                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

FRANCIENE SZNEWAJS,                       
       Plaintiff-Counter-defendant-
                          Appellee,
                 v.
                                                 No. 07-16489
U.S. BANCORP AMENDED AND
RESTATED SUPPLEMENTAL BENEFITS
PLAN,
                                                  D.C. No.
                                               CV-04-01716-ROS
      Defendant-Counter-claimant-                 OPINION
                         Appellant,
ROBERT SZNEWAJS; VIRGINIA
SZNEWAJS,
     Counter-defendants-Appellees.
                                          
         Appeal from the United States District Court
                  for the District of Arizona
          Roslyn O. Silver, District Judge, Presiding

                   Argued and Submitted
         October 23, 2008—San Francisco, California

                        Filed July 13, 2009

       Before: Melvin Brunetti, Glenn L. Archer* and
             Richard R. Clifton, Circuit Judges.

                    Opinion by Judge Clifton




   *The Honorable Glenn L. Archer, Jr., United States Circuit Judge for
the Federal Circuit, sitting by designation.

                                8719
8722               SZNEWAJS v. U.S. BANCORP




                         COUNSEL

Michael W. Droke (argued) and Jennifer C. Berry, Dorsey &
Whitney LLP, Seattle, Washington, for the defendant-
counter-claimant-appellant.

Timothy Berg, David N. Heap, and Janice Procter-Murphy
(argued), Fennemore Craig, P.C., Phoenix, Arizona, for the
plaintiff-counter-defendant-appellee.


                          OPINION

CLIFTON, Circuit Judge:

   This case concerns, among other issues, the standard of
review to be applied by courts in reviewing a decision by the
administrator of a pension plan governed by ERISA, the
Employee Retirement Income Security Act of 1974, 88 Stat.
829, as amended, 29 U.S.C. § 1001 et seq. As is commonly
the case, the documents for the plan involved in this case gave
the plan administrator discretionary authority to interpret the
terms of the plan, which ordinarily means that a decision by
the plan administrator is subject to review by a court for abuse
of discretion, under Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 109 S. Ct. 948 (1989), and Metropolitan Life
Ins. Co. v. Glenn, ___ U.S. ___, 128 S. Ct. 2343 (2008)
(“MetLife”). The plan in question here is a “top hat” plan, an
unfunded plan that is limited to key executives of the sponsor-
ing company. That fact has led some courts to conclude that
                      SZNEWAJS v. U.S. BANCORP                       8723
a plan administrator’s decisions should be subject to de novo
review. In the circumstances of this case, though, notably the
fact that there was no financial conflict of interest that influ-
enced the administrator to favor one result over another, we
conclude that our review should be for abuse of discretion.

   Defendant U.S. Bancorp Amended and Restated Supple-
mental Benefits Plan appeals the district court’s entry of sum-
mary judgment directing the Plan to treat plaintiff Franciene
Sznewajs as a designated surviving spouse beneficiary. Franc-
iene is the ex-wife of counter-defendant Robert Sznewajs,1 a
former executive employee of U.S. Bancorp covered by the
Plan. The Plan had concluded that Robert’s second wife, Vir-
ginia, should be treated as his survivor beneficiary, a determi-
nation held improper by the district court. Applying the abuse
of discretion standard of review, we conclude that the plan
administrator’s interpretation was permissible and should be
affirmed. Accordingly, we reverse and remand the district
court judgment with instructions for the district court to enter
summary judgment in favor of the Plan.

I.       Background

   As an employee covered by U.S. Bancorp’s plan for top
executives, Robert had the option to select a single life annu-
ity or a joint and survivor annuity. Under a single life annuity,
payments would be made monthly to him as long as he lived
but no payments would be made to anyone after his death.
Under a joint and survivor annuity, the amount of the monthly
payments would be smaller, but if his wife lived longer than
he did, payments to her would continue after his death. The
total present value of the benefits was intended to be the same
either way. The specific amount of the monthly payments
would be determined by an actuarial calculation that took into
account his selection and also the remaining life expectancy
     1
    Because they share the same last name, in this opinion we refer to Rob-
ert, Franciene, and Virginia by their first names.
8724               SZNEWAJS v. U.S. BANCORP
of Robert — and that of his wife, if he chose a survivor annu-
ity — based on their ages at the time that payments started.
Robert opted for a joint and survivor annuity. His election, on
a form signed by him, did not identify the name of his spouse.

   Robert resigned from Bancorp in December 1999 and took
a position with another bank. At that time Robert was 53
years old. Although he was no longer employed by the com-
pany, Robert did not start to receive benefits then, because the
plan provides that payments do not start until after the benefi-
ciary both ceases to be an employee of the company and turns
55.

   At the time he left Bancorp, Robert was married to Fran-
ciene, although they had been separated for over a year. Rob-
ert and Franciene were divorced in February 2001, eight
months before Robert’s 55th birthday. The divorce followed
a dissolution proceeding in Minnesota state court dividing the
couple’s assets. Pursuant to the divorce decree, Franciene is
entitled to fifty percent of any annuity payments Robert
receives under the Plan.

   In August of that same year, Robert married Virginia
Sznewajs. In October, he turned 55, and in November, he
started receiving monthly annuity benefits, the value of which
the Plan calculated based on the life expectancies of Robert
and Virginia.

   In April 2002, Franciene filed a claim with the Plan
requesting that it recognize her, and not Virginia, as Robert’s
designated survivor. This request was based on her interpreta-
tion of the term “retirement” as used in the Plan.

   The relevant provision is section 6.1.3(a) of the Plan, which
describes the time and manner of payment of benefits under
a joint and survivor annuity as:

    An actuarial equivalent reduced monthly benefit for
    life to the Participant . . . payable to the survivor des-
                    SZNEWAJS v. U.S. BANCORP                    8725
    ignated at retirement, if then living, for life after the
    death of the Participant . . . . If the designated survi-
    vor dies before the Participant retires, then the Par-
    ticipant shall select another survivor within 30 days.
    Except for death of the survivor the Participant shall
    have no power to name a new survivor . . . . If the
    designated survivor dies after the Participant retires
    but before the Participant dies, then payments will
    continue to the Participant in the same reduced
    amount and another survivor cannot be selected.

(emphasis added).

   Franciene contended that “retirement” in this context meant
the date of Robert’s termination of employment with Bancorp
(when Robert was still married to Franciene) rather than the
date benefits commenced (when Virginia was Robert’s wife).
The plan administrator rejected Franciene’s interpretation and
denied her claim, deciding that Virginia had properly been
identified because she was Robert’s wife at the time that he
started collecting benefits and the amount of the monthly pay-
ment was calculated. Franciene appealed this decision inter-
nally, but without success.

   Franciene then filed this action in Arizona state court. The
Plan removed the case to the federal district court and inter-
pleaded Robert and Virginia. On cross-motions for summary
judgment, the district court granted summary judgment in
favor of Franciene, concluding that the plan administrator
abused its discretion by interpreting the term “retirement” in
a manner contrary to the Plan’s plain language and to the
term’s ordinary meaning. The court ordered the Plan to treat
Franciene as the designated survivor. It also ordered that the
amount of Robert’s monthly payment be recalculated based
on Franciene as the survivor beneficiary rather than Virginia.
Because Franciene was older than Virginia, for actuarial pur-
poses her life expectancy was not as long, so the amount of
the monthly payment was increased. Specifically, the court
8726               SZNEWAJS v. U.S. BANCORP
ordered that the monthly payment to Robert be increased to
$23,263.78, both prospectively and retroactively to November
2001.

  The Plan timely appealed.

II.    Standard of Review of the District Court’s Decision

   This appeal involves two different standards of review: one
applying to our review of the district court’s decision, and the
other concerning the standard that applies to court review of
the ERISA plan administrator’s decision.

   As for the first, we review de novo a district court’s deci-
sion to grant or deny summary judgment. Bergt v. Retirement
Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139,
1142 (9th Cir. 2002). We also review de novo a district
court’s “choice and application” of the appropriate standard
for reviewing benefits decisions by an ERISA plan adminis-
trator. Pannebecker v. Liberty Life Assurance Co. of Boston,
542 F.3d 1213, 1217 (9th Cir. 2008).

III.   Standard of Review of the Plan Administrator’s
       Decision

   The appropriate standard for review by a court of the
administrator’s decision is one of the disputed legal issues in
this case, though we do not believe, in the end, that it deter-
mines the outcome. Because the issue arises in many ERISA
benefit cases, however, it merits some discussion.

   [1] Like many, perhaps most, benefit plans covered by
ERISA, this Plan grants the plan administrator authority to
interpret and apply the terms of the plan. Section 11.4 confers
upon the plan administrator “discretionary authority to deter-
mine eligibility for benefits and to construe the terms of this
Plan[,]” and seeks to limit “[t]he scope of any subsequent
review, judicial or otherwise, . . . to a determination as to
                   SZNEWAJS v. U.S. BANCORP                 8727
whether the [plan administrator] acted arbitrarily or capri-
ciously in the exercise of its discretion.”

   [2] Drawing from principles of trust law, the Supreme
Court has held that where an ERISA plan does not provide
otherwise, a court should apply a de novo standard of review
to a Plan’s benefits determination, under which the court
should grant no deference to the plan’s decision. See MetLife,
128 S. Ct. at 2348; Firestone, 489 U.S. at 115. When a plan
grants the plan administrator discretionary authority to con-
strue the plan’s terms, however, the appropriate standard of
review is for abuse of discretion, with any conflict of interest
on the part of the plan administrator included as a factor to be
taken into account in deciding whether the discretion has been
abused. See MetLife, 128 S. Ct. at 2346, 2348; Firestone, 489
U.S. at 115.

   [3] Because the Plan involved here assigns discretionary
authority to the administrator, we apply the informed abuse of
discretion standard. We must determine whether the plan
administrator “operat[ed] under a conflict of interest,” and, if
so, we must weigh “that conflict . . . as a factor in determining
whether there is an abuse of discretion.” MetLife, 128 S. Ct.
at 2348 (internal quotation marks and emphases omitted).
This informed variation on the abuse of discretion standard
requires us to discount the amount of deference given to the
administrator’s decision to the extent that decision appears to
have been influenced by any conflicts of interest. Saffon v.
Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863,
867-68 (9th Cir. 2008); Pannebecker, 542 F.3d at 1218.

   As MetLife explained, a conflict of interest commonly
arises when a plan administrator serves the “dual role” of
“both determin[ing] whether an employee is eligible for bene-
fits and pay[ing] benefits out of its own pocket.” 128 S. Ct.
at 2346 (emphasis added). The “informed” element of the
informed abuse of discretion standard reflects the possibility
that the plan administrator might be influenced to interpret the
8728                   SZNEWAJS v. U.S. BANCORP
plan to favor its own financial interests. The possible bias that
results from such a conflict of interest is, not surprisingly, a
contentious issue in many ERISA benefits lawsuits.

   That element plays no role in this case, however. To be
sure, on the surface, it might appear that there is a risk of such
a conflict of interest here. This Plan was established and is
administered by Bancorp itself. Ultimate authority for its
administration, including its exercise of the discretionary
authority assigned to the administrator, lies with the compa-
ny’s executive committee (or for some decisions, its compen-
sation committee). The Plan is also unfunded. Payments made
to beneficiaries come directly from the company’s pocket.

   But the specific decision in dispute here is not one which
had a financial impact on the company. When the decision
was made to reject Franciene’s interpretation, the impact on
the Plan was actuarially neutral. The present value of the
anticipated benefits — the amount of the Plan’s liability —
was the same either way, because any difference between Vir-
ginia and Franciene was offset by the recalculation of the
amount of the monthly payment. Replacement of Virginia
with Franciene as the person identified as the potentially sur-
viving spouse would not have exposed the company to any
greater liability. Franciene has not argued, let alone proven,
that the Plan’s adjudication of Franciene’s claim was tainted
by the self-interest of the company or the Plan, so there is no
reason to review the Plan’s decision with skepticism.2 We
need not discount the amount of deference ordinarily owed to
  2
    Regrettably, in mid-2006, while the lawsuit was pending before the
district court, Virginia passed away. There is no longer a possibility that
the Plan will have to pay survivor benefits to Virginia after Robert dies,
if the Plan’s identification of Virginia is upheld, while the possibility still
exists that Franciene could collect such benefits. Under the terms of sec-
tion 6.1.3(a), as quoted above, at 8724-25, because Virginia passed away
after Robert’s retirement from the company, another person cannot be
identified to replace her as the survivor. In that sense, the company now
has a financial stake in the decision. Virginia’s passing occurred well after
the Plan had rejected Franciene’s interpretation and had recognized Vir-
ginia as Robert’s designated survivor beneficiary, however. No party has
suggested that the Plan anticipated Virginia’s premature passing at the
time it made its decision, so that decision cannot be attributed to its finan-
cial self-interest.
                   SZNEWAJS v. U.S. BANCORP                 8729
the administrator’s decision in reviewing for an abuse of dis-
cretion.

   [4] Franciene argues that the less deferential de novo stan-
dard of review should be applied to the administrator’s deci-
sion because this Plan is a so-called “top hat” plan. ERISA
“defines a top hat plan as one ‘which is unfunded and is main-
tained by an employer primarily for the purpose of providing
deferred compensation for a select group of management or
highly compensated employees.’ ” Gilliam v. Nevada Power
Co., 488 F.3d 1189, 1192-93 (9th Cir. 2007) (quoting 29
U.S.C. §§ 1051(2), 1081(a)(3), 1101(a)(1)). Top hat plans are
exempt from many of ERISA’s substantive requirements. See
id. at 1193.

   [5] Neither Firestone nor MetLife involved top hat plans.
As we noted in Gilliam, 488 F.3d at 1194, the Third and
Eighth Circuits have carved a top hat exception out of Fire-
stone by reviewing de novo the benefit determinations by
administrators of top hat plans despite the existence of
discretion-granting clauses in the pension plans at issue in
these cases. See Goldstein v. Johnson & Johnson, 251 F.3d
433, 442-43 (3d Cir. 2001); Craig v. Pillsbury Non-Qualified
Pension Plan, 458 F.3d 748, 752 (8th Cir. 2006). Both Gold-
stein and Craig emphasized, however, that application of a de
novo standard of review did not materially change the out-
come in either case, since ordinary contract principles require
a reviewing court to give full effect to the entire pension plan,
including any provisions granting the administrator discre-
tionary interpretation. Goldstein, 251 F.3d at 436, 443-44;
Craig, 458 F.3d at 752.

   [6] We do not believe, and have found no cases to suggest,
that applying a different standard of review under these cir-
cumstances would lead to a materially different result. We
conclude that importing “de novo” language into the standard
of review simply because the plan involved is a top hat plan
would create unnecessary confusion. We will therefore con-
8730               SZNEWAJS v. U.S. BANCORP
tinue to adhere to the framework established by the Supreme
Court in Firestone and MetLife for all covered plans, top hat
or otherwise. Where, as here, there was no conflict of interest
that tainted the Plan’s determination, the Plan’s decision
should be upheld unless it constituted an abuse of discretion.

IV.    The Plan’s Discretionary Determination

   [7] Under the abuse of discretion standard, we must deter-
mine whether the plan administrator exercised its discretion
reasonably. “A plan administrator’s decision to deny benefits
must be upheld under the abuse of discretion standard if it is
based upon a reasonable interpretation of the plan’s terms and
if it was made in good faith.” McDaniel v. Chevron Corp.,
203 F.3d 1099, 1113 (9th Cir. 2000). “Indeed, an administra-
tor’s decision is not arbitrary unless it is not grounded on any
reasonable basis.” Hensley v. Nw. Permanente P.C. Retire-
ment Plan & Trust, 258 F.3d 986, 1001 (9th Cir. 2001), over-
ruled on other grounds by Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955 (9th Cir. 2006) (en banc) (internal quota-
tion marks omitted).

   The Plan does not expressly define the term “retirement.”
Robert did not fit the classic model, for he did not stop work-
ing at age 53 when he left Bancorp’s employment. Instead, he
went to work somewhere else. He did not stop working when
he started collecting benefits from the Plan when he turned
55, either. So what does “retirement,” as that term is used in
the Plan, mean in these circumstances? More importantly, was
the Plan’s interpretation unreasonable and an abuse of its dis-
cretion?

   Franciene presented the Plan with her contention that, at
least for the purpose of establishing the identity of the surviv-
ing spouse beneficiary, the Plan ought to define “retirement”
as the termination of a participant’s employment with Ban-
corp, rather than treating the commencement of annuity bene-
fits as “retirement.” The plan administrator responded with a
                    SZNEWAJS v. U.S. BANCORP                  8731
carefully-reasoned, six-page decision in which it examined
numerous Plan provisions and considered the effect of Fran-
ciene’s proposed interpretation in each of them. On review,
the district court conducted a very similar provision-by-
provision analysis but reached the opposite conclusion regard-
ing which of the two proposed constructions was more appro-
priate.

   [8] We conclude that the Plan, read as a whole, is ambigu-
ous regarding what the term “retirement” means. Neither con-
struction of the term fits perfectly into every single Plan
provision that uses the term or one of its derivations. For
example, section 6.1.4 establishes the method by which a par-
ticipant’s monthly annuity benefit will be reduced if the par-
ticipant terminates employment with Bancorp before he or she
is eligible for “early retirement[.]” Construing the term “re-
tirement” as “termination of employment” would render this
provision meaningless, whereas a “commencement of bene-
fits” construction would make sense in this context. On the
other hand, section 6.1.1(c), which establishes the method for
calculating an “Additional Benefit Service Benefit[,]” states
that “[u]pon retirement . . . [an eligible] Participant . . . shall
receive a monthly benefit . . . .” Here, the more sensible read-
ing of “retirement” is “termination of employment.”

   [9] This is a classic case of ambiguity. The administrator’s
construction of this ambiguous Plan term does not appear to
us to be unreasonable or made in bad faith. See McDaniel,
203 F.3d at 1113. Robert did not actually “retire” at either of
the times identified as events that should be treated as “retire-
ment” under the Plan. From the Plan’s perspective, though, he
was treated as someone who had “retired” when the Plan
started paying him benefits and had to make the actuarial cal-
culation of what amount should be paid out each month, so
taking that event as his “retirement” is not an illogical inter-
pretation for the Plan to make.

   [10] Under the deferential standard which courts must use
to review the administrator’s interpretation in the absence of
8732                SZNEWAJS v. U.S. BANCORP
any evidence of conflict of interest, the administrator did not
abuse the discretion which the Plan confers upon it, and the
district court erred in concluding otherwise. McDaniel, 203
F.3d at 1113 (“The question we must ask is not whose inter-
pretation of the plan documents is most persuasive, but
whether the interpretation is unreasonable.”) (internal quota-
tion marks and ellipses omitted); see also Johnson v. Dist. 2
Marine Eng’rs Beneficial Ass’n, 857 F.2d 514, 516 (9th Cir.
1988) (holding that this court “must resolve the ambiguity [in
an ERISA plan] in favor of the [administrator’s] interpretation
if it is reasonable”).

V.     Conclusion

   [11] We conclude that the plan administrator did not abuse
its discretion in rejecting Franciene’s claim based on its rea-
sonable interpretation of the Plan document. Accordingly, we
reverse and remand with instructions for the district court to
grant summary judgment in favor of the Plan.

     REVERSED and REMANDED.
