morning your honor said good morning i'm james keenly i represent the plaintiff robert meekin in this case the district court's judgment below should be overturned and judgment should be issued to mr meakin in this case for the very straightforward reason that if you apply the written terms of the plan to mr meekins pension he should have received it in two thousand and eight when he retired and he should still be receiving it today the hordes efforts to terminate the pension which is suspended rather six years after they had approved its payment were based on an incorrect assumption about the law and the facts and lack any legal merit and conflict with the planned terms this is actually consistent with the district court's findings a find it was undisputed that mr meekin had vested in accrued in his gold ninety five dollars pension and also that the board had approved his application to work in the building and construction trades while he was paid the pension those two findings alone should have resulted in judgement for mr meekin yes q under your view does it mean that the plan would never have the opportunity to reinterpret the terms of the plan not as applied to mr meek and benefit it's one thing to reinterpret the plan on a foregoing basis that something that happened in the case before the th circuit called auster which side of the parties br well i will clarify that in oster the that plan was always written such that the benefit issue was an optional benefit it was an option for the plane administrator to distribute as a lump sum and for thirty some odd years they had done that and they abruptly change policy and mr auster sued and this court held that it was ok to change policy for going on a forgoing basis it would not be ok to reinterpret the plan in a manner that conflicts with the plans express written terms which is what this case was amended to deal with the foregoing problem to change their practices but what one then is the impact when a company receives notice from the i r s with respect to application of this retirement point and then the question is whether both the i r s and a receipt require a clear severance before going on it seems  that you can work this if you answer the the plan of course has a duty not just your claim but to everybody and so that's a pretty big red flag for the plan so it appreciate absolutely you addressing that certainly so st is an initial matter the i r s didn't come to the plate here the plan went to the i r s reported these lines failures voluntarily this wasn't a situation where they were being threatened in any way and the s in responding to that did issue a letter saying if you do the changes that you suggested you would do we will not disqualify your plan but the i r s also stated expressly in that letter this doesn't affect any participants write under title want to read to enforce the terms  the plan and the fact of the matter is if there was an actual qualification failure and there really is not here i'll get into that the i r s doesn't have the authority to nullify the planned terms the plan terms would still be enforceable even in a non qualified plan and there are many nonprofit plans out there it would be very bad for this plan were it to be found to be non qualified although there's literally no example of that ever happening to any plan of the size in the entire history of the statute so i think that's a very remote risk as to whether it is an actual compliance failure in mr meekins case it clearly is not because he separated from covered employment on july three hundred and twelve thousand and eight he never returned so from the plans perspective he's retiring the next day he returned to work he did not return to service and covered employment under the plan ever so that's very different this is a plan that is sponsored by a labor union and a joint board of trustees that consists of labor and management representatives his employer doesn't sponsor this pension plan is one of many participate employers and when he retired from service on july thirty one two thousand and eight he never came back he doesn't work under the seat again the more he doesn't accrue benefits under this trust anymore and never hasn't got a single additional hour so when we're looking at plans there is a general requirement in the law that pension  designed to distribute benefits after retirement we have to look at what it means to retire in the context of a pension plan when you retire is when you retire from this work that is giving you the benefit that the plan provides it's not ceasing all exchange of labor for money so there's no compliance failure here there's no in service distribution here which is not a legal term anyway it's a part worry that benefits are being paid after or before mr  meekin retired with respect to the plan so what he is retiring from in your view is the in service as defined by the plan while he was covered by it exactly so the plan is a definition of what constitutes covered employment and his last day of covered employment was july three hundred and twelve thousand and eight then he started working in non coverage employment august one two thousand and eight this would be no different than if he had worked outside of his employer like if you had gone to work for wal mart or something like that he this would be the same situation he has retired from the service that got him the pension benefit in the st place and he's not gaining any additional service while working but counsel was it your position that t of the plan abused its discretion when it reinterpreted the plan and applied it to your client yes that's correct it was an abuse of discretion to impose these requirements on mr meek and after the fact and why was that an abuse of discretion because he satisfied all of the written requirements of the plan terms when he retired and he could not know about these new requirements that were being imposed in two thousand and fourteen in fact not even the board that this was mr meekin retired in two thousand and eight this was the board settled practice and everyone they operated the plane this way intentionally it wasn't like a big mistake by mr meekins case it was what they are calling an operational error across the plan now we can test that it was an exactly did your client lose when this plan was reinterpreted and then applied to him they didn't they didn't seek recovery of the benefits he already received not yet he lost ongoing payment of his pension  pension that was paid to him between august two one thousand and eight dollars and april th teen was deemed an overpayment they have not attempted to collect the overpayment from him but this plan was designed i mean he lost a valuable benefit which is a monthly pension of several one thousand dollars and this plan was designed explicitly to allow workers to accrue an early subsidized pension like he did and then to retire i have to work if they chose in sperry narrow categories in the building and construction trades if they got approval from the board which he did and they are now taking that away and it's a substantial portion of his monthly income that they've taken away for several years the other thing that i wanted to address just briefly before reserving the balance of my time is that there are several novel arguments raised for denying mr meekins pension in the litigation that were not a part of this i r s proceeding at all and that's one the advanced application requirement in the pension plan for this for mr meekins work and this argument that he was not a pensioner within the meaning of the plan at the time he applied for this approval to do this work our position is that these arguments are waived they weren't raised at any point during the claimant appeals process and they're totally disconnected from of the i r s proceeding was concerned with and also that you know that's consistent with this court's precedents and harlock and sal years the results should not be different if he started work one day later now would there be any question then well i think the plans position would be the same that he needed to be the plans position is you need to need to be either under age sixty two or out of work for three months which is nowhere in the plan a very specific requirement that is not something mr meekin could establish because he the facts are the facts so i don't think that one day would make a difference to either part and his position that the plan added a new term for eligibility i would respectfully submit that that's not what happened here because the preamble of the plan says land  and the th circuit in the crouch case have said that that's a substantive term of the plan that governs employee eligibility so the requirement that mr meek and separate from employment was always present in the plan so the trustees when they stopped his pension weren't applying a new eligibility criteria they were just enforcing language that was there and the plan and i would submit as for you sherry's when they find this type of tax qualification error have to take action to correct it and that's consistent with the i r s as procedures at the time revenue rolling two thousand and eight dash fifty was in place and that revenue ruling basically said you know if the trust find an operational error they find a tax qualification issue they can't just ignore it they have to take action to correct it and so they did not abuse their discretion because they were relying on that term in the preamble and then the nd and also i think the district court was right that under the court's decision gilliam versus nevada power that courts look to interpretations that give effect to the entire plan and interpretations that ignore a provision of the plan that render a provision of the planned nugatory are to be avoided and that was an additional reason for holding the they were giving a fast to the preamble otherwise they would have been rendering if they had upheld mr meek unspecific and they would have been rendering it nugatory the other item that i wanted to address was the issue of covered employment versus non coverage employment mr meek and makes the argument that he somehow separated from service because he moved from covered employment to non covered employment but if you look at the language of the i r s in their rulings it's much broader than that and in fact the requirement to separate from services in early retirees has been present in the tax code since before it was even an act it the district court cited given to the employee so that talks about a severance of employment a severance a half point but again this is so obvious and apparently wasn't at the time he his whole time of employment to retirement and then on to a new status wasn't that apparent apparently i think what caused the trustees concern was the private letter ruling that was issued in two thousand and eleven that we cite in our briefs and that was a multi employer plan like this one and mr meek and will say that that private ruling did not involve a switch from cover in employment to non covered employment but i think we have to look at the actual language that the i r s used and the language that they used was  performing services for the employer sees performing services for the employer and that's a broad statement and there's no dispute here that mr meek and never ceased performing services for the where he worked as a superintendent until july st two thousand and eight and then the very next day august st two thousand and eight he started working as a safety officer so that broad language really gave the trustees concern and i think their decision was reasonable given that language in our brief we also cite i r s notice twenty thousand seven dash sixty nine and i think that's really a political bill here and important to look at because that talks about a service pension and the language we quote in our brief and a service pension is what mr meek in received his was a service pension is based on the years of service his was based on a combination of service and age but if you look at the language that they use there and talking about a service pension they say an early retirement benefit is generally and only permitted to commence with an annuity starting date an annuity starting date is basically when you commence your pension that is after the severance of employment  except to the extent permitted under four a one a thirty six of the code and so again there's that language severance of employment and for a one a thirty six dollars basically says that in service distributions are permitted after age sixty two so if you look at the totality of the guidance that's available from the i r s they're talking in terms of ceasing performing services and they're talking in terms of severance ing employment and so given that guidance the trustees were reasonable here and i'll also note that the trustees didn't just stop mr  pension before they did that they did what they were supposed to do they followed the revenue procedure in effect at that time two thousand and eight dollars dash fifty and they brought what they thought was a ta qualification error to the i r s as attention and they work with the i r s and they came up with this correction so that was another point where they knew the s was agreeing with their interpretation and another reason why they were not abusing their discretion mr kinley said in response to a question that the plan at this point not gone back to read c the payments are already made is that correct yes your honor that is correct so in the voluntary correction procedure they address the overt payment to mr meek and they basically had the bargaining parties  those overpayment so the plan's not seeking any overhang from the play and so mr make them will be tane the payments already made yes well and just to follow that line then once he reaches the appropriate age he'll be able to get benefits again but just under a different provision of the plan is a correct and maybe he's already reached that age i don't know brecht your honor so the voluntary compliance procedure when we had that approved basically we agreed that he would be paid the earlier of a true severance of employment or age sixty two which is in compliance with for a one  thirty six dollars and what's his status now i believe he's still working and i could be wrong but i don't think he's reached age sixty two y the other point we'd like to make i don't know that mr me can address it here today but i just wanted to address it he brings forth an equitable stoppel theory and this court has been very clear that in the arista context you have to allege extraordinary circumstances and there's no evidence of anything like that in the district court noted that in their opinion there is no evidence of repeated misrepresentations are seeking to profit off of mr meek and or that mr meek and was particularly vulnerable and i also wanted to just quickly address an additional defense that we brought forward in the district court if you look at the language of article eight section eighty four dollars it says very clearly that to work in a safety officer position and receive your pension you have to get advance application you have to apply in advance for mission in advance and mr morgan didn't in this circumstance he actually response to that that is the quote that is the requirement of course but the response is that that was not raised before as a as a reason right and i think it's an eligibility term to receive your pension and i'm not sure that the trustees can waive an eligibility term especially on a motion for summary judgment i think for mr meek and to prevail he'd have to show that he met every eligibility term and so the district court didn't reach that defense that's a note for of their decision but we would just respectfully request that if this court were to overturn the summary judgment determination that that issue be addressed  and finally i'd just like to note that the mr meek and concedes that the abuse of discretion standard applies to the interpretation of the plan but there was some discussion in his brief about how interpretations of the law should what standard they should fall under and i would respectfully submit that the trustees to some extent we're not interpreting the law here because they didn't just stop mr meek inspection they went to the i r s st and the i r s looked at what they had submitted that they were looked at how the trustees had describe the law and the i r s actually agreed with them so i don't think the trustees were actually inter breeding the law because they look to the i r s to do that but i also would say that i believe the trust ees and making this decision were really interpreting the plan because it's the preamble that says that there's a tax the plan has to be tax qualified and should be applied and interpreted consistent with that intent and  gilliam i think says that you sometimes have to look outside the four corners of the plan that you have to look at the context that the included the language in the plan but just because they had to look outside the four corners of the plan i think believe they were still interprete ing the plan and specifically the preamble and so that their decision here should be under the abuse of  an absence of any other further questions we would just request that the district court's decision be upheld thank you thank you of life insurance where a life insurance carrier to a group benefit plan required statement of health as a precondition of granting coverage then accepted employees coverage without actually requiring the state of health into the employees premiums for many years and when and the employee came time to collect on the life insurance benefits the carrier attempted to deny on the grounds that they had not met this basic eligibility requirement at the outset and this court held that that defense was waived because life care had induced the plan which is against reliance by accepting these premiums that waive that defense same thing happened here mr meekin did apply after he had started working the board knew that all those facts were totally known to the board at the time they still approve this pension for six years and relying on that income month to month before changing their mind and they even when they changed their mind they didn't invoke this particular defense until the district court proceedings in this case so i think that defenses thoroughly waived under multiple precedents on the issue of i r s private letter rulings and notices and some of the loose language the i r s uses in these documents it's important to understand that these sources of authority come from hypothetical presentations of facts by anonymous taxpayers these are not situations where the issues have been fully argued and vetted before of the i r s and they're not supposed to be cited as presidential authority and as of like what the law means to the extent the i r s has said in some of these letters that a full separation from all employment is necessary to obtain a pension the i r s is wrong in those letters there is a self defines an employee pension benefit plan as one which defers benefits until never returned so there's no reason to be concerned about him there's various policy concerns underlie this idea that you should not retire and continue to accrue service in the pension plan you retired from it purpose of providing tax shelter for this income until the employee is retired and those problems are met here he left the plan he gave up the opportunity to accrue additional service and he gave up the opportunity to work in c could retire and get this benefit that he had vested in and it would fly in the face of can seiko and so awful to allow the plan in this case to impose these very specific requirements by invoking the preamble we don't we don't contest that the preamble is part of the plan it certainly is but no ordinary person can read this broad statement of intent in the preamble and then deduce from that that section eighty four of the plan has unwritten terms that are not there that you must be over age sixty two or that you must fully separate from all employment before you can get this benefit you would need both highly sophisticated knowledge of the tax code and the highly sophisticated insider knowledge of how this plan has worked to make any connection between the preamble and the specific language in section eighty four dollars of this plan that mr meekin relied on when he retired there is no authority in this court or any other arguments and also with your fluency with the recent cases we appreciate that the case just argued is submitted and we're joined from the morning