whether there was any plausible basis for mr benson to recover against life insurance company of north america alina as we refer to them in the briefing for breach of fiduciary duty under this was a twelve b six motion that was granted so we're looking at the plausibility of the claims more specifically the issue is whether or not benson stated a claim for surcharge under section five zero two eighty three more specifically the one under reso which seeks redress duty during the appeal process it is correct and it's been raised during the briefing that there is no claim here under five zero to a one before recovery or reinstatement of benefits because the benefits were in fact reinstated during the second appeal process the issue then is whether or not there was inability to recover as a surcharge the attorney's fees the expert fees all the costs that were incurred in coming to that result the in other words the reinstatement is not the end of the story there is a colorable claim we believe to redress those violations the issue first to be discussed is whether or not monetary compensation can qualify as other equitable relief under five a two a three i think the supreme court in a  made it very clear that it can when it's said that if monetary compensation is compensating is a loss resulting from a breach of a fiduciary duty owned by owed by a trustee that monetary compensation can in those instances take the form of equitable relief this court most recently in the moral case reiterated that finding as well so monetary compensation is available as an equitable form the next issue we get to is whether or not the specific kind of compensation we're claiming benefits that it had been denied was allowed the opportunity to come before the district court to seek attorney's fees and during that process the district court found that attorneys fees incurred pre litigation did not qualify as eleven thirty two g are the court also the district court also found that there was a right to recover interest deserve even resolve so there are pieces of the claim that i believe would survive obviously the attorneys fees portion would be the lion's share and that's what we'd be advocating for and that's not what we're claiming here our attorneys are privy to geisha attorneys fees are part of the of the harm itself they are an element of the harm they are an element of the breach of the do the producer duty claim which i believe distinguishes it from a canned situation where we believe th believe bears upon the entirety of the process of the steps that he had to go through all the wrongful denials that we believe that he had conduct that was exhibited and again we're talking about a twelve these six standard here we believe that the allegations and judgment were not reaching back to the original complaint where those allegations were set forth before the amendment we believe that they were sufficiently stated the briefing that we've seen on the issue in this case basically says that come on it wasn't that may go gently inflicted and we it's not appropriate to get into the substance of the claim at this juncture it's appropriate to examine whether or not the point and i believe that the original complaint did sufficiently state claims the district court found those claims to be preempted and we believe that was an incorrect finding based upon the jumping back to the summary plan description issue we found that the position that lena took that the district court had the right to review the s p d in conjunction with the plan when reviewing the the complaint for purposes of the colby six motion we believe is inappropriate mara has stated that summary plan descriptions are not plans they are summaries and descriptions of plans and they shouldn't be merged together that they're related is one thing but that they should be considered part of the pleading i think is something different so we believe the preemption on that basis was inappropriate but in any event even if the preemption was appropriate we believe those two specific claims that you referenced should have survived because under the dishman case the tortious conduct that we have alleges only tangentially related to the administration of a plan and has nothing to do with how the plan was actually put into effect otherwise than the courts have held in dishman held that you would give blanket immunity for plan administrator is to do whatever they wanted under the umbrella of a recent preemptions we think those claims should have survived at a minimum for the original complaint and we also believe that the five zero two eight three claims are sufficiently stated for the reasons i've indicated that  make good it means to set it straight to set it right to compensate we believe that is what has been alleged in the first amended complaint we believe that that should have at a minimum withstood the scrutiny of the told the six motion and for that reason we would request that this court good morning thank you your honor my name is nicole blow on behalf of defendant life insurance company of north america this is a very narrow issue presented before the court today the issue specifically pertains to whether or not the appellant during the administrative process can recover attorney fees and costs incurred during that process in order to get his benefits reinstated and we think this falls squarely and on with within can and eleven thirty two now appellant was very creative to try to find another route to get attorneys fees and costs but this is not the case for that proposition because of the allegations that were express played as far as the attorney fees section congress expressly provided for fees and costs in g e it was limited to the word action it did not include costs and fees during the administrative process in the can case recognizes that and several other circuit courts recognize that as well and in fact no cases that i found have found otherwise so is far as argument whether or not he can specifically recoup fees and costs under eighty three he has not played either a remediable wrong or  appropriate equitable relief first of all he claims that his injury was the fact that his benefits were denied and all of his other injuries are related in part and parcel to that so that is not recover in addition appropriate equitable relief is not the type of relief that congress has already intended in section g this is very different from m r and other cases that stand for the proposition that perhaps a surcharge is an appropriate equitable relief form and and we're not arguing that it's not necessarily we're just saying in this case then very narrow issues before this court only pertains to whether or not a an appellant who encourages administrative fees in the form of attorney's fees and costs can recover them under a three and this should not be allowed because it would it would turn a three into a first line of attack which was not intended by congress if you know practically speaking if you look and at the impact of any other ruling in this case then then granting or affirming the motion to dismiss of the dismissal mr benson would be able to recover fees that he couldn't this is very different from the cases where claimants don't have an administrative process to go through or are not able is for some reason to avail themselves of the administrative process in this case the administrative process worked as congress intended it to he had the opportunity to appeal his denial of benefits and the did and the benefits were reinstated during that process and that well first of all i think that he waived his for claims because they were extensively briefed at the motion to dismiss stage and and why argue that that they were  preempted and he didn't heed his briefing didn't address that and nor was it addressed at the hearing or in the or in the in the actual ruling so i think that there is it extremely strong waiver argument that that they were preempted along with everything else because they really weren't the crux of the case the crux of this case is whether or not mr benson can get his fees and costs that were incurred during the administrative process not not necessarily whether anticipate he has the last word and so i anticipate he's going to get up and say well yes we didn't brief it but because it deals with this course jurisdiction it can be raised any time until you can't waive the a recipe argument in this context i'd like to give you a chance to respond but i think he's going to say ok well i i agree you cannot wave a risk of preemption but i think you raise the argument because it was we didn't have the opportunity to brief that but even if that even if the court finds no waiver he still hasn't you know he saw an established that he satisfy either conflict preemption or express preemption because all of his tort claims derive from the actual handling and the quote what he calls the road to reinstatement of his benefits for which he received the benefits he received exactly what congress intended him to receive let me ask you about the preemption issue seems to me that interest and there are two different types of preemption there's what we call complete preemption which forces the entire case into federal court but then there are also can be a preemption as to particular claim and that might not be necessarily jurisdictional can you speak to that a my that there isn't you know a complete jurisdiction where the whole case gets removed a federal court but there are other forms of preemption to where it can be asked to a particular claim one claim might be preempted but not necessarily the whole case are you are you arguing that the preemption in this case that stated it plain for the public disclosure because there he he hasn't even alleged public disclosure he only alleged that the records were inadvertently sent to the wrong attorney's office it wasn't public as far as the negligent infliction of emotional distress that's all part and parcel of the claim with judy cation process the the process that every claiming probably goes through if they have their benefits denied and they go through the appeal process and do you have any authority lost focus on this conflict preemption do you have any authority that says conflict preemption arguments can be waived i think we agree that complete preemption arguments cannot linus briefing on the issue then and it does and it's not razor preserved during the oral argument and then he shouldn't get another bite at the apple he had his why would i would agree with you that if it if it could be waived i think you've got a very good argument that's been waived i guess my question though is that and maybe there is no authority clearly on this for conflict preemption can someone actually  well as far as the state law claims they were part and parcel of the road to reinstatement that he's claiming caused him injury but all of those are already addressed in g and i think the most important thing in this particular case is the practical impact if he's allowed to go forward with this claim i mean all these cases conkwright ammara merton's they all talk about this careful balancing that has to take place and in this particular case when he when when the remedies already provided for allowing a loophole under three is going to render jesus are super will mean nothing because he will he will do any appellant and more importantly their attorneys are going to become heavily invested in involved in the administrative process which congress did not envision and and i don't think intends to this day because there have been changes to the arista regulations on going and none of them have addressed the attorney fees provision that's in gee if congress wants to expand attorneys fees and costs to to the administrative process then then that's certainly within congress's ability to do that but that's i think your honor they just wanted to address or a couple of things and i will get to your preemption question in just one moment i just want to first address the eleven thirty two g arguments that were being made i don't believe we have an apples to oranges believe we have an apples and oranges comparison one which is reinstatement of benefits with five o two a three which is a surcharge seeking equitable relief to redress violations are not the same thing that the benefits were reinstated after a fight i don't believe vitiate any of the claims that we can set forth that are five zero two eight three and in fact several courts in the circuit which we've briefed have in fact found that the attorneys fees in the manner that we are proposing are viable claims in the the mcglashan case which is from the district of arizona which we  briefed that kay said that because the claimant was forced to file bankruptcy that debts he incurred and the bankruptcy attorneys fees he incurred were properly pled as elements of harm and or surcharge claim  ziska case which is from that was a dispute the california talked about consequential financial losses these are the kinds of things i believe that the supreme court has has announced that constitute appropriate equitable relief to redress violations otherwise that provision really has no teeth it doesn't mean anything so there are district courts already ruling in this manner in the context of twenty six motions that we think we're not out in the weeds in that issue i think we are in the universe to be claiming that as a creative as a trying to end run i don't think cite on either side of that but i would say that the waiver argument i don't believe it can be waived the certainly beat that further if you like but i do believe that this waiver issue is sort of thrown around a lot and if the issue is that specific issue was not brief briefing i don't think that rises to the level of waiver i think we say that some cases that talk about if there's a question of law and an overview all relevant authority gets to gets to come in here so i don't think that the issue would be wa because it wasn't specifically briefed the case that they cited on the waiver issues the brownfield case there's a specific exception in that case to when you're talking about issues of law as opposed to issues of fact it's not fair to not raise something factually below and then come try to blindside somebody and brief it later on appeal i get that but these are the legal issues that were always there in the courts focus at the twenty six briefing below was on the preemption issue and the court didn't get into any of the specifics because they didn't get that far we found that the whole matter was preempted and didn't get to the individual claims of the matter didn't come up for a briefing i don't think that would be appropriate for it to be waived on appeal if your honor if there's no other questions we would respectfully request that the court reverse the finding in this case and allow mr benson's claims to proceed thank you very much for your time