not sufficient before i proceed further if there are two points i do want to make first clear repudiation is a statute of limitations argument on which the defendants have the burden of proof they must show that all material facts were made known to the participant before being able to roll lie on that defense as this court said in a case in which judges are part of the white versus  participants claim that did not occur here so the two thousand and six letter wasn't clear communication one has to distinguish between the communication that they didn't have you in the pension plan from the me communication that in two thousand and one november two thousand the plan adopted an amendment retrospectively affective that was boring supposedly barring his eligibility to participate in the point you're transforming the current notice that you lose if you don't have the right you claim to have with notice of all the new wallace is just lead to that outcome and i don't see that in that case i believe it was part of our argument and i believe it is part of the law injury not discovery of the other elements of the claim here you knew you were injured you knew that you were not you were a stipend employee and then you were not entitled to the benefits could've been clearly you weren't can title to the benefits right your honor the latter certainly did not say anything about his being entitle to pension benefits and was responding to requests of what the he received as an employee  i understand in the deposition he says the i p g copy me in the letter they sent a question saying what answer i wasn't in the plan question and you agree this documents states that you only receive travel accident surance benefits correct the document says that the question the document does not state that you receive or are eligible to receive a benefit from the family that answer correct so you as your position that he didn't know as of the date of that letter that he was not going to get this the benefits it's got would seem inconsistent with his deposition our position is that he had the letter he saw what it said he also had other communications that showed that there was inconsistent treatment of him as a participant of the plan he did not pursue it at that time but  had to do with whether as wife would get the benefit his ex wife would get the benefits of that white and pursue not in the record and in fact his wife and i believe this is in the record receive benefits from two or three other different retirement programs he had been in over the course of his career but what case can you point us to that says even if you have were on notice of your injury if you had other communications that suggested that perhaps  you're not being injured we have to wait to there some sort of conclusive evidence of that you really are injured you see what i'm saying well why don't you had a period where the question of when you had a step forward was not always clear because there were a line of cases at a time that you apply for your pension and you didn't have an opportunity to really challenge it beforehand you know i know there are statutory authority that says you can at some point go in for tech work declaratory rights but that didn't happen the second thing cases the specifically answer your question in the seventh circuit which is cited in our brief talks about having a clear knowledge of the particular class on which you're being excluded similarly in the third circuit you cover marrow and miller reaching that point i agree with you as to miller but in the discussion of the law in milford they distinguish between his receiving the payment and being able to ask for the counting of the payment verse without doing away with the principle established in rome america merrill the clear repudiation generally requires of the specific information to be communicated and i think that's an important distinction but i understand if your view is that he should have known in two thousand and six that there are several other factors at play here one you have a plan that says if you have an approved benefit no amendment can take it benefits but let me assume your argument that the two thousand and six letter should have told him you better step forward and challenge this today when he did go for the pension benefit and make the application it is clear that the plan administrative committee told him that he had a right to be heard as a matter of right and that was in their letter under their documents so even if absent that they could rely on a legal doctrine and persuade one that the two thousand and six letter was enough to take the participants pension away or his argument for a pension away it doesn't deal with the fact that the teamsters under their own rules not the teamsters the plan under its own rules said as a matter of right you have the ability to apply they right that argument i'm going to cost you was way now we think it was also waived under clear repudiation because we think it requires giving the person enough notice of all the circumstances effect of nine hundred ninety nine stipend employees aren't covered they didn't say because of an amendment in two thousand and one which would have put the participant in a fundamentally different position to assess his rights to successfully appeal and that's the grabbing me that we're talking about here but it seems like you're turning into discovery rules you're changing it fundamentally from something where ok you're reasonably put on notice of your injury to a rule that says if you've got an argument that if you've got an argument that you're being injured wrongfully we have to wait and see how it gets resolved when you present that argument to the to the plan and then we have to let the clock starts ticking i mean isn't that really what your argument comes down to i think it's different than that because understanding that something was done retrospectively would cause a person to half differently and being told you're not in the point the communications from the teamsters to out there yesterday things are yes because there's a duty to give the story and give a try truthfully and correctly and i submit to you when you say we did something nice in ninety eight and applied it in ninety eight and then we did something affective  in fact he's on a trip that's not and he was completely true was that was true but he also had all the value of the fund he also had a phone secretary and some other incidents of work that were incidents that a full time employee would have including an office here in washington that was all part of the record if i might in the short time remaining let me make one other very important point because of the way the amendment work it breached a federal requirement of the anti cutback rule which had itself a very particular form of notice and that notice fifteen days before the amendment goes into effect has to tell people their future rights are going to accrue a different rate a lower rate he was in the plan at that point what you're saying it was an unlawful p a sham but that the use of the statute of limitations defen form of notice you can't argue a statute of limitations defense to get around the obligation the action they took in the amendment as applied at least to mr later event cause of action doesn't occur until they play the new right but here the employee didn't know whether or not there he knew with their it what was causing his injury he knew that he was not can see if i understand the rule you want is one that says if you didn't get the notice of the change there's no statute of limitations at all until a notice is given is that right even if you know that you even if you know even if the employer tells you we're not going to give you any i would say i would say it's to the earlier of when you get the notice or the time you would otherwise apply for  notice just issues a rule for them in effect a party can just wait forever on the theory that he was never given notice is an argument about notice that there's been a failure on the merits of what is required rather than a it benefits area where i've worked a lot of years i think two zero four each is recognized as a congressional decision that participants are to be given very specific notice so they can protect themselves and it was to be notice of a particular form now there's a lot of leeway on what to go for each notices look like no doubt about that but a particular kind of information that experience shows will lead people to react to it differently and this and you know the plan would say that once he had a right it could never be taken away under the very terms of the point you have language that says he had a people hired effect of april one ninety nine which factually was i'm true the answer that the a ministry to a committee gave and i see my time's up i'll be very quick here the answer that they gave was we got your name on the list we have to follow the l and that was the extent of the analysis of the different legal obligations for fall thank you we'll hear from mr  may please the court jeffrey come on on behalf of the athletes the district court correctly found that mr virtue's claim was part by the statute of limitations and its ruling its rulings denying class certification he seemed to indicate certainly in the classification denial that it was fit was sufficient twenty doubted that any other that as a member of the putative class as of that one the only evidence was that  probably got it or he may have got it i think if there was no evidence that he actually received that first notice right there's i thought yes and but there was a reason the district court was somewhat uncertain about not relying on that that i think that was a true at the time of the class certification ruling by the time of the summary judgment the record of the record had been developed through discovery  and there was there was evidence of a mass mailing which which one of the executive assistant to the secretary treasurer of the international said i sent this to all the people that were on this list and he was which i two notice and the two thousand and six notice work were clear and you don't have to be an illicit genius to understand you are not a participant in this plan because of the position that you hold and and so it's unlike say the chief offie if i've pronounced that correctly versus hilton decision where there was a very rank and file employees you know could not necessarily tell that there was a vial of violation of the back loading rules because they were receiving lesser bent this was very clear you're not up to dispense and as as judge garland pointed out earlier  words not his but but that you have to ferret out the basis of your of the of your legal claim when you're given notice basically was written with respect to the two thousand and four age notice and and the the whole notion that there's a you can't do that that that applies to participants in a plan here mr virtue was never a participant in the plan that's that's the whole point fo furthermore the section two thousand four h notice isn't a notice that says that some merits questions it absolutely your honor it isn't there you have to decide whether he was originally in the plan or not i think you don't have to decide that in order to affirm and in fact the district court didn't get into that we are we are motion for summary judgment wasn't limited to the statue of limitations but that was what the district in either case or not to address the merits or right i just i want to clarify for the court's edification though that that the notice the two a four h notice is is a it's for participants which we say he was in one and b it's not to tell you that we're doing something illegal because we keep the plant can't do that it's to tell you that going forward you're going to accrue benefits at a lower rate if that's what the notices about  your plan is frozen you're not going to approve benefits and what that's what to a four h notices for it if if the  if the it was illegal to take away what he had earned he or any other participant to a four h no it isn't going to cure that it's not it's not going to it's not going to do some sort of magic that was that was absent here the the fact of the matter is our position has consistently been that he was never a participant therefore no notice would be required and also he wasn't he didn't have the protection of the of the n t cut back rule because he didn't he didn't earn any benefits that could potentially be cut back and punted mentally on your view that's all exactly up that's exactly right i i i only i only got into that because you were having the discussion with life my friend mr virtue's counsel i'd also this like to point out that the cost the case is reliance on that is is is woefully misplaced it's a very old case the unlike the present situation presented here where there was clear notice you were not a participant or you get a travel accident benefits result of this particular employment with the international view by contrast in that cost it was a coal miner that was covered by the mine workers plan and in fact he had met all the conditions for eligibility for a protect pension except that he had retired and a to the trustees as they were permitted to do three arista change the rules and as the court as this court said essentially divested him a right he'd already aren't and they didn't even give him notice that they were changing the rules all they had to do was retire and apply and he could have and he could have a good eligible for the pension under the under the old immediately before the litigation i think those are easily distinguishable from this situation where the plan and the employer consistently said you are not a participant in this plan and so i think th your honor they only listen to his complaints about whether he was approached spins not whether he was entitled to benefits and even on that point they may continue to adhere to their prior position that he was not a participant and there was some more elaboration on on why but i mean it's not really for it's for the courts to say the statue of limitation bars your claim not for plant administrators to say the statute of limitations bars your claim there's there's a right to full review for a fair review under rissa big they gave him that right you know arguably they had no choice but to give him that right and if they hadn't i think would have been subject to criticism for not giving him the opportunity to show that he was a participant that they gave him that opportunity he was unable to demonstrate that he was that he met the old rule so i don't think that the fact that they  him a full and fair opportunity to show why he was a participant which is what the review was limited to it takes away from either the clarity or or the continuous ness of the you needed to establish eligibility he started october one two thousand and five would have been before october one two thousand and one the amendment came nov two thousand and one he would have met the twelve month to one thousand hour standard book tensional plan errors in the uses but this concern is not implicated here miller does not complain about the notice provided to him of his rights so when you get back to the issue of rights the standard is saw me just say for the benefit i don't think so of the law students who are here this is why we have law clerks so my law clerk just look this up on westlaw and he reports that this is about a sixty writes the support rights but there were quire meant that the repudiation be clear and me known to the plan beneficiaries is not an idle one whether repudiation may trigger limitations period depends on what the prospect of plaintiffs should have understood from the miscalculated benefit payments so there even though they had been receiving their benefits which was like the miller case limitations was not applied against them finally by as costly i think the court realizes it is a federal common law for in civil federal common law decides when does a claim of proof and it's clearly they're continuing to investigate not just as a courtesy but a real investigation is a matter of right waves and limitations argument precludes a clock from starting any earlier than the