that it is not a benefit if you have to execute a release claims to get it it is not an employee benefit plan if one has to do a release of claims to realize the result and that is the primary distinction between this case and the entire body of precedent that this court this panel has been presented with in ira cases if one must execute a release of claims to get a some paid that is a settlement of claims not a benefit plan  it ressa is concerned about fiduciary duty that's the entire body of a recent precedent we're concerned about the employers i don't really understand why the signing release would be the critical thing whether it's the trial court itself referred to this release and just to back up this is a suit about enforcing that release this is a suit about the enforcement of that contract the trial court referred to it as a standard release form now there's no evidence in the record that would suggest that this is a standard release form and in fact it's not this is a very extensive settlement i always kind of laugh and some i think most lawyers do and somebody tells them it's just a standard form this is an extensive release form and but but so why why has a release inconsistent with an a risk plan let's take the clearest possible risk plan it's retirement plan and one person says my pension should be eighty three hundred a month and the compan different things there's was the release preceded by a recent plan and there's when the release was signed did it fundamentally change the nature of the parties and in this case one could argue as lockheed backstop no so the employee separation program it's a separation program which lockheed wants to characterize as a severance program in essence all right but resupply and it doesn't matter what matters is the release is what the payments made under exactly now because the release of the release is a standalone contract that provides for its own means of enforcement it stands independent from the resupply and it is in essence the concluding statement of the arrests a plan and what it does is at the time of the execution of that release it fundamentally changes the nature of  relationship of these parties i understand that argument from your brief but it seems to me that that to release does more than that it has contingency in it you've got to return things to the company if you don't why the release form isn't is referred to as he says his brief i didn't count to twenty three times it's referred to so his argument is there together you can't separate them out and that is best right how would you argue your case that's inconsistent with the release releases it riseth claims as i remember there's this decision by justice o'connor on behalf of the supreme court that interprets the related to  very broadly and it's hard to say that the release as it related to the ref plan one of the definitions of related to is whether or not it stands independent from and in this case what lockheed chose to do was to to actually have the employee well that's i don't want to say this is what they chose to do the entire import of this plan was to extract a release of claims from employees that were being or were going to be laid off and they happened to be generally speaking older employees senior employment they were dealing airing and what lockheed wanted to do was to avoid class action claims age discrimination claims and they did it by a resolution and i'll read the court the specific language of the resolution and this is that excerpt at page forty mr lucas explains that in order to receive benefits under the plan all employees must voluntarily submit a release of claims against the corporation in the plan document itself excerpts forty six provided that the eligible employer returns and does not revoke the release the amount payable will be paid and a lot from the contract itself iran or the release of coins and title release of claims has two specific sections of payout where the only the only qualification for the employment for the lump sum payment is execution in return of the release at excerpts one forty six section b if i voluntarily elect to sign this release the corporation pursuant to the plan will pay me the termination benefit section c in exchange for the payment of the terminations benefit i voluntarily and knowingly signed this release the last page one fifty two subsection f i understand that under the terms of this plan i will receive determination benefit in a lump sum within ninety days of the corporation's receipt of this signed release so in spite of these ongoing references to the plan the plan what the employee is being given is if you sign this release you will receive the terminations benefit the lump sum payment and within the release doesn't really say if you don't get the benefit it's not effective i think what the courts are for ing to is there's a provision in there that says that the the employer can revoke or something before the terminations benefit comes due and this is an issue here because what happened in this case is that the release was returned mr edwards gave the  period because payments not due for ninety days but once the payment is due it has to be paid so what lucky did in this instance is after the release was returned and these parties went into a debtor creditor relationship by the terms of the plan lockheed simply let the day come and go and didn't do anything it wasn't until months later that lockheed then said oh we've decided now that we're going to keep your release but you're not going to be paid still be able to assert claims that are not subject to release the release is comprehensive and in signing the release mr edwards release literally every cla out there with the exception of the right to enforce the release so the release itself creates its own enforcement mechanism and it doesn't weigh with any other claims including your ris valarie it makes clear that whether it implicates non going to administrative scheme it's within the plan of the council argues as these are all together because  contingencies he had to return certain things cetera and so he says there's one plan your argument depends on carving out this part of these proceedings that are going on with the person retiring and just relying on that making a debtor creditor situation is that is that is not a fair analysis what i'm saying is that in none of the precedence that this court has for health happiness you've got to put it in context sister didn't come out of the blue that all of a sudden they're going to pay him some money for leaving now there's a plan that's involved and he's going to argue i assume that it's an administrative free spot thing that has to be done under the i under the valar the interpretation of what a plan is so it didn't come out of the blue your honor because it was a plan for settlement of claims the purpose behind this plan is not an employee welfare benefit plan it's to settle claims but that's true but the there's a continuing responsibility for example is if your client comes back and works for the company again all of a sudden there's a new process it's involved mean there's things that go on continually and under velocity and seems to me that you've got at least show us why that doesn't apply the things that go on continually go on only before the release is executed once the release is executed lockheed has one duty and that is he comes back and he is reemployed well that's not a part of the contract oh but it's part of the plan well if you give the money back if he comes back in the news and he is reemployed doesn't well the nature of our action is to enforce a release that lockheed breached think that answered my question the release of claims puts these parties in a relationship a debtor creditor you've said that no other employer employee it isn't a debtor creditor if the plan requires him to pay back the money if he becomes employed  again there's a continuation it's going on the release of claims first of all it reza deals with when we talk about continuing administrative processes we're talking about processes that are performed in a fiduciary capacity that's what a risk is is a reserve regulates fiduciary duty to ensure that an employees expectancy of benefits that generally have been accumulated over time are going to be managed in a way that that employees expectancy is not going to be defeated in other words arista is there to protect a fund an accumulated fund or a plan designed to benefit this employee for which the employee has an expectancy to ensure that those funds will be there at that when the triggering event occurs it's all about fiduciary duty when it when a release of claims is done there is no fiduciary duty there is if he comes back if he comes back and works he's going to have to give the money back to the company that's a continuing obligation everything has not been cut off there's a continuing obligation to pay back the money if he gets reemploy i don't see that in a release your honor that the real i don't see that language in the release we have to we have to segregate or at least in the release it's in what you're you're you're you're  insult to gether is part of the plan but i recognize that that's their position yeah but they've used this is a lockheed this is very sophisticated corporations we've been talking about this fiscal to parties earlier they chose to have an employee sign a release of claims in order to get money that's a settlement if you release all of your claims we'll give you this money that is a settlement and only if you release all of your claims well we give you this money that is a claim settlement that is not a welfare plan in fact i would argue that what that is is an employer or benefit plan and how i fit in that he has to pay back if he get i don't see that in the release i guess i'm a little i'm a little confused by the question because the whole grab and then there's something i'm sorry this is a really elementary question but it's something that just keeps slipping away from me let's assume that the rift plan is a resupply and let's assume for purposes of discussion that the release agreement is related to an aversive plan let's assume that because of the continuing obligations the arista plan removal was correct and there's a risk preemption assuming all that disputes whether it's covered they fight it out they go through the arista ministry to procedure within the plan page and they reach a conclusion that  will cover all the medical expenses except for the chiropractor or something like that the plan still has to pay the money and there may be some deference to the administrative decision or not depending on whether there's a conflict of interest the difference may be qualified because of a conflict of interest but they still have to pay the money for all the medical expenses except the chiropractor once they resolve their dispute that way i don't quite understand how cheating on the expense account means they don't have to pay anything under the separation agreement and i don't understand why it matters whether it's related to a plan i hear a lot of questions within that question but i think my answer to it would go something like this no where in that scenario is there or release of claims when when the court is talking about medical payments as an example that's a classic it was a plan this is an ongoing obligation to cover i ask you to assume for the purposes of discussion and insist but in this case we do not have that kind of the point you can have a number an undisputed rissa blain and they still have to pay the money and that's why i don't get why because because in this instance by the strict language of the contract which is what is being enforced this is no longer in a recess relationship between the parties when the release of claims is executed this is no longer employer employee that is all in the past upon the execution of the release lockheed has one obligation and it is to make the payment one obligation and brad edwards becomes a credit you well pick up on it well what i'm saying well i have already answered my my position on this is that in essence what the court is saying is acknowledge that there's  plan fine and i have and i've said that from the outset that if lockheed wants to call it in a recent land let's call it in a recent plan but once you have a release of claims it seems like the court is is  is focusing on the plan as opposed to the actual contract the sole written contract between the parties this is the this is the contract between brad edwards and lockheed and it is nothing more than if you mr edwards execute this release of claims you work for the state and you go away we will pay you this money mr edwards executed that release of claims he performed fully lockheed's responsibility under the contract not under the original plan not under the original plan it is lucky's responsibility under the contract to make that payment in ninety days and time isn't remaining it's time you're over you know it's a difficult case and i'm going to give you two minutes of the bottom time after we hear from your opponent thank you and i think we understand your to address what mr edwards counsel first really focused on in their reply brief on appeal an issue that wasn't addressed at all at the trial court in which she first focused here and that is the question brief in fact on page four the reply says there is no pres precedent characterizing a plan requiring a release of claims as a recipe and so let's assume for purposes of discussion that your opposing counsel is wrong on all that missing something here because i want to pose the same question to you if we assume that it's in a recent plan the release is related to a recently and everything still they made a deal here's your termination subsequently determine that he cheated on his expense account let's assume assume that for purposes of discussion i look at section seven of their deal and it says that he has to maintain satisfactory work performance till the terminations date and he was terminated pursuant to his election and nothing happened for the ninety days and then subsequently they figure out because he claimed for the seven hundred dollars an additional expense account money that he cheated on his expense account i don't quite get why whether it's in a recent plan or not whether it's preempted so to federal court is proper or not i still don't get why he wouldn't get the terminate him benefit minus however much she shouldn't take an honest expense account on me your honor i court would grant summary judgment on for all parties and all claims so that it would be a final judgment where there's no resolution of whether this fellow is entitle to some money under the terminations agreement the because th wasn't the only flying about standing and i didn't understand what the judge meant because it looks like it's it's not really a standing question it looks like it so whether cause of action has been stated question i just don't know where the money went you can't decide years later that somebody didn't quit after all it was fired when he wasn't  why did they get to keep all the money well your honor i guess even assuming it's in a recent plan a recent plan doesn't mean you don't get anything but what we give you it just means there's an administrative review process and varying degrees of deference to the administrative review process correct your honor and so here that wasn't gone through correct that wasn't addressed because there was no risk the claim asserted in the case and in fact  this court has addressed those types of issues before where a plaintiff attorney chooses not to pursue a receipt claims chooses to pursue contract claims instead and in those circumstances mr edwards was informed that this was in a recession he could bring a claim under section five o two i don't miss that ms i mean it could have been amended after summary judgment the judge says nope this isn't a recent claims it's for the i don't know whatever it was two hundred twenty thousand dollars my original settlement minus the cheating on the expense account he he could have done that he in his opinion makes it very clear he carse out  and that doesn't make it through correct your honor but ultimately judge rice noted in his opinion that mr edwards did not pursue in a risk claim did not ask to pursue an a risk claim and so we don't get to those questions because there isn't some point where a district judge has to have the latitude to address what's before the court now going to the question of the underlying question although you may be correct in terms of certain vested benefits hit run over time where someone builds up in a cruel of benefit this was a window opportunity what sometimes depending on circumstances might be called a top hat program where it was a voluntary early retirement program with an amount offered based on certain conditions and one of those conditions was to perform fully and satisfactorily through the terminations day mr edwards was informed within weeks of leaving that there was an investigation concerning his this expense account handling it wasn't something that was done for after so what you're saying is he went in title to the money because he cheated on his expense account before the terminations date correct and that they didn't catch it till after correct i mean if the court adopt some other approach someone could have gone with millions of dollars the day before terminations final release and then say no you have to give me my benefits because you didn't catch me in time or saying that's why you didn't bring in a for the money well they want to carve out this release of independence because they didn't want to get into the underlying facts as to his misappropriation affront funs and so there was no investigation of that in the court didn't have to address those issues the court was addressing the arrest of preemption issue counsel let me ask you a question of family about the release am i correct tossing him out of this let's say that lockheed has not release because he wasn't paid the money while the release doesn't address that issue the release provides simple simply provides a relief in that issue was address the enforceability of the release was never addressed or raised at the trial level and before the district court you know i think that in a subsequent proceeding if mr edwards challenge the validity of the release i believe let's say mr edwards loses this case and then says lockheed for age discrimination as an exam difficult of the claims because i think under the eighty e a you have an especially troubling issue because the question there are have to be some consideration judge wallace noted that there are provisions where you might have to return the money under the release and i don't know that the nice circuit has addressed the question of whether or not a release that initially is provided and has considered relation  below and so i i can understand if you know your client maybe he hasn't been confronted with that issue and that you might not be prepared to give an off the cuff  correct you know there's he would have to return them but mike my question really went to if if mr edwards won a subsequent claim against lockheed for age discrimination or some other claim not not the current claim based on contractual content of the release but different claims and subject to limitations if limits nation's issues could be their warrant run and run or were told something else with the release be effective to mean that he can't edwards would then have to argue that it was a void or voidable at that point he would make his age discrimination claim you would have a defense that the claim was released and he would counter the defense by claiming claims if you were to walk through that process but none of that was presented at the district court sorry to rest by the district court and so i not really before us now but that was a question in my mind i'd be amazed if you'd have a release i mean the ordinary car accident case where the insurance company gets a release in exchange for whatever they've settled on paying if they don't send the check and think they have a release think we could present arguments counter to that but i really am not prepared to address that sounds fair enough i took up a lot of your time with my off off agenda issues so if you want a little extra time go in we're going to we're going to give counsel for a valentine to thank you you're all right i did want to go back to that first issue on the heart of the risks are not just so the record is clear on this because it was not sufficiently addressed in our brief we didn't anticipate that that was an issue but i did want the supreme court unanimously held that a risk allows plans to condition benefits on release of claims beyond that the ninth circuit's addressed that issue a couple of times first in very versed pacific gas as one fifty nine said thirds three eighty eight and the second time in two thousand and ten and slimmer versus verity six zero six said third five eighty four where the night circuit stated the supreme court entirely appropriate to build a relief into the plan itself and if the court reviews the plan the release is one of many contingencies that built into the plan it is not the  out after the terminations date the last thing i want to point out in this gets to both the question of fully performing in the question of kind of retroactively determining that the terminations was for person not for cause the plan actually anticipates that the for cause determination what might be made after the person is left employment the specific language in the plan provides that if the administrator finds that the employee terminations it was for cause and it says the in this is a quote the employee's terminations employment under the terms of this plan will not be considered to have occurred so it's talking retroactively kind of retrospectively kind of funny to me i suspect because any large employer with the complainant manual can find some violation of the manual in some respect probably for every employee it has and what that means to me is that everybody's deal with lockheed would be voidable is the will of lockheed your honor i think that would