lawsuit in michigan to terminate the delphi salaried retirees pension plan fearing that the pvc would sacrifice their plan at the behest of the obama era auto task force the retiree's contacted the p g c for its consent to the retiree's intervention in the lawsuit in response the p b g c as the evidence in this case shows panicked that they would have to try to prove the necessity for the terminations so the p c immediately aborted its lawsuit and instead went a different route to terminate the plan it simply entered an agreement with delphi's plan administrator who couldn't have been happier to shed its pension plan resulting in a determination of the plan terminating the plan through a simple agreement with the planet ministry was contrary to risk the statutory language to the due process clause of the constitution and is into vents indefensible in our view on the on the substance of the statute of permit of we prohibit the agreement or does it not explicitly authorize the agreed i think it affirmatively prohibits it because it allows by stating one route for one route for a terminations which is the ridge additional decree inevitably leaves leaves the rest of the statutes to indicate that no others are available and particularly in addition when you look at the context in which all of all of this arises which  is that the the congress did in part a of one thousand three hundred and forty two dollars state that there could be streamlined procedures for small plans but it still had to include a court decree and then nowhere states anywhere any kind of streamlined procedures for large you think the when it talks one of the two talks about perceiving inception is that only judicial proceedings or can that be any kind of proceeding it's unclear to me i think it's judicial proceedings i believe i think it's ambiguous in that sense but i think one thousand three hundred and forty two talks about initiation of proceedings not terminations of plans but initiation of proceedings and my understanding has been that that means initiation in courts of proceedings and there are broader terms for initiating initiating a initiating a terminations proceeding then there are for actually terminating the plan there for more open  ended reasons that the p t c can started an investigative proceeding in a court for instance to determine if a plane should be unshy plane should be terminated and then when you get to see they have to seek the court to create under under much narrower circumstances if there is a judicial proceeding do you think that the parties can settle the case without which again ing it to the and voluntarily case and we're done well don't go to the court and say are we to settle but you're saying that if they want to settle this case or any case under this provision you'd have to actually go to the court and say we want to we want to settle where you  subtle if the settlement is to terminate the plan they'd have to do it via a decree and you'd have to have all the parties present there are a lot of interested parties to the p g see the plan administrator but the participants the participants were not involved in the in the agreement in this in this instance and so their rights were never protected in the instance jur clients have apply and that they could get their money as our other workers get theirs too there was sufficient funds for that that cost of the assets of the salaried plant and you took all the gains that have been that have accrued in the ten years since there would be more than in our view as our experts stated when this was in document ari three o five  exhibit seventy nine dollars there would be enough money in there to pay all the benefits and the p c would probably have money left over at this point that's in fact the equitable remedy we see that you get in this case do you get the money from the gov or from the government from the  well we would like appropriate equitable relief as the statute defines it in orissa has a long history of cases from the supreme court as to what constitutes appropriate equitable relief but in this case plan assets that were taken returned and actually we would like is for the plan to be run with those monies with an independent fiduciary that the money would simply be taken from the p g c segregated and so those assets are still kept segregated as salary plan well what the old salary plan assets of p g c's allowed to pull all the assets together for investment purposes but i'm quite confident that in the counting could determine of the total of the total amount what specially belongs to the salary plan or could be accounted for for the sale replant simply because they commingled it doesn't mean we lose our equitable right to the return of funds that were unjustly taken from us in a constructive trust sort of fashion we actually went through this  analysis with judge karnow early on when we sought a preliminary injunction to septics the funds segregated and make sure they weren't being used by the p c in the p c agreed that we wouldn't have to do that because at the end of the day if we did win the p g c would would treat would treat the funds as if they had been segregated so that would be that's the remedy that we would seek we would seek the return of the assets and the earnings on forty two dollars c does only one thing it gives the p c the right to go to court to be a litigant in court as a prosecutor to seek to terminate a plan but nobody was arguing the other side or they in that case i mean and i understand that there are a lot of cases kind of generally in this area but only the nd circuit has actually confronted the the actual issue is that right correct exactly and i mean there's no way of our bases on their side but you would distinguish some in the same way and say well they other cases just assume it can happen determination green but i readily admit that the jones in laughlin is the one case that addresses what does the set you say and the due process considerations but we disagree mightily with the statutory analysis of the nd circuit in that case and we don't think it we don't think it all holds up to a plane a plane review and that they're implying a turn they're playing a moment during playing a momentous right here to terminate a pension plan that affects thousands of thousands of people from language congress doesn't have in there but if they did it would be in this mouse hole of the th sentence of section thirteen is it really about although i mean it says if you if they agree to terminate so there's agreement and it says terminate the platens so it's pretty clear that somebody contemplates some kind of an agreement to terminate apply at in that sentence of this and it excludes the interesting thing about that sense it seems to me as it excludes if there is an agreement on its parallel it seems to me it's a terminating point and be appointing trustees if you agree to both of those things then you aren't subject to the rest of c which is all about education why doesn't that just hang together and i think that's that's an incorrect reading and i'd like to sort of play this out a little bit by going through their five sentences in the in the section and the th one is the key one but the st three are important understand what the th one means so the st sentence says that terminations it may apply for a court to create the nd sentence provides that the trustee can intervene or the trustee itself can seek a terminations agree decree sentence three then says that upon the district court granting determination decree for which the p c or the trustee sought the trustee shall then have the authority to terminate the plan then come sentence for in a says nothing about terminating a plan what it says is it describes the powers of a trustee when the p c was not the one that sought the decree in other words it wasn't acting it wasn't proceeding in accordance with the subsections is when the trustee would have been the one seeking the terminations and then that sentence simply gives the trustee certain powers and duties assuming that the p b g c in the trustee were in agreement it will says if the corporation in the plan administrator agree that a point should be termed should be terminated and agree to the appointment of a trustee so it seems to me he has certain powers right but without proceeding in accordance with the carmine's of the subsection meaning the st three sentences are not something that we need to worry about because we're not proceeding in accordance with the requirements of the subsection but we just want to make it clear that if we have an agreement and we have an agreement to appoint a trustee that trustee is going to have certain powers the pvc that was and was not acting in accordance with the st three sections of the trustee might have been and that then leads to the situation where the p t c in the planning ministry here could agree to somehow limit the duties of the trustee who's just been told by the court to terminate the plan and the congress was worried there would be a conflict of interest or that the you will you both agree that the plan should be terminated and that you agree on this trustee so what it is is dealing with really a conflict of interest between the plan administrator in the p g c in a situation where the trustee was the one acting in accordance with the section but the pvc never sought the terminations undersea the other point i want to make is that about the nd circuit case is that it has a due process component which is entirely inconsistent with this court's decision and hicks  relevant very new decision twenty eight one hundred and twenty one thousand dollars which explains that the minimum of due process in every case is a pretty deprivation hearing of some sort when property rights are an issue and that didn't happen here so i'd like to reserve the remainder of my time would you the lawsuit that the b b c began but aborted the participants would be able to come in present their story the people could present its story and i'm confident that had we done so our experts testimony which was an rebutted in would have prevailed and the district court would have said this is not a fair deal for the participants you're going to have to work harder to get them a better deal from the treasury in the situation statute it has remained in the statute unchanged in that period of time during that forty five year period congress has substantially amended a variety of in their reply brief appellants here have essentially accused pvc of that as acting as a rogue agency for forty five years contrary acting contrary to the intent of congress in terminating plans by agreement by had been done through agreement and how many had been terminated by court decree you what other support in the statute do you have other than that the th sentence in the th sentence the th sentence quite explicitly says that  by agreement we can terminate the plan it's worth noting i mean it seems to contemplate that it could happen but it doesn't really authorize it doesn't it doesn't we still i mean why w provision about summary providing seeings for small plans itself seems odd to us p b d c has never exercised its discretion of that provision is terminated all plans whether they have one or two participants or twenty thousand or more participants in exactly the same way by following the provisions in the four thousand and forty two c which we find adequate for the job  suggestion that we go willing nearly terminating plans by agreement without thinking about is wrong it's a very serious thing we do when we terminate a pension plan we appreciate the interests that are involved both the interest of the participants the interest of company the union worked with g m in affecting that division of g m into those two parts and negotiated a collective bargaining agreement that gave it a special deal that got g m to agree that if the delphi presume they could have worked with their own since they were the executives they could put in if they wanted to they could have gotten g m to agree to it the union was able to get g m to agree to it and continued to insist that that provision survive  that's how collective bargaining works if you are a member of a union you can negotiate a better deal for yourself that's that's the whole idea of a pity did you see had absolutely nothing to do with that top up whatsoever and indeed has striven to remain had about seven billion dollars in assets know about four billion dollars in assets and in excess of seven or eight billion dollars in liabilities we calculated that the unfunded benefits in that plan were about four billion dollars to the hourly plan a short about two billion dollars the majority of both of those amounts pc's now lost in this case is in the order of five dollars to six billion dollars so here we are just a moment to slide over to the due process argument bankruptcy code to modify its collective bargaining agreement to allow it to agree to terminate rather it said if you see we see the plan terminated we agree that our plans have to be terminated because at the time united was in bankruptcy and certainly didn't have the wherewithal to maintain its pension plans but we can agree therefore you have got to go to court terminated we ended up before the bankruptcy court in their exceedingly long proceeding took a couple of years the plan was terminated for a while then it was terminations many months of confusion but ultimately the court concluded that we had established what we need to terminate and that was all because the plan administrator in that case could not agree with us you could not enter into a terminations interesting ship agreement with us united airlines was in fact able to enter into such agreements with its three other very large pension plans one representing ground i mean wasn't you know g s to books a language though pretty clear about i mean this section is about the judicial in that case the planning minister would not agree with peter you remember who the parties are in any proceeding to terminate a plan the two parties are in the one side the plan administrator and the other side p v c the employees  are not a part why is that as the supreme court has said time and time again decisions major decisions about pension plan whether to have one and all whether to assume a pension plan that somebody else had and whether to terminat pension plan or what are called set or functions are business decisions by the company based on the company's assessment of its business circumstances the company i suppose in assessing its business circumstances if it wishes can take into account in the supreme court said that time and again you asked whether we earlier whether we were there was a nd ground we could say other than just the statute why we have authority to do this p v c when it was created in section four thousand and three is given ability to defend prop and prosecute in any court in the land all cases that involved does that independently of the justice department which explains why i'm here not a justice department  court the statute does not give the p c police power to simply seize the plan without any further proceedings we must go to court and get the court's help to take over a pension plan that is being defended by its administrator however if the two parties to a lawsuit agree that a particular course of action on to be whether they do it after the suits filed in the settlement agreement or before the suit is filed there seems to me no point going to court and even a question as to whether there'd be a case or controversy it would have a case where you are required to get a consent decree or i suppose a class action settlements we have courts were view go and this is not a class action there are only two parties to whatever that cases where that would involve a consent decree right a settlement but it was a consent decree well so it's already ocket somebody can intervene somebody can complain about the settlement somebody mean that's why you have been in place that and were that very different from a mandatory must to get a court to create that is just a clear discretionary language to behold in every court so your view is that proceeding instituting a cone of hope or seedings in section a includes concludes whether or not to put it in c it requires p b g c to conclude that the plane should be terminated all that is done through a careful and detailed administrative procedure within the agency involving a organization called the trusteeship working group which reviews closely all recommendations by p t c staff that a plan should be terminated yes those procedures it's also noteworthy cup while we're talking about that a provision they they point to the clause that says including the requirement for a court to create somehow modifying the rights of the participants in that plan grammatically it doesn't there's a comma and then for the employer and for the employers who maintain such plans including their current court in korea obviously like in c the court agree that they're talking about there is for the protection of the company maintaining the plan a plan administrator or sponsor just a few points st of all i strongly disagree with mr make these assertion that this plan was woefully underfunded and again i'd like to point the court to the expert report and i miss miss cited it when i gave the site before to actually record document one and of course those weren't terminated with respect to the male language at the very beginning of section six subsection c that's as the p t c may see could work to create the reason it says that is because under any they're supposed to initiate proceedings but they don't have to then after the initiate automatically terminate a plan if it said the p c shit shall then seek the court to create then that would mean in every case that they initiate proceedings they'd have to then seek the decree and we know that's not the case because why would that be true i mean c is about adjudication so if they proceed along this path if you really want to terminate it you must go to court  the court decree and mr make you want to say that if but if what i'm saying is true if what you're saying is true why wouldn't say shall so at that point you've decided and you want to terminate you must shout whatever it is you have to do it would be not permissive which would be you must go to court and get the court's wasing to do this it doesn't say that because in many instances eight is a initiation of a court proceeding to begin the the terminations process but the p c doesn't have to finish that dollars that this is they don't have to do this because this section which is involves restoration of plants says that whenever the corporation determines that a plan which is to be terminated under section four hundred and forty two dollars or which is in the process of being terminated under section  war two should not be terminated under four hundred and forty two dollars as a result of such circumstances the corporation does determines to be relevant the corporation is authorized to cease any activities undertaken to terminate the plan and so that's why  there ultimately this case that th sentence everything turns on whether you can read into it an implied power to terminate a plan and we say you cannot because that would be momentous it wouldn't be hidden in that cryptic sentence it could have been stated expressly if congress really wanted it they stated many other things in the statute expressly it undermine the expose all the expressive language that is outlined in the section and it wouldn't jibe with a which refers to a requirement of terminations of crees under sea so we'd  k that you reverse judge turns decision and set this case beth for an equitable random we appreciate the argument both of you've given will consider the case carefully a probably note for the record that there had been a motion in this case to close the courtroom during an argument and the panel's understanding based on the representation representation of the parties of counsel for the parties to the core that there was no need to close the courtroom because there was no one extraneous to this case who would cause you concern i just want to confirm on the record that that's the case