good morning may please the court joshua bacharach i represent the defendants appellants and refer to them collectively as son life the district court in this case committed to significant errors that require reversal that decision first the court reviewed the claim decision or the claim to know vote even though there's a grant of discretion here and the second even if it could be reviewed the evidence here is so overwhelmingly contrary to the claim as to make that decision clearly erroneous on the first issue the court remain ended the claim there was an earlier lawsuit the court remained in the claim for further review by sun life that remained order said nothing about time parameters for a decision it just said that sun life will consider any new evidence by by the claimant and then render a procedurally at that point some life was under no time constraints it was not under time constraint however i might add what the court could have done or what the claimant could have done if they thought that we were acting improperly was to write to the judge and to say to the judge they're taking too long there was nothing in the order please set forth a time frame for this to be completed we would have responded by saying your honor unfortunately this is taking too long because she has not cooperated at all and in fact we filed a motion to dismiss in which we  argued that the company took more than sixty days to do anything and that it was only considerably after that that the claimant  filed and and reminded the company that it had asked not exactly because the court order said we were to consider new evidence by the claimant any new evidence she submit so we're waiting for her to submit evidence and she she didn't write to us for about two months as soon as they got that very promptly they sent out of with an authorization request so they could get updated evidence medical records and she refused she first submitted an altered first we have the fact that you have to look at the language in the regulation itself and that said that a claimant may appeal a denial of benefits the regulation only applies to an initial claim and an appeal well there was an appeal right now there is none but i'm telling you we're not trying to be unreasonable we are trying to do everything we could that's reasonable as your owner said we were mouse trapped so what the court should have done even in giving every deference every benefit of the do to the claimant what the court should have done when we felt our motion to dismiss after the second lawsuit was filed said let's take a step back claimant you cooperate and then once that has all happened you wonder if you wouldn't attend an exam you're going to do that you won't provide an authorization for the for nine months you finally did ok let them get the records you get all that information sunlight completely review in sixty days and then make a decision after we get all that new information this is an equitable statute  on right no it's the decision of this court in a case we provide a supplemental thirty last week quickly versus citi group and the site to there is five twenty federal pen accepting obviously it's have to adopt that view to give you the remedy you think right nonis earlier i do think that's correct but what the district court could have done and did not do was to say this is an equitable statute based on equity and even in the halo case in which the regulation clearly applied they said that there are some situations where there could there could be exceptions to the strict deadlines and this is such an equitable situation let me come at this an seven discovery letters i write they were trying to get something going and by the way they'd integrated our well they didn't agree to it so there was no time frame we were trying to do what the district court didn't do and that is get a timeframe a set time frame and so we proposed something and they refused to to to accept it on january eighth two thousand and eight she expressed leanne's from ruling based on the evidence in the record is that right that is correct why couldn't reshoot decision that because it wasn't our eight years right or because it wasn't until april your honor that she provided the signed authorization to let us get records and this is important to honor because yeah that may be but you could have it but i would say also that if you look at the evidence one has an interest in stalling of speaking she had an interest in cutting off for review she had an interest in preventing us from finding doctors like dr mon her thirteen ninety nine of the record the court's failure to consider that and the five other doctors that she treated with who disagree who said i can't find anything to corroborate her complaints with what she's complaining out that renders under any standard of review that decision clearly erroneous what's at stake you are we looking at sixteen years of benefits it wasn't all she turned sixty five or sixty six so i think there may even be another few years left on that  but yeah there are probably i think two more years left on that so i would think nothing stops you from conducting another review but then she but then she would get benefits up until today and that is instead of actually using the ministry of process which is entirely under your control to make a decision of some crime but it's not and your honor i do want to be weary of the time here and return a little but i would say this she was the one that  the system here she is the one who continually failed to cooperate even even the point he said look there's another doctor who wants or a pharmacy that needs a specific authorization i gave you a general one i'm not going to give it to you she's the one at manipulating this throughout she could they have denied the claim based on a failure to cooperate in january they maybe they should have but she's the one who filed suit to cooperate is a perfectly good defense and and i can't see if it and given included it later and from in the answer it was after we filed our motion dismissed we filed a motion as miss based on failure to cooperate and said at the very least your honor remained it back to us with instructions for her to cooperate give us a deadline we'll get this thing done and judge refused is the first time around the second this is the second after her failure to cooperate we said that and the district court didn't hear we could appear we could do no no right and she could do no wrong on her claim on the and that she f actually there was if i'm not mistaken there was a after the fact after the complaint was filed i know your honor i understand but equity has to come into here i understand but you know we are dealing with disability insurance  and and and and this is delay of ten years and people getting benefits there equitable problems with that as well would you agree well there would not have been this lengthy delay if she had cooperated it would have been a claim decision if they had found for her she would have gone benefits if they didn't the judge would have to say and by the way we're not respond unfortunately there was a lengthy delay here by the district court in deciding some of these issues were not to be faulted for that and you know i'm not trying to fault the judge either i do think is ultimate decision was wrong  not necessarily by the delay by her behavior failing to identify all of her did not get a lay person well yeah actually i would say that my client has incurred you know a lot of fees because of this is she was actually working she admitted on a loan application that she was working with but there's a finding that she was not the judge that was a clearly erroneous finding we have a dun and bradstreet report that listed her as made the finding i would say it's a clearly erroneous finding when her argument was this is this is interesting her argument was that i filled out the loan application but they put false information and forged my signature and therefore i filed a complaint against them so we called her bluff and we obtained a copy of that lawsuit the only claim that was made was that they did not disclose all of the costs of the loan so she lied to a judge in her pleadings saying and i'm not blaming counsel here this is what he was told until we found out the truth she claimed that she was they committed fraud on her we get the actual complaint and there's nothing like that in there that makes it clearly erroneous you  solon let me let me just first address the issue of whether they should have issued a denial for lack of cooperation and actually that is a argument that they're bringing only in the litigation in april of two thousand and eight they are very last communication to the claimant was that they were going to review the medical records by reviewing doctor and then schedule a i am me after that also not the words of a company who thought that mrs solon was not cooperate if if at that point they decided that she wasn't cooperating they could very well  that after the remained that happened the remand was in two thousand and seven that was actually three months after january two thousand and eight when the plaintiffs submitted her evidence and ago on april second two thousand and eight so that would be six months after the after the remains right and that's so on the joint appendix page fifty four and i'm saying at that point if they really believed she was not cooperating they wouldn't be asking for an i am me they're still asking for and i me so in their own mind they weren't convinced that she was not going to appear at an end i am me in the future but even at that late date they did nothing to actually schedule and i mean what to do the precursor of the m r to do a vocational evaluation and then granted the plaintiff the opportunity to submit additional records there was nothing in that remand order that gave them the right to do and i am me to gather records do whatever they did they only had the right to do a folk locational review and to review the records that mrs sol in prison presented and all of that they vocational review conducted by mrs solon's expert was submitted by january  but by april two thousand and eight still more than sixty days before the case it was reviewed they sent a an altered medical authorization so by april two thousand and eight they had everything they needed to do their review and they did honour's my name is meghan hansen from the u s department of labor as amicus curiae in support of plaintiff epilate this is a case about a plan fiduciary who failed to provide an answer to participants request for benefits for over nine years since the court remained in the claim to the plan the secretary's position is that a remained a claim should be treated by the plan as an appeal and subject to the timing rules and other requirements of the secretary's claims claimants then that would have been appropriate yes but that is not what happened here here there was no answer at all suppose the judge said all right it's been one hundred eighty days but that's or no that's not the case before the court hear them asking a hypothetical hypothetical is the one that's now before the coup respectfully honored that that question was not briefed on the secretary doesn't take a position on that the secretary's position is that when there information there remained order as to the timing rules the timing rules within the claims regulations should apply and should require require the claims a minister to produce it is the judge's remit is it not it is your period of time that's a hypothetical i understand your honor accuse me just let me finish before you interrupt me these hypothetical questions what we're trying to do is just to cast the boundaries of your position it happens here every day i understand your honor unfortunately the secretary has not taken a position as to that situation and i cannot answer that question could you tell us what the position is  provide an answer within the now under the current rules no more than one hundred five days under the old regulations no more than sixty days unless another extension is required it's important that the language of the regulation  interpretation also appropriately balances the equities something that we have heard a lot about here it ensures that the claimants receive a timely response to claims but it also takes into account the what is the claims in a straight a ministry or that actually issues a decision upon remain an exercise it's just a question unlike what happened here is provided significant difference in the court it is only when the claims ministry or fails to provide any decision that denote a review by the court is appropriate as this court has recognized in halo the congress and trust of the department of labor and not the courts to issue a claims procedure regulation that appropriately addresses aristos competing claims as  can first give a period of time in a remain and water and then provide sixty days for review or whatever then the regulation would apply and then we're hearing them take the exact opposite position some kind of surprised by that they did take a position that the sixty days of one hundred eighty five days applause well either regulation applies or it doesn't and here it doesn't i mean the regulation could say if a court it could i had language regarding any remained to the regulation and it doesn't i know counsel put in her brief that the government said that there's new language in the amended regulation which will be coming out shortly which deals with the remains but that's not true it deals with a remain and if a claimant hasn't exhausted heard ministry of reviews she did so exit we're trying to do what the what the statute and by the way that's what matters is the statute a full and fair review because it's equitable we're trying to do a full and fair and you think that after april two thousand a are unable to come to provide a full review of the solution on this matter that's correct because she would not submit to an i am me which by the way even the district court after the case came back the district court agreed that we were entitled to in order to submit to am me and just like her own daughters except for the one it found that there was no support for claimed impairments just like the surveillance and i see them out of time i would just like to just quickly sum up that the decision of the district court even under the no will review is clearly erroneous based on the loan information misstatements based on the surveillance based on her own doctor so what we're asking the court to do it enough has been enough we're asking the court to reverse the judgment entered judgment for sun life thank you honors thank you all will reserve decision and it's