                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 11 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ISELA DIMERY,                                    No. 12-17550

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00481-JSW

  v.
                                                 MEMORANDUM*
RELIANCE STANDARD LIFE
INSURANCE COMPANY, Administrator
and Fiduciary of the Genentech, Inc. Long
Term Disability Insurance Plan, et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                      Argued and Submitted February 9, 2015
                            San Francisco, California

Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.

       As an employee of Genentech, Inc., Plaintiff Isela Dimery (“Dimery”) was a

participant in The Genentech, Inc. Group Long Term Disability Insurance Program

(“Plan”). The Plan is governed by the Employee Retirement Income Security Act


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of 1974 (“ERISA”). Defendant Reliance Standard Life Insurance (“Reliance”) is

the administrator and fiduciary of the Plan. Reliance denied Dimery’s continued

long-term disability benefits under the Plan. Dimery filed a complaint for judicial

review under 29 U.S.C. § 1132. The district court, reviewing for abuse of

discretion, granted summary judgment in favor of Reliance. Dimery timely

appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1.    Under both the Summary Plan Description (“SPD”) and the applicable

ERISA regulations, Reliance was required to render a decision in Dimery’s

administrative appeal within forty-five days, or to provide notice that additional

time was required due to special circumstances before the initial forty-five day

period expired. 29 C.F.R. § 2560.503-1(i)(1)(i), (i)(3)(i). In correspondence with

Dimery, Reliance notified her that it was seeking an independent medical

evaluation, but did not expressly state that it needed additional time beyond the

forty-five day period to render a decision. On the sixty-fourth day, Reliance

affirmed the initial decision terminating Dimery’s long-term disability benefits.

2.    Reliance argues for the first time on appeal that the SPD containing the

relevant time limitations is not part of the Plan under CIGNA Corp. v. Amara, 131

S. Ct. 1866, 1877–78 (2011). Because the parties proceeded in district court as




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though the SPD was part of the Plan without objection from Reliance, Reliance has

waived this argument. See Solis v. Matheson, 563 F.3d 425, 437 (9th Cir. 2009).

3.    Dimery argues that under Jebian v. Hewlett-Packard Co. Employee Benefits

Org. Income Protection Plan, 349 F.3d 1098, 1105 (9th Cir. 2003), the district

court should have reviewed de novo Reliance’s denial of benefits. This argument

fails for two reasons. First, the denial of Dimery’s benefits was not “necessarily

the mechanical result” of a violation of the terms of the Plan. See id. The Plan did

not state that a particular result would ensue from a failure to adhere to the time

limits for reviewing the denial of benefits. Second, insofar as Dimery relies not on

the Plan but on the requirements of the applicable ERISA regulations, 29 C.F.R.

§ 2560.503-1(i)(1)(i), (i)(3)(i), ERISA procedural violations do not alter the

standard of review unless the violations cause the beneficiary substantive harm.

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 971 (9th Cir. 2006) (en banc);

Gatti v. Reliance Std. Life Ins., 415 F.3d 978, 985 (9th Cir. 2005) (explaining that

“procedural violations of ERISA do not alter the standard of review unless those

violations are so flagrant as to alter the substantive relationship between the

employer and employee, thereby causing the beneficiary substantive harm”).

Dimery does not identify any substantive harm resulting from Reliance’s untimely




                                           3
decision. The district court properly reviewed the denial of Dimery’s benefits

under an abuse of discretion standard.

4.    Because Dimery argues only that the district court should have reviewed

Reliance’s denial of her benefits de novo, and does not argue that she should have

prevailed under an abuse of discretion standard, the district court’s judgment is

AFFIRMED.




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