movies moved what is relevant what is relevant is whether the district court was wrong in now determining that these letters were not a researcher request for information when this court already ruled that it had been that is because you have to read that opinion in context to and the context of that opinion was an appeal from a summary judgment motion the district court in the first appeal ruled that those  requests for information mr bell's counsel argued as a matter of law that they were there were no disputed issues that for the district court to address in that first family judgment motion you extrinsic evidence offered about what was what was intended by them well if you look at the extrinsic evidence testimony that was presented only support the finding that the letters were requests for information for example you're right and we decide we have reversed this do understand correctly the store statute of limitations issue that was never addressed by judge king just so i would have to go back for you to just record the first crack at it to this case because of the statements about why the case is being pursued to pay the attorneys he made some comments about the basically the attorney's fees tail was wagging the dog yes i mean i just say that all the time  to address the penalty and his statements on the record and his ruling i don't want to get to the penalty issue and i will not get to the penalty issue i will find these letters to be not be always a letter just as i did the first time many cases as we could possibly find that address penalty issues to circumscribe and and defying the district court's discretion because we knew we were going to have an issue with a diminishe finding versus substantial penalties which the facts in this case clearly deserve i didn't find any other cases where there was seven years of delay and seven years of unexplained  argued that you did not take the position at that time before the district court that the first one circuit the decision to close the door on the issue that ultimately went to the bench trial when did you first take the position that there was no apply we would have had to take in two distinctly opposite positions for example the cases they cite it's trust property or it's not trust property and we did not do anything of that kind we clear to me that you told judge king you should read it the other way i suggested maybe he wasn't unreasonable in going for the way that he did well it may not have been unreasonable for him to go forward with the trial and take evidence on what these letters meant but even if you if you granted that there was no evidence presented that these various meant anything but what the ninth circuit said the first time around i think there was i mean certainly the position that the judge king automatically reach was that these newsletters were not requests for specific information such as was the amount of my fund or all the calculation me there were an effort to express opposition as to how the numbers should be calculated and in fact at least one of the letters offers up information or volunteers i'll give you information to tell you how it should be calculated suggesting that the author of the letter wasn't in doubt about the information rather was expressing  which it was hoping that hawaii and would would adopt and i don't think that's that's quite correct because for mr bell to have that knowledge he would have had to have some information that this was his retirement amount and nothing it was known what's going to be added into the base from which you calculate and this is where you get into the issues of whether i've not forgotten the term is one term in particular use that i don't understand but i'm getting adjusted to that that whether or not that gets counted as part of his compensation for purposes of calculating retirement benefits and the main thrust of his letters appeared to be to express his position that these things are supposed to be included in the calculation which is going to really result in a higher retirement benefit i think you actually read that as he is his suggestion that this is the way i think but i want to know what you're doing and that was never given to him so he did it he can say anything he wanted to but it didn't really instance what his retirement benefits were and it is very clear that that wasn't done until september twenty ninth one thousand nine hundred seven and then response finally to an attorney letter as opposed to one because there's never been an explanation as to why that was really it's it's completely unexplained and that's what makes it so bad you know well at least at the front end it seems to me that there's there's a plain explanation and that is that the two sides had different points of view as to what gets calculator what gets included in the base for calculating retirement pay well his letters seem to make that clear in particular the october twenty seventh letter is very detailed in laying out numbers and so on and so forth he's prepared to offer up the information he knows what the component parts are but why hasn't agreed that all the component parts that he thinks should be included why hasn't accepted that position now they have put him off in an unusually unenlightening manner there's no question about that but there's not a whole lot of doubt as to what it is the parties are potentially disagreeing about is there a risk i mean he does not know the fundamental crux of the things he does not know how does the penalty phase work is it one hundred dollars a day until he gets the information it's thirty gave the company it's thirty days from the time that it is written right from then on the penalty kicks in until the information is provided up to one hundred controversy possibly five years and the case law is that each letter triggers the penalty and i think it is that way because you do not want employees or former employees a were here this court affirmed and remanded a summary judgment order the judge king had issued and the part that was remanded was with respect to these letters and judge king found based on the argument that had been in charge of the pension issues when she was at hawaiian airlines at the time of trial she was no longer with hawaiian airlines she was with first why and banks so she had at that time no stake in the controversy explained to the court and you can see from not only mistress sakis questions but the colloquy between the witness and judge king that when she received captain bell's letter she understood that that or was requesting that was used it's not all that clear except that when you're asking for a calculation isn't that asking for information as opposed to asking for payment and if she understood it to be asking for a calculation which she wasn't providing him isn't she failing to give him information he's entitled to under section ten twenty five he can calculate his retirement benefits and how he's going to live for the rest of the life which is the purpose of the statute she had done the calculation he was receiving his retirement each and every once he knew the calculation that was made and the retirement benefits that were being paid what he wanted was a change there was a preliminary calculation and tell its words it meant it was something that would be calculated then there'd be some calculation in the future and he wasn't being paid in the interim he was being paid to was being paid that's another reason why i interpret his letters and ever that he had with the through the airline pilots association and that was a stretch keynoted the recalculation the final mccalla final calculation was something that was part and parcel of the collective bargaining agreement to the extent that he was requesting that that is preempted on the long versus flying tiger decision that we took up on our last appeal this is not a case where he was asking for  description or he was asking for a risk the plan documents what he was asking for was to have his calculation changed which is part and parcel of the process under the collective bargaining agreement so that was and that was as mismatched mother testified what was going on in the dialogue between herself and mr bell it was interpretations of the collective bargaining agreement and the page fourteen finding number eight it's part of the same request that bell's benefits be recalculated in accordance with the interpretation of the plan and the hawaiian airlines contract with its pilots and then the key finding as number nine that his request for contractual one that subject is one that arises from the collect the only plan there is is the one that is subject to this part of the pilot's collective bargaining agreement the interpretation of which and then and that and then the evidence of that is that is most matsumoto explained they see in the stripped down that and they have talked through the two issues that are driven by this collective bargaining agreement the issue the only issues here were vacation time how you account for that and bank time which is a measure of hours that pilots fly and put in a bank and are paid for later  went to the committee that is set up under the collective bargaining agreement which consists of union members and management members who then review to make that determination correct the yes my argument is that this is not a request for information that's required under arrest or shoot to give your summary documents your plan documents this was not a request for those documents this record it was not it was a request for information to the extent that your honor is characterize a request for a benefit calculation is information my view is that this was not a request for plan information which is what is required by arista with this was a request for was for a recalculation of benefits based on the terms of a collective bargaining agreement which is exempt from arrest i don't i do not view this as a request for information as evidence by that if you look at most matsumoto first letter he said let's get let's recalculate she wrote back and said i'll be doing a recalculation book that i'll get back to you shortly she didn't say here's the information here's the plan after she was working on it they then that and the evidence showed that they he said here let me help you let me give you the information you need to recalculate my benefits he did not in his second  indicate that he needed any additional information from her all he needed from her to do was to do a recount you lation in accordance with his view of the collective bargaining agreement so her instruction so he provided her with detailed information as to why he felt that the vacation time and the bank time should be included in that calculation in total benefits and created calculation to recalculate the benefits accrued ok well isn't that w information in total benefits accrued he he had been provided something labeled preliminary on which he was being paid he had that what he wanted was something different what he wanted was a reinterpretation of his plan if that's in order to receive a higher amount based on the inclusion of items for the case in time and bank time he was not requesting information required under that section and what judge king relied on was her the mismatch contrary to counsel suggestion that it was her understanding that that information was being requested witness matsumoto testified at trial was that the she understood that what he wanted was for her to recalculate his benefits and they had meetings they had discussions and they had correspondence asked that remain and did this for the matter to be viewed in context and the context was presented to judge king judge king had the opportunity to review to that matsumoto captain barr stead and there's no naka judge king had the opportunity to view and understand the dialogue that went on between those parties back in one thousand nine hundred ninety two which king had the opportunity to hear the context firsthand and i think that while i can appreciate the court viewing that something could be viewed as a request and certainly that's the language of the last opinion and as i understand your honour's remarks today nonetheless judge king had the opportunity to see what the understanding of hawaiian airlines was not with the understanding of why an airline should have been not witnessed much the motos should have thought what she actually understood what she actually did in response to what she actually understood and the first subjective  reasonable person in this month's tomatoes position yes i suppose i would agree with the court that if she were in some way an reasonable or in some way arbitrary or vindictive or that that there could be circumstances where her understanding would not be appropriate but here this matsumoto was a very credible witness a very sincere witness and there was no indication of an reasonableness on her part as captain valis a very popular pilot there was no there was no ill will or bad motive or anything else she genuinely was trying to respond to request information or they don't request information and i don't know if it matters that she thinks it doesn't or she thinks it's a thank you note or a love letter or she thinks it is a real either a letter on its face request information or the letter on its face doesn't request information that's the end of it if you look at the letter and you can't tell you should win i don't think you should be allowed to introduce evidence either i just don't understand why we don't look at the letters well i think we do look at the letters but i think th that we should look at the letter viewed in context that's and that is and that's what the trial did that's what all of the pretrial both not only our argument before court before the court in our final  requests for information not they could be viewed in context but they were requests for information and instruction to have a trial with respect to what penalty if any list appropriate in the circumstances that so the proceedings below followed that i got i think i should have the court thirty seconds left  opportunity to understand what these witnesses understood this is a penal statute this is not they did not clearly understand that this was a request for planned information required by recess as opposed to a captain bill himself was pursuing i look up bank time was the phrase i couldn't remember he this claim was the bank excess bank time and vacation time should be included in the calculation is that correct that's true but and so to get to the final calculation somehow the parties in this case that that means the retirement board has to resolve whether or not that legal proposition is true we're not talking about an arithmetic calculation we're talking about a resolution of a legal issue yet or what what goes into computing the numbers that go into that calculation that is correct and this case points that out because it was not until one thousand nine hundred ninety seven when he received those calculations that he grieved and he went to the retirement that determine what gets added am doesn't seem to me that captain bell needed information in the form of what are the numbers because he was tending to why in the numbers themselves he knew what the numbers were it appears to me that his request was for a resolution that is a good and terminations of what gets included in the base for the calculation is there something in the arista statute that suggests that that kind of information or resolution is something that's required to be accomplished within thirty days no i think i think what you're saying is that bill knew what is retirement benefits or not he knew the numbers he knew the number of hours it was the excess bank hours in the vacation hours he needed to know the legal position to be taken by the rich that would be taken by the retirement for because it wasn't ultimately quine's unilateral decision but if he agreed with him what if the calculations that mean that's what he was asking for i need to know what you're thinking i need to know what your information is before i can do anything so that's the that's the problem with what the district court did not like the first opinion in this case so it had to characterize letters as something other than requests for information and the way it did it is to say all these are demands for payment because he's demanding a recalculation but that's not what's going on i asked mr marshall model on the october ninety three letter now you understand that this that it was in reference to your earlier promise made in one thousand nine hundred that you would provide him with the final calculation of his retirement pay yes what did you do in terms of preparing a final and the pilots union it was the retirement more that ultimately would make the decision as to what's going to include it because she actually passed a calculations by mr carr stack which she did she did that in one nine hundred ninety three and it fell through the cracks so the effort the effort to get that information to provide to mr bell was actually done they knew how to do it and in one nine hundred ninety seven when this no not that i actually did the whole nine yards she next case is the euro for one zero one eight five united states versus