america is the sponsor in administrator of the klein below is really just breach of contract girl scouts bill tennessee says that girl scouts of united states of america the plan sponsored administrator without authorization in breach of contract amended the plan to provide new benefits and added new beneficiaries the court dismissed the action below holding that well in fact the we come here saying that the issue is whether or not to apply federal common law to this contract to speed but the real issue as a practical matter is is any law to be applied to this dispute the federal district court have to be think correctly held that state law is preempted we think that under the decisions of this court that requires the application of federal law the problem is that the only federal law a violent goal is federal common law because all russell itself the arrest of statute does not address the claims involved here how the supreme court has said that amendment of a russell plan does not implicate any of the five this year duties that are listed in of amendment and it must designate the party who has authority to make the amount and the plan does that in this no question that the administrator in sponsor does have authority to amend the plan the question is can it do so without violating its contract when it doesn't follow the instructions of its principal in this case my client girl scouts of middle tennessee i think you're saying the only way you're said quote all the courts have recognized that the preemption of state law which is what we have here in the congressional directive to develop a federal common law of employee benefit plans require application of federal law to actions premised upon the contractual obligations created by a risk of plans we join these courts can recognizing that contract claims like with worth are governed by a federal law now there is a good reason for all judicial reluctance to use federal common law because the court can be i think rightly accused of judicial legislation if it dreams up rights that don't otherwise exist under also it applies them to parties we are not saying that federal common law is the source all right we are saying the contract is the source of our right and this court has many times applied federal common law to interpret contracts that relate when state law is preempted and that's all we're asking the court to do the reason this is so on has such an unusual fact system unusual case is that it is an unusual fact situation what we have here is an unusual play and it's a multiple employer plan not a multi employer plan and we have a administ and a sponsor who is not a contributing employer ordinarily you would expect the sponsor to do exactly what the employer wanted it to do and  indeed if this was a multi employer case is there any question that we would be looking at the collective bargaining agreement between the employers and the employees and interpret that to determine exactly what should be done in this kind of speed but the fact remains if the court does not apply federal common law here that law is it to apply and it is not going to this then surely we have this for the proverbial situation of a right a contract right without a remedy now i'm familiar with a lot of arista cases that cite will the failure of this plan and the distressed troubled nation the employers are the ones who are going to have to come up with the money the sponsor and plan administrator has no a duty the breach of duty we're talking about is the breach of duty by an agent it in the voluntary participation agreement which is the contract between the parties promised to act at pursuant to our instructions at all times it designated us as its principal and instead it's age so again if federal common law is not to be applied then we are the employer which is funding this plan it is eventually going to have to pay whatever happens if this plan fails and it looks like it's going to fail what is going to happen then and we have no remedy we have no for all that cannot be the law it may be unusual it may be that the court will be subject to criticism in some fashion  it went outside a risk to find the right and that had to do with mistaken contributions and the rest actually addresses mistaken contributions and it doesn't say you can get your money back if you make a mistake a contribution it does say that the assets of a plant may not be cannot be taken by the employer cannot benefit from that but the fact of the matter is  there is nothing in orissa that addresses whether a plant sponsor administrator can can it has the authority to amend the plan nothing in  addresses the consequences if the plan sponsor an administrator reaches its agreement and amends the contract to increase the employer's liability i see my time is up  good morning your honour's mary helen wimberly for the girl scouts of the usa may it please the court mr davis says this is just a breach of contract case well the court need look no further than the complaint here to see the type of case it is  paragraph twenty six the middle tennessee council seeks to clear a tory relief to depart from the terms of the plan on its preferred terms at paragraph twenty eight of the complaint it seeks an accounting mr davis is quite right that this court has never recognized a federal common law remedy for this type of departure from the expressed terms of a plan and there to reasons for that first and doing so the court would be  now the plant the council could have withdrawn we the national girl scouts offered the council an opportunity to withdraw by purchasing annuities that would have given the council the relief they seek here they just didn't want that particular type of relief suck at we offered below to arbitrate but the council was under the terms of the plan and again the council decided it didn't want that type of relief either third at the council believed there was a violation of  orissa it could file a complaint with the secretary of labor and the secretary of labor of course has standing to sue for violations of orissa but again this is to refer back to mr davis reference to this case law of this court that says quote the nature of or is a preamp ssion and the restricted application of federal common law doctrines is not altered by the fact that some plainest may be left without a remedy congress elected uniformity and stability over individual fairness and a particular case but again here there have been ample alternatives to the council be council just decided it didn't want any of them so returning to my first point what the council is doing is asking this court to amend or ressa and this comes down to what type of silence we're talking about here under arrest and there are really three different types of aristos silences the first is an intentional state of silence it's an exclusion it's an intent to occupy the field where courts can't come in and legislate through common law the second and this is a terminology point that i think gets confused a bit in the briefing is where there is a remedy available to a particular party but the risk is not clear as the rule of decision or there are certain terms that need interpret ing through the federal common law and that's what many of the cases mean when they say that a court needs to apply federal common law it was within the existing arista remedial scheme what is far rarer and what the council seeks here is for this court to create a common law remedy where none exist and that the lower courts have only really done that in a couple circumstances the first is really on the outer bounds of preemption where for example the davies case being a perfect example of this where this court said well arrested doesn't say anything about the walls of the cation of an application to be a part of the health benefit plan and so will play a common law remedy there and then later actually the court came back in determined that the state law claim under which the where something in the statute suggests that congress did not intend to foreclose a particular remedy and yet there's an awkwardness because congress did not provide a mechanism for that remedy and that's as ghosts and i'd like to remind the court that what worth was in fact a purely jurisdictional ruling the court below have concluded there was no subject matter jurisdiction over the case and this court said whether there is a common law remedy is a question of federal law therefore there is federal question subject matter jurisdiction what it did not say is the court is required to apply a federal common law remedy again a terminology distinction which is important applying federal common law does not mean making up a new federal common law remedy and again the fact that there are no remedies available to repair tickler party did not change the analysis now this third type of silence i was talking about the creation of a federal common law remedy and that has not yet been recognized by the supreme contributions context based on i believe it's four or three see to that in that narrow circumstances a common remedy the eleventh circuit has said declining to recognize either an implied or a common law remedy that narrow context and the ninth circuit has said there is no common law remedy there's just an implied cause of action under rissa so those are the very narrow circumstances most other courts recognize and i think what's the prime example of this is the language in the russell case where the court said the six carefully integrated civil enforcement provisions down in the statute provide strong evidence that congress did not intend to authorize other remedies that it simply forgot to incorporate expressly and that's the counsel's argument here essentially that congress forgot to include employers and vida to and this court should correct that through the common law well that violates brussel among other cases so again what's the silence here and i submit that the local six or six eight two case from this court proves defendant of late that's the type of exile and that's exclusionary that shows that congress did not intend for court to provide a remedy for of this type of case there the union sought to recover based on misrepresentations about planned benefits the union of course was not an entity with standing to sue directly under a therefore the court said that falls within the general purview of a risk because it concerns a plan administrator actions as a plan administrator and participants and beneficiaries of the parties that congress  fiduciaries that congress elected to govern that type of dispute not the union therefore there is no awkward gap we submit the exact same holding should be reached here that gives effect to this court's finding in great lakes you know that a risk that expressly denies employers as employers standing that would be rendered meaningless of all an employer has to do is  actually no we're bringing a federal common law claim in addition and i'm a honing national bank case this court held common law cannot provide an end to penates source of rights with regard to employed benefit plans now what the council is trying to do here is say oh the voluntary participation agreement as for what provides this and dependent source of rights and expand the fiduciary role of the national girl scouts beyond  words of this case and the remedy congress has provided for the misconduct of a fit of a fiduciary as a suit by a beneficiary or participant another fiduciary for the secretary of labor not an employer here second even if in certain circumstances the council could pursue a common law remedy it cannot pursue the remedy it seeks here which is permission to breach the expressed terms of a plan and to enjoying the national girl scouts enforc plan and that is mccutcheon and is common law romany's cannot be used to depart from the express and ambiguous terms of a plan and the council has nothing to say about that third and finally the tennessee statutory claim which the council doesn't even mention and its opening argument probably because there is not a single well clear of factual allegation and supported its claim that the council acted alter various and the district court was quite have so conclude so in conclusion your owners this court should affirm the district court on the tennessee statutory claim because now there's not a single factual allegation to support it and on the three common mark lanes because under russell this court is not at liberty to depart from the comprehensive remedial scheme congress created onerous second the type of violence here is an exclusionary silence decayed in congress's intent to foreclose this type of remedy under local six and six eight two and third this court cannot through federal common law depart from the expressed terms of the arista plan here under mccutcheon and as th well if the court please with all due respect counsel confuses white with remedies we are not asking the court for any rabbit he is under arrest all they point out very correctly that we have no remedy under arrest all there is no breach of duty under arrest of for amending the plan that's between the employer and the sponsor the now counsel points to a number of remedies that we ask for in the complaint as indicating that we cannot maintain this action again they confuse the right to contractual right with the le frankly we aren't sure what when it is appropriate in this case it is so unusual we have asked specifically in our complaint that the court quaffed remedies that are consistent with our russell have no remedies after claims by an employer in this situation there are all claims by people either having expressed rights under law or parties claiming they have express they amended the plan without talking to anybody to provide for arbitration there's nothing in the plan when we signed the contract that provided for patrician we've not we have we've not of agreed to arbitra benefits which we're going to have to pay for it can't be the law that the employer is it is subject to the wilm of the sponsor as to how much it's going to pay three tyreese it just cannot be  all the fact that there is no factually similar case law out there does certainly indicate the unusual nature of this case but there cannot be a right  remedy here or rest of would if in fact employers could not have some notion of what their exposure is going to be before they enter into in orissa plan they would never do it asked for alter varis plan a claim we didn't think that when we entered into this agreement we were subjecting our corporation to unlimited liability we didn't think we were going to do that but if the court says we have no remedy and that's effectively what it said then surely that is ultra vires we acted outside the scope of the authority that