this court's longstanding jurisprudence dating back to john morel and co those cases require courts to use ordinary principles of contract law to determine whether a c b a vested health care benefits and here as ordinary principles for close plain the c b s contained no explicit language that's being retiree health care benefits beyond the life of the contract to the contrary c b s all contained expressed durational clauses determining all provisions at the end of each contract and no provision stated that retiree health care was subject to a direct different racial clause and wide of that plain language and the consistent line of precedent precedent interpreting similar language the district court should not have entered an injunction because plaintiffs have no likelihood of success on the merits of their points plaintiff's principle argument in response is that the c b s priest sixty five language constitutes a durational clause for health care benefits it is not the precincts the five language speaks only t eligibility for benefits not to ration it tells you who is entitle to benefits not how long benefits will be provided eight sixty five language is found in two places in the c b s the first is at the heading of the retiree health care section it's a j a two twenty two and two seventy four narrates says quote retiree health care open parin precinct sixty five only closed close quote then at the very end of that same section j two twenty three in two seventy four it says quote the company does not provide health care benefits for local eleven forty five retirees after age sixty five close quote the function of that language is to limit health care benefits to only those retirees who are under age sixty five which is when retirees become eligible for medicare the language makes two things clear one retirees don't get health care if they are over age sixty five at the times c b s starts and two health care stops for retirees turn sixty five during the term of the c v a but that language does not say the retiree health care benefits are vested it does not say that they are exempted from the c b s durational clauses and it does not say that healthcare benefits continue even if the governing c b a expires and health care is not renewed in the current c v a as happened here other textural indicators reinforced the conclusion that the parties did best benefits and these are all textual indicators that this court is well of others have relied upon to find the benefits are not vested we walk through those in our brief but just to recap there's the fact that the country of the contracts continued health care benefits for individuals who had retired under prior c b s that's a fact this court relied upon john morel and anderson to hold the benefits were not vested there is the fact that the c b a's in the s p d m use explicit vesting language for pension but not for health care to take early retirement and you know it's not uncommon under early retirement programs to be a quid pro quo you retire early and we give you some extra health insurance benefits that's that's a very common type of thing to do program that they would have health insurance coverage to sixty five was and that does not at least create a a reasonable chance of success on the merits and no your honor absolutely not the special retirement program by its plain text speaks which ability ajay to seventy four it says people who comply with the various requirements quote will be eligible for health care and there are states all still subject to the durational language in the c b s the district court seem troubled that that might be a retirement program is inconsistent with the general durational clause at all the special retirement program promised benefits for the remainder of the term of the two thousand and ten c b a plus the term of any future c b a in which the parties agreed to renew health care benefits as they did in twenty thirteen here so the folks who were tired of the special retirement program could have gotten up to seven years of benefits that's a very real meaningful meaningful promise it's a very real meaningful benefit whereas the people who didn't retire and the special retirement program got no benefits so that the fact that the special retirement program afforded real benefits doesn't conflict with the general durational clause nor does it create ambiguity because you have people that are still getting real real real benefits out of that agree that if the contracts ambiguous you can consider extensive evidence but what i'm saying is under the ordinary principles of contract law that tacking in resave be apply there is no ambiguity here the rule of threes is when a contract has a general durational clause you apply that clause unless there's a more specific durational clause applying to retirees health care benefits there is not anything in this contract that applies a more specific durational clause to retiring health care benefits so under that what if what if the plaintiffs are right that honeywell sponsors an informational section session for eligible employees and see if you take advantage of this special retirement program that were written in the contract retirees or promise that they would be vested or promised that they would survive it were then you don't use vested language you say that if they said if you retire one of the special program you'll have insurance until age sixty five that's when i understood they said they didn't use expiration if plaintiffs own union doesn't agree to renew them in the act of c b s i think what your question is getting to is to plaintiffs have some relief even if they're wrong in the plain text of the contract planets below do have a breach of fiduciary duty can't claim pending below that they duty claim it does not vest benefits in a way that doesn't include investing language in includes express durational clauses and includes a number of textual indicators that this court has held time and time again i do not vest benefits i think the most instructive case for this court to consider your honor and i'll reserve the balance of my time is the cooper case from the six circuit that was in the exact same procedural posture of this case on appeal for mcclim unary injunction and there the court addressed the provision promising benefits until age sixty five and the six circuit held that such language did not vest health care benefits beyond the expiration of the contract and in cooper there was a special retirement program like program in that case they don't call it the special retirement program about the the fact that we have in this case that the s p d do you know has a reservation of rights provision it said when the a political s p d devoid of vesting language explicitly reserves the right to modify the retiring medical plan of any time beneficiaries have not met the burden of proving vesting language and extrinsic evidence may not be considered emphasis in original  caps that were going to go into effect and that's an argument that's been made in and made in addressed in five court of appeals cases since tackett and it's been rejected in every single one because that just is not a strong enough indicator of intent to vest benefits in light of all the other provisions of the contract and in general the racial clause and the fact that there are very strong accounting and counting incentives for companies to include such caps even if they take effect post expiration with that i'd like to reserve my  where the honeywell promises are of a specific limited age duration to a limited group of retirees this court in morel there was reference to it found noted that the c b a is that quote conferred fixed five year health benefits to retirees between the ages of fifty and fifty four who retired under a special plant closing agreement were promised limited vested retirement health care benefits that's exactly what we have here we have promises made to people between the ages of fifty fifty five and sixty four they were promised health care until medicare eligibility the contract makes that clear and servile different ways but and also makes it clear when it says the company does not provide health care benefits for retirees after age sixty five these c b s to quote reese specified a ration of benefits the c b s to quote morel promised limited health care benefits for a fixed period this is not a lifetime case reese and all the other ones other than cooper where the courts found the vague promises of we'll continue health care are sufficient of as many of it's what do you say the argument that that the two thousand and ten contract reduced the benefits that have been provided under the two cent two thousand and seven contract under the two thousand and ten although you did reduce benefits it fixed it at the level that was in effect under the last year of the two thousand and seven contract so the benefits themselves have not been decreased they were fixed and have remained in effect since two thousand and ten there's been no increase but beyond that what we're talking about is not whether there's tweaks or changes in benefits it's the durational issue and there's two ways you figure out  ration is a calendar and the retirees birth certificate that's how you figure the duration there is no ambiguity there's a suggestion that age sixty five is eligibility really makes no sense that's like saying the promise between ages fifty and fifty four you get it for a fixed five years well the five years that's just eligibility it's not at all to billy it defines the duration and that makes it far different than the problems that the six circuit had  it was a pro retiree vesting presumption it was for thirty years in the six circuit they would find lifetime health care with very general language intact at the supreme court said six circuit you had a thumb on the scale for the retirees  can we can we can dance on ill expression angels that track down your answer well why big because here for example unlike cooper prior to two thousand and seven honeywell minnesota plant the contract never made reference to retiree health care the promise was first put in the contract in two thousand and seven and before that the problem the promise was there never in the contract but for thirty years they were given health care until age sixty five regardless of the duration of the contract regards when the contract expired that practice is far different than what existed in the honeywell minnesota sixth circuit there found no likelihood and i think here you could still say based upon this record and in the extrinsic evidence if you consider the extrinsic evidence if you consider the practices that you can uphold the plane or junction but unfortunately cooper came down two weeks after those two decisions and i think the sixth circuit over corrected itself it applied it apply that to say that you need expect explicit language in the duration clause in order duration clause does not say everything about vesting honeywell wants the duration clauses which are found in every contract negotiated in the united states of america because that's are always going to have three or four year contract and they want to elevate this to the end of all things the problem in the six circuit before tech it was the six or it never looked the duration clauses never looked at anything other than whether is a promise and whether it was connected at all to retirees that is gone we have lost that argument supreme court found circuit i think in cooper over corrected especially applying it to an age sixty five case because if you recall closely what they said is here's how you have to read the contract you get health care until age sixty five in the supreme court and the six are get added this or the contract expires whichever occurs first they added that that's what they said the contract should be read the italicized that they added their to the contract it does not say that any person reading that contract any honeywell manager honeywell negotiator any retiring any person contemplating retirement under the special retirement program would read a promise of health care to sixty five a just that who is going to read it as unless the contract expired whichever occurs first in any one of their handouts that they gave out there they tell retirees your health care benefits may end at the expiration of the contract in the s p d that they invoke so much it doesn't mention the word retiree it doesn't mention loss of benefits it doesn't say you could lose benefits upon expiration of the contract they only reference to loss of benefits in the s p d is is upon your retirement understanding it is very dangerous to read language in the abstract and that's what the six did in cooper and they reached a result i think again over correcting from the two reversals summarily by the supreme court so i would suggest that this court not import the mess that's in the six circuit because in one of the decisions post hackett one of the judges says it's a mess they're all over the place and so now that now the six circuits gone anti retiree and not just the thumb on the scale of employers it is placed a hand a fist on the scale of employers and tack it teaches the parties intentions control no magical words no talismanic phrases the goal of the courts are determining the party's intent and here unlike a life time case where you often have vague promises or will continue promises we have a promise that's age specific and that's why it fits i think clearly within morale but it's not just of a specific duration that's in forcible we're not in burden we're not seeking to burden honeywell with the promise of lifetime benefits for thirty forty fifty years the people in this class will eventually be done with it by twenty twenty one twenty twenty two and the classroom the people get smaller and smaller till is no one left because the last opportunity to retire was under the two thousand and ten contract that's reference to the special retirement program if you want to retire you got to give us four months advance notice if you don't retire if you retire after that date you will not get health care that's why our overall two hundred people retired and honeywell did this because it was to their benefit honeywell was able to reduce the senior workforce and allow less senior lower paid employees and the more senior people were able to say ok i will take a reduced pension significantly reduced pension sixty five the premium rates we put in some declaration to talk about the premium rates to be over two thousand dollars twenty one for a family coverage and their pensions are maybe a little over two thousand the people in essence go without health care that doesn't always provide health care coverage unfortunately doesn't do what people thought it would do and they're still going to be paying a large sums of money so the lack of health care i think is been uniformly held by the courts not just in retiree health care context but in all health care  cases to be irreparable harm and and here i want to go back to what these people retire not just based on the contract language but what they were told by honeywell bargainers and h r people i thought they were told if you want health care now you've got to retire before this date under the special retirement program to be guaranteed health care if you retire after you're gone that's why vicki hanson that's why these people gave up their jobs to reduce pensions for health care to sixty five and honeywell real reliant on tackett which has nothing to do with the eight circuit jurisprudence has pulled the rug out from under these people may have some to do with the sixth circuit which is where i've had all the other keys with honeywell here they pull the rug out from people and say well we're going to gauge in a hyper technical abstract interpretation and then look at this language and say it's not vested the district court heard the evidence and found that there is a reasonable basis for success and i believe that there is a strong basis for success because in a specific promise has been held in the fourth circuit that does not apply our young man presumption is held by the ninth circuit the does not apply the presumption to be a durational promise i don't know i don't know how else you can be clearer than saying a promise until sixty five that's a clear promise a reasonable reader of the record which is what you have to apply common sense was what the district court said what would what would a person reading this believe when they're giving q and a a long drive health care until you turn sixty five when does it end when you turn sixty five that's why these people want to know and that's why i believe we're entitled to the point marion junction and hopefully ultimately on the merits but we're not asking you to rule on the explaining what the effects were whether it's reduced you know how much the pension would be reduced and what they would get rid returned his or anything like that any place in the record i don't think in the record about a reduced pension we have declarations that say they take reduced pensions and i don't think there's any dispute that if you retire under age sixty five there's a formula that you're going to take in like ten percent twenty percent less but they q and a's mainly talk about the health care benefits not the pension benefit thank you your honor a couple of points first of all council made the same mistake you make since briefing says that the contract says until sixty five it doesn't say that it says precinct sixty five only which is clearly eligibility language and i think that also helps with cooper because your honor as well if you agree with cooper do you need to reverse absolutely if this court agrees with cooper it does need to reverse in fact cooper was in some ways a harder case than this one because the language in cooper did say until sixty five it used the word until which you one could argue had more of a duration is accurately describing that the terms of the plan that are then in effect which is what honeywell should be doing it should be describing what you're the one who said i'm till sixty five has some space has some meaning and that's what the q and i says you're eligible for health care until there's a question that says if i retire after april thirtieth two thousand and seven what health care benefits will have available and the answer is if you are tired from honeywell after april thirtieth two thousand and seven you will be eligible to be covered by the health care plan designed in effect under the current contract and any future negotiated changes to health care benefits that means your contributions in prescription drug co pays will follow the two thousand and seven contract until april and ten your retiree health care benefits will be a mandatory subject to bargaining in all future negotiations so i think they're clearly signaling to the retirees that look the contract is time duration is time limited so are the s p d as these benefits are not vested