facially discriminates based on the source of the compensation as only retirement benefits from state retirement plans are exempted and the state cannot show any significant differences between retired employees of the u s marshal service and the exempted state retirees because the state concedes that their job duties are the same this court should reverse to with the fact that the job duties of marshall's overlap with the two categories of the state they overlap with the people paying less tax and with other law enforcement agents who pay more tax so how do we go about identifying marshals are similar to the exempted state employees that's enough that's because section want to levon provides an individual right against discrimination for federal employees and so if there is a close case for example if there really were identical state employees some who were exempted and some who weren't that case would go to the federal employee because that there would still be discrimination because some state employees that are similarly situated are treated more favorably than the federal employees but what if there are two groups of state employees and say group one and group two and they are similarly situated to each other and then a group of federal or federal employees who are similarly situated to both group one and group two in that situation does the state have to treat the federal employees the same as the most favored group if group one has a favorable tax treatment or does the state in that example have discretion since the federal employees are similarly situated to both groups one who gets the favorable in group two who does not just as capital of the state asked to treat the federal employees the same as the favorite state employees the state has discretion to treat its own employees differently for various reasons including arbitrary reasons but once it does so through state taxation the state has to treat the federal employees as well as the favorite state employee i don't follow why that is so if there if you have two categories of state employees and they're very similar and they're treated differently and then you have a category of federal employees who are similar to both of those categories of state employees wouldn't you have to determine  which group of state employees are most are more similar to the federal employees of the why is that i don't see how it's discrimination so just alito i don't think you have to determine that because again it's an individual right against you look at at the language of the statute the purpose of the statute the context of the statute and what it would be any discrimination provision doesn't necessarily require a most favored nation clause and as i understand your answers to justices ca alito you're saying there's a most favored nation requirement justice kagan to your responses one typically you don't have a most favored nation requirements you know to i'm not sure it's most favor here it's only that we are the state has drawn sort of an arbitrary distinction and it's got effectively identically situated state employee is one that gets the exemption one that doesn't and the federal employee is similar to both that this sort of comes in we are the t federal marshals justice ginsburg the larger group as far as we can tell in the record reflects is the state of law enforcement personnel who are exempt it includes all state troopers it includes all deputy sheriffs for example if we're actually comparing to try to compare him to sheriff's but sheriffs and deputy sheriffs have the same job duties have the same authority under west virginia law mr dawson in fact was a deputy sheriff in west virginia before he became a deputy united states marshal well but there  he was different things he's not just somebody who was working in the marshal service who was for a while and then maybe you have an argument with respect to the other states he plays also the u s marshal and that is not like does some of his retirement money come from his time as u s marshal i believe some of it does but some also from what do you do in that situation i mean we have different comparatives on the state side but he himself in bodies it least arguably two entirely different types of embodies multiple jobs but his basic duties as a law enforcement officer didn't change he had the same responsibilities as a law enforcement officer whether he was doing the same thing want to daily basis i don't think is the proper i don't think that's right his responsibilities didn't include tracking down fugitives or the other things that somebody you know at the at the sort of operational level of the service does when he would use say the attorney general would qualify in this situation he has law enforcement duties probably not but but that's a different circumstance on pages in the j pages one so how is different i mean a marshall is appointed by the president right yes and and confirmed by the senate right that's true well that seems to me a little bit different  send you know someone who's day one is starting at the bottom level of the marshal service well he did work for quite a while as a deputy united states marshal well yeah but i'm wondering whether or not we should be parsing out a part of his retirement seems similar in part not well i think it's also miller because as a united states marshal even a presidential appointed he still had the same law enforcement authority as the covered state employees and this is the problem with the state test the inquiry shouldn't be is he identical to certain state employees is it's whether he's similar enough that discriminatory tax treatment is justified and the state can't justify discriminatory tax treatment just based on whether he has some additional administrative responsibilities but his basic law enforcement function is the same and but perhaps the most important point mr chief justice is the state has repeatedly conceded throughout the litigation that the job duties are the same is the head of the marshal service covered now it's not one of the state marshals but the head of the marshal service the u s marshal service i believe so so his his duties are the same as somebody who's the on his first day you mean the head of the marshal service nationally yeah well i don't know that person's of west virginia but i think there'd be an argument to live somewhere and i think there may be an argument that he is i think that's a different case it would depend on the actual facts of the job duties i think in this case where there was deputy u s marshal u s marshal or when he was a deputy sheriff pages j one seventy six and one seventy seven show that mr dawson had the same job duties the state's never contested that and indeed as a u s marshal mr chief justice mr dawson tossed a five at those pages but there were two critical similarities among others one was that he was intrusted to inforce west virginia law as a u s marshal and the second was that for fugitive task forces he could very same state troopers and deputy sheriffs who were exempted under the west virginia plan could i go back to the two categories yes let's assume they're identical all right and i know that you're arguing that they're not in this may an issue if we get to it to remain an ok but assuming they were and is the difference was as articulated by respondents here one more than the other should the pension plan so they would the state wanted to be more generous to those who paid more as i think is the case here why is that any different in kind to our suggestions in davis and in other places that if a scheme relied on the benefits paid out anybody who made less and fifteen thousand dollars a year in retirement benefits was exam but someone who made more wasn't why is that different in kind to this situation several responses justice sotomayor first it's different in kind here because it's not the law in the state true the state didn't draw a line based on benefits they could have they could have done officially neutral scheme but perhaps exempted a certain contribution rate or a certain benefit payout but that's not what they did here what difference does that make i mean let's assume a situation where the state says state employees who are in one of these four plans and let's further assume that everybody in those four plans receives a lesser benefit or  flee contributes a greater percentage of their salary to the plan so you know it's the state has just decided look this is a convenient way of identifying these people but in fact all of the people in these plans have that characteristic which makes them different from the federal employees that they contribute more or that they receive less and other benefits because that's still facially discriminatory justice kagan if the state had actually done a neutral criteria and said benefit levels even if no federal employees then qualified it would give the federal government the opportunity to redo its benefit plan so that they could potentially qualify under the state exemption here there's no such opportunity so would still discriminatory and that's what section one eleven prohibits the state could have done a number of things here but it didn't the things that the state proffers in its brief as these supposedly distinguishing financial characteristics the state concedes they have to be applied even handedly to be able to be legitimate differentiators between tax winners and tax losers but if you look at the record pages j twenty eight and twenty nine the chart they are in makes it abundantly clear that none of these are even handedly applied even within the state so there are some plans with higher benefits that are exempted some not there are some plans where there's a title meant to social security that are exempted some not some higher interest rate my hypothetical was meant to take that off the table to say i'm assuming that that's not true and the state really has categorized precisely as as to benefit levels or contribution levels but not in those terms not in those terms and you're saying that in itself isn't permissible right because it's facially discriminatory and it doesn't provide any opportunity for any federal employees to ever be part of it it would be different if it were done as officially neutral law in fact most facially neutral laws regardless of whether there are a meaningful number of federal employees who qualify or not would likely pass rudely under such a want to levon the first and critical problem here is that this is facially discriminatory the second problem is what i mentioned that the line to stay true is based on job duties the job duties  identical and the financial characteristics of the state proffers were not even handedly applied to the state and plainly weren't involved in the line with the state actually drew the state also argues that the lower court opinion was correct not withstanding davis because only a fairly narrow category of state employees are exempted but this argument was expressly rejected in davis and it can't carry the day here in jefferson county for example this court looked at a fairly narrow category state treasurers versus federal judges and only up held but taxation scheme because the federal judges and state judges were treated the same and indeed that exemption was facially neutral because there were people got the exemption who were state employees and people who didn't who were state employees and the same some federal employees got the exemption and some didn't the state also argues that there has to be undue interference with the federal government but that also has never been the test that was rejected in davis well certainly if you look at united states versus mexico in footnote eleven the court makes very clear that you could have interference with a government or discrimination either of which invalidates the scheme under section  eleven finally the state argues that that we've talked about that you have to compare to the most comparable individual we've already mentioned but it really isn't that inquiry the inquiry is one of similarity is is the state retiree or employee similar enough to the federal retiring or employee that there shouldn't be discriminated suppose that the person is drafting this bill for the state is trying to  think that the police officers and the others really they aren't paid very much and to particularly dangerous job and you know whose characteristics so they think they should give them a tax break and then someone says what about the federal marshals they do the same thing and then the person replies yes they do but they get paid a lot more you say and so the feds pay them a lot more than we pay the state people so that's why we're doing it ok is that ok or not it's not for three reasons justice prior first it's facially discriminatory secondly the motive itself doesn't matter as this court said in davis and third the state could always extend that benefit to federal employees for example in this case c five which is the broader exemption that only gets a small a smaller exemption was specifically extended to federal employees two weeks after the davis decision but the state didn't extend twelve see sex and therefore it's facially discriminatory if i could reserve the rest of my time mr jeffs thank you counsel chief justice and may it please the court we agree with petitioner that this west virginia tax exemption here is facially discriminatory and that i think is the critical feature that really gets to the heart of some of the questions that several justices have posed this morning it's instructive i think to focus on the difference between the tax that the court struck down in davis and barker and the one that the court upheld in jefferson county could you just say what you mean by facially discriminatory absolutely your honor a tax is facially discriminatory when it's not open to any federal employees ever regardless of what job duties they perform or what their benefit level is or what their contribution rate is and that was true of the stadt the tax statutes in davis and parker it's the opposite of the structure that the court upheld the that's the problem why were you suggesting that we remain and this it would just seem as though we should decide it if that's the problem well i think that even when a tax is facially discriminatory your honor there is going to be a second question which is is this particular employee actually suffering discrimination and i think it gets to one of the questions that you were asking my friend in support of petitioner which is there can if you imagine for example that mr dawson was a federally employed teacher as opposed to a law enforcement officer this tax exemption is still facially discriminatory but mr dawson in that hypothetical is not himself suffering discrimination he's the wrong plaintiff and i also think what precisely would  undertook the analysis of whether mr dawson is materially different from the federal employees or excuse me from the state employees who benefit from the exemption now if the court feels like it has all of the information it needs west virginia has now come forward  its brief and put forward several purported justifications that it thinks can sustain its law we agree with petitioner that we don't think that the record bears out any of those and if the court thinks it has enough to decide the case we're comfortable  it's i think related to your point when were you on the dialogue i had with mr rosenberg because of the benefits that say your boss the attorney general receives exempt you're not think carefully before answer the government is much more interested in the courts of lower courts applying the correct legal rule than it is in exactly where a state court draw i'm sure but i'm more interested in how how you're going to carry out that division in other words so officially discriminatory but with respect to what duties with category of duties well again i think the state depends on how the state has drawn the class states are entitled to have whatever kind of exemptions they want they just have to make them available on equal terms to federal employees and that's exactly the structure of this tax in jefferson county and it's the reason why the court upheld the tax in jefferson county all federal judges all state judges were treated alike other persons in other employees attorneys swore and were treated alike whether it was state and federal and i think that that means that even if the distinctions that the state is drawing are somewhat arbitrary that is fine as long as the state is making an effort to afford equivalent treatment to state and federal employees because i don't understand about what you think ought to be left open on remand is if you think that the prime evil of this legislation is that it's facially neutral that a federal employee can't be a part of these state plans so could never be treated in the same way then all the state justifications like these people get fewer benefits these people pay more in  make more of a contribution all of that do i understand your position correctly is just irrelevant the the the state court could find that these people get less benefits and that these people the state employees make a greater contribution and and yet not be able to rule for the state is that correct it's not quite correct your honor in this respect the critical question is is this plaintiff suffering discrimination on the basis of source of pain and so to return to your hypothetical from the last from the last session if you imagine that it turns out that the state actually has selected only those plans where the employees say contribute less than five percent to their retirement and it has put in the you know disfavor category all employees who contribute more than five percent if mr dawson is in the disfavored class if it turns out that he winds up with the class of eggs of workers that west virginia is not affording the benefit class then what if there's really no basis at all on which to to make a distinction between who the state has selected and who it has disfavored now again we don't think there were really any cases like that but in that it is in that sort of unusual situation i do think mr dawson would be entitled to the exemption and the reason is that the state would not be able to meet its burden to defend its facially discriminatory law but let me try this out and see if this is close to what you're saying where you have a variety of categories of state employees and some get the benefit in question and some don't get the benefit in question so the first step would be you compare all the categories of relevant categories of state employees and you identify the characteristics that distinguish the employees in the favorite class from that car from the characteristics of those in the disfavor class and once you've done that then you ask whether the federal employees have those characteristics that would be step two but the but i think even when you do that you will vary on less than this unless the states get to do just about one and whenever they want you will have situations where the federal employees are pretty similar to the ones in favor of class but they're not identical and then you've got a judgment call i don't quite know how to resolve that now is this is this right is that  to i think you have it exactly right and i understand that there are going to be in some cases out the margins difficult questions where it's hard to apply the tasks that the court set out in davis we're much more concerned about the states actually undertaking that effort in good faith and what we the problem that we have with the west virginia supreme court's opinion is that it never even attempted that inquiry never attempted to sort out whether these federal are more similar to the state employees who got the exam i'm sorry could you go back and answer kagan's earlier question which is what or what do we remain the for i do think that there's been a concession that the job duties of federal marshals are similar to the exempted class so what's left you said something to her that confuse me i thought you said if the state had actually differentiated their employees on the basis of the contribution they made with the benefits they received that the scheme would be ok if the federal marshals didn't well they would never make the contributions so maybe they have different benefits right that's what the state has argued your honor they've attempted to say that the logic of their exemption although it's facially discriminatory actually turns on things like contribution rates or whether the employees contribute to social security if the record supported that argument and i think that some of the several of those arguments are being made for the first time in this court if the record supported that the state could potentially defend its law on this basis now will do it what could what could this is to go into the exact same thing what could west virginia if the west virginia supreme court found that although the tax that's at issue here is facially discriminatory the state actually drew the line to track a neutral criterion like contribution rates or something everybody who contributes more than six percent gets the benefit nobody who contributes less no well that's a that was exactly my hypothetical and your friend answered it the other way and i thought that he answered it the other way because he said even if they drew the line in exactly that way the problem with this statute is that the federal employee is can't get into the state plan it is facial it is still facially discriminatory it still think it's still problematic and states should not draw their laws that way but if it turns out that the employee mr dawson matches up exactly on that logic that the state has offered with the disfavored employees as a matter of state law he is the wrong plaintiff he is not suffering discrimination but that seems to me that you're looking at the state's purpose  and i thought the whole point was that the you look just to the source of income well you certainly do look to the source of income mr chief justice but i think you also look at is davis said and cases like parker said we're going to look at what is the justification the state has put forward for its law and if they've actually put forth a neutral justification that's fine states have a great deal of flexibility in what they can do with taxation the one thing they can't do is discriminate and treat by treating federal employees worse than their state counterparts thank you thank you mush that he is treated different from similarly situated state employees and this court consistently looked beyond labels in the words of jefferson county beyond the state's name tag to see how that challenger is actually treated in this case petitioners have not made out there that showing because mr dawson is treated the same as similarly situated state employees this case is jefferson county where the court used the first step of the analysis or the co oracle though said i think the court below very explicitly said the two exam category and federal marshals were similar and they didn't even look at the comparison at all they said the purpose was not to discriminate so hence there was no discrimination your honor it is true that the state trial court found that a federal marshals have similar job duties to those who receive the that the court did not find that they do not also have similar job duties to those who do not know they didn't find out so you can't rely on that you know your i don't have to you have to defend its judgement and i thought it based it on saying if your purpose is to benefit your state employees that's not discrimination now that's a hard going for me to accept because discrimination is treating someone differently whether it's because you want to benefit someone else school or or harm another person to me seems a relative we got it is true that the west virginia supreme court focused on the first step of the analysis and there the court did undertake a tally of the circumstances review but it was simply taking this court at its word in davis where this court sad that the intergovernmental tax immunity doctrine is coextensive with section want to live in and that that doctrine incorporates the entire history and purpose of that doctrine and from the time of mcculloch that doctrine prevents discrimination against the federal government so the west virginia supreme court focused on that particular aspect of the first actuary to have this discrimination against an officer or employee because of the source of pay us have paid compensation yes you're right it's discrimination based on source of pay or compensation and we know that discrimination has to include discrimination that at some level interferes with government functions because again that language and se n want to leaven this court said must be interpreted coextensive with the historical constitutional dottle if that were true then this would apply only when the discrimination the alleged discrimination affects a lot of employees because of the in fact that how many employees would have to be affected before would have any kind of tangible effect on the finances of the federal government no your honor and that's why we say that this is part of the analysis the first step but in most cases the more common similarly situated alice says we'll sort out these cases that analysis determine who the appropriate class is that is another way of determining the sorts of discrimination that's at issue here well i think that i understand your point just because there's discrimination if it's not necessarily discrimination on the basis of source if you can find some other basis and then you say it's based on the amount of contributions or whatever but i understand they wish to talk about so you don't get to do that if you're saying if  you're federal you don't get it they're going to assume that it's based on something that's that's not permissible i mean if you're if that if your basis is something else you want to say that you want to say we're you know people who have this percentage contributions or whatever and if the federal employees don't qualify they don't qualify but as soon as you say it's you have to have the state retirement plan and not the feds i think the idea in davis was well you kind of presume that that's based on discrimination based on as they say the source of income no you don't have that that's not the appropriate analysis here because until it's chemical which this court relied on heavily in davis this court expressly rejected the argument that a fact that on its face a statute targeted in that case the physically targeted those who dealt the federal government that that was enough without more to find discrimination instead the courts that the appropriate analysis west consider whether the challenge taxpayer was in fact being treated different from similarly situated employees and of course in full i think you're having the problem i d from the beginning which is everybody breaks the stem into two steps but it really is one step because you don't even get to this inquiry unless state and federal employee something other than the source of pain correct your honor and that's very close to your reason i think it's you can't do this it seems to me except in a very crude basis is there this dozens of differences between state employees federal employees they categorize them differently they have slightly different jobs and you're going to start looking at an individual basis we just don't know so why don't we take literally what it says is that the source of income period i mean that it comes from the fed and if it does come from the feds and they pay less in roughly similar categories you can get beyond roughly that's the end of it so we don't see whether in fact the feds are being paid more you know we don't see in fact whether there's some other thing that distinguishes  why you want to give this break to the state police now you have your virtually all the state police there in this are they have the right to it it's not just the state police it's also the local police it's everybody in law enforcement almost they can get into it and the feds can't why isn't that just the end of it well while you're out our respective dispute the premise there it's not true that most state law enforcement officers municipality yes you are which which is true for many employees they take their retirement benefits that's how many local police are roughly in this program and how many local police are you know out of the state of west virginia tax department does not keep those exact numbers i wish i could give them  give me me at all what i can represent to you is that of the roughly two hundred cities that have separate police only thirty of them have a separate police retirement plan there are but i mean you've got to figure how many i mean if charleston is one of the ones that does maybe ten percent of them don't agree that statistic really doesn't tell us anything well your honor it does it does bring us back to the situation where there are some employees who have identical job descriptions who receive the exemption and some who don't that indicates there's something else that's doing the dividing in retirement benefits would not discriminate on the basis of the source of those benefits and as michigan statute does whether it would discriminate on the basis of the amount of benefits received by individual retirees yes so that's what i mean i'm concerned about the idea that yes it says the source is it federal or state but we really think it's something else and davis seems to say you can't do that well you got a first i would note that that language comes at the second step of the analysis whether the burden shifts to the state to find significant differences between the state tax payers but even so the question would simply be what does the tax actually do on the ground this court to set into this chemical in jefferson county that the court looks beyond the particular labels in city of detroit this court said that's necessary in order to give due regard for state ta fill i'm sorry no phillips chemical said the same thing there it said the argument was that federal land was taxed differently because of its size value or number employees and what the court said is the classification erected by texas law is not based on such factors and therefore it rejected it correct and that's because still it's chemicals that it's necessary to look at the way that the actual tax drops it is so what is it what is it and what is it that the twenty t sheriffs and the state deputy sheriffs and all these to what is it they do that the federal marshals don't do you not are the point of commonality for those who receive the exemption those who don't is that they are state law enforcement officers who are part of a retirement plan that is open exclusively to law enforcement and act like you're saying we discriminate on the basis of source no you're out of because to succeed at the similarly situated analysis the state of west virginia agrees that if there were retired federal law enforcement officer who had a retirement plan with similar characteristics that that would be enough to succeed but a rescue says let's look at the state plan here and let's look at the federal plan you so you're saying that the same people they do the same thing is there discrimination and you just seem to me to say no but the other side says hey they get a tax break and we don't now that sounds like discrimination i mean it may be justified or whatever it is but the question is is there discrimination how do you explain that the question is whether there's discrimination based on a source of income and that means whether the fact that the federal government as opposed to the state is signing retirement checks is the dividing line that's not the dividing line could you just explain what are the unique characteristics of those who get the favorable treatment the characteristics that distinguish them from the state employees who don't get it what are the characteristics that they have and then we can see whether a marshall or a deputy marshal has those characteristics all of those characteristics go to the particular retirement plan that they're part of it's this benefits and contributions benefits and contributions part of it yes your honor another part of it is that their plans are only available to law enforcement officers and those sort of plans raise particular funding considerations law enforcement is a high risk profession which means that it's more likely that members of those plants are going to have all right well we interrupting marshals are have a risk to that there are some deputy marshals who are eligible for the exemption but not all of them and yes and so but the distinction is the deputy marshals in west virginia who receive the exemption are those who retirement benefits come from a deputy marshal only plan would have to be marshals why does that matter it matters because the state has decided that the particular funding considerations of those plans warrant separate tax treatment and as long as the states reason is not based on whether someone is a federal or state employee states have a credible prize the nub of this it seemed to me that is it the case that if the state never thought of this it wasn't against the marshals it just developed a system that meant that they have a lot more money less money in their pocket than comparable say does that violate this statute and i thought the answer to that question is yes it does violate the statute don't look into the state's actual reasons just look into whether they end up with less money in their pocket and they're just maybe you could say a justification but the justification can't be we look at the way that the favored tax classes too if i understand what you see what you're saying i think used suggested three characteristics of the members of these plans and one is that they receive the benefits another is that they contribute a very substantial portion of their earnings to the plan and the third which i'm not sure i understand but your third is that the plan itself is made up only of law enforcement officers is that correct yes yeah now it seems to me that we couldn't possibly do any even if you were right that if the state showed all of that and we're not in a position to rule in your favor here at the very most you're entitled to  at the very most what we should do is remain and so that the state court could figure out whether in fact the members of this state plan as compared to federal employees receive lower benefits ma higher contributions and are similarly in you know and and and don't share this characteristic of a law enforcement only plan well your honor we agree that if this court  leaves that that determination the case turns on those facts specific inquiries particularly on the significant differences to ask the west virginia supreme to reach them the state would agree that remain would be appropriate to sort out the factual issues so that it's very interesting because the this was not raised the first time around wife you get a second chance we're on it was raised the first time around both the similarly situated point and the step to significant differences at every stage in the state court litigation the parties argued that these tax payers were not similarly situated to those who received the exemption the west virginia supreme court focus on a separate aspect of the analysis focus on the doctrines history and purpose if this court rejects the analysis that it does not feel that there sufficient information the record to decide the case then it should allow the state to continue to continue its argument back in the state court which would mean you know what strikes me about the way this argument has gone that's a little bit unexpected for me is that you  g actually agree we do your honor on both part because you think that the state should be able to prove that the members of this plan are different from federal employee is notwithstanding that the state has made a non neutral distinction and on the contrary mr rosenberg thinks the fact that the state has made a non neutral facial distinction is game over respectfully my friends position for petitioners would be at odds with what this court has done before because i guess i'm struggling with what justice kagan is and when we interpret statutes we usually start and maybe finish with the plain language of them these days and the statu discriminates on the basis of source came over i look at the west virginia statute and it contains none of the subtleties that west virginia has after the fact imagine for its statute it says only state law enforcement officers period doesn't describe the nature of their contributions or anything else like that why shouldn't that be the end of the n korea under a normal statutory interpretation and else where we don't bother looking at secret purposes when the plain text is clear big as your honor even under that approach mr dawson this petitioner is not being treated different from state employees the fact that there may be another hypothetical federal retiree who could bring a claim who could bring an argument that his or her retirement plan looks very similar to the retirement plan for example in a west virginia law that may be a case for another day but that still leaves the fact that this petitioner has not made out a claim that he is being treated that there's never going to be an identical federal plan to an identical state plan unless the state chooses to model its plan and out of the federal plan this is an invitation to just throw davies away all the state has to say is we're going to favor our retirees because our plan is structured in x way and the federal plan is not makes no sense to me what you're saying well no your honor because we're not arguing  the court needs to look at all of the particular details of the plan but only what is the broadest point of commonality that sleeps in all of those plans that receive the exemption and those who doubt and the state's position is that point of commonality is that there are plans that are available only to law enforcement officers that's all that this court has to do and this court may second guess the wisdom of a state getting a tax exemption based on that criteria but respectfully that's not a decision for this quarter not one so even if the two plans are identical merely because the state chooses a police officer only plan that's enough of a difference to do away with davies yes or no it to the extent that they are identical in terms of benefits or the way that the term of service is and now that does not mean that that that that statute would automatically be struck down because the state would still have the opportunity at the second stage of the analysis to show that there is significant difference and what would be the argument for giving favorable treatment i suppose we're just talking about categories of state employees and you have you have law enforcement you have one force officers who are basically identical but one is in law enforcement only plan and the other is on a plan that includes other employees what would be the reason for treating those those differently well well the reason we suggest is because there are special funding considerations when you have a retirement plan that's only available to those in a high risk professions such as law enforcement ok well so now you're saying it's funding considerations but it's not just the fact that they're there only law enforcement officers know you and i'm saying that would be the justification for a state to draw a line between law enforcement only and something else but the proper inquiry is to look at the line in the statute and then to take take the state statute at its word in this case we give an exemption to members of law enforcement only plans if there were a federal retiree who could raise that claim that person would be similarly so in terms of job duties is there a distinction that you see between the favored state employees and the disfavored state employees in terms of job duties yes your honor yes or no we believe there is the example of a sheriff is the strongest example in this record dawson didn't retire as a deputy marshal he retired as a full marshal and federal law says that the duties of a marshal and a deputy for that instance are comparable to the duties of a state sheriff not a state deputy sheriff and the reality is that one of the distinctions appropriate response is to look at job duties then yes west virginia agrees that remain would be appropriate to flesh out those differences so there's a retired no go ahead suppose a retiree had worked for twenty years as a deputy sheriff one year as a sheriff and then retired what with that how would the employee be treated well if the employee had worked work for twenty years as a deputy sheriff let's assume that their deputy sheriff retirement benefits had vested they would have the ability to receive those benefits they would have to stop receiving them while they were sure but could receive them later that particular employee would be able to example the benefits from their time as a deputy sheriff because they came from the deputy sheriff plan ok not only why wouldn't they why wouldn't the answer be that  that mr dawson street at the same way for part of if there's a if his duty if he is similar to deputy sheriffs but not to but also you know during the time when he was a deputy marshal why would the answer be to treat him in the same way to break ok and the state says those people get this benefit and now you have the federal employee you comes along and the states as well you don't get that benefit because you weren't in the state plan i mean you think that's ok we would say case that he or she is being treated different than similarly situated state employee ok so that i don't know what you're where you're going with the fact that it turns on whether you're in one plan or another planet it turns on the particular components of the plan  components of the plan but not the mere fact that you are or are not a member of the plan yet it does depend on whether someone is a member of the plan but in order to determine if a similarly situated federal employee being treated different we have to look at what describes that plan one of those characteristics and and if there were a federal employee who could show that his or her retirement plan had similar characteristics then yes you would agree that person is treated different from similarly situated employees in fact there is no such we know individuals who are members of cover professions who did or did not pay other state license fees began to see this as a different issue than i had initially for so don't say i'm right if i'm wrong ok all right and if i'm off base just say but the statute says you cannot tax the pay of a thought or compensation of a federal official if the tax unless the tax does not discriminate because of the source of the pay or compensation so then we have some money that's the marshals get and they put that money into a federal fund which is a retirement fund and the state in its taxation discriminates against them but not because of their pay or compensation but rather because of the nature of the retirement fund that they put it in is that what you're saying the distinction is based on the type of retirement fund and again the only reason that distinction matters is because that's the distinction in the state tax code and it dilutes chemical this court said that is the line the courts look at how has the state drawn the fav ok so where did i get i didn't for some reasons not necessarily your fault but this is a fairly simple point look at the retirement fund and if that's the basis for the discrimination against the federal employees that's fine but isn't there payer compensation and that what we should be looking at your i would add to that is that right yes but i would add that i didn't get that out of the brief two but maybe that's my  if the distinction is that is a federal retirement plan and that is the reason that someone is or is not in the favored class then that would be discriminatory under the doctrine but that's not what this west virginia tax regime is doing because the reality is there are many states state retirees over ninety eight percent who are in the disfavor class and there are many state law enforcement officers some with identical jobs who are also in the ditch and i seems to me that davis makes it very clear that that's not a significant consideration if you have a small retirement benefit and say this is available for all people who do x unless you're paid from a federal plan would that violate davis or not you have ninety nine percent of the state employees are not eligible for it but it says if you're in this category a tiny category you get the benefit unless you're a federal retiree we are at the first question would be whether the particular challenger is in fact in that tiny category but that first question was not the one i asked i asked a different one which is you argued that well it depends on how many of the state employees are eligible or not and i thought davis said specifically it doesn't it depends upon the source so if it if it's five employer he's in the state and there's one who's a federal employee and your plan says these five get it and no federal employee gets it does that violate davis or not you know in that case it probably would and that's because we're not saying that the sheer small number of employees who are benefit are not matters it's relevant though because this tax regime treats ninety eight percent of state employees different well you just said it doesn't matter and then you tell me that matter so you're not it matters only because it's indication that the actual dividing line in the state tax code is not state versus federal something else is the dividing line here the dividing line is the particular plans that they're part of and also if this court remains in the significant differences standpoint then the state will be able to show that there are vastly different contribution level and on job duties ok and you're opposing counsel says in that circumstance where you're similar to both the favored and the disfavored state employees that the state is required to go with the favored strict state employees as the treatment for the federal employees if you're following me why is your opposing counsel wrong on that point because courts are never required to turn a blind eye to evidence in the record that shows that the comparison class the plaintiff has brought forward is inappropriate well why is it inappropriate that's the point they're both appropriate in that circumstance in that sense that they're similar situated to both the favor and the disfavor that's what you just said i think because it doesn't show what the actual dividing line is in that case we know the dividing line is not between those who have certain job duties or not because a police officer who lives five miles away from another police officer may have vastly different state tax treatment with identical job duties that's not how the state tax is drawing the distinction but i think the only way to be sure in that circumstance that we're describing  that you're not discriminating against the federal employees is to be to give them the treatment that the favored state employees are dead if you give them the treatment that the disfavored state employees get you're never going to be sure whether that's based on discrimination against the federal government or not and that's what the statute seems to target making sure that there's not discrimination against the federal employees yet of this court has never held and most favored tax payer stand back in jefferson county that was just as true there because there were many state officers who received the exemption and did not this court found that the fact that there were some who were like that better of sale just there in the disfavor class that was enough to find that similarly situated taxpayers were in fact treated the same no matter what other issues may exist for another day for another federal employee this one is treated the same thank you counsel four minutes mr rosenberg i just have a few points and rebottle first of all in response to the question of justice pryor and the chief justice posed at the end this plainly is discrimination based on the source if you're in the state plans you get the exemption no federal plans get the is that there is no question that at step one of davis this is facially discriminatory it violates the law the question is are u s marshals the right plaintiffs and before the state had articulated its reasons for arguing that they were the government said maybe a remailed would be appropriate here however we know what the state has argued the state has argued these financial considerations that plainly are not the line that the state through the record itself the joint appendix establishes that the factors that the state argues were not even handedly drawn in this circumstance there is no reason for remit moreover many of the financial arguments of the state raised were as you slow down i'm sorry a lot of generalities give me specifics ok specifically what is going to say is if you talk about the amount of compensation or the entitlement to social security right we know that those are not even handedly applied because we know that some state plans that have higher benefits get the exemption some dough we know that some  social security gets the exemption some don't we know some higher contribution rates get the exemption some don't that's true an appendix page twenty eight and twenty nine that chart shows that clearly right so we know that they weren't the basis for the line that the stay true and they're not even handedly applied moreover many of those arguments were raised in the circuit court and the circuit court rejected them and said davis precludes them because they're just ultimately an argument about the amount of compensation and if the state were going to draw the line based on that it would have drawn the line neutrally based on the line of compensation not done it the way it did which was to discriminate based on source so none of these are legally relevant and and is not appropriate third the burden on the state here is rather light under davis all we're asking for is for the states to draw facially neutral lines and that is not a s deputy sheriffs but if you look at page seventeen of our reply brief we cite the state's brief page twelve and west virginia code section seven fourteen d twenty four if you were a deputy sheriff or a state trooper and then became a sheriff you're still covered and there's nothing in the record that indicates that most sheriffs weren't previously deputy sheriffs or state troopers so the distinction of the state makes isn't isn't supported here and the record doesn't just apply this notion that counsel mentioned about law enforcement only plants the plans that the state gives the exemption to our law enforcement and firefighter plan so it's not a one foresman only plan and that particular distinction has never been raised before and simply doesn't matter look at bottom here in mcculloch vs maryland the court said that in general we don't want to be