good morning may fleece the court my name is rick palmer i'm from and i have today the privilege of representing the appellant terminal railroad association of st louis pension plan for nonscheduled employees the issue on this appeal is whether the plan administrator arbitrarily and capriciously interpretated a single sentence of that plant the eighth circuit answered dec question just january twenty ninth here in an identical case and it held that the plant administrators interpretation was not arbitrary and capricious when confronted with the very same question of plan interpretation that is now before this court the eighth circuit held that the plan provisions were complex and in some instances ambiguous but if the plan administrator says her petition was reasonable rational consistent with the planned language and carefully explained this court is not obliged to follow the eighth circuit but this court has held judge posner wrote this decision in one nine hundred eighty seven in cobi versus j c penney quote we give most respect consideration to the decisions of other courts of appeals and follow them when ever we can this court has explained that it should give deference and even something close to complete deference when the two cases involved parties having the same interest the check they challenge the same practice of the same defendant it's not true what there's required to get i don't care what i said twenty nine years ago but  plan just argue the merits ok the critical sentence is five point five of this plan and it uses the word payable twice it says it in the first sentence referring to the amount payable as a gross benefit under the terminal plan in the second instance it's referring to the amount payable from the prior plan but in neither instance does the sentence explicitly identify payable when the eighth circuit noted that ambiguity and this court has held that when there is an ambiguity that's particularly when the court should give deference to the plan administrator station the parties agree you know what's on deference there either the question is whether the the parties agree that in the first instance payable refers to the amount payable at the normal retirement date but the part of how apple e would say that payable means something different the second time it is used in the same sent and we would say that texturally that does not make any sense yes but we also think that there are four other reasons why the plan administrator is a turkish in this case is clearly the more reasons and better interpretation first of all if you adopt the apple lease interpretation it means that the plan isn't able to offset the amounts that are payable and paid to him by the other plan and you might say well how do we know that this plan intends there to be a full and complete offset well there are two ways that we know that first of all section five point five b says that the plan is to quote offset by the amount of retirement income payable under any other defined benefit plan it does not say to offset only a portion of that amount that is a payable or it doesn't say offset some of it it says to offset the entire amount you know whether this is a common thing to play and in the railroad industry i must say i've never seen one structured like this before your honor i cannot say that this is common in the railroad but it is unusual the fact that i haven't seen anything like this is that one might look if there are other pension plans structured like this we might see how they have been interpreted by their administrators or  not limited entirely to cases involving the turmel railroad and she pled we might want to cast a somewhat broader net so are there do you know other plans that are structured like this and do you know of other cases about her like this i'm not a planter after but i am told that this is there are other plans drafted in this fashion i agree with you i have not seen a case where the court has confronted that facts  so i believe that when you read five point five it is clear that we are supposed to offset the amount payable from the other plan in under apple lease interpretation we're not allowed to do that we would only be able to offset a portion of it and that's not what this plane calls for the second thing is that when you look at the last paragraph of section five point five it says that regardless of the form of payment that the affably receives of the participant we are supposed to convert it to a single life annuity at the normal retirement age and offset that amount it doesn't matter if he receives a joint survivor annuity are an early retirement benefit we are to convert to a single life annuity at normal retirement age and offset and that's exactly what we did in this case if you do it otherwise the participant can take early retirement from his prior plan suck out months and even years of benefits and then retire from our plan and thereby frustrate our ability to offset the amount that was payable to him under that prior plan the second argument i would make is that the actual where he has no way of determining plan liabilities and funding requirements if he can't know what that offset is going to be you see the day that mr cocker walked into the door terminal we knew what his normal retirement date benefit was under the prior plan and the actuaries could therefore make the necessary funding requirements but if he can arbitrarily change that in any time by selecting an early retirement date and drastically changing the amount of the offset then we have no practical way of determining our liabilities and funding requirements the third point is that we and we argue this in our brief as well is that under mr cocker's interpretation two employees with the exact same employment history and salary history both with u p c and with us end up with drastically different pension benefits under us for no reason other than the fact that one took an early retirement benefit and the other when did not i don't believe that any lay person any participant reading that sentence or this entire plan would expect such disparate treatment the participants the forth ground i would argue is that under mr cock interpretation the word pale has two different means upon depending upon which day of the week you read for instance the day before he took his early retirement benefit payable  meanings payable in one instance he would i think agree that means the benefit payable the normal retirement date but the day after he retires and are at the end of the day after he takes his early retirement benefit he would say no it means the amount payable as an early retirement benefit so that it can have two different means be between monday and tuesday not the word payable is that different yet it's you mean it's used in two different ways this means it's referring to two entirely different things yes so in summary the language in section five point five is not a model of clarity but we believe that it may unreasonably should be interpreted as the plan administrator interpreted it here and is also the eights circuit agree and for these reasons we respectfully ask the court to reverse the judge to the district court ok you very much hear from the band director says eli lilly a wherry multinational company has many divisions as a rule that the service in both the domestic and international divisions are counted for the lowly pension has a rule that there's an offset for the other plans mr bandit goes to england earns credit under the english plan it gets combined in the lowly plan he retires he gets his credit for in line and the offset provision applies only to qualify plans mr banduk says that's qualified under the united states tax code only says that's not fair and in addition the seventh circuit said there should be heightened review because of the conflict between a lowly is plant sponsor seeking to get a result which is really a plan sponsor  the plans sponsor what all of these the four reasons our plan sponsor reasons of why you would want to draft the terminal plan in a certain way they would be legitimate considerations when you're sitting down and drafting the plan but once the plan is written it's supposed to it's supposed to be applied according to the plain language of its terms in my brief i go into point under no set of circumstances was his normal retirement benefit which would he wouldn't be sixty five until two thousand and nineteen was that benefit ever going to be payable to him never what's equally fundamental is that the union pacific normal retirement benefit was to start in twenty nineteen under no set of circumstances could that higher benefit be moved forward to twenty ten when he applies for his or early retirement under the terminal now the district court concluded because the conditions for the union pacific normal retirement benefit could no longer be satisfied it was not payable that we think the word payable is it's ordinary meaning when he applied for his union pacific for his terminal pension in twenty ten it's the benefit payable from the union pacific plan from the terminal plane at that time and the offset is for the the term union pacific benefits and pay status otherwise if you start inserting the words at normal retirement age section five point five makes no sense in it would not permit the terminal plan to offset it early retirement rumors were still years away from normal retirement how do you move forward to tw if you insert that would have been payable normal retirement age in by inserting those words you make payable mean its opposite meaning if it is opposite it's not payable any longer that b moving it forward to twenty ten if i a lates the plan terms the basic concept of the time value of money the basic principle of actuarial equivalence and the district court correctly found that the actuarial quiver once is what what creates the apples to apples comparison between the early retirement in the normal pay well well then the alternative definition your honor would be a benefit that maybe paid in the future that's the only other definition of payable you're on or a benefit if if the can do if it never was of course there's an offset what's new on the offset is for the union pacific early retirement pension to offset the terminal railroad early retirement pension that's the only real reading that really makes sense that they have never said that we're going to wait until twenty nineteen to apply the offset we probably wouldn't have the swastika if they had said we'll wait to twenty nineteen and apply the normal retirement benefit because that would be the equivalent of applying the lower early retirement benefit in two thousand and ten but they didn't do that th so they they take this fictitious benefit in what when i would urge the produce really in judicial review you're supposed to if i believe the court is to go back to the june fifth team twenty ten decision of mr p and it's relatively short in what he says in there on this critical issue the meaning we're pailful is that mr corker saying payable means pay i cannot it minister of plan that varies based upon when an employee retires early on the other railroad plan therefore i'm going to adopt a fictitious offset i'm going to take it forward to the normal date and then i'm going to take that amount and apply it back in time to that they may be retired now by taking that fictitious amount you just destroyed the word payable  in addition it resulted in treating two groups of similarly situated protests mentioned but i'm sorry i now i still don't understand what force you what you understand an offset to be but the offset should have been for his lower actual early retirement pension there is no other than from rather than the a higher than normal retirement pension that would be payable in twenty one thousand it's a difference of over one hundred percent because of actuarial just so they the the terminal the union pacific earlier you want to shrink the off it wasn't even that if now this is something that could be payable or could be offset that benefit could not be payable so you know your client filed a written waiver of all then take that to the terminal road pension plan and say the offset is you know zero because i'm actually receiving nothing from the unit so i don't not know because you would say the terminal plan says it's rather than what your client actually gets which in my hypothetical is zero well the question is why it's any different if what your client goes with write a letter to union pacific saying i'll accept a monthly benefit of a thousand dollars rather than this greater i don't think you're grappling with the question you conceded that if your client voluntarily surrender the benefit that doesn't affect the offset because the higher benefit was pay the question i'm asking is why a voluntary surrender should be treated differently from a voluntary decision to accept a lower monthly but non zero the answer your question your honor is that the benefit was payable in twenty nineteen ok you can't waive that for the offset but you can't move you can't take that amount payable in twenty nineteen and say we're going to pretend that it was benefit but that somehow the day after he made the election to take an early retirement that was no longer a clickable and instead you have to look at the amount that was actually paid that somehow payable is converted to the word paid and that isn't doesn't make sense and it also isn't the way a plan administrator can interpret in administer a plan for fifty employees all who have different factual scenarios the point also about pandemic is is a wholly different case there they said we're going to offset that amount which is paid to you from a qualify pension plan and the court properly said we know in england there is no such terms of qualified pension