thank you good morning your honor may please the court my name is burke young worth i represent the appellant daniel verity a the plaintiff in the underline action with respect to this appeal this action arises under the employment retirement income security act to recover compensation plan appellant feels that the district court's determination pursuant to federal rules of civil procedure fifty six c which granted in part and denied in part his motion for summary judgment and to amend the complaint against his former employer tell construction was incorrect and that the court should have granted his motion for summary judgment and its entirety in the alternative he believes that the court should have allowed him to a man and his complaint to include just the full vesting provision so whatever you have in the prior paragraph as a matter of percentage is you're fully vested in that at the age of sixty  first it's not clear whether this exhibit b even applies to our client the this exhibit only applies if the individual terminates his employment it does not say that applies to him if he retires before h  and it states that if you see his employment terminates before his retirement then that exhibit schedule b applies you're saying the two were terminate what we believe that terminate means he leaves for other employment he's fired but not that if he decides to retire before the age of sixty five terminate leaves for any reason benefits until he's sixty five by your interpretation and i'm just trying to make sure i understand it if the employee worked at the company for two years they would be entitled to a full retirement benefits when they reached age sixty five  and left after two years now and left after two years so no i believe that still schedule b people do you mean if you retires after two years yes yes you just should somebody who works for two his normal retirement date we believe normal retirement date and retirement are two different things if this agreement had had definitions then it would have been much clearer to our client if they meant the same thing and i think that's really the crux of our argument is is that to the normal average reader that is not a lawyer so so now you're relying on the difference between retirement and normal retirement while we believe that because there's no definitions it would not be clear to the average said the first place of just say you know if somebody has retired to retirement age then even if they haven't spent forty years they get a full of love and that that's what that clause is very to protect but the younger is a very definite and reasonable way of say you get according to the number of years you spend isn't that what almost anybody would read it's a clever our client as well as another expert believed that that was not just investing in schedule that you know apply it at all points in time and i just think that you know we can't look at it as a way that a judge or that a lawyer what it's really how this average individual would have looked at it and you know it's not clear i know that the court reason that nothing in the agreement by the court to conclude that one hundred percent of the retirement benefit is equivalent to one hundred  portable interest in a retirement benefit yet converse lee there's nothing in the greenman that could lead the court to conclude the opposite there's no definitions at all and i really think the issue is not whether or  not to us we can kind of parse through it and decide you know what to the parties meant but really whether or not an employee could decide what it meant in addition we believe that the court in i mean just realistically isn't this a pretty clear statement to somebody who's going to go to work and says oh yeah this is the you should do this a get this if it isn't forty years  reach retirement age i'm still i think that that's a fair statement if the agreement did read like that i think because that schedule well first because of retirement the same words are used throughout the document retirement and you know normal retirement age as well as because there are these superseding provisions on schedule b that are very confusing and were very confusing to our client is true that the word  i know that they are typically not granted i acknowledge that however they are granted in cases of extreme disloyalty or fraud if the court had looked at the extensive evidence it would see that  this plan it was not funded and the employees were not told that it would not be funded they also were told that they would obtain the full amount of their benefit even if they retired early it looks like that were the actual total amount that that person would have obtained if they had stayed all the way through their employment that coupled with the fact that failed ignored all of our clients requests well not necessarily i still think that punitive damages could be awarded based on the fact that they all did not respond to our client's request for payment and that they didn't concede liability in till two years after he was owed payment  fish have been awarded as they were reasonable as well as the fact that prejudge an interest should have been awarded because the parties did stipulate that we were entitled to that before filing our motion for summary judgment thank you at the request of one of totally sure these in two thousand and thirteen and the the purchase was done very quickly with very little due diligence and i must say as a matter of has said some things about extrinsic evidence which are not in the record and so i you know i don't know what to say about them but if you were sufficient suppose one would to say it would separate surprise but it's an interesting argument but i don't think it's valid when you look at this particular plan and i think it's very interesting such a breezy that there  another case in this district which interpreted this particular plan and that was a case that was cited by judge roll mine on page five of his decision as giving the court subject matter jurisdiction that's the p r razi ok and if you look at the joint appendix on appeal you will find a letter written by mr that in the first paragraph it says look you are entitled to a non forfeit of a percentage of your final benefit you get nothing if you work for two for ten years if you work for at least ten years you get twenty five percent and not only that he get two and a half percent for every year that you work beyond that is the benefit if you leave the company for any reason other than death or disability and once you reach you sixty first birthday you're entitle to a plan i think you have to warp and say the word notwithstanding could be very or not because we are required to give every word meaning if possible a possible meaning is despite what he says above for people who don't work more of it a certain number of years somebody who retires a it still comes out so i think that's really argument you have to say you can't tell us notwithstanding is a useless word because if it's a useless word then we have to say ok that's something wrong now i think what it says is that if you work for ten years you get a non for food will benefit if you work for one year or two years and retire you get absolutely nothing i think that's what they were trying to say and when i was trying to say to you that in the case there was as in this case a stipulation of liability and in that case mr  as five years of benefits he had worked for twenty five years he got ten percent plus the twenty five times two and a half if he had followed verges interpretation instead of getting thirty one hundred dollars a month he would have gotten fifty seven hundred dollars a month he would have got another two hundred fifty thousand dollars or it was his interpretation that because he retired before he worked forty years you would have to work forty years to get the full hundred percent benefit just hired age sixty no he retired he retired in two thousand and one and began to get benefits in two thousand and twelve it's exactly the same case i guess i'm puzzled by why you're  shortly after i should say during the middle of depositions fail stipulated to its liability and it made a lump sum payment for the twenty five months that it hadn't paid the benefits and it gave nine percent interest on that love some payments so since august of two thousand and fifteen mr birdie has penny that he would have got plus he got nine percent interest on the first twenty five payments that were late and the legal fees have been paid since the date the judge roman came down with this particular if the plaintiff in chief's some success on the merits it's discretionary and he is entitled to turn these fees now in this case pro bailed only in a technical sense but not on the amount i understand that logic and they have been paid they have been paid from the minute the decision was rendered by judge roma thank you very much