                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUN 12 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RICHARD LEHMAN, on behalf of himself            No.    18-35321
and others similarly situated; MICHAEL
PUTERBAUGH,                                     D.C. No. 2:13-cv-01835-RSM

                Plaintiffs-Appellees,
                                                MEMORANDUM*
 v.

WARNER NELSON; et al.,

                Defendants-Appellants.

                   Appeal from the United States District Court
                      for the Western District of Washington
                Ricardo S. Martinez, Chief District Judge, Presiding

                       Argued and Submitted May 13, 2019
                              Seattle, Washington

Before: KLEINFELD and FRIEDLAND, Circuit Judges, and EZRA,** District
Judge.

      The Trustees of the IBEW Pacific Coast Pension Fund (the “Pacific Coast

Fund” or the “Fund”) appeal the district court’s order granting summary judgment



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
in favor of Employee Retirement Income Security Act of 1974 (“ERISA”) class

action Plaintiffs-Appellees (“the Class”). We affirm.

      Following this Court’s remand in Lehman v. Nelson, 862 F.3d 1203 (9th Cir.

2017) (“Lehman I”), the district court held that Amendment 24 to the Pacific Coast

Fund Pension Plan (the “Pension Plan” or the “Plan”) violates the plain language

of section 5.04 in Article 5 of the Plan. This section requires the transfer of all

employer contributions received on behalf of travelers in the electrical construction

industry who work in the jurisdictions of other local union pension funds. The

court held that the Trustees of the Fund cannot distinguish between “benefit” and

“non-benefit” contributions where it concerns travelers.

      “Where an ERISA Plan grants discretionary authority to determine

eligibility for benefits or to construe the terms of the plan, a plan administrator’s

interpretation of a plan is reviewed for abuse of discretion.” Lehman I, 862 F.3d at

1216 (quoting Tapley v. Locals 302 & 612 of Int’l Union of Operating Eng’rs-

Emp’rs Constr. Indus. Ret. Plan, 728 F.3d 1134, 1139 (9th Cir. 2013)). We review

the district court’s application of this standard and the district court’s grant of

summary judgment de novo. See id. On appeal, the Class contends that we should

review the Trustees’ interpretation of Amendment 24 de novo because the issue in

this case is purely a legal question and does not concern any interpretation of the

Plan. As in Lehman I, we need not decide this issue as the Trustees’ arguments in


                                            2
support of their interpretation of Amendment 24 fail even under the deferential

abuse-of-discretion standard.

      The district court properly granted summary judgment in favor of the Class.

Like Amendment 14 in Lehman I, the Trustees’ interpretation of Amendment 24

with regard to travelers’ contributions is inconsistent and conflicts with the Pacific

Coast Plan’s own definition of “contribution” found in section 1.04, and conflicts

with and renders nugatory section 5.04. Section 5.04 of the Pension Plan

incorporates the Reciprocal Agreement signed by the Pacific Coast Fund. Pursuant

to section 5.04, travelers’ contributions are simply pass-through contributions

made to the travelers’ home funds and are not assets of the Pacific Coast Fund.

The Trustees’ attempts to distinguish “benefit” and “non-benefit” contributions

pursuant to collective bargaining agreements are unavailing—any contributions on

behalf of a traveler must be passed through under the Plan. Because travelers’

contributions do not belong to the Pacific Coast Fund, the district court’s order did

not violate the Pension Protection Act of 2006, nor did the order require the

Trustees to violate their fiduciary duties under ERISA.

      AFFIRMED.




                                          3
