five four g that section makes it unlawful for a planned plan administrator to decrease eliminate or reduce a crude benefit that the district court below found that this kind of claim was one that required exhaustion of administrative remedies and we submit that that was incorrect under the law that even this circuit now seems to accept that says that only claims that for benefits are subject to the judge made it for partment of exhaustion of administrative remedies aren't these for benefits this is not all your client is interested in right this is not a claim for benefit because of benefits because the crux of the claim is about the violation of the n t cut back provision and the violation of the antic provision of your client in only one way any entity cut back something and that's reducing the benefit that's the nature of an anti cutback claim or inherently however it is a right that derives from the statute not from the terms of the plan and in fact every court that has looked at the issue so far has found that an anti cutback claim like the kind mr mcculloch is asserting here is a statutory claim and therefore not subject to the requirement that administrative remedies be exhausted that's a sensible ruling when you consider the reasons why the exhaustion of the administrative remedies doctrine exists the purpose of that doctrine is to allow the question of whether x person is entitled to benefits be they pension benefits or health benefits or disability benefits which is determined by what the plan says to be decided by the people who are experts in the plan on the other hand it doesn't plan to have an amendment that says you don't read the amendment is what is necessary to state an anti cut back plate and he cut back flames are raw yes when there is a benefit that exists to which the participant or beneficiaries untitled and there must be an amendment to the plan that takes away that benefit for there to be  in this particular instance it's a fairly unique situation because you actually don't even have to look at any part of the plan except for amendment twelve to determine whether or not an antique of a cutback happened and the statue was violated the right in question that mr mccullough cat was a right to have his pension calculated as in a certain way that right the road was not free what the plan said by operation of law when in two thousand and eight the plan we're talking about became a multi employer plan under arrest now the statute arisa statute itself tells us what happens when a plan becomes a multiemployer plan and one of the most important things it tells us  for all purposes under a risk and under the internal revenue code well that's pretty clear what congress intended it's weird that there that clear for us all purposes means all purposes and therefore the money it was converted to a multi employer plan the right to have his pension calculated in a particular way without angra geisha of his benefits under section four fifteen of the internal revenue code kicked in is a matter of law and when it kick in what did the law say the law said  that multi employer plans are not sub benefits under most employers plans are not subject to aggregation i didn't say that the plan may not adopt a no aggregation i'm in that section of the internal revenue code does not that isn't dressed by a recess which says that the plans that scan must effectuate interpret and adopt amendments to the plan that are in keeping with the arisa statute therefore because the conversion to a multi employer plan under research incorporates by reference the internal revenue code arista itself says that the plan can't do something contrary to what the internal revenue code says about multiemployer plans or what a recess says about multiemployer plans are you saying that a multi employer plan can do no circumstances prevent say regulation of the i r s concerning multiemployer plans or and arista regulation or similar or something statutory if the law changed to be able to consider internal revenue code and the internal revenue code says that multiemployer plans are not subject to aggregation so unless the statute or the operating regulations carve something out no all right the all purpose is under the act and under the internal revenue code is found in twenty nine a u s c section one thousand to thirty seven g two and we write a special appendix all right my parentheses that means an election to become a multi employer plan correct yes and that is what the plan here did write an election under this paragraph shall be effective for all purposes under this chapter and under the internal revenue code of nine hundred eighty six starting with any plan year beginning on or after january one thousand nine hundred ninety nine that center now seems to me that section provides when the election to become a multi employer plan takes effect but doesn't say that doesn't say anything more than that since it takes effect  for purposes under receipt and under the internal revenue code that is to say on a particular date this is when this collection becomes binding  when the multiemployer plan conversion would come into play ends up being meaningless when you have a conversion made after that date and the date was and therefore merely saying that the that that's has an effective date doesn't make a great deal of sense when you're dealing with plans that convert a decade or so after that effective date sure but and before january one two thousand and eight the fact remains that it doesn't say anything approaching what you say means the length which is employer plan is made that conversion is irrevocably  include the language for all purposes in the statute unless it was referencing and taking into account the statues that it references for all purposes under this act in the internal revenue to ha ve date is controlled by this paragraph it's controlled by this point paragraph for every part of a receipt that's the for all purposes under this chapter language and  conversion it's got nothing to do with internal revenue code for fifteen and even if this conversion were within the relevant time period all it does is to provide the effective date of the conversion given that multiemployer plans are treated under different rules under both wrists and the i r s code of the internal revenue code the for all purposes has to have a substantive meaning if there weren't different rules governing single you your first proposition is it's a no of yes to this conversion if you write on that then we don't have to worry about for the purpose but even if it were not in all of it because this conversion occurred within your i mean i have explained myself clearly when i said about it being a nobody what i meant was that my understanding of your interpretation of this paragraph is that it was intended only to set an effective da and only setting an effective date doesn't make sense for plans that didn't convert until a decade later so that reading which is why i say that that reading doesn't make sense given the plain language of the statue it is not i'm not saying that it's a nobody in that it doesn't apply what i'm saying is that if we only treated as an effective date then the for all purposes language starts lacks meaning and lacks purpose which is not the way a statute should be it also does not necessarily mean that the at that aggregation can't happen if something else in the i r s code or in a recession lets it happen but in this particular case with this particular plan there was nothing else on arista and nothing else in the internal revenue code that authorized the sci you plan and board to take a back the effects of the conversion to a multi that after the ruling available or are we finished there is no there is no statute there is no and mistreated remedy that specifically applies to challenges to ok may i explain that because it is something that came up after the events that went into the record mr mcculloch also was put in a letter trying to see if he could if there was an avenue for an administrative appeal if he was required to exhaust and he was told no your appeal is the not so even if if you yes and that's not right because it happened after briefs were submitted and yes but he asked a question that you needed an explanation and wants to appeal it in a claim for benefits there's a procedure in the plan that he or she must follow and what is it a very center for plan so i can't give you a global in all situations he does this but usually it is the submission of what can this claimant do never mind what can this klyce claim there is nothing in the plan that specifically applies to challenging the amendment as  you have very cleverly and appropriately given your obligation your client trying to count tried to counter this claim as something other than a claim for benefits but indeed it's a claim for benefits because what he wants at the end of the day is more money excuse me he wants more money and there's no doubt that i want more money is a claim for benefits it page nine of judge korda fees opinion he quotes section nine point zero four of the two thousand and ten version of the plan i'm assuming that that's what we're dealing with but i don't know for reviewing claims for benefits that have been denied in whole or in part any such procedure shall be subject to amendment from time to time by the trustees subject only to the requirement that it can form of the applicable prison provisions  that why isn't the case that you're either is such a claim procedure or if you file a claim for benefits when you claim there isn't such a pussy here you can ask  to provide a procedure for hearing your client's claim and make what ever arguments you wish to make to them about the bottom line here which is your client wants more money and thinks he's entitled to it under the plan and for legal reasons quite apart from the provisions of the plan and make the argument see what happens and if he loses there is then an opportunity to seek review of this nature because asking plan administrator is a fiduciaries to interpret the law as opposed to interpret the terms of the plan is contrary to the whole reason why the exhaustion remedy exists interpretation of which means in this case interpretation of the i r s code arista and specifically section two hundred four g which deals with whether something is a prohibited cutback or not is the province of judges now you're you're you're back to the merit you're saying this is not a case where exhaustion was legally required that's what you've been saying for the last two minutes and i ask you that i don't think that kaplan asked you that you were thrown out for failure to exhaust and administrative remedy yes all i want to know is is the administrative remedy that you failed to exhaust still available you know it is not and why is instance before you ever went to court you have exhausted the administrative remedy where would you have gone there is no adequate administrative rule it may not be adequate but where would you have gone even for  the denial of benefits that means that end of the hypothetical there's a place you go where the benefits are granted or denied and then there's a place another place where that denial  reversed yes but in this case because of how the claim arose there was no application for benefits that was do not he was already receiving benefits i thought you said that  claiming he was already receiving benefits when the change was made to the multiemployer plan the amendment was then enacted trying to change it back from the being a multi employer plan after the after judge card if he rendered his ruling they were trying to change it back from being a multi you plan as you put you know through your that's impossible with respect to the aggregation rules they were trying to change it back which is in fact a lawful and impossible by saying you're not subject to aggregation when the i r s code says you are so yes that was improper let's go back to the hypothetical and that would be in this instance who is it insurance company or city it depends on being firm or whatever it depends on which benefits are in question these are pension benefits and i do not recall the entire con benefits you file an appeal consistent with the procedure and it goes to the truck board of trustees because this is what you're saying and not now correct right correct and why is that and where  the record are we going to find unfortunately not in the record because it happened after the record was after the decision was made and after the record was sent and i only raised it because the question was asked why understand why and what happens now in fact what happened here  that your client who was receiving benefits from one plan one plan oh yes and soup temper of two thousand and eight responded the plan was no longer required to apply the aggregation rule and asked them to confirm that and the plan said they would consider it right direct and then in december of two thousand and eight the amendment was adopted it's another six years before he starts getting benefits under plan correct and at that point the plan that we're talking about reduced his benefit under that plan plan one in light of the abrogation took into account the money he was getting from planned to write correct and at that point certainly at that point he could have made an application for benefits for the difference between what plan one had been paying him before what plan one reduced his benefits to because of the aggregation absolutely right is not true no your honor it is not because he was already receiving benefits the question of the  reduction is a section two zero four g eight west let's put it in very simple terms he was receiving ten thousand and seventy five dollars a month from plan one on the day before he started getting benefits from plan to tr apply for benefits in the amount of ten thousand and seventy five rather than nine thousand and seven because i'm entitled to it under your plan and your amendment is inconsistent with the statute now but it says here is how these claims should be handled there is no procedure for saying your claim is that your claim is wrong you or your interpretation of the law is wrong through the to no i o and you go into the u s district court and there's no deference to the plans interpretation of the law then there you are in the district court with the benefit to the district court for whatever value it may have of the plans considered view and do novo review in the district court pub it is a departure from the way a recent cases are handled throughout every other court in the country and while it is certainly legitimate to impose that going forward saying that somehow macculloch should have in to it it that this court would take a radically different view of exhaustion of administrative remedies then the majority of other courts in the circuit and say that the statutory remedy of two hundred four g requires exhaustion it's fundamentally unfair that aren't that that's been your whole argument all morning all i'm trying to people within the administrative chain and so i'm doing my best to comply with the district court hears my claim either accepted or rejected so i can go on why can't he do that required to ask you can he do it and apparently the answer is yes because you've given me no basis for a no he can't do it he will get nothing from it but he can or i am his own now we get to the next  if you will get nothing for it is it because the trustees have already rejected his claim on the merits and they don't matter not having realized this was going to be an issue we didn't put it in the record but i have but to be truthful as an officer of the court yes it's already been rejected but we don't know that on this record no because this was not an issue ray has no basis that on this record to dispense with exhaustion because of the futility argument no we have not asserted a futility argument because we could not put in front of your honor something that was not in front of the district court thank you thank you you reserve your bu plan based claim or purely statutory aristocles the record demonstrates that mr mcculloch's claim requires the examination interpretation of the plan document and is there fore a plant based claim that is subject to arrest says mandatory exhaustion harman's i want to start here by addressing some points that were made on the appellant's case related to an a eged entitle net to the known aggregation of benefits under arrest mr mcculloch is an does not have a substantive right to the not aggregation of benefits provisions which have been expressly incorporated into the term maybe you could help me understand your concern on understanding of four fifteen and how it relates  single employer and multi employer plans and if a plan complies with those aggregation requirements or has a more restrict aggregation of private which is what happened in this case even though the plan switch to multiemployer plan status it retained the single employer aggregation rules so the these four fifteen limits are maximum benefit limits so what the i r c it's doing is it's essentially setting a ceiling for the maximum benefits in which the i r s actually approved amendment number twelve the amendment that's at issue in this case we didn't get to the to the point where the formally single employer plan forthcoming and the consequence of all of that is simply wish that by virtue of the irises approval he continues to be eligible for favorable tax treatment under by virtue of four from single employer status to multiemployer status the trustees interpreted the plan language to maintain the single employer aggregation rules despite the switch to multiplayer status and in the end it was a clarification of that interpretation what did the plan language that was his so interpreted what did you  i don't have the exact  it's joint appendix one fifty is where the plan provision that was in effect at the time not the plan switch from single employer status to multiemployer status the regular joint appendix in accordance with section fourteen fifteen as of the i r c for purposes of determining compliance with the limitations in four fifteen b of that i ever see so the trustees when they looked at that provision they looked at a number of factors first they looked at the fact that the language says that the benefits will be confined the trustees read that to mean that it was a mandatory requirement rather than permissive and that the reference to section four fifteen and a was a describe how these benefits should be calculated rather than including any exceptions that may be that's worth  have and also at the time that this plan language wasn't drafted section four fifteen of actually did not have the same multi employer carve out for the aggregation of benefits it required aggregation of benefits for  the record in this case so after the case was dismissed below mr mcculloch applied through the appeals process to the trustees and the trustees have now ruled on his case and rejected his plan interpreted his plan interpretation also spilled ink on the merits in their decision as well and again this is this all happened after the case was dismissed in the district court was there ever a time when mr mccall never received a benefit that was not aggregated so he received he was receiving for a period of never received a benefit that was not aggregated and therefore you represent his argument is that the cutback is that it should have been correct in art the should should have been disaggregated and and that's why it was cut back well it should have should not have been aggregated when he started receiving benefits from this other pension plan which was after the amendment and when he started receiving benefits from that other pension plan the benefit from from this pension at the time the court said in agreeing with you this case is dismiss what could hear then to exhaust he did what he could do at that time to exhaust which was he a filed an appeal with the trustees and then the trustees responded to that appeal and did they say it's untimely yes so they were they right yes there was you know there's a ninety day i mean this was dismissed for failure to do something which could not have been done well it could have been done at the time that his benefit was allegedly reduced by going being untimely so it's a gamble if you if you think you don't need to but you're wrong in the view of some because you will no longer have exhaustion remedy all right that's correct i mean it would be our position that every grant i mean the the fifth player takes the position that every grant of the benefit is also a denial of a benefit so if you have an issue with back at any talling by going to court no not under the plan and i haven't i haven't seen any law that says that there would be tolling as well normally when a court says you didn't exhaust so in the present context we say you didn't exhaust meaning go exhaust and they do it and then the administrative process unfolds and you either win or lose and if you lose you no longer have an exhaustion bear but you're saying a recent those who work that way i do not believe so now and mr mccullough dead go back to the trustees and again the trustees they said your view of the plan is accepting the idea you got to interpret the plan but you're just wrong then why has an exhaust and futile will be miserable it never made and if the futility futility exception to the general exhaustion requirement the plaintiff is required to both plead and prove it and mr mcauliffe simply did not do that in the district court case below i mean he has the ability now to go back to court based on the trustees new interpretation however i'm not saying that the trustees are waving their argument that their interpretation of the language is correct on at least part the fact that it was on time and yes i mean well it will i don't want to say yes that it would be futile because the at least now that he's gone through the administrative process the trustees have been given an opportunity to interpret the plan language that's relevant and to develop an administrative record about their interpretation which are the underlying goals of why exhaustion is required in the first place thank you thank you let me first apologize to the court for the fact that we did not believe that we could send the a new fact that was in front of the district court to you over the same token when i did not anticipate being interested in it maybe we should put it in front of you and do a supplemental briefing but which is just why shouldn't it be a plan in force time limits on the time to challenge benefits and of benefits are denied on the time to to appeal i mean plans have to they have to have accounting rules they have to make actuarial estimates some of these issues could involve vast sums of money and if you don't establish your right in a timely basis the on the the the accounting and actuarial sumption to the plan could be disrupted so why what what was wrong with their said as you for all the reasons that you mentioned time raise time limits are necessary however this is a fairly unique case that put mr mcculloch in what we're now finding is something of a catch twenty two position in the  complaint i will have to take a quick look at something in the record to answer that question if you can allow me that moment if you will the going to be done quickly i guess acting in good faith on the fact that there was a specific statutory section that's why i stand here this is a statutory claim but us the lawyers were betting if not the house at least the benefit on your confidence that exhaustion was not required the it was by the time you got a ruling from the district judge the ninety days have expired right it was a sound bet at the time because every single court that had looked at the issue said that no exhaustion was required for two or four g claims but it's ok if you are because it was a bet that you thought was supportable by some process there are no cases to the contrary so when you as a lawyer looking at an instance where every court that has spoken on the issue says do x y is there some is there maybe something i'm missing here is there some disadvantage even as confident as you work is one disadvantage to going to the administrators to the cross the use that that point just to be sure you don't get into what you're what you call a catch twenty two the possibility of inconsistent arguments and inconsistent results it is that you didn't have to fight on two fronts you could have said to the district judge just extend the schedule this was before the board of trustees we may win and that would move this case relax and you know we do it every day more than once but they were it was when there was a big risk to you i think perhaps and it was this you were betting the farm on this being a two or two or four g statutory claim but there is another way to view this claim and that is that it's a benefits application and you perhaps were very concerned about the fact that if you pursued the administrative route you were going to get a ruling kalish has a denial of benefits and based on an interpretation of the  plan and you might well have been concerned that the trustees interpretation of the plan against you if that's the way it turned out would have been either binding something to which a district court would be  deference and you decided and i'm not putting this in pejorative term or anything like that but used counsel perhaps decided and i might have made the same judgment myself in your shoes better off go to the district court take my chances with out a determination by the players counter this is a purely statutory claim which may be flies when it doesn't fly and my chances are better in the district court a reasonable way to view it not saying that's the way you personally view that it's a way a competent lawyer might have viewed it right your honor i feel uncomfortable answering that question because it's beginning to ask about what our strategy and thoughts i am always impressed by the never ending creativity of my colleagues and so yes i competent lawyer could have possibly foreseen being in this situation when he the even have that it happened for you or even if after that advice had been rejected and you'd gone to the trustees and they had said we're denying benefits because in our view the plan doesn't give them to pay they have written an opinion loaded with words about the interpretation of the plan could use an ad to which perhaps a district court will look at to give deference could you not have then gone to the district court and said what they did is irrelevant because this turmoil was a statutory based claim this was a statutory claim just as you're telling us today and ignored the at the ministry the proceeding altogether i submit that it would have made our taking that position difficult because we would have been immediately the trustees would have put before the court that oh look they considered this a benefits claim when it was to their advantage and we would work with a court of appeals think this is a benefit plan we're putting it before you reserving our right to go immediately to court after this proceeding with our quote statutory claim that you would have preserved rights you would have just thrown yourself on the mercy of the administrator even in so doing i believe there would there could have been risks to that that would have been a disadvantage to our client but again i'm starting to get into attorney work product which makes me somewhat uncomfortable the part of the term part of what a benefit is can include a method of calculation of the benefits yes and we put forth several such cases where a method of calculation was changed and that was considered a impermissible cutback no because a cutback is different than just a denial of benefits a cut back is taking away something that already exists and is in a crew benefit that is best cut back it is a reason for denying benefits didn't lose it is the lawfulness of amendment twelve that is being challenged and what he is seeking is not give me a thousand dollars which would be a benefits claim nor what he is se the amendments on lawful declare that it's unlawful and have my benefits calculated with the calc it with the vested calculation method it should have been calculated not a claim for benefits declare that the benefits  that the way the benefits of calculate is unlawful recalculate them and give me more money that's that's what about if we cause the test for whether or not it's unlawful is found in the statute not in the terms of the plan and reminds me of the old never somebody says it's not the money it's the money