                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

HAROLD DAVIS,                                   No.    15-17212

                Plaintiff-Appellant,            D.C. No. 3:14-cv-00853-JSC

 v.
                                                MEMORANDUM*
PENSION TRUST FUND FOR
OPERATING ENGINEERS and BOARD
OF TRUSTEES OF THE PENSION
TRUST FUND FOR OPERATING
ENGINEERS LOCAL NO. 3,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Northern District of California
               Jacqueline Scott Corley, Magistrate Judge, Presiding

                       Argued and Submitted July 12, 2017
                           San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,** District Judge.

      Harold Davis appeals the district court’s grant of summary judgment for

defendants in his action under the Employee Retirement Income Security Act of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
1974 (ERISA). We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      The Pension Plan for the Pension Trust Fund for Operating Engineers (the

Plan) as written would entitle Davis to three different levels of disability retirement

benefits, which makes it ambiguous. Kennewick Irrigation Dist. v. United States,

880 F.2d 1018, 1032 (9th Cir. 1989) (“A contract is ambiguous if reasonable

people could find its terms susceptible to more than one interpretation.”). Section

3.16 of the Plan specifies that a participant is entitled to only one benefit, making

the Plan, as written, also ambiguous because it is internally inconsistent. See Bergt

v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1145 (9th Cir.

2002).

      Section 9.03 of the Plan reserved for the Board of Trustees the right to

interpret it. Because the Plan was ambiguous as to the size of the disability

retirement pension to which Davis was entitled, the Trustees properly looked to

extrinsic evidence to clarify this ambiguity. The plan summary provided to plan

participants, minutes of a Board of Trustees meeting, and communications from

the Plan consultant to the Board support the Trustees’ interpretation that Davis

should be entitled only to a pension based on the actuarial equivalent standard.

Because the extrinsic evidence offers a strong basis for the Trustees’ interpretation

of the ambiguous provisions of the Plan and because Davis has not identified any

contrary evidence, it cannot be said that the Trustees’ interpretation was “not


                                           2
grounded on any reasonable basis.” Tapley v. Locals 302 & 612 of the Int'l Union

of Operating Engineers-Employers Constr. Indus. Ret. Plan, 728 F.3d 1134, 1139-

40 (9th Cir 2013). As such, the Trustees’ interpretation must be affirmed as a

proper exercise of their discretion. Id.

      Davis has failed to establish two of the seven required elements to recover

benefits on an equitable estoppel theory under ERISA. See Gabriel v. Alaska Elec.

Pension Fund, 773 F.3d 945, 955-58 (9th Cir. 2014). First, Davis has not

established that the Trustees misrepresented the terms of the Plan. Id. at 955.

Rather, the Plan’s terms, as written, were ambiguous and the representation the

Trustees made in the plan summary was in fact consistent with the disability

retirement pension eventually awarded to Davis. Second, Davis has not

established “extraordinary circumstances.” Id. at 956-57. Specifically, Davis

makes no argument and presents no evidence that the Trustees sought to profit at

the expense of plan participants on the basis of this ambiguity, that the Trustees

made repeated misrepresentations over time, or that Davis is particularly

vulnerable. Id.

      AFFIRMED.




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