forget because they're taking the convention they're taking the position that does matter that's why we're here they're taking the position it doesn't matter we're more than happy to do exactly that and the problem is that they're not court one hundred percent and frankly we would prefer as we indicated in our papers if the disposal of them without prejudice we probably wouldn't be here but it was with prejudice and i can't go into our attempts otherwise or argue they're not part of the records but frankly we shouldn't be here because there was no claim for benefits may and it hasn't been denied and the proper thing should have been we believe the district court should have simply said i'm going to rema grounds to go back there and do that they had suggested during oral argument you are that that would be the result that's what they said would be the result and perhaps i should have your honor but the position that was being taken by the parties at that time was that this this case was over this claim was over the merits had been addressed and some trash in the front this is quite quite a valuable claim with him got into the numbers your honor and frankly in the abundance of caution i did this appeal i certainly have no desire to do a provisions of the plan deal strictly with the concept in the provision of making a claim for benefits they do not in any way shape or form does the claim procedure in any way shape or form indicate that you pension plans i've seen here are this one doesn't indicate that if you have a question concerning your pension benefits you're supposed to take it that the amount you know the plan ask them to review that do the things that they can do but this plan doesn't say they did the planning minister did make that decision we're talking about here whether or not there's an obligation to go through the public process and internal administrative review process beyond that initial determination by the  cite what happened in that case the court says look there's ambiguity about what happened here so we're going to dismiss it but we're going to do it without prejudice and the district court specifically said he can now proce we will go down and make the claims it will be denied because they've already made this decision before i will follow another was to write it will go to the district court and they will come in and argue this is all been resolved here is mr moral for a third time that's what's going to happen i don't want to have to hear the comments from the court today frankly are all that i need that you are i cannot i am obliged ethically not to go beyond wonderful and i again i'm i think we have watch not to discuss what are happen but i can guarantee your are i don't want to be here wasting this court's time on something to me seems clear as day that i should be able to go back to make a formal claim have deny and let them make the record and we'll go back and start all over again and that's what we've always wanted to do counsel it's just just to help me think my way through this the court dispute here or potential dispute is whether the applicant is entitled eighteen years of service or four point one shockey thinks it's eighteen they think it's for a lease right talk about right ok and it's your concern that as of this moment even though no application for benefits has been made of the aspects about another reason we brought the appeal your honor is that we believe futility has in fact been demonstrated we have a latch that has been disputed that this issue was already been addressed by the plan administr with regards to other participants in the same decision has already been reached in two thousand and three when this the first attorney filed this lawsuit and it was removed just federal court district court in front of judg they made a motion to dismiss at that time they did not raise in two thousand and three the failure to exhaust ministre the remedies they did not raise it so there was no reason to think that so they knew they were fully aware of what was going on and if they want of service as opposed to four a half years of service that dispute has been resolved and he is now stuck with for years is that your view seeking a clarification of benefits of his benefits whenever he likes to receive them and this council indicated he could receive it now so this is not something that your hypothetical question our response to that is as in accordance with  but it appears to me that that were in the area between a breach of contract action and it's clear a jury judgment under under the law under certain circumstances someone can bring a contention that as of this moment it is already been judicially determined that mr boyle is entitle only four and a half years or more credit for only four and a half years of work as opposed to the eighteen and if he claims i don't think it's been judicially determined but it's going to finally determined i hesitate because i'm not sure what ramifications finally believe that the plans position with regard to the facts of mr morris situation will be determined the same but and this gets back to one of the key reasons why exhaustion is so important if in two thousand how this cause of action is phrased a declared declaration of the rights and duties with respect to this point so we believe that justice abroad got it exactly right that he looked at this factual situation collect it for him and they do not know the terms of this plan they do so his entire way to it is not going to hypothetical at any point in this case it was a real actual controversy in two thousand and two when he made that telephone call and with regard to