it please the court of baltimore county for decades have been deducting too much money from the paychecks of the of the employees who were older when hired and the county should have known one hundred seventy county did not comply with that decision it continued to make these unlawful excessive contributions so these should be for the district court was what relief should be awarded to compensate the aggrieved  employees who have been receiving less take home pay for years and the disappearance answer was a zip ok that was wrong because back pay is a mandatory remedy under the a d f a when congress enacted the a it chose to follow the f l s a remedial provisions it all for them slightly but it that's what it that's what it had opted and we know from brooklyn savings bank and other decisions that back pay is mandatory under the f l as say so it should be mandatory under the and they haven't cited and they said because congress adopted them selectively when it did actually take something without changing it you should enforce it the way it was inforced under the f l s say  him the authority to do y as may be appropriate it doesn't say that them it just doesn't say these words that damages are mandatory doesn't say those words does it that's correct right so in looking at it does say a malice owing to a person shall be deemed as unpaid minimum wages for purposes of two hundred sixteen two hundred seventeen and also that you look to the you are right and how we should know you are right in the way you would say we fall ill as they make this mandatory now i thank you i think i understand the question your honor that for sentence is not the only sentence in that subsection the sentence starts the subsection starts the provisions of this chapter shall be enforced in accordance with the provisions remedies and procedures in section two sixteen ok so we look at two sixteen to sixteen says the f l s say any employer who violates the provisions of twenty two or six or two or seven shall be liable to the employees affected in the amount of their own paid say that  say any other such equitable because you say what's above is mandatory that's correct yes yeah because you have to because i agree that you say the top orders mandatory f s l a type we leave this mandatory and you have to read this to carrot in as i suggest to make it make sense any other such legal that's what you think it that would mean you necessarily lose the case i'm just asking you that because don't you think that's what that means the court it means any other it doesn't mean anything that you thinks appropriate because what if you think order to in order to give those two sentences the most the most meaning in other words you couldn't you could say what and why the other option and that's exactly right just makes my point i say any other she says a such additional yes jane point i think yes you would agree on that the same way that i'm asking that's one way to look at it the other way to look at it would say the bottom sentence that fall zone it modifies the to which says as may be appropriate in fact as i think the district court looked at it and said that modifies the top so i'm not really limited in bam the mandatory provisions of  there's two ways to look at the statute why do you say your way is right and how we should look at the most reasonable way all the way to read the statute because when a court is interpret ing a statute and and two provisions in two sentences in the same subsection appear to contradict each other or the second one appears to overrule the first one the court should strive to interpret that subsection in a way that gives each of those remediate and protect the victims i thought that's what your argument was going to be and that would that would account for why you have to in a remedial statute why you would have to read it in a way that you suggest is that you know what you think i'd be happy to argue that as well but let me let me point out in dition that one too that five of the cases that we've been that have been discussed in this brief have referred have used the fourth sentence lorillard itself used explicitly does not require that it's not they are it doesn't require that because it doesn't say such additional you saying there's some other there's some other case that mandates in this case we read that as additional it may be the right way to read it or use it the statute itself and i want to belabor this too much more with you but the statute itself does not say that you read it as additional i'm not saying that that turns out to be wrong but statute doesn't say that number one and number two i'm not aware you say there's a statute i made a case that requires us in this context to read that as additional relief that requires us to nobody there is mandatory and i'm sure you want to read this as saying nothing in that second lower sentence whatever since it is a with or whatever nothing in there overrides the mandatory nature of the top part of that statute and i think that's required is a matter of of principle statutory construction principles we need you don't want that you don't read a third fourth sentence in one subsection to negate the first sentence in the subsection if you don't have to if you can give them both maximum force yeah but yes yes the maximum force and that's stuff that i think you look for in a review that you would try to accomplish the purpose of the remedial statute which is to read it in a way that most protects the victims that the statute is intended for and that that's what i think how for back do you say damages go in this case how far position i think i think the district court would have been well first of all i don't know i don't think latches properly applies because this court held in line is why is partnership to watch the theory under which you say c you know sensibly sat on a case and reasonably and so we're not going to pursue it but it seems to me that if the statute requires that if it's mandatory as you argue and i think you make a very good argument that then there is no basis what's the basis for saying that there is no recovery for the period of time that you see was not diligent pursuing because while i'm trying to understand how your arguments go right because because when i say that when when we say that the liquidated back pay is mandatory under the a da that means that the have discretion to decide which case i'm i'm going to take what i'm going to charge what and what kind of send some i'm going to see and you've chosen in this case that these people were denied their benefits because of age going all the way back to  whatever that they were they were they were required to pay too much for their benefits and so you think you have some theory on why they shouldn't get everything they're entitled to if in fact you're right action we just don't think they ought to get paid what they are entitled to and what they've lost what's that russia now i know you that's the question but it strikes me as a little bit on for you to say and the beat looks like you may be on the winning edge of this that in fact there's there was a just combination we've been through that and these people were discriminated against us occasionally bowing to us and over you know why we're not we don't we don't get it we're not pressed to make them whole it's just too bad on banned by some doctrine that we can't do it rather than just discretion what you've just said is your agency has decided they were discriminated against we've said that repeatedly in this court they discriminate against we're right you said we're right but never mind we're not interested in making them whole that's what it sounds like to me because just as as a da has to take into account the public interest and public interest here the public interest is is not bankrupting the county well but by the way if you were a person who was discriminated against because they were age and you didn't get your benefits and others did get their benefits and the county has a system why should the burden of the air about the county be placed on the back of the people who were discriminated against didn't what theory makes them right but then you say if you're right in your theory that you there's mandatory they're going to get recovery why should that be balanced on the phone  on the county to make additional contributions why is that balanced on the backs of the people who have already been victimized it makes you no sense to me you are commencing your honor in the the relief so your position is you won't all damages you represent the e e o c your position as i read your papers or they were discriminated against because of their age but we don't know all the damages that otherwise they would be entitled to because of our discretion as an agency we just don't want to public interest other than protecting the people who are discriminated against and if there is a public interest why should that public interest be on the back of the victims i think it's probably cancerous would be something like we want the fund to continue and stay viable or should that be on the family who did discriminated against these people why is it on their back and not the county to make it whole and why would you say we it's just that there are many innocent parties involved there are other people who have been who have been paying into this pension fund who deserve to get who deserve to get their pension benefits new wouldn't if the court awarded such a high back what i think about that second these are people who've been getting their benefits properly so where is the on in the class and to be sure that in that they not only got what they were entitled to in the past and they get what they want in the future our clients will get what they should get in the future but not all they should have gotten where is any equity and there was any fairness in that i just don't understand it the only it the only reason that that would that you might want that to happen is a matter of justice is that if you gave them all they deserved for the past that bankrupted the fund and nobody gets any pension benefits should that be why shouldn't i just ask in there why shouldn't there be a remedy baltimore county discriminated baltimore county is on the hook for those damages and their obligations to people now in the fine why does it fall on the victims rather than the actor  people what they should have paid and hope to pay in the future but the people you represent have not been treated fairly but just a part of that they just has to weigh life goes for these poor people and there's just how it is i guess the commission seeking all we all are doing now is we're asking is this court right that they did nothing wait one second i thought you've indicated that you for certain years you were not going to seek recovery for those years am i wrong about that that's correct why you get upset that's it that's what you said i said you decided you not want to speak for certain years yes and this court does not need to address yet what we're going to see we haven't gotten discovery to figure out what we want to see you said what you're going to do the correct answer mr m charge that you shouldn't be addressing remedy at this stage what you've done is venture into the area of remedy setting up a tensile conflict with your legal argument  that is mandatory and now by discussing the remedy rather than liability your argument your statutory argument of shall be liable is premised on the liability to pay not what the proper  remedy is and it seems to me that you're blurring the line by wandering into the area of remedy when you have been focusing and i think properly so on the issue of liability and why do we even need to consider the efficacy of the remedy now how it would play out terms of the pension fund if the statute if your argument is correct as to liability that's essentially  discretionary you just report i think do you think i made up knowing what your position was in certain years did i make that or i thought a river that i thought you make that argument or say that in this brief in this case don't you yes i did make sure i'm i didn't say you did your i think you're just pointing out a really good contradiction in what you're doing you're wandering into remedy when your argument is premised on liability well there the issue is whether there is a remedy at all not what the remedy will be thank you  thank you may it please the court from the outset i would like to note that this is a unique case involving a novel legal issue it was first raised by his honor judge shed that's all that footnote somehow i have thought of something nobody else had ever thought of or something like that i was my impression certainly the e e o c hadn't thought about it because they never raised in the district court until we were here at oral argument  so that's i think important to remember and the decoupling issue it is important to remember why whether it's not important as to whether or not there was a violation is there oh age discrimination what does that have to do with the remedy for that age and it ties in with supreme court law which i will get to in a moment because that is one of the factors that the supreme court consider account as to whether or not the individuals running a pension plan are think that they're doing something wrong they think they're doing something right and they based their decisions on actuarial advice and it all comes liability in this case has already been determined when the supreme court dot denied certain after the second appeal this court that issue is no longer on the table why aren't you liable to pay the full now no we're not no i'm under the statutory language well because first of all this is not a wage case involving minimum wages or overtime compensation nor is it the typical a d h a case where someone has been fired because of their age someone  not been promoted because of their age where someone has been failed to be hired because of their age instead it is a pension plan case and that makes all the difference the plain language  of them what ends up happening is as judge said said the provision that provides the court with jurisdiction in the a d f that is jurisdiction means power to grant such legal and equitable relief as may be appropriate that modifies all that goes above it in the a d n a it is the overarching principle the governs this case well now what about the what is the appropriate legal or equitable randi and if that actually provides you if a remedial interpretation dictates that the statute provides to no equitable remedy  you have to go first to satisfy the amount of the end paid wages and then there may be other relief with granted but all of this is leaving out the main reason why judge bennett decided what was appropriate which is the term in the plain language of the a da was what's appropriate right because he jumped to the catchall without looking at the earlier provision that says you gotta pay well i think you got to pay and maybe are some other relief that you can get you're not answering the question mr nolan mr on the question is if the statute to susceptible to two interpretations and one of them the remedial that favors the worker why are we not required to adopt the interpretation that favors the worker which would be in this case that baltimore county is liable and the additional relief paragraph is simply additional relief it doesn't give the court the authority to invoke equitable powers to negate the statutory directive to pay why is that not required under a remedial interpretation of the statute because this is a pension case a pension plan case and affords discretion to the court to allow to determine the appropriate amount of relief the and if the remedial interpretation of a couple essay is that you've got to give them money then how do we how do we end in your direction i don't know if the plain language of the a d f a says that the judge had the discretion to grant such legal or equitable alif as may be appropriate the judge then looked at supreme three supreme court cases granted they involve title seven but there discrimination cases and liability was determined and notwithstanding that liability determination all three cases the supreme court said we are not as a matter of public policy we are not going to burden the pension plans a nice cases with retro act mandatory rector active relief that's title whatever it means must endure to the bill for the prevailing party correct no your honor because in the context of the sentence it says the court shall have discretion to grant such legal and equitable relief as may be appropriate that means if the court determines it's not appropriate because three supreme court cases say it's not as a matter of public policy something you do to destroy a pension plan then it's not going to be done it's such a relief as baby a program so you read that  them your honor it again i know it's repetitious not politics but i ask the question that the three supreme court cases all involve the exact same scenario in which it was determined that there were unequal contributions that's manhart that's escapes and they said we're not granting and this is a monetary award same thing in arizona versus noris there was lower benefits for females they said no we're not going to grant retroactive monetary relief same thing in florida versus long sex based options but we're not going to grant retroactive monetary relief those are connections with i'm sorry  different and in fact there were the cases the man our case was nine hundred seventy eight norris was eighty three and they still said under the circumstances present there that the people in the spring the plan thought they were in compliance with man hart but apparently they weren't so we're not going to grant you but you got it man hart right at page seven seventeen title seven does not require a district court to grant language in the f l s a says any employer shall be liable or any employer shall be liable want to second scenario they're not talking about the power of a court the a da talks about the power of a court and says the court has the discretion release or such additional relief that's the way he reads it but you read it as if it says basically not withstanding any other provision of law all the court has the discretion to grant any such equitable or legal relief that's correct and i would also and that's the point if i'm up point is as i see it to make it really completely gemini you have to carry it in relief or do we care in the end while really the e e o c provision is you have to do that and you can give any other additional relief as necessary and and that's why i go back to and i think  but this is remedial title seven is a different issue will be a look at this issue as i've just laid it out for we've laid it out with question why would we why would we decide based but then we would take less expense if we'd rather than the more expansive reading which will do which actually doesn't do any more harm to the state to the language than the restrictive reading does because either way we have to edit it we have to sort of judicially edit your article we go into remedial  strict because again your honor it's a pension plan case and i would like to just give a brief quote from a man heart in the same quote was repeated in long so you're certain the us that the dish it what you say because this is the engine which i take it as other factors that play the pension part comes in in the language appropriate and in determining what's appropriate you look at the fact that this is a pension case and then you look at the three supreme court cases and the principle is exactly the same it doesn't have any difference the quote is from man hard and long quote the rules that apply to these funds pension funds should not be applied retroactively unless the legislature has plainly commanded that result the a da does not command that result and that's what the supreme court has said moreover since manhart was decided in seventy eight norris was decided in eighty three and long was decided in eighty eight congress has not enact that any legislation that mandates  sixty seven the a d a s passed new statute the language that is i think is plain as plain meaning which we've talked about is in there because they say look this is new we're incorporating  have to finally say to the court you have the power to do what you think is appropriate as a judge that's what there's all the plain language especially this one why is it do you think we i know we see some cases in some context that if if discretionary that we need to think about other factors like the fund and other recipients but you could have a claim against a company that m up any to borrow other money to pay off the damages or maybe to maybe even go bankrupt why not why is there any policy that people who have been discriminated against bear the burden of being discriminated against and the burden of not getting the remedy because other people want to benefit why was that so it's explained in detail in the three cases your honor i know but why is that  i know i know what those cases say but if this is true the baltimore county is that old here why should all the more can only be responsible not the fine but baltimore county be responsible for either making the payment or funding the with their contributions to the retirement plan funded in a way that makes up for the mistake an error of the baltimore county made in discriminating against people because of age why shouldn't they be required because this is the analysis is and and judge bennett found the county had reason to believe that its pension plan contribution rates were lawful prior to the denial of cert in this case the counties a me stop and say i don't see how you could have one hypothetical question based on math and it's clear to me then it's been clear to the courts that it is age discrimination i know you had actuarial said it wouldn't but they were just wrong well your honor the the fact is that the whole there's no there's no law there's no statute there's nothing anywhere that says if you and this is what judge leg said and his second decision you have to independently lawful proof that pension plan provisions one is the contribution rates and you have the early retirement option they're both lawful and it was an unintended he was going to sell off the state forest in alabama he said you can make no war a remedy that a federal court orders and if i have to i'll sell i will order state property be taken and soul to  sure persons rights of indicated you know know about there but it seems to me baltimore county should be the person who comes and this should be an argument this is what i don't understand i'll stop alex right in with a question people discriminated against at the same time other people in the plan were not being discriminated against those people weren't being discounted to gates got their money those people now we have to say well because they would they want their money in the future the people who are discriminated against sorry we just can't make you whole because it wouldn't be fair to take money away from people who won't benefit in the future will they are they it is not fair everybody got their benefits or honor there was never any claim that benefits get as much as what they had to pay more had just spent they shouldn't have to or they didn't get that it was s'posed to do with the amount of money that may be involved here your honor every option is open as to how that would be accomplished more than likely the money would result in increased rates for everybody who is a current employee would be paying a higher rate that's one of the realities of the situation even though it's baltimore county the defendant it's you have a separate pension this advantage but it anyway what what do you make of and i guess you're happy to see what appears to be the e e o c stance that they don't really go after you for all those years when i see it online is they want to say we have the discretion not the court the words the the court under this stuff or second let's say they're right on the judge that a court doesn't have the discretion what do you think about their view then well i get don't you i think yes because you know works for them to say if you mess latches to what do you think that is latches is a slippery item i would say that the trend is what i ask what you think is the justification you think they're legally so that whether you know even if the district has discretion over or how much back pay to award it has to do it in it has to make a decision to effectuate the purpose of the of the abuse the district court abused its discretion in deciding that those three factors the union's complicity the the supreme court decisions and and latches that they justified granting no relief in this case or did they defect with the purpose of this chapter you said that make your argument you think that means what it means that that limits the relief that may be appropriate it means that it rules out looking so that if this court reads that you know six twenty six b if the fourth sentence to read to you to avoid the mandatory nature of back pay according to the first sentence it as your own and then it the the county relies very heavily on the three supreme court cases  the other one was it was revolutionizing the pension industry ok because almost all pensions use sex based actuarial tables and so what they were doing and the supreme court point out been in  first one a man hard that that that this was going to affect fifty million employees forty billion dollars in assets ok and the supreme court also depended heavily on eight it's belief that that the pension ministre jurors could reasonably have believed what they're doing was lawful and that in fact it would be unlawful to fix it and that they would comply immediately with the new rule ok here here we have a case than facts only one pension fund that we know of in the country and we know that baltimore county doesn't comply promptly with the law  never thought about it it says some time thinking about things in my life but i just got out a piece of paper and a pencil and looked at the numbers and just said that is the same right to me and it be quite frankly is straightforward that this isn't very hard to figure out that there's limited use but yeah i i i i don't know why they interpret it that way for from our point of view all you were doing was giving a specific