[00:00:24] Speaker 02:
Next case is Peter Turpin et al.

[00:00:28] Speaker 02:
versus the United States, 2018-2005.

[00:00:30] Speaker 02:
Mr. McKinley.

[00:00:35] Speaker 02:
Good afternoon, Your Honors.

[00:00:38] Speaker 02:
Still moaning.

[00:00:39] Speaker 03:
You're correct.

[00:00:41] Speaker 03:
Good morning, Your Honors.

[00:00:44] Speaker 03:
Doug McKinley, I'm appearing on behalf of Peter Turpin and about 300 other clients who brought suit against the United States government

[00:00:52] Speaker 03:
for breach of an implied contract.

[00:00:56] Speaker 03:
The lower court, the trial court, dismissed our claim on a 12b6 motion and ruled that we had not set forth a factual basis sufficient to establish the formation of an implied contract in fact.

[00:01:08] Speaker 03:
The specific error that we're alleging the lower court made was the lower court held that it wasn't the government that made the contract, it was in fact one of the Hanford contractors.

[00:01:22] Speaker 03:
in reality and in our complaint is simply incorrect.

[00:01:27] Speaker 03:
The government directed its contractor to make a contract, but it was in fact the government's direction, just like you might direct one of your law clerks to write something for you.

[00:01:38] Speaker 03:
The government was the party that created the contract.

[00:01:42] Speaker 03:
And so if we look at the complaint, there are sort of two levels of facts.

[00:01:46] Speaker 03:
We can look at the

[00:01:48] Speaker 03:
the facts that are alleged from sort of the 30,000-foot level, and then we can get down into the nitty-gritty of it.

[00:01:54] Speaker 03:
Looking at the facts from the 30,000-foot level, what we essentially allege is the government created the multi-employer pension plan in 1987, the MEP, and then the government thereafter managed and dictated every aspect of it, every amendment to it, how it was administered,

[00:02:12] Speaker 03:
from 1987.

[00:02:13] Speaker 02:
That sounds like the 1,000 foot level.

[00:02:16] Speaker 02:
I'm sorry.

[00:02:17] Speaker 02:
That sounds like the 1,000 foot level.

[00:02:19] Speaker 02:
At the 30,000 foot level, it appears that these people have a claim against somebody.

[00:02:26] Speaker 02:
But why isn't it one of the government transferees, whether it's Lockheed or one of the other companies?

[00:02:36] Speaker 03:
I think that's an excellent question.

[00:02:38] Speaker 03:
It gets to the heart of the clause that's contained within the MEP that matters.

[00:02:43] Speaker 03:
Article 29 is the central focus of this entire discussion.

[00:02:48] Speaker 03:
And what Article 29 says is that when there is a termination for transfer, the plan administrator will make sure that the benefits continue to accrue

[00:03:05] Speaker 03:
with the new contractor.

[00:03:08] Speaker 03:
Now, that article, if we give it any thought at all, we realize that article could only have been formed by the government.

[00:03:15] Speaker 03:
It only could have been breached by the government.

[00:03:18] Speaker 03:
It only could have been enforced by the government.

[00:03:20] Speaker 03:
There's no other party who has the ability to enforce that article, that central promise of the MEP to my clients.

[00:03:30] Speaker 03:
The contractor who's leaving, he can't dictate what terms the government are going to pay pensions to the incoming contractor.

[00:03:37] Speaker 03:
The incoming contractor can't dictate terms to the government.

[00:03:41] Speaker 03:
The only party, the only person who ever had that power to say whether the incoming contractor was going to continue in the MEP was the government.

[00:03:50] Speaker 03:
And so when you look at it from the 30,000 foot level or the 1,000 foot level,

[00:03:55] Speaker 03:
When you say the government created this thing, they managed this thing, they governed all the outcomes of it, the question is, could a reasonable find or a fact say that it is plausible, because that's our standard under Ashcroft and Iqbal, is it plausible that the government demonstrated that it ascended to being bound by Article 29?

[00:04:15] Speaker 03:
I think it's obvious that they ascended to it.

[00:04:18] Speaker 03:
They ascended to being bound by Article 29 because they

[00:04:22] Speaker 03:
created and then controlled all aspects of the map.

[00:04:27] Speaker 02:
You used the word transfer.

[00:04:29] Speaker 02:
They transferred responsibility and liabilities too, didn't they?

[00:04:37] Speaker 02:
To the new contractors?

[00:04:40] Speaker 02:
Yes.

[00:04:41] Speaker 02:
Yes, certainly.

[00:04:43] Speaker 02:
So why isn't the government free of obligation?

[00:04:49] Speaker 02:
There wasn't a contract meeting of the minds for the government to retain responsibility for those claims.

[00:04:59] Speaker 03:
Well, the responsibility was to not do that.

[00:05:02] Speaker 03:
You have to focus on the language of Article 29.

[00:05:06] Speaker 03:
Article 29 says, in the case of the termination for transfer,

[00:05:10] Speaker 03:
An employee becomes a participant, hereafter shall be entitled for credit for eligibility under Article 2, benefit service under Article 3, investing service under Article 6, to such as a degree as to be determined by the planned administrator in order to assure that the participant receives his benefit at normal retirement date.

[00:05:27] Speaker 03:
Well, how is that going to happen if the government doesn't sign a contract with the new contractor allowing the cost for the new contractor to

[00:05:39] Speaker 03:
allowing the cost for the new contractor to pay into the MEP to provide that normal service allowance.

[00:05:46] Speaker 03:
The government's responsibility here is pretty narrow.

[00:05:48] Speaker 03:
It's only at the transition, only at the termination for transfer, is the government not supposed to use that opportunity to throw people out of the MEP.

[00:05:59] Speaker 03:
Okay?

[00:06:00] Speaker 03:
Once the termination for transfer has occurred, the government could go in and say to the contractors, okay, we're tired of paying a pension.

[00:06:07] Speaker 03:
Tell all your people we're not going to pay a pension anymore.

[00:06:10] Speaker 03:
But the government didn't do that.

[00:06:12] Speaker 03:
The government said, we're going to set this thing up so that when we change contractors, when we go in there at the moment we change contractors, we're not going to use that event to be the excuse for blowing you out of the pension plan.

[00:06:29] Speaker 03:
Any other time they reserve the right to do it, I would argue.

[00:06:32] Speaker 03:
But at that moment, they won't do it.

[00:06:34] Speaker 03:
And then what do they do?

[00:06:36] Speaker 03:
They chose that exact moment to repudiate it.

[00:06:39] Speaker 03:
Now, I anticipate the government is going to make an argument that, well, it can't be, you know, you can't say that the government was ever bound to this thing.

[00:06:48] Speaker 03:
And, you know, there's no evidence that the government was ever bound to this thing.

[00:06:52] Speaker 03:
But if we look at sort of, you know, okay, so ignoring the 30,000 foot level, let's get down into the weeds of what would the government do if they did consider themselves bound to it?

[00:07:04] Speaker 03:
that, in other words, what kind of activities would the government undertake if they did provide a cent to it?

[00:07:09] Speaker 03:
Well, one thing they would do is pay their pension for the rest of time, which is exactly what they did.

[00:07:14] Speaker 03:
Because in 1996, when they repudiated it, they apparently felt guilty.

[00:07:19] Speaker 03:
And so they added this new clause, the January 15th Amendment, which said, OK, we're not going to give you credit for your service years, but we are going to give you your high five.

[00:07:29] Speaker 03:
So in other words, your pension is going to continue to go up.

[00:07:32] Speaker 03:
It's just not going to go up as much.

[00:07:34] Speaker 03:
Right?

[00:07:36] Speaker 03:
So who's paying for that?

[00:07:37] Speaker 03:
No longer do we have an employer who's part of the plan.

[00:07:42] Speaker 03:
My clients have been completely disconnected from the plan through any sort of employer.

[00:07:46] Speaker 03:
And the government makes that argument over and over and over again.

[00:07:49] Speaker 03:
They're completely bifurcated from the plan.

[00:07:51] Speaker 03:
But there's still participants in the plan.

[00:07:53] Speaker 02:
Counsel, there's no need to shout at the court.

[00:07:55] Speaker 03:
I'm sorry.

[00:07:56] Speaker 03:
I get excited.

[00:07:58] Speaker 03:
We hear you.

[00:07:59] Speaker 03:
Thank you, Your Honor.

[00:08:01] Speaker 03:
They're still participants in the plan.

[00:08:02] Speaker 03:
They're still going to get their pension when they retire.

[00:08:05] Speaker 03:
And their government is continuing to pay money into the plan to fund the Hi-Fi benefit.

[00:08:12] Speaker 03:
So I don't understand how the government can say to you with a straight face that the government is not a party to any contract with my clients when the government has spent decades paying into this plan on behalf of their Hi-Fi benefit.

[00:08:28] Speaker 03:
So it's clear to me on that basis

[00:08:31] Speaker 03:
that the government is at a minimum tied to my clients through the plan.

[00:08:34] Speaker 03:
The question is only, are they then tied to what they originally agreed to, which was Article 29?

[00:08:40] Speaker 03:
Okay, so then again, we look back at the facts.

[00:08:44] Speaker 03:
If the government believed they were tied to Article 29 at the time, what would they do?

[00:08:49] Speaker 03:
Well, one thing they would do is, the first time that a termination for transfer came up, they would put out a solicitation that required the incoming contractors to honor them out.

[00:09:00] Speaker 03:
which is exactly what they did.

[00:09:03] Speaker 03:
Now, admittedly, they were talked into repudiating it before they entered those contracts.

[00:09:09] Speaker 03:
But the very first thing they did was consistent with them being bound to the MEP.

[00:09:15] Speaker 03:
What else shows that they were bound to the MEP?

[00:09:17] Speaker 03:
Well, they had a policy.

[00:09:18] Speaker 03:
They had a written policy, DOE Order 350.1.

[00:09:22] Speaker 03:
That showed they were bound to the MEP.

[00:09:24] Speaker 03:
They had letters.

[00:09:25] Speaker 03:
They had

[00:09:27] Speaker 03:
uh, written correspondence that, you know, basically every single factor, every single thing that they ever could have done to show that they felt they were bound to the MEP, they did, except for one thing, and that's the repudiation that occurred ten years after they formed the MEP.

[00:09:43] Speaker 03:
You know, they formed the MEP in 1987 and put Article 29 in place, and then ten years later in 1996, they repudiated.

[00:09:51] Speaker 03:
But they don't repudiate it completely.

[00:09:53] Speaker 03:
They put in this, you know,

[00:09:55] Speaker 03:
January 15th Amendment, the High Five Amendment, and then they continue to pay for the next several decades into the vet on behalf of my clients for the High Five Benefit.

[00:10:12] Speaker 02:
We will save the remainder of your time.

[00:10:14] Speaker 02:
I will, Your Honor.

[00:10:20] Speaker 02:
Mr. Iorossi, is it?

[00:10:22] Speaker 04:
Yes, Your Honor.

[00:10:22] Speaker 04:
Thank you very much.

[00:10:23] Speaker 04:
Albert Iraz on behalf of the United States.

[00:10:28] Speaker 04:
Good morning, and may it please the Court.

[00:10:30] Speaker 04:
The fundamental and threshold question that this Court has to answer is what was the alleged implied contract here, and does the amended complaint sufficiently allege that contract?

[00:10:40] Speaker 04:
If the Court can't answer that question, then it can't determine whether the complaint alleges all the required elements of the contract, like neutrality of intent, consideration, lack of ambiguity in the offer, and actual authority.

[00:10:54] Speaker 04:
It all becomes a fruitless exercise.

[00:10:56] Speaker 04:
But the problem the court confronts here is that the appellants have never been able to specify precisely what the implied contract is.

[00:11:03] Speaker 04:
At times, they suggest that simply if an employee works on the reservation, all of their time counts for pension purposes.

[00:11:10] Speaker 04:
At other times, they suggest that Article 29 of the MEPP and only Article 29 embody the terms of the contract.

[00:11:19] Speaker 04:
Sometimes, they suggest that the entire MEPP is itself the contract.

[00:11:23] Speaker 04:
For example, at page 44 of their brief, appellants claim that certain governmental conduct is, quote, evidence of the government's assent that the government was bound to the terms of the MEPP, including Article 29.

[00:11:35] Speaker 04:
They repeat that statement at page 36 by saying the MEPP, and particularly Article 29 of the MEPP, is properly construed as an offer from the government to the appellants.

[00:11:50] Speaker 04:
The reason this vagueness, this ambiguity,

[00:11:52] Speaker 04:
is a problem for the appellants, is that there can't be an implied contract if an express contract exists.

[00:11:58] Speaker 04:
So if the MEPP and all of the terms of the MEPP are what binds the government, then this court in Bank of Guam versus United States, 578, F3rd, 1318, held that the existence of an express contract precludes the existence of an implied and fact contract.

[00:12:15] Speaker 02:
Look, the government was originally obligated, right?

[00:12:21] Speaker 02:
They were liable to pay these employees pensions based on their length of tenure.

[00:12:30] Speaker 04:
No, Your Honor.

[00:12:31] Speaker 04:
I think that that's an important point here.

[00:12:33] Speaker 04:
The allegations in the complaint are worded carefully, I would say.

[00:12:39] Speaker 04:
And at oral argument today, counsel for the appellants have suggested how the government has paid into the pension, has paid the pension.

[00:12:48] Speaker 04:
In reality, and I don't think that the counsel for the unplanned would

[00:12:51] Speaker 04:
dispute this point.

[00:12:53] Speaker 04:
There has never been a dime that has been sent from the Federal Treasury to the pension fund itself.

[00:12:58] Speaker 04:
The only time, the only flow of money that has ever occurred has been from the Federal Government to the contractors that run the Hanford Nuclear Reservation as part of the contract between the contractors and the Federal Government.

[00:13:12] Speaker 02:
These people were government employees at Hanford, right?

[00:13:16] Speaker 04:
Not at any relevant point to this Court.

[00:13:18] Speaker 04:
Originally?

[00:13:19] Speaker 04:
If they were, the answer is I don't know for sure.

[00:13:21] Speaker 02:
It may be that at some point... And what I'm getting at is that if they were obligated originally and it's not clear whether the contractors assumed the obligation, why isn't the federal, the government or the Navy or whoever still obligated?

[00:13:39] Speaker 04:
Well, because that's not what the complaint alleges.

[00:13:41] Speaker 04:
The complaint alleges that there was an implied contract based apparently either

[00:13:46] Speaker 04:
entirely on the MEPP or as a result of the creation of the MEPP, because prior to 1987 there were a number of contractors working on the site, on the reservation.

[00:13:57] Speaker 04:
Those contractors had, and this is in the complaint, those contractors had their own pension plans.

[00:14:02] Speaker 04:
And any time the workers, any time the contract would change and the contractors performing the work in the reservation would change, then

[00:14:12] Speaker 04:
Oftentimes the workers working for the government contractors would change companies and there would have to be some sort of movement or there was movement of the pension funds and obligations to the new contractors.

[00:14:25] Speaker 02:
You're saying if someone's liable it's the contractors and they sued the wrong party.

[00:14:29] Speaker 04:
Well, I think that that's probably right, Your Honor, but the problem that the appellants have here is that the complaint suggests that there's an implied contract that arose

[00:14:40] Speaker 04:
from the creation of the, that's rooted in the creation of the MEPP.

[00:14:44] Speaker 04:
And the reason the court has to discern what the terms of that contract are is that without being able to tell what the promises the government made are, then the court can't tell whether there was a mutuality of intent to contract, whether it was consideration, authority, et cetera.

[00:15:01] Speaker 04:
So for instance, if, talking about mutuality of intent, if the court identifies the terms of the alleged contract,

[00:15:08] Speaker 04:
They have to address the, the court has to address the contractual elements required to state a claim.

[00:15:13] Speaker 04:
And for mutual of intent, there has to be some sort of nexus.

[00:15:16] Speaker 04:
There has to be proof of, or allegations of an intent by the federal government to contract.

[00:15:23] Speaker 04:
And there has to be nexus to the particular terms of the implied contract.

[00:15:26] Speaker 04:
In this case, the, the, the appellants have never been able to articulate what the promise is.

[00:15:32] Speaker 04:
Is it simply article 29?

[00:15:34] Speaker 04:
If it's Article 29 and nothing else, then there are none of the elements of the contract present in the complaint.

[00:15:38] Speaker 04:
There's no consideration, authority.

[00:15:41] Speaker 04:
The demonstration of intent that they point to in their brief are events that occurred over the space of 25 years.

[00:15:47] Speaker 04:
The creation of the MEPP in 1987, the solicitation of a new contract in 1996.

[00:15:53] Speaker 04:
They also point to letters that were sent in 2007 and 2011 to prove intent by the federal government to contract 30 years earlier.

[00:16:03] Speaker 04:
The problem that the appellants face, again, is that at the same time, they are pointing to evidence of intent to contract by the Federal Government.

[00:16:11] Speaker 04:
They are also saying the Federal Government is repudiating that contract, because they allege that in September of 1996, when the Federal Government solicited bids to manage the reservation and get new contractors, that there was a repudiation of the implied contract.

[00:16:30] Speaker 04:
But they also say that at that same time, the government, that solicitation itself was evidence of intent to contract.

[00:16:37] Speaker 04:
And I keep coming back to the idea that the court has to figure out what the terms of the contract are.

[00:16:43] Speaker 04:
It's important to determine whether all of the elements are present in the contract.

[00:16:47] Speaker 04:
It's also vital to determine a dispositive issue that I want to touch upon in this case.

[00:16:52] Speaker 04:
And that's the question of the statute of limitations.

[00:16:56] Speaker 04:
As a threshold matter, the appellants have argued that we're not allowed to argue that statute of limitations issue here on appeal for the first time.

[00:17:03] Speaker 04:
Statute of limitations under section 2501 is jurisdictional.

[00:17:06] Speaker 04:
We could have raised it for the very first time on appeal here.

[00:17:09] Speaker 04:
We didn't.

[00:17:09] Speaker 04:
We raised it at the court below, and the court rejected the argument.

[00:17:13] Speaker 04:
But what I'd like to focus on is that for the statute of limitations here,

[00:17:21] Speaker 04:
If the appellants were correct that a mere repudiation of the contract does not begin the statute of limitations running.

[00:17:28] Speaker 04:
That's true.

[00:17:29] Speaker 04:
But this court has also held that any time there is any contractual nonperformance under the contract, that starts the statute of limitations to run.

[00:17:39] Speaker 04:
And then six years after that nonperformance, their statute of limitations would have expired and they would have been out of court.

[00:17:45] Speaker 04:
So if there was any sort of nonperformance by the federal government under the terms of the contract,

[00:17:50] Speaker 04:
That is a breach, and the statute of limitations begin to run.

[00:17:55] Speaker 01:
We mentioned a few different reasons why, if under the... Isn't there something about how the employees were told that if they had a problem with the change in the pension plan, that they should take it up at the time of performance?

[00:18:09] Speaker 04:
I think it's complaint paragraph 87 or 89 that states that the government informed or told the plaintiffs that they couldn't challenge the determination.

[00:18:19] Speaker 04:
There's two issues there.

[00:18:22] Speaker 04:
One is that the complaint doesn't say they couldn't have brought suit.

[00:18:28] Speaker 04:
At best, it can be read to say that there's the plan administrator told them they can't challenge this sort of calculation.

[00:18:34] Speaker 04:
More fundamentally, however, the Supreme Court has made it clear in Bowles v. Russell, as well as John R. Sand and Gravel Company and Soriano,

[00:18:45] Speaker 04:
that there is no equitable tolling for the statute of limitations under 28 U.S.

[00:18:50] Speaker 04:
Code section 2501.

[00:18:51] Speaker 04:
So even if they had been told, you can't challenge this determination in court, which the complaint doesn't say, that doesn't equitably toll the running of the statute of limitations.

[00:19:01] Speaker 02:
But more important... When did the statute start to run?

[00:19:04] Speaker 02:
September 1996?

[00:19:05] Speaker 04:
Yes, and here's why.

[00:19:06] Speaker 04:
And I'm going to bring back exactly what the plaintiff's counsel just said a moment ago.

[00:19:11] Speaker 04:
The Pellants have repeatedly argued in their brief and here 10 minutes ago

[00:19:15] Speaker 04:
that if the implied contract required anything at all, it required the government to only enter into contracts that would accomplish the objectives of Article 29.

[00:19:25] Speaker 04:
A minute ago, the Appellant's Council said their government's responsibility was very narrow.

[00:19:30] Speaker 04:
It was not supposed to use the opportunity of the change of contract to throw people out of the MEPP.

[00:19:37] Speaker 04:
And on page 12 of their brief, the Appellants state the implied, in fact, contract with the Appellants required the government to only enter into contracts

[00:19:45] Speaker 04:
with successor contractors that would accomplish the objective of Article 29 of the MEPP.

[00:19:50] Speaker 04:
They state the same thing on page 9 and page 31 of the brief.

[00:19:54] Speaker 04:
If the court accepts that as true, the government's responsibility under the contract was to only enter into contracts that affect Article 29.

[00:20:02] Speaker 04:
The government didn't do that in September of 1996.

[00:20:05] Speaker 04:
The Pellants' Council just said that.

[00:20:07] Speaker 04:
If that's the case, that was absolutely a case of contractual non-performance.

[00:20:12] Speaker 04:
And at that moment, when the government entered into that contract, which did not accomplish the objectives of Article 29, that was a breach of the applied contract, and the statute of limitations began to run in 1996.

[00:20:24] Speaker 04:
It expired six years later, 14 years before they brought suit here.

[00:20:28] Speaker 02:
They were told they couldn't challenge the changes until retirement.

[00:20:34] Speaker 02:
You're saying that would not preclude suit.

[00:20:38] Speaker 02:
That's sort of a unilateral statement.

[00:20:42] Speaker 04:
First, there was a breach in 1996.

[00:20:44] Speaker 04:
Presumably, I think that if you look at the complaints allegations, that would that breach of a failure to enter into a contract that accomplishes the purpose of Article 29.

[00:20:53] Speaker 04:
If the court accepts that as a breach of the contract, that's contraction on performance, statute of limitations begin to run.

[00:21:00] Speaker 04:
At some point later, the appellants had requested to challenge this determination that their years on the reservation no longer count for the purpose of calculating pension benefits.

[00:21:12] Speaker 04:
even if they were told by the government that they couldn't challenge that determination.

[00:21:18] Speaker 04:
The complaint doesn't say they couldn't bring suit.

[00:21:19] Speaker 04:
Even if that were the case, that still doesn't toll the statute of limitations for the reason that I mentioned a couple minutes ago.

[00:21:25] Speaker 04:
But the Supreme Court has expressly held that there's no equitable tolling of 2501

[00:21:32] Speaker 04:
for purposes of statute of limitations.

[00:21:33] Speaker 04:
That's the John R. Sand and Gravel Company.

[00:21:35] Speaker 02:
It's Bulls v. Russell.

[00:21:37] Speaker 02:
The question is, when did the breach occur, if there was a breach?

[00:21:40] Speaker 04:
Well, as I just explained, the breach, if the court determines that the government had a responsibility, their promise, their obligation under the terms of any implied contract here was to enter into contracts that affected the purpose of Article 29, that would keep them, these appellants, in the pension plan the same way everyone else was and not as

[00:22:01] Speaker 04:
Pelham's counsel described, throw them out.

[00:22:03] Speaker 04:
If that was their promise, the government breached that promise, that term of the contract, in 1996.

[00:22:09] Speaker 04:
Because the only reason we're here in court today is because the government changed, or the plaintiffs alleged that the government entered into this contract that ended up with them being thrown out, or not thrown out of the MEPP, because I think that both parties agree they're in the MEPP, but changed in terms of their pension benefit calculations in a way that conflicts and contradicts Article 29.

[00:22:31] Speaker 04:
That execution of a contract by the federal government with the reservation contractors, which failed to accomplish the purpose of Article 29, was the breach.

[00:22:44] Speaker 04:
And that happened in September 1996, and that's why the statute of limitations, which entirely disposed of this case, controls here.

[00:22:53] Speaker 04:
If there's nothing further, I yield the rest of my time.

[00:22:55] Speaker 04:
Thank you, Your Honors.

[00:22:55] Speaker 02:
Thank you, counsel.

[00:22:59] Speaker 02:
Mr. McKinley has five minutes plus.

[00:23:02] Speaker 03:
I'll try not to get excited and keep my voice down, Your Honor.

[00:23:07] Speaker 03:
The government's argument that when they didn't... Well, first off, let me clear up your apparent misunderstanding.

[00:23:17] Speaker 03:
My clients were never government employees.

[00:23:19] Speaker 03:
What happened was there were private contractors on the Hanford site, and the government came in and said, okay, this is how we're going to run your pensions.

[00:23:27] Speaker 03:
Instead of all of you having individual pensions, we're going to combine you

[00:23:30] Speaker 03:
into a multi-employer pension plan that's going to be the pension plan that governs all the contractors on the Hanford site.

[00:23:38] Speaker 03:
Okay?

[00:23:38] Speaker 03:
So they swept them all up in 87, put them in this pension plan together, and then from there on, the government micromanaged the plan.

[00:23:45] Speaker 03:
They controlled all the aspects of it.

[00:23:47] Speaker 03:
And that's why I argue that they formed an implied contract.

[00:23:51] Speaker 03:
They formed an implied contract that they wouldn't mess with the things that were set forth in the met.

[00:23:57] Speaker 03:
Now, as it turns out, they didn't really.

[00:23:59] Speaker 03:
you know, most of the terms of the MEP, there were no repudiations.

[00:24:03] Speaker 03:
There were no breaches.

[00:24:04] Speaker 03:
I've got nothing to complain about.

[00:24:06] Speaker 03:
The one thing I am complaining about is, in 1996, they repudiated their obligation to honor Article 9.

[00:24:14] Speaker 03:
The government is arguing that's a breach, but the trial court below didn't hold that it was a breach.

[00:24:19] Speaker 03:
The trial court below correctly held that the only thing they could do with respect to Article 29 in 1996 was repudiated, because by its own terms, Article 29

[00:24:30] Speaker 03:
does it ripen until they retire?

[00:24:33] Speaker 03:
Okay?

[00:24:33] Speaker 03:
Again, we have to look very carefully at the language in Article 29.

[00:24:37] Speaker 03:
Article 29 says they won't do anything until normal retirement date.

[00:24:43] Speaker 03:
That's when it kicks in.

[00:24:44] Speaker 03:
Now, conceivably, the government could have kicked the contractor out of the plan and continued to allow the employees to enjoy it.

[00:24:54] Speaker 03:
And in fact, that's exactly what happened, right?

[00:24:57] Speaker 03:
They

[00:24:57] Speaker 03:
They stopped giving them credit for their years of service, but they continued to finance their high-five benefit.

[00:25:04] Speaker 03:
So the idea that the breach had to happen in 1996 is completely undone by what actually happened.

[00:25:11] Speaker 03:
What actually happened was the government repudiated one obligation, but continued a different one, a new one that they made up and wrote into the plan as an amendment.

[00:25:21] Speaker 03:
So the government's argument that that has to be a breach

[00:25:24] Speaker 03:
is completely contrary to the facts.

[00:25:26] Speaker 03:
The fact is, the government did keep them in the plan.

[00:25:29] Speaker 03:
The government kept paying into the plan.

[00:25:31] Speaker 03:
All they did was say, we're not going to honor your years of service when the time comes, when it's time for you to retire.

[00:25:38] Speaker 01:
Are you saying that the government was making contributions to the plan?

[00:25:41] Speaker 01:
It still is.

[00:25:42] Speaker 01:
The MEPP?

[00:25:43] Speaker 03:
Still is.

[00:25:45] Speaker 03:
Still is.

[00:25:45] Speaker 03:
The government pays.

[00:25:46] Speaker 01:
How is that consistent with Article 10, which says each employer will make contributions to the plan?

[00:25:52] Speaker 03:
Well, the government pays the

[00:25:54] Speaker 03:
The government pays the employers for all the obligations of the MEP, including my clients.

[00:26:00] Speaker 00:
So as counsel for the government represented, the government pays the employer who then puts it in the MEP.

[00:26:07] Speaker 03:
Right.

[00:26:08] Speaker 03:
But it's all the government's money.

[00:26:10] Speaker 03:
And the government sets up these contracts to say that it's an allowable cost.

[00:26:15] Speaker 03:
So the government could easily have set up these contracts to say, and in fact, we would argue did set up these contracts, to say that it's an allowable cost

[00:26:23] Speaker 03:
that my clients would be paid for all of their service years because, you know, that clause still exists in the MEP.

[00:26:29] Speaker 03:
It wasn't removed from the MEP.

[00:26:33] Speaker 03:
So my clients should be entitled to all their service years on the day they retire.

[00:26:39] Speaker 03:
But they retire, they go to the MEP, they ask for all their service years, the MEP tells them no, and we say, okay, the government made a promise.

[00:26:46] Speaker 03:
And one other point I want to cover, the government had argued that there's a line of cases that says,

[00:26:52] Speaker 03:
You can't have an express contract where you have an implied contract.

[00:26:56] Speaker 03:
But that's only true if the parties are the same.

[00:27:01] Speaker 03:
If I have an express written contract with the government, counsel's correct.

[00:27:06] Speaker 03:
I can't come in and argue that there's also an implied contract that rides alongside it, okay?

[00:27:11] Speaker 03:
But the express written contract here is not with the government as a party.

[00:27:15] Speaker 03:
The government didn't sign the map.

[00:27:16] Speaker 03:
They just created it and controlled it and micromanaged it from afar and tried to leave their fingerprints off it.

[00:27:22] Speaker 03:
Okay?

[00:27:24] Speaker 03:
The implied contract was, because the government was doing all those things, because the government created, because the government was micromanaging it from afar, because all of that was going on, they impliedly assented to at least enforcing Article 29, where when there was a termination for transfer or when people retired, they wouldn't use the excuse of, well, there was a termination for transfer, and so we stopped paying a deal.

[00:27:48] Speaker 03:
We stopped allowing you to collect those benefits.

[00:27:53] Speaker 02:
Are there any other questions?