plan documents is the foundation of our private employer pension system employers have broad latitude in writing their pension plans to achieve their business goals it is not the role of plan administrator or even courts to second guess the plan design decisions that an employer and bodies in its plan document in one thousand nine hundred six dow chemical made a decision about how pensions would be calculated its employees in a very specific set of circumstances employees who were transferred to an affiliate d d e and then later returned to dow employment and what it decided to do was to take a provision that was in the plan was creating d d e and transferring employees to d d e and transferring dow plan assets to a new d d e pension plan it decided that section one point six b one b would be the calculation mechanism for those employees benefits they were the only way to read that council it is the only way you're reading it here you say that's the only way it is the only way to read it your honor section nine point six b one b says that it applies notwithstanding any plan provision to the contrary and it says that the employee's pension will be based on his credited service with tao and it says that this will be true for all employees who come back from affiliated entities listed in a denim one and in one nine hundred ninety six and when you but i my question means asks when you read that in isolation you say absolutely when you read the the briefs of the other side scuse me plus you know their their analysis it's is do you see argue that it is implausible yes the analysis is implausible and it's implied that needs to be in order for you to win does it not know it does not need to be in terms of the the standard of review no i disagree with that if there are two reasonable interpretations of this plan in other words that your argument it's unreasonable there i believe that their interpretation is unreasonable the plan terms are unambiguous and therefore it is an  discretion do apply the plan well if there were two reasonable interpretations then you lose because the arbitrary and capricious standard by which we reviewed is correct not necessarily i think that even the plan terms are ambiguous it's an abuse of discretion to interpret them as the defendants have done however the question was if there are two reasonable interpretations by definition picking one of them is not arbitrary capricious don't you apply the plan as tao has done even if there are two reasonable interpretations but the key point here is that there are not two reasonable interpretations these planned terms are an ambiguous though under arbitron capricious review you have a you know a long plan these things are very complicated every time if there's an interpretive error that by definition is are trying to preach is if the plan is interpreted contrary to its plain terms that i don't have that's my point it's an interpret air that by definition is always arbor trying to preach is yes if it is an interpretive error the nature of which is to interpret the plan contrary to explain terms by definition that is arbitrary  multiple decisions of this court stand for that but i was interested in the part of the decision of the retirement board that talked about consistency in the terp retaliation of the plan and apparently from the board's perspective the interpretation given to mr johnston's appeal is the same interpretation that it has apply to other provision in a certain manner and has been applying that interpretation to other participants it seems here mr johnston to argue for something different and special has a little bit of a problem from a retirement or consistency perspective i agree that similarly situated plan participants pensions must be calculated in the same manner and that is why mr johnston pled this case as a putative class action because there  are it turns out thirty two other plan participants some of whom have already retired some of whom will retire in the future who are similarly situated to mr johnston in that the plan provision that the board has applied section ten point four six produces a lower benefit than the preexisting plan part plan provision which is nine point six b one b so i agree about the already retired do you you figure to include them in the class when they perceived and complained received their benefits without complaint certainly yes the plan the plan administrator must apply the terms consistently across plan participants it seems like the from the perspective of the board it refers to has been consistently interpreted so it looks like that they haven't applied section ten point four six two similarly situated participants in the past but applying the wrong provision repeatedly doesn't make it the right provision what about this  mean i quite understand your textual argument for what it's worth i mean it does look like an interpretive error is my first reaction to it but you know statutory interpretation and contract interpretation accounts for intent purpose and why would you do this why would you do that and there is a purpose part of the interpretation that supports the company if there is a double counting going on now i realize they didn't use section four and they really thought they were double counting you would follow section four to its logical conclusion and that's not what they did here so that is not plausible in that direction but in terms of trying to figure out what section nine means are we allowed to account for the fact that there is some double counting going on in terms of years of service i mean i take you agree he's getting credit twice for some years i do not agree your honor the d d e plan i mean in order to determine that he's getting credit under the d d e plan for years of service at dow we would have to look to the terms of the d d e plan and what we have to represent the terms of the d d e plan in the administrative record is the summary plan description for the dupont plan because when well i mean i'm happy to go down this road i think we're going to be better off conceding the point but it's your call i mean it seems pretty obvious to me if he's collecting of the d d e plan and the dow plan and the dow section nine accounts for some of his d d service i'm struggling to sit with the idea that there's no double counting at all anderson want to fight that you can but i'm just trying to get up what i think the heart of the cases are that before you answer i thought it was  the i think i understood your honor to say judge that in that section nine point six takes into account years of service at d t e it only does that in the denominator of the fraction so the fraction is all of mr johnston's years of service at dow over all of his years of service at dow plus his years at d t e so the fraction is twenty to thirty seconds approximately because he worked over nine years at d t e and his pension is multiplied by that fraction so he only gets seventy percent in other words the the front of the calculation under nine point six b one b pro rates out his years of service at d t e that is the critical thing i think this is what judge givens is asking and you're still fighting is the idea that he's not getting a same calendar year a little bit of credit in both plans and i think you can fight that if you want i thought it was as judge givens i thought this came to us with the assumption that was going on and it was what bothered the district court judge and i thought that was a reality this case and we had to deal with that reality but you want to challenge the reality it's your call what happened  six or nine hundred ninety seven was a transfer of assets from the deep doubt plan to the d d e plan on the basis of an account balance in the d d in the dow i mean it's not even proud on the transfer the accounts my point is premised on the fact that calculating both pensions with your interpretation of section nine and the existence of the d d e pension there is a little double counting a little ali i want to call one hundred percent there may be overlap it's difficult in go with the overlap is ok so ok so there is overlap are we allowed to consider that and trying to figure out whether there are it's whether their interpretations plausible that's the no ok why not because because there's nothing in section one point six b one b that allows consideration of overlap the one point six one b one b one b in its proration formula already takes account of any patil could overlook they do a section for that that does talk about overlap problems and i realize they didn't apply section four here to calculate mr johnson's pension because they now do that today are to section four come after section i was at out of the clan after section i know second section nine and section four contemporaneous case but you i guess what you would say section answers now standing so that's the answer that section nine says notwithstanding section nine is the more specific provision while section four point one is a general provision so there's two rationales there and thirdly if section four point one zero operates the way defendants say it do say it does excuse me that allows them to kind of in a discretionary way modify any calculation under the plan to take account of potential overlap with other with other with other plans and then we have a problem with the written document requirement of a recess the plan formula the method of calculation has to be expressed in the plan it can't simply be a grant of discretion to the plan administrator to modify the plan terms on an are and i think this is a four document case there are four documents that are really relevant one is the plan two is the initial denial three is the appeal of appellate denial and then the district court's opinion one thing we've said case after case has to be a plausible interpretation the one that's adopted and so what i'm struggling with here is whether i look at section ten or nine or for the way the company did this i don't see anything plausible they didn't use four and then adopt the four calculation they couldn't use ten and adopt the ten calculation because of the cut back problem and it did seem to me that didn't follow the terms of nice section nine so i'm i don't understand what the competing interpretation is this possible i i think you would agree i think everyone agrees that the mr johnson's interpretation is a plausible one that's not a big thing because that doesn't mean that the plan has to accept it but his interpretation is plausible and it's that's what the language says so i just don't understand what to do with that problem ok this is possible i can't i don't see how yours are plausible so i think i can help you and tell me if this is not helpful there's two provisions that i want to talk about first ten point four six and nine point six nine point four six comes six comes after nine point six comes before that's true nine point four six nine point four six actually leads to a lower benefit for him than ten point four six one better interpretation  interpretation of nine point four six but not under his not under his so let's just go through go through it for a moment ten point four six is added afterwards ten point four six is added to address employees who have transferred from dow from dupont and employees who were hired by d d and and entities like d d d d in particular and then it reads  basically a pension formulate into that if they came back to down so it doesn't get it and it dropped it addresses two changes right somebody comes to do d then they go to tao as opposed to some other person who just goes  got all that is out there not sure what it does it becomes after right so then the ten point four six calculation i don't think is disputed with regard to it is what it is and the record then you go to nine point four six and the nine point four six calculation in the formula and here is our point with regard to nine point four six nine point four six nine point six nine point six i'm sorry i'm going so nine point six and we start with the proposition that you have to read the there yes that would be someone could say aha ambiguity they both say notwithstanding what do we do with that and that does so normally i would say that is an ambiguity and it would be fair for the plan to adopt either one but that's where the back provision comes in you can't use the notwithstanding in section ten if it leads to a lower pension ok so let's i'm with you in terms of the two preamble language is i can't assume for purposes of argument  are an argument that that creates an ambiguity so you favor dowl unless there's a cutback so then you get to the nine point four six that the issue that you are calling nine in ten sorry not the nine lives everybody get to the section nine interpretation the section nine interpretation if you read the plan as a whole and look at the issue the issue is that you are double counting in the section in the section nine calculation  with within it even within it you're double counting now in the in terms of most of the issues that are briefed we talk about section four point one zero and the lead in that says the plan is not allowed to double count and i think you're supposed to construe the plan as a whole so that you shouldn't have double counting but but that's not what the plan did it didn't take section four and then adopt the section four interpretation beram am i or am i right about that it i get what section four says and i'll even accept that it's on par with section nine but the company didn't take section four and then apply its interpretation to his benefit that the how can i call that a plausible competing interpretation well the plausible competing interests interpretation that  the right interpretation is sex it shut section ten but if i may go back to section nine and just kind of get into that for a moment more then you have the no that's one is for point want to construe the terms of the plan as a whole  and there's you know and there is case law with regard to double counting how you shouldn't double count benefits you shouldn't construe a plan to double count benefits which is what this does his interpretation does that and then the can just you can say that's what the plan says but that's not a reasonable interpretation of the plan and then if you i'll just go into the language of nine point six or nine point six it is not unusual for individuals to drop pensions where there  years in their lives where they're getting credit for two pensions for the same year it's just not unusual there's lots of government employees for whom that's true it's that just happens well that makes this provision completely inconsistent if you go to the language of the ok i got it before you got it with both you have so if you look at the language of the provision i think that's where your honor wants to go the denominator of which is the current capital c credited service with the company plus the little c credited service as defined here under you won't find as defined here under the credit service with a capital c has to have some type of meaning with regard to credited service with a little c little ass that includes the d d e service and it also includes the pre down service and the reason i say that is because capital c capital s if you use that interpretation for the bottom of the the denominator as when you go up to the numerator the numerator then becomes the six years the six years after he's done with d d thirty one right number so so if you follow his interpretation to it's that the plaintiffs interpretation to the logical conclusion unless you do it just the way i set it then you wind up with a  double counting problem inherent in the calculation and you're using a different definition you're including it in one place but on in the other place and you're using a different definition so the only way even if you look intrinsically at the language of nine point six to interpret that language so that you don't have double counting of benefits and you don't expand his years of service beyond what it would be in reality is to do it like  that so actually if you just look at the years of service and what it would be in reality meaning putting a sad double cannie he would actually be getting credit for more years than he actually worked is that what you're saying wrecked because he gets credit he would be getting credit for the pre d d e dow service prior to d d in the d d plan and then he wants to get it again in the dow plan but this would be this is i think this what we're speaking about now meets the definition that explains hypothetical dow full career credit benefit so you're saying that would be expanded the hypothetical would be more than thirty one years it's actually in terms of double credit that's what it has to do right right it's actually the bottom of the equation that gets expanded because what happens is you're counting the pre death preedy d e dow service he counts in the numerator as part of credited service then the question becomes do you put that in the capital c capital s credited service in the denominator or you do you put it in the little c little ass credit service in the in the denominator this by the way with the district court did now this is not what the district court did i don't think so this is  court thought that if you look at the plain language of the provision at issue in section nine it supported his position position and then the district court said that we left to look at section four of the double counting pay attention to section ten i guess i'll do this so but that his approach had the problem identified it rights and honor any one of these but the district court the problem with it quite you know directly was that it was double counting so the district court saw the double counting and saw the asset transfer and so so i just to make sure i'm understanding that what you're proposing is not what the district court did and just to put that on the table i take it you would agree that the language is just focused us on which also appears in another provision of section nine dealing with people who do not come back to the company i take it you would agree that that same clause where the didn't know marina denominator has to be interpreted the same way and the other section right it's the same language i think you've got to interpret things consistently ok what point does it serve there because if they don't come back to the company it's super phillis it's just that it doesn't make any sense for the person that doesn't come back to the company well well let me go so that's that's a problem it's that i mean the same thing across provisions within the same document may be a problem but that's a problem that is taken care of i think by the abuse of discretion standard and the fact that the administrator has discretion i'm not sure it's good enough for government work and i don't know i'm not sure what to do with that problem it is a lack standard but it still seems like an interpretive there but there's like there's a let me go back to the formula for a moment the formula inherently language of nine point six nine point six is problematic because it allows double counting i don't stand that you you might have a really good reason to send people from dow to this new division that might implode in two years but there's every reason to give them an extra benefit but that's that that may be something that is something that if you look at the planned administrators decisions one and on appeal both of the plan administrator who are in the best position to make those types of judgments with regard to the plan that they administer consistently is it's their decision with regard to how to treat those types of issues and interpret the plan that they interpret on a regular basis and the reason for that and the reason that the court should  to their interest me nation what i what i fear would happen if we affirmed is we'd be saying any time there's a hint of double counting in a pension plan even if that's what the terms require the plan can avoid those that written language because we all know double counting is bad and double counting is bad if you don't want to pay more benefits but it's not obvious to me you can't have it it's i don't understand there's no rule in a researcher anywhere else that says you can't give a group of people more credit for having taken an assignment somewhere else it happens all the time that people get some extra benefits for doing that and i feel like if we adopted your position they would always satisfy arbitrary and capricious review to invoke the double  counting problem which is now getting bigger than the any cut back provision that's actually in a receipt self that's just really funny to me well they look at the inherently in this in this plan there is a prohibition against  double counting in section four ten even though you're not asking us to use it you're not asking us to use it to this day we're i'm asking you to apply the principle and you want to use the section for calculation have you calculated what we have not calculat point ever well not that i'm aware of what something if there is a if if the retirement board messed up would be in its reasoning but a reasonable interpretation of the player gets not be arbitrary and capricious and what the district court seems to have done is take a different route i think i think the answer is that you affirm based on the abuse of discretion standard because you're applying it de novo the only thing you're not applying de novo is clear air with regard to findings of fact so the district court the decisions the two decisions of the the initial decision the appellate decision as well as the district court decision  not perfectly consistent with one another they're never perfectly consistent the point of those is to if the plan administrator has come up with a reasonable interpretation of their plan and in this case i believe they have then you deferred the plan administrator for all kinds of good reasons such as consistency and so forth with regard to these categories of people and they're in the best position to make those decisions and that's why  that's why you have the abuse of discretion standard but going back to this particular issue there is a double counting problem with regard to the issue we think that it is and i mean i understand your point your honor the but it's the administrators duty to interpret its plan and they have a principle against double counting and that's the way they read it there's no reason to doubt that there's no evidence to doubt that they don't have a principle against double counting that they apply it consistently and you know and that is a basic principle how what would happen to the person that doesn't come back to the company and it's has that same language would we say then there's not a double counting problem because they don't come back to the company and therefore we can follow the regular terms well i think look it's basically where you start with the marble at the top right in terms of dropping them into the plan this person gets dropped in that ten section  ten because section ten is the most pleasurable most specific provision for them they don't get dropped in the section nine point nine because because that provision was not really designed for this particular situation but i think the ultimate answer is we're going to have two sections in section nine where that clause numerator and denominator get different readings is that ultimately going to i'm not to be shot i don't know that i agree with that to explain how we get out of that the  in terms of i think that the ambiguity that the ambiguity of section nine when you just look at the language itself in this particular situation because of this particular person situation i think there's an ambiguity and i'm granting you the  i'm letting you do what you want with the section nine provision at issue in this case and i'm just trying to figure out is that interpretation applied to the other section on provision that deals with people that don't come back to the company you know i don't know we're going to say give it's all right to have the same language have a different interpretation for that group because well there's not a double counting problem that group look at i i think that's right actually you know that's that's an area where he is actually determined by  determined by the facts it's not just something is am ambiguous just because it's written on a piece of paper the factual situation that presents itself here with this particular plaintiff makes nine point six internally inconsistent and and gives you a double counting problem not even looking at the rest of the plant just when you look at those words of the plan because he's using a different way of counting the pre d d dow service in the new  denominator and if you try to make that consistent it's a problem and we do know as a matter of fact there's no dispute that he's getting a d d e pension based on the service  so thank you i don't have like i mean our basic point is that this is a case about deference and discretion the with regard to the plan i will you know i freely admit that there are  linguistic issues in the plan and that it's a complicated plan in terms of the administrators decisions those are reasoned decisions it's a reasoned decision by both administrators and then as you dive into the language of the plan as we point out even internally in nine point six it's inconsistent and requires interpretation so the plan administrators interpretation of this is a reasonable one thank you so so your client didn't have his first sixteen years wiped out as you say in your brief it's accounted for in his pension  his ark puts it position is that his first sixteen years must be accounted for in his doubt pension i get that but you can't say it was wiped out in in as much as he is being paid a pension that that accepts that sixteen years as part of its calculation which is why we think we're into double double counting well we know that there is what we have the information that we have about mr johnston's d d e pension in the record is the three different communications that he submitted that he received first from d d e and then from dupont of evidence that contradicts what i just said that his pension accounts for his first sixteen years do you have evidence in the record the country ticks that i would say that those statements do contradict that your honor what the statement say is that there was there were assets transferred from the dow plan to the d d e plan and that his benefit will be the greater of that transfer amount increased at eight percent a year or his pension under the d d e plan and what the statements show is that by age fifty eight the pension under the d d e plan exceeds the transfer amount that's that's what the evidence says there's nothing in the record that says that the point in transferring the assets was to give the employees a head start in the new pension plan as judge that is but it doesn't give them a headstart unless it's counted well and it is counted until such time is that when they transferred the assets when they knew they were transferring the assets they said if he comes back it's going to be under section nine point six section nine if there's not some double canny going on here it ought to be pretty easy to conclusively establish that and i can't believe that you wouldn't have saw to it made it just seems improbable that you wouldn't have tried to establish that and have the board take that into account or having your position before the district court be that there was no double counting because plan for the transferred amount that's what mr johnston was told that's what the communications from d d e say what mr johnston submitted to the board and what is in the record what is in the administrative record is the dupont plan summary plan description and that says the benefit under this plan is based on service with four companies dupont d d e and two others neither of which is now really ask about de d the way i'm looking at it is i guess i don't see why it matters exactly what happened with the acid transfer and i just feel like you could help us a little bit by acknowledging what i think is the truth here there is some double counting or if you want to call it overlap when it comes to years of service for both pensions and that's that's the grain of truth in what the plan administrator is did and the question is whether they can have a free standing concern about double counting to override language or if they're go double counting to they have to then implement section four that just seems as i'm seeing it what the case is about but it would help if you tell me i'm wrong about that or say no that's true we do have to accept the case is if for you if you win it would involve a situation where mr johnson would have some overlap in his years of service being used in both plans both pensions i i think i'm having a technical problem with the difference between credit him with an asset transfer amount and crediting him with years of service get the asset transfer mess ok just put that to the side is there not overlap in years of service under both pensions even under your proposal am not able to say that your honor i thought you said overlap the first time you were there is overlap in terms of of crediting of pension amounts and you could say that the ultimate origin of those the pension is that the idea the question whether the section one point six is over inclusive or under inclusive too generous not generous enough is not a decision that's to be made