procedural history of this case can only be described as a quagmire however at this point there is truly one overarching issue which is before this court and that is surely is was entitled to short term disability benefits therefore also were in time she was entitled to long term disability benefits but this bifurcated standard of review seems to me to be a new here on the record that is yes i understand the transcript of that case the court discusses both the short term and the long term and the court to some extent discussed oh bleakly what would happen if she ruled for the plaintiffs or what happens here over the fenton and what was argued with if she ruled for the plaintiffs the definition of a disability for the short term and the long term were the same so if she ruled for the plaintiffs under the short term then it would naturally run in the long term they're well that that made sense when the two were under the same standard of mandated that didn't know or review be applied to long term disability benefits it was a public decision it is the law of this circuit i think it should have been applied by the court it was not it was just ignored by that your client would be entitled to even if she lost on short term disability benefits claim because of the different standard should be entitled to two to too pretty to be successful i don't long term disability benefits by because of the different standard and that that that that was not it doesn't appear to be where you don't remand was it you're probably was not argued on remand and however i think equity and justice require that it be considered and it be argued i think it would be just a travesty of justice to say that became involved we filed a nd lawsuit just for that issue because the court in what we would call the one never addressed the long term in her decision it was addressed quite thorough well it was all i think in this i don't think the court even thought about long term which was evident to made evident by the court's subsequent rolling that in order to be entitled or eligible for long term you had to be awarded the full short term disability benefit which in our papers we demonstrate by the plain language is not true the plan contemplates two separate plans that you discretionary language but we're not dealing with that we're dealing with a short term disability plan so even at the time of the birth will of the argument conceded that didn't know what applied long term benefits  where the court decided that you had to obtain short term to obtain long term i don't know because the plan states exactly the opposite concede that there was a judgment on the entire case and the long term denial was a challenge however we are now before this court and we also challenge the short term denial and the basis of the short term denial so whether or not the court decides to take up a long term issue is certainly i would they need to take up the abuse of discretion decision and the fact that  fettered discretion was given to and its short term denial despite the fact that it was clearly a conflict administrator we understand that typically it's the law the case the th circuit has made clear that there are circumstances where it would change one of them is manifest injustice i think that applies here in this case in that at the time from the quote i just gave you it was saying to the court you know we accept the dispositive has every reason to look not to pay that short term claim it's basically twenty six dollars weeks of short term which is the tail wagging twenty years of long term benefits now so i notice in the mere client would be open to and at this time i'm sure she would your honor i honestly matter how to take the course question because i  strongly believe that there was an abuse of discretion in the decision to deny the short term and that this court should take up the issue you have two cases you have the will of the case which deals with the short term case which deals with the long term and i believe that a public does is required to harmonize those two cases we think are moving papers we've done it quite  does none of those things now a mediation we get a mediation with another one be more successful i don't know however i truly believe that equity and justice require that this court take up the issue of whether gin noble review should have been applied i'd remind the court that when the district court st ruled in two thousand and fifteen the court ruled that the short term disability benefits were reviewed in ohio that was there the court also ruled that the appellant had met the elimination period under the no those standards i just understand the decision was vacated but that was a ruling the court made that the court never changed no court has ever looked at the merits and said anything but that ms will be had met the elimination period for the short term benefits skipping and met the elimination period  the court i'm ronald outwards appearing on behalf of that i think the issue that was raised by your honor at the outset is the issue that i think is the proper focus for looking at this exercise in some circumstances so do we i know you have the discretion to consider this issue even though it was not fleshed out in the district court it's been briefed here and that's the elephant in the room and he had to make the case law seems to distinguish between those things that are self funded and those that are not and that i was speaking only for myself it does appear to me that the long term disability is to be reviewed and not under an abuse of discretion standard so why shouldn't we just say in  this case well again it was well the court does count that discretion i don't believe that there is a round there is a a proper rationale or support to ignore the fact that the judge  i am sort of asking equitable question as to why we should not exercise or use sure i think if we look at the exhaustive have been applied in the judgment well i think this is a i think it's a good question i think i know where you're coming from and i don't disagree with all of the legal arguments that you're raising but what i think is important to look at is procedurally we have two different cases and if you look at willoughby to the we're not arguing but if you look at will be two and you see what happened the court determined that the arguments regarding the long term disability benefits were never properly before it and when when plaintiff brought the nd lawsuit they were time barred from doing so they may or may not have been time are there but the point of that case is you can't do it twice and the once is this case so why shouldn't we reach it here in this case it's not mentioned in the order and there are very very brief air france is only in the argument only an oral argument to the long term disability benefits it's not in the complaint also i don't know if you heard my colleagues question i think the question was is that an error that it wasn't mentioned and no i don't believe it's not an error because i don't believe it was actually properly before the court i think all that was being litigated was the was the short term disability benefits will be won and the court made a the court said in the findings of fact the only mention in the entire in anything written by judge marshall about the long term disability is in the  long term disability benefits you had to exhaust the short term disability benefits why would we interpret her conclusion simply as accepting that the rationale that you offered when we were in arguing the long term disability benefits  in the original case and i think what we're talking about is what the judgment means but i don't think there's any dispute about the fact that that the case was initially brought challenge the decision on both short term and long term disability benefits  respectfully no when i respectfully know the original complaint does not mention any claim for long term disability benefits it is only seeking the short term disability benefits it is the way all of this comes to a head is that after judge marshall ruled on will be one that we're arguing now plaintiffs a month or two later brought a nd and i am sick you know you didn't say where you just said long term disability issues and where judge marshall does say in will be to that race you to congress should apply to bar the nd lawsuit implying obviously that she had ruled on  judgment says long term disability benefits i didn't actually intend to cover that in that decision so why are we not left with the fact that there isn't a judgment that covers long term disability benefits but it appears to be an error that we have to address well i guess here is where i can certainly agree with mr cantor this is a quagmire and it is let me explain not just because of what you just said but also because individual satisfies the twenty six week period because they're getting short term disability benefits then aetna has determined that those people that those individuals are in fact disabled for that twenty six weeks and they're automatically eligible for the long term disability now the st two years of the long term disability benefit have the same standard as the short term disability that is a person is disabled from from from their own occupation later on there's and there's another standard that applies after two years that certainly were not up now but but that's that that is so if it now had found the miss willoughby remained disabled for the entire twenty six dollars weeks there would not have been any further analysis before they provided her with a long term disability benefits i just it's been well more than four minutes that we've continued our discussion and even rip out a clock i think we're at the end of your period of time and i will use my clock watch to look at the remodel time which i believe was about four and a half minutes thank you thank you your honor i think i'd like to start by reminding the court although the court seems well aware of it that judge marshall in the st to say it isn't back in august two thousand and fifteen said the long term disability benefits were improperly denied because the plaintiffs under dyno standard had met not necessarily i think could be taken that she's not going to decide what happens after the twenty six weeks all she's saying is that the twenty six dollars week elimination period has been satisfied so that at the has to now forward and decide if there are continued benefits which the plaintiff was then entitled but i would then point out that aetna appealed the decision and focus is to peel on the fact that the short term benefits w self funded and should have been dealt with under arbitrary capricious standards which we don't contest at the th circuit the panel focused entirely on the difference between self funded and insured and in fact when the decision came out cited or the child's key nine separate times but never dealt with it in this decision as far as what the district court should do on remand other than rule again consistent with this order so i think the  circuit was telling judge marshall you need to rule on the long term don't know i think that was the mandate of this court although maybe i should become in this court was mandate was one less argument i would like to make and i think it deals with the suggestion of a mediation long term disability benefits if paid would have started in june two thousand and thirteen it may be a cliche but justice delayed is justice den willoughby was supposed to get these benefits in order to put food her table and a roof over our head it will be almost eight years and she still waiting and as if in the record she did receive social security she was found by the small security administration under a far more stringent standard to be disabled as a real last day of work and she's still receiving full security benefits the equitable thing to do and a risk as an equitable statute is to bring her current on her benefits the legal issues the court can deal with but with miss willoughby has waited far far too long and i don't wish said back in two thousand and fifteen ms willoughby on meet the novo the elimination period at no would have taken up its task and gone investigated further beyond the twenty six weeks it didn't you ask i believe according to my watch for we're at the have closure of the time i'm sorry for the a glitch in our court room clock that the case just argued is submitted in very much appreciate helpful arguments from both counsel