wisconsin probably just as representing the defendants affluence this case involves one sovereign permanently enjoining another sovereign from proceeding in ways defined by that second sovereigns statutes in areas governed by several traditional state regulatory fields labor relations the mystic relations and health care the written submissions i think identify multiple are alternate routes to the same destination which is reversing the judgment and remain being to enter judgment for the defendants and before highlighting some of those ro would suggest to over all options available to the court the first is if the court perceives a reasonably clear and principled way to reach that result reversing and requiring excuse me judgment for the defendants then it's unnecessary to resolve other federal issues some that are thorny in this case and it would be unnecessary to certify the unsettled state law issue that's been identified but if the court does not perceive a reasonably clear and principled way to reach that result then i think the appropriate thing to do would be to certify this unsettled state law question which is which is the when if it all is s t d leave available for substitution when it is a hazard of crude and be available for substitution under this state law i guess i mean that that question i suppose illustrates why it seems to me it makes sense to start with the merits of preemption issue rather than some of the ex parte young and you know remedial stuff that that you've argued about because i mean if if we did conclude that a risk to the extent that it was constant act requires nationwide to pre pay benefit when the plan itself does not provide for them if we conclude that a risk pre amps to that extent we would just say it doesn't matter too much to us what the right answer is to your statute but this is a federal guard rail around the co wisconsin courts interpretation and you just can't go past that and then we don't have this back and forth well at fair point your honor that i think does all focus on does what did congress insure and because what we have here is this action by a sovereign that's completely justified solely justified by what did congress intend in an act in a recess and thereafter that's what it all comes down to and i think the unanimous decision by the wisconsin supreme court lays out a pretty good roadmap for that analysis it looked at the very same letter congress intended to encourage and foster these more generous state law provisions and in the legislative history this particular substitution of wisconsin's was pointed to by the sponsors this kind of a lot a lot of hoops to get through before we sort of get down to some colloquy between senator dodd and somebody else and i just to sort of maybe narrow the scope of the dispute would you agree that absent the applicability of a savings clause of some kind in this case there is a risk preemption  people were looking at this administrate of law judges were looking at it and different results were being reached over whether there was a risk of preemption or not and so to the extent this wisconsin act requires pain benefits contrary to the plan and there is no savings clause that applies and i know you argue there is would you agree it's preempted i think that's fair your honor i think i mean let's look at argument can be made but i think right now eleven forty four d says the up that third rail is here but when congress intense to have a structure and its statute right let's look at the stack itself of the receiver we've got we've got the superseding clause but we have an equal and equally expansive impairment clause or so and i presume that's the argument that's the principle method of resolving this to which you reference it is i do think walk me through that all right because i think there's two there's two methods one goes to the a savings clause itself we need that don't you we don't need the second is the eleven forty forty right issue which is served the impairment issue is served and met making we don't need but you can reach this issue this result through strictly looking at eleven forty forty the non impairment issue shaw dillingham travelers we've got what this what the statute run now and what congress said about it exactly and in shaw they were looking at title seven which had a very broad you know any non conflicting state law we don't intend to mess with it that's all they were doing and shaw in dillingham like here they had legislative intent expressed in history and otherwise to foster or encourage other state laws that's what we've got here otherwise no more tin can i can you indulge me in and i know textual analysis i mean i'm not looking to start an interpretive you know here but i mean the court has told us a thousand times over that we start with the words that each chamber in acted and that the president pat are signed and it's only if we have ambiguity there that we go off to you know the colloquy and that sort of thing which co the way even if we get there i think of the lowest form of legislative history of life i mean a committee report is usually taken more seriously and we have the report i'd call it so i mean if we're looking at the words of the state some statute what would what words would would we point to to say that yasser levin forty four d applies because preemption of this wisconsin statute when it requires but payments contrary to the plan would impair those words this act is in here but what do they mean when they say that nothing is going to supersede and then when we look at twenty six fifty two b and and we see ok something of what they're saying stablished for employees under this act or any amendment made to this act shall not be diminished by any collective bargaining agreement or any employment program or plan a clear reference  experiment we want to study what they're doing we want to combat it with a commission on leave and maybe change things later but what you read says a plan shall not take the rights below the floor i mean it does  in the plan is not diminishing any rights status from cory's under that in the way i mean it's consistent with that but i don't want to hog your time well i appreciate  appreciate that they can be read that way i would say aurora read the same provisions and saw plain language that congress intended to protect these things so we have a unanimous court finding reading these and i and also in granting a fiduciary instructions to the plan administrator in this case this case involves the appellant's application of wisconsin law to require the payment of a recess short term disability benefits in a manner that conflicted with plan documents and as a result conflicted with federal law the fiduciaries that operate and administer this short term disability benefit are required by federal law by arista to administer those benefits and pay benefits in accordance with the written plan documents and that is what they meant to do and unfortunately wha is the short term disability benefits were identified as a form of accrued paid leave under the state statute that that could be substituted so that associates of employees of nationwide who work in the state of wisconsin could take a otherwise unpaid if you have an l a leave and require that the employee benefit plan pay short term disability benefits despite the fact that the people the employees were not disabled didn't meet the conditions for eligibility under the terms of the plan this is a ws and is is you would you would agree it's an area in which the state has traditionally just slighted i employee benefits i would say that employee benefits has been since the early seventy's that at least in an area that the federal government has occupied almost exclusively with the passage of employee benefits is almost exclusively an area of federal concern now there are other areas but the state r employees and there are certain certainly state interests in managing leave rights certainly and i guess where i'm struggling is i'm looking at billingham and his whole tradition of federal law that  time and again says that congressional intent must be clear and manifest to hold preemption in these areas in which the state normally operate right where do you find that i i believe that just the plain text of preemption provision that federal law the federal level recipients any and all state laws insofar as they may now or hereafter relate to any employee benefit plan clear expresses can congress is clear intent to preempt laws like this that that impact on employee benefits and the way that has been interpreted over the years  there are two separate areas i guess that i would encourage you to focus on when looking at the express preemption provision one are the effects of the state statute on a central matter of pla in the supreme court's decision they looked at a requirement under wash washington state statute that would have required a payment of employee benefits under certain circumstances and what the supreme court found in the decision was that because that statute govern the payment of benefits it was going it had to be preempted by receptacles the payment of benefits is a central matter of planning ministration and in this case what the w f l a substitution provision does is it is exactly that the substitution provision when it's applied to the short term disability benefits requires payment of the arista benefit and so that's a matter of central a central matter planning ministration that must be preempted under the expressed feeling of plunder your argument can anytime someone wants to get out from under you were regular tory authority of the state they simply administer their employee benefits through resupply and and they are effectively with that government's stand is that your position no i don't think that that that accurately summarizes my position definitions and i think that as it relates to this case one of the things that's important to remember in this is probably not something that appears in either the briefs but it's certainly in the record before the court that that this is a employee benefit plan that funded through a trust and a risk as you know one of a risk this whole mark purposes is to protect assets that are held in trust to play to pay employee benefits and so  nationwide as a plan sponsor establishes an employee benefit plan and funds the short term disability benefits through a trust any sort of state action that impinges upon those benefits of benefits is because those assets that nationwide and its affiliated companies place in trust to pay these benefits are not placed there soley for the benefit of the two hundred or so employees in the state of wisconsin all overarching issue that we began with is what how is it that state regulation in traditional areas remains viable or not in relationship to  anyone would agree with you on this the supreme court has probably said something about all of it we can stay on because everything keeps coming through to us but on equal footing with a it is five fourteen day and it makes clear that nothing would be construed to alter a man modify and validate in payer or supersede any law of the united states so i would like i would like you to explain to me why under shock which is really about the authority there's not much else that strictly looks to the impairment analysis and it seems to me that shall say is when you want to know if another federal law is being impaired then what you have to do is you have to look at the package of congressional intent i think the instruction is clear they are the package would include every word in the statute and the congressional intent in creating that statute and i'm just struggling with why impairment is not clear here when the title four provisions that we in it when which was talking about the superseding in twenty six fifty one is a maybe at least coupled and followed with sixty t fifty to effect on existing employer benefit sixty to sixty three encouragement of more generous leave policies the yeah and that's kind of the creates it creates a commission to look at how other benefits are being used in created in other states it finds employee benefits in a way that would cover so many of the historical things that were discussed in the creation of the family and medical leave help me understand why you think the impairment provision doesn't go case just recently that address eleven forty four d s not impairment language and what i found in going back and looking at that and taking another look at xabi delta airlines is that the supreme court in xabi delta airlines i believe very clearly states that section eleven forty four d must be crude strewed narrowly with respect to the potential savings of state law and when the involved in a two step of savings analysis which i think is absolutely necessary under the impairment provision you've got to look at state law you've got to look first at eleven forty four d and then you've got to jump over to the f m l a savings provision and determine whether the f m l a savings provision or the purposes of the f m l a might provide any basis for this this impairment but you we're all in agreement that this is not what they call the simplistic double savings clause argument you understand that's not what's being i it's being made here as i understand it is that you have a of you have an that say as you look to the intention of the federal and the what is being not in pay or under a ris is the federal act you cannot impair the federal law so what we do is we turn away from a risk now that they we have the instructions and we look at the f a male and we say what is it that we may not impair which the expectation is state laws will provide what they need this is not a shaw neutral question is it and this is this is a question that i think clearly you know i think even in the through the sign conceptual argument well first of all you suggested that this wasn't the simplistic double savings i'm not so sure that i understand that your it is your view of it is that i may disagree with that but i think it's more important for me that arista does not preempt these laws that would act on employee benefit plans regulated by a risk i think that if we're going to look at f m l a's purpose the plain text of the statute is sufficient to identify the purpose of the f m l a and we look at twenty nine u s c twenty six zero one where it says that the purpose of this act is to entitle employees to take reasonable leave for for covered reasons in a manner that accommodates the legitimate interests of employers and because the stated purpose of the federal f m l a is to accommodate the legitimate interests of employers we can't go down a path of arguing or suggesting that the maximum benefits are always what the federal and that f m l a is encouraging in fact what the f m l a talks about with respect to these leave rights tends to be focused on a  term that is a crude paid leave which is something that the federal d o l has consistently excluded and separated from the concept of short term disability benefits and so when we talk about accrued paid leave for the purposes of better a law which is what matters with the f m l a and additional leave rights it's clear that what they are not talking about the same thing as our short term disability benefits in this case  there is a finding of fact in this case that the short term disability benefits are not a form of leave the short term disability benefits or an income replacement benefit the leave is provided by the employer nationwide the income replacement is provided by the benefit plan administered through a trust by the benefits administrative committee at at nationwide and so there is a separation there i think it's also very important to recognize because  this is distinct from what my arguments have been on behalf of the company both below and in this court because we don't believe that nationwide short term disability benefits or  leave rights and so we believe that they are excluded today but that's an unresolved question but the thing is it can agree on that yet so if you if the panel is taking the position that the short term disability benefits should be considered to be a type of leave right and that's the only way you get to a consideration of twenty nine u s c twenty six fifty to be twenty six the to be is the part that says that  nothing in the collective bargaining agreements in employee benefit programs or plans can't diminish the rights created by the federal s n l a if you assume that our short term disability benefits are a part of  our within this this universe of family medical leave rights which is something we disagree with but if you assume that then you've got to go back and you've got to look at twenty six fifty two a which provides that nothing in this act so nothing in the federal f a or any amendment made by the federal us m l a shall be construed to diminish the obligation of any employer to comply with any can collect bargaining agreement or any employment benefit program or plan that provides greater family or medical rights to employees than the rights of stablish under this act and so if if you're going to make the jump and you're going to say that the short term disability benefits are something that fall within the scope of greater family medical leave rights then there's nothing in the federal f m l a can't be used to to to take away or to cause the benefits provided by the short term disability plan which are paid benefits benefits at the federal ethanol it doesn't provide you can't use the federal f m l a to modify their short term disability benefits because it is a voluntary benefit that is offered by the employers and one of the purposes of a risk is to allow employers to offer benefits that they are not mandated they're not required to provide these benefits and if you if as a public policy matter allow states to come in and  mandate that employee benefits that are voluntarily provided be administered with respect to be administered under state law requirements then just as the administrative law judge found in this case nationwide has the option of ceasing to offer the benefits it's very important to understand that wisconsin f m l a does not mandate that any paid leave benefits be provided the only way that the w f a provides paid benefits is by directly acting upon the benefits that an employer voluntarily provide and so what is created is is not additional leave rights what is created is a circuit court case any supreme court case where the or rora decision any case where a state law that required payments of benefits contrary to the terms of a plan was held not preempted by risk  i am not aware of any such case i think that you know the supreme court case in greater washington board of trade which was the worker's comp statute in the district of columbia that  purported to require health benefits to be provided during the duration of a worker's compensation leave of absence or as so long as workers compensation benefits were provided is kind of the guiding principle that and i credit him for this on page thirteen admits that the gear and more quote created a conflict for back the plan administrator about whether to follow wisconsin law or federal law i not aware of any case ever where a court federal circuit court supreme court has ever said that circumstance does not give rise to a risk preemption and so i want to see if you  so yeah there's a potential conflict here but right now i don't understand your you but it is a matter of to reach the result that the district court got to we have to have congressional intent and we have a presumption against preemption and i think we need to look at the way we look at these statutes you're absolutely correct that when a federal court is looking at a specific congressional statute in a phrase it's supposed to first look and the impairment provision sets up an entirely different scenario if then you might see louie over say what did congress intend and we have to do it in the context of a presumption against preemption but that didn't slow the court down for a second and agel ha i mean not for us i mean i look at i'll be candid with you and tell me how this language doesn't apply the administrators must pay benefits to the beneficiaries chosen by state law rather than those identified in plain documents true right in this case right claims against an administrator ok which is important because now any claims were made against an ok or i just i'm just going to i just want to know if this which applies and then i mean i'm you know let you distinguish it from the statute d implicates an area of core a receipt concern in particular runs counter to a risk commands that a plant shall specify the basis on which payments are made to and from the plan to produce your shall administer the plan in accordance with the documents and instruments governing the plan statute it was silent when it enacted it rissa were drawing just from that silence that a risk of preemption doesn't what about a risk and if we're going to get into purposes in legislative history why not why doesn't all the dillingham all of that was taken into account the slate of history was looked at in that i'm looking at the legislative history the dillingham court said no era supreme ssion because before they intended to encourage the state law in travelers they they looked at the statute the congress intended to encourage and rely on state experimentation almost the same words you see in the report and guess what they were