complaint states and leave any valid claim for relief or here unlike the usual rule twelve b six dismissal the judge had what sixteen hundred pages of documents attached either to the complaint or to the motion to disma it was the loomis judge there's no doubt about that there were exhibits that were attached in support of the complaint the complaint itself was fifty pages this was my first receipt case and when you get involved in a r cases i'm sure the court understands the supreme court has created a rabbit hole that sees you go down and you find yourself in wonderland you're not sure exactly how you're going to get out of it so i tried to over plead rather than under plead in this particular situation i think the court from my perspective should understand the timeline which is crucial in terms of this situation because i don't think it's your typical agreement and then they can agree on it is that on the plane if disperses puts in the trust and whatever the there's variations of that throughout the case law about what happens with the money when it settles and then can the insurance company or the insurer self funded insurer in that particular situation come back and try to recoup it after the fact and what i cited in a  supplemental letter to the court after rising america clavering was the case that came out i think either week before we go after what on the same time the brief came out with the supreme court and what it basically said was if you got a lean by was on page seven of that decision said the board had an equitable lien by agreement that attached to monitor settlement fine when he obtained title to that fine and the nature of the board's underline remedy emphasized would have been equitable it immediately sued to enforce the lane against the settlement fund then amounted to a possession that's how we got here today was there was a dispute about the wayne under eleven thirty b there is a provision that allows concurrent jurisdiction for suit to be filed it makes a specific exception for an eleven thirty to a one b type of action which is to enforce the terms of  on their plan j which said is under certain circumstances they will waive their lane they decided they didn't want to play that game they want a client got the money that was in the state court suit and they've given you that and they said but because you're messing with us we're going to withhold all of their funds to your client so why are you what your going with the states to me that it's an entirely different pot of money that they're letting you have i'm not sure why you're saying anything they did with respect to that since you got to keep that money is a problem it's it's actually not a different pot of money judge and i think that's part of the reason why doesn't your client have that money there yes the money that was put into the court was yes my client to get that money what i'm what i'm saying to you judge is that they are starting to lean ok and then when the state court decided that it was going to make that decision they chose not to and what happened is that they recovered their farms that they paid to the medical providers but they didn't recover what they paid in short term disability benefits they still are saying that they will cover those in the future and let me ask because i think there are some tricky interpretations of the plan in terms of whether they could recoup the money from the health care providers but is that really your client's issue another is that your point of standing the challenge that it's the health care providers who got paid by the a because the basis of what they call is a root recoup or reversal of benefit if you look at their section eleven point zero four their point and the way it's phrased it talks about excess benefits that may be payable so i think you have some there's at least some arguable point why didn't the hospital say well you can't do that you can't take this money back from moscow look at this section of the plan a level point  four but the hospital willingly gave back the money it's not the why is that your issue it's it's not it's not the record because it never got that far but there was a reference in the record of when i contacted the hospitals they said that they were told to return the benefits on the basis that mr cleveland didn't fill out a worker's compensation questionnaire this claim never dealt with the worker's compensation claim so  from their perspective they were required in their contract to return it because they'd because mr cleveland according to them didn't comply with what he was supposed to do under the forms so none of what court level said i'm going to review this on a abuse of discretion standard and it's our position that when the plane and had the opportunity because whole and lean in general but it still doing that this answers your earlier question is it still trying to take a credit in the future for part of those lane fines that it's paid out so it had the opportunity in the future against new claims or something right not talking about the money your client received in the state court in a pleader action correct brett it's talking about going to recoup it out of a future claim but it ties back to the initial claim that we hear backwards about today so i'm getting back to judge cost is question your client got fifteen thousand in the state court proceeding absolutely they didn't contest that they the plan didn't contest that they did to test it because what they chose to do was reverse their benefits and it's our perspective that when they did that they violated the five zero two eight three standards that have been set forth by the supreme court the other point i'd like to make is also saying there's some arrested kata because of what happened in the state in a pleader action and that's why don't their stance is that's a separate pot of money that they're letting you have i don't understand why you're saying that filed under the eleven thirty two eek and current jurisdiction which allows for the plant of the term to be interpreted under eleven thirty two a one b all right i got that judgment but while i got that judgment for my client they reversed benefits after that state court suit was filed i could not without facing a failure to exhaust administrative remedies file suit at that point i had to go through that process of same guys you can't and fourteen you contacted central and you contended any subrogation land was illegal that was us to that five thousand shelter paid central and then sixteen january central some a letter to knew that central was going to attempt to recoup those benefits ok this isn't something that happens after you file the action before you follow the action because you knew there were going to attempt to recoup the benefits absolutely jeff i misunderstood what you were saying but i invoked my client's due process rights absolute that's what i did where i was going to go with it was i said that i had to go through their ministry to process and the claims that are made in the federal case are we are trying to redress what we consider to be a violation when they recoup that when they recoup that money so it's a it was not an a one b action anymore it was an eighty three action which provides that you may redress violations we've already had the interpretation of the plan they ignored it so in this particular situation what we're dealing with is an eighty three go back you have to pay these benefits back to the providers because the section that they're  eleven point zero four again provides an excess benefits this was not in excess benefits cases was not a situation where doctors were paid more or some other party was paid more than they were owed under the terms of the plan good morning your honors and may it please the court i would like to address a few points raised in mr viscounty initial initial comments first of all he said that this isn't a typical arista case it's our contention that it is a typical or is a case this is the kind of benefits case that this case that this court sees all the time this is a case in which quite simply there is a benefits now and are under the abuse of discretion i completely and viable doesn't change the matter that this is a simple a risk of benefits case and i think given that it's a simple receive benefits case as this court know the abuse of discretion standard applies and that's because section eight point zero three of the funds plan gives the fund she is me the board authority to interpret the terms of the funds plan and under the abuse of discretion standard obviously there's two elements here there is whether or not plaintiffs have shown that the board decision was legally incorrect and whether or not they've shown on top of that that is an abuse of discretion and i think here there's a couple things right off the bat that indicate that the decision was legally correct under the plan first of all their section eleven point one four a of the plan which clearly gives the fine and i'm paraphrasing here but it provides that whenever the fund makes payments relating to a certain accident the funny thing granted subrogation rights immediately to the full extent of those payment illegal and that he would basically do everything in his power to prevent the fun from a coupe in that way that's a clear violation of the plant on top of that we have other correspondents in a similar vein on the same day january one thousand and fourteen and we also have the filing of the state court litigation in which mr viscounty sought to declare the reason back to close the funds lean invalid as it applied to the fifteen thousand dollars that we've been talking about so that's a second point there's absolutely no do that mr clean violated the plan it's just cost acknowledged there's also a third point and the third point is is that the find had authority under the terms of the plan to get the benefits and i know just cost maybe previewed this issue a little and at least asked who would agree whether or not the fund did have that authority and the clear answer is yes first of all there's section eleven point zero four of the payable under the terms the funds will have the right to recover the excess payments from any responsible persons or entities exactly on and i think he was highlighting the exceeding the amount of benefits payable language i guess my bigger concern with your position is the responsible parties that make sense so if you know if medicare is paying another responsible party another insurance companies paying that to me is the classic other responsible party that you try to invoke that provision is a health care provider what why is it a responsible party well if he'd turn to section eleven point one for each of the plan that provides that any person entity are responsible person quote includes any person or entity that quote the fun claims to be responsible in whole or in part to provide payment our compensation or reimbursement to the fund of being recovered about and here that's exactly what the fund claim to see the medical providers they claim that because mr viscounty violated the terms of the plan all the benecol boehm benefit payments the fund had made to those providers were not pay a bill in the terms of the plan and thus the medical providers were required to as the section says to provide payment or compensation to the fund of the unrecovered amount so i don't necessarily think and i don't think the board would say that responsible persons is limited to medical providers but in this case they were clearly responsible persons under the terms of the plan and i think that's one hundred percent clear and there's no ambiguity but even if there's any ambiguity as to this the second part of the test requires plaintiff the show that it was an abuse of discretion and this court's made clear multiple times the most recent case i can think of is mccorkle in which the court said that it's not reasonable this is not a black and white thing it's a continuum of reasonableness and as long as the board makes a decision that's on any part of that continuum the decision is its prop and they didn't abuse their discretion there's also other cases such as she direct mariette in which this court held that if there's any concrete evidence to support the decision it's not abuse of discretion and i think here even if there's ambiguity as to eleven point one for age including responsible persons as medical providers i don't think there's any potential even the close to viable argument that the fund abuses discretion in interpreting the plan that way i would also note that there's also a section eleven point one fort and i've addressed that in the brief i believe that the board believes that also provided an independently sufficient basis on which to recoup the bet doesn't that contemplate filing a suit or subrogation suit to get the benefits back i think that's part because lum one for basically provides them and someone violates the plan or receives fines in satisfaction of their severed nation rights he won't provide at the fund has the right at any time to decline to make any payment for any benefit some have to cover the individual so i think that that also provides an independent basis here for the fun to recoup but even if it doesn't it's not an abuse of discretion to interpret that  anything in the record in which after the plan paid ten thousand four hundred for medical benefits and the roughly eight hundred for  i know it's not a yes i don't think there's a i've gone out of the there's anything in the record to support that so i think that's the core of this issue this is a benefits case and i think first of all the funds decision was clearly legally correct but here to say that nothing can be farther from the truth if you look at the record and i usually be leery to discuss settlement offers and things like that but these are the things i'm going to talk about are in the record and if you look at the record the fund has consistently made reasonable and fair offers of settlement to mr viscounty before we keep the benefits and after it recouped the benefits but mr viscounty has rejected those office not because of any any consideration of his client's interests but because of his stubborn reliance on the false principle that louisiana attorneys fees lost some outlays of this case we first made a settlement offer on february fifth two thousand and fourteen before we recouped and that offer was for one third of the twenty thousand dollars that mr cleveland had recovered to date however mr viscounty rejected that offer then after we recouped the fund again extended an olive branch to mr viscounty and again offered to settle for one third of the twenty thousand dollars that the funded recouped and because we had our season one third of the twenty thousand dollars that mr clean had recovered and because the funded recouped we also offered to reprocess all of the medical payments that we had paid so that mr clean them would not be left holding the back in addition to that we also explained in our six could be june fifth two thousand and fourteen e mail that the funds offer was actually better for mr viscount his client than the offer that mr scotty had consistently been making and that offer that mr fisk idea consistently been making was that mr viscounty would take three fourths of the funds lane and the find would take the remaining one quarter yet mr viscounty again rejected our settlement offer because he believes with no basis in the law that louisiana attorney fees formula should apply to this case and after he rejected that in june we again responded to him by citing controlling supreme court precedent stating that louisiana attorney's fees law does not apply to this case however instead of simply saying oh you're right mr viscounty rejected the offer again asserting with no basis or citation otherwise that a recess somehow violated his constitutional rights things ironically the whole time the whole point of the funds formula was that the fund would take one third of the twenty thousand mr discount his client would take one third and mr viscounty could get attorney's fees for one third viscounty was so blinded by his belief that we see an attorney's fees formulation apply that he was not able to see through that and settle this case that should have been settled long ago and when you're talking about twenty thousand you're talking about the five thousand  louisiana attorney fees law plays this case mr viscounty has now wasted two federal court's time for the time the two federal courts and the fines time by making this literally into a federal case when it should have settled long ago and all this could've been avoided if mr miscounting would have just simply acknowledged by nice supreme court precedent providing that louisiana attorney is like losing interest these laws not apply to this case so to circle back to my initial point this is a benefits case or honors and this case basically boils down to determining whether or not the board pieces freshman and mr discounting mr cleveland simply have not been able to state a viable claim that the board did so so as we've talked  about there's usually two determination she is challenging one is a determination just that his client's not going to get any money going forward because he interfered with the subrogation rights right the second one is challenging the recoupment that would you all obtain from the medical providers do you think that second issue the recoupment issue is something that mr cleveland can challenge or is that just an issue between the medical provider and your client you know we did in the dress  have standing to bring any suit in this action because section eleven thirty two limits the people who can sue to participants and beneficiaries mischievous counties neither of those is a little more debatable as to whether or not mr cleveland has standing to sue but i would say no he doesn't have standing i mean this is basically an issue between the medical providers and between the fund or the leaves him with the bill leaves him with the bill but again i would say that mr visco cleveland have not established their standing under that and in fact they brought other claims in that vein under section eleven thirty two eighty three arrests up which provides that basically  paraphrasing here parties can bring claims for equitable relief that's not covered by the other provisions and this court has made clear that section eleven thirty two a three claims for benefits the miles are not viable and that's case avondale industries and roar verse raytheon engineers so i would say for both of those reasons mr klayman also does not have standing to bring the suit and if you are right in the first determination that because there was a violation of the subrogation rights of mr cleveland as no entitlement to anything from the fund i could not even over the standing but if he has no entitle mint of funds because of that first decision assuming that the recoupment wasn't supported by anything in the even a basis for complaining when there's a determination that he's not entitled to anything anyway right we would say no i mean obviously i would let me start with the last question you asked him and his response your honor you asked about the stain issue and the short answer is he's right i don't have standing under re invoking if you look at a one b eleven thirty two it says that a beneficiary may bring suit to recover benefits or to enforce rights under the terms of the plan or to clarify the rights to future benefits ok so what we're talking about here is either the recovery of the benefit because of a breach of fiduciary duty because it's restitution that he's seeking for payments that have been made to the doctors now that there's been a or alternatively this court could render a decision where it said fine you got to go pay the doctors again so it's either to recover the benefits or to enforce the terms of the plan which they've already done which they've already done wants to pay the doctors what they contractually agreed to pay as far as the abuse of discretion standard that's one of the things they're saying hey look we've got to be sued discretion you've got to give us the benefit of the doubt no you don't because their own plan article in their plan says that they have certain guidelines and the code of federal regulations that they have certain guidelines that are procedural safeguards i think is the terminology to choose to design that are designed to ensure that a beneficiary gets a if they are shaped in terms of a benefits claim and that's one of the issues that we raised as we said hey we asked for your own plan provides article you keep minutes you identify who's there we want to see the record we want to make sure that we got a fair shake they said no it's privilege you know get that last clear it's not  the issue is we asked for discovery on that basis that was one of the claims we made under this court's crosby vs health risk i think is the case i could be wrong on that but essentially what at their real but they parse words when they quote their plan eleven fourteen b that they talk about the impairment or the prejudice of rights if you if the court will look at that particular section what it says fund to effectively prosecute civil action in the name of the covered individual ok so did that he offered to give him whatever subrogation rights they wanted to hire their own attorney more importantly if this court goes back to its decision back in two thousand and fourteen the central states vs help specialist case which i cited this course basically as i understand it said this provision right here is a violation of a risk because it's seeking money damages and that's what they did they win it and they got the five thousand dollars from the med pay and they turned around they paid it back to me because i told us in god you can't do that and she's  a minute left on this preemption issue you filed suit in federal court you as you said you brought claims under a risk i don't see are you bringing separate state law claims that are preempted or are you just arguing that louisiana l