his wrong interpretation of a clear plan terms pacifically especially early retirement benefit that is in the mueller plan up to spend isn't toddled to a special retirement benefit if his or her terminations date is connected to either a layoff or terminations permanent plant shut down here as conceded by the defendants and as the district court found in the st part of its opinion the participants incurred terminations date on the closing date when they were when they lost their employment with mueller controlled us pike due to miller's discontinuation of operations at the bessemer facility terminations of one term a nation of their employment in iraq i don't recall with the probably you know is that he said he would terminate under the plan yes your honor and he disputed they were terminated in reality that they lost their jobs ye plan is what should govern this benefit because that's what it's what conditions the entitlement to special retirement benefit right the problem you have is the language refers to whose determination date occurs prior to his normal retirement age because he is one laid off and not recalled within two year or two terminated by permanent plant shutdowns we agree that those are the terms we're looking at right yes your honor w laid off so we would look for a normal dictionary understanding i guess you would agree with that yes your honor i absolutely do so what is the what is your understanding of what that phrase means it about one's employer through no fault of their own and that is exactly what the rd amendment effectuate which it says laid off and not recalled correct you know what is laid off mean to you and means to well as a determination terminated by their employer and so i think the issue here your honor is who the employer was prior to the closing date as of midnight march st two thousand and twelve and what the purchase agreement here establishes is that there are two separate employers here there's let me put it really simply and you can help me with the problem that i have with your argument and i may misapprehended but the problem that i have is when i look for meaning to the term laid off i look to something like suspended which terminated due to no fault of the employee ceased to employ the employee and as best i can tell he continued to work  under a different employer but he continued to work and he continued to work at the same plant how be it under different ownership and that that plant was never shut down well your honor it strikes me that the argument is almost the metaphysical one it's he was in laid off in the commonly understood sense and the plan wasn't shut down in the commonly understood sense but that doesn't matter because the employers changed that's the essence of the argument well yeah well your honor yes the employer has changed but what the what mueller's argument here does and and i believe this picks up with  hedrick specifically hedrick case that they side is that this notion of what happens after the layoff these are conditions that they're interpret ing into the plan that just aren't there there is nothing that has to follow the actual layoff event so what happens after the layoff is not what this benefit is conditioned on it is as of the layoff at that point in time so your argument though has to be that he was laid off notwithstanding the fact that he continued to work at the same plant under the same terms and conditions but that he continued to work under the same terms and conditions under the rubric of different management  all right isn't that the argument our argument is that there is that discontinuation of employment and that someone else took up the baton it's that your honor because with this this mark in the change of this change of employment it wasn't just really a handoff as  mueller says that they had to they resume the obligations under the collective bargaining agreements one would not have to reassume obligations that were passing along with the entity so if a new employer comes along and says yes we'll be bound by the collective bargaining agreements that doesn't change what happened up to that point that those obligations were cut off other indications that there was a brand new employment was that the participants get the best plant ever shutdown mueller standpoint yes your honor did mueller discontinued its operations there's a reported it's not what i'm asked at the plant shut the doors did they padlock the doors and toss the folks out and stop the manufacturing that they were involved in no your honor they did but as we construe as we construe this plan language the terminations that is in the special early retirement benefits especially especially when it's you it says in connection with the current plant shut down terminated by p plant shutdown one has to look at who did the terminating the terminating here would be the mueller controlled us pipe for the closing day so when looked at from help me with this where does the language tell me that i have to look at who did the terminations as opposed to whether he was laid off or not well your honor if this is the plan language itself so the terminated by permanent plant shutdown terminated as part of what was changed under the rd amendment  and in the going to talks about the change in the terminations day but also talks about it is being terminated from one's employer so this is an imported into what happens under the rd amendment what the rd man says would happen what would be equivalent of stock of a corporation here was membership interest so mueller the holding company acquired of sciri us pipe us pipe prior to that transaction employed your client mueller then sold the interests to the successor corporation or l l c but the point never changes i see it otherwise if you're correct you would have to disregard the corporate structure and have something in the nature of alter ego and then just go through the corporate structure and ignore that just seems pretty straightforward issue of  tough time saying you say the plane was shut down for purposes i'm looking at the appeal yes when you kind of hear co counsel kind of firmed up his position the plane was shut down for purposes of a mueller operation what does that mean you were never operated the plan u s pipe operate the plant where your honor mueller us pipe is a part of the mueller control group and mueller operated mueller is the one that indicates a subset of change other than just the you know there was no change on the name outside the factory the factory was was the same but you haven't here's what i think here's i see the basic problem with your argument you're confusing the plan doesn't make mueller the employer of all those employees of those other subsidiaries anymore that has us pipe unless i'm just missing something about corporate structure where you are that well i guess this guess is so the corporate structure is the same your honor but that will at least at least the the organization of it on a high level corporate you know superficial level was a sign is us pipe is a membership now an l l c that passed on but substantively this is what this is where the purchase agreement really is indicative of what happened actually and the facts on the ground there was no need for us pite on april st or whenever it was to reassume obligations that it already had those obligations for their employment everything that was connected to their employment flows flowed through every reason the operating in a day's fuel or before april st us pay afterwards things like their vacation  change that doesn't happen that you don't lose your vacation accruals if you're in the same employment that clock started over for four clients as of april st last their ability to participate in the old health and welfare plans all of these things changed pipe was that it was the corporate form and that it held the plant however like many holding companies do they have operate they have wings they have subsidiaries that they operate through and that's what mueller was doing it to insurance companies often times you have an insurance company as a holding company but they don't actually but they don't actually do the insurance the underwriting they have their subsidiaries that do it so they'll conduct business through they rely on their subsidiaries to conduct you may have please the court and good morning i'm pat brown and with me is franklin sacca and we represent the apple e's conscious judge marcus is admonition i'll get right to it i think this is a simple case thousand and twelve for three of those years mueller group l l c own one hundred percent of the membership shares in us pipe in two thousand and twelve mueller sold those shares to another company and judge chuck there for the corporate transaction is exactly as you describe it's a share of all it's a sale of all the stock in a company to another company the argument that at some point the participants became an employee of the parent company through some metaphysical transformation that never really understood its just counterfactual they were always us pipe employees at this plant and after the sale of stock they were main employees of the us pipe at this plant period now from those facts you know we think it follows that there was no layoff because there was no suspicion of employment and there was no permanent plant shutdown just because the plant never shut down from my perspective it is literally that easy but you layer over that the district where it was right to grant summary judgment now we you really should be firm but i think you suggest should stop at the st step yeah i have a look as if it wasn't terminate because the plant shut down or  as i understand step one you're supposed to take the facts take the plan then apply the facts to the plan and it's instead like what the district judge did is kind of a more of a critique of the letter writing that went on between can't counsel the participants counsel to plan this raid or i don't think the judge fairly construed those that corresponds but in the day it doesn't really matter i still think that's what a noble review is i think the courts posed to apply the facts to the plan and come to a decision here i just don't think the court did that it did something more like that when it got to step three and it actually talked about is there a plant shut down and were there are layoffs i think that if the court had done the analysis it did step three a step one they would never have gotten past that point yet it to my way of thinking that's an easier way to approach this on the other hand i have read that sometimes courts will apply a shortcut and just go straight to step three because in a day it's probably easier conclude that a decision is reasonable grounded in reason and correct however it is that you all would like to get there doesn't matter to me but i do think the court that the decision should be affirmed so opposing counsel spend a lot of time discussing with us whether or not there's been a plant shut down and whether or not there's been a layoff without a recall so to some extent counsel is engaging in a discussion of a legal fiction the plant really did not shut down but eating as though for this case that it did in the rd amendment there is also a legal fiction and gauged and when we talk about that and that the revised definition of the severance state in the terminations date right that it shall be deemed to terminate with the employer and so opposing counsel is seems to be carrying that legal fiction over to the plant shut down so how would this amendment of this term deemed to be a terminations what effect would that have if any well i mean on the rest of the plan on the rest of the plan or on the c r benefit ok it's also a prerequisite to plain old early retirement benefits the plan also had those and normally talk about retirement benefits for all those things you have to have a termination date so the i don't think that there being a terminations date under the plan changes the facts of the relationship of employment leasers nothing in the plan that requires that to be the case and so when the plan administrator is looking at the situation and saying well where are layoffs you know that layoffs are defined let me see what what are the facts and the facts were that the plaintiffs continued employment for at least two years after the closing date so i a date that you know that they terminate their employment but your argument is the whole reason that you used the word deem it because it's not so right i mean the district court you've used the black's law dictionary for for demon and i'm sorry i don't have it right in front of you and something like two to make to give something attributes that they don't actually have ok so if it were true that the closing date was actually the date that these folks terminate employment then you would not have needed the thirty minute all right because then it because the plan already provided that the date upon which these folks and their employment was the capital t capital determination date so to my meant to my mind of thinking it doesn't really change anything and particularly you know if we if you layer over the discretion that was before the planned ministry interpret these provisions and come  it's an equitable relief claim that is premised on the proposition that mueller improperly cut back benefits in the courts should understand count to the equitable raef relief claim to be just a altered alternative way for the plan to try to get the same relief that they're saying it can't want and if you know you got to do is you look at the at the prayer for relief and the operative complaint the kind of injunctive relief that they're seeking is an injunction to order the defendants to pay the benefits or a i think a constructive trust over the benefits to the extent that they are paid so it's really just another alternative way to get to this the same result now the cases we cite ogg in the and cats are two cases from this court that we cite in our greece that stand for the proposition that if a plaintiff has an adequate remedy provided by arista then they do not had one count for failure to pay benefits under a one dollar b and in three counts for equitable relief under a three the district court at the outset of the case dismissed the three equitable relief claims because they were finding that there was an adequate remedy under under the under a one b the court went on to grant summary judgment to the defendants on the benefits claim and it went up to this court in this court said no the court was right to do that the fact that the plaintiff ultimately lost on its claim for benefits is of no moment the there was still the the real the claim under a one b was still at personal provided an adequate remedy and therefore you cannot plead even or proceed under a three the plaintiff cite some kick some cases in other circuits that would probably permit a pleading right of pleading in the alternative but here i mean it doesn't really make a difference because we didn't we're not talking about a motion to dismiss year we're talking about motion for summary judgment the court had a record before it and was able to conclude the plaintiff had an adequate remedy under a one b therefore we don't need to proceed we can't proceed with an equitable relief claim and that's it you know clear controlling precedent plant still operating and you had these employees they would only each employee would only be eligible for one of these three types normal retirement early retirement or special early retirement correct just if the plants proceeding along normal course no i don't think that's right around i think that the special early retirement benefit is something that you can begin receiving before and without diminishing your ultimate it would still yeah yeah is actually really reduced from what you would receive at your normal retirement date which i think sixty five i think you could begin getting your early retirement benefits at sixty if i'm right so that is reduce actuarily i don't think the special early retirement benefit  now your honor one address specifically the the rd amendment the rd amendment to your question before judge branch about what it does here is particularly tied to the layoff and we've spent a lot of time talking about the  upcoming plant shut down which is a part of this benefit but it's also an independent ground for the layoffs the rd amendment changing the definition of terminations date and severance state using big table terminations little to term nation a significant purpose of a definition is to bring clarity understanding we're talking about within the plan the intent as expressed in the plan was that plaintiffs be considered terminated terminations in terms of a layoff or layoff and terminations are interchangeable as it's used here because that is a loss of one's employment through no fault of their own and that is precisely what occurred so under that part of the special or the retirement benefit are participants are entitled to receive this and have their expectations of their expectations of this benefit fulfilled speaking of intent isn't the basic intent of the special early retirement benefits to compensate employees when they are not working and earning wages to fill in that gap no your honor it's not a form of unemployment benefits really meant to compensate them for all the years of service that they have accrued under the plan and then when their when benefits and here there was never an interruption with those earnings well your honor i guess this gets to one of the point i want to cases and also michelle cunningham michelle cunningham's testimony below what if if a participant is fortunate enough to be employed the day after they are terminated that doesn't impact their eligibility for the bat one can be laid off and find employment the very next day and not lose a day's wages doesn't change the fact of theory the difficulty you have though is navigating around cats and dogs and i'm asking you how do you get around that you are known as facts of this case five frankly we down if the however the court disposes of if you  theory you can't if you can't possibly proceed under the nd claim you agree with that we would agree in this case you want to because of how they're tied together we played these as alternative theories at the outset believing that there may have been a mentor if you lose out on the case is over next cases jeffrey either versus ike i couldn't