julia penny clark for plaintiffs and the class are brief describe several paths that authorize relief for the undisputed or receive violation in this case i want to focus here on the simplest path or is the section five a one b which authorizes relief recovering benefits under the terms of the plan the way we get there is the supreme court's decision a new number says ward which authorizes recovery of benefits under the legally mandated terms implied into a plan by operation of law which is exactly point of claim here under section a one b i'll explain in a moment this is a normal role of contract interpretation regularly applied and there is a plans but st i want to focus on you know you know wasn't a one piece suit for disability benefit the plan required proofs of claim at the latest a year and a half after the onset of disability and made that a condition preceding to any benefit recovery state insurance law added a mandatory term which said the insurer must pro prejudice to enforce that term the supreme court held in spite of what it described as the contrary term in the plan which didn't require prejudice that the mandatory legal term supplied the rule of decision in forcible in the a one b action the same is true here the plan in section five  stated that lump sum benefits would be actuarially equivalent to the accrued benefit payable at normal retirement age but then calculated that accrued benefit using a whipsaw projection rate that was not the same projection rate was implied by law supplied the relevant rule of decision years in the supreme court's words in you know and isn't forcible under a one b as a term of the plan recess supplies the additional information i'm trying to figure out where is it in a residence as what the normal retirement age should be like age sixty five maybe and what the rate of return should be detail only answered both of your questions in reverse order actually the normal retirement age and the accrual that the accrued  lump sum benefit must be the actuarial equivalent of the accrued benefit under the plan come from sections two or three into a four of arista which are vesting slash non forfeit ability and the create benefit standards they have been interpreted by the governmental authorities that have the statutory right to interpret the plan namely the i r s in a series of rulings that were in effect at the time that interpret a plan in light of the governing law and it said that the court should look outside the plan's written language to determine what the terms of the plan are inciting  unum for that proposition it's not time what that the language means what the terms mean it said both of those that the honest if if if the term isn't there the suggestion is you can reform the contract to film and what the court actually said was a one b allows a court to look outside the plan's written language in deciding what those terms  turn out to be illegal i would disagree judge chan because the court then immediately sided you know see you in on versus ward and in you know there was only one source outside the plans written language that the court looked to and that was the governing law so this citation necessarily endorses the holding of you know which is that the st step in determining what a plan means is to determine what the terms are and if there is a governing legal standard you must look outside to find that legal standard to know what are the terms of the plan and then you can decide what they mean the legal standard is you go beyond that or outside that and there is ambiguity then what does a court do certainly the court as a maro endorsed looks st to the outside source of governing law imports that term into the plan and then if it's ambiguous you construe the terms together to decide what do they mean but if and this is where the district court tripped up here if there is a contrary term which is which cannot be reconciled with the governing law which was the case and you know then it is the law that surprised the relevant rule of decision now the as as i stated a moment ago that's a longstanding principle of contract interpretation it goes the supreme court in the norfolk railway case said that subsist at the time in place of the making of a contract interest in to inform a part of it as fully as if they had been expressed in the contract well liston goes into this a great length in chapter thirty  a variable rate of return that the right approach is to use a rolling average for some significant number of years leading up to the point where the cash out takes place so that that would be the source it has to be a good faith estimate of the average that the variable rate will produce but it can use a rolling ten years twenty years leading up to the date that the cash out takes place i think it's really important to note that the supreme court in central laborers of hearses hinds in addressing the vesting standards which are the same sections of issue here said that requirement and i'm quoting adds a mandatory term to all retirement packages that a company might offer and that phrasing is important it's not just the derisive requires it as some extra all standard review at the motion to dismiss they could price waterhouse coopers have sought reversal based on the argument that it is raising now absolutely absolutely they had mentioned this current argument to the district court before the st appeal but in the interlocking to the petition for interlocutory appeal they specifically said to this court if their five year normal retirement age was void the district court was going to have to do exactly what they now say it had no authority to do and you'll find that argument in the appendix it pages eight o six in eight hundred and seven they said the district court would have to find a valid the district court did not resolved that certainly would have been a pathway open to this court but one thing for sure is that it would not have addressed the question whether the five year normal retirement age was void with or without  st if it had known that there was an upstream question like this whether the court even had the authority to look at that issue this is the same kind of the very kind of piecemeal appeals that this court's mandate waiver rule is designed to avoid and part of the reason why this case is now thirteen years old and has and has not been resolved completely i mean these people are still waiting for a remedy for undoubted illegal conduct that pricewaterhouse says they cannot get a remedy for what's the status of the claims relating to the summary plan description those are no longer in the case mr grants a remedy for this violation the secretary of labor believes that does and its two thousand and fifteen decision in this case this court relied on its prior decision and as inverse a bank as inverses bank of boston ressa does not leave plans free to choose their own methodology for determining the actuarial equivalent of the accrued benefit also known as the website of benefit if plans were free to choose their own assumptions and methodology in a more the court said that section five o two a one b allows the court to look outside the plan's written language to determine what the plans terms are and so here you look at arista and specifically it's these minimum requirements it's the vesting and accrual benefits to determine what the plans terms are and so the the terms that we were talking about the would be no way to have minimum standards if it didn't override below minimum plan content plan terms so i mean yes in the st instance as in said it would it will be for the court to say what the exact calculation with the projection rate should be the court would have the discretion to to you know defer to the plan administrator but but minimum standard but let's say that the plan terms provide a lot of leeway in terms of drafting plans terms what is a court do in it's similar to the union case where basically what the court said is that the state law that conflicted with the plan term overrode what the plan term was and so here you know in that case it wasn't the exact calculation of benefits that basically just said that the provision would have had to have been read in before you could bar the claim based on based on you know the failure to file it on time so here it's creates a mandatory minimum and and that is a mandatory plan term i mean that's what the supreme court said in hinds that you know section two or three makes these mandatory minimums part of the plan doesn't think a doesn't have a preference and we think that you know a remedy is proper under you know either avenue the difference is that under five to a one b we're basically  and then the nd step would be to issue an injunction ordering the plan administrator to reeducate plaintiff's claims to benefits using a methodology that abides by irises requirements and then any monetary benefits that result from that would be the natural consequence about declaratory injunctive relief so it wouldn't be a claim like a mara which omar allows it wouldn't be a claim for benefits under the plan because you would not be reading the miss plan terms it's just a different interpretation but it gets to the same result which would there be a difference in the amount of benefits if you want under one versus the other you know i don't know in that sort of the point of this this is not a case like great west where you have a certain claim to d that then and the court would a war this is ordering a read adjudication of benefits based on a new methodology a methodology that abides by rissa so i don't know what those benefits would look like it please the court daniel thomas for defendant apple e's pricewaterhouse coopers your honor slightly odd to hear the government the secretary of labor talk about a claim under a one b the statute divides up the terms of the plan claims from the from enforcing the statute claims a five specifically gives the secretary the right to enforce the claims but if you look at a five a five is virtually identical to a three except a three allows enforcement of the statute or the plan in equity whereas a five only allows enforcement of the statute there was a difference between enforcing the statute and in forcing the plant ammara speaks directly to that difference and i want to go straight to morrow did say that you can look outside the plans written language in deciding what the terms are i e what the language means but of course the next sentence not read to court states but we have found nothing suggesting the provision authorizes a court to alter those terms at least not in the present circumstances where that change akin to reform of contract seems less like the simple enforcement of a contract as written and more like an equitable remedy the phrase as written appears three times in a morrow that's what a one b requires look at the terms as written  plan shall provide that employee's right to his normal retirement benefit is not for football upon you tamed of normal retirement age if if a plan says says the opposite is the opposite of how should we decided case brought to recover benefits do under the terms of the plan are we are we required are you a three allows a participant to go in and to seek an injunction to enforce the terms of the statute and i think that's what that would be doing to the statute gives you a certain right the plan doesn't and you would ask for declaratory judgment that the plant be term be changed or at least a declaratory judgment to prohibit the company from failing to pay benefits based on that interpretation reformation is available under no it is not your reformation is let me i spoke too soon here are reformation is available under a three if the conditions preceding two reformation have been shown injunction is also available and again as you have to show the conditions for an injunction now reformation this court has said time and again requires unilateral mistake and fraud or mutual mistake neither of which is at issue in this case is not even known geisha of fraud fraud was conceded overtly at oral argument on the motion before judge atkins there is no fraud there is no mutual mistake reformation is out reformation is sort of changes the contract from inception you know if you have rescission the contract doesn't exist if you are reformation you treat the contract as always having been read a certain way or written a certain way because that was the intent of the parties that's not here now you can have an injunction you haven't satisfied the conditions of reformation and the great west case of course is is paramount in that great west said an injunction to compel payment of money past due under a contract or specific performance  due monetary obligation was not typically available in equity that's what that's what this case is about this is about half even if you can't have enough even if you don't have frond mutual care what about of show up in the necklace case and if you go to the next page to the ending of the decision the court says notwithstanding that someone was asking for reformation what they really wanted here was money damages that is a naked contractual nakedly legal remedy and in necklace they dismissed the claim finding it was legal and not entitled to reformation the position as even though it was on my mission here there's no remedy there would be a remedy if there  current plan members is there a remedy there is no remedy for these for these plaintiffs there's not and that is what this is about this is about whether congress provided a remedy congress provided remedies in a very detailed set of eleven subsections and five hundred and two way they provided remedies to participants and beneficiaries who didn't get what the plan promised them that's not this case these people got with the plan promised them and your honor they got what the s p d said that they a cash balance situation if someone takes a lump sum it shall not violate a risk to take a lump sum in the amount of the current balance it ratified the behavior i think congress did that because the i r s had gone completely off the reservation in trying to claim that people could remove their money out of the plan but were nevertheless entitle to future interest credits as if the money was left in the plan i think they went to congress in two thousand  changed a bad i r s interpretation that was a notice nine hundred and sixty eight and congress made clear that this is not required that's why the notion here of an injunction a reformation makes no sense think of what they're asking to do the injunction they want to do and would ask this court to order p w city to make a change to a pension plan that no longer exists in order to conform to a statutory provision that no longer exists no one benefits by this in any way other than the payment of money the fiction of an injunction or reformation to allow the payment of damages for a past  all this is this court has set forth that the the standard for a sham injunction and the standard that it set forth in the united collection bureau case versus unit collection bureau that standard is if you take away money if money is not available would anybody actually sue for an injunction and you could ask the same question with a suit for reformation what it would do that if money wasn't available the answer is of course not because they don't have that no one is affected by the plan and frankly if they were still in the plan the p p a says what we're doing is absolutely legal they're asking to go back now if if our plan said that they  were supposed to get certain benefits and they didn't get those benefits they could bring a claim under a one b and as long as they did so within the statute of limitations the p p a would not have affected that the p p a didn't absolve you know i passed claim that was for under the plan but the p p a does deal with the situation of whether looking for where there is any obligation to make a lump sum payment in anything more than the amount of the account balance and p p a says no there isn't and so here what they're trying to do is get money damages but they know they can't get money damages because amar makes that clear ammara tells us money damages are for the terms of the plan and that's not what they have so they need to change the terms of the plan if you need to change the terms of the plan you can't go under a one b you have to go under eighty three but when you go under a three it isn't enough to say i want to change the terms of the plan you have to look at the essence of the relief or do they really necklace in great west states they wrapped their request in equitable language but what they wanted was money that's what this is about and they can't get that because equity a pre merger court of equity would not typically grants an injunction and would not typically reform a contract to provide money based on a statutory violation and that's what they have their court between these two congress did not provide the same remedy for enforcing a statute for the past participants as i want congress just hasn't given them this from you broadly and equitable and in our prior decision we some of them find your term is not news is not valid because it doesn't reflect the normal retirement age for five years and then someone well people don't get any more money wrongly inequitable just to be clear to answer your honor st question broadly an acrobat doesn't really come into these cases under the case law including this court's decision in central states in two thousand and fourteen which said we're dealing with a highly ridiculous statute we can't rest on general principles of equity we have to look and see did congress provide  specific remedy did indorse the specific remedy so that in general you don't look in in that direction but what is important here to be clear is there is more here than normal retirement age in the st decision the normal retirement age was indicated that it can't be five years of service that then would indicate that these individuals or at least many of them had not yet reached normal retirement age now if you didn't reach a normal retirement age at that time you were title to a calculation not necessarily a payment but a calculation to see how the interest rates matched up we our plan of course said you only get a lump sum if you've reached no more charmin age so they want to go back in history but they don't want to look at that one provision that says they don't even get a lump sum they want to say because the norm retirement age is changed i get another shot at my distribution and even if that's true the plan tells you how to make that lump sum calculation it tells you to project forward using the thirty year treasury security rate it says that paragraph at section two dollars of the plan there is no ambiguity that's what judge confound the projection rate here is it is out at the thirty year treasury rates the discount rate by statute is back at the thirty year rate it's a wash so even if the normal retirement age is changed and they're entitled to a payment or calculation when you do that calculation it turns out to be a wash and there's no dispute about that and so what their problem is and i can i move you on to something yes else waiver and forfeiture  that it could have and i'm quoting you could have made this motion by way of a twelve b six at the inception of the case that was in two thousand and six the inception of this case is it your view that th discretion that way and there's certainly no abuse of discretion i knew we didn't forfeit it but i do believe it would have been abused to find we forfeited it because it would be contrary to law i mean the federal rules of civil procedure are very specific on this you do not have to bring one hundred and twelve b six motion and that's what this is in effect failure to state a claim upon which relief can be granted were once well one of the one of the factors to be considered as you know in granting  commences a new argument is made with all due respect mr chief judge i disagree the standard on interlocutor review is whether there's a question of controlling more on a question of controlling law exists where if the decision of the district court is reversed then it will terminate the action or at least materially advance towards terminations of the action if there is a reversal here it was stipulated at the time of  appeal if this court were to have found that the normal retirement age in the plan was in fact legal which was our position if the court had agreed with the th and the th circuit who examined the exact same question and came to the result opposite to this court if the court agreed with those prior courts that the term was legal the case would have been over at that point that is why the judge judge acton certified that it is i believe why this court accepted it because the standard is if it's reversed will it materially advance it if you have an interlocutory appeal and you lose the appeal the case proceeds forward we had successive and markedly different twelve b six motions rule twelve h tells us that we do not waive a twelve b six motion by not making it all we have to do is make it in the form of a rule twelve c motion after the pleadings are closed and in a timely fashion timely under the federal rules is very set forth in the rule and to be timely it has to be something that does not to lay the trial of the case in this situation fact discovery was ongoing experts had not even been identified much less had expert discovery be gone there had been no trial date set there been no pretrial conference date set we were early in the case discovery wise and the court found that we that the motion was timely now mind you if we had been too close to time to close to trial to make the motion and we couldn't make it by way of a twelve c motion we could have reserved it and made it at trial our argument here is that as a matter of law there is no statutory endorsement that congress has provided for this type of pla to bring this type of claim that claim is never waived at least it's not waived if we as is as well as long as we presented at trial under rule fifty we could have done that at the half time point at trial we didn't wait till then on as this case was sent back after in a locked atory appeal we looked at the situation and we then realized that they seemed to be claiming that they weren't proceeding forward in equity where we thought that they were they were trying to bring a motion under a one be a one b is flatly prohibited under under o'mara and we went down that road i would like to touch on only him because i think only if you could you wrap up because you're over your time i am sorry your honor i didn't see that and  come out for plaintiffs if you change the terms of the plan that the plant has a projection right they have no relief under that they want to change the terms and they cannot do that und i'm going to begin by addressing what mr marsh just said there is no need here and this addresses also the questions about tomorrow there is no need here to alter or to change the terms of the plan all the court has to do is to recognize that under the longstanding rule of contract interpretation the governing law has always been a term of this plant and it is a matter of interpretation as used in willesden the entire chapter thirty of willesden is about interpretation of contracts and this long standing common law rule that contracts are deemed to imply as a matter of governing terms of the law is part of interpretation so that answers the question about whether a mara by using the term interpretation is necessarily talking about something other then finding a governing term of law outside the plan that must be implied by the law and deemed a term of the plan for purposes of a one b everything that mr tomar said about reformation and about injunctions is really unnecessary under a one b because it's completely beside the point but i want to address his insistence that this court has never said that a plan can be reformed for a violation of law in the mcdonald versus pension plan of the nice island pension trust fund which is cited in the briefs as court affirmed an order of the district court which declared a break in service provision invalid under the accrual rules and ordered the defendants to amend the plan and to revise the benefit payment the definite benefit standards which judge ronnie had asked about they're laid out pretty clearly in the waiver all of the rules about the timing for raising issues in the district court are totally beside the point it's not a question of whether if there had never been an appeal it would have been timely for them to bring a twelve c motion the question is whether having brought an appeal having omitted the argument that they're now making which would have made that appeal basically a moot question unnecessary to address the question at all did they waive the issue of whether the district court had authority to provide any remedy to these plaintiffs and it's important to understand this is not just a whipsaw issue what this says is that a defendant can have a plan that deliberately violates the law that deliberately violates the vesting standards that judge katzman asked about and it can say when it's found out and caught our will will in the plan prospectively will take care of all the current participants they won't have a claim and then they'll say everybody who previously received a payment under this plan that was less than it was required to be by law has no remedy we don't have to provide any relief to the people who were shorted during the period of time that our unlawful term was in the plan no court other than the district court below