wrongful denial of benefits claims brought pursuant to section five o two a one b of the employee retirement security income income security act of one nine hundred seventy four the sole issue before this court is whether the administrative committee of the children's hospital of wisconsin pension plan acted arbitrarily and capriciously in denying pension plan benefits to cushion the jones the united states just your court for the eastern district of wisconsin the honorable granted the pension plans motion for summary judgment and denied the plaintiff's motion for summary judgment we ask this court to reverse that decision the factual background to this case is straightforward in the facts are not in dispute linda faith jones worked for children's hospital for thirty seven years one benefit of her employment was participation in the children's hospital pension plan in august of two thousand and fifteen linda jones elected retire she contacted a benefit analyst to children's to determine her pension plan options because she had more than five years of vesting service and was between the ages of fifty five and sixty five she elected the early retirement pension option under section four point two of the plan insofar as the early retirement option is concerned there are four payment options the participant can choose either monthly payments for the life of the participant or one of three optional annuity forms a single life annuity a joint contingent a new a t or a ten year life certain annuity all wrongful denial of benefits claims involving your risk of this case rises and falls on the text of the plan the ten year life certain annuity provides a ten year certain a audi providing monthly benefit payments to the participant for her life and if she dies before receiving the one hundred twentieth such payment continuing such payments to her designated beneficiary u payments to her and such beneficiary total one hundred twenty and doesn't the continuing language there suggest that they've already started which is what the issue is here it does not actually the continuing as such payments is the conditional clause that's established by that tax and continuing such payment references what happens if the participant dies before they've received the one hundred twenty of payment regardless of whether that participant dies before they've received any payments or five payments or one hundred nineteen payments but it reads continuing such payments to his d beneficiary doesn't that imply that those payments have already start that it does again at that age it does not imply that if the language of the ten year life certain annuity were to make that implication then the language would provide if the participant dies after receiving the first payment but before receiving the one hundred twentieth payment then continuing such payments to the designated beneficiary that might be more explicit if it had set that but why it doesn't have that extra language if he dies before the first payment starts but there's still a suggestion with the continuing that is something has started it cannot be because continuing such payments only references what happens at the participant dies before receiving that one hundred twenty of payment regardless of because there is no language in that ten year life certain annuity about whether the participant has survived to the date of the first payment or survive to the date of the hundred one thousandth payment to read continuing in that context would be adding a condition to the plain language of the text that does not exist that condition that being continuing would have to mean that the payment started is a key condition because it would serve to exclude the beneficiary from any benefits if children's if the plans interpretation of the word continuing was correct there is a death benefit that's associated with the annuity and because of that death benefit linefeed jones designated her only daughter to jones she was unmarried at the time on august twentieth linefeed jones filed her written election for early retirement benefits with the plan and she terminated her employment with children's hospital on august twenty sixth once these two steps are completed section six point two of the plan provides that pensions under this section six point two shall commence with the payment due date on the first date of the month next following both the terminations of employment and the filing of the written election with the administrative committee electing early retirement benefits linda phage jones filed her rigged election and terminated her employment under the express language the unambiguous language of the text pensions shall commence the following month again it does not state unless the participant dies between now and the first of the month and the first of the following month unfortunately linefeed jones died on august twenty ninth two days before the plan stated that her pension payments could commence linda fig the jones therefore applied with the plan for the death benefit that's associated with the ten year life certain annuity she applied to receive the remaining payments that were left in the ten year life certain annuity because no payments had been made under the plain language of the tax she was entitled to receive one hundred and twenty payments children's took the position that the only benefit that is available when a participant dies before payments commences the surviving spouses death benefit under section four point four of the plan that ham not be the case because section four point four of the plan is not subjected to the annuity neither is the annuity under section six point eight three subject itself to section four point four neither of them establish an exclusivity clause meaning that if you die before payments comm a one eighty nine of the tax code this court has already ruled that the tax code does not confer benefits the tax code doesn't confer or negate benefits rather the tax code has only to do with the timing of the distribution of benefits but it's not the tax code itself that they were lying on it's the language of the plan that incorporates that provision of the tax code and they actually didn't rely on section six point eight that was something done by the district court the administrative committee relied on section six point nine three chew with has to which is the provision of the tax code section that deals with distributing the surviving spouse is the new a t but no one here is claiming that she's entitled to the surviving spouses i misspoke i said they knew it to the supreme retirement surviving spouses death benefit no one here is claiming that she's entitled that so section six point nine b is completely irrelevant section six point nine is likewise irrelevant in determining whether couche in the jones is entitle to plan benefits the reason is because of this court's decision which held that the tax code does not confer benefits to a participant rather the tax code goes soley to the issue of the timing of the distribution of the benefits but again that would be if the plan didn't include the language from the tax code in itself if they were just coming in arguing well look at the tax code for extra benefits that would be a different argument but here the plan incorporated that language to try to comply with section four a line eighty nine or one provision of it the plan also incorporated the entirety of tax code section four a one a nine in section six point nine eight of the plan if you look at code section for a one eighty nine specifically subsection b that defines the designated beneficiary as any person selected by the participant not just the surviving spouse based on the timing of when the the participant yes so you have section six point nine a of the plan that of corporates the entirety of section four a one eighty nine you have section six point nine eight of the plan that addresses the issue of other plan benefits not section not excuse me the ten year life certain annuity of section six point four three and i see the my time here is up if there good morning and may please the court while the facts of this case are undeniably tragic the administrative committee of the children's hospital and health system pension plan is required by law to administer the plan according to its terms for the benefit of all plan participants beneficiaries that's precisely what has occurred here i just like to address one point raised by counsel in his argument this morning and then one additional point that appellant's made in the reply brief to judge same question you are correct nine establish certain rules for what happens if a plan participants dice prior to the commencement of benefits and the language of those sections it is clear over and over again that the only potential beneficiary in these circumstances could be a surviving spouse so if you refer to section six point nine d four of the plan it states the plans does need a beneficiary is limited under the terms of this plan to the survivor to the participants surviving spouse have argued that that means the section only applies if there is a surviving spouse and if there is no surviving spouse you can just ignore that section but then if you go to the immediate following section section six point nine  states if the participant dies before the distribution of his or her interest begins the participants surviving spouse is the participants sole designated beneficiary there's no if any language is no conditional language the only potential beneficiary is the surviving spouse then go to the media following section six point nine he won that sets up two systems for designating a beneficiary if the participant dies after the commencement of the distribution of her stay then the participant does need a beneficiary is whoever the participant elects however if the participant dies prior to the commencement of benefits the operation of the plan dictates that in the case of a participant who dies prior to the date distributions begin the participants designated beneficiary will be his or her surviving spouse if any pursuant to the terms of section four point four which again is the surviving spouse that the structure of the plan makes very clear that the only benefits offered by the plan if the participant dies prior to the commencement of benefits is the surviving spouse definitions the only other point i want to raise this morning  benefits a full compensation package from children's hospital including salary health insurance life insurance for a three b defined contribution retirement benefit in a range of other benefits the housepainter on the other hand receives just one form of compensation the payment from the house owner given the full range of benefits going to jones received including two other death benefits it's entirely reasonable for the children's plan to impose conditions on the ability of non spouse beneficiaries to receive pension benefits  circumstances that's precisely what the children's plan is done here second the particular benefits that appellant's are seeking in this case are benefits from a pension plan that was funded solely by children's hospital federal law expressly allows pension plans funded solely by employer contributions to set limitations and conditions on when and how non spouse beneficiaries may partake in those benefits again that's precisely what children's hospital has done here in the case of the housepainter on the other hand the l any number of equitable and quasi contractual theories to ensure that the housepainter gets paid the third the hypothetical fails because of the presence and the role of the administrative committee in this case we haven't even addressed the role of the administrative committee which is to interpret the terms of the plan to determine eligibility and the plan has full discretion to do so under these circumstances the house painter in the hypothetical did not agree to allow the house owner to set up a committee to determine whether and under what circumstances his hypothetical child could receive payments if he had done so then he too would be bound by the decision of that body and then finally the hypothetical again ignores the structure of the children's plan and the language of the plan referring to the surviving spouse benefit if the house painting contract had such language and if the house painter died without a spouse prior to the start of payments then the painter child would not be entitled to benefits this is especially description to say that was consistent their interpretation was consistent with that is that something that linda jones was provided with my understanding is that some a copy of the summary plan description is provided every  year in addition to that certainly the application for benefits that she received included the same information at the time that she apply for benefits and is it proper to look at that outside of the contract in this context i believe it is to the extent that the court believes that language is entirely consistent with the language of the summary plan description section six point nine which is the incorporation of code section four of one eighty nine into the plan to in fact determine whether khashan to jones is entitled to the annuity benefits but section six point  specifically states all distributions are required under this section will be determined and made in accordance with the treasury regulations under code section four a one a nine which are incorporated here in my reference restate the point that i made during my argument code section four one eighty nine subsection e defines the designated beneficiary as any person designated by the participant the plan