sufficient to justify the application of the doctrine of equitable stoppel in order to circumvent the clear and unambiguous provisions of the retirement fund issue i would like to acknowledge that the was not very sympathetic to our arguments however our arguments are break based upon very very stringent standards which the sixth circuit has and acted in order to permit the cases the first issue is whether or not the plan provision is were indeed on ambiguous and whether or not in that context those planned provisions allowed for the use of  quote unquote bank dollars which really is more of a generic term than a term of art to permit a proposed retiree to have a full thirty years participant has at least eight hundred seventy hours of service and say that it cannot hours by itself it's the i would emphasize the words during during the year that was the problem the year in which the bank hours occurred is that what the problem is yes as opposed to that they were banked hours began may first and eight hundred seventy hours of what of as described by the contract would be an hour of service so why can't service and bank hours then because you would then go to section three point six small heat of the two thousand and ten amended agreement which was quoted on page twenty one of our appellant's brief and as i was reading that the brief last night i noticed that i didn't provide the actual section citation i provided the pagination of the administrative record but i omitted and i apologize for the omission of the that you might be in and there's an amended version also of two thousand and ten there is an original version in the amended version in the applicable sentence again it's quoted on page twenty one of our appellant's brief is that it  that the applicant's thirtieth year would not be complete unless he works eight hundred seventy or more hours after may first of his thirtieth year as the amended provision affect if whatever a minute you're talking about whatever revision partly you're talking about in any way alters this language perfect fit the sentence that you just read we have marked down as paragraph five you say t he happens to be  our position there at three point two either a little bit of history it was this language was an accident in two thousand and four for the specific purpose of eliminating point is if i could clarify so his problem was in your that the bank hours were in a previous year not after me as they were before me just correct but you could use bank hours if they had occurred after may first and to your theory then they wouldn't be being towers did they be actual hours worked in that and that plan year that year of two thousand and eleven isn't a bank tower usually one where you worked at but you didn't get paid until a later time yes so your whole argument it's not that complicated is you've got to actually work at it after may first whether you got paid for it after may first doesn't really matter as long as you worked so we don't have to worry about whether his bank or not bank your argument is he didn't he didn't work after may first i don't understand why we don't avoid all of this by virtue of looking at the breach of a fiduciary duty i don't understand how the person that made these representations to mysteries is not fiduciary and didn't make a misrepresentation and i don't understand how anybody could say that reason didn't rely upon it so isn't that a much easier way to look at this case there was an approach that the trial court avoided it's  not have the authority to interpret in behind a planned administrator in the entire board of trustees to an interpretation that is contrary to its it's and where do we look in the plan to see that this trustee can't give advice well i'm not so sure that the plan says that a trustee cannot give advice but and why isn't he acting within the scope of his a singular trustee can not give out a binding interpretation of a plan so you can appoint somebody a trustee in the trustee can and do somebody to do something that really screws and then you can say oh never mind that well there goes to whether or not these so called inducement was reasonable and i think that that that needs exploration beyond what was contained in the trial what were some reasonable about this but here is representation which should've known that he should have gone either to the plan administrator or spoke to an attorney or requested an interpretation from the board of trustees as a whole one trustee cannot bind the very very sympathetic with respect to add to that consideration i do not dispute that but what it but nonetheless tacit he was he acting in when he made the representation that you could bank  that you could use bank hours and so you could retire august first instead of october first what capacity was he acting in when he said those i don't think that he was acting to bind it in as a fond and binding what is the capacity was he just a guy on the street capacity during their conversation if he is trying to give it and how it was how would the guy know that this trustee he represents himself to be a trustee which apparently he was how would the participant who interpretation in the sky that puts up iron someplace ironworker would know that how would you know that it's standard of practice it's standard of practice but even more signal where do i look to find this and where do i find the standard practice  of the respect i think you're just making stuff up i mean i'm not but unfortunately we didn't have an affidavit from from the trustee in in i know that there presents a problem i  admit to that that presents a problem but the plaintiffs say effective nobody asked o'connell these questions is it seems to me the deficiency that that presents is one on your side not of the plaintiff side  you're offering up o'connell say well no i really did say that or no i didn't mean that or no i didn't know what i was doing or whatever but you know every support for that though how do you so how do you meet how to meet you meet your burden of proof on well it's the plaintiff's burden of proof but the plaintiff the plaintiff has said he's a trustee it seems to me that's all you've got to do you have to now show that he wasn't acting in a fiduciary capacity the plaintiff cannot rely upon a conclusion that the man was acting as a trustee yes he may have appeared to have to have had knowledge of what he thought was that the interpretation of the plan but as trustee he's acting in the best interests of the trustees not supposed to be advocating for the beneficiaries particularly one that when they had position it would be contrary to the un contradicted unambiguous plan language so that that that's our position for your time or i didn't even see that i'm sorry showing that the trustee interjected himself as trustee and business manager and change the cost mr reese to change his plans let's talk about that for just a second yes how o'donnell got involved my understanding is your guy says he wants to retire and then he gets contacted by it to set up a meeting is that right most recent says to his employer mr buckle he wants to retire effective october one mr buckle contacts mr the trustee mr o'donnell and the trustee calls for the meeting and at the meeting with the support of the affidavit calls him to ask him if he can do that and o'donnell says well let's have a meeting to talk about no buckles calls just to say my guy plans to retire october first which is what the affidavit say and the trustee says let's call a meeting i want to be i want to talk about this at the meeting what the trustee says is twofold it's important for these purposes one that past practice has been hours paid and for which caught in a plan here and for which contributions insurance and taxes are paid in that plan year will count in their plan here for credit to service the section of that the court questioned on the with which has the sentence on the eight hundred seventy hours have to be entered may first that's kind of a red herring because that belongs in the section on the political additional credited service of point three eight for each year that can't be used in the thirtieth year in that under that circumstance we're not trying to claim under that circumstance the section three point two eight he doesn't contain that sentence all it says is that the employee has those hours and not even has worked and i saying that three point six additional credited service with that critical sentence and it is thirtieth year would not be complete until he works seventy hours or more doesn't apply to the section that we're dealing with three point two years of service three point t political is with the additional point three when you look at the sheets that go kind of sideways and you see a one point zero and then a one point three that's the point three that they're talking about our guy was not asking for those point three years to be added up in his thirtieth year what he was saying was that when you look at the plan which doesn't say has worked it just says employee has when you look at the definition under one point one nine which includes in the alternative his judgment kid you pointed out earlier hours for which there was entitle meant for payment and then the two regulations that i've pointed out the one express lee listed in that definition and the one incorporated would allow him to have our spade in a plan you're just like the trustee said count so long as the contributions were made in that train plant here so the trustee is not saying anything that is inconsistent with the definition of our of service when you really look at the federal regulations in addition the only way appear if it were to apply generally it should have applied it should have appeared elsewhere or it should have been repeated and let me add one other thing you also have the joint appendix which was submitted under seal the judge didn't reach what should be in the administrative record but we did submit a second disk and hard copy which included the collective bargaining agreement that the defendants didn't want to be put into finding requests to admit i asked and they admitted that was not them to copy in their collective bargaining agreement if i could and i'm sorry that volume two is on paginated but there is you will find the collective bargaining agreement there in article thirteen the collective bargaining agreement which is the master agreement ok that's the wages and fringe benefits provision and it says that contributions are made on gross wages hours paid for purposes of the pension fund the vacation fund and the health and welfare fund when it's for that's no one and no three in article thirteen when it's for or do you mean the language is the collective bargaining agreement incorporated into the plan yes where i will be in the plan document to tell you your honor it's in the trust agreement that they are to follow the contributions schedule in the collective bargaining agreement that's the way the master fund works and i will supply that to you but the collective you're getting way ahead of things i'm sorry i'm sorry sir asking you is  incorporated in the plan because we decide things based on the administrative record that was before the that was generated in connection with this case so either i'm just trying to figure out as a collective bargaining agreement part of that or isn't part of that yes but i'd have to provide i'd have to look at the provision mary provided to you after that says that the collective bargaining agreement that i don't care what you do that would be nice i would i would thank you and i would just try to find out how we how we look at the collective bargaining agreement ok this is a multimillionaire plan pursuant to a trust agreement the employers are not the plan sponsors they make contributions pursuant to the collective bargaining agreement which is the other federal law that he is entitled to have followed under the hour of service definition so that's one way that it is incorporated into the agreement that's the way america stor that's the way multiemployer plan works the contributions are made  paid in this particular circumstance we do this all the time so we understand these multiemployer plans are part of a rise out of these various collective bargaining agreement so you don't have a plan for each one of those collective bargaining agreements that's a different question than whether the language in a collective bargaining agreement either modifies or informs what the language is in the plan because one collective bargaining agreement might say one thing and different might say something else so then how does that apply to the plan that's all i'm concerned with this is a master agreement and it doesn't play into the plane your honor and it is something that the trustee uses in order to determine what an hour of service is so all i'm suggesting is i'll provide an express citation for you when you must and i guess i can turn our attention to something else thank you the earlier questioning of your opponent on the breach of fiduciary duty issue if in my understanding is the district judge did not decide whether there was or was not a breach of produce your duty and that's an alternative claim on your part yes if there were a breach of reduce your duty would the remedy for that be the same as the remedy that the district judge gave you there are additional remedies that i have suggested and that's what brings this within the the healthy blue cross because the breach of fiduciary duty is not just the inducement to give two months more so there wouldn't be any question then we wouldn't be here the breach of duty is not to do that within the term provided in the plan the ninety fiduciary duty with respect to the representation you know of anything to do with the notice or other stuff being sent out just what o'connell said so maybe judge moore's expanding beyond that but it's really you know i was i'd have just curious in terms of that because there are different claims that you made in the district judge focused on one yes and if we were to feel that there was something to some of your other claims would the proper approach for us to be to remain and so that the district court ok let me try the link between the two is that he is in pay status when the amendment is promulgated in the notice goes out ok so removing his eligibility which is based upon what the trustee told him and the written representations from the fund office and the failure to correct that within the ninety days so that he might have had a chance within the plan here even if it were in october to earn september and october to earn the additional hours that's the link for purposes of the fiduciary breach between the representations what happens as a result of them and it's not just the oral representations of the trustee if you so it we find as a breach of duty any and we say he was entitle rely upon what the trustee told  he gets his benefits because he would have done had the hours before the amendment was made to the plant so we don't it seems we don't get to any of this other stuff so i'm just trying to figure out why we're making this so complicated then about the notice and you want to apply to everybody else and you want everybody else in the world to be liable i don't get that i want it clear yes that he is in the plan effective august one so that no subsequent amendment applies to him i understand that you could come out with a very narrow ruling that is only specific to him but i also believe you represent anybody else at this point no so why are we except for mrs race because mrs reese is benefit also depends upon what he has as of august one right now because of the amendment and because he couldn't go back to work within the plan year they have both got a diminished benefit and as the court pointed out she may not have the benefit if he doesn't make it too early retirement age and you have  question willow the basic question i had is you have these various claims and yes i wondered whether your remedy differed depending on which claim you potentially won on or is the remedy for all of these claims that your client would get the full pension that he would have gotten had he done what he had planned to do which was to work the full eight seventy hours while he could and while the old retirement scheme was in effect thereby giving him the higher pension that is that the end result that you one from any one of these claims well it is the end result we want from claims except in addition to the defective notice claim and the problem i am having is that the fiduciary breach claim is pled with several different produce very preaches so the answer to your question is yes if you narrowly decide you will then for instance you you were arguing in the cross appeal that the district judge was wrong to say that all the other claims were moot because in fact they're not moot because as you point out this notice claim is a separate matter and would actually provide separate remedies yes and it's also pled notice provide additional remedies beyond what we just talked about you would get if you won on the basic food issue it is planned wide relief and we have asked for it and an a plan right relief meaning it would be relief of able to other people yes how do you have standing for an individual participant can ask for planned wide relief it happens all the time without a class action and since that's a question that's come up at oral argument would you mind if i submit additional case law to back up what i'm saying i'm happy to do so to do that in your opponent can file a response thank you letter yes and your standards by letter not exceed five pages yes ma'am and how many and who we are with my with my planes or if it'll be quicker your red light is on i'm sorry so i'm sorry i'm not getting paid you mean the plaintiff is not getting paid why didn't i just go back to the district judge and file a motion for contempt because we had settlement discussions like this is an enforcement question not a question of whether on appeal you take this up i just don't understand why you can't if you're right i don't understand why you can't get this relief that you and joe johns i've been talking about from the district judge as a motion for contempt to now guess i could do i had tried to get him to expand to all the defendants in a motion for reconsideration and he would not do so he relied on cataldo i briefed why that did not limit me to the ok how much did you save two minutes i guess following this presentation i'm a little bit confused my understanding is that the remedy that the plaintiff was seeking was that it is appropriate that a district court make a full record of those issues if if it's not mooted out in then we think that subsequent appeal to the sixth circuit based upon a more complete record would be appropriate one thing the thing that i'm sort of having trouble with is why do we say the other claims are moot it would be moot only if the relief were identical right yes and you're saying the relief is identical and therefore there's no need in the six circuits mediation program extensively extensively light of this discussion this morning is there any point in trying that again we're open for i don't want to i don't want to undermine