employee of predecessors to the current day travel port she retired with or she left employment with approximately twenty eight years of service truck at a predecessor's of travel port and she left with a deferred this vested pension that had a normal retirement date of two thousand and one she left scuse me two thousand and eleven she left in one thousand nine hundred and seventy that we're in this prison if i can interrupt you for one second the facts here are long  they are down and if you and if you start down that road we're never going to get to the issues that you want to discuss yes or so i have a i have a question to start us off with regards to your contend constituted the violation is not a problem for you no sir because of rule eight which says we just need a clear and concise pleading that puts them on notice  it does not have to be pled with particularities because rule nine does not apply and they are fully aware they are more aware actually of what documents if they haven't produced then we are and so as to historical plan documents you know it's we don't know what we don't know and so to hold us to a higher pleading standard would be counterproductive in this case well can you can you help me out here and now and tell me what you requested that you were not given yes or we we have determined that we know certain documents we were not given there may be more but the short list  required to be updated at least every five years so that is a sixteen year gap that it's unlikely impossible that there's not an s p between those years  these continue to have the pre night prieto any five year old service problem one of the main issues in our case is whether or not she gets twelve months of service and what we want to know from those galileo as few days as whether or not or all the expertise frankly which we don't have is whether or not the statement about crediting the years ages twenty one to twenty five the provision that is meant cited by defendants in the plan say that for every month you served between your st birthday and your th birthday you really will receive one month of benefits service and so our argument is that should be followed the defendant's argument is you do not get your st birthday unless you've already served a year before you turn twenty one dollars so there's a conflict alleged conflict between the plan document and the s p d so what we need is the s p d because we need to see what i say about the twenty one to twenty five issue all right let me pivot on the documents issue to your last count yes or and that's the breach of fiduciary duty claim and i understand that you take issue with the district court saying that that fiduciary breach claim was essentially a mirror image of your other claims so i understand that argument yes but if all you have in a different case is a failure to provide documents that is controlled by  fiduciary duty claim has problems right because you're as i read your breach of fiduciary duty claim it has three prongs failure to warn miss williamson about what was happening what was going on and i was going to affect or i understand that part of it but the other parts were failure to maintain documents and failure to provide documents the rd part of that seems to me to be problematic ok because if if you're alleging that travel sport violated  twenty four by not giving you documents it had to give you and you have a remedy for that and a statutory penalty under one thousand and twenty four dollars how does that convert or make out a breach of fiduciary duty claim let me documents we have to allegations the documents that we are alleging that were not maintained relative to the pension plan not the plan documents but source documents related to the employment under self you cannot possibly administer your plan without source documents that allow you to in this case figure out what final average compensation and months of benefits service consist  and in this case we have a situation where the summary documents that work at were completely and accurate as we allege and were proven to be completely inaccurate as to final average compensation and we allege are also completely inaccurate as to months and months of benefit service you cannot it's not conceivable that you can have a duty to administer a plan under risk and can be so absolutely sloppy and inaccurate as to not keep accurate sufficient records under a recess to administer your plan in such a matter that you cannot prove the entitlement benefits for your participants cannot administer the plan in an efficient and accurate way i have one more question for you take you over your time because i want to ask your colleague on the other side about this one of your arguments on appeal is that the district court should not have conducted without briefing from the parties and without argument from the parties a full merits based a determination of your one thousand one hundred and thirty two benefits claims yes tell me why district court as it is an appeal and without that administrative record you cannot know what was in front of the administrator when they made their determination the decision to make the determination here was not based on the full record there's no dispute about that what defendants appellee say in their brief says while the court had enough to do what it wanted to do well the court thought it had enough but what the court didn't have was the full record and that's a dangerous precedent to set there are cases like slackman an unpublished case in front of the court  where there are finite discrete legal issues that can be determined at the rule twelve stage nobody disputes that you can determine rule legal issues at the rule twelve stage but th complaint that was before the court has so much more complexity than single legal issues there are multiple factual issues that require discovery and the court made a determination on judicial review without the full set of documents before it he had he had no idea whether or not well he did know we told him that he did not have the the full set of administer the administrative record before him separate question from whether it was appropriate to decide the case in the way that he did it rather than going to summary judgment but let's say that you don't get any more documents through this process do you think that the administrative record of can end up supporting your position or do you need an order that your their client should receive the additional documents that she's asking for that's that's an interesting question your honor there is a notation in their final appeal letter  the travel port the plans final appeal letter that they did an alleged investigation in a personnel files which is exactly the types of records that my previous counsel was asking for all along during the administrative process it's possible those are in the administrative record we won't know that we don't have the administrative record the court in at the administrative records it's possible those source documents that we've been asking for all along are actually in the administrative record but until we get the administrative record and have the possibility to look at it determine whether or not we need to challenge what's in it or what's not in it we do have that right under the th circuit then we  ninety nine she had a statement that told her exactly how her benefit would be calculated she puts it off the side saying well i was really only concerned with that lump sum part of it but it showed everything about the calculation she  waited approximately twelve to fifteen years to question whether or not any of that was accurate and that's something that simply can't happen well it turns out she was partly right well she did turn out to be partly right and she should brought that up with the company she was working for at the time but in today's complicated economy companies go through mergers and acquisitions and spin offs and combinations and being  contemporaneous with the errors that are on the records are important because frankly we can't have warehouses dedicated in this country to storing all of the documents that would be necessary for all of the source information she wants to talk about said that the implication is it's about ten years that that was the expectation of congress was that these records would be kept for ten years and that is i think a fair reading of the legislative history what we have gotten in during all these changes of our own and are ours are we suspect that we do not have anything resembling what she was brought to these things get digital diet and gotten digitized since we've come into the information peer in the information age and as a result we have what's kept in the system on this which in this instance for instance it is her annual compensation it doesn't give her the weekly stuff she wants it doesn't give her the monthly stuff whatever it is that she thinks would allow her to have a better handle on what her pension amount would be we have the data that was stored by predecessor companies  problem well your honor there i can see instances of which would be problematic this is but this is a case that came forward with what was it thirty to thirty four attachments to the complaint that was plaintiff's choice to plead with that instance was interpreted in plan documents which is quintessentially a legal question and therefore is analogous to any other legal question that you would do on a twelve b six motion that's why for example the nd circuit in the pruett or versus local to twelve pension fund trust fund case approved similar grant of a motion to dismiss where the plaintiff came forward with the plan documents three there may be other things the administrative record including for example some of the documents she claims she will hasn't been provided that might lead that this tric out it's one thing if you had moved right and you say those thirty three dollars documents plus the detailed allegations give you enough to make america terminations here's why we went on every single one of the benefits claims and you go forward and then this williams n gets a chance to respond either in turn or says we can't do it this way we have to go to the administrative record or whatever all those arguments the district court ended up agreeing with were not arguments made by you that's no blame on you or tr for in the way the case was litigated the issues just weren't teed up in the normal way and to me that's a little bit concerning well let me divide it into two pieces that are there your honor one piece is did he have was a the administrative record contains something else both of the letters from both at the initial claim stage and stage list in the ticklish detail the documents that were considered ms williamson has all of those documents all of those were turned over in time so there aren't additional materials in the ministry of record that are missing from her were all those attached to the st complaint i honestly didn't compare it up that way but i think that the important ones were and it does the district the question is as a district court have to have every piece of paper in the administrative record in order to have issued an opinion on it absolutely not i mean you we have all the time in l t d cases in other types of benefits where an enormous amount of the file is things that no one will ever consider because it's just not part of the function district court it's been put in everyone has put it into the administrative record because it's been argued about but it's become irrelevant over the course of deciding the issue and that's the same thing for instance with the  record below that appellant's did not put in every document that they had in there in the appendix because they knew that many of those documents they did not believe were important to the court's consideration there's always a calling of a record as you go through  appeals process and also let me give you that sort of document i'm thinking about and it's because i had a case like it one of the individuals at the plan administrator who was tasked with the initial level review of the appeal doing the ground level work came to a conclusion  based on facts not one hundred and twenty three and four but three hundred and forty five and six but that employee's initial assessment was in the administrative record and it provided at least a vote on whether or not there had been an abuse of discretion by the administrator in reaching the ultimate benefits does that's the sort of document that a participant like ms williamson is never going to see unless the administrative record is produced now there may or may not be anything like that and i'm not suggesting that there is in this case but it's just the fear that you just don't know until you get a record the administrative record ma when the issues in the record are ones that are factually be this isn't a factually based determination it wasn't one that the district court made which was what i want to get to on the nd part of what you originally raised which is beyond the fact that we know what records were reviewed and therefore we know what may have gone into into the terminations this was about how to interpret plan documents and how they applied in this particular instance so the question of whether  years of credit you get for twenty one to twenty five all busy a pre arrest period in this instance is one that comes from the plan documents and it comes from how you interpret the plan documents the argument has been made for instance that somehow or another that should be changed because of what was said in s p d that was issued twenty years after or ten years after ms williamson left the company so those issues can be done on the face of the documents and for the district court and whether or not anybody and this is not the case but to work with your hypothetical anybody within the company debated whether or not that they thought that the interpretation was right or not when the employee benefits committee issues its interpretation it gets the deference and it is the interpretation of it they may i understand that it's some companies or some in some benefits committee is there maybe a debate over whether or not the proper interpretation is x or y have we thought about whether or not there should be z consideration but at the end of the day the committee makes a determination and the question is you look at the plan you look at the determination is it reasonable that's what this court has said you know as long as i've been associated with anything coming out of this court that goes back to a clerkship that started the middle district of florida nine hundred and eighty seven it's been a longstanding longstanding law in this in this court that it is about what is reasonable and what whether or not the committee acted in a reasonable manner and interpret in the plan documents when the plan documents authorized them to do so and that's what occurred here your honor they reasonably interpreted the plan documents and the exclusions with regard to certain service for the ms williamson are part of those plan documents i know there was a question about whether or not the the the complaint is adequate in its allegations on the document penalty and we think that because document penalties are precisely that penalt which are strictly construed you do have to have a certain level of specificity in the claim it's not a lot but it's missing here you have to legend what is the writing that you're claiming requested the  documents and what were the documents that you didn't get as a result of writing of course you might have to speculate a little bit to whether or not you didn't get something but the statute is very clear about what documents are entitled to for instance when palance counsel tells you well we didn't get the s p d for all these different years the statute tells you you only get the current s p d that's it that is the only document and those are not documents under which the plan is  with regard to the plan we've turned over all of the plan pieces that have any any type of influence over the determination of ms williams mr williams and benefit circle back around because i did i realize that i didn't finish answering for you the question was a proper for the for the judge to take a look at the benefit claim given the way that it was posed and i think that it was for this reason we raised both in the original motion allegations to make that a plausible claim and that's that's fundamental to what is being done with the benefit claimed in cases the answer to that was between the original complaint the amended complaint was just to simply add a conclusory allegation about abuse at and we raise that again and we've told the district court we have laid out the reasons why this is  correct in the various benefit denial letters and they are attached to the complaint if they can't identify what is in those that would constitute an abuse of discretion they do not have a claim so they were put on notice with the motion to dismiss that they needed to at least articulate at least articulate your honor what was wrong with the analysis of the of the benefits committee because that analysis has to do with an interpretation of plan documents those plan documents were already in the r and that would be enough to get past the motion to dismiss having failed to make that articulation having the opportunity to do so and have the opportunity to say wait this should be done by summary judgment none of that appears in the record your hon that was not the argument that was made that's not what a complaint has to do well the complaint has to state a plausible claim not a claim that is a winner no it doesn't err it's doesn't have to be a winner your honor in terms of being able to  the evidence on it but it has to be a winner in the sense that it is alleged something that if believed were proved to later in the proceedings would end up being a winner you have to at least have the minimum facts that you  basis that you would win if you had all of the whatever factual discovery you might be entitled to a jury believed it or in this case of bet it because it's a bench trial the judge believe it i don't think that's the standard isn't the standard whether or not the claim is plausible and beyond a speculative level it is whether or not factual allegations factual allegations that make it plausible right so isn't in you're going to win no but to say there is an abuse of discretion without explaining it doesn't is implausible that's just stating the conclusion that you're trying to get to if you're wanting to state that there's an abuse of discretion the plausible pleating is to say there was an abuse of discretion because the committee overlooked x or the committee interpreted this plan for vision the wrong written way or the committee did not take into account these facts and had to list every last one of them doesn't have to list anything more than enough that if it's on there a judge could conclude that if that was demonstrated that would end up being a successful claim so you have to make out an abuse of discretion legal argument in a recent complaint benefits claim you have to set forth sufficient facts to allow the court to be able to infer that the russian occurred for instance in an easier case than this one to deal with if it was a long term disability claim you'd need to set forth the facts that would show that the person is plausibly disabled under the terms of the plan that's what i could i get those all the time that they don't just simply say she contends she's disabled it was an abuse of discretion to to know of a wrong that looks a lot like the district court reviewing the merits and saying after of you know all of us i agree i don't disagree with with the way the planet ministers are are seeing this isn't that quintessentially a an analogue to breach of contract claim the st thing you do is read read the contract and determine whether or not there's something that could be breached so oftentimes you have motions to dismiss come before you  appeals for motions to dismiss on breach of contract where the court below is said i read the contract there's nothing here to breach that there was no breach because the contract clearly empowered the defendant to do what the defendant wanted to do that commonplace legal situation the plaintiff may argue well i needed discovery on this because i think the contract is ambiguous and what the courts do is make that threshold determination of whether or not the contract is ambiguous and then whether what the rights were if it is not if it's ambiguous of course it has to go through the discovery process perhaps but this was a case where the judge agreed that in essence this plan is not and fifty three dollars specifically said that it had all a l l all of the information considered by the trustees it said there is no requirement that the administrative record be coal aided him or in a  particular fashion or it may be produced via affidavit so long as the district court is provided with all of the information considered by the trustees in making their decision their requirements for an administrative record is satisfied that means crude or even wouldn't allow this we didn't have all of the information we still don't have all of the information printed doesn't help here and and the analysis is not it was not simply analyzing the plan language there are three issues here two of which are extremely fact one of which is analyzing plain language but it's  and document language which supports our document penalties theory but let's let's talk about those three issues right now and again all of these are to go with the calculus under the  got the st year of service issue correct you've got the missing twelve months of benefits service issue which is factual and you've got the fifty four months of benefits service issue with  which again we get to a reliance as a fact as she is that's not a legal issue the court doesn't get a judge reliance at the pleading stage he doesn't get to make a fact finding at the pleading stay and  probus contention that the s p d don't have to be produced that the requirement is that the the plan document needs to be produced or the plan because under twenty five scuse me one thousand and twenty four the final provision is in addition to current planned current s p d trusts contracts it says and any other document under which the plan is established or operated that's the operative language and we have six circuit and seven circuit cases cited in our priest that say that if you rely if you trust plan plan administrator rely on historical plan documents to operate your plane and those become documents plan documents under which the plan is operated or stablished and  cited any case that says if you actually rely on prior plan documents including s p d or anything else that that that takes it out of that cut catch all phrase is operated or established now do we have all of the documents we do not have all of the documents they're not all attached to the initial complaint there were things that we didn't attach the initial complaint we certainly as i mentioned in my opening statements we certainly don't have the personnel files that they mention and they are appeals letters i see my time is coming to a close i'd like to finish by saying there is no requirement to challenge a statement pension estimate there's never been a requirement to do that there's no legal requirement and  told just admitted that all of the evidence that they purport to complain about having to keep is digitized in this day and age people's  st asset is they're usually their house rock real estate records are kept for literally hundreds of years likely their nd asset is their pension plan if if it takes forty years worth of recordkeeping to get your pension plan accurate then that's what it ought to take neither columns nor any other provision of the law says pension plan administrators can shock the records after six or ten years