[00:00:00] Speaker 02: Our next case for argument is 23-1978, Bannister v. United States. [00:00:06] Speaker 04: Good morning. [00:00:07] Speaker 04: Chief Judge Moore, may it please the court? [00:00:09] Speaker 04: Nathan Mammon on behalf of Tracy Bannister. [00:00:13] Speaker 04: Congress enacted the survivor benefit plan to make sure a service member's spouse has support when he dies, and to assure no spouse is surprised to learn that she's left without that support. [00:00:26] Speaker 04: The statutory language is clear and careful in its requirements. [00:00:31] Speaker 04: Here, Tracy Bannister has been improperly denied the survivor benefit plan annuity of her husband, General Bannister. [00:00:39] Speaker 04: There are two reasons, as a matter of law, those benefits are owed to Mrs. Bannister. [00:00:44] Speaker 04: First, General Bannister elected Tracy Bannister to receive his SBP annuity, and that election controls its binding. [00:00:52] Speaker 04: Second, even if General Bannister's election did not control or did not exist, Tracey Bannister was the default beneficiary under 1448B. [00:01:02] Speaker 00: I think there's a court order here, right? [00:01:04] Speaker 00: And there was an agreement. [00:01:06] Speaker 00: And the statute says under those circumstances, and I'm talking about D3A, may not pay an annuity under paragraph 102. [00:01:15] Speaker 00: That's pretty strong language. [00:01:18] Speaker 04: The statute goes on, Judge Laurie, and the full statute is so that a fault under 1448D is to the current spouse. [00:01:27] Speaker 04: 1448D3 says, here's the exception when it goes to a former spouse. [00:01:32] Speaker 04: It's one sentence. [00:01:33] Speaker 04: And it says, if you meet these circumstances, [00:01:36] Speaker 04: So, there's a court order, or there's been an election, may not pay the current spouse, pay the former spouse, but then at the very end, part of the same requirement, it says, if there has been a deemed election compliant with 1450 F3. [00:01:50] Speaker 04: That's a part of the statutory language, that entire section there. [00:01:54] Speaker 04: And so, I think what the court below did [00:01:57] Speaker 04: The mistake was stopping when it got to a subparagraph of the statute and not finishing the sentence. [00:02:03] Speaker 01: Why is that a mistake? [00:02:05] Speaker 01: If that subparagraph is as clear as the trial court said, you may not pay the current spouse under these circumstances, which we all agree are present. [00:02:15] Speaker 01: Why do you need to read on and see what happens to the former spouse? [00:02:20] Speaker 04: Because we don't agree. [00:02:21] Speaker 04: I certainly would not agree that the circumstances are present, because again, it's a single statutory sentence here. [00:02:28] Speaker 04: And so what circumstance has to be present? [00:02:30] Speaker 04: There has to be a court order or an actual election. [00:02:33] Speaker 04: But the last clause that applies across the board, and you can see this in page 14 of our reply brief, the last clause requires that there be a deemed election. [00:02:41] Speaker 01: That's a part of that committee. [00:02:42] Speaker 01: The other way to put it down is why not read [00:02:45] Speaker 01: 1448D3A as the sole provision there dealing with the current spouse and dependent children. [00:02:53] Speaker 01: And 1448D3B only deals with the former spouse. [00:02:58] Speaker 01: And this is a case brought by the current spouse. [00:03:01] Speaker 01: So we don't have to worry about the former spouse. [00:03:04] Speaker 04: Because it's a complete requirement, a complete section. [00:03:08] Speaker 04: And the result that I don't think the statute would support is that you can end up with no spouse or no one getting the annuity. [00:03:14] Speaker 04: But setting that aside, the reason why I think that's not the right result and the statute doesn't allow that is because it's a complete sentence that it's not that just there is a court order or that there was an election, that you have to comply with the requirements of 1450 F-32. [00:03:30] Speaker 04: And why it matters is because [00:03:34] Speaker 04: You can't stop at 1440A because you haven't met the requirements even of 1440A because it's qualified. [00:03:42] Speaker 04: It's restricted by at the end of the statute. [00:03:45] Speaker 02: So let me ask you a question. [00:03:48] Speaker 02: You read B as being a complete sentence, which means that you think there has to be a deemed election, i.e. [00:03:57] Speaker 02: the former spouse has to have submitted a written something, the court order, right, or the divorce agreement. [00:04:06] Speaker 02: What are the two things? [00:04:07] Speaker 02: It's a court order. [00:04:08] Speaker 04: There has to be a court order or separation agreement. [00:04:10] Speaker 04: Right. [00:04:11] Speaker 02: And it had to have been submitted [00:04:13] Speaker 02: in a timely manner as required by 1450 F3, which I think is within a year of the agreement. [00:04:19] Speaker 02: Is that right? [00:04:19] Speaker 02: Yes, sure. [00:04:20] Speaker 02: OK. [00:04:21] Speaker 02: Now, your view is that submission is required within a year was an express choice that Congress made, because otherwise, the secretary could really be in a pickle, couldn't they? [00:04:31] Speaker 02: I mean, couldn't you end up with [00:04:33] Speaker 02: If it didn't require, like how in the world is the VA supposed to know that there might be some spousal agreement hanging out there from some state court endorsed or whatever. [00:04:43] Speaker 02: And if they don't know about it in a timely fashion, and Congress decided that timely fashion was within a year of when it's ordered, then what they might do is pay out the current spouse when in fact they should have paid out the former spouse, but they didn't know, and you know how hard it is to claw back money for people, right? [00:04:59] Speaker 02: Really hard to claw back money. [00:05:01] Speaker 02: So do you think maybe Congress did this quite intentionally to ensure that the VA knows in advance who it's supposed to pay the money to before they pay it out? [00:05:10] Speaker 04: Absolutely. [00:05:11] Speaker 04: Absolutely. [00:05:11] Speaker 04: And I think it goes beyond that, just that the VA knows and the DOD knows, is that the service member's spouse knows. [00:05:19] Speaker 04: Everyone knows. [00:05:19] Speaker 04: Everyone's on notice. [00:05:20] Speaker 04: Because one of the things that's also clear in 1448, if you read the whole statute, is the amount of times it makes [00:05:27] Speaker 04: clear we want current spouses to have notice. [00:05:30] Speaker 04: If a service member elects a former spouse or elects someone else or elects not to participate, the current spouse has to be notified. [00:05:38] Speaker 04: If he elects a former spouse, the current spouse has to be notified. [00:05:41] Speaker 04: This is another provision that I think is a very clearly crafted statutory scheme that Congress wanted to make sure former spouses could receive this as a part of the state divorce decree, but put a very important restriction on that, that that has to be done within a specific time [00:05:57] Speaker 04: So it's a part of the record so that we don't end up in this exact scenario, where a current spouse dies, or a current service member dies, and his spouse finds out for the first time that there had never been an election. [00:06:09] Speaker 04: He knew at least in 2002 that there hadn't been an election of these benefits. [00:06:14] Speaker 04: And all of a sudden, this very important annuity type of life insurance doesn't go to the service member who thought that that's what he would be leaving. [00:06:23] Speaker 01: I would like to believe that Congress was being that clear, but I'm struggling with the may not pay. [00:06:30] Speaker 01: in A, how do you square that Congress clearly anticipated this situation and clearly intended for the current spouse to receive the money if the former spouse didn't within a year do what she had to do with Congress's language, which seems pretty clear to me that if a member described in paragraph one, we all agree we have such a member, right? [00:06:54] Speaker 00: Yes. [00:06:54] Speaker 01: Okay. [00:06:55] Speaker 01: Is required under a court order to provide an annuity to a former spouse upon becoming eligible. [00:07:01] Speaker 01: We all agree that happened here, right? [00:07:03] Speaker 01: that's applicable here, that Major General Bannister was required to select his former spouse, correct? [00:07:12] Speaker 04: I'll accept that I have a caveat on that, that state law, Georgia state law, and this is a Georgia divorce, but Georgia state law also recognizes that you must comply with the deemed election provision. [00:07:23] Speaker 04: So if I further just start by putting a caveat on that. [00:07:26] Speaker 01: But there is a Georgia court order. [00:07:28] Speaker 01: that he provide the annuity to his former spouse upon becoming eligible. [00:07:32] Speaker 04: There was a court order, yes. [00:07:37] Speaker 01: The secretary, in that circumstance, may not pay an annuity under paragraph one or two. [00:07:43] Speaker 01: And paragraph one or two are the only way that Ms. [00:07:46] Speaker 01: Bannister becomes eligible for this. [00:07:48] Speaker 01: But Your Honor, it goes on to say... I understand what it goes on to say, but what I've said so far is correct. [00:07:56] Speaker 01: She only can become eligible under paragraph one or two, right? [00:08:02] Speaker 01: That is your client. [00:08:04] Speaker 01: She becomes eligible under paragraph one or two, if at all, the one or two that are referred to in 3A. [00:08:11] Speaker 04: the Sorry, I'm trying to understand I you know the the current spells my client is eligible by default and so the only point that the former spell so what's what 1448 d3 is getting at is when does this not go by default to the current spells of a member who dies on active duty when I'm sorry just to be clear why is the answer that it doesn't go to the former spouse and [00:08:37] Speaker 01: under the circumstances here, where Congress said clearly, I don't know why, but they clearly said that the Secretary may not pay an annuity to the current spouse in this circumstance. [00:08:49] Speaker 04: But with respect to the statute, I don't think that's what Congress said. [00:08:52] Speaker 04: Because I think you cannot parse the statute and put a period at the end of 3A. [00:09:00] Speaker 04: It goes on. [00:09:01] Speaker 04: It's a single statutory requirement. [00:09:02] Speaker 01: But it doesn't go on and say, [00:09:06] Speaker 01: And if the conditions of B are not met by the former spouse, then go back to the current spouse. [00:09:14] Speaker 01: It doesn't expressly say that. [00:09:16] Speaker 01: So how can we read it that way? [00:09:18] Speaker 04: Well, I think that's the clear logic of the statute. [00:09:20] Speaker 04: The logic of 1448D3 is when do you not pay the current spouse is if the former spouse qualifies. [00:09:30] Speaker 04: And the logic of, if you read the whole statute of provision, paragraph three, in total, and together, it has to be interpreted together, you have to fulfill all of D3 in order for it not to go by default to the current spouse. [00:09:45] Speaker 02: And so I don't think you could- Because one says shall pay, right? [00:09:47] Speaker 02: D1 says shall pay to the current spouse. [00:09:51] Speaker 02: Shall. [00:09:51] Speaker 02: Not may, shall. [00:09:53] Speaker 02: And D3- You only get out of shall if you meet D3. [00:09:56] Speaker 04: Correct. [00:09:57] Speaker 04: But D, in the main point of D3A, says may. [00:10:02] Speaker 04: So if you take a distinction even under Judge Stark, what Congress language used, they were clear that D3A wasn't a prohibitory command of shall not pay. [00:10:11] Speaker 04: It even uses different language in that statute. [00:10:13] Speaker 04: And the need to when you shall pay the former spouse is if you didn't qualify. [00:10:17] Speaker 01: So you're arguing that when Congress said the secretary may not pay an annuity, it meant the secretary may or may not pay an annuity. [00:10:24] Speaker 04: My argument is that when Congress made that, A is a qualifier. [00:10:28] Speaker 04: It may not pay if you meet B if the former spouse qualifies and gets the annuity because there was a deemed election as required under B. And let me ask a question. [00:10:39] Speaker 02: If you're not right, [00:10:40] Speaker 02: what would be the crazy ramifications of if A stood alone, if A was not tethered to B, then A would seem to unravel entirely the shell of D. Wouldn't at any time somebody had a previous marriage, the annuity would be up for grabs, regardless of circumstances. [00:10:56] Speaker 02: If 3A stood alone, that just because there's a former spouse, Congress may not pay it to the current spouse, all hell breaks loose. [00:11:06] Speaker 04: Exactly. [00:11:08] Speaker 04: I can't underplay the landmine that this creates for military family law. [00:11:13] Speaker 04: Because who knows how many spouses, former spouses, may be out there, may have not submitted stuff. [00:11:19] Speaker 04: And the service doesn't know. [00:11:21] Speaker 04: The current spouses don't know. [00:11:22] Speaker 04: It departs from what Congress clearly intended by the statute in the language of the statute. [00:11:27] Speaker 02: I'm going to take issue with the who knows how many former spouses might be out there. [00:11:30] Speaker 02: I mean, I guess the guy's dead. [00:11:32] Speaker 02: Since we're only talking about a dead person, really, maybe it's possible. [00:11:37] Speaker 04: What I mean, Your Honor, is who knows how many former spouses of various service members. [00:11:41] Speaker 04: This goes beyond this case. [00:11:42] Speaker 04: This is a very important issue of Military Family Hall that goes far beyond this case, goes far beyond here a family, a general, a widow who's very sophisticated in that regard. [00:11:54] Speaker 04: And this is the landmine that people who are service members who aren't sophisticated [00:11:58] Speaker 04: Those families are going to be purged by the court of federal claims decision below. [00:12:03] Speaker 04: If I can make one other point that I think you could even, don't have to get to D, is that here, D presumes or has not been an election made. [00:12:13] Speaker 04: And so this is the default that applies if an election has been made of the current spouse or if the election has been of the former. [00:12:19] Speaker 02: Don't even go there. [00:12:20] Speaker 02: The other argument you're about to make is a bad one. [00:12:22] Speaker 02: Just don't even bother. [00:12:24] Speaker 02: Save the rest of your time for a vote. [00:12:26] Speaker 02: I'll save my time. [00:12:27] Speaker 02: Thank you. [00:12:37] Speaker 02: Mr. is it Angulo? [00:12:39] Speaker 02: Angulo? [00:12:39] Speaker 02: Angulo? [00:12:40] Speaker 02: Yes, Your Honor. [00:12:41] Speaker 02: Thank you. [00:12:41] Speaker 02: Mr. Angulo, please proceed. [00:12:43] Speaker 03: Good morning, Your Honors. [00:12:44] Speaker 03: May it please the court. [00:12:45] Speaker 03: Because the relevant statute states unequivocally that the government may not pay an annuity to Lieutenant Colonel Bannister, this court should affirm the decision of the trial court. [00:12:55] Speaker 02: Wait, why does it say it may not pay? [00:12:57] Speaker 02: What are you talking about? [00:12:59] Speaker 03: So under 1448D, [00:13:01] Speaker 02: Do you agree that D1 has an automatic presumption that it will go to the current spouse, just D1 standing alone? [00:13:11] Speaker 03: The default is that it goes to the surviving spouse, yes Your Honor. [00:13:14] Speaker 02: So D1 shall be paid to the surviving spouse, so the only way it doesn't go to the surviving spouse is if D3 kicks in, is that correct? [00:13:21] Speaker 02: For the purposes of this case, Your Honor, that's correct. [00:13:24] Speaker 03: And that exception is made explicit in the first four or five words of D1A, which states accept as provided in paragraph 2B. [00:13:34] Speaker 03: That's a Scrivener's error, a typographical error that both parties recognize that should say paragraph 3B. [00:13:42] Speaker 03: And unfortunately, Congress hasn't corrected that. [00:13:45] Speaker 02: So the only way it doesn't go to the surviving spouse is if 3B applies. [00:13:50] Speaker 02: That's it. [00:13:50] Speaker 02: The only way is if 3B applies, correct? [00:13:53] Speaker 02: No, Your Honor, if D3 applies. [00:13:55] Speaker 02: That's what I meant. [00:13:57] Speaker 02: D3B. [00:14:00] Speaker 03: No, Your Honor, just D3. [00:14:02] Speaker 02: Wait, no. [00:14:03] Speaker 02: You said accept as provided in paragraph 2B should be 3B, right? [00:14:07] Speaker 02: So it's accept as provided in paragraph 3B. [00:14:10] Speaker 02: That's what you said. [00:14:11] Speaker 02: You said everyone in this case agrees the Scribner's error is that it's not 2B, it's 3B. [00:14:16] Speaker 03: That's right. [00:14:17] Speaker 02: OK. [00:14:18] Speaker 02: So it goes to the surviving spouse unless 3B applies. [00:14:22] Speaker 03: That's right, Your Honor. [00:14:23] Speaker 03: But we also look at 3A, which, as Judge Stark pointed out, states in very clear language that this may not be paid to the surviving spouse. [00:14:35] Speaker 03: That's described in paragraph one. [00:14:37] Speaker 00: But then it says but and moves on to B. Is B complied with here? [00:14:44] Speaker 03: Oh, yes, Your Honor. [00:14:46] Speaker 03: Our position is that it is complied here. [00:14:47] Speaker 03: We look at the preparatory language of D3. [00:14:51] Speaker 03: And D3 applies when we have a member described in paragraph one. [00:14:55] Speaker 03: And as we all recognize, we have a member described in paragraph one. [00:14:59] Speaker 03: And then it moves on to say that it is required under a court order [00:15:02] Speaker 03: or spousal agreement to provide an annuity to a former spouse. [00:15:06] Speaker 03: And that's exactly what we have here. [00:15:08] Speaker 03: We have a service member who was acquired under a court order to provide annuity for former spouse. [00:15:15] Speaker 02: But do you agree with that? [00:15:16] Speaker 02: I want you to answer Judge Laurie's question. [00:15:17] Speaker 02: I don't want you to read me the preparatory language in three, which is not within B. [00:15:22] Speaker 02: Judge Laurie asked you specifically, does 3B apply here? [00:15:26] Speaker 02: So tell me in the language, look at the language of 3B and tell me how that applies here. [00:15:30] Speaker 03: Right, and I was going to move on to say that the language that immediately begins in D3B is that under those circumstances that are described in the preparatory language of D3, the secretary, quote, shall pay an annuity to that former spouse [00:15:44] Speaker 03: as if the member had been a participant in the plan. [00:15:48] Speaker 03: End quote. [00:15:48] Speaker 03: So even if they hadn't made the election that they had agreed to make in the spousal agreement and divorce decree, even if they didn't do that, we treat it as if they had done so and made the election. [00:15:58] Speaker 02: Yes, but under certain circumstances. [00:16:00] Speaker 02: And what are the three B circumstances? [00:16:02] Speaker 03: Well, D3, as we state in our response brief... 3B. [00:16:06] Speaker 02: I want you to focus on 3B. [00:16:07] Speaker 02: What are the 3B circumstances? [00:16:09] Speaker 03: So, as we state in our response brief, there are three kind of different routes that we look at when determining whether the former spouse gets the annuity. [00:16:17] Speaker 03: One is if the service member has, if there's a court order requiring them, in that case they shall pay it to the former spouse. [00:16:27] Speaker 03: Number two is if they made that election, if the service member made that former spouse election, then of course we honor that and give it to the former spouse. [00:16:35] Speaker 03: And then the third alternative is the everything after that or clause in D3B, which states or in accordance with that election, as the case may be, if they receive that. [00:16:44] Speaker 00: There wasn't an election, was there? [00:16:45] Speaker 03: In this case there wasn't that one year election. [00:16:48] Speaker 00: But he says as if there had been. [00:16:51] Speaker 03: That's right. [00:16:52] Speaker 03: So even though the service member in this case didn't do what he had agreed to do 20 years ago, the government will treat it as if there had been such election. [00:17:03] Speaker 03: And in that case, the former spouse gets the annuity. [00:17:07] Speaker 01: Why should the last clause of 3B requiring the former spouse to provide the decree or the court order to the secretary within one year of the date of that order? [00:17:20] Speaker 01: Why should we not read that as modifying all of 3B? [00:17:25] Speaker 01: You need us to sever it off and only apply in like limited circumstances. [00:17:30] Speaker 01: Why isn't the more natural reading that it modifies all of 3D? [00:17:35] Speaker 03: Well, it's another layer. [00:17:38] Speaker 03: If we look at the history of Congress trying to kind of balance the tension between surviving spouses and former spouses, and we look at the Uniform Service Former Spouse Protection Act, we see Congress providing just one other instance of protecting interests of former spouse. [00:17:57] Speaker 03: And so it's just clarifying that [00:17:59] Speaker 03: If there is a deemed election, we will also respect that deemed election that's made within one year. [00:18:04] Speaker 03: But that is not required. [00:18:06] Speaker 03: That one year deemed election is not required under the statute, because if there is this divorce decree, which there was in this case, they're going to treat the former spouse as if the service member had done what he had agreed to do through that spousal agreement and divorce decree. [00:18:24] Speaker 00: Let's look at the fourth line of B. [00:18:27] Speaker 00: If the secretary receives a written request from the former spouse concerned that the election was deemed to have been made, did that occur? [00:18:37] Speaker 03: No, Your Honor. [00:18:38] Speaker 03: Mr. Erickson did not make that one-year deemed election. [00:18:40] Speaker 03: So does that officiate all of B? [00:18:42] Speaker 03: No, Your Honor, it doesn't. [00:18:44] Speaker 03: And hence, A? [00:18:46] Speaker 03: No, well certainly not A. I'm sorry when I cut you off. [00:18:50] Speaker 00: Or does A stand alone? [00:18:51] Speaker 03: A stands alone. [00:18:52] Speaker 03: I think there's two responses to that. [00:18:54] Speaker 03: It doesn't vitiate B, for reasons all explained in a minute, but it certainly doesn't vitiate A. We look at A, it states plain as A that the Secretary [00:19:03] Speaker 03: may not pay an annuity under paragraph one, colon, but... Okay, wait, wait. [00:19:09] Speaker 02: So the secretary may not provide an annuity under paragraph one or two. [00:19:13] Speaker 02: You think that gives the secretary unfettered discretion to just choose not to pay? [00:19:18] Speaker 03: Well, the language states that the secretary may not pay that annuity. [00:19:24] Speaker 03: For any reason? [00:19:25] Speaker 03: but uh... as the trial court down below that that is dispositive of for any reason the secretary could decide i'm not going to pay it well the reason is provided here in the statute that uh... [00:19:38] Speaker 03: In order to receive a government entitlement, it needs to be authorized by statute. [00:19:43] Speaker 03: And here, the statute that the appellant in this case is relying upon says that the secretary may not pay the annuity. [00:19:50] Speaker 02: No. [00:19:51] Speaker 02: In D1, it says shall pay, right? [00:19:53] Speaker 02: The current spouse is the default recipient. [00:19:57] Speaker 02: I don't know what to make of that may pay thing in 3B or 3A, but it sure can't unravel D1 that sets out the automatic payment to a current spouse. [00:20:08] Speaker 03: Well, so I understand Appellant's position to be that the trial court's opinion can create this absurd circumstance where no one gets paid. [00:20:20] Speaker 03: But our position would be it's actually Appellant's position that creates this absurd circumstance where the government would be paying an annuity under a circumstance where the statute says that the annuity may not be paid. [00:20:34] Speaker 02: I don't understand. [00:20:37] Speaker 02: they're going to be paid. [00:20:38] Speaker 02: How is that absurd? [00:20:39] Speaker 02: The statute says must pay, shall pay to the existing spouse. [00:20:44] Speaker 02: Then there's this weird May language later on, which I don't understand. [00:20:50] Speaker 02: You're saying give them the authority to not pay for any reason at all? [00:20:54] Speaker 03: Well, it says that if in these circumstances in Dakota, their point about a landmine, this is not a landmine of situations. [00:21:03] Speaker 03: This is when [00:21:04] Speaker 03: a service member agrees through divorce to pay somebody. [00:21:07] Speaker 03: In those situations, if they don't honor that agreement, the government may not pay to the surviving spouse. [00:21:14] Speaker 02: But do you not see the landmine that I think exists? [00:21:17] Speaker 02: I think that Congress put this if clause in here. [00:21:20] Speaker 02: And I think you should be standing here agreeing with me. [00:21:23] Speaker 02: Because if you're not, I mean, I don't know how often, I mean, you're so young. [00:21:28] Speaker 02: Maybe you haven't seen a lot of these cases. [00:21:29] Speaker 02: I've seen a lot of these cases where the government inaccurately pays to someone. [00:21:33] Speaker 02: How many of those cases do you think the government recoups the money? [00:21:36] Speaker 02: Not often. [00:21:37] Speaker 02: Not often. [00:21:38] Speaker 02: And so I think the if clause is because the government, who is going to pay out annuity as soon as a veteran dies, they pay it. [00:21:45] Speaker 02: This is one of the few things they do really promptly, actually. [00:21:48] Speaker 02: And they pay it out really quick. [00:21:50] Speaker 02: And the default is they pay it to the surviving spouse. [00:21:53] Speaker 02: So I think Congress had immense wisdom when they said, and that's going to happen unless the former spouse [00:22:00] Speaker 02: which might have some court order from a state court marital settlement agreement that there's no way the VA could ever know about, has actually filed that agreement in a timely fashion with the VA. [00:22:12] Speaker 02: Because if not, how is the VA supposed to know to hold up the payment to the current spouse? [00:22:19] Speaker 02: I think that this was one of the wisest things that Congress could have done to ensure that widows get money promptly and the right widow gets the money promptly. [00:22:29] Speaker 02: So where I think the landmine is, is in the government's view that that if clause doesn't actually create any burden at all on the former spouse to timely notify the VA of her entitlement. [00:22:43] Speaker 02: I think this provision is really wise when read the way they're arguing it should be read, when read the way I just explained it. [00:22:50] Speaker 02: And that's the landmine that I see in your construction, is that I think you're going to put the VA in a terrible position. [00:22:59] Speaker 03: Well, if the service member here had survived into retirement and that deemed election was required under law and she failed to do, then we would look at that one year period and say that the former spouse failed to do so. [00:23:16] Speaker 03: But the language that we see here may not pay an annuity under paragraph 1. [00:23:20] Speaker 03: That doesn't appear in 1450 F3, which is what we look at if the service member becomes a participant [00:23:27] Speaker 03: And in that case, we're determining whether the default rules for spousal coverage apply or not. [00:23:33] Speaker 03: So that language may not pay an annuity under paragraph 1, doesn't appear in 1450 F3. [00:23:39] Speaker 03: But it appears in this provision, which plainly applies to service members who die while on active duty. [00:23:45] Speaker 02: I know. [00:23:45] Speaker 02: One of the problems is the first thing you did when you stood up and talked about the scrivener's error is kind of give that away. [00:23:49] Speaker 02: I don't think it actually [00:23:50] Speaker 02: Carries the water you'd like it to carry anyway But you stood here a minute ago and said everyone agrees to be is a typo and it should be 3b So what D1 says is except is provided in paragraph 3b the secretary shall pay an annuity to the surviving spouse So I'm not sure what that broad may language is in a but you stood up here And you said everyone agrees with the Scribner's error and that the only exception to the current spouse getting it is if 3b is met [00:24:18] Speaker 03: In that case, Your Honor, I guess the absurdity would be the concern that we're reading the statute to say that they must pay and they also may not pay in the same instance. [00:24:30] Speaker 02: Well, I don't think so, because I think the may not pay in A is tethered to B. I don't think A was separate from B under D3. [00:24:36] Speaker 02: And I think B says may not pay it to that first spouse if these conditions we've articulated in B are met. [00:24:43] Speaker 03: And so I think looking at the entitlement to Ms. [00:24:47] Speaker 03: Erickson, the former spouse, does raise some interesting issues of syntax and grammar. [00:24:53] Speaker 03: But I think it's much clearer as to- I want to be clear. [00:24:57] Speaker 02: I feel really bad for the former spouse. [00:24:58] Speaker 02: Under the divorce decree, she was supposed to get this money. [00:25:01] Speaker 02: She was. [00:25:02] Speaker 02: But we've got that King case, by the way, that says the federal rules trump a state divorce degree in less [00:25:09] Speaker 02: She filed it with the VA, which she didn't. [00:25:13] Speaker 02: And that's the King case that already exists in state law. [00:25:17] Speaker 02: So I feel bad for that former spouse. [00:25:19] Speaker 02: I really don't understand the government's position in this case. [00:25:22] Speaker 02: Because if I were to affirm the rule you want, the VA is going to be, how in the world are they supposed to know [00:25:30] Speaker 02: When these private divorce agreements are made in all of the different states in the country, with all of the different service members, the reason for the one year you must file this degree, the spouse must, is to put the VA on notice so they don't pay this money out to the current spouse, which they're going to do quickly, which they're really good about. [00:25:51] Speaker 02: And then they've got to try and claw it back afterwards. [00:25:53] Speaker 02: So why in the world do you want me to adopt the construction you're arguing for? [00:25:58] Speaker 02: I understand why. [00:25:59] Speaker 02: In this case, the equity favors the first wife. [00:26:03] Speaker 02: I get that. [00:26:04] Speaker 02: But in the scheme that the VA has to apply, the construction that I think is the correct one sure does seem like it's going to help the system a heck of a lot more than the construction you're arguing for. [00:26:16] Speaker 03: And we're taking this position, Your Honor, not because of some programmatic benefit, but because of the clear language that the statute requires this position. [00:26:24] Speaker 03: Subsection A stands alone as Judge Stark [00:26:29] Speaker 03: suggested, it's set off by a semicolon, not a simple comma. [00:26:34] Speaker 03: And then it goes on to say, but. [00:26:36] Speaker 00: But it's followed by a but. [00:26:39] Speaker 00: And the but cause isn't met because of the if. [00:26:43] Speaker 00: Isn't that right? [00:26:44] Speaker 03: Well, that's certainly appellant's position. [00:26:47] Speaker 03: But that's not the government's position. [00:26:49] Speaker 03: And that's not the position of the trial court below. [00:26:52] Speaker 00: But we're listening to positions. [00:26:53] Speaker 00: But we've got to interpret the statute. [00:27:00] Speaker 00: followed by a but, and B is followed by an if, which doesn't apply, which isn't met. [00:27:10] Speaker 03: So again, that is appellant's position. [00:27:14] Speaker 03: But we would, as we have, strenuously contest the position that the if clause, which feels very much like a few good men. [00:27:21] Speaker 02: Go for it. [00:27:23] Speaker 03: At the very end would go back to modify that be clause, which again stands on its own and stands apart with not a comma, but a semicolon. [00:27:33] Speaker 01: Do you deny, though, that your interpretation, which is the Court of Federal Claims' interpretation, [00:27:38] Speaker 01: could lead to circumstances, possibly including here, where neither the current spouse or the former spouse are eligible to receive these benefits. [00:27:46] Speaker 03: Well, it wouldn't here because Ms. [00:27:48] Speaker 03: Erickson is simply left in the state that she was receiving the annuity. [00:27:52] Speaker 03: But in the future, potentially, and I'm not sure, and I know I see him out of time, I'm not sure that is as absurd as Appellant suggests. [00:28:01] Speaker 01: But it is a result that is implied by the government's interpretation. [00:28:06] Speaker 01: Well, by appellant's interpretation... No, by your interpretation, there will be circumstances where if the former spouse doesn't file the court decree within a year, but all these other circumstances apply, then the result will be that neither the current spouse is eligible because 3A, I still think fairly clearly says, may not pay an annuity, so the secretary may not pay it to the current spouse, but yet [00:28:32] Speaker 01: The former spouse didn't do what she had to do or he had to do under 3B. [00:28:37] Speaker 01: So the secretary shall not pay them either. [00:28:40] Speaker 03: No, Your Honor, because under 3B, the former spouse is entitled because we pay it to her as if the member had made the election. [00:28:48] Speaker 03: So it's a balanced position that's actually leading to that absurdity, not the government's position. [00:28:52] Speaker 03: Thank you, Your Honor. [00:28:53] Speaker 03: I would ask that you affirm the lower court's decision. [00:28:55] Speaker 03: Thank you. [00:29:02] Speaker 04: I'd like to start with the government's interpretation of 3B, that there are three separate routes for the former spouse to be entitled to the benefit, that there's a court order, service member elects, or I think as the government phrased it, everything after the ORA clause. [00:29:20] Speaker 04: That reading, there's no [00:29:23] Speaker 04: basically render superfluous the if clause because if there's a court order that under the government's interpretation that court order alone is enough no matter what happens whether it's ever been provided to the secretary or not then there's no reason for 1450 f3 at the very end of the statute because the court order controls. [00:29:42] Speaker 00: But the if clause doesn't come into play unless the but clause brings B in [00:29:49] Speaker 00: It means that A isn't absolute, standing alone by itself. [00:29:58] Speaker 00: Does A stand by itself? [00:30:03] Speaker 00: No. [00:30:03] Speaker 00: Does B bring in, but BUT brings in B, which has the IF clause, which isn't met. [00:30:13] Speaker 00: Right. [00:30:13] Speaker 00: That's your point. [00:30:14] Speaker 04: Right. [00:30:14] Speaker 04: The BUT brings in the final statement. [00:30:16] Speaker 04: So the preparatory language of D3, [00:30:20] Speaker 04: If we're in this world, [00:30:22] Speaker 04: Then it goes into A, then you would not pay the current spouse, but you would pay, you shall pay the former spouse if you meet these, there's been a compliance. [00:30:32] Speaker 04: And so it's, if you think of a decision matrix, you have to go through this statute, you have to go through all elements of three, paragraph D3 in order to meet it. [00:30:44] Speaker 04: Because as counsel acknowledged and Judge Moore's question, Chief Judge Moore's questions went to as well, [00:30:50] Speaker 04: we have D1 and that the default is that the current spouse shall get this annuity and then this is the exception to that default and that's where there has to be compliance. [00:31:05] Speaker 04: It has to be compliance because that notice and providing that court order to the service, to the VA is so important to make sure everyone is on notice of what the requirements are and that no one ends up without these benefits. [00:31:20] Speaker 04: I think it's clear. [00:31:26] Speaker 04: I understand your honor's point. [00:31:28] Speaker 04: I think it's carefully worded language is what I would say. [00:31:31] Speaker 04: It's a little convoluted, but I think Congress was trying to be very careful with this. [00:31:36] Speaker 04: to make sure that, because if you go back, and the court doesn't need to rely on legislative history, but if you go back and look at the reason Congress enacted this, it's very clear. [00:31:45] Speaker 04: They were so worried about servicemembers ending up. [00:31:47] Speaker 00: One needs a GPS here, a Waze. [00:31:50] Speaker 00: Fair enough, Your Honor. [00:31:52] Speaker 04: Fair enough. [00:31:52] Speaker 00: To go through the maze. [00:31:54] Speaker 04: So thank you, Your Honor. [00:31:56] Speaker 04: Unless you have questions, we ask that you reverse this. [00:32:00] Speaker 02: Thank both counsels. [00:32:00] Speaker 02: This case is taken under submission.