                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 21 2016

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



                            FOR THE NINTH CIRCUIT


KENNETH J. BAILEY, for himself and as            No. 14-55734
executor of the Estate of Linda Jean
Weeks,                                           D.C. No. 5:12-cv-01754-R-SP

              Plaintiff-Appellant,
                                                 MEMORANDUM*
 v.

UNION BANK RETIREMENT PLAN;
EMPLOYEE DEFERRED
COMPENSATION AND BENEFIT
PLANS ADMINISTRATIVE
COMMITTEE,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                          Submitted November 16, 2016**

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      Kenneth J. Bailey appeals pro se from the district court’s summary judgment

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in his action under the Employment Retirement Income Security Act of 1974

(“ERISA”) for surviving domestic partner benefits and breach of fiduciary duty.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

grant of summary judgment. Tremain v. Bell Indus., Inc., 196 F.3d 970, 975 (9th

Cir. 1999). Where an ERISA-governed plan grants discretionary authority to

determine eligibility for benefits or to construe the terms of the plan, we review for

an abuse of discretion the administrator’s interpretation of the plan, and de novo

the district court’s application of this standard. Tapley v. Locals 302 & 612 of the

Int’l Union of Operating Eng’rs-Emp’rs Constr. Indus. Ret. Plan, 728 F.3d 1134,

1139 (9th Cir. 2013). We may affirm on any basis supported by the record.

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

We affirm.

      The district court properly granted summary judgment on Bailey’s claim for

surviving domestic partner benefits under 29 U.S.C. § 1132(a)(1)(B) because

Bailey failed to raise a genuine dispute of material fact as to whether the plan

administrator’s denial of benefits was an abuse of its discretion. See McDaniel v.

Chevron Corp., 203 F.3d 1099, 1113 (9th Cir. 2000) (under abuse of discretion

standard, plan administrator’s denial of benefits must be upheld “if it is based upon

a reasonable interpretation of the plan’s terms and if it was made in good faith”).


                                           2                                       14-55734
      Summary judgment on Bailey’s breach of fiduciary duty claim was proper

because Bailey failed to raise a genuine dispute of material fact as to whether the

failure to inform Bailey or his domestic partner of the registration requirement for

surviving domestic partner benefits was a breach of defendants’ fiduciary duties.

See 29 U.S.C. § 1104(a) (setting forth standard of care and duties of plan

fiduciary); In re Oracle Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(describing non-moving party’s burden to show specific facts demonstrating

existence of genuine disputes for trial).

      AFFIRMED.




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