least court morning now mike richardson from chattanooga here on behalf of the appellant's in this calls the appellants are all retired policeman in firefighters who worked most of their lives in excess of twenty five years for the city of chattanooga when they retired with a certain expectation of retirement benefits to which they had been promised in which they had paid for which were vested in accrued a new administration came into power in chattanooga a couple of years ago  decided to a minute or change the pension benefits that these retirees had been promised that they had worked for specifically the statutory scheme was amended in a couple respects the legislation in asia goes back to two thousand in two thousand prior to two thousand the city pension fund had a cult of living adjustment that was tied into the consumer price index in the year two thousand the city code which is the thousand the city code which is the pension legislation was amended to say we're no longer going to have this cost of living adjustment had into the consumer price index you mel b they were guaranteed in writing they were guaranteed you're going to get a three percent increase every year in the statutory scheme sales your base retirement benefits shall the benefits payable to the retirees shall be increased every year by three  there's been a recent pronouncement to get right to the legislation is subject to amend not insert sometimes your honor but not always if the legislation legislation is clear in the intent itself contractually the courts must examine both the language of the statute and the circumstances surrounding this and that or minimal things such as purpose context history or other evidence of actual intent in we sighted the black will kegs which is tensing supreme court which is the leading case in tennessee and we also cited a recent tennessee tourney journal's opinion which really covers the law under tennessee law when i'm reading from the german attorney general opinion which cites the blackwell case a vested employee is one who has complied with all conditions necessary to be eligible for retirement allowance in this case that definition is legislation tracks the black will case almost verbatim and it says you cannot reduce financial benefits once you've earned them in this case best and mean something different from a crude  you almost get into a semantical is there you can get into a semantical discussion but i think there is a distinction vested is what black will say is if you've complied with the conditions necessary you're vested a cru that's what the tennessee statute says they're kind of torturing the word a little bit where they are but the city as crew doesn't normally mean something like that i mean we don't even know how long he's going to live in the crew for the year two thousand and twenty five i mean we don't know in this in this it's already accrued well in this case the statute your return your base retirement benefits shall be increased their your about three percent the future calculations as to how much i was going to cost the city had already been calculated and accrued there's that payment has not been determined and that's what you just said was the definition of the opposite the obligation has been determined and how's that different from vested now vested before you even got it it's just the words just don't seem to mean that i know that you have cases and i have to go look at the cases but i'm just trying to get at the meaning of the words doesn't seem like you could say something a specific amount that hasn't even been provided or calculated as vested in accrued merely because the basis for his entitle met has already happened we got our under this pension legislation anybody who works ten years and they were  vested all the government that doesn't mean everything they gratuitously give them later is also vested just because it's based on the fact that he had those ten years i'm not saying this was gratuitous but i'm saying it just doesn't follow automatically from the fact that he worked for ten  is vested that whatever bonus they may happen to give is also this is going to be something more right daughter but when i say what is it more you say well they were for ten years in their vested well it's a circle that this doesn't co important some medical argument in these gentlemen who paid into this fund for many years and i said make asked this in a slightly different way which is not too dissimilar to what happened here how would this work you have a shower language that says you shall get an increase in your pension benefits based on the c p i the consumer price index ok so that means they're going to fluctuate but you would say shaolin applies to people that already been ten years could a city that did that say after a while  we don't want to do that anymore we're going to say it shall be three percent a year regardless of c p i is that would that be legal i mean because on one hand that benefits them some years because critically now three percent well over the c p i but there could obviously be years where it hurts them what would be the answer to the original shall says shall get increases based on the c p i can that be changed to just a flat three percent down the road you or i think you could under case law from the first circuit now this is an evolving area the wall but i think a huge i'm really struggling i don't i'm really struggling with if you can change that as of course that's pretty similar what happened here well because there was something that tracked the  that just seems to confirm the idea when you're talking about cost of living increases the norm is that they do fluctuate and sometimes that's the whole point they track the c p i you are in the only case the main retiree case out of the first circuit turns on that point the very little case law in the country seems to turn on whether is it a variable rate which is can be changed if you comply with state law first is this is a fixed times between two thousand and you're fired but they were not amended in a way so as to diminish or take away financial benefits payable to the retirees this has the direct effect of admission  that answers here this is true i mean your career brief and it's well argued continually talks about reduction and diminishment but under this scheme there's no situ is there any situation where retiree is getting more per month one year than the previous year no your honor because it's so there we're not really talk about reductions we're talking about smaller increases that's right that's right your honor but again the way when you talk about it intented would seem much more likely that when they are provided these things they were providing for them subject to providing something else later and that's the whole issue right if governments if this if they were saying we now contractually obligated ourselves to give three percent forever that that would fit within your argument but it seems kind of counterintuitive that less definite language should be interpreted that way when nobody is getting less we're just talking about how much more they're getting well again the city code in two thousand was amended to say your base retirement shall be increased by three percent every year that now they legislate these things change them before they use shall because they want subordinates to do with the statute says making it mandatory directive the arbitrariness and the ability to take away has been taken away from the legislator you want to say may you want to say they may give this money that makes it sound like they don't have to get it from month to month let me point out under tennessee law when again i suggest tennessee law control the situation the blackwell case in the recent ten attorney general's opinion says this very clearly a legislative body and does have the right to a me and pension legislation and here's a big if but the the state you'd have the city has to reserve this case has what the city would do they did not reserve the right in the two thousand and legislation to take away the guaranteed flat three percent annual cost of living adjustment they did so in other respects the other major feature of the two thousand amendment in addition to the guaranteed three percent cola was something they called a drop provision which is a rigid deferred retirement option plan that basically gave some retirees the right to take a good one so pay out at a specific  had a very specific languages they had to drop can be modified to discontinue to do any time there's no language like that with respect to the flat guaranteed three percent count any further questions thank you can thank you  much but that's that's what i've been sent up here to propose so i think there are i think there's very little daylight between the two positions you're on or even explain the daylight or you're going to explain and explain the dialogue or all attempt to so i'll take i think what i'm hearing is i'll take the i'll take the the fifth thing several things mr richardson said he kept saying guarantee the word guarantee appears nowhere in the city code there is no language in the city code expresses an unmistakable intent by the city of chattanooga to forever bond itself to a three percent co op i think the court's questions are right on point and the puppet decision that a coma by its nature is not a benefit it's an adjustment to a benefit and it's designed to give city legislatures opportunities to allow the pension plan to change as economic circumstances change what do you do with the negative inference from the drop from the drop i think the intent from the fact that this language appear somewhere but not somewhere else in the public opinion is is clear on that also the drop the drop is totally different the drop itself modified express the base benefit that these plaintiffs are so and it's referenced in the base benefit calculation that if you receive or drop your base benefit is changed in a certain way it modifies the multiplication and the years of service aspect of the calculation in that way it's much more a benefit than the co which is treated completely separately which doesn't contain any kind of language cross referencing itself to the base benefit would happen in this case if everything about it were the same except that at the time they passed the three percent fixed in two thousand the retiree's had agreed to lower their met your increase their medical insurance premiums so they'd agreed to put more money  for the same coverage but the quid pro quo of the quo was getting a fix three percent or increase in their pension what would happen then everything else is the same same language one issue with with your  that assumes that these are bargain for exchanges that's what i'm just right and that my hypothetical i don't i don't want to hear you tell me that this is not rod i know if this is only what the answer is with that if if this is an offer if this was a true bargain for exchange if this was part of collective bargaining for example which is not then i think that that would it would appear more contractual but it but the city would it would still fall in this court to determine whether that bargaining was done for forever we're never going to take this away its language of contract in the court would still have to proceed through the un mistake ability analysis now that would be one circumstance the court could consider in conjunction with other circumstances but i would agree that in that instance it may be more down the road towards making the legislation a contract than it is here and certainly nothing like that occurred here the circumstances of the passage of the two thousand and eight a solution are important and several things happened other than the drop and the coa when the two thousand legislation was passed one of those was section two for eleven days he was added which expressly reserves the right to a me and the edges of the pension legislation in fact it took the amendment procedure out of the city charter which required a referendum and it allowed the city council to amend the pension plan so we threw ordinance ordinary legislation the c p i was at the top of the prevailing c p i at the time and two thousand were much higher then and more like three percent than they are now it there is nothing in this record that shows that the city council in two thousand intended to bond itself in fact it did the opposite it reserve the right to a me and things that are not vested accrued benefits and you look at the vesting language of the city code two four fifteen two four eleven where the benefits are conveyed into four fifteen the ten year vesting the city council use the language of right which is much more akin to contractual language than the language that the point of the traveling under here by the way evidence on summary judgment they mentioned the to try to find that i believe it in a crude we could actually find that's correct the but i think in i think if there is evidence in the record i think in mr frazier's deposition he actually retired in that hundred ninety nine before these changes were even passed and is that in the record that's a believe it is in the record in the depositions are at record entry thirty nine behind exhibit there  can't remember which exhibit mr frazier died i mean this is coming from left field but just maybe as a real quick answer to what is a recess say about cost of living as opposed to other retirement benefits this is an interesting point arista doesn't apply to m pension legislations not just but i guess what i'm asking is my assumption was that a risk that would say when you retire the norm is that whatever the benefits you vest when you retire and that the differently than they are in these public pension plans which are not covered by our risk of the vesting here does not the vesting here is not linked with retirement there there's a vesting it ten years then at twenty five years that the benefit the multiplier is increased because you've served longer bet's the only real change that's the service retirement pension which section two for not paying of the city code says is you are entitled to again more like the language of contract than the than the shall hear in a completely separate provision and no cross referencing apologize i can't answer your question judge  have additional more fundamental argument that it's not a benefit on quote you're not arguing that we argue are that it is that it is not that is not a benefit in the sense that in the in the way that that term is used in the  the benefits every time alternative argument it's an alternative argument it's certainly not accrued because as judge call your file and this is something that expressly it accrues h in suing in january one this change was pro if not represent the best in the crude argument i'm trying but you're not depending on this argument that it's not a benefit i'm not depending on it i think we win under other under other argument i think win win benefits or use the term benefits are used granted any time you you get something it's a benefit in the point and in the code the term benefits are used in two four eleven the service retirement pension to four fifteen the best in provision which gives the base the base pension it defers to those things as benefits the summary plan description which is not the code here which is just given but the point of have taken the position that  but what i was going to say about the blackwell decision is if the court were to consider that decision we win and anyway because the blackwell decision is clear that even when you vest it says specifically you don't vest in all of the terms and conditions of the point and you must still look at the terms and conditions of how the language is used and so it's the same analysis that we are that we say this court should apply the gun steak ability analysis that the  is not a benefit it's i think puckett is on all fours with that and it's not something that you are entitled to as a benefit as a as a vested benefit and it's not something certainly that has accrued going forward because this was a prospect of change not a retrospective change no money that these points have earned through their years of service have been lost or impaired the  the record just i have about a minute left here the the record on the other element the necessary reason one necessary we have put evidence in the record on reasonable and necessary that situation i think it's very important for now this is not a situation in which the city of chattanooga calls this problem but not funding the plan but borrowing from the plan the city always paid more than it was statutory required it paid to the actual where all required contribution at even over the years as those amounts went up this is this is the city city council doing what it's required to do what it's by to do and that is to legislate based on changing economic circumstances the we ask that the district court summary judgment  record the blackwell case against and for the proposition that pension legislation bestows contractual rights upon the retirees and in you have a right to not have your rights diminished subsequent to your retirement these rights go back to this amount of discussion these rights were vested and accrued and back to that discussion i don't think i said this earlier they were clearly accrued because that accrued by definition just means the rights have been calculated their retirement id and their enforceable in this case the city of chattanooga this is in the record actually calculated the future cost of this guaranteed three percent cola in the future based upon the life expectancy of these retirees so they have already accrued that as a liability not if that's the definition of the coral in this case a city of shit out related predicted and therefore it's a crude that's part of the debt that's part of the accounting definition of the cruel if you will you can accrue future contingent liabilities and in this case the city did exactly that so they knew what they owed these retiree use before they arbitrarily tried to take back their guaranteed promise and the last thing i want to mention is the city wants to dance around this guaranteed judge call your didn't consider the fact that there were representations and promises made back in two thousand of these retirees that this three percent fixed annual rate is guaranteed the city wants to dance around that just call your didn't consider it custom he cited the poke at case at the lower level for the proposition that you can't consider extrinsic evidence but recently the six circuit in polk it says you can consider all the surrounding evidence to show actual intent and this clase is clear based upon the legislative language the failure to reserve the right to amend or delete or diminish benefits and the guarantees and promises made to these retire that the city should not be able to abrogate or take away their vested in accrued rights that they worked for and served for for over twenty five years thank you counsel that you are will be submitted