Davis v. Pension Trust Fund for Operating Engineers , 694 F. App'x 586 ( 2017 )

NOT FOR PUBLICATION FILED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
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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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