                          NOT FOR PUBLICATION                         FILED
                   UNITED STATES COURT OF APPEALS                      DEC 18 2017
                                                                   MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS
                          FOR THE NINTH CIRCUIT

PETER EVAN DRESEL,                            Nos. 15-35643

               Plaintiff-Appellee,            D.C. No. 2:14-cv-01665-MJP

 v.
                                              MEMORANDUM*
PENSION PLAN OF THE PACIFIC
NORTHWEST LABORATORIES,
BATTELLE MEMORIAL INSTITUTE,

               Defendant-Appellant.

PETER EVAN DRESEL,                            No.   15-35652

               Plaintiff-Appellant,           D.C. No. 2:14-cv-01665-MJP

 v.

PENSION PLAN OF THE PACIFIC
NORTHWEST LABORATORIES,
BATTELLE MEMORIAL INSTITUTE,

               Defendant-Appellee.

                  Appeal from the United States District Court
                    for the Western District of Washington
                  Marsha J. Pechman, District Judge, Presiding

                    Argued and Submitted December 6, 2017
                             Seattle, Washington

      *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

      In this Employee Retirement Income Security Act (ERISA) case, the Pension

Plan of the Pacific Northwest Laboratories, Battelle Memorial Institute (the Plan)

appeals the grant of summary judgment in favor of claimant Peter Dresel and the

denial of the Plan’s cross-motion for summary judgment. The Plan contends that it

did not abuse its discretion in denying Dresel Early Retirement Benefits (ERB) under

its Pension Plan. Dresel cross-appeals, arguing that the district court applied an

overly deferential standard in reviewing the Plan’s decision.

      Whether the district court was overly deferential to the Plan does not require

remand. Although the district court could have tempered its abuse of discretion

standard of review with some skepticism because the plan administrator both paid

benefit awards and determined eligibility for benefits,1 we affirm because the district

court’s holding that the Plan abused its discretion survives under even the most

deferential standard of review.2

      The district court properly held that the Plan abused its discretion in denying

Dresel ERB. Under a straightforward application of the abuse of discretion standard,



      1
          See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008).
      2
        Dresel’s cross-appeal is moot. See Schikore v. BankAmerica Supplemental
Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001) (“We need not decide which standard
of review is applicable because even under the more deferential traditional standard,
we conclude that the plan administrator’s decision must be vacated.”).

                                           2
a plan administrator’s decision must be upheld “if it is based upon a reasonable

interpretation of the plan’s terms and if it was made in good faith.” Sznewajs v. U.S.

Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 734 (9th

Cir. 2009) (quotation marks and citation omitted), overruled on other grounds by

Salomaa v. Honda Long Term Disability Plan, 637 F.3d 958, 965 (9th Cir. 2011).

By contrast, a plan administrator abuses her discretion when she construes a pension

plan “in a way that clearly conflicts with the plain language of the [p]lan.” Lehman

v. Nelson, 862 F.3d 1203, 1217 (9th Cir. 2017) (citing 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)).       Here, using the Pension Plan’s definitions of

“Member,” “Retirement,” “Early Retirement Benefit,” and “Early Retirement Age,”

a Member—which includes former employees—is eligible for ERB if he elects to

commence benefits after he turns fifty-five years old, but before he reaches sixty-

five years old, and has ten years of credited service.

      Dresel met the requirements to receive ERB: He was a fifty-seven-year-old

former employee with over seventeen years of credited service when he elected to

receive ERB. Thus, the Plan abused its discretion by requiring Dresel to be an

“active employee” when he elected the commencement of benefits. See Canseco v.

Constr. Laborers Pension Tr., 93 F.3d 600, 608 (9th Cir. 1996) (“[P]ension plan




                                           3
trustees or administrators may not construe a plan so as to impose an additional

requirement for eligibility that clashes with the terms of the plan.”).

      To the extent the Plan argues that it is reasonable to redefine “Retirement” as

the termination of employment because Dresel was eligible for Deferred Vested

Benefits (DVB), the Plan waived this argument. “The general rule, . . . in this circuit

and in others, is that a court will not allow an ERISA plan administrator to assert a

reason for denial of benefits that it had not given during the administrative process.”

Harlick v. Blue Shield of Cal., 686 F.3d 699, 719–20 (9th Cir. 2012). In addition,

ERISA regulations require that the plan administrator provide the claimant with

“[r]eference to the specific plan provisions on which the determination is based.”

29 C.F.R. § 2560.503-1(g)(ii) (2017). Here, the Plan neither explicitly cited its

interpretation of “Retirement” nor referenced the Pension Plan section for DVB

during the administrative process and, thus, is precluded from now presenting this

new reason for denying Dresel ERB.

      AFFIRMED.




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