you're correct good good morning yours doug mckinley i'm appearing on behalf of peter chirping and about three hundred other clients who brought two tickets in nine states government for breach of an implied the specific error that we are alleging the lower court made was a lower court the lower court held that it wasn't the government that made the contract it was in fact one of the hint for contractors that  reality and in our complaint this is it is simply incorrect the government directed its contractor to make a contract but it was in fact the government's direction just like you might direct with your law kirks to write something for you  the government was the party that created the contract and so if we look at the complaint there's sort of two levels of facts we can look at the the facts that are alleged and sort of the thirty thousand foot level and then we can get down into the nitty gritty of it looking at the facts from the thirty thousand foot level what we centrally alleges the government created the multi employer pension plan in one nine hundred eighty seven and the map and then the government thereafter managed and dictated heart of the clause that's contained within the map that matters article twenty nine is that is the central focus of this entire discussion and what article twenty nine says is that when there is a terminations for transfer the plan administrator will make sure that the benefits continue to accrue with the new contractor now that article if we give it any thought at all we realized that article could only have been formed by the government it only could have been breached by the government it only could have been enforced by the government there's no other party who has the ability to enforce that article that central promise of the map to my clients right that the contractor who's leaving he can't dictate what terms the government are going to pay pensions to the incoming contractor the young coming contractor can't dictate terms to the government the only party the only person who ever had the power to say whether the incoming contractor was going to continue in the map once the government and so when you look at it from the thirty in order to assure that the participant receives a benefit a normal retirement think well how is that going to happen if the government doesn't sign a contract with the new contractor allowing the cost for the new contractor to  allowing the cost of the new contractor to pay into the mat to provide that normal service allowance that the government's responsibility here is pretty narrow it's only at at the the transition only of the term nation for transfer is is the government not supposed to use that opportunity to throw people out of that ok once the determination for transfer has occurred the government could go in and save the contractors ok we're tired of paying a pension right tell  people we're not going to pay pensions anymore but the government didn't do that the government said we're going to set this thing up so that when we change contractors when we go in there at the moment we change contractors we're not going to use that  to be the excuse for blowing you out of the pension plan ok any other time the reserve the right to do it i would argue but at that moment they won't do it and then what do they do they chose that exact moment anticipate the government is going to make an argument that well we can't be you know you can't say that the government was ever bound to the saying and you know there's no evidence that the government was ever bound to the site but if we look at sort of you know ok ignoring the thirty thousand foot level let's get down into the weeds of what would the government do with they did consider themselves bound to it that in other words what kind of activities were the government undertake if they did provide assent to it well one thing they would do is pay their pension for the rest of time which is exactly what they did because in one thousand nine hundred six with a repudiated that they apparently thought guilty and so they added this new clause the january fifteenth amendment which said ok we're not going to give you credit for your service here's what we are going to give you your high five so in other words your pension is going to continue to go up it's just not going to go up as much right so who's paying for that no longer do we have an employer who's part of the point the my clients have been completely disconnected from the plan through any sort of employer and the government makes that argument over and over and over again they're completely bifurcated from a plan but they're still participants in the pla plan to fund the high side benefit so i don't understand how the government can say to you with a straight face that the government is not a party to any contract with my clients when the government has spent decades paying into twenty nine ok so then again we look back at we look at back at the fact if the government believed that they were tied to article twenty nine of the time you know what would they do one thing they would do it was the first time that or terminations or transfer came had letters they had written correspondence that you know basically every single factor every single thing that they ever could have done to show that they felt they were bound that they did except for one thing and they put in this you know january fifteenth amendment the high five amendment and then they continue to pay for the next several decades into that on behalf of my clients for the high five the what was the election applied contract here and does the amended complaint sufficiently less of a contract if the court can't answer that question then it can to determine whether the complaint alleges all the required elements of contract like mutuality content consideration lack of ambiguity in the offer and actual authority it all becomes a fruitless exercise but the problem the court confronts here is that the appellants have never been able to specify precisely what the implied contract is at times they suggested that simply if an employee works on the reservation all other time concert penchant purposes at other times they suggest that article twenty nine of the m e p p and only article twenty nine embodied the terms of the contract sometimes they suggest that the entire m e p p is itself the contract for example at page forty four of their brief appellants claim that certain governmental conduct is quote evidence of the government's assent to that the government was bound to the terms of government then this court in bank of guam vs united states five seven eight f third thirteen eighteen held that the existence of an express contract for clues the existence of an implied in fact contract with the government was originally dispute this point there's never been a dime that has been sent from the federal treasury to the pension fund itself the only time the only flow of money that's ever occurred has been from the federal government to the contractors that run the hanford nuclear because prior to nine hundred eighty seven there were a number of contractors working on the site on the on the reservation those contractors had and this is in the complaint this contract was had their own pension plans and any time the workers the time the contract would change and the contractors performing the work on the reservation would change then oftentimes the workers working for the government contractors would change companies and there would have to be some sort of movement or there was movement the complaint suggests that there's an implied contract that arose from the creation of that that's rude in the creation of the emmy p p and the reason the court has to discern what the the terms of that contract are is that without identifies the terms of the call a ledge contract they have to address the can the court has to address the contractual elements required to state a claim and for mutual of intent there has to be some sort of nexus there has to be proof of or allegations of an intent by the federal government at the same time they are pointing to evidence of intent to contract by the federal government they are also saying the federal government refuting a contract because they they allege that in the in september of one thousand nine hundred six when the federal government  contract and i keep coming back to the idea that the court has to figure out what the terms of the contract are it's important to determine whether all of the elements are present in the contract it's also vital to determine a dispositive issue that i want to touch upon from and in this case and that's the question of the statue of limitations as a freshman not of the appellant's have argued that men were not allowed to argue that stuff limitations issue here on appeal for the first time statue imitations under section twenty five the one we could have raised if the very first time on appeal here we didn't raise that at the court below and the court rejected the argument but the what i'd like to focus on is that in for the stache limitations here if the accounts were correct that a mere repudiation of the contract does not begin the statue of limitations running that's true but this court has also held that any time there is any contractual nonperformance under the contract the statue of limitations to run and then six years after that nonperformance their stuff limitations were expired and they would not a court so if there was any sort of nonperformance by the federal government under the terms of the contract that was a and here's why i'm going to bring back exactly what the pledge counsel just said a moment ago the parents have repeatedly argued in their brief and here ten minutes ago that if the implied contract required anything at all it required the government to only enter into contracts that would accomplish the objectives of article twenty nine a medical claims come to said the government's responsibility was a very narrow it was not supposed to be used the opportunity of the change of contract to throw people  p p and a page twelve of their brief the appellate state the implied in fact contract with the appellants required the government to only enter into contracts with successor contractors there would accomplish the objective of article accounts counsel just said that if that's the case that was absolutely a case of contractual nonperformance and at that moment when the government entered into that contract which did not accomplish the the objectives of article twenty nine that was a  this determination that their their years on the reservation no longer count for the purpose of cards and pension benefits even if they were told by the plan by the government that they couldn't challenge of terminations claim doesn't say they can bring suit even if that were the case governs all the contractors on the hanford site ok so they swept them all up in eighty seven put them in this pension plan together and then from there on the government micromanage the plan they controlled all the aspects of it and that's why i argue that they formed an implied contract they formed an implied contract that they wouldn't mess with the things that were set forth in the memo now as it turns out they didn't really you know most of the terms of the met the there were in a repudiation there were  nothing to complain about the one thing i am complaining about is in one nine hundred ninety six they were puti ated their obligation to article two on an article mine the government is arguing that's a breach of the trial court below didn't hold that it was a breach the trial court below correctly held that the only thing they could do with respect article forty nine in one nine hundred ninety six was repudiated because by its own terms article twenty nine does it ripen until they retire ok again we have to look very carefully at the language in article twenty nine article twenty nine says they won't do anything until normal retirement date that's when it kicks in now conceivably the government could have  the contractor out of the plan and continued to allow the employees to enjoy it and in fact that's exactly what happened right they take stock in them credit for their years of service but they continued to finance their high fi wrote into the plane as it amended so the government's argument that that has to be a breach is completely contrary to the facts the fact is the government did keep them of the plan the government kept paying into the plan all they did was say we're not going to honor your years of service when the time comes when it's time for talk of government making contributions to the plan still it's me still it's still if the government pays consistent with article  government pays the employer then once again right but it's all governments all the government's money and the government sets up these contracts to say that it's an allowable cost so the government could easily have set up these contracts to say and  fact we would argue did set up these contracts to say that it's an allowable cost that my clients would be paid for all of their service years because you know that clause still exists in the map it wasn't removed from th so my clients should be entitled to all their service years on the day they were talking but they were tired they go to the met they asked for all the service years the met tells them no we say ok the government made a promise then one one of the point i want to cover government councils correct they can't come in and argue that there's also an implied contract that rides alongside it ok but the express written contract here is not with the government as a party the government didn't sign the bat they just created it in control from afar and try to leave their fingerprints on ok the implied contract was because the government was doing all those things because the government created because the government was micromanaging from afar because all of that was going on they likely assented to at least enforcing article twenty nine where when there was a termination for transfer or when people retired they wouldn't use the excuse of well there was a termination for transfer and so we stopped paying and we stopped allowing