very much for your devotion and your dedication regard to see here thank you i feel you please the court field on behalf of west rock your honour's the district it's a crucial issue for employers and really for most employer plans in general because it plans really can adopt this rule on top of a draw liability on top of higher contribution rates required into rehab plans employers simply will you're seeking to do you had a chance that what we're seeking to have the rule correct was seeking to have the rule declared on forcible because it's not a valid update to a rehabilitation plan under and it's also not a if you stay in the plan it's not it is not a charge against you so it has to be a withdrawal rule because doesn't apply to everybody funding rules are rules that require contributing employers to pay certain amounts and a rehab plan was supposed to give a schedule of contribution rate increases and a schedule of possible benefit cuts and also look into ways to cut expenses but the key is that the contribution rate and the benefit cut still supposed be presented to the bargaining parties to negotiate over that's not what they did it they just imposed a liability upon a withdrawing employer that is a employer withdrawal rule subtitle he deals with all special m pension plan rules well it's a decision by the fun discretionary decision about a fine to enforce a rehabilitation plan which is adopted to alleviate the fun endangered status plans both you had come up with a set of rules to get your plan out of endangered a critical status here's what you do you can increase the contribution rates you can cut to some extent but you can cut future benefit  to a very small extent you could cut actual accrued benefits you present different schedules to the bargaining parties they negotiate over which schedule we want and if we contribute more we have smaller benefit cuts if we contribute less we have higher benefit cuts that what are we rehabilitate in play was posted congress recognized that at some point you can't charge employers hire contribution rates on top of withdraw liability eft if they ever withdraw and still make them responsible for paying even more contributions if there's a funding efficiency congress recognize that because section three zero two b three it says that if you're an employee contribute to a critical status plan that has a rehab plan you don't have to contribute sufficient amounts of oil to find efficiency well they knew that employers can't be able to stay everything it's tough to figure out what congress intended and what congress knew and we don't have a whole lot of case law on this and so we're making an effort here to interpret this statute but i guess my question is to what extent should we take into consideration the purpose of the amendment to of this pension protection act which is to bring these funds back to give these funds the authority to bring the funds back in the sound financial condition so if congress intended to create this cause of action to challenge these discretionary decisions it seems like it's contrary to the purpose of the act itself because if you've got this cause of action then employers can you know they can  put the fun in litigation costly litigation they can delay they can to lay the rehabilitation plan that costs a lot of money it's expensive they're still a which is contrary to the purpose of the plan itself i would argue th this is the contribution rate you have to pay you can has one of the sketches go to go see it with the union they did that so they are paying the contributions they were required to pay to approve the plan the reason was if you allow this route to go forward it's actually going to have the opposite effect is that if voting for pension plans know that these rules are valid you're not going to have any contributing employers and part is the perfect example of why at the beginning of i'm going up the most of what you've been talking about is challenging the substance of that new i call it the new paragraph you know what i'm talking about the new paragraph in the plan but the problem in this case i think that the judge wilson was trying to get at is you don't have a cause of action to challenge this i realize that puts you in a bad spot and we'll talk about that later but you eight three and the language of five zero to a ten is clearly narrow and we're supposed to interpret it is naturally and out of case and all kinds of cases  so i just don't see how you have a cause of action to begin with and on top of that apparently the history of these plans is that employers have had  do this update of the rehab plan they have to make sure the updated rehab plan qualify as and they have aspect of a wrestler that's exactly what participants  and if you if i'm wrong that means plans could adopt anything but the tyro rehab plan on it have no provisions whatsoever to sign it it's just not going to anything for the plan but the north florida challenge is well and there always has been one hundred forty three o one a one ok they are ready to play are going to be able to do this but i think that supports me because i think congress knew that this isn't a real planes are important because employers pay the penalties if there aren't we have plans so we should give the employe how does that help you think meticulously details and leaves out what you're talking about are we supposed to read it in when they're that meticulous about what topic if they i would argue if they wanted plans to be able to charge more than withdraw liability against the withdrawn employer they would have said so and that what but there is nothing in that part one that says this withdrawal liability that they define very precisely does nothing that says that that's the only charge that can be imposed on a withdrawing employee or is that not true yes but if the law doesn't say you can charge rehab plan you have to submit it to the part is and it is to remain in bargaining but the rehab provision is different and is not say anything about submitting  and secondly it doesn't make a lot of sense that congress in other words when congress talked about the day in the three d it doesn't talk about submitting it to bargaining at all and the update has to be done annually that doesn't make much sense original adoption submit so when you i agree if you just update your rehab plan and you weren't going to make employers pay more there was no reason to send the parties has nothing to negotiate over but if you if you have a schedule now that says these are you going to increase your contribution rate by three percent every year employees negotiate that that's done with but if you realize that our rehab plan isn't working we now need employers to increase their contribution rate by four percent the only way that can happen is if is if you get where we are where the sponsor of the plan itself the trustee has decided that there are no measures that can get this plan at a critical status within the ten year time is we know that the contribution rate that we have to make employers pay and the benefit cuts that we have to have the union agree to i so agree just that when i'm going to make you do that will make you something less or make you do what is reasonable that's not what they're doing they're doing the exact opposite they're saying because we can't charge you more in a contribution rate to get to get us out of critical status we're going to charge more it doesn't make any sense it's you can't pay it so we're going to charge more and find efficiency is clearly more right now it's about fifty million dollars or but that was to be a twenty fifteen out how i haven't seen you numbers but i guess it's significantly more their own actuary projects that it will be eight billion dollars eight years  me that's paying a whole lot more than you pay under rehab rick schedule so it doesn't make sense that a regular plant can only check and charge what the employees can pay but if that's not enough then it is a measurement to make you pay more because of that shoot you want everybody sections and have to go to arbitration what section the you think it comes on i think it comes under subtitle broadly what i'm saying is congress dictated the universe of charges that you could have been posed on a withdrawing pension fund a cause of action to chart challenge the substance the specific provision a specific substantive provision in a duly adopted rehabilitation plan and i think opposing counsel's concession at the podium  significant he conceded that they are not challenging the adoption they're challenging the enforcement but this is not at all what five or to a ten gives them a right to challenge it this court has stressed repeatedly and particularly the gulf life specifically define who could bring what sort of suits and it what time here we're looking at a relatively new subsection within five zero two five zero to a ten and that is a very narrow and carefully drawn cause of action for employers to seek an order compelling a plan to adopt a funding improvement plan or rehabilitation plan or to update or comply with the terms of a rehabilitation cation plan or funding improvement plan in accordance with the section requirements of section three of five and if we look at specifically the language within five zero two eight ten it is really a very particular language we can compare it to a couple other provisions within five o two that have much more general and broad language which is almost immediately preceding a ten and was adopted at the same time congress gave employers again a little bit of a broader right of action their right to sue to challenge any actor practice which violates section one  f so if congress had wanted to give employers a right of action to challenge any violation of subchapter one it had that language you could have looked at the language of a three and borrowed that language if congress had wanted to give employers a cause of action to challenge anything that it thought violated three o five it again had easy language to do that it could have borrowed the language from five to eight and used very simple language to do that but instead it used a much more complicated linguistic structure there's a lot more words in a ten than there are in eight and the reason it did that was that it was tracking very specific requirements it is it's using the motion is the determination for the plan sponsor the trustees to make and these are not difficult these are not easy decisions to make clearly any time you have a situation where the finances of an entity are not good very difficult decisions need to be made and there is no question but that when you're coming up with a rehabilitation plan particularly for a plan that cannot see a clear way to emerge from insolvency within a reasonable period of time that extremely could read that little a little one a little too like judge wilson referring to that you have to submit to the parties for bargaining and a little one but if you in such a clear that the contribution schedule increases need to be submitted to the bargaining parties that they can consider that in bargaining as to whether they want to adopt that and if they don't adopt that then the statute has some implications that flow from that decision but the statute is not clear about whether the more general and broader reasonable measures would all need to be submitted in that way and so i think the necessary implication is that the plan has more flexibility there i do say it is in our knowledge the laws unclear on that it is unclear but it certainly it isn't mandated in the way that the presentation of contribution schedule increases this managed to be presented to the bargaining parties but the fact of the matter is these rehabilitation plans are not a secret  they are sent out to all the bargaining parties and when they're updated they're sent out again so this is not the issue about whether or not it was presented to bargaining parties as i said it's not the pleadings but it's also really a non issue because these documents are not held in a bolt somewhere they are circulated and everybody knows they should read i'm a should know what they say let me interrupt you with with the question how do you respond to the  far from helping the situation which of course this was meant to do it's going to provide an incentive for employers to start withdrawing now rather than to wait because it's clear that if they were going to get into almost astronomical figures isn't that a little self defeating and i mean how would you respond to these are decisions for the trustees to make and not for the lawyers  with all due respect for the court to make at this point the trustees have very difficult decisions facing them and it is a board of trustees which half of the trustees are appointed by employers half of the trustees are appointed by the unions and they need to come together to grapple with these very difficult issues and try to find their best way out for the plan and that was what was done here the statute does provide certain mechanisms there is a provision that if  the trustees are unable to reach agreement there's a very strict deadline so they have to come up with these plans on a very strict timetable because congress realized that they were going to be tough choices and didn't want them to drag out indefinitely there's a provision within the law agreeing and that's i think getting back to five or two a ten that's precisely what congress was doing with fiber to a ten is giving participating in employers an opportunity to to force the trustees to act if the trustees are refusing to act so it's conceivable that you could have trustees that are just impossibly deadlocked or you could have trustees that would prefer to stick their head in the sand and think well the market will come up we're just going to wait it out and congress said no no no we want to give employers the right to say you have to adopt this plan according to the timeline set forth in three zero five and you have to update this plan according to your more recent actuarial experience so for instance if the market were to come up which it actually has recently but if the market were to increase such that the plan's funding starts to look much better than it had at the time the rehabilitation plan was adopted under the provisions in three or five regarding the required updates the plan has to update the plan to reflect the improving experience of the plan and you can imagine possibly a plan that said you know we kind of like these higher contribution rates even though our plan experience is looking really good right now we're going to keep the old higher rates in effect so congress gave employers the right to say no no plan you're required to update annually based on your experience you haven't done that so please go do it but what congress did not do was give employers the right to second guess these incredibly difficult decisions that the plan trustees have to make and that makes perfect sense when you think about the structure of these plans that we pointed out in our briefing this court has pointed out that there's a certain safety check due to the fact that the plans are required to be jointly trustee both by union appointed trustees and employer point of trustees but you think about these plans have dozens hundreds of participating employers and understandably in a group that large there are going to be employers that say you know what we would have done it differently we don't think this was the best idea we think you should have gone a different way there may be unions the think the same thing we don't think this is the bust yes plan we think it should've gone a different way but congress did not give individual entities the right to come in and second guess the trustees decision because they understood that this was going to be sort of a difficult pretty substantial liability that is potentially imposed yes your honor and it is consistent with the way the statute has operated in the past so for instance we haven't gotten to the draw  liability p c at but it's common for withdrawal liability numbers to be fairly large as well and for small changes in plans methodology or assumptions when calculating with our liability to make huge swings in the number of an assessment so you know it could be a difference of many millions of dollars based upon the interest rate that the actuaries are using when the actuaries do their assumptions and employers are very very interested in challenging these but are not able to challenge those calculations and i'm worried about the employer not having any to challenge this  and i don't want to speak without having looked at the statute but the p t c the corporation also has a broader right of action in certain circumstances so there are other entities other than employers that would yes and that is our position is that's plainly not what congress wrote in the law and this is a statute where it's extremely important to be tethered to the words i see my yellow light is on and we haven't as long as the court has questions but just john i think you should switch to your ok i'm forty three i was why you know i think the panel has asked the right questions about what section are you saying has been violated and is not what forty three or one says there's no question here that pension fund is not asserting anything in subtotal it's the basis for its authority for this rule it's operating under the in a totally different section of the statute the withdrawal liability provisions themselves were adopted to address a particular problem and were drafted with that particular problem in need and that was the problem of a planned long term unfunded vested benefit liabilities so the definition of with all liability within the statute is that it's the employer's allocated share of the unfunded vested benefit liabilities so all those pensions that are going to come due over the next thirty forty fifty years until all of the plan participants have reached their natural expiration to use a phrase but  relate to not only vested benefit but listed benefit that will benefit will best over the next thirty years there's now only the benefits that have already vested but and accumulated funding deficiency is the major difference that the form deals with current benefits and the latter with the at the what i just said is wrong and you get rid of the right answer is that right that's the funding standard account it's you can think of it more like it's a little more complicated than this but simplified concept is to think of it as the funds yearly balance sheet so it looks at the funds normal cost for the year which include all the funds administrative costs in addition to the benefits that were crude during that year and certain amortization of certain other long term expenses that the actuaries in their amortization have to attribute to that particular year so it looks at that as being the cost for the year and in comparison to what the plan took in for the year so if a plan is opposite operating at a surplus then it gets to carry over that surplus and it's sort of balance sheet its funding account to the next year if the plan has a year where operates at a deficit it has to carry that deficit over to the next year funding standard account so just as to illustrate this this particular plan did not have a deficit in its funding standard account until the end of two thousand and fourteen where is it has been assessing it has had  a problem with the unfunded vested benefits for much longer and it's been assessing that for i think about a decade now so it's you know it's these are complicated actuarial concepts but they are very different calculations that are done by the actuaries and they they are targeted at very different problems if that and they were all able to pay it in a lump sum the plan would actually collect more than it needs to pay everyone benefits so there is a piece of the fund officially that does make up with all ability and again it really doesn't matter because it's this is a rule that applies to withdrawn employers congress has already said it was drawn employers pay they pay withdraw liability so they have a rule that goes beyond what congress allowed it's clearly an act under subtitle i think would help to understand the facts a little bit there what was what was being challenged was a planned rule that was trying to eliminate a specific exception to withdraw liability some industries don't have to pay withdraw liability under certain this plan tried to take away that special exemption the employer in that case had not withdrawn so it wasn't about withdraw liability so they just wanted to rule declared null and void so they would know if they withdrew whether they would have this liability and not and the court said it's not something to arbitration because forty two twenty one only triggers arbitration when his assessment there wasn't here and you're challenging a broad rule for three on a one gives you a cause of action to do so the twenty eight day letter and just to this to the second guessing about trustees decisions were not second guessing a trustees discretion what we're saying is you've done something that's illegal and we have a cause of action t there are certain things they can choose to do that isn't isn't illegal and i would agree of course can't challenge it but one they can decide we want to treat percent increase of contributions great instead of four percent increase or four was part of a four percent if that's what they were doing didn't challenge it because that's been a station they decide what schedules to present to the bargaining parties the bargain parties get to pick which schedule but they can't do something that violates the law and say well we're just using our discretion