will recall or in this case the question is how is mr rose pension calculated once he has started receiving a pension and continues to work continues to accrue additional benefits the question focuses on section four point four j two of the plan and how it's to be interpreted i have to show that the provision is unambiguous if there is ambiguity if that way the way why doesn't the use of the phrase based on introduce sufficient ambiguity just and the case right there just for the reason you just gave because based on is in the previous paragraph based on is not used two it's only used in one based on refers to a unique thing that happens on the first determination and we're talking here about lead determination the determination is based on not your crude benefit at the time you start your pension in april first or rather the preceding december thirty first no one contends that that's what happens in the redetermination so yes the determination the initial determination is clearly based on the accrued benefit as of the previous time but the redetermination provisions specifically don't use based on the nine times accrued benefit is used in just section four point four it isn't that's the only example of it being based on accrued benefit i'm just wondering though the point four j two it starts out of members accrued benefit shall be redetermined and everyone agrees that that means you take the rate times the years page twenty one of defendant answering briefs the first step is to take the new rate times the years so read determined means rate times years the question becomes then in the provided however clause where it says the accrued benefit as read determined rate times years shall be reduced by this big number this actual worry over value and everyone agrees that's what's to occur but then the next you s including the reduction well we submit that it's not because the previous words phrase says that accrued benefits as three determined shall be reduced so it was so you're you're seem to be consistent with the term accrued benefit because i think it's an e r ninety two the plan says that the members accrue benefits shall be increased by a formula and e r one fifty the plan says that the accrued benefit is the greater of two different calculations so i'm sorry it just seems like that term as it is is modified or adjusted at different points in  yes starting with one fifty the members accrued benefit computed under section four point two which is great times years and this one this is what happens if there's a prior term a nation yet no prior terminations how but the section deals with how do you calculate the benefits when there is a subsequent terminations and do you add the accrued benefits do you start a new or crew of benefits but it's still using a crude benefit as defined in section four point two rate times yours and the other one i believe yes we're we're still in section four point two and there are provisions for exceptions for rape times years in four point two for certain groups in other words if you are in this peculiar group which miss out it was not then her accrued benefit would be effective because the union negotiated a additional accrued benefit the but the definition of accrued benefit there is no such increase or decrease in section four point four j two saying here accrued benefits mean something other than four point two it's a matter of fact we all agree that the first use of accrued benefit in j two means rate times here's there's there's no dispute about that it may be that and apparently as an other sections  four point four four point two definition is increased because of certain things there's no such increase here the defendant is contending there's actually a decrease so they say accru benefits shall be redetermined and that means rate times years now add any increase in rate now at any increase in years and we all come up to the starting number we're all agreed that's the  d benefit and we're all agreed that the the january first increase is adjusted for any increase in such occurred benefit the second time and that's rate times years but then we get to the provided however and we agree on the meaning of three that the approved benefit rate times yours as redetermined rate times yours is reduced we all agre e and we agree on the numbers by which it's reduced what we don't agree on is the fourth use but not below the approved benefit has just read determined as of the mediately proceeding they're saying in that instance accrued benefit no longer means rate times years it means great times years less the reduction and yet that doesn't explain why the previous one had to say sell be benefit rate times years less the reduction even though it doesn't use the word as reduced and other words there inserting two words but not below the included a crude benefit determined to determined and either there inserting as reduced before accrued benefit to reduce the crude benefit argue a plate but it doesn't say the reduced acute approved benefit or the accrued benefit read  d and reduced but it doesn't say that the it occurred to me that all they have defended is arguing that they're doing everything the statute that allows them to do and it occurred to me if from my contracts professor said if you want to follow the statute track the words of the statute here they have a rube goldberg of trying to accomplish the same thing the statute tries to accomplish if we use their formulation all we have to do is change the provided however to read any additional accrual and this is from the statute shall be treated dissatisfied ser but you could have an offset and it sat it in certain words so why didn't they just take the statutory words and put it in the plan and they would have read provided however that any additional accrued benefits quote shall be treated  satisfied to the extent of the actuarial equivalent of the in service distribution of benefits that's all they had to say the statute i assume is is right in front of them and yet they choose a formulation and we say no one has suggested another way where the floor goes up every year it's one year behind the actual accrual this is how it would be set the exact same way the you know i've tried rearranging i'm doing other things and saying is there an easier ways or clearer way of saying we want the floor to be one step behind the participant of this list or for your time so i thought i want to ask you your interpretation inconsistent with the plan stated purpose of providing income during retirement well the plans of the plan has many purposes of course one of which is provide income very retirement and then congress says excuse us but after age seventy and a half you have to start distributions and if the person is still working here's how you can you have to provide those additional with rules you have to the law says you have to but you can take your credit if you want to date they took a partial credit that's what this language means they could have taken a complete credit by tracking the statute many plans take no credit to they claim acknowledged then that her benefits may stop increasing yes so i guess was it your argument consistent with that fact means she knew that and acknowledge that or argue that her good morning still morning i'm a please the court daniel fears on behalf of the employee retirement income plan of boeing is respectfully submitted to the panel that  or asks this court to reinterpret a plan that has been in existence for decades but reinterpret it in a way in which it has never been interpreted for over twenty years and reinterpret it in a way th miss auto and at the same time essentially focusing on two words as opposed to the interplay of two significant section it's of the plan four point two and four point four j and the context in which they must be rammed as this court has already noted one can look at the plan and the term accrued benefit throughout has certain adjustments made to it for instance and four point seven there are adjustments made to accrued benefits for early retirement as the court indicated even in four point two there are adjustments that are made when one looks at filling linguistically i mean you could read this language but not below the accrued benefit determined or redetermined as the simple multiplication of the years times rate accrued benefit that's a starting place and that's multiplication although even if one looks at four point too appellant has has characterized it in a certain way it actually refers to the amount payable at age sixty five in four point two eight and then in four point two b the section quoted by appellant as well refers to the years of service at terminations which at seventy and a half miss auto was not terminated so the plan has to interpret even those sections to have some rationality for someone who continues to work after the sixty five retirement age that is originally in four point two a and so there is a need for interpretation that occurs even in the four point two section so when you get to four point four j a section that is specifically a drafted for the purpose of addressing a situation in which someone does continue to work and at one time counsels correct there was a statutory requirement but that piece was repealed and boeing's planned continue to allow retirees to both draw down on pension as well as continue to work and thus encourage people to keep working because they can get both a pension and continue to work a good thing so there's no suggestion either by appellant or anyone that there's any desire to hurt or harm any of the retirees or pensioners that were qualified here he's locked into at a sensory locked in at a at a rate that was determined back in the one nine hundred ninety s not totally but partially i mean first of all the plan is a defined benefit plan that anyone that retires is typically locked in for ever more so once they retire she whether serious five somebody continue to get the benefit of her services she didn't retire so well she's locked into it so for a few years she did get the benefit so if you should she isn't that sweet spot she actually benefited greatly here because she can both continue to work and received a paycheck and she deserve that but she also by virtue of being in service pension or retiree if you will those are somewhat contradictory but by virtue of that she did have an escalation in her rate it started out in the five hundred five ninety two or something and went up for a couple of years alternately to seven twenty four other people retiring they are flat they stay the same defined benefit she went up now that gets us to the four point four j in the purpose of it and basically the purpose is so that you're not paying attention twice in essence from an actuarial standpoint so the the mathematicians in the actuaries look at this and they say ok you will receive your pension starting at seventy and a half and that will escalate but we are going to return redetermine that amount and this is the section that appellant somewhat glosses over there's a redetermination of the accrued benefit such that you did ducked the equivalent the actually swivel and of those payments that are already being made because sure there's a benefit that's accrued but those payments are being made and then when it gets to the point actuarially that you have drawn down a sufficient amount then we're not going to penalize you and reduce your benefit but your benefit will stay consistent with that redetermined amount from the prior december thirty first and so in the record there's a very detailed methodology we in our briefs now it's the actuarial factor determine short that was done by mr jacobson who has no stake in this and by the way there's no evidence or suggestion of bad faith this is a plan that has a purpose of providing pension benefits providing bench and pen of it's for those that retire and those that continue to work and making sure it's actually sound and the actual benefits they show how it's redetermined each year and at some point after it's redetermined where the amount of the benefits that you've already received more than offset because you're taking down your pension benefits that's when you're not going to go be low the accrued benefit as re determine from the prior year december thirty first just as the language says in the plan now through the course of this we had twenty three years we've had one of politics one person one lawyer that has essentially said well i have a different read on this language and as this court knows the question really isn't who specifically right who's wrong or who's interpretation is best or who has a better interpretation but we do know is that for twenty three years prior to this issue coming up that the plan interpreted it this way and it wasn't challenged we've had a district court judge kronstadt a respected judge twice analyze it and not give a minute order but analyze it twice and he has said well while i understand you have an interim petition certainly the plan's long standing interpretation that is consistent with the plan goals is an interpretation as well and as counsel mentioned as he must under  firestone and night circuit authority that where there are varying interpretations of this language especially that redetermination language then there is great deference given to the plan unless there's bad faith or unless it's so or stand it correctly that because of adjustments in the in the rate that is multiplied by the number of years of service that somebody with now who would retire with much less years of service would be receiving a greater pension then misato who worked for the company for over forty years not necessarily i mean misato is someone who lived long beyond mortality rates and if you look at the amount that she received and drew down she in most cases will have drawn considerably more then than others whereas an enormous retiree that lives on average the pursuant to the mortality tables in the rates it's going to be less while it is a later time and they they of course have not been drawing down a pension during this period of time and they wait till the end for instance if this auto waited until age ninety five we've also we also have a and that's in there as well that's the appeal the supplemental excerpt of records at page zero zero seven nine it shows that had she waited until ninety five and then took took advantage of that higher amount at retirement or terminations if you will as perform point two then her amount would be considerably less it was about one hundred sixty three thousand if she had retired at age seventy and a half hour early right if she had retired it's seventy  this three hundred thirty four by virtue of her being in that sweet spot as i mentioned before she gets the benefit of some escalation during the period of time she continues to work but then at some point in the plan the actuarial deduction of the cumulative payments as per the language in four point four j those are deducted and then she does hit the ceiling and she continues to receive that benefit indefinitely and still receives that benefit in death i now see as she's making this argument for the first time in you haven't been challenged on this before and and i know that you're arguing that the that the text is ambiguous but it's interesting to me because it seems like most obvious interpretation of the plan does seem somewhat stronger whether it's enough to be the only interpretation i guess is what we have to determine today but that doesn't the plan seem to distinguish between the redetermination and the reduction of the accrued  benefit the duction is part of the redetermination if you look at accrued benefit that's a simple calculation that is years time service is not a redetermination this is accrued benefit which built into the definition is years time serv december thirty first so there's no dispute that there's a redetermination that takes into account the deductions if any down to the no lower than the amount that was that the accrued benefit was read to term into the year prior december thirty first and then that becomes the floor for the amount payable on a going forward basis and only as reflected in the chart that i mentioned before where  the actuarial equivalent of those payments is so great that it exceeds the amount that she should have received then it at that point she continues to receive the amount that was the accrued benefit that was read to term in the prior december thirty first you may have answered this in response judge been asking but you know because we proved a different what why should an active employee's benefits continue to increase each year as the employee keeps working well i suppose the analogy would be if you had a bank account and if you left the money in the bank account and it aged sixty five seventy or seventy five started taking the amount of money down for a period of time for the expected life then there is going to be obviously a higher amount of ailill on the other hand if you start taking that down before that higher age you are taking down the funds that are part of that that have already been put in the bank you have attacked essentially the corpus and there is less there here in the case where someone really takes in service pension and is taking down or receiving their pension while working there is a they're both on pension and receiving a salary they are taking down money that otherwise would have only been given to them at the time where they retire or terminate for that limited period of time after retirement so it's a it's in a way an actuarial double dip and it's based on mortality tables it's not based upon misato i mean this case was styled as a class action and so if you looked at the the wider body or group of people from an actuarial standpoint if you did this then the then those individuals would take down more from the plan than actuarially was accounted for and that's why they have this this four point four j where they make those reductions and then cap it off to where it will not increase once those deductions have been made once the offsets have been made then the their benefit will not increase after that once it from a calculation standpoint goes below they'll still continue to give them the benefit just like a retiree gets stated benefit as of that time there certainly could be an election for someone to wait and take it later and obviously there's other examples similar example social security taking it earlier rather than later your benefits going to be less rather than greater it's an actuarial mathematical equation i probably don't have much time left and it is late but let me just close by saying if for over twenty years the plan the plans lawyers plan administr r have interpreted this plan just the way i have stated and there's no evidence of bad faith in that regard not until roughly two thousand and fourteen is there a new interpretation that comes about and as you can see from both argument as well as two hundred pages worth of briefing at the district court level and at the court of appeal level basically the appellant is saying that  interpretation is is better or it's the only conceivable interpretation it's the only reasonable interpretation and at the very least that's simply not true as evidenced by the long standing interpretation consistency with the plan and a district court judge who was well said that's an intrapreneur taishan i understand that but the plan has an intra partition two and a longstanding practice that's consistent with the plan and given that in the state of the law that great deference has to be given to the plan in terms of calculating this otherwise it completely upsets the plan a final point is and i know we haven't there hasn't been any considerable dwelling on it during argument but this also doesn't involve a situation where the plan has advised the appellant here going back to one nine hundred ninety one and ninety two consistently put the plan on notice of the fact that this was the calculation and it's not until roughly two thousand and fourteen that there's a challenge to this and so the standard we believe notwithstanding the district court's decision is whether or not they reasonably the whether the appellant that appellant reasonably knew that the claim was being denied and we submit that over twenty plus years the claima yes mr firas points out that the early retirement benefit which is described on e o are to dash want to eleven has an actuary every duction indeed it does it says that the early retirement benefit is the a crude benefit as computed in four point two actuarily reduced by a factor of six percent per year before age sixty two that's right if using the accrued benefit and saying we're going to reduce it because you're going to get your pension for more years that's exactly what we're talking about does a redetermination process in the first three examples in four point four j two we know means rate times years the question is does the use of redetermination mean something different in the fourth years mr pierce talks about withdrawing from a bank account that elinor otto is also putting money into  account boeing is putting money in for contributions for her dish and act years and the increased rate so is she double dipping of course not if she had left at age seventy three  and gone across the street to work for lockheed and her identical twin sisters say comes across the street and comes to work for boeing now both companies have to pay a double pension they're