morning in may it please the court my name is there and on that i represent the appellant william canada and i would like to reserve four minutes for rebuttal the district court's grant of summary judgment for american airlines and its pilot retirement pension plan should be reversed because the late retirement provisions on which the district court so heavily relied cannot bear the weight that the court put on them and for two reasons  first american in the plan themselves did not rely on the late retirement provisions at all when they issued this is spent and decision in two thousand and eight this is mention the benefits decision that is challenged in this case the labor tyrant provisions emerge as a rationale that the polies relied upon only after this litigation commenced and because american and the plans lawyers unlike its administrator are not fiduciaries of the plan their interpretations do not come and the deference that would the second reason and that the late retirement provisions cannot bear the weight that the lower court put on them is because american construe them to apply in a context namely pilot employment after age sixty that would render them unreasonable at the time that they were drafted an arbitrary and capricious because that interpretation would bring those provisions into conflict with two sources of federal law the age sixty rule which was in effect from one nine hundred fifty nine through two thousand and seven and the prohibition under  risk against discrimination based on age and the rate of benefit of beginning with the first point the post talk a little let me stop you one second thirty seconds ago i  heard you say something with respect to the plan administrator is not being fiduciary s did you mean by that to say that firestone versus brook doesn't apply or was that for a different point  what i mean is that when the plan issued this is spent decision it relied on one rationale to suspend that rationale is six ten under fire stone that interpretation does get  suspension that are now the alternative rationale which was not appended to that suspension decision based on the rationale offered in this litigation  based on the late retirement provisions and under this court's precedent and university hospital of cleveland against emerson electric that kind of rationale that emerged for the first time in litigation but not at the time of the benefits of spanish and does not command the same kind of deference because it was not a rationale issued by a fiduciary i'm not get the point at least ok go ahead thank you  so when mr johnson issued the suspension decision she acted in accordance with the department of labor regulations that govern notification of suspension and those are at twenty nine c twenty five thirty point two three b two or three dash three before sorry which require a plan that intends to suspend benefits to provide notice to explain the reasons for the notice to set forth the plan provisions that authorize the suspension decision and to actually provide a copy of those planned provisions on which the plan realigned and diane johnson did so how did your whole post hoc litigation rational argument fit in or not fit in as the case may be with the fact that that this claim never got  the district court did find and correctly i believe that the letter from mark burdette who was a member of the pension committee was the only  understand that our human as i understand how this would normally would work your pilot applies for benefits and it's denied he then has the right to appeal that to this group called the p b ac right now here you didn't do that he didn't do that the district court excuse that on the grounds of futility so ok i get that the district court concluded that it wouldn't change the outcome but what i'm trying to figure out is i'm assuming logically had he taken that step that the plan calls for you would have gotten full and complete explanation presumably as to why these benefits are being denied because he didn't do that that's absent so then to say well i didn't do this so it's absent so therefore we get to pick one phrase out of this letter that's written for another purpose that's their only reason now they're changing their grounds it just doesn't seem fair so i'm sure you have an explanation i'd just like you to explain to me what how that  together certainly american continued from march two thousand and eight through at least april two thousand and ten when this litigation was in discovery to suspend approximately four hundred other pilots benefits once they turned sixteen continued in flying and it's my understanding of the record i'm not sure it's completely clear on this point but it's my understanding that the additional suspension notices were identical to the notice issued to canada and themselves also relied only on six ten and that happened even after this case had commenced and so at the same any of them go to the p b s not to my knowledge well so how does that help us we still all the pilots for whatever reason choose not to go not to pursue the avenue of relief that the plan provides for were presumably you would have gotten an explanation well your honor what you have is a situation where the plan is telling the pilots one thing six ten and six ten alone is the only ground they were relying on to suspend your benefits but it's telling the lower court an entirely different thing we have two sources of plan provisions and that the authorize our decision even though they continue to tell the pilots only one thing so at the very least i think that that contradiction when you say they continue to tell the pilots only one thing you're relying upon the notice though you're saying that the notice has to include every possible justification and reason for why planners take action in the notice itself yesterday and they can never change that or they can ever augment that or supplement that i believe is there are cases says that that puts that reliance on the on the language in the notice itself i believe that that requirement emerges from the department of labor regulation that i cited to you earlier am i right that the along the lines that judge mckeague indicated that this notice is not in response to a claim normally we review what the plan administrator or a benefits committee or some kind of appellate body gives as its reason and we don't have this here because they didn't go through that avenues so it seems to me that you've got the labor regulate us not our conventional kind of broke versus firestone review because you simply didn't invoke that is that a fair way of looking at it that is the question is it's not the quality of their reasoning which is usually what we look at brock arbitrary seems to me you're just relying on you violated labor regulations and therefore your action is invalid that fair or not well i don't think that th turns on this question because i think even if the court were to consider the late retirement provisions and i think it's perfectly permitted to do so i just submit that it should do so skeptically but under whatever standard i have only started with that because you said there are two reasons this is the first reason i assumed you put that number one because you thought it was the most important so if you're now suggesting well ok we can disregard that so let's go to the second but if it's because i thought it was analytically most helpful but in any event we can move to the substance of that before you go to second and your time is expiring i'd like to ask you about the summary plan descriptions you're bridging which now i know it's pretty three years or so old but ripping seems to rely heavily upon the binding nature in the provisions of the s p d s would you take just a moment to address that and i guess i'd like to know if you're still relying as heavily on the summary plan descriptions because it seemed to be that that argument has been weakened by a more yes your honor it's our position that certainly i think it was always our position and certainly our position now that the summary plan descriptions are read should be read in harmony with the plan language reasonably interpreted and because of the age sixty problem and the over eighty six problem the age discrimination problem we c the late retirement provisions can be reasonably interpreted only in one way that is to apply only to post sixty employment in a non pilot capacity the s p d is do not conflict with that reasonable interpretation they supported the plan offered to defend where they have reconstructed the meaning of the late retirement provisions taking them out of their historical context and reinterpreted them retroactively to apply in a context where they legally could not it please the court although ricin is an exceedingly complex dutch atory scheme this case boils down to a relatively simple proposition you cannot be deprived of what you never had in the first place it is undisputed that or risk expressly allows plans to defer retirement benefits or to suspend them to use the jargon until the worker chooses to actually retire and crucially here to do so without any upward actuarial adjustment on the basis of that suspension to be clear indeed the governing regulations here provide an example that is essentially this case and i think it's close enough and we talk about it on page twenty three of our brief actually to read it and it's short quote if a plan with the normal retirement age of sixty five provides a retirement benefit of one hundred dollars a month payable at age sixty five this same four hundred dollars benefit with no upward adjustment could be retirement benefits or more accurately whether it was reasonable under the highly deferential arbitrary and capricious standard that mr canada concedes in his briefing and today applies whether it was reasonable for the plan administrator to interpret the plea in that way as mr canada's own strenuous efforts to relax that standard of review indicate the answer to that question is yes and i write that in order for the company to take advantage if you will of this provision of this commission it has to be in the plan in advance and there has to be some kind of notice to the pilots or to the workers in advance two responses to that your honor yes this is the plan does have to provide for suspension of benefits and americans argument is and has always been since it was presented with this claim as your honor pointed out in the context of this litigation has always maintained that the late retirement provisions which provide quote upon retirement after normal retirement date members late retirement benefits will consist of his or her basic retirement annuity in this same amount as if he or she had retired at a normal retirement date so the late retirement provision in section six point three of the plan and the late retirement benefit provision that i just read in section seven point seven of the that mr candidate is not bringing a notice claim here he is not alleging or claiming that there was any fault or problem with the notice that he received he says he's raised as well in the words i believe it's in no eight of his brief opening brief mr kennedy makes very clear that it's a substantive claim that he's bringing he's not bringing a procedural challenge to the notice and of course relied on that very distinction and successfully arguing to the district court that he could be excused from the administrative exhaustion requirements of the plan so it's  little bit i guess i would say inaccurate in a sense to refer to a post talk litigation strategy when the first opportunity that american had to respond to his cutback claim and defective in any way he's not made king that claim or that argument he's certainly arguing that we're somehow not entitled or i actually think i heard him say today that this court  upon the late retirement because you didn't put it in the notice that's essentially what he's saying so to rely upon it now that's this post litigation so the response is we disagree we disagree that the notice ha to contain everything and he's not bringing in its claim but on the merits of that even if you were i think the u s supreme court's decision in from or versus conkwright disposes of that argument because in that case the plan administrator offered a rationale for its decision during the course of litigation and the court held deferred defer to that plan and how there was nothing improper about deferring to it so i think i think the combination of the fact that having relied on this procedural substantive distinction to escape the exhaust of the administrative exhaustion requirement so that the first time american had the opportunity to rely and i think in a sense that if you think about the nature of an anti cutback claim anti cutback claims this is something i had and later you did something to the plan that took that away well argument in response to that is no six point ten and didn't take anything away from you because the late retirement provisions already provided for that i think it may be also important to point out that in the latter that that mr canada received as all the other pilots received that letter also commented that if you if there's any dispute about the provision there is a ministry of claims process to go through i think that highlights the fact that the first time that few applies here we simply disagree about how about how that standard should operate in this particular case i'm curious about what he told us about lots of other pilots when i asked him what have you been doing in other cases this isn't a glass action briefing below none of those none of the other i think it's four hundred sixty three at least four hundred other pilots he said receive the same note it's none of them have filed claims to my knowledge but it's in the record challenging the decision along the lines that mr can do this and you would know why if there are more than mr canada is upset about this you wouldn't know why none of the other ones went through this pension board either  the record doesn't reflect that i guess perhaps and again i would not presume to explain us or speak for them i think perhaps it speaks to the fact that the late retirement provisions at all at all times it's  been very clear that retirement benefits are suspended while while an employee continues to work is not actually retard and that the plan has never required or provided an actuarial adjustment except under circumstances not present here as we talk about and in our in our briefing sometimes i ask these questions so sometimes we don't really know what the big picture is and a lot of these cases so obviously when the congress extended the retirement age from sixty to sixty five for pilots it affected other airlines rather than just this one so series of litigation and similar points for the other airlines do you know certainly  and perhaps counsel for mr canada would know more more than i i'm i'm not aware of any litigation against american i'm not aware of any of litigation against either other airlines but again that's something that perhaps counsel for mr canada might have  think greater greater insight let me just make a few more points about the the late retirement provisions and the role the role of note as i think mr canada seems to take american to task for for only referencing six point ten in the letter that went out in the notice that went out i think six ten is about two things it's about notice itself most fundamentally so i think it only made sense to reference that provision and attach it to the letters providing such notice six point one is also about returning to work after benefits star not only continuing to work as is the case here so and as the late retirement provisions address so the two parts of the plan work together making nothing superfluous or redundant and again is as i understood counsel for mr candidate to say today his argument is not that this court should not consider or that the district court erred in considering those late retirement provisions we simply disagree about the way that should be put on those provisions and i think he as far as i know was never claim that they're in big us are confusing or misleading and anyway so it seems to me that if the district court was correct in considering all of the plans together as the precedent of this court and the supreme court dictate that courts must when when construing the terms of a plan it was entirely proper for that that court and for this court to consider the late retirement provisions and analyzing the claims that issue here i think the other point i would make about both the letter from mark bird that and the letter that actually went out to mr canada is that both of those letters were forward looking that is they were not concerned with a claim an actual claim which of course is backward looking where the court administrator's considers the plan language in light of the actual claim that your honors a few quick points there is one conceptual point that i think has to be made very very clear up front and that's the difference between a provision that defers comments meant of payment of a benefit but in other words a delay provision and a suspension provision delayed come in smith is explicitly permitted under two zero six there's no problem with that american certainly could and did delay commencement of benefits until canada and any other pilot fully retired now whether benefits are delayed is an entirely different question from the amount of the benefit that a retired is entitle to once payment on those benefits starts and the risk of provision governing the amount of benefit payment is two three right late retirement provision says you get the benefits in the same amount as if you had retired at the normal retirement fair so says it suspended it says when you get the benefits then when you subs retire and it tells you what amount it's going to be so having a little trouble seeing where that's unclear what the problem again the predicate question is to whom could that late retirement provision apply and because of the age sixty rule and the age discrimination problem at the time that seven point at all times prior to two thousand and seven that late retirement provision could only apply to a pilot who continued after age and non pilot employment so yes i think that it's fair to read seven point seven constructively as a limited suspension provision a provision that authorized suspension in a very limited circumstance to non pilot employment after age sixty but as this as the supreme court's decision in central labour's pension fund against hines teaches us  distinctions between job categories in which benefits are suspended all can be critical in that case the interesting aspect of that is that is i and it the plane has provisions that distinguish between pilots and  pilots so they knew that distinction and they addressed it in some parts of the plan here there's no distinction between pilots and pilots in either six point three or six point one zero or seven point seven to give the seven point seven to read it as applicable to sixty pilots at any time before two thousand and seven would have meant the plan would have lost its tax preferences it's just it's just an unlawful reading and so the most of those negative inference is that your honor is raising create something an unlawful reading just because it might not have happened you're saying what we can be interpreted this way because that couldn't have happened under the law at the time ok but why does that make it unlawful american itself apparently thought it was unlawful because in two thousand and nine following the age change they change the what had been formally seven point seven to provide to avoid the age discrimination problem and to provide that benefits can continue to accrue until late retirement so apparently american itself thought this was a