may please the court teresa wren occur on behalf of the appellant mr reid i'd like to reserve three minutes of my time for rebuttal if i may and a receive plan must be administered strictly in accordance with its written terms here we have a plan that requires that its terms be interpreted in accordance with california law and we have a term spouse that is left undefined and therefore subject to interpretation and we have m reed the registered domestic partner of mr gardner the plan participant who has under california law the status of a spouse therefore mr reed is entitled to the survivor annuity that is required by this by section seven point zero six a of the no you're saying under california law has the status of a spouse but me ask you to be more precise as to time had the status of a spouse at the time of his retirement is what you're saying that is correct your honor no the written brief for the carillon argues that the definition of spouse under the plan at least at that time had to be the federal definition u doma defined the term spouse in arista arista doesn't have its own definition of spouse well but that cuts against your argument so you're not meaning quite to say would you said or maybe you want to say a little bit more as to why you look to california law for the definition of spouse under the plan we look to california law for the definition of spouse under the plan because the plan is it is a private contract and it chooses to be interpreted in accordance with california law and that's a choice that the planned sponsor has made that has to be respected so no ministry that's that's part one of the plan which is the choice a law provision is california then the plan goes on to say how a fornia in a manner consistent with the requirements of the tax code in a recession so now we have to go to part two to figure out what does in a manner consistent mean and that that has a lot of questions inside of that so rather than me trying to guide it through would you just in your view what does it mean under that second part of the choice of law to be in a manner consistent sure so it's in a manner consistent with the requirements of federal law and rissa and the code set forth minimum requirements for the provision of joint and survivor annuities to spouses but nothing in a risk or the code for hits a plan from going beyond those minimum requirements and nothing about providing a survivor benefit to a registered domestic partner would cause the plan to violate those minimum requirements that would not cause the plan to fail to provide a joint and survivor annuity to a federally recognized spouse the plan is perfectly able to go beyond those minimum  nothing inconsistent with those minimum requirements about following california's definition of spouse does the marriage word figure and i mean that's another question i had spouse i can follow through it's not in orissa defined but you have doma as kind of this big umbrella the california law talks about domestic partners and spouses being equal for purposes of nondiscrimination does the word marriage figure in in interpreting in a manner consistent with well the word marriage is used in the plan so a joint survivor annuity is is required for a spouse if the spouse was married to the participant at retirement marriage is  is also defined under california law as including registered domestic partners so for example family code section two ninety seven point five says that for purposes of property and this is again not going to let me focus you want time you mean not only present tense but at the time of retirement at the time of retirement yes at the time of the rich at the time of retirement mr reed and mr gardner were considered married under california law the argument that oh they were spouses but they're not married is the argument that was rejected by the ninth circuit bankruptcy appellate panel in the in reverse bean case and so why i guess when look at this with the standard of review that we argument is that the plan was reasonable for not focusing on california law instead of applying doma as the federal law so i'm just trying to trying to figure out why was it unreasonable when there was a definition of marriage in doma which seemed to control those terms in a risk how is it that that was unreasonable for the plan then to not provide mr gardner with the waiver that was necessary so i have a couple of responses your honor first of all i don't agree that the standard of review is abuse of discretion we have a case here where the plan administrator just opted out of the administrative process and if a plan administrator can wait to be sued and then issue a decision and then get question here is the question of whether the plan acted reasonably in two thousand and nine in providing mr reed mr gardner with his benefit in the form of a single life annuity does not go to mr reed's eligibility for a survivor benefit it goes to whether mr reed has to make good the overpayment that resulted from paying the benefit as a single life annuity and that is this court's hern case so in the current case more or less the same thing happened the way in do we know though i mean this is one of the things i'm struggling with is when we look at these arisa determinations usually there's a little more than a result and that's kind of what i feel like we have here so we don't even know that the plan administrator looked at and rejected a certain interpretation of the choice of law provision do we know we do a single life annuity they acted in good faith in doing so therefore the plan gets the extra money back from the survivor right the standard of review didn't even factor in this court never discuss quite right there's not there at least you can find it i couldn't find it of course one possible explanation for that is that the plan didn't provide for discretion in which case the overall would have been appropriate and we just don't know  a separate question and that is if i look at the record as of the time of mr gardner's retirement he checks off single which means of course if he's single then he gets the annuity paid at the higher rate him only so it doesn't sound as though the plan had even the opportunity to address the question as to whether or not he's married under california law because he said he was single just like mr holmes said falsely that he was single i have a couple of responses so first of all the plan administrator has an independent duty to determine to be satisfied that the participant is single it's not discretion i determination at that time that he then mr reed didn't qualify as a spouse that was not made because the forms as i'm single well no determination was that's correct and i think the question wasn't addressed right no determination was made  i do want to say though because i think it's important that even if it a citizen was made in two thousand and eleven if there was a discretionary decision there's no indication that was but even if there was that does not affect mr reed's independent right to a survivor annuity under the terms of the plan and that's a very important point because we can't have a situation where whether the plan confers discretion on the planet administrator controls the rights of a spouse to his or her community property interest in a pension and that's what this court says in her name so in her own mr mr hurn hornswoggled the plan administrator he was deceitful and the plan administrator acted in good faith in paying the  benefit but that does not take away mrs hearn's community property right to a survivor benefit we cannot have those spousal rights turning on the discretion of an administrator exercised at the time of charmant and that's also not what the plan says the plan says if the partisan participant was married at retirement the plan the a surviving spouse shall receive a benefit it is not condition was checked to the single well what was their duty then i believe that their duty was they knew that they had a registered domestic partner sitting in their office checking single on a form the plan should have looked at its own requirements in section seven point zero six and a it should have looked at it it should have seen that it had not defined spouse it should have said well we then we turn to california law what does california law tell us about the status of this person but and not and not look at doma at all there's no reason to look at doma because again doma dictates the requirements of a recess it dictates the minimum requirements nothing about a recess says a plan cannot i know you've said that the plan can go beyond federal all but does it have to it this plan does have to be has because it chooses california law and because it leaves the term spouse undefined california law you have to look at the requirements the minimum requirements of a recess and you have to say will california law cause us to violate those minimum requirements and the answer to that is no thank  it please the court my name is doug pierce and i represent the apple e's first on addresses business about what does the plan require it's undisputed that the plan administrator must administrator the plan consistent with the terms of the plan and it is true that a plan could be written up to provide more benefits than the minimal guarantees under the statute but this plan did not and for anyone to say that well they could have provided more benefits they can only provide benefits that are specified in the plan ok so i understand that argument but how does that argument mash with the plan having chosen california law and california law at the time having to find registered domestic partners as spouses at the very same time that the plan said we'd follow california law if it said we interpreted in minister the plan under california law and can consistent with some of the questions before doma existed at that time doma affected every federal statute including the co and the risk and accordingly a risk to said we do not allow a benefit when you see what it says spouse it means only an opposite sex spouse let me go this is a come back to the language in a moment but this is more a conceptual question would it have been illegal under for the plan to have provided benefits to domestic registered partners if it had been very explicit that this was what it was doing that would have definitely been permissible and that's above for literally only question then is whether or not  choice of california law and then the idea of consistent with actually does do that so it's not in permissible if the question is whether doesn't that's correct your honor and the result that the plaintiff is seeking is we have one and only one benefit that's a pool that's at issue here and there is one and only one contract provision that defines that benefit and if you interpret that consistent with a receipt in the code as required in the b that would one contract provision that on the one hand says we are excluding this class of person and then say at the very same time under the same provision we are including this i did that it doesn't say that i mean i think you have to look at the precise language of doma and you know the point made by mr reed's counsel is that doma is not a ceiling that states can do other than so states can have laws that are in fact not consider are consistent or not inconsistent depending on how you phrase it with doma so if if that is really the meaning of doma as later explain to us why can't you have a state law that gives you more can't give less but it could give you more the plan would have to adopt under california law that's how this plan is administered we go first to california law because we have to find out what's consistent or inconsistent with it so you have to start with california law and not with doma so if you do it that way it seems to me you come out with a different result than if you go your route which is starting at the back and what is don't miss a therefore you cannot have that under california law with all due respect i think the two are equal stature with one another because you have to be consistent with both and any time any contracts will provision or contract says hey we're going to go with two different laws there's always the possibility that there could be a conflict and if we have a conflict in this situation it is going to be the federal law that controls because this is in it but in a way you just conceded that there's no conflict because you conceded if the plan is clear it can be more generous than the minimum requirement to be a qualified plan and the entity that's going to determine if it's a qualified plan is the iris the federal government and the i r s before mr gardner wouldn't wait a minute are you saying this would not be a qualified plan if in fact it were clear that are offered benefits to mr webster partners no i'm not saying that you know if the plans clearly say it but it can't do it in the very same provision it would have to say this is what we're offering under the for the spouse under federal law and then they're going to have to say and also for people who are not spouses under federal law we've got this provision here but the plan doesn't say that but that's the plan the plan decided to choose a state law a provision did it not that is correct your honor and it might come out differently say in wyoming or kansas at that time because there was no such law to the domestic partner law could the plan of chosen federal law a plan would be free to not pick up any state law but a recent plans typically do that cover what the federal law doesn't cover such as a statute of limitations  in all sort of like in for a dime in for a dollar once you choose california law you then can't pick and choose your way out of it can you i mean you can say well the domestic partner law is irrelevant if there is a conflict then i think the federal law controls and that's what the iris has repeatedly said is that when they will not recognize something such as a registered domestic partnership and if that but if the state law does i mean that's that do you agree that with respect to damo we're looking at a floor and ceiling issue in terms of what  this plan only has the floor it did not have anything more than the floor in the september for new law so i'm asking if you if you just take doma by itself doesn't it say well this is basically the floor not the ceiling as to what might be permissible well you can't get away from the i r s determinations of this matter if we had to make this decision today and we have the further iris clarifications on this matter these are regulations that have the force of law and they say that you cannot recognize in this plan in this provision it would have to be a separate provision i don't have a problem if there is a separate provision but we have one in the only one benefit under this plan i'm curious about the language in the denial letter where in the committee's denial letter does it say that mr reed was not considered a spouse under federal law it said he said he was not he said it was not married but where does it does it say that he was not married under federal law and there's no where that doma is mentioned here you argue because it's doma and the denial letter you don't mention doma at all i find that very curious under federal law including the i r s interpretations that are regulations if they were registered domestic partners they were not married and that's that we were allowed to they were not married that's what we said now i know but aren't we balance by the explanation given in the denial letter well first let me say we were entitled to the abuse of discretion standard because all we were was but we can't let the committee create a new explanation for denial and litigation aren't we help in this courtroom a fall like a fifty page brief we cite a lot of them but the administrator yeah it's like a two paragraph letter the administrators they don't have to follow a fifty page brief to address the issue they said only need that the thing is that we don't know for example because of the truncated decision which is not an unusual one necessarily but we don't know whether the administrator actually went through this process in the choice of law provision two point zero three do we know what i would say is this so the answer is no we don't know that i suppose you could also say we also don't know if they decided that doma dictated zero because we don't they don't say that one way that we just don't know i don't think that the letter had to spell it all out if they went through that process well it might not but it how do you know it went through and what process it went through point well that's the point i've made my brief i know it because my law partner long before mr gardner ever a tard was fully advised of this situation and i and i totally appreciate that it's just that's not reflected in this record  that is right in this one off i appreciate you know where how people might have come out in different ways possibly at that time but we're with all respect to your law partner out we pretty well stuck with what the plan said in the decision we're always stuck with what the plan says in the plan provides one and only one benefit and it says it has to be consistent with the ricin which involved doma and if that is inconsistent with california law and we don't agree that it is then federal law would take precedence and you can't have one provision that says at the same time it's included and then exec looted that would be an abuse of discretion to come up with that kind of theory was there an abuse of discretion or was there even an exercise of discretion there wasn't it at the time of mr gardner's retirement at the time of his retirement it was an extremely limited discretion because as the courts noted he said he was single we accept that he was single that's all the discretion that was necessary well i don't sure there was any discretion whatsoever if he was single you single and he's not and he gets the benefits of a single person gets understory i'm not sure there was an exercise of judgement or discretion i mean that was the end of it was the end of the matter you know every day people are retiring and it doesn't mean you have to go behind it some decisions can be extremely simple and still it's an act of discretion i mean they they made the decision based upon their understanding of the law and that was an act of discretion at that time well no it couldn't have been an act of discretion because the law was so clear under the plan if it was single that's the answer plus there's no there's no possible discussion they would have been out of their minds had they treated them as married exactly of an immigrant duce benefit how can that possibly be an exercise of discretion when he says he's single and they reply the rule that you're single here's what happens i agree and i don't think you get into any kind of evaluation of discretion at that point so my point is i don't think it was an exercise discretion of the time or retirement there would have been at the time of denial when mr reid claims but i don't think it was an exercise of discretion in two thousand and nine well that's what i'm saying and this went off on a motion for judgment on the pleadings and the allegation in the complaint is that we did not investigate the matter and we denied that allegation because i know we did investigate that matter and if that becomes the issue of the court then there is not judgment entered in favor of the plaintiffs rather we'd have to go back and show that the investigation that was done so good because if you had if  mr gardner had been married to a female spouse and they were not getting along too well and we've seen this in a lot of cases earn in others and he checks single because he figures ok i'm going to take my money and run so to speak on this take it and use it as i wish and she doesn't need to know about that would you have the same answer here that it would matter she doesn't get her money no you that is the herne situation there you had a mistake as to the facts there was no mistake as to the facts here which once again goes to watch the discretion there is no to getting back to the original decision in two thousand and nine there was no mistake of fact and so there's really nothing to analyze at that point except maybe the law and that's what we did analyze and underdone what they were not married and finish up just they have the discretion the other side sides to the gebbie an opinion but that was a situation when the plan language said if you don't make a decision if we don't make a decision one hundred twenty days it's denied and that was no exercise of discretion since that time this court has repeatedly said if you're just a little late in the exercising discretion that does not deprive you of that discretion mr pearce can ask it seems like a lot of interesting questions here some comparisons to her  just wondering would you be open to mediation in this case open to mediation yes well that's a question for my client so i would have to take that to my client that i'm not in a position to say one way or the other ok if i can detain you one more minute when we say exercise of discretion or abuse of discretion and we are reviewing a decision of a lower court judge if the judge makes an error of law that is by definition an abuse of discretion now what if the plan makes an error of law is that a permissible exercise discretion or is that just an error of law if it's if they're clearly wrong on the law no on the is clear and yes if there's if there's interpretations of the law they could go with one and as i've pointed out the i r s has repeatedly both before and since and always consistently in the department of labor said that does not qualify as a marriage well i understand but you're avoiding the point that's made by the other side every time you say that because the question is whether or not it is when they say consistent does that mean in conflict with in which case your argument doesn't so you keep saying that but it doesn't respond to the point the other side made well the just to finish up what i would say is if that would be inconsistent with the risk to say that this one contract provision gives the benefit in takes the benefit away at the very same time thank you  i'd like to briefly address consistent with in the play and it's consistent with the requirements of a recess so it's not consistent the plan is not saying we're going to use every word in the same way that federal law uses that word it's saying that we're going to interpret our plan consistent with what the what your rissa requires of us and orissa doesn't have any requirements with respect to registered domestic partners it only ha so so i think that it's important to to note that it's consistent with the requirements not consistent with every aspect or usage in the statute well of course as i understand his argument he would say well the requirement in doma is that spouse means x and marriage means y and that is not consistent with the california  i i can understand that point but the plan does not say that it's to be interpreted in accordance with the requirements of doma it only says it's to be interpreted in accordance with the requirements of a recess and the code and a recess and the code have nothing in and o themselves to say about who's married or who's not they have requirements for spousal protections that are minimum requirements that this plan meets but this plan goes beyond them not just with respect to registered domestic partners said you know you would say that even though the same court has said that doma was the controlling interpretation of words like in the tax code but that's irrelevant then in interpreting this clause well the supreme court has said yes i would say parties before the court in windsor the ms windsor's obligation to pay a state tax in two thousand and nine right around the time that mr gardner retired was not was to be determined without regard to  a constitutional right that's that's correct i mean or i will not get would read it out of consideration and then you just look to what does the code say and what does the arista say and they don't say exactly it cannot be the case that m reid's right to a spousal benefit in two thousand and sixteen is controlled by a law that was held unconstitutional by the supreme court three years earlier that cannot be the case thank you thank you your honor but like to thank both counsel for the argument this morning and also the briefing as very helpful the case of read versus kero and i b e w is submitted our next case for argument is winding creek solar versus p