when your morning i'm michael morris i represent the plaintiff and with the court's permission i would like to ask you to reserve three minutes for but all argument you because of the time limitations and the complexity of the law in this case i'm really going to focus on the breach of contract claims that's the third and fourth claims for relief in our in our complaint which of course the trial trial judge has ruled that they were preempted by a recess and this is what we are asking the court now to reverse simply the facts are are fairly simple that the defendants henderson and jackson were not employees of hillsborough garbage but they were submitted as as as as employees and the hillsborough garbage submitted this week i think is quite clear that there's a beach contract the question is what the right what's the remedy in the breach contract supreme court has recognized that that is might be possible to bring breach of contract claims and this court has definitely recognize this and this is what i like to say is that this this court this court has  summarized the holding of the supreme court in the traveller's case and has set forth the methodology for determining whether beach of contract claim is preempted so what the court does according to the arizona is the one i'm referring to first the court examines whether the claim falls within the three areas of concern set forth in the traveller's case which recognize the supreme court has looked at its prior decisions and found that they fell into three basic categories those are does the claim mandate an employee benefit structures or their administration secondly does it bind employers or plan administrator to particular choices or preclude uniform administrative practice and thirdly does it provide alternate in foresman mechanisms for employees to obtain a risk the plan benefits none of these three things are present in this case for the simple reason is that it's not a case of an employee suing the trust it's the trust suing for benefits of these things just don't apply at all and what the court said in arizona state carpenters is if these things are not present then the court asks a couple more questions does the claim arise from state law of general application here of course this is a claim based on the common law of breach of contract it's a law of general application it's not even based on any statute secondly and the court held that the breach of contract claim although based on provisions in the plan documents did not depend on a wrestler it depended on the common law of contracts this is in this case the ultimate question and maybe an easy to maybe easy answer to it but we did we start with the question rather than the answer is whether these folks were eligible to participate in the era simply well they are not eligible we know that that's that is the answer and the answer not the question and so in order to determine whether they are eligible to participate in the rest of plan doesn't the federal judge you have to look at that plan and determine the scope of the folks that are  no your honor the eligibility to participate in the plan is negotiated through the collective bargaining agreement no i do but it and the greenman is that the agreement is that we have a plan that can include by virtue of the collective bargaining agreement non union people correct only if there is a non bargaining unit agreement right a separate non vital you know them so that they still must be employed employed as are employees of hill o a garage are eligible to participate in the plan i'm sorry employees of the of the i forget what the garbage company are are eligible to participate in the plan correct all of the collect all of the bargaining unit employees are the manager in addition non bargaining unit right right right after the agreement but they have to be employees or they must be employed ok we're saying the same thing else and so so in order to determine whether or not your breach of contract claim is valid in federal district judge must determine whether or not the individual defendants in this case including the deceived and were eligible to participate in the plan correct they meant that's that's that's the cynic went on to be a contract claim is that they were in by by you're arguing you argue well we can see they were eligible and you could think that that concession takes you out of a recession but i think what judge here which is asking a legitimate question is why does that take you out of a risk that the judge still has to look at the play in to come to that conclusion the fact that you admit it doesn't take it out of a recession nothing in the plan will answer that question only the providence health clambers mcdowell is wrong oh and you're saying it's right it's right yes and that seems to be the law the circuit i think your answer is mcdowell mcdowell mcdowell well that's certainly my bell but also plan in our case these people are not planned participants they receive benefits wrongfully they had no entitle me to these benefits so we're even one step beyond mcdowell here it was different i don't think you want to say that well mcdowell is different in the in a in a good works you see even one we are even one step farther removed against preemption here because these are people that we're not even entitled to any benefits force as state breach of contract not a lien it wasn't they didn't force a lien it was just a straight legal claim that law breach of contract state law just as we have here are not the equivalent of the charging lien that we we don't have to sue because you're going to give us the my because you're going to give us the money right right so it's but it's it was a contractual right that was in force right contractual right under the arisa plan it was a contractual right contained in the plan ok but it was in forced separate reason for separately and i'm trying to figure out what contractual right under the wrists are planned in this case you have to seek reimbursement when payments are incorrectly made in this case the provision itself you mean see what provision says if we pay out benefits that we shouldn't have paid out we get to we get to that the plan may pursue recovery from any individual or entity responsible for providing misinformation to the plan which has resulted in the payment of improper benefits the plan may also recover benefit from the person responsible for misrepresenting any person for eligibility purposes furthermore the employer's sign subscription agreements in which they subscribe to the plan and the subscription agreements also say that if an authorized individuals are reported the trustees may recover any improperly paid benefits from either the individual upon whose benefit or to whom the benefits were paid or from the employer so you breach of contract claim is against two against the employer o that yes but the breach of contract and there is against the employer the insurance or the plane and tell me again what part of the agreement you were you were in line for the breach of contract against the employer what i just read you tell me when that is in the record oh it's in the record at forst page seven of my brief but it's in and i will find it in the plan itself it's actually a provision of the plan documents and a subscription agreements are also exhibits in the record and there cited in page seven and page five of our opening brief to point out that the district court had an additional grounds for the decision of the district court said that well perhaps this other company ron john's itself had a collective bargaining agreement well there's nothing in the record that would indicate any such thing and if it had a collective bargaining agreement that would have entitle these people to benefits the people would have submitted their application through that employer and it would have been an issue here so arguing your injunctive relief claims or you're conceding that the districts were properly to deny them no i just because of the time my limitations i guess not but i'd like to stand on the brief for the arguments we've raised for the equitable claims that are also present his case ok thank you thank you it please the court iris tele for defendants so i want to get started sounds like our focus today may be on mcdowell and so i wanted to start out by discussing a little bit how we see that really this case is different from mcdowell and really differentiated from mcdowell you know ok i am open to that approaches the hour from from our perspective though there is really a distinction with mcdowell and the issue within mcdowell is that we had a reimbursement probation and reimbursement provisions are an area of the law that this court has determined is separate and distinct and exempt from the arrest of preemption and the reason for that is that it's not a question about benefits paid it's about this third party relationship where we're looking at do we need to make a payment to this third party to reimburse for benefits paid in this case this is really about benefits paid to individuals and there just isn't any authority in which benefits paid to individuals are not an area in which it's been paying benefits in appropriately can try to remedy that situation i think that there are two responses to that the first being that this is the trusts knew about this issue long before i brought this came up but that's not an offered we argued waivers of affirmative offense i only i really not especial know i agree i raise that just as an ak would yes that it's not it's not disturbing from our perspective because this wasn't new knowledge this was something that that looked at and black did for years and years and years and it kind of the secondary piece about why it's not disturbing is important to take a step back and realize that the district court found preemption on two different legally significant grounds either of which stands on its own and one of those grounds was simply the relationship between this claim and the arrest of playing at and there's  circuit case of booey i may be pronouncing that incorrectly and in that case the statements made very explicitly that where a breach of contract claim is specifically about a breach of the plan terms it's a preemptive virus and so even if we i think that in mcdowell we also in addition to having a reimbursement person specifically which is it which is what is issue at this case a reimbursement provision involving a third party we also had a third party agreement so as it was really outside this question of benefits paid and i know that there is a discussion in the dow the talks about benefits paid and that this isn't a question of benefits paid whereas in this case it's explicitly a question of benefits paid and not about reimbursement from a third party but i think it and so just i'm just moving back to this idea of of there being two legally significant basis upon which we can find the preemption argument as i mentioned we don't actually have to reach the second point just the fact that the in on the base of the claim the claim is that hillsborough garbage breached the terms of onerous a plan and so simply on that basis we have preemption right there and so we're getting into the secondary basis which is this more complex argument but but we have that preemption just right on the face of the complaint pursuant to billie which is the ninth circuit case from two thousand and two would the court like to get into the issues with actually the remedies and looking at at those provisions i know that those who aren't argued up by by the thank you but first i'd like to address the comment that the first four is left without a remedy and how and this is a serious matter because under the l m r a a section three o two benefits cannot legally be paid to people who are not entitled to them that would violate another provision of the federal law so i know that was in your briefing and i said what did you ever contemplate filing the breach of contract case in state court and make it just a very general common law breach of contract claim and when i don't exist and hope the state court judge didn't know anything about a rest i hope it wouldn't be removed as a federal court which no i just i don't think so i think i think that our office which does this work traditionally files in federal court but it apply and therefore would remain the case well i mean i think the strategy wise i'm just curious if that ever occurred to you because if you i don't have an answer or maybe it's a well the form we again people like one case the man forgot didn't forget that he didn't report the fact he's divorced let his wife get benefits i think another one involved a girlfriend who was in the on even an employee very similar facts and those were not preempted contract but it did it was to trusts bringing the case so there are cases that are where preemption is not found even though they arise under state law breach of contract cases and of course mcdo kelso mentioned the buoy case and said well that that's just a new perfect example of a case contract claim being preempted but i would point out that in that case the employee was claiming that he did not receive benefits that were and he was entitled to under the plan so that would be one of those cases where they were trying to mandate benefits from the plan it was it's completely different it just falls right into the risk of preemption it's not at all binding on this case and then last last point is the attempt to distinguish mcdowell that's a distinction without a difference there's no difference between a reimbursement plan in that case and a  reimbursement provision in this case they both call the employer or in that case the employee to refund the money that was that they were not entitled to ok thank you thank you very much i think both sides for the argument you obviously know your  you and maybe maybe one of these days we'll learn some t oregon teamsters employers trust vs hillsborough garbage disposal submitted for decision the last case on the argument calendar this morning goulart if that's how i pronounce it versus coven