Barboza v. California Ass'n of Professional Firefighters

MEMORANDUM

David Barboza and the Plan administrators cross appeal , the district court’s order granting in part and denying in part summary judgment to each party, as well as the district court’s order denying each party’s motion for attorneys’ fees and costs. We have jurisdiction under 28 U.S.C. § 1291 .

The district court did not err when it determined that the Plan administrators’ decisions should be reviewed for an abuse of discretion. The Plan instrument granted discretionary authority to the Plan administrators, and their failure to timely render a decision within ninety days of Barboza’s administrative appeal was not a “wholesale and flagrant” procedural requirement violation that alters the abuse of discretion standard of review. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963, 971 (9th Cir.2006) (en banc). Nor is the Plan administrators’ failure to notify Barboza until the eve of his appeal that the issue of section 4850 pay would be considered at his hearing such a “wholesale and flagrant” procedural violation, particularly since the Plan administrators had repeatedly instructed Barboza to consider the availability of such pay. See Saffon v. Wells Fargo &…