                                                                           FILED
                                                                            DEC 23 2011
                           NOT FOR PUBLICATION                          MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



PLAN BOARD OF SUNKIST                          No. 10-55745
RETIREMENT PLAN,
                                               D.C. No. CV-05-8659-AG(RCx)
              Plaintiff-Counter-Defendant -
              Appellee,
                                               MEMORANDUM *
 v.

HARDING & LEGGETT, INC.,

              Defendant-Counter-Claimant
            -Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                      Argued and submitted December 9, 2011
                               Pasadena, California

Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
       Defendant-Appellant Harding & Leggett, Inc. (“H&L”) appeals the judgment

of the district court. The court found in favor of Plaintiff-Appellee Plan Board of

Sunkist Retirement Plan (the “Plan Board”) in regard to H&L’s liability as a result of

its withdrawal from a multiple-employer pension plan. H&L argues that the Plan

Board abused its discretion in calculating the withdrawal liability amount. H&L

principally argues that the interest rate assumption utilized to calculate its withdrawal

liability was unreasonably low and selected for the purpose of exaggerating its

liability.   In related arguments, H&L contends that the Plan Board improperly

included a job elimination benefit in its calculation, as well as missing and deceased

participants. We review the district court’s judgment for clear error, and we affirm.

       The interest rate assumption used to calculate H&L’s withdrawal liability was

not unreasonably low. The record supports the district court’s finding that in this case,

the combination of the Pension Benefit Guaranty Corporation’s (“PBGC”) interest

rate assumptions with its mortality rate assumptions approximates insurance annuity

market pricing. The district court therefore did not err in upholding the Plan Board’s

chosen interest rate assumptions.

       Furthermore, we do not accept H&L’s argument that the Plan Board improperly

included the job elimination benefit in its calculation. Testimony at trial established

that the omission of the job elimination benefit was simply a clerical error, and that

the benefit was received by at least one H&L employee during the time the language
was missing from the Plan document. Thus, the district court’s factual finding that

the benefit was added to the Plan through an amendment in 1997 and was included in

the Plan at the time of H&L’s withdrawal was not clearly erroneous.

      Similarly, the Plan Board did not improperly include missing and deceased

participants in its calculation. The regulations issued under ERISA require that, “[i]n

the absence of proof of death, individuals not located are presumed living.” 29 C.F.R.

§ 4050.2 (definition of “missing participant”). This refutes H&L’s assertion that

certain missing participants should be presumed dead. Moreover, the Plan Board

regularly conducted mortality audits and utilized a commercial locator service to

search for missing participants as required by 29 C.F.R. § 4050.4(b)(3). Accordingly,

the district court did not err in concluding that the Plan Board did not abuse its

discretion in calculating H&L’s withdrawal liability.

AFFIRMED.
