lower court finding that a portion of our ordinance relating to apprentice training violated the concept of the recipient and there's an injunction against a particular provision we seek that  uction be vacated and that the city be allowed to enforce its apprentice training requirement the basis for that request and putter arises out of what's known as the market  issue before the court coming out of the box when there was an and trunk ssion hearing and the judge explicitly said that she would not entertain our request that she revisit that issue and for that reason in doing with judge so bell there was a little bit of a balance that i had to perform at the time because the judge had six months earlier struck and identical ordinates so having heard her on the matter indicate that she would not entertain no wouldn't because i conducted the same search or are i understand i thought where the question was open that i would raise it because of the significance of the matter now i beg your honor if it's agreeable go forward it is the fact that the city has a proprietary interest in public bidding projects the way the state statutory scheme works the focus is on the lowest bidder in the record we have affidavit from our mayor indicating that the purpose of the apprentice requirement to view ordinance was to have a trained quality workforce on projects that were coming on line in the city raises a couple of other paragraphs where we're talking about residency requirement paragraphs eleven and twelve and any green that that concept doesn't apply we were specifically focusing only on the quality of the work force and sought therefore to participate as a market participant the reason that is significant is the ordinance does not have the effect of the law which is the trigger for the prevention argument and moving on to that the first issue we have is that we have before you with parties that acknowledge that they did not fund their apprentice training programs out of funds these were funded out of the channel funds and therefore the very sort of funding mechanism that theorists a statute is intended and designed to protect was not implicated in this case isn't it some of the alliance members well the marital lights may sound argument your honor and reviewing their complaint paragraph and i know of a complaint made reference to that but what it says is house and that's why we conceded early on in the snout of the apprentice training program as evidenced by the fact that these particular defendants funded out of the channel funds is not always part of an employee benefit plan the discussion in our brief and the analysis of courts that are looking at this issue always focuses on what is the intention of a risk and the intention of the research to funds that are held by employers well that is and presented here and that's not what quincy is from and taping that any type of particular program particularly one that's funded had we been tainted a funded program we know that it was guaranteed that the funding would be there when she took a different route it mandated an apprentice program that complied with the state so we know that there would be some quality level to it and essentially by complying with the state requirement about the quality of that things were covered the funding and how the employer got to them which is not been tainted by the city of quincy and the fact is these particular defendants show that a receipt doesn't apply to our ordinance because they have been able to comply with it without using a recess fronts ok so that is so that if it was conceivable for a corporation to do a pension plan without using the risk of funds the city would be free to legislate about pension plans mandate mandate the imposition of argument but i respect fully disagree with the fact that a pension plan fits into my are going to because i agree with you that i don't see how the city could mandate a pension plan and an employer could somehow comply without without wanting into the very types of accounting issues that arise under rissa the difference with the apprentice training and this is what the dillingham case is about a case that we focus on in our brief and we think that it's important the difference there is you can't comply readily without getting into the area and without funding questions without it ministration issues  we backed away from the health care although health care in the new york state case was an area that was addressed but we backed away from any of the areas that do get it trigger funding issues and stuck exclusively to the apprentice training that's one of the reasons why the market participants doctrine here was so important but that brings me back to the particular problem in this case i'm standing because i don't know that we would be before you we had we raise pension issues because i don't think that the same sort of concessions by these plaintiffs would have been made regarding their pension program i don't see how they could have funded out of general a statement made in the complaint that they do not have apprentice programs and the point that the city would make in response to that is well all our ordinance says is you need to have an apprentice program honor and and that is the connection with an issue that is before the court we know this town very much to the point where we're just talking about connection with and that's see arguments here have probably the only four people in the state of wyoming yet moved to florida raised an affirmative defense and the answer that it was filed by the appellant but i would agree with your honor that is something that was waived because it was not argue and subsequently i'd like to get right to the main issues once fixated on this argument or this concept which is not supported by the cases that so long as the required apprenticeship program can be set separately funded by general business assets that that insulates this ordinance from a risk of preemption if it does not what they've done is they have confused the two prongs of a risk distinction and they cite to her decision and they claimed that in the decision she was actually relying upon the sinus case for the proposition that  that the pressure programs that are mandated here are a risk of plants but in fact she did not so they were referring to this is record penates to nineteen of judges so both decision what she said is therefore the only question is whether quincy's apprenticeship requirement has a quote connection with the reasons apprenticeship programs she said it does quincy's regulation requires  participate in a bona fide apprenticeship training program you know that says that is approved by the massachusetts division of pressure ship training quote there's a docket reference that's true by the way first that quits requires it bitters to have an apprenticeship program and then she says but compare but c f sinus versus quaker fabric or a state statute that obligates an employer who stablish an employee benefit plan is itself preempted even though it risks a itself not the dates nor for the creation of plans unquote and in the footnote they're ignoring the fact that she used it but compare quote the blue book standard from a citation means it's an analogy to a position contrary to the main proposition so i submit to you that fairly read it as i've always read her decision what she's saying is i know i know the connection with prawn then she talks about how this administrative structure mandates subsume training programs but beyond that performance standards record keeping it cetera and she's concludes so  regulation effectively makes massachusetts standards mandatory for its bitter surprise to ship programs including a recent apprenticeship program so she understands that the connection with prong the state from the outset that it's sufficient that let's talk about a method employer pension plan run by a national company but they argue that the fact that the ordinance doesn't compel that it does doesn't require that it all to read or that it's up a new one it can set up a separate apprenticeship program that is not separately funded and that's how it works its way around it first of all that isn't a legal standard for whether or local ordinance the commonwealth of massachusetts has never in its history impose a mandate that any contractor role in a state registered apprenticeship program contractor create participate maintain an apprenticeship program never happened what you have here is a local municipality that has and has gone further than that because this is something that doesn't get any treatment pointed out i think it's important the city quincy has done more than say if you want to work on our projects you must  the principal trades in your workforce and finally importantly you have to graduate in advance you know your decisions each year strike that within the quote months prior to the requires it before you go yes not you're both run out of time and you haven't yet mentioned the fee shifting vision we are i think you've got some obstacles you may want to consider using some of what i think you are i will but before i get to it i want to quickly address the standing issue because i haven't heard any real focus of but i do want to point out this make a very big deal about how supposedly we do not don't have the law we've given you the law of basic law and standing article three standing injury etc and we have alleged those injuries by the way our complaint has several allegations of such including the two named apprenticeship program governed by rissa such a ruling would not affect any of the plaintiffs here that simply is not the law and then finally the ultimate point they make and and then to their second thing that they say which to which to my mind may be even more substantial is that in the war the fees has to be made to a person who  a beneficiary or do sherry write that these plaintiffs are none of the your answer to that seems to be well as long as someone is a participant in some play even though it's basically want to stash story construction interpretation v the preemption provision is in this same title or subtitle as this section eleven thirty two one that provides for  in their argument they may have a better argument on statutory construction but it is not an absolute foregone conclusion that mr ross who was a member of the four one k could not recover towards fees for the overall challenge to preemption and the point of the matter is that they did not raise these issues until the motion for reconsider the way these issues and therefore they've converted it to a manifest injustice