appealing the dismissal of two of their claims in the district court and like to start with the one dealing with the excess coal account the tennessee valley authority retirement system established a special account called the excess cola account to hold money to pay for cola benefits specifically coal is obviously being a cost of living adjustments that are meant to keep pace with inflation and really only two rules in the big set of tea bars rules deal with with money being allowed to be taken out of the excess cola account tended to just says refer to ninety six and the ninety six says very specifically that in a given year the only money allowed to be taken out of the excess cola account is an amount not to exceed so it's a hard limit the product of a certain formula and the formula is what i will call the funded percentage of colas meaning the percent by which all the coal liabilities are covered by the money in the excess coal account in this time frame it was maybe thirty or forty percent multiplied by t v s yearly cost of living contribution to the plant each year t v a was supposed to give a certain amount of money to the plant to help pay for coals and the product of those two things would be the maximum debit from the excess cola account so what happened was in two thousand and nine the amended the rules and one of the amendments was to suspend the normal funding mechanism for the plan all the things and nine b including ninety six so from fiscal years two thousand and ten to two thousand and thirteen none of those rules were in effect the consequence of that was that without ninety six being in effect there was no rule that allowed any debits out of the excess cola account for those years so it was impermissible to take money out and even if somehow ninety six stayed in effect during those years s stopped making its annual cost of living contributions so if you put zero into that formula in ninety six then for those four years there were still no money allowed to be taken out of the excess cola account what actually happened though was that between two thousand and nine and two thousand and thirteen the t v hours board took more money than ever out of the excess cola accounted paid in all those years right the complaint refers generally to ninety six which is the the rule i just have been discussing but it doesn't go into that level of detail no i mean there's no real access cola claim that i could find in your complaint in fact you're asking that if we re mandate you be allowed to amanda correct well we asked if the court finds it necessary to reach the merits that we you know allowed to amend or that the motion to may be granted the district court didn't think that was necessary and they have not renewed their argument that we didn't plead the claim i'm just curious how can a district court decide a claim that was never plaid i mean the district court decided that it was properly pled in the in the order we are appealing from and said that it was unnecessary for us to men because we adequately capture that claim in our complaint and then the defendants have not renewed their objection to our complaint on appeal so what so what they've done is they've taken four hundred twenty seven million dollars out of this account when we believe you know the rules of the language of the rules do not allow any debits your client suffered any injury right they got what they were entitled to as a result correct we have we have not missed a cola pay me yet but there are three i can think of three major impacts that we believe now completely funded right they've shut that it down and they're committed to completely fund it well all we know this happened since the close of discovery is that they've eliminated the excess colon cancer we have no idea what happened to the money or what they were doing with that money so i can't really speak to that it's not in the record because it's happened to recently your clients haven't suffered any concrete concrete injury and i would i would disagree with that they haven't missed a cola payment but what's happened are three things that the first thing is shrank by four hundred twenty seven million dollars this fund that was there to ensure cola payments not just the next year or the year after that but for many years in the future your clients would have to be there many years in the future and that's exactly the types of things this green court has said is speculati  any beneficiary of the trust is allowed to come to court to sue for misuse of trust assets or to enforce the terms of the trust so we think we're really well within the normal standing principles that apply to a trust case but specifically that you don't have any interest in the corpus like they do in a trust case correct i would completely disagree with that at the bent the only people who have an interest in the trust corpus here are the beneficiaries of the plan those are the people for whom the money you don't have a vested interest in that well all the what they are entitled to is their payment every year they don't have a vested interest in the actual amount in the fund correct i think that's undisputed in this record well for certain benefits certainly if your pension is a specific formula and if you work there a long enough you do have a vested benefit in that specific benefit for colas not so much the specific amount of a cola but i would refer the court to for instance the  beneficiary was a contingent beneficiary the person would have gotten anything unless the trustee said so and the court said this this is an easy case when it comes to article three standing because even if you can't prove that you've lost the payment yet even if you're a contingent beneficiary you still have an interest in the trust assets and under what it said were in in scanlan illinois a beneficiary had an equitable interest in the trust property so that was different that they had an equitable interest in the property in the trust whereas here you don't have there's no at abbot and that you have an accidental interest in the excess cola bond i think that statement scan was just describing generally how truslow works and maps onto the article three standard if you're a trust beneficiary then you automatically by being a beneficiary have an equitable interest in the trust that's that's the nature of it the trustee has legal title to the assets but you have the equitable title to the assets but to make it more specific and concrete  so there's more to the story here than just that when they took the money out of the excess cola count two big things happened first of all if they take it out of the accumulation account which is kind of like the general operating account that pays for all the benefits if they had done that and that's what we say they should have done that would have increased what's called the accrued liability of the plan or the funding shortfall once the normal funding mechanism kicked back in after that suspension period dva would have been obligated under rule eleven to put that money back into the plan and to refund over a period of thirty years by doing it this way they basically let t v off the hook to fund the plan which is contributes again to a two a funding issue with the plan but even beyond that again we don't know if your client like your client we're tires next year they won't suffer any injury if something happens thirty years down the line but even now today or at the time of the filing of the complaint even the risk of that possible of that happening would be enough to to create article three standing but there's even a third thing so our rule thirteen  addition to the notice issues that we've bridged as a substantive limitation on amending the plan it says you can't reduce planned benefits that are covered by an accumulated reserve so in the case of cola's this excess coal account is a special accumulated reserve to pay for c when you reduce the accumulated reserve you lower the the amount of cola benefits that are protected from reduction on rule thirteen and you expose them to possible future amendments that could reduce those benefits and how do you deal with like his aircraft which says you don't have this interest right that's a supreme court case and it says any particular asset that compose a part of the plans general asset pool you don't have a right two why isn't that right on point well to pick up with what i was just describing with the amendment issues wouldn't address this kind of situation so what this did was it open the door to future amendments that would reduce your benefit you know entitlement under the plan which isn't that speculative what actually happened in two thousand and sixteen and this is in the record the put this in the record i think it's one of the declarations of patrick brackett in two thousand and sixteen when they eliminated the excess cola count what they did was they also lowered cola benefits they increased the eligibility age they lessen the amount that you get and that is made possible by the fact that they reduced that accumulated reserve back in two thousand on to two thousand and thirteen and shrunk that protection that those benefits will get  rule thirteen so as you can see what they did with the excess coa count in those years led the way to future benefit reductions by these amendments in two thousand and sixteen so that in our view really distinguishes the situation from some of the other cases your honour's referring to and they've cited of course a lot of recent cases that they seem to put pretty high bar for article three standing we don't think those really are very persuasive authority here because a risk has certain guarantees and protections that just aren't present we don't have any pension benefit guarantee corporation insurance from the point we don't have any minimum funding requirements like the rest of does that ensure that the plan is going to be funded to a to a decent extent they give peace of mind to the beneficiaries that they're going to get their benefits down the road here that we just don't have those backstops so taking four hundred twenty seven million dollars out of the fund really does increase the risk in a way we might not in a recent plan so we think that for these reasons article three standing to object to the misuse of statutory trust they were on solid ground in terms of article three standing i do want to make some mention of our other claim which is the thirty day notice going we just briefly argue that apply we've already held that right and there is very case that at essentially true but but it uses the same language as the a p a how would it work the thirty day notice would be given of the proposed amendment t have the opportunity to veto and the members would have the opportunity to comment and then i presume that the plan would then the board of the board would consider the comments that members had made and then perhaps revise the proposed amendment to the plan possibly i don't know if that the rules will speak to whether it has to be an up or down vote on the original proposal or whether it can be amended at that time certainly in the a p a context you'd find that it gets changed a little bit might come out differently at the end of that process so i'm not clear from the rules you know how it has to work at the end but we do think it's clear that we'll buy same notice for a proposed amendment that the notice has to go out before a final decision is taken so i final decision would need to be taken at the end of the thirty day period exactly and after that's done that is not proposed anymore it's just it is or it isn't it's rejected or accepted split time i'll take ten minutes in which to me take five i first want to address the standing argument on the access cola claim your honor the plaintiffs have not pled a concrete injury they haven't proved a concrete injury they inform the district court that they did not need discovery to prove an injury in this case all they have is speculation that somehow someway at some point down the road their plan benefits their vested plan benefits might be taken out it's been used for benefits for cola benefits for the plaintiffs so there's been no no improper conduct alleged at all nor could there be theoretically this is a defined benefit plan versus a defined contribution plan and as judge the par pointed out the hughes aircraft opinion the supreme court the rw opinion and most recently this court's opinion in china and has rejected this common law trust analogy given the fundamental difference between defined contribution and defined benefit here there is no claim nor could they be a claim that the plaintiffs benefits have been affected or could be affected the only way they could have that kind of claim is if there were a excess contributions that t v a makes it's not earmarked for colos there are several situations where those funds can be used in t vs discretion to pay benefits other than colas and this court has already held that cola benefits in any event are not vested and have not been vested so what the supreme court in lieu of rue and hughes aircraft have said is you look and you see what the plaintiffs vested benefits are and if there is an effect on those benefits because that's the extent of their interest this is very unlike the situation in scanlon the seventh circuit case where there is a an undetermined equitable interest in the body of the trust the plaintiffs don't have that kind of interest here the only interest only concrete interest i have is in their benefit payments and there's no proof that there's any risk at all to those benefit payments being at risk so without without that in the light of this court's excess and they don't pay fines in this schelm land where judge clay said they weren't they paying fines in their yes but the benefits were set it was a health care plan as i understand it and the benefits were set and  clay said well we know you're alleging a harm to the plain and but you haven't shown any quote of the language from the supreme court route that says you haven't shown there's a risk of default so you haven't been individually harmed under spokeo and so that's what i wanted to get to and isn't your opponent claiming it the end in two thousand and sixteen they've shown that there was a problem as a result of this in other words he's saying in two thousand and sixteen we demonstrated there was a problem as a result of them taking money out of the excess cola they are giving us what they should give us there is no evidence that they have been affected at all and he way i'm not sure what my friend is referring to might be referring to his claim that that cola benefits if they're not vested which they lost on previously then they had accrued and we had denied them their accrued benefits the district court denied their claim and they have not appealed that this court nor should they because those benefits had not been determined and under this court's precedent i mean that's that's a loser because the only arises when those benefits have been determined so there's only speculation that there has been any kind of concrete harm here  and even if they could theoretically prove harm there's nothing in the record nothing in the complaint establishing this this this there are radical harm that that about the point about a risk that arista cases are different in kind because they're through the same concrete injury requirement would apply there as it applies here no i thought their point and correct me if i'm wrong i'm sorry if i'm wrong but i thought your friend's point was that the insurance that exists there address any theoretical shortfall that might occur and since we do have a pretty stable ensure there and you know the funding ratios for the plan compared to other public pension plans are good varied between seventy and eighty percent currently right now above eighty percent in there's no no proof that we're anywhere close to a risk of the plan defaulting and subjecting the plan of spin if it's to any kind of risk so without any harm the court should just dismiss that claim for lack of jurisdiction under spokeo if if a court does get to the merits i'd like to make two quick points your honor one is the district cou this provision rule thirteen just provides on the notice claim out talk about briefly just provides for notice notice and it's a it's the same thirty day period notice to bars to make a change it's just to enable them to make changes to their retirement and investment plans why would a rational person make a change if they knew that could be toe the proposed amendment during that thirty day period so a plan member would be foolish to make changes on the hypothetical change that's being proposed by the board i agree with you notice to the plan members that i know our position is that that one notice is provided at the time that the board passes the amendment and that's called the proposed amendment right to the proposed amendment yesterday given to deviate in the members yes my point is i don't understand what worth the notice to the members is if the only idea you can come up with is that they could make changes to their plans for themselves there are are there but they thought it would be smart for themselves when t b a can veto the proposed amendments so no sane person would make  investments if the proposed amendment was not going to go into effect well there are situations where you would plan to play and to make those changes in place of defense that argument to thirty days isn't even long enough to make those kinds of changes whether it's investment changes retirement changes in the two thousand and nine and then that was the real key moving the retirement age from fifty five to sixty that requires more than thirty days but there's no language in rule thirteen suggesting that the notice has to be given before the board votes the reading that i would think would be a rational reading is that the board  on a proposed amendment to the rules and then present that proposed amendment to the members and they have thirty days and then at that point if t b a has not vetoed any such proposed amendment then the board should decide we're going to go ahead and vote the proposed amendment in or because the members have shown what a stupid amendment is we will not put into effect the proposed amendment if i may i say i'm out of time respond the reason i don't think that's a reasonable construction of the provision is the last clause in rule thirteen which says this is simply the t v aim by notice in writing addressed to the board within said thirty days the toe which the word  such proposal moment in which it shall not become a fact of what they do nothing it goes it goes in like the president exactly that's exactly right if they don't veto it it shall become effective and they're using the word proposed amendment here so why isn't a logical reading i understand that you might not prefer the wires in a logical reading that there has to be some action subsequently by the language that we have in the provision your honor implies just the opposite that it would become effective if not vetoed by the t v ad and even if even if i don't persuade you that that's the only reasonable adopted inconsistent interpretations neither of those factors is present here deference is the norm here and we've gotten one hundred thirty four amendments one hundred thirty four amendments to tivo as rules and regulations and the record not a single one of them supports the plan or straightening out a single one all of them contemplate notice post vote and so given that consistent interpretation even if there is an ambiguity which we don't think there is we're entitled to deference district court with respect to reading section thirteen is the use of the word veto the use of the word veto means typically the veto power is defined as the power of one governmental bridge to prohibit an action by another branch especially as as just the parson the chief executives refusal to sign into law a bill passed by the legislature so it contemplates there's already been an effect of adoption and then it would be subject to veto and if that veto power become effective the it is the proposed amendment so if you read the construction and as the district court did plain language it is that proposed amendment that will become effective barring the t v s veto power and i will point out that in the first appeal although the panel did not decide this issue they looked at the context of amending the rules and on page five sixty five seventy one of that opinion and i quote they said t will to veto power amendments proposed by the board become effective only if the t v a design to exercise its veto in thirty days looking at this language the previous panel had the same plain language construction with position on appeal that in the first panel decision the court was not fond of our because there had been some conflicting uses or confirmed recent conflicting decisions with respect to the meaning of whether or regulations you used the same canons of construction you would with the statute except you moved to our deference after plain language the panel the previous panel apply that our difference was that it wouldn't work here there was flip flopping again as my codefendant argued there has been  this is the interpretation there the plaintiffs have been able to cite a single time in the record in the history of t v force where the t v board adopted an amendment proposed it and then after thirty days came back and members can change their individual situation i would say that it can serve that purpose and it would serve it here because if you had members who were in a position maybe they were fifty seven fifty eight fifty nine they were considering whether or not they would retire that they would have some decision do i want to retire now and have cole eligibility earlier because it would have been available to a fifty five or do i want to wait till sixty so it could serve that purpose are the retirement system proposed an amendment that will become effective subject to tv's veto you get notice of it so your way or third changes it doesn't have to have any meaningful impact on that particular moment but the members are given notice th retirement system is changing their benefits could be impacted by that and i'm getting close on time if i could have just a couple of extra seconds to address excess colicchio the excess cola account is not a reserve section five of the rules this is contained in our brief says that the excess cola count in the event of a plan terminations would be dumped into the accumulation account and then used to pay for vested benefits the district court looked at this issue below in ruling as my my colleague argued earlier in ruling that coal is on a protective benefit under either of the two provisions of section thirteen so in the first appeal the panel held kozar not a vested benefit section thirteen also would protect reductions of accrued benefits that were subject to an accumulated reserve held there for and the plaintiffs argued that this excess coal account was an accumulated reserve held to protect colas because of the six circuits intervening decision in the fraser case the district court held these article rude there's no protection and obey the way it's not a reserve fund because it can be used for other purposes plaintiffs did not appeal the decision that these are not accrued benefits codes are not accrued benefits so they couldn't be protected in any fashion under section thirteen of the rules your honors i would request that the court affirm the decision of the district court beginning with the notice claim this court in ohio department of human services i think and i believe this was in the one nine hundred eighty s said that the manifest purpose of the a p is notice requirement which is phrase similarly to this one is to get people affected by the proposed amendment an opportunity to participate in the room making process it's not just a heads up it's an opportunity to get involved so the agency can make a good decision and we think that even though it doesn't say so in so many words neither does the a p a we think that is also the manifest purpose here the word veto and the become effective way in which in the in rule thirteen we have addressed that in our brief we really don't think that that's consistent with either reading the proposal is really the critical language we cited a couple cases in our opening brief in which in the ministry of context the d c circuit in a circuit court actually used the word veto in the same situation we're talking about your brief you respond to their argument let's assume you're right on that and there's two possible meanings they argue well we better give in deference because of if you want to elaborate on what you say in your brief on that sure well first of all the divorce board has never sat down and deliberately said gone through the language of the rules and done that kind of deliberative studied interpretation that's normally given deference what they're saying they have is a practice of giving notice a certain way which just initially doesn't carry as much weight as a studied interpretation and it also point out that the practice is not perfectly consistent we've started a couple instances and i can give the bates numbers for this seven seven four eight and t bars over seven seven two one two examples of notice that although it's not noticed like we say it should have been given is definitely not noticed like they say it is the consistent practice for seventy seventy years so back to that historical you know that they've asserted in the last seventy years they've always done it this way and you have no evidence to the contrary what i did to two bits numbers i just gave or all of the way judge large and they've asserted they've never done it they've never they're right the thing that's great i do not have an example that i do not have example where they've done it our way the way you i think you're describing what they've done in different ways and so i think at the end what they're asking the court to defer to is bear conduct this is not totally consistent when the prior panel in this case has said you know this really isn't the kind of situation we give our deference to you would say for the same reasons we gave previously in duncan our would not apply direct you know i recognise the veto and should not become effective could be read either way that i don't think personally cut either way it's really the proposed language that does but with the excess cola can we think the lame just very clear and i don't really hear much of a rebuttal to what ninety six says and the undisputed facts about the absence of those yearly cost of living contributions by t v or the debits really comes down to standing and i would like to answer something just par asked me earlier about the equitable interest rule four point three and this is toward the end of the paragraph says that any trust agreement the holding the fund assets should be used for the sole benefit of the members retirees and beneficiaries so that is you know as much of an equitable interest i was tru so but the thing that makes the recent cases different are those unique features of a recession protections where you would understand a court might say ok well you've shown some sort of mismanagement but if you're insured and you know the plan is is properly funded then what's you know you've got to show me a little bit more this is more like a common law trust a statutory trust like in this court's washington versus reno case we don't have those those those safety nets and we think that there's no question if you treat this like anonymous a trust that there's article raised that issue on appeal but you know our position has always been that yes this is and the organiser expressively say this and when they grade the excess cola count they did that to pay for colos and it was earmarked for coles if you look at for other things i don't know they they may not look at this they said they can use it or they can well what ninety six says and this is where they're getting this i think it says that in they can their their overall contribution in the year they must pay a certain amount and that's why they're saying was really toward the overall contribution but if you look further into ninety six every bit of that is cross references the coal rules and talks about coal funding and stuff like that so that it's it's clearly there