transit authority and i get my frequent listener card for this case since i was on the first rest of their lives these people had worked for thirty years starting in the seventy's and this was part of their promise by their private employer nasi i'm going to address what we believe should be the correct test to address the instrument it's argument if if we can go past i want to go past r t a it goes i agree with your honor i believe that r t a should be done in mine addressed because it isn't maintained for its employees and i still being the employer has to also be the maintainer no that's not not you want to just get right to the instrumentality question and convince us that alley is inconsistent with rose but we should fall usually paul allen of justice ginsburg because justice ginsburg focused on the governmental employment relations look at the facts and draw are right it was a japanese company that had its day in the ambulance company that was just regulated generally that you could just say is factually so dissimilar that's in the private world whereas here apply the rose factors in this is highly government and actually i think we are similar to mcgraw the the parent company was eighty management services company name was a transit management firm from chicago illinois that color decision actually is different because those employees were employees of a political subdivision it goes up and saying it's good subdivision and it's its employees if you read it carefully it goes up and talks about it that which is electrical company now part of the entity they put in their time they worked hard they were tyreese and just because years later somebody does something they did they say well now you're a governmental employee but they're not  a real life focus on ok those here if you can let me ask you this on the question of which test we use alley or revenue ruling would you agree there is already a circuit split on that so we would not be creating one regardless of which test we pick you know two thousand and twelve that doesn't stop person two thousand and twelve can abrogate they can't hear vested place we are in denial of benefits it starts in two thousand and six and goes it goes to the present so you've got to lease a six year period roll or roughly six year not so how could they ever went under how could you ever win over the others i haven't story considering all of my options that are and then your honor i have because it's very clear that this court should service and the whole list of things that goes with being i mean i used to be a state employee when i was a state district judge so there's a whole panoply of benefits and detriments if you will of being a state employee and these guys get men and women i  getting none of those benefits ok so how can we really say you're employee of a government of any kind agency instrumentality anything else when you're not entitled to a lick of benefits for that that just seems programs that get state or federal funding that doesn't turn those employees into employees of an agency or instrumentality i'm not questioning the problems that katrina cost in the least what i'm saying is how can we view these people as employees of an agency or instrumentality of state where they were in no way treated as such in any way similar to other state employees i disagree your honor that they were not treated as plan concept as sort of this is analogous to an insurance company exclusion in a policy so in a policy you have coverage and then you have exclusion from coverage and so i think their argument is here you have a plan and then you have sort of an exclusion from theorist's a program and therefore it's an affirmative defense on you and therefore it might matter whether you meet their original terms of a plan which this seems to this seems to me the original terms of a plan but for with you're wrong about whether it's for the we were at addressing this point we were addressing whether this is a question of subject matter jurisdiction or twelve b six type motion to dismiss we were not addressing who has the burden of proof on governmental second as to the point about you but the law of the united states can have things plaintiffs have to prove and things defendants make these defenses i mean to me that doesn't answer the question of whether this is an affirmative defense or to a governmental player that's exactly what happened in the hunt tower except it was the opposite it started as a government plan and became a nurse a player that's why the statute reads this way and then the other issue that when there's and she need to focus on is well somehow their rights are to being taken away their rights are being transformed instead of a federally based maws interrupt you know i just stayed ownership what's your best record site for that and then statutory authority as a twenty zero six of k state ownership my record cited for that is one dash seventy two on march seventeenth nineteen the three a long time ago before the nineteen e three benefits agreement w all in two thousand and six in two thousand and four tensile was recognized as a political subdivision of the state of louisiana that was done for litigation purposes and it's also instructed of your honor why would the state legislature designate him saul as a political subdivision frankly and wanted to shelter him soul from jury trials and certain other court type results that the state deemed we're better off not happening because the more t s a is liable and responsible honor for different purposes than this case focuses on just demonstrates that tinsel is viewed by ours by the louisiana state motor slater as an entity that needs protection for are they backed up by r t i yes or no is there any conflicting evidence as to that i think there is whether it's ok and what would you what would you point to where would you point to i think that there will be more evidence on  and mr shapiro made a good point which is typically the plaintiffs want to be in state court you know do and can different causes of action the defendants want to be in federal court saying it's arisen why do you want it to be a recess one of the reason this particular plane just we have to pay for something you could otherwise pay nothing for that's that's a difference so i don't think we're disputing that i think the question that we're looking at is what effect do all these filings have on this point you're saying it's not a stop will it simply evidence know katrina happens now they're there well what if something else happens can the government go around now and buy a g m pension plan as well but a pension plan wal mart pension plan every other private pension plan if something bad happens and then no one has rissa i mean that's that's what comes from that argument if the if just the government can do it if something bad happens makes a private plan a public plan then every time a private plan can ultimately be a public plan in a recent post party ok your your thank you so much i mean in the old days as a state court judge i could've spent the afternoon on this but we will not do so