good morning and welcome to the four circuit that judge floyd judge when and i are at least to be hearing their cases this morning st cases over six united mine workers pension plan are in place ready to  of credit service than she was in fact awarded d as i said there are two basic issues substantive and procedural and i suspect that the procedural one swallows the substantive one for purposes of our peel and that is whether or not m subsection two says that a plan shal afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate name for due sherry of the decision denying the claim and the federal regulations that amplify that and put some meat on the bones to what that requirement means and for our purposes here the federal regulations which we cited in our brief very specifically say that the claimant must also be given a reasonable access to dues reported no no ours were reported and it looks like you were called a boulder and a foreman now to prove us other us what we would have had is we would have had the documents that purported to show that and then we would have known and this is important could have and in our submission is was a working foreman ok and a working foreman under the language of the plan is somebody who is still intitled to union credit even if that person is working as a working foreman a nine you will see that there is clearly not one hundred and twenty consecutive days where mr o'toole was listed as a foreman so if you have both are an informant foreman foreman foreman foreman and then alter it's our position all that is union credit and we know from the audit it's an eight hour payment of over time and we know that that's inconsistent with simple salary work we also know that if we had known that was something that they had in the record we would have challenged it and we would have shown one from dale cole and that is diametrically opposed to the notion of being paid on a salary something else that we noticed and we would have pointed out to the the review committee or to the reviewer is that there's but he didn't become a foreman and eighty nine and ninety and what we would have known from this particular record or what we could've discovered or tried to discover by asking the auditor is when did dale cole provide that information when did raised it as a huge red flag and the more you look at it the more it becomes obvious that many people working in management nobody correct i mean there was one there was one sheet and we would have we would have tried our best to find more more information on that but something to quote neutralize the harm of the failure to strictly comply and analysis of course they have provided had not provided a particular round table medical summary to the claimant but they have provided it to the factors of course one of those who factors is procedural deficiencies and we think that right there would have undermined the entirety of the district court's analysis but the district court did focus on substantial evidence such as a lack of union dues such as nowhere in the district court's opinion did judge jones address mention analyze anything the overtime issue that was a key feature of our argument for the match that it was a key feature of our argument in our objections in our response to the  of action on this record i mean we have taken the position that we would be entitled on this record to at least eighty nine in my nine hundred and ninety but i think in light of this court's strong policy in gagliano that normally when there's a procedural the court the best course of action is to remand i think the record needs to be more fully developed in this case to make it clear to her that eighty nine dollars ninety cents are credited service states and the credit service state should also be awarded for the remainder of record the judge is saying most importantly there is no credible indication that the actual disclosure of the audit to mrs o'toole wouldn't make any difference so the judge seems to me that was imposing a there must be a causal connection to your inability to provide additional information i think what the judge was essentially saying and i don't think this is the standard is that we had to prove that we would win that we would that it wouldn't just make a difference but that we would prevent it so you're saying you had that that judge jones did you know pose a prejudice in order to have access to that theory i'd say it's a prejudice plus because we were clearly prejudiced in the sense that we did have it and having more information is always better than something very similar but the court didn't use the word harmless here and this court has never embraced the specific words of remand to be rejected as a quote useless for morality  certainly aware we think that this particular plan and its sister plans are subject to a stricter abuse of discretion standard of review than you would normally apply to say a disability benefits case or some other eye which means you get greater skepticism and we certainly think on the facts of this case on the record in this case that's what i will if not for the questions we ask that the court reversed the decision and remand the case back to hearing officer reach out to the auditors in the field and they say you know there's a dispute or there's an issue can you please provide any relevant information that this audit might have to this person's benefit temptation the auditors return a summary and if you compare the of the situation is somebody else was making the subjective determination of what was important and needed to be known and mrs otoh i had no access to that judgment in terms of and  goes to church winds question you know judge sharpens a good judge magistrate judge and the thing that they keep stopping me in this analysis i'm not saying the plan was trying to be unfair does the record show why you didn't hand this over i mean you want confidence in in terms of people believing you're doing the right thing is there are any and institutional reasons for not giving us have to yes the audit papers are hundreds of pages long and they contain confidential and proprietary information on not only the company but on all of the other mineworkers that are included in the audit where you have a right to and to a redaction and wouldn't you i mean that could become an issue in in terms of your rights to preserve confidential information so that's really not in the answer you would be able to go back to the magistrate judge and or you and to  st and the reason for that is because of the administrative burden to have to redact for each individual person and include that in the pension file and the record management team who is responsible for turning over the file is focused on providing what was used in the making of the benefit determination and there's no question that the information in the audit was used but the information in the audit the deal has stated that the trustees are entitled to rely on the judgments of their staff when that staff is prudently selected and well trained and in this and i was conducted and if you take a look at the audit papers which were ultimately turned over this and so there is substantial compliance in this instance you'll see that there's a narrative and what you can find in the record you saying that all of this is like ellis you know  me that you did that in this case yes your honor well st of all we are of the opinion that every review is full and fair because she had all of the relevant information as required by the regulations but even if you you see that the our papers should have been turned but you've got other employees who are classified employees in some sort of sense but what in fact said that they were supervisors that's a problem and then if you've got information that says it well you maybe have can't remember the number  that that's what you call circumstantial evidence isn't it but it's not direct evidence that he was a classified ploy but it certainly circumstantial evidence that something was may have been going on yes your honor and i agree with you that it is absolutely in the employer's interest  misclassify their employees that that they do not have to report employer contributions but the trustees have one maximum authority to correct that and that's on the i the wage agreement  spy probably you in your own says they were people who were probably classified i'd like to retract a statement that i said it was discussed in the summary that mr o'dell was misclassified now i wasn't identified that others had been misclassified as well but the point that is important about the audit is that the narrative states that they address in the narrative that there were multiple foremen on the west they address that mr oswald was sometimes listed as a bolter and sometimes listed as a form and they address that mr  misclassified and they further addressed that at the end of the day after looking at all of those records they corrected and found classified employment where it was warranted based on the documents submitted to them during the audit so there was really very little that h anyway well what i'm saying is that the audit confirms other substantial documented evidence in the record the audit is not the only evidence that the boys you're saying those parents you were saying earlier that the information showed that they were in gesture with got them talking about the audit was talking about other employees who were mysteriously made not having their hours reported so why isn't that significant your honor i agree with you and i acknowledge that other employees were  no hours were reported for mr o'neill and classify a signatory employers report classified employment as credit hours on hours reporting forms and that's the st primary evidence of whether or not classified employment exist that he was working in a classified position for it under coal and his social security wage records for that year demonstrated that he received a salary that the paste a secular state so there was corroborating evidence to grant that additional credit and not highlights the  be that without the audit and there are cases where there is no it there are times when no one exists and so the st the primary evidence that would be used is the how the hours been reported to the plant and other other corroborating documents that support that lack of ours and in this case the union dues records show that mr o'toole paid in active or no union dues at all and his social security wage records highlighted that he earned his highest coming st of all who he works for and when that he also worked for non signatory employers in ninety five ninety six but also that he earned compensation at his highest amounts beginning in one thousand nine hundred and nine and thereafter and that he earned them in amounts high enough and consistently enough to support that he was a non salaried foreman and that evidence alone is reasonable that a common sense that there's a problem yes your honor and again the auditors noting that highlights the fact that they they anticipated this inconsistency and they're you know they are used to these types of things they go to small minds people that write the time sheets aren't always accurate as they can be i would also note that the overtime issue in this case every single person on that sheet was listed as receiving over time it was also a saturday i know that it's common that the time sheets don't accurately reflect and again that's w conducted that is the trustees maximum authority to correct and in force classified hours where they're warranted and so your point is well taken and also highlights that the auditors reviewed those inconsistences they noted those inconsistences and they accounted for those inconsistency is when they made their determinations and because they were prudently selected and well trained the trustees are entitled to rely on that determination and the fact that their summary doesn't include a review of every inconsistency that they the information to the hearing officer she is good immaterial you mean improper report yes your honor improper reporting and there's no question that they'll call did that and there's no question that employers would do that but that's why the audit did and i don't know where we are in time when you get into findings and things of that nature i mean we don't do that here we live go back and you guys test this thing out come back i'm quite frankly don't see how you home by just given a substantiates that at some point he worked classified as the auditors found and then became a foreman and i also have to point out that mrs referencing this working foreman provision but that doesn't exist in the plan and what he's referencing is a temporary supervisor position and that's not a catch all for us to apply any time there's a possibility that someone may have been misclassified that is a provision in the plan where an employer can report its employees as filling in for a supervisor so that they're not taken out of classified status and their rights it's reported that we took the plan the temporary supervisor position does not apply so relying on a working foreman provision that's really not included in the plan and relying on this temporary clear that mr oriel did not work classified employment for a signatory employer for two hundred and fifty hours between nineteen million ninety one thousand nine hundred and six but also because she had she knew the issues that were facing her she i'm saying running around my time would you mind if i use a few minutes to and the letter of the full and fair review i think the important words are both full and fair and gross miller and this court and gagliano and all the cases that we've cited indicate that you are not a full and fair review if you're denied evidence that they rely on and they without a doubt relied on this evidence and they also without a doubt knew about these inconsistent sees about this improper reporting and they held that from us we did not know that and i understand the you can see it in their answer the plan says that you know this case is all about ms o'toole trying to get a th appellate review a th administrative review and our position is that  and i think it's important to focus on the exact language of what the the plan told ms ms ogle when it when it had the pretrial the pre hearing trustee conference and then it had  the st review it said here are these items and unless you can prove it says here's the here's the audit the audit says the following and unless you can prove the audit wrong we're not going to give you credit for those hours and how can you prove the audit wrong if you don't know what's in the audit now again we may not win but we have been denied the opportunity to ask those questions and if we had seen sure miss miss zero provided paystubs in response to understanding what was being asked of her from questions from mr herrick and questions from his attorney but if she had seen that they had paperwork in their possession that show that there was over time and had known that that would have made a difference at that point  she would have provided that information she has it she would have done so she was denied the right to know that that kind of evidence would have been relevant and she would have provided it accordingly the only other thing i would say and this is just  with the beginning pages of the oid it appears that somebody named michael stephen key is the person who provided the summary and if you look at the audit itself there is nobody named michael steven keaton who is listed so again we don't know the identities