planned interpretation the first one is when did the plaintiff mr dresses employment with the tell terminate under the provisions of the plan that govern leaves of absence and the second question is whether mr dress all needed to be employed by battell when he turned fifty five in order to qualify for an early retirement benefit under section four point two with the plan now here the plan administrator made a determination based on the provisions of the plan covering these matters that mr bacile was not entitled to the early retirement benefit and because the plan grants discretion to the administrator to interpret the plan and make benefit determinations that decision is entitled to deference and should be set aside only if it was arbitrary and capricious or otherwise unreasonable now let me address the first issue briefly a question of of the consequences of mr trestles failure to return to active employment at the end of his leave that determination is grounded in the plans definitions of employee and of leave of  absence the rationale for that determination was addressed in the plan administrator as written response to mr trestles appeal and in the briefs i'm not going to repeat all of those arguments here today but i do want to emphasize that the question of when mr wrestles employment terminated was the only issue the only ground for reversal bad mr dresses konsole argued at the administrative appeals stage  dispute that the leaves of absence were approved are by me on is there any dispute no there is no dispute as to the they were they were all approved honor he applied in the proper manner and they were approved in the proper manner correct your honor and the issue is that under the definition of the employee an employee can be someone on a leave of absence on an approved leave of absence  t the definition of approved leave of absence requires that employee to return to active employment immediately on the arm a nation of lead which didn't happen here even if the job doesn't exist anymore that that's correct your honor i mean  would it wouldn't have been any different had mr russell not gone on leave even his job had been eliminated before he turned fifty five the analysis would be the same that's pretty weird to retroactively change someone's status that way and of course the record shows that there were contemporaneous records where he was in duty status and then there's this retroactive change not due to any fault of his own of course he was right to come back to work on the ground funding wasn't there in that and the position wasn't even for one day it seems  a very peculiar turn it's an unusual term it is a term that required interpretation by the plan administrator and she had discretion to do that not to address your honor's point the way the le is set up it essentially creates a period of limbo not a legal word but mr dress a while on leave he's not an employee he's not receiving compensation from the company on his status is leave of absence there's a condition subsequent that the plan provides in section one point one nine the definition of leave of absence that conditions subsequent subsequent is return to active employment if the condition subsequent doesn't occur and mr him dresses employment terminated at the beginning of the leave there's nothing inconsistent in the record mr tressel is shown to have been on leave of absence through this whole period when he didn't return to active employment the h r software reflected that his employment had been terminated as of the date that the n and that goes to the second issue which is eligibility the criteria for eligibility for the early retirement benefit under four point two which is what mr tressel had inquired about right now four point two provides that an employee who retires that word is retires at or after early retirement age which is defined as age fifty five is eligible for the early retirement benefit is a separate provision four point three that describes a deferred vested pension benefit that benefit is of to be aleck than on or after age fifty five but that benefit is available to someone who has terminated employment different words used in the two sections the plan administrator who was asked to address eligibility under four point two read the word retires to mean terminations of employment on or after early retirement age on or after fifty five which is the ordinary construction of the word i mean if you go back to section four point one which is the normal retirement benefit that section of the plan states that a member is in tie who retires at normal retirement age of sixty five is entitled to a normal retirement benefit it's very clear in the context of that benefit retires means stopping work for the employer in the ordinary sense of the word four point two then describes an alternative benefit the early retirement benefit that the plan makes available to people who choose to retire between fifty five and sixty five they don't want to keep working all the way to age sixty five until the plan provides a reduced benefit the size of which depends on when the member elects to receive it that is available to people who retire from employment but tell after fifty five four point three the deferred vested benefit is providing a benefit to employees who employment with mattel and before age fifty five could be somebody who worked for ten years fifteen years right counsel at the time the plan administrator was asked whether he qualified i couldn't see in the record what  was he what she was asked to decide was she only asked to look at his eligibility for four point two benefit correct and in fact could you tell me where that is yes my next question is going to be did she tell him he might be eligible for a four point three benefit all right so so if you turn i think the clearest statement of this is in the appeal letter which begins an hour to seventy one l is not asking for the deferred vested benefit so my question was a little different my question is whether the plan ever told him in addition to telling that he wasn't eligible under two sorry four point two whether the plan told him he was eligible under four point three now the plan did not plan was required to do that he had made it very clear he wasn't interested in the four point three benefit and would that he be eligible for the four point three benefit as a quote member his inquiry to battell about the availability of four point two that he wasn't interested in four point three and i assume that that's because in looking at the way those two benefits are calculated the the next question if you could just forgive me for interrupting that my next question really goes to this four point three argument and whether it is a new or different argument the district court thought so what is your best response to that my my response to that is  it's an argument that was not made at the administrative stage in the play didn't need to make it we've cited authority to the court the gallo case i think is the best of the word from from the seventh circuit that recognizes that all th research requires is for the plan to identify the reason for the determination here was terminations employment before he reached a fifty five the plan was entirely of employment before he reached age fifty five be decided just just looking at the plain language in four point two the use of the word retires and whether the administrator engaged arrived at a reasonable determination in co counsel started by telling you that terminations in the critical issue in this case it's not terminations of employment is not first of all judge picton said so she said it doesn't matter  address will terminate employment in two thousand and ten or in two thousand and thirteen and that is correct to find out why that is correct you have to look at four point two four point three and the other provisions in article four they are not keyed to employment their key to members status terminations unemployment and because members include former employees as the district court pointed out as well as current employees that  scores or terminations of employment is not important members status is employment important and four point two you look at the definition of four point two it refers you to other term provisions and the district court was very careful to go through each and every element of what you have to meet to be a member and stablished as i think the court pointed out in this address will net although he was a member what about retires the court will of observed that retires is not a defined term in this plan however the word retirement is a defined term in the plan as the district court pointed out and retirement means eligibility for the commencement of the benefit that does not refer to when you're fired or leave because of lack of money it refers to eligibility criteria such as your age mr tressel when he first asked for the early retirement benefit was fifty seven years old he was only fifty four his counsel pointed out in two thousand and ten that's crazy choice active look at the planned as but he became eligible the next year when he was still on the year one of the three year leave in two thousand and eleven he served a three year period and any of the retirement or vested benefits need to have ten years is that correct yes there's well there's a ten year requirement of ten years of services right corridor also you have to  for early retirement you have to be fifty five let's take a look at plan section four point two which is your one hundred two that describes the early retirement benefit lays out the eligibility for that benefit it's in the everyone agrees it's the retire on or after your early retirement age that's fifty five but before your normal retirement age that's sixty five and then it says is eligible to receive the early retirement benefit commencing on or after the age fifty five is on leave of absence he becomes he's fifty five so i guess my question is and i would question really also to the plan is could if you consider at fifty five was his job still available to him he was in a leave status i understand that but what they're saying now is well he he didn't retire when he's you know when he actually invokes t plan there was no job correct so therefore he he couldn't retire at that point their formula as i understand it is his dress or asked for early retirement in february to leave there's no language in the plan that tells you to do that but that's what they said right and if you do look back to that date in february of two thousand and ten and look at his age he was only fifty four therefore says the plan not eligible for my only question is because there is no definition that gets you there if he decided just after his fifty fifth birthday and he was on leave if he decided on that day age fifty five point one day that he now wants early retirement benefits i guess the plans view is well you would look back to when he was fifty four fifty five when you see what i'm asking yes and i don't think that the plan you know that's not been considered obviously it's a hypothetical but i don't think they could say that because they're relying on a provision that says if you don't i'm just trying to fit how different employers would fit in their definition and your definition so if that fifty five point one invokes early retirement benefits your position is what and where do you find support for that in the plan ok well he's in leave status he's a member right i'm trying to decide whether he's an employer or a former employee but he's a member either way he's not under the gun one point two three before because there hasn't been three years of leave that the plan could hang its hat on so it seems to me how did this ask for early retirement that  he's eligible under the literal language of four point two and the various definitional sections to which that first sentence returns returns he would be he would be asking for retirement after his early retirement time an age of fifty five we said he's fifty five it's before sixty five obviously and he should be eligible according to that sentence to receive the benefit on or after there no he had or was there a point in time when your client inquired early retirement before that period february to april two thousand and thirteen not to my knowledge and not in the record well wait a minute what about on january second twenty twelve there's a there's a retrospect it's if you were to terminate your employment with the till immediately following your leave you would fall under the early retirement reduction table for employees at least fifty five  his status wasn't changed in tell this retroactive that intrigue and that during that three years of employment there is certainly fodder for an argument that that he was continuing on he had not terminated but i cannot tell from your case which is not from our circuit urge the court if it hasn't done so already to read gallup just line it right up side by side with harlech and tell me are these the same cases is the seven circuit who decided gallo whichever circuit it is they don't apply law and we do not apply there's and it's quite clear from harlech six eighty six f third look at pages seven nineteen to seven twenty one and compare that to what the court court saying and gallo gallo says that the plan and the plan can elaborate elaborate on the specific reasons stated by the plan administrator the plan can make any argument presumably in litigation that bears on the and retirement one point four five says my entire mind is right one point five and you understand that that doesn't say terminations of employment exact language it's election of commencement of benefits under this plan so in the contemplation the plan counsel the plane graph that you know people write these things and a lot of time doing that the planned grafters chose to define retirement to mean election of commencement of benefits and in their heads but not on paper they decided that the undefined word retirement would mean terminations of employment a totally different thing that could happen in a totally different time well planned drafters don't do that if you if he really intended that the word retires could have a meaning different from retirement they would have said so somewhere in section one right near one point one four five they would have put in  separate definition of retires it doesn't make any sense the second thing is that if the court compares section four point two and four point three zero you'll look you'll notice the court will notice that four point t also four point one also four point four all use the word retires are when eighty two going over one eighty three but four point three the deferred vested benefit the one they say something that  uses terminate a member who terminate employment so there is a drafters used a different phrase for four point three not the phrase in the other sections an article for now if retires really meant terminate employment they went to had to change terminology they could've used the word retires thinking oh it obviously means to emulation of employment what's wrong with that is it doesn't and so they had to change the terminology so his leave and so your responses he didn't terminated after his leave even though even though he was told this during his leave you're relying on the retroactive change of status when he inquire the tell immediately following your leave you would fall under the early retirement reduction table for employees of these age fifty five and have ten years or more vested service july one two thousand and nine to eighty two argue with you i'm just trying to get the record right now i understand so this is coming from what appears to be a benefit specialist and it's ambiguous or talks about terminating employment it doesn't get into the niceties of what means in the context of the leave of absence right so my my my hypothesis i maybe the answer to my question is yes i mean to put this in context you're relying on the if you were to terminate your employment and you're you're relying on the retroactive termination petty come back from the leave in terminated that day he would have qualified for the early retirement benefit so if i could just quickly address two points on the definition of retirement in the plan that's a defined term is a different term than the word retires in four point two of the plan drafters very very deliberately defined terms they meant to be defined and we've cited to to the core many examples of judicial opinions that hold that a defined term in a contract or a statute or regulation doesn't control the meaning of an undefined term or undefined variant of that term and certainly the plan administrator didn't act on reasonably  employees got ten years of service he goes out on the leave at age fifty four he has a three year leave at one year after age fifty five one day after he turns fifty five he's still on leave he says i'd like to abandon my leave and get early retirement benefits does he get early retirement benefit well if i abandon you mean i want to come back