this case boils down to a single question of contract of clan interpretation namely does the plan provide in clear an expressed terms for the the contractual besting of a right to disability retirement benefits now there are three things that are in dispute st disability retirement benefits never vest as a matter of law under the statute under a risk nd supreme court held in m and g polymers that contractual vesting something that's over and above what the statute requires is possible but only if the plan contract interpretation it singled out in that case the rule of law that in order to provide for contractual besting there must be clear and expressive language now that serves as a gatekeeper as it were that means that if there isn't clear and expressive language the other rules never come into play because the claim dies at that point and sort of counseling in your view absent what you think is clear and unambiguous language that no one can even ever resort to parole evidence that would it doesn't figure in this sort of case that's right your honor so so you have a proof you have a provision that would suggest investing but is not clear and unambiguous language and the plan sends out a notice with the plan calling it a summary plan description that specifically says you are vested if you have if you have ten years in you will qualify for disability if you meet the other requirements like social security and it can never ever go away and that's what the plan s that once again what the court said in m and g was houllier as day it must be clear and expressed for any possibility of contractual besting secondly the example and it's certainly one that we have heard the pla the the s p d can't amend can't modify the plan it's the plan document that the court that that the trustees are bound to follow but not in traditional but in traditional contract law  parole evidence is not used to amend but to explain but in this case in the absence since this is the case look requires that any contractual vesting can only be ambiguity because the door is closed by the lack of clear and express language and that's polish and i don't want to preempt you no no no no no the i mean this is in fact why do they do that well part of it is for very concrete practical reasons a plan needs to be able in order to deliver the benefits promised it needs to be protected as it were from rules of litigation don't apply so i assume as to how we determine clear and unambiguous and in the thirty six deposition  there's a question does the text under the heading how you become vested provide an accurate description of the pension plans vesting provisions and the answer was yes and then there's another question so the word vested is used in the s p d has a different meaning than non forfeit of all correct i think that's true is it your position that your clients thirty be six representatives testimony is not part of the calculus either correct your honor the reason being that in order to go to experience the governance there has to be an ambiguity but if there were an  extrinsic evidence would you say that if you've got a request for admission in the litigation do you admit that the plan is clear and unambiguous and you admitted it yes that nobody could rely on that either because that's extrinsic evidence as opposed to just the normal way litigation works its experience like in this respect your honor which is to say the question about what the s p d means or doesn't mean is other than it is outside the four corners of the plain document itself the but this wasn't this wasn't a question about what the s p d means the question that i read was does that do these words provide an accurate description of the a question as to roll joints or governance said in deed goes directly to that point what the court said is that in order to create fractu will vesting that is vesting of a benefit that isn't required by statute the intent to vest must be found in the plan documents and must be stated in clear and express one which you know we  but the other pattern can you give me one example with your interpretation one example of when the grandfather clause would actually to grandfather somebody certainly  this fund uses what's called vesting which means that for your st five years of service you can acquire you can accumulate five years of vesting service but until you hit the five year mark are all subject to being lost if you leave the industry subject to break in service rules that are explained elsewhere there's also graduated vesting that is an alternative allowed by the statute which you can start u nder the statutory scheme you can start vest three years but you do it or it's not an all or nothing proposition you do it on a graduated basis if the fund were for some reason to under using the cliff vesting system then they would under graduated besting and of course if you change the equation for a different hypothetical plan obviously the statute because this language all derives from a the statute would also allow those people in a case where fun goes from graduated to vesting people that the four year mark would have a have the right to say well i still get to hold on to that  are would provide that right the other example that i would would offer is a little as i said little or far fetched if a receipt were abolished you'd still have a plan hold on to what you had would would apply if the plan were to change its method of a group measuring vesting but in but in terms of normal retirement or disability retirement or early retirement the grandfather clause provides no rights to anybody well the grandfather clause doesn't apply in disability or early retirement it does apply to normal retirement because that's a benefit that subject vesting the grandfather cause is you could say redundant in a sense because it follows what the statute provides but nonetheless it on its own terms it does protect those are those folks who might be affected if there was a change in plans terms but that doesn't include disability retirement benefit claimants because as the language on which the pointer for laurie says that when there is a change in the method one will protect those persons who want to use the old rules to obtain a vested benefit but that is where the defend where the plaintiff's argument falters because if one simply doesn't come into play it wasn't intended for it to come into play and it doesn't come into play the only reason you're down to a minute and forty seconds if you want to save it oh i did save time on a go before provision that even if the election provision is satisfied the participant still isn't most participants in fact still wouldn't be entitled to the benefit because they have to meet another condition for eligibility and therefore none of these cases they'll apply a clear and expressed standard are political war here because we're not talking about contractual nolen forfeit ability of a benefit but even if we were applying clear and express standard my adversary very is incorrect as a matter of law that you can't look to extreme evidence when there's an ambiguity in the plan and that's made clear both in the dream were decision polymers be tackett where the supreme court extrinsic evidence even when a clear and expressed standard is the standard provide time non forfeit ability of health benefits the same is true in c h versus reason other supreme court decision where the court phil but i also want to directly turn it mr lewis's example because if you look at the plain language of the section thirteen point zero one you can see that the last the plan it's ten years then the plan with his grandfather clause has no ability to for them increase the number of years they need to take advantage of disability if they  that there should be no abuse of discretion standard applied here and i'm sort of at a loss to see how that would work in a circumstance where i mean your claim is the trust ees didn't apply the grandfather clause but you never raised the grandfather clause so putting aside the issue of whose responsibility it is i mean why shouldn't  why shouldn't the trustees have a shot at the grandfather clause in the st instance when you didn't raise it in the two appeals to the trust your cousin the grandfather clause was so i don't understand your distinction we don't have a plan administrator interpretation of thirteen or one how do we do that in the st instance well again i think it goes back to distinguishing this guy you know that there was no issue of a failure to have the plan right at the time of the appeals maybe it's not needed one way or the other whether or not you know so you did nobody on your side submitted a declaration that said we had no exercise it and our position is that they forfeited out by not complying with our present your i want to me one more point about a concession that the district court recognized the big trustees made during summary judgment briefing the district court example we had more than town has gone to say with the new that the new plan description is not eligible for disability retirement because you didn't have denying their motion for summary judgment record relief without citing authority to do so there there is none in their reply brief they cite two cases that page twenty seven that are not  correct information mr roman chuck could have and would be receiving today disability retirement benefits without changing the plan with or without the grandfather clause if the grandfather clause were not in the plan correct information by the plan representative ms bid would have been mr roman check you've got to work another one hundred and fifty hours next year and if you have questions you should see the union representative about your options and she told the appeals committee that in her opinion but knowing him he would have asked the options the correct information the appeals committee should have provided after hearing from mr roemer truck on his appeal that he would have worked another few years to  work extra couple weeks to get the benefit however the committee appeals committee misinterpreted social security regulations and concluded in correctly that security determination and they thought they were handcuffed that's wrong and it supports equitable stoppel as well as sort charges asserted in the our brief page fifty seven if may address the ambiguity is should be measured under the objective standard for reasons already discussed today there is ambiguity in the plan because it contains one thousand three hundred and one and a reasonable possible st as to the importance of allowing the trustees and indirectly the bargaining parties to set ors to deal with this issue this case is in fact the newest ra of why that's required the changes that were made in disability retirement benefits in two thousand and twelve were the result of the financial meltdown of two thousand and eight that the bargaining parties directed the trustees to take action by a certain date if they were unable to get enough from the i r s to avoid the need to cut benefits they were unable to get the relief they made the changes at the command of the bargaining parties it was and when they made those changes they did not consider the possibility of these surprise claims coming up by someone who argues that  entitled to rights of the grandfather clause and secondly going back to what the supreme court said in m and g it did and there was a split between the the majority in the concurrence but the majority which had five votes held that the clear and expressed standard applies they also found other grounds to draw on that was necessary to get the four to concur same thing happened with the per mr roman shuffle wanted to go back to work at goals and skills and consistently rejected him it's doubtful that a different interpretation of if he had been told correctly you need twenty years it's doubtful that he would have been able to make the one hundred and fifty hours because wouldn't give him the accommodations he says he does for ask for them they reject as and the more fundamental problem with the claim is of course it's six to substitute ten for it he's asking for the court to give him ten years instead of twenty that simply can't be done the th circuit again returns to the then we think it would be appropriate to do that if the court were to obviously we're arguing for a different result on appeal but we have no objection to remand to the to the trust time to time that is to say it's not the same board that it was two or three years ago i don't have the authority to speak for them on that point i mean that i think would how they would decide the issue when it was put before them if  in effect reopening for a rd time the appeal process counsel to the trustees have the authority to award benefits based on some sort of a stop erotically the trustees could say yeah abstract the grandfather clause doesn't apply a given the facts as we find them to be we're still going to a word disability benefits to this one individual even if that one benefit others in the putative class that's certainly possible your honor i mean i will put it this way that i don't want to since i