Viad Corp. Supplemental Pension Plan v. Nasi

MEMORANDUM **

John Nasi appeals the district court’s order granting Viad summary judgment and declaring that Viad does not owe Nasi supplemental pension benefits. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

*452 1. Nasi contends that the district court erroneously reviewed the administrator’s denial of benefits for abuse of discretion as opposed to de novo, because Viad committed procedural violations by not reaching a timely resolution and Viad operated under a structural conflict of interest. Where, as here, an ERISA plan confers the plan administrator discretionary authority, a district court reviews the administrator’s denial of benefits for abuse of discretion. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.2006) (en banc). An administrator’s procedural violations ordinarily “do not alter, the standard of review unless those violations are so flagrant as to alter the substantive relationship between the employer and employee, thereby causing the beneficiary substantive harm.” Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir.2005). Here, Viad’s delay in reaching a timely resolution was not a flagrant procedural…

concurring:

I agree with my colleagues that the plan administrator didn’t abuse her discretion in denying John Nasi’s pension claim. I write separately to offer an alternative ground for affirmance: Even if Viad agreed to pay Nasi $193,397 annually for the rest of his life, as Nasi contends, it no longer has that obligation because Nasi was significantly overpaid from 1996 to 2008.

In 1995, MCII funded a secular trust on Nasi’s behalf with $595,848. MCII also sent a tax gross-up payment of $498,188 directly to the IRS. After Nasi retired in March 1996, he received a check for $8,292 every month until September 2008, when MCII filed for bankruptcy. The key in this case was how that $8,292 figure was (mis)calculated. MCII started with $16,116, the monthly installment of Nasi’s $193,397 annual pension. It then subtracted Nasi’s monthly tax-qualified pension payment ($1,930) and, because Nasi had already received the value of his secular trust up front, the monthly annuity value of his secular trust payment ($5,894). Nasi agrees that these offsets were proper.

What the calculation above doesn’t account for is the tax payment sent directly to the IRS, a fact on which Viad relied in…

FILED

NOT FOR PUBLICATION DEC 11 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIAD CORPORATION No. 12-16892 SUPPLEMENTAL PENSION PLAN, an employee pension benefit plan; VIAD D.C. No. 2:10-cv-01089-ROS CORPORATION, a Delaware corporation,

Plaintiffs-counter-defendants- MEMORANDUM* Appellees,

v.

JOHN R. NASI, an individual,

Defendant-counter-claimant - Appellant.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding

Argued and Submitted November 20, 2014 San Francisco, California

Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation. John Nasi appeals the district court’s order granting Viad summary

judgment and declaring that Viad does not owe Nasi…