your argument first this morning please thirteen fourteen twenty one bank of america versus cold pit and the solid dated case mr chief justice and may it please the court respond position is that section five of sixty of the bankruptcy code allows chapter seven doubters to keep their houses strip their underwater mortgages and prevent their lenders from accessing any later appreciation in the this court rejected that position with respect to partially underwater mortgages and that reasoning applies with equal force to completely underwater mortgages just not held that section five or six d voids only liens securing disallowed claims it does not boyd liens based on the current value of the collateral that logic applies whether the current value of the collateral is a million dollars one dollar or zero as virtually every court to address the question has held and even the eleventh circuit below all but it made it outside bankruptcy the bank would be entitled to deeply underwater that's not true in every case and there's no reason to think it's true in the typical case we have bank of america has many cases pending right now in the eleventh circuit we have cases in which the value of the house would need to rise only by four thousand dollars where it would need to rise only by five thousand dollars and given that we're in the middle of a market upswing it's very plausible and very likely that many of these mortgages will regain requote statistics in our opening brief that show that between twenty twelve and twenty fourteen the number of underwater junior mortgages was cut in half from four point two million to two point one million so houses are coming up of water every day and what juice not held is that the older according to the basic non bankruptcy bargain  negotiations chapter seven is very simple the debtor turns over his assets to the extent there are any nonexempt non incumbent assets which there are typically are not the trustee will sell those assets distribute the proceeds to creditors the debtor then receives a discharge of all prepositions dad well let's just talk but chapter seven because that's what i had in mind i suppose it's a close case the way it works just to sort of my or is that if there is nonexempt equity in the house which of course was not true in these two cases the trustee will sell the house out of those proceeds the trustee will first satisfy the claim of the senior secured wonder if there's anything left over it will go to the junior secured wonder if there is not the junior lender receives nothing and the junior lien is extinct so when those do the facts of this case matter if i was this is before the the the finish the wrapping up of the plan right in chapter seven there is no platter i'm sorry this is before the bankruptcy is terminated i think it's important to understand that chapter seven bankruptcy happen very quickly a new asset bankruptcy like this one will usually be wrapped up in thirty to forty five days where as here there's no equity in the property to be distributed to creditors and there are no other nonexempt assets there's really not very much for the trustee to do the trustee will that point the debtors rights in the property are precisely what they were before a bankruptcy if the dad is in default on his mortgage and the lenders can for i let me follow up to something justice kennedy many of your adversary plus many others make i have argued that if we rule in the way you see that concerning policy issues so explain why that's not true just out of my or my answer to that would be that's not a bankruptcy problem and there are not negotiations that take place in chapter seven as to which the junior lienholder could have exercise and hold up value it's it certainly may be the case that waiter on the debtor may want to negotiate a modification with its senior lender that happens all the time to people who have been through chapter seven bankruptcy and people who have not and to the extent there is a housing policy issue i don't think that's properly addressed through interpretation of the bankruptcy code one of the unique the bankruptcy court code wants to give a fresh start that is true and to the extent that chapter seven is an attempt to do that particular nature or the nature of the fresh start in chapter seven is that the debt or surrender is all of his or her assets and in return it's a discharge of all pre positioned it's never been the force the debtor to stay in a house that he or she can't afford if the debtor if the debtor wanted to say sure a default on his mortgage and keep the house chapter thirteen is open to the debtor which permits sharing out of fault on a mortgage and maintaining payments during the course of the plan under chapter seven a debtor and if the in the situation of these debtors and the house has been abandoned back to the debtor if the debtor is in is current on its loans can keep the house hey it's mortgage going forward  and be in the same situation that he was prior to bankruptcy the one thing that chapter seven gives a debtor in that situation is that it discharges the debtor of any personal liability for the mortgage debt so the lender cannot come after the debtor personally if the debtor decides that the house is too expensive for him to stay in he can stop paying the mortgage and the only that the lender then has is to foreclose so there are there certainly is and bill it easy for debtors to walk away from houses that they simply can't afford and there is also an ability through chapter thirteen to share our existing defaults and reach an arrangement through which the d limiting it to the facts of this case and we're not saying what these terms mean elsewhere in the bankruptcy act so let's take two snap at its word and just limit it to what it involved which was a partially under underwater mortgage healer stay in that but we often limit prior decisions to their facts and don't follow their logic yes just hold em logic we would we would never be able to do what i'm suggesting but we often say yeah the logic would lead us here but and to do that would be to read the exact same language in the exact same place and the statute in the us i mean different thing i'm just not getting through to you i'm willing to do that and willing to do that when the language was read in correctly the first but as a practical matter i'm talking as a practical matter and starry decisis is a very practical doctrine why one should as a practical matter should  i apologize justice ginsburg that's one of the cases in which the court has said that the same language in the same place and the same statute cannot mean different things in different factual circumstances there's a dissenting opinion in a different area have never been able to figure out the answer to the question he raises which is oh i'd take a dissenting opinion in one case and then when do i say ok forget it and and the the answer is sort of personal in a way how strongly do you feel given the need of the law to advise others advise judges advise congress and all those if we all keep sending all the time it'll be chaos if we never change you can't stick to a principle event found any way of drawing that line i don't think there is any way i think there is justice pryor and justice scalia which is that i mean this court has very rarely the issue before us is whether we should extend it to totally under water now i thought you were going to tell me you know i feel strongly that that to snape was wrong but i'm not going to upset expectations i mean if the banks have been you know wondering money for second mortgages on the assumption that they would not be stripped i mean that's what i thought you were going to tell me only you know many expectations that have y i don't i don't hear that being argued i believe that there has been reliance i actually don't think that's the most compelling argument as to why the court shouldn't depart from juicing up  language and simply can't be read to distinguish between completely but if we could show that i mean i kind of agree with you that it's not a very compelling argument this reliance argument because i find myself in the same position as just i read the to do step opinions and it seems to me that justice scalia clearly has the better of the argument and then and then the question is what do we do about that or never do we go from there and it does strike me that if you know these are the most sophisticated parties that can possibly be imagined bank of america and other banks and it seems to me that they would be making  a bet on and they would you know think about all the things what is the probability that to snip will be extended to completely underwater mortgages and presumably they discounted all their various calculations in order to take into account the probability that another court would say you know do step is not very persuasive and we're just not willing to extend it any further and i think that's probably what bank of america and other banks did is they said you know we think there's x percent chance that do stamp will be extended and why percent chance that it won't and they made their cost  pricing calculations based on that calculation so if that's the case why should we worry about reliance justice kagan i do believe that banks have relied on that to snip decision as to whether they specifically made calculations about when it would apply whether it would apply in these circumstances i don't know but i i mean i understand the notion and agree with it completely that if you have a decision that's wrong you don't extend it in any way but there are factual distinctions and there are factual distinctions may have been decided on the tuesday in this case could be decided on thursday but you would not say you know we're not extending it you know we're simply not going to extend it to other cases exactly and in this particular instance i assume the difference between under water and totally partially under water and totally under water is a completely completely fluid in the sense that at the start of the start of the bankruptcy i didn't think it was totally unintended but what but the idea is that you know it through out of bankruptcy you could have a mortgage that is until foreclosure which means that the lien holder is entitled to access any equity that may develop in the future due to appreciation of the process is this right i want to be sure i understand deuced now the last twenty five years lenders and others in the bankruptcy community have understand understood the way it works is the fall if you have a and the house is worth five hundred thousand and your lee and his aqsa cured and it's worth a million and they're in chapter seven you have a secured interest and are counted as a secured credit or only to five hundred thousand as to the remaining five hundred thousand you're counted zone secured creditors but you keep believing right well but and sir for if when they're out of bankruptcy someday or the house goes up or whatever it is you still have your land is that right that's right and let me under secured claims into a secured portion and an unsecured portion and that determines the distribution that a creditor can get from the estate now i want to be clear that nothing in the way this court reads five or six d will affect that that is going to be true no matter what what do you snip it is that section five or six does not refer back to that  rcation in five or six and a rather it uses the word secured and the ordinary english an ordinary legal meaning of secured by a lien with recourse to the underlying collateral and in that situation a given that reading a five or six d only strips liens securing disallowed claims if the claim is valid then the creditor is entitled that means that after bankruptcy is over and you're back out of section seven top yourself unless it falls within one of the other two exceptions that are correct and therefore and that's the understanding ok if it's it's usually clear whether there is or is not nonexempt non incumbent value in a house and the trustee will sell the house only if there is not exempt no encumbered value the you know it's possible that in a situation in which it's not clear the trustee might go ahead and sell the house and see how much is realized for it because that  any reliance on your just can you let me be clearly surprised with that let me be clear i am not walking away from the argument that the banks have relied on i think that's on questionably true millions of loans have been made in reliance on juice nets holding banks when they make loans price them and extend based on an understanding of what their recovery is going to be given apply to completely underwater mortgages i think about a little bit less strong over it's true that in the twenty five years since the juice and it's until this decision by the eleventh circuit it's been well established section five of sixty claims with some value remains secured claims with no value don't they be wiped out the foreclosure and bankruptcy treats them no better than foreclosure would but before i get to text or holy book value or do snuff let me sees on the my adversary justice scalia and kagan pressed my adversary who conceded that she couldn't demonstrate reliance here there were bankruptcy courts and district courts that foreshadowed the ruling below and they've pointed to no evidence of reliance there is we challenge in our brief to show that in the eleventh circuit lending markets are being affected no evidence there are eight circuits in which a lien voiding is allowed in chapter thirteen no evidence we should clear the table of a reliance argument that my adversary all but concedes how could she didn't conceive it and it just seems you know it's not just homeowners you can cure me of this misapprehension but probably in the last twenty five years or thirty years there have been trillions of dollars that have been loaned to businesses i mean think of lehman brothers and and and they go bankrupt and suddenly at stake or are hundreds of billions of dollars and a person who's made a mortgage at least a lawyer would say ok you can lend the money if the things go badly we can keep the lean and we won't collect because he's bankrupt  markets go up and down keep keep keep the security interest they might go back up you might get it some day now that's perfectly obvious advice it seems to me from what i know so far so so when you do that the mortgage lender has to decide what the interest rate is how it went terms ours and it's pretty hard to believe there isn't some effect on the brain of the of the person who's making the mortgage from the simple fact that he gets to twenty five years or thirty years twenty three years to be exact and the fact is that sure they go to their lawyer they don't read the lawyers and the lawyers would read found a very slight effect oh point one two two zero point one eight percent on first mortgage is the other empirical study by philadelphia federal reserve economists likewise found no substantial effect on markets even when different circuits are done it it's hard it's hard for me to think the decision in your favor wouldn't in a sense of hurt borrowers because the market for second is going to dry up or become much more expensive i'll read the briefs and you can tell me about the debtors often want to work out unishe mutually beneficial resolutions as my adversary concedes no negotiation goes on in bankruptcy the second can prevent this from happening and we've cited multiple studies that show that the second lenders may wind room in close cases for a three way compromise that i'm advised just doesn't happen in chapter seven i find that hard to believe especially of major bankruptcies not homeowner bankers two responses justice kennedy the first part of your question was well what's the effect on mortgage lending even if there weren't effective second mortgage lending one has to balance that against maximizing the value of first mortgages which are purchased many mortgages which are helped unclogging the housing market the chief economist at moody's analytics said resolving subordinate beings was the biggest obstacle to the housing recovery then your second question is what what about loan modifications and bargaining my answer there is this is ministration had a number of programs in place after the housing bubble hamp and harp where these about lehman brothers wise and about businesses why isn't it about commercial property because currently in chapter eleven in cram down  as opposed to stripping down only it doesn't use the phrase stripping down it doesn't use the phrase for just a sort of me on this is very important the next but brief goes into this there are references to retaining liens dissatisfying leans to modifying means but his neck but explains those provisions piggyback on five six which values a claim it goes over for adjudication in chapter eleven the different classes of creditors and then back to five sixty which is the provision that says that it voids liens and necklace fear is that if this court does not allow section five or sixty to do what it's supposed to do it could impair not only housing mortgage modifications but business bankruptcy no i'm not just what i understand i'm a housing mom a mom i'm lehman brothers yes i go bankrupt here all kinds of liens all over the place doesn't the same law apply to them well section eleven twenty nine housing yes it's a general question there is and if it's if it lehman brothers if it's a chapter eleven bankruptcy reorganization i know about assume a big business in chapter seven yes this in this is under chapter seven do not receive a discharge and so typically the business is filing under chapter eleven if there is a liquidation you are right though that the same logic could apply there and whether it a business bankruptcy or it's a mortgage or home bankruptcy there's still the need for the bankruptcy code policies upon ality and a fresh start you know i  i'm not familiar with the widespread practice of giving taking a second mortgage on a business loan unless it's your father in law it's a very common practice for  purchases of homes i'm not aware that it's a common practice in businesses getting up getting second mortgages i it seems to me quite rare but there are different tranches of debt sometimes senior and junior if if there is one dollar worth of value ok you don't lose your lead but if there is zero valley one dollar less and it's stripped entirely  didn't say that you're on the right i'd i'd remind your honor of your opinion in green vs pock laundry if it's necessary to deviate from the text which if you support mitt it was deviating from the text pick the deviation that does the least violence to the draconian arbitrary result ok as a policy matter justice and his opinion didn't say that you do that no your honor i don't believe it's because if a big property is one dollar more in value before there's any additional money on the table so if anything allowing preservation of a lien that has one dollar nominal value is being somewhat over protective owing on the side of being generous and protective when there would be no money left in foreclosure what it does is it clears out the liens that are nowhere close to having value in foreclosure isn't the question complicated by the fact that whether it's a dollar of over a dollar who is a matter of early subjective valuation on the contrary your honor section five or six a expressly provides for judicial valuation nobleman recognised to be judicial valuation the house reports recognised it would be judicial and i know it's judicial valuation but that's that's the problem if you're cutting a fine line and saying it's up to the judge you can look ahead and say well this is going to happen in the bankruptcy and i'm worried about that but no one's going to say that a valuation to fifty thousand and one dollars is accurate forty nine thousand nine hundred ninety nine is not but that is in control of the judge who's doing the valu yes but it's far more accurate than the realistic alternative of foreclosure there are many more safeguards if one can the creditor can submit a proposed valuation creditor submit appraisals expert testimony there is a hearing and that is far more protected than foreclosures which have to be rushed sales poor notice poorly advertised they require cash sales that leave the creditor much less protection the realistic alternative here is throwing the house into foreclosure and outside of bankruptcy and then in fact the creditor winds up worse off not just the second who has nothing to gain nothing to lose hope that after the first mortgage he winds up losing value if i might now take the text of the statute that it gets before you do could it could i go back to something that the chief asked about the chief justice asked about earlier which is this question of whether a distinction between fully under water and partially under water is coherent at all his would do step said and do step on the one hand said we're deciding this case in this case only but it also said this this is how it framed it's holding we hold that five hundred sixty does not allow petitioner to strip down respondents lean because respondents  respondent's claim is secured by early in and has been fully allowed pursuant to five of two so this claim two is secured by early end and has been fully allowed pursuant to five o two it seems to come within this two ways let me focus on that sentence and then the things elsewhere in the pinion and the nobleman that sentence was careful and usually careful to phrase the holding in terms of the particular parties that respondent had value in the mortgage that's why the court said respondents claim not claims in general then it used the verb stripped down that's bankruptcy jargon free partially secured mortgage and reducing the amount scaling down the indebtedness the court said too late i hear you but it seems as though it's the second half of the sentence that is key here why are we doing this why are we holding this because the claim is secured by alien and because the claim has been fully allowed and both of those things also apply here respondents claim also  value that made it unquestionable that it was still secured but you're correct i think though that the use of the verb struck down in the use of the respondent particular limits that situation it's very important though to go back three sentences before that to see what the court the difficulty of the bread creditors and governments rule the same rule that miss benelli says that the court embrace the same or she quoted during her argument as if it were the court's holding about well it's there is some collateral therefore it secured the court declined to rule on all possible facts situations in light of the hypothetical and it said we therefore focus on the case before us and allow other facts to way through legal resolution why haven't you argued that we should overrule do stuff isn't because of reliance because you think that there has been a great deal of reliance on do so as applied to a partially underwater mortgage but not reliance as applied to totally underwater your honor it's quite right that those are two different categories it's not our burden on stare decisis because we will under do snap either way the court can do what it wants but we have not advocated it we've been faithful to upholding in its reasoning including the express limitations it put on its reasoning its reasoning was limited to a case with i don't believe that's the case that it in terms of what the court could consider overruling to snip we haven't advocated for that because even our reading of the statute is still more faithful to the text than petition i'm the just what i mean you're giving the same exactly the same phrase in the statute two different meanings depending on whether one is under water and i know the only or partial if where do you find that distinction in five or six ok section five zero six a defines what an allowed secured claim is no but that's the argument that justice scalia made that was rejected you're giving the same phrase two different meanings in how do you apply the meaning component had some value that value was sufficient under five or six say that there was a portion partial secured claim must be read in light of noblemen a year later nobleman said there's a security it's a chapter thirteen case but it just about priority distribution has nothing to do with lien avoiding resolve this issue every claim that is secured by lehman is no human was not about five of six it was about thirteen twenty two and thirteen twenty two talks about the bankruptcy courts power to modify the rights of any creditor whether it's security or un security that's how it's been read by the courts yes but certain twenty two's operative phrase is modifying the rights of holders of secured claims in order to be a holder of secure claim one must have a secured claim and so a nobleman this court stressed petitioners were correct in looking to section five zero six a for a judicial  valuation of the collateral to determine the status of the bank's secured claim whether there was a secure claim or not there was a secured claim component and so the court said the bank is still the holder of a secured claim because petitioners home thing to a heard to change the amortization the long term the payments etc there is some value here that supports this so we're going to leave it as an indivisible whole this court could easily understand allowed secure claim in five sixty if it wished to preserve dusun of holding just as lender lends to millions and now you have seven million the property ends up being worth a million so the senior lender underdo snap comes in and says ok i have a secured interest for a million but i can keep the mortgage here for four million you know in case things change ten years from now is not under do snap the senior guy again it's partly well in a corporate bankruptcy this doesn't apply ok then i'll say as a very i just want some numbers the senior the senior person says is met put it on whatever you like for the senior person says oh i get to keep my four million dollar mortgage maybe things will change you know and eventually i may be able to collect some right  except what the difficulty there is so you're saying that that there's a completely unsecured second mortgage that an individual who i haven't named my example or i swear you know if i'm right so far that there's one mortgage it's five million dollars the property is worth one right and so what happens to the bank x is he gets maybe as a secured credit or the million if he wants but if he doesn't want to collect it now he doesn't have he keeps five million dollars he keeps that mortgage going as long as he wants yes yes ok so junior comes in and junior says hey he got to keep four million just in case i have my mortgage for two why can't i now now i can i can think of some words here that might say well there is the difference is what your point is you guys want to know in terms of commercial practice or anything else what's the answer to his point he's got to keep the war on the hope it will go up eventually why can't i keep my two my documents are just as good as he is my mortgage is just as good as his i mean why can't i so there's a functional answer and historically and so i take your interest more to the functional and yes i'll start there there is a big difference between a single creditor single debtor situation inducing of the debtor was just trying to stop a foreclosure so the dead a could get a better deal here we have a multi creditor situation the creditor is this junior creditors seeking a better outcome than it would get in state law foreclosure that better outcome comes in part from hold up or hostage value that can limit the ability of the senior lender and the property holder to negotiate a loan modification work out that makes everybody better off makes assets more freely transferable it improves the market and that does come at the price of the junior lender but that's what happens in cram down as well in a cram down junior interest are squeezed out so that the senior people can can you can maximize the value of the assets and deal with them freely through why can't you see these things in but only one lender he doesn't have to keep that for you no but  there's thirty cents extra for clothes today and and there you are free never having this hanging over your head and i'll do it for an extra thirty cents you find it now that's called the same thing you said it's called this is what do you call it whatever it is you see only people with mortgages can do that but there's not the same of multi creditor there is one rather than two and maybe two ruby better than three or three would be better than fo since you're asking specifically in functional terms and i'll get to the bankruptcy history later it's there's a coordination problem when they get a coordination problem can be a game of chicken each of them holding out for more money and then putu people can drive over a cliff in a game of chicken now on to the bankruptcy history why is this section five zero six which applies across the code chapter seven eleven twelve and thirteen so this is part of a thin increasing recognition over time that it's necessary to solve these hold up problems and that the  realistic alternative might my my friend miss spinelli and her reply brief says well if we hang on to this lean ten years from now the first will keep getting paid down and then our second will come into the money but well that's not realistically what happens in these cases in borderline cases one hundred five hundred ten percent loan to value people stay in the houses they keep paying it's too much cost to pick up the kids and move to a different home when you get to one hundred thirty percent along develop the median home that's under waters with a second that's underwater is one hundred thirty five percent loan to value when you get to one hundred fifty percent loan to value at those ranges lots of people are in default they qualify for bankruptcy because they've lost a job or they're ill they can't make the payments and pay into a black hole a negative equity they walk away the home is thrown into foreclosure anyway and the senior creditor is worse off and the junior doesn't care because a junior doesn't get anything either way to be this can i take you back to justice alito is question which was about starry decisis in law you have a  this i tell you that my sort of reaction to this case is that these distinctions that you're drawn between partially underwater and fully underwater are not terribly persuasive but the only thing that may be less persuasive is to stamp it self that so the question to me is at least one question is what if we should bite the bullet and overturn do step and maybe a right that that's for us to decide and that you know but if it if you do have something relevant to say about that matter here is your chance to say it i think it's worth it if the court wishes to consider that and again that's not been the position of advocate because we don't need it to win it's worth starting with justice thomas is concurring opinion in two or three cell which pointed out the massive confusion that's been sewn in the courts trying to grapple with this ruling which judge gorsuch is ruling and will see that says that do stop has lost every away game is played that it doesn't fit with the other provisions of the code there's a lot of confusion there it has almost uniform criticism in the scholarly commentary my colleague can't point to reliance interest in the markets and the empirical studies discussed in the levitan brief suggest that there isn't substantial alliance on this in part because you benefit some first  mortgagees who manage to maximize their value by boarding some of these junior ones and so the reliance interest that my friend has walked away from and the uniform criticism of dusun up might interest this court in considering revisiting it but it's not necessary because do snip itself reserve completely under water hypothetical on the face of its opinion is exceptionally narrow and the lawyers could read and see that it declined to reach this issue and i do think that it is very important to to read do snap together declined to cut it into pieces and one of the reasons you client declined to cut it into pieces is because the claim secured by a lien and compass is so once once the court has the power of what it was sitting under thirteen twenty two to modify that then the court could change both the secured order and on the way the home but it's what it was talking about but the last thing to me and pointed out that if you modify the unsecured portion you have ripple effects upon the secured portion you wind up change changing things like the interest rate at the amortization or the fees and so you might be viewed as is sabotaging or undermining what deserves to remain a secured component in this situation there is no no such problem so all it is worth noting by the way my friend also says well this lien that can sit out there maybe it retains value some time in the future isn't that enough value and i think just as prior was just turned towards that all eight circuits after nobleman have understood that nobleman drew a line between some value and no value all eight circuits to confront lien voiding in chapter thirteen allow it because they recognize that the completely underwater jr qualifies as no value within the meaning of the code present economic value is what this course cases have consistently focused on the value of the claim is equal to the value of the collateral this court has said and that's the present value the collateral the statute uses the present tense in section five zero six whether it is or is not it's not about forecasting or speculating into the future that would be dollar might have more about you than a lean that supported by a dollar at woody depending on the potential for appreciation the value if the houses were sold today is simply irrelevant because the situation only arises where the debtor is keeping the house and one could have said induced look the current value of the collateral is less than the amount of your loan it's fair to give you the current value of the collateral you snipped hold to the contrary and that's precisely the same here there is no distinction at that supports drawing a line at completely underwater means given that the secur creditor has the same non bankruptcy right to have its lien stay with the collateral until foreclosure and payment in full and to realize any appreciation in the value of that collateral this  doesn't give a junior lien holder a better deal than it would receive under state law it gives it the same deal it would receive under state law to respond to a point that i think justice sotomayor made the fact that there are specific provisions in chapters eleven and thirteen that do permit stripping down in certain circumstances supports the jews  court's view of five or six d it certainly doesn't undermine it five or six d is not the provision that strips down liens and chapters eleven and thirteen rather there are specific provisions which are in the were itself a lean stripping provision and just to take one example if one looks at section thirteen twenty five eighty five which appears on page six a loop that sets out the terms claim retain the lien securing such a claim until the earlier of the payment of the underlying debt determined under non bankruptcy law or discharge now it would make no sense to example we discussed some others in our briefs including section seven twenty two and we also discuss in our briefs the that the textual indications in section snips court's holding so and those are all reasons why i was correctly decided in the first instance and shouldn't be overruled but to respond to justice kagan's question beyond that the rule of law simply doesn't allow those who are in the typical situation to overrule a statutory interpretation decision in a case like this where congress over the past twenty five years has acquiesced in that decision thank you counsel cases submitted