hundred seventy two actually there was a prior plan that's why the stumbling on the date there but the profit sharing plan was rolled into the end it's still planned in one nine hundred seventy two they i thought it might be useful to just briefly recap some of the major points in the factual history because it involves a long period of time yes th federal common law promissory estoppel which is identified in the in the order and the judgment by the court and then it sort of grafted into that action the greenie principles or the green elements and the green elements in doing that the court did not even apply the greeny elements properly and it completely ignored the two elements for a federal common law promissory estoppel and this isn't a risk the case or not it's a recent case it involves an employee benefit are the trustee and you're bringing an action against plant or a group of beneficiaries suing the plan under section four zero nine or section for a five for breach of confidence shiri duty then there is a statue of limitations that's under section four thirteen and section four thirteen has the some part would be subsection two and it has the earlier you apply the three years post actual knowledge of the breach and that that has  test or six years after the discovery in the case of fraud it's six years after the discovery of the bridge and that's applied separately because that wording is the same as under for thirteen to the court looks to actual steps to cover up or to cover up the tracks that the fraud to conceal the fraud that occurred and that that was one of the problems with applying that but a risk that under five o two which the civil important section for participants employees the beneficiaries that does not have a statute of limitations for so for all of your a long term disability cases your health care cases your life insurance cases  know what we what we had said in our in our brief is that we believe that the state law contract on the patient's periods apply because we're outside of section a part for basically two or all four for  california yet and there's a four year contract of limitations for written and the court had found that they should definitely knew that they profit sharing plan had been terminated and he in fact negotiated for an additional eight dollars an hour  that he could save that amount for pension benefits forward and the court talked about that date and then use that date that was appropriate to nine hundred ninety three date and apply that to the fraud section of section four thirteen which is six years after the discovery that of course is the same language that's under the the four thirteen subsection two i've cited for you the statutory it's i think it's on ph fifteen roman numeral fifteen that's the language of section four thirteen so under subsection to us three years after the earliest date on which the plaintiff had actual knowledge of the breach or a violation except in the case of fraud or concealment third circuit law on it instead of night in the ninth circuit what it requires is only knowledge of the relevant facts or the conduct and in one thousand nine hundred forty eight had admitted knowing that the profit sharing plan wasn't funded he did also property and basically said no more industrial use of the entire company character change back to a personal services corporation in nineteen eighty four is when the new property  the profit sharing plan was amended with the corbell documents the core bill are standard documents including a profit sharing plan that has all of the standard provisions it cost a lot of money to them in those plans that is the document that was retained the profit sharing plan was actually terminated in early one nine hundred ninety three because one of the three members who have rolled in money into it back in the seventy's when bishop had retired and and needed a cash out of his account so that the account was cashed out and that man at the plant needed to be terminated some of the funds that had been rolled in for reed and delphi in the early seventy's they took their best to the council and actually put them right back in the company to try and save the the profit sharing plan did not exist anymore the next month is when reed and chip had their conversation about there isn't any more profit sharing plan and there's no there's no funds and it's not good there isn't any each fifty five hundred form was filed each year because the plan was in existence the fifty five hundred forms state that the plans in existence it states of the funds in the plan the i r s audit the plan judge burns acknowledged that the company which basically froze it it couldn't move on and then you come i mean it has huge financial problems there was no reason to change the plan there was no evidence that at any time the plant not only the plant changed but the entire character from a from our defined contribution plan which is the profit sharing plan to a defined benefit plan what judge burns did is he actually created a new plan by using the green elements finding that  five document even though that particular copy which was in reid's possession is and signed it nobody knows what happened to i mean it raises the issue of latches nobody knows what happened to the original signed copy because it was in the  hundred four and the passion isn't even filed until four years later there's no reason that mr innes would have kept around bogus plan document all those years it just happened to be an unsigned document but you can tell all of the major provisions and as a matter of law a profit sharing plan als walk under the i r s code under the internal revenue code is a plan that allows contributions to be made to a certain level of employee's salary at a discretionary level based on net profits that are available through the company that is a matter of law that is what it is the birth quote in that in the berky's course you actually have a signed plan document that reiterated the same thing that is down in the law and the court says it is not reasonable to understanding a profit sharing plan to creating mandatory duty for contributions and the union plan did not cover the union plan was a defined benefit plan and and really gave champ his personal opinion he says i think i can do a lot more with this company i think the profit sharing plan which is going to allow fifteen percent is going to end up better than the other it's a better it's a better deal that was based on projections because the company had been throwing during that period of time more contracts were coming in which required more employees which required more equipment and so forth to be purchased and so the company grew up to one hundred seventy seven to one hundred seventy seven employees and in one nine hundred seventy seven it it got a noose around its neck by the rezoning by the county prohibiting any further industrial use and then it for the next six to seven years it's spent trying to find a property get it approved it was hunting for dollars as reid says all the time so testified that or had ed noted that eight hundred dollars was in the play and you nine hundred eighty four yet the district court was referring to reed's testimony about the investment in the south  property which wasn't a profit sharing plan investment reed had seventy five thousand dollars of his own money that he took a second out on his home to try and produce investment profits so that he could provide something for two friends  the panel's question about didn't mr innes admit that he told his brother that he was going to fund a pension equal to or better than the iron workers or operating engineers pensions which were the pensions an issue i have a reference for the court in the record a trial that was actually deposition testimony that was read a trial the page seven of the excerpts page six twenty one starting at line twenty through six plan so he would receive a pension better than he would have received from either the ironworkers or the operating engineers answered by the i think the discussion was equal to the question if i understand you correctly what she did tell him was that the pension would be equal to what he would receive from either the either the iron workers or the operating engineers answer at the time that these discussions took place i was assuming the ship would give me his best efforts until he was ready of all the protections that a recent provides in order to promote pension plans but not accepting any or complying with any of the responsibilities that they had under that statute they can see to me no disclosures they can see th issued no summary plan descriptions and they have the temerity to argue to this court that this was a profit sharing plan when they could not prove that a trial they produced a document that was not signed that the patriarch and the defendant was a fiduciary admitted under oath  he did not know whether that represented the terms of the plan but yet they turn to this court and say king's x this isn't just a case there is no remedy under the law and we should be able to walk off with impunity after defrauding this gentleman who happens to be my brother and brother in law for twenty seven years that's what they want this court to whole and under the supreme court's decision in verity and in this court's decisions in green there is a remedy and under the great west case the supreme court decision it falls squarely within what justice alito defined as appropriate equitable relief that when there is a situation when there are future payments to evade past payments there's a lot of discussion opponent's brief about restitution this is not a restitution case this is a case where these defendants misrepresented not only to the tele mr s chip but the summer other of their employees that they should plan documents and they represented to mr chip then that this is how it's going to work you are going to get a monthly payment of eight hundred to two thousand dollars a month and i happen to make this representation right at the time that they needed their employees to make representations to the union that hey we're taking our pension from the company and not from the union so that they conveniently won half the pay into the union the mon provide a pension to anyone and they didn't tell anybody but now they come to this court and say well this of protects us or is it doesn't protect that that's what the court in verity said we're not going to interpret the statute to protect what under common law you would be held accountable for but that's what they're asking this court to hold and they're trying to avoid the six year statute of limitations we do take issue with the court's finding it is as to when we were told because there is evidence in the record that mr reid and just didn't tell us until november of ninety five when we quit that he had not put aside any money for a pension but even this putting that aside even accepting the court's finding that six year statute of limitations for texas chip business because there was actual fraud in this case the district court found that on multipl these defendants admitted and they complain and they make arguments that we should have known well if they had complied with their obligations under the statute there would be no question that we knew because they were told you have a the greeting that's correct that's the only that's the only available remedy left for us under under the circumstances of this case even the district court found that if the conduct of these defendants was particularly despicable from the standpoint in the summary judgment motion that they had terminated this plan and also didn't tell anybody about it they prevented these participants from taking any other type of action under miss them by their and what they're trying to do at this level your honour's is we argue the facts i mean looking at the reply brief there's very few references to the record and there's new facts that i've never heard before i was other the other actually that i've covered all of the points that i feel even need to address in oral argument as far as whether this is appropriate equitable relief of whether we're entitled to attorney's fees under the five sections i know that that will turn to a degree on some of the factors under hummel based on whether we prevail at this appeal but i would submit to the court on my brief i've argued what i would argue here i don't find the need to repeat to the court my statements that from the outset when we lost our preemption arguments and i look to the verity case that's really the controlling authority as to where the remedy lies with this type of conduct you have any problem at all the idea that the big you list something that doesn't exist can be ambiguous no i don't have a problem with that your honor from the standpoint of this certain if you go by what was actually given to us there is the only explanations received of the plan are different from that so they're clearly contending that the plants are something else and it's really at that point it seems to me that we should know well you say that the plants and this is in some arguments actually a trial statement i would agree completely with that argue that statement your honor it is analogous from that standpoint in all of the cases where the greeny principles have been applied that i've review of the court is this is this is a unique case i can honestly i pray that there is never another case like this one so it's a situation where it doesn't fit neatly into any particular hole award in this case there was a brand new plane created based on these floral promise that these alleged all promises with respect to that let me let me make one point on the testimony proper to characterize that a pardon me improper to characterize those as improperly characterized that what you just said the creation of the creation of a new plant that the test for creation of the new plan is under the donovan versus dillingham and the court address that and said these terms or this this alleged promise is way too vague way too that he used the words very very amorphous and it doesn't satisfy the donovan plan so basically if you take these promises th sort of a branch off of the profit sharing plan it was a completely different kind of plan and it did that by bringing it had to bring in all of the vesting and everything that that came from the operator's union plan when it was the another plan that the employee was a member of and did most of you well actually was a member of both the planes but they are both of the unions but one of the plans was the one he was a member of and that was the  retired now it was a statement if we can't get the profit sharing plan funded and you're still with the company and the company makes that you're here when you're retired then well find a pension for your ship quit at fifty years old when the company was going down and he came back in one nine hundred ninety eight fifteen years before retirement and now he wants the profit sharing plan to become something different and and that's why the use of that testimony was incorrect with procedure act that precludes action seeking money damages against federal agencies does not bar a state from seeking specific relief to obtain money to which it claims entitlement under the federal medicaid statute but one did not turn on  between equitable actions and other actions but rather on what congress meant by quote other then money damages in quote in the administrative procedure act furthermore bowen unlike petitioners claim did not deal with specific performance contractual obligation to pay past due sounds rather massachusetts claim that the federal government not only thing to reimburse it for past expenses pursuant to a statutory obligation but that the method the federal government used to calculate reimbursements would lead to under payments in the future thus the suit was not merely for fact past due sounds but for an injunction to correct the method of calculating benefits going forward anyway