he's number one eight dash two zero zero two bernard molder v international brotherhood of teamsters pension fund local seven zero five or arguments not to exceed fifty minutes precise mr mark s n l wor to point out to deal with in this matter before the court today in addition to what's in our briefs first of all the three documents that were never included in the administrative record and the linchpins of the arguments that are being made by the teamsters pension fund in this matter for the one nine hundred ninety five determination as to mr maulers early vested retirement benefit and the two thousand and thirteen and two thousand and fourteen letters where he was finally awarded his thirty an out pension benefit after twenty seven years of trying to get them those three documents are not in the administrative record and we have asked the court to judicial most of those documents the two areas that i'll be talking about today will be given the award seven years of problems for mr mulder to get his theory out pension benefit be on the other side of the coin the teamsters were going to argue knowing they were going to argue procedural issues as to sixty day appeal periods the statute of limitations so when we get into this case and the teamsters starts out by saying mr molder never came to us with this pension benefit question until two thousand till one thousand nine hundred five we had to spend hours with mr molder an eighty year old man digging through boxes in his bar to try to find documents to show that he did in fact appeal this or make an application in one thousand nine hundred six for thirty an out pension benefit and he made an application in one thousand nine hundred seven for thirty now pension benefit the teamsters cannot find any of these applications not the eighty six not the eighty seven not the nine hundred ninety five application in eighty six mr molder makes his application for the benefit for thirty thirty in our bench pension benefit and mr maule there are fines when they when we get to this case and they say he's never even come to us before mr molder finds one thousand nine hundred eighty six letters from then later itis the administrator of the fund saying i mean you application at one of our meetings in late one nine hundred eighty six now they were talking about a disability pension but he had applied for a thirteen out pension benefit so the teamsters can't find any documents that relate to m ever applying for the benefits not even in one nine hundred ninety five connect find the application they admitted applicant in one thousand nine hundred five but they can't find the application so you're saying he applied in eighty seven as well yes but what happened to that application it was never decided by the pension fund they just kept asking for more records and the administrative record is absolutely clear and it's unrefuted by the teamsters fund mr molder when he filed the application after february first in one thousand nine hundred seven was requested to provide documents over and over and over again he had to go out and get documentation proving in one nine hundred fifty six he was working for he didn't  and at that point he's given benefits but not the thousand dollars that would be the thirty and now that is right in the three hundred s he's giving in and he's given an early vested pension benefit which pays and twenty five percent of what he's entitled to receive under the thirty now pension benefit and the letter that makes that determination in one nine hundred ninety five was never provided to me or to the attorneys who helped mr molder get his pension and two thousand and eleven is thirty now pension in two thousand and eleven that determination letter which awards him is truly a week early vested benefit paying him twenty five percent of what he's entitled to receive is not in the administrative record and he knew what he was getting yes yes he knew what he was getting and that letter mr mulder continued to compile information and finally got an attorney involved in two thousand and eleven to give him the thirteen hour pension benefit  early best of them the idea was that if he wasn't getting their thirty in our pension benefit and if you look at the letter you're on in one thousand nine hundred ninety five letter one thousand ninety five letter which was not in the administrative record never provided to us there's attorneys when we asked for all letters that letter doesn't say anything about the thirty in our pension benefit it doesn't say anything about what mr molder should be doing to enhance his benefit but is there implication if he's getting what is in effect a twenty five percent benefit near an implication he's been denied the thirty in our benefit and he should take action if you wanted to do something about it your honor i would respect that the sixth circuit has held that in the vendor quote case in one thousand nine hundred two that those letters must contain specific references to what he needs to do in order to collect the different benefit they don't even mention the different benefit in the ninety five letter and the other thing it's fatal about it your honor is it doesn't include the year is a mandated language about filing an appeal within sixty days and filing litigation in the u s district court  there in ninety three it was not in that letter but with the requirement there yes it was so i know your time is very limited to cut to the chase in two thousand eleven he has a lawyer who helps him and he gets retroactive benefit gesture which pay him the full thousand dollars that he should have been getting for thirty and now so we now get to amount it appears that he is not intended to that because he had to retire after february nine hundred ninety how do you address that merits argument the merits argument is that the document itself the pension plus plus document which was not provided to us until after the will again and after the appeal was filed while we were in litigation after the appeal that document doesn't say you have to have retired after february first one nine hundred eighty seven the summary plan description that was provided to us that's in the administrative record the ones dated february first one thousand nine hundred seventy that document says you will get a minimum of one thousand dollars per month if you are a thirty and now beneficiary why would you say a minimum if it's cut in stone to be a thousand dollars until nine hundred ninety so the s p d summary plan description supports the idea of going to get at least a thousand dollars and then when you get the document it says that you will that you will get a anyone between february first nine hundred eighty seven and february first one thousand will have a similar check mailed so you didn't see different what happens was in two thousand and fourteen we write to the pension fund and say give us all the letters all the documents all the plan documents and mr edmunds and things like that they send some of the documents to us within file letter asking for an appeal truthfully i like the idea of not having an administrative record so i filed my complaint and then after we father complaint they said well we didn't know you wanted an appeal so let's have an appeal now and we said fine give us all the documents and we put right in our appeal brief we don't have the pension plus plus document and they don't provide it to us before the appeal or curse is  document and p d we believe it's a plan document but it's not it may not be an s p d we believe it's a summary of an amendment to the plan remember this is a multiplayer plan this is were a multi employer plan what do you what do you think it is not in a speedy but i think i can reserve on whether it's an s p d i don't know specifically but it is an amendment to the plan and it's a document that needs to be produced when requested under six   we asked for documents and to in september two thousand and fourteen in october of two thousand and fourteen we get a letter from the pension plan saying here are the letters the s p d the plan documents and they did not include the pension plus plus document remember we don't have the points pension plus document we're we're estimating guessing that it's consistent with mr gregory right this is letter in one thousand eighty six that the benefits going to increase in february ninety seven so we get the documents from them the district court says they told you you got all s p s and plan documents and that's the entire breadth of the analysis but it's not in the administrative records it's not in need documentation they can establish they sent it to us and in fact mr ryan counsel for the teamsters sends us the document after shows that your client first received the pension plus plus document it's an email from september of two thousand and seventeen i'm sorry people two thousand and seventeen from council here today april two thousand seventeen and there isn't anything in the record that your client had this document before that there is not is there anything that shows that this document was sent to your client before that ok list any of the judges have any questions your red lights been on will obviously let you rely on your briefs for your other argument thank you make me please the court my name is patrick ryan i'm here on behalf of the defendant happily local seven o five international brotherhood of teamsters pension fund i'm sorry position is that the district court got this please certainly your honor our position obviously is that we think the district court got this case correct and we're asking the court to affirm in all respects here in our view there's really just three issues that are properly before the court and some of them are familiar just it's a fairly standard  lot of ways but what is unique about it is the passage of time that has occurred from some of the key events and obviously the pension fund sees that passage of time in a very different way from mr molder at first like to address the five hundred dollars benefit issue that you were just discussing with the mr allard initially i think the district court is correct in finding that that issue was waived at the district court level the issue wasn't really argued in mr molder briefs and on that basis alone i think you could affirm it but i think the court was also hinting at the fact that even on the merits there is no claim here for mr molder for this five hundred dollars benefit our position is that this document is not an s p d and i'll talk a little bit more about that later but looking at the plain language of it it says that the following improvements are for active members who retire on or around after february one thousand nine hundred ninety and after that is this additional five hundred dollar that's the part of the paragraph prior and it's discussing different benefits entirely nothing in the structure of this document says that they're going to be additional benefits for early retirees this one is specific to people who are tired after february one  so what what is that second paragraph of this document referring to a check reflecting a similar increase will be mailed to those who retire between february one eighty seven february one certainly those are discussing cost of living increases that were mailed out to their cost of living increases going on a five hundred dollars benefit on top of a thousand dollar one is not a cost of living benefit so when mr molder did retire and apply for example cation in  hundred five whatever rate was in effect under the plan would have been what was in there and there really hasn't been any argument that it should be other that should have been different but this five hundred dollars benefit was not something that took effect until one nine ninety you know the other basis on which i think the district court's decision can be affirmed here is just the timeliness of the issue and this is where i was here the pension fund sees this lapse of time very differently from mr molder and our view the operative date here is  hundred five when he first began receiving his pension at that point we think the clock started running to challenge any disagreement he might have with the amount here for saving so suppose that the fund had not told him of his right to appeal should that impact whether or not he should earn interest on the delay in payment of anything so he got a settlement in ninety think if we were looking at such a subsea substantial lapse of time that argument might be more persuasive that not having the mandatory language in there with the equities towards giving interest but  also here it's not a traditional denial of benefits as we typically see it if we are saying you're not getting a pension and that language is not there that would be certainly problematic would give mr molder a pension when tommy wasn't in title to anything so when he he's giving you papers and it's sort of up in the year and he doesn't know what's going on and then finally you so you give him some kind of unilaterally i'm not exactly  sure what happened i guess he finally gave you all the papers you needed to show that he really was covered and then you say ok but you are only entitled to a portion of it and then it's not until two thousand poor team that you clean everything up and you know i would i realize that you would expect people to make claims with this is also money that he had earned and been it was it was his basis one is how he gets the case before the court there's really no statutory basis that we think it's proper to bring it claim for interest only in this case and you know does not on the seventh circuit in the eleventh have ruled on this issue directly finding that section eleven thirty two a one b does not provide a statutory basis for interest only the second circuit did disagree and find that there is a basis to bring such a claim the eleventh circuit after that considered the second circuit's opinion and still sided with the seventh circuit in that regard which would be approximately how much  difficult question to answer because one of the things that we've not resolved at the district court level is the appropriate interest factor we would obviously argue for a much lower interest rate than mr molder but it could be deathly six figures and possibly into the millions  benefits like this one the denial of benefits necessarily results in a continued withholding a benefits until the denials either finalized or rectified the denial that is injury in the withholding is ancillary there too it's clear that if the pension fund had denied him a benefit and he sued he'd have a much stronger argument to get interest although there are still equitable factors to take into consideration there but here we paid him the benefit in january twenty four teen after working with him and his counsel for multiple years to try to get the documents we needed when did he first yes for interest on the money the first request would have been the letter from mr all women into their late twenty's fourteen early twenty fifteen but it was and i don't recall seeing anything in the record where is requesting interest prior to that  you know the district court i think also correctly pointed out that the plan does not specifically provide for interest on benefit payments you know the trustees have the ability to interpret the plan documents so to the extent that  there's any question as to what the plan provides i think the district court correctly deferred to their decision on that but putting aside the trustees decision even if this court decides that there's a statutory basis or just a pure equitable basis for mr molder to bring his claim just for interest here the district court exercised its discretion and found that the equities didn't really favor interest one way or another there was one of the points made with the fund has to be it was just an argument there was no i was who we didn't do any discovery at the district court level but no there was nothing in the administrative record that showed that we had done a separate analysis of this issue but there was a complaint that there was so much but the delay here you know when we start paying a benefit and sixteen years later is when it's really challenge to it throws things into chaos and if this were to be something that occurred on a more regular basis and not being the outlier that it is it would be particularly problematic but you know these are the plan itself was never really responsible for the delay i don't think so honor here you know the parties obviously disagree about who's doing what and when here but the pension fund has asked for additional documents that did so before nine hundred ninety five when mr molder was contacting office worked closely with his attorneys at the pension rights center and tried to give them what they're asking for if we didn't quite get everything it wasn't because of any malice it was we thought were give them what we had and what we need ed and but if he gets a letter in ninety five which is like the first time you're even acknowledging that he exists in the system and you're he's getting a fraction of it and there's no there's no advice as to what or what do you have to do to claim or i mean obviously this isn't somebody who's really very good at knowing what to do to protect his rights i mean he's taking you wit i mean it sounds like this guy is lucky that he wandered into the right place and somebody was there to help him finally well i think he was and i honestly i think he was lucky to have help in the pension fund office when he showed up in two thousand and eleven because frankly if the fund office had asked for legal advice at that time we would have told them to deny anything at that point and had been sixteen years putting aside any pension appeal rights the statue of limitations in michigan is six years and he wants ten years we're we've added the two of them together at that point it's simply too late to be raising a claim like that so the pension fund generally tried to help him when he came to them in two thousand and eleven so why  understand why i mean statutory statutory interest numbers are a little crazy but i don't understand why he shouldn't i mean if he came back in two thousand and eleven why not at least get the interest between two thousand and eleven and two thousand and fourteen or i don't understand bill no interest well and if if there is to be interest that would certainly be our position that it should be limited from the time when he reached out to the beyond that i don't know what more i can offer other than the delay from one thousand and five to two thousand and eleven is really problematic for us i would point out too that there is a seven circuit decision it was a district court decision that was affirmed per curiam by the seven circuit with a similar delayed benefits where the participant wanted interest and it was affirmed that the funded not act improperly by asking for documents to verify his entitlement the benefits because remember as a twenty eleven when  mr molder came to us the records that the fund office personnel were looking at showed that he had twenty five years of service not thirty and the last issue i just wanted to touch on briefly is mr mulder's claim for statutory damages under section eleven thirty two c one you know we think the district court's got that issue right as well the district court essentially i think assumed that this document this four page document that was attached as exhibit b to the first amended complaint was not a summary plan description of what's not spelled out in the opinion and that's certainly our position that it's not the what happens if i understand correctly there was a summary in the s p d and then there was a change consisting of these supplement these plus plus better correct so and then the time the the s p days been amended aren't they entitled to that summary the plus plus summary because the s b d d is not going to inform him of their right we certainly weren't trying to deny mr molder access to this document we really didn't know what he was asking for we were asked for a summary plan description we gave him some replan descriptions and eventually were able to figure out it's this document this is not a document that the fund office looks at when they're calculating benefits they look at the plan they look at the s p d this was an informative bulletin that was sent to participants thirty years ago so we're happy to provide these type of records we don't think we have a statutory obligation to but it's not a summary disclosure let's say he retired after ninety days and he and he wanted to know about his benefits i mean were those benefits discontinued or were they rolled in those benefits are ongoing so would anybody who has been receiving that additional benefit would still be receiving it ok so how would somebody who was entitle to would know about it it would be in a later s  plan description did he ever ask for all the speed between when he was going to retire say eighty six or eighty seven and the current date post two thousand and eleven off the top of my head i believe so but i can't say for sure so when you produce these various s p d there would have been something in one of them that indicated that per pupil who retire after one thousand nine hundred they would be getting extra benefit i believe so yes ok so you're saying that was in s p d which one i don't remember the precise date it took effect it probably would have been ninety one ninety two but i don't have that information handy what is the date of this document do we know this one little four page document yes that would have been i don't know but again it's not because we're trying to deny it we didn't know what they were looking for he never had a determination by the plan that he wasn't entitle to the money for it aside from the everything that's gone in this case  cracked should there be opportunity for the fund to decide whether he's entitled to the five hundred dollars extra we would be open to presenting it that way certainly we could present it to the trustees any further questions thank  i receive shoes are the rules are clear from wilkins and what you have to do what you have to produce and the plan that would follow also steps has a pretty good success rate in the sixth circuit that hasn't happened here the documents that we're council just admitted to it goes we didn't send them this he called it an informational document it's a material modification we're talking about a thirty three percent increase or fifty percent increase in a benefit that we didn't know what they're asking for we gave them we told them every single thing we could we gave them mr gridley to write this is letter saying come and talk to me about this because i want you to withdraw your eighty six application and file it after february favor disclosure of documents if it will help the beneficiary determine his benefits his or her benefits the document that we're asking for is specifically a document that should have been produced not only put one hundred  ten dollar a day penalty but because it's the only way he even knew what the benefit was supposed to be and the court asked the right question in one thousand nine hundred five if you ever told them to appeal argument or a sixty day appeal argument otherwise the mandate from the u s or regulations which this court has incorporated into six circuit precedent would be meaningless if you don't have to asked i don't have a number but i can tell you this if it's four percent it's between i think between three hundred fifty and four hundred thousand dollars if it's return on investment it's three million dollars and that's why we ask for the return on investment stuff interestingly we got caught in the voc how gap initially walk out said if a benefits delayed you can get interest at the return on investment rate we our complaint with rock our one in mind our initial complaint then walk out on bond was decided probably in this courtroom and in the on bond decision the return on investment aspect of rock out was pulled back would hope not but yes we're going to have more litigation we go back to the district court and the idea would be to determine what is a reasonable we turn for someone who didn't get his benefit for twenty seven years and it's interesting counsel wants to pin us and say one thousand nine hundred five we didn't tell you could have filed your appeal but now it's hard for us after sixteen years let's talk about an individual who didn't receive his pension after working for thirty years not getting it for twenty seven years that's what walk out looks out it's not punitive it's a payment to make up for the failure to pay the benefit on time and that's almost a mother is asking for here give me the money