John G. Roberts, Jr.: We will hear argument first this morning in Case 09-804, Cigna Corporation v. Amara. Mr. Olson.
Theodore B. Olson: Mr. Chief Justice, and may it please the Court: Congress crafted a carefully balanced ERISA enforcement scheme that enables plan participants to recover plan benefits under section 502(a)(1)(B), and equitable remedies for ERISA violations under section 502(a)(3). In this case, Respondents are seeking a remedy for misleading plan summaries that violated ERISA. Their remedy, if they were harmed by defective plan summaries, is under 502(a)(3), equitable remedies, not for plan benefits under 502(a)(1)(B). The section that governs the relief that is sought is a necessary antecedent to any of the other questions in this case, and ERISA carefully structures, and this Court has repeatedly said the Court is not interested and does not -- is not willing to alter the structure that Congress carefully crafted and carefully developed over the years to provide remedies with respect to ERISA programs. And the scheme is such that, if there is a participant to the plan who is seeking benefits under that plan, section (a)(1)(B) of -- subsections (a)(1)(B) of section 502 provides for relief under the plan. If there are other violations of ERISA, section 502(a)(3) provides for equitable relief. That is the scheme carefully developed by Congress. Now, in this case what happened is that Cigna changed its pension program, its ERISA plan, from a defined benefit plan to a cash benefit plan, cash value plan. And it put out, as required by ERISA, summaries of the new plan that the district court found, and the court of appeals affirmed, were misleading in the sense that they did not provide all of the information necessary for plan participants to evaluate what was happening. Now, the changes to the plan were lawful. ERISA permitted and does permit these kind of changes to an ERISA plan. There was nothing unlawful about the plan and the plan change. And the beneficiaries, the participants to the plan, did not have any choice. Cigna had the right to change the plan. It did change the plan. It did have an obligation under ERISA to provide accurate summaries, and the district court and the court of appeals found that those summaries were not inaccurate. In other words -- they were not accurate. In other words--
Ruth Bader Ginsburg: Mr. Olson, when you say the employees had no choice, but the district court found, didn't it, that the reason for this plan summary being misleading was that the employer, Cigna, feared that there might be a backlash on the part of the employees if they found out, if they were told the truth about this plan; that is, that it was less favorable, that they would not have the same benefits that they had under the prior plan?
Theodore B. Olson: --That is correct, Justice Ginsburg. They had no choice in the sense that Cigna could adopt a change in the plan, as it did. That was permitted under ERISA, but it was required to give accurate summaries. The choice that you are suggesting and the district court was concerned about is that an individual could have left the employ of Cigna if he or she was unhappy with the change in the plan, or the district court said there could have been some sort of a protest. What we're saying is that the remedy -- what was -- what was the violation is the summary itself. We're not -- we're not challenging that here. That's a finding below. The summary was misleading, but that makes it a violation of ERISA. The summary is not the plan. And--
Elena Kagan: Well, Mr. Olson, we have several times referred to the plan as having a range of documents associated with it, not as having just a single written instrument, but we referred to documents and instruments governing the plan. We did that in Curtiss-Wright, which is the case that you pin so much on. We did that in Kennedy. And the statute itself talks about that on numerous occasions, that there are documents and instruments, in the plural, and one would think that the SPD is -- is one of those documents and instruments that govern the plan.
Theodore B. Olson: --It's quite clear from the structure of the statute that is correct, as you suggest, that there may be multiple instruments or documents that are the -- create the plan itself. But the summary plan document, the SPD, is not a part of the plan. It is a separate document. It is a summary. It is a succinct statement of what might be in the plan, and it must be accurate and it must be written in comprehensible English. But I would refer the Court to section 1024 (b)(2) and (4), which are on pages 3a, 4a, and 5a of the blue brief. That describes the obligations that are required with respect to the summary plan document. And it describes the instruments of both the summary plan document and the instruments that constitute the plan itself in the following sentence -- and this is a similar sentence in subsection (4), but I'm reading from subsection (2), which is on 4a of the blue brief. It says: "Summary plan" -- it refers to "a summary plan description and the latest annual report and/or -- and the bargaining agreement, trust agreement, contract or other instruments under which the plan was established. " The construction of that sentence has to be that the summary plan description is a separate document. It is not one of those latter category of documents under which the plan was established. And the proof of that, if English doesn't teach it to us, which I think it does, is the reference to the annual report. No one would say and no one would contend that the annual report is a part of the instruments creating the plan.
Elena Kagan: Well, I was struck by something else, Mr. Olson. I was struck by the fact that the -- that the statute saying what is in the summary plan description is packed with information that needs to be in the summary plan description. By contrast, the written instrument, which you equate to the plan, the written instrument says barely anything about what has to be in it. It just says the name of the fiduciaries has to be in the written instrument. So it seems clear that this statute is set up so that everything that is important, everything that the employee needs to know and needs to rely upon, is supposed to be in the SPD, not necessarily in the written instrument.
Theodore B. Olson: Well, the written instruments, as these things turn out, are long, complex documents. They may be 90, 100 pages long. The summary, as you suggest, Congress said, yes, there is a separate document that must state in intelligible English that plan participants can understand the following things, and they must be furnished to plan participants, but they are not the plan document. The way that ERISA is structured--
Antonin Scalia: Am I missing something? They -- they cannot be in the SPD unless they are in the plan; isn't that right?
Theodore B. Olson: --Well -- if the -- if the--
Antonin Scalia: So the one cannot be more detailed than the other, can it?
Theodore B. Olson: --The plan can be more detailed than the SPD.
Antonin Scalia: Right.
Elena Kagan: But can't the SPD--
Antonin Scalia: Whatever is in the SPD must be in the plan; isn't that right?
Theodore B. Olson: Well, if the plan is -- if the SPD complies with ERISA, yes. It has to be--
Antonin Scalia: Yes. That's what I'm talking about, of course.
Theodore B. Olson: --Yes, exactly. But not everything that is in the plan, or the plan -- as the statute says, the documents that constitute the plan need not necessarily be in the summary. The words "summary plan"--
Elena Kagan: --But, Mr. Olson, what about the opposite? Because the statute seems to be written so that things are in the SPD which don't need to be in the written instrument. And together, they all somehow constitute the plan.
Theodore B. Olson: --Well, I submit that that is not the way the statute is written, and subsections (2) and (4) of the provision that I was referring to make that clear if the word "summary" itself did not make that clear. But the Curtiss-Wright case to which you referred to in your earlier question also proves that. Curtiss-Wright case talked about a summary plan description and said it can't modify the plan -- using "plan", "summary plan description", in different terms -- it cannot modify the plan, which is what the district court here held, unless the plan specifically says that it may be modified in a certain way and that the summary is an appropriate amendment to the plan. So the Court -- and this was a unanimous decision of this Court -- was referring to the summary as something that was separate, that might modify the plan if the plan itself allows for it to be modified in that fashion. Now, the government says that the summary plan description is a part of the plan and so do Respondents. And that's what the court below -- the court below didn't actually find that the SPD was a part of the plan. The court found, on the latter pages of its opinion, that it was a modification, it was an amendment to the plan. That is inconsistent with the Curtiss-Wright case because in this case the plan itself specifically says that it cannot -- does not say that it can be amended by the SPD.
Ruth Bader Ginsburg: I thought that what the district court said was that they would treat the plan as containing what the summary said, not that -- that it was part of the plan itself, not an amendment, amendment. I thought that was what the district court said.
Theodore B. Olson: I think in the -- on the page of the -- this is the summary to the cert petition, page 218, which is the district court's -- the conclusions of the district court's decision. Under Roman numeral viii, the district court specifically said that "The terms of part B have been correspondingly modified by the SPDs. " The court was saying -- I think you were referring, Justice Ginsburg, to the relief that the court ordered, but the court was ordering that relief on the theory that the SPDs modified the plan. And the plan itself under Curtiss-Wright doesn't provide for it to be amended in that way. And the SPDs--
Antonin Scalia: It can't be part of the plan without modifying the plan, can it--
Theodore B. Olson: --That's correct.
Antonin Scalia: --because it contradicts other provisions.
Theodore B. Olson: That's correct. And the SPDs, the two SPDs themselves on page 922a and 938a of the Joint Appendix, specifically say that if there is any discrepancy between the SPD and the plan the plan governs. The language is at the bottom of, for example, at the bottom of 922a. So--
Elena Kagan: But the SPD can't negate the force of ERISA, and if ERISA says that the summary has to be consistent with the plan documents nothing in the SPD can negate that requirement.
Theodore B. Olson: --That's correct. No one -- but Congress did consider prohibiting a provision like that in SPDs, that they could not disclaim, they could not say that if there is any inconsistency the plan governed, and Congress did not adopt such a provision. This is a perfectly legal provision, to tell someone that if there is any discrepancy -- and there is bound to be discrepancies. As I said, the plans themselves can be 90, 100 pages, very long and very complex. That's why there is an SPD that can't contain everything in the plan. And one of the thing that would be the outcome of what the government and Respondents are urging here is that plan creators, these companies that create these plans, either will be discouraged from doing it or they will start preparing summaries that are 90 and 100 pages long.
Ruth Bader Ginsburg: But they can't do that because the statute requires a summary to be understandable and not prolix.
Theodore B. Olson: That's Catch 22, because if there is a discrepancy because they have to be short, summary, and intelligible, then we are have -- we're faced with the proposition that someone's going to say, well, I read the SPD and it didn't say what was in the plan. If the SPD is as long and as detailed as the plan, then there is a violation of ERISA. My point I guess in this is that, yes, Justice Kagan, the statute requires the SPD to contain certain information. We accept the fact of the conclusions of the court below in this case that they did not do so. There are two SPDs. They failed to live up to the requirements of ERISA. There is a remedy for that. It is a violation of ERISA and it specifically says in 502(a)(3) that for violations of ERISA, equitable remedies are available. And that is what Congress decided. Unless it's a part of the plan, you must go under (a)(3).
Elena Kagan: But the very question here is if there is an SPD that is inconsistent in some way with the written instrument, what happens? Is the written instrument modified or instead is the provision in the SPD given operative effect? And that question is one about your benefits under the plan.
Theodore B. Olson: I would submit that it can't modify the plan unless the plan permits that. That's Curtiss-Wright. That's the unanimous decision of this Court.
Elena Kagan: I do think you are over-reading Curtiss-Wright. Curtiss -- Wright talked about whether a particular provision satisfied the requirement that a plan have an amendment provision. It didn't say anything at all about whether there are provisions that can have operative effect regardless of whether they pass through a formal amendment procedure.
Theodore B. Olson: It seems to me -- I think we might disagree about that, respectfully. I think that the sense of the opinion in Curtiss-Wright was that if you are going to say that this SPD modifies the plan, it can only do so if the plan permits the SPD to modify the plan. Then the Court sent it back to a lower court to determine whether in fact the employees that were involved in creating the SPD there had the authority under the plan to modify the plan.
Stephen G. Breyer: So far we are just discussing, I take it, whether under (1) the other side is entitled to their benefits even if they weren't hurt, on a contract theory.
Theodore B. Olson: That--
Stephen G. Breyer: All right. But I thought we took the case to decide a different issue.
Theodore B. Olson: --Yes.
Stephen G. Breyer: And that is: I will assume you are right, it should have come under (3), but I don't know if that is harmful, whether it was (3) or (1). And the question I thought we were to decide WAS, if you are under (3), say, where equity is at issue, now equity is at issue and the district court says: Here we have 27,000 people, and now here's how I'm going to go about this. I'm going to look at this provision mistake here, and the mistake it seems to me was likely to cause some harm. And once that is shown -- and they showed it, it's likely to cause it harm; we can't be sure, but it's likely -- then it's up to your client to refute case by case that these guys or women were not really harmed. Okay? Now, that seems very sensible to me. And if that's the issue we're going to decide, I would like to hear you explain why that isn't sensible. It's an equitable matter. This is simply a way of going about it. What's wrong with that?
Theodore B. Olson: Well, in the first place, it is important which section.
Stephen G. Breyer: I agree, but I don't understand -- I'm with you on this one so far.
Theodore B. Olson: So because it's a different defendant. The plan is the defendant, versus the plan administrator is the defendant, so that's important. Secondly, (a)(3) provides only for remedies that are available in equity. Then the point that you are making with respect to what provision of equity, what is the -- what is the action that's brought and what is the remedy sought, as this Court talked about in the Varity case, and so therefore those are those questions. Now, the Second Circuit said "likely harmed". The fact is, as I pointed out at the very beginning, this was a lawful change in a plan and it's a plan where 27,000 people that were employees were participants in this plan and they would have had to do, as Justice Ginsburg suggested, either leave the company and suffer some harm or engage in some--
Stephen G. Breyer: You are sounding to me as if you are saying there wasn't likely harm. Okay. Are you conceding that the standard that they used, the standard was -- the question that you raised at the beginning, whether -- whether the showing of likely harm is sufficient in the absence of a rebuttal?
Theodore B. Olson: --Absolutely we are not.
Stephen G. Breyer: All right. That's what I want to hear: What's the argument against that standard?
Theodore B. Olson: Six circuit courts of appeals have held that detrimental reliance is required. If this is an action under (a)(3) under equity, neither the government nor the Respondents dispute the fact that detrimental reliance would be required if you are proceeding in equity under (a)(3).
Stephen G. Breyer: Does "likely harm" capture that idea?
Theodore B. Olson: "Likely harm" is not a demonstration of prejudicial reliance.
Stephen G. Breyer: Why not? That's the kind of harm they mean. What they mean by harm is they were hurt, brought about by reliance.
Theodore B. Olson: Well, in the first place, it comes out of the blue, "likely harm", as I suggested, since this was a legal lawful change. People were going to retain their employment. They didn't have a right to opt for one or the other. If they could prove that they were--
Stephen G. Breyer: You object to this decision, saying the following: Of course, the lower court said likely harm is necessary. As we understand it, given the context of equity, what that means here is that there is reason to believe -- reason to believe -- it was probable that, or some words like that, that there would have been harm caused by reliance on the misstatement.
Theodore B. Olson: --That would not be justified at all. I mean, under equity, as this Court said in the Lyng v. Payne case, which is cited in the briefs, this is like an estoppel action. An essential element of an estoppel action is detrimental reliance on the adverse party's misrepresentation. What the district court below did was by coming up with this 27,000 members of this purported class somehow were hurt by a change in a plan over which they had no control, over which they had no discretion, unless they were going to leave the--
Ruth Bader Ginsburg: But wasn't the -- wasn't the meaning of "likely harm" simply that they were promised one thing in the plan documents, and so what likely harm is, is we have to do away with what they call, what is it, the wear-away effect? So that's the harm, the wear-away effect, and we have to remedy that. And the way to remedy it is to treat this as, what is it, instead of (a) or (b), (a) plus (b).
Theodore B. Olson: --And that would be an action to seek benefits under the plan, which would be an (a)(1)(B) action against the plan itself.
Ruth Bader Ginsburg: Yes.
Theodore B. Olson: Against the plan. The record suggests in various parts -- I can't remember which page to refer to -- that $70 million would be the consequence of this against the plan, on which some people, depending upon how long they were with the company, when they left the company, whether they were about to retire, whether they stayed longer and the interest rates fluctuated, there can be all, innumerable permutations of the effect upon persons.
John G. Roberts, Jr.: Then you can't--
Anthony M. Kennedy: Excuse me, Chief Justice.
John G. Roberts, Jr.: --Then you can't require, it seems to me, each individual to make a calculation about whether they have actually been harmed, whether there is detrimental reliance. The whole point of these plans is to give some people some comfort and assurance when they are age whatever, that: Don't worry; retirement is taken care, or at least I can rely on that. And your formulation would sort of put that up in the air and say: We don't know if you are going to be harmed or not; wait until you are 65 and we will see.
Theodore B. Olson: Well, Chief Justice -- Mr. Chief Justice, that is the statute. The statute gives you a relief with respect to a misleading plan summary under the laws of equity. The laws of equity would require that the person say -- demonstrate in some way that they were harmed. The petition -- the Respondents in this case, the named members of the class, claim that they were out some 30-some thousand dollars each. They would have an incentive to bring an action by themselves.
Ruth Bader Ginsburg: But it couldn't--
Theodore B. Olson: Under the rules--
Ruth Bader Ginsburg: --But it couldn't be brought as a class action, and isn't that a large piece of this picture, that proceeding as they did they can proceed as a class? Proceeding under detrimental reliance, it would be hard to get a class because it would be an individual case of detrimental reliance.
Theodore B. Olson: --The Rules Enabling Act provides that a class mechanism cannot change the substantive provisions of law. And so, it cannot be that because this is brought as a class action the rules of equity somehow change.
Ruth Bader Ginsburg: No, the question is, under the -- under the section that the district court proceeded under, not the one that you say is proper, a class action would be appropriate.
Theodore B. Olson: A class action might be appropriate but it would not change the detrimental reliance requirement. Again--
Anthony M. Kennedy: Well, turning to (a)(3), I have two questions. One is, as you -- and this is probably for your friends on the other side more than you. But as you understand the "likely harm" standard that prevails in the Second Circuit, is this likely harm to a majority of the members of the class, all the members of the class? Do you know? Has the Second Circuit told us what that means?
Theodore B. Olson: --Well, the Second Circuit suggested, and the government and Respondents, particularly the Respondents, say if there's a material difference likely harm is presumed. And the government itself says--
Antonin Scalia: Likely harm to whom? I think that's the question--
Theodore B. Olson: --That is the question.
Antonin Scalia: --that Justice Kennedy is asking, and I have the same question. Does it mean likely -- is it likely that the class as a whole has been harmed, or that each -- is it likely that each individual member of the class has been harmed?
Anthony M. Kennedy: Or -- or a significant number?
Antonin Scalia: Or a majority? Or whatever? What does likely harm mean? Do we know that?
Theodore B. Olson: I -- I totally agree with the import of those questions. You can't describe that--
Anthony M. Kennedy: My question had no import. I really wanted to know the answer. [Laughter]
Theodore B. Olson: --Well, the answer -- the answer is what the district court ordered and the government seeks and the Respondents seek, is they are all harmed by this, that there is any material disparity, then everybody--
Stephen G. Breyer: Maybe it wouldn't be too hard. They are joined as members of the class in light of a certain set of characteristics and the judge would find that, other things being equal, individuals who have that set of characteristics which in this circumstance make them members of the class would be harmed in all likelihood, okay? Done. Now, it's up to -- it's up to the -- the defendant then to show that in a particular case this individual wasn't harmed.
Theodore B. Olson: --It defies reality--
Stephen G. Breyer: Why?
Theodore B. Olson: --Justice Breyer, to suggest that the 27,000 people -- each one occupy a different position in terms of the length of their employment, when they might be retiring, what their benefits might be, whether they might take a lump sum or an annuity. All of those thing are different. And the only way they--
Stephen G. Breyer: Well, it depends on the facts. Maybe they'd have a union--
Theodore B. Olson: --The only way they could have been harmed, Justice Breyer, is if they had otherwise decided to leave the employ of the company and go someplace else. They could demonstrate that. If I could save my time--
Anthony M. Kennedy: Your white light -- just one more thing. If you proceed under (a)(3), doesn't Mertens bar the award of -- of monetary damages?
Theodore B. Olson: --I think it would. I mean, this Court--
Anthony M. Kennedy: Well, then -- then you are not offering us much. You say: Oh, please go under (a)(3), but then you go back and say: Oh, well, you can't get monetary damages.
Theodore B. Olson: --In the first place, that's Congress's choice. It's an equitable remedy that would be required. Congress made that decision. This Court has said it is not going to reconstruct what Congress carefully did. The thing is that it would have to balance people wanting to create these plans and go into these plans and the solvency and stability of the plan; what Justice Breyer is suggesting, and the Second Circuit suggested, is that you would expose plans to enormous liability because someone might think that someone might have left the employ of the -- of the company and taken a different job. That's not realistic. And -- and that's why it just came out of -- out of thin air. If I may--
John G. Roberts, Jr.: Thank you, Mr. Olson. Mr. Bruce?
Stephen R. Bruce: Mr. Chief Justice, and may it please the Court: Our position is that detrimental reliance is not found in section 102 of ERISA, which establishes the summary plan description requirements. It's not found in section 404(a)(1)(D) of ERISA, which establishes the fiduciary duty that's in accordance with the plan documents and instruments, plural, insofar as consistent with the provisions of this title. It is also not consistent with any language in section 502(a), either in 502(a)(1)(B) or 502(a)(3). The reference to equitable relief is to appropriate equitable relief to redress a violation of Title I, or a violation of the terms of the plan.
Anthony M. Kennedy: Well, that seems to me like just a roundabout, complex way of saying that you must recover under the plan, because if reliance is not required then there must be some basis on which you must recover, and that recovery must be under the plan. So it's -- it's--
Stephen R. Bruce: The -- the--
Anthony M. Kennedy: --If you say injury is not required, then -- then I don't see how the SPD can give you recovery, unless the SPD is the plan, which brings us right back to the argument, which is your argument, under the first -- under the first section, under (a).
Stephen R. Bruce: --Under either (a)--
Anthony M. Kennedy: --(a)(1), (a)(1).
Stephen R. Bruce: --Under -- our understanding is that under either (a)(1)(B) or (a)(3), that the court is effectively providing an injunction in a case like this, where -- where an action violates the statute. And here a plan provision which had a very detrimental effect on people was not disclosed to them, and so the effect of the statute is to make that unfavorable provision ineffective. And so--
Samuel A. Alito, Jr.: If the -- if the SPD is part of the plan, then where does the "likely harm" standard come from?
Stephen R. Bruce: --I think, as we've said in our brief, we think that the likely harm, possible prejudice, and the material conflict that -- that is used in the Third Circuit in Burstein, we think that all of those standards are very similar, that they are really looking at whether--
Samuel A. Alito, Jr.: No, but why is there any requirement whatsoever, other than the fact that it's in the plan? If the SPD is the plan and the SPD says you get certain benefits that you wouldn't get under the written document, then -- the previously executed written document, then you get the benefits under the SPD, period. It doesn't matter whether there's likely harm or reliance or anything else, right?
Stephen R. Bruce: --Well, I think, Justice Alito, we see this more as a nondisclosure issue, that the unfavorable provisions in the plan were not disclosed, and that the effect of the statute is to make those unfavorable plan provisions ineffective. But because the statute refers to, for example, material modifications and being sufficiently comprehensive and reasonably apprising, that there are enough qualifications in there where the Court can look and see, is this really -- was this conflict, was it really about something that was significant to people that might have an impact on their decisionmaking and whether the terms of their employment are satisfactory, whether they might want to seek another job, they might just go into the office and say: We need more benefits.
John G. Roberts, Jr.: It seems to me that it's a very tough argument to say -- to make a nondisclosure claim on the theory that the summary is part of the plan, because the whole point of a summary is not to disclose everything. If it disclosed everything, it wouldn't be a summary. And if you can claim something because it didn't disclose it, it seems to me that's in tension with the idea that it's not supposed to be just a repetition of the plan.
Stephen R. Bruce: Our position is that the SPD is one of the documents or instruments governing the plan. And by statute it's required to have certain -- to meet certain requirements, and therefore it becomes a document governing the plan. It is -- in response to Mr. Olson, it is referred to as a document in section 1024(a)(6) of the statute, and of course this Court has repeatedly referred to it as a plan document and to "plan documents" plural.
Ruth Bader Ginsburg: But is it -- I think the brief -- the Petitioner's brief pointed out, it governs the plan only when it's more favorable to the participants, because you wouldn't say, if the plan were more favorable and the summary would show fewer benefits, that the summary would then govern.
Stephen R. Bruce: I think the favorable/unfavorable is that the way -- the way I see it is that an unfavorable plan term, when you look at Curtiss-Wright, an unfavorable plan term must be validly adopted and it must be disclosed in accordance with ERISA in order to be effective. And so in the Frommert v. Conkright case, that was specifically what the Second Circuit held, was that the summary plan description did not disclose the phantom offset and therefore the phantom offset was ineffective. Here the summary plan description did not disclose the wear-away provisions. People's normal expectation is that if they are under a pension plan and they are continuing to work, that they are continuing to earn pension benefits. So that the SPD was not apprising them that there were unfavorable provisions in the plan, which were validly adopted, but which were secret as far as they were concerned.
Anthony M. Kennedy: So there's a presumption that everything in the plan is favorable? I still don't see how you get it both ways. If it understates the benefits, that doesn't count?
Stephen R. Bruce: The, the -- the Congress in ERISA is concerned with unfavorable effects on participants. It's about protecting employee rights. So the focus is on losses of benefits and there is a specific provision in the regulations and in the statute about disclosing all the circumstances that can result in a loss of benefits. So there was a plan provision here which caused the loss of benefits that was never disclosed to people. And it was -- there was no baseline where people knew, well, the plan document may have a wear-away provision, and the SPD doesn't mention it and therefore there is no wear-away. They didn't know what wear-away was. They don't know what wear-away is today, because it has never been disclosed to them that there is a way to rig up a pension plan where you can have a period of years, unbeknownst to you, where you are not earning any an additional benefits.
Stephen G. Breyer: Are you finished with that?
Stephen R. Bruce: Yes, sir.
Stephen G. Breyer: If you are finished: As I understand what you have been saying and written, you don't mean that the SPD, the summary, is a contract? I mean, one thing would be to say it's a part of the plan and moreover it's a contract, so therefore we enforce it according to terms. That's one view. But if you took that view, you get into problems such as were mentioned. The employer would write 10,000 pages because he knows it's an enforceable contract. Nobody would understand it. You would have to worry about the time when it was less favorable than the written document. So call it a plan if you want, as long as you don't mean it's an enforceable contract. Now, there is a provision that deals with it, saying just what you said in response to Justice Alito. And what I don't understand is why wouldn't that provision govern? I take it there's a provision, 1054(g)(1), that says a plan cannot reduce the rate of accrual of future benefits unless there is written notice in a manner calculated to be understood by the average plan participant. So I would have thought, I read that, I get what you've said in your brief. The summary was inadequate. It wouldn't have been understood, and therefore, according to this particular provision, those provisions in the plan that reduce benefits are void. So now we enforce the plan with the -- in the absence of those particular void provisions, and you get what you want. Now, I thought that makes a lot of sense to me, except I don't see that anywhere in this case.
Stephen R. Bruce: Now--
Stephen G. Breyer: So there's some reason it doesn't seem to appear in the opinions. It doesn't appear in the briefs. It doesn't appear anywhere until you just mentioned it in response to Justice Alito, or seemed to.
Stephen R. Bruce: --No, it is in the opinion.
Stephen G. Breyer: It is?
Stephen R. Bruce: The district court found a violation. It's 1024(h) -- 204(h) of ERISA, that that provision -- the district court found a violation of that provision, which if the court had provided relief would have resulted in the class receiving much more relief than the court ultimately ordered; that it would have resulted in the class receiving four or five times as much relief, because they would have just been put back under the old pension formula.
Antonin Scalia: What is that provision?
Stephen G. Breyer: (h). He's right, it's (h).
Antonin Scalia: Does it appear anywhere in the briefs? 1024(h), does it appear anywhere in the briefs?
Stephen R. Bruce: It appears in our petition for certiorari, because after the district court found a violation of it the district court declined to provide relief because there had been an intermediate interim amendment that might have--
Stephen G. Breyer: I understand that. So suppose we can't reach that, which would seem to be the logical thing to govern this, but we can't, okay. Then we only have two choices. The first choice is (1)(b), which seems to -- you want to use that by treating the summary as a contract, or we go to (3), in which case we are under equity. Now, between those two, the first one gets all the problems that we just were talking about. The second one would seem to be you are free and clear as long as you show some kind of reliance and harm, and then we are back to what I thought we granted this for, which is why not say if harm is likely then the burden shifts?
Antonin Scalia: Why not?
Stephen R. Bruce: --That's -- that's -- that's one way that it would be -- that's the way it's approached under the Securities Act, where there is an expressed reliance requirement.
Stephen G. Breyer: What happens in a trust law where, let's say, there are 10 or 50,000 beneficiaries in a trust, and -- and the trustee has indeed made an error. And now they can recover money only if, only if there really has been harm. Now, how does -- how does trust law work that out? This can't be the first time this ever arose in history. We have a big class.
Stephen R. Bruce: Well, we didn't go based on a trust law case involving a big class, but we based it on Bogert and on section 173 in the Restatement of Trusts, that when there is a breach of the duty to disclose all of the material information that the beneficiary needs to know in interacting with a third party, which in this case would be Cigna with respect to their employment, that then there is no requirement of proving reliance; that the trustee can prove -- as the Second Circuit set up, that the trustee can try and prove that the beneficiary had all the information that they needed.
Anthony M. Kennedy: So you say under standard trust law once you show there's a breach, the burden shifts to the trustee to show that there's no harm?
Stephen R. Bruce: For a breach of the duties to the--
Anthony M. Kennedy: I understand that to be the Second Circuit rule, but I didn't understand that to be the rule generally in the law of trusts and I quarrel with the Government's brief on that. I think the Government's brief is quite wrong to suggest that this is part of the law of trusts. Now, it could be the law of ERISA under the Second Circuit, but that's something quite different.
Stephen R. Bruce: --My understanding is -- I mean, that's the law that's been -- that this Court has adopted in securities cases where we have nondisclosures to broad classes, is that there's a presumption of reliance, which -- because it's unrealistic for thousands of people to prove reliance in -- in--
Anthony M. Kennedy: But that's not under trust -- trust law, or correct me if I'm wrong.
Stephen R. Bruce: --Well, that's -- that's what I'm saying, that there's a commonality between the securities cases, trust law as stated in the comment to section 173 and in Bogert, and what the Second Circuit is doing.
John G. Roberts, Jr.: Can I just stop -- the securities cases, does that involve stock traded in a market, in which case the inference of harm would be much more obvious and follow more logically than in the trust context?
Stephen R. Bruce: Well, one -- one of this Court's very first ERISA cases was Teamsters v. Daniel, in which the Securities and Exchange Commission had considered pension plans to be a security. And -- and the case actually involved break in service rules, and this Court concluded that whatever protections the securities laws offered, potentially offered, to participants were now offered in more concrete form under ERISA. But the -- the point that I want to get back to on reliance is that my reading of this Court's decision in Bridge and in Lyng v. Payne is that this Court does not look for the closest analogy to a statutory provision. The question is: What did Congress do in enacting this statutory provision?
Samuel A. Alito, Jr.: Could I ask you this: If this were an individual action and it -- and it were under (a)(3), what would either the plaintiff or the defendant have to show, depending on what the burden, who has the burden, on the issue of likely harm? What would "likely harm" mean in that context? The person was likely to have left the employment of the company, or what? What else?
Stephen R. Bruce: "Likely harm" can include that the -- that if the person knew about the provision, they might have asked for the provision to be changed. They might have asked for a different compensation package. They might have asked -- they might have taken personal kind of self-help steps to protect themselves so that they might have -- have, you know, decided to have their wife work longer. They might have decided to work longer themselves. They could have saved, saved differently. There's both the steps that you can take in relation to your employment and the steps that you can take on a personal basis.
Stephen G. Breyer: Could they here have gone -- could they also have said to the company: Look, why are you doing this? If interest rates fall, we are going to lose money. But interest rates might rise, and if interest rates rise, you'll lose money. So we're risk-averse, so what we would like to do is just make sure we get the same pension that we would under Plan A, and then if there is more on Plan B add it in, and we'll risk the fact that interest rates might have gone up.
Stephen R. Bruce: The district court--
Stephen G. Breyer: They could -- they might have talked the company into it.
Stephen R. Bruce: --Well, the district court found that there was a real prospect of employee backlash if the employees knew about these benefit reductions. It's well-established in behavioral economics that people are very averse to losses. So if -- if the statute and the regulations are requiring the loss to be disclosed, it isn't going out on a limb to say that there is going to be a reaction to that. And here, Cigna knew that there was a reaction to that, and they had examples from the press in which Deloitte & Touche had had a similar situation where they had to roll back the cash balance changes because employees were so upset. I think, in response to Justice Alito's question, the -- I don't think that the individual has to -- that if the individual has to prove possible prejudice, that I think that, as -- as our district court ruled here, then I think the standard inevitably becomes very close to actual prejudice. So I think that the possible prejudice is really to the employee group. It's to the -- the statute is in terms of the average plan participant. It's all based on objective standards.
Anthony M. Kennedy: Under your proposal I assume, if you prevail, under your position, the summaries will now become part of the plan. So that even if there's no intent to mislead, there can be a class action if the -- if the SPD is in -- anyhow at variance with the plan and to the detriment of the employee.
Stephen R. Bruce: Well, as we said in the brief, there are already cases that -- that recognize exceptions to liability here, and one of them is for prompt correction of any problem. So if you have the unintentional error in that unintentionally the wear-away provisions weren't disclosed, well, then the issue is: Why wasn't that corrected at any point in time? We are now 12 years out and Cigna has never disclosed those wear-aways to anyone.
Samuel A. Alito, Jr.: If an administrator -- if an administrator issues a summary plan description that is 100 pages long and is basically the same thing as the written instrument and that's a violation of the requirement in ERISA that it be a summary and that it be intelligible to ordinary readers, what remedy is available to a beneficiary?
Stephen R. Bruce: I think that that's -- obviously, injunctive relief in terms of an order to correct that would be available. I think in terms of -- of affecting the benefit offers, of saying, well, is a -- if the SPD is identical to the plan document, is there any -- there are no undisclosed plan provisions, then. So it becomes -- it becomes more difficult in terms of relief, but obviously there would be relief for the understandability requirement.
Samuel A. Alito, Jr.: Well, doesn't that put the -- think of the incentives for the administrator in that situation or for the plan sponsor. If you issue a succinct SPD, you risk misleading the recipients as to the contents of the plan and you may have financial liability. If, on the other hand, you issue -- you are on the side of issuing an SPD that is comprehensive, well, the worst that can happen, according to what you just said, is you could be faced with an injunction to provide a more concise and comprehensible statement.
Stephen R. Bruce: Well, intentional errors should not be countenanced and here Cigna was deliberately misleading employees. If it's an unintentional error, then it should be promptly corrected.
John G. Roberts, Jr.: Thank you, counsel.
Stephen R. Bruce: Thank you.
John G. Roberts, Jr.: Mr. Kneedler.
Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: The pension benefits an employee accrues while she works are a major component of her compensation for working, just as her wages are. The employee is entitled to receive those benefits and to recover them if they are withheld without any particularized showing of detrimental reliance, just as she is entitled to recover the wages that were promised to her.
Elena Kagan: Mr. Kneedler, do you view this as essentially a contract case, as that just suggested, or instead a trust case?
Edwin S. Kneedler: We view it as basically a contract case. In Firestone, the Court referred to contractually -- contractually guaranteed benefits, those under the plan. And the reason we think that here, in this case the district court found that the SPD basically promised, represented to employees, that after the conversion they would receive pension benefits in the form of A plus B, the old benefits plus the new benefits, accruing right away. ERISA -- the scheme of ERISA is that the SPD is often and typically the only document that the employee receives to inform him or her about the contents of the plan.
Samuel A. Alito, Jr.: If this is a contract case, then where does the "likely harm" standard come from? If I'm owed something under a contract, I am entitled to get that under the contract. I don't need to show that I was likely harmed by, that I relied in any -- in any way on anything.
Edwin S. Kneedler: Right. We do not think detrimental reliance -- and I think it works out--
Samuel A. Alito, Jr.: Do you think likely harm is required?
Edwin S. Kneedler: --In this sense: If the -- if the SPD contains these sorts of representations such that the employee could reasonably be expected to rely upon them in defining her benefits, then that controls. The likely harm is not being told, or being told something different from what the underlying plan says.
Antonin Scalia: But the likely harm -- that's not the likely harm. That's the breach. That's the offense.
Edwin S. Kneedler: But the--
Antonin Scalia: You are saying once you make the offense, you have to cough up what you stated in the -- in the summary.
Edwin S. Kneedler: --Unless the participant actually knew or couldn't reasonably depend upon it. Actually knew -- for example, this was the case in the Govoni case in the First Circuit, that -- whose formulation is the one that other courts typically follow. That was the situation where the employee found out before she retired what the true facts were and therefore there could have been no claim of harm or -- or that the--
Antonin Scalia: Well, then it's not contract.
Anthony M. Kennedy: The minute you get away from contract--
Antonin Scalia: Is it contract or not contract?
Edwin S. Kneedler: --No, it is contract, because -- because in that -- it -- it's -- the question is what is the contract. To the employee, typically the SPD is the only thing that is the contract.
Stephen G. Breyer: But the SPD is written by the fiduciary.
Edwin S. Kneedler: Yes.
Stephen G. Breyer: And the other is written by the -- by the person who is giving the money, the employer. So now you are saying that it's a contract, even though it wasn't written by the employer, and even though it could differ in dozens of ways from the actual -- from the actual plan document. Sometimes they would be favorable to the employee, sometimes they would be unfavorable, sometimes they would be different but neutral. So what's the judge supposed to do? Forget about the basic document and just enforce this thing written by the fiduciary?
Edwin S. Kneedler: Well, the underlying formal document is -- is what controls, unless the SP -- unless there is a conflict. This case--
Stephen G. Breyer: I said that there can be conflicts, sometimes favorable to the employee, sometimes unfavorable, sometimes neutral. So what we have is a document that's, by the way, supposed to be short, but I guess if we took your view it wouldn't be short anymore. And -- and it -- it could differ in any one of three ways; and I could think of seven other ways. So -- and we'll find seven others. So what -- how is a judge supposed to react? He's supposed to say that this twopage document is the contract, is the contract, and there are all kinds of conflicts -- what's supposed to happen?
Edwin S. Kneedler: --It forms -- it forms part of the contract. And cases of conflicts between the SPD and the -- and the formal plan document are not common and they shouldn't be, because the SPD -- the administrator or the employer has an obligation to make--
Stephen G. Breyer: That isn't my question. My question is: One, why should a document written by a different person, the fiduciary, govern over the actual plan? Second, what happens when you have a favorable conflict, what happens when you have an unfavorable conflict, what happens when you have a neutral conflict?
Edwin S. Kneedler: --As to--
Stephen G. Breyer: How should it be worked out?
Edwin S. Kneedler: --As to the first point, it is -- it is common and it was critically true here that the -- that the employer, the plan sponsor, is involved in -- in drafting the SPD. This was an SPD that was issued in conjunction with the plan amendment, and the SPD and the plan amendment--
Stephen G. Breyer: I think the fact that this individual in this case happened to be the same group or person is beside the point of my question.
Edwin S. Kneedler: --Okay. And -- and so the -- the second point is, I -- I think it would be useful for the Court to look to the experience of certificates of insurance under group insurance plans. That is the most directly analogous circumstance in our view. It is the prevailing position in the courts and it has been for sometime that where an employee -- or employee under a group plan or pension plan receives a certificate of insurance that sets forth certain elements, essential elements of the plan, and the -- an underlying insurance policy is in conflict with that, that the certificate of insurance governs, for the same reason that the SPD governs--
Antonin Scalia: Is this governed by ERISA or are these things governed by ERISA?
Edwin S. Kneedler: --Some of them may be and some of them may not be. I mean--
Ruth Bader Ginsburg: Where does the rule come from, then?
Edwin S. Kneedler: --The -- the rule is a common insurance rule that in -- in the group insurance situation, where you have an underlying policy that the individual insured is not going to see.
Antonin Scalia: But we have a statute here which says that it is the plan that governs. I mean, that -- that's -- don't you think that's a crucial difference?
Edwin S. Kneedler: Well, but it's also a statute that as this Court said in Curtiss-Wright that the SPD is designed to -- to furnish the employee the essential information under the plan.
Stephen G. Breyer: Is that true of the certificate of insurance? Is a certificate of insurance a simple document that any consumer is able to understand or -- or is supposed to be?
Edwin S. Kneedler: That's what it's supposed to be. And importantly in that?
Stephen G. Breyer: Is there an example that I can look at? Find one, on line or--
Edwin S. Kneedler: It's not in the record in this case, but -- but we cite some insurance treatises. And a further point I want to make--
Antonin Scalia: They use a likely harm standard? Is that where the likely harm standard comes from?
Edwin S. Kneedler: --No, the likely harm standard was a formulation of the -- of the Second Circuit.
Antonin Scalia: That's nice. Where did they get it from? [Laughter] They just made it up?
Edwin S. Kneedler: Well, I -- I think it was -- it was -- it was an effort to judge whether the -- whether the particular statements in the SPD were of the sort that -- I think it really gets at materiality.
Elena Kagan: Mr. Kneedler, I think it's a hard question here as to whether to think of this as more like a contract dispute or more like a -- a trust issue. If we were to look at it as a trust issue, what would be the result of that? What kind of test would we use?
Edwin S. Kneedler: I think it would be -- I think it would be the same thing where you -- where you have a -- either in this case an affirmative representation of what the -- of what benefits will be due, or you could have a situation where there was a -- a failure to disclose.
Anthony M. Kennedy: --Well, if it's a contract case that you are submitting then the burden shifting rules it seems to me that apply in trust don't apply.
Edwin S. Kneedler: Well, the burden shifting rule would apply to the extent that enabling the administrator of the plan or the employer to demonstrate that the employee actually knew or that there were other documents that would have informed the employee so that he would not have been mislead by the statements in the -- in the SPD.
Anthony M. Kennedy: Well, and in all of that, I think under trust law there has to be a showing of breach and harm before there is -- the burden shifts on causation. And your brief left out the -- you indicate the burden shifts just so long as you show that there is a misstatement.
Edwin S. Kneedler: There is harm, because the employee was not told of what the -- of what the terms of his -- of his deal were.
Ruth Bader Ginsburg: Mr. Kneedler--
Edwin S. Kneedler: He goes to work every day expecting to earn his wages and expecting to earn the -- the benefits set forth in the SPD. And in--
Ruth Bader Ginsburg: --Do you put -- do you put any weight on Congress insisting that the summary that each -- each participant get a copy of that summary, but there is no such requirement with respect to the plan?
Edwin S. Kneedler: --That's -- that is critical to our position, and again, the insurance/certificate of insurance analogy, it is all the same reasons that we say under ERISA; that that's the only document that is given, it's given for the obvious purpose of -- of telling the employee the essential aspects of the deal that he's going to get, and ERISA identifies, itemizes what they are and requires that the plan administrator not -- not minimize what they are.
Antonin Scalia: So it can't -- can't amend the plan contrary to what we said.
Edwin S. Kneedler: It's not an amendment to the plan.
Antonin Scalia: It's not an amendment?
Edwin S. Kneedler: The SPD -- the SPD is part of the plan, and it is--
Antonin Scalia: Well, wait -- wait. It's part of the plan. But the other part of the plan contradicts this part of it. And -- and you say it is this part, the SPD, that governs; which means it amends the prior part, right?
Edwin S. Kneedler: --It -- it -- it controls. I--
Antonin Scalia: Oh, all right, okay. We will say it controls. Does that make you feel better about it?
Edwin S. Kneedler: --Well, that -- that's the explanation--
Stephen G. Breyer: --Does it control when it's less favorable?
Edwin S. Kneedler: --It does not. The--
Stephen G. Breyer: It only controls when it's more favorable, but not when it's less favorable.
Edwin S. Kneedler: --Because--
Stephen G. Breyer: What theory of contract law gets you to that conclusion?
Edwin S. Kneedler: --Because you have two different documents that may be part of the contract. It's an effort to find out what the deal is. Under the insurance cases that I mentioned, what the courts says -- what the courts say is the certificate becomes part of the contract; but those cases also say when the -- when the plan is more favorable, that the plan governs because that -- under ERISA, that is the operative plan document that the administrator is supposed to operate under day to day.
John G. Roberts, Jr.: Thank you, Mr. Kneedler. Mr. Olson, you have four minutes remaining.
Theodore B. Olson: Thank you, Mr. Chief Justice. I would like refer first of all to what Respondents said in response to a question from you, Justice Breyer, about section 204(g). And you--
Stephen G. Breyer: (j).
Theodore B. Olson: --Well, (g), I'm talking about that's what they -- I refer you to page 212 of the cert petition appendix under Roman numeral VI where the district court specifically said: Plaintiffs also seek to assert their claim under ERISA's anti-cutback provision 204(g), that claim has been rejected in the liability decision. That claim was raised; it was rejected in the liability decision. It's not here anymore. Section -- the real section that the Court should refer to in 204, is 204 -- 8 -- (h)(6)(A) of ERISA; and I can't point to the portion of the appendix, but that was an addition by Congress in 2001 to a -- deal with egregiously inaccurate notices of changes. That -- and Congress amended ERISA in 2001, added that provision, and said, if there's an egregious violation of that provision, then you get all the benefits that you should have gotten. That's what Congress can do if it wishes to do. That's what is being sought in this case. Congress can take care of this if it wishes, but Congress enacted a carefully reticulated scheme; you are either suing for benefits under the plan or you are suing for violations of ERISA.
Antonin Scalia: Why didn't that (h) apply here? Was it not egregious enough? Is that -- is that why it didn't apply? Or they just forgot about it or what?
Theodore B. Olson: I -- I don't think that the -- the notice that was involved was referring to the SPD. The SPD to the extent that it violates ERISA, there is a remedy that still exists, Congress hasn't changed. It's in (a)(3). It must be an equitable remedy. You can seek an injunction. And to the extent the Court is concerned that that's an empty remedy, that that's not a sufficient remedy, that's what Congress decided; and we referred in footnote 3 of our reply brief of a number of cases that -- that circuit courts have handled demonstrating detrimental reliance and providing for remedies.
Stephen G. Breyer: Yes, but I still have the same question Justice Scalia had, which is why didn't this (h) thing apply here, because they didn't have, their claim, the notice wasn't good, and if the notice wasn't good then the plan didn't change, and if the plan didn't change they should have gotten the money. Why didn't it apply?
Theodore B. Olson: That provision applies to the SPD and they did not bring that case.
Antonin Scalia: Why didn't it apply to the SPD, isn't that a notice?
Theodore B. Olson: I think it's a different type of notice.
Samuel A. Alito, Jr.: Well, there was a notice, wasn't there?
Theodore B. Olson: There was a notice.
Samuel A. Alito, Jr.: And is the claim based on that or is it based on the SPD?
Theodore B. Olson: The claim is based upon the SPD and the district court decided that the SPD had amended the plan and that's inconsistent with what the statute provides.
Elena Kagan: Mr. Olson, on your view of showing detrimental reliance, I take it you would require each employee to come forward and say yes, I read this SPD, is that correct?
Theodore B. Olson: Yes. And trust law--
Elena Kagan: And doesn't that really misunderstand the realities of the workplace? Very few people read their SPDs, but you only need one person to read the SPD to come in and say, by the way, folks, 21,000 of us are not getting our retirement benefits for the next few years, and within a day every employee in the workplace is going to know about that. So doesn't this give an incredible windfall to your client, Cigna, or to other companies that commit this kind of intentional misconduct if you hold them to this detrimental reliance standard?
Theodore B. Olson: --The -- I refer to what Justice Kennedy was referring to. To the extent we are talking about trust law, we are talking about the requirement of a loss. I would say that a person would not necessarily have to have read the SPD, but to have been aware of it and taken some steps in connection with it. And that's the evidence that would have to be established, and every court has said that under (a)(3) equity requires detrimental reliance.
John G. Roberts, Jr.: Thank you, Mr. Olson. The case is submitted.


Earl Warren: Crown Coat Front Company Incorporated Petitioner versus United States. Mr. Rose you may continue with your argument.
David Rose: Mr. Chief Justice, may it please the Court. Yesterday, we had discussed the question of when the 'cause of action' accrues in these Tucker Act suits involving disputes clauses and we've then begun to discuss the question of whether the period of limitation is tolled during the pendency of the disputes clause proceedings administratively. We had focused on the statute itself and I pointed out that the statute provides for tolling in case of disability. Mr. Justice White inquired as to whether the phrase 'disability' might be broad enough to encompass the situation here and I'd like to answer that now if I may. I think the answer is quite clearly, no. The original statute talked in terms of married women, persons under the age of 21 and first accrued during minority and of idiots, lunatics and the insane persons, this was what was meant by disability. The statute was changed during the revision of Title XXVIII. The revisers notes which are in the United States Code make it quite clear that it's only legal, these legal disabilities actually barring suit that constitute disability within the meaning of the statute. So I think it's quite clear that that phrase was not intended to encompass this situation and none of the courts have ever suggested that it was. I'd like to, I think more important perhaps is the question of congressional intent generally and as the Court may recall, in 1954, Congress confronted the situation of disputes clauses in government contracts. In 1951 and there above ,this Court in Wunderlich Case had held that there's no review except for fraud. In 1954, Congress passed the Wunderlich Act and changed that to provide for review in accordance with the Wunderlich Act for substantial evidence. It was confronted at that time with the statute of limitations problem and if the Court will refer to page 27 of the brief, the House report there is think quite illuminating on what Congress understood. They were confronted with the situation, Congress at that time with claims that had been pending administratively which had, which the six years had run from 1951 through 1954 in which there was no suit permitted under this Court's decision in Wunderlich Act. Nevertheless, the Court said that this statute would apply only to claims, which were less than six years old and not heretofore filed in the courts. Thus it's quite clear, that Congress thought that the significant thing in regard to the statute of limitations was the age of claim that is when the breach occurred and whether it was filed in the courts and it specifically declined to make the benefits of the Wunderlich Act available in all of those claims which had expired in the three-year interval. We think this is a much, that's an a fortiori situation from the one we have here. For here, the contractor had available to him a very easy remedy, when the claim was pending administratively. In his district, in the Southern District of New York, it was clear as early as 1955 what contract in this situation should do and that is to file a suit and he could have done so and if he had done so, he would have protected himself and at the same time put the government under notice as to what his claims actually were. So, we think that Congress was confronted with, if not precisely this situation, a situation directly analogous to it and that the solution that it came to, it was to protect, was to afford the government the protection, which the government receives under the Statute of Limitations applicable to these matters. It did recognize that that statute was a jurisdictional one and has specifically declined to disturb the -- what is understood to be the situation or what we understand to be situation that when the claim accrues and is not interrupted, the period is not interrupted during the pendency of administrative claim. I'd like to address myself now to the reasoning of the Third Circuit in the Northern Metal's case. I'd point out that again that the Third Circuit is the only court, which has ever held that there's tolling during this period. The Court of Claims repeatedly rejected that notion. The reasoning of the Third Circuit appears to be that the government, if the claim is pending administratively, the government is on notice of the claim and can protect its records and so forth, but as I think I indicated in an answer to a question for Mr. Justice Fortas yesterday, that reasoning failed to take into account the breached claims, because there's no requirement in regard to these so called 'breached claims' of filing it administratively. So the government does not in fact know the extent or the precise nature of the claims when it's simply pending administratively. Also, the reasoning of the Third Circuit would apply to any matter that is filed administratively, whether it's filed administratively as a mandatory thing or permissibly. Yet, the court's have never held that the mere processing of an administrative claim, tolled the period of limitations. On the contrary, the Court of Claims decisions are up until Nager Electric were quite clear the other way and so were the District Court decisions. So we think that they are notwithstanding a plausibility, the reasoning of Third Circuit is defective in this particular regard.
Abe Fortas: Well, in connection with the breached claims, there would be no problem of tolling, would there ?
David Rose: Well, the Court of Claims has held alternatively that the period should be tolled for the breached claims as well as the other, because there's only one cause of action in each contract and the Court of Claims reasons that since you have to file them administratively in order to protect the claims, which are within the ambit of the disputes clause, the whole thing is tolled.
Abe Fortas: I see, but if you took a breached claim separately, that is say considered a breached claim apart from the other claim whatever it is?
David Rose: Yes, claims under the disputes clause.
Abe Fortas: Yes, under the disputes clause, then there would be no administrative proceedings, and there would be no problem?
David Rose: Well, that's right, but the Court of Claims has repeatedly held and we think it's probably good law that there should be only one suit on each contract, particularly so in regard to breach and arising under claims, because the two overlap greatly as to the nature of the facts and so forth. There would be a multiplicity of suits to allow separate filings and they have held that there is just one cause of action on each contract. And so, if it's tolled, it is tolled for all the claims that come under the contract, at least that's what they felt and we think that's probably right.
Potter Stewart: The Court of Claims didn't hold that the statute was tolled that the cause of action didn't arise and I think the administrative proceedings --
David Rose: That's what their main holding Your Honor, but they did hold alternatively that if they are wrong on that, that they would agree with the Third Circuit.
Potter Stewart: With the Third Circuit, yeah, I was going to ask you whether the reasoning of the Third Circuit will lead to the same as a result in the answer to Mr. Justice Fortas' question.
David Rose: I think the reasoning, I think, you see the Third Circuit wasn't confronted with a breached claim in the situation before and therefore, the Third Circuit didn't decide that the Court of Claims adopted the reasoning of the Third Circuit alternatively --
Potter Stewart: Alternatively.
David Rose: -- and did apply it to both and we think that results in the trial of 12, 15 years afterwards of claims concerning facts, which occurred that many years before, and we don't think -- we think it's clear that this is not what Congress intended.
Potter Stewart: Well, the Third Circuit would at least require the filing of the administrative claim within six years, wouldn't it?
David Rose: Yes.
Potter Stewart: And the Court of Claims though would not?
David Rose: Yes that's quite right. And obviously, the consequences are not as severe in the Third Circuit rule as they are in the Court of Claims rule, but they are nevertheless severe, because if the contractor is not diligent in prosecuting, there are rare instances in the United States Steel case is certainly an extreme example, but there's one that is example of the case, which is pending administratively for many, many years and certainly the underlying facts in regard to any breached claim in that kind of situation would in all probability have long since disappeared by the time they brought their action to court. So, we think the same kind of consequences are inherently involved. They're more severe in the Court of Claims situation than they are in the Third Circuit, but we don't think the Congress intended either. I see my time is expired.
Earl Warren: Mr. McDermott.
Edwin J. McDermott: May it please the Court. Mr. Justice Stewart, in the Nager Electric Company case against the United States, I believe the answer to the question you directed to my brother is contained. In that case, Judge Davis expressed the opinion for the Court of Claims that if there are two types of claims, which arise under a contract, one which is a breach and one which is a disputes article proceeding that is the claim under the changed conditions or Delays-Damages articles, then the contractor has a choice to make. He may, if he wished immediately sue on his breach, within the six-year period if he doesn't want to wait for the administrative proceedings to be concluded, but if he does so, then he takes the chance that if that be concluded before the disputes article proceeding is completed, then he wouldn't be able under the single-suit theory to amend to bring in the administrative proceeding. But also that since both suits arise out of the same contract and there should be only one suit, he will be permitted if he chooses to do so to await until the conclusion of the administrative proceedings and then bring both his breach suit and his administrative proceeding breached claim and his administrative proceeding claim in the same suit. Now, I understood that Mr. – my brother stated that the Solicitor General agreed with that view that there should be only one action. Now, also with respect to what position of the Department of Justice was before --
Potter Stewart: They made it clear, they don't agree with the Court of Claims' view but that was my understanding.
Edwin J. McDermott: I do agree with the single contract, single-suit theory that was my point. Now, with respect to the position which the department, that is the Solicitor General in the United States Court of Claims as the defendant represented by the Department of Justice, Nager Electric Company case of course, when our brief was submitted it was only in slip opinion, but since then it has been reported in F.2d (Federal Second) and it's at 368 F.2d (Federal Second) 847 and 368 I beg your pardon, and referring to page 854 and note 18, Judge Davis said this. Indicative of the government's general acceptance in this Court, prior to its recent re-survey of its position of the rule that the claim does not accrue until the administrative determination are the several instances in recent years in which the government has suggested dismissal of the petition in this Court, because the contractor had not yet obtained a final administrative decision on his claim. It is also significant that the government's briefs initially filed in the four contract cases now before us, as well as in some others assume implicitly or explicitly that limitation does not run on claims under the contract until the administrative determination. For this Court, the change in the government's view did not come until after oral argument in the present case. Now, I, always understood the rule in the Court of Claims was that you were required under this Court's decisions to exhaust the administrative remedy provided by the clauses of the contract, changes, changed conditions, Delays-Damages articles and pursue the remedy provided by the disputes article, and that not until you receive the final administrative decision were you are permitted to proceed judicially in the Court of Claims. Now, Judge Davis in his opinion, states that that is the logical position to take and I don't see where there's any quarrel that can be had with it when you view it from that viewpoint. Now, anytime that there is an administrative proceeding of course, all the government's evidence is presented, their obligation to themselves, their witnesses testified, the claimants witnesses testify, exhibits are introduced, a record is made and nothing is lost to the government by waiting until the administrative proceeding is completed before a suit is instituted and when a suit is instituted, then the reviewing Court has only the right to examine the record made before the administrative tribunal. So, we submit that all elements of fairness and justice require that the Court of Claims rule that the statute does not start to run until the final administrative decision be adopted by the Court, thanks.