want to talk about a couple of key facts in this case that will help the court answer the question of whether the appleby's here alan ritchie and alan ritchie benefit plan to enforce the terms of the summary plan description that they drafted as if those terms were contained in the section four o two a receptive land document that's required by the statute specifically this case is about whether they can enforce the reimbursement subrogation provisions as well as the attorneys these provisions that are contained in that document as i understand it several several of circuits have said that it's ok just to have the one written document that's correct the six circuit in the more case summary plan description that we have here it tells the beneficiaries that it's not the plan document page seven forty nine of the record it's reproduced in our brief there's a section that's called plan document big same thing happen in some of the other circuit cases that there was reference to an additional plan document that in fact never existed in the more case they didn't have that language in the plan in the case i don't believe they had that language as well there are some district court decisions where you had similar language we cited them in our reply brief like the moher case where there were specific references to a separate document being in existence and burrell there was a separate plan document and you refused to add s p d provisions unless there incorporated the exact opposite happened here and we also have an admission in response to requests for admissions that there was no way for donna ray or any other beneficiary to know that alan ritchie treated this summary plan description as the official plan if they work if you don't want to create a circuit split those facts distinguish this case from the courts that have held you can have a summary plan description also function as a plan document and not only is there that language which doesn't include anything that would tell a reader that this is actually the plan document riches in  they're not supposed to make misrepresentations to their beneficiaries this court has been clear about that over and over and to say there is an official plan document out there is a misrepresentation so that's what distinguishes this case from the other circuit cases that in this case the summary plan make reference yes a male yes in the other cases there was no reference to another document in more in montevideo which of the two main cases i did as there are no references to another document there are some in district court cases and the preacher case from the ninth circuit which we've also sighed and in our brief pocs about where the summary plan description doesn't have anything that would let you know that it was a plan document that includes language that says there's another document that's controlling under those circumstances we're not going to treat the summary plan as if it were the plant and it's critical because under mara from the supreme court and under mccutcheon since the war case in particular what matters is the language in the plant now in mccutcheon there was a that was a said the terms of the plan are enforceable and they're enforceable as if they were a contract there seems to me that under your reasoning in this particular case there was no plan there was no pursuant to what document well but this is one of the things that the district court talked about and they said that well if you were making a benefits west you would be looking at the summary plan description since that's the only doc was kind of what's good for the goose is good for the gander the reason that the court age but that's a false equivalency because donna raise not enough risk if donna range is not required to follow federal law donna ray isn't tasked by congress with drafting the documents that the law says you're supposed to have so under your theory then she gets to have it both ways that is that she can depend on the summary plan description if it if it helps or in and if it if it hurts her she can say well there's not really any plan b i going to think that's a false equivalency if we had that suit if donna rae were filing a claim for benefits which is not what we have alan ritchie would be in the awkward position of saying we don't have a new recipe land document we're not in compliance with the receipt which would create all sorts of trouble for that and in that situation you would probably end up liking  name don't mean it can't be a summary of something that does not exist the i know it's going to sound weird coming from an attorney representing a personal injury plaintiff but justice scalia got this right in his concurrence in the mara he said exactly that you know how how can you have a summary of something that is itself how can you summarize yourself a summary plan description that also functions as a plan document is summarizing itself if apple these are right and as i said you don't have to create a circuit split to reverse the facts of this statute says you need to have a plan doctor it's supposed to have all the legalisms and the statute says you're supposed to have a summary plan description that's supposed to be in plain english and inform your beneficiaries about their rights and required it was sufficient that those expenses get paid and was sufficient for that yes and it's the same document that you now argue she shouldn't be required to reimburse when she recovers from a third party that's right because it's a different situation they are trying to enforce a made whole doctrine there is no common benefit doctrine none of those things so rissa plans get that right my contention is with rights come responsibilities and if they want to enforce that document and get those rights to take down or raise property in the courts this record seem to think it was a windfall it's not a windfall it's her property if there was no subrogation language they might have an enforce it without regard to those so their responsibility under the law is to put that in their risk of plan and they didn't draft their responsibility under the law is to dr documents and they didn't do it if they're going to part of a contentions if they're going to exercise their rights they have to follow their responsibilities under the law first and donna rae is not in the risk of fiduciary she didn't have those responsibilities she did what she was supposed to do here by the way which was she told her plan about it in the month in your case the supreme court basically said if you take the money and spend it nobody has a claim  affidavit from their benefits administrator that said this is our planet has all of the things that are resting required that was another misrepresentation so you should amend you know that if the if the plan washington force its rights it's got to have reimbursement it has no rights because it's referred to a document it doesn't exist although it may have liabilities are our duties but it has no right no they they still have an equitable subrogation right under under texas law that they would be able to exercise based upon the benefits that they paid to donna right they could make that claim but no no rights under the under the summary but but they don't get because they didn't fulfill their responsibilities under the statute is the right to by contract say we get every single dollar that we paid we don't have to pay attorney's fees we don't have to pay court c don't have to do anything other than take your money now the supreme court in mccutcheon said they can do that but the very least that they should do if they're going to exercise that kind of right to take someone's property is to comply with the law that's really what we're asking this court to look at that's what came makes this case different here because not only didn't they comply with the law they told donna ray that they had they told her over and over again not just in the document we wouldn't be here if it were in the document that alan richard finally drafted after we filed this lawsuit which is also part of the record so we wouldn't be here we would have to rely on a summary plan description she would have had reason to believe that she was going to have to reimburse when she would come from her party if she were relying on the summer claims which she would have seen that and she would have also seen the thing that says if you want to now look at the plan documents because  subrogation reimbursement that we mentioned in the summary plan description don't worry about it look at the summer plans it is a cobbled together cut and paste hundred twenty one page monstrosity sorts of other things but she should have been able to rely on what her for do cherie told her that she should have been able to look at the plan language which is what mccutcheon and ammara say controls so saying if there was something different in there she could have been about as assume that everything were the same in this case except that the summary plan description made no reference whatsoever to an official planning document where would we be there would be only one document called a  summary plan description then you would have the choice of whether you want to follow more and montenegro and say yes they can be the same document or whether you want to follow what justice scalia said in his remarks in crimes you need to have that would be a different case would either have to for of course that his his concurrence is not is not binding a law and nothing nothing nothing at mara says that you can't just have one document well that's what  please the court and opposing counsel before i begin my my argument i need to advise the court that one of the cases cited in a police brief has a subsequent history that particular case is the jenkins first grant thort case out of the eleventh circuit on feb twenty first of this year supreme court denied sorcery at one thirty seven supreme court ten seventy that is significant because in that case the court stated a plethora of authority exists for the proposition that one the holding on of are was specifically targeted toward situations where a summary plan document conflicts with a masterplan document and to america does not address situations where a summary document is the only document in the apple lees  two cases that they rely upon to support their conclusion that a summary plan document cannot be the plan document and i had to use air quotes but the plan document is also referred to as the master plan what the courts say is the controlling document the jenkins case affectively overrules one of those that is the wilson case out of florida as well the other case is the mole vs motion pictures industry plan that he referenced in the ninth circuit that case is set for argument in june i would bet the farm that the ninth circuit is probably going to rule in the way that mr ray is urging this court to they would be the only circuit as we sit here today there are more than two cases that say if there is only one document it is by definition or it can be by definition the master document is certain i presume you pointed out that the summary document make reference to another document  if there's only one document with the one document make reference to another document do we have a problem yes and not we handle that that it is somewhat inaccurate to say that there is only a summary plan document in this case found her lawsuit she attached as an exhibit to her complaint ninety pages of a one hundred twenty one page document the full document is found in one place in the court's record that is with the business records affidavit signed by the benefits coordinator that document consists of these items there is a summary plan description there is an attachment one that deals with women's health and cancer there is an attachment to which tracks the model language set forth in the c of r s four as for a summary plan descriptions in a recent plans for use and there is an attachment three which is the use of protected health information that allows it basically is to comply with the a c a now if you look at that entire document which the trial court did in this case every single page of that document on the federal says united health care choice plus silver plan for alan rich week it does not say summary plan description the first page is the first ninety some odd pages that the right attached to say summary plant ascription the entire document together however includes these additional pages now what this basically boils down to is there's two points for this court to consider the first point is if there is only one document how can it be ambiguous or in conflict with another document my that would be the award of attorney's fees what is significant here is that ms ray does not want the plan to be able to invoke arista and the case also say with the result in order to enforce the terms of stockmen yet miss ray wants to argue that the award of attorney's fees is in violation of the recent so in one sense she wants the risk to control in another since she does not want to risk to control what we have here in this very important to keep in mind is the timeline of what was involved the time number one this document was created and number two miss ray was injured the malpractise incident happened on eleven seventeen eleven nov seventeenth two thousand and eleven she was covered under the two thousand and eleven health care plan which went into effect in march of two thousand and eleven at that time the president in the fifth circuit that the s p d is the only document that controls a situation w document he references that includes all the nice language that wraps it into becomes the master plan document went into effect of march of two thousand and thirteen that is in the record the record contains an affidavit from the benefits  affidavit from the general counsel for the plant and also contains excerpts from the depositions of the plan administrator and excerpts of the deposition from the general counsel what is not in the record is that either of these or any one associate with the plan the document for this court what is in the record in this mosque is deposition testimony is that she relied upon a broker and upon outside counsel for the draft in this document there is no evidence of a draft of this document is an almost everyone i have ever seen when i can tell you i believe it is in the mountain of decision i believe it is also in the the mccutcheon case if you look at the entire docket for the court i may be wrong i don't want to misrepresent but i believe that it is what we do know is that at the time of this lawsuit filing there wasn't just one case the dudley case decided by the fifth circuit before they filed it treated the only document in existence that was not called the plan the fourth circuit in the mccorkle decision rendered in twenty twelve treated that these cases either said that amar does not apply in a single document case or that a single document can be a summary plan description cases the interpretation of that one document not an authority contesting that there should be a nother document it was a combination and because there are there are some there are six of these there is cases is a little bit different but all six of them old hold either that when there's only one case in existence it can be the master document or that that the m r decision does not control there's only one document as we say now we also have the united states supreme have also i believe it's important for this court to recognize is that what is before you in the record there is affidavit testimony and deposition testimony both from the benefits administrator and the general counsel there is the model language from the c f r that area resupplying should include in it there is the entire document that is at issue before the court accompanied by business records affidavit that includes not just the documents proposed or submitted by the plaintiffs but also the additional dawkins touch to it what is not in the record is any evidence that the plan willfully or deliberately intended to mislead restrain any ma what is not in the evidence is that any other plan document any other piece of paper existed at this time when she was involved in her accident or at the time she requested the copy of the document in control the only thing before this court the record is the testimony by affidavit and deposition that this document this one hundred twenty page document before this court is all that was in existence this document is a document upon which she had the right to receive medical care benefits this document from which she agreed to accept these benefits requires the reimbursement and as the trial court said basically you can't have it taken eat it see what it is is extremely important in looking at what the eight instances where the court considered the facts and merits of this case eight the first one the magistrate issued his first report recommendation which of looked at the objections and looked at that and then the district judge granted or rubs her adopted the magistrate's report and recommendations then on the issue summary judgment we have the same thing first the magistrate reviewed the briefing on the sum on the attorney's fees and granted them then the plaintiff objected so that the district judge reviewed the objections and adopted the magistrate's report so all of these times we had not just a district judge but the magistrate reviewing them we had the plaintiff's evidence in facts in her motion for summary judgment and her two independent objections raising all the issues before the court  you call it the plan the documents before this court that full one hundred twenty one pages constitute a valid and forcible recently and and the law is that it's acceptable to have just one documented march change the law how you deal with somebody's plan descriptions and plan documents before morrow the consensus among the courts was that in a recess to do sherry could be held responsible for and have to follow representations that it made in its summary plan description the idea being you told your beneficiary something you can't walk away from that amar said that's not the law for him our courts would often reform brief what the amec this is talking about is concern about contradiction between the two documents they're worried if they say something in the summary plan description they might be on the hook for that even though it's not in the plan b firms that the provision people are watching this case in particular to know whether that can happen even when you tell your beneficiary we have a separate plan document even when you tell your beneficiary something that's not true we as a court are going to overlook that and still treated as if it were the section four to a plan document even when it says it's not that's what makes this case unique  not a technicality and donna rae is not simply trying to avoid her responsibilities here she's asking the court to enforce the law and to not overlook when her  she should have been able to rely on told her something that wasn't true we think that's important and before they're going to be able to take their power under arista the least they can do is follow the law i want to talk about themis you even if you disagree with me on that i think that the district court erred in awarding fees here the first thing they did was to award fees based on language in the plan document the summary plan description there was of fees based on the plan language that will be something new and it will turn a risk into a loser paste action when the plan goes after somebody for subrogation the law doesn't allow for that and that needs to be reversed in any in among other things again donna ray did what she was supposed to do here she didn't try to run away from things she put the money aside and she asked the court to decide what the right when we filed this case when we filed our summary judgment there were three district court cases dealing with this this issue two of them went management's way one of them when it took a year for the magistrate judge to reach its decision then another year to decide the attorneys f if you look at the ruling he cites a bunch of cases that were decided after we filed a motion papers the issue was not decided and it certainly had not been decided by this court leave donna rae had a right to come to the district court and now come