motion being argued kelli versus honeywell we'll hear from you first good morning or honors william worth i am or on behalf of movement at pelleas scuse me i have three brief points first honeywell promised on the record to this court a promise that this court recorded in its order that it would continue medical benefits which are the subject of this lawsuit  litigation is over at this court and the district court and quote second the context of this promise was we were arguing a motion to stay that honeywell had brought seeking a stay of the trial as to the some class b retire his then and that's the subject of the appeal in twenty seventy five we argued that we would be prejudiced if if this court granted a stay because if we could go to trial we could get to trial and there would be no need to litigate the preliminary injunction issue that is we would have a final injunction you know we've only given you a few minutes i think you can assume that we've read the materials on the background why didn't you tell us where you think we think you need  on emotion today yes that's that's my third point we think that that means given the promise that was made we think that that means that there is no case or controversy as to the preliminary injunction appeal  we think it's a simple as that i understand your adversary's response they're saying that they'll they'll keep this all in place while this is all being litigated but they do want to litigate it because if they succeed in challenging it then they'll lift it but until that time they're assuring you they want won't disrupt things so well i why should they have that opportunity to tell us if that is what they say but that's not what they said to this court and that's not what this court said in its order and when this court initially issued its order that's how the order read after in granting the motion to stay we brought a motion to correct the record or to that this court granted calling it a motion to amend and what the amendment was was to say that the promise was not just to keep the benefits in place as long as the preliminary injunction was in effect we didn't need that promise we know they're going to do that the promise was to keep the benefits in a fact until the case is over at court the injunction issues being decided on appeal and the district court it was a flat out promise that the benefits would remain in effect and tell the case was over reverses this to the preliminary injunction and sends it back to the district court they have promised the benefits will remain in a fat therefore no but neither side has anything at stake as to whether a preliminary injunction issues and i think it's clear if the court looks at the two orders that this court issued in response to the earlier motion you can see that this court first  issued an or issued an order consistent with the court's question but that then we asked the court to take a look at the record to see what the representation really was and this court issued an amended order and made very clear that the promise was that the benefits would remain in effect all benefits will remain in effect until this case is over at this court whatever it would decide on the injunction issues and at the district court therefore neither side has any interest in whether a preliminary injunction was properly issued by the district court thank you good morning brian earlier for the appellant honeywell i think there's two questions actually presented by the plaintiff's motion they argue in the first instance that our agree agreement to continue to pay the benefits until the final resolution of the dispute moots the controversy and the matter is no longer just under article three as i think the court recognizes there is no final judgment here and we continue to challenge the district court's rulings with these consolidated appeals  and that you would continue to pay benefits through the disposition of the case in the district court what would that mean then that you were going to that that this would not be an issue through the resolution of the local certainly your honor and there is if the court were to listen to the recording of the argument there was a colloquy there was a concern on the court's part that were we to get this court to order the district court to stay in the proceedings somehow we go back to the district court and look to lift the injunctions visiting all sorts of difficulties on the participant class the benefits have been reinstated at one level i'll say that's a good thing for the participant class pending the outcome of these proceedings and back in the district court now by the way our substantive position is a little different than that counsel suggests we're saying as a matter of law when this court gets to the merits of the dispute based on the governing contracts there is no obligation to pay these benefits it will all be over but again there are individuals who are receiving benefits presently and this court expressed a concern on their behalf i don't think that's particularly remarkable and frankly it's a good thing for the participant class members their position essentially seems to be that we should to preserve this court's appellate jurisdiction basically pull the plug on the benefits perhaps putting ourselves in contempt which doesn't sort of make a world of sense i think to anybody involved here and  points well made your honor the very opinion he relies on new york city retirement system page one of their opening memo actually this court looked at the very question of moot ness and there's a test and i think the opinion actually resolves forever this question the issue is whether the injunction and now i am sort of loosely quoting this court's ruling where the injunction no longer controls the future activities of the parties and the consequences of the compliance cannot be undone in that circumstance there's no article three case or controversy anymore and i'm quoting here that opinion where the compliance with an injunction fully and irrevocably carries out the terms of the injunction then there's mootness look our interim compliance with these injunctions doesn't for ever resolve this dispute far from it i submit and i'm hopeful that when this court gets to the merits it will rule in our favor and that will be the end of the litigation now by the way i think there's a second question in here that's not particularly well stated in their briefs is whether and to what extent again our willingness to comply with the injunctions somehow undermines our right interlocutory appeal under twelve ninety two a one i think that the case law common sense and indeed even the law of the case is to the contrary as i said a moment ago their suggestion i think encourages or or lurking in the argument is the notion that we have to somehow disavow these injunctions to preserve appellate jurisdiction i submit that cannot be the law it's sort of a be careful what you wish for circumstance and again it cannot be good for the participant class members we honeywell is willing and the court this court recognize it was the quid pro quo the juice that animated the deal we will stay the district court proceedings one  case i'd didn't think we could go back to the district court and up endings injunctions after this court brokered this deal so i submit and that the prior panel would be somewhat surprised to learn that we have divested ourselves of subject matter jurisdiction before this court by agreeing basically and again in the participant interest to just maintain the status quo until this dispute is resolved and by the way there's a couple more opinions in our brief it's exactly what judge le sero in the tenth circuit said and i'm quote i think it's important compliance with an injunction during the pendency of an appeal obviously does not render the appeal moot if it did we would lack the power to review injunctions entered by the district court absent noncompliance by the in pallant in other words again do we have to put ourselves somehow in contempt to maintain subject matter jurisdiction here in the court of appeals i submit the answer has to be no and it's precisely the result this court reached its own opinion cited in our brief new york s m essay and again there was a willingness on the appellant's partner apparently this involves some changes to a municipal ordinance they amended the ordinance subject to the outcome of the appeal that did not divest the court of appeals of jurisdiction i respectfully submit the motion should be denied and hopefully will get this thing