exhaust administrative remedy for their claim review of that decision is to know that plaintiff the pellets a college librarian and a college professor participated in cumberland university's retirement program while they work  you are automatically entitled to not have to go through the exhaustion process or are you arguing that in this case is that the court does not need to reach that it can decide this issue of first impression and establish clear precedent in this case that if you are raising only statutory kind under arrest that you do not and my clients have brought it claims on behalf of the plan themselves on the plan at the plan itself which arista allows to do with should there be a requirement for any johnston first violated the statute per se so to go back to here question i believe it disserves plan participants because and because participants can bring claims on behalf of the planet itself in doing so this is a mechanism almost like a class action in doing so they're seeking to make the plan itself whole they are seeking to benefit all participants if a single participant was required to exhaust his dash tor claims he would only get relief on himself he would never be able to arrive to the point where he could see plan why really i also think that it is serves the interest of the plan to do serious themselves because if you are making a claim if a participant makes a claim that the plan itself the terms of the plan violates or receive then making an internal claim having to exhaust that claim before the administrator puts the administrator and a very difficult and in fact impossible decision position because my client goes to the minister and says your plan as it's written violates a risk the administrator has duty to enforce the terms of its plan as written he does not write the plan the plan sponsor writes the plan his job is to interpret the plan he has no discretion under arrest to enforce anything other than the terms of the plan even if he believes lead to settlement or any thing of that brand correct that's an impossible decision for him he can he cannot he cannot and ever agree with the claimant in saying yes i agree with you the terms of the plan  law as you well know in administrative law there is the requirement even if it's clear to the court what the outcome of the case should the ministry of case should be but you have to first exhausted ministry remedies and so i guess that's where this came from years ago and that's why it's continued all as it has correct i would take issue that you're absolutely correct there is a provision provision of arrest twenty nine u s c eleven thirty three that requires every arrests a plan to have a to establish in internal claims procedure in its terms for quote claims for benefits my argument is that these are not claims for benefits they are not asking for they're not making a claim asking for the a plan ministre or to give them their individual pension been anything they are making a claim asking the court them to manage plan assets to and to interpret plan terms in a way that suits their plans this is not the case in this in what statutory claims a planning minister does not have the discretion to turn those over and for reasons i can't understand the court didn't force them to turn those over why should we rule on this case at all when we don't we don't have the documents in the record to look at here yes i agree and that's why we don't concede the futility argument we've made the argument that we do not have all the planned documents to this day we still do not have all the plan documents and for that reason we believe that exhausting the administrative remedies would be futile however if you engage in that if you go down that path then will have to happen is we'll have to go to the district court ask him to force them to get a the documents because for some reason they won't give them to us will then exhaust the administrative claim asking them to do something that they don't have the discretion to do  in a year from now and back up at the district court after after these people have suffered the loss of earnings and their pension for a time or thank you thank you mormon you may proceed good morning my name is blair baron and i represent the acting secretary of labor and hugh blair as amica secure and ministry to exhaustion should not apply to the plaintive statutory claims for anti cutback violations and breach in minister to exhaustion was designed for benefits claims not statutory claims and there is no basis in arrests for requiring the administrative exhaustion have reasoned that it is that you dishy area that has the expertise to interpret statutory terms not plain administrators and this circuit has already adopted similar rationale in during and were it noted that a plan in minister order does not have the discretion to interpret a risk or the discretion around the legality of its own plan and ministry of exhaustion should not apply to the plate  yes the the clinton administration is an expert in interpreting clan terms but the planning minister is not an expert interpreter nobody's an expert you know and the question is if there are ambiguity is in the plan it's helpful to the court because the court is not an expert in the risk we don't get these cases it would make some sense give the court some mail to find out what it is the administrator thinks the plan means so that's why i'm questioning whether this idea that you courts i have been a judge for forty years i don't think i'm an expert any more than the plain administrator would be interpret in what the meaning of the plan is so it would be helpful to me perhaps to know what the plan administrator thanks the plan means you follow me i do in this case however there's no issue planned interpretation that that is before the court this is a purely statutory purely statutory claims are before the court about the do sherry breach in the back violations and it ministry to when an acting or is a congress had an intent of providing ready access to courts for plan participants and ministry to exhaustion is a limited exception to this or not a risk section five of three that requires plans to have full and fair procedures for denied benefits claims but that doesn't necessarily translate to denied status or to statutory claims in general these claims concerns substantia arista we can expect clean administrators who are facing personal liability on these claims to adopt full and fair review procedures of the claims against them plaintiffs should have directors or to federal court when they search breaches or violations by the fiduciary who would review their claims and this court has before made similar observations such as in richard's the general motor corps where it helped that a retaliatory discharge claim wasn't precluded based on failure to exhaust and mistreated remedies because the review the review procedures which the plan had were designed for benefit claims not for statutory claims redress of an employer's failure to find a promised benefit the employer promised to create an employer match then didn't find that employer match and then tried to undo its obligation to provide the promised match through years which would be important obviously because your client was have proceeded to change the plan subsequent to twenty of them and you would turn those over and i don't understand complaint in november of two thousand and fifteen and then they perfect for to propounded a written set of discovery on december twenty eighth they had the of that same year fifteen they had the initial case management conference late in january and then my client moved on february ninth two thousand and sixteen so last year february last year moved to dismiss and then there was a motion to stay discovery that came a few days later i think that the point is does discovery request is it was made in a defense to having to respond to the challenge to the sufficiency of a complaint under rule twelve and i think from a procedural point of view you're not entitled to discovery on front of the district court on the face of the pleadings to to make the ruling that it did and to get us up here a bit under under twamley and now we're not just looking at the bare facial allegations that we used to look at this a little bit more which would seem to me would make the provision of those documents really critical for them to respond to your dispositive motion well i mean it's not it's not this was presented of course to the district or in a motion to stay discovery that that wasn't ruled on but to your point your honor their allegations were that they had a request for benefits they had  nominal antigay come back time and they had a nominal fiduciary duty claimed and they attached the doctors they thought that supported those claims and it wasn't until they had to respond to the motion and they said wait a second we need more discovery and then they asked me with the documents they needed to play on documents and you would term those over and for reasons that really down on the stand the district court didn't require you to turn them over well they needed this talk not in the far reaching discovery we're talking about we're down about the basic plan documents and especially as they were amended to provide for and i'm sure this information i would presume in there pertaining to that that reduction of the pension benefit which is what the loss of this album out and how you could not turn those over i  just don't understand well i would i would urge the court to consider this first of all they needed the plan that they needed more discovery they said it in the shadow of requesting that the court convert the motion from little groups well i'm talking about discovery in general right now i'm talking about the fact that you wouldn't turn over the basic plan documents including the summary plan description for the years in which the pension benefit was changed well i you'll have to retreat on that because i don't i don't know what to put i don't actually know the ins and outs of that particular your issue or not the lawyer who did that i was not an answer that maybe the lawyer who did that was a little overly adversary well i would say that i think that there might have been some zealous advocacy here but i do think it in all fairness it was presented in front of the court and the complaint did have  stay discovery the the issue that you're i think that they have raised that is called the court's attention was in front of the district court and i've got a question that goes to the argument here about to make any difference and all through going through a delayed process of exhaustion why do you even i mean  the benefits of an administrative record never hurt as a matter of fact a lot of the the the the courts that have adopted the the the rule the majority rule have had in fact full administrative records in front of them here's another point i think that is that cumberland university broke and that is insolvent or something that the reason for at least the allegations here are all that they just decided they were going to comply with the five percent it's my understanding that that the the amendment to make the five percent discretionary was a business decision based on financial considerations i don't believe insolvencies been circulated and i don't want to represent to the court that i know one way or the other but i do think this exhaustion is not a bad thing because for you sherry's do have a duty i believe to pursue on behalf of the plan at least consider pursuing on behalf of the plant breach of fiduciary responsibility claims there's no harm in bringing them to them it's a minor inconvenience to the plaintiffs we're not talking about a ton of time i don't but here's what i don't think i don't think this circuit needs to adopt a bright line rule that mechanically applied which is what i think the part of labor's urging you to do it may be that there are claims for which exhaustion mean nothing but in this case your honor what the district court found was that we had repackaged claims here for benefits and repackaged claim for benefits or claims for benefits must be exhausted now they argue that that's not true or cares that's what the district court well the district court found that they they didn't actually respond to those arguments but it also said that there were repackaged claims so if it's true and there is such a thing in the law as repackaged claims so when you have repackaged claims exhaustion makes perfect sense and the district court i believe here was within its didn't buz it's it's it's its discretion when it found repackaged claims and the benefit then is the benefit that goes with claims for benefits being required to be exhausted which i think is what we have here to your honor's point in this case that that's what that's what we have here now i'd also want to make the point if i could that i don't think the court needs to reach any of these issues here because i think the plaintiffs have i think the appellate waive these issues on the motion to dismiss on pleadings on february ninth of last year three days later they filed their response and their response was purely procedural arguing the distinction among rule twelve motions and asking to convert this to rule fifty six and i mentioned those two things the speed and the length of the response because in the initial case management order they had twenty one days to respond and they had twenty five pages of briefing they made a tactical decision to to respond in three days and talk about procedure where we're going to i mean by converting it by seeking to convert it to a route fifty six which would allow them hopefully to look at the the the facts that have the have to overcome the possibility standard so you have to have done that before hand the idea that what you do is you'll soon and then move for discovery because you're entitle discovery by the very virtue the file a lawsuit just isn't the law and it shouldn't be the law and that's why twitter is what it is rule twelve c but as i as the district court pointed out that's in this case since the standard is the same that's a that's a that's a technicality and there's plenty of case law and not obscure case law that allows this to happen so i don't think  disqualifies the motion and i have about four seconds left where you can use your let me try my three minutes to touch on his point if i may first i'd like to briefly address to its merits point about the ambiguity of the plan the point of distinguishing between claims for benefits and  them violate arrest that you cannot do a right to react amendment that eliminates benefit period that's a violation of the anti cult back rule there's no requirement for the court to interpret ambiguity the plan the administrators job is to interpret the terms of his plan document he has been given that job by the plan sponsor that the person who adopted that plan his back you also provides that and correct and i just don't see why you're so what do you want to get back down to the district court and you don't have to go through this elaborate process exhaustion because exhaust but we did file a an internal claim at the same time we filed this appeal just to cover all of our bases and not trying to be obstruction mary their time for responding to that claim has passed and we have not gotten a response so whenever it is that we can get through that process we will take our two my two clients and go back to the district court he dismissed without prejudice so we presumably we can go back it will be a year or two from the time when we originally started we will be able to bring claims on behalf of those two but the question as to whether they will ever be able to represent other participants who have not exhausted or the planet self is still up in the air because they have taken the position that every participant in the entire plan has to exhaust in order for them for everyone for you to join the majority of your sister circuits and just abstract question we need to get to the merits of this case and your client's rights and don't need to go off on some abstract procedural question necessarily we we just don't we need to quit killing time and get to it yes i agree i agree my interest is as a as a lawyer because i'm i'm up here  often on a risk issues and the less often i have to re argue the same point the happier that would make me but you're absolutely correct from my client's perspective they just want to have their pensions you know you want us to hope that there is no requirement have to exhaust them but no no court has come straight out and say that it which is why we didn't exhaust in the first place because if we took that dicta as a sign that we didn't have that requirement have we done that we would have gone through this process and  if you're if your honor wants to know about the documents we had three documents we have the two plain document argument would be that's enough for me and i come back claim it shows that man meant what it was before and after the point about the documents is a good one it goes to the argument of futility which is why we've not really we preserved futility he incorrectly said that we did not it's in paragraph forty one of our complaint that it would be futile there is a mentally not a lot of detail about that because we don't have any of the d summary plan descriptions that have been adopted since then we don't have copies of them i've asked between four and five times for them i've never been given anything other than an email from the plan to one of my clients  which they said i guess attached one of the more updated summary plan descriptions but they refused to actually give me a copy them to claim torricelli zealousness yaz and so unfortunately that complicates this case which is why we don't concede futility which is also why we didn't respond to the merits of exhaustion in our reply but save them for our server arrived because we found ourselves a bit exasperated by not being able to argue for futility without knowing cutting back a crew benefits which would be an exception to the anti climax rule that requires you to propose those you have to show business hardship filing with a d l and get approval they've never attempted to do that they'll do th i suppose if they had a business hardship and felt like they couldn't meet they were broken over or right i don't think that would condone the fact that they have already violated they had to cut back rule but i guess going forward they could attempt to go through that procedure but they did not do that and so i don't have any hard evidence of what their ability to pay is they haven't heard of the doors they're still operating and i did want to just mention about waiver i struggle to understand that argument your honour's because  district court specifically recognizes that this is issue of exhaustion has not been decided by this court and he made his decision on that base day so i don't know how i could have waived an argument that the district court expressly used to decide the case so you should you have to document the spam they've given you most of the documentation what to do you have i have i have the pre amendment plan october of twenty fourteen and made it effective january first twenty thirteen so almost two years before to have a discretionary match they've never gone through a procedure of designating what their annual discretionary match is that presumably they're saying it's zero and i so i do have those documents there's a difference between the plan document and the summary plan description and the summary plan description is what contains a claim procedure and we do not have we do not have we have the two thousand and eight summary plan description but not a new summary plan description is more recent and we don't have one that would govern and the ministry of claim that we make today or the one that we didn't make the two documents you have all those  other well that's that's why it rewrites the practitioner's appreciate it when the court grants clearly on some of these issues for us going forward i like to say that no one and there's a reason john grisham