                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 09 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LANA V. ROBERTSON,                               No. 15-35304

              Plaintiff - Appellant,             D.C. No. 9:14-cv-00224-DWM

 v.
                                                 MEMORANDUM*
BLUE CROSS AND BLUE SHIELD OF
TEXAS, INC. And STALLION
OILFIELD HOLDINGS, INC.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                          for the District of Montana
                Donald W. Molloy, Senior District Judge, Presiding

                      Argued and Submitted August 31, 2015
                               Seattle, Washington

Before: GOODWIN, GOULD, and IKUTA, Circuit Judges.

      Lana V. Robertson appeals from the district court’s grant of summary

judgment in favor of Blue Cross and Blue Shield of Texas (Blue Cross) and




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Stallion Oilfield Holdings, Inc. (Stallion). We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

       The district court did not err in reviewing Blue Cross’s decision to deny

benefits for an abuse of discretion because Robertson’s employer-sponsored health

benefits plan (the Plan) unambiguously provides discretion to Blue Cross. See

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc).

The Plan states that “the Claims Fiduciary [Blue Cross] . . . will . . . have final

discretionary authority to (i) administer, enforce, construe, and construct the Plan

. . . (ii) make decisions relating to all questions of eligibility to participate and (iii)

make a determination of benefits . . . .” The Plan further provides that such

interpretations and determinations “will be final and conclusive on all persons and

entities subject only to the claims appeal provisions of the Plan.” Because these

provisions establish that Blue Cross has authority to construe the terms of the Plan

and to determine eligibility for benefits, they are “sufficient to vest discretion in

[Blue Cross].” See id. at 965. Moreover, Blue Cross actually exercised its

authority when it denied Robertson’s request for benefits. Cf. Jebian v. Hewlett-

Packard Co. Emp. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1105–06 (9th

Cir. 2003). Accordingly, abuse of discretion review applies. See Abatie, 458 F.3d

at 965. We reject Robertson’s argument that Blue Cross lacks final authority to


                                             2
render benefits decisions because nothing in the Plan requires Stallion to review a

benefits decision before it becomes final. Because Blue Cross is not a source of

funding for the Plan, there is no inherent conflict of interest that would have an

effect on our standard of review. See Abatie, 458 F.3d at 965 & n.5, 966.

      The district court did not err in granting summary judgment in favor of Blue

Cross and Stallion. A court must interpret the terms of an ERISA plan “in an

ordinary and popular sense as would a person of average intelligence and

experience.” Gilliam v. Nev. Power Co., 488 F.3d 1189, 1194 (9th Cir. 2007)

(citation and alteration omitted). The Plan states that benefits “are not available for

. . . [a]ny Experimental/Investigational services and supplies” and that “[t]reatment

provided as part of a clinical trial or a research study is

Experimental/Investigational.” Blue Cross reasonably interpreted this language to

exclude from coverage treatment provided as part of a clinical trial. Because it is

undisputed that Robertson is seeking coverage for treatment provided as part of a

phase three clinical trial, Blue Cross did not abuse its discretion in interpreting the

Plan as excluding coverage for the treatment. See id. Given the clarity of the

applicable exclusion, “[w]e cannot say . . . that [Blue Cross’s] interpretation of [the

Plan] is not reasonable, even when examined in the context of” the Plan as a

whole, evidence that the treatment may be medically necessary, and Texas law.


                                            3
See McDaniel v. Nat’l Shopmen Pension Fund, 817 F.2d 1370, 1374 (9th Cir.

1987). Nor is the plain language of the Plan inconsistent with the ERISA

regulation cited by Robertson. See 29 C.F.R. § 2560.503-1(h)(3)(iii).

      Because in both its second and final denial letters, Blue Cross denied

coverage for the requested treatment on the ground that the treatment is part of a

phase three randomized clinical trial and is therefore investigational, we reject

Robertson’s argument that Blue Cross denied coverage on a different and

unsupportable ground. In light of this conclusion, we need not address

Robertson’s argument that Blue Cross erred in relying on the HCSC Medical

Policy to conclude that the requested treatment is also experimental or

investigational under the Plan because it is not “standard medical treatment.”

Finally, even if the “reasonable expectations” doctrine applies to self-funded plans,

such as the Plan, see Scharff v. Raytheon Co. Short Term Disability Plan, 581 F.3d

899, 905–06 (9th Cir. 2009), Robertson could not have a reasonable expectation

that she would receive coverage for the requested treatment because the clinical

trial exclusion is sufficiently clear and conspicuous in the Plan, see Peterson v. Am.

Life & Health Ins. Co., 48 F.3d 404, 411–12 (9th Cir. 1995).

      While this is a sympathetic case, Robertson is not entitled to receive the

coverage she seeks from Blue Cross and Stallion because it is not required by the


                                           4
plain language of the Plan as reasonably interpreted by Blue Cross. Blue Cross

and Stallion may be able to authorize the coverage in an exercise of discretion, but

the Plan does not require them to do so.

      AFFIRMED.




                                           5
