and to point to the johnson versus buckley case that this there could have ended then following the seventh and eighth circuits as well but that is an appropriate way to measure time and if you have someone who worked there nine years in six months that they did not meet the ten year criteria and if you have someone who stops working at the age of forty nine and has less than and ten years that they're not going to qualify under the five year plan for people who live here and stuff working laid off correct but her but terminations i think even under johnson versus buckley has been you know that was laid off it was but it was permanent and i think that everyone in this case is interpreted as being permanent  the five years no your honor i don't think it was the plain language in the plan when the plan is read in context and there is a five year standard following a chain years standard and the only difference is the measurement of time i don't think that that was the plain down but we didn't see any need to go back and find this person who it was clear to the board and several members of the board over a period of time that that was an erroneous decision i'm sorry on the question with that i was talking about the language of the plan at the time he was laid off i think the five year language was the same language as the time she was laid off and that the five year language cannot reasonably be interpreted to mean that she's entitled to this to benefits having worked you know less than ten years total and not employed at the time that she turned the age of sixty five how was it that the average employee reading that language would read it reasonable that she did that you may have a different interpretation of understanding the larger context for an employer you probably