                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 29 2013

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



                           FOR THE NINTH CIRCUIT


WENDELL W. REINKING,                             No. 11-35363

              Plaintiff - Appellee,              D.C. No. 3:07-cv-00212-JWS

  v.
                                                 MEMORANDUM*
ALYESKA PIPELINE SERVICE CO.;
ALYESKA PIPELINE SERVICE CO.
PENSION FOR OPERATING
COMPANY EMPLOYEES, initially
effective July 1, 1976; ALYESKA
PIPELINE SERVICE CO.
SEPARATION BENEFITS PLAN NO.
516; ALYESKA PIPELINE SERVICE
CO. PENSION PLAN RETIREMENT
AND TRUST COMMITTEE;
ALYESKA PIPELINE SERVICE CO.
HUMAN RESOURCES
DEPARTMENT AS PLAN
ADMINISTRATOR FOR ALYESKA
SEPARATION BENEFITS PLAN NO.
516,

              Defendants - Appellants.



WENDELL W. REINKING,                             No. 11-35397


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                     page 2

               Plaintiff - Appellant,               D.C. No. 3:07-cv-00212-JWS

  v.

ALYESKA PIPELINE SERVICE CO.;
ALYESKA PIPELINE SERVICE CO.
PENSION FOR OPERATING
COMPANY EMPLOYEES, initially
effective July 1, 1976; ALYESKA
PIPELINE SERVICE CO.
SEPARATION BENEFITS PLAN NO.
516; ALYESKA PIPELINE SERVICE
CO. PENSION PLAN RETIREMENT
AND TRUST COMMITTEE;
ALYESKA PIPELINE SERVICE CO.
HUMAN RESOURCES
DEPARTMENT AS PLAN
ADMINISTRATOR FOR ALYESKA
SEPARATION BENEFITS PLAN NO.
516,

               Defendants - Appellees.


                     Appeal from the United States District Court
                              for the District of Alaska
                     John W. Sedwick, District Judge, Presiding

                        Argued and Submitted August 14, 2013
                                 Anchorage, Alaska

Before:       KOZINSKI, Chief Judge, BERZON and IKUTA, Circuit Judges.

       1. The structural conflict of interest present in this case is entitled to little

weight because there’s no evidence of malice, self-dealing, a suspect claims-
                                                                                  page 3
granting history, inadequate investigation of a claim or failure to credit a

claimant’s reliable evidence. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955, 968–69 (9th Cir. 2006) (en banc).


      2. The Pension Plan administrator didn’t abuse its discretion in denying

Reinking’s application for benefits. See Conkright v. Frommert, 130 S. Ct. 1640,

1646 (2010); Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 981 (9th Cir.

2005). The Pension Plan’s definition of “Employee” as “any person engaged in

rendering personal services to the Employer for earnings considered wages under

Section 3121(a) of the [Internal Revenue] Code” can reasonably be read to refer

only to those employees on Alyeska’s payroll. The plan administrator’s decision

to adopt such an interpretation doesn’t violate ERISA’s anti-cutback provision, see

29 U.S.C. § 1054(g), as the later amendments to the plan can reasonably be read as

clarifications of the earlier language.


      3. The Separation Plan administrator also didn’t abuse its discretion in

denying Reinking benefits. The plan explicitly distinguishes “regular” employees

from “non-Alyeska contract personnel.” Because Reinking was formally

employed by a series of third-party staffing firms, not Alyeska, a plan

administrator could reasonably conclude that he falls into the latter category.
                                                                  page 4
The district court shall enter summary judgment for defendants.


REVERSED.
                                                                           FILED
Reinking v. Alyeska Pipeline Serv. Co., No. 11-35363                        AUG 29 2013
BERZON, Circuit Judge, concurring and dissenting:                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      I respectfully dissent as to the pension plan benefits but concur with regard

to the separation benefits.

      For the reasons explained by the district court, the plan administrator’s

interpretation of the phrase “any person engaged in rendering personal services to

the Employer for earnings considered wages under Section 3121(a) of the [Internal

Revenue] Code” was an abuse of discretion. In addition, the plan’s separate

reference to leased employees would be superfluous were Alyeska’s interpretation

of the 1989 definition of “Employee” correct. See, e.g., Brown v. S. Cal. IBEW-

NECA Trust Funds, 588 F.3d 1000, 1003 (9th Cir. 2009) (“[E]ach provision in an

agreement should be construed consistently with the entire document such that no

provision is rendered nugatory.” (internal quotation marks omitted). I would

therefore affirm the district court as to the pension benefits.
