                                                                            FILED
                             NOT FOR PUBLICATION                            JUN 17 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



BRUCE R. PROBERT, pro se,                        No. 12-35251

               Plaintiff - Appellant,            D.C. No. 4:11-cv-00012-RRB

  v.
                                                 MEMORANDUM *
ROSE KALAMARIDES; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Alaska
                     Ralph R. Beistline, Chief Judge, Presiding

                              Submitted June 10, 2013 **

Before:        HAWKINS, McKEOWN, and BERZON, Circuit Judges.

       Bruce R. Probert appeals pro se from the district court’s judgment

dismissing his action alleging that defendants improperly withheld his pension

benefits and breached their fiduciary duties. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a district court’s dismissal for failure to state a claim

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under Fed. R. Civ. P. 12(b)(6), Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.

1999), and we affirm.

      The district court properly dismissed Probert’s claim, properly brought

under the Employee Retirement Income Security Act (“ERISA”), that defendants

improperly withheld his pension benefits, because it is undisputed that Probert

failed to exhaust his administrative remedies. See Vaught v. Scottsdale Healthcare

Corp. Health Plan, 546 F.3d 620, 626 (9th Cir. 2008) (“[W]e have consistently

held that before bringing suit under § 502, an ERISA plaintiff claiming a denial of

benefits must avail himself . . . of a plan’s own internal review procedures before

bringing suit in federal court.” (citation and internal quotation marks omitted)).

      The district court properly dismissed Probert’s breach of fiduciary duty

claim because Probert is not entitled to pursue a fiduciary duty claim under ERISA

without representation of counsel. See Simon v. Hartford Life, Inc., 546 F.3d 661,

666 (9th Cir. 2008) (“[A]n ERISA action brought pursuant to §§ 1109(a) and

1132(a)(2) is brought in a representative capacity and thus requires plaintiff to be

represented by counsel.”).

      To the extent that Probert claims that defendants violated his privacy in

violation of 5 U.S.C. § 552a, the district court properly dismissed this claim, as

§ 552a does not provide a cause of action against private parties. See Unt v.


                                           2                                    12-35251
Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir. 1985) (“The private right of civil

action created by the [Privacy] Act is specifically limited to actions against

agencies of the United States Government. The civil remedy provisions of the

statute do not apply against private individuals . . . [or] . . . private entities . . . .”).

       The district court properly dismissed Probert’s remaining state law claims

for lost wages and related damages as preempted by ERISA. See Providence

Health Plan v. McDowell, 385 F.3d 1168, 1171-72 (9th Cir. 2004) (ERISA

preempts state law or common law claims which have a “connection with or

reference to” an employee benefit plan).

       We do not address Probert’s claim of judicial bias raised for the first time in

his reply brief. See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per

curiam).

       AFFIRMED.




                                               3                                        12-35251
