please the court gary gasa care for jerry aaronson david brown i'm pleased that mr mrs aren't with me today in the front row and you're far right this case has a threshold issue we do not get to the constitutional issue unless there is a determination that either state action or an alternate argument i have  state action exemption applies what i did in the briefs and i just want to mention i do want to reserve a couple minutes i do want to mention that i took two cases in the briefs one was a case you authored judge lecture and it was george versus at home and the other was a board d c alaska i used them and i just want to repeat the lines in those cases to show that the economy of what is and what isn't a state action exception in see alaska the sentence was made the most clarity not in any way compelled by the federal government and that was in reference to a federal  statute the last can native claim settlement act and the other comment and see alaska that breeds true was it merely exercised its option under the act so that shows the kind of my pro and con example the georgia case versus dr at home with which you author judge fletcher recognizes critical points with quotes from cases you he recognized the first one is and the threshold one is when the state provides significant encouragement either overt or covert  in this case you cannot start without looking to the background of the pension protection act and what it was designed to do and i pointed out the congressional record as to the goal simply was to avoid a bailout of the private pension system and yes q a question or two i'm not as astute or or  able about all as judge fletcher but there's a couple of questions that i have which i think are pretty controlling for me the government didn't cause this plan to be in critical sta obviously not no private parties did well if the congressional record i pointed to i mean i'm just trying to make sure i know what you're really saying we have a plan the government allows them to set up a plan then they got it in critical status their plan yes and and then when they wanted to change this plan to get it not in critical status they couldn't do that without going to the collective bargaining parties could they that was their first choice now as a first step that there was a default provision as the as the regulations suggests it has to go to the collective bargaining parties for approval and if not with then there's another step well they took it right to the collective bargaining parties right correct and the collective bargaining parties of which the client is a part approved it there really wasn't any choice it was a do it or else that did they approve it or didn't they if they approve it all right so the rehabilitation plan reflects reductions in future benefits and increases in contributions that the plan administrator determines are reasonably necessary to emerge from the critical status who's supposed to make those determinations the plan administrator correct so the plan administra has a critic has a critical status plan and they come up with the way to resolve the as they take it to a third party who represents your client for approval and get that approval and all of a sudden their government actors i start with their own admission well i'm just a minute i'm just trying to see what happened here the government didn't mandate what the plan administrator had to do in this action the government didn't get him into critical status the government just said if you ever get there to have to do something about it and the best way to do it is you decide and take it to your people the employee's representative and if you all agree on something that's what we ought to do and that happened and now because that happened they are now government actors here's how i arrived at your argument here's how i arrived that your art it's in its inner wind in my argument but i'd like to respond to it the state's involvement may not be immediately obvious that's what the case law holds and if you don't look at this as the fund looked at it the best way they said in their notice to their employer and to their membership the board of trustees is required to comply with the pension protection act which mandates these benefits chain changes and the case law focuses on the encouragement we have eleven hundred dollars a day fines a thousand dollar a day fines i hate to use the phrase judge smith the fund had a proverbial gun to its head it's it either does it or else well it's got to do something to make the reductions there's no question or they get taken over or they have to pay but what they do to make the reduction is their decision not only their decision but a decision they out of work out with the employees representative and that's what they did i can't make sense out of that argument in the face of the sea alaska language that says see alaska was not in any way compelled by the federal government this case is full of compelled by the federal government to yes they were compelled for the plan to keep from going into default but the government does not mandate that was standing in the language of the what you read they did not man mandate age sixty five benefits in the break in the brief and what p p a said was you can't touch the age sixty five benefits but you can touch anything else and i'm sorry ted smith i one more metaphor maybe it's better than the ones i used in the brief is the rube goldberg machine the federal government created this rube goldberg machine you see it in commercials it's a series of chain reactions and it's like the federal government said we don't care if you pick a four ounce ball bearing a six out's ball bearing or an eight ounce ball bearing but you're going to put one of those at the top lever of the goldberg machine and the rest just happens you know i'm having trouble with your argument because of how far it might go the federal government and state government require private actors to do all kinds of things and your argument is pushing me to a conclusion that any time some private party does something because compelled by state or federal law that person is a federal or state actor i can't believe that that's so i would tend to agree with you if this whole circumstance an area that  this court and george spoke of let me talk about then you keep referring to george here the facts and george we have a man who's picked up by the pasadena police they take him to the hospital and they direct a doctor t forcibly from his rectum the drugs as against his a strenuous objection and the he senses the two police officers for what the doctor did and we say what the doctor did can indeed be attributed to the police officers because he was th private doctor was acting in his direction we did not hold that the doctor himself was engaged in saying actions of the doctor could be sued that question we did not reach we only said that the state officers that compelled him to do that made his actions state office say that action for purposes of liability of the officers what makes a difference for me is congress saw that it could not encourage pension funds to suspend benefits voluntarily when when congress acknowledged they were that the pension benefit guaranty corporation was was in the hole four point three billion dollars and comments by senators that i cited to you said we're not going to dump the sun the backs of the u s taxpayers that's the difference case the other situations you're referring to this was the government's stake in this they had a pension fund was there standin the goal here is as the senator said was to keep the french private pension system from falling and falling into the pension benefit guaranty guarantee corporation and falling on the backs of the taxpayers that's the difference in the statute and then it's it's enhanced by my phrase well when they when they got it when they got to take a twenty three billion i've heard your argument i'm not sure i'm buying it but i've heard that the second part of my question which i really didn't have time to answer ask you but i think it's pretty important prior to  four there was no interest in early retirement no and that's why the statute was amended to one just a minute early retirement could have been eliminated or modified without a problem in fact when your client entered this plan there was no early retirement benefit it could have and since that time it's been subject to heavy and continual changing regulation ever since he's been in there then congress enacts the  cut back rule which is what you're really after and then congress says i'm not going to have the end i come back anti cut back rule as i've been active that i'm having a tough time understanding then how these people who are just merely acting based on what congress doesn't or does do you know early retirement then becomes a state actors i don't accept one thing factually says this there aren't cult back rule it could have been changed any time and he wouldn't have had an action it wasn't an eighty four it was a race to the level of the age sixty five pension you cannot cut them because their retired when they do the pay a fifteen percent reduction in their their salary retirement salary i think you have the same objection that you are on that because the the concept of pensions changed in seventy four from gratuitous plans and seventy four change that if you join and create a plan it's got to follow a recipe and it turned into a earned i don't want to i want to paraphrase correctly it took it from i took it to it earned your you've earned your senior status retirement salary all the all let's hear from the other side and we'll give you a chance to respond i think you please the court jerry since that appearing on behalf of the united states to pick up on some points that judge smith was raising in this case plaintiffs seek to hold the federal government responsible for the plant decision to cut the early retirement benefits but the government was not responsible for the fans fight for the funds financial straits which left them in a position of being underfunded and unable to pay the benefits that they had promised their their participants not only that they sued the department of labor actually to be splitting argument yes we are splitting the time equally so hopefully they'll be time for the fund to answer questions and in the government was likewise not responsible for the actual decision that was a decision that under the p p a left that i think the main complaint that plaintiffs make is that change the an anti cutback rule which then authorized the cut here and that's very similar to this the fax and sullivan in which the private actors were not or wasn't there a complaint made them getting their cases fused you were originally sued and then they amended to drop you and that's correct you are the department of labor was originally this court found that was not responsible for what happened here and therefore mend the amenity added the plan but do not bring a private cause of action against the plan or a private cause action then you intervene as a former our position of course we agree with you that there is no per se taking here but we also think that there is not a regulatory taking or state action for really taking under cases like sullivan because the action itself the decision to cut the benefit was not compelled by  the federal government as a manchu and i think you know as you're as i'm sure the upshot of his argument is that if it planned that is failing cannot cut benefits to save itself or if it does the federal government is responsible for paying those benefits and you know that's not the law the supreme court has said quite clearly that just since fairness do not require the public and the government to pay to bail out a private fund that the responsibility relies lies with the employers in the participants in the fund if you don't have no other questions for the government i think you may please the court my name is bill simms i'm here on behalf of the private party defendants i'd be the wash in idaho montana carpenters employers trust as well as enough the administrators  that i'd have to do that in any event your honour's as i said i'm here on behalf of the private parties who i submit has been held into court for simply doing nothing other than following the law in exercising i discretion over the management of the plan and doing its part to act in the best interest of the beneficiaries of that plan i say that not to be flip or be cute about it but to say that because we're here after ruling on a twelve the six in in the complaint or the complaint is devoid of any allegations of any conduct by my my clients the private parties that it ought to rise that ought to be deemed to risen to an arm the sovereign and your o you talked about the georgia case counsel talked about the georgia case i think the distinction that you brought up i think is an important distinction it's laid out even more clearly in my mind in the sutton matter where there is described the to what degree will the government be liable for actions of a private party when the quote unquote deputize to act versus the responsibility of when the defendant is a private party and when there's a private party the phrase that you've seen the case pfizer's got to be compulsion and something more why because all laws to a degree mandate govern regulate behavior in many laws often provide consequences to the private party who does not act in accordance with the law we all know that the question is that does that raise state action and certain no the concern of the anybody who follows the law we create state action in this case we don't have conspiracy join activity concert and so forth and i would suggest that the sudden one is the fact that the complaint like i said is devoid of any allegations of the type of behavior that would rise to a level of state action the second one on the merits with regard to the taking aside from the analysis in the i believe that you hit the proverbial nail in the head i guess an issue here is is when both plaintiffs pursuant to the allegations complained and of the plan there was no federal karen  early retirement benefits the act was amended in eighty five i believe it provided a statutory federal right what congress can give it congress can take away regulatory grace there is not a property interest that was  ost undisputed in the four corners of the complaint neither gentleman had entered the phase where they inherited any property right there simply isn't any property here unless its any participant participant is entitled those those are property rights same as i suspect your rule of eighty would be if it was adjusted because you've already earned it and that's the same principle applies to mr aren't they what i can't and main except is george uses the phrase in quotes the private party acted as an instrument or agent of the government i might have the same problem that you appear to have if this all wasn't going to hit the federal government and have the pension benefit guaranty corporation fail this was a backstop design to prevent that from happening it's a beautiful condit conduit to create the sash this way same as i said it doesn't matter whether you pick the four ounce six ounce or eight ounce ball bearing you're going to be told to roll it up and that's what happened here and i think one other case i'd like to cite that was in my brief as croaky county of san diego five ninety three four eight forty one  requisite causal connection to be established not only by some kind of direct personal participation in the deprivation but also by setting in motion a series of acts by others which the actor knows reason we should know would cause others to inflict the constitutional injury ok