NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER EVAN DRESEL,

Plaintiff

- Appellee,

v. PENSION PLAN OF THE PACIFIC NORTHWEST LABORATORIES, BATTELLE MEMORIAL INSTITUTE,

Defendant

- Appellant. No s
. 15

- 35643
D.C. No. 2:14

- cv - 01665

- MJP

MEMORANDUM *

PETER EVAN DRESEL,

Plaintiff

- App ellant ,

v. PENSION PLAN OF THE PACIFIC NORTHWEST LABORATORIES, BATTELLE MEMORIAL INSTITUTE,

Defendant

- Appell ee
. No. 15

- 35652
D.C. No. 2:14

- cv - 01665

- MJP

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding Argued and Submitted December 6, 2017

Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

DEC 18 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges. In this Employee R etirement Income Security Act (ERISA ) case, the Pension Plan of the Pacific Northwest Laboratories, Ba ttelle Memorial Institute (the Plan ) appeals the grant of summary judgment in favor of claimant Peter Dresel and the
den ial of the Plan’s cross

- motion for summary judgment. The Plan contends that it did not abuse its discretion in denying Dresel Early Retirement Benefit s (ERB ) under
its Pension Plan

. Dresel cross

- appeals, arguing that the district court applied an overly deferential standard in reviewing the Plan’s decision. Whether the district court was overly deferential to the Plan does not require
remand. Although the district court could have tempered its abuse of discretion standard of review with some skepticism b ecause the plan administrator both paid benefit awards and determined eligibility for benefits , 1 we affirm because the district
court ’s holding that the Plan abused its discretion survives under even the most
deferential standard of review

. 2 The district court properly held that the Plan abused its discretion in denying
Dresel ERB

. Under a straightforward application of the abuse of discretion standard,

1 See Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 111 (2008)

.
2 Dresel’s cross

- appeal is moot. See Schikore v. BankAmerica Supplemental Ret. Plan , 269 F.3d 956, 961 (9th Cir. 2001) (“We need not decide which standard of review is applicable because even under the more deferential traditional standard, we conclude that the plan administrator’s decision must be vacated.”).3

a plan administrator’s decision must be upheld “if it is based upon a reasonable interpret ation of the plan’s terms and if it was made in good faith.” Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits Plan , 572 F.3d 727, 734 (9th Cir. 2009) (quotation marks and citation omitted) , overruled on other grounds by
Salomaa v. Honda L ong Term Disability Plan , 637 F.3d 958, 965 (9th Cir. 2011)

. By contrast, a plan administrator abuses her discretion when s he construes a pension plan “in a way that clearly conflicts with the plain language of the [p]lan.” Lehman
v. Nelson , 862 F.3d 120 3, 1217 (9th Cir. 2017) (citing Tapley v. Locals 302 & 612 of the Int’l Union of Operating Eng’rs

- Emp’rs Constr. Indus. Ret. Plan , 728 F.3d 1134, 1139 (9th Cir. 2013)). Here, using the Pension Plan’s definitions of “Member,” “Retirement,” “Early Retiremen t Benefit,” and “Early Retirement Age,”
a Member

— which includes former employees

— is eligible for ERB if he elects to commence benefits after he turns fifty

- five years old, but before he reaches sixty

five years old, and has ten years of credited service. Dresel met the requirements to receive ERB: He was a fifty

- seven - year - old former employee with over seventeen years of credited s ervice when he elected to
receive ERB. Thus, the Plan abused its discretion by requiring Dresel to be an “active employee” wh en he elect ed the commencement of benefits. See Canseco v. Constr. Laborers Pension Tr. , 93 F.3d 600, 608 (9th Cir. 1996) (“[P]ension plan4

trustees or administrators may not construe a plan so as to impose an additional requirement for eligibility that cl ashes with the terms of the plan.”). To the extent the Plan argues that it is reasonable to redefine “ R etirement” as the termination of employment because Dresel w as eligible for Deferred Vested
Benefit s (DVB ) , the Plan waived this argument. “The general rule,

. . . in this circuit and in others, is that a court will not allow an ERISA plan administrator to assert a reason for denial of benefits that it had not given during the administrative process.”
Harlick v. Blue Shield of Cal. , 686 F.3d 699, 719

– 20 (9th Cir. 2012)

. In addition,
ERISA regulations require that the plan administrator provide the claimant with “[r]eference to the specific plan provisions on which the determination is based.”
29 C.F.R. § 2560.503

- 1(g)(ii) (2017). Here, the Plan neither explicitly cited its interpretation of “ R etirement” nor referenced the Pension Plan section for DVB during the administrative process and, thus, is precluded from now presenting this new reason for denying Dresel ERB

. AFFIRMED
.