language and the surrounding circumstances if there's any question as to what he said was intent was being was to interpret the language and determine what that and that's consistent with as we explained in a week with what other circuits have done which is want to make sure i do if there is other language in in the plan or the or the the s p d which supports the conclusion which right but maybe when you pos cites only one one provision but there are other provisions that have the the same evidence reach an answer that supports the so i understand your question i know that the court may not where is he your the use of those other provisions and you he has his failure to raise it during the administrative in the whole process as prejudiced the participants the other provisions that the the review simply to the one section cited but there is certainly other material in the plan in the summary that supports the position taken by the administration well then that's why i've given mean on on page thirty of the the red brief there are quotations from from the summary and those quotations are totally consistent with and supportive of the conclusion that the conclude that the settler didn't even think about i think there are a couple of issues with that one is that i believe the more persuasive evidence and it's repeated multiple times is what is communicated directly to mr schiewe selecting is that if it comes right out and term is ambiguous on its face and five point four and if i understand what you're saying you look at the other materials and the other materials cut against each other so these kind of reinforce the ambiguity is the plan administrator at that stage able to do kind of one of each and see could do under chevron and say look there's an ambiguity here but our resolution of this ambiguity is a reasonable one for the following reasons deal with all the different materials and explain why reading all those materials together in their view means that we material if those materials are crystal clear but there is a cogent argument that could mean made that the balance of them tilted in favor of the plan the plan did contemplate how this benefit would play out and the best understanding of all those materials is x and it favors the plan do we know that the death threats at all or is that essentially what you're saying once the thesis of the five point four provision is unclear then unless there's just crystal clear evidence beyond that claim and went i think what i'm saying is and is we have to take half step back the problem with five point  episode and the palm of the fact that it was never raised ministry you know processes if it's raised in the initial denial letter we can ask we can say wait a minute somebody planned description contradicts fight for instance the plan was later saying oh yeah you're right from now one we're going to pay people in that circumstance contradiction why did you put that in why did you make this change what was the dress and should history go talk to the people we can't do that in this ambiguity look at the other materials because we must construe the plan in your favor and i'm trying to figure out why that would be yes and i think what i what my response to that you know in a more full for by that line when it deals with b if you they asked before when is the one provision that deals with if you die before the start date which is clearly defined well i think the answer to that your honor is goes back at doesn't that that's just what i take it what that means is they say five point four when read with five point six which has the language  specifically contemplates not the benefit that follows from a death before in the retirement age but the circumstance of death before and then says he was developed at the falls in that circumstance the interplay of that specific reason dealing with that last five point four together i thought the plans argument was when you read those together the natural reasonable conclusion is that's the benefit and the only benefit you've got in that circumstance and then five point four otherwise tells you what happens i think that's a fair statement of the market was what's on reasonable about that conclusion because i find it was understand what you  saying is if you can deduce a reasonable reading of the plan we're supposed to defer to your honor for me is your question it comes back to that same problem that five point four was never raised so we don't have a record to understand how  absolutely categorically against this circuit's president this circuit does not have a magic words it has a wall that says was the issue sufficiently presented so that the other side knew what they should target the presentations were in the denial of the crying my word for it wasn't mentioned great point if i may explain five point six was mentioned then they appear for roughly between a friend isn't a burden i'm on you to explain why the benefit was denied it is and five point six alone is sufficient because five point six is the only plane provision that says thank you use that with respect to plan terms as well and if there's only one that says what happens or you don't need to then west and the following things do not happen ok now let's think about how plan a structure before there is a plan there is no benefit at all there is no federal fireman to provide retirement so the plan starts from the proposition of the only thing that is given is what's listed in  but i think it just depends on what five point four says to some extent for your expressed any segment to work because five point six although it deals with the specific circumstance it's almost too specific because it also tells you this is the specific thing that happens when you have a spouse if you don't have a spouse why would you care about five point six so then the question is ok what is five point four c as i understand it they say that first sentence in five point four at least starts to raise a question as to whether if i point for a loan is what you're looking at do we know what happens in this circumstance and i don't quite see how five point six tells  we know that we weren't supposed to give you a benefit simply because we've provided for what happens in the case when you have a spouse ok well what happens when you die in that circumstance and you don't have a spouse five point six doesn't tell us and just before you get into why it's one of i take it that construction a five point four that the plan has not weighed in with an explanation a plan that's responded to plaintiff's arguments the planet ministry committee never had anybody raise five point four and say wait a minute this contradicts five point six so you're right nobody ever gave the plaintiffs even though they had counsel ok so but that would be a waiver point but i take it just if i understood what he was saying about how we're supposed to plan construe the plan it would be hard for us to affirm under construction of five point four that the plan never offered not at all ok you dies before and they're not married a lot of people that have is there is a benefit because the plan doesn't provide ok so in other words if you die it would be if you die and fifty eight haven't put in your retirement interpose one question and make sure i understand you so for sure you you you close by saying this is the only provision that provides what happens in the circumstance is i understand your brother argument you can argue that and we kind of consider it because we cannot look at other contextual portions of the plan that explain or see or or justify the statement that you  made you clearly don't agree with him on that yes so let me at this point pose the question before you go on to part two here what can we look at beyond what the plans cited if you look at basically four decisions the circuits will tell you what to do list is the first one and then there's two k which which is another one and then neubauer which they rely on and terry those four cases basically say if it's a totally new basis if you were saying before i say you didn't you didn't meet the vesting requirements of the plan and now i say you know that investing portman's but you also didn't have to the plan suppose five point six didn't speak to a death benefit at all and that's what they relied on the plan to land on five points that is the clearly relevant provision but their position consistently all along is the one that you take now which is if you die before there's no benefit i take it you say well they've always taken the same position and five point four always supported that position so we could affirm the plan by reference to five point four even though the plan only relied on five point six which doesn't speak to death benefits at all would that make any sense when you're talking about  getting a hypothetical with the play and picks it clearly relevant provision but takes the position which they have consistently taken did you lose what you're affectively saying is we can scan the plan in the firm on any ground that we find in the plan that supports the position they take no matter how arbitrary their initial defense under the plan of that position was that doesn't seem to me like deference that sounds like  that but what i take claim in the saying is why does that matter and i would like to know from the plan why the plan thinks that matters in the plans answer is five point six and the claimant says i just run five point six i don't see what that has to do with me i don't have a spouse then sufficient to know what the plans reason would be would be something like a five point four but you're saying they don't have to even say that five point six is ever says a would would you under that under that case say that in effect on appeal we may consider any motion of the of the plan documents that might support that conclusion if they say that's nothing  there be a different issue your honor to the claims regulations which can be counted twenty nine c f r twenty five sixty point five three one they have to at least point to what they think is the prevailing provision in the plan and here they did completely eliminate when you really listen to what they say no difference whatsoever unless there's a time there is not a single case in this circuit that says that and let's look at the n h there because it's a wonderful case  they can persuade you or anybody else without taking those words out of the plant d h there he would say we win on that one let me give the second count to win the release the release was signed if you have a breach of usury duty you have a three year stamp statue of limitations under twenty nine eleven thirteen subsection two they don't dispute that they have all the facts and the a lawyer writing a letter on their behalf three and if the if i understand it the actual claim has to be contractually kneejerk in order for it not to be time for