just mentioned the putative i'm ruling has been made with nothing and i want to address that real quick for the court in the western district we've kind of hang a policy that's kind of started to generate with respect to class actions whereby some of the no debate that u s supreme court firestone said that this is the fault standard of review in a receipt cases is deneuve unless the plane clearly grants a discretion to the claims administrator for lack of better us i don't dispute that that language is in the plan the disputes come up here though is when is deference to be afforded to the decision of a plan administrator claims administrator even with that language in particular the primary focus and all the some other arguments that were made before the district court but the primary one i want to focus on for purposes today is that when you have planned terms on ambiguous playin terms they have to be enforced as written so frankly i don't know necessarily whether we call it yes we're doing an arbitrary and capricious review here or we're dunedin overview here i don't think it really matters ultimately the t ambiguous terms i think that's and say it's exe characterize it it just in the terms of under the agency standard and i think either approach still gets us to the same result here are the plain terms were they properly enforced as written or not if and under the as chief judge baugh just noted if even for use in a using standard the result of still deciding if they have not applied the plan terms as written if they've added pla if the plan ambiguous with respect to whether and participating with eligible for difficulty retirement benefits it's up to the actuarial reduction for the retirement yes and with with respect to that posing that is a question i would say no i believe the by specific plan documents in particular terms in those documents to dictate who can receive a benefit that's not an issue here when the benefit is to commence that is an issue here the amount of the age fifty five he would have he would have been eligible to retire as an early retirement date now the language about disability says he shall really be entitled to receive no less than the pension  crued by him as of the date he was first disabled could he have taken retirement on the date when he was disabled even though he was only fifty two or was it that he was on disability payment not retirement until he reached fifty five and more so the language i guess that's my question is that he shall be entitled to receive no less than the pension accrued by him is that talking about an amount or could he have taken retirement the day he was disabled section four predominantly deals with the amount of the benefits section three the plan deals with when it would start in section three when it first  s the four types of benefits normal or early late and disabled it actually says ok for purposes of when it starts four point i believe it's five is going to control here the disability four point five which is the make sure i gave you the disability who had the five years of service and work get fifty five is our contention that they could retire and draw disability benefit in the answer that i believe the plan supports is yes and how much would that have been in this case that is all on the no less than the pension accrued because probably had he taken it at fifty two it would have been considerably smaller wouldn't it right i think what what we get into here and this was not addressed at the district level and that's this the minimum standards of the rest of the say you cannot cut back a pension benefit and so it's not uncommon to see language appear in a pension plan whereby if the changes made as today or what is today august one july thirty first two thousand and fourteen if we make a change that's going to be effective august want it would be uncommon to see language in the plan that says your entitle to no west in the benefit accrued as of july thirty one two thousand and fourteen and i believe that's kind of where this direction this language goes it's a minimum benefit it's not the actual full benefit the full benefit we have to look to such in four point one and the four point one provides the formula not the commencement date the formula to calculate the disability pension a sixty five you can apply for early retirement you have the service and you're between age fifty five and sixty five in india calculates that's been if it based a one four point one in four point three the early retirement sections talks about the amount of that early retirement or tells you how it's going to be reduced four point five on the other hand has a different date it's a date that you meet the disability qualifications you are disabled you have the service make application that goes without saying the benefits commence and how were they calculated the calculated based on four point one that formula those no reduction language or point five one talks about your normal retirement date  to because it's a normal time of benefit by way of example if we look to four point three if we're just talking about someone take an early retirement benefit and you're fifty five you have the service you apply for it it says you have to calculated or four point one absolutely which says it on or after such participants a normal retirement date which your may and was not at his normal retirement understand what i'm getting at is four point one tells us the amount of the pension it says here's the accrued benefit as o particular point when you take an early retirement under four point three four point three recognizes that and says no we're not going to make four point three equal to that amount we're not going to calculate the early retirement benefit just on that we're going to calculate it using that formula four point one however we're going to then turn to an appendix an example leave and we're going to reduce it by a certain percentage all the way down to fifty five the problem is that the disability benefit is a separate distinct benefit under the plan if we just have someone who retires at age fifty seven as mr rebel did and in this context if he can't draw it before fifty five and he can't draw it after sixty five how do we give any meaning to this section it is a subsequent now going back to earlier question that you judge you asked with respect to starting a state today it's not a windfall and i discussed it in depth in the reply brief but going back to your question correct however that a person who was not disabled retiring at the same age with the same years of service as your man would not get as big a pension as you think that your man should get if they if the question is is the early retirement benefit in my head lower than the disability yes it's a different qualification it's a different standard under the plan you know the pensions different however the ultimate economic benefit to the employee is not because they have a separate will for a benefit plan that provides a long term disability benefit the minute you start to receive your disability pension benefit that long term disability is reduced dollar for dollar there is a reduction there is not a windfall wait later because you'll get more and more money well that you know what ends up happening is because a plan recognizes the service time while he's receiving the long term disability of getting service credit even though he's not working because he's disabled absolutely o as interpreted under their plain ordinary meaning in their in common sense to me there are two things that issue here one is what is the eligibility for the disability retirement what is the eligibility and then secondly when kin that disability retirement pension benefit again section four point five per scribes eligibility and it says that a participant while he's an employee if he meets the three criteria specified in in section four point five a if he meets those three criteria then he is eligible for the disability retire those three criteria or he's got to become disabled before he is before his normal retirement age before sixty five at the time he becomes disabled he has got to have at least five years of vested service and then t point that i believe plaintiff ignores leaves out so also over is he has to remain disabled too until his early retirement date or his normal retirement day so he's got to remain disabled and that's why he can't actually take a pension before he reaches the early retirement date or so i salute your honor and that in our case mr riddle was fortunate in the sense that he was eligible for early retirement because he was age fifty five and he had fifteen years of for your honorably if you judge boggs you asked about you know the amount well to section four point five says look there's a floor here he is going to be entitled to no less than the pension he has accrued as of the date of disability ok so that's point one of what he gets out of four point five but as the as the court noted in four point five b he also gets to service that period of time that he was disabled within the meaning of in receiving disability benefits so he got the benefit it doesn't is it clear what the the language you're just focused on receive no less than the pension accrued as of the date he was first disabled is it clear that he does get more than that i over over thinking this but is the pension accrued by him as of the date he was first disabled a number that is implicitly reduced by the actuarial factor that is you could argue that the pension accrued as of the date he was first disabled accrued would be what he would get come normal retirement well i guess that placed in the record anywhere  i don't know that it is it's he gets no less than that as of the date of normal retirement ok that's sixty five that you implicitly or implied that that's also part of that statement yes or and here's why honor because if you read the next sentence in four point five in that first paragraph it says this pension shall be calculated in accordance with four point one so when you go over to really the part about calculated according to four point one is where the disagreement ballot he says calculated according to four point one full stop never look at the words about normal retirement date or point three you say feist calculated according to four point one means according to everything in four point one including normal retirement including commencement of the benefit of normal retirement that is exactly right your honor that it is ok so it seems that both you and your opponent have presented reasonable and plausible and extensive explanation for about the interpretation of the plan language in those terms doesn't that in a bit now say that there is some ambiguity about how about a plan language your honor i would like this much of these differing explanations you're owed respectfully disagree to have ambiguity under this court's precedent i don't remember the exact case but at the head there has to be two equally reasonable interpretations and missional is position is that plain as interpretation is not reasonable because it number one it omits the provision in the eligibility for disability retirement that one has to remain disabled until early at least early retirement age and if not eligible for that than to the normal retirement age and because it is a chief judge box just noted it has to take into account the language in four point one which says commencement commencement at normal retirement age doesn't ambiguity still donald position there doesn't ambiguity still gets you a win under firestone language i mean i can understand why you might want no the delegation of discretion and specifically the ability of the of the appeals pension and appeals board to interpret planned terms i think that is exactly right so you know if there is we hear her we get to the same point i absolutely agree with that the the so the position i guess there's two other points i'd like to address that mr brad horn raised and in his case because the or subsuming it in four point three that's not the case because there is no dispute as shown in the record before the court that mr riddell got the benefit you know his his pension was calculated according to four point five b he got the service credit you know while he was disabled indeed he could have waited at least a couple more years and gotten even more it's a total of thirty five and he had thirty three in change at the time of his disability retirement five is the max yes or that that's what the plan caps it as as that so yes your honor you're absolutely right so he could away that he didn't have to take this retirement but there's but the benefit was a calculus calculated that's that's a non issue because it's two separate plans the o t v plan is its own plan it has nothing to do with the calculation of disability retirement under the pension plan there are two separate plans to distinct entities that because essentially so let me get to four point three but i take it that there is there some possibility that the l t d benefit would be greater than the retirement and that's why you call it a dollar for dollar reduction i mean one should just say the d plan goes away well i don't i have to look at the numbers i don't like yes it's possible i got it only reason i could see that you put it that way but go ahead i think it's really probably it could be but i mean it's usually because you know generally speaking broadly paid it because l t d is an income replacement while you know the person would be otherwise working but for the fact that i mean if a person had a very high income but not too many years of service it could be how old t v might be that could be very well your honor let me talk about four point three in the in the last few minutes of my time here four point three allows a participant to take an early retirement on an early retirement date if he or she and in mr rebels case he did has ten years of vested service and he's age fifty five so because of that mr riddell was actually able to begin the benefit before his normal retirement day if four point three b had not been there he would not have been able to begin his disability retirement pension benefit before age sixty five of course he would have still accrued service credits up until the maximum thirty five years of credit but under the clear terms of a four point three b because he storing it early he's he's electing to commence payment of the benefit orally the plan specifically requires  best say his argument is that you shouldn't look at four point three at all because he's not on early retirement he's on disability retirement well but if four point three b were not or four point three were not there he wouldn't be able to done what he did that allowed him to begin taking the benefit when he did so and four point three were first to get a faculty retirement in your view has no aspect of early retirement built into it standing alone well it has it's not necessarily it has it's own four point five the disability retirement has its own set of eligibility criteria and four point three actually allows if one meets that eligibility criterion four point five four point three allows that person to begin the benefit on an early retirement date if he's eligible let me know it's a date there we haven't talked about there's a section d in that four point three that says a person who has at least thirty years a vested service and i think you i thought you said he had thirty three as of this time can also get an early retirement supplement of five hundred dollars a month did he get the ok they got that he got his five hundred dollars a month which presumably he wouldn't have gotten if he was an operating under four point three ok so so the sum it up your honour's the four point three allowed him to to to do what he did is to  commence the disability retirement benefit at age and age fifty seven in nine months i could have done it a little earlier but as the court noted that he wanted to get the seeming crude little more service so he did but under four point three b the calculation of the benefit had to be done you know an actuarial actuarial reduction and that's because the benefit is assumed to have begun under four point one at normal retirement age so it had to be the amount that he got was grown to what he would have gotten at sixty five if he had waited that long so if there is an actuarial reduction if there isn't an actuarial reduction at the time he began fifty seven years and nine months he actually would have gotten more actual than what he would have been you know entitled to at sixty five so that's the windfall argument if you don't actually reduce it to make it equal to normal retirement at age sixty five he ends up with getting more a larger benefit and that's not what the plan states a plan states normal retirement age for the for the disability unless one is eligible for their early and early retirement date your honour's that's that concludes my comments unless the court has further three minutes for rebuttal if a mail address a couple issues fairly quickly then i want to have the primary issue of think that's that's before us today counsel respectfully closed with the wind for discussion understandably avoided the long term disability also  issue instead focused on actual reduction and that sort of thing and he's absolutely right a normal retirement benefit of his paid in any other form under the internal revenue code is required to be the actual equivalent that's not the end of the story more often than not because it cost money to hire actuaries do these calculations plans will go out and do what's called a subsidized benefit we have a boars act we have the be a lot of cases in the six circuit all discussing subsidized benefits those rewards to as an example since we've been talking early retirement benefits to employees who have long service long history with the company we want to encourage him and reward them we also want turnover so we get younger turnover in the workforce but the cold subsidized benefits by their definition and this is a protected benefit under the internal revenue code and a recess subsidized benefits are greater value then the norm or tarmon it's the nature of it so this just as the early retirement benefit here would be that so too would be the disability that's a contention what i'm pointing out though it's not a windfall in the context of oh my goodness we're trying to read this in such a way that creates something was unexpected and planned in the in the plain terms i hadn't sort of heard this subsidized benefit before is that the same or any different from what happens let's say with social security if you take social security at sixty two you don't get as much as if you wait to sixty four sixty six sixty eight which is seem to me to be exactly the same as an actuarial reduction i have no idea if so says the curity has when they when they reduce the benefits between sixty two and sixty seven now for full benefits well that's actually done or not  your that they put into it which is similar ok if you don't know that right turning real quick to the comment about the long term disability being a separate somehow separate program we have case law that says that the welfare benefit plans that are poor create the pension benefit plans all compose the employee benefit package we can't sit there and pick and choose which ones we want to focus on so on especially from the standpoint of easily had the point of litigation if i'm trying to argue that this particular benefit is not subject to wrestle because  completely employed paid even though it's part of the pack each and case law and that we get this isn't been briefed by either party i'll have to separate are we basically right that the l t d plan is primarily keyed to income replacement so if you had a very high income it was for health reasons as well as for these all said since financial issue looking at the back that the plan is every year he doesn't take it both he gets more service and the actuarial reduction goes down right i'm sorry  retirement supplement i believe they did get him under early retirement i don't know that and i was trying to look through because that wasn't discussed at the end at the court either because i don't want to say this i'll be happy to supplement on that issue of leave the benefits paid regardless if you before age sixty five regardless of his disability or two years of service early retirement i am beyond my time i would ask the court's limosine for one minute to address the primary issue that i think i want to close with which was which was this we have to give meaning here four point five is there for a reason four point six is there for a reason the summary plan description is there for a reason i would argue they're not ambiguous and we have to give meaning to them